CITY OF FOSTER CITY/
ESTERO MUNICIPAL IMPROVEMENT DISTRICT
THIS MEETING WILL BE CONDUCTED PURSUANT TO THE PROVISIONS OF GOVERNMENT CODE SECTION 54953 (AS AMENDED BY AB 361) WHICH AUTHORIZES TELECONFERENCED MEETINGS UNDER THE BROWN ACT DURING CERTAIN PROCLAIMED STATES OF EMERGENCY. THE GOVERNOR OF CALIFORNIA PROCLAIMED A STATE OF EMERGENCY RELATED TO COVID-19 ON MARCH 4, 2020. THIS TELECONFERENCED MEETING IS NECESSARY SO THAT THE CITY CAN CONDUCT ESSENTIAL BUSINESS AND IS PERMITTED UNDER GOVER NMENT CODE 54953 IN ORDER TO PROTECT PUBLIC HEALTH AND SAFETY OF ATTENDEES. MEMBERS OF THE PUBLIC
THAT WISH TO ATTEND AND/OR PARTICIPATE IN A MEETING MAY DO SO IN PERSON OR BY JOINING THE ZOOM MEETING HTTPS://FOSTERCITY-ORG.ZOOM.US/J/81348623580 PUBLIC COMMENTS WILL BE ACCEPTED BOTH IN PERSON AND VIA ZOOM MEETING. ANY EMAILS SENT TO [email protected] WILL BE PROVIDED TO THE CITY COUNCIL PRIOR TO THE MEETING.
Consistent with Government Code Section 54953, this City/District Meeting will be held via teleconference in addition to in person. City Councilmembers/District Board and staff will attend in person or via teleconference.
To maximize public safety while still maintaining transparency and public access, members of the public can observe the meeting from home or attend the meeting in person. Below is information on how the public may observe and participate in the meeting.
To Attend the Meeting in Person:
• Location: 620 Foster City Blvd, Foster City, California, 94404
To Provide Public Comment in Person:
• Members of the public wishing to speak will be asked to fill out a Request to Speak Form. Forms will be accepted until t he staff presentation on an agenda item ends, or until the public comment period on non- agenda items is closed. For special meetings, public comment is limited to item(s) on the agenda only.
To Observe the Meeting via Teleconference/Video Conference:
• To access the meeting by computer / smartphone, go to: https://fostercity-org.zoom.us/j/81348623580
• To dial-in via phone:
1-669-900-6833 or
1-408-638-0968
And enter Webinar ID: 813 4862 3580
To Participate in the Meeting by Providing Public Comment via Teleconference/Video Conference:
• During the Meeting: Live verbal public comments may be made by members of the public joining the meeting via Zoom. Zoom access information is provided above. Use the “raise hand” feature (for those joining by phone, press *9 to “raise hand”) during the public comment period for the agenda item you wish to address. The Zoom Host will call on people to speak by name provided or last 4 digits of phone number for dial-in attendees. Please clearly state your full name for the record at the start of your public comment.
Before the Meeting: Written public comments for the record may be submitted in advance by 4:00 p.m. the day of the meeting by email to: [email protected] and will be made part of the written
record but will not be read verbally at the meeting. Written public comments submitted by email should adhere to the following:
• Clearly indicate the Agenda Item No. or specify “Public” in the Subject Line for items not on the agenda
• Include the submitter’s full name (Recommended but not required)
1 Written public comments received by 4:00 p.m. the day of the meeting will be provided in their entirety to the City Council prior to the meeting and will be made part of the written record but will not be read verbally at the meeting. Written public comments will be posted to the City’s website for review prior to the meeting.
AMENDED
AGENDA
Monday, March 21, 2022 6:30 PM
REGULAR MEETING AS CITY COUNCIL/EMID BOARD OF DIRECTORS
1. CALL TO ORDER
2. PLEDGE OF ALLEGIANCE
3. ROLL CALL
Councilmembers/ex officio EMID Directors Jon Froomin, Sanjay Gehani, Sam Hindi, Patrick Sullivan, and Mayor/President Richa Awasthi
4. SPECIAL PRESENTATIONS
4.1. Presentation of Certificates of Recognition to Youth Participants of the Foster City 50th Anniversary Writing Contest -- Ameer H., Aneesh R., Badri N., Navya S., Neel V., and Nila K.
4.2. Presentation by California Parks and Recreation Society of Hall of Fame Award to Interim City Manager Kevin M. Miller
4.3. Presentation by San Mateo Consolidated Fire Department (SMC Fire) on Community Emergency Response Team (CERT)
5. PUBLIC
Government Code Section 54954.2 E (3) precludes the City Council from discussing or acting upon any topic initially presented during the “Public” portion of the agenda. Information may be received, placed on a future agenda, or referred to the appropriate City staff. FCMC 2.08.240 Addressing the Council. "...Each person desiring to address the Council shall step up to the public rostrum after being recognized to speak by the presiding officer, shall state his/her name and address for the record, state the subject he/she wishes to discuss, state who he/she is representing if he/she represents an organization or other persons and, unless further time is granted by majority vote of the Council, shall limit his/her remarks to three minutes. The City Council may vary the time limit for any speaker, if it deems this necessary." Speakers may join the Zoom meeting via the meeting link and using the “raise hand” feature and the Zoom host will call on people.
2 6. CITY/EMID CONSENT CALENDAR
All matters listed under Consent Calendar are considered to be routine by the City Council/EMID Board of Directors and will be enacted by one motion unless removed by a member of the Council/Board, staff, or public. There will be no separate discussion on
these items unless a citizen or a Council/Board member
so requests. If discussion is required, that item will be removed from the Consent Calendar and will be considered separately after approval of the remaining items on the Consent Calendar. Vote may be by roll call.
6.1. City/EMID Minutes
6.1.1. City/EMID Special Meeting of February 28, 2022
6.1.2. City/EMID Special Meeting of March 1, 2022
6.1.3. City and Planning Commission Special Joint Meeting of March 2, 2022
6.1.4. City/EMID Special Meeting of March 3, 2022
6.1.5. City/EMID Regular Meeting of March 7, 2022
6.2. City/EMID Ordinances for Adoption (First City Ordinance Number to be used tonight is 644)
6.2.1. An Ordinance of the City of Foster City Adding a New Chapter
17.90, Below Market Rate Inclusionary Housing Program, to Title 17, Zoning, of the Foster City Municipal Code Relating to Inclusionary Housing (First Reading March 7, 2022)
a) Adopt Ordinance
6.2.2. An Ordinance of the City of Foster City Adding a New Chapter
17.92, Affordable Housing Overlay Combining District, to Title 17, Zoning, of the Foster City Municipal Code (First Reading March 7, 2022)
a) Adopt Ordinance
6.2.3. An Ordinance of the City of Foster City Amending the Foster City Zoning Map to Zone Certain Properties Within the Affordable Housing Overlay Combining District (First Reading March 7, 2022)
a) Adopt Ordinance
3 6.3. City/EMID Resolutions for Adoption (First City Resolution Number to be used tonight is 2022-23 and EMID Resolution Number to be used tonight is 3636)
6.3.1. A Resolution of the City Council of the City of Foster City Approving an Agreement with Pen Media for Video Technician Services from May 1, 2022 to April 30, 2023 for the Initial Year, with the Option to Extend the Agreement for an Additional Two Years in Amounts Not to Exceed $35,000 in Any of the Three Years
a) Staff Report
b) Adopt Resolution
6.3.2. A Resolution of the City Council of the City of Foster City Authorizing the Issuance of a Request for Proposal for Sidewalk Repair and Replacement Project (2022-2024)
a) Staff Report
b) Adopt Resolution
6.3.3. A Resolution of the City Council of the City of Foster City Authorizing the City Manager to Enter Into Agreements With and Collect Funds Toward the Cost of Conversion of Sea Cloud Sports Fields S1, S2 and B1 to Synthetic Turf From Foster City Youth Softbal
l Association (FCYSA) Totaling $5,000 Over Four (4)
Years and Foster City Tournament Baseball (FCTB) Totaling $20,000 Over Six (6) Years
a) Staff Report
b) Adopt Resolution
6.3.4. A Resolution of the City Council of the City of Foster City Authorizing Issuance of a Request for Proposals for Trackless Train Concession at Leo Ryan Park From June 1, 2022, Through December 31, 2024, With Optional Extensions Through
December 31, 2026
a) Staff Report
b) Adopt Resolution
6.3.5. A Resolution of the City Council of the City of Foster City Authorizing a Transfer of $36 Million from the Capital Asset Acquisition and Replacement Fund (CAAR Fund 326) and $19 Million from the General Fund 001 Reserves to City CIP Fund 301 for the Recreation Center Replacement Project (CIP 301-678) and an Appropriation Additional Budget of $55 Million to the CIP 301-678, Account No. 301-0910-678-4251
a) Staff Report
b) Adopt Resolution
6.3.6. a) A Resolution of the City Council of the City of Foster City Authorizing the Release of a Request for Proposals for Americans With Disabilities Act Administrative Policy, Self-Evaluation, Transition Plan and Technical Standard Development and Review 4 Services; and
b) A Resolution of the Board of Directors of the Estero Municipal Improvement District Authorizing the Release of a Request for Proposals for Americans With Disabilities Act Administrative Policy, Self-Evaluation, Transition Plan and Technical Standard Development and Review Services
c) Staff Report
d) Adopt Resolutions
6.3.7. a) A Resolution of the City Council of the City of Foster City Extending the Proclamation of the Existence of a Local
Emergency Caused by the Threat of the Novel Covid-19 Virus, and Proclaiming the Continuing Need for the City Council, Planning Commission and Committees to Meet by
Teleconference and Allowing for Increased Meeting Accessibility via in Person and Teleconference Meeting Participation; and b) A Resolution of the Board of Directors of the Estero Municipal Improvement District Proclaiming the Continuing Need for the Estero Municipal Improvement District Board of Directors, Planning Commission, and Committees to Meet by
Teleconference and Allowing for Increased Meeting Accessibility via in Person and Teleconference Meeting Participation
c) Staff Report
d) Adopt Resolutions
6.4. City/EMID Other
6.4.1. Proclamation Request "Recognizing the 100th Anniversary of College of San Mateo (CSM)" (Mayoral Proclamation)
a) Staff Report
b) Approve Proclamation
7. NEW BUSINESS
7.1. Report on Non-Profit Funding Process for FY 2022-2023 a) Staff Report
b) Action - By Minute Order, Provide Policy Direction
7.2. Consideration of Waived Fees or No-Cost Opportunities for Cultural Displays/Holiday Events at City Venues
a) Staff Report
b) Action - By Minute Order, Provide Policy Direction
8. REPORTS
8.1. Levee Protection Planning & Improvements Project (CIP 327-657) Monthly Update - March 2022
a) Staff Report
b) Action - By Minute Order, Receive and Accept Report
5 8.2. Consideration of General Plan Annual Report for 2021 a) Staff Report
b) Action - By Minute Order, Receive and Accept Report
9. COMMUNICATIONS
9.1. City/District Warrants of Demands were Processed and Issued on February 28, 2022, March 5, 2022, and ACH were Processed on March 5, 2022
a) Information Item Only
b) No Action Required
10. CITY/DISTRICT MANAGER REPORTS, COUNCIL/BOARD STATEMENTS
AND REQUESTS, AND COUNCIL LIAISON REPORTS
City/District Manager and Council/EMID Board Members report on their various assignments and liaison roles and Council/EMID Board requests for scheduling future items.
11. CLOSED SESSION
11.1. Public Employee Appointment (Government Code §54957) Title: City Manager
11.2 Conference with Labor Negotiator (Government Code §54957.6) Agency Designated Representative: Mayor
Unrepresented Employee: City Manager
11.3. Report Out from Closed Session
12. ADJOURNMENT
The public is invited to attend.
Any attendee wishing special accommodations at the meeting should contact the City Clerk’s Department at (650) 286-3250 at least 48 hours in advance of the meeting.
Any writings or documents provided to a majority of the City Council or EMID Board regarding any item on this agenda after the agenda packet was distributed will be made available for public inspection in the City Clerk Department at City Hall located at 610 Foster City Boulevard during normal business hours and at the meeting.
City Council meetings on FCTV on Comcast Channel 27 and AT&T Channel 99:
LIVE every 1st and 3rd Monday of the month
REPLAY next day at 1:00 pm (that week only)
REPLAY Saturday at 5:00 pm (only on Saturday the week the actual meeting occurs)
City Council meetings on https://www.fostercity.org/community/page/fctv-live-stream:
STREAMED LIVE every 1st and 3rd Monday of the month
City Council meetings on-demand:
https://www.fostercity.org/agendasandminutes
6 City of Foster City
San Mateo County, California
Certificate of Recognition
On behalf of the Honorable City Council
Whereas, the Foster City Historical Society in collaboration with the City of Foster City sponsored an Essay Writing Contest in celebration of the 50th Anniversary of Foster City; and
Whereas, Ameer H., an 8th grade student at Bowditch Middle School, submitted an essay on why Foster City embodies its status as “Jewel of the Bay”.
Now, therefore, I, Richa Awasthi, Mayor of the City of Foster City, on behalf of the City Council, do hereby present this Certificate to:
Ameer H.
Presented on this 21st day of March 2022
Mayor Richa Awasthi
7 City of Foster City
San Mateo County, California
Certificate of Recognition
On behalf of the Honorable City Council
Whereas, the Foster City Historical Society in collaboration with the City of Foster City sponsored an Essay Writing Contest celebrating the 50th Anniversary of Foster City; and
Whereas, Aneesh R. , a 5th grade student at Audubon Elementary School, submitted an essay describing why she loves Foster City and the many places she frequents.
Now, therefore, I, Richa Awasthi, Mayor of the City of Foster City, on behalf of the City Council, do hereby present this Certificate to:
Aneesh R.
Presented on this 21st day of March 2022
Mayor Richa Awasthi
8 City of Foster City
San Mateo County, California
Certificate of Recognition
On behalf of the Honorable City Council
Whereas, the Foster City Historical Society in collaboration with the City of Foster City sponsored an Essay Writing Contest in celebration of the 50th Anniversary of Foster City; and
Whereas, Badri V., a 10th grade student at Hillsdale High School, submitted an essay pertaining to personal experiences and memories of growing up in Foster City.
Now, therefore, I, Richa Awasthi, Mayor of the City of Foster City, on behalf of the City Council, do hereby present this Certificate to:
Badri V.
Presented on this 21st day of March 2022
Mayor Richa Awasthi
9 City of Foster City
San Mateo County, California
Certificate of Recognition
On behalf of the Honorable City Council
Whereas, the Foster City Historical Society in collaboration with the City of Foster City sponsored an Essay Writing Contest celebrating the 50th Anniversary of Foster City; and
Whereas, Navya S., a 6th grade student at Bowditch Middle School, submitted an essay describing her journey through Foster City, all the fun she participated in throughout the years, and her ideas for the future.
Now, therefore, I, Richa Awasthi, Mayor of the City of Foster City, on behalf of the City Council, do hereby present this Certificate to:
Navya S.
Presented on this 21st day of March 2022
Mayor Richa Awasthi
10 City of Foster City
San Mateo County, California
Certificate of Recognition
On behalf of the Honorable City Council
Whereas, the Foster City Historical Society in collaboration with the City of Foster City sponsored an Essay Writing Contest celebrating the 50th Anniversary of Foster City; and
Whereas, Neel V., a 6th grade student at North Shoreview Montessori, submitted an essay describing his 12-year adventure in Foster City.
Now, therefore, I, Richa Awasthi, Mayor of the City of Foster City, on behalf of the City Council, do hereby present this Certificate to:
Neel V.
Presented on this 21st day of March 2022
Mayor Richa Awasthi
11 City of Foster City
San Mateo County, California
Certificate of Recognition
On behalf of the Honorable City Council
Whereas, the Foster City Historical Society in collaboration with the City of Foster City sponsored an Essay Writing Contest in celebration of the 50th Anniversary of Foster City; and
Whereas, Nila K., a 10th grade student at Hillsdale High School, submitted an essay on why she calls Foster City her “Forever Home”
Now, therefore, I, Richa Awasthi, Mayor of the City of Foster City, on behalf of the City Council, do hereby present this Certificate to:
Nila K.
Presented on this 21st day of March 2022
Mayor Richa Awasthi
12 CITY OF FOSTER CITY/
ESTERO MUNICIPAL IMPROVEMENT DISTRICT
SPECIAL MEETING OF FEBRUARY 28, 2022
MINUTES
CALL TO ORDER OF CITY COUNCIL/EMID BOARD OF DIRECTORS
The duly called and noticed special meeting of the City Council of the City of Foster City (City), sitting as said Council and as ex officio the Board of Directors of the Estero Municipal Improvement District (EMID) of February 28, 2022 was called to order at 6:30 p.m. by Mayor/President Richa Awasthi.
Pursuant to Governor Newsom’s Executive Order N-29-20, as amended through Order N-08-21, the meeting was held as a teleconference meeting.
ROLL CALL
The Communications Director/City Clerk called the roll:
PRESENT: Councilmembers/ex officio EMID Directors Jon Froomin, Sanjay Gehani, Sam Hindi, Patrick Sullivan and Mayor/President Richa Awasthi.
ABSENT: None.
STAFF PRESENT: Kevin Miller, Interim City/District Manager, Benjamin Stock, City Attorney/Legal Counsel; Jennifer Phan, Interim Deputy City Manager; Edmund Suen, Finance Director; Marlene Subhashini, Community Development Director; Maria Saguisag-Sid, Human Resources Director; Tracy Avelar, Police Chief; Robert Marshall, Fire Marshal; Rob Lasky, IT Manager; Tiffany Oren, Recreation Manager, Yelena Cappello, Deputy City Clerk; Julie Paping, Interim Principal Management Analyst; Kevin Ortiz, Management Coordinator; Shuli Chen, Video Technician; and Priscilla Schaus, Communications Director/City Clerk/District Secretary.
STUDY SESSION
Mayor/President Awasthi recessed the meeting into Study Session for the Mid-Year Financial Review/Council Policy Calendar/Budget Strategies. 2ND QUARTER FY 2021-2022. FINANCIAL UPDATE. MINUTE ORDER NO. 1838.
Finance Director Suen presented the staff report.
13 Discussion ensued.
Motion by Vice Mayor/Vice President Froomin, seconded by Councilmember/Director Gehani, and carried unanimously by roll call vote, 5-0-0, to adopt Minute Order No. 1838, to receive and accept the 2nd Quarter FY 2021-2022 Financial Update report.
ORGANIZATIONAL ASSESSMENT - PRELIMINARY PROPOSALS FOR CITY RESTRUCTURING/GOVERNMENTAL OPERATIONS IMPROVEMENT. MINUTE ORDER NO. 1839. CITY RESOLUTION NO. 2022-19. EMID RESOLUTION NO. 3635.
Interim City/District Manager Miller presented the staff report.
Discussion ensued.
Motion by Councilmember/Director Hindi, seconded by Councilmember/Director Sullivan, and carried unanimously by roll call vote, 5-0-0, to adopt Minute Order No. 1839, receiving and accepting the Organizational Assessment - Preliminary Proposals for City Restructuring/Governmental Operations Improvement.
Motion by Vice Mayor/Vice President Froomin, seconded by Councilmember/Director Gehani, and carried unanimously by roll call vote, 5-0-0, to adopt City Resolution No. 2022-19, “A Resolution of the City Council of the City of Foster City Authorizing a Budget Appropriation in the Total Amount of $71,131 from the General Fund to Account No. 001- 0510-451-4110 & Account No. 001-0520-452-4110 ($35,566 & $35,565 Respectively) to Fulfill the Parks & Recreation Director Position for the Remainder of Fiscal Year 2021- 2022” and EMID Resolution No. 3635, “A Resolution of the Board of Directors of the Estero Municipal Improvement District Authorizing a Budget Appropriation in the Total Amount of $71,131 from the General Fund to Account No. 001-0510-451-4110 & Account No. 001-0520-452-4110 ($35,566 & $35,565 Respectively) to Fulfill the Parks & Recreation Director Position for the Remainder of Fiscal Year 2021-2022.” PREPARATION OF THE FY 2022-2023 ANNUAL BUDGET AND FIVE-YEAR FINANCIAL PLAN. MINUTE ORDER NO. 1840.
Interim City/District Manager Miller presented the staff report.
Discussion ensued.
By Consensus of the City Council, it was ordered to adopt Minute Order No. 1840, directing staff to:
1. Assess the current level of staffing for FY 2022-2023 to meet City Council’s strategic directives and continue to provide the same level of services to the community, provide a detailed line item budget outlining associated budgetary cost impacts as they relate to the maintenance of high service levels to the community to be submitted for City Council review at the May 9, 2022 Budget Study Session, 14 and provide an informational report on potential revenue enhancement models at the March 7, 2020 City Council meeting;
2. Include a 5% wage increase placeholder pending the actual April 2022 CPI-U which is not scheduled for release until mid-May, 2022;
3. Provide the long-term capital improvement project (CIP) funding analysis to the City Council at its March 28, 2022 Budget Study Session using the current “pay as you go” funding model;
4. Present the internal service fund analysis at the March 28, 2022 Budget Study Session, and maintain current funding strategy employing a “pay as you go” philosophy for the equipment related replacement funds (vehicle, equipment, information technology, and building). Explore the possibility of utilizing an irrevocable trust for Public Employees' Medical & Hospital Care Act (PEMCHA)/ Other Post Employment Benefit (OPEB) liability and bring back a report for City Council consideration. Maintain the Longevity Recognition and PEMHCA retiree medical funds on a cash benefit basis, and maintain a $1 million self-insured reserve for potential claims against the City;
5. Maintain a minimum General Fund reserve of 33-1/3 to 50% of annual operating expenditures;
6. Maintain a minimum Water Enterprise Fund and Wastewater Enterprise Fund reserve of 25% of annual operating expenditures;
7. Maintain a $2 million reserve each for the City, Water Enterprise, and Wastewater Enterprise CIP funds;
8. Review the funding process for non-profit organizations at the March 21, 2022 City Council Meeting; and
9. Receive an updated Water and Wastewater Rate study report, including financial projections and preliminary rate recommendations for both enterprises, on March 28, 2022.
Meeting recessed into study session at 6:31 p.m. and reconvened at 8:43 p.m.
ADJOURNMENT
Hearing no objection from the City Council/EMID Board, Mayor/President Awasthi adjourned the meeting. Meeting adjourned at 8:43 p.m.
15 CITY OF FOSTER CITY/
ESTERO MUNICIPAL IMPROVEMENT DISTRICT
SPECIAL MEETING OF MARCH 1, 2022
MINUTES
CALL TO ORDER OF CITY COUNCIL/EMID BOARD OF DIRECTORS
The duly called and noticed special meeting of the City Council of the City of Foster City (City), sitting as said Council and as ex officio the Board of Directors of the Estero Municipal Improvement District (EMID) of March 1, 2022 was called to order at 6:30 p.m. by Mayor/President Awasthi.
Pursuant to Governor Newsom’s Executive Order N-29-20, as amended through Order N- 08-21, the meeting was held as a teleconference meeting.
ROLL CALL
The Communications Director/City Clerk/District Secretary called the roll:
PRESENT: Councilmembers/ex officio EMID Directors Jon Froomin, Sanjay Gehani, Sam Hindi, Patrick Sullivan, and Mayor/President Richa Awasthi.
ABSENT: None.
STAFF PRESENT: Maria Saguisag-Sid, Human Resources Director; Rob Lasky, IT Manager; and Priscilla Schaus, Communications Director/City Clerk/District Secretary.
CLOSED SESSION
Hearing no objection from the City Council/EMID Board, Mayor/President Awasthi recessed the meeting into Closed Session for the following:
1. Public Employee Appointment (Government Code § 54957) Title: City Manager; and
2. Report Out from Closed Session.
Meeting recessed into Closed Session at 6:31 p.m. and reconvened at 8:50 p.m.
Mayor/President Awasthi reported that no action was taken in Closed Session.
ADJOURNMENT
Hearing no objection from the City Council/EMID Board, Mayor/President Awasthi adjourned the meeting. Meeting adjourned at 8:50 p.m.
16 CITY OF FOSTER CITY/
FOSTER CITY PLANNING COMMISSION
SPECIAL MEETING OF MARCH 2, 2022
MINUTES
CALL TO ORDER OF CITY COUNCIL AND FOSTER CITY PLANNING COMMISSION The duly called and noticed special meeting of the City Council and Planning Commission of the City of Foster City (City), sitting as said Council and Planning Commission of March 2, 2022 was called to order at 6:30 p.m. by Mayor Awasthi Pursuant to Governor Newsom’s Executive Order N-29-20, as amended through Order N-08-21, the meeting was held as a teleconference meeting.
ROLL CALL
The Deputy City Clerk/Deputy Recording Secretary called the roll:
PRESENT: Councilmembers/ex officio EMID Directors Jon Froomin, Sanjay Gehani, Sam Hindi, Patrick Sullivan and Mayor/President Richa Awasthi.
Planning Commissioners Evan Adams, Charlie Bronitsky, Nicolas Haddad, Ravi Jagtiani, and Chair Rick Wykoff
ABSENT: None.
STAFF PRESENT: Kevin Miller, Interim City/District Manager, Denise Bazzano, Assistant Attorney; Jennifer Phan, Interim Deputy City Manager; Marlene Subhashini, Community Development Director; Leslie Carmichael, Planning Consultant; Rob Lasky; IT Manager; Shuli Chen, Video Technician; and Yelena Cappello, Deputy City Clerk/ Deputy Recording Secretary.
PUBLIC
The following people addressed the City Council and Planning Commission via email:
1. Helen Collins;
2. Mary DeLong;
3. Eva Hess;
4. G.H. Dababo;
5. Kalisha Webster, representing Housing Choices;
6. Amit Saini; and
7. Colin Gould.
17 The following people addressed the City Council and Planning Commission via teleconference:
1. Mary DeLong;
2. Don Carlson;
3. Colin Gould;
4. Mike Dunham, representing Peninsula for Everyone;
5. Kalisha Webster, representing Housing Choices;
6. Vijay Dodd;
7. Seema Patel; and
8. Charles du Mee.
STUDY SESSION
Mayor Awasthi recessed the meeting into study session for Joint City Council & Planning Commission study session to discuss the Housing Element Update for the 2023-2031 Planning Period, Including: Potential Housing Sites for Up to 1,896 New Housing Units Between 2023-2031; and Potential Policy and Program Options for Further Study to Address Future Housing Needs.
Community Development Director Subhashini and Consulting Planner Carmichael presented the staff report and facilitated the discussion.
The following people addressed the City Council and Planning Commissioner via teleconference
1. Charles du Mee;
2. Colin Gould;
3. G.H. Dababo; and
4. Jordan Grimes.
Discussion ensued.
Meeting recessed into study session at 6:56 p.m. and reconvened at 11:02 p.m.
RECESS. The Mayor/President recessed the meeting from 9:18 p.m. to 9:23 p.m.
Planning Commissioner Bronitsky left at 10:25 p.m. due to connectivity issues.
By Consensus of the City Council and Planning Commission, Minute Order No. 1841 was adopted, receiving and accepting the report.
ADJOURNMENT
Hearing no objection from the City Council and Planning Commission, Mayor Awasthi adjourned the meeting. Meeting adjourned at 11:02 p.m. 18 CITY OF FOSTER CITY/
ESTERO MUNICIPAL IMPROVEMENT DISTRICT
SPECIAL MEETING OF MARCH 3, 2022
MINUTES
CALL TO ORDER OF CITY COUNCIL/EMID BOARD OF DIRECTORS
The duly called and noticed special meeting of the City Council of the City of Foster City (City), sitting as said Council and as ex officio the Board of Directors of the Estero Municipal Improvement District (EMID) of March 3, 2022 was called to order at 6:30 p.m. by Mayor/President Awasthi.
Pursuant to Governor Newsom’s Executive Order N-29-20, as amended through Order N- 08-21, the meeting was held as a teleconference meeting.
ROLL CALL
The Deputy City Clerk/Deputy Recording Secretary called the roll:
PRESENT: Councilmembers/ex officio EMID Directors Jon Froomin, Sanjay Gehani, Sam Hindi, Patrick Sullivan, and Mayor/President Richa Awasthi.
ABSENT: None.
STAFF PRESENT: Benjamin Stock, City Attorney/District Counsel; Maria Saguisag-Sid, Human Resources Director; Rob Lasky, IT Manager; and Yelena Cappello, Deputy City Clerk/Deputy Recording Secretary.
CLOSED SESSION
Hearing no objection from the City Council/EMID Board, Mayor/President Awasthi recessed the meeting into Closed Session for the following:
1. Public Employee Appointment (Government Code § 54957) Title: City Manager; and
2. Report Out from Closed Session.
Meeting recessed into Closed Session at 6:30 p.m. and reconvened at 9:45 p.m.
City Attorney Stock reported that no action was taken in Closed Session.
ADJOURNMENT
19 Hearing no objection from the City Council/EMID Board, Mayor/President Awasthi adjourned the meeting. Meeting adjourned at 9:45 p.m.
20 CITY OF FOSTER CITY/
ESTERO MUNICIPAL IMPROVEMENT DISTRICT
REGULAR MEETING OF MARCH 7, 2022
MINUTES
CALL TO ORDER OF CITY COUNCIL/EMID BOARD OF DIRECTORS
The Regular Meeting of March 7, 2022 of the City Council of the City of Foster City, sitting as said Council and as ex officio the Board of Directors of the Estero Municipal Improvement District (EMID), was called to order at 6:30 p.m. by Mayor/President Richa Awasthi.
Pursuant to Governor Newsom’s Executive Order N-29-20, as amended through Order N-08-21, the meeting was held as a hybrid meeting.
ROLL CALL
The Deputy City Clerk/Deputy Recording Secretary called the roll:
PRESENT: Councilmembers/ex officio Directors Jon Froomin, Sanjay Gehani, Sam Hindi, Patrick Sullivan, and Mayor/President Richa Awasthi.
ABSENT: None.
STAFF PRESENT: Kevin Miller, Interim City/District Manager, Benjamin Stock, City Attorney/District Legal Counsel; Jennifer Phan, Interim Deputy City Manager; Edmund Suen, Finance Director; Marlene Subhashini, Community Development Director; Maria Saguisag-Sid, Human Resources Director; Tracy Avelar, Police Chief; Louis Sun, Public Works Director; Rob Lasky, IT Manager; Leslie Carmichael, Consulting Planner; Tiffany Oren, Recreation Manager; Justin Lai, Associate Civil Engineer; Dusty Landwehr, Recreation Coordinator; Shuli Chen, Video Technician and Yelena Cappello, Deputy City Clerk/Deputy Recording Secretary.
SPECIAL PRESENTATIONS
PROCLAMATION RECOGNIZING MARCH 2022 AS WOMEN'S HISTORY MONTH.
Mayor Awasthi presented the proclamation recognizing March 2022 as Women’s History Month to Margaret Lukens and Kathy Wheeler representing the League of Women Voters, and Nirmala Bandra and Candra Williams, representing the San Mateo County Commission on the Status of Women.
21 PUBLIC
Eva Hess addressed the City Council in person regarding housing.
Without objection from the City Council, Mayor Awasthi took “Youth Advisory Committee's 2021 Year End Report, Review of Mission Statement, and Goals for 2022” out of agenda order.
REPORTS
YOUTH ADVISORY COMMITTEE'S 2021 YEAR END REPORT, REVIEW OF MISSION STATEMENT, AND GOALS FOR 2022. MINUTE ORDER NO. 1842.
Youth Advisory Committee Chair Sophia Gomes presented the Youth Advisory Committee’s 2021 Year End Report, Review of Mission Statement, and Goals for 2022.
Motion by Councilmember Gehani, seconded by Vice Mayor Froomin, and carried unanimously by roll call vote, 5-0-0, adopting Minute Order No. 1842, receiving and accepting the Youth Advisory Committee's 2021 Year End Report, Review of Mission Statement, and Goals for 2022.
CONSENT CALENDAR
Motion by Councilmember/Director Hindi, seconded by Councilmember/Director Gehani, and carried unanimously by roll call vote, 5-0-0, approving the following items on the City/District Consent Calendar:
City/EMID Consent Calendar
1. Minutes of Special Meeting of February 17, 2022;
2. Minutes of Regular Meeting of February 22, 2022; and
3. City Resolution No. 2022-20, “A Resolution of the City Council of the City of Foster City Approving the Plans and Specifications and Authorizing the Call for Bids for the New Traffic Signals at Various Locations Project (CIP 301-681).”
PUBLIC HEARING
BELOW MARKET RATE INCLUSIONARY HOUSING PROGRAM (RZ2021-0004), AFFORDABLE HOUSING OVERLAY COMBINING DISTRICT (RZ2019-0001), ZONING
OF SEVEN APARTMENT PROPERTIES WITHIN AFFORDABLE HOUSING OVERLAY COMBINING DISTRICT (RZ2020-0001), AND ESTABLISHING RATES FOR A BELOW MARKET RATE HOUSING IN-LIEU FEE. CITY RESOLUTION NO. 2022-21.
Mayor Awasthi opened a public hearing to hear and consider public comments regarding Below Market Rate Inclusionary Housing Program (RZ2021-0004), Affordable Housing Overlay Combining District (RZ2019-0001), Zoning of Seven Apartment Properties Within 22 Affordable Housing Overlay Combining District (RZ2020-0001), and Establishing Rates for a Below Market Rate Housing In-Lieu Fee.
Community Development Director Subhashini and Consultant Planner Carmichael presented the staff report.
The following people addressed the City Council via email:
1. Connie Vial;
2. Charles and Linda du Mee, 18 Coral Lane;
3. Terry Kao, 110 Williams Lane;
4. Ran Lin, 465 Chesapeake Avenue;
5. Shreya Reddy;
6. Meggan and James Swenson;
7. Grace Castillo, 26 Port Royal Avenue;
8. Aileen Catanzarita, 412 Chesapeake Avenue;
9. Yue Wu; and
10.Kalisha Webster, representing Housing Choices.
The following people addressed the City Council in person:
1. Lorne Needle, 14 Lyme Lane;
2. Don Carlson, 288 Boothbay Avenue; and
3. Jack Bearden.
The following people addressed the City Council via teleconference:
1. Charles du Mee;
2. Shreya Reddy (SR); and
3. Prakash.
Without objection from the City Council, Mayor Awasthi closed the public hearing.
Discussion ensued.
Motion by Councilmember Hindi, seconded by Vice Mayor Froomin, and carried by roll call vote, 4-1-0, Councilmember Gehani voted “no”, to introduce “An Ordinance of the City of Foster City Adding a New Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17, Zoning, of the Foster City Municipal Code Relating to Inclusionary Housing” by title and waive further reading with amendments to add to the end of section
17.90.040.A “as applicable to the demolished units.”
Motion by Councilmember Hindi, seconded by Councilmember Sullivan, and carried by roll call vote, 4-1-0, Councilmember Gehani voted “no”, to pass ordinance to second reading.
Motion by Vice Mayor Froomin, seconded by Councilmember Sullivan, and carried unanimously by roll call vote, 5-0-0, to reconsider “An Ordinance of the City of Foster City 23 Adding a New Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17, Zoning, of the Foster City Municipal Code Relating to Inclusionary Housing.” Motion by Councilmember Sullivan, seconded by Vice Mayor Froomin, and carried unanimously by roll call vote, 5-0-0, to introduce “An Ordinance of the City of Foster City Adding a New Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17, Zoning, of the Foster City Municipal Code Relating to Inclusionary Housing” by title and waive further reading with amendments to add to the end of section 17.90.040.A “as applicable to the demolished units”; remove section 17.90.080.A. providing for payment of below market rate housing in lieu fee as an alternative for developments over 10 units or more; and any conforming changes to recitals, findings and ordinance.
Motion by Councilmember Gehani, seconded by Vice Mayor Froomin, and carried unanimously by roll call vote, 5-0-0, to pass ordinance to second reading.
Motion by Vice Mayor Froomin, seconded by Councilmember Hindi, and carried unanimously by roll call vote, 5-0-0, to introduce “An Ordinance of the City of Foster City Adding a New Chapter 17.92, Affordable Housing Overlay Combining District, to Title 17, Zoning, of the Foster City Municipal Code” by title and waive further reading with amendments to add “or (ii) in a residential development project that will require the demolition of dwelling units, the number of dwelling units demolished, provided the residential development project will create at least as many dwelling units as will be demolished and otherwise complies with the requirements of California Government Code Section 666300 (d), as applicable to the demolished units” to end of section
17.92.040.B; change the 15% inclusionary option to a requirement by deleting language “may instead choose to” in section 17.92.040.A and replacing it with “shall”; and any conforming changes to recitals, findings and ordinance.
Motion by Vice Mayor Froomin, seconded by Councilmember Gehani, and carried unanimously by roll call vote, 5-0-0, to pass ordinance to second reading.
Motion by Councilmember Sullivan, seconded by Vice Mayor Froomin, and carried by roll call vote, 4-1-0, Councilmember Gehani voted “no” to introduce “An Ordinance of the City of Foster City Amending the Foster City Zoning Map to Zone Certain Properties Within the Affordable Housing Overlay Combining District” by title and waive further reading.
Motion by Vice Mayor Froomin, seconded by Councilmember Sullivan, and carried by roll call vote, 4-1-0, Councilmember Gehani voted “no” to pass ordinance to second reading.
Motion by Councilmember Gehani, seconded by Vice Mayor Froomin, and carried unanimously by roll call vote, 5-0-0, to adopt City Resolution No. 2022-21 “A Resolution of the City Council of the City of Foster City Amending the City’s Master Fee Schedule to Adopt a Fee for Below Market Rate Housing In-Lieu Fees.” RECESS. The Mayor/President recessed the meeting from 9:05 pm – 9:10 pm. 24 REPORTS
RECREATION CENTER PROJECT UPDATE - NEXT STEPS. MINUTE ORDER NO.1843.
Interim City Manager Miller and Public Works Director Sun presented the staff report.
Susan Lessin addressed the City Council via teleconference.
Discussion ensued.
Motion by Vice Mayor Froomin, seconded by Councilmember Sullivan, and carried unanimously by roll call vote, 5-0-0, adopting Minute Order No. 1843, directing staff to:
1. Confirm the City Council’s intent to adopt a resolution appropriating Transfer Outs of $36 million from the Capital Asset Acquisition and Replacement Fund (CAAR Fund 326) and $19 million from General Fund reserves to City CIP Fund 301 for the Recreation Center Replacement Project (CIP 301-678) and increasing the CIP 301-678 expenditure budget by $55 million as part of the Annual Budget;
2. Proceed with the Request for Proposals process for design services, construction management services, construction inspection services, and materials testing; and
3. Proceed with the request for additional staffing of two positions to support the project, which will be submitted for City Council review at the Budget Study Session Meeting on May 9, 2022, and will ultimately be approved concurrently with adoption of the City budget.
REPORT ON GENERAL FUND REVENUE ENHANCEMENT BALLOT MEASURES.
MINUTE ORDER NO. 1844.
Finance Director Suen presented the staff report.
Discussion ensued.
Motion by Councilmember Gehani, seconded by Vice Mayor Froomin, and carried unanimously by roll call vote, 5-0-0, adopting Minute Order No. 1844, receiving and accepting the report on General Fund Revenue Enhancement Ballot Measures.
RESOLUTIONS FOR ADOPTION
REVENUES AND EXPENDITURES BUDGET FOR THE REMAINDER OF FY 2021- 2022 FOR THE WORKFORCE HOUSING FUND (FUND 139). CITY RESOLUTION NO. 2022-22.
25 Community Development Director Subhashini and Consulting Planner Carmichael presented the staff report.
Discussion ensued.
Motion by Councilmember Hindi, seconded by Vice Mayor Froomin, and carried by roll call vote, 4-0-1, Councilmember Sullivan abstained, adopting City Resolution No. 2022- 22, “A Resolution of the City Council of the City of Foster City Providing Direction and Approving Revenues and Expenditures Budget for the Remainder of FY 2021-2022 for the Workforce Housing Fund (Fund 139)” with amendments to proceed with item 1 and 5 as presented in the resolution, proceeding with redesignating 5 moderate income Below Market Rate Units to 2 very low income units and 3 low income units, and using funds from the from the Capital Asset Acquisition and Replacement Fund (CAARF) to complete the purchase of the Workforce Housing Apartments approved by Resolution No. 2019-
72. COMMUNICATIONS
CITY/DISTRICT WARRANT OF DEMANDS. NO ACTION TAKEN.
City/District Warrants of Demands were Processed and Issued on February 5, 2022 and February 15, 2022; ACH were Processed on January 27, 2022, February 5, 2022 and February 15, 2022.
COUNCIL/BOARD STATEMENTS AND REQUESTS, COUNCIL LIAISON REPORTS,
AND CITY/DISTRICT MANAGER REPORTS
Councilmember/Director Sullivan stated he participated in the One Day Homeless Count and Survey for San Mateo County. On February 24, he joined a tour of the Levee Project, and on March 4, he attended Leadership training.
Councilmember/Director Gehani stated he attended the Council of Cities meeting on February 25 with Vice Mayor Froomin and Councilmember Hindi.
Vice Mayor/Vice President Froomin welcomed the public back to in person meetings.
Mayor/President Awasthi stated she joined the Levee Project tour on February 28 and thanked Public Works Director Sun and Senior Engineer Magno for the informative tour.
She stated she participated in the Read Aloud at Beach Park Elementary School and said it was a great experience.
CLOSED SESSION
Mayor/President Awasthi recessed the meeting into Closed Session for:
1. Conference with Legal Counsel – Existing Litigation (Government Code § 54956.9(d)(1)):
26 High Level Training Center LLC (aka Gold Medal Martial Arts), U.S. Bankruptcy Court California Northern Bankruptcy Court – Case number: 21-30452;
2. Public Employee Appointment (Government Code §54957) Title: City Manager; and
3. Report Out from Closed Session.
Meeting recessed into Closed Session at 11:06 p.m. and reconvened at 11:40 p.m.
City Attorney Stock reported that no action was taken in Closed Session.
ADJOURNMENT
Hearing no objection from the City Council/EMID Board, Mayor/President Awasthi adjourned the meeting. Meeting adjourned at 11:40 p.m.
27 ORDINANCE NO. ___
AN ORDINANCE OF THE CITY OF FOSTER CITY ADDING A NEW CHAPTER 17.90, BELOW MARKET RATE INCLUSIONARY HOUSING PROGRAM, TO TITLE 17,
ZONING, OF THE FOSTER CITY MUNICIPAL CODE RELATING TO INCLUSIONARY
HOUSING
CITY OF FOSTER CITY
WHEREAS, there is a shortage of affordable housing in the City of Foster City (“City”) as documented in the 2015-2023 General Plan Housing Element; and
WHEREAS, California Government Code Section 65580(d) states that all cities have a responsibility to use the powers vested in them to facilitate the improvement and development of housing and to make adequate provision for the housing needs of all economic segments of the community; and
WHEREAS, consistent with State law, Housing Element Goal H-E is to “Address Affordable Housing Needs: Meet the City's "fair share" of very low, low, and moderate income housing need and the needs of special groups, including the elderly, handicapped, small and large families, extremely low income households and persons, single parents and local workers”; and
WHEREAS, in order to implement Housing Element Goal H-E, Housing Element Policy H-E-2a provides that 20% of all units, excluding bonus units, in residential projects be affordable; and
WHEREAS, the City wishes to implement Housing Element Policy H-E-2a with clear and objective standards to be set forth in an ordinance adding a new Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17 of the Foster City Municipal Code; and
WHEREAS, adopting clear and objective standards for the provision of inclusionary housing within residential development projects will encourage the development and availability of housing opportunities to a broad range of households with varying income levels within the City, as mandated by State Law, and is essential for the public welfare; and
28 WHEREAS, requiring inclusionary housing will increase the supply of below market rate housing to meet the City’s regional share of very low-, low- and moderate- income housing needs and the needs of special groups, including the elderly, disabled, small and large families, and local workers; and
WHEREAS, provision of housing at a variety of income levels will reduce Vehicle Miles Traveled (VMT) and Greenhouse Gas (GHG) emissions by providing people at all income levels more opportunities to live near where they work; and
WHEREAS, provision of housing at a variety of income levels will support the local economy by making it easier for employers to attract and retain workers by providing people at all income levels more opportunities to live near where they work; and
WHEREAS, provision of housing at a variety of income levels will affirmatively further the policies and purposes of the Fair Housing Act, also known as “Affirmatively Further Fair Housing” by reducing segregation and concentration of poverty; and
WHEREAS, the City has received and considered the analysis prepared by Economic and Planning Systems, Inc. (EPS), including memorandum titled “Housing Fee Implementation Considerations” (January 24, 2022), “Rental Inclusionary Housing In-Lieu Fee” (January 20, 2022), and “Ownership Inclusionary Housing In-Lieu Fee” (January 11, 2022) (collectively, the “EPS Studies”); and
WHEREAS, the new Chapter 17.90, Below Market Rate Inclusionary Housing Program, authorizes the City Council to adopt a Below Market Rate Housing In-lieu Fee, which a project developer may, in certain prescribed instances, pay as an alternative to the development and construction of below market rate dwelling units; and WHEREAS, the payment of any Below Market Rate Housing In-lieu Fees will be deposited in the City’s Affordable Housing Fund, to be used to finance the development of new affordable housing or the rehabilitation of existing affordable housing, to provide affordable housing programs in the City, to leverage flexible local funds for larger State and Federal grants, and to administer the City’s Affordable Housing Program; and WHEREAS, the Planning Commission considered the proposed ordinance adding a new Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17 of the Foster City Municipal Code at a noticed public hearing on February 3, 2022 and adopted Resolution P-01-22 recommending City Council approval; and 29 WHEREAS, the City provided notice of the public hearing (“Notice”) and held a public hearing on March 7, 2022, regarding the proposed ordinance adding a new Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17 of the Foster City Municipal Code, pursuant to Government Code Section 65856; and WHEREAS, as required by Government Code Sections 65856 and 65090, the Notice contained the information required by Government Code Section 65094, and was published in compliance with Government Code Section 6061 on February 16, 2022 and February 23, 2022 in the Foster City Islander, a newspaper of general circulation with the City of Foster City; and
WHEREAS, the City Council of the City of Foster City carefully reviewed and considered the staff report and all attachments thereto presented as part of the agenda for the public hearing regarding the proposed ordinance adding a new Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17 of the Foster City Municipal Code, including the EPS Studies and this Ordinance, any and all timely submitted correspondence, all information submitted at or prior to the public hearing, and all public comment and testimony presented at the public hearing (collectively, the “Record”); now, therefore, be it resolved that
THE CITY COUNCIL OF THE CITY OF FOSTER CITY DOES ORDAIN AS FOLLOWS:
Section 1. The foregoing Recitals are true and correct and are incorporated herein by this reference.
Section 2. The City Council does hereby find and determine based upon the aforementioned Record as follows:
(a) The Public Hearing was properly noticed and conducted in accordance with State law and the Foster City Municipal Code; and
(b) The adoption of the proposed ordinance adding a new Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17 of the Foster City Municipal Code, is exempt from review under the California Environmental Quality Act (CEQA) as it is not considered a ‘project’ under Public Resources Code Section 21065 and CEQA Guidelines Section 15378 because the ordinance will not result in a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. In addition, even if the adoption of the ordinance was considered a “project” under CEQA, pursuant to CEQA Guidelines Section 15061(b)(3), the proposed ordinance is covered by the common sense exemption providing that CEQA only applies to projects which have the potential for causing a significant effect on the environment and where, as is the case with the adoption of this proposed ordinance, it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA; and
30 (c) The provision of safe and stable housing for households at all income levels is essential for the public welfare of the City. Housing in Foster City, both rental and for-sale housing, has become steadily more expensive and housing costs have gone up faster than incomes. Federal and state government programs do not provide enough affordable housing to satisfy the needs of very low, low, or moderate income households. As a result, there is a severe shortage of adequate, affordable housing for very low, lower, and moderate income households, as evidenced by the findings in the City’s 2015 – 2023 Housing Element: and (d) As provided in the Housing Element of the General Plan, Housing Element Goal H-E, Housing Element Program H-E-2 “Private Development of Affordable Housing – Inclusionary Requirement”, the City wishes to require the production of affordable units in connection with the approval of residential development projects; and
(e) The proposed ordinance adding a new Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17 of the Foster City Municipal Code, is consistent with the General Plan.
Section 3. Chapter 17.90, Below Market Rate Inclusionary Housing Program, is hereby added to Title 17, Zoning, of the Foster City Municipal Code to read as follows:
Chapter 17.90
BELOW MARKET RATE INCLUSIONARY HOUSING PROGRAM
Sections:
17.90.010 Purpose.
17.90.020 Definitions.
17.90.030 Applicability.
17.90.040 Requirements for Inclusion of Below Market Rate Dwelling Units.
17.90.050 Payment of a Below Market Rate Housing In-Lieu Fee.
17.90.060 Standards for Below Market Rate Dwelling Units.
17.90.070 Below Market Rate Housing Plan and Below Market Rate Housing Agreement.
17.90.080 Alternatives.
17.90.090 Waiver of Requirements.
17.90.100 Affordable Housing Fund.
17.90.110 Enforcement.
31 17.90.010 Purpose.
The purpose of this Chapter, to be known as the Below Market Rate Inclusionary Housing Program, is to:
A. Enhance the public welfare by establishing policies and encouraging the development and availability of housing opportunities to a broad range of households with varying income levels within the City as mandated by State Law, California Government Code Section 65580 and following; and B. Promote the City’s goals as stated in the Housing Element of the General Plan to increase the supply of below market rate housing to meet the City’s regional share of very low-, low- and moderate-income housing needs and the needs of special groups, including the elderly, disabled, small and large families, and local workers by imposing an inclusionary requirement for residential development projects; and
C. Reduce Vehicle Miles Traveled (VMT) and Greenhouse Gas (GHG) emissions by providing people at all income levels more opportunities to live near where they work; and
D. Support the local economy by making it easier for employers to attract and retain workers by providing people at all income levels more opportunities to live near where they work; and
E. Affirmatively further the policies and purposes of the Fair Housing Act, also known as “Affirmatively Further Fair Housing” by reducing segregation and concentration of poverty; and
F. Implement the City’s adopted inclusionary policy contained in the Housing Element of the General Plan by creating standards and a mechanism to provide below market rate dwelling units as part of new residential development projects; and
G. Provide for the establishment and imposition of a Below Market Rate Housing In- Lieu Fee on residential development projects as an alternative means of mitigating the impact of residential development projects on the need for below market rate dwelling units in the City, as opposed to the development and construction of below market rate dwelling units as part of residential development projects, in certain circumstances.
17.90.020 Definitions.
A. "Below Market Rate Housing Fund" means a separate or segregated fund or account designated by the City to maintain and account for all monies received pursuant to this Chapter.
B. "Below market rate ownership cost" means the sale price for a below market rate dwelling unit, available as a for-sale unit, resulting in a projected average monthly housing expense during the first calendar year of an eligible household's occupancy, including mortgage principal and interest, mortgage insurance, 32 property taxes, homeowners insurance, homeowners' association dues, if any, and a reasonable allowance for utilities, not exceeding the sales prices specified by Section 50052.5 of the California Health and Safety Code and California Code of Regulations Title 25, Sections 6910-6924.
C. "Below market rate rent" means the total monthly housing expenses for a below market rate dwelling unit, available as a rental unit, not exceeding the rents specified by Section 50053 of the California Health and Safety Code and California Code of Regulations Title 25, Sections 6910-6924, except that the City may permit alternative criteria, when necessary, to be consistent with pertinent state and federal statutes and regulations governing publicly assisted rental housing. As used in this Chapter, "below market rate rent" shall include the total of monthly payments by the tenant for all of the following:
1. Use and occupancy of the below market rate dwelling unit and land and all facilities associated with the below market rate dwelling unit, including but not limited to parking (whether unbundled or not), bicycle storage, storage lockers, and use of all common areas;
2. Any additional separately charged fees or service charges assessed by the owner, other than security deposits;
3. An allowance for utilities paid by the tenant as established by the San Mateo County Housing Authority which may be updated from time to time, including garbage collection, sewer, water, electricity, gas, and other heating, cooking, and refrigeration fuel, but not telephone service, cable TV or WiFi/internet; and
4. Any other interest, taxes, fees or charges for use of the land or below market rate dwelling unit or associated facilities and assessed by a public or private entity other than the owner, and paid by the tenant.
D. "Below market rate dwelling unit" means a dwelling unit in a residential development project that is restricted for sale or rental to and occupancy by an eligible household at a below market rate ownership cost or below market rate rent, as applicable, and as required by this Chapter.
E. “Below Market Rate Housing Administrative Guidelines” means guidelines adopted by the Community Development Director from time to time for determining household income, below market rate ownership cost, below market rate rent, eligible households, monitoring, reporting, scope of Below Market Rate Housing Plan, terms of Below Market Rate Housing Agreement, and any other relevant rules, regulations or provisions necessary for the administration of this Chapter.
F. “Below Market Rate Housing Agreement” means an agreement that shall specify the number, type, location, size, and phasing of all below market rate dwelling units required in a residential development project, provisions for income certification and screening of potential purchasers or renters of below market rate dwelling units, and resale control mechanisms, including the financing of ongoing administrative and monitoring costs, consistent with the approved Below Market Rate Housing Plan, as determined by the Community Development Director. 33 G. “Below Market Rate Housing In-Lieu Fee” means the fee imposed on each dwelling unit of a residential development project, established by resolution of the City Council and updated from time to time, not to exceed the cost of mitigating the impact of residential development projects on the need for below market rate dwelling units in the City.
H. “Below Market Rate Housing Plan” means a plan prepared by the developer of a residential development project that describes how the proposed dwelling units conform to the requirements of this Chapter, and City and State Density Bonus law requirements, as applicable, and shall include, at a minimum, procedures and requirements for determining eligible households for rental of rental units or purchasers of for-sale units, occupancy requirements, initial and ongoing marketing policies, application process, waitlist management, income verification requirements, annual recertification, if applicable, rejection of ineligible applicants and eligibility termination, and such other provisions as the Community Development Director may prescribe from time to time pursuant to Below Market Rate Housing Administrative Guidelines.
I. "Building permit" includes full structural building permits as well as partial permits such as foundation-only permits and demolition permits.
J. “Density bonus” means entitlement to build additional residential units above the maximum number of units permitted pursuant to the existing General Plan, applicable specific plan and/or zoning designation, and as further specified in Chapter 17.86 of this Title and California Government Code Section 65915 (“State Density Bonus Law”).
K. "Developer" means the person(s) or legal entity(ies), including the property owner, seeking a planning permit or building permit for a residential development project.
L. “Dwelling unit” means a dwelling designed for occupancy by one (1) household; the foregoing notwithstanding, Dwelling Unit shall not include an Accessory Dwelling Unit as defined in Section 17.78.040, Chapter 17.78 of this Title.
M. “Eligible household” means those households whose maximum income does not exceed levels published annually for extremely low income households, very low income households, low income households, and moderate income households, adjusted for household size and appropriate for the below market rate dwelling unit.
N. "Extremely low income households" means households with incomes no greater than the maximum income for extremely low income households, as published annually by the California Department of Housing and Community Development (HCD) as the Official State Income Limits pursuant to Health and Safety Code Section 50093 for San Mateo County, adjusted for household size, except that the City may permit alternative criteria, when necessary, to be consistent with pertinent state and federal statutes and regulations governing publicly assisted housing.
O. "For-sale unit" means a dwelling unit that may be sold individually in conformance with the Subdivision Map Act. For-sale units also include dwelling units that are converted from rental units to for-sale units.
34 P. "Low income households" means households with incomes no greater than the maximum income for low income households, as published annually by the California Department of Housing and Community Development (HCD) as the Official State Income Limits pursuant to Health and Safety Code Section 50093 for San Mateo County, adjusted for household size, except that the City may permit alternative criteria, when necessary, to be consistent with pertinent state and federal statutes and regulations governing publicly assisted housing.
Q. "Market rate unit" means a dwelling unit in a residential development project that is not a below market rate dwelling unit.
R. "Moderate income households" means households with incomes no greater than the maximum income for moderate income households, as published annually by the California Department of Housing and Community Development (HCD) as the Official State Income Limits pursuant to Health and Safety Code Section 50093 for San Mateo County, adjusted for household size, except that the City may permit alternative criteria, when necessary, to be consistent with pertinent state and federal statutes and regulations governing publicly assisted housing.
S. "One (1) location" includes all adjacent parcels of land under common ownership or control, the property lines of which are contiguous at any point, or the property lines of which are separated only by a public or private street, road, or other public or private right-of-way, or separated only by the lands owned or controlled by the developer.
T. "Planning permit" means any discretionary approval of a residential development project, including, without limitation, a general or specific plan adoption or amendment, rezoning, tentative map, parcel map, conditional use permit, variances, or architectural review.
U. "Rental unit" means a dwelling unit that is intended to be offered for rent or lease and that cannot be sold individually in conformance with the Subdivision Map Act.
V. "Residential development project" means an application for a planning permit or building permit at one (1) location to create one (1) or more dwelling units, redevelop an existing residential development project to remove and replace dwelling units and/or create one (1) or more additional dwelling units, convert nonresidential uses to dwelling units, subdivide a parcel to create one (1) or more separately transferable parcels intended for development of dwelling units, or implement a condominium conversion, including development of dwelling units constructed at one (1) location and in phases.
W. "Review authority" means the City staff person or body authorized to approve or deny an application for a planning permit or building permit for a residential development project.
X. "Very low income households" means households with incomes no greater than the maximum income for very low income households, as published annually by the California Department of Housing and Community Development (HCD) as the Official State Income Limits pursuant to Health and Safety Code Section 50093 for San Mateo County, adjusted for household size, except that the City may permit 35 alternative criteria, when necessary, to be consistent with pertinent state and federal statutes and regulations governing publicly assisted housing.
17.90.030 Applicability.
The requirements of this Chapter shall apply to any residential development project as set forth below.
A. Residential Development Projects: Five (5) to Nine (9) Dwelling Units.
Residential development projects containing five (5) to nine (9) dwelling units are hereby required, as a condition of issuance of a planning permit or building permit, to either (i) pay a Below Market Rate Housing In-Lieu Fee for each dwelling unit upon issuance of a building permit, or (ii) construct below market rate units on the location of the residential development project per Section 17.90.040 (Requirements for Inclusion of Below Market Rate Dwelling Units), make said below market rate dwelling units available for sale or rental to and occupancy by eligible households at the applicable household income level and at below market rate ownership cost or below market rate rent, as applicable, and secure said obligation pursuant to a Below Market Rate Housing Agreement as set forth in Section 17.90.070.E (Below Market Rate Housing Agreement).
B. Residential Development Projects: Ten (10) Dwelling Units or More.
Residential development projects of ten (10) dwelling units or more are hereby required, as a condition of issuance of a planning permit or building permit, to construct below market rate units on the location of the residential development project per Section 17.90.040 (Requirements for Inclusion of Below Market Rate Dwelling Units), make said below market rate dwelling units available for sale or rental to and occupancy by eligible households at the applicable household income level and at below market rate ownership cost or below market rate rent, as applicable, and secure said obligation pursuant to a Below Market Rate Housing Agreement as set forth in Section 17.90.070.E (Below Market Rate Housing Agreement).
C. Exemptions. The provisions of this Chapter shall not apply to developers of residential development projects which fall within one (1) or more of the following categories:
1. Residential development projects containing four (4) or fewer dwelling units;
2. Residential development projects located on property owned by the State of California, the United States of America, or any of its agencies and used exclusively for governmental or educational purposes;
3. Residential development projects involving the repair or replacement of a building that was damaged or destroyed by fire or other calamity, so long as (i) the square footage and use of the building remains the same, (ii) construction of the replacement building is conducted in accordance with California Government Code Section 65852.25, which section requires a building permit to be secured within two (2) years of the occurrence of any such event, and (iii) in accordance with California Health and Safety Code Section 18938.6, construction begins within one (1) year from the issuance of a building permit, subject to the issuance 36 of one or more extensions, not to exceed 180 days, upon a showing of justifiable cause by the applicant to the satisfaction of the building official;
4. Accessory dwelling units (ADUs) or Junior accessory dwelling units (JADUs) as defined in Chapter 17.78 of the Foster City Municipal Code;
5. Residential development projects which are developed in accordance with the terms of a development agreement adopted by ordinance pursuant to the authority and provisions of California Government Code Section 65864 et seq., and that is executed prior to the effective date of the ordinance codified in this Chapter, provided that such residential development projects shall comply with any below market rate inclusionary housing requirements included in the development agreement or any predecessor ordinance in effect on the date the development agreement was executed;
6. Residential development projects exempted by California Government Code Section 66474.2 or 66498.1 or successor provision, provided that such residential development projects shall comply with any predecessor ordinance, resolution, or policy governing below market rate inclusionary housing in effect on the date the application for the development was deemed complete;
7. Residential development projects exempted by California Government Code Section 65589.5 (o) or successor provision, provided that such residential development projects shall comply with any predecessor ordinance, resolution, or policy governing below market rate inclusionary housing in effect on the date that a preliminary application for the development containing all of the information required by California Government Code Section 65941.1 was submitted to the City; or
8. Residential development projects for which all applications for City of Foster City discretionary development entitlements required to develop the project have been deemed complete prior to the effective date of the ordinance codified in this Chapter, provided that such residential development projects shall comply with any predecessor ordinance, resolution, or policy governing below market rate inclusionary housing in effect on the date the application for the development was deemed complete.
17.90.040 Requirements for Inclusion of Below Market Rate Dwelling Units.
A. Number of Below Market Rate Dwelling Units and Level of Affordability.
Residential development projects of ten (10) dwelling units or more shall construct, or cause to be constructed, the number of below market rate dwelling units as specified below. For the purposes of this section, "total dwelling units" does not include (i) dwelling units awarded above the otherwise-allowable maximum density as part of a density bonus in Chapter 17.86 (Density Bonuses), as provided by California Government Code Section 65915 (b)(3), or (ii) in a residential development project that will require the demolition of dwelling units, the number of dwelling units demolished, provided the residential development project will create at least as many dwelling units as will be demolished and otherwise complies with the requirements of 37 California Government Code Section 66300 (d), as applicable to the demolished units.
1. Rental Projects. Five percent (5%) of the proposed total dwelling units in a rental residential development project shall be below market rate dwelling units occupied by or available for occupancy by moderate income households at or below market rate rents; five percent (5%) of the proposed total dwelling units shall be below market rate dwelling units occupied by or available for occupancy by low income households at or below market rate rents; and ten percent (10%) of the proposed total dwelling units shall be below market rate dwelling units occupied by or available for occupancy by very low income households at or below market rate rents. Alternative percentages and levels of affordability may be considered as part of the Below Market Rate Housing Plan and Below Market Rate Housing Agreement (Section 17.90.070) and the reviewing authority may approve or conditionally approve such an alternative if it determines, based on substantial evidence, that such alternative percentages and levels of affordability will provide as many or more below market rate units at the same or lower income levels or will otherwise provide greater public benefit than the standard requirement.
2. Ownership Projects. Twenty percent (20%) of the proposed total dwelling units in a for-sale residential development project shall be below market rate dwelling units sold to and occupied by or available for sale to and occupancy by moderate income households at or below market rate ownership cost.
3. Fractional Units. In calculating the number of below market rate dwelling units required pursuant to Sections 17.90.040.A.1 and 17.90.040.A.2 above, any fraction of less than 0.50 shall be satisfied by payment of an amount equal to the Below Market Rate Housing In-Lieu Fee, as adopted by the City Council applicable to rental or ownership residential developments, times the applicable fraction, and any fraction of 0.50 or more shall be satisfied by developing one (1) below market rate dwelling unit available for sale or rental to and occupancy by eligible households at the applicable household income level and at below market rate ownership cost or below market rate rent, as applicable.
B. Density Bonus. Below market rate dwelling units that satisfy the requirements of this Chapter may be counted toward the number of below market rate dwelling units required for a density bonus under California Government Code Sections 65915- 65918. To be eligible, the below market rate dwelling units shall meet all of the applicable requirements in California Government Code Section 65915. These requirements, including application submittal requirements and replacement housing obligations, are set forth in Chapter 17.86 (Density Bonuses).
17.90.050 Payment of Below Market Rate Housing In-Lieu Fee.
A. Amount. The amount of the Below Market Rate Housing In-Lieu Fee applicable to rental residential development projects and ownership residential development projects shall be established from time to time by resolution of the City Council. The Below Market Rate Housing In-Lieu Fee established for rental residential 38 development projects and ownership residential development projects shall not exceed the cost of mitigating the impact of rental or ownership residential development projects on the need for below market rate dwelling units in the City.
B. Timing of Payment. Payment of the Below Market Rate Housing In-Lieu Fee shall be due prior to the issuance of the first building permit for the residential development project. The Below Market Rate Housing In-Lieu Fee shall be calculated based on the type of residential development project (i.e. either rental or ownership), and the applicable fee schedule in effect at the time the building permit is issued for a rental residential development project or ownership residential development project.
17.90.060 Standards for Below Market Rate Dwelling Units.
A. Quality of Construction and Number of Bedrooms. All below market rate dwelling units required by this Chapter shall be equal to the overall quality of construction to market-rate units in the same residential development project as follows:
1. The exterior appearance of the below market rate dwelling units shall be the same as that of market-rate units.
2. Interior finishes and amenities of the below market rate dwelling units shall not differ from those provided in the base model market rate units.
3. The number of bedrooms in the below market rate dwelling units shall be equal to the average number of bedrooms in the market-rate units, including square footage by unit size, and the below market rate dwelling units shall be dispersed within the residential development project, with the location of below market rate dwelling units comparable to those of the market-rate units, subject to review and approval by the Community Development Director.
4. The below market rate dwelling units shall have access to the same amenities as the market rate units and shall be included within the below market rate ownership cost or below market rate rent for the below market rate dwelling unit.
For example, residents of the below market rate dwelling units shall not be excluded from common open space, parking, storage, and other community facilities or amenities in the residential development project, nor shall households residing in below market rate dwelling units be charged more than an below market rate rent or an below market rate ownership cost as defined in Section
17.90.020 (Definitions) for the use of such facilities and amenities.
B. Availability for Occupancy. Below market rate dwelling units required by this Chapter shall be made available for occupancy concurrently with the market-rate units. For the purposes of this subsection, "concurrently" means that the City may not issue building permits for more than fifty (50) percent of the market-rate units until it has issued building permits for all of the below market rate dwelling units, and the City may not approve any final inspections or certificates of occupancy for more than fifty (50) percent of the market-rate units until it has issued final inspections or certificates of occupancy for all of the below market rate dwelling units. 39 C. Duration of Affordability.
1. Ownership. Below market rate dwelling units available as a for-sale unit produced as required by this Chapter shall, pursuant to the terms of a Below Market Rate Housing Agreement, be legally restricted for sale to and occupancy by eligible households within the income levels for which the below market rate dwelling units were designated and at a below market rate ownership cost for a period of at least forty-five (45) years from the date of recordation of each grant deed. Resale of the below market rate dwelling unit during the forty-five (45) year term shall be restricted to eligible households at a below market rate ownership cost as defined herein and set forth in the Below Market Rate Housing Agreement recorded against the below market rate dwelling unit and the forty- five (45) year term shall start over with each resale. If a below market rate dwelling unit has not been sold or resold prior to the expiration of the forty-five (45) year term, then upon the expiration of the forty-five (45) year term, the restrictions set forth in the Below Market Rate Housing Agreement shall terminate, expire and be of no further force or effect and the dwelling unit may then be sold at market rate. The Below Market Rate Housing Agreement shall be recorded against the property of the applicable residential development project and below market rate dwelling unit(s) in accordance with the provisions of and consistent with the form specified in Section 17.90.070.E.
2. Rental. Below market rate dwelling units available as a rental unit produced as required by this Chapter or pursuant to the provisions of California Government Code Section 66300 (d) shall, pursuant to the terms of a Below Market Rate Housing Agreement, be legally restricted to occupancy by eligible households within the income levels for which the below market rate dwelling units were designated and at an below market rate rent for a period of at least ninety-nine (99) years from the date a certificate of occupancy is issued by City for the entire residential development project. The foregoing notwithstanding, the Community Development Director, or his or her designee, may, in the exercise of her or his discretion, accept a shorter period of affordability of no less than fifty-five (55) years, if the applicable residential development project provides substantial evidence that a shorter-term restriction is necessary and required in order to obtain financing for the applicable residential development project. The Below Market Rate Housing Agreement shall be recorded against the property of the applicable residential development project in accordance with the provisions of and consistent with the form specified in Section 17.90.070.E.
D. Eligibility. No eligible household may occupy a below market rate dwelling unit available as a rental unit or acquire a below market rate dwelling unit available as a for-sale unit until the Community Development Director, or his or her designee, has approved a Below Market Rate Housing Plan prepared by the developer, which plan shall include eligibility requirements specific to the residential development project, and an Below Market Rate Housing Agreement has been recorded against the residential development project in accordance with Section 17.90.070.E. 40 E. Principal Residence. Any eligible household that occupies a below market rate dwelling unit must occupy that dwelling unit as its principal residence, unless otherwise approved in writing for rental to a third party for a limited period of time due to household hardship, as determined and approved by the City in advance and in accordance with Below Market Rate Housing Administrative Guidelines.
F. Below Market Rate Housing Administrative Guidelines. The Community Development Director, or his or her designee, may, from time to time, adopt and revise rules, regulations and guidelines for determining household income, below market rate housing cost, below market rate rent, determining eligible households of for-sale units and rental units, establishing monitoring and reporting requirements for residential development projects, and such other provisions and requirements as are relevant to the administration of this Chapter.
G. Housing Preferences. Subject to applicable state and federal fair housing laws, the City Council may, from time to time, adopt preferences for the sale or rental to and occupancy of below market rate dwelling units at the applicable below market rate ownership cost or below market rate rent, as applicable, to eligible households that live and/or work in the City or any other characteristics the City Council deems appropriate to further the purposes of this Chapter. The City Council may also, from time to time, adopt preferences applicable to specific residential development projects.
17.90.070 Below Market Rate Housing Plan and Below Market Rate Housing Agreement.
A. Required. A Below Market Rate Housing Plan is required for any residential development project that provides below market rate dwelling units, either on-site or off-site. The Below Market Rate Housing Plan shall describe how the proposed dwelling units conform to the requirements of this Chapter and City and State Density Bonus law requirements, as applicable. Further, the Below Market Rate Housing Plan shall include, at a minimum, procedures and requirements for determining eligible households for rental of rental units or purchasers of for-sale units, occupancy requirements, initial and ongoing marketing policies, application process, waitlist management, income verification requirements, annual recertification, if applicable, rejection of ineligible applicants and eligibility termination, funding by developer of ongoing administration and monitoring costs to be incurred by City following occupancy of below market rate dwelling units, and such other provisions as the Community Development Director, or his or her designee, may prescribe from time to time pursuant to Below Market Rate Housing Administrative Guidelines. Below Market Rate Housing Plans are not required for residential development projects that are not required to provide for the construction, sale and/or rental of on-site or off-site below market rate dwelling units, in compliance with the provisions of this Chapter.
B. Submittal and Review. The Below Market Rate Housing Plan must be submitted prior to the first planning permit application being deemed complete. The Below Market Rate Housing Plan shall be processed concurrently with all other planning permits required for the residential development project. 41 C. Approval of On-site Below Market Rate Dwelling Units. The review authority may approve or conditionally approve a Below Market Rate Housing Plan that proposes on-site below market rate dwelling units if it makes findings, based on substantial evidence, that:
1. The on-site below market rate dwelling units comply with the applicable standards in this Chapter, including, without limitation, the requirement that the below market rate dwelling units be made available for occupancy concurrently with the market-rate units.
2. The on-site below market rate dwelling units will mitigate the impact of the market rate units in the residential development project on the need for below market rate dwelling units in the City.
D. Amendments. The approved Below Market Rate Housing Plan may be amended prior to issuance of any building permit for the residential development project. A request for a minor modification of an approved Below Market Rate Housing Plan may be granted by the Community Development Director if the modification is substantially in compliance with the original Below Market Rate Housing Plan and conditions of approval. Other significant or substantial modifications to the Below Market Rate Housing Plan, as determined by the Community Development Director, shall be processed in the same manner as the original Below Market Rate Housing Plan.
E. Below Market Rate Housing Agreements. As a condition of approval of a residential development project, a Below Market Rate Housing Agreement acceptable to the Community Development Director, approved by the City Attorney and executed by the City Manager, shall be recorded against the residential development project prior to approval of any final or parcel map, or issuance of any building permit, whichever occurs first. The Below Market Rate Housing Agreement shall specify the number, type, location, size, and phasing of all below market rate dwelling units, provisions for income certification and screening of potential purchasers or renters of below market rate dwelling units, and resale control mechanisms, including funding by developer of ongoing administrative and monitoring costs incurred by City, consistent with the approved Below Market Rate Housing Plan. The Below Market Rate Housing Agreement shall provide for the indemnification and defense of the City, as approved by the City Attorney, against any and all claims brought by any and all persons, including eligible households, in connection with the administration and implementation by City of the Below Market Rate Housing Plan and Below Market Rate Housing Agreement. A Below Market Rate Housing Agreement applicable to below market rate dwelling units, available as for-sale units, shall require as a condition of the sale of a below market rate dwelling unit from developer to an eligible household, that the restrictions set forth in the Below Market Rate Housing Agreement and this Chapter be recorded against the below market rate dwelling unit in the form of a resale restriction agreement, performance deed of trust, and/or regulatory agreement, as approved by the City Attorney and executed by the City Manager, to ensure the continued affordability of the below market rate dwelling units.
42 17.90.080 Alternatives.
To the extent permitted by law, the City’s objective is to obtain the actual development and construction of below market rate dwelling units within each residential development project, as opposed to the receipt of payment of Below Market Rate Housing In-Lieu Fees, construction of off-site below market rate dwelling units, or other such alternatives as set forth herein. Nevertheless, a developer may propose an alternative means of compliance with this Chapter subject to the following provisions:
A. Construction of Off-Site Below Market Rate Dwelling Units.
If a developer of a residential development project of ten (10) or more dwelling units proposes the construction of off-site below market rate dwelling units in the Below Market Rate Housing Plan required under Section 17.90.070, the City Council may, in its discretion, approve such a proposal if it finds the proposal meets all of the following conditions:
a. The proposed off-site location is within the City of Foster City, is currently owned by the developer or is under contract for purchase by the developer, is not located in a flood hazard zone and does not contain environmentally sensitive habitat, is not contaminated with or otherwise impaired by the presence of hazardous materials or hazardous substances in the soil, soil vapor or groundwater in, on, or under the off- site location or emanating from lands in proximity thereto, as reflected in a Phase I Environmental Site Assessment, and if necessary, a Phase II Environmental Site Assessment, and development and construction of a residential development project on the proposed off-site location is consistent with the City’s adopted General Plan, Housing Element, and Zoning; and
b. The proposed off-site location is suitable for and development of a residential development project thereon is economically and financially feasible as determined by the City, in its sole discretion, pursuant to a feasibility analysis of a proposed residential development project on the proposed off-site location prepared by the City, at the expense of the developer, and approved by the City Council; and
c. The proposed off-site location is adequately served by all required utilities and transportation infrastructure, all of which are appropriately sized to accommodate the proposed off-site below market rate units, the off-site residential development project, and all reasonable foreseeable probable future development within the area served by said utilities and transportation infrastructure; and
d. The proposed off-site below market rate units are in addition to any below market rate dwelling units otherwise required for the off-site residential development project; and
43 e. The construction of the proposed off-site below market rate dwelling units within the off-site residential development project has not commenced before the approval of the on-site residential development project, the off- site below market rate dwelling units will be available for occupancy prior to or concurrently with the market rate units within the on-site residential development project, and the inclusion of the below market rate dwelling units within the off-site residential development project will not, when combined with the below market rate inclusionary requirement of the off- site residential development project, significantly contribute to residential segregation by income level within the City; and
f. The proposed off-site below market rate dwelling units would be provided in at least the same quantity and affordability levels as would be required for on-site units. The foregoing notwithstanding, any proposal to provide rental off-site below market rate dwelling units to satisfy an inclusionary requirement for an ownership project, shall comply with Sections
17.90.040.A.1 and 17.90.060.C.2 of this Chapter; and
g. The proposed off-site below market rate dwelling units comply with all other requirements of this Chapter; and
h. All necessary agreements required to secure the construction of the off- site below market rate dwelling units will be made a part of the affordable housing agreement required for the on-site residential development project; and
i. Financing or a viable financing plan, which may include public funding sources, is in place for the acquisition of land, development and construction of the proposed off-site below market rate dwelling units; and
j. The purposes of this Chapter would be better served by implementation of the proposed alternative and that the proposed alternative meets the greatest community needs at that time.
B.Conversion of Off-Site Dwelling Units or Non-Residential Buildings to Off- Site Below Market Rate Dwelling Units.
If a developer of a residential development project of ten (10) or more dwelling units proposes the conversion of off-site dwelling units or non-residential buildings to off-site below market rate dwelling units in the Below Market Rate Housing Plan required under Section 17.90.070, the City Council may, in its discretion, approve such a proposal if it finds the proposal meets all of the following conditions:
a. All of the conditions as set forth in Section 17.90.080.A above; and b. The construction of the proposed off-site below market rate dwelling units shall be in addition to any replacement units otherwise required by State law, including but not limited to Government Code Sections 66300 (d) and 65915 (c)(3).
44 C.On-Site Clustering of Below Market Rate Dwelling Units.
If a developer of a residential development project of ten (10) or more dwelling units proposes the clustering of on-site below market rate dwelling units in the Below Market Rate Housing Plan required under Section 17.90.070 as an alternative to the provisions of Section 17.90.060.A.3 requiring the reasonable dispersal of such units within the residential development project, the City Council may, in its discretion, approve such a proposal if it finds the proposal meets all of the following conditions:
a. The clustering of on-site below market rate dwelling units is necessary to access and secure sources of financing needed for the residential development project; and
b. Construction of the clustered below market rate dwelling units will occur prior to or concurrently with the construction of the market units in the residential development project; and
c. The clustering of on-site below market rate dwelling units will not, when considered singularly or in connection with other residential development projects in the vicinity of the project, significantly contribute to residential segregation by income level within the City; and
d. The purposes of this Chapter would be better served by implementation of the proposed alternative and that the proposed alternative meets the greatest community needs at that time.
D. Alternative to On-Site Construction of Below Market Rate Dwelling Units – Donation of Land.
If a developer of a residential development project of ten (10) or more dwelling units proposes the donation of land to the City for the construction of below market rate dwelling units in the Below Market Rate Housing Plan required under Section 17.90.070, the City Council may, in its discretion, approve such a proposal if it finds the proposal meets all of the following conditions:
a. The land proposed to be donated to the City is located within the City of Foster City, is currently owned by the developer or is under contract for purchase by the developer, is not located in a flood hazard zone and does not contain environmentally sensitive habitat, and development and construction of a residential development project on the site is consistent with the City’s adopted General Plan, Housing Element, and Zoning; and b. The land proposed to be donated is suitable for and development of a residential development project thereon is economically and financially feasible as determined by the City, in its sole discretion, pursuant to a feasibility analysis of a proposed residential development project on the 45 land proposed to be donated prepared by the City, at the expense of the developer, and approved by the City Council; and
c. The land proposed to be donated to the City is adequately served by all required utilities and transportation infrastructure, all of which are appropriately sized to accommodate a residential development project on the site and all reasonable foreseeable probable future development within the area served by said utilities and transportation infrastructure; and d. The fair market value of the land proposed to be donated equals or exceeds the value of the on-site below market rate dwelling units otherwise required to be provided as part of the residential development project, as shown in an appraisal of the land to be donated and a financial analysis of the proposed residential development project prepared by the City, at the expense of the developer, and approved by the City Council; and e. The land proposed to be donated to the City shall not be contaminated with or otherwise impaired by the presence of hazardous materials or hazardous substances in the soil, soil vapor or groundwater in, on, or under the land to be donated or emanating from lands in proximity thereto, as determined by and to satisfaction of the City, in its sole discretion, pursuant to a Phase I Environmental Site Assessment, and if necessary, a Phase II Environmental Site Assessment, conducted under the direction of the City and at the expense of developer; and
f. The purposes of this Chapter would be better served by implementation of the proposed alternative and that the proposed alternative meets the greatest community needs at that time.
17.90.090 Waiver of Requirements.
A. Timing of Request. A developer of a residential development project may apply for a reduction, adjustment, or waiver of the requirements of this Chapter as part of an application for the approval of a planning permit or building permit, whichever permit is required first.
B. Application Requirements. The developer must show that applying the requirements of this Chapter, without the requested reduction, adjustment or waiver, would result in an unconstitutional taking of property or would result in any other unconstitutional result. The developer shall set forth in detail the factual and legal basis for the claim, including all supporting technical documentation, and shall bear the burden of presenting the requisite evidence to demonstrate the alleged unconstitutional result.
C. City Assumptions. The City may assume each of the following when applicable:
1. The developer will benefit from the incentives set forth in State Density Bonus law and the zoning ordinance; and
2. The developer is able to provide the most economical below market rate dwelling units feasible in terms of financing, construction, design, location and tenure. 46 D. Decision. The review authority, based upon legal advice provided by or at the behest of the City Attorney, may approve a reduction, adjustment, or waiver of the requirements of this Chapter if the review authority determines that applying the requirements of this Chapter would effectuate an unconstitutional taking of property or otherwise have an unconstitutional application to the property. The reduction, adjustment, or waiver may be approved only to the extent necessary to avoid an unconstitutional result after adoption of written findings, based on legal analysis and the evidence.
E. Changes to the Project. If a reduction, adjustment, or waiver is granted, any subsequent change in the residential development project shall invalidate the reduction, adjustment, or waiver, and a new application shall be required for a reduction, adjustment, or waiver per this section.
17.90.100 Affordable Housing Fund.
A. Establishment of the Affordable Housing Fund. The City of Foster City has established an Affordable Housing Fund as set forth in Section 17.88.060 of the Foster City Municipal Code. The City reaffirms that the Affordable Housing Fund is created for the purpose of receiving and dispersing certain monies to address the housing needs of extremely low, very low, low and moderate income households.
Separate accounts within the Affordable Housing Fund may be created from time to time to avoid commingling of monies, if required by law or as deemed appropriate for the administration of the Affordable Housing Fund.
B.Deposits.All Below Market Rate Housing In-Lieu Fees or other funds collected under this Chapter, shall be deposited into the Affordable Housing Fund.
C. Use of Funds. In addition to the purposes set forth in Section 17.88.060 of the Foster City Municipal Code, the monies in the Affordable Housing Fund, including all interest and earnings from investment of the monies therein, shall be expended exclusively to provide, or assure the continued provision of, below market rate dwelling units to extremely low income, very low income, lower income, and moderate income households in the City, through property acquisition, construction, development assistance, rehabilitation, conversion, financing, rental assistance or other subsidies or methods, consistent with the goals and policies contained in the City's Housing Element and the purposes for which the fees were collected, and for administration and compliance monitoring of the below market rate dwelling units established pursuant to this Chapter.
D. Guidelines. The City Council may, from time to time, adopt guidelines for expenditure of monies in the Affordable Housing Fund.
17.90.110 Enforcement.
A.Nuisance.Any violation of the provisions of this Chapter, or the terms or conditions of a planning permit or building permit issued for a residential development project, or the terms of a Below Market Rate Housing Plan or Below Market Rate 47 Housing Agreement approved in accordance with this Chapter, shall constitute a public nuisance.
B. Provision of Below Market Rate Dwelling Units; Payment Obligation. Provision of below market rate dwelling units and/or payment of the Below Market Rate Housing In-Lieu Fee in accordance with the requirements of this Chapter is the obligation of the developer of a residential development project. The City may institute any appropriate legal actions or proceedings necessary to ensure compliance herewith, including, but not limited to, actions to revoke, deny, modify or suspend any planning permit or building permit approved by the City.
C. City Attorney Enforcement. The City Attorney shall be authorized to enforce the provisions of this Chapter and all Below Market Rate Housing Agreements, resale restrictions, performance deeds of trust, regulatory agreements, and all other covenants or restrictions placed on residential development projects or below market rate dwelling units, by civil action and any other proceeding or method permitted by law. The City shall be entitled to recover its costs, expenses and fees, including reasonable attorneys’ fees, incurred in connection with the enforcement of the provisions of this Chapter and all Below Market Rate Housing Agreements, resale restrictions, performance deeds of trust, regulatory agreements, and all other covenants or restrictions placed on residential development projects or below market rate dwelling units.
D.Developer Responsibility. Failure of any official or agency to enforce the requirements of this Chapter shall not excuse any developer or owner from the requirements of this Chapter. No planning permit, building permit, license, map, or other approval or entitlement for a residential development project or dwelling unit shall be issued, including without limitation a final inspection or certificate of occupancy, until all applicable requirements of this Chapter have been satisfied.
E. Remedies. The remedies provided for in this Section shall be cumulative and not exclusive and shall not preclude the City from any other remedy or relief to which it otherwise would be entitled under law or equity.
Section 4. Effective Date. This ordinance shall take effect thirty (30) days following its final passage.
Section 5. Posting. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall have it posted in three (3) public places designated by the City Council.
Section 6. Severability. If any section, subsection, sentence, clause, or phrase of this chapter is held to be invalid or unconstitutional including by any court with jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council declares that it would have passed this article, and each section, subsection, clause, or phrase thereof, irrespective of the fact that any one or more other sections, subsections, clauses, or phrases may be declared invalid or unconstitutional. 48 This ordinance was introduced and read on the 7th day of March, 2022, and passed and adopted on the 21st day of March, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RICHA AWASTHI, MAYOR
ATTEST:
PRISCILLA SCHAUS, CITY CLERK
49 ORDINANCE NO. ___
AN ORDINANCE OF THE CITY OF FOSTER CITY ADDING A NEW CHAPTER 17.90, BELOW MARKET RATE INCLUSIONARY HOUSING PROGRAM, TO TITLE 17,
ZONING, OF THE FOSTER CITY MUNICIPAL CODE RELATING TO INCLUSIONARY
HOUSING
CITY OF FOSTER CITY
WHEREAS, there is a shortage of affordable housing in the City of Foster City (“City”) as documented in the 2015-2023 General Plan Housing Element; and
WHEREAS, California Government Code Section 65580(d) states that all cities have a responsibility to use the powers vested in them to facilitate the improvement and development of housing and to make adequate provision for the housing needs of all economic segments of the community; and
WHEREAS, consistent with State law, Housing Element Goal H-E is to “Address Affordable Housing Needs: Meet the City's "fair share" of very low, low, and moderate income housing need and the needs of special groups, including the elderly, handicapped, small and large families, extremely low income households and persons, single parents and local workers”; and
WHEREAS, in order to implement Housing Element Goal H-E, Housing Element Policy H-E-2a provides that 20% of all units, excluding bonus units, in residential projects be affordable; and
WHEREAS, the City wishes to implement Housing Element Policy H-E-2a with clear and objective standards to be set forth in an ordinance adding a new Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17 of the Foster City Municipal Code; and
WHEREAS, adopting clear and objective standards for the provision of inclusionary housing within residential development projects will encourage the development and availability of housing opportunities to a broad range of households with varying income levels within the City, as mandated by State Law, and is essential for the public welfare; and
WHEREAS, requiring inclusionary housing will increase the supply of below market rate housing to meet the City’s regional share of very low-, low- and moderate- 50 income housing needs and the needs of special groups, including the elderly, disabled, small and large families, and local workers; and
WHEREAS, provision of housing at a variety of income levels will reduce Vehicle Miles Traveled (VMT) and Greenhouse Gas (GHG) emissions by providing people at all income levels more opportunities to live near where they work; and
WHEREAS, provision of housing at a variety of income levels will support the local economy by making it easier for employers to attract and retain workers by providing people at all income levels more opportunities to live near where they work; and
WHEREAS, provision of housing at a variety of income levels will affirmatively further the policies and purposes of the Fair Housing Act, also known as “Affirmatively Further Fair Housing” by reducing segregation and concentration of poverty; and
WHEREAS, the City has received and considered the analysis prepared by Economic and Planning Systems, Inc. (EPS), including memorandum titled “Housing Fee Implementation Considerations” (January 24, 2022), “Rental Inclusionary Housing In-Lieu Fee” (January 20, 2022), and “Ownership Inclusionary Housing In-Lieu Fee” (January 11, 2022) (collectively, the “EPS Studies”); and
WHEREAS, the new Chapter 17.90, Below Market Rate Inclusionary Housing Program, authorizes the City Council to adopt a Below Market Rate Housing In-lieu Fee, which a project developer may, in certain prescribed instances, pay as an alternative to the development and construction of below market rate dwelling units; and WHEREAS, the payment of any Below Market Rate Housing In-lieu Fees will be deposited in the City’s Affordable Housing Fund, to be used to finance the development of new affordable housing or the rehabilitation of existing affordable housing, to provide affordable housing programs in the City, to leverage flexible local funds for larger State and Federal grants, and to administer the City’s Affordable Housing Program; and WHEREAS, the Planning Commission considered the proposed ordinance adding a new Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17 of the Foster City Municipal Code at a noticed public hearing on February 3, 2022 and adopted Resolution P-01-22 recommending City Council approval; and WHEREAS, the City provided notice of the public hearing (“Notice”) and held a public hearing on March 7, 2022, regarding the proposed ordinance adding a new 51 Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17 of the Foster City Municipal Code, pursuant to Government Code Section 65856; and WHEREAS, as required by Government Code Sections 65856 and 65090, the Notice contained the information required by Government Code Section 65094, and was published in compliance with Government Code Section 6061 on February 16, 2022 and February 23, 2022 in the Foster City Islander, a newspaper of general circulation with the City of Foster City; and
WHEREAS, the City Council of the City of Foster City carefully reviewed and considered the staff report and all attachments thereto presented as part of the agenda for the public hearing regarding the proposed ordinance adding a new Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17 of the Foster City Municipal Code, including the EPS Studies and this Ordinance, any and all timely submitted correspondence, all information submitted at or prior to the public hearing, and all public comment and testimony presented at the public hearing (collectively, the “Record”); now, therefore, be it resolved that
THE CITY COUNCIL OF THE CITY OF FOSTER CITY DOES ORDAIN AS FOLLOWS:
Section 1. The foregoing Recitals are true and correct and are incorporated herein by this reference.
Section 2. The City Council does hereby find and determine based upon the aforementioned Record as follows:
(a) The Public Hearing was properly noticed and conducted in accordance with State law and the Foster City Municipal Code; and
(b) The adoption of the proposed ordinance adding a new Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17 of the Foster City Municipal Code, is exempt from review under the California Environmental Quality Act (CEQA) as it is not considered a ‘project’ under Public Resources Code Section 21065 and CEQA Guidelines Section 15378 because the ordinance will not result in a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. In addition, even if the adoption of the ordinance was considered a “project” under CEQA, pursuant to CEQA Guidelines Section 15061(b)(3), the proposed ordinance is covered by the common sense exemption providing that CEQA only applies to projects which have the potential for causing a significant effect on the environment and where, as is the case with the adoption of this proposed ordinance, it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA; and
(c) The provision of safe and stable housing for households at all income levels is essential for the public welfare of the City. Housing in Foster City, both rental and 52 for-sale housing, has become steadily more expensive and housing costs have gone up faster than incomes. Federal and state government programs do not provide enough affordable housing to satisfy the needs of very low, low, or moderate income households. As a result, there is a severe shortage of adequate, affordable housing for very low, lower, and moderate income households, as evidenced by the findings in the City’s 2015 – 2023 Housing Element: and (d) As provided in the Housing Element of the General Plan, Housing Element Goal H-ED, Housing Element Program H-E-2 “Private Development of Affordable Housing – Inclusionary Requirement”H-D-2-b “Affordable Housing Overlay Combining District”, the City wishes to require encourage the production of additional housing units, including affordable units in connection with the approval of residential development projects, through redevelopment of areas already developed with housing by private interests; and
(e) Based on the findings above, the City desires to further the public health, safety and welfare by providing an incentive for areas already developed with housing to redevelop those areas with additional housing units, including affordable units, through the creation of an overlay combing district for certain areas of the City; and (f)(e) The proposed ordinance adding a new Chapter 17.90, Below Market Rate Inclusionary Housing Program, to Title 17 of the Foster City Municipal Code, is consistent with the General Plan.
Section 3. Chapter 17.90, Below Market Rate Inclusionary Housing Program, is hereby added to Title 17, Zoning, of the Foster City Municipal Code to read as follows:
Chapter 17.90
BELOW MARKET RATE INCLUSIONARY HOUSING PROGRAM
Sections:
17.90.010 Purpose.
17.90.020 Definitions.
17.90.030 Applicability.
17.90.040 Requirements for Inclusion of Below Market Rate Dwelling Units.
17.90.050 Payment of a Below Market Rate Housing In-Lieu Fee.
17.90.060 Standards for Below Market Rate Dwelling Units.
17.90.070 Below Market Rate Housing Plan and Below Market Rate Housing Agreement.
17.90.080 Alternatives.
17.90.090 Waiver of Requirements.
53 17.90.100 Affordable Housing Fund.
17.90.110 Enforcement.
17.90.010 Purpose.
The purpose of this Chapter, to be known as the Below Market Rate Inclusionary Housing Program, is to:
A. Enhance the public welfare by establishing policies and encouraging the development and availability of housing opportunities to a broad range of households with varying income levels within the City as mandated by State Law, California Government Code Section 65580 and following; and B. Promote the City’s goals as stated in the Housing Element of the General Plan to increase the supply of below market rate housing to meet the City’s regional share of very low-, low- and moderate-income housing needs and the needs of special groups, including the elderly, disabled, small and large families, and local workers by imposing an inclusionary requirement for residential development projects; and
C. Reduce Vehicle Miles Traveled (VMT) and Greenhouse Gas (GHG) emissions by providing people at all income levels more opportunities to live near where they work; and
D. Support the local economy by making it easier for employers to attract and retain workers by providing people at all income levels more opportunities to live near where they work; and
E. Affirmatively further the policies and purposes of the Fair Housing Act, also known as “Affirmatively Further Fair Housing” by reducing segregation and concentration of poverty; and
F. Implement the City’s adopted inclusionary policy contained in the Housing Element of the General Plan by creating standards and a mechanism to provide below market rate dwelling units as part of new residential development projects; and
G. Provide for the establishment and imposition of a Below Market Rate Housing In- Lieu Fee on residential development projects as an alternative means of mitigating the impact of residential development projects on the need for below market rate dwelling units in the City, as opposed to the development and construction of below market rate dwelling units as part of residential development projects, in certain circumstances.
17.90.020 Definitions.
A. "Below Market Rate Housing Fund" means a separate or segregated fund or account designated by the City to maintain and account for all monies received pursuant to this Chapter.
54 B. "Below market rate ownership cost" means the sale price for a below market rate dwelling unit, available as a for-sale unit, resulting in a projected average monthly housing expense during the first calendar year of an eligible household's occupancy, including mortgage principal and interest, mortgage insurance, property taxes, homeowners insurance, homeowners' association dues, if any, and a reasonable allowance for utilities, not exceeding the sales prices specified by Section 50052.5 of the California Health and Safety Code and California Code of Regulations Title 25, Sections 6910-6924.
C. "Below market rate rent" means the total monthly housing expenses for a below market rate dwelling unit, available as a rental unit, not exceeding the rents specified by Section 50053 of the California Health and Safety Code and California Code of Regulations Title 25, Sections 6910-6924, except that the City may permit alternative criteria, when necessary, to be consistent with pertinent state and federal statutes and regulations governing publicly assisted rental housing. As used in this Chapter, "below market rate rent" shall include the total of monthly payments by the tenant for all of the following:
1. Use and occupancy of the below market rate dwelling unit and land and all facilities associated with the below market rate dwelling unit, including but not limited to parking (whether unbundled or not), bicycle storage, storage lockers, and use of all common areas;
2. Any additional separately charged fees or service charges assessed by the owner, other than security deposits;
3. An allowance for utilities paid by the tenant as established by the San Mateo County Housing Authority which may be updated from time to time, including garbage collection, sewer, water, electricity, gas, and other heating, cooking, and refrigeration fuel, but not telephone service, cable TV or WiFi/internet; and
4. Any other interest, taxes, fees or charges for use of the land or below market rate dwelling unit or associated facilities and assessed by a public or private entity other than the owner, and paid by the tenant.
D. "Below market rate dwelling unit" means a dwelling unit in a residential development project that is restricted for sale or rental to and occupancy by an eligible household at a below market rate ownership cost or below market rate rent, as applicable, and as required by this Chapter.
E. “Below Market Rate Housing Administrative Guidelines” means guidelines adopted by the Community Development Director from time to time for determining household income, below market rate ownership cost, below market rate rent, eligible households, monitoring, reporting, scope of Below Market Rate Housing Plan, terms of Below Market Rate Housing Agreement, and any other relevant rules, regulations or provisions necessary for the administration of this Chapter.
F. “Below Market Rate Housing Agreement” means an agreement that shall specify the number, type, location, size, and phasing of all below market rate dwelling units required in a residential development project, provisions for income certification and screening of potential purchasers or renters of below market rate dwelling 55 units, and resale control mechanisms, including the financing of ongoing administrative and monitoring costs, consistent with the approved Below Market Rate Housing Plan, as determined by the Community Development Director.
G. “Below Market Rate Housing In-Lieu Fee” means the fee imposed on each dwelling unit of a residential development project, established by resolution of the City Council and updated from time to time, not to exceed the cost of mitigating the impact of residential development projects on the need for below market rate dwelling units in the City.
H. “Below Market Rate Housing Plan” means a plan prepared by the developer of a residential development project that describes how the proposed dwelling units conform to the requirements of this Chapter, and City and State Density Bonus law requirements, as applicable, and shall include, at a minimum, procedures and requirements for determining eligible households for rental of rental units or purchasers of for-sale units, occupancy requirements, initial and ongoing marketing policies, application process, waitlist management, income verification requirements, annual recertification, if applicable, rejection of ineligible applicants and eligibility termination, and such other provisions as the Community Development Director may prescribe from time to time pursuant to Below Market Rate Housing Administrative Guidelines.
I. "Building permit" includes full structural building permits as well as partial permits such as foundation-only permits and demolition permits.
J. “Density bonus” means entitlement to build additional residential units above the maximum number of units permitted pursuant to the existing General Plan, applicable specific plan and/or zoning designation, and as further specified in Chapter 17.86 of this Title and California Government Code Section 65915 (“State Density Bonus Law”).
K. "Developer" means the person(s) or legal entity(ies), including the property owner, seeking a planning permit or building permit for a residential development project.
L. “Dwelling unit” means a dwelling designed for occupancy by one (1) household; the foregoing notwithstanding, Dwelling Unit shall not include an Accessory Dwelling Unit as defined in Section 17.78.040, Chapter 17.78 of this Title.
M. “Eligible household” means those households whose maximum income does not exceed levels published annually for extremely low income households, very low income households, low income households, and moderate income households, adjusted for household size and appropriate for the below market rate dwelling unit.
N. "Extremely low income households" means households with incomes no greater than the maximum income for extremely low income households, as published annually by the California Department of Housing and Community Development (HCD) as the Official State Income Limits pursuant to Health and Safety Code Section 50093 for San Mateo County, adjusted for household size, except that the City may permit alternative criteria, when necessary, to be consistent with pertinent state and federal statutes and regulations governing publicly assisted housing. 56 O. "For-sale unit" means a dwelling unit that may be sold individually in conformance with the Subdivision Map Act. For-sale units also include dwelling units that are converted from rental units to for-sale units.
P. "Low income households" means households with incomes no greater than the maximum income for low income households, as published annually by the California Department of Housing and Community Development (HCD) as the Official State Income Limits pursuant to Health and Safety Code Section 50093 for San Mateo County, adjusted for household size, except that the City may permit alternative criteria, when necessary, to be consistent with pertinent state and federal statutes and regulations governing publicly assisted housing.
Q. "Market rate unit" means a dwelling unit in a residential development project that is not a below market rate dwelling unit.
R. "Moderate income households" means households with incomes no greater than the maximum income for moderate income households, as published annually by the California Department of Housing and Community Development (HCD) as the Official State Income Limits pursuant to Health and Safety Code Section 50093 for San Mateo County, adjusted for household size, except that the City may permit alternative criteria, when necessary, to be consistent with pertinent state and federal statutes and regulations governing publicly assisted housing.
S. "One (1) location" includes all adjacent parcels of land under common ownership or control, the property lines of which are contiguous at any point, or the property lines of which are separated only by a public or private street, road, or other public or private right-of-way, or separated only by the lands owned or controlled by the developer.
T. "Planning permit" means any discretionary approval of a residential development project, including, without limitation, a general or specific plan adoption or amendment, rezoning, tentative map, parcel map, conditional use permit, variances, or architectural review.
U. "Rental unit" means a dwelling unit that is intended to be offered for rent or lease and that cannot be sold individually in conformance with the Subdivision Map Act.
V. "Residential development project" means an application for a planning permit or building permit at one (1) location to create one (1) or more dwelling units, redevelop an existing residential development project to remove and replace dwelling units and/or create one (1) or more additional dwelling units, convert nonresidential uses to dwelling units, subdivide a parcel to create one (1) or more separately transferable parcels intended for development of dwelling units, or implement a condominium conversion, including development of dwelling units constructed at one (1) location and in phases.
W. "Review authority" means the City staff person or body authorized to approve or deny an application for a planning permit or building permit for a residential development project.
X. "Very low income households" means households with incomes no greater than the maximum income for very low income households, as published annually by 57 the California Department of Housing and Community Development (HCD) as the Official State Income Limits pursuant to Health and Safety Code Section 50093 for San Mateo County, adjusted for household size, except that the City may permit alternative criteria, when necessary, to be consistent with pertinent state and federal statutes and regulations governing publicly assisted housing.
17.90.030 Applicability.
The requirements of this Chapter shall apply to any residential development project as set forth below.
A. Residential Development Projects: Five (5) to Nine (9) Dwelling Units.
Residential development projects containing five (5) to nine (9) dwelling units are hereby required, as a condition of issuance of a planning permit or building permit, to either (i) pay a Below Market Rate Housing In-Lieu Fee for each dwelling unit upon issuance of a building permit, or (ii) construct below market rate units on the location of the residential development project per Section 17.90.040 (Requirements for Inclusion of Below Market Rate Dwelling Units), make said below market rate dwelling units available for sale or rental to and occupancy by eligible households at the applicable household income level and at below market rate ownership cost or below market rate rent, as applicable, and secure said obligation pursuant to a Below Market Rate Housing Agreement as set forth in Section 17.90.070.E (Below Market Rate Housing Agreement).
B. Residential Development Projects: Ten (10) Dwelling Units or More.
Residential development projects of ten (10) dwelling units or more are hereby required, as a condition of issuance of a planning permit or building permit, to construct below market rate units on the location of the residential development project per Section 17.90.040 (Requirements for Inclusion of Below Market Rate Dwelling Units), make said below market rate dwelling units available for sale or rental to and occupancy by eligible households at the applicable household income level and at below market rate ownership cost or below market rate rent, as applicable, and secure said obligation pursuant to a Below Market Rate Housing Agreement as set forth in Section 17.90.070.E (Below Market Rate Housing Agreement).
C. Exemptions. The provisions of this Chapter shall not apply to developers of residential development projects which fall within one (1) or more of the following categories:
1. Residential development projects containing four (4) or fewer dwelling units;
2. Residential development projects located on property owned by the State of California, the United States of America, or any of its agencies and used exclusively for governmental or educational purposes;
3. Residential development projects involving the repair or replacement of a building that was damaged or destroyed by fire or other calamity, so long as (i) the square footage and use of the building remains the same, (ii) construction of the replacement building is conducted in accordance with California Government Code Section 65852.25, which section requires a building permit to be secured 58 within two (2) years of the occurrence of any such event, and (iii) in accordance with California Health and Safety Code Section 18938.6, construction begins within one (1) year from the issuance of a building permit, subject to the issuance of one or more extensions, not to exceed 180 days, upon a showing of justifiable cause by the applicant to the satisfaction of the building official;
4. Accessory dwelling units (ADUs) or Junior accessory dwelling units (JADUs) as defined in Chapter 17.78 of the Foster City Municipal Code;
5. Residential development projects which are developed in accordance with the terms of a development agreement adopted by ordinance pursuant to the authority and provisions of California Government Code Section 65864 et seq., and that is executed prior to the effective date of the ordinance codified in this Chapter, provided that such residential development projects shall comply with any below market rate inclusionary housing requirements included in the development agreement or any predecessor ordinance in effect on the date the development agreement was executed;
6. Residential development projects exempted by California Government Code Section 66474.2 or 66498.1 or successor provision, provided that such residential development projects shall comply with any predecessor ordinance, resolution, or policy governing below market rate inclusionary housing in effect on the date the application for the development was deemed complete;
7. Residential development projects exempted by California Government Code Section 65589.5 (o) or successor provision, provided that such residential development projects shall comply with any predecessor ordinance, resolution, or policy governing below market rate inclusionary housing in effect on the date that a preliminary application for the development containing all of the information required by California Government Code Section 65941.1 was submitted to the City; or
8. Residential development projects for which all applications for City of Foster City discretionary development entitlements required to develop the project have been deemed complete prior to the effective date of the ordinance codified in this Chapter, provided that such residential development projects shall comply with any predecessor ordinance, resolution, or policy governing below market rate inclusionary housing in effect on the date the application for the development was deemed complete.
17.90.040 Requirements for Inclusion of Below Market Rate Dwelling Units.
A. Number of Below Market Rate Dwelling Units and Level of Affordability.
Residential development projects of ten (10) dwelling units or more shall construct, or cause to be constructed, the number of below market rate dwelling units as specified below. For the purposes of this section, "total dwelling units" does not include (i) dwelling units awarded above the otherwise-allowable maximum density as part of a density bonus in Chapter 17.86 (Density Bonuses), as provided by California Government Code Section 65915 (b)(3), or (ii) in a residential development 59 project that will require the demolition of dwelling units, the number of dwelling units demolished, provided the residential development project will create at least as many dwelling units as will be demolished and otherwise complies with the requirements of California Government Code Section 66300 (d), as applicable to the demolished units.
1. Rental Projects. Five percent (5%) of the proposed total dwelling units in a rental residential development project shall be below market rate dwelling units occupied by or available for occupancy by moderate income households at or below market rate rents; five percent (5%) of the proposed total dwelling units shall be below market rate dwelling units occupied by or available for occupancy by low income households at or below market rate rents; and ten percent (10%) of the proposed total dwelling units shall be below market rate dwelling units occupied by or available for occupancy by very low income households at or below market rate rents. Alternative percentages and levels of affordability may be considered as part of the Below Market Rate Housing Plan and Below Market Rate Housing Agreement (Section 17.90.070) and the reviewing authority may approve or conditionally approve such an alternative if it determines, based on substantial evidence, that such alternative percentages and levels of affordability will provide as many or more below market rate units at the same or lower income levels or will otherwise provide greater public benefit than the standard requirement.
2. Ownership Projects. Twenty percent (20%) of the proposed total dwelling units in a for-sale residential development project shall be below market rate dwelling units sold to and occupied by or available for sale to and occupancy by moderate income households at or below market rate ownership cost.
3. Fractional Units. In calculating the number of below market rate dwelling units required pursuant to Sections 17.90.040.A.1 and 17.90.040.A.2 above, any fraction of less than 0.50 shall be satisfied by payment of an amount equal to the Below Market Rate Housing In-Lieu Fee, as adopted by the City Council applicable to rental or ownership residential developments, times the applicable fraction, and any fraction of 0.50 or more shall be satisfied by developing one (1) below market rate dwelling unit available for sale or rental to and occupancy by eligible households at the applicable household income level and at below market rate ownership cost or below market rate rent, as applicable.
B. Density Bonus. Below market rate dwelling units that satisfy the requirements of this Chapter may be counted toward the number of below market rate dwelling units required for a density bonus under California Government Code Sections 65915- 65918. To be eligible, the below market rate dwelling units shall meet all of the applicable requirements in California Government Code Section 65915. These requirements, including application submittal requirements and replacement housing obligations, are set forth in Chapter 17.86 (Density Bonuses).
17.90.050 Payment of Below Market Rate Housing In-Lieu Fee. 60 A. Amount. The amount of the Below Market Rate Housing In-Lieu Fee applicable to rental residential development projects and ownership residential development projects shall be established from time to time by resolution of the City Council. The Below Market Rate Housing In-Lieu Fee established for rental residential development projects and ownership residential development projects shall not exceed the cost of mitigating the impact of rental or ownership residential development projects on the need for below market rate dwelling units in the City.
B. Timing of Payment. Payment of the Below Market Rate Housing In-Lieu Fee shall be due prior to the issuance of the first building permit for the residential development project. The Below Market Rate Housing In-Lieu Fee shall be calculated based on the type of residential development project (i.e. either rental or ownership), and the applicable fee schedule in effect at the time the building permit is issued for a rental residential development project or ownership residential development project.
17.90.060 Standards for Below Market Rate Dwelling Units.
A. Quality of Construction and Number of Bedrooms. All below market rate dwelling units required by this Chapter shall be equal to the overall quality of construction to market-rate units in the same residential development project as follows:
1. The exterior appearance of the below market rate dwelling units shall be the same as that of market-rate units.
2. Interior finishes and amenities of the below market rate dwelling units shall not differ from those provided in the base model market rate units.
3. The number of bedrooms in the below market rate dwelling units shall be equal to the average number of bedrooms in the market-rate units, including square footage by unit size, and the below market rate dwelling units shall be dispersed within the residential development project, with the location of below market rate dwelling units comparable to those of the market-rate units, subject to review and approval by the Community Development Director.
4. The below market rate dwelling units shall have access to the same amenities as the market rate units and shall be included within the below market rate ownership cost or below market rate rent for the below market rate dwelling unit.
For example, residents of the below market rate dwelling units shall not be excluded from common open space, parking, storage, and other community facilities or amenities in the residential development project, nor shall households residing in below market rate dwelling units be charged more than an below market rate rent or an below market rate ownership cost as defined in Section
17.90.020 (Definitions) for the use of such facilities and amenities.
B. Availability for Occupancy. Below market rate dwelling units required by this Chapter shall be made available for occupancy concurrently with the market-rate units. For the purposes of this subsection, "concurrently" means that the City may not issue building permits for more than fifty (50) percent of the market-rate units until it has issued building permits for all of the below market rate dwelling units, and the City may not approve any final inspections or certificates of occupancy for more than 61 fifty (50) percent of the market-rate units until it has issued final inspections or certificates of occupancy for all of the below market rate dwelling units.
C. Duration of Affordability.
1. Ownership. Below market rate dwelling units available as a for-sale unit produced as required by this Chapter shall, pursuant to the terms of a Below Market Rate Housing Agreement, be legally restricted for sale to and occupancy by eligible households within the income levels for which the below market rate dwelling units were designated and at a below market rate ownership cost for a period of at least forty-five (45) years from the date of recordation of each grant deed. Resale of the below market rate dwelling unit during the forty-five (45) year term shall be restricted to eligible households at a below market rate ownership cost as defined herein and set forth in the Below Market Rate Housing Agreement recorded against the below market rate dwelling unit and the forty- five (45) year term shall start over with each resale. If a below market rate dwelling unit has not been sold or resold prior to the expiration of the forty-five (45) year term, then upon the expiration of the forty-five (45) year term, the restrictions set forth in the Below Market Rate Housing Agreement shall terminate, expire and be of no further force or effect and the dwelling unit may then be sold at market rate. The Below Market Rate Housing Agreement shall be recorded against the property of the applicable residential development project and below market rate dwelling unit(s) in accordance with the provisions of and consistent with the form specified in Section 17.90.070.E.
2. Rental. Below market rate dwelling units available as a rental unit produced as required by this Chapter or pursuant to the provisions of California Government Code Section 66300 (d) shall, pursuant to the terms of a Below Market Rate Housing Agreement, be legally restricted to occupancy by eligible households within the income levels for which the below market rate dwelling units were designated and at an below market rate rent for a period of at least ninety-nine (99) years from the date a certificate of occupancy is issued by City for the entire residential development project. The foregoing notwithstanding, the Community Development Director, or his or her designee, may, in the exercise of her or his discretion, accept a shorter period of affordability of no less than fifty-five (55) years, if the applicable residential development project provides substantial evidence that a shorter-term restriction is necessary and required in order to obtain financing for the applicable residential development project. The Below Market Rate Housing Agreement shall be recorded against the property of the applicable residential development project in accordance with the provisions of and consistent with the form specified in Section 17.90.070.E.
D. Eligibility. No eligible household may occupy a below market rate dwelling unit available as a rental unit or acquire a below market rate dwelling unit available as a for-sale unit until the Community Development Director, or his or her designee, has approved a Below Market Rate Housing Plan prepared by the developer, which plan 62 shall include eligibility requirements specific to the residential development project, and an Below Market Rate Housing Agreement has been recorded against the residential development project in accordance with Section 17.90.070.E.
E. Principal Residence. Any eligible household that occupies a below market rate dwelling unit must occupy that dwelling unit as its principal residence, unless otherwise approved in writing for rental to a third party for a limited period of time due to household hardship, as determined and approved by the City in advance and in accordance with Below Market Rate Housing Administrative Guidelines.
F. Below Market Rate Housing Administrative Guidelines. The Community Development Director, or his or her designee, may, from time to time, adopt and revise rules, regulations and guidelines for determining household income, below market rate housing cost, below market rate rent, determining eligible households of for-sale units and rental units, establishing monitoring and reporting requirements for residential development projects, and such other provisions and requirements as are relevant to the administration of this Chapter.
G. Housing Preferences. Subject to applicable state and federal fair housing laws, the City Council may, from time to time, adopt preferences for the sale or rental to and occupancy of below market rate dwelling units at the applicable below market rate ownership cost or below market rate rent, as applicable, to eligible households that live and/or work in the City or any other characteristics the City Council deems appropriate to further the purposes of this Chapter. The City Council may also, from time to time, adopt preferences applicable to specific residential development projects.
17.90.070 Below Market Rate Housing Plan and Below Market Rate Housing Agreement.
A. Required. A Below Market Rate Housing Plan is required for any residential development project that provides below market rate dwelling units, either on-site or off-site. The Below Market Rate Housing Plan shall describe how the proposed dwelling units conform to the requirements of this Chapter and City and State Density Bonus law requirements, as applicable. Further, the Below Market Rate Housing Plan shall include, at a minimum, procedures and requirements for determining eligible households for rental of rental units or purchasers of for-sale units, occupancy requirements, initial and ongoing marketing policies, application process, waitlist management, income verification requirements, annual recertification, if applicable, rejection of ineligible applicants and eligibility termination, funding by developer of ongoing administration and monitoring costs to be incurred by City following occupancy of below market rate dwelling units, and such other provisions as the Community Development Director, or his or her designee, may prescribe from time to time pursuant to Below Market Rate Housing Administrative Guidelines. Below Market Rate Housing Plans are not required for residential development projects that are not required to provide for the construction, sale and/or rental of on-site or off-site below market rate dwelling units, in compliance with the provisions of this Chapter. 63 B. Submittal and Review. The Below Market Rate Housing Plan must be submitted prior to the first planning permit application being deemed complete. The Below Market Rate Housing Plan shall be processed concurrently with all other planning permits required for the residential development project.
C. Approval of On-site Below Market Rate Dwelling Units. The review authority may approve or conditionally approve a Below Market Rate Housing Plan that proposes on-site below market rate dwelling units if it makes findings, based on substantial evidence, that:
1. The on-site below market rate dwelling units comply with the applicable standards in this Chapter, including, without limitation, the requirement that the below market rate dwelling units be made available for occupancy concurrently with the market-rate units.
2. The on-site below market rate dwelling units will mitigate the impact of the market rate units in the residential development project on the need for below market rate dwelling units in the City.
D. Amendments. The approved Below Market Rate Housing Plan may be amended prior to issuance of any building permit for the residential development project. A request for a minor modification of an approved Below Market Rate Housing Plan may be granted by the Community Development Director if the modification is substantially in compliance with the original Below Market Rate Housing Plan and conditions of approval. Other significant or substantial modifications to the Below Market Rate Housing Plan, as determined by the Community Development Director, shall be processed in the same manner as the original Below Market Rate Housing Plan.
E. Below Market Rate Housing Agreements. As a condition of approval of a residential development project, a Below Market Rate Housing Agreement acceptable to the Community Development Director, approved by the City Attorney and executed by the City Manager, shall be recorded against the residential development project prior to approval of any final or parcel map, or issuance of any building permit, whichever occurs first. The Below Market Rate Housing Agreement shall specify the number, type, location, size, and phasing of all below market rate dwelling units, provisions for income certification and screening of potential purchasers or renters of below market rate dwelling units, and resale control mechanisms, including funding by developer of ongoing administrative and monitoring costs incurred by City, consistent with the approved Below Market Rate Housing Plan. The Below Market Rate Housing Agreement shall provide for the indemnification and defense of the City, as approved by the City Attorney, against any and all claims brought by any and all persons, including eligible households, in connection with the administration and implementation by City of the Below Market Rate Housing Plan and Below Market Rate Housing Agreement. A Below Market Rate Housing Agreement applicable to below market rate dwelling units, available as for-sale units, shall require as a condition of the sale of a below market rate dwelling unit from developer to an eligible household, that the restrictions set forth in the Below Market Rate Housing Agreement and this Chapter be recorded against the below 64 market rate dwelling unit in the form of a resale restriction agreement, performance deed of trust, and/or regulatory agreement, as approved by the City Attorney and executed by the City Manager, to ensure the continued affordability of the below market rate dwelling units.
17.90.080 Alternatives.
To the extent permitted by law, the City’s objective is to obtain the actual development and construction of below market rate dwelling units within each residential development project, as opposed to the receipt of payment of Below Market Rate Housing In-Lieu Fees, construction of off-site below market rate dwelling units, or other such alternatives as set forth herein. Nevertheless, a developer may propose an alternative means of compliance with this Chapter subject to the following provisions:
A. Payment of Below Market Rate Housing In-Lieu Fee.
If a developer of a residential development project of ten (10) or more dwelling units proposes the payment of a Below Market Rate Housing In-Lieu Fee in place of construction of on-site below market rate dwelling units in the Below Market Rate Housing Plan required under Section 17.90.070, the City Council may, in its discretion, approve such a proposal if it finds the proposal meets all of the following conditions:
a. The Below Market Rate Housing In-Lieu Fee then in effect is adequate to cover the cost of providing at least an equivalent number of below market rate dwelling units at another location as would otherwise be required under this Chapter for the proposed residential development project based upon an affordability gap analysis prepared by the City, at the expense of the developer, and approved by the City Council; and
b. The location of the proposed residential development project does not have sufficient land area to provide the below market rate dwelling units without severely impacting the financial feasibility of the project; and c. There exists adequate alternative locations within the City of Foster City for the construction of residential development projects that are available for sale on the open market, said alternative locations are not located in a flood hazard zone and do not contain environmentally sensitive habitat, said alternative locations are not contaminated with or otherwise impaired by the presence of hazardous materials or hazardous substances in the soil, soil vapor or groundwater in, on, or under the land or emanating from lands in proximity thereto, as reflected in a Phase I Environmental Site Assessment, and if necessary, a Phase II Environmental Site Assessment, development and construction of a residential development project on the alternative locations is consistent with the City’s adopted General Plan, Housing Element, and Zoning, and there are funds in the Affordable Housing Fund which have not been allocated or appropriated for other allowable uses which, when combined with the Below Market Rate Housing In-Lieu Fee to be 65 paid by the applicable residential development project, is sufficient in amount and timing of availability of funds to permit the City to finance the acquisition of an alternative location(s); and
d. The alternative locations are suitable for and development of a residential development project thereon is economically and financially feasible as determined by the City, in its sole discretion, pursuant to a feasibility analysis of a proposed residential development project on the alternative locations prepared by the City, at the expense of the developer, and approved by the City Council; and
e. The City finds that the purposes of this Chapter would be better served by payment of the Below Market Rate Housing In-Lieu Fee and that the proposed Below Market Rate Housing In-Lieu Fee meets the greatest community needs at that time; and
f. The Below Market Rate Housing In-Lieu Fee applicable to the entire residential development project shall be paid by the developer and collected by the City upon the issuance of the first building permit for a dwelling unit in the residential development project. Any Below Market Rate Housing In-Lieu Fee collected by the City pursuant to this Section 17.90.080.A shall be deposited in the Affordable Housing Fund and used in accordance with Sections 17.88.060.B and
17.90.100.C of the Foster City Municipal Code.
B. Construction of Off-Site Below Market Rate Dwelling Units.
If a developer of a residential development project of ten (10) or more dwelling units proposes the construction of off-site below market rate dwelling units in the Below Market Rate Housing Plan required under Section 17.90.070, the City Council may, in its discretion, approve such a proposal if it finds the proposal meets all of the following conditions:
a. The proposed off-site location is within the City of Foster City, is currently owned by the developer or is under contract for purchase by the developer, is not located in a flood hazard zone and does not contain environmentally sensitive habitat, is not contaminated with or otherwise impaired by the presence of hazardous materials or hazardous substances in the soil, soil vapor or groundwater in, on, or under the off- site location or emanating from lands in proximity thereto, as reflected in a Phase I Environmental Site Assessment, and if necessary, a Phase II Environmental Site Assessment, and development and construction of a residential development project on the proposed off-site location is consistent with the City’s adopted General Plan, Housing Element, and Zoning; and
b. The proposed off-site location is suitable for and development of a residential development project thereon is economically and financially feasible as determined by the City, in its sole discretion, pursuant to a feasibility analysis of a proposed residential development project on the 66 proposed off-site location prepared by the City, at the expense of the developer, and approved by the City Council; and
c. The proposed off-site location is adequately served by all required utilities and transportation infrastructure, all of which are appropriately sized to accommodate the proposed off-site below market rate units, the off-site residential development project, and all reasonable foreseeable probable future development within the area served by said utilities and transportation infrastructure; and
d. The proposed off-site below market rate units are in addition to any below market rate dwelling units otherwise required for the off-site residential development project; and
e. The construction of the proposed off-site below market rate dwelling units within the off-site residential development project has not commenced before the approval of the on-site residential development project, the off- site below market rate dwelling units will be available for occupancy prior to or concurrently with the market rate units within the on-site residential development project, and the inclusion of the below market rate dwelling units within the off-site residential development project will not, when combined with the below market rate inclusionary requirement of the off- site residential development project, significantly contribute to residential segregation by income level within the City; and
f. The proposed off-site below market rate dwelling units would be provided in at least the same quantity and affordability levels as would be required for on-site units. The foregoing notwithstanding, any proposal to provide rental off-site below market rate dwelling units to satisfy an inclusionary requirement for an ownership project, shall comply with Sections
17.90.040.A.1 and 17.90.060.C.2 of this Chapter; and
g. The proposed off-site below market rate dwelling units comply with all other requirements of this Chapter; and
h. All necessary agreements required to secure the construction of the off- site below market rate dwelling units will be made a part of the affordable housing agreement required for the on-site residential development project; and
i. Financing or a viable financing plan, which may include public funding sources, is in place for the acquisition of land, development and construction of the proposed off-site below market rate dwelling units; and
j. The purposes of this Chapter would be better served by implementation of the proposed alternative and that the proposed alternative meets the greatest community needs at that time.
BC.Conversion of Off-Site Dwelling Units or Non-Residential Buildings to Off- Site Below Market Rate Dwelling Units.
67 If a developer of a residential development project of ten (10) or more dwelling units proposes the conversion of off-site dwelling units or non-residential buildings to off-site below market rate dwelling units in the Below Market Rate Housing Plan required under Section 17.90.070, the City Council may, in its discretion, approve such a proposal if it finds the proposal meets all of the following conditions:
a. All of the conditions as set forth in Section 17.90.080.AB above; and b. The construction of the proposed off-site below market rate dwelling units shall be in addition to any replacement units otherwise required by State law, including but not limited to Government Code Sections 66300 (d) and 65915 (c)(3).
C.D. On-Site Clustering of Below Market Rate Dwelling Units.
If a developer of a residential development project of ten (10) or more dwelling units proposes the clustering of on-site below market rate dwelling units in the Below Market Rate Housing Plan required under Section 17.90.070 as an alternative to the provisions of Section 17.90.060.A.3 requiring the reasonable dispersal of such units within the residential development project, the City Council may, in its discretion, approve such a proposal if it finds the proposal meets all of the following conditions:
a. The clustering of on-site below market rate dwelling units is necessary to access and secure sources of financing needed for the residential development project; and
b. Construction of the clustered below market rate dwelling units will occur prior to or concurrently with the construction of the market units in the residential development project; and
c. The clustering of on-site below market rate dwelling units will not, when considered singularly or in connection with other residential development projects in the vicinity of the project, significantly contribute to residential segregation by income level within the City; and
d. The purposes of this Chapter would be better served by implementation of the proposed alternative and that the proposed alternative meets the greatest community needs at that time.
D.E. Alternative to On-Site Construction of Below Market Rate Dwelling Units – Donation of Land.
If a developer of a residential development project of ten (10) or more dwelling units proposes the donation of land to the City for the construction of below market rate dwelling units in the Below Market Rate Housing Plan required under Section 17.90.070, the City Council may, in its discretion, approve such a proposal if it finds the proposal meets all of the following conditions:
68 a. The land proposed to be donated to the City is located within the City of Foster City, is currently owned by the developer or is under contract for purchase by the developer, is not located in a flood hazard zone and does not contain environmentally sensitive habitat, and development and construction of a residential development project on the site is consistent with the City’s adopted General Plan, Housing Element, and Zoning; and b. The land proposed to be donated is suitable for and development of a residential development project thereon is economically and financially feasible as determined by the City, in its sole discretion, pursuant to a feasibility analysis of a proposed residential development project on the land proposed to be donated prepared by the City, at the expense of the developer, and approved by the City Council; and
c. The land proposed to be donated to the City is adequately served by all required utilities and transportation infrastructure, all of which are appropriately sized to accommodate a residential development project on the site and all reasonable foreseeable probable future development within the area served by said utilities and transportation infrastructure; and d. The fair market value of the land proposed to be donated equals or exceeds the value of the on-site below market rate dwelling units otherwise required to be provided as part of the residential development project, as shown in an appraisal of the land to be donated and a financial analysis of the proposed residential development project prepared by the City, at the expense of the developer, and approved by the City Council; and e. The land proposed to be donated to the City shall not be contaminated with or otherwise impaired by the presence of hazardous materials or hazardous substances in the soil, soil vapor or groundwater in, on, or under the land to be donated or emanating from lands in proximity thereto, as determined by and to satisfaction of the City, in its sole discretion, pursuant to a Phase I Environmental Site Assessment, and if necessary, a Phase II Environmental Site Assessment, conducted under the direction of the City and at the expense of developer; and
f. The purposes of this Chapter would be better served by implementation of the proposed alternative and that the proposed alternative meets the greatest community needs at that time.
17.90.090 Waiver of Requirements.
A. Timing of Request. A developer of a residential development project may apply for a reduction, adjustment, or waiver of the requirements of this Chapter as part of an application for the approval of a planning permit or building permit, whichever permit is required first.
B. Application Requirements. The developer must show that applying the requirements of this Chapter, without the requested reduction, adjustment or waiver, would result in an unconstitutional taking of property or would result in any other 69 unconstitutional result. The developer shall set forth in detail the factual and legal basis for the claim, including all supporting technical documentation, and shall bear the burden of presenting the requisite evidence to demonstrate the alleged unconstitutional result.
C. City Assumptions. The City may assume each of the following when applicable:
1. The developer will benefit from the incentives set forth in State Density Bonus law and the zoning ordinance; and
2. The developer is able to provide the most economical below market rate dwelling units feasible in terms of financing, construction, design, location and tenure.
D. Decision. The review authority, based upon legal advice provided by or at the behest of the City Attorney, may approve a reduction, adjustment, or waiver of the requirements of this Chapter if the review authority determines that applying the requirements of this Chapter would effectuate an unconstitutional taking of property or otherwise have an unconstitutional application to the property. The reduction, adjustment, or waiver may be approved only to the extent necessary to avoid an unconstitutional result after adoption of written findings, based on legal analysis and the evidence.
E. Changes to the Project. If a reduction, adjustment, or waiver is granted, any subsequent change in the residential development project shall invalidate the reduction, adjustment, or waiver, and a new application shall be required for a reduction, adjustment, or waiver per this section.
17.90.100 Affordable Housing Fund.
A. Establishment of the Affordable Housing Fund. The City of Foster City has established an Affordable Housing Fund as set forth in Section 17.88.060 of the Foster City Municipal Code. The City reaffirms that the Affordable Housing Fund is created for the purpose of receiving and dispersing certain monies to address the housing needs of extremely low, very low, low and moderate income households.
Separate accounts within the Affordable Housing Fund may be created from time to time to avoid commingling of monies, if required by law or as deemed appropriate for the administration of the Affordable Housing Fund.
B.Deposits.All Below Market Rate Housing In-Lieu Fees or other funds collected under this Chapter, shall be deposited into the Affordable Housing Fund.
C. Use of Funds. In addition to the purposes set forth in Section 17.88.060 of the Foster City Municipal Code, the monies in the Affordable Housing Fund, including all interest and earnings from investment of the monies therein, shall be expended exclusively to provide, or assure the continued provision of, below market rate dwelling units to extremely low income, very low income, lower income, and moderate income households in the City, through property acquisition, construction, development assistance, rehabilitation, conversion, financing, rental assistance or other subsidies or methods, consistent with the goals and policies contained in the City's Housing Element and the purposes for which the fees were collected, and for 70 administration and compliance monitoring of the below market rate dwelling units established pursuant to this Chapter.
D. Guidelines. The City Council may, from time to time, adopt guidelines for expenditure of monies in the Affordable Housing Fund.
17.90.110 Enforcement.
A.Nuisance.Any violation of the provisions of this Chapter, or the terms or conditions of a planning permit or building permit issued for a residential development project, or the terms of a Below Market Rate Housing Plan or Below Market Rate Housing Agreement approved in accordance with this Chapter, shall constitute a public nuisance.
B. Provision of Below Market Rate Dwelling Units; Payment Obligation. Provision of below market rate dwelling units and/or payment of the Below Market Rate Housing In-Lieu Fee in accordance with the requirements of this Chapter is the obligation of the developer of a residential development project. The City may institute any appropriate legal actions or proceedings necessary to ensure compliance herewith, including, but not limited to, actions to revoke, deny, modify or suspend any planning permit or building permit approved by the City.
C. City Attorney Enforcement. The City Attorney shall be authorized to enforce the provisions of this Chapter and all Below Market Rate Housing Agreements, resale restrictions, performance deeds of trust, regulatory agreements, and all other covenants or restrictions placed on residential development projects or below market rate dwelling units, by civil action and any other proceeding or method permitted by law. The City shall be entitled to recover its costs, expenses and fees, including reasonable attorneys’ fees, incurred in connection with the enforcement of the provisions of this Chapter and all Below Market Rate Housing Agreements, resale restrictions, performance deeds of trust, regulatory agreements, and all other covenants or restrictions placed on residential development projects or below market rate dwelling units.
D.Developer Responsibility. Failure of any official or agency to enforce the requirements of this Chapter shall not excuse any developer or owner from the requirements of this Chapter. No planning permit, building permit, license, map, or other approval or entitlement for a residential development project or dwelling unit shall be issued, including without limitation a final inspection or certificate of occupancy, until all applicable requirements of this Chapter have been satisfied.
E. Remedies. The remedies provided for in this Section shall be cumulative and not exclusive and shall not preclude the City from any other remedy or relief to which it otherwise would be entitled under law or equity.
Section 4. Effective Date. This ordinance shall take effect thirty (30) days following its final passage.
71 Section 5. Posting. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall have it posted in three (3) public places designated by the City Council.
Section 6. Severability. If any section, subsection, sentence, clause, or phrase of this chapter is held to be invalid or unconstitutional including by any court with jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council declares that it would have passed this article, and each section, subsection, clause, or phrase thereof, irrespective of the fact that any one or more other sections, subsections, clauses, or phrases may be declared invalid or unconstitutional.
This ordinance was introduced and read on the 7 th day of March, 2022, and passed and adopted on the __ day of March 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RICHA AWASTHI, MAYOR
ATTEST:
PRISCILLA SCHAUS, CITY CLERK
72 ORDINANCE NO. ___
AN ORDINANCE OF THE CITY OF FOSTER CITY ADDING A NEW CHAPTER 17.92, AFFORDABLE HOUSING OVERLAY COMBINING DISTRICT, TO TITLE 17, ZONING,
OF THE FOSTER CITY MUNICIPAL CODE
CITY OF FOSTER CITY
WHEREAS, there is a shortage of affordable housing in the City of Foster City (“City”) as documented in the 2015-2023 General Plan Housing Element; and
WHEREAS, California Government Code Section 65580(d) states that all cities have a responsibility to use the powers vested in them to facilitate the improvement and development of housing and to make adequate provision for the housing needs of all economic segments of the community; and
WHEREAS, consistent with State law, Housing Element Goal H-D is to “Consider Potential Public and Private Redevelopment Opportunities to Increase the Supply of Housing”; and
WHEREAS, in order to implement Housing Element Goal H-D, Housing Element Program H-D-2-b “Affordable Housing Overlay Combining District” calls for the City to adopt and implement an Affordable Housing Overlay (AHO) to encourage the production of additional housing units, including affordable units, in areas already developed with housing; and
WHEREAS, the City wishes to implement Housing Element Program H-D-2-b with clear and objective standards to be set forth in an ordinance adding a new Chapter 17.92, Affordable Housing Overlay Combining District, to Title 17 of the Foster City Municipal Code; and
WHEREAS, adopting clear and objective standards for the creation and application of the AHO will provide additional options for compliance with inclusionary housing requirements for redevelopment of existing apartment developments that will encourage the development and availability of housing opportunities to a broad range of households with varying income levels within the City as mandated by State Law, and is essential for the public welfare; and
WHEREAS, adopting clear and objective standards for the creation and application of the AHO will increase the supply of below market rate housing to meet the City’s regional share of extremely low-, very low- and low-income housing needs and the needs of special groups, including the elderly, disabled, small and large families, and local workers; and
73 WHEREAS, provision of housing at a variety of income levels will reduce Vehicle Miles Traveled (VMT) and Greenhouse Gas (GHG) emissions by providing people at all income levels more opportunities to live near where they work; and
WHEREAS, provision of housing at a variety of income levels will support the local economy by making it easier for employers to attract and retain workers by providing people at all income levels more opportunities to live near where they work; and
WHEREAS, provision of housing at a variety of income levels will affirmatively further the policies and purposes of the Fair Housing Act, also known as “Affirmatively Further Fair Housing” by reducing segregation and concentration of poverty; and
WHEREAS, the City has received and considered the analysis prepared by Economic and Planning Systems, Inc. (EPS), including memorandum titled “Housing Fee Implementation Considerations” (January 24, 2022), “Rental Inclusionary Housing In-Lieu Fee” (January 20, 2022), and “Ownership Inclusionary Housing In-Lieu Fee” (January 11, 2022) (collectively, the “EPS Studies”); and
WHEREAS, the City Council has requested that the Planning Commission consider the adoption of ordinances adding provisions to the Municipal Code to address the need for housing affordable to households at all income levels, including adoption of an ordinance to create the AHO with the goal of encouraging the production of additional housing units, including affordable units, in areas already developed with housing; and
WHEREAS, the Planning Commission considered the proposed ordinance adding a new Chapter 17.92, Affordable Housing Overlay Combining District, to Title 17 of the Foster City Municipal Code at a noticed public hearing on February 3, 2022 and adopted Resolution P-02-22 recommending City Council approval; and WHEREAS, the City provided notice of the public hearing (“Notice”) and held a public hearing on March 7, 2022, regarding the proposed ordinance adding a new Chapter 17.92, Affordable Housing Overlay Combining District, to Title 17 of the Foster City Municipal Code, pursuant to Government Code Section 65856; and WHEREAS, as required by Government Code Sections 65856 and 65090, the Notice contained the information required by Government Code Section 65094, and was published in compliance with Government Code Section 6061 on February 16, 2022 and February 23, 2022 in the Foster City Islander, a newspaper of general circulation with the City of Foster City; and
WHEREAS, the Notice was duly posted and mailed to the owners of the properties being considered for inclusion within the Affordable Housing Overlay Combining District, if created and adopted, as well as to owners of property located within 500 feet of the boundaries of these prospective properties above; and
74 WHEREAS, the City Council of the City of Foster City carefully reviewed and considered the staff report and all attachment thereto presented as part of the agenda for the public hearing regarding the proposed ordinance to amend the Foster City Zoning Municipal Code to add provisions regarding an Affordable Housing Overlay Combining District, including the EPS Studies and this Ordinance, any and all timely submitted correspondence, all information submitted at or prior to the public hearing, and all public comment and testimony presented at the public hearing (collectively, the “Record”); now, therefore, be it resolved that
THE CITY COUNCIL OF THE CITY OF FOSTER CITY DOES ORDAIN AS FOLLOWS:
Section 1. The foregoing Recitals are true and correct and are incorporated herein by this reference.
Section 2. The City Council does hereby find and determine based upon the aforementioned Record as follows:
(a) The Public Hearing was properly noticed and conducted in accordance with State law and the Foster City Municipal Code; and
(b) The adoption of the proposed ordinance adding a new Chapter 17.92, Affordable Housing Overlay Combining District, of Title 17 of the Foster City Municipal Code, is exempt from review under the California Environmental Quality Act (CEQA) as it is not considered a ‘project’ under Public Resources Code Section 21065 and CEQA Guidelines Section 15378 because the ordinance will not result in a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. In addition, even if the adoption of the ordinance was considered a “project” under CEQA, pursuant to CEQA Guidelines Section 15061(b)(3), the proposed ordinance is covered by the common sense exemption providing that CEQA only applies to projects which have the potential for causing a significant effect on the environment and where, as is the case with the adoption of this proposed ordinance, it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA; and
(c) The provision of safe and stable housing for households at all income levels is essential for the public welfare of the City. Housing in Foster City, both rental and for-sale housing, has become steadily more expensive and housing costs have gone up faster than incomes. Federal and state government programs do not provide enough affordable housing to satisfy the needs of extremely low, very low or low income households. As a result, there is a severe shortage of adequate, affordable housing for extremely low, very low and lower income households, as evidenced by the findings in the City’s 2015 – 2023 Housing Element: and (d) As provided in the Housing Element of the General Plan, Housing Element Goal H-D, Housing Element Program H-D-2-b “Affordable Housing Overlay Combining District”, the City wishes to encourage the production of additional housing units, including affordable units, through redevelopment of areas already developed with housing by private interests; and
75 (e) Based on the findings above, the City desires to further the public health, safety and welfare by providing an incentive for areas already developed with housing to redevelop those areas with additional housing units, including affordable units, through the creation of an overlay combing district for certain areas of the City; and (f) The proposed ordinance adding a new Chapter 17.92, Affordable Housing Overlay Combining District, to Title 17 of the Foster City Municipal Code, is consistent with the General Plan.
Section 3. Chapter 17.92, Affordable Housing Overlay Combining District, is hereby added to Title 17, Zoning, of the Foster City Municipal Code to read as follows:
Chapter 17.92
AFFORDABLE HOUSING OVERLAY COMBINING DISTRICT
Sections:
17.92.010 Purpose.
17.92.020 Establishment.
17.92.030 Definitions.
17.92.040 Requirements for Inclusion of Below Market Rate Dwelling Units.
17.92.010 Purpose.
The purpose of the affordable housing overlay (“AHO”) combining district established by this Chapter is to:
A. Encourage the development of below market rate rental dwelling units for extremely low-, very low- and low-income households on sites that are designated Apartment Residential in the General Plan; and
B. Provide an alternative to the percentage of below market rate dwelling units required by Chapter 17.90 that targets the extremely low-, very low- and low- income units and at the same time reduces the overall percentage of below market rate dwelling units required; and
C. Enhance the public welfare by establishing policies and encouraging the development and availability of housing opportunities to a broad range of households with varying income levels within the City as mandated by State Law, California Government Code Section 65580 and following; and D. Promote the City’s goals as stated in the Housing Element of the General Plan to increase the supply of below market rate housing to meet the City’s regional share of extremely low-, very low-, and low-income housing needs and the needs of 76 special groups, including the elderly, disabled, small and large families, and local workers by imposing an inclusionary requirement for residential development projects; and
E. Reduce Vehicle Miles Traveled (VMT) and Greenhouse Gas (GHG) emissions by providing people at all income levels more opportunities to live near where they work.
F. Support the local economy by making it easier for employers to attract and retain workers by providing people at all income levels more opportunities to live near where they work; and
G. Affirmatively further the policies and purposes of the Fair Housing Act, also known as “Affirmatively Further Fair Housing”, by reducing segregation and concentration of poverty; and
H. Implement the City’s policies contained in the Housing Element of the General Plan to create an Affordable Housing Overlay District to encourage the production of additional housing units, including affordable housing units at existing, older apartments, in a manner appropriate to their neighborhood and surrounding development.
17.92.020 Establishment.
The AHO combining district may be established or removed from the zoning map upon the application of a property owner or owners, or upon the initiative of the city council or planning commission, in accordance with the procedures set forth in Chapter 17.74. Only properties designated Apartment Residential on the Land Use Plan Map of the General Plan shall be eligible for the AHO combining district.
17.92.030 Definitions.
For purposes of this Chapter, the definitions set forth in Section 17.90.020 of Chapter
17.90 of the Foster City Municipal Code shall be, and hereby are, incorporated herein by this reference as if set forth in full.
17.92.040 Requirements for Inclusion of Below Market Rate Dwelling Units.
A. Substitution for Number of Dwelling Units Required by Chapter 17.90. In lieu of the percentage of below market rate dwelling units required by Chapter 17.90, developers of rental residential development projects of ten (10) or more dwelling units shall provide the percentage of below market rate dwelling units specified in Section 17.92.040.B below. All other provisions of Chapter 17.90 shall apply, except those provisions pertaining only to for-sale residential development projects and below market rate dwelling units available as for-sale units.
B. Number of Below Market Rate Dwelling Units and Level of Affordability. For the purposes of this section, "total dwelling units" does not include (i) dwelling units awarded above the otherwise-allowable maximum density as part of a density bonus in Chapter 17.86 (Density Bonuses), or (ii) in a residential development project that will require the demolition of dwelling units, the number of dwelling units demolished, 77 provided the residential development project will create at least as many dwelling units as will be demolished and otherwise complies with the requirements of California Government Code Section 666300 (d), as applicable to the demolished units.
1. Rental Projects. Seven percent (7%) of the proposed total dwelling units shall be below market rate dwelling units occupied by or available for occupancy by low income households at or below market rate rents; four percent (4%) of the proposed total dwelling units shall be below market rate dwelling units occupied by or available for occupancy by very low income households at or below market rate rents; and four percent (4%) of the proposed total dwelling units shall be below market rate dwelling units occupied by or available for occupancy by extremely low income households at or below market rate rents. Alternative percentages and levels of affordability may be considered as part of the Below Market Rate Housing Plan and Below Market Rate Housing Agreement (Section
17.90.070) and the reviewing authority may approve or conditionally approve such an alternative if it determines, based on substantial evidence, that such alternative percentages and levels of affordability will provide as many or more below market rate dwelling units at the same or lower income levels or will otherwise provide greater public benefit than the requirement set forth herein.
2. Fractional Units. In calculating the number of below market rate dwelling units required pursuant to Sections 17.92.040.B.1 above, any fraction of less than 0.50 shall be satisfied by payment of an amount equal to the Below Market Rate Housing In-Lieu Fee established pursuant to Section 17.90.050 times the applicable fraction, and any fraction of 0.50 or more shall be satisfied by developing one (1) below market rate dwelling unit available for rental to and occupancy by eligible households at the applicable household income level and at below market rate rent.
Section 4. Effective Date. This ordinance shall take effect thirty (30) days following its final passage.
Section 5. Posting. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall have it posted in three (3) public places designated by the City Council.
Section 6. Severability. If any section, subsection, sentence, clause, or phrase of this chapter is held to be invalid or unconstitutional including by any court with jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council declares that it would have passed this article, and each section, subsection, clause, or phrase thereof, irrespective of the fact that any one or more other sections, subsections, clauses, or phrases may be declared invalid or unconstitutional. 78 This ordinance was introduced and read on the 7th day of March, 2022, and passed and adopted on the 21st day of March, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RICHA AWASTHI, MAYOR
ATTEST:
PRISCILLA SCHAUS, CITY CLERK
79 ORDINANCE NO. ___
AN ORDINANCE OF THE CITY OF FOSTER CITY ADDING A NEW CHAPTER 17.92, AFFORDABLE HOUSING OVERLAY COMBINING DISTRICT, TO TITLE 17, ZONING,
OF THE FOSTER CITY MUNICIPAL CODE
CITY OF FOSTER CITY
WHEREAS, there is a shortage of affordable housing in the City of Foster City (“City”) as documented in the 2015-2023 General Plan Housing Element; and
WHEREAS, California Government Code Section 65580(d) states that all cities have a responsibility to use the powers vested in them to facilitate the improvement and development of housing and to make adequate provision for the housing needs of all economic segments of the community; and
WHEREAS, consistent with State law, Housing Element Goal H-D is to “Consider Potential Public and Private Redevelopment Opportunities to Increase the Supply of Housing”; and
WHEREAS, in order to implement Housing Element Goal H-D, Housing Element Program H-D-2-b “Affordable Housing Overlay Combining District” calls for the City to adopt and implement an Affordable Housing Overlay (AHO) to encourage the production of additional housing units, including affordable units, in areas already developed with housing; and
WHEREAS, the City wishes to implement Housing Element Program H-D-2-b with clear and objective standards to be set forth in an ordinance adding a new Chapter 17.92, Affordable Housing Overlay Combining District, to Title 17 of the Foster City Municipal Code; and
WHEREAS, adopting clear and objective standards for the creation and application of the AHO will provide additional options for compliance with inclusionary housing requirements for redevelopment of existing apartment developments that will encourage the development and availability of housing opportunities to a broad range of households with varying income levels within the City as mandated by State Law, and is essential for the public welfare; and
WHEREAS, adopting clear and objective standards for the creation and application of the AHO will increase the supply of below market rate housing to meet the City’s regional share of extremely low-, very low- and, low- and moderate-income housing needs and the needs of special groups, including the elderly, disabled, small and large families, and local workers; and
80 WHEREAS, provision of housing at a variety of income levels will reduce Vehicle Miles Traveled (VMT) and Greenhouse Gas (GHG) emissions by providing people at all income levels more opportunities to live near where they work; and
WHEREAS, provision of housing at a variety of income levels will support the local economy by making it easier for employers to attract and retain workers by providing people at all income levels more opportunities to live near where they work; and
WHEREAS, provision of housing at a variety of income levels will affirmatively further the policies and purposes of the Fair Housing Act, also known as “Affirmatively Further Fair Housing” by reducing segregation and concentration of poverty; and
WHEREAS, the City has received and considered the analysis prepared by Economic and Planning Systems, Inc. (EPS), including memorandum titled “Housing Fee Implementation Considerations” (January 24, 2022), “Rental Inclusionary Housing In-Lieu Fee” (January 20, 2022), and “Ownership Inclusionary Housing In-Lieu Fee” (January 11, 2022) (collectively, the “EPS Studies”); and
WHEREAS, the City Council has requested that the Planning Commission consider the adoption of ordinances adding provisions to the Municipal Code to address the need for housing affordable to households at all income levels, including adoption of an ordinance to create the AHO with the goal of encouraging the production of additional housing units, including affordable units, in areas already developed with housing; and
WHEREAS, the Planning Commission considered the proposed ordinance adding a new Chapter 17.92, Affordable Housing Overlay Combining District, to Title 17 of the Foster City Municipal Code at a noticed public hearing on February 3, 2022 and adopted Resolution P-02-22 recommending City Council approval; and WHEREAS, the City provided notice of the public hearing (“Notice”) and held a public hearing on March 7, 2022, regarding the proposed ordinance adding a new Chapter 17.92, Affordable Housing Overlay Combining District, to Title 17 of the Foster City Municipal Code, pursuant to Government Code Section 65856; and WHEREAS, as required by Government Code Sections 65856 and 65090, the Notice contained the information required by Government Code Section 65094, and was published in compliance with Government Code Section 6061 on February 16, 2022 and February 23, 2022 in the Foster City Islander, a newspaper of general circulation with the City of Foster City; and
WHEREAS, the Notice was duly posted and mailed to the owners of the properties being considered for inclusion within the Affordable Housing Overlay Combining District, if created and adopted, as well as to owners of property located within 500 feet of the boundaries of these prospective properties above; and
81 WHEREAS, the City Council of the City of Foster City carefully reviewed and considered the staff report and all attachment thereto presented as part of the agenda for the public hearing regarding the proposed ordinance to amend the Foster City Zoning Municipal Code to add provisions regarding an Affordable Housing Overlay Combining District, including the EPS Studies and this Ordinance, any and all timely submitted correspondence, all information submitted at or prior to the public hearing, and all public comment and testimony presented at the public hearing (collectively, the “Record”); now, therefore, be it resolved that
THE CITY COUNCIL OF THE CITY OF FOSTER CITY DOES ORDAIN AS FOLLOWS:
Section 1. The foregoing Recitals are true and correct and are incorporated herein by this reference.
Section 2. The City Council does hereby find and determine based upon the aforementioned Record as follows:
(a) The Public Hearing was properly noticed and conducted in accordance with State law and the Foster City Municipal Code; and
(b) The adoption of the proposed ordinance adding a new Chapter 17.92, Affordable Housing Overlay Combining District, of Title 17 of the Foster City Municipal Code, is exempt from review under the California Environmental Quality Act (CEQA) as it is not considered a ‘project’ under Public Resources Code Section 21065 and CEQA Guidelines Section 15378 because the ordinance will not result in a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. In addition, even if the adoption of the ordinance was considered a “project” under CEQA, pursuant to CEQA Guidelines Section 15061(b)(3), the proposed ordinance is covered by the common sense exemption providing that CEQA only applies to projects which have the potential for causing a significant effect on the environment and where, as is the case with the adoption of this proposed ordinance, it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA; and
(c) The provision of safe and stable housing for households at all income levels is essential for the public welfare of the City. Housing in Foster City, both rental and for-sale housing, has become steadily more expensive and housing costs have gone up faster than incomes. Federal and state government programs do not provide enough affordable housing to satisfy the needs of extremely low, very low or, low, or moderate income households. As a result, there is a severe shortage of adequate, affordable housing for extremely low, very low and, lower, and moderate income households, as evidenced by the findings in the City’s 2015 – 2023 Housing Element: and
(d) As provided in the Housing Element of the General Plan, Housing Element Goal H-D, Housing Element Program H-D-2-b “Affordable Housing Overlay Combining District”, the City wishes to encourage the production of additional housing units, 82 including affordable units, through redevelopment of areas already developed with housing by private interests; and
(e) Based on the findings above, the City desires to further the public health, safety and welfare by providing an incentive for areas already developed with housing to redevelop those areas with additional housing units, including affordable units, through the creation of an overlay combing district for certain areas of the City; and (f) The proposed ordinance adding a new Chapter 17.92, Affordable Housing Overlay Combining District, to Title 17 of the Foster City Municipal Code, is consistent with the General Plan.
Section 3. Chapter 17.92, Affordable Housing Overlay Combining District, is hereby added to Title 17, Zoning, of the Foster City Municipal Code to read as follows:
Chapter 17.92
AFFORDABLE HOUSING OVERLAY COMBINING DISTRICT
Sections:
17.92.010 Purpose.
17.92.020 Establishment.
17.92.030 Definitions.
17.92.040 Requirements for Inclusion of Below Market Rate Dwelling Units.
17.92.010 Purpose.
The purpose of the affordable housing overlay (“AHO”) combining district established by this Chapter is to:
A. Encourage the development of below market rate rental dwelling units for extremely low-, very low- and low-income households on sites that are designated Apartment Residential in the General Plan; and
B. Provide an alternative to the percentage of below market rate dwelling units required by Chapter 17.90 that targets the extremely low-, very low- and low- income units and at the same time reduces the overall percentage of below market rate dwelling units required; and
C. Enhance the public welfare by establishing policies and encouraging the development and availability of housing opportunities to a broad range of households with varying income levels within the City as mandated by State Law, California Government Code Section 65580 and following; and 83 D. Promote the City’s goals as stated in the Housing Element of the General Plan to increase the supply of below market rate housing to meet the City’s regional share of extremely low-, very low-, and low-income housing needs and the needs of special groups, including the elderly, disabled, small and large families, and local workers by imposing an inclusionary requirement for residential development projects; and
E. Reduce Vehicle Miles Traveled (VMT) and Greenhouse Gas (GHG) emissions by providing people at all income levels more opportunities to live near where they work.
F. Support the local economy by making it easier for employers to attract and retain workers by providing people at all income levels more opportunities to live near where they work; and
G. Affirmatively further the policies and purposes of the Fair Housing Act, also known as “Affirmatively Further Fair Housing”, by reducing segregation and concentration of poverty; and
H. Implement the City’s policies contained in the Housing Element of the General Plan to create an Affordable Housing Overlay District to encourage the production of additional housing units, including affordable housing units at existing, older apartments, in a manner appropriate to their neighborhood and surrounding development.
17.92.020 Establishment.
The AHO combining district may be established or removed from the zoning map upon the application of a property owner or owners, or upon the initiative of the city council or planning commission, in accordance with the procedures set forth in Chapter 17.74. Only properties designated Apartment Residential on the Land Use Plan Map of the General Plan shall be eligible for the AHO combining district.
17.92.030 Definitions.
For purposes of this Chapter, the definitions set forth in Section 17.90.020 of Chapter
17.90 of the Foster City Municipal Code shall be, and hereby are, incorporated herein by this reference as if set forth in full.
17.92.040 Requirements for Inclusion of Below Market Rate Dwelling Units.
A. Substitution for Number of Dwelling Units Required by Chapter 17.90. In lieu of the percentage of below market rate dwelling units required by Chapter 17.90, developers of rental residential development projects of ten (10) or more dwelling units shall may instead choose to provide the percentage of below market rate dwelling units specified in Section 17.92.040.B below. All other provisions of Chapter
17.90 shall apply, except those provisions pertaining only to for-sale residential development projects and below market rate dwelling units available as for-sale units.
B. Number of Below Market Rate Dwelling Units and Level of Affordability. For the purposes of this section, "total dwelling units" does not include (i) dwelling units 84 awarded above the otherwise-allowable maximum density as part of a density bonus in Chapter 17.86 (Density Bonuses), or (ii) in a residential development project that will require the demolition of dwelling units, the number of dwelling units demolished, provided the residential development project will create at least as many dwelling units as will be demolished and otherwise complies with the requirements of California Government Code Section 666300 (d), as applicable to the demolished units.
1. Rental Projects. Seven percent (7%) of the proposed total dwelling units shall be below market rate dwelling units occupied by or available for occupancy by low income households at or below market rate rents; four percent (4%) of the proposed total dwelling units shall be below market rate dwelling units occupied by or available for occupancy by very low income households at or below market rate rents; and four percent (4%) of the proposed total dwelling units shall be below market rate dwelling units occupied by or available for occupancy by extremely low income households at or below market rate rents. Alternative percentages and levels of affordability may be considered as part of the Below Market Rate Housing Plan and Below Market Rate Housing Agreement (Section
17.90.070) and the reviewing authority may approve or conditionally approve such an alternative if it determines, based on substantial evidence, that such alternative percentages and levels of affordability will provide as many or more below market rate dwelling units at the same or lower income levels or will otherwise provide greater public benefit than the requirement set forth herein.
2. Fractional Units. In calculating the number of below market rate dwelling units required pursuant to Sections 17.92.040.B.1 above, any fraction of less than 0.50 shall be satisfied by payment of an amount equal to the Below Market Rate Housing In-Lieu Fee established pursuant to Section 17.90.050 times the applicable fraction, and any fraction of 0.50 or more shall be satisfied by developing one (1) below market rate dwelling unit available for rental to and occupancy by eligible households at the applicable household income level and at below market rate rent.
Section 4. Effective Date. This ordinance shall take effect thirty (30) days following its final passage.
Section 5. Posting. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall have it posted in three (3) public places designated by the City Council.
Section 6. Severability. If any section, subsection, sentence, clause, or phrase of this chapter is held to be invalid or unconstitutional including by any court with jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council declares that it would have passed this article, and each section, subsection, clause, or phrase thereof, irrespective of the fact that any one or more other sections, subsections, clauses, or phrases may be declared invalid or unconstitutional. 85 This ordinance was introduced and read on the 7 th day of March, 2022, and passed and adopted on the __ day of March 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RICHA AWASTHI, MAYOR
ATTEST:
PRISCILLA SCHAUS, CITY CLERK
86 ORDINANCE NO.
AN ORDINANCE OF THE CITY OF FOSTER CITY AMENDING THE FOSTER CITY
ZONING MAP TO ZONE CERTAIN PROPERTIES WITHIN THE AFFORDABLE
HOUSING OVERLAY COMBINING DISTRICT
CITY OF FOSTER CITY
WHEREAS, there is a shortage of affordable housing in the City of Foster City (“City”) as documented in the 2015-2023 General Plan Housing Element; and
WHEREAS, California Government Code Section 65580(d) states that all cities have a responsibility to use the powers vested in them to facilitate the improvement and development of housing and to make adequate provision for the housing needs of all economic segments of the community; and
WHEREAS, consistent with State law, Housing Element Goal H-D is to “Consider Potential Public and Private Redevelopment Opportunities to Increase the Supply of Housing”; and
WHEREAS, in order to implement Housing Element Goal H-D, Housing Element Program H-D-2-b “Affordable Housing Overlay Combining District” calls for the City to adopt and implement an Affordable Housing Overlay (AHO) to encourage the production of additional housing units, including affordable units, in areas already developed with housing; and
WHEREAS, the City wishes to implement Housing Element Program H-D-2-b with clear and objective standards to be set forth in an ordinance adding a new Chapter 17.92, Affordable Housing Overlay Combining District, to Title 17 of the Foster City Municipal Code; and
WHEREAS, adopting clear and objective standards for the creation and application of the AHO will provide additional options for compliance with inclusionary housing requirements for redevelopment of existing apartment developments that will encourage the development and availability of housing opportunities to a broad range of households with varying income levels within the City as mandated by State Law, and is essential for the public welfare; and
WHEREAS, adopting clear and objective standards for the creation and application of the AHO will increase the supply of below market rate housing to meet the City’s regional share of very low-, low- and moderate-income housing needs and the needs of special groups, including the elderly, disabled, small and large families, and local workers; and
87 WHEREAS, provision of housing at a variety of income levels will reduce Vehicle Miles Traveled (VMT) and Greenhouse Gas (GHG) emissions by providing people at all income levels more opportunities to live near where they work; and
WHEREAS, provision of housing at a variety of income levels will support the local economy by making it easier for employers to attract and retain workers by providing people at all income levels more opportunities to live near where they work; and
WHEREAS, provision of housing at a variety of income levels will affirmatively further the policies and purposes of the Fair Housing Act, also known as “Affirmatively Further Fair Housing” by reducing segregation and concentration of poverty; and
WHEREAS, the City has received and considered the analysis prepared by Economic and Planning Systems, Inc. (EPS), including memorandum titled “Housing Fee Implementation Considerations” (January 24, 2022), “Rental Inclusionary Housing In-Lieu Fee” (January 20, 2022), and “Ownership Inclusionary Housing In-Lieu Fee” (January 11, 2022) (collectively, the “EPS Studies”); and
WHEREAS, the City Council, by adoption of Resolution No. 2021-52 on May 3, 2021, has requested that the Planning Commission consider the adoption of an ordinance to amend the Foster City Zoning Map to zone the below referenced properties within the Affordable Housing Overlay Combining District, to be set forth in a new Chapter 17.92, Affordable Housing Overlay Combining District, of Title 17 of the Foster City Municipal Code:
1. Beach Cove Apartments, 605-1021 Catamaran Street, APNs 094-320-040 & 094-330-010
2. Franciscan Apartments, 888 Foster City Boulevard, APN 094-091-020
3. Sand Cove Apartments, 707-939 Shell Boulevard, APN 094-470-160
4. Shadow Cove Apartments, 1019-1087 Foster City Boulevard, APN 094-312- 780
5. The Lagoons Apartments, 611-899 Bounty Drive, APN 094-472-010
6. Lantern Cove Apartments, 244 Rock Harbor Lane, APNs 097-160-110 & 120
7. Schooner Bay Apartments, Timberhead Lane, Halyard Lane, Stanchion Lane, Masthead Lane, Quadrant Lane, Cutwater Lane, Jibstay Lane, Bobstay Lane, Windlass Lane, Pinrail Lane, APNs 097-140-070 & 080; 097-150-020, 030, 050, 110, & 120; and
WHEREAS, the Planning Commission considered the proposed amendment to the zoning map at a noticed public hearing on February 3, 2022 and adopted Resolution P- 03-22 recommending City Council approval; and
WHEREAS, the City provided notice of the public hearing (“Notice”) and held a public hearing on March 7, 2022, regarding the proposed ordinance to amend the Foster City Zoning Map to zone the above referenced properties within the Affordable Housing Overlay Combining District, pursuant to Government Code Section 65856; and 88 WHEREAS, as required by Government Code Sections 65856 and 65090, the Notice contained the information required by Government Code Section 65094, and was published in compliance with Government Code Section 6061 on February 16, 2022 and February 23, 2022 in the Foster City Islander, a newspaper of general circulation with the City of Foster City; and
WHEREAS, the Notice was duly posted and mailed to the owners of the properties referenced above and to be included within the Affordable Housing Overlay Combining District, as well as to owners of property located within 500 feet of the boundaries of the properties above; and
WHEREAS, the City Council of the City of Foster City carefully reviewed and considered the staff report and all attachment thereto presented as part of the agenda for the public hearing regarding the proposed ordinance to amend the Foster City Zoning Map to zone the above referenced properties within the Affordable Housing Overlay Combining District, including the EPS Studies and this Ordinance, any and all timely submitted correspondence, all information submitted at or prior to the public hearing, and all public comment and testimony presented at the public hearing (collectively, the “Record”); now, therefore, be it resolved that
THE CITY COUNCIL OF THE CITY OF FOSTER CITY DOES ORDAIN AS FOLLOWS:
Section 1. The foregoing Recitals are true and correct and are incorporated herein by this reference.
Section 2. The City Council does hereby find and determine based upon the aforementioned Record as follows:
(a) The Public Hearing was properly noticed and conducted in accordance with State law and the Foster City Municipal Code; and
(b) The adoption of the proposed ordinance amending the Foster City Zoning Map to zone the above reference properties within the Affordable Housing Overlay Combining District, to be set forth in Chapter 17.92, Affordable Housing Overlay Combining District, of Title 17 of the Foster City Municipal Code, is exempt from review under the California Environmental Quality Act (CEQA) as it is not considered a ‘project’ under Public Resources Code Section 21065 and CEQA Guidelines Section 15378 because the ordinance will not result in a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. In addition, even if the adoption of the ordinance was considered a “project” under CEQA, pursuant to CEQA Guidelines Sec tion 15061(b)(3), the proposed ordinance is covered by the common sense exemption providing that CEQA only applies to projects which have the potential for causing a significant effect on the environment and where, as is the case with the adoption of this proposed ordinance, it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA; and
89 (c) The provision of safe and stable housing for households at all income levels is essential for the public welfare of the City. Housing in Foster City, both rental and for-sale housing, has become steadily more expensive and housing costs have gone up faster than incomes. Federal and state government programs do not provide enough affordable housing to satisfy the needs of very low, low, or moderate income households. As a result, there is a severe shortage of adequate, affordable housing for very low, lower, and moderate income households, as evidenced by the findings in the City’s 2015 – 2023 Housing Element: and (d) As provided in the Housing Element of the General Plan, Housing Element Goal H-D, Housing Element Program H-D-2-b “Affordable Housing Overlay Combining District”, the City wishes to encourage the production of additional housing units, including affordable units, through redevelopment of areas already developed with housing by private interests; and
(e) Based on the findings above, the City desires to further the public health, safety and welfare by providing an incentive for areas already developed with housing to redevelop those areas with additional housing units, including affordable units, through the creation of an overlay combing district for certain areas of the City; and (f) The proposed ordinance adding Chapter 17.92, Affordable Housing Overlay Combining District, to Title 17 of the Foster City Municipal Code, is consistent with the General Plan; and
(g) The proposed ordinance to amend the Foster City Zoning Map to apply the provisions to be set forth in Chapter 17.92, Affordable Housing Overlay Combining District, of Title 17 of the Foster City Municipal Code, to the specific properties listed in Section 3 below and as shown on Exhibit A attached hereto and incorporated herein, is consistent with the General Plan.
Section 3. That the City of Foster City Zoning Map is hereby amended to classify the properties, as listed below and as shown on Exhibit A attached hereto and incorporated herein, to be located within the Affordable Housing Overlay Combining District, as set forth in Chapter 17.92, Affordable Housing Overlay Combining District, of Title 17 of the Foster City Municipal Code:
1. Beach Cove Apartments, 605-1021 Catamaran Street, APNs 094-320-040 & 094-330-010
2. Franciscan Apartments, 888 Foster City Boulevard, APN 094-091-020
3. Sand Cove Apartments, 707-939 Shell Boulevard, APN 094-470-160
4. Shadow Cove Apartments, 1019-1091 Foster City Boulevard, APN 094-312- 780
5. The Lagoons Apartments, 611-899 Bounty Drive, APN 094-472-010
6. Lantern Cove Apartments, 244 Rock Harbor Lane, APNs 097-160-110 & 120
7. Schooner Bay Apartments, Timberhead Lane, Halyard Lane, Stanchion Lane, Masthead Lane, Quadrant Lane, Cutwater Lane, Jibstay Lane, Bobstay Lane, Windlass Lane, Pinrail Lane, APNs 097-140-070 & 080; 097-150-020, 030, 050, 110, & 120
90 Section 4. Effective Date. This ordinance shall take effect thirty (30) days following its final passage.
Section 5. Posting. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall have it posted in three (3) public places designated by the City Council.
Section 6. Severability. If any section, subsection, sentence, clause, or phrase of this chapter is held to be invalid or unconstitutional including by any court with jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council declares that it would have passed this article, and each section, subsection, clause, or phrase thereof, irrespective of the fact that any one or more other sections, subsections, clauses, or phrases may be declared invalid or unconstitutional.
This ordinance was introduced and read on the 7th day of March, 2022, and passed and adopted on the 21st day of March, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RICHA AWASTHI, MAYOR
ATTEST:
PRISCILLA SCHAUS, CITY CLERK
91 Exhibit A: Page 1 of 7
Beach Cove Apartments
The City of Foster City Zoning Map is hereby amended to reclassify the 18.7-acre lands at 605-1021 Catamaran Street (APN: 094-320-040 and 094-330-010) to change the Zoning Map Designation from R- 4/PD (High Density Multiple-Family Residence/Planned Development) to R-4/PD/AHO (High Density Multiple-Family Residence/Planned Development/Affordable Housing Overlay) Combining District as indicated in Figure 1.
Figure 1: Beach Cove Apartments
Beach Cove Apartments
92 Exhibit A: Page 2 of 7
Franciscan Apartments
The City of Foster City Zoning Map is hereby amended to reclassify the 6.4-acre lands at 888 Foster City Boulevard (APN: 094-091-020) to change the Zoning Map Designation from R-3 (Medium Density Multiple-Family Residence) to R-3/AHO (Medium Density Multiple-Family Residence/Affordable Housing Overlay) Combining District as indicated in Figure 2.
Figure 2: Franciscan Apartments
Franciscan Apartments
93 Exhibit A: Page 3 of 7
Sand Cove Apartments
The City of Foster City Zoning Map is hereby amended to reclassify the 8.77-acre lands at 707-939 Shell Boulevard (APN: 094-470-160) to change the Zoning Map Designation from R-3/PD (Medium Density Multiple-Family Residence/Planned Development) to R-3/PD/AHO (Medium Density Multiple-Family Residence/Planned Development/Affordable Housing Overlay) Combining District as indicated in Figure 3.
Figure 3: Sand Cove Apartments
Sand Cove Apartments
`
94 Exhibit A: Page 4 of 7
The Lagoons Apartments
The City of Foster City Zoning Map is hereby amended to reclassify the 9.64-acre lands at 611-899 Bounty Drive (APN: 094-472-010) to change the Zoning Map Designation from R-3/PD (Medium Density Multiple- Family Residence/Planned Development) to R-3/PD/AHO (Medium Density Multiple-Family Residence/Planned Development/Affordable Housing Overlay) Combining District as indicated in Figure 4.
Figure 4: The Lagoons Apartments
The Lagoons Apartments
95 Exhibit A: Page 5 of 7
Shadow Cove Apartments
The City of Foster City Zoning Map is hereby amended to reclassify the 7.9-acre lands at 1019-1087 Foster City Boulevard (APN: 094-312-780) to change the Zoning Map Designation from R-4/PD (High Density Multiple-Family Residence/Planned Development) to R-4/PD/AHO (High Density Multiple-Family Residence/Planned Development/Affordable Housing Overlay) Combining District as indicated in Figure 5.
Figure 5: Shadow Cove Apartments
Shadow Cove Apartments
96 Exhibit A: Page 6 of 7
Lantern Cove Apartments
The City of Foster City Zoning Map is hereby amended to reclassify the 16.8-acre lands at 244 Rock Harbor Lane (APN: 097-160-110 and 097-160-120) to change the Zoning Map Designation from R-3/PD (Medium Density Multiple-Family Residence/Planned Development) to R-3/PD/AHO (Medium Density Multiple- Family Residence/Planned Development/Affordable Housing Overlay) Combining District as indicated in Figure 6.
Figure 6: Lantern Cove Apartments
Lantern Cove Apartments
97 Exhibit A: Page 7 of 7
Schooner Bay Apartments
Schooner Bay Apartments
The City of Foster City Zoning Map is hereby amended to reclassify the 24.8-acre lands at Timberhead Lane, Halyard Lane, Stanchion Lane, Masthead Lane, Quadrant Lane, Cutwater Lane, Jobstay Lane, Bobstay Lane, Windlass Lane, and Pinrail Lane (APN: 097-140-070 and 080; 097-150-020, 030, 050, 110, and 120) to change the Zoning Map Designation from R-3/PD (Medium Density Multiple-Family Residence/Planned Development) to R-3/PD/AHO (Medium Density Multiple-Family Residence/Planned Development/Affordable Housing Overlay) Combining District as indicated in Figure 7.
Figure 7: Schooner Bay Apartments
Schooner Bay Apartments
98 DATE: March 21, 2022
TO: Mayor and Members of the City Council
VIA: Kevin Miller, Interim City Manager
FROM: Priscilla Schaus, Communications Director/City Clerk
SUBJECT: AGREEMENT WITH PENINSULA MEDIA FOR VIDEO
TECHNICIAN SERVICES
RECOMMENDATION
It is recommended that City Council adopt the attached resolution approving an agreement with Pen Media for Video Technician Services from May 1, 2022 to April 30, 2023 for the initial year, with the option to extend the agreement for an additional two years in an amount not to exceed $35,000 in any of the three years. The estimated contracted amounts are:
$24,750 in the first year;
$26,125 in the second year; and
$27,500 in the third year.
EXECUTIVE SUMMARY
Video Technician services ensure the recording and cablecast of City Council and Planning Commission meetings, maintenance of the FCTV Bulletin Board content and functionality, the recording and cablecast of additional events using the vendor's own equipment outside of the City Council Chambers, advisory input and technical troubleshooting on broadcast equipment serviceability, and other tasks associated with maintaining Foster City Television (FCTV) services.
99 The City entered into an agreement for Video Technician Services on March 2, 2020 for Fiscal Year 2020-2021, with the option to extend for Fiscal Years 2021-2022 and 2022-2023. On December 3, 2021 staff received a letter stating that the service provider would cease operations on December 31, 2021. To ensure continuity of services, the City entered into a short-term agreement to allow sufficient time to issue a Request for Proposals (RFP), review proposals, and present a new multiyear agreement for City Council approval. The City Council approved the issuance of an RFP at the January 18, 2022 City Council meeting, and the RFP was subsequently posted on the City's website and sent to vendors that provide similar services regionally.
Three service providers attended the required walk-through of facilities, and all three attendees submitted a proposal. Based on the submittal of a reasonable, responsive, and responsible proposal, staff recommends awarding the Video Technician Agreement to Pen Media LLC from May 1, 2022 to April 30, 2022 for the initial year, with options to extend the agreement for an additional two years in amounts not to exceed $35,000 annually.
BACKGROUND/ANALYSIS
Foster City Television (FCTV) is Foster City's Government Access Cable Television Channel, providing local information to Foster City since 1986.
FCTV can be found on Comcast Channel 27, AT&T Channel 99 or streaming on YouTube and the Foster City website. Foster City TV's mission is to serve the people of Foster City by providing accurate and current information about policies, services, and activities of the City government and local events. As an essential part of FCTV, City Council and Planning Commission meetings are recorded and cablecast, with additional regularly scheduled replays. The recording and cablecasting of meetings, as well as other City events, has been provided through a Video Technician agreement since 2012, following the elimination of a video technician staff position.
The Council Chambers has a well-equipped control room where live City meetings are directed and recorded. All live meetings are typically directed by one Video Technician. This Video Technician has remote control over five high-definition cameras to capture all of the proceedings inside the Council Chambers – four pan/tilt/zoom cameras plus one fixed mounted zoom document camera. The Video Technician also has the capability of monitoring and controlling eleven fixed microphones and up to six wireless microphones.The Video Technician coordinates audio/visual (A/V) needs for 100
the meeting participants using the Crestron Control system, as well as directs the video switching and monitors audio levels for broadcast and recording.
The Video Technician also maintains the FCTV bulletin board content and functionality, provides advisory input and technical troubleshooting on broadcast equipment serviceability, and other tasks associated with maintaining FCTV services.
Additionally, the Video Technician Vendor contract provides pricing for an additional fee for the recording of special events, such as the Community Dialogue Series, Town Hall meetings, or similar events that take place at the Recreation Center, Community Center, or at comparable venues outside of the City Council Chambers.
The City entered into an agreement for Video Technician Services on March 2, 2020 for Fiscal Year 2020-2021, with the option to extend for Fiscal Years 2021-2022 and 2022-2023. On December 3, 2021 staff received a letter stating that the service provider will cease operations on December 31, 2021.
To ensure continuity of services, the City entered into a short-term agreement to allow sufficient time to issue an RFP, review proposals, and present a new multiyear agreement for City Council approval. The City Council approved the issuance of an RFP at the January 18, 2022 City Council meeting, and the RFP was subsequently posted on the City's website and sent to vendors that provide similar services regionally.
Three service providers attended the required walk-through of facilities, and all three attendees submitted a proposal. All three service providers have performed similar work in neighboring cities, confirmed their ability to perform the work outlined in the Core Contract Scope of Work, and disclosed any noticing requirements. Below is a table illustrating the base cost of the proposal submittals:
101
Contractor Base
Proposal
Amount
Year 1
Base
Proposal
Amount
Year 2
Base
Proposal
Amount
Year 3
Special
Event
Pen Media $24,750
$26,125 $27,500
$1,500+
per
special
event
Midpeninsula
Television
$31,000-
$41,000 *
range
reflects 1
or 2 video
technicians
$32,000 $33,000
4 special
events
included
Millbrae
Community
Television
$39,800 $51,200 $63,240
3 special
events
included
Pen Media is comprised of former employees of Peninsula Television who have provided satisfactory service to the City since 2015. Pen Media submitted a proposal with a base cost estimate that is less than the next lowest proposal. Although special event coverage is not included in the Pen Media base price, staff determined that the pricing provided is favorable based on minimal historical usage of special event services. Special event services, if needed, will be paid on an ad-hoc basis.
Based on the submittal of a reasonable, responsive, and responsible proposal, staff recommends awarding the Video Technician Agreement to Pen Media. The quoted costs for each of the three years are for up to 275 meeting hours, with any additional meeting hours billed at $90 per hour, engineering maintenance billed at $145 per hour the first year, and additional events billed separately. Staff recommends executing the attached contract with the total not-to-exceed compensation set at $35,000 annually, to 102
encompass the annual contract cost and the possibility of additional services/hours that may be needed for work such as assisting with upgrading equipment, additional meeting hours, or recording additional special events.
FISCAL IMPACT
The fiscal impact associated with the award of this agreement is for an amount not to exceed $35,000 in any of the three years of service to be provided. Funds are budgeted annually in Account No. 001-0230-411-4251 - Video Technician Contract, with cost of living adjustments as appropriate.
CITY COUNCIL VISION, MISSION, AND VALUE/PRIORITY AREA
The requested action is in alignment with principles under the "City Council Operations and Improved Community Engagement" Value/Priority Area. The key outcome is continued recording, broadcasting, and playback of City Council and Planning Commission meetings, offering transparency and access for the community.
Attachments:
Attachment 1 - Resolution
Attachment 2 - Agreement
Attachment 3 - Proposal Submitted by Pen Media Television 103
RESOLUTION NO. __________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FOSTER CITY
APPROVING AN AGREEMENT WITH PEN MEDIA FOR VIDEO TECHNICIAN SERVICES FROM MAY 1, 2022 TO APRIL 30, 2023 FOR THE INITIAL YEAR, WITH THE
OPTION TO EXTEND THE AGREEMENT FOR AN ADDITIONAL TWO YEARS IN AMOUNTS NOT TO EXCEED $35,000 IN ANY OF THE THREE YEARS
CITY OF FOSTER CITY
WHEREAS, Video Technician services ensure the recording and cablecast of City Council and Planning Commission meetings, maintenance of the FCTV Bulletin Board content and functionality, the recording and cablecast of up to four (4) additional events using the vendor's own equipment outside of the City Council Chambers, advisory input and technical troubleshooting on broadcast equipment serviceability, and other tasks associated with maintaining Foster City Television (FCTV) services; and WHEREAS, with City Council approval, staff issued a Request for Proposals and proceeded with the contractor selection process for Video Technician Services for an initial term of one year with a tentative start of May 1, 2022, with the possibility of extending the contract for additional year-long terms up to two years, at the City’s sole discretion; and WHEREAS, three service providers attended the required walk-through of facilities, and all three attendees submitted a proposal; and
WHEREAS, Pen Media submitted the lowest proposal for three years of service at rates of $24,750 in the first year, $26,125 in the second year, and $27,500 in the third year; and
WHEREAS, Pen Media’s quoted rates include up to 275 meeting hours annually; and
WHEREAS, based on the submittal of a reasonable, responsive, and responsible proposal, staff recommends awarding the Video Technician Agreement to Pen Media from May 1, 2022 to April 30, 2023 for the initial year, with the option to extend the agreement for an additional two years; and
WHEREAS, staff recommends executing the agreement with Pen Media with a not- to-exceed amount of $35,000 annually to allow for additional hours, engineering support, and recording of additional special events that may be needed; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Foster City does hereby approve the agreement dated March 21, 2022 with Pen Media for Video Technician Services from May 1, 2022 to April 30, 2023 for the initial year, with the option to extend the agreement for an additional two years in an amount not to exceed $35,000 in any of the three years, and authorizes the Mayor to execute the agreement on the City’s behalf.
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PASSED AND ADOPTED as a resolution of the City Council of the City of Foster City at the regular meeting held on the 21st day of March, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RICHA AWASTHI, MAYOR
ATTEST:
PRISCILLA SCHAUS, CITY CLERK
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VENDOR AGREEMENT FOR PRODUCTS AND/OR SERVICES
FOR
VIDEO TECHNICIAN SERVICES
This Agreement is made and entered into as of the 21st day of March, 2022 by and between the City of Foster City hereinafter called "CITY" and Pen Media LLC hereinafter called "VENDOR".
RECITALS
This Agreement is entered into with reference to the following facts and circumstances:
A. That CITY desires to engage VENDOR to provide a product and/or services to the CITY;
B. That VENDOR is specially trained, experienced and competent to perform and has agreed to provide the product and/or services to the CITY and; C. That the CITY has elected to engage VENDOR upon the terms and conditions as hereinafter set forth.
1. A. Services. The services to be performed by VENDOR under this Agreement are set forth in Exhibit A, which is, by this reference, incorporated herein and made a part hereof as though it were fully set forth herein.
Performance of the work specified in said Exhibit A is hereby made an obligation of VENDOR under this Agreement, subject to any changes that may be made subsequently hereto upon the mutual written agreement of the said parties.
Where in conflict, the terms of this Agreement supersede and prevail over any terms set forth in Exhibit A.
B. Product. The product to be supplied by VENDOR under this Agreement is set forth in Exhibit A which is, by this reference, incorporated herein and made a part hereof as though it were fully set forth herein.
Timely delivery of the product specified in said Exhibit A is hereby made an obligation of VENDOR under this Agreement, subject to any changes that may be made subsequently hereto upon the mutual written agreement of the said parties.
VENDOR’s obligation to provide the product includes but is not limited to, the provision of all labor, equipment, materials, testing and any other 106
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required work or services or costs of any type incidental to the supply of the product.
2. Term; Termination. (a) The term of this Agreement shall commence upon the date hereinabove written and shall expire upon the date enumerated in Exhibit A, delivery of the product or completion of performance of services hereunder by VENDOR, whichever date shall first occur.
(b) Notwithstanding the provisions of (a) above, CITY may with or without cause, direct VENDOR to suspend, delay or interrupt services, in whole or in part, for such periods of time as CITY may determine in its sole discretion. (c) CITY may terminate performance of the services under this Agreement in whole, or from time to time in part, for default, should VENDOR commit a material breach of this Agreement, or part thereof, and not cure such breach within ten (10) calendar days of the date of CITY’s written notice to VENDOR demanding such cure, in which case VENDOR shall be liable to CITY for all loss, cost, expense, damage and liability resulting from such breach and termination. (d) CITY may terminate performance of the services under this Agreement in whole, or from time to time in part, for convenience, whenever CITY determines that such termination is in CITY’s best interests, in which case VENDOR shall be entitled to recover its costs expended up to the termination date plus reasonable profit thereon to the termination date as this Agreement would otherwise provide, but may recover no other cost, damage or expense.
VENDOR shall continue its work throughout the course of any dispute, and VENDOR’s failure to continue work during a dispute shall be a material breach of this Agreement. (e) If VENDOR misses three confirmed meetings in any twelve-month period, CITY may immediately terminate this Agreement.
3. Compensation; Expenses; Payment. CITY shall compensate VENDOR for all products supplied or services performed by VENDOR hereunder as shown in Exhibit B attached hereto and by this reference incorporated herein.
Notwithstanding the foregoing, the combined total of compensation and reimbursement of costs payable hereunder shall not exceed the sum thirty-five thousand ($35,000) for the initial one-year term and thirty-five thousand ($35,000) for any additional term, if the City, in its sole discretion, should exercise its option to extend for either of the two renewal terms. Invoices for amounts in excess of thirty-five thousand ($35,000) shall not be paid unless additional amounts have been approved in advance of supplying the product, performing the services or incurring the costs and expenses by CITY’s City Manager (for contracts less than $50,000) or City Council (for contracts $50,000 or more) 107
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evidenced by motion duly made and carried and a written contract amendment having been executed.
Compensation and reimbursement of costs and expenses hereunder shall be payable upon VENDOR meeting contract milestones as defined in Exhibit B. Billing shall include an itemized statement, briefly describing by task and labor category or cost/expense items billed.
4. Additional Services. In the event CITY desires the delivery of additional products or performance of additional services not otherwise included within Exhibit A, such products or services shall be authorized in advance by CITY’s City Manager (for contracts less than $50,000) or City Council (for contracts $50,000 or more) by motion duly made and carried. Such amendment to this Agreement shall include a description of the product to be delivered or services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefor, the time of performance thereof, and such other matters as the parties deem appropriate. Except to the extent modified by written amendment, all other terms and conditions of this Agreement shall be deemed incorporated in each such amendment.
5. Records. VENDOR shall keep and maintain accurate records of products delivered or of all time expended in performing services and costs and expenses incurred relating thereto. Said records shall be available to CITY for review and copying during regular business hours at VENDOR’s place of business or as otherwise agreed upon by the parties.
6. Authorization. This Agreement becomes effective when endorsed by both parties in the space provided below.
7. Documents. All documents, plans, drawings, renderings, and other papers, or copies thereof, as finally rendered, prepared by VENDOR pursuant to the terms of this Agreement, shall, upon preparation and delivery to CITY, become the property of CITY
8. Relationship of Parties. VENDOR is an independent Contractor and does not act as CITY’s agent in any capacity, whatsoever. VENDOR is not entitled to any benefits that CITY provides to CITY employees, including, without limitation, worker’s compensation benefits or payments, pension benefits, health benefits or insurance benefits. Terms within this Agreement regarding direction apply to and concern the result of the VENDOR’s provision of Services, not the means, methods, or scheduling of the VENDOR’s work. VENDOR shall be solely responsible for the means, methods, techniques, sequences and procedures with respect to its provision of Services under this Agreement. VENDOR shall pay all 108
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payroll taxes imposed by any governmental entity and shall pay all other taxes not specifically identified in this Agreement as CITY’s responsibility.
9. Schedule. VENDOR shall adhere to the schedule set forth in Exhibit A; provided, that CITY shall grant reasonable extensions of time for the delivery of products or performance of services occasioned by governmental reviews of VENDOR’s work product or other unavoidable delays; provided, further, that such unavoidable delay shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, VENDOR’s officers or employees.
VENDOR acknowledges the importance to CITY of timely delivery of products or services and agrees to put forth its best professional efforts to perform in a manner consistent with that schedule.
10. Force Majeure. Except for defaults of subconsultants at any tier, VENDOR shall not be liable for any excess costs if the failure to perform the Agreement arises from causes beyond the control and without the fault or negligence of VENDOR, including without limitation failure to reasonably mitigate any adverse impacts (Force Majeure). Force Majeure events include the following:
Acts of God, fires, floods, earthquake, other natural disasters, epidemics and pandemics (other than COVID-19 or variants), abnormal weather conditions beyond the parameters otherwise set forth in this Article, nuclear accidents, strikes, lockouts, freight embargos, interruptions in service by a regulated utility, or governmental statutes or regulations enacted or imposed after the fact (together, “force majeure events”).
Any Force Majeure event with a duration in excess of sixty days entitles either party to terminate this Agreement with written notice to the other party, without further penalty or compensation.
11. VENDOR’s Liability for Injury to Persons or Damage to Property. a. VENDOR shall be liable for damages arising out of injury to the person and/or damage to City property, City employees, persons designated by City for training, or any other person(s) other than VENDOR’s agents or employees, designated by City for any purpose prior to, during, or subsequent to delivery, installation, acceptance, and use of the Products either at VENDOR’s site or at City’s place of business, provided that the injury or damage was caused by VENDOR’s fault or negligence.
b. VENDOR shall not be liable for damages arising out of or caused by an alteration or an attachment not made or installed by VENDOR, or for damage to alterations or attachments that may 109
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result from the normal operation and maintenance of the Products in accordance with the Agreement.
12. Indemnity. To the fullest extent allowed by law, VENDOR hereby agrees to defend, indemnify, and save harmless CITY and Estero Municipal Improvement District, its Council, boards, commissions, officers, employees, directors, volunteers and agents, from and against any and all claims, suits, actions liability, loss, damage, expense, injury (including, without limitation, economic harm, injury to or death of any person, including an employee of VENDOR or its Subcontractors), cost (including, without limitation, costs and fees of litigation) of every nature, kind or description, at law or equity, which may be brought against, or suffered or sustained by, CITY or Estero Municipal Improvement District, its Council, boards, commissions, officers, employees, directors, volunteers or agents that arise out of, pertain to, or relate to any negligence, recklessness, or willful misconduct of VENDOR, any Subcontractor, anyone directly or indirectly employed or retained by them, or anyone that they control. In the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the VENDOR shall meet and confer with other parties regarding unpaid defense costs.
The duty of VENDOR to indemnify and save harmless, as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code; provided, however, that nothing herein contained shall be construed to require VENDOR to indemnify CITY and Estero Municipal Improvement District, its Council, boards, commissions, officers, employees and agents against any responsibility or liability in contravention of Section 2782 of the California Civil Code.
VENDOR’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law.
The defense and indemnification obligations of this agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained within this Agreement.
13. Patent, Copyright and Trade Secret Indemnity.
a. VENDOR shall hold City, its officers, agents and employees, harmless from liability of any nature or kind, including costs and expenses, for infringement or use of any copyrighted or uncopyrighted composition, secret process, patented or
unpatented invention, article or appliance furnished or used in connection with the Agreement.
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b. VENDOR may be required to furnish a bond to City against any and all loss, damage, costs, expenses, claims and liability for patent, copyright and trade secret infringement.
c. VENDOR, at its own expense, shall defend any action brought against City to the extent that such action is based upon a claim that the Products supplied by VENDOR or the operation of such Products pursuant to a current version of VENDOR supplied operating software infringes a patent or copyright or violates a trade secret. VENDOR shall pay those costs and damages finally awarded against City in any such action. Such defense and payment shall be conditioned on the following:
i. That VENDOR shall be notified within a reasonable time in writing by City of any notice of such claim; and
ii. That VENDOR shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise, provided, however, that when principles of
government or public law are involved, City shall have the option to participate in such action at its own expense.
d. Should the Products, or the operation thereof, become, or in VENDOR’s opinion are likely to become, the subject of a claim of infringement of a patent or copyright or a trade secret, City shall permit VENDOR at its option and expense either to procure for City the right to continue using the Products, or to replace or modify the same so that they become non infringing. If none of these options can reasonably be taken, or if the use of such Products by City shall be prevented by injunction, VENDOR agrees to take back such Products and make every reasonable effort to assist City in procuring substitute Products. If, in the sole opinion of City, the return of such infringing Products makes the retention of other Products acquired from VENDOR under the Agreement
impractical, City shall then have the option of terminating the Agreement, or applicable portions thereof, without penalty or termination charge. VENDOR agrees to take back such Products and refund any sums City has paid VENDOR less any reasonable amount for use or damage.
e. VENDOR shall have no liability to City under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon.
i. The combination or utilization of Products furnished hereunder with equipment or devices not made or furnished by VENDOR; or
ii. The operation of equipment furnished by VENDOR under the control of any operating software other than, or in addition to, the current version of VENDOR supplied
operating software; or
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iii. The modification by City of the equipment of software furnished hereunder; or
iv. The combination or utilization of software furnished hereunder with non-VENDOR supplied software.
f. VENDOR certifies that it has appropriate systems and controls in place to ensure that City funds will not be used in the performance of the Agreement for the acquisition, operation or maintenance of computer software in violation of copyright laws.
14. Insurance. Prior to execution of this Agreement, VENDOR shall furnish to CITY Certificates of Insurance showing satisfactory proof that it maintains the insurance required by this Agreement as set forth in EXHIBIT D, Insurance, which are attached and made a part of this Agreement.
VENDOR shall maintain all required insurance throughout the term of this Agreement and as otherwise provided in EXHIBIT D. In the event VENDOR fails to maintain any required insurance, and notwithstanding Paragraph 3 above, CITY may (but is not obligated to) purchase such insurance and deduct or retain premium amounts from any sums due VENDOR under this Agreement (or VENDOR shall promptly reimburse CITY for such expense).
VENDOR shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following completion of this project or service. In the event VENDOR fails to obtain or maintain completed operations coverage as required by this Agreement, the CITY at its sole discretion may purchase the coverage required and the cost will be paid by VENDOR.
15. WORKERS' COMPENSATION. VENDOR certifies that he is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that Code, and VENDOR certifies that he will comply with such provisions before commencing the performance of the work of this agreement.
16. NON-DISCRIMINATION. The VENDOR will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The VENDOR will take affirmative action to ensure that applicants are employed and the employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following:
employment, advancement, demotion, transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The VENDOR shall at all times be in compliance with the requirements of the Federal Americans With Disabilities Act (Public Law 101-336) which 112
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prohibits discrimination on the basis of disability by public entities. The VENDOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause.
17. Notice. All notices required by this Agreement shall be given to the CITY and VENDOR in writing, by first class mail, postage prepaid, addressed as follows:
CITY: City of Foster City
610 Foster City Boulevard
Foster City, CA 94404-2299
Attention: Priscilla Schaus
VENDOR: Bridget Michelsen
CEO Pen Media
[email protected]
650-619-2699
18. Non-Assignment. This Agreement is not assignable either in whole or in part.
19. Substitutions. VENDOR may not substitute any Products or Services without City’s advance written consent. VENDOR shall not use any specification in lieu of those contained in the Agreement without City’s advance written consent.
20. Warranty. Unless otherwise specified, the warranties contained in the Agreement begin after acceptance has occurred.
a. VENDOR warrants that all Products and Services furnished hereunder will conform to the requirements of the Agreement (including all descriptions, specifications and drawings made a part hereof). All Products will be merchantable, fit for their intended purposes, free from all defects in materials and workmanship and to the extent not manufactured pursuant to detailed designs furnished by City, free from defects in design. No approval of designs, specifications or other Services furnished by VENDOR shall relieve VENDOR of its obligations under this warranty. b. All warranties, including special warranties specified elsewhere herein, shall inure to City, its successors and assigns, and any users of the Products or Services.
21. Transportation Costs and Other Fees or Expenses. No charge for delivery, drayage, express, parcel post, packing, cartage, insurance, license fees, permits, cost of bonds, or for any other purpose will be paid 113
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by City unless expressly authorized by and itemized in the Agreement.
Unless otherwise directed by City in writing, all Products and components thereof shall be delivered f.o.b. Point of Delivery. VENDOR shall select the means and methods of transportation.
22. Inspection, Acceptance and Rejection.
a. VENDOR and its subcontractors shall provide and maintain a quality assurance system acceptable to City covering Products and Services under the Agreement and will tender to City only Products that have been inspected and found to conform to all requirements.
VENDOR will keep records evidencing inspections and their result, and will make these records available to City during the Agreement performance and for three years after final payment. VENDOR shall permit City to review procedures, practices, processes and related documents to determine the acceptability of VENDOR’s quality assurance system or other business practices related to performance of the Agreement.
b. All Products may be subject to inspection and test by City or its authorized representatives.
c. VENDOR and its subcontractors shall provide all reasonable facilities for the safety and convenience of inspectors at no additional cost to City. VENDOR shall furnish to inspectors all information and data as may be reasonably required to perform their inspection.
d. All Products may be subject to final inspection, test and acceptance by City, notwithstanding any payment or other inspection. e. City shall give written notice of rejection of Products delivered or Services performed within a reasonable time after receipt of such Products or performance of such Services. Such notice of rejection will state the respects in which the items do not substantially conform to their specifications. If City does not provide such notice of rejection within thirty (30) days of delivery, unless otherwise specified in the Agreement, such Products and Services will be deemed to have been accepted. Acceptance shall not be
construed to waive any warranty rights that City might have at law or by express reservation in the Agreement with respect to any nonconformity, or any other rights provided by law.
23. Compliance With Statutes and Regulations. VENDOR covenants that in the performance of the Agreement it will comply with all applicable statutes, rules, regulations and orders of the United States, the State and City, and shall defend, indemnify and hold the City harmless against any loss, cost, damage or liability by reason of VENDOR’s violation of this provision.
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24. National Labor Relations Board Certification. VENDOR swears under penalty of perjury that no more than one final, unappealable finding of contempt of court by a federal court has been issued against VENDOR within the immediately preceding two-year period because of VENDOR’s failure to comply with an order of the National Labor Relations Board.
25. Covenant Against Gratuities. VENDOR warrants that no gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by VENDOR, or any agent or representative of VENDOR, to any officer or employee of City with a view toward securing the Agreement or securing favorable treatment with respect to any determinations concerning the performance of the Agreement. For breach or violation of this warranty, City shall have the right to terminate the Agreement, either in whole or in part, and any loss or damage sustained by City in procuring on the open market any items which VENDOR agreed to supply shall be borne and paid for by VENDOR. The rights and remedies of City provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or in equity.
26. Amendments. This Agreement may be amended or modified only by written agreement signed by both parties.
27. Validity. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
28. Governing Law. This Agreement shall be deemed to have been executed in the County of San Mateo, California. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California, excluding its conflict of laws rules. Any suit or action initiated by either party shall be brought in the County of San Mateo, California unless the parties agree otherwise in a written amendment to this Agreement. In the event of litigation between the parties hereto to enforce any provision of the Agreement, the unsuccessful party will pay the reasonable attorney’s fees and expenses of litigation of the successful party.
29. Mediation. Should any dispute arise out of this Agreement, the parties shall meet in mediation and attempt to reach a resolution with the assistance of a mutually acceptable mediator. Neither party shall be permitted to file legal action without first meeting in mediation and making a good faith attempt to reach a mediated resolution. The costs of the mediator, if any, shall be paid equally by the parties. If a mediated settlement is reached neither party shall be deemed the prevailing party for purposes of the settlement and each party shall bear its own legal costs.
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30. Conflict of Interest. VENDOR represents and warrants that it presently has no interest, and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of work and services required under this Agreement. Without limitation, VENDOR represents to and agrees with CITY that VENDOR has disclosed any potential conflict of interest, and will have no future conflict of interest, in providing CITY services hereunder, including but not limited to, any interest (financial, share ownership, shared management, shared directors, or reporting responsibilities) VENDOR may presently have, or will have in the future, with respect to any other person or entity (including but not limited to potential VENDORs, consultants, contractors, or regulatory agency) which may have an interest in the subject matter of the Services.
31. Submission of Bid. Pursuant to Government Code Sections 4552, 4553, and 4554, the following provisions are incorporated herein. a. In submitting a bid to City, VENDOR offers and agrees that if the bid is accepted, it will assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. 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 products, material, or services by the VENDOR for sale to City pursuant to the solicitation. Such assignment shall be made and become effective at the time City tenders final payment to the VENDOR.
b. If City receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from City any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by City as part of the bid price, less the expenses incurred in obtaining that portion of the recovery.
c. Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and i. The assignee has not been injured thereby, or
ii. The assignee declines to file a court action for the cause of action.
32. Confidentiality. Any information, whether proprietary or not, made known to or discovered by VENDOR during the performance of or in connection with the Agreement for City, will be kept confidential and not be disclosed 116
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to any other person. VENDOR will immediately notify City in writing if it is requested to disclose any information made known to or discovered by during the performance of or in connection with the Agreement. These confidentiality provisions and limitations shall remain fully effective indefinitely after VENDOR’s completion of the Agreement.
33. Waiver of Default. Waiver of any default by either party to this Agreement shall not be deemed to be waiver of any subsequent default. Waiver or breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach, and shall not be construed to be a modification of the terms of this Agreement unless this Agreement is modified as provided below.
34. Entire Agreement. This Agreement, including Exhibits A, B C, D, E and F, comprises the entire Agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first above written by their respective officers duly authorized in that behalf.
CITY OF FOSTER CITY
Dated: _________________________________ Richa Awasthi, Mayor
ATTEST:
Dated: ________________________________ Priscilla Schaus, City Clerk
APPROVED AS TO FORM
Dated:
Benjamin Stock, City Attorney
VENDOR
Dated:
Bridget Michelsen, CEO
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EXHIBIT A
SCOPE OF WORK and SCHEDULE
FOR
Video Technician Services
For a base contract and additional hours as requested by CITY, at rates outlined in Exhibit B, provide:
1. Guaranteed staffing to record, cablecast, and schedule for playback for up to 75 live meetings per year using CITY equipment. Vendor is responsible to subscribe to CITY’s email lists to receive meeting agendas and cancellation notices. Call time for each meeting is minimum one hour prior to meeting start time. Provide two DVD copies of all meetings for CITY use.
2. Guaranteed staffing to record, cablecast, and schedule for playback up to 10- 15 Special Meetings requested by CITY to be held in the City Council Chambers. Call time for each meeting is minimum one hour prior to meeting start time.
3. Based upon information received from CITY, create, upload, and maintain current Bulletin Board content and ensure that Bulletin Board is functioning properly. CITY currently utilizes PowerPoint, Keynote, and iTunes for this function. Vendor shall prepare and air the slides within a maximum of two (2) business days.
4. Assist staff with annual evaluation of Foster City Television audio/visual and broadcasting equipment as part of the annual budget process.
5. Process requests from the public for copies of DVDs. This service shall be charged directly to the requesting individual/agency and shall not be included in CITY’s contract cost.
6. Assist City staff with troubleshooting equipment and broadcast issues.
7. Regularly monitor functionality of all equipment needed to broadcast meetings, including broadcast equipment, lights, cameras, and microphones.
Advise or assist with selection of new equipment as needed.
8. Monitor supplies needed for meeting production and request resupply from City staff in a timely manner.
9. Provide equipment on a loan basis, if available, and include any applicable charges, if any. For example, if CITY equipment malfunctions, provide spare equipment if available, or if additional wireless mics are needed for a meeting, provide wireless mics if available.
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10.Respond to other broadcast/recording requests by CITY on a best-efforts basis, including, to the extent possible, making staff available to report to CITY when requested following the activation of the Emergency Operations Center to support the dissemination of public information.
11.Regularly monitor channel remotely, advise CITY of broadcast issues.
12.As requested by CITY, provide and schedule shared programming approved by the CITY.
13.The initial contract term will be for one year, beginning May 1, 2022 and ending April 30, 2023. At the City’s sole discretion, the contract may be extended for additional year-long terms up to two years, through April 30, 2025.
14.Vendor is expected to shadow the City’s current vendor for one month to become familiar with the current procedures and to allow for a smooth transition of the services to Vendor.
2.4. Additional Terms and Conditions
1. Staffing
Vendor shall endeavor to provide consistency in meeting staffing, but it is ultimately Vendor’s responsibility to ensure that staffing is available for all regularly scheduled meetings and other agreed upon meetings and that staff assigned to work under the contract are trained in effectively using CITY equipment and capably staffing CITY meetings. Vendor shall provide emergency contact information to ensure ability of CITY to reach Vendor staff urgently.
Missing three confirmed meetings in any twelve-month period is grounds for immediate termination of contract at the discretion of CITY.
CITY shall provide a single point of contact for regular communication with Vendor and shall provide emergency contact information for use by Vendor staff in the event regular contact is unavailable.
The selection of staff to perform work under this contract must be acceptable to the CITY; such acceptance shall not be unreasonably withheld. Vendor shall immediately assign new staff when regularly scheduled staff are deemed unacceptable by CITY.
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CITY will provide Vendor with access to CITY Council Chambers and FCTV control room. CITY’s Information Technology Division will work with Vendor to set up remote access to playback server and Bulletin Board if requested.
2. Reporting
Vendor shall provide reports on hours actually worked. Reports should be submitted at the time invoices are submitted.
3. Special Events
CITY, may from time to time, request from Vendor additional coverage, including livestreaming, recoding, and on-demand playback, for special events, such as Community Dialogue Series, Town Hall Meetings, and similar events, which take place at the Recreation Center, Community Center, or comparable venues outside of the Council Chambers and are not regular or special meetings that fall within the 275 meeting hours described in Exhibit B (“Special Event”). The CITY and Vendor must agree upon the day and time for the Special Event and Vendor will be paid the special event rate to provide services at the Special Event. Price will be agreed upon in writing by the Parties prior to services for Special Events being rendered.
4. Licenses
Vendor will be required to ensure it has all necessary permits and licenses to conduct the services and shall agree to comply with all applicable laws in performing the services.
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EXHIBIT B
VENDOR’S FEES and PAYMENT MILESTONES
Summary
Total Contract Services
May 2022 - April 2023 - $24,750 + Maintenance work as needed 275 meeting hours per year Includes city council, planning commission, special meetings taking place in the council chambers, and updates for the channel / guide.
Additional hours at $90/ hour
Engineering maintenance at $145/hour
May 2023 - April 2024 - $26,125 + Maintenance work as needed 275 meeting hours per year Includes city council, planning commission, special meetings taking place in the council chambers, and updates for the channel / guide.
Additional hours at $95/ hour
Engineering maintenance at $155/hour
May 2024 - April 2025 - $27,500 + Maintenance work as needed 275 meeting hours per year Includes city council, planning commission, special meetings taking place in the council chambers, and updates for the channel / guide.
Additional hours at $100/ hour
Engineering maintenance at $165/hour
Itemized Additional Fees
Special Meetings outside Council Chambers
Cost varies depending on scope of event.
Cost start at $1,500 include
o2-hour event
o1 Camera
oAudio feed
oRecord/ Live Stream
Additional audio support for special meetings
$500 per event for use of Pen Media audio equipment.
Set up time to be billed at Engineering Rate.
Event time to be billed against meeting hours.
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Special video projects
Average range - $1,500 - $2,500+
Price to be determined by scope of project.
Minimum Fees
A three-hour minimum shall apply to all meetings staffed under this contract or actual time if more than three hours. The minimum shall include set-up/preparation and post- meeting production time. Time is rounded up to the next half hour.
A one hour minimum shall apply to engineering work done. Time is rounded up to the next half hour.
CITY shall incur a three-hour minimum charge for meeting cancellation with less than seventy-two (72) hours’ prior notice. The charge shall be detailed in the monthly report/invoice for payment by CITY.
Project Payment Schedule
Within 30 days of the start of each quarter and after receipt of a valid invoice, CITY will pay quarterly installments equal to one quarter of the Base Contract cost.
In the event that the agreement for services is terminated by either party for any reason, any balance due by any party shall be due within 45 days of contract termination. Base Contract costs shall be prorated based on the effective date of termination. Vendor shall be responsible to provide a detailed report of contract work hours upon request to facilitate the calculation of prorated costs.
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EXHIBIT C
ADDITIONAL TERMS and CONDITIONS
CITY shall provide at least 3 days advance notice of any special meeting to be covered that is not on the posted schedule. Meeting notice may be made by telephone, electronic mail, text message, in person or by any other means deemed acceptable by both
parties. If such 5-‐day advance notice is not given, VENDOR shall make every reasonable attempt to cover such meeting, but it is not required to do so. 124
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EXHIBIT D
INSURANCE
VENDOR shall provide, in addition to the Certificates of Insurance, original Endorsement affecting the coverages specified in herein on the attached form. No substitute form will be accepted.
This is an Exhibit to, and made a part of and incorporated by reference to the Agreement dated Date of Agreement, by and between Vendor Name, hereinafter referred to as "Vendor”, and the City of Foster City, hereinafter referred to as "City", providing for professional services.
1.Vendor's Duty to Show Proof of Insurance. Vendor, in order to protect City and its Council members, officials, agents, officers, and employees against all claims and liability for death, injury, loss and damage as a result of Vendor's acts, errors, or omissions in connection with the performance of Vendor's obligations, as required in this Agreement, shall secure and maintain insurance as described below. Vendor shall not perform any work under this Agreement until Vendor has obtained all insurance required under this section and the required certificates of insurance and all required endorsements have been filed with the City's authorized insurance representative, insurance Tracking Services Inc. (ITS).
Receipt of evidence of insurance that does not comply with all applicable insurance requirements shall not constitute a waiver of the insurance requirements set forth herein. The required documents must be signed by the authorized representative of the insurance company shown on the certificate. Upon request, Vendor shall supply proof that such person is an authorized representative thereof, and is authorized to bind the named underwriter(s) and their company to the coverage, limits and termination provisions shown thereon, Vendor shall promptly deliver to ITS a certificate of insurance, and all required endorsements, with respect to each renewal policy, as necessary to demonstrate the maintenance of the required insurance coverage for the term specified herein. Such certificates and endorsements shall be delivered to ITS prior to the expiration date of any policy and bear a notation evidencing payment of the premium thereof if so requested. Vendor shall immediately pay any deductibles and self-insured retentions under all required insurance policies upon the submission of any claim by Vendor or City as an additional insured.
1.1 Insurance Requirements
Commercial General Liability Insurance
Commercial General Liability Insurance including, but not limited to, Contractual Liability Insurance (specifically concerning the indemnity provisions of this Agreement with the City ), Products-Completed Operations Hazard, liability for slander, false arrest and invasion of privacy arising out of professional services rendered hereunder, Personal Injury (including bodily injury and death), and Property Damage for liability arising out of Vendor's performance of services under this Agreement. The Commercial General Liability insurance shall contain no exclusions or limitation for independent contractors working on the behalf of the named insured. Vendor shall maintain the Products-Completed Operations Hazard coverage for the longest period allowed by law following termination of this Agreement. The amount of said insurance coverage required by this Agreement shall be the policy limits, which shall be at least five million dollars ($5,000,000) each occurrence and five million dollars ($5,000,000) aggregate.
*Please note, the City will require a separate additional insured endorsement for the Commercial General Liability policy, listing the “City of Foster City, its Council members, officials, agents, officers, and employees”.
[FOR THE FOLLOWING INSURANCE REQUIREMENTS, PLEASE CONSIDER IF EACH IS APPROPRIATE FOR THE SERVICE TO BE PROVIDED AND FOR THE VENDOR. UNCHECK THE CHECKBOX FOR ANY INSURANCE REQUIREMENT THAT IS NOT APPLICABLE.
PLEASE CONTACT THE CITY MANAGER’S OFFICE WITH ANY QUESTIONS.] 125
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☒ Business Automobile Liability Insurance
Automobile Liability Insurance against claims of Personal Injury (including bodily injury and death) and Property Damage covering any vehicle and/or all owned, leased, hired and non- owned vehicles used in the performance of Services pursuant to this Agreement with coverage equal to the policy limits, which shall be at least two million dollars ($2,000,000) each occurrence.
☒ Workers' Compensation Insurance
VENDOR shall submit written proof that VENDOR is insured against liability for workers' compensation in accordance with the provisions of section 3700 of the California Labor Code.
VENDOR shall require any Subcontractors to provide workers' compensation for all of the Subcontractors' employees, unless the Subcontractors' employees are covered by the insurance afforded by VENDOR. If any class of employees engaged in work or services performed under this Agreement is not covered by California Labor Code section 3700, VENDOR shall provide and/or require each Subcontractor to provide adequate insurance for the coverage of employees not otherwise covered. Vendor shall also maintain employer's liability insurance with limits of one million dollars ($1,000,000) for bodily injury or disease. ☒ Professional Liability Insurance
Professional Liability (Errors and Omissions) Insurance, for liability arising out of, or in connection with, all negligent acts, errors or omissions in connection with services to be provided under this Agreement, with no exclusion for claims of one insured against another insured, with coverage equal to the policy limits, which shall not be less than five million dollars ($5,000,000) per occurrence and five million dollars ($5,000,000) aggregate.
1.2 Self-Insured Retention
Any self-insured retentions in excess of $100,000 must be declared on the Certificate of insurance or other documentation provided to City and must be approved by the City Risk Manager.
1.3 Claims-Made Basis Coverage
If any of the insurance coverages required under this Agreement is written on a claims-made basis, Vendor, at Vendor's option, shall either (i) maintain said coverage for at least five (5) years following the termination of this Agreement with coverage extending back to the effective date of this Agreement; (ii) purchase an extended reporting period of not less than five (5) years following the termination of this Agreement; or (iii) acquire a full prior acts provision on any renewal or replacement policy.
2.City as Additional Insured
On Vendor's Commercial General Liability and Automobile policies, the City, its Council members, officers, directors, agents, employees, and volunteers, shall be named as additional insured's, but only with respect to liability arising out of the activities of the named insured. Any endorsement shall be provided using one of the following three options: (i) on ISO form CG 20 10 1 1 85; or (ii) on ISO form CG 20 37 10 01 plus either ISO form CG 20 10 10 01 or CG 20 33 10 01; or (iii) on such other forms which provide coverage at least equal to or better than form CG 20 10 1 1 85.
3.Insurance terms and conditions:
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3.1 Cancellation of Insurance
The above stated insurance coverages required to be maintained by Vendor shall be maintained until the completion of all of Vendor's obligations under this Agreement except as otherwise indicated herein. Each insurance policy supplied by Vendor shall not be suspended, voided, cancelled or reduced in coverage or in limits except after ten (10) days written notice by Vendor in the case of non-payment of premiums, or thirty (30) days written notice in all other cases. This notice requirement does not waive the insurance requirements stated herein. Vendor shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non-renewed, or whose policy limits have been exhausted or upon insolvency of the insurer that issued the policy.
3.2 All insurance shall be issued by a company or companies admitted to do business in California and listed in the current "Best's Key Rating Guide" publication with a minimum rating of A-; VII Any exception to these requirements must be approved by the City Risk Manager.
3.3 If Vendor is, or becomes during the term of this Agreement, self-insured or a member of a self-insurance pool, Vendor shall provide coverage equivalent to the insurance coverages and endorsements required above. The City will not accept such coverage unless the City determines, in its sole discretion and by written acceptance, that the coverage proposed to be provided by Vendor is equivalent to the above-required coverages.
3.4 For any claims related to the Agreement, the Vendor’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City , its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City , its officers, officials, employees, or volunteers shall be excess of the Vendor’s insurance and shall not contribute with it.
3.5 Insurance coverages in the minimum amounts set forth herein shall not be construed to relieve Vendor for any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall it preclude the City from taking such other actions as are available to it under any other provision of this Agreement or otherwise in law.
3.6 Failure by Vendor to maintain all such insurance in effect at all times required by this Agreement shall be a material breach of this Agreement by Vendor. City , at its sole option, may terminate this Agreement and obtain damages from Vendor resulting from said breach.
Alternatively, City may purchase such required insurance coverage, and without further notice to Vendor, City shall deduct from sums due to Vendor any premiums and associated costs advanced or paid by City for such insurance. If the balance of monies obligated to Vendor pursuant to this Agreement are insufficient to reimburse City for the premiums and any associated costs, Vendor agrees to reimburse City for the premiums and pay for all costs associated with the purchase of said insurance. Any failure by City to take this alternative action shall not relieve Vendor of its obligation to obtain and maintain the insurance coverages required by this Agreement.
3.7 Should any of the required insurance (other than errors and omissions insurance) be provided under a form of coverage that includes a general annual aggregate limit or provides that claims investigation or legal defenses costs be included in such general aggregate limit, such general annual aggregate limit shall be double the occurrence or claims limit specified above.
3.8 City may (but is under no obligation to) secure project-specific insurance, wrap-up insurance, or administer an owner controlled insurance program ("OCIP"), in which case Vendor and its subcontractors shall communicate this fact to their insurance carriers and request that the 127
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risk of this project be excluded from their practice policies. Vendor's fees under this Agreement (and the fee of its subcontractors under subcontractor agreements) shall be reduced by the amount of insurance premiums that may be avoided by Vendor and its subcontractors by virtue of the City's obtaining the project-specific insurance, wrap-up insurance or administering an OCIP, and the exclusion of this project from coverage of Vendor's and subcontractors policies.
Construction Manager and its subcontractors shall afford City access to their books and records and cooperate with City in verifying the amount of savings realized.
ATTACHED
1. Insurance Coverage Form
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EXHIBIT D
This INSURANCE COVERAGE FORM modifies or documents insurance provided under the following:
Named Insured: Effective Work Date(s):
Description of Work/Locations/Vehicles:
ADDITIONAL INSURED: City of Foster City/Estero Municipal Improvement District (CITY) 610 Foster City Boulevard, Foster City, CA 94404
Attention: _________________________________
Contract Administrator
Endorsement and Certificates of Insurance Required
The Additional Insured, its elected or appointed officers, officials, employees and volunteers are included as insureds with regard to damages and defense of claims arising from: (Check all that apply)
Insurer Policy
No.
General Liability: (a) activities performed by or on behalf of the Named Insured, (b) products and completed operations of the Named Insured, (c) premises owned, leased occupied or used by the Named Insured, and/or (d) permits issued for operations performed by the Named Insured. {Note:
MEETS OR EXCEEDS ISO Form # CG 20 10 11 85}
Auto Liability: the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Named Insured, regardless of whether liability is attributable to the Named Insured or a combination of the Named Insured and the Additional Insured, its elected or appointed officers, officials, employees or volunteers.
Other:
Certificates of Insurance Required (no endorsement needed) (Check all that apply) Insurer Policy No.
Workers Compensation: work performed by employees of the Named Insured while those employees are engaged in work under the simultaneous directions and control of the Named Insured and the Additional Insured.
Professional Liability:
PRIMARY/NON-CONTRIBUTORY: This insurance is primary and is not additional to or contributing with any other insurance carried by or for the benefit of Additional Insureds.
SEVERABILITY OF INTEREST: The insurance afforded by this policy applies separately to each insured who is seeking coverage or against whom a claim is made or a suit is brought, except with respect to the insurer’s limit of liability.
PROVISIONS REGARDING THE INSURED'S DUTIES AFTER ACCIDENT OR LOSS: Any failure to comply with reporting provisions of the policy shall not affect coverage provided to the Additional Insured, its elected or appointed officers, officials, employees, or volunteers.
CANCELLATION NOTICE. The insurance afforded by this policy shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days' prior written notice (ten (10) days if canceled due to non-payment) by regular mail return receipt requested has been given to the Additional Insured. Such notice shall be addressed as shown above.
WAIVER OF SUBROGATION: The insurer(s) named above agree to waive all rights of subrogation against the CITY, its elected or appointed officers, officials, agents, volunteers and employees for losses paid under the terms of this policy which arise from work performed by the Named Insured for the CITY.
Nothing herein contained shall vary, alter or extend any provision or condition of the Policy other than as above stated.
SIGNATURE OF INSURER OR AUTHORIZED REPRESENTATIVE OF THE INSURER I, ___________________________________________________________(print/type name), warrant that I have authority to bind the above-named insurance company and by my signature hereon do so bind this company.
SIGNATURE OF AUTHORIZED REPRESENTATIVE (original signature required) 129
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ORGANIZATION: TITLE:
ADDRESS:
TELEPHONE: ( ) DATE ISSUED:
130
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EXHIBIT E
SPECIAL TERMS and CONDITIONS
None
131
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EXHIBIT F
COVID-19 AMENDMENT/ATTACHMENT
(Vendor Agreement Form)
This COVID-19 Amendment/Attachment amends the Agreement between The City of Foster City (“City”) and Pen Media LLC (“Vendor”) dated March 21, 2022.
1. Definitions
A. The 2019 novel coronavirus and the disease it causes are collectively referred to herein as “COVID-19”.
B. A “COVID-19 Condition” is something attributable to COVID-19 not caused by the Vendor (which for purposes herein includes all subcontractors) and beyond its reasonable control including but not limited to COVID-19 Proclamations and supply chain disruptions due to COVID-19, and other circumstances concerning COVID-19 not caused by the Vendor and which are beyond its reasonable control.
C. A “COVID-19 Proclamation” includes but is not limited to orders, directives and guidance concerning COVID-19 that have been issued, and which may be issued from time to time, by public agencies or regulatory bodies, the CDC or OSHA or Cal/OSHA, including without limitation the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards. Vendor acknowledges that those orders, directives and guidance may require the Project to shut down or otherwise increase the Vendor’s cost or time of performance by calling for things such as social distancing and the use of personal protective equipment. In the event of conflicting COVID-19 Proclamations, the Vendor shall follow the most applicable, restrictive and newest COVID-19 Proclamations.
D. An “Unknown COVID-19 Condition” is a COVID-19 Condition the Vendor did not know about, and reasonably should not have known about, as of the date the Vendor submitted its proposal. The requirements contained in COVID-19 Proclamations issued before submission of a proposal are not Unknown COVID-19 Conditions, and the Vendor will be deemed to have knowledge of those requirements.
E. An “Unknown COVID-19 Cost” is a cost that: (i) is solely attributable to an Unknown COVID-19 Condition; (ii) is reasonable and unavoidable under the circumstances; (iii) is not the result of the Vendor’s failure to comply with the contract documents or a COVID-19 Proclamation; and (iv) is not the result of a subcontractors failure to comply with a COVID-19 Proclamation in connection with the performance of the Services.
2. COVID-19 Conditions and Proposal. Vendor is expected to know and is deemed to have known about COVID-19 Conditions when it submits its proposal, and COVID-19 Conditions must be accounted for in the Vendor’s price and schedule. In order to be 132
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entitled to any relief from a COVID-19 Condition, the Vendor must demonstrate that the issue, cost or delay is due to an Unknown COVID-19 Condition.
3. Compliance with COVID-19 Proclamations.
A. Vendor shall comply with COVID-19 Proclamations in the performance of the Services, irrespective of when the COVID-19 Proclamations are issued, and as they pertains to performance of the Services. The cost of such compliance is non- compensable, except as otherwise expressly stated herein.
B. Vendor is responsible to ensure that its subcontractors and suppliers comply with COVID-19 Proclamations at all times in connection with the performance of their Services.
4. Delay. The Vendor is entitled to a reasonable time extension for an Unknown COVID-19 Condition. Such time extension is non-compensable.
5. City Directed Suspension. The City may suspend Services due to COVID-19 health concerns, even though the Vendor may be allowed to proceed with the Services based on COVID-19 Proclamations. The City may suspend the Services for its convenience. The Vendor is entitled to a time extension for a City Directed Suspension, and the contract amount will be equitably adjusted if and to the extent Vendor incurs increased costs that are Unknown COVID-19 Costs.
6. Compensation for COVID-19 Costs. City will reimburse the Vendor for Unknown COVID-19 Costs which are not included in the schedule of values.
7. Safe Work Practices. Vendor shall implement safe work practices recommended by CDC or OSHA or Cal/OSHA, which may include, inter alia, screening all employees, subcontractors, or others (“worker(s)”) at all locations where Services are performed for signs and symptoms of COVID-19; adopting staggered work schedules, e.g., providing alternating workdays or extra shifts, to reduce the total number of employees on a site at any given time and to ensure physical distancing; identifying choke points where workers are forced to stand together, such as hallways and elevators, ingress and egress points, break areas, and buses, and implement policies to maintain social distancing; coordinating deliveries in line with the employer's minimal contact and cleaning protocols; and instituting a rigorous housekeeping program to reduce dust levels at all exterior locations. Vendor remains fully responsible for following and complying with changes to recommended safe work practices from time to time.
8. Monitoring and Reporting. City may require the Vendor to actively monitor the health of its workers through temperature checks and questionnaires of major COVID- 19 symptoms, including but not limited to cough, fever above 100.4 degrees Fahrenheit and shortness of breath. Vendor shall immediately report to City any outbreaks of COVID-19 among its workers. The Vendor shall not knowingly allow any worker who has tested positive with COVID-19 to enter a City building. In the event of an outbreak 133
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or an exposure to COVID-19, the City may impose appropriate mitigation strategies which may be in consultation with the public health officer.
9. Conflicts. In the event of an inconsistency between this COVID-19 Amendment and the Agreement, this Addendum shall control.
IN WITNESS WHEREOF, the City and Vendor have executed this Covid-19 Amendment as of the date set forth above.
VENDOR: CITY:
________________________ ____________________________
Signature Signature
________________________ ______________________________ Bridget Michelson, CEO Richa Awasthi, Mayor
134
City of Foster City February 2022
610 Foster City Blvd, Foster City, 94404
Dear City of Foster City,
Pen Media LLC is located in Foster City, California. We are new company name, but we are some of the same people you have come to know and work with from PenTV. Our professional experience in the production business will ensure your quality of service will be kept to the high standards you have come to expect.
Pen Media is dedicated to help fill the gap that PenTV left behind upon their closing. Pen Media is a full-service production company. We are ready to help you with any of your media needs from; live streaming, live events, production, editing and more.
Our qualified staff are familiar faces to you. Bridget Michelsen, former Executive Director of PenTV is the CEO of Pen Media. Rocky Robinson head engineer from PenTV is the CTO.
Shuli Chen is dedicated to continuing as your technician.
Because of our extensive experience and past relationship, we believe we are uniquely and ideally suited to provide video coverage of your meetings.
Thank you for your time and consideration for this work.
Sincerely,
Bridget Michelsen
Pen Media
CEO
[email protected]
c. 650-619-2699
ATTACHMENT 3
135
PEN MEDIA for Foster City Meeting Video Coverage February 24, 2022 Request for Proposals – Video Technician Services 10 Section 3 3. Proposal Submittal Requirements Below are all the items that must be submitted by the Vendor. Any vendor who fails to include responses to the following requirements shall be deemed non-responsive. 3.2. Requirement A - General 3.2.1. Description of the service that will be provided for each Core Contract Scope of Work category Pen Media will provide an operator to record and operate all required equipment for the listed city council and planning commission meetings along with any special meetings requested. 3.2.2. Notice required by Vendor to guarantee coverage or service completion (for instance, guaranteed staffing of special meetings or turnaround time for Bulletin Board slides) Pen Media will guarantee a staff person will attend all meetings on the schedule provided by the city. Pen Media can update the bulletin board slides within one business day of a request in most cases. CITY shall provide at 5 days advance notice of any special meeting to be covered that is not on the posted schedule. Meeting notice may be made by telephone, electronic mail, text message, in person or by any other means deemed acceptable by both parties. If such 5-day advance notice is not given, PenTV shall make every reasonable attempt to cover such meeting, but it is not required to do so. 3.2.3. Cancellation requirements / penalty (if any) for late notice CITY shall incur a three-hour minimum charge for meeting cancellation with less than seventy-two (72) hours’ prior notice. The charge shall be detailed in the monthly report/invoice for payment by City. 136
3.2.4. Completed Fee Schedule, including fees for current and future years of a possible three-year contract, if the term is extended by City May 2022 - April 2023 - $24,750 + Maintenance work May 2023 - April 2024 - $26,125 + Maintenance work May 2024 - April 2025 - $27,500 + Maintenance work 3.2.5. Disclosure of any minimum charges A three-hour minimum shall apply to all meetings staffed under this contract or actual time if more than three hours. The minimum shall include set-up/preparation and post-meeting production time. Time is rounded up to the next half hour. A one hour minimum shall apply to engineering work done. Time is rounded up to the next half hour. 3.2.6. Complete contact information for questions related to the proposal Bridget Michelsen CEO Pen Media [email protected] 650-619-2699 3.2.7. Three (3) professional references See Attached 3.2.8. Signed copy of Terms and Conditions/Acknowledgement 3.3. Requirement B - Pricing Sheet 3.3.1. Base price for meeting coverage, including fees for current and future years of a three-year contract. Including coverage and services as provided in Section 2.2, Meetings, Section 2.3 Core Contract Scope of Work A: Meeting Coverage: 275 meeting hours per year Includes city council, planning commission, special meetings taking place in the council chambers, and updates for the channel / guide. May 2022 - April 2023 - $24,750 additional hours at $90/ hour May 2023 - April 2024 - $26,125 additional hours at $95 / hour May 2024 - April 2025 - $27,500 additional hours at $100 / hour 137
B: Engineering Maintenance Maintenance work on the production system by Pen Media Engineer. 1 hour minimum. 2022 - Engineering Maintenance @ $145 Hour. 2023 - Engineering Maintenance @ $155 Hour. 2023 - Engineering Maintenance @ $165 Hour. C. Special Meetings outside Council Chambers Cost varies depending on scope of event. Cost start at $1,500 include 2-hour event 1 Camera Audio feed Record/ Live Stream 3.3.2. Price per Special Event, (see item 3, Section 2.4 Additional Terms and Conditions). Additional audio support for special meetings – $500 per event for use of Pen Media audio equipment. Set up time to be billed at Engineering Rate. Event time to be billed against meeting hours. Special video projects average range - $1,500 - $2,500+ Price to be determined by scope of project. 3.3.3. Hourly cost for additional hours, as needed. Meeting Hours over 275 May 2022 - April 2023 - additional hours at $90 May 2023 - April 2024 - additional hours at $95 May 2024 - April 2025 - additional hours at $100 3.3.4. Any other charges, such as for minimums or cancellations that do not meet a minimum notice 72 hours’ notice for meeting cancelation. If less than 72 hours are given, 3 hours will be charged. 3.3.5. Charges for a one-month shadowing period prior to the start of the contract N/A 138
3.4. Requirement C - Vendor General Information The following information must be provided for the primary Vendor and for any of the Vendor’s partners or subcontractors: • _Vendor Name Pen Media • _Primary Vendor (Y/N) Yes • _Local Address 722 Ranger Circle Foster City • _Location of Headquarters 722 Ranger Circle Foster City • _Number of years in the business <1 • _Number of overall employees 6 • _Number of local employees 6 • _Has the company had a workforce reduction in the last five years (Y/N)? No • _Have you provided service to a municipal organization, and if so, which one(s) and for how long? San Carlos, Redwood City, South San Francisco We hold all three contracts as Pen Media. Previously held by PenTV. 3.5. Requirement D Response to Section 2 Functional Requirements • _Verify that Vendor can meet all requirements in Section 2 Yes, Pen Media can meet all the requirements in Section 2 139
Pen Media References 1. California State Assemblyman, Kevin Mullen Co-host of PenTV show The Game Supporter to Pen Media 2. Go2 Foundation for Lung Cancer (previously - Bonnie J. Addario Lung Cancer Foundation) Danielle Hicks Senior Director Patient Services Office: 650-598-2857 Mobile: 650-670-4065 Record and live stream monthly support group meetings “Living Room”. This is a remote production using PenTV equipment. 3. Meet the Drapers Sarika Batra 312-953-4328 Production of Television Show. 4. Crystal Mui, CMC San Carlos City Clerk 650-802-4219 San Carlos City Council and Planning Commission Meetings 140
City of Foster City
January 19, 2022
REQUEST FOR PROPOSALS
Video Technician Services
2022–1-19
141
Request for Proposals – Video Technician Services
2 January 19, 2022
The City of Foster City is seeking proposals to provide Video Technician Services to record and cablecast City Council meetings and Planning Commission meetings, to maintain Foster City Television (FCTV) Bulletin Board content and functionality, to record and cablecast additional meetings in the City Council Chambers as requested, provide advisory input and technical troubleshooting on broadcast equipment serviceability, and other tasks associated with maintaining FCTV services.
The City invites you to submit a proposal to furnish services in accordance with the terms, conditions and specifications contained in this document.
Please note that interested vendors are required to attend a walk-through of the facilities and meeting with City staff in order to qualify to submit a proposal in accordance with the attached Request for Proposal. The meeting/walk-through is scheduled for Wednesday, February 9, 2022, at 2:00 PM in the City Council Chambers, 620 Foster City Boulevard, Foster City, CA.
Please RSVP your intent to attend this walk-through by contacting Communications Director/City Clerk Priscilla Schaus at 650-286-3253 or [email protected].
Please complete the proposal form as instructed below and return it to the specified e -mail address by the due date. No extensions to the deadline will be allowed. All responses must be e-mailed to:
TO: Priscilla Schaus
[email protected]
Due Date: Thursday, February 24, 2022 (5 PM)
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Request for Proposals – Video Technician Services
3 This Request for Proposal includes the following Sections:
TERMS AND CONDITIONS
Section 1 Introduction / Background
Section 2 Project Services
Section 3 RFP Submittal Requirements
Section 4 Vendor Evaluation Process
TERMS AND CONDITIONS
DATE DUE: Wednesday, February 24, 2022 (5 PM)
1. QUESTIONS: Questions are to be submitted by any vendor to Communications Director/City Clerk Priscilla Schaus via e-mail at [email protected]. All responses to questions/clarifications will be posted on the City’s website as addendums and any vendor who has provided an e-mail will be notified via -email of the posting. Vendors are required to provide an e-mail address to which we may send responses.
2. REPLY FORMAT: The Vendor’s proposal, including a signed acknowledgment of the terms and conditions herein, including all attachments, must be returned by the due date. Vendors are required to clearly identify any limitations or exceptions to the requirements defined in this RFP. Alternative approaches will be given consideration if the approach clearly offers increased benefit to the City. The City is not responsible for non -receipt or misdelivery and it is proposing vendor 's responsibility to ensure the City receives all communication, including the proposal . The City’s e- mail system does not allow attachments larger than 5MB.
3. DEADLINES TIME ZONE: All listed times are in the Pacific Time Zone.
4. RESPONSIVENESS AND SELECTION PROCESS: The City will select a proposal based on a combination of criteria, including: total cost (including ongoing operating cost s); responsiveness to this RFP; reputation of the Vendor in delivering similar services, quality and completeness of the proposal; Vendor's ability to perform in a timely fashion; and the City’s perception of Vendor’s stability within the industry.
The City reserves the right to reject any and all proposals or to waive any minor errors, discrepancies, or irregularities in the selected proposal. The selection will be at the discretion of the City and may be made in any manner that best meets the needs of the City .
5. FIRM PRICES: All quotes shall be held firm for a minimum of ninety (90) days after the proposal due date to allow adequate time for the City to consider each proposal and make an award. All blanks for unit price and total price shall be completed. All prices shall include sales tax where applicable. Any charges for boxing, packing, crating, cartage, handling, insurance, unloading, inside delivery, and any other related charges shall be included in the bid price provided on the Bid Form. Any discrepancy between the unit price and the extended or total price shall be determined by taking the lower price. Upon receipt of this proposal by the City, the Vendor shall be presumed to be thoroughly familiar with all aspects of this work. The failure or omission to examine any location, equipment, form, instrument or document shall in no way relieve Vendor from any obligation with respect to this proposal.
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Request for Proposals – Video Technician Services
4 6. CANCELLATION CLAUSE: The City may terminate and cancel any purchase order or contract that results from this RFP without obligation at any time prior to receipt of the goods or services.
ACKNOWLEDGEMENT
The undersigned has read and understands the foregoing terms and conditions of this Request for Proposal and proposes to provide services to the City for the stated prices in its response in accordance with the terms and conditions set forth in this document.
VENDOR/PROPOSER:
Company Name Street Address of Company
Signature of Officer City, State, Zip
Printed Name of Officer Telephone No./Fax Nbr.
Title of Officer Federal I.D. Tax Number
Pen Media
722 Ranger Circle, Foster City, CA 94404
Foster City, CA 94404
Bridget Michelsen
650-619-2699
CEO
87-3951941
144
Request for Proposals – Video Technician Services
5 Section 1
1. Introduction / Background
The City of Foster City is seeking proposals to provide Video Technician Services to record and cablecast City Council meetings and Planning Commission meetings, to maintain the FCTV Bulletin Board content and functionality, to record and cablecast additional meetings in the City Council Chambers as requested, provide advisory input and technical troubleshooting on broadcast equipment serviceability, and other tasks associated with maintaining FCTV services.
Tentative schedule and dates:
Release RFP Wednesday, January 19, 2022
Proposer Walk-Through Wednesday, February 9, 2022 (2 PM) Vendor Written Inquiries (on or before) Monday, February 14, 2022, (5 PM) City response to Written Inquiry (on or before) Thursday, February 17, 2022, Proposals due from potential bidders Thursday, February 24, 2022 (5 PM) Reference Check TBD
Award of Contract Monday, March 21, 2022
*Tentative First City Council Meeting Monday, April 18, 2022 *Tentative First Planning Commission Meeting Thursday, April 21, 2022
Contract Negotiation
The City will enter into price negotiations with the selected Vendor. The City’s standard vendor agreement, which is attached with this RFP in Appendix A, will be used.
* Tentative dates are part of an anticipated date of initial meeting where vendor will provide services. The City anticipates period of overlap between existing vendor and vendor awarded contract to allow the Video Technician to learn the current procedures.
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6 Section 2
2. Project Services
2.1 Description of Live Meeting Broadcast Equipment/Environment
The Council Chambers has a well-equipped control room where live City Council and Planning Commission meetings are cablecast and recorded. All live meetings are typically overseen by one (1) Video Technician. This Video Technician has remote control over five (5) high- definition cameras to capture all of the proceedings inside the Council Chambers – four (4) pan/tilt/zoom cameras plus one (1) ceiling mounted adjustable-zoom document camera. The Video Technician also has the capability of monitoring and controlling eleven (11) fixed microphones and up to six (6) wireless microphones. The Video Technician coordinates A/V needs for the meeting participants using the Crestron Control system, as well as directs the video switching and monitors audio levels for broadcast and recording. The primary video equipment currently used for live meeting recordings consists of:
• A Newtek Tricaster 410 video production switcher
• A Blackmagic Design Smart Videohub 20x20 6G-SDI matrix switcher • A Panasonic AW-RP50N remote camera controller
• Softron On The Air Manager playback scheduling software • And a Crestron Room Control System, along with various other support equipment.
The Video Technician must also be familiar with Mac and PC operating systems and be able to update Photoshop graphics and Word documents in preparation for live broadcasts.
The Community Bulletin Board system consists of a PowerPoint presentation played back in Keynote software on an iMac, with an iTunes music playlist for background audio.
Playback of station programming is controlled through the Softron On The Air software running on an iMac in the video production suite. The Video Technician will be responsible for scheduling the playback of recorded meetings and any other City-requested scheduled video playback through this software. This server will be made accessible remotely to the selected Video Technician through remote-desktop software of the City’s choosing.
Currently the City is conducting Zoom/in-person hybrid meetings. Zoom hybrid meetings are made possible by an Extron MediaPort 200 device that pushes the Tricaster video/audio mix to Zoom as a single panelist and pulls in the Zoom audio/video as a source on the Tricaster.
Staff or consultants can make PowerPoint presentations to Council via Zoom, and the public can also watch the meeting on Zoom and participate during the public comment portion of the meetings (by raising their hands and being “allowed to talk” by the Zoom host) .
A member of the City’s IT staff has been setting up the Zoom hybrid portion of the meetings, and IT staff has been acting as Zoom host for the meetings. The Video Technician would not be expected to set up or configure any Zoom functions. The Video Technician’s main responsibilities for hybrid meetings are: switching between room cameras and Zoom video to follow the active speaker, making sure Zoom video is being shown on the room projector/dais monitors when a presentation is active, and making sure 2-way audio to Zoom is functional.
2.2. Meetings
Vendor shall provide Video Technician Services to Record, Cablecast, and Schedule for playback for up to 75 live meetings per year. These meetings would be as follows:
• City Council Regular Meetings: 1
st and 3rd Monday of the month at 6:30 PM
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7 o City Council budget study sessions are scheduled in addition to regular meetings: typically one each in February and March, and two in May o Meetings that fall on holidays are scheduled for the next business day (Tuesday)
o Special meetings may be scheduled as needed
• Planning Commission Regular Meetings: 1st and 3rd Thursday of each month at 7 PM
• Planning Commission Study Sessions (held as needed): 1st and 3rd Tuesday of each month at 7 PM
o Special meetings may be scheduled as needed
For reference, the meetings held, and meeting hours required in the last several fiscal years are identified below. These figures are supplied only for reference. The City makes no representation as to the total number of meetings or meeting hours anticipated, and proposals shall not assume either a specific number of meetings or meeting hours.
Fiscal Year 2017-2018:
• City Council scheduled/special meetings: 27 held, 2 cancelled • Planning Commission meetings/study sessions: 16 held, 29 cancelled • Estimated total meeting hours: 252.5
Fiscal Year 2018-2019:
• City Council scheduled/special meetings: 29 held, 2 cancelled • Planning Commission meetings/study sessions: 20 held, 28 cancelled • Estimate total meeting hours: 208.5
Fiscal Year 2019-2020:
• City Council scheduled/special meetings: 40 held, 1 cancelled • Planning Commission meetings/study sessions: 25 held, 22 cancelled • Estimated total meeting hours: 217
Fiscal Year 2020-2021:
• City Council scheduled/special meetings: 50 held, 3 cancelled • Planning Commission meetings/study sessions: 12 held, 25 cancelled • Estimated total meeting hours: 254
2.3. Core Contract Scope of Work
The Scope of Work will be as follows:
1. Guaranteed staffing to record, cablecast, and schedule for playback for up to 75 live meetings per year using CITY equipment. Vendor is responsible to subscribe to CITY’s email lists to receive meeting agendas and cancellation notices. Call time for each meeting is minimum one hour prior to meeting start time. Provide two DVD copies of all meetings for CITY use.
2. Guaranteed staffing to record, cablecast, and schedule for playback up to 10-15 Special Meetings requested by CITY to be held in the City Council Chambers. Call time for each meeting is minimum one hour prior to meeting start time.
3. Based upon information received from CITY, create, upload, and maintain current Bulletin Board content and ensure that Bulletin Board is functioning properly. CITY 147
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8 currently utilizes PowerPoint, Keynote, and iTunes for this function. Vendor shall prepare and air the slides within a maximum of two (2) business days.
4. Assist staff with annual evaluation of Foster City Television audio/visual and broadcasting equipment as part of the annual budget process.
5. Process requests from the public for copies of DVDs. This service shall be charged directly to the requesting individual/agency and shall not be included in CITY’s contract cost.
6. Assist City staff with troubleshooting equipment and broadcast issues.
7. Regularly monitor functionality of all equipment needed to broadcast meetings, including broadcast equipment, lights, cameras, and microphones. Advise or assist with selection of new equipment as needed.
8. Monitor supplies needed for meeting production and request resupply from City staff in a timely manner.
9. Provide equipment on a loan basis, if available, and include any applicable charges, if any. For example, if CITY equipment malfunctions, provide spare equipment if available, or if additional wireless mics are needed for a meeting, provide wireless mics if available.1
10. Respond to other broadcast/recording requests by CITY on a best-efforts basis, including, to the extent possible, making staff available to report to CITY when requested following the activation of the Emergency Operations Center to support the dissemination of public information.
11. Regularly monitor channel remotely, advise CITY of broadcast issues.
12. As requested by CITY, provide and schedule shared programming approved by the CITY.
13. The initial contract term will be for one year, beginning April/May 2022 and ending April/May 2023. At the City’s sole discretion, the contract may be extended for additional year-long terms up to two years, through April/May 2025.
14. Vendor is expected to shadow the City’s current vendor for one month to become familiar with the current procedures and to allow for a smooth transition of the services to Vendor.
2 2.4. Additional Terms and Conditions
1. Staffing
Vendor shall endeavor to provide consistency in meeting staffing, but it is ultimately Vendor’s responsibility to ensure that staffing is available for all regularly scheduled meetings and other agreed upon meetings and that staff assigned to work under the contract are trained in effectively using CITY equipment and capably staffing CITY
1 If vendor has equipment that can be loaned, provide a list of equipment as part of the response to this RFP.
2 The Vendor should include a separate line item in its proposal pricing to complete this shadowing period.
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9 meetings. Vendor shall provide emergency contact information to ensure ability of CITY to reach Vendor staff urgently.
Missing three confirmed meetings in any twelve-month period is grounds for immediate termination of contract at the discretion of CITY.
CITY shall provide a single point of contact for regular communication with Vendor and shall provide emergency contact information for use by Vendor staff in the event regular contact is unavailable.
The selection of staff to perform work under this contract must be acceptable to the CITY; such acceptance shall not be unreasonably withheld. Vendor shall immediately assign new staff when regularly scheduled staff are deemed unacceptable by CITY.
CITY will provide Vendor with access to CITY Council Chambers and FCTV control room. CITY’s Information Technology Division will work with Vendor to set up remote access to playback server and Bulletin Board if requested.
2. Reporting
Vendor shall provide reports on hours actually worked. Reports should be submitted once per month, within 10 days of the end of the month.
3. Special Events
Provide coverage, including livestreaming, recoding, and on-demand playback, at special events, such as Community Dialogue Series, Town Hall Meetings, and similar events, which take place at the Recreation Center, Community Center, or comparable venues outside of the Council Chambers which shall be agreed upon by CITY and Vendor and identified as part of the contract.
4. Contract
Vendor will be required to enter into an agreement with CITY’s template Agreement for Vendor Services, which is attached to this RFP.
5. Licenses
Vendor will be required to ensure it has all necessary permits and licenses to conduct the services and shall agree to comply with all applicable laws in performing the services.
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10 Section 3
3. Proposal Submittal Requirements
Below are all the items that must be submitted by the Vendor. Any vendor who fails to include responses to the following requirements shall be deemed non-responsive.
3.2. Requirement A - General
3.2.1. Description of the service that will be provided for each Core Contract Scope of Work category
3.2.2. Notice required by Vendor to guarantee coverage or service completion (for instance, guaranteed staffing of special meetings or turnaround time for Bulletin Board slides)
3.2.3. Cancellation requirements / penalty (if any) for late notice
3.2.4. Completed Fee Schedule, including fees for current and future years of a possible three-year contract, if the term is extended by City
3.2.5. Disclosure of any minimum charges
3.2.6. Complete contact information for questions related to the proposal
3.2.7. Three (3) professional references
3.2.8. Signed copy of Terms and Conditions/Acknowledgement
3.3. Requirement B - Pricing Sheet
3.3.1. Base price for meeting coverage, including fees for current and future years of a three year contract billed annually. Including coverage and services as provided in Section 2.2, Meetings, Section 2.3 Core Contract Scope of Work
3.3.2. Price per Special Event, (see item 3, Section 2.4 Additional Terms and Conditions).
3.3.3. Hourly cost for additional hours, as needed.
3.3.4. Any other charges, such as for minimums or cancellations that do not meet a minimum notice
3.3.5. Charges for a one-month shadowing period prior to the start of the contract
3.4. Requirement C - Vendor General Information
The following information must be provided for the primary Vendor and for any of the Vendor’s partners or subcontractors:
• Vendor Name
• Primary Vendor (Y/N)
• Local Address
• Location of Headquarters
• Number of years in the business
• Number of overall employees
• Number of local employees
• Has the company had a workforce reduction in the last five years (Y/N)? • Have you provided service to a municipal organization, and if so, which one(s) and for how long?
3.5. Requirement D
Response to Section 2 Functional Requirements
• Verify that Vendor can meet all requirements in Section 2
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11 Section 4
4. Vendor Evaluation Process
4.1. Selection/Evaluation Criteria for RFP Proposals
All items included in Section 3 – Proposal Submittal Requirements, including the overall price proposed, will be evaluated when reviewing proposals.
4.1.1. Project Specific Evaluation
RFP Format Response Section
The vendor shall respond to all the areas listed in Section 3. The vendor shall describe how their proposal will meet the services identified in this document.
4.2. Vendor Evaluation
4.2.1. Walk-Through of Facilities
The mandatory walk-through is scheduled for Wednesday, February 9, 2022, at 2:00 PM in the City Council Chambers, 620 Foster City Boulevard, Foster City, CA. Vendor may request to attend the walk through virtually. Walk-Through attendance (in person or virtual) will be considered in the evaluation process. If Vendor attends in person, Vendor will need to follow City’s procedures relating to COVID-19, including face coverings.
4.2.2. Reference Check
The reference check will consist of phone and/or email inquiries to an agency or agencies that is a current or past customer of vendor – either provided by vendor for reference or contacted independently by Foster City. All customers will be asked the same initial questions. Follow-up and clarifying questions will be asked based on responses provided. The reference check section will also include Financial background check of the vendor to determine the past, current and future financial condition of the company. If the company is publicly traded on any internationally recognized stock exchange, provide the company’s stock symbol.
Listed below are key subject areas the City will be using to assist in the technical evaluation phase.
1) Functional Requirements
2) General Requirements
3) Ability to deliver on contract scope of work
4) Cost
Please use Section 3 Proposal Submittal Requirements on page 10 as a checklist when preparing the submittal proposal.
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DATE: March 21, 2022
TO: Mayor and Members of the City Council
VIA: Kevin Miller, Interim City Manager
FROM: Louis Sun, Public Works Director
Allen Smith, Public Works Maintenance Manager
SUBJECT: ISSUANCE OF A REQUEST FOR PROPOSAL FOR SIDEWALK REPAIR AND REPLACEMENT (2022-2024)
RECOMMENDATION
It is recommended that the City Council adopt the attached resolution authorizing staff to issue a Request for Proposal for Sidewalk Repair and Replacement (2022-2024).
EXECUTIVE SUMMARY
For the repair and replacement of sidewalks, curbs and gutters, installation of curb ramps, and other miscellaneous concrete work throughout the city, it is necessary to issue a Request for Proposal (RFP) to seek a contractor for the required services. The proposed agreement would be for a two-year duration.
BACKGROUND
The City’s Comprehensive Sidewalk Maintenance Program, which has been in effect since May 3, 2010, establishes guidelines for addressing all aspects of sidewalk repair in compliance with the provisions of the following governing documents:
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California Streets and Highways Code Sections 5600-5630 (the Code), which states that it is the property owners’ responsibility to maintain the sidewalks located adjacent to their properties
Foster City Municipal Code Chapter 11.08, which details the property owners’ liabilities for injuries or damages suffered by members of the public using sidewalks that are not maintained
The program consists of the following two City policies:
1. Public Sidewalk Maintenance Policy (Resolution No. 2010-3, Approved on January 4, 2010): This policy focuses on the manner in which the City will repair and maintain sidewalks that are located adjacent to publicly owned properties, such as City buildings and parks. It addresses sidewalk repair elements, such as inspection frequency, criteria for mitigation action, and determination of responsibility for repairs.
2. Private Sidewalk Maintenance Policy (Resolution No. 2017-58, Approved on July 17, 2017): This policy outlines the methods by which the City notifies private property owners of their responsibilities for maintaining the sidewalks located adjacent to their properties, including notification and inspection, enforcement of the sidewalk repair notices, and determination of whether the responsibilities for the repairs are public or private. If property owners do not complete the repairs within a specified timeframe, the City assumes the right to perform the repairs and assess the costs of the repairs to the owners.
In addition to sidewalk maintenance, the City utilizes an on-call concrete contractor for the repair and replacement of curbs and gutters, installation of curb ramps, and other miscellaneous concrete work throughout the City on an on-going basis. The City has contracted for sidewalk maintenance and installation services for over 10 years. Due to the ability to bundle many locations together and effectively mobilize, the cost per square foot is competitive, the work can be completed with a speed and accuracy that minimizes the impact on residents, and City staff can be better utilized to focus on other maintenance issues.
In January 2020, the City issued an RFP for an on-call concrete contractor.
Only one proposal was received, which was three times the previous cost.
Staff rejected the proposal and staff time has been utilized for the most pressing maintenance needs.
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ANALYSIS
The attached RFP enables the City to seek a contractor to repair and replace sidewalks in an expeditious and cost effective manner in accordance with the Sidewalk Policy, to minimize trip and fall hazards and maintain the quality and appearance of the City’s sidewalks.
Cost will be one of the key proposal evaluation criteria, but proposal prices alone will not be the sole determining factor in selecting a contractor for this work. The contractors’ qualifications and references will be additional factors in the evaluation of proposals.
The RFP calls for a two-year agreement. By requesting proposals from qualified contractors every two years, it ensures that the City is paying competitive prices for materials and services. The contract start date will be determined based upon approval of the agreement by the City Council, but is likely to be July 1, 2022.
FISCAL IMPACT
There is no cost to issue the Request for Proposal. Funding for the Sidewalk Program is recommended in the Street Operating Budget for Fiscal Year 2022-2023. Staff may make additional funding recommendations based upon the proposals that are received.
CITY COUNCIL VISION, MISSION, AND VALUE/PRIORITY AREAS
Active management of the Sidewalk Replacement and Repair program is in alignment with the City Council’s adopted Vision and Mission statements. This item is related to the “Facilities and Infrastructure” Value/Priority Area. The key outcome is to minimize trip and fall hazards and maintain the quality and appearance of the City’s sidewalks.
Attachments:
Attachment 1 - Resolution
Attachment 2 - Request for Proposal
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RESOLUTION NO. __________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FOSTER CITY
AUTHORIZING THE ISSUANCE OF A REQUEST FOR PROPOSAL FOR SIDEWALK REPAIR AND REPLACEMENT PROJECT (2022-2024)
CITY OF FOSTER CITY
WHEREAS, the City’s Public and Private Sidewalk Maintenance Policies constitute its Comprehensive Sidewalk Maintenance Program, which has been in existence since May 3, 2010; and
WHEREAS, the program fulfills an important role, by enabling the City to perform the necessary repairs and replacements of sidewalk, curb and gutter, and curb ramps in an expeditious and cost effective manner, as a way to minimize the incidents of trip-and- fall hazards and maintain the quality and appearance of the City’s sidewalks; and WHEREAS, the City relies upon on-call contractors to provide concrete work for the Sidewalk Repair/Replacement Program and for the repair and replacement of curbs and gutters, installation of curb ramps, and other miscellaneous concrete work throughout the City; and
WHEREAS, the Request for Proposal for Sidewalk Repair and Replacement (2022-2024) has been prepared and is ready to be issued.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Foster City does hereby authorize the issuance of a Request for Proposal for Sidewalk Repair and Replacement (2020-2022).
PASSED AND ADOPTED as a Resolution of the City Council of the City of Foster City at the regular meeting held March 21, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
____________________________________
RICHA AWASTHI, MAYOR
ATTEST:
________________________________
PRISCILLA SCHAUS, CITY CLERK
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Title Page 0
Sidewalk Repair & Replacement (2022-2024)
Attachment 2
City of Foster City
Foster City, California
REQUEST FOR PROPOSAL
SIDEWALK REPAIR &
REPLACEMENT (2022-2024)
PROPOSAL DUE: day, April 12, 2022 by 3:00 P.M.
SUBMIT PROPOSAL TO:
City of Foster City
Department of Public Works
610 Foster City Boulevard
Foster City, CA 94404
Attn: Greg Baeza
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Title Page 1
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Table of Contents 2
Sidewalk Repair & Replacement (2022-2024)
TABLE OF CONTENTS
PROPOSAL REQUIREMENTS
PART 1 SCOPE OF WORK
PART 2 INSTRUCTIONS TO CONTRACTORS (00 2115)
PART 3 PROPOSAL SCHEDULE (00 4115)
PART 4 NON-COLLUSION AFFIDAVIT (00 4519)
PART 5 CONTRACTOR’S CERTIFICATIONS (00 4545)
PART 6 CONTRACTOR’S REGISTRATION FORM (00 4325)
PART 7 CONTRACTOR’S QUALIFICATIONS & REFERENCES
CONTRACT
DIVISION 0 - CONTRACT REQUIREMENTS
00 5105 Notice of Award
00 5205 Construction Services Agreement, including:
Appendix A Scope of Work
Appendix B General Conditions
Appendix C Insurance
Appendix D Construction Performance Bond
Appendix E Construction Labor and Materials Payment Bond Appendix F Supplemental Conditions
DIVISION 1 - GENERAL AND TECHNICAL REQUIREMENTS
01010 Summary of Work
01025 Measurement and Payment
01500 Construction Facilities and Temporary Controls
01570 Traffic Control
01580 Construction Methods
Standard Details and Attachments
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Part 1 – SCOPE OF WORK 1
Sidewalk Repair & Replacement (2022-2024)
PART 1
SCOPE OF WORK
1-1 Scope of Work
A. The work consists of furnishing all labor, materials, equipment and services necessary to complete the removal and replacement of concrete sidewalks, curbs and gutters, driveways, curb ramps, curb inlets, asphalt concrete pavement tie-in, and miscellaneous concrete repairs as may be requested within the City of Foster City on an as needed basis during the term of the contract. All work shall include necessary traffic control. The locations of work will be throughout the City. Concrete replacement shall be completed within thirty (30) calendar days from commencement of work. Work shall commence within fourteen (14 calendar days) of notification by the City.
B. The City reserves the right to add or delete any identified work. All work performed shall be measured and paid based on the contract unit prices identified in the proposal schedule. The unit prices shall not be subject to change based on the addition or deletion of work.
1-2 Location and Description of Work
The work to be performed, in general, consists of removing and replacing damaged sections of existing concrete sidewalk, curb, gutter, curb ramp, and driveway; repairing sections of failed asphalt concrete pavement; and replacement of curb inlets and concrete repair of adjacent sidewalk flags. The work shall include traffic control, saw cutting, excavation, backfilling, compaction; installation of root barriers, patching asphalt conforms adjacent to new gutters, and clearing and grubbing. Locations of work will be throughout the City of Foster City.
To provide guidance to the proposers in preparing the proposal schedule, the type of work expected to be performed is as follows:
A. Project Areas:
The City will issue work orders to the Contractor to perform repair/replacement of sections of sidewalk or lengths of curb or gutter, or perform other concrete repairs as listed in Part 3—Proposal Schedule at one or more locations during the term of the contract. While there will be no minimum quantities for work the City will use its best efforts to ensure that the work order contains no less than one thousand (1000) square feet of sidewalk, two hundred (200) linear feet of curb and gutter, or four (4) curb ramps. The City will also use its best efforts to group work so that a minimum length of curb and gutter to be replaced would be five (5) lineal feet and sidewalk would be 25 square feet. The quantities may not be continuous sections. Instead, they may be the sum total of small sections on various streets.
All work performed shall be measured and paid for based on the contract unit prices listed in Part 3 - Proposal Schedule.
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1-3 Duration of Contract
The Sidewalk Repair & Replacement (2020-2022) will be for a contract period of two (2) years. The contract start date will be determined after approval of the agreement by the Foster City City Council. The target date for Council approval is May 2, 2022. 1-4 Conditions
A. In submitting a proposal for this project, the Contractor acknowledges that they are familiar with all conditions and requirements included herein.
B. The Contractor shall be responsible for ensuring that all work performed on this project is in strict compliance with the applicable Codes, regulations, and project requirements.
C. The Contractor shall obtain and pay for all permits, licenses and any other related fees required for this work. The Contractor shall possess and maintain a current State of California Class "A" license and a City of Foster City Business License throughout the duration of the contract.
D. The Contractor shall maintain insurance provisions as required in the contract. 1-5 General
A. Contractor shall assign and identify one person that the City can contact regarding the work throughout construction.
B. Contractor shall be responsible for jobsite security, safety, and cleanliness and shall properly barricade, secure, and delineate all areas from the time work begins until the work is complete and the areas are opened for use.
C. Any excavated areas shall not be left open over the weekend. All significant phases of concrete work must be completed within the same week (Monday to Friday) as they are started. Debris cannot be stored on site and must be removed promptly. See Traffic Control section.
D. Contractor’s activities shall be limited to the hours between 8:00 AM and 4:00 PM Monday through Friday on all streets except Boulevards. Work hours shall be limited to 9:00 AM to 3:30 PM on all Boulevards. The Contractor shall not start, operate, move or work on any equipment prior to 8:00 AM. Deviation from these hours will not be permitted without prior written approval from the City, except in the event of emergencies involving immediate hazard to persons or property.
E. The Contractor shall have thirty (30) calendar days from the date of commencement of work to complete all work. Work shall commence within fourteen (14) calendar days of notification by the City. 1-6 Award
City of Foster City reserves the right to award this project to the Contractor it considers most suitable to perform the work. The City will consider the proposal costs for all items identified together with the Contractor’s qualifications and references to form the basis for 161
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its decision. The award will be based, in part, on the lowest proposal schedule total; however, proposal price alone will not be the sole determining factor in the selection of the Contractor for this work.
It should be noted that the estimated quantities are for proposal purposes only and are not to be construed as actual quantities. The City reserves the right to increase or decrease the quantity of any item or delete items as may be deemed necessary without voiding the contract.
The City reserves the right to reject any or all proposals, and to waive any irregularities in the proposals received.
1-7 Changes in Work
The City shall have the right to make changes to the plans and/or specifications and the Contractor shall perform the work as changed.
No adjustment to the unit price for any item in the Proposal Schedule shall be made in the event more repair locations are added or deleted from the scheduled maintenance program.
Increase or decrease in quantities due to differences between the proposal quantities for any item and the actual constructed quantities as measured in the field shall not be considered as change in the scope of work.
See Section 1.5 CHANGES in Appendix F of the Contract Services Agreement. 1-8 Order of Work
Concrete repairs will be required throughout the City of Foster City.
A. Project Areas:
Work be issued to the Contractor as a Work Order on an as-needed basis during the two year contract period. Each Work Order will identify the location and type of work to be performed, the effective date for commencement of work, specific work item quantities and the Work Order amount based on the unit prices listed in the Contractor’s Proposal Schedule. The Contractor shall complete any given work order within thirty (30) calendar days of the commencement of work. Work shall commence within fourteen (14) calendars days of notification by the City.
The City does not guarantee a minimum number of Work Orders issued or the dollar amount of work to be performed.
1-9 Compensation
A. Invoicing Requirements
Payment for all work items shall be paid as identified in the Proposal Schedule.
Invoices shall be submitted for payment on a monthly basis when the work for that month is completed.
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Progress payments shall itemize and account for the costs and quantities of work based on each location of work. See Section 1.05—CHANGES in Appendix F of the Contract Services Agreement. Partial payments, except the final payment, shall not be made for periods of less than one month.
B. Cost of Living Adjustment
At the end of the first year of the contract period, the unit rates in the proposal may, upon Contractor request or evaluation by the City, be increased or decreased in direct proportion to the increase or decrease in the Consumer Price Index (CPI) for the past year (June to June). The CPI shall be the San Francisco/Oakland Consumer Price Index for all urban wage earners. The Contractor shall submit to the City a revised unit price schedule and supporting CPI information for any requested changes. 1-10 Wages Paid to Contractor’s Workers
Pursuant to California Labor Code Article 2, Wages, Section 1770 et seq., the work described herein is a “public work” as defined by this Article of the Labor Code and requires payment of prevailing wages pursuant to Labor Code Section 1771. 1-11 Liquidated Damages
Once work is started on any given work order, work must be completed within thirty (30) calendar days. For each calendar day in excess of the time specified for completion of the work, the Contractor shall pay to the City, or have withheld from monies due, the sum of $ 100.00 (One Hundred and 00/100 Dollars) per calendar day until the work is complete. $100 per calendar day in liquidated damages will also be assessed for each calendar day exceeding seven (7) calendar days between removal and replacement of concrete in any location.
For all work, once the City notifies the contractor, work must commence within fourteen (14) calendar days. For each calendar day in excess of the time specified for commencement of work, the Contractor shall pay to the City, or have withheld from monies due, the sum of $ 50.00 (Fifty and 00/100 Dollars) per calendar day until the work is commenced.
1-12 Process
The City will perform an evaluation of each project location with the Contractor prior to the Contractor mobilizing to a particular area to perform the work. The City will place markings on the sidewalk (or other frontage improvement) to identify the limits of the work to be performed.
1-13 Notifications
The Contractor shall notify the occupants of properties affected by the work. Notification shall be by delivery of handbills to be prepared and furnished by the Contractor. Handbills shall be distributed 7 calendar days prior to the commencement of work. The handbills shall contain information regarding the work, dates and hours of the work to be clearly identified. A copy of the handbill shall be submitted to the City for review and approval 7 calendar days prior to distribution.
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1-14 Review of Contract Documents and Job Sites
The Contractor shall make field measurements, verify field conditions and shall carefully compare such field measurements and conditions with the information in the Contract Documents before commencing activities. Errors, inconsistencies or the discovery of unforeseen conditions shall be reported to the City immediately. 1-15 Inspection of the Work
A. The Contractor shall notify the City at (650) 286-8140, forty-eight (48) hours in advance of the start of work in any area.
B. All work performed and all materials furnished shall be subject to inspection and approval of the City. The Contractor shall notify the City at least 24 hours in advance of the work locations that have been exposed and requested to be inspected by the City. Contractor shall not begin concrete replacement without said inspection and approval by the City.
C. Any work performed without proper inspection will be subject to rejection. Any corrective work required due to rejected work will be performed at the Contractor’s expense. The Contractor shall furnish the City with documentation to ascertain that the materials used, methods employed, and workmanship provided is in accordance with the specifications.
D. Work not properly performed will be subject to rejection. Any work performed in unauthorized areas or in a manner unacceptable to the City may be rejected and no payment will be made for rejected work.
E. Inspection of the work does not relieve the Contractor of its obligation to fulfill the conditions of the contract.
1-16 Removal of USA Marker
It shall be the Contractor’s responsibility to remove all underground utility markings after construction is complete. The cost for removal of utility markings shall be included in various items of work and no additional compensation shall be allowed. 1-17 Permits
The Contractor shall be responsible for obtaining City Transportation and Encroachment permits and other agency permits prior to commencement of any work. Permit fees will be waived for City issued permits.
* END OF DOCUMENT *
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PART 2
INSTRUCTIONS TO CONTRACTORS
DOCUMENT 00 2115
Proposals are requested by Owner, for a general construction contract, or work described in general, as set forth by the following terms.
ARTICLE 1 - PROCEDURES FOR SUBMISSION OF PROPOSALS
1.01 Required Pre-Proposal Investigations
A. Prior to submission of Proposal, Contractor must conduct a careful examination of Proposal Documents and understand the nature and extent, and location of Work to be performed.
Contractor Questions and Answers
A. Contractors must direct all questions about the meaning or intent of Proposal Documents to Owner in writing. Interpretations or clarifications considered necessary by Owner in response to such questions will be issued by written Addenda mailed, faxed, or delivered to all parties recorded by Owner as having received Proposal Documents. Owner may not answer questions received less than 10 Days prior to the date for receiving Proposals.
B. Only questions answered by formal written Addenda will be binding. Oral and other interpretations or clarifications will be without legal effect, and Contractors shall not rely on oral statements.
Addenda
A. Addenda may also be issued to modify the Proposal Documents as deemed advisable by Owner.
Addenda shall be acknowledged by number in Document 00 4115 (Proposal Schedule) and shall be part of the Contract Documents. A complete listing of Addenda may be secured from Owner.
ARTICLE 2 - RECEIPT OF PROPOSALS
2.01 Date and Time
Proposals are due on April 12, 2022, at 3:00 pm. Contractors must submit Proposals in accordance with this Document (Instructions to Contractors).
2.02 Required Contents of Proposal – Contractors must submit ALL of the following:
A.Part 3-Proposal Schedule (00 4115)– Contractors must complete all Proposal items and supply all information required by Proposal documents.
B.Part 4-Non-Collusion Affidavit (00 4519)
C.Part 5-Contractor Certifications (00 4545)
D.Part 6-Contractor’s Registration Form (00 4325)
E. Part 7-Contractor’s Qualifications and References
ARTICLE 3 –PROPOSAL EVALUATION
3.01 Selection of Contractor
Owner will initially evaluate each proposal for responsiveness, and make a determination of the most qualified company and reasonable proposal.
Proposal price alone will not be the sole determining factor in the selection of the contractor for this work. The City will consider the proposal costs for all proposal items identified herein together with 166
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the contractor qualifications, company history, capabilities, and references to form the basis for its decision. All Contractors are required to submit Prices on all Proposal items.
Owner will evaluate the selected contractor for responsiveness and for responsibility.
3.02Evaluation of Proposals
Proposals must be full, complete, clearly written and include the required forms. Contractors shall make any change in the Proposal by crossing out the original entry, entering and initialing the new entry. Contractor’s failure to submit all required documents strictly as required entitles Owner to reject the Proposal as non-responsive. All Contractors must submit Proposals containing each of the fully executed documents supplied in this Project Manual.
In evaluating Proposals, Owner will consider Contractors’ qualifications, whether or not the Proposals comply with the prescribed requirements, unit prices, and other data, as may be requested in Part 3 – Proposal Schedule.
Owner may conduct reasonable investigations and reference checks of Contractor and other persons and organizations as Owner deems necessary to assist in the evaluation of any Proposal and to establish Contractor’s responsibility, qualifications, financial ability, and capability to perform the Work in accordance with the Contract Documents to Owner’s satisfaction within the prescribed time. Submission of a Proposal constitutes Contractor’s consent to the foregoing.
Owner shall have the right to consider information provided by sources other than Contractor.
Discrepancies between the indicated sum of any column of figures and the correct sum thereof will be resolved in favor of the correct sum.
3.03 Reservation of Rights
Owner reserves the right to:
Reject any or all nonconforming, non-responsive, unbalanced, or conditional Proposals; and To reject the Proposal of any Contractor as non-responsive as a result of any error or omission in the Proposal.
If Owner believes that it would not be in the best interest of Project to make an award to that Contractor, whether because the Proposal is not responsive, the Contractor is unqualified or of doubtful financial ability, or fails to meet any other pertinent standard or criteria established by Owner.
For purposes of this paragraph, an “unbalanced Proposal” is one having nominal prices for some Proposal items and enhanced prices for other Proposal items.
Owner may reject any or all Proposals and waive any informalities or minor irregularities in the proposals. Owner also reserves the right, in its discretion, to reject any or all Proposals and to re- issue the RFP.
3.04 Required Contractor and Subcontractor Registration A. Owner shall accept Proposals only from Contractors that (along with all Subcontractors) are currently registered and qualified to perform public work pursuant to Labor Code Section 1725.5.
B. Subject to Labor Code Sections 1771.1(c) and (d), any Proposal not complying with paragraph
3.04.A, above, shall be returned and not considered; provided that if Contractor is a joint venture (Business & Professions Code Section 7029.1) or if federal funds are involved in the Contract (Labor Code Section 1771.1(a)), Owner may accept a non-complying Proposal provided that Contractor and all Subcontractors are registered at the time of Contract award. 167
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ARTICLE 4 MANDATORY PROPOSAL PROTEST PROCEDURES
4.01 Submission of Written Proposal Protest
A. Any Proposal protest in connection with the construction contract must be submitted in writing to the City Clerk’s Office, located at 610 Foster City Boulevard, Foster City, California 94404, before 5:00 P.M. of the fifth Business Day following receipt of Proposals.
B. The initial protest document must contain a complete statement of the basis for the protest.
C. The protest must refer to the specific portion of the document that forms the basis for the protest.
D. The protest must include the name, address, and telephone number of the person representing the protesting party.
Only Contractors who the Owner otherwise determines are responsive and responsible are eligible to protest a Proposal; protests from any other Contractor will not be considered. In order to determine whether a protesting Contractor is responsive and responsible, Owner may evaluate all information contained in any protesting Contractor’s Proposal, and conduct the same investigation and evaluation as Owner is entitled to take regarding an Apparent Prevailing Contractor.
E. The party filing the protest must concurrently transmit a copy of the initial protest document and any attached documentation to all other parties with a direct financial interest that may be adversely affected by the outcome of the protest. Such parties shall include all other Contractors who appear to have a reasonable prospect of receiving an award depending upon the outcome of the protest.
4.02 Exclusive Remedy
A. The procedure and time limits set forth in this paragraph are mandatory and are Contractor’s sole and exclusive remedy in the event of Proposal protest. Contractor’s failure to comply with these procedures shall constitute a waiver of any right to further pursue the Proposal protest, including filing a Government Code Claim or legal proceedings. A Contractor may not rely on a protest submitted by another Contractor, but must timely pursue its own protest.
ARTICLE 5 AWARD AND EXECUTION OF CONTRACT
5.01 Notice of Award and Submittal of Executed Contract Documents If Contract is to be awarded, it will be awarded to the most qualified Contractor within ninety (90) days after receipt of the Proposals.
A. Owner will issue Document 00 5105 Notice of Award. Contractor must execute and submit to Owner the “Required Contract Documents and Proof of Insurance” set forth below, by 5:00 p.m. of the 20th Day following the Notice of Award.
5.02 Required Contract Documents and Proof of Insurance A. Document 00 5205 (Construction Services Agreement), fully executed by successful Proposer.
Submit two originals, each bearing an original signature on the signature page and initials on each page.
B. Insurance certificates and endorsements required by Document 00 5205 Appendix C: Submit one original set.
C. If Contract Sum exceeds (or is expected to exceed) $25,000, Construction Performance Bond in form provided at Document 00 5205 Appendix D, fully executed by successful Contractor and surety, in the amount set forth therein. Submit one original.
D. If Contract Sum exceeds (or is expected to exceed) $25,000, Construction Labor and Material Payment Bond in form provided at Document 00 5205 Appendix E, fully executed by successful Contractor and surety, in the amount set forth therein. Submit one original.
Any other items identified by Owner in Document 00 5105 (Notice of Award). 168
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5.03 Failure to Execute and Deliver Documents:
A. If Contractor to whom Contract is awarded, within the period described in this Document 00 2115, fails or neglects to execute and deliver all required Contract Documents and file all required bonds, insurance certificates, and other documents, Owner may, in its sole discretion, rescind the award, for Contractor’s failure to enter into the Contract Documents.
B. Upon such failure to timely deliver all required Contract Documents as set forth herein, Owner may determine the next Apparent Qualified Contractor and proceed accordingly. Such Award, if made, will be made within sixty (60) days after the opening of the Proposals.
ARTICLE 6 GENERAL CONDITIONS AND REQUIREMENTS
6.01 Modification of Commencement of Work:
A. Owner expressly reserves the right to modify the date for the Commencement of Work under the Contract and to independently perform and complete work related to Project. Owner accepts no responsibility to Contractor for any delays attributed to its need to complete independent work at the Site.
B. Owner shall have the right to communicate directly with Contractor’s proposed performance bond surety, to confirm the performance bond. Owner may elect to extend the time to receive faithful performance and labor and material payment bonds.
6.02 Conformed Project Manual:
A. Following Award of Contract, Owner may prepare a conformed Project Manual reflecting Addenda issued during the proposal period, which will, failing objection, constitute the approved Project Manual.
6.03 Payment Bond:
A. If the Project involves an expenditure in excess of twenty-five thousand dollars ($25,000), the successful Contractor must file a payment bond with and approved by Owner prior to entering upon the performance of the Work, in accordance with Civil Code Section 9550, et seq.
6.04 Wage Rates:
A. Copies of the general prevailing rates of per diem wages for each craft, classification, or type of worker needed to execute the Contract, as determined by Director of the State of California Department of Industrial Relations, are on file at the City’s Public Works Department and may be obtained from the California Department of Industrial Relations website [http://www.dir.ca.gov/OPRL/DPreWageDetermination.htm] and are deemed included in the Proposal Documents. Upon request, Owner will make available copies to any interested party. Also, Contractor shall post the applicable prevailing wage rates at the Site.
6.05 Withdrawal of Proposals:
Contractor may withdraw their Proposals at any time prior to the Proposal Due time fixed in this Document 00 2115, only by written request for the withdrawal of Proposal filed with Owner at the City Clerk’s Office, located at 610 Foster City Boulevard, Foster City, CA 94404. Contractor or its duly authorized representative shall execute request to withdraw Proposal.
6.06 Ineligible Contractors and Subcontractors:
A. Owner shall not accept a Proposal from a Contractor who is ineligible to bid or work on, or be awarded, a public works project pursuant to Labor Code Section 1777.1 or 1777.7. The Contractor who is awarded the project contract shall not utilize, or allow work by, any subcontractor who is ineligible to bid or work on, or be awarded, a public works project pursuant to Labor Code Section 1777.1 or 1777.7. (See Public Contract Code Section 6109.) The California Division of Labor Standards Enforcement publishes a list of debarred contractors and subcontractors on the Internet at www.dir.ca.gov/DLSE/debar.html.
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6.07 Public Records Act Requests:
A. In accordance with the Public Records Act, Owner will make available to the public all correspondence and written questions submitted during the RFP period, all Proposal submissions opened in accordance with the procedures set forth herein, and all subsequent Proposal evaluation information. Except as otherwise require by law, Owner will not disclose trade secrets or proprietary financial information submitted by Contractors that has been designated as confidential by Contractor.
B. Upon a request for records regarding this Proposal, Owner will notify the Contractor involved, within 10 Days from receipt of the request, when the records will be made available for inspection. If the Contractor timely identifies any “proprietary, trade secret, or confidential commercial or financial” information that Contractor determines is not subject to public disclosure, and requests that Owner refuse to comply with the records request, Contractor will, at its sole expense, take all appropriate legal action and defend Owner’s refusal to produce the information in all forums; otherwise Owner will make such information available to the extent require by applicable law, without restriction.
C. Information disclosed in the Proposal and the attendant submissions are the property of Owner unless Contractor makes specific reference to data that is considered proprietary.
6.08 Substitutions:
A. Contractors must base their Proposals on products and systems specified in the Contract Documents or listed by name in Addenda. Substitutions are permitted only as provided in the Contract Documents
6.09 Definitions:
A. All abbreviations and definitions of terms used in this Document 00 2115 are set forth in Document 00 5205 (Construction Services Agreement).
END OF DOCUMENT
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PART 3
PROPOSAL SCHEDULE
DOCUMENT 00 4115
THIS PROPOSAL IS SUBMITTED BY:
____________________________________________________________________________________ (Firm/Company Name)
Re: Sidewalk Repair & Replacement Project (2020-2022)
1. The undersigned Contractor proposes and agrees, if this Proposal is accepted, to enter into an agreement with the ESTERO MUNICIPAL IMPROVEMENT DISTRICT in the form included in the Contract Documents, Document 00 5205 (Construction Services Agreement), to perform and furnish all Work as specified or indicated in the Contract Documents for the Contract Sum and within the Contract Time indicated in this Proposal and in accordance with all other terms and conditions of the Contract Documents.
2. Contractor accepts all of the terms and conditions of the Contract Documents (i.e., Document 00 2115 (Instructions to Contractors. This Proposal will remain subject to acceptance for 60 Days after the day of Proposal opening, unless there is a Proposal protest, then 90 days after the day of receipt of Proposals.
3. In submitting this Proposal, Contractor represents that Contractor has examined all of the Contract Documents, performed all necessary Pre-Proposal investigations, attended the mandatory Pre- Proposal Meeting (if any), received the Pre-Proposal Meeting minutes (if any), and received the following Addenda:
Addendum Number ADDENDUM DATE Signature of Contractor
4. Based on the foregoing, Contractor proposes and agrees to fully perform the Work within the time stated and in strict accordance with the Contract Documents for the following sums of money listed in the following Proposal Schedule:
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PROPOSAL SCHEDULE
PROPOSAL ITEMS – All proposal items, including Total Amount and Unit Prices, must be filled in completely. Proposal items are described in the Contract Documents. Quote in figures only, unless words are specifically requested.
Contractor proposes and agrees to fully perform the Work in strict accordance with the Contract Documents for the following sums of money in the following Schedule of Proposal Prices:
ITEM
No. DESCRIPTION UNITS UNIT
PRICE
ESTIMATED
QUANTITY
TOTAL
ANNUAL
AMOUNT
1. Sidewalk Replacement Square
feet $ _____.___ 4000 $______.___
2. Standard Curb and Gutter with 2’
wide AC conform
Lineal
foot $ _____.___ 400 $______.___
3. Root Barrier Lineal
foot $ _____.___ 100
$______.___
4. Minor Concrete Repair
(Reinforced Storm Drain Curb
Inlet lid)
Each $ _____.___ 30 $_____.___
5. Residential Driveway Square
feet $ _____.___ 5 $_____.___
6. Commercial Driveway Square
feet $ _____.___ 5 $_____.___
7. Curb Ramp – Type A (per latest trans
Caltrans Detail A88A) Each $ ____.___ 1 $_____.___
8. Curb Ramp – Type B (per latest trans
Caltrans Detail A88A) Each $ ____.___ 1 $_____.___
9. Curb Ramp – Type C (per latest trans
Caltrans Detail A88A) Each $ ____.___ 1 $_____.___
10. Curb Ramp – Type D (per latest
Caltrans Detail A88A) Each $ ____.___ 1 $_____.___
11. Curb Ramp – Type E (per latest
Caltrans Detail A88A) Each $ ____.___ 1 $______.__
12. Curb Ramp – Type F (per latest
Caltrans Detail A88A) Each $ ____.___ 1 $______.__
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13. Curb Ramp – Type G (per latest
Caltrans Detail A88A) Each $ ____.___ 5 $______.__
TOTAL NOT TO EXCEDE AMOUNT $________.__
(Indicate Proposal Price in words)
1.THE UNDERSIGNED ACKNOWLEDGES THAT PROPOSAL PRICE ALONE WILL NOT BE THE SOLE DETERMINING FACTOR IN THE SELECTION OF THE CONTRACTOR FOR THIS WORK. THE CITY
WILL CONSIDER THE PROPOSAL COSTS FOR ALL PROPOSAL ITEMS IDENTIFIED HEREIN
TOGETHER WITH THE CONTRACTOR QUALIFICATIONS AND REFERENCES TO FORM THE BASIS FOR ITS DECISION. The Selected Contractor will be determined as provided in Document 00 2115 (Instruction to Contractors).
2.The undersigned Contractor understands that Owner reserves the right to reject this Proposal.
3.If written notice of the acceptance of this Proposal, hereinafter referred to as Notice of Award, is mailed or delivered to the undersigned Contractor within the time described in Paragraph 2 of this Document 00 4115 or at any other time thereafter before it is withdrawn, the undersigned Contractor will execute and deliver the documents required by Document 00 2115 (Instructions to Contractors) within the times specified therein.
4.Notice of Award or request for additional information may be addressed to the undersigned Contractor at the address set forth below.
5.The undersigned Contractor agrees to commence Work on the date established in, and to complete all Work within the time specified in, Document 00 5205 (Construction Services Agreement).
6.The undersigned Contractor agrees that, liquidated damages for failure to complete all Work in the Contract within the time specified in Document 00 5205 (Construction Services Agreement) shall be as set forth in Document 00 5205.
7.UNIT PRICES ARE REQUIRED FOR ALL WORK IDENTIFIED IN THE PROPOSAL SCHEDULE.
8.Full compensation for all work required including saw cutting, asphalt concrete removal, excavation, backfilling using native or imported soil, grading and tree root cutting and removal, and site restoration, including all labor, materials, equipment and incidentals necessary to complete the work, shall be included in the prices for “Square Foot of Sidewalk,” or “Lineal Foot of Curb and Gutter,” or “Square Foot of Driveway or Curb Ramp,” “Lineal Foot of Root Barrier” or “Square Foot of Asphalt Concrete Patching” and no additional compensation will be allowed.
9.Proposal price shall include the repair and replacements of any minor irrigation systems damaged as part of the work in addition to the replacement of the same or better landscaping damaged or removed.
10.Proposal shall be considered all-inclusive, and shall include the cost of all labor, equipment, materials, traffic control, removal of USA markings, insurance and other services included herein. 174
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11.The names of all persons interested in the foregoing Proposal as principals are:
IMPORTANT NOTICE: If Contractor or other interested person is a corporation, give the legal name of corporation, state where incorporated, and names of president and secretary thereof. If a partnership, give name of the firm and names of all individual co-partners composing the firm. If Contractor or other interested person is an individual, give first and last names in full.
NAME OF CONTRACTOR:
___________________________________________________________________ licensed in accordance with an act for the registration of Contractors, and with license number:_____________________________________ Expiration: __________________. ____________________________________________________________________________________ (Place of Incorporation, if Applicable) (Principal)
_____________________________________________
(Principal)
_____________________________________________
(Principal)
I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
___________________________________________
(Signature of Contractor)
NOTE: If Contractor is a corporation, set forth the legal name of the corporation together with the signature of the officer or officers authorized to sign contracts on behalf of the corporation. If Contractor is a partnership, set forth the name of the firm together with the signature of the partner or partners authorized to sign contracts on behalf of the partnership.
Business Address: __________________________________________ __________________________________________
__________________________________________
Contractor’s Representative(s): __________________________________________ (Name/Title)
__________________________________________
(Name/Title)
__________________________________________
(Name/Title)
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Officers Authorized to Sign Contracts __________________________________________ (Name/Title)
__________________________________________
(Name/Title)
__________________________________________
(Name/Title)
Telephone Number(s): __________________________________________ (Area Code) (Number)
__________________________________________
(Area Code) (Number)
Fax Number(s): __________________________________________ (Area Code) (Number)
__________________________________________
(Area Code) (Number)
Date of Proposal: ___________________________________________ IMPORTANT NOTICE: If Contractor or other interested person is a corporation, give the legal name of corporation, state where incorporated, and names of president and secretary thereof. If a partnership, give name of the firm and names of all individual co-partners composing the firm. If Contractor or other interested person is an individual, give first and last names in full.
* END OF DOCUMENT *
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PART 4
Document 00 4519
NON-COLLUSION AFFIDAVIT
(To be Completed by Contractor and Submitted with Cost Proposal) Public Contract Code § 7106
NON-COLLUSION AFFIDAVIT TO BE EXECUTED BY PROPOSER AND SUBMITTED
WITH PROPOSAL
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN MATEO )
________________________________ [Name of Principal of Contractor], being first duly sworn, deposes and says that he or she is ______________________ [Office of Affiant] of _____________________ [Name of Proposer], the party making the foregoing proposal, that the proposal is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the proposal is genuine and not collusive or sham; that Proposer has not directly or indirectly induced or solicited any other Proposer to put in a false or sham proposal, and has not directly or indirectly colluded, conspired, connived or agreed with any Proposer or anyone else to put in a sham proposal, or that anyone shall refrain from proposing, and that the Proposer has not in any manner, directly or indirectly, sought by agreement, communication or conference with anyone to fix the proposal price of Proposer or any other Proposer, or to fix any overhead, profit or cost element of the proposal price, or of that of any other Proposer, or to secure any advantage against the public body, or anyone interested in the proposed contract; that all statements contained in the proposal are true; and further, that Proposer has not, directly or indirectly, submitted its proposal price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, proposal depository, or to any member or agent thereof to effectuate a collusive or sham proposal.
Executed under penalty of perjury under the laws of the State of California:
_________________________________________________
(Name of Contractor)
_______________________________________________
___
(Signature of Principal)
Subscribed and sworn before me, ______________________________________________, This day of , 20____
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Notary Public of the State of _________________________________ In and for the County of_____________________________________ My Commission expires_____________________________________ (Seal)
NOTE: If Proposer is a partnership or a joint venture, this affidavit must be signed and sworn to by every member of the partnership or venture.
NOTE: If Proposer is a corporation, this affidavit must by the Chairman, President, or Vice President and by the Secretary, Assistant Secretary, Chief Financial Officer, or Assistant Treasurer.
NOTE: If Proposer’s affidavit on this form is made outside the State of California, the official position of the person taking such affidavit shall be certified according to law. * END OF DOCUMENT *
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PART 5
CONTRACTOR’S CERTIFICATIONS
Document 00 4545
(To be Completed by Contractor and Submitted with Cost Proposal) The undersigned Contractor certifies to Owner as set forth in sections 1 through 7 below.
1. STATEMENT OF CONVICTIONS
By my signature hereunder, I hereby swear, under penalty of perjury, that no more than one final, unappealable finding of contempt of court by a Federal Court has been issued against Contractor within the past two years because of failure to comply with an order of a Federal Court or to comply with an order of the National Labor Relations Board.
2. CERTIFICATION OF WORKER’S COMPENSATION INSURANCE
By my signature hereunder, as the Contractor, I certify that I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for worker's compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work of this Contract.
3. CERTIFICATION OF PREVAILING WAGE RATES AND RECORDS
By my signature hereunder, as the Contractor, I certify that I am aware of the provisions of Labor Code Section 1773, which requires the payment of prevailing wage on public projects.
Also, that the Contractor and any subcontractors under the Contractor shall comply with Labor Code Section 1776, regarding wage records, and with Labor Code Section 1777.5, regarding the employment and training of apprentices. It is the Contractor’s responsibility to ensure compliance by any and all subcontractors performing work under this Contract.
4. CERTIFICATION OF COMPLIANCE WITH PUBLIC WORKS CHAPTER OF LABOR CODE
By my signature hereunder, as the Contractor, I certify that I am aware of Sections 1777.1 and 1777.7 of the California Labor Code and Contractor and Subcontractors and am eligible to bid and work on public works projects.
5. CERTIFICATION OF NON-DISCRIMINATION
By my signature hereunder, as the Contractor, I certify that there will be no discrimination in employment with regard to race, color, religion, gender, sexual orientation, age or national origin; that all federal, state, and local directives and executive orders regarding non- discrimination in employment will be complied with; and that the principal of equal opportunity in employment will be demonstrated positively and aggressively.
6. CERTIFICATION OF NON-DISQUALIFICATION
By my signature hereunder, as the Contractor, I swear, under penalty of perjury, that the below indicated Contractor, any officer of Contractor, or any employee of Contractor who has a proprietary interest in such Contractor, has never been disqualified, removed, or otherwise prevented from bidding on, or completing a Federal, State, or local government project because of a violation of law or safety regulation, except as indicated on the separate sheet attached hereto entitled “Previous Disqualifications.” If a statement of “Previous Disqualifications” is attached, please explain the circumstances.
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7. CERTIFICATION OF ADEQUACY OF CONTRACT AMOUNT
By my signature hereunder, as the Contractor, pursuant to Labor Code Section 2810(a), I certify that, if awarded the Contract based on the undersigned’s proposal, the Contract will include funds sufficient to allow the Contractor to comply with all applicable local, state, and federal laws or regulations governing the labor or services to be provided. I understand that Owner will be relying on this certification if it awards the Contract to the undersigned. __________________________________________________
CONTRACTOR’S SIGNATURE
Company Name ________________________________________________ Signed by (printed) ________________________________________________ Title ________________________________________________
Dated ________________________________________________
* END OF DOCUMENT *
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PART 6
CONTRACTOR’S REGISTRATION FORM
Document 00 4325
(To be Completed by Contractor and Submitted with Cost Proposal)
INDEPENDENT CONTRACTOR REGISTRATION
Contractor’s License #
Date: Fed I.D. #
Full Corporate Name of Company:
Street Address:
Mailing Address:
Email Address:
Phone: Fax:
Name of Principal Contact:
Type of Business: _____ Sole Proprietor _____ Partnership _____ Non-Profit 501(c)(3) _____ Corporation
_____ other (please explain:__________________________________)
INSURANCE
Workers’ Compensation:
Carrier:
Address:
Phone and Fax:
Policy Number:
General Liability:
Carrier:
Address:
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Phone and Fax:
Policy Number:
Policy Limits: $
A.M. Best Rating:
Automobile Liability:
Carrier:
Address:
Phone and Fax:
Policy Number:
Policy Limits: $
A.M. Best Rating:
All-risk Course of Construction (if Required by Document 00 5205 Informal Construction Services Agreement, Appendix A):
Carrier:
Address:
Phone and Fax:
Policy Number:
Policy Limits: $
A.M. Best Rating:
CONTRACTOR CERTIFIES, UNDER PENALTY OF PERJURY, THAT THE FOREGOING
INFORMATION IS CURRENT AND ACCURATE AND AUTHORIZES OWNER, AND ITS AGENTS AND
REPRESENTATIVES TO OBTAIN A CREDIT REPORT AND/OR VERIFY ANY OF THE ABOVE INFORMATION.
SIGNATURE
DATE
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SAFETY EXPERIENCE
The following statements as to the Contractor’s safety experience are submitted with the Proposal, as part thereof, and the Contractor guarantees the truthfulness and accuracy of all information.
1. List Contractor’s interstate Experience Modification Rate for the last three years. [20__]_____[20__]_____[20__]_____
2. Use Contractor’s last year's Cal/OSHA 300/301 log to fill in the following number of injuries and illnesses:
a. Number of lost workday cases _______________
b. Number of medical treatment cases _______________
c. Number of fatalities _______________
3. Employee hours worked last year _______________
4. State the name of Contractor’s safety engineer/manager:
Attach a resume or outline of this individual's safety and health qualifications and experience.
I CERTIFY, UNDER PENALTY OF PERJURY, THAT THE FOREGOING INFORMATION IS CURRENT
AND ACCURATE AND I AUTHORIZE OWNER, AND ITS AGENTS AND REPRESENTATIVES TO OBTAIN A CREDIT REPORT AND/OR VERIFY ANY OF THE ABOVE INFORMATION.
CONTRACTOR:
By: ________________________________________________
Signature
Its: _________________________________________________
Title
Date_________________________________________________
END OF DOCUMENT
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Part 7 -Contractor’s Qualifications and References 1
Sidewalk Repair & Replacement (2022-2024)
PART 7
CONTRACTOR’S QUALIFICATIONS AND REFERENCES
(To be Completed by Contractor and Submitted with Cost Proposal) Name of Contractor: _________________________________________________
1. The Contractor has been engaged in the contracting business, under the present business name for ________ years.
2. Experience in work of a nature similar to that covered in the proposal documents extends over a period of _______ years.
3. Has contractor ever failed to satisfactorily complete a contract awarded to them, except as follows: (Name any and all exceptions and reasons therefore.)
4. The following contracts have been satisfactorily completed in the last three years for the persons, firms or authorities indicated:
TYPE OF CONTRACT LOCATION
YEAR WORK AMOUNT AND FOR WHOM PERFORMED
(a) _______ ________ __________ ______________________________________ (b) _______ ________ __________ ______________________________________ (c)_______ ________ __________ ______________________________________ (d) _______ ________ __________ ______________________________________ (e) _______ ________ __________ ______________________________________
5. The following person may be contacted for information concerning the contract work listed above (list a reference for each contract named):
NAME/TITLE ADDRESS TELEPHONE
(a) __________________________ ________________________ ______________ (b) __________________________ ________________________ ______________ (c) __________________________ _________________________ ______________ (d) __________________________ _________________________ ______________ (e) __________________________ _________________________ ______________
6. Following is a list of plant and equipment owned by the Contractor, which is definitely available for use on the proposed work as required:
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QUANTITY NAME, TYPE, AND CAPACITY CONDITION LOCATION
_________ ______________________________ ___________ __________________ _________ ______________________________ ___________ __________________ _________ ______________________________ ___________ __________________ _________ ______________________________ ___________ __________________ (Attach additional sheets as necessary)
All of the above statements as to experience, financial qualifications, and available plant and equipment are submitted in conjunction with the proposal, as a part thereof and the truthfulness and accuracy of the information is guaranteed by the Contractor.
Signature of Contractor: ____________________________
____________________________
Print Name and Title
* END OF DOCUMENT *
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Contract Requirements 1
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DIVISION 0
CONTRACT REQUIREMENTS
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Contract Requirements 2
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Notice of Award 00 5105 00 5105 - 1
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DOCUMENT 00 5105
NOTICE OF AWARD
Dated
TO:
ADDRESS:
CONTRACT NO.: ______________________________
CONTRACT FOR:ESTERO MUNICIPAL IMPROVEMENT DISTRICT
SIDEWALK REPAIR & REPLACEMENT (2020-2022)
The Contract Sum of your Agreement is
(Amount in Words)
Dollars ($ )
1. Two copies of the proposed Contract Documents listed below accompany this Notice of Award.
2. You must comply with the following conditions precedent by 5:00 p.m. of the 20 th Day following the date of this Notice of Award, that is, by Day of the Week, Month Day, 2020. a. Deliver to Owner two fully executed counterparts of Document 00 5205 (Construction Services Agreement). Each copy of Document 00 5205 must bear your original signature on the signature page and your initials on each page.
b. Deliver to Owner one original set of the insurance certificates with endorsements required by Document 00 5205 Appendix C.
c. If your Contract Sum exceeds (or is expected to exceed) $25,000, deliver to Owner one original Construction Performance Bond in form attached to Document 00 5205 as Appendix D, executed by you and your surety.
d. If your Contract Sum exceeds (or is expected to exceed) $25,000, deliver to Owner one original Construction Labor and Material Payment Bond in form attached to Document 00 5205 as Appendix E, executed by you and your surety.
3. Failure to comply with these conditions within the time specified will entitle Owner to consider your Proposal abandoned and to annul this Notice of Award.
4. Within 21 Days after you comply with the conditions in Paragraph 2 of this Document 00 5105, Owner will return to you one fully signed counterpart of Document 00 5205 (Informal Construction Services Agreement) with 1 copy of the Project Manual (including Specifications and Drawings).
5. Before you may start any Work at the Site, you must attend a pre-construction conference. The pre-construction conference may be arranged through Greg Baeza, (650) 286-3551. Questions regarding bonds and insurance may be directed to Andra Lorenz, (650) 286-3215 . All other inquiries regarding the Project should be directed to Greg Baeza .
6. Upon commencement of the Work, you and each of your Subcontractors shall certify and provide Owner copies of payroll records in accordance with Labor Code Section 1776. 190
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OWNER: ESTERO MUNICIPAL IMPROVEMENT
DISTRICT
By:
(Title)
(Print Name)
ATTEST: ______________________________________
City Clerk
______________________________________
(Print Name)
AUTHORIZED BY CITY RESOLUTION:
NO: ___________________________________
ADOPTED: ________________________________, 2020
Copy of Resolution Attached
END OF DOCUMENT
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DOCUMENT 00 5205
CITY OF FOSTER CITY
610 Foster City Boulevard, Foster City, CA 94404
CONSTRUCTION SERVICES AGREEMENT
SIDEWALK REPAIR & REPLACEMENT (2020-2022)
DATE:
1.IDENTIFICATION OF CONTRACTOR:
CONTRACTOR:
LICENSE NO:
2.SCOPE OF THE WORK
See Scope of Work attached as Appendix A.
3.COMPENSATION FOR WORK. Contractor’s total compensation for the Work performed under this Agreement (Contract Sum) shall not exceed $___________, to be paid as (check one): (1) lump sum; (2) lump sum with progress payments; (3) per attached schedule of rates and charges, up to a guaranteed not-to-exceed amount of $__________. All payments (check one): shall shall not be subject to a five percent (5%) retention on each work order issued under this contract.
4.SCHEDULE OF PERFORMANCE FOR THE WORK. Contractor shall commence and complete the Work by the following dates:
Work is issued to the Contractor as a Work Order on an as-needed basis during the two year contract period. Each Work Order will identify the location and type of work to be performed, the effective date for commencement of work, specific work item quantities and the Work Order amount based on the unit prices listed in the Contractor’s Proposal Schedule. The Contractor shall complete any given work order within thirty (30) calendar days of the commencement of work. Work shall commence within fourteen (14) calendars days of notification by the City.
The City does not guarantee a minimum number of Work Orders issued or the dollar amount of work to be performed.
4.01Liquidated Damage Amounts.
A.Once work is started on any given work order, work must be completed within thirty (30) calendar days. For each calendar day in excess of the time specified for completion of the work, the Contractor shall pay to the City, or have withheld from monies due, the sum of $ 100.00 (One Hundred and 00/100 Dollars) per calendar day until the work is complete. 192
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B.$100 per calendar day in liquidated damages will also be assessed for each calendar day exceeding seven (7) calendar days between removal and replacement of concrete in any location.
C.For all work, once the City notifies the contractor, work must commence within fourteen (14) calendar days. For each calendar day in excess of the time specified for commencement of work, the Contractor shall pay to the City, or have withheld from monies due, the sum of $ 50.00 (Fifty and 00/100 Dollars) per calendar day until the work is commenced.
4.02Scope of Liquidated Damages
A.Contractor and Owner agree that because of the nature of the Project, it would be impractical or extremely difficult to fix the amount of such actual damages incurred by Owner because of a delay in completion of all or any part of the Work. Contractor and Owner agree that specified measures of liquidated damages shall be presumed to be the amount of such damages actually sustained by Owner, and that because of the nature of the Project, it would be impracticable or extremely difficult to fix the actual damages.
B.Liquidated damages for delay shall cover administrative, overhead, interest on bonds, and general loss of public use damages suffered by Owner as a result of delay. Liquidated damages shall not cover the cost of completion of the Work, damages resulting from Defective Work, lost revenues or costs of substitute facilities, or damages suffered by others who then seek to recover their damages from Owner (for example, delay claims of other contractors, subcontractors, tenants, or other third-parties), and defense costs thereof. Owner may deduct from any money due or to become due to Contractor subsequent to time for completion of entire Work and extensions of time allowed pursuant to provisions hereof, a sum representing then-accrued liquidated damages.
C.Should the Contractor fail to complete all or any portion of the work within the specified time or within such extra time as may be allowed for delays by formal extensions granted by the City, deductions as set forth above will be made from the Contractor's earnings for the time that the work remains incomplete after the time set for its completion.
D.After the specified or formally extended completion of time, no time extension will be granted for delays caused by climatic conditions.
5.TERMS AND CONDITIONS.
5.01Contractor shall perform the Work in accordance with the terms and conditions of this Agreement and the following attachments (together, Contract Documents):
Appendix A – Scope of Work
Appendix B – General Conditions
Appendix C – Insurance
Appendix D – Construction Performance Bond
Appendix E – Construction Labor and Materials Payment Bond Appendix F – Supplemental Conditions
Division 1 General and Technical Requirements
5.02The Contract Documents are the sole and exclusive provisions that govern the Work described herein. Any provision contained in any purchase order issued in connection with 193
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this Agreement or the Work described herein shall be null and void and shall have no force or effect.
5.03Agreement number must appear on all invoices and correspondence. Send invoices in duplicate immediately upon performance of Work ordered hereon to:
City of Foster City,
Greg Baeza
100 Lincoln Centre Drive
Foster City, CA 94404
CONTRACTOR: OWNER: City of Foster City
________________________________ _____________________________ Signature Signature
________________________________ ______________________________ Print Name & Title Catherine Mahanpour, Mayor
_________________________________ ______________________________ Date Date
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Appendix A to Construction Services Agreement
SCOPE OF WORK
PART 1 - GENERAL
This section includes specifications related to the scope of work.
1.01 WORK DESCRIPTION
The work to be performed, in general, consists of removing and replacing damaged sections of existing concrete sidewalk, curb, gutter, curb ramp, and driveway; asphalt concrete pavement tie-in; curb inlet replacements and minor concrete repair surrounding curb inlet replacements. The work shall include traffic control, saw cutting, excavation, backfilling, compaction, installation of root barriers, asphalt patching, asphalt conforms adjacent to new gutters, and clearing and grubbing.
1.02 LOCATION OF WORK
Locations of work will be throughout the City of Foster City.
1.03 ORDER OF WORK
The Contractor is not authorized to perform any work until written direction is provided by the City.
The notification to commence work will not be issued until the contract has been properly executed, bonds are furnished and approved, and insurance certificates have been submitted and approved.
Work shall be continued at all times with such force and equipment as will be sufficient to complete it within the specified time. The Contractor expressly agrees that the Contractor has taken into consideration and made allowance for all ordinary delays and hindrances to the work to be performed and that the Contractor will complete the work within the specified time.
Work to be issued to the Contractor as a Work Order on an as-needed basis during the two (2) year contract period. Each Work Order will identity the location and type of work to be performed, the effective date for commencement of work, specific work item quantities and the Work Order amount based on the unit prices listed in the Proposal Schedule. The Contractor shall complete any given work order within thirty (30) calendar days of the commencement of work. Work shall commence within fourteen (14) calendar days of notification by the City.
The City does not guarantee a minimum number of Work Orders issued or the dollar amount of work to be performed.
The City will issue work orders to the Contractor to perform repair/replacement of sections of sidewalk or lengths of curb or gutter, or perform other concrete repairs as listed in Proposal Schedule at one or more locations during the term of the contract. While there will be no minimum quantities for work, the City will use its best efforts to ensure that the work order contains no less than one thousand (1,000) square feet of sidewalk, two 195
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hundred (200) linear feet of curb and gutter and four (4) curb ramps. The City will also use its best efforts to group work so that a minimum length of curb and gutter to be replaced would be five (5) lineal feet and sidewalk would be twenty five (25) square feet. The quantities may not be continuous sections. Instead, they may be the sum total of small sections of various streets.
All work performed shall be measured and paid for based on the contract unit prices listed in Proposal Schedule.
1.04 DURATION OF CONTRACT
The Sidewalk Repair & Replacement (2020-2022) will be for a contract period of two (2) years. The contract start date will be determined after approval of the agreement by the Foster City City Council. The target date for Council approval is May 2, 2022.
1.05 CHANGES IN WORK
The City shall have the right to make changes to the plans and/or specifications and the Contractor shall perform the work as changed.
No adjustment to the unit price for any item in the Proposal Schedule shall be made in the event more repair locations are added or deleted from the scheduled maintenance program.
Increase or decrease in quantities due to differences between the proposal quantities for any item and the actual constructed quantities as measured in the field shall not be considered as change in the scope of work.
1.06 USA MARKER REMOVAL
It shall be the Contractor’s responsibility to remove all underground utility markings after construction is complete. The cost for removal of utility markings shall be included in various items of work and no additional compensation shall be allowed.
1.07 NOTIFICATIONS
The Contractor shall notify the occupants of properties affected by the work. Notification shall be by delivery of handbills to be prepared and furnished by the Contractor. Handbills shall be distributed 7 calendar days prior to the commencement of work. The handbills shall contain information regarding the work, dates and hours of the work to be clearly identified.
A copy of the handbill shall be submitted to the City for review and approval 7 calendar days prior to distribution.
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Appendix B to Construction Services Agreement
GENERAL CONDITIONS
ARTICLE 1 TERMS OF PERFORMANCE
1.01 Construction Services Agreement (Agreement) Force and Effect. The provisions of the Agreement and other Contract Documents constitute the entire agreement between the Contractor and Owner regarding the Work described herein. No representation, term or covenant not expressly specified in the Contract Documents shall, whether oral or written, be a part of this agreement. The Agreement and other Contract Documents shall govern the Work described herein (whenever performed), and shall supersede all other purchase orders and agreements between Contractor and Owner, and any proposal, with respect to the Work described herein.
1.02 No Modification or Waiver. The Contract Documents may not be modified, nor may compliance with any of its terms be waived, except by written instrument executed and approved by fully authorized representatives of Owner and Contractor. Contract Documents headings are for convenience only and do not affect the construction of the Contract Documents.
1.03 Performance of Work/No Assignment. Time is of the essence in the performance of the Work. Contractor will perform the Work in a skillful and workmanlike manner; comply fully with criteria established by Owner, and with applicable laws, codes, and all applicable industry standards. Contractor shall maintain its work area in a clean and sanitary condition, clear debris and trash at the end of each work day, and shall not damage or disrupt any property unless specifically part of the scope of the Agreement. Contractor shall not contract any portion of the Work or otherwise assign the Agreement without prior written approval of Owner. (Contractor shall remain responsible for compliance with all terms of the Contract Documents, regardless of the terms of any such assignment.) The Contractor shall permit Owner (or its designees) access to the work area, Contractor’s shop, or any other facility, to permit inspection of the Work at all times during construction and/or manufacture and fabrication. The granting of any progress payment, and any inspections, reviews, approvals or oral statements by any Owner representative, or certification by any governmental entity, shall in no way limit Contractor’s obligations under the Contract Documents. Either party’s waiver of any breach, or the omission or failure of either party, at any time, to enforce any right reserved to it, or to require strict performance of any provision of the Contract Documents, shall not be a waiver of any other right to which any party is entitled, and shall not in any way affect, limit, modify or waive that party’s right thereafter to enforce or compel strict compliance with every provision hereof.
Owner shall have, at all times, set-off rights with respect to any payment and Contractor’s failure to perform the terms of the Contract Documents.
ARTICLE 2 LEGAL AND MISCELLANEOUS
2.01 Records and Payment Requests. Contractor shall submit all billings with all necessary invoices or other appropriate evidence of proper performance, after which Owner shall make payment within thirty (30) days. Upon Owner’s written request, Contractor shall make available to Owner, its authorized agents, officers, or employees, any and all ledgers, books of accounts, invoices, vouchers, cancelled checks, and other records or documents evidencing or relating to the Work or the expenditures and disbursement charged to Owner, and all correspondence, internal memoranda, calculations, books and accounts, records documenting its Work under the Agreement, and invoices, payrolls, timecards, records and all other data related to matters covered by the Agreement.
Contractor shall furnish to Owner, its authorized agents, officers, or employees, such other 197
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evidence or information as Owner may require with regard to the Work or any such expenditure or disbursement charged by Contractor. Contractor shall maintain all such documents and records prepared by or furnished to Contractor during the course of performing the Work for at least five years following completion of the Work, except that all such items pertaining to hazardous materials shall be maintained for at least thirty (30) years. Contractor shall permit Owner to audit, examine and make copies, excerpts and transcripts from such records. The State of California or any federal agency having an interest in the subject of the Agreement shall have the same rights conferred to Owner by this section. Such rights shall be specifically enforceable.
2.02 Independent Contractor. Contractor is an independent Contractor and does not act as Owner’s agent in any capacity, whatsoever. Contractor is not entitled to any benefits that Owner provides to Owner employees including, without limitation, insurance, worker’s compensation benefits or payments, pension benefits, health benefits or insurance benefits. Terms within the Contract Documents regarding directives apply to and concern the result of the Contractor’s provision of Work not the means, methods, or scheduling of the Contractor’s Work. Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures with respect to its provision of Work under the Contract Documents. Contractor shall pay all payroll taxes imposed by any governmental entity and will pay all other taxes not specifically identified in the Contract Documents as Owner’s responsibility.
2.03 Indemnity/Liability. Contractor shall defend, indemnify, and save harmless, to the fullest extent permitted by law, the Owner and each of its officers, directors, representatives, agents and employees, against all claims, suits, actions, loss, cost, damage, expense, and liability arising from or related to bodily injury to or death of any person or damage to any property, or resulting from any breach and/or Contractor’s negligence in performing the Work pursuant to the Contract Documents. Notwithstanding any provision of the Contract Documents, Owner shall not be liable to Contractor or anyone claiming under it, in contract or tort, for any special, consequential, indirect or incidental damages arising out of or in connection with the Contract Documents or the Work. Owner’s rights and remedies, whether under the Agreement or other applicable law, shall be cumulative and not subject to limitation. Contractor’s obligations to defend, indemnify, and save harmless the Owner are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained within this Agreement. Contractor’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law.
2.04 Defective Work; Warranties. Contractor warrants that all construction services shall be performed in accordance with generally accepted professional standards of good and sound construction practices, all Contract Documents requirements, and all laws, codes, standards, licenses, and permits. Contractor warrants that all materials and equipment shall be new, of suitable grade of their respective kinds for their intended uses, and free from defects. Contractor hereby grants to Owner for a period of one year following the date of completion its unconditional warranty of the quality and adequacy of all of the Work including, without limitation, all labor, materials and equipment provided by Contractor and its Subcontractors of all tiers. If either prior to completion of the Work, or within one year after completion, any Work (completed or incomplete) is found to violate any of the foregoing warranties (Defective Work), Contractor shall promptly, without cost to Owner and in accordance with Owner’s written instructions, correct, remove and replace the Defective Work with conforming Work, and correct, remove and replace any damage to other Work or other property resulting therefrom. If Contractor fails to do so, Contractor shall pay all of the Owner’s resulting claims, costs, losses and damages. Where 198
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Contractor fails to correct Defective Work, or defects are discovered outside the correction period, Owner shall have all rights and remedies granted by law.
2.05 Compliance with Laws; Conflict of Interests. Contractor agrees to comply with all applicable federal and state laws, regulations and policies, as amended, including those regarding discrimination, unfair labor practices, anti-kick-back, collusion, and the provisions of the Americans with Disability Act. Contractor, its officer, partners, associates, agents, and employees, shall not make, participate in making, or in any way attempt to use the position afforded them by the Contract Documents to influence any governmental decision in which he or she knows or has reason to know that he or she has a financial interest under applicable state, federal and local conflict of interest regulations. Contractor warrants that no person or agency has been employed or retained to solicit or obtain the Agreement upon an agreement or understanding for a contingent fee, except a bona fide employee or agency.
2.06 Termination; Suspension; Disputes. Owner may direct Contractor to terminate, suspend, delay, interrupt or accelerate Work, in whole or in part, for such periods of time as Owner may determine in its sole discretion. Owner will issue such directives in writing, and may do so, in whole or in part, for its convenience or due to Contractor’s fault. Owner will compensate Contractor for extra costs resulting from such directives only to the extent that Owner issues such directives for its convenience and not due to Contractor’s fault (but Owner shall not compensate Contractor for costs, profit or overhead anticipated to be earned or incurred on Work terminated for Owner’s convenience.) Contractor shall continue its Work throughout the course of any dispute, and Contractor’s failure to continue Work during a dispute shall be a material breach of the Contract Documents. All claims by Contractor against Owner shall be submitted in writing to Owner, and shall be governed by Public Contract Code Sections 20104 – 20104.6, after which time the one year time period in Government Code Section 911.2 shall be, pursuant to Government Code Section 930.2, reduced to 90 days. Should Contractor be terminated for default, and such termination is subsequently determined to be wrongful, such termination will be converted to a termination for convenience as provided herein.
2.07 Execution; Venue; Limitations. The Agreement shall be deemed to have been executed in San Mateo County, California. Enforcement of the Contract Documents shall be governed by the laws of the State of California, excluding its conflict of laws rules. Except as expressly provided in the Contract Documents, nothing in the Contract Documents shall operate to confer rights or benefits on persons or entities not party to the Agreement. As between the parties to the Agreement, any applicable statute of limitations for any act or failure to act shall commence to run on the date of Owner’s issuance of the final Certificate for Payment, or termination of the Contract Documents, whichever is earlier, except for latent defects, for which the statute of limitation shall begin running upon discovery of the defect and its cause.
2.08 Employee Wages; Records; Apprentices. Contractor shall pay prevailing wages to its employees on any contract in excess of $1,000.00 (one thousand dollars). Copies of the prevailing rate of per diem wages are on file at Owner’s principal office. Contractor shall comply with the 8-hours per day/40 hours per week/overtime/working hours restrictions for all employees, pursuant to the California Labor Code. Contractor and all subcontractors shall keep and maintain accurate employee payroll records for Work performed under the Agreement. The payroll records shall be certified and submitted as required by law, including Labor Code Section 1771.4 (if applicable) and 1776, including (if the Agreement is awarded on or after April 1, 2015 or continues on or after January 1, 2016) to the Labor Commissioner no less frequently than monthly. Contractor shall comply fully with Labor Code Section 1777.5 in the hiring of apprentices for work relating to the Agreement. If the 199
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Agreement exceeds $2,000 and is funded with federal funds, then Contractor shall pay federal Davis Bacon wages and comply with applicable federal requirements.
2.09 Mandatory Contractor and Subcontractor Registration. Pursuant to Labor Code Section 1771(a), Contractor represents that it and all of its Subcontractors are currently registered and qualified to perform public work pursuant to Labor Code Section 1725.5.
Contractor covenants that any additional or substitute Subcontractors will be similarly registered and qualified.
2.10 Worker’s Compensation. Pursuant to Labor Code Sections 1860 and 1861, in accordance with the provisions of Section 3700 of the Labor Code, every contractor will be required to secure the payment of compensation to his employees. Contractor represents that it is aware of the provisions of Labor Code Section 3700 that require every employer to be insured against liability for workers’ compensation or to undertake self- insurance in accordance with the provisions of that Code, and Contractor shall comply with such provisions before commencing the performance of the Work.
2.11 Construction Performance Bond; Construction Labor and Materials Payment Bond; Securities in Lieu of Retention Escrow Account.
A. If Contract Sum under the Agreement exceeds (or is expected to exceed) $25,000, Contractor shall provide a construction performance bond in form attached hereto as Appendix D – Construction Performance Bond, and a construction labor and material payment bond, in accordance with Civil Code Section 9550 and in form attached hereto Appendix E – Construction Labor and Materials Payment Bond. Contractor may not substitute cash in lieu of the required bond(s).
B. If the Agreement specifies performance retention, Contractor may elect to substitute securities or direct payment to an escrow account, pursuant to Public Contract Code Section 22300 (incorporated herein by this reference).
2.12 Earthwork and Underground Facilities. If the Work involves digging trenches or other excavations that extend deeper than four feet below the surface, Contractor shall notify Owner in writing of any material that Contractor believes may be hazardous waste that is required to be removed in accordance law, subsurface or latent physical conditions at the site differing from those indicated by information about the site made available to proposers prior to the deadline for submitting proposals, or unknown physical conditions at the 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, pursuant to Section 7104 of the Public Contract Code. For any Work involving trench shoring that costs in excess of $25,000, Contractor shall submit and Owner (or a registered civil or structural engineer employed by Owner) must accept, in advance of 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 the excavation of such trench or trenches, pursuant to Labor Code Section 6705. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer. Consistent with Government Code Section 4215, as between Owner and Contractor, Owner will be responsible for the timely removal, relocation, or protection of existing main or trunk line utility facilities located on the Site only if such utilities are not identified in the Contract Documents or information made available for proposing.
2.13 Protection Of Work, Persons, And Property
A. Contractor shall be responsible for initiating, maintaining and supervising all safety and site security precautions and programs in connection with Work, and shall develop and 200
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implement a site security and safety plan throughout construction. Contractor shall comply with all safety requirements specified in any safety program established by Owner, or required by state, federal or local laws and ordinances. Contractor shall be responsible for all theft or damage to Work, property or structures, and all injuries to persons, either on the Site or constituting the Work (e.g., materials in transit), arising from the performance of Work of the Contract Documents from a cause.
B. Contractor shall comply with all applicable laws and regulations of any public body having jurisdiction for safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection.
Contractor shall notify Owners of adjacent property and of Underground Facilities and utility Owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation and replacement of their property.
C. Contractor shall remedy all damage, injury or loss to any property referred to above in this Article, caused, directly or indirectly, in whole or in part, by Contractor, any Subcontractor, supplier, or any other person or organization directly or indirectly employed by any of them to perform or furnish any Work or anyone for whose acts any of them may be liable.
Contractor’s duties and responsibility for safety and for protection of Work shall continue until such time as all the Work is completed and Final Acceptance of the Work. Owner and its agents do not assume any responsibility for collecting any indemnity from any person or persons causing damage to Contractor’s Work.
D. Contractor shall designate a qualified and experienced safety representative at the Site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs.
E. Owner may, at its option, retain such moneys due under the Contract Documents as Owner deems necessary until any and all suits or claims against Contractor for injury to persons or property shall be settled and Owner receives satisfactory evidence to that effect.
F. Work within the right-of-way lines of the city and/or Owner and/or State shall be done in accordance with the standards and specifications of the controlling agency. Permit for such work shall be obtained and paid for by the Contractor before executing the work within such right-of-ways.
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Appendix C to Construction Services Agreement
INSURANCE
1.Commercial General Liability Insurance, written on an “occurrence” basis, which shall provide coverage for bodily injury, death and property damage resulting from operations, liability for slander, false arrest and invasion of privacy, blanket contractual liability, broad form endorsement, and completed operations, personal and advertising liability, with limits of not less than $1,000,000 general aggregate and $1,000,000 each occurrence, subject to a deductible of not more than $1,000 payable by Contractor.
2.Business Automobile Liability Insurance with limits not less than $1,000,000 each occurrence including coverage for owned, non-owned and hired vehicles, subject to a deductible of not more than $1,000 payable by Contractor.
3.Workers’ Compensation Employers’ Liability limits not less than $1,000,000 each accident, $1,000,000 per disease and $1,000,000 aggregate. Contractor’s Workers’ Compensation Insurance policy shall contain a Waiver of Subrogation against the City of Foster City, its officers, directors, officials, agents, employees and volunteers. In the event Contractor is self- insured, it shall furnish Certificate of Permission to Self-Insure signed by Department of Industrial Relations Administration of Self-Insurance, State of California.
4.Builder’s Risk Insurance including, without limitation, coverage against loss or damage to the Work by fire, lightening, wind, hail, aircraft, riot, vehicle damage, explosion, smoke, falling objects, vandalism, malicious mischief, collapse, and other such hazards as are normally covered by such coverage. Such insurance shall be in amount equal to the replacement cost (without deduction for depreciation and subject to stipulated value in lieu of average clause) of all construction constituting any part of the Work, excluding the cost of excavations, of grading and filling of the land, and except that such insurance may be subject to deductible clauses not to exceed $10,000 for any one loss. Such insurance will not cover loss or damage to Contractor’s equipment, scaffolding or other materials not to be consumed in the construction of the Work. The insurer shall waive all rights of subrogation against Owner.
5.Any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to the Owner as an additional insured. The requirements for coverage and limits shall be the greater of either the minimum coverage and limits specified in this Agreement or the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured.
6.In addition to any provisions required in clauses 1-5 above, insurance policies in Appendix C shall contain an endorsement containing the following terms (excluding Workers Compensation insurance with respect to paragraph 6.01 below):
6.01City of Foster City, its officers, directors, officials, agents, employees, and volunteers, shall be named as additional insureds, but only with respect to liability arising out of the activities of the named insured, and there shall be a waiver of subrogation as to each named and additional insured.
6.02The policies shall apply separately to each insured against whom claim is made or suit is brought except with respect to the limits of the company’s liability.
6.03Written notice of cancellation, non-renewal or of any material change in the policies shall be mailed to Owner thirty (30) days in advance of the effective date thereof. 202
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6.04Insurance shall be primary insurance and no other insurance or self-insured retention carried or held by any named or additional insureds other than Contractor shall be called upon to contribute to a loss covered by insurance for the named insured.
7.Certificates of Insurance and Endorsements shall have clearly typed thereon the Project Name, shall clearly describe the coverage and shall contain a provision requiring the mailing of written notices of cancellation described in clause 6.03 above.
8.All policies of insurance shall be placed with insurers acceptable to Owner. The insurance underwriter(s) must be duly licensed to do business in the State of California and (other than for workers’ compensation) must have an A. M. Best Company rating of A-, VII or better.
Required minimum amounts of insurance may be increased should conditions of Work, in the opinion of Owner, warrant such increase. Contractor shall increase required insurance amounts upon direction by Owner.
9.The insurance coverage limits may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of Owner, to the extent required by this Agreement, before the Owner’s insurance or self-insurance may be called upon to protect Owner as a named insured.
10.All self-insured retentions (SIR) must be disclosed to Owner for approval and shall not reduce the limits of liability coverage. Policies containing and SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named Contractor/named insured or Owner.
11.Contractor agrees to include with all subcontractors in their subcontracts the same requirements and provisions of this Agreement that is required of Contractor including, without limitation, the indemnity and insurance requirements to the extent they apply to the scope of the subcontractor’s work. Subcontractors hired by Contractor shall agree to be bound to Contractor and Owner in the same manner and to the same extent as Contractor is bound to Owner under this Contract and its accompanying documents. Subcontractors shall further agree to include these same provisions with any lower tier subcontractors. A copy of the indemnity and insurance provisions of this Agreement will be furnished to the Subcontractor upon request. Contractor shall require all subcontractors to provide a valid Certificate of Insurance and the required endorsements included in the subcontract agreement, and will provide proof of compliance to the Owner prior to commencement of any work by the subcontractor.
12.Contractor shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following completion of this project or service. In the event Contractor fails to obtain or maintain completed operations coverage as required by this Agreement, Owner at its sole discretion may purchase the coverage required and the cost will be paid by Contractor. 203
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Appendix D to Construction Services Agreement
CONSTRUCTION PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
1.THAT WHEREAS, City of Foster City/Estero Municipal Improvement District, a general law City and municipal corporation of the State of California (Owner) has awarded to (Name of Contractor)____________________________ as Principal a Construction Services Agreement dated the ___________ day of ___________, 20___ (Agreement), titled SIDEWALK REPAIR & REPLACEMENT (2022-2024) in the amount of $______________, which Agreement is by this reference made a part hereof, for the work described as follows:
Providing all labor, material, and equipment necessary to perform all work detailed in all work orders issued under this contract.
2.AND WHEREAS, Principal is required to furnish a bond in connection with the Agreement, guaranteeing the faithful performance thereof;
3.NOW, THEREFORE, we, the undersigned Principal and _________________________ as Surety are held and firmly bound unto Owner in the sum of 100% OF THE CONTRACT SUM to be paid to Owner or its successors and assigns; for which payment, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
4.THE CONDITION OF THIS OBLIGATION IS SUCH, that if Principal, or its heirs, executors, administrators, successors, or assigns approved by Owner, shall promptly and faithfully perform the covenants, conditions, and agreements of the Agreement during the original term and any extensions thereof as may be granted by Owner, with or without notice to Surety, and during the period of any guarantees or warranties required under the Agreement, and shall also promptly and faithfully perform all the covenants, conditions, and agreements of any alteration of the Agreement made as therein provided, notice of which alterations to Surety being hereby waived, on Principal’s 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 indemnify, defend, protect, and hold harmless Owner as stipulated in the Agreement, then this obligation shall become and be null and void; otherwise it shall be and remain in full force and effect.
5.No extension of time, change, alteration, modification, or addition to the Agreement, or of the work required thereunder, shall release or exonerate Surety on this bond or in any way affect the obligation of this bond; and Surety does hereby waive notice of any such extension of time, change, alteration, modification, or addition.
6.Whenever Principal shall be and declared by Owner in default under the Agreement, Surety shall promptly remedy the default, or shall promptly:
6.01Undertake through its agents or independent contractors, reasonably acceptable to Owner, to complete the Agreement in accordance with its terms and conditions and to pay and perform all obligations of Principal under the Agreement including, without limitation, all obligations with respect to warranties, guarantees, indemnities, and the payment of liquidated damages; or
6.02Obtain a bid or bids for completing the Agreement in accordance with its terms and conditions, and, upon determination by Owner of the lowest responsible bidder, reasonably acceptable to Owner, arrange for a contract between such bidder and Owner and make available as work progresses (even though there should be a default or a succession of defaults under the contract or contracts of completion arranged 204
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under this paragraph) sufficient funds to pay the cost of completion less the balance of the Contract Sum, and to pay and perform all obligations of Principal under the Agreement including, without limitation, all obligations with respect to warranties, guarantees, and the payment of liquidated damages; but, in any event, Surety’s total obligations hereunder shall not exceed the amount set forth in the third paragraph hereof. The term “balance of the Contract Sum,” as used in this paragraph, shall mean the total amount payable by Owner to the Principal under the Agreement and any amendments thereto, less the amount Owner paid to Principal.
7.Surety’s obligations hereunder are independent of the obligations of any other surety for the performance of the Agreement, and suit may be brought against Surety and such other sureties, jointly and severally, or against any one or more of them, or against less than all of them without impairing Owner’s rights against the others. Surety may not use Contractor to complete the Agreement absent Owner’s written consent.
8.No right of action shall accrue on this bond to or for the use of any person or corporation other than Owner or its successors or assigns.
9.Surety may join in any proceedings brought under the Agreement and shall be bound by any judgment.
10.Correspondence or claims relating to this bond shall be sent to Surety at the address set forth below.
IN WITNESS WHEREOF, we have hereunto set our hands this _________ day of ________________, 20___.
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corp. Seal) Company: (Corp. Seal)
Signature Signature
Name Name
Title Title
Street Address Street Address
City, State, Zip Code City, State, Zip Code
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Appendix E to Construction Services Agreement
CONSTRUCTION LABOR AND MATERIAL PAYMENT BOND
KNOW ALL PERSONS BY THESE PRESENTS:
1.THAT WHEREAS, the City of Foster City/Estero Municipal Improvement District, a general law City and municipal corporation of the State of California (Owner) has awarded to (Name of Contractor) _________________ as Principal a Construction Services Agreement, dated the ___________ day of ______________, 20 ____ (Agreement), titled SIDEWALK REPAIR & REPLACEMENT (2022-2024) located at Foster City, CA in the amount of $_____________________________, which Agreement is by this reference made a part hereof, for the work described as follows:
Providing all labor, material, and equipment necessary to perform all work detailed in all work orders issued under this contract.
2.AND WHEREAS, Principal is required to furnish a bond in connection with the Agreement to secure the payment of claims of laborers, mechanics, material suppliers, and other persons as provided by law;
3.NOW, THEREFORE, we, the undersigned Principal and
______________________________ as Surety, are held and firmly bound unto Owner in the sum of 100% OF THE CONTRACT SUM ($_________________), for which payment well and truly to be made we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
4.THE CONDITION OF THIS OBLIGATION IS SUCH, that if Principal, or its heirs, executors, administrators, successors, or assigns approved by Owner, or its subcontractors shall fail to pay any of the persons named in California Civil Code Section 9100, or amounts due under the State of California Unemployment Insurance Code with respect to work or labor performed under the Agreement, or for any amounts required to be deducted, withheld, and paid over to the State of California Employment Development Department from the wages of employees of Principal and subcontractors pursuant to California Unemployment Insurance Code Section 13020 with respect to such work and labor, that Surety will pay for the same in an amount not exceeding the sum specified in this bond, plus reasonable attorneys’ fees, otherwise the above obligation shall become and be null and void.
5.This bond shall inure to the benefit of any of the persons named in California Civil Code Section 9100, as to give a right of action to such persons or their assigns in any suit brought upon this bond. The intent of this bond is to comply with the California Mechanic’s Lien Law.
6.Surety, for value received, hereby expressly agrees that no extension of time, change, modification, alteration, or addition to the undertakings, covenants, terms, conditions, and agreements of the Agreement, or to the work to be performed thereunder, shall in any way affect the obligation of this bond; and it does hereby waive notice of any such extension of time, change, modification, alteration, or addition to the undertakings, covenants, terms, conditions, and agreements of the Agreement, or to the work to be performed thereunder.
7.Surety’s obligations hereunder are independent of the obligations of any other surety for the payment of claims of laborers, mechanics, material suppliers, and other persons in connection with the Agreement; and suit may be brought against Surety and such other sureties, jointly 206
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and severally, or against any one or more of them, or against less than all of them without impairing Owner’s rights against the other.
8.Correspondence or claims relating to this bond shall be sent to Surety at the address set forth below.
IN WITNESS WHEREOF, we have hereunto set our hands this __________ day of ____________________, 20___.
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corp. Seal) Company: (Corp. Seal)
Signature Signature
Name Name
Title Title
Street Address Street Address
City, State, Zip Code City, State, Zip Code
END OF DOCUMENT
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Appendix F to Construction Services Agreement
SUPPLEMENTAL CONDITIONS
PART 1 - GENERAL
1.1 DEFINITIONS
Wherever in the specifications and other contract documents the following terms or pronouns in place of them are used, the intent and meaning shall be interpreted as follows:
A. City/District or Owner: The City of Foster City/Estero Municipal Improvement District.
B. Council: The City Council of the City of Foster City.
C. Board of Directors: The Board of Directors of the Estero Municipal Improvement District.
D. Proposer: Any individual, partnership, joint venture, or corporation submitting a proposal for the work contemplated, acting directly or through a duly authorized representative.
E. Contractor: The individual, partnership, joint venture, or corporation with whom the contract is made by the City/District.
F. Engineer: The City/District Engineer acting directly or through properly authorized agents, such agents acting within the scope of the particular duties entrusted to them. See Paragraph 1.8 regarding the authority of the Engineer.
G. Manager: The City Manager or District Manager of the City of Foster City/Estero Municipal Improvement District.
H. Days: Unless otherwise designated, days as used in the specifications will be understood to mean calendar days.
1.2 TRANSFER OF INTEREST
No interest in the contract shall be transferred to any other party without permission of the City/District.
1.3 WORKING HOURS
A. Work or activity of any kind shall be limited to the hours from 8:00 AM to 4:00 PM, Monday through Friday, except as otherwise stipulated in the contract documents.
Work hours shall be limited to 9:00 AM to 3:30 PM on all Boulevards.
B. Work in excess of eight hours per day, on Saturdays, on Sundays, or on City/District holidays requires prior consent of the Engineer and is subject to Cost of Overtime Construction Inspection.
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C. City/District holidays are:
New Year’s Day
Martin Luther King's Birthday
Presidents’ Day (3rd Monday in February)
Memorial Day (last Monday in May)
Independence Day
Labor Day
Veteran's Day
Thanksgiving Day and following Friday
Christmas Eve
Christmas Day
New Year's Eve
1.4 SUBCONTRACTORS
A. When requested, the Contractor shall furnish the name and address of each subcontractor contracting directly with the Contractor, together with a statement showing the character and location of the work, time limit, if any, and if requested, the amount of money involved in each subcontract. Each subcontract shall contain a reference to the contract between the City/District and the principal Contractor, and the terms of the contract and all parts thereof shall be made part of each subcontract insofar as applicable to the work covered thereby. Each subcontract shall provide for its annulment at the order of the Engineer, if, in the Engineer's opinion, the subcontractor fails to comply with the requirements of the principal contractor insofar as the same may be applicable to the Contractor's work.
B. Nothing contained in this Specification shall be construed as creating any contractual relationship between any subcontractor and the City/District. The sections of this Specification are not intended to control the Contractor in dividing the work among subcontractors or to limit the work performed by any trade.
C. The Contractor shall be considered the employer of and as fully responsible to the City/District for the acts and omissions of subcontractors and of persons employed by them as the Contractor is for the acts and omissions of persons directly employed by the Contractor.
D. The Contractor shall be responsible for the coordination of the trades, subcontractors, and material personnel engaged upon the Contractor's work. It shall be the Contractor's duty to see that all of the subcontractors commence their work at the proper time and carry it on with due diligence so that they do not delay or injure either the work or materials; and that all damage caused by them or their workers is made good by them or by the Contractor at the Contractor's expense.
E. The City/District will not undertake to settle differences between the Contractor and their subcontractors or between subcontractors.
F. The Contractor shall utilize the services of specialty subcontractors, without additional expense to the City/District, on those parts of the work which are specified to be performed by specialty contractors.
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CHANGES
A. General:
The City/District reserves the right to make such alterations, deviations, additions to or deletions from the drawings and specifications, including the right to increase or decrease the quantity of any item or portion of work or to omit any item or portion of the work, and to require such changes in the work as are determined by the Engineer to be necessary or advisable for proper completion or construction of the whole work contemplated.
Work will be issued to the Contractor as a Work Order on an as-needed basis during the two year contract period. Each Work Order will identify the location and type of work to be performed, the effective date for commencement of work, specific work item quantities and the Work Order amount based on the unit prices listed in the Contractor’s Proposal Schedule. The Contractor shall complete any given work order within thirty (30) calendar days of commencement of work.
B. Increases or Decreases in Unit Price Quantities:
1. Increased or Decreased Quantities:
Increases or decreases in the quantity of a contract item of work will be determined by comparing the quantity of work as listed in the proposal schedule with the actual quantity of work performed by the Contractor, as measured by the Engineer. The City shall have the right to make changes in the plans and/or specifications and the Contractor shall perform the work as changed.
No adjustment to the unit price for any item in the Proposal Schedule shall be made in the event the number of repair locations are increased or decreased from the scheduled maintenance program. All work performed shall be measured and paid based on the contract unit price included in the proposal schedule.
2. Eliminated Items:
a. The City of Foster City reserves the right to eliminate any of the scheduled work. The unit price shall not be subject to change based on the deletion of work.
Should any contract item of the work be eliminated in its entirety, unless otherwise provided for in the contract, payment will be made to the Contractor for actual costs incurred in connection with such eliminated contract item if incurred prior to the date of notification in writing by the Engineer of such elimination.
a. If acceptable material is ordered by the Contractor for the eliminated item prior to the date of notification of such elimination by the Engineer, and if orders for such material cannot be canceled, it will be paid for at the actual cost to the Contractor. In such case, the material paid for shall become the property of the City/District and 210
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the actual cost of any further handling will be paid for. If the material is returnable to the vendor and if the Engineer so directs, the material shall be returned and the Contractor will be paid for the actual cost of charges made by the vendor for returning the material. The actual cost of handling returned material will be paid for. Written documentation of costs of cancellation or return must be submitted.
b. The actual costs or charges to be paid by the City/District to the Contractor as provided in this section will be computed based on the unit prices listed in the Proposal Schedule.
C. Protest Procedure (Change Orders):
1. Should the Contractor disagree with any terms or conditions set forth in an approved change order which the Contractor has not executed, the Contractor shall submit a written protest to the Engineer within 15 calendar days after the receipt of such approved contract change order. The protest shall state the points of disagreement, contract references, quantities, and costs involved. The Engineer shall consider and investigate such protest within a reasonable time. If a written protest is not submitted, adjustment of the contract time and payment will be made as set forth in the approved contract change order and shall constitute full compensation for all work included therein or required thereby. An unprotested change order will be considered as an executed contract change order.
2. When the protest concerning an approved change order relates to compensation, the Contractor shall keep full and complete records of the costs of such work and shall permit the Engineer to have such access thereto as may be necessary to assist in the determination of the compensation payable for such work.
3. When the protest concerning an approved work order relates to the adjustment of contract time for the completion of the work, the time to be allowed will be determined as provided in Paragraph 1.15 of this section.
D. Extra Work:
Extra work will not be paid for unless ordered in writing by the Engineer. When authorized, extra work will be paid for in accordance with the Proposal Schedule or by a negotiated adjustment.
E. REPORTING, INVOICING, AND PAYMENT
1. All work shall be reported monthly upon Total Work Order Sheets furnished by the Engineer to the Contractor and signed by both parties, which monthly reports shall thereafter be considered the true record of work done.
2. Contractor shall submit a record of work completed with each payment request.
Record of work shall include detailed invoices. Those not so detailed will not be processed for payment until details are furnished.
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3. Completed work shall be paid for on a monthly basis by Contract Change Order.
1.5 COST OF OVERTIME CONSTRUCTION INSPECTION
Overtime construction work performed at the option of, or for the convenience of, the Contractor will be inspected by the City/District at the expense of the Contractor. For any such overtime beyond the regular 8-hour day and for any time worked on Saturday, Sunday, or holidays, the charges for City/District personnel will be as shown in the currently adopted rate schedule, available at the Public Works office.
There will be no charges for the inspection of overtime work ordered by the Engineer.
1.6 CHANGES AT THE CONTRACTOR'S REQUEST
If the Contractor, on account of conditions developing during the progress of the work, finds it impracticable to comply strictly with this Specification and applies in writing for a modification of the requirements or of methods of work, such change may be authorized by the Engineer, if not detrimental to the work and if without additional cost to the City/District. The Contractor's written request for deviation shall be submitted prior to the start of affected work with enough time allowed to give the Engineer a reasonable review period. Only written authorization from the Engineer will permit deviations from the specifications.
1.7 AUTHORITY OF THE ENGINEER
A. On all questions concerning the acceptability of material or machinery, the classification of material, the execution of the work, and conflicting interests of contractors performing related work, the decision of the Engineer shall be final and binding upon both parties, except in the case of gross error.
B. The Engineer will make periodic observations of materials and completed work to observe their compliance with plans, specifications, and design and planning concepts, but the Contractor shall be responsible for the superintendence of construction processes, coordination of subcontractors or materials, site conditions, operations, equipment, personnel, or the maintenance of a safe place to work or any safety in, on, or about the site of the work.
C. Authority and Duties of Engineer's Field Representatives:
1. Field representatives of the Engineer may be stationed on the project site to report to the Engineer as to the progress of the work, the manner in which it is being performed, and to report whenever it appears that material furnished and work performed by the Contractor fail to fulfill the requirements of the contract documents. The representative may direct the attention of the Contractor to such failure or infringement but such construction review shall not relieve the Contractor from any obligation to furnish acceptable materials or to provide completed construction in a safe and satisfactory manner in every particular.
2. In case any dispute arises between the Engineer's field representative and the Contractor as to materials furnished or the satisfactory performance of 212
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the work, the representative shall have the authority to reject materials or recommend suspension of the work by the Engineer until the question and issue can be referred to and decided by the Engineer. Such authority, however, shall not give rise to any duty on the part of Engineer's field representative to exercise this right for the benefit of Contractor or any other party. Field representatives are not authorized to revoke, alter, enlarge, relax or release any requirements of the contract documents nor to issue instructions contrary to the contract documents. Field representatives shall in no case act as foremen, superintendents, or perform other duties for the Contractor or interfere with the management of the work by the Contractor.
1.8 INSPECTION BY CITY/DISTRICT, QUALITY ASSURANCE BY CONTRACTOR,
TESTING
A. All materials furnished and work done under this contract will be subject to inspection. The Contractor shall furnish, without extra charge, the necessary test pieces and samples, including facilities and labor for obtaining them, as requested by the Engineer. Work or material that does not conform to the specifications may be rejected at any stage of the work notwithstanding previous inspections by the Engineer.
B. Quality control of the work to ensure compliance with the contract documents is the responsibility of the Contractor. Testing and inspection of the work, or the lack thereof, by the City/District does not relieve the Contractor of the responsibility to provide a quality assurance program to ensure compliance with the contract documents.
C. The Engineer may perform or have the Contractor perform tests of material and equipment to demonstrate compliance with the contract documents. If such tests were not required to be performed by the Contractor by the contract documents, the cost of testing will be paid for by the City/District when tests show that materials or equipment comply with the contract documents, and shall be paid for by the Contractor when tests show that materials or equipment fail to comply with the contract documents.
1.9 DATA TO BE FURNISHED BY THE CONTRACTOR
The Contractor shall furnish the Engineer reasonable facilities for obtaining such information as the Engineer may desire respecting the character of the materials and the progress and manner of work, including information necessary to determine its costs, such as the number of personnel employed, their pay, the time during which they worked on the various classes of construction, and other pertinent data.
1.10 SUPERINTENDENCE
A. The Contractor shall designate in writing before starting work one authorized representative who shall have the authority to represent and act for the Contractor.
B. Said authorized representative shall be present at the site of the work at all times while work is actually in progress on the contract. When work is not in progress 213
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and during periods when work is suspended, arrangements acceptable to the Engineer shall be made for any emergency work which may be required. The superintendent or foreman in charge shall be deemed to be the authorized representative of the Contractor and accepts such orders on behalf of the Contractor.
1.11 SPECIFICATIONS AND DRAWINGS
The Contractor shall keep on the work a copy of all specifications, drawings, and change orders pertaining to the work and shall at all times give the Engineer access thereto.
Anything mentioned in the specifications and not shown on the drawings or shown on the drawings and not mentioned in the specifications shall be of like effect as though shown or mentioned in both.
1.12 LINES, GRADES, AND MEASUREMENTS
All lines and grades shall be established by the Contractor. The cost of surveying to establish lines and grades shall be included in the various items of work and no separate payments will be made.
1.13 RIGHT OF WAY
A. The site for the installation of equipment or the right of way for the works to be constructed under this contract will be provided by the City/District.
B. The City/District will provide the appropriate rights of way and property for pipelines and structures. The Contractor will be held responsible for any damage to structures, streets, and roads, and for any damage that may result from the Contractor's use of City/District property.
C. In case areas in addition to those available on the City/District's right of way or property are required by the Contractor for the Contractor's operations, the Contractor shall make arrangements with the property owners for the use of such additional areas at the Contractor's own expense.
1.14 DELAYS AND EXTENSION OF TIME
A. If any delay having a direct effect on the work is caused by factors within the Contractor's control, it is non-excusable and the Contractor will not be entitled to compensation for damages resulting directly or indirectly therefrom, or for any extension of time.
B. If any delay having a direct effect on the work is caused by unusually severe weather conditions, including periods exceeding the "Normal Rainfall Days", or by strikes, or act of God, such delay may be excusable and may entitle the Contractor to an equivalent extension of time, provided that the Contractor has taken reasonable precautions to foresee and prevent delays due to such causes and provided that the Contractor has notified the Engineer in writing of the causes of the delay within 7 calendar days from the beginning of any such delay. In such event the Contractor shall be entitled to time only. Additional costs incurred 214
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because of the delay will be paid for by the Contractor at no additional cost to the City/District.
1. No extension of time will be granted for normal rainfall. However, during the specified contract time, a day-for-day extension of time will be given for each day the rainfall is in excess of 0.1 inch of rain when the total number of rainy days (0.1 inch or greater) exceed the normal based on monthly precipitation records for the previous 10-year period from the weather recording station at the San Francisco International Airport.
Normal number of rain days for which rainfall has exceeded 0.1 inches for the 10- year period from 2010 to 2019 is as follows:
Jan Feb Mar Apr May Jun July Aug Sept. Oct. Nov. Dec.
5 7 7 3 1 1 0 0 0 2 5 6
C. If any delay having a direct effect on the work is caused by the specific orders of the Engineer to stop work, or by the performance of extra work ordered by the Engineer, or by failure of the City/District to provide material, or necessary instructions for carrying on the work, or to provide the necessary right of way or site for installation, or failure of a utility to remove or relocate an existing facility, such delay may be compensable and may entitle the Contractor to an equivalent extension of time, and may entitle the Contractor to damages resulting directly from any of the causes of delay hereinabove specified or from delays or hindrances to the work, provided that the Contractor has taken reasonable precautions to prevent delays due to such causes and provided that the Contractor has notified the Engineer in writing of the causes of the delay within 10 calendar days from the beginning of any such delay.
C. When a Contractor experiences two concurrent delays, one compensable and the other non-compensable, no compensation other than time extensions will be allowed.
E. An extension of time must be approved by the Engineer to be effective, but an extension of time whether with or without consent of the sureties, shall not release the sureties from their obligations, which shall remain in full force until the discharge of the contract.
1.15 CLIMATIC CONDITIONS
The Engineer may order the Contractor to suspend any work that may be subject to damage by climatic conditions. In such event the Contractor shall be entitled to time only.
Additional costs incurred because of the delay will be paid for by the Contractor at no additional cost to the City/District. When delay is caused by an order to suspend work given on account of climatic conditions that could have been reasonably foreseen, the Contractor will not be entitled to any extension of time on account of such order.
1.16 ROADS AND FENCES
Roads subject to interference from the work covered by this contract shall be kept open, and the fences subject to interference shall be kept up by the Contractor until the work is finished.
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1.17 INFRINGEMENT OF PATENTS
The Contractor shall hold and save the City/District, its officers, agents, servants, and employees harmless from and against all and every demand or demands, of any nature or kind, for or on account of the use of any patented invention, process, equipment, article, or appliance employed in the execution of the work or included in the material or supplies agreed to be furnished under the contract, and should the Contractor, the Contractor's agents, servants, or employees, or any of them, be enjoined from furnishing or using any inventions, processes, equipment, articles, materials, supplies, or appliances supplied or required to be supplied or used under this contract, the Contractor shall promptly substitute other inventions, processes, equipment, articles, materials, supplies, or appliances in lieu thereof, of equal efficiency, quality, finish, suitability, and market value, and satisfactory in all respects to the Engineer. Or in the event that the Engineer elects, in lieu of such substitution, to have supplied, and to retain and use, any such inventions, processes, equipment, articles, materials, supplies, or appliances, as may by this contract be required to be supplied and used, the Contractor shall at the Contractor's expense pay such royalties and secure such valid licenses as may be requisite and necessary to enable the City/District, its officers, agents, servants, and employees, or any of them, to use such inventions, processes, equipment, articles, materials, supplies, or appliances without being disturbed or in any way interfered with by any proceeding in law or equity on account thereof. Should the Contractor neglect or refuse promptly to make the substitution hereinbefore required, or to pay such royalties and secure such licenses as may be necessary and requisite for the purpose aforesaid, then in that event the Engineer shall have the right to make such substitution, or the City/District may pay such royalties and secure such licenses and charge the cost thereof against any money due the Contractor from the City/District, or recover any amount thereof from the Contractor and the Contractor's surety, notwithstanding final payment under this contract may have been made.
1.18 PROTECTION OF PERSONS AND PROPERTY
A. Contractor's Responsibility:
Notwithstanding any other provision of these specifications, the Contractor shall be solely and completely responsible for conditions of the job site, including safety of all persons and property, during performance of the work. This requirement will apply continuously and will not be limited to normal working hours. Safety and sanitary provisions shall conform to applicable Federal, State, County, and local laws, regulations, ordinances, standards, and codes. Where any of these are in conflict, the more stringent requirement shall be followed.
B. Public Safety:
During the performance of the work, the Contractor shall erect and maintain all necessary temporary fences, bridges, railings, lights, signals, barriers, or other safeguards as shall be appropriate under the circumstances in his judgment for the prevention of accidents; and the Contractor shall take other precautions as necessary for public safety including, but not limited to, traffic control. 216
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C. Engineer's Responsibility:
1. The Engineer's review of the Contractor's construction performance is not intended to include review of the adequacy of the Contractor's safety or sanitary measures in, on, or near the construction site. The City/District assumes no responsibility for the inspection of safety precautions or for the enforcement of safety precautions required by law.
2. The Engineer may suspend operations if the Contractor determines that an imminent safety hazard exists.
1.19 CONTRACTOR'S FINANCIAL OBLIGATION
The Contractor shall promptly make payments to all persons supplying labor and materials in the execution of the contract.
1.20 PROTESTS - CONTRACT REQUIREMENTS
A. If work demanded of the Contractor is considered by the Contractor to be outside the requirements of the contract, or if the Contractor considers any record or ruling of the Engineer or any inspector to be unfair, the Contractor shall immediately upon such work being demanded or such record or ruling being made, ask for written instructions or decision, whereupon the Contractor shall proceed without delay to perform the work or conform to the record or ruling. If the Contractor still wishes to protest, the Contractor shall, within 15 calendar days after receipt of same, file a written protest with the Engineer, stating clearly and in detail the Contractor's objections and reasons therefor. Except for such grounds or protest or objections as are made of record in the manner specified and within the time stated herein, the Contractor hereby waives all grounds for protest or objections to the records, rulings, instructions, or decisions of the Engineer, and hereby agrees that as to all matters not included in such protests, the records, instructions, and decisions of the Engineer shall be final and conclusive.
B. No later than thirty (30) calendar days following the submission of a protest in accordance with subsection A, the Contractor shall submit to the Engineer his claim concerning the matter so noticed. The claim shall set forth clearly and in detail, for each item of additional compensation or time adjustment claimed, the reasons for the claim, references to applicable provisions of the specifications, the nature and amount of cost or time involved, or both, the computations used in determining such cost or time, or both, and all other pertinent factual data. The Contractor shall furnish such clarification and further available information and data as may be requested in writing by the Engineer within the time specified in such request. In addition, the Contractor shall maintain complete and accurate daily records of the cost of any portion of the work for which additional compensation is claimed, and shall give the Engineer access thereto or certified copies thereof as requested.
C. Any decision, order, instructions, notice, or act or omission of the Engineer for which the Contractor has submitted a protest shall be final and conclusive on the Contractor if the Contractor fails to submit or document a claim with respect thereto in the manner and within the times above stated, and such failure shall constitute a waiver of all claims in connection therewith, whether direct or consequential in 217
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nature, provided that the Engineer may, if the Contractor shows good cause, and if the interests of the City/District will not be prejudiced, consider and decide a properly documented claim on its merits notwithstanding the Contractor's failure to submit it within the time above stated. The foregoing provision shall create no right to the Contractor, and failure or refusal of the Engineer to exercise the Engineer's authority thereunder shall not be subject to claim by the Contractor.
1.21 CONTRACTOR'S RESPONSIBILITIES FOR LOSSES OR LIABILITIES A. Risk of Loss:
Except as otherwise provided in the contract documents and except as to the cost of repair or restoration of damage to the work caused by an act of God as that term is defined in Section 7105 of the Public Contract Code of the State of California, the Contractor shall bear all losses resulting to the Contractor on account of the amount or character of the work, or from any unforeseen obstructions or difficulties which may be encountered, or from any encumbrances on the line of the work, or because the nature of the ground in or on which the work is done is different from what is assumed, or on account of the weather, or floods, or other causes.
B. Materials and Facilities:
1. The Contractor shall be responsible for materials and facilities as hereinafter provided and in the event of the Contractor's failure to carry out said responsibilities, the same may be carried out by the City/District at the expense of the Contractor.
a. The Contractor shall be responsible for any material furnished the Contractor and for the care of all work until its completion and final acceptance, and the Contractor shall at the Contractor's own expense replace damaged or lost material and repair damaged parts of the work.
b. The Contractor shall protect the City/District facilities from damage resulting from the Contractor's work. City/District facilities damaged by or as a result of the Contractor's work under this contract shall be repaired or replaced, as directed by the Engineer, at the Contractor's expense.
c. The Contractor shall remove from the vicinity of the completed work all buildings, rubbish, unused material, concrete forms, and other materials belonging to the Contractor or used under the Contractor's direction during construction.
1.22 CONTRACTOR USE OF PREMISES
A. Confine operations at site to areas permitted by the contract documents.
B. Do not encumber site with excessive material or equipment.
C. Do not impose any load on any structure that will damage or endanger structure.
D. Take precautions necessary to prevent annoyance to occupants adjacent to or in the vicinity of the work.
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1.23 COOPERATION WITH OTHER WORK FORCES
A. Other Contractors, other utilities and public agencies or their Contractors, other City/District Contractors, and City/District personnel may be working in the vicinity during the project construction period.
B. There may be some interference between these activities and the work under this Specification. The Contractor shall cooperate and coordinate their work with that of other work forces to assure timely contract completion.
C. Coordinate all activities in and around repair locations.
D. Any costs for providing cooperation with other work forces shall be considered as included in the proposal price for the various contract items of work and no separate payment will be made therefor.
1.24 PRECONSTRUCTION CONFERENCE
A. A preconstruction conference will be held at the time and place designated by the Engineer.
B. The Contractor shall be present or be represented by an agent with authority to act for the Contractor and in responsible charge of the work to be accomplished.
1.25 MATERIAL AND WORKMANSHIP
A. Omissions from the Plans and Specifications:
Where the plans or specifications describe portions of the work in general terms, but not in complete detail, it is understood that the Contractor shall provide and install such materials as necessary for a complete and functional facility at no additional cost to the City/District. All work shall be done and workmanship completed consistent with the quality of work standard for the industry for commercial work, notwithstanding any omission from the specifications or the drawings. It shall be the duty of the Contractor to call attention to apparent errors and omissions and request instructions before proceeding with the work. The Engineer may, by appropriate instructions, correct errors and omissions, which instructions shall be as binding upon the Contractor as though contained in the original specifications or drawings.
B. Compliance with Jurisdictional Agency Requirements:
All work performed under this Specification may be inspected as provided in Paragraph 1.9. All work performed within city or county streets or State of California freeway rights of way shall meet the requirements of the agency having jurisdiction.
All materials furnished and all work done must be satisfactory to the Engineer.
Work, material, or equipment not in accordance with the contract documents shall be made to conform thereto. Unsatisfactory material and equipment will be rejected, and if so ordered by the Engineer, shall, at the Contractor's expense, be immediately removed from the vicinity of the work.
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1.26 SATURDAY, SUNDAY, AND HOLIDAY WORK
Without the written consent of the Engineer, no installation or construction work shall be done on Saturdays, Sundays, or holidays. Holidays are defined as City/District holidays which are listed in Section 1.3 of Appendix F in the Contract Services Agreement.
1.27 COOPERATION
The City/District reserves the right to perform other work at or near the site at any time by the use of its own forces or other contractors. The Contractor shall coordinate their work and cooperate with City/District forces and other contractors to the end that any delay or hindrance to their work will be avoided.
1.28 AGREEMENTS WITH ADJACENT PROPERTY OWNERS
Agreements with property owners for spoiling excavated material, storing materials, or other purpose related to the work shall be made in writing and a copy submitted to the Engineer for their information.
1.29 EMERGENCY WORK
A. During Working Hours:
In case of an emergency which threatens loss or injury of property, and/or safety of life during working hours, the Contractor shall act, without previous instructions from the City/District, as the situation may warrant. The Contractor shall notify the Engineer of the emergency and the action taken immediately thereafter. Any compensation claimed by the Contractor, together with substantial documents in regard to expense, shall be submitted to the Engineer within 15 calendar days after the emergency. Compensation, if allowed, will be paid for as extra work.
B. Outside Working Hours:
Whenever in the opinion of the City/District there shall arise outside of the regular working hours on the contract work, an emergency involving utility services to the public or danger to public safety, the City/District's forces may choose to handle such emergency work. If such emergency arises out of or is the result of operations by the Contractor, the cost of the corrective measures will be billed to the Contractor and deducted from their payment as provided in the contract documents. The performance of emergency work by City/District forces will not relieve the Contractor of any of his responsibilities, obligations, or liabilities under the contract.
1.30 CONFLICT AMONG DRAWINGS, SPECIFICATIONS, AND/OR STANDARDS In case of conflict among contract documents, the document of highest precedence shall prevail. The descending order of precedence shall be:
1. Permits and Agreements with Other Agencies
2. City/District Codes
3. Technical Specifications
4. Contract Requirements
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5. Project Drawings
6. City/District Standards
a. Specifications
b. Drawings
7. Referenced Specifications and Standards
8. Referenced Drawings
1.31 FIRE PROTECTION
A. The Contractor shall provide access to all fire hydrants located along the line of their work. Such access shall meet the approval of the City/District Public Safety Department, and should it be necessary to close a portion of a street for a limited time, such street shall not be closed until the Contractor has the approval of said Department.
B. The City/District Public Safety Department shall be notified when a street is opened after it has been closed.
C. Approval shall be obtained from that Department for the use of any fire hydrant.
1.32 ORDER OF WORK
A. When required by specifications or plans, the Contractor shall follow the sequence of operations as set forth therein.
B. Full compensation for conforming to such requirements will be considered as included in the prices paid for the various contract items of work and no additional compensation will be allowed therefor.
1.33 DIFFERING SITE CONDITIONS
A. The Contractor shall promptly, and before the following conditions are disturbed, notify the City/District, in writing, of any:
1. Material that the Contractor believes may be material that is 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.
2. Subsurface or latent physical conditions at the site differing from those indicated.
3. Unknown physical conditions at the 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.
B. The City/District shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in the Contractor's cost of, or the time required for, performance of any part of the work, the City/District shall issue a change order under the procedures described in the contract.
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C. In the event that a dispute arises between the City/District and the Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the Contractor's cost of, or time required for, performance of any part of the work, the Contractor shall not be excused from any scheduled completion date provided for by the contract, but shall proceed with all work to be performed under the contract. The Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the contracting parties.
1.34 PROCEDURES FOR FILING AND RESOLVING CLAIMS
A. The following procedures are established for all civil actions filed to resolve claims subject to this article in accordance with the State of California, Public Contract Code, Section 20104.4.
1. Within 60 days, but no earlier than 30 days, following the filing of responsive pleadings, the court shall submit the matter to nonbinding mediation unless waived by mutual stipulation of both parties. The mediation process shall provide for the selection within 15 days by both parties of a disinterested third person as mediator, shall be commenced within 30 days of the submittal, and shall be concluded within 15 days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.
1. If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1142.10) 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 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules and pertaining to judicial arbitration.
2. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (a) arbitrators shall, when possible, be experienced in construction law, and (b) any party appealing an arbitration award who does not obtain a more favorable judgment shall in addition to payment of costs and fees under that chapter, also pay the attorney's fees on appeal of the other party.
1.35 PROCEDURES FOR CIVIL ACTIONS FILED TO RESOLVE CLAIMS A. The following procedures are established for all civil actions filed to resolve claims subject to this article in accordance with the State of California, Public Contract Code, Section 20104.4.
1. Within 60 days, but no earlier than 30 days, following the filing of responsive pleadings, the court shall submit the matter to nonbinding mediation unless waived by mutual stipulation of both parties. The mediation process shall provide for the selection within 15 days by both parties of a disinterested third person as mediator, shall be commenced within 30 days of the submittal, and shall be concluded within 15 days from 222
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the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.
2. If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1142.10) 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 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules and pertaining to judicial arbitration.
3. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (a) arbitrators shall, when possible, be experienced in construction law, and (b) any party appealing an arbitration award who does not obtain a more favorable judgment shall in addition to payment of costs and fees under that chapter, also pay the attorney's fees on appeal of the other party.
1.36 PERMITS AND LICENSES
A. The Contractor shall secure and pay for, as necessary for proper execution and completion of work:
1. All permits, including CAL/OSHA excavation permit, not specifically furnished by the City/District.
4. Government fees.
5. Licenses.
6. Certifications.
7. Business License from the City of Foster City.
8. Building, Plumbing, and Electrical Permits from the City of Foster City.
B. Give required notices as required by the permits prior to work.
C. Comply with codes, ordinances, rules, regulations, orders, and other legal requirements of public authorities which bear on performance of work.
D. Provide copies of all permits to the Engineer prior to work.
1.37 EQUAL EMPLOYMENT OPPORTUNITY POLICY
It is the policy of the City/District that all qualified persons shall be afforded equal opportunities of employment on any public works contract entered into with the City/district. To prohibit discrimination because of race, color, religion, sex or national origin, all proposers shall be prepared to demonstrate that they and their subcontractors have undertaken a continuing program to promote the full realization of equal employment opportunities.
1.38 OWNER'S RIGHT TO CORRECT DEFICIENCIES
If the Contractor should neglect to prosecute the work properly in accordance with the contract documents, the owner, after 10 consecutive calendar days following written notice to the contractor and their surety may, without prejudice to any other remedy the 223
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owner may have, and without declaring the contract in default or terminating the contract, correct such deficiencies in work intended to become a permanent part of the project, and may deduct the cost thereof from the payment then or thereafter due the Contractor or the entire cost thereof shall be paid by the Contractor or the Contractor's surety. The owner reserves the right to take over work in the event of an emergency. * END OF DOCUMENT *
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SIDEWALK REPAIR AND REPLACEMENT (2020-2022)
PAYROLL CERTIFICATION FORM
I, ____________________, the undersigned, am ______________________________, (Name – Please Print)
with the authority to act for ________________________________________________ (Position in Business)
for and on behalf of ______________________________________________________ (Name of Business and/or Contractor)
do hereby certify under penalty of perjury that the payroll records or copies thereof hereby submitted, consisting of __________________________ (Description, # of ___________ , are the originals, or true, full, and Pages) correct copies of the originals, which correctly depict the craft or type of work performed, hours and days worked, prevailing wage rates, and disbursements, by cash, check or other form, to the individual or individuals named.
DATE: ___________________ SIGNATURE ________________________________ 226
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General and Technical Requirements 1
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DIVISION 1
GENERAL AND TECHNICAL
REQUIREMENTS
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DOCUMENT 01010
SUMMARY OF WORK
PART 1 - GENERAL
The work covered under this contract will be performed at various locations throughout the City of Foster City, California.
1.01 DESCRIPTION OF PROJECT
Sidewalk Repair and Replacement (2020-2022)
1.02 WORK OF THIS CONTRACT
The work to be performed, in general, consists of removing and replacing damaged sections of existing concrete sidewalk, curb, gutter, curb ramp, and driveway; asphalt concrete pavement tie-in; curb inlet replacements and minor concrete repair surrounding curb inlet lid replacements. The work shall include traffic control, saw cutting, excavation, backfilling, compaction, installation of root barriers, asphalt patching, asphalt conforms adjacent to new gutters, and clearing and grubbing. Locations of work will be throughout the City of Foster City.
Project Areas
The City will call out the Contractor to repair/replace a section of sidewalk or length of curb or gutter, or perform other concrete repairs as listed in Part 3—Proposal Schedule at one or more locations. There will be no minimum quantities for work. The quantities may not be continuous sections. Instead, they may be the sum total of small sections on various streets.
The City of Foster City reserves the right to add or delete any work. All work performed shall be measured and paid based on the contract unit prices identified in Part 3--Proposal Schedule. * END OF DOCUMENT *
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DOCUMENT 01025
MEASUREMENT AND PAYMENT
PART 1--GENERAL
1.01 DESCRIPTION
Payment will be made on a lump sum basis or unit price basis or combination thereof, as set forth in Part 3, Proposal Schedule.
1.02 SCHEDULE OF COSTS FOR LUMP-SUM PAYMENT
NOT USED
1.03 MEASUREMENT OF QUANTITIES FOR UNIT PRICE PAYMENT
A. All work to be paid for at a contract price per unit of measurement will be measured by the ENGINEER in accordance with United States Standard Measures. Material paid for by weight shall be weighed on scales furnished by and at the expense of the Contractor. All scales shall be regularly inspected and sealed by the Division of Measurement Standards or its designated representative.
B. When required by the ENGINEER, the operator of each vehicle weighed shall obtain a weight or load slip from the weigher and deliver said slip to the ENGINEER at the point of delivery of the material.
1.04 (NOT USED)
1.05 PARTIAL PAYMENT FOR STORED MATERIALS
A.The Contractor shall receive no additional compensation for materials stored on site.
1.06 MEASUREMENT AND PAYMENT OF PROPOSAL ITEMS
A.SIDEWALK REPLACEMENT
SIDEWALK REPLACEMENT shall be measured by the square foot of actual concrete installed.
The contract price paid for concrete sidewalk shall be measured and paid for on a square foot basis. The unit price paid per square foot of sidewalk shall include full compensation for mobilization, site preparation and site clean-up, installation of concrete sidewalk, removal and disposal of existing sidewalk, excavation and grading, root pruning, backfilling, compaction, addition of lamp black paint, pedestrian and traffic control, and restoration of any damages including furnishing all labor, materials, tools, equipment and incidentals necessary to do all the work involved thereof and as directed by the Engineer, complete, in place, and accepted, and no additional compensation will be allowed therefore.
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B.STANDARD CURB AND GUTTER WITH 2 FOOT WIDE ASPHALT CONCRETE
CONFORM
STANDARD CURB AND GUTTER WITH 2 FOOT WIDE ASPHALT CONCRETE CONFORM shall be measured by the linear foot of actual concrete installed.
The contract price for STANDARD CURB AND GUTTER WITH 2 FOOT WIDE ASPHALT CONCRETE CONFORM shall be measured and paid for on a linear foot basis. The unit price paid per linear foot of concrete curb and gutter shall include full compensation for mobilization, site preparation and site clean-up, installation of concrete curb and gutter, removal and disposal of existing curb and gutter, excavation and grading, root pruning, backfilling, compaction, addition of lamp black paint, two (2) foot wide asphalt concrete conform, pedestrian and traffic control, and restoration of any damages including furnishing all labor, materials, tools, equipment and incidentals necessary to do all the work involved thereof and as directed by the Engineer, complete, in place, and accepted, and no additional compensation will be allowed therefore.
C.ROOT BARRIER
ROOT BARRIER shall be measured by the linear foot of actual root barrier installed.
The contract price paid for ROOT BARRIER shall be measured and paid for on a linear foot basis. The unit price paid per linear foot of root barrier shall include full compensation for site preparation and site clean-up, trench excavation, root pruning, backfilling, and restoration of any damages including furnishing all labor, materials, tools, equipment and incidentals necessary to do all the work involved thereof and as directed by the Engineer, complete, in place, and accepted, and no additional compensation will be allowed therefore.
D.MINOR CONCRETE REPAIR (REINFORCED STORM DRAIN CURB INLET LID)
MINOR CONCRETE REPAIR (REINFORCED STORM DRAIN CURB INLET LID) shall be measured per each as described in the specifications.
The contract price paid for MINOR CONCRETE REPAIR (REINFORCED STORM DRAIN CURB INLET LID) shall be measured and paid for on a per each basis. The unit price paid per each curb inlet lid, shall include the cost of pre-cast concrete lid sections, replacement of adjacent flags of sidewalk, and doing all work required and furnishing all labor, materials, equipment and incidentals necessary to complete the work and as directed by the Engineer and no additional compensation will be allowed therefore.
E.RESIDENTIAL DRIVEWAY
RESIDENTIAL DRIVEWAY shall be measured by the square foot of actual concrete installed.
The contract price paid for RESIDENTIAL DRIVEWAY shall be measured and paid for on a square foot basis. The unit price paid per square foot of concrete driveway shall include full compensation for mobilization, site preparation and site clean-up, installation of concrete driveway, removal and disposal of existing driveway, 233
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excavation and grading, root pruning, backfilling, compaction, addition of lamp black paint, two (2) foot wide asphalt concrete conform, pedestrian and traffic control, and restoration of any damages including furnishing all labor, materials, tools, equipment and incidentals necessary to do all the work involved thereof and as directed by the Engineer, complete, in place, and accepted, and no additional compensation will be allowed therefore.
F.COMMERCIAL DRIVEWAY
COMMERCIAL DRIVEWAY shall be measured by the square foot of actual concrete installed.
The contract price for COMMERCIAL DRIVEWAY shall be measured and paid for on a square foot basis. The unit price paid per square foot of concrete driveway shall include full compensation for mobilization, site preparation and site clean-up, installation of concrete driveway with welded wire mesh, removal and disposal of existing driveway, excavation and grading, root pruning, backfilling, compaction, addition of lamp black paint, two (2) foot wide asphalt concrete conform, pedestrian and traffic control, and restoration of any damages including furnishing all labor, materials, tools, equipment and incidentals necessary to do all the work involved thereof and as directed by the Engineer, complete, in place, and accepted, and no additional compensation will be allowed therefore.
G.CURB RAMP
CURB RAMP shall be measured per each.
Proposal Items numbered seven (7) through thirteen (13) are for seven types of curb ramp replacement. The contract price for CURB RAMP shall be measured and paid for on a per each basis. The unit price paid per curb ramp shall include full compensation for mobilization, site preparation and site clean-up, installation of curb ramp, removal and disposal of existing curb ramp, excavation and grading, root pruning, backfilling, compaction, addition of lamp black paint, two (2) foot wide asphalt concrete conform, proof-rolling, forms, joints, concrete placement, concrete finishing, detectable warning surface mats, concrete protection and curing, pedestrian and traffic control, and restoration of any damages including furnishing all labor, materials, tools, equipment and incidentals necessary to do all the work involved thereof and as directed by the Engineer, complete, in place, and accepted, and no additional compensation will be allowed therefore.
PART 2--(NOT USED)
PART 3--EXECUTION
3.01 PROGRESS PAYMENTS AND RETENTION
A.Within 5 days after the cutoff date, the Contractor shall make and submit to the ENGINEER an approximate measurement of all materials supplied and work performed up to the established cutoff date for the purpose of making a progress payment. The progress payment cutoff date shall be the monthly anniversary of the date of the issuance of the work order.
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B.The Contractor will classify the work according to items listed on the proposal schedule and will estimate the value of the same on the basis of the prices shown, or as extra work. The classification of the work performed and the value thereof will be based on the Proposal Schedule for lump sum proposal items. Payment for unit price proposal items will be based on the actual amount of work performed as measured in the field.
The Contractor’s estimate of work performed shall be subject to adjustment by the ENGINEER.
* END OF DOCUMENT *
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DOCUMENT 01500
CONSTRUCTION FACILITIES AND TEMPORARY CONTROLS
PART 1--GENERAL
1.01 DESCRIPTION
Work included: Provide temporary construction facilities, utilities and controls needed for the work.
PART 2--(NOT USED)
PART 3--EXECUTION
3.01 TEMPORARY UTILITIES
A. The Contractor shall provide and pay for all necessary temporary water, telephones, fuel, power, and sanitary accommodations.
B. The temporary facilities to be provided by the Contractor as described above shall conform to all requirements with regard to operation, safety, and fire hazards of state and local authorities and of underwriters.
C. Site and facilities shall be returned to their original “as-found” condition or as otherwise specified, at the completion of the project.
3.02 SOUND CONTROL
A. Comply with all local sound control and noise level rules, regulations and ordinances, which apply to any work performed pursuant to the contract.
B. Each internal combustion engine, used for any purpose on the job or related to the job, shall be equipped with a muffler of a type recommended by the manufacturer.
No internal combustion engine shall be operated on the project without said muffler.
C. The maximum noise level shall be 85 dBA.
3.03 DUST AND LITTER CONTROL
A. Maintain dust control within the site and provide adequate measures to prevent a dust problem for neighbors.
B. All trucks shall be loaded in a manner which will prevent dropping of materials or debris on streets. The loads shall be trimmed and all material shall be removed from shelf areas of vehicles to prevent spillage. Take precautions when necessary to avoid creating dust and littering by watering the load after trimming. 236
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C. Keep the job site in a neat and sanitary condition during the progress of the work.
Dispose of refuse as often as directed or as may be necessary so that at no time shall there be any unsightly accumulation of rubbish.
3.04 DRAINAGE AND GROUNDWA
The Contractor shall be responsible for caring for the drainage on the entire work area and the disposal of such drainage from commencement of work until contract completion. Special care shall be exercised to prevent erosion in disturbed earth areas and silt or eroded materials shall not be introduced into any storm drain system or water course.
3.05 CONSTRUCTION WATER
A. The Contractor shall provide and maintain all necessary equipment and facilities for conveying water to places where it will be used and for changing the pressure if required. The Contractor shall plan and perform the work in a manner, which will minimize the use of water.
B. The Contractor shall furnish, at his expense, all water required for the completion of the work. Water is available to the Contractor at the nearest hydrant provided the Contractor has made arrangements to obtain a temporary water meter from the City. The Contractor shall pay for all necessary rental and deposit fees required for temporary meter. The temporary hydrant meter application is attached at the end of this section.
3.06 SECURITY OF SITE
A. Security of the site shall be the Contractor’s responsibility from commencement of work until completion of contract.
B. The Contractor shall provide and maintain such fences, barricades, signs, and warning lights as may be required to provide safety against accidents.
3.07 RIGHTS IN LAND AND IMPROVEMENTS
A. Nothing in these specifications shall be construed as allowing the Contractor to make any arrangements with any person to permit occupancy or use of any land, structure, or building within the limits of the contract for any purpose whatsoever.
B. The Contractor shall not occupy City/District-owned property outside the right of way as shown on the plans unless he enters into a rental agreement with the City/District.
3.08 FIELD OFFICE AND LAYDOWN AREAS
The Contractor shall procure additional space for laydown of materials, spoils and equipment at Contractor’s own expense. Location of such additional space shall be subject to approval of the City/District.
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3.09 EXISTING UTILITIES LOCATION - U.S.A.
The City of Foster City subscribes to the Underground Service Alert (U.S.A.) network, which is a clearinghouse for notifying all local utility agencies to mark the locations of underground systems in construction areas. Prior to grading and excavation activities by the Contractor, they shall contact U.S.A. by calling 1-800-227-2600 with ample advance time to allow the utility companies to respond. Contacting U.S.A. does not relieve the Contractor from their responsibility to determine location and depth of buried utilities, to protect such utilities, or to repair buried utilities damaged by their operations.
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FISCAL YEAR 2022/2024
CITY OF FOSTER CITY/ESTERO MUNICIPAL IMPROVEMENT DISTRICT
TEMPORARY HYDRANT METER APPLICATION
APPLICANT: ______________________________________________DATE:_____________________ COMPANY: _________________________________________________PHONE:_________________ ADDRESS:_________________________________________________________________________ ____________________________________________________________________________________ EMAIL ADDRESS____________________________________________________________________ CONTRACTOR’S LICENSE NO.:___________________ CLASS:____________ EXP.: _____________ FOSTER CITY BUSINESS LICENSE NO.: _______________________________ EXP.: ___________ JOBSITE: ___________________________________________________________________________ METER CONNECTION LOCATION:_______________________________________________________
NOTE THAT THE METER MAY NOT BE RELOCATED WITHOUT WRITTEN PERMISSION FROM THE DISTRICT.
PURPOSE OF SERVICE:______________________________________________________________ ____________________________________________________________________________________ Customer must provide a reading at the end of each calendar quarter (March 31, June 30, Sept 30, and Dec 31) by emailing: the reading, company name and meter number to [email protected]. ____ (initial) Meter must be returned to the District Corporation Yard (100 Lincoln Center Drive in Foster City, 650/286-8140) within seven (7) calendar days of the date permit expires. ____ (initial) Failure to do so may result in forfeiture of all deposits. Charges will be assessed per the current adopted Master Fee Schedule. ____ (initial)
Applicant’s Signature: __________________________________________________________________ ************************************************************************************************************************
FOR CITY/DISTRICT USE ONLY
PERMIT EXPIRATION DATE (12 months from today)_______________ PERMIT FEE: Non-refundable $ 60.00 - WC
METER DEPOSIT: Balance refundable. Details on back. $ 1,557.00 - MD WATER DEPOSIT: Balance refundable. Details on back. $ 1,500.00 - WD TOTAL: (to be paid with application) $ 3,117.00
Application Approved: _______________________________________ Date: _____________________ (PWM Staff)
Fee to SC S-23, Acct. 31-3470 Deposits to SC S-23, Acct. 31-2460 Monthly Charges to SC S-73, Acct. 31-3475 METER DEPOSIT REQUIRED: $1,557.00 Upon return of the hydrant meter in good condition, the contractor shall be entitled to refund of the following percentages of the meter deposit if returned within the following period from the issuance date of the meter:
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1 month or less 90%
3 months or less 85%
6 months or less 80%
12 months or less 75%
Meter must be returned or renewed at the end of 12 months. Failure to do so will result in an additional reduction of deposit by 10% of the original amount per month or portion thereof. Should the meter be found to be defective or damaged upon testing, the cost of repairs (labor and material) shall be subtracted from the deposit. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ WATER DEPOSIT REQUIRED: $1,500.00 Meter charge according to Master Fee Schedule for Fiscal Year 16/17 @ $ 220.50 shall be deducted from the water deposit each month. In addition, the water usage charge is as stated per Master Fee Schedule per unit (100 cubic feet or 748 gallons) for Fiscal Year 16/17 @ $ 4.97 per unit, and shall be deducted from the deposit at the time incurred or when the meter is returned.
Date out Initial
METER SIZE: 3” ________ ________ Meter Number: ____________________________________
Checked out by: ____________________________ Date Returned/Checked by: __________________________
PRINT NAME
Charge as follows (if not returned)
Other Accessories
Meter Wrench ________ ________ $60 _____________ ____________ Reducer, 2-1/2”x3/4” ________ ________ $40 _____________ ____________ Reducer, 2-1/2”x1-1/2” ________ ________ $35 _____________ ____________ Fire Hose, 6’ x 2-1/2” ________ ________ $140 _____________ ____________ Received by ________________________________________
Signature/Date
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ DATE
METER
READING
WATER
QUANTITY
COST OF
WATER USED
SERVICE
CHARGE
PER MONTH
TOTAL
CHARGES
DEPOSIT
BALANCE
$_220.50
_______ __________ ___________ __________ ________ _________ $__________ _______ __________ ___________ __________ ________ _________ __________ _______ __________ ___________ __________ ________ _________ __________ _______ __________ ___________ __________ ________ _________ __________ City of Foster City
Temporary Water Hydrant Rental Receipt
Date: ____________________________
Receipt No.: ____________
Received From: _____________________________________________________________________________________
THREE THOUSAND ONE HUNDRED SEVENTEEN DOLLARS $3,117.00 Check No. ______________ BY; ______________________________________________ Send ORIGINAL to Finance; cc: Meter Binder, Applicant
Temporary Hydrant Meter Application Instructions:
You must obtain a Foster City Business License to rent a Temporary Hydrant Meter and include the information on the applications
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A deposit check is required, made out to The City of Foster City, in the amount of three thousand one hundred and seventeen dollars ($3,117.00).
Brin both the completed application and the deposit check to the Corporation Yard at 100 Lincoln Centre Drive, Foster City, CA between the hours of 8 am and 4 pm Monday through Thursday, and until 3pm Friday.
Charges incurred from water usage, meter charges and rental fee will paid from this deposit and, upon return of the meter in good condition, the remainder will be returned to the applicant. (See Application for a more detailed explanation of charges).
Call 650-286-8140 with any questions.
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DOCUMENT 01570
TRAFFIC CONTROL
PUBLIC CONVENIENCE AND PEDESTRIAN TRAFFIC CONTROL
Must comply with the traffic regulations requirements as specified in this section. Including but not limited to: Submit a traffic control plan which conforms to the State of California "Manual of Traffic Controls for Construction and Maintenance Work Zones” and the Work Area Traffic Control (WATCH) Handbook. Include lane closures, detours, and parking prohibitions.
Contractor shall be responsible to provide all traffic control measures necessary to divert sidewalk users safely around work areas. This includes, but is not limited to, placing signage, barricades, cones, temporary walkways, etc.
The Contractor shall be responsible for adequate barricading of the work area and controlling of traffic in the vicinity of the project. Access for local traffic must be maintained.
For work in street areas, at least seven calendar days prior to commencing work, the Contractor shall submit his schedule and traffic plan to the Engineer for approval.
WEEKEND USAGE
All significant phases of concrete work must be completed within the same (Monday to Friday) week as they are started. Sections of Sidewalk, curb and gutter, and curb ramps must be completed and ready for use during the weekend.
An exception may be the installation of the detectable warning surface mats for curb ramps, which can be installed when the concrete has cured sufficiently to accept the mat in accordance with the manufacturer’s specifications. Provisions for alternative walkway would be required.
LANE CLOSURES AND DETOURS
No more than one-half (½) of the roadway shall be closed to traffic at any time, and traffic in both directions shall be maintained at all times. Open excavations and trenches shall be adequately covered when no work is being performed.
WORKING HOURS - MAJOR STREETS
All work within the right-of-way of freeway ramps and major streets including the adjoining intersections shall be limited to the hours of 9:00 AM to 3:30 PM. Major streets are listed as follows:
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1. Foster City Boulevard 6. Beach Park Boulevard
2. East Hillsdale Boulevard 7. Metro Center Boulevard
3. East Third Avenue 8. Triton Drive
4. Edgewater Boulevard 9. Vintage Park Drive
5. Shell Boulevard 10.Chess Drive
NO PARKING SIGNS
No Parking signs shall be posted a minimum of 72 hours in advance of the parking restriction. The date and time of parking restrictions shall be clearly posted on No Parking signs.
JOB CONDITIONS
The following general job conditions apply to the project:
1. Provide access to all residences whenever possible throughout the duration of the project. Notify property owners 24 hours in advance of work that will interrupt use of driveways or other frontage improvements.
2. Orange traffic cones and barricades as appropriate shall be used to mark traffic lanes whenever vehicles are restricted from using the normal traffic lanes on a street.
3. Street parking may be restricted as necessary to facilitate construction activity.
Notify property owners of parking restrictions 48 hours in advance.
4. Lighted arrow boards shall be used for all lane closures on boulevards and other locations when appropriate.
TRAFFIC CONTROL DEVICES
1. Traffic signs, flashing lights, lighted arrow boards, barricades and other traffic safety devices used to control traffic shall conform to the requirements of Section 12, "Construction Area Traffic Control Devices," and Section 7, "Legal Relations and Responsibility," of the CalTrans Standard Specifications. Flashers shall be provided on each barricade. (Section 360, California Vehicle Code, defines highway to include streets.)
2. Warning signs used for nighttime conditions shall be reflectorized or illuminated. "Reflectorized signs" shall have a reflectorized background and shall conform to the current State of California Department of Transportation specification for reflective sheeting on highway signs.
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GENERAL
1. Except where public roads have been approved for closure, traffic shall be permitted to pass through designated traffic lanes with as little inconvenience and delay as possible.
2. Convenient access to driveways and buildings in the vicinity of work shall be maintained as much as possible. Temporary approaches to, and crossing of, intersecting traffic lanes shall be provided and kept in good condition.
3. When leaving a work area and entering a roadway carrying public traffic, the Contractor's equipment, whether empty or loaded, shall in all cases yield to public traffic.
* END OF DOCUMENT *
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DOCUMENT 01580
CONSTRUCTION METHODS
PART 1 – CONSTRUCTION METHODS
1.01 SAWCUTTING
Existing concrete and asphalt concrete to be removed shall be saw-cut with a power driven saw at the first scoring line. Remove only complete squares of concrete. The Contractor shall remove the saw cut slurry with a vacuum immediately following the cutting process.
Full compensation for saw-cutting, shall be included in the various prices proposed for related work and no additional compensation will be allowed therefor.
1.02 REMOVE CONCRETE
All concrete shall be removed to an expansion joint or saw-cut at score-line or as determined by the Engineer. Concrete shall be removed in such a manner as to leave an even edge without spalling, breaks or chips on the remaining concrete. Concrete removal shall include removal of all root, vegetation, debris and loose soil.
Full compensation for concrete removal, including removal of all root, vegetation, debris and loose soil, shall be included in the various prices proposed for related work and no additional compensation will be allowed therefor.
1.03 REMOVE ASPHALT CONCRETE
A two-foot wide strip of asphalt along the work area (curb and gutter) identified shall be removed.
All asphalt concrete shall be removed to a saw-cut score-line or as determined by the Engineer.
Where removal of asphalt concrete is required, a straight neat cut with a power driven saw shall be made before removing asphalt concrete. Asphalt concrete removal shall include removal of all root, vegetation, debris and loose soil.
Full compensation for asphalt concrete removal, including removal of all root, vegetation, debris and loose soil, shall be included in the various prices proposed for related work and no additional compensation will be allowed therefor.
1.04 TREE ROOT REMOVAL / ROOT PRUNING
Root pruning shall be performed to minimize impact and injury to tree root systems during the project. Roots shall be cut cleanly using a handsaw, or hand shears. Roots shall be cut cleanly prior to use of the backhoe or other excavator to remove material from the site. At no time is the backhoe or other excavator to be used to remove roots. After proper pruning, cover exposed roots within thirty (30) minutes to minimize desiccation.
Tree roots shall be cut and removed to a maximum depth of twelve (12) inches below level finished grade of the aggregate base and backfilled with eight (8) inches clean native backfill material and four (4) inches of Class 2 aggregate base. Wet and compact the aggregate base and the top six (6) inches of native subbase to 95% relative compaction. 246
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If tree removal is required, appropriate tree removal permits must be secured prior to beginning work.
Full compensation for doing all work required for tree root removal, including furnishing all labor, materials, equipment, and incidentals necessary to complete the work and as directed by the Engineer, shall be included in the prices proposed for “Square Foot of Sidewalk Replacement”, or “Linear Foot of Standard Curb and Gutter with 2’ wide AC conform”, or “Square Foot of Residential Driveway”, or “Square Foot of Commercial Driveway” or “Per Curb Ramp” and no additional compensation will be allowed therefor.
1.05 DISPOSAL OF EXCAVATED MATERIAL
Contractor shall properly dispose of all excavated material outside of the City limits to a waste site secured by the Contractor and shall be disposed of in such a manner as to meet all requirements of State, County, and municipal regulations regarding health, safety and public welfare. Do not allow demolished materials to accumulate on site. No overnight storage of material will be allowed.
Full compensation for disposal of excavated material, including disposal of concrete, asphalt concrete, roots, vegetation, debris and loose soil, shall be included in the various prices proposed for related work and no additional compensation will be allowed therefor.
1.06 PROTECTION AND RESTORATION OF EXISTING IMPROVEMENTS Contractor shall be responsible for all damage to existing improvements resulting from his operations. Contractor shall repair at his expense all damage to existing improvements resulting from his operations including:
1. The repair and replacement of minor irrigation systems damaged as part of the project;
2. The repair and replacement of landscaping damaged or removed as part of project;
3. Water and gas services damaged by the Contractor’s operations.
If a water service in the sidewalk section needs to be lowered it will be done by the City of Foster City Water Department. Contractor will not be responsible to replace any pull boxes etc. that were broken prior to start of work.
1.07 ROOT BARRIER
Root barrier shall be installed behind all new and existing sidewalks. The root barrier shall be high-density polyethylene 0.080 inches thick, 18 inches in height. Contractor shall excavate up to a 4-inch wide trench adjacent to the landscaping to a depth of 2-ft. The Contractor shall remove all roots within the trench. The root barrier is at grade. The root deflectors shall face away from the path. Any landscaping and irrigation affected by construction shall be replaced.
1.08 AGGREGATE BASE
Aggregate base shall be Class 2 (1/2-inch max) AB compacted to 95% relative compaction.
Aggregate base shall conform to specified thickness and compaction. Sidewalk base, curb ramp base, and residential driveway base shall be 4-inch thick Class 2. Curb and Gutter base and commercial driveway base shall be 6-inch thick Class 2. 247
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Aggregate base shall be produced from commercial quality aggregates consisting of broken stone; crushed gravel, natural, clean, rough-surfaced gravel and sand; or a combination thereof.
Spreading and compacting shall be performed by methods that will produce a uniform base, firmly compacted, and free from pockets of coarse or fine material.
Full compensation for doing all work required for placement of aggregate base, including furnishing all labor, materials, equipment and incidentals necessary to complete the work and as directed by the Engineer, shall be included in the prices proposed for “Square Foot of Sidewalk”, or “Linear Foot of Curb and Gutter with 2’ wide AC conform”, or “Square Foot of Residential Driveway”, or “Square Foot of Commercial Driveway” or “Per Curb Ramp," and no additional compensation will be allowed therefor.
1.09 CONCRETE SIDEWALK
Concrete sidewalk shall conform to Section 90 of the State Specifications for materials, mixing and placement and to City Standard Details. Use Portland Cement: ASTM C 150, Type 1, Class A (6 Sack) with one pint of lampblack per cubic yard of concrete. Sidewalk shall be 4 inches minimum with broom-finished surface.
Expansion joints shall be installed at intervals not exceeding 20 feet; and deep score or cold joint shall be installed at 10 foot intervals. Sidewalk score lines shall be located at 2.5 foot intervals.
Where new pour abuts existing concrete, 8-inch long, No. 4 steel rebar shall be installed 4-inches into existing concrete as shown in City Standard Details.
The area behind the sidewalk shall be backfilled with select clean native soil (no rocks, free of organic matter and deleterious material) to finish grade on both sides of the new sidewalk or to the back of the curb after the forms are removed.
To minimize inconvenience to traffic and the public in general, the Contractor shall schedule the concrete placement to be no more than seven (7) calendar days behind the removal operation.
Safe and adequate pedestrian and vehicular movement at and around all construction sites shall be provided and maintained at all times. Approved barriers and signs (traffic flagging personnel, if necessary), shall be furnished and utilized by the Contractor to ensure public safety at all times.
All work mentioned above shall be included in the unit price for this proposal item.
1.10 CONCRETE CURB AND GUTTER
Concrete curb and gutter shall conform to Section 90 of the State Specifications for materials, mixing and placement and to City Standard Details. Use Portland Cement: ASTM C 150, Type 1, Class A (6 Sack) with one pint of lampblack per cubic yard of concrete. Use one standard brand throughout all work. Curb and gutter shall be 6 inches thick with broom-finished surface. Curb and gutter shall be poured separately from the sidewalk.
Expansion joints shall be installed at intervals not exceeding 20 feet. The expansion joints shall be installed vertically and shall extend to the full depth and width of the curb and gutter, or as directed by the Engineer. Where new pour abuts existing concrete, 8-inch long, No. 4 steel rebar shall be installed 4-inches into existing concrete as shown in City Standard Details. Excess filler material shall be trimmed-off in a neat and skillful manner. Deep score-lines shall be installed at 10 foot intervals.
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1.11 EXPANSION JOINTS
Expansion joints shall be filled with ½-inch thick pre-molded joint filler shaped to fit the concrete that is being placed. Joint fillers shall extend the full width and depth of expansion joint, flush with finished concrete surface. Expansion joints shall be located at intervals of 20 feet and at the end of curb returns. Deep score lines shall be located at intervals of 10 feet.
Full compensation for installation of expansion joints, shall be included in the various prices proposed for related work and no additional compensation will be allowed therefor.
1.12 REINFORCING BARS / DOWELS
Eight (8) inch No. 4 steel rebar shall be installed at locations as shown in the City Standard Details and as directed by the Engineer. Reinforcing bars and tie bars shall be ASTM A 615, Grade 60, deformed. Where a new pour abuts existing concrete, rebar shall be installed 4-inches into existing concrete.
Full compensation for installation of rebar, shall be included in the various prices proposed for related work and no additional compensation will be allowed therefor.
1.13 COMMERCIAL CONCRETE DRIVEWAY
Commercial concrete driveway shall conform to City Standard Details. Use Portland Cement:
ASTM C 150, Type 1, Class A (6 Sack) with one pint of lampblack per cubic yard of concrete.
Welded wire mesh 4” x 4” shall be installed over entire driveway area. Driveway shall be 6 inches thick with broom-finished surface. Driveway base shall be 6-inch thick Class 2 (1/2-inch max) AB compacted to 95% relative compaction.
1.14 RESIDENTIAL CONCRETE DRIVEWAY
Use Portland Cement: ASTM C 150, Type 1, Class A (6 Sack) with one pint of lampblack per cubic yard of concrete. Driveway shall be 4 inches thick with broom-finished surface. Driveway base shall be 4-inch thick Class 2 (1/2-inch max) AB compacted to 95% relative compaction.
1.15 CURB RAMPS
Concrete curb ramps shall conform to the most recent Caltrans Standard Plans. Contractor shall be responsible to check for the more recent revision of the Standard Plans. Use Portland Cement:
ASTM C 150, Type 1, Class A (6 Sack) with one pint of lampblack per cubic yard of concrete.
Curb ramps shall be with broom-finished surface. Curb ramp base shall be 4-inch thick Class 2 (1/2-inch max) AB compacted to 95% relative compaction.
Any existing pull boxes, valve boxes etc. shall be aligned and leveled in the demolished area to be flush and level with finished surface of new ramp. Curb ramps shall have a safety yellow polyurethane tactile mat extending the full width of the ramp. The edge of the detectable warning surface nearest the street shall be between 6 inches and 8 inches from the gutter flow-line and shall extend three feet towards the back of the ramp. The surface dimensions of raised truncated domes and spacing shall conform to the most recent Caltrans Standard Plans. The mat shall be mechanically fastened and adhered to the underlying substrate according to the manufacturer’s instructions.
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1.16 ASPHALT CONCRETE
Asphalt concrete shall be C2-AR-4000 (1/2” max) in accordance with the applicable portions of Section 39 and Section 92 of the State Specifications. At a minimum, shall match existing thickness of adjacent pavement.
Includes replacement of a two-foot wide strip of asphalt adjacent to the areas of curb and gutter curb ramps, and driveways, identified for replacement.
A 6” depth of existing section shall be neatly saw-cut and removed. Remove all roots up to a maximum depth of twelve (12) inches below level finished grade. The underlying material to remain in place shall be re-compacted to 95%. The Contractor shall top off with new base material and compact the top foot to 95% relative compaction. Installed base material shall be Class 2 (1/2” max) AB.
After approval of compaction of the base material and prior to placing new asphalt concrete, Contractor shall prime all horizontal and vertical surfaces with a tack coat of liquid asphalt binder.
Care shall be taken to avoid tracking binder material onto existing pavement surfaces beyond the limits of construction.
Asphalt concrete will be installed in two separate lifts no greater than 3 inches in thickness (compacted). Fill the 6” depth of asphalt concrete repair to match level of adjacent pavement. The finished edges will be tack coated with liquid asphalt and sanded.
Full compensation for installation of two (2) foot asphalt concrete conform adjacent to newly installed curb and gutter, driveway or curb ramps shall be included in the price proposed for “Linear Foot of Concrete Curb and Gutter” or “Square Foot of Residential/Commercial Driveway” or “per Curb Ramp” and no additional compensation will be allowed therefor.
1.17 TACK COAT
Before replacing asphalt concrete, an asphalt-emulsion paint binder (tack coat) shall be applied to all horizontal and vertical surfaces of existing pavement and to all vertical surfaces of curbs, gutters and construction joints in accordance with the applicable portions of Section 39 of the State Specifications.
Full compensation for application of tack coat, shall be included in the various prices proposed for related work and no additional compensation will be allowed therefor.
1.18 MINOR CONCRETE REPAIR / CATCH BASINS
This involves the removal, disposal and replacement of existing pre-cast catch basin lid, adjustment of catch basin to grade, and replacement of sidewalk sections directly adjacent to catch basin. The top of the catch basin shall be accurately brought flush with the surface of the surrounding adjacent sidewalk. Pre-cast catch basin lid shall be Christy or approved equal of the type and dimensions shown on the Standard Details.
Where a new pour abuts existing concrete, two (2) eight (8) inch No. 4 steel rebar shall be installed 4-inches into existing concrete.
Reinforced curb inlet lids shall be measured and paid for on a per each basis. The unit price paid per each curb inlet, shall include the cost of pre-cast concrete sections and doing all work required 250
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and furnishing all labor, materials, equipment and incidentals necessary to complete the work and as directed by the Engineer and no additional compensation will be allowed therefor.
1.19 FINISHES
Finish surfaces to true planes within a tolerance of ¼-inch in 10 feet as determined by a 10-foot long straightedge placed anywhere on the surface in any direction. Cut down high spots and fill low spots. Re-float surface to a uniform granular texture. Finish with a medium to fine textured broom finish perpendicular to line of traffic to provide a uniform fine line texture finish. Restore appearance, quality, and condition of finished surfacing to match adjacent work, and eliminate evidence of restoration to the greatest extent possible.
1.20 DRAINAGE
Provide a smooth transition between existing adjacent grades and new grades. Flow line of gutter shall conform to current drainage flow to prevent pooling and eliminate low spots.
1.21 DEBRIS AT STORM DRAINS
Contractor shall take all measures to prevent dirt, debris and obstructions of any kind from entering storm lines, catch basins and appurtenant drainage structures. If debris infiltrates, Contractor shall be responsible for removal of all debris that enters the storm drain system from construction activity.
1.22 DUST CONTROL
No separate payment will be made for any work performed or material used to control dust resulting from the Contractor's performance of the work, or by public traffic, either inside or outside of the right-of-way. Full compensation for all such dust control shall be considered as included in the prices paid for the various items of work and no additional compensation will be allowed therefor.
* END OF DOCUMENT *
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AND
ATTACHMENTS
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Standard Details and Attachments 3
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STANDARD DETAILS AND ATTACHMENTS
STANDARD DETAILS
The following City Standard Details and Caltrans Standard Details are part of these Technical Requirements:
Attachment
#
Description Detail #
Attachment 1 Sidewalk Installation Detail ST-001
Attachment 2 Sidewalk
Replacement Detail ST-002
Attachment 3 Curb and Gutter Detail STS-09
Attachment 4 Root Barrier See “Sidewalk
Installation”
Attachment 5 Curb Inlet – Type 1 -
Attachment 6 Commercial Driveway Detail ST-025
Attachment 7 Curb Ramps Caltrans A88A dated
2018*
*Latest Caltrans Standard. Contractor is responsible for utilizing the latest Caltrans Standard A88A plan at date of construction.
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DATE: March 21, 2022
TO: Mayor and Members of the City Council
VIA: Kevin Miller, Interim City Manager
FROM: Oz Jimenez, Recreation Coordinator
SUBJECT: AGREEMENTS FOR CONTRIBUTIONS BY SPORTS GROUPS
TOWARDS CAPITAL COSTS ASSOCIATED WITH
CONVERSION OF SEA CLOUD SPORTS FIELDS S1, S2, AND
B1 TO SYNTHETIC TURF
RECOMMENDATION
It is recommended that the City Council approve the attached resolution authorizing the City Manager to enter into agreements with and collect funds toward the cost of conversion of Sea Cloud Sports Fields S1, S2, and B1 to Synthetic Turf from Foster City Youth Softball Association (FCYSA) totaling $5,000 over four (4) years and Foster City Tournament Baseball (FCTB) totaling $20,000 over six (6) years.
EXECUTIVE SUMMARY
On September 8, 2020, City Council approved a resolution authorizing the City Manager to enter into agreements with and collect funds from American Youth Soccer Organization and Adult Soccer League (FCAYSO), Peninsula Youth Soccer Club (PYSC), FCYSA, and FCTB for contributions totaling $495,000 over ten (10) years toward the cost of conversion of Sea Cloud Sports Fields S1, S2, and B1 to Synthetic Turf. Donor groups receive priority scheduling of the fields and a reduced $10 per hour facility room rental fee in the Master Fees and Service Charges Schedule. FCAYSO and PYSC signed their respective agreements. FCYSA is requesting a revised agreement since the original agreement’s contribution amount was listed incorrectly. FCTB is 256
also requesting a revised agreement due to funding concerns brought about by the COVID-19 pandemic which was agreed upon with staff prior to the agreement going to City Council.
BACKGROUND
On September 8, 2020, City Council approved a resolution authorizing the City Manager to enter into agreements with and collect funds from FCAYSO, PYSC, FCYSA, and FCTB for contributions totaling $495,000 over ten (10) years toward the cost of conversion of Sea Cloud Sports Fields S1, S2, and B1 to Synthetic Turf. FCAYSO and PYSC signed their respective agreements.
FCYSA and FCTB did not sign but requested revised agreements since the agreements brought forward were not the actual final agreements that had been negotiated with staff.
Foster City Youth Softball Association (FCYSA)
Prior to going to City Council in 2020, staff and FCYSA had come to an agreement on a $5,000 contribution. Unfortunately, when the agreement went to City Council, staff had inadvertently excluded certain changes to the agreement. Once the agreement was emailed to FCYSA via DocuSign, FCYSA did not sign due to the incorrect contribution amount being listed. FCYSA reached back out to staff to make the corrections in order to formally sign the agreement. The revised agreement for FCYSA’s would reduce their financial obligation from $25,000 to $5,000. FCYSA uses the turf fields the least amount of time compared to all the other regular user youth sports groups.
Foster City Tournament Baseball (FCTB)
As FCTB received the DocuSign email, they also noticed that a contingency clause they negotiated with staff was missing and reached out to staff asking for the corrections to the agreement to sign and begin making their contributions as originally agreed upon.
After not being able to offer their annual summer tournaments on Memorial Day Weekend and Fourth of July in 2020, FCTB requested that a stipulation be added to the agreement allowing FCTB to extend their contribution to the following year should the summer tournament be cancelled in any one year.
The agreement amount for FCTB would remain the same $20,000 from the original contract City Council approved on September 8, 2020.
257
REVISED Sports Group Contribution to Synthetic Conversion Summary
Organization
FY 2021-
2022 Initial
Contribution
Annual
Contribution
Starting
FY 2021-
2022
Final Year
Maximum
Total
Contribution
FCYSA $2,000 $1,000 $1,000 $5,000
FCTB $3,000 $3,000 $2,000 $20,000
Total
Contribution
$5,000 $4,000 - $25,000
ANALYSIS
The installation of synthetic turf at these fields has increased the length of the playing season, as it provides for a consistent, durable, year-round playing surface regardless of weather. This allows for groups to host larger-scale soccer and baseball tournaments, which could result in a direct benefit to Foster City businesses. When not in use by the sports groups, the fields are available for use by residents or outside groups on a reservation basis.
FISCAL IMPACT
The anticipated revenue from the two sports groups totals $5,000 from FCYSA over four (4) years and $20,000 from FCTB over six (6) years.
CITY COUNCIL VISION, MISSION, AND VALUE/PRIORITY AREAS
This item aligns with the City Council's Facilities and Infrastructure priority area: Maintain a standard of excellence with regards to infrastructure, including streets, lagoon, levee, parks, water supply system, wastewater system, storm water collection system, and City facilities to preserve and enhance quality of life for future generations. Maintaining the sports fields with the assistance of funds from the youth sports organizations ensures the continued quality of the fields and longer usage throughout the year.
Attachments:
Attachment 1 – Resolution
258
Attachment 2 – Agreement with Foster City Youth Softball Association Attachment 3 – Agreement with Foster City Tournament Baseball Attachment 4 – September 8, 2020, Staff Report, Resolution and Attachments
259
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FOSTER CITY AUTHORIZING
THE CITY MANAGER TO ENTER INTO AGREEMENTS WITH AND COLLECT FUNDS TOWARD THE COST OF CONVERSION OF SEA CLOUD SPORTS FIELDS S1, S2 AND B1
TO SYNTHETIC TURF FROM FOSTER CITY YOUTH SOFTBALL ASSOCIATION (FCYSA) TOTALING $5,000 OVER FOUR (4) YEARS AND FOSTER CITY TOURNAMENT BASEBALL (FCTB) TOTALING $20,000 OVER SIX (6) YEARS.
CITY OF FOSTER CITY
WHEREAS, the City of Foster City owns and operates Sea Cloud Park, which was improved with playing fields used by residents and youth sports organizations; and WHEREAS, Foster City sports groups requested that City consider converting Sea Cloud Park playing fields S1, S2, and B6, (“Sea Cloud Fields”) from grass fields to synthetic turf fields in order to increase the playing season and enhance their ability to host large scale tournaments; and
WHEREAS, City agreed that conversion of Sea Cloud Fields to synthetic turf was desirable to provide year-round access to playing fields, attract large scale tournaments which benefit local business, and to minimize maintenance costs and water usage; and WHEREAS, in recognition of their substantial use of Sea Cloud Fields and the benefits they will receive from conversion of the Sea Cloud Fields to synthetic turf fields, Foster City based sports groups agreed to cumulatively contribute $475,000 over ten years to reimburse the City for a portion of the costs to convert the Sea Cloud Fields; and WHEREAS, in reliance upon this funding commitment, City planned, designed, and constructed the Project at a cost of $3,311,960; the sports groups’ commitment to contribute funds to the Project was a material inducement to the City to undertake the Project; and, but for their agreement to contribute such funds, City would not have undertaken the Project; and
WHEREAS, the local sports groups and City desire to enter into agreements to set forth terms and conditions regarding the local sports groups’ contributions to partially reimburse the City for Project costs; and
WHEREAS, the City Council previously approved agreements with these groups, but two of the agreements needed to be revised prior to signing and; 260
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Foster City does hereby authorize the City Manager to enter into agreements with and collect funds toward the cost of conversion of sea cloud sports fields S1, S2, and B1 to synthetic turf from Foster City Youth Softball Association (FCYSA) totaling $5,000 over four (4) years and Foster City Tournament Baseball (FCTB) totaling $20,000 over six (6) years.
Organization
Total
Contribution
Foster City Youth Softball Association $5,000
Foster City Tournament Baseball $20,000
PASSED AND ADOPTED as a resolution of the City Council of the City of Foster City at the regular meeting held on the 21st day of March 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RICHA AWASTHI, MAYOR
ATTEST:
PRISCILLA SCHAUS, CITY CLERK
261
1 AGREEMENT TO CONTRIBUTE FUNDS TO THE SYNTHETIC TURF FIELD
CONVERSION PROJECT AT SEA CLOUD PARK
This Agreement to Contribute Funds to the Synthetic Turf Field Conversion Project at Sea Cloud Park (“Agreement”) is made as of March 21, 2022, between the City of Foster City (“City”), a California municipal corporation, and Foster City Youth Softball Association, a tax-exempt not for profit sports organization, herein after known as DONOR.
RECITALS
A. City owns and operates Sea Cloud Park, which among other things, was improved with grass and turf playing fields used by residents and youth sports organizations for baseball and soccer.
B. DONOR provides community sports programs at Sea Cloud Park in Foster City and expects its enrollment to continue to grow.
C. DONOR is a member of a group of youth sports organizations that requested that City consider converting Sea Cloud Park playing fields S1, S2, and B1, (“Sea Cloud Fields”) from grass fields to synthetic turf fields in order to increase the playing season and enhance their ability to host large scale tournaments.
D. City agreed that conversion of the Sea Cloud Park Fields to synthetic turf was desirable to provide its residents and youth sports teams year-round access to playing fields, attract large scale tournaments which benefit local business, and to minimize maintenance costs and water usage.
E. In recognition of their substantial use of the Sea Cloud Fields and the benefits they will receive from conversion of the Sea Cloud Park Fields to synthetic turf fields, DONOR agreed to contribute funds to reimburse the City for a portion of the costs to convert the Sea Cloud Fields to synthetic turf (“Project”) in an amount and on a schedule as enumerated in Exhibit A.
F. In reliance upon this funding commitment, City planned, designed, and constructed the Project at a cost of $3,311,960. DONOR’s agreement to contribute funds to the Project was a material inducement to the City to undertake the Project and but for DONOR’s agreement to contribute such funds City would not have undertaken the Project.
G. DONOR and City desire to enter this Agreement to set forth terms and conditions regarding City’s undertaking of the Project and DONOR’s contributions to partially reimburse the City for Project costs.
NOW THEREFORE, for and in consideration of the foregoing and the mutual covenants and conditions set forth in this Agreement, DONOR and City agree as follows:
262
2 AGREEMENT
1.DONOR OBLIGATIONS.
a. In consideration of City’s agreement to undertake the Project and to indemnify DONOR against any claims based on the design or construction of the Project, DONOR agrees to contribute in an amount and on a timeline as enumerated in Exhibit A, to City to reimburse the City for Project design, administration and construction costs, whether such costs are incurred prior to or subsequent to the date of this Agreement.
b. DONOR understands and agrees that its agreement to contribute funds to the City to reimburse it for a portion of the Project costs was a material inducement for the City to undertake the Project and but for DONOR’s agreement, City would not have carried out the Project.
2.CITY RIGHTS AND OBLIGATIONS.
City designed and constructed the Project, converting Sea Cloud Park playing fields designated as S1, S2, and B1, from grass fields to synthetic turf fields in 2019.
3.INDEMNIFICATION OF DONOR. If DONOR makes the Initial Contribution and Annual Contributions specified in section 1, then City shall defend, indemnify and hold DONOR harmless from and against any and all claims, liabilities, costs or expenses for any damage due to death or injury to any person, injury to any property, or any other damage to the extent arising from or relating to the design or construction of the Project.
4.DEFAULT. If either party (“demanding party”) has a good faith belief that the other party (“defaulting party”) is not complying with the terms of this Agreement, the demanding party shall give written notice of the default (with reasonable specificity) to the defaulting party and demand the default to be cured within ten days of the notice.
If: (a) the defaulting party fails to cure the default within ten days of the notice, or, (b) if more than ten days are reasonably required to cure the default and the defaulting party fails to give adequate written assurance of due performance within ten days of the notice, then (c) the demanding party may terminate this Agreement upon written notice to the defaulting party and shall be entitled to exercise all rights and seek all remedies granted by law, including specific performance.
5.NOTICES. All notices required or contemplated by this Agreement shall be in writing and shall be delivered to the respective party as set forth in this section.
Communications shall be deemed to be effective upon the first to occur of: (a) actual receipt by a party, or (b) actual receipt at the address designated below, or (c) three working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. Either party may modify their respective contact information identified in this section by providing notice to the other party. 263
3 To: City of Foster City To: Foster City Youth Softball Assoc.
Attn: Oz Jimenez, Recreation Coordinator Attn: Anthony Kong or Club Treasurer 650 Shell Boulevard PO Box 42111
Foster City, CA 94404 Foster City, CA 94404
[email protected] [email protected]
6.HEADINGS. The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement.
7.SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties’ intent under this Agreement.
8.GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of San Mateo.
9.ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.
10.ASSIGNMENT AND DELEGATION. This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of the DONOR’s obligations be delegated, without the written consent of the City. Any attempt to assign or delegate this Agreement without the written consent of the City shall be void and of no force or effect.
11.MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties.
12.WAIVERS. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement.
13.MUTUAL DRAFTING. Each party recognizes that this is a legally binding contract and acknowledges and agrees that they have had the opportunity to consult with legal counsel of their choice. Each party acknowledges that it has cooperated in the drafting, negotiation and preparation of this Agreement and agrees that any uncertainty herein is the fault of both of the parties and, therefore, California Civil Code section 1654 or any comparable statute is not applicable to the Agreement’s interpretation.
264
4 14.THIRD PARTY BENEFICIARY. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and it is not the intention of the parties to confer third-party beneficiary rights upon any other person or entity.
15.ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the matters described herein.
16.SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of DONOR and the City. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the City and DONOR agree to the full performance of the terms set forth herein.
“CITY” “DONOR”
CITY OF FOSTER CITY FOSTER CITY YOUTH SOFTBALL ASSOCIATION ______________________ _______________________ Kevin Miller, Interim City Manager Anthony Kong
ATTEST:
______________________
Priscilla Schaus, City Clerk
APPROVED AS TO FORM:
______________________
Benjamin Stock, City Attorney
265
5 EXHIBIT A
AMOUNT AND SCHEDULE FOR CONTRIBUTIONS
Organization: Foster City Youth Softball Association
Total Donation Amount Under this Agreement: $5,000
□ □ □ □ □
Initial contribution Amount: $2,000
Initial Contribution Due Date: April 1, 2022
Subsequent Annual Contribution Amount(s): $1,000
Subsequent Annual Contribution Due on or before March 1 of each year, commencing on March 1, 2023
Final Contribution Amount: $1,000
Final Contribution Due Date: March 1, 2025
266
1 AGREEMENT TO CONTRIBUTE FUNDS TO THE SYNTHETIC TURF FIELD
CONVERSION PROJECT AT SEA CLOUD PARK
This Agreement to Contribute Funds to the Synthetic Turf Field Conversion Project at Sea Cloud Park (“Agreement”) is made as of March 21, 2022, between the City of Foster City (“City”), a California municipal corporation, and Foster City Tournament Baseball, a tax- exempt not for profit youth sports organization, herein after known as DONOR.
RECITALS
A. City owns and operates Sea Cloud Park, which among other things, was improved with grass and turf playing fields used by residents and youth sports organizations for baseball and soccer.
B. DONOR provides community sports programs at Sea Cloud Park in Foster City and expects its enrollment to continue to grow.
C. DONOR is a member of a group of youth sports organizations that requested that City consider converting Sea Cloud Park playing fields S1, S2, and B1, (“Sea Cloud Fields”) from grass fields to synthetic turf fields in order to increase the playing season and enhance their ability to host large scale tournaments.
D. City agreed that conversion of the Sea Cloud Park Fields to synthetic turf was desirable to provide its residents and youth sports teams year-round access to playing fields, attract large scale tournaments which benefit local business, and to minimize maintenance costs and water usage.
E. In recognition of their substantial use of the Sea Cloud Fields and the benefits they will receive from conversion of the Sea Cloud Park Fields to synthetic turf fields, DONOR agreed to contribute funds to reimburse the City for a portion of the costs to convert the Sea Cloud Fields to synthetic turf (“Project”) in an amount and on a schedule as enumerated in Exhibit A.
F. In reliance upon this funding commitment, City planned, designed, and constructed the Project at a cost of $3,311,960. DONOR’s agreement to contribute funds to the Project was a material inducement to the City to undertake the Project and but for DONOR’s agreement to contribute such funds City would not have undertaken the Project.
G. DONOR and City desire to enter this Agreement to set forth terms and conditions regarding City’s undertaking of the Project and DONOR’s contributions to partially reimburse the City for Project costs.
NOW THEREFORE, for and in consideration of the foregoing and the mutual covenants and conditions set forth in this Agreement, DONOR and City agree as follows:
267
2 AGREEMENT
1.DONOR OBLIGATIONS.
a. In consideration of City’s agreement to undertake the Project and to indemnify DONOR against any claims based on the design or construction of the Project, DONOR agrees to contribute in an amount and on a timeline as enumerated in Exhibit A, to City to reimburse the City for Project design, administration and construction costs, whether such costs are incurred prior to or subsequent to the date of this Agreement.
b. DONOR understands and agrees that its agreement to contribute funds to the City to reimburse it for a portion of the Project costs was a material inducement for the City to undertake the Project and but for DONOR’s agreement, City would not have carried out the Project.
2.CITY RIGHTS AND OBLIGATIONS.
City designed and constructed the Project, converting Sea Cloud Park playing fields designated as S1, S2, and B1, from grass fields to synthetic turf fields in 2019.
3.INDEMNIFICATION OF DONOR. If DONOR makes the Initial Contribution and Annual Contributions specified in section 1, then City shall defend, indemnify and hold DONOR harmless from and against any and all claims, liabilities, costs or expenses for any damage due to death or injury to any person, injury to any property, or any other damage to the extent arising from or relating to the design or construction of the Project.
4.DEFAULT. If either party (“demanding party”) has a good faith belief that the other party (“defaulting party”) is not complying with the terms of this Agreement, the demanding party shall give written notice of the default (with reasonable specificity) to the defaulting party, and demand the default to be cured within ten days of the notice.
If: (a) the defaulting party fails to cure the default within ten days of the notice, or, (b) if more than ten days are reasonably required to cure the default and the defaulting party fails to give adequate written assurance of due performance within ten days of the notice, then (c) the demanding party may terminate this Agreement upon written notice to the defaulting party and shall be entitled to exercise all rights and seek all remedies granted by law, including specific performance.
5.NOTICES. All notices required or contemplated by this Agreement shall be in writing and shall be delivered to the respective party as set forth in this section.
Communications shall be deemed to be effective upon the first to occur of: (a) actual receipt by a party, or (b) actual receipt at the address designated below, or (c) three working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. Either party may modify their respective contact information identified in this section by providing notice to the other party. 268
3 To: City of Foster City To: Foster City Tournament Baseball Attn: Oz Jimenez, Recreation Coordinator Attn: Rick Kelly, President 650 Shell Boulevard 1659 Beach Park Boulevard
Foster City, CA 94404 Foster City, CA 94404
[email protected] [email protected]
6.HEADINGS. The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement.
7.SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties’ intent under this Agreement.
8.GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of San Mateo.
9.ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.
10.ASSIGNMENT AND DELEGATION. This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of the DONOR’s obligations be delegated, without the written consent of the City. Any attempt to assign or delegate this Agreement without the written consent of the City shall be void and of no force or effect.
11.MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties.
12.WAIVERS. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement.
13.MUTUAL DRAFTING. Each party recognizes that this is a legally binding contract and acknowledges and agrees that they have had the opportunity to consult with legal counsel of their choice. Each party acknowledges that it has cooperated in the drafting, negotiation and preparation of this Agreement and agrees that any uncertainty herein is the fault of both of the parties and, therefore, California Civil Code section 1654 or any comparable statute is not applicable to the Agreement’s interpretation.
269
4 14.THIRD PARTY BENEFICIARY. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and it is not the intention of the parties to confer third-party beneficiary rights upon any other person or entity.
15.ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the matters described herein.
16.SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of DONOR and the City. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the City and DONOR agree to the full performance of the terms set forth herein.
“CITY” “DONOR”
CITY OF FOSTER CITY FOSTER CITY TOURNAMENT BASEBALL ______________________ _______________________ Kevin Miller, Interim City Manager Rick Kelly, FCTB President ATTEST:
____________________
Priscilla Schaus, City Clerk
APPROVED AS TO FORM:
___________________
Benjamin Stock, City Attorney
270
5 EXHIBIT A
AMOUNT AND SCHEDULE FOR CONTRIBUTIONS
Organization: Foster City Tournament Baseball
Total Donation Amount Under this Agreement: $20,000
□ □ □ □ □
Initial contribution Amount: $3,000
Initial Contribution Due Date: April 1, 2022
Subsequent Annual Contribution Amount(s): $3,000
Subsequent Annual Contribution Due on or before March 1 of each year, commencing on March 1, 2023
Final Contribution Amount: $2,000
Final Contribution Due Date: March 1, 2028
The FCTB contribution schedule identified above is predicated on whether FCTB can hold summer tournaments. If the summer tournaments are cancelled by the City due to health and safety concerns relating to COVID-19 or other unforeseen natural disasters, FCTB would be unable to meet their commitment to payment of the contribution schedule. Should cancellation of a summer tournament by City occur in any one year during the contribution schedule, City staff, in its sole discretion, will extend the contribution schedule and Final Contribution Date as necessary to accommodate any cancellations of FCTB tournaments.
271
DATE: September 8, 2020
TO: Mayor and Members of the City Council
VIA: Dante Hall, Interim City Manager
FROM: Jennifer Liu, Parks and Recreation Director
SUBJECT: AGREEMENTS FOR CONTRIBUTIONS BY SPORTS GROUPS
TOWARD CAPITAL COSTS ASSOCIATED WITH CONVERSION OF
SEA CLOUD SPORTS FIELDS S1, S2 AND B1 TO SYNTHETIC TURF
RECOMMENDATION
It is recommended that the City Council approve the attached resolution authorizing the City Manager to enter into agreements with and collect funds from American Youth Soccer Organization and Adult Soccer League (FCAYSO), Peninsula Youth Soccer Club (PYSC), Foster City Youth Softball Association (FCYSA), and Foster City Tournament Baseball (FCTB) for contributions totaling $495,000 over ten (10) years toward the cost of conversion of Sea Cloud Sports Fields S1, S2 and B1 to Synthetic Turf.
EXECUTIVE SUMMARY
Foster City Youth Sports groups approached the City to offer an arrangement under which the sports groups would contribute financially toward the conversion of Sea Cloud Sports Fields S1, S2 and B1 from natural to synthetic turf. The City reopened the park in September 2019 and the Notice of Completion was issued in March, 2020 with a total cost of $3,311,960.
In addition to the benefits of using excellent quality fields, donor groups will receive priority scheduling of the fields and a reduced $10 per hour facility room rental fee in the Master Fees and Service Charges Schedule.
Attachment 4
272
BACKGROUND
The Foster City Youth Sports groups approached the City to offer an arrangement under which the sports groups would contribute financially to the conversion of fields from natural turf to synthetic turf. The proposal characterized the benefits of the project as better, year-round playing surfaces for the sports organizations, reduced maintenance time and costs for the City and quality fields for community use during the off-season.
Foster City’s youth sports organizations are active and growing. Under normal conditions (when not operating under Shelter in Place health orders) FCAYSO has enrollment of approximately 1,300 children playing from August to December and January to May. PYSC has an enrollment of approximately 500 children. Foster City Adult Soccer League has an enrollment of approximately 50.
The City Council approved issuing a call For Bids for Synthetic Turf Installation at Sea Cloud Park (CIP 301-659) in April 2018. The project was substantially complete on August 16, 2019 and achieved final completion on September 6, 2019. The site was opened for routine park activities on September 9, 2019. The Notice of Completion was issued on March 16, 2020.
ANALYSIS
The installation of synthetic turf at these fields has not increased the length of the playing season, but does provide for a consistent, durable, year-round playing surface regardless of weather that allows for groups to host larger-scale soccer and baseball tournaments, which could result in a direct benefit to Foster City businesses. When not in use by the sports groups, the fields are available for use by residents or outside groups on a reservation basis.
The total final cost to convert these fields from natural grass to synthetic turf was $3,311,960. The sports groups proposed to make annual payments to the City in recognition of the field conversion at the agreed-upon amounts as summarized in Table 1, for a total contribution of $495,000 over ten (10) years, which is approximately 15% of the total project cost. The timing of commitments was adjusted in consideration of the fiscal impacts of the Covid-19 pandemic to sports groups. 273
In addition to the benefits of using of excellent quality fields, donor groups will receive priority scheduling of the fields and a reduced $10 per hour facility room rental fee as adopted in the Master Fees and Service Charges Schedule.
Foster City Little League was among the groups that originally approached the City about contributing financially to the conversion of the field. In addition to COVID-19 financial impacts, Foster City Little League has also been the victim of illegal embezzlement of funds by its former treasurer, who recently has been charged with six felonies for allegedly embezzling nearly $105,000 over three years. While the City continues to work with Little League to refine their financial commitment, Foster City Little League was not in a position to make a commitment within the timeframe of this staff report. Their agreement will be brought as a separate item if/when a renewed financial commitment is made.
FISCAL IMPACT
The anticipated revenue from four agreements totals $495,000 over ten (10) years.
Attachments:
Attachment 1 – Resolution
Attachment 2 – Agreement with American Youth Soccer Organization (Youth and Adult)
Attachment 3 – Agreement with Peninsula Youth Soccer Club Attachment 4 – Agreement with Foster City Youth Softball Association Attachment 5 – Agreement with Foster City Tournament Baseball 274
RESOLUTION NO. _______
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FOSTER CITY
AUTHORIZING THE CITY MANAGER TO SIGN AGREEMENTS WITH AND COLLECT FUNDS OVER THE NEXT TEN (10) YEARS FROM LOCAL SPORTS GROUPS, WHICH
SHALL BE DEPOSITED INTO THE CAPITAL IMPROVEMENT FUND TO REIMBURSE THE COST FOR SYNTHETIC TURF FIELD CONVERSION PROJECT (CIP 301-659) AT
SEA CLOUD PARK
CITY OF FOSTER CITY
WHEREAS, the City of Foster City owns and operates Sea Cloud Park, which was improved with playing fields used by residents and youth sports organizations; and
WHEREAS, Foster City sports groups requested that City consider converting Sea Cloud Park playing fields S1, S2, and B6, (“Sea Cloud Fields”) from grass fields to synthetic turf fields in order to increase the playing season and enhance their ability to host large scale tournaments; and
WHEREAS, City agreed that conversion of Sea Cloud Fields to synthetic turf was desirable to provide year-round access to playing fields, attract large scale tournaments which benefit local business, and to minimize maintenance costs and water usage; and WHEREAS, in recognition of their substantial use of Sea Cloud Fields and the benefits they will receive from conversion of the Sea Cloud Fields to synthetic turf fields, Foster City based sports groups agreed to cumulatively contribute $495,000 over ten years to reimburse the City for a portion of the costs to convert the Sea Cloud Fields; and WHEREAS, in reliance upon this funding commitment, City planned, designed, and constructed the Project at a cost of $3,311,960; the sports groups’ commitment to contribute funds to the Project was a material inducement to the City to undertake the Project; and, but for their agreement to contribute such funds, City would not have undertaken the Project; and
WHEREAS, the local sports groups and City desire to enter into agreements to set forth terms and conditions regarding the local sports groups’ contributions to partially reimburse the City for Project costs.
275
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Foster City does hereby authorize the City Manager to sign agreements with and collect funds over the next ten (10) years from the following local sports groups in the following amounts, and hereby directs the Finance Department to deposit those funds into the City Capital Improvement Fund 301 to reimburse the cost for CIP 301-659.
Organization
Total
Contribution
American Youth Soccer Organization (Youth and Adult) $350,000 Peninsula Youth Soccer Club $100,000
Foster City Youth Softball Association $25,000
Foster City Tournament Baseball $20,000
PASSED AND ADOPTED as a resolution of the City Council of the City of Foster City at the regular meeting held on the 8th day of September, 2020, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
CATHERINE MAHANPOUR, MAYOR
ATTEST:
PRISCILLA SCHAUS, CITY CLERK
276
1 AGREEMENT TO CONTRIBUTE FUNDS TO THE SYNTHETIC TURF FIELD
CONVERSION PROJECT AT SEA CLOUD PARK
This Agreement to Contribute Funds to the Synthetic Turf Field Conversion Project at Sea Cloud Park (“Agreement”) is made as of _______________, 2020, between the City of Foster City (“City”), a California municipal corporation, and American Youth Soccer Organization, a tax-exempt not for profit sports organization, herein after known as DONOR.
RECITALS
A. City owns and operates Sea Cloud Park, which among other things, was improved with grass and turf playing fields used by residents and youth sports organizations for baseball and soccer.
B. DONOR provides community sports programs at Sea Cloud Park in Foster City and expects its enrollment to continue to grow.
C. DONOR is a member of a group of youth sports organizations that requested that City consider converting Sea Cloud Park playing fields S1, S2, and B1, (“Sea Cloud Fields”) from grass fields to synthetic turf fields in order to increase the playing season and enhance their ability to host large scale tournaments.
D. City agreed that conversion of the Sea Cloud Park Fields to synthetic turf was desirable to provide its residents and youth sports teams year-round access to playing fields, attract large scale tournaments which benefit local business, and to minimize maintenance costs and water usage.
E. In recognition of their substantial use of the Sea Cloud Fields and the benefits they will receive from conversion of the Sea Cloud Park Fields to synthetic turf fields, DONOR agreed to contribute funds to reimburse the City for a portion of the costs to convert the Sea Cloud Fields to synthetic turf (“Project”) in an amount and on a schedule as enumerated in Exhibit A.
F. In reliance upon this funding commitment, City planned, designed, and constructed the Project at a cost of $3,311,960. DONOR’s agreement to contribute funds to the Project was a material inducement to the City to undertake the Project and but for DONOR’s agreement to contribute such funds City would not have undertaken the Project.
G. DONOR and City desire to enter this Agreement to set forth terms and conditions regarding City’s undertaking of the Project and DONOR’s contributions to partially reimburse the City for Project costs.
NOW THEREFORE, for and in consideration of the foregoing and the mutual covenants and conditions set forth in this Agreement, DONOR and City agree as follows:
277
2 AGREEMENT
1. DONOR OBLIGATIONS.
a. In consideration of City’s agreement to undertake the Project and to indemnify DONOR against any claims based on the design or construction of the Project, DONOR agrees to contribute in an amount and on a timeline as enumerated in Exhibit A, to City to reimburse the City for Project design, administration and construction costs, whether such costs are incurred prior to or subsequent to the date of this Agreement.
b. DONOR understands and agrees that its agreement to contribute funds to the City to reimburse it for a portion of the Project costs was a material inducement for the City to undertake the Project and but for DONOR’s agreement, City would not have carried out the Project.
2. CITY RIGHTS AND OBLIGATIONS.
City designed and constructed the Project, converting Sea Cloud Park playing fields designated as S1, S2, and B1, from grass fields to synthetic turf fields in 2019.
3. INDEMNIFICATION OF DONOR. If DONOR makes the Initial Contribution and Annual Contributions specified in section 1, then City shall defend, indemnify and hold DONOR harmless from and against any and all claims, liabilities, costs or expenses for any damage due to death or injury to any person, injury to any property, or any other damage to the extent arising from or relating to the design or construction of the Project.
4. DEFAULT. If either party (“demanding party”) has a good faith belief that the other party (“defaulting party”) is not complying with the terms of this Agreement, the demanding party shall give written notice of the default (with reasonable specificity) to the defaulting party, and demand the default to be cured within ten days of the notice.
If: (a) the defaulting party fails to cure the default within ten days of the notice, or, (b) if more than ten days are reasonably required to cure the default and the defaulting party fails to give adequate written assurance of due performance within ten days of the notice, then (c) the demanding party may terminate this Agreement upon written notice to the defaulting party and shall be entitled to exercise all rights and seek all remedies granted by law, including specific performance.
5. NOTICES. All notices required or contemplated by this Agreement shall be in writing and shall be delivered to the respective party as set forth in this section.
Communications shall be deemed to be effective upon the first to occur of: (a) actual receipt by a party, or (b) actual receipt at the address designated below, or (c) three working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. Either party may modify their respective contact information identified in this section by providing notice to the other party. 278
3 To: City of Foster City To: American Youth Soccer Org.
Attn: Jennifer L. Liu, Parks and Recreation Director Attn: Emil Picchi or Club Treasurer 650 Shell Boulevard 379 Shad Court
Foster City, CA 94404 Foster City, CA 94404
[email protected]
6. HEADINGS. The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement.
7. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties’ intent under this Agreement.
8. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of San Mateo.
9. ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.
10.ASSIGNMENT AND DELEGATION. This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of the DONOR’s obligations be delegated, without the written consent of the City. Any attempt to assign or delegate this Agreement without the written consent of the City shall be void and of no force or effect.
11.MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties.
12.WAIVERS. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement.
13.MUTUAL DRAFTING. Each party recognizes that this is a legally binding contract and acknowledges and agrees that they have had the opportunity to consult with legal counsel of their choice. Each party acknowledges that it has cooperated in the drafting, negotiation and preparation of this Agreement and agrees that any uncertainty herein is the fault of both of the parties and, therefore, California Civil Code section 1654 or any comparable statute is not applicable to the Agreement’s interpretation.
279
4 14.THIRD PARTY BENEFICIARY. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and it is not the intention of the parties to confer third-party beneficiary rights upon any other person or entity.
15.ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the matters described herein.
16.SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of DONOR and the City. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the City and DONOR agree to the full performance of the terms set forth herein.
“CITY” “DONOR”
CITY OF FOSTER CITY AMERICAN YOUTH SOCCER ORGANIZATION
______________________ _______________________
280
5 EXHIBIT A
AMOUNT AND SCHEDULE FOR CONTRIBUTIONS
Organization: American Youth Soccer Organization – Youth and Adult Leagues Total Donation Amount Under this Agreement: $350,000
Initial contribution Amount: $200,000
Initial Contribution Due Date: September 30, 2020
Subsequent Annual Contribution Amount(s): Net proceeds from annual fundraising event up to $20,000.00 annually
Subsequent Annual Contribution Due on or before March 1 of each year, commencing on March 1, 2022
Final Contribution Amount: Balance remaining to achieve total contribution of $350,000 Final Contribution Due Date: March 1, 2030
281
1 AGREEMENT TO CONTRIBUTE FUNDS TO THE SYNTHETIC TURF FIELD
CONVERSION PROJECT AT SEA CLOUD PARK
This Agreement to Contribute Funds to the Synthetic Turf Field Conversion Project at Sea Cloud Park (“Agreement”) is made as of _______________, 2020, between the City of Foster City (“City”), a California municipal corporation, and Peninsula Youth Soccer Club, a tax-exempt not for profit sports organization, herein after known as DONOR.
RECITALS
A. City owns and operates Sea Cloud Park, which among other things, was improved with grass and turf playing fields used by residents and youth sports organizations for baseball and soccer.
B. DONOR provides community sports programs at Sea Cloud Park in Foster City and expects its enrollment to continue to grow.
C. DONOR is a member of a group of youth sports organizations that requested that City consider converting Sea Cloud Park playing fields S1, S2, and B1, (“Sea Cloud Fields”) from grass fields to synthetic turf fields in order to increase the playing season and enhance their ability to host large scale tournaments.
D. City agreed that conversion of the Sea Cloud Park Fields to synthetic turf was desirable to provide its residents and youth sports teams year-round access to playing fields, attract large scale tournaments which benefit local business, and to minimize maintenance costs and water usage.
E. In recognition of their substantial use of the Sea Cloud Fields and the benefits they will receive from conversion of the Sea Cloud Park Fields to synthetic turf fields, DONOR agreed to contribute funds to reimburse the City for a portion of the costs to convert the Sea Cloud Fields to synthetic turf (“Project”) in an amount and on a schedule as enumerated in Exhibit A.
F. In reliance upon this funding commitment, City planned, designed, and constructed the Project at a cost of $3,311,960. DONOR’s agreement to contribute funds to the Project was a material inducement to the City to undertake the Project and but for DONOR’s agreement to contribute such funds City would not have undertaken the Project.
G. DONOR and City desire to enter this Agreement to set forth terms and conditions regarding City’s undertaking of the Project and DONOR’s contributions to partially reimburse the City for Project costs.
NOW THEREFORE, for and in consideration of the foregoing and the mutual covenants and conditions set forth in this Agreement, DONOR and City agree as follows:
282
2 AGREEMENT
1. DONOR OBLIGATIONS.
a. In consideration of City’s agreement to undertake the Project and to indemnify DONOR against any claims based on the design or construction of the Project, DONOR agrees to contribute in an amount and on a timeline as enumerated in Exhibit A, to City to reimburse the City for Project design, administration and construction costs, whether such costs are incurred prior to or subsequent to the date of this Agreement.
b. DONOR understands and agrees that its agreement to contribute funds to the City to reimburse it for a portion of the Project costs was a material inducement for the City to undertake the Project and but for DONOR’s agreement, City would not have carried out the Project.
2. CITY RIGHTS AND OBLIGATIONS.
City designed and constructed the Project, converting Sea Cloud Park playing fields designated as S1, S2, and B1, from grass fields to synthetic turf fields in 2019.
3. INDEMNIFICATION OF DONOR. If DONOR makes the Initial Contribution and Annual Contributions specified in section 1, then City shall defend, indemnify and hold DONOR harmless from and against any and all claims, liabilities, costs or expenses for any damage due to death or injury to any person, injury to any property, or any other damage to the extent arising from or relating to the design or construction of the Project.
4. DEFAULT. If either party (“demanding party”) has a good faith belief that the other party (“defaulting party”) is not complying with the terms of this Agreement, the demanding party shall give written notice of the default (with reasonable specificity) to the defaulting party, and demand the default to be cured within ten days of the notice.
If: (a) the defaulting party fails to cure the default within ten days of the notice, or, (b) if more than ten days are reasonably required to cure the default and the defaulting party fails to give adequate written assurance of due performance within ten days of the notice, then (c) the demanding party may terminate this Agreement upon written notice to the defaulting party and shall be entitled to exercise all rights and seek all remedies granted by law, including specific performance.
5. NOTICES. All notices required or contemplated by this Agreement shall be in writing and shall be delivered to the respective party as set forth in this section.
Communications shall be deemed to be effective upon the first to occur of: (a) actual receipt by a party, or (b) actual receipt at the address designated below, or (c) three working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. Either party may modify their respective contact information identified in this section by providing notice to the other party. 283
3 To: City of Foster City To: Peninsula Youth Soccer Club Attn: Jennifer L. Liu, Parks and Recreation Director Attn: Eric Quan or Club Treasurer 650 Shell Boulevard PO Box 4243
Foster City, CA 94404 Foster City, CA 94404
[email protected] [email protected]
6. HEADINGS. The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement.
7. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties’ intent under this Agreement.
8. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of San Mateo.
9. ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.
10.ASSIGNMENT AND DELEGATION. This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of the DONOR’s obligations be delegated, without the written consent of the City. Any attempt to assign or delegate this Agreement without the written consent of the City shall be void and of no force or effect.
11.MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties.
12.WAIVERS. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement.
13.MUTUAL DRAFTING. Each party recognizes that this is a legally binding contract and acknowledges and agrees that they have had the opportunity to consult with legal counsel of their choice. Each party acknowledges that it has cooperated in the drafting, negotiation and preparation of this Agreement and agrees that any uncertainty herein is the fault of both of the parties and, therefore, California Civil Code section 1654 or any comparable statute is not applicable to the Agreement’s interpretation.
284
4 14.THIRD PARTY BENEFICIARY. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and it is not the intention of the parties to confer third-party beneficiary rights upon any other person or entity.
15.ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the matters described herein.
16.SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of DONOR and the City. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the City and DONOR agree to the full performance of the terms set forth herein.
“CITY” “DONOR”
CITY OF FOSTER CITY PENINSULA YOUTH SOCCER CLUB
______________________ _______________________
285
5 EXHIBIT A
AMOUNT AND SCHEDULE FOR CONTRIBUTIONS
Organization: Peninsula Youth Soccer Club
Total Donation Amount Under this Agreement: $100,000
Initial contribution Amount: $10,000
Initial Contribution Due Date: September 30, 2020
Subsequent Annual Contribution Amount(s): $11,250
Subsequent Annual Contribution Due on or before March 1 of each year, commencing on March 1, 2022
Final Contribution Amount: $11,250
Final Contribution Due Date: March 1, 2029
286
1 AGREEMENT TO CONTRIBUTE FUNDS TO THE SYNTHETIC TURF FIELD
CONVERSION PROJECT AT SEA CLOUD PARK
This Agreement to Contribute Funds to the Synthetic Turf Field Conversion Project at Sea Cloud Park (“Agreement”) is made as of _______________, 2020, between the City of Foster City (“City”), a California municipal corporation, and Foster City Youth Softball Association, a tax-exempt not for profit sports organization, herein after known as DONOR.
RECITALS
A. City owns and operates Sea Cloud Park, which among other things, was improved with grass and turf playing fields used by residents and youth sports organizations for baseball and soccer.
B. DONOR provides community sports programs at Sea Cloud Park in Foster City and expects its enrollment to continue to grow.
C. DONOR is a member of a group of youth sports organizations that requested that City consider converting Sea Cloud Park playing fields S1, S2, and B1, (“Sea Cloud Fields”) from grass fields to synthetic turf fields in order to increase the playing season and enhance their ability to host large scale tournaments.
D. City agreed that conversion of the Sea Cloud Park Fields to synthetic turf was desirable to provide its residents and youth sports teams year-round access to playing fields, attract large scale tournaments which benefit local business, and to minimize maintenance costs and water usage.
E. In recognition of their substantial use of the Sea Cloud Fields and the benefits they will receive from conversion of the Sea Cloud Park Fields to synthetic turf fields, DONOR agreed to contribute funds to reimburse the City for a portion of the costs to convert the Sea Cloud Fields to synthetic turf (“Project”) in an amount and on a schedule as enumerated in Exhibit A.
F. In reliance upon this funding commitment, City planned, designed, and constructed the Project at a cost of $3,311,960. DONOR’s agreement to contribute funds to the Project was a material inducement to the City to undertake the Project and but for DONOR’s agreement to contribute such funds City would not have undertaken the Project.
G. DONOR and City desire to enter this Agreement to set forth terms and conditions regarding City’s undertaking of the Project and DONOR’s contributions to partially reimburse the City for Project costs.
NOW THEREFORE, for and in consideration of the foregoing and the mutual covenants and conditions set forth in this Agreement, DONOR and City agree as follows:
287
2 AGREEMENT
1. DONOR OBLIGATIONS.
a. In consideration of City’s agreement to undertake the Project and to indemnify DONOR against any claims based on the design or construction of the Project, DONOR agrees to contribute in an amount and on a timeline as enumerated in Exhibit A, to City to reimburse the City for Project design, administration and construction costs, whether such costs are incurred prior to or subsequent to the date of this Agreement.
b. DONOR understands and agrees that its agreement to contribute funds to the City to reimburse it for a portion of the Project costs was a material inducement for the City to undertake the Project and but for DONOR’s agreement, City would not have carried out the Project.
2. CITY RIGHTS AND OBLIGATIONS.
City designed and constructed the Project, converting Sea Cloud Park playing fields designated as S1, S2, and B1, from grass fields to synthetic turf fields in 2019.
3. INDEMNIFICATION OF DONOR. If DONOR makes the Initial Contribution and Annual Contributions specified in section 1, then City shall defend, indemnify and hold DONOR harmless from and against any and all claims, liabilities, costs or expenses for any damage due to death or injury to any person, injury to any property, or any other damage to the extent arising from or relating to the design or construction of the Project.
4. DEFAULT. If either party (“demanding party”) has a good faith belief that the other party (“defaulting party”) is not complying with the terms of this Agreement, the demanding party shall give written notice of the default (with reasonable specificity) to the defaulting party, and demand the default to be cured within ten days of the notice.
If: (a) the defaulting party fails to cure the default within ten days of the notice, or, (b) if more than ten days are reasonably required to cure the default and the defaulting party fails to give adequate written assurance of due performance within ten days of the notice, then (c) the demanding party may terminate this Agreement upon written notice to the defaulting party and shall be entitled to exercise all rights and seek all remedies granted by law, including specific performance.
5. NOTICES. All notices required or contemplated by this Agreement shall be in writing and shall be delivered to the respective party as set forth in this section.
Communications shall be deemed to be effective upon the first to occur of: (a) actual receipt by a party, or (b) actual receipt at the address designated below, or (c) three working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. Either party may modify their respective contact information identified in this section by providing notice to the other party. 288
3 To: City of Foster City To: Foster City Youth Softball Assoc.
Attn: Jennifer L. Liu, Parks and Recreation Director Attn: Anthony Kong or Club Treasurer 650 Shell Boulevard PO Box 42111
Foster City, CA 94404 Foster City, CA 94404
[email protected]
6. HEADINGS. The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement.
7. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties’ intent under this Agreement.
8. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of San Mateo.
9. ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.
10.ASSIGNMENT AND DELEGATION. This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of the DONOR’s obligations be delegated, without the written consent of the City. Any attempt to assign or delegate this Agreement without the written consent of the City shall be void and of no force or effect.
11.MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties.
12.WAIVERS. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement.
13.MUTUAL DRAFTING. Each party recognizes that this is a legally binding contract and acknowledges and agrees that they have had the opportunity to consult with legal counsel of their choice. Each party acknowledges that it has cooperated in the drafting, negotiation and preparation of this Agreement and agrees that any uncertainty herein is the fault of both of the parties and, therefore, California Civil Code section 1654 or any comparable statute is not applicable to the Agreement’s interpretation.
289
4 14.THIRD PARTY BENEFICIARY. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and it is not the intention of the parties to confer third-party beneficiary rights upon any other person or entity.
15.ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the matters described herein.
16.SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of DONOR and the City. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the City and DONOR agree to the full performance of the terms set forth herein.
“CITY” “DONOR”
CITY OF FOSTER CITY FOSTER CITY YOUTH SOFTBALL ASSOCIATION ______________________ _______________________
290
5 EXHIBIT A
AMOUNT AND SCHEDULE FOR CONTRIBUTIONS
Organization: Foster City Youth Softball Association
Total Donation Amount Under this Agreement: $25,000
Initial contribution Amount: $5,000
Initial Contribution Due Date: March 1, 2022
Subsequent Annual Contribution Amount(s): $5,000
Subsequent Annual Contribution Due on or before March 1 of each year, commencing on March 1, 2023
Final Contribution Amount: $5,000
Final Contribution Due Date: March 1, 2026
291
1 AGREEMENT TO CONTRIBUTE FUNDS TO THE SYNTHETIC TURF FIELD
CONVERSION PROJECT AT SEA CLOUD PARK
This Agreement to Contribute Funds to the Synthetic Turf Field Conversion Project at Sea Cloud Park (“Agreement”) is made as of _______________, 2020, between the City of Foster City (“City”), a California municipal corporation, and Foster City Tournament Baseball, a tax-exempt not for profit youth sports organization, herein after known as DONOR.
RECITALS
A. City owns and operates Sea Cloud Park, which among other things, was improved with grass and turf playing fields used by residents and youth sports organizations for baseball and soccer.
B. DONOR provides community sports programs at Sea Cloud Park in Foster City and expects its enrollment to continue to grow.
C. DONOR is a member of a group of youth sports organizations that requested that City consider converting Sea Cloud Park playing fields S1, S2, and B1, (“Sea Cloud Fields”) from grass fields to synthetic turf fields in order to increase the playing season and enhance their ability to host large scale tournaments.
D. City agreed that conversion of the Sea Cloud Park Fields to synthetic turf was desirable to provide its residents and youth sports teams year-round access to playing fields, attract large scale tournaments which benefit local business, and to minimize maintenance costs and water usage.
E. In recognition of their substantial use of the Sea Cloud Fields and the benefits they will receive from conversion of the Sea Cloud Park Fields to synthetic turf fields, DONOR agreed to contribute funds to reimburse the City for a portion of the costs to convert the Sea Cloud Fields to synthetic turf (“Project”) in an amount and on a schedule as enumerated in Exhibit A.
F. In reliance upon this funding commitment, City planned, designed, and constructed the Project at a cost of $3,311,960. DONOR’s agreement to contribute funds to the Project was a material inducement to the City to undertake the Project and but for DONOR’s agreement to contribute such funds City would not have undertaken the Project.
G. DONOR and City desire to enter this Agreement to set forth terms and conditions regarding City’s undertaking of the Project and DONOR’s contributions to partially reimburse the City for Project costs.
NOW THEREFORE, for and in consideration of the foregoing and the mutual covenants and conditions set forth in this Agreement, DONOR and City agree as follows:
292
2 AGREEMENT
1. DONOR OBLIGATIONS.
a. In consideration of City’s agreement to undertake the Project and to indemnify DONOR against any claims based on the design or construction of the Project, DONOR agrees to contribute in an amount and on a timeline as enumerated in Exhibit A, to City to reimburse the City for Project design, administration and construction costs, whether such costs are incurred prior to or subsequent to the date of this Agreement.