which she thought was also out of place. She asked if there was a more illustrative rendering of the home itself with colors, etc.
Mr. Chavarria stated that he didn’t have that available now, but they did prepare one and he thought they submitted it initially, but he didn’t have it available and was looking for it.
Vice Chair Berman stated that she would like to ask one more question. She referred to the additional parking, and wondered if it would be possible to add just a parallel parking stall at the beginning of the driveway. If you are driving along the cul-de-sac and you are exiting it and beginning to drive up the driveway, is there an opportunity for parallel parking spot to widen the driveway from 12 feet to 20 feet in that location. She stated that it was already disturbed and just degrading, and she thought that could be one variance they could avoid and a parallel parking stall could be placed on the north side of the driveway.
Chair Nibbelin wondered if staff had any thoughts on the feasibility of that suggestion.
Dep. Planning Director Murdock stated that he had two components, and maybe Contract Planner Aggarwal may have additional points. He stated that, looking at the requirement itself and recognizing that the HPD proposes this requirement in units of ten dwelling units, and to consider this standard at one space for one unit, he thought there was an argument to be made and staff made that argument, that it is a burdensom requirement up to ten times greater than what it ought to be on this particular project, given it is one dwelling unit. He stated that the other point is to consider that it runs at cross purposes with the variance that has been requested for coverage and the fact that no more coverage than needed for the project was requested, according to the applicant. He stated that, to require this, may potentially cause additional coverage under HPD.
He stated that the good news is that, in the location she indicated if that is where it ends up, it is already indicated as disturbance, even though it is a planting area, replanted after grading, and this would convert it from a landscaping coverage to a paving coverage. He stated that, as far as feasibility, they haven’t evaluated that but perhaps Mr. Chavarria could comment on that.
Mr. Chavarria stated that adding the parking space is possible, but it will require some additional retaining walls in that section because the slope starts moving. He stated that a portion of the work is going to need to be done on the public right-of-way and additional encroachment would be needed from the city. He concluded that it is possible.
Dep. Planning Director Murdock asked him to also comment on a possible four-inch gas line that may be in that area where retaining walls would be required.
Mr. Chavarria stated that, in the way he was imagining now, they have the flow-through planter and he was envisioning the parking spot to the left side of the driveway parallel to that flowthrough planter. They would most likely need a retaining wall along the line of the easement and that portion does not interfere with the location of the gas line, as long as they don’t go anymore than 20 feet inside the property. They would have to be halfway inside the property and halfway in the right-of-way.
Vice Chair Berman asked if the driveway already proposing a retaining wall along that run.
Mr. Chavarria stated that it proposes a small retaining wall to create a parking area. The driveway itself is not on grade and the reason it is done completed at grade is PG&E doesn’t
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allow any retaining walls that will impact their access. One of the parking lots is okay because it is only 20 feet and at least 30 feet available for access to the rest of the easement.
Vice Chair Berman asked if she was allowed to share her screen to make sure they are looking at the same location.
Chair Nibbelin asked if that enables them.
Dep. Planning Director Murdock responded affirmatively.
Vice Chair Berman asked if they can see her screen.
Chair Nibbelin stated that they can as she started sharing.
Vice Chair Berman stated that the area she is looking at is where her cursor is. She stated that, if it were a parallel parking stall at that point, as the contours run perpendicular and in her opinion, the parking stall would be the same slope as the driveway and is likely a retaining wall would not be necessary.
Mr. Chavarria stated that was feasible.
Vice Chair Berman stated that she didn’t believe that retaining walls are allowed in the PG&E easement, and asked if there were currently retaining walls or footings in the PG&E easement proposed.
Mr. Chavarria stated there were not, and the only retaining walls were where she has her cursor and there is a dimension of 18 feet and that is a gravity type retaining wall with no footings and is a very small one of only 18-24 inches tall.
Vice Chair Berman asked staff if that was allowed in the PG&E easement.
Dep. Planning Director Murdock stated he wasn’t sure they have an opinion to offer given that it is not the city’s easement at this point in time.
Mr. Rudin stated that he may be able to clarify that, as typically the easement holder has the right to prohibit uses that would interfere with their reasonable use and if the owner had the consent of PG&E for this and has consulted them, there is really no reason for the city to want to prohibit that.
Chair Nibbelin had a clarifying question, i.e., that was supposed to be a planter area in the original proposal, but asked if they are talking about swapping out a plant area for a parking space.
Mr. Chavarria responded affirmatively.
Commissioner Domurat stated that he could be reading the property lines incorrectly, but in that same area they were discussions, the southwest corner of the property seems to encompass the neighbor’s driveway and he asked if he was reading it correctly.
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Mr. Chavarria stated that he was correct.
Commissioner Domurat asked if that portion of the property has been ceded over to that.
Mr. Chavarria stated that there was an access easement for the neighbor.
Commissioner Domurat concluded that there was nothing that can be done to move the applicant’s driveway to encompass a little bit more of that area rather than going toward the downslope side.
Mr. Chavarria stated that they tried that, but they couldn’t.
Commissioner Hauser wanted to understand what staff said about the adjacent property, stating that the one where the variance is granted, she asked if staff said the coverage at that site was
11.9%.
Dep. Planning Director Murdock stated that, based on the records he located, the variance granted for 722 Talbot, the property to the south was 11.9% which on that site size was 7,921 square feet.
He stated that the staff report didn’t have that information at that time, and they took an estimated measurement from an arial photo. It was close but not exactly the same figure.
Commissioner Hauser concluded that the coverage here is proposed as 28% and he is saying that the lot size is different but it about still about the same amount of disturbance in square footage.
Dep. Planning Director Murdock responded affirmatively, stating that the lot to the south at 722 Talbot is much larger than the lot in question with this project.
Chair Nibbelin stated that he didn’t see any more hands and asked if wanted to take stock of where they are or see if there is a motion that someone might be willing to make. He stated that he would be interested in making a motion along the lines of that recommended by staff and he would be interested in integrating some of the suggestions that came out from some of the questions they had and recommendation from Commissioner Berman regarding the parking and he would want to make sure he was taking that up correctly in describing where it was at. He thought the first thing was some interest or willingness and maybe it isn’t to incorporate it into a condition, i.e., the question about the trail and whether or not there is any way, given the applicant’s willingness to entertain continuing public access along that trail. He asked Dep.
Planning Director Murdock or Mr. Rudin whether he is correct that there is an uncertainty around that as it sounds like PG&E has a role to play in that and they may not have enough information to do anything further with that now.
Mr. Rudin stated that he would have some concerns about the city imposing a new trail access easement. If the public already had an existing access easement, imposing conditions of approval to preserve that is something reasonable and within the city’s powers to do, but they don’t know enough about the history of this public use to see if there is an implied public access easement due to the history of it. He thought the issues with respect to PG&E that have already been raised are important to note.
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Chair Nibbelin appreciated his comments, and stated he would go back to the issue of parallel parking space and suggested that they add a condition of approval that would require that. He asked Dep. Planning Director Murdock for any suggestions on how they frame that condition.
Dep. Planning Director Murdock thought, at the outset, it would involve Commission making a finding through the motion that is denying the variance and the parking exceptions through the HPD guest parking and, as a consequence of that, requiring through a condition of approval the creation of the required guest parking space in the approximate location to be described subject to further review and approval of the Planning Direct, and he would suggest in that front portion to the north of the proposed driveway.
Chair Nibbelin concluded that the findings are something along the lines of making determining that it is actually feasible to include such a parking space, recognizing that it involves a tradeoff of the respective lot coverage, or just a different kind of coverage, i.e., opting for parking as opposed to planting.
Dep. Planning Director Murdock agreed, adding that he thought it was within the Commission’s discretion to balance those factors. He stated that, according to staff’s analysis, there is ample extra landscaping that has been provided to comply with the zoning even with the reduction the Commission is considering now and that tradeoff would be from one coverage type to another as they noted under the HPD. With respect to other zoning standards, it would be converting a relatively small percentage of the landscaping coverage to paving to provide that parking space.
Vice Chair Berman thanked Chair Nibbelin for moving forward with the concerns that she and other commissioners voiced. She also mentioned that she agreed with items that Commissioner Hauser mentioned and she asked a lot of the questions she already had and she didn’t have a need to ask any additional questions. She stated that this one is a little hard for her to swallow with some major aspects that may be outside of the Commission’s control and staff’s control she would probably be more inclined to be supportive of the project would be if they had some educational outreach or some townhall meeting or special meeting between Planning Commission and City Council that discussed more Hillside Preservation District aspects as she felt there was a lot of concern throughout the community and the Commission is still wrapping their heads around and becoming experts on each of the requirements and she thought it would be nice to review this after they have that education period. She didn’t feel comfortable supporting this project without having the vantage point views and understanding the visual impacts from the ridge, adjacent roads, as this property is on the top of the ridge and, in her opinion, without looking at any site line perspectives, it will stick out like a sore thumb like the property adjacent to it which they can see from a variety of locations and also seeing a rendering of the home itself so she can get a better understanding of its visual aspects as this is a modern home being placed adjacent to not very modern homes. She wanted to voice her thoughts before they made a motion so fellow commissioner understood her standpoint.
Commissioner Hauser agreed with Vice Chair Berman mentioning a potential joint meeting with council. While she hadn’t thought of, she thought it could be a really good idea as there is a lot going on. She stated that she thought she had made herself clear that, if they are going to vote on this at this meeting, she would probably not be able to get there. She thought understanding the coverage next door, looking at some of the images that Vice Chair Berman requested and maybe a closer look at the way percentages are awarded for outstanding designs. She thought, putting those together she could get there, but she thought they understood that she was not there now.
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Chair Nibbelin asked for input from Commissioner Leal.
Commissioner Leal stated that he was generally in favor of the project and points raised are valid in terms of the challenges with the lot and what their scope of limitations are, but he appreciated Vice Chair Berman’s comments, giving the prominence of the location, and what it will look like on the hillside, and he thought it would help him in his final decision. He agreed that a site next to it can be seen in many locations across the city and he had an opinion on that site which he would not share, but seeing renderings of what it will look like on the hillside, given that the intention of HPD was to preserve the hillside and if they can see how the house looks on the hillside, and add additional comments, given that context would be extremely helpful. He thought he could get there at this meeting, but having those renderings with the views would make him more comfortable in continuing the item and bring it back when they have the renderings to make a final decision.
Commissioner Godwin stated that his opinion was quite similar to Commissioner Leal’s as he is in general favor of the project but he doesn’t want to build an eyesore on top of a ridge that is widely seen and he thought having the renderings before they make a decision would be preferable to having a vote at this meeting.
Commissioner Domurat stated that he kind of feels the same, but they have to put this into perspective as it has been three years with no requirement by the city for them to have to provide those and he thought they owed these people a vote as it has been a long time with a lot of blood, sweat and tears to get to where they are today. He stated that there are some minor concerns and they brought a lot of that up, but he would have no problem doing a vote at this meeting.
Chair Nibbelin stated that Mr. Chavarria had the opportunity to hear a mix of perspectives on all this and he was curious about what it would take to generate some of the renderings in which the Commissioners have expressed an interest.
Mr. Chavarria stated that they can definitely prepare the renderings. He stated that it is a process that will be 2-3 weeks as they will have to locate the proper vantage points, survey them correctly to get the proper camera angle to get to the finish of the building. He stated that they mentioned the sloped roofs and the reason they selected the flat roof was because of the idea to minimize the bulk and appearance. They would be happy to dress up the flat roof that incorporates some live roof and that would minimize a lot of the visual impacts. How the building fits in the area is rather eclectic as there is a number of architectural components and they are confident that they can make the building look very nice. It has a lot of articulations, different breaks of materials and if it incorporated a couple of strips of living roofs, that would probably soften up the appearance of the building. If a rendering is needed, it will take them 2-3 weeks to get ready.
Chair Nibbelin stated that he wouldn’t be in favor of continuing the item until after they can have some joint meeting with Council as they don’t control whether Council does or doesn’t want to have a joint meeting about this matter. He did understand the desire for some perspective and some renderings. He shared generally with Mr. Domurat’s articulated view that he would be comfortable with the project as proposed, and it sounds like a coalescent around the possibility of continuing the item for a brief period to afford some opportunity to generate some of the renderings and the additional analysis that Commissioners have spoken to. He wondered if staff could give them some sense of what the calendar looks like in the near future to accommodate
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this. He recognized that the matter has gone through a lot and there are some concerns that they want to make sure that they fully address.
Dep. Planning Director Murdock stated that the next opportunity, given the 2-3 week timeline, would be Tuesday, September 7. Should there be any delays that would affect their ability to keep that date, given the agenda preparation timeline they have, he would feel more comfortable with the September 20 date for the Planning Commission meeting.
Chair Nibbelin asked Mr. Chavarria if he would be available on September 20.
Mr. Chavarria asked if he would be available or if they would be able to meet that submittal deadline.
Chair Nibbelin thought both those questions were relevant. He asked if he would be available on the 20th and whether he would be able to meet the submittal deadlines for consideration.
Mr. Chavarria stated that it would be two weeks prior to the meeting.
Dep. Planning Director Murdock stated that would be ideal.
Mr. Chavarria stated that he would be available and they could do that.
Commissioner Leal asked if it was the Commission’s discretion to add some opinions as to the site lines that they would like covered, such as directional site lines.
Chair Nibbelin stated that, if they are going to continue the matter, they might as well be as comprehensive as they can about what would be useful to the Commission as they consider the matter. He encouraged him to share whatever he care to offer.
Commissioner Leal stated that, if Sharp Park Road oversees the property, either the McCarthy overlook where the parking is or somewhere along the road, but he thought it was more feasible to do the McCarthy overlook given that people would be parked there and overlooking the ocean from that vantage point. He would say, on Talbot, looking up toward the house from the turnaround would be ideal. He stated that somewhere in the valley or northwest in the East Sharp Park area, Canyon Drive, Carmel Avenue area looking up, it could be at the end of Canyon Drive looking up, given that those residences would be the closest, and a vantage point from the Milagra Ridge Trail, perhaps north of the project site.
Vice Chair Berman agreed with Commissioner Leal as those were the areas she had in mind specifically the Milagra Ridge and the parking outlook off of Sharp Park and Canyon Drive. She mentioned to staff that she personally will not be able to attend that Planning Commission meeting but will be able to attend the next one. She asked that they not make that the decision factor as she did not need to attend.
Dep. Planning Director Murdock stated that it wasn’t clear what meeting she was specifically referring to.
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Vice Chair Berman apologized and stated that she will not be able to make either meeting in September. She stated that she will be able to attend the October 4 meeting. She stated that, as long as there is a quorum, she didn’t need to be present.
Chair Nibbelin stated that it was up to Mr. Chavarria to consider any other changes to elements of the roof or other possible adjustments and anything he decides that will be useful in that regard, he will incorporate as well as the site limits they are talking about. He stated that, at this point, he would be included to entertain a motion to continue. He also recognized that Vice Chair Berman will be unavailable in September, and he would like to try to do this in September, and he would be willing to make a motion to continue this item to September 20 for various reasons and the various items and information that have been articulated by the Commission.
Commissioner Godwin seconded the motion.
Dep. Planning Director Murdock took a verbal roll call.
The motion carried 6-0.
Ayes: Commissioners Berman, Domurat, Godwin, Hauser,
Leal and Chair Nibbelin
Noes: None
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PUBLIC HEARINGS:
1. GPA-100-21 File No. 2018-057 – General Plan Amendment GPA-100-21, RZ-201-18 Rezoning RZ-201-18, Development Plan DP-79-18, Specific DP-79-18 Plan SP-169-18, Variance PV-526-18 and Parking SP-169-18 Exception PE-191-21, filed by Matthew and Margaret PV-526-18 Murphy, for a General Plan land use designation change to PE-191-21 Very Low Density Residential (VLDR), rezoning to the P-D (Planned Development) HPD (Hillside Preservation District) zoning districts, authorization for single-family residential use and construction of a 2,406-square foot (sf) single-family residence with a two-car garage on a 24,149-sf undeveloped parcel, at the eastern terminus of Talbot Avenue (APN-016- 270-110 in Pacifica. A variance is required to exceed the allowable coverage within the HPD zoning district and a variance and parking exception are required to deviate from the guest parking requirement within the HPE zoning district.
Recommended CEQA Action: Class 3 Categorical Exemption, CEQA Guidelines Section 15303.
Dep. Planning Director Murdock presented the staff report.
Chair Nibbelin asked, as it was a continued item, if it was appropriate to give the applicant the opportunity to speak on the matter.
Asst. City Atty. Messinger stated that, if the public hearing was continued open, it would be appropriate to allow the applicant to offer more testimony and evidence in support of his application, as well as anyone who may wish to speak on the application.
Chair Nibbelin thought they took comment from applicant and public and closed it and brought it back to the Commission to decide how to proceed on taking additional comment.
Mr. Messinger stated that he would defer to Dep. Planning Director Murdock but it would depend on whether the item had been advertised as a new public hearing but he didn’t recall the answer to that.
Dep. Planning Director Murdock clarified that they did not specify whether it is a new or continued public hearing when they publish the legal advertising for the public hearing.
He recommended that they reopen the public hearing, provided Mr. Messinger is open to that, as there is new information in the record related to the vantage point renderings and other new information that the applicant and/or public may appreciate having the opportunity to comment.
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Chair Nibbelin thought it made sense, and as long as the commissioners agreed, he thought they can allow the applicant to speak to additional information that has come to the Commission and allow the public to comment. He thought, due to possible anticipated speakers, they might reduce the time for comment to two minutes and ask that they focus on the new information as they have received a lot of comment at the first hearing. He also thought it might be nice, before comments, to share the renderings they received in their packet to have the opportunity to see that. He asked if any commissioners had anything additional to ask.
Commissioner Hauser would appreciate putting the renderings as she liked some type of graphic to orient the Commission and public and thought it would be helpful in the future when staff is presenting.
Chair Nibbelin thought Dep. Planning Director Murdock was having trouble sharing via Zoom and they may have to consider an alternative tech option to share. He then moved to the applicant to see if he can move the renderings into a presentation, and will give the applicant up to ten minutes to speak to the new information.
Brendan Murphy, applicant, stated that they were hoping to build their family home on this site. He stated that they are proposing a modest home for their family, not for the super-rich. They hope to build the home and make Pacifica their community. He stated that his father lives a block away from the project site, and over the years, they have realized what a wonderful town Pacifica is and their dream is to be a part of the community and live a block from his children’s grandfather. He stated they have amended the plan as needed and they hope the Commission can bring the project to a vote.
Chair Nibbelin asked Mr. Chavarria if he had some additional information to share.
Javier Chavarria, applicant, thanked them for the opportunity speak on the matter. He has little to add, except that they have designed the project following all the guidelines and adjusted it as required by Planning Department, Fire Department, etc., and he feel that they have also complied with additional requirements made and he felt, from the technical standpoint, they have designed a good project on a challenging site and the design has taken those challenges into consideration to create a project that will be sound, safe and an enhancement for the community.
Chair Nibbelin hoped someone would be able to share the renderings with appropriate comments.
Dep. Planning Director Murdock stated that staff is willing and ready to do that when the applicant’s time is completed as he doesn’t want to take their ten minutes until their public comment opportunity is concluded.
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Mr. Chavarria stated he would defer to staff as they feel they have provided all the information and they believe the renderings are self-explanatory. They would rather answer any questions or respond any concerns but there is very little else they can add.
Chair Nibbelin asked to walk through the renderings and can ask applicant any questions now or after they hear from the public.
Dep. Planning Director Murdock stated that he would go first and Contract Planner Aggarwal can add anything he may leave out. He stated that the Commission asked for three vantage points, Grace McCarthy scenic overlook, Milagra Ridge from the public trails area, vantage point at the cul-de-sac at the east end of Canyon Drive, and a fourth vantage from the eastern terminus from Talbot where the project is accessed. He stated that the Commission didn’t provide criteria for the renderings other than showing what the home would look like. He mentioned some of the criteria of the renderings. He commented that, given the foggy conditions that occurred when the applicant took the picture for the rendering, it doesn’t reflect additional landscaping that may be included in the project as proposed in the final landscape plan which further soften the building and compliment the architecture and design of the site.
Chair Nibbelin asked the Commissioners if it was appropriate to take public comment or ask any comments they have.
Vice Chair Berman had a question on rendering No. 3. She appreciated the landscaping that helps screen the new home from invading visually in the backyard the home in the foreground, but given the slopes of the site, she asked if it was feasible to plant a substantial tree at this location.
Dep. Planning Director Murdock thought that might be a question for the applicant as they identified the tree species proposed and could possibly elaborate on the thought process for those specific species.
Vice Chair Berman stated she would direct her question to the applicant.
Mr. Chavarria stated that, initially, they discussed whether some screening could be done and they proposed some larger trees. He stated that the soil engineer recommended against planting larger trees as they could be detrimental to the performance of the hillside and the idea was abandoned. He stated that the tree seen there were trees that existed at the time that the photographs were taken and the home is behind that. He pointed out that the trees to the right of the home are similar to the ones in the back and are existing vegetation, not proposed vegetation. He stated that if, by accident, any of the original trees they proposed were left in there to the left of the proposed home, it is definitely not their intent to put any big trees along that section. The planting will be more in line to what their soil engineer recommended, shrubbery ground coverage and vegetation that does not grow too big.
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Vice Chair Berman apologized that she can’t tell the difference between an existing tree and a rendering of a tree, and she concluded that he said only the one tree shown on the left is a rendering and the rest are existing.
Mr. Chavarria stated that he did not prepare the renderings. There was a company hired to do that and they went through several iterations. He understood that the row of trees immediately behind the home are very similar to the ones on the right side which are trees that were existing on the original conditions. He stated that, if he is erroneous, their intent is not to plant any additional trees from what the current conditions are.
Vice Chair Berman stated that she is trying to figure out is whether there are going to be trees to help screen the house from Canyon Drive and visually screen for privacy the homes directly downhill of the house.
Mr. Chavarria stated it was a catch 22. He stated that, through the planning process, the Planning Department suggested that they plant some trees but on the previous meeting it was brought up by the public that the trees may not be the best alternative for the hillside.
They then consulted with their geotechnical engineer and with people are technically able to make such a determination, and it was established that large trees will bring roots deeper into the hillside that may create a problem with erosion and there was a balancing act, i.e., do they provide a screening and create negative impacts on the hillside, and their final approach is that they are not going to plant any big trees but create shrubbery that are more into the native type of species there that will definitely shield the lower portion of the building, but will not grow tall.
Vice Char Berman agreed that it shouldn’t be sought to plant large trees on a steep slope.
She was trying to understand the visual privacy in the rendering with what trees are already there.
Dep. Planning Director Murdock added that, on packet page 158, the applicant’s landscape plan does indicate tree planting in that location and they will want clarification if the applicant is seeking to formally amend the application to remove the trees or replace them with different species. He stated that currently, there are 6 or 7 Arbutus marina shrubbery trees in that location which are not generally particularly large trees, but they would provide some screening benefit, and that is the information staff used to evaluate the project, so they need clarification from the applicant.
Vice Chair Berman stated she would support that clarification request.
Mr. Chavarria stated that they want to do what is right for the project from the technical standpoint and visual standpoint, and along the process they have had initial requests for screening which is when the trees were proposed. He believes that the project can be conditioned to have a type of tree that their geologist, peer review, and landscape architect establish that are trees that will not grow too tall, will not be detrimental to the hillside, and from their standpoint, that would be perfectly acceptable as they want to do
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what is right for the project, slope stability wise and screening wise, without compromising either one.
Dep. Planning Director Murdock thanked him and then, for the Commission, he clarified that on packet page 51, that is exactly what Mr. Chavarria just stated that staff prepared condition approval No. 10, and it was a fairly standard condition related to the final landscape plan but they did specifically add language to have the project geotechnical confirm in writing prior to issuance of a building or grading permit that all proposed plantings and any proposed irritation system would be consistent with the recommendation to maintain slope stability, including but not limited to the recommendation to avoid excessive irrigation to preserve slope stability. He added that, if an irrigation system is not proposed, the applicant shall provide a written statement by a licensed landscape architect that the proposed plantings can be successfully established without installation of a permanent irrigation system, etc. He stated that they have taken into account the relationship between plantings, screening and slope stability, and took what they felt was a reasonable measure to obtain written confirmation that the plantings are acceptable and would ensure slope stability, but they were able to modify it to suit the Commission’s desire.
Vice Chair Berman thanked him for that information, adding that her personal opinion was that slope stability will win over planting but she was looking forward to deliberating her fellow commissioners.
Contract Planner Aggarwal stated that she can share a Google image of what it looks like now if helpful.
Vice Chair Berman thought it would be very helpful.
Contract Planner Aggarwal asked if it was visible.
Chair Nibbelin stated that it was and was very useful.
Vice Chair Berman thanked her.
Chair Nibbelin opened the Public Hearing, and hoped they would address only matters not addressed at the previous meeting.
Dep. Planning Director Murdock reminded the public that he was having difficulties sharing his screen to show the timer but he will be timing to keep track of the two-minute time limit and will remind them when one minute remains. He then introduced the speakers.
Curt Kiest, Pacifica, stated he lived at 630 Talbot, six houses below the proposed house and he strongly supports allowing Mr. Murphy’s family to build this house, having discussed it with multiple neighbors to let him build his house. He mentioned that when
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he moved here 30 years ago, he knew it was zoned R-1 and had an HPD overlay and a single family home could be built. He opposes commercial, etc., but supports this project and would consider it a tragedy to postpone and would go to court if they are denied the opportunity to build a simple, nice home.
Dep. Planning Director Murdock mentioned that they received one public comment in writing prior to the hearing but after the packet was posted on the city’s website and he will share it with the commissioners.
Janeen Marquardt, Pacifica, stated she purchased 722 Talbot and were looking forward to moving in the home in a few weeks. She stated that the only concern she had that might have been addressed was the driveway which will be next to a driveway that exists with a plan for creating drainage which makes sense, given what nature has done, and she asked if there was any concern that creating the drainage under the driveway might undermine the dirt under the existing driveway. She didn’t know how it was built but she wanted to know if there was any potential adverse impacts to the driveway as they are next to each other. She wants to make sure she is prepared for what is going on.
Christine Boles, Pacifica, stated that she sent written comments earlier about the fire issues she brought up previously and don’t seem to have been addressed and she looks forward to having them addressed now. She then referred to the HPD variance requested as she has been trying to understand that with projects all over Pacifica, mentioning one, and she was waiting for the Planning Commission minutes of the November 2004, explaining the specifics on it. She mentioned that there was a lot of discretion available to them in determining what is reasonable use as this is a small pertinent piece of land and not in the same category as the value of adjacent homes. She then mentioned steps and concrete landings on the east side of the house is not shown on the site plan and is missing in the HPD calculations and she encouraged them to fix that before they approve this so she doesn’t have to appeal another one.
Clif Lawrence, Pacifica, stated that he had pushback after his comments at the last meeting that the houses were built on the other side of Talbot and it makes sense to build on the opposite side. He asked that person to rethink that statement as there was a reason why they built on one side. He stated that they are now going to ignore limitations and dangers that those people recognized were a reason not to build there. He stated that this requires an amendment to the General Plan and he read that a city was allowed four amendments to the General Plan in a year, and he didn’t know if the city observed that, but he wanted it in the record and asks for response on that. He hopes they realize they are in HPD territory and the landowners below should have some guarantee of liability of any landslide this creates that could come down on them.
Jim Nichols, Pacifica, stated he lives at 700 Talbot, two houses down from the project, and they were in favor of being allowed to build their home. He stated their concern previously was about extra cars in the traffic turnaround but he understands there is
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additional off street parking. He assumed that, by the size of their foundation on the hill, the Murphy’s house will have a substantial foundation that will anchor it to the hill.
Erin Macias, Pacifica, stated that she was compelled to comment after looking at the location of the project. She empathized with the Murphy family but this is new construction into a hillside that should have been carefully considered when shopping for a family home site. She stated that new construction is a long process with many challenges. She stated that the point of the General Plan update is to demonstrate what is appropriate and inappropriate development in land use in Pacifica, and a parcel for sale doesn’t mean building on it is the appropriate use of the land. She thinks this project undermines the spirit and intent of the city goal and is an attempt to amend an operable General Plan to construct inconsistent with and in violation of the General Plan. She also questioned how it is exempt from CEQA, mentioning her concerns.
Marie Kazan-Komarek, Pacifica, stated she lives at 620 Talbot, seven houses from the project, and she welcomed the Murphy family, thinking it is a reasonable, modest project.
Terrence Kero, Pacifica, stated he lives at 710 Talbot, across the street from this planned house. He is a retired engineer who looked at the plans and he sees no problem building a house on a slope like that. He thought it was very modest and he welcomed the new neighbor as almost all the neighbors on the street have.
Chair Nibbelin asked if there was time on the ten minutes left to allow Mr. Chavarria or the owner to speak on any matters raised.
Dep. Planning Director Murdock stated that it was standard practice to allow up to three minutes reserved for the rebuttal and they had more than three minutes remaining on the ten minutes.
Chair Nibbelin stated that he will ask the applicant.
Mr. Chavarria stated that, to answer one of the questions of the immediate neighbor regarding the drainage of the driveway, the drainage is very carefully considered and will improve the current conditions of uncontrolled drainage in the area. He stated that they have velocity dissipators and ways to mitigate some of the runoff that is currently happening and the conditions will actually be improved. He stated that, regarding the trees, the google view Planning staff presented shows that their rendering is very close to representing those existing trees and the view as seen in the rendering is very consistent with the current conditions.
Chair Nibbelin closed the Public Hearing.
Commissioner Hauser thought she understood that they are getting a variance from HPD and are not removing the parcel from HPD.
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Dep. Planning Director Murdock agreed, adding that there are multiple actions required should the Commission want to approve this project. Regarding the HPD zoning overlay, he stated that it is an overlay zoning district that does require rezoning to the planned development zoning district, per the City’s municipal code requirements. He stated that the HPD overlay would remain in place and would not be affected by the rezoning that is proposed. He added that the underlying zoning district would be rezoned to the P-D (Planned Development) zoning district as required by the municipal code and would not require a vote of the people and the property is not zoned agricultural. He stated that the current zoning would change to PD and the HPD zoning overlay would remain in place unchanged. He then stated that a variance is proposed for two aspects of the project, and the one subject to most discussion among public comments was the allowable coverage under the Hillside Preservation District as coverage limitations are one of the components of HPD, and they establish a maximum amount of paving, grading and building based on a formula that is driven by the site area and the average slope of the site. He stated that, because of its size and slope, this site would be eligible for 0% coverage under the HPD formula and on its face would say nothing could be constructed but there is expressed language in the HPD ordinance that says that the provisions of the HPD shall not be applied to be confiscatory which means to deny all economic use of property solely on the basis of the HPD coverage limitation. He stated that is why staff is recommending approval of a variance to allow coverage in excess of 0%, and in this case, the amount of coverage proposed by the applicant. He stated that the Commission has discretion to change the amount of coverage or to conclude that a variance is not appropriate for the coverage. He thought that staff and possibly the City Attorney would want to advise them carefully on how to proceed with such a decision to deny any coverage for the project site but it would not be staff’s recommendation to do that. He stated that the coverage that has been proposed is to allow this project as a reduced amount of coverage would change the project and they should explore what that would look like with the applicant if possible. He stated that there was a second variance recommended by staff for the HPD’s off street parking requirement and a parking exception proposed for the same deviation from the one off street guest parking requirement which is drafted in the HPD regulations. He stated it is intended to be one space per ten dwelling units and, as staff has analyzed and recommended, they believe it is a burdensome requirement and a variance is justified for the project. He stated that the applicant, at the Commission’s request, has demonstrated how it can provide the off street parking space, but it is in the tradeoff for less landscaped area, and that is a condition for the Commission to make as to which is preferred in this case.
Commissioner Hauser thanked him for the thoughtful analysis. Her second point of clarification is that, at the last meeting, staff gave them details about the adjacent property that also had a variance, and she asked them to take her through that again.
Dep. Planning Director Murdock stated that he will check to see if that information is available as he thought they may have been in notes he prepared for the meeting and he may not be able to provide them immediately but he will do his best.
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Commissioner Hauser suggested that they come back to that.
Dep. Planning Director Murdock stated that, in general terms, the project immediately next door also required a variance from the HPD coverage and, as a commenter correctly stated, the site is larger and has a less steep average slope and it is not an apples to apples comparison. He stated that the findings for approval of a variance do require considering similarly situated property in the same zone and in the immediate vicinity of the project site in question. He stated that, for purposes of considering an HPD variance, it was probably the only relevant comparison property, given that not all of the properties in the area are zoned HPD. That one is immediately abutting and adjacent to the project site and that is the reason for relevance for purposes of considering the variant.
Commissioner Hauser appreciated the renderings that were put together, especially No. 2, even if foggy. She was the least comfortable of the Commissioners when they reviewed this the first time and she recommended continuing this. She thinks that, looking at how large the adjacent home is in rendering No. 2 compared to the modest size of this home and understanding that they did a variance for the neighbors next door, she would appreciate hearing what the other commissioners have to say as it meant a lot to her that the Murphy family went out and did additional renderings to show that to them which was helpful.
Commissioner Domurat concurs with Commissioner Hauser about the renderings and he thanked the owners for doing that as he didn’t think they were legally required to do that in a permit process. He thought they could discuss that in the future as he thought it was important to see what it will look like, but added that he didn’t think they could hold it against them if they didn’t do it. He asked staff, when a letter comes in as Ms. Boles presented to them, how much time does staff have to look at that and draft some kind of response. He stated that will come up in another project where there were a lot of comments in the last two days that it was almost impossible for them to consider all those at a meeting like this. He thought the most important comment he found, hoping he is not taking Ms. Boles’ comment out of context, was about the fire issue. He referred to the distance from where water would be available and didn’t know if Ms. Boles could stipulate exactly what she was looking for, but he thought it was a critical comment to make them feel comfortable about fire issues, not only for that home and those in the area, but also in the surrounding hillsides.
Dep. Planning Director Murdock stated that, regarding the fire code issue, the comments and request from the commenter was a sense of the specific code requirement. He thought the exception to the 150-foot distance from a fire apparatus access road is found in California Fire Code Section 503.1.1 which requires a fire apparatus access road to be within 150 feet of all portions of a structure with certain exceptions, including where the fire code official would be authorized to increase the dimension with no limits, with one of the conditions when the building is equipped throughout with an approved automatic sprinkler system install in accordance with the sections referenced and this building would have such a fire sprinkler system as a new structure and if there are other
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topographical or other considerations that would affect the ability to provide the distance, an approved alternative means of fire protection are provided. He then stated that there are no more than two group R-3 occupancies. He stated that more than one of those exception conditions are met in this case, as the building will have sprinklers and it involves only one group R-3 occupancy which is a single family dwelling. He stated that Dep. Fire Chief Kavanaugh was present to speak to any other fire code related questions.
He stated that the issue of wild land interface concerns as some commenters mentioned was specifically considered and discussed by North County Fire Authority Dep. Fire Chief and staff and the city’s building official from the Planning Department, and their conclusion was that this did not qualify as such a wild land interface and additional building code standards and requirements were not appropriate for this project location, and there were no concerns related to the ability of the North County Fire Authority to respond to fires in this area, on the project site or if the site were to exacerbate or contribute to worsening the wildland fire risk in this area. He concluded that staff very seriously took the fire risk of this project and analyzed it carefully.
Dep. Fire Chief Kavanaugh stated he was correct about California Fire Code 5031.1 that those exceptions to the hose pull of 150 feet when you have a sprinkler residential home which qualifies as an exception. He referred to the renderings he has looked at, stating that there are three of them that this project has gone through and he talked with the other two fire Marshalls who were in position prior to his time on the project, stating that they don’t have an issue with the project with fire related or fire protection issues. He stated that they looked at the slopes on the driveway and there is a hose pull now that is about 138 feet from the start of the driveway and a fire engine could almost pull into the driveway up to the front garage and with the sprinklers and how it is sitting, there is not much of a concern when it comes to the issue of fire protection.
Dep. Planning Director Murdock then referred to the other part of Commissioner Domurat’s question regarding the process, stating it was not typical for staff to prepare a written response to public comment letters that come in. They try to touch on any points in the comment letters that may reflect erroneous information presented by a commenter or that would seek to undermine the findings for approval as analyzed by staff. He stated that occasionally staff does make mistakes and they try to correct them when they identify a commenter has found a mistake in their analysis or in some piece of evidence.
He stated that, in this case, they brought in an expert, as in the case of Dep. Fire Chief Kavanaugh, to address the fire related issues and he didn’t know other issues directly related to the findings for approval. He stated that the commenter was correct that the dimensions on the fire hose pole from the driveway were incorrect and are over 150 feet and, as they outlined, that was not a fatal flaw for the analysis of the project. He thought the commenter is expecting a level of review for fire code compliance that is not typical at the planning stage and what the Fire Authority strives to do is to identify fire code issues that may affect project feasibility where if identified later in the process, following Planning Commission approval, it could prevent the project from being constructed in the way intended but all the detailed fire code compliance review is done after a project is approved by the Planning Commission during the building permit review phase but they
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do use some judgment in trying to determine which code requirements are applicable, but they are generally higher level feasibility and site planning constraints that are brought into this level of analysis.
Vice Chair Berman appreciated everyone’s work on the continuance of this project. She thought a lot of their previous comments were addressed or clarified with this resubmission. She was inclined to agree with staff’s recommendation on the parking variance. She appreciated the applicant taking a look at adding the parking stall to the site to not require that variance but she thought the lesser of two evils to just not install the parking stall at all and she is in agreement if other Commissioners are.
Dep. Planning Murdock stated that, whenever it is an opportune time, he can follow up on Commissioner Hauser’s request for figures applicable to the adjacent 722 Talbot site and one other HPD related plan.
Chair Nibbelin stated, if okay with Commissioner Ferguson, he would hear from him.
Commissioner Ferguson agreed.
Dep. Planning Director Murdock referred to a public comment and agreed there was a lack of clarity or a discrepancy between the HPD calculations diagram and the project description in terms of a landing for a staircase. He stated, if the Commission advances with this project and makes an approval action, the action to grant the variance is fixed at a limited square footage of coverage and it wouldn’t change that issue as they can clean it up and resolve it at the building permit phase. They would not be able to get extra coverage if that was not included in the calculation and they would need to modify the project to reduce that amount of coverage if the Commission was open to that approach.
Regarding to the 722 Talbot project, and looking at the minutes from the August 2, 2021 public hearing on this project, he indicated that the project was approved in the mid2000s and that site has 0% allowable coverage with an average slope of 43.3% and the project was approved by the Planning Commission for 11.9% coverage or approximately 7,921 sq. feet of coverage. He stated that the request for a variance for the subject project is not out of line with those previous requests, including the 722 Talbot and others he summarized.
Chair Nibbelin thanked him for that information.
Commissioner Ferguson stated he was on vacation during the August meeting and he is coming in halfway through, but he thanked them for the detailed reports. He was not concerned with the constructability standpoint as he thinks you can build a house on the side of a hill, and his only concern was the zoning consideration and preservation of green space, but given that they are talking about parking requirement that he thought they have gone back and forth on, and coverage as it is not out of scale with the other houses on that street and is probably one of the smaller houses. He stated that, given the
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support of all the comments by people on Talbot, he would be inclined to agree with Vice Chair Berman and would be glad to support the motion in staff’s report.
Commissioner Leal thanked the applicant for providing the renderings, stating that he helped provide the vantage points and was concerned on the one from Milagra and seeing that view of the house blended in with the existing properties. He also supports staff’s recommendation in terms of removing the parking space, as he didn’t think parking has been an issue and he didn’t think they would have an issue with parking with extra guests.
Commissioner Godwin stated that all the concerns he had about the project were covered by the renderings and comments made. He was pleased with the project as currently set up as it is a challenging lot. He agreed that the additional parking space is superfluous.
Chair Nibbelin thought he was inclined to approve it, adding that the additional information and configurations were very good for the project. He appreciated that, although the delay was additional expense and extra trouble, it made for a better project and they were able to address a number of concerns raised by the public. He was in support of the motion and would be aligned with staff’s recommendation as Vice Chair Berman suggested that they go with deleting the parking space and move forward without it.
Commissioner Hauser stated that she was ready to make a motion if they were ready to hear it.
Chair Nibbelin asked that she go ahead.
Commissioner Hauser asked Dep. Planning Director Murdock to remind her if she was making a motion for approval with one or the alternate motion.
Dep. Planning Director Murdock stated that it was the first one.
Commissioner Hauser moved that the Planning Commission adopts the attached resolution to FIND the project exempt from the California Environmental Quality Act; RECOMMEND City Council approval of General Plan Amendment GPA-100-21, described in Exhibit A to the resolution and enactment of the ordinance described in Exhibit B to the resolution to approve Rezoning RZ-201-18 and Development Plan DP79-18; and APPROVE Specific Plan SP-169-18, Variance PV-526-18 and Parking Exception PE-191-21 based on the Project Plans, dated September 8, 2021 and included as Attachment E to the Planning Commission staff report except that the approval shall not include the guest parking space in the front yard, and further subject to the conditions of approval in Exhibit C of the resolution; and INCORPORATE all maps and testimony into the record by reference.
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Chair Nibbelin stated that, having been on the Planning Commission for about seven years, that was probably the longest motion, and he complimented staff on a well done job.
Commissioner Leal seconded the motion.
Dep. Planning Director Murdock took a verbal roll call.
The motion carried 7-0.
Ayes: Commissioners Berman, Domurat, Ferguson,
Godwin, Hauser, Leal and Chair Nibbelin
Noes: None
Chair Nibbelin declared that anyone aggrieved by the action of the Planning Commission has ten (10) calendar days to appeal the decision in writing to the City Council.
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Packet Pg. 308 Attachment: Attachment F - Planning Commission Minutes - January 18, 2022 (4914 : TBD Talbot Single-Family Residential Project: General 1 Murdock, Christian
From: Christine Boles
Sent: Tuesday, January 18, 2022 11:20 AM
To: Murdock, Christian; Public Comment; Berman, Lauren; Hauser, Samantha; Leal, David; Nibbelin, John; Godwin, James; Ferguson, Alex; Domurat, George; Myers, Ron [NCC Fire] Cc: ; JOEL BALDWIN
Subject: Talbot project concerns
Attachments: Boles letter to Planning re Talbot Avenue home 6.27.21.pdf; Boles letter re. Talbot project 8.2.21.pdf; Joel Baldwin comment trees.jpg
[CAUTION: External Email]
Dear Mr. Murdock, Chief Myers, and Planning Commissioners, In reviewing the agenda for Monday, I first want to draw your attention to my previous correspondence. 1) The letter I sent you on June 27, 2021 is partially illegible in the current staff report. I have attached a proper copy for the record.
2) The letter I sent you on August 2, 2021 is completely missing from this current staff report. This is improper as this omission deprives others of information that may be critical to the project's safety.
The issues I raised in this second letter in relation to basic fire safety have not been addressed in the new drawings or in the staff report. Drawing page A-5.1 dimensions the fire house lay path from the turnaround as 150'; the actual dimension I measure on a scaled pdf is 166'-1". It has not changed from the previous submittal. I understand that the fire department may allow an exception to typical code maximum 150' lengths, but they do not address this in their project comments included in this staff report either. It may be that they just trusted the engineer's apparent forced dimension. Chief Myers, could you comment on this please?
Commissioners I would suggest that you consider asking Staff to produce the actual document for the 150-foot fire hose path exception. Given the importance of fire safety, that should be part of the documentation provided by Staff so that at a minimum it can be added as a Condition of Approval.
3) I really appreciate the added reference to the HDAI report in this staff report. In terms of their recommendation that trees should not be being planted on steep slopes in excess of 50%, I actually stumbled across quotes from Geotechnical Engineer Joel Baldwin (who performed field investigations of the 475 landslides of 1982 along with Howard Donley, and who later acted as the city's official geotechnical engineer) in old Tribune newspapers of 1982 and 1983, see attached. The issue is that not only do trees block the flow of water as he says, but their roots also draw water further down into the soil of the hill, increasing risk for debris flow landslides in areas of susceptibility. The article mentions a future study on this issue that the city was to have undertaken. Are there any records of this study having been done? This information would also be very helpful to clarify for the General Plan Safety Element update. Joel Baldwin is still around; he was our soils engineer for our own new home in Pacifica. I have copied him on this communication.
I have further comments on the HPD issues, and will try to get those comments to you before the hearing tonight.
Christine Boles, Architect
Beausoleil Architects
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Packet Pg. 309 Attachment: Attachment G - Public comments through Planning Commission phase (4914 : TBD Talbot Single-Family Residential Project:
2 Pacifica, CA 94044
www.beausoleil-architects.com
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Packet Pg. 310 Attachment: Attachment G - Public comments through Planning Commission phase (4914 : TBD Talbot Single-Family Residential Project:
www.beausoleil-architects.com
DATE: June 27, 2021
TO: Tina Wehrmeister, Planning Director/Assistant City Manager Christian Murdock, Deputy Planning Director
RE: Talbot Avenue project, APN 016-270-190
Dear Ms. Wehrmeister and Mr. Murdock,
Thank you for sharing the drawings for this project Mr. Murdock. Are there other application materials that were not shared? For example, the drawings indicate a Fire Hose Lay Plan which is not in the set. As the driveway is too steep for fire trucks, it is essential to understand if the maximum hose lengths are met for fire fighting compliance. Also, a diagram showing disturbed area calculations is missing.
The notice in the Tribune says this project is applying for a variance from HPD, but the coversheet notes the HPD zoning being completely removed, and the site rezoned from A/B4 with an HPD overlay to P-D with no HPD. I am very confused as to how this is possible.
1) The Growth Control Ordinance says agricultural zoned properties cannot be rezoned without a vote of the people. See below.
Sec. 9-5.07. - Agricultural land.
In order to maximize public participation in rezoning decisions concerning conversion of agriculturally zoned land to urban uses, to preserve the right of the local electorate to vote on significant zoning matters and to insure that development proposed for agricultural lands is appropriate to its unique character and importance, through June 30, 1997:
(a)
All land within the City which is zoned or designated Agricultural District on the zoning maps of the City as set forth in Chapter 4 of Title 9 of the Pacifica Municipal Code on or after the effective date of the ordinance codified in this chapter may not be rezoned or redesignated, and the "B" district with which the Agricultural District is combined may not be changed, without a vote of the people 2) The Growth Control Ordinance also says HPD zoned properties cannot be rezoned without a vote of the people. See below.
Sec. 9-5.08. - Hillside protection.
In order to maximize public participation in rezoning decisions concerning development of sensitive hillside lands, in order to preserve areas of open space where possible and to retain natural terrain by encouraging the concentration of dwellings and other structures on their sites, to help protect people and property from potentially hazardous conditions particular to hillsides, and to insure that development is compatible with the unique hillside resources of Pacifica, through June 30, 1977:
(a)
All land within the City which is zoned or designated Hillside Preservation District on the zoning maps of the City as set forth in Chapter 4 of Title 9 of the Pacifica Municipal Code on or after the effective date of the ordinance codified in this chapter may not be rezoned out of the Hillside Preservation District without a vote of the people.
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Packet Pg. 311 Attachment: Attachment G - Public comments through Planning Commission phase (4914 : TBD Talbot Single-Family Residential Project:
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3) A zone change to P-D seems a stretch for a single-family home, but if you do allow it, it seems that there are a lot more documents required as part of the submission as noted in section 9-5.08. 4) I understand that there might be an argument to allow something to be built here when the HPD coverage calculations for an average lot slope of 55% show nothing can be built. As previously requested, it would be helpful to understand how the planning department and city attorney are interpreting the statement in article
22.5,
“It is the intent of this section to allow the reasonable use of hillside lands consistent with the objectives of this article in such a manner so as not to be confiscatory." 5) While the average lot slope is about 55%, the slope where the building is proposed to be located is close to 100%. Shouldn't a geotechnical report be prepared as part of the planning review process? I want to remind you that the HDAI report that informed the 1983 Safety Element specifically calls for new landslide maps to be prepared, which to my knowledge still have not been done. Can you tell me if there is an update forthcoming as part of the new General Plan drafts?
This section of the Safety element notes that USGS maps are not adequate for the types of landslides Pacifica is prone to.
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Packet Pg. 312 Attachment: Attachment G - Public comments through Planning Commission phase (4914 : TBD Talbot Single-Family Residential Project:
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Packet Pg. 313 Attachment: Attachment G - Public comments through Planning Commission phase (4914 : TBD Talbot Single-Family Residential Project:
♦ www.beausoleil-architects.com
DATE: August 2, 2021
TO: Tina Wehrmeister, Planning Director/Assistant City Manager Christian Murdock, Deputy Planning Director
RE: Talbot Avenue project, APN 016-270-190
Dear Ms. Wehrmeister and Mr. Murdock,
Having now read the staff report, I have the following additional concerns about this project coming before the Planning Commission this evening.
A. Fire Safety.
My main concern about the project as currently designed is related to fire safety. As you know, our General Plan Safety Element is out of compliance with state law in regard to fire risk as it was not updated as required in 2015 when the last Housing Element was updated (California Government Code Section 65302 (g)(3)) so it is unclear if the 1983 General Plan Safety Element can be used to review this project. I would have expected to see a letter from the North County Fire Authority indicating their review and acceptance of the project as designed before bringing this project to the Planning Commission for consideration. Without this proper review before entitlements are granted, I fear that this may present a public danger and leave the City of Pacifica liable for possible damages.
I appreciate the addition of sheet A5.1 the Fire Hose Lay Plan. Has the fire department been given scale copies of the drawings so that they can accurately review and verify compliance? I measured the fire hose lengths indicated on the drawing, and they appear to be inaccurate. See Exhibit A, attached.
The dashed line on the south side of the proposed house is labeled as 150’, which is the maximum allowed hose length from a fire truck parked on the street. The actual length of this path measures approximately 166’, well above the maximum. The hose path on the north side of the house also appears to be inaccurate. This site plan neglects to show a 5’ deep deck, which firefighters cannot pass under to reach the far end of the house, see rear elevation. This deviation would extend this hose length past the maximum length. There is also a 4’ high landing and stair to the ground at the northeast corner of the project which does not show on this plan or other site plans. I’m also curious as to whether the fire department allows the fire fighter walking path to include cross slope areas at 1:1, or 100% slope. This seems dangerous, if not impossible to navigate.
It is also my understanding that state fire laws require clear defensible space for fire prevention. The existing tree canopy as shown on the site plan is only 28’ from the home, and the new proposed tree locations would eventually overlap the building and each other as they grow to have 25-40’ canopies.
I also want to remind you again that the Safety Element does not recommend trees to be planted on slopes over 50% slope as they create additional safety hazards. “For steep slopes in excess of 50%, the slopes should contain a mature stand of grass or other type of groundcover. However, shrubbery, brush and trees appear to be more harmful to the overall stability of steep slopes and should be avoided.” P. 102 The areas where the proposed trees are shown are at approximately 100% slope.
B. Geology/Potential Landslides
The project geotechnical report on page 1 refers to several USGS reports for review of landslide potential characteristics.
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I want to remind you again that the Howard Donnely Report (HDAI) that informed the current 1983 Safety Element specifically said that USGS maps do not represent the types of landslides that Pacifica is prone to, which are surficial debris flow landslides. The report says, “It is therefore our opinion that much of the published geologic hazard information affecting Pacifica is no longer valid for use in the City; a new set of landslide hazards maps should be produced for the area.”
I assume these new maps have been prepared as part of the current General Plan update that according to the calendar on the city’s Plan.Pacifica website will be ready for public review very soon (summer of 2021)? I would suggest that these maps be provided to the project and city engineers as well as to the public to ensure the project on such steep slopes will not become a public hazard and liability for the city.
The Safety Element also requires additional geotechnical work, including analysis of off-site hazards and geological cross sections which I do not see in the project documents, see below.
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Packet Pg. 315 Attachment: Attachment G - Public comments through Planning Commission phase (4914 : TBD Talbot Single-Family Residential Project:
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C. Hillside Preservation District (HPD)
1. The project is asking for variances HPD coverage and parking. I understand the ordinance includes a vague sentence related to legal arguments of “taking”, “It is the intent of this section to allow the reasonable use of hillside lands consistent with the objectives of this article in such a manner so as not to be confiscatory.” What I do not see in the staff report is any analysis of precedent for this argument. Have similar projects been granted variances to HPD? I would think an understanding of precedence would be important information to assist the Planning Commission in their deliberations.
2. The staff report discusses the homes on other nearby parcels on Talbot Avenue, but all of these are on sites which are much less steep, and only one of which has an HPD overlay, so these examples are not very helpful. The adjacent parcel that has an HPD overlay is a much larger site as well, about three times the size of this parcel, so HPD would allow a greater disturbed area.
3. There is also no legal analysis given of what “reasonable use” might entail. For this project with 6,573 of disturbance to comply with HPD, the average slope would need to be closer to 20% instead of 55%. Is it “reasonable” to allow this much overage? Personally, I would like to hear from the City Attorney on the matter.
4. The Planning Commissioners have now asked twice at the last two commission meetings for a presentation on HPD so that they can better understand the nuances of the ordinance. It seems premature to ask the Commissioners to opine on these variance requests today before they are given the information they would need to be able to properly analyze the project and make the required findings. As you know from my previous correspondence, I disagree with the Planning Department’s analysis of several recently approved projects that did not include proper review of HPD in the staff reports. I am skeptical of a one-sided presentation by planning staff with no opportunity for public input. It is important to understand the intent of the ordinance as well as the precise language. There are quite a few members of the public with this institutional historical knowledge who are quite passionate about this ordinance and its’ intent to protect our hillside resources from inappropriate development. These voices should be heard.
5. Besides the two variances to HPD requested for this project, it seems that the project may also require a variance from HPD for the road. According to Section 9-4.2258, Minimum Street Standards for the smallest roads, called “Local” appear to require 6’ sidewalks. There are currently no sidewalks in the area.
6. Section 9-4.2252 of the HPD ordinance requires “(i) Utility wires and television lines shall be installed underground”. I may have missed it, but don’t see a utility plan in the drawings.
7. In terms of the proposed zoning change to Very Low Density Residential, I am unclear as to why this is necessary. The first paragraph of the HPD ordinance says, “In cases of conflict between such zoning districts and the overlay Hillside Preservation District, the provisions of this article for the Hillside Preservation District shall prevail.”
I would also respectfully ask the Commission to consider at what point all these requested variances to HPD are actually such a watering down of HPD regulations and are effectively removing the ordinance, thereby necessitating a vote of the people? And at what point would it be reasonable to
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say that a particular property was improperly zoned and is unbuildable? Page 8 of the staff report says the lot is “severely undersized based on its’ slope according to the City’s subdivision standards” in Municipal Code Section 10.1.912. Between this ordinance and HPD ordinance in Article 22.5, we have two sections of the Municipal Code confirming by calculation and not vague language that this lot is unbuildable.
D. General Plan/Municipal Code Conformance
I also find it interesting that the staff report on page 9 lists argues that the zoning change is consistent with a few sections of the General Plan, but other key sections are not analyzed. Below are a few examples:
a. From the Community Design Element policies:
3. Protect the City's irreplaceable scenic and visual amenities. (LU) (CT)
4. Establish development standards that would keep open the steep slopes and visually prominent ridgelines. (LU) (CT) (SH)
*8. Review existing hillside building regulations and review procedures to ensure the appropriateness of the planning criteria and regulatory procedures. (CT) (LU)
b. From the Land Use Element in the section for East Sharp Park:
“Several major vacant parcels are included within the boundaries of this neighborhood. Two of these parcels are immediately adjacent to the existing residential neighborhood, on the lower undeveloped slopes of Milagra Ridge and Gypsy Hill. One of these areas is at the back of the valley; the other is located south of Moana Way and east of Eastlake Avenue. Both are the remains of old subdivisions, and should be replatted based on geotechnical considerations, emergency equipment access and other public safety considerations. Although low density residential use is proposed, consistent with existing development, the specific density should be determined by studies describing the condition of the land and public safety.
The General Plan contains numerous goals and policies intended to control development on hillsides and ridgelines in order to protect the visual resources of the City to promote geotechnically stable development, and ensure appropriate scale and density of development on hillsides. These policies include protection of natural land forms which define areas, especially ridgelines, and fitting development to the topography and building on the less prominent portions of ridgelines.
On page 53, the General Plan discusses possible development of Milagra Ridge and affirms the importance of the HPD ordinance. The coverage controls contained in the Hillside Preservation District overlay zone provide additional regulations to address the sensitivity of the site and the above goals. c. Municipal Code section 10-1.912 – Hillside and Large Lot Subdivisions, says, “General Plan guideline objectives. The adopted General Plan endorses a set of objectives for the future development of the hillside areas of the City. The adoption of precise or specific standards for density, grading, street standards, and the provision of open space was deferred pending further study which was underway at the time the provisions of this chapter were adopted. This section of the code was adopted in 1986. I am curious as to whether this study they say was underway 35 years ago was ever completed. It would be very helpful and more in keeping with sound environmental and safety policies of other Bay Area cities to have specific measurable standards, especially related to grading limitations on steep hillsides.
E. Public Trail on Site
There is no discussion in the staff report about the existing trail to Sharp Park Road on the site.
This trail was identified at the Planning Commission Meeting of January 21, 2020 as part of a review of the Local Coastal Plan, noting the importance of connecting ridge and coastal trails. PRI-40 in the current LCP Certification draft references this trail. Should this not be discussed as part of the project review so that the city can request an easement if desired? Again, it seems that OSPAC review of this proposed project as it relates to trails and open space would be helpful.
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Packet Pg. 320 Attachment: Attachment G - Public comments through Planning Commission phase (4914 : TBD Talbot Single-Family Residential Project: General Plan Amendment, Rezoning, and Development Plan) 1 Murdock, Christian
From: Christine Boles >
Sent: Tuesday, January 18, 2022 6:59 PM
To: Public Comment; Murdock, Christian; Hauser, Samantha; Berman, Lauren; Nibbelin, John; Leal, David; Godwin, James; Ferguson, Alex; Domurat, George Subject: Planning Commission Agenda Item 1 Talbot project [CAUTION: External Email]
Sorry for the delay in getting this out. I plan to read it at tonight's meeting, but wanted to make sure the commissioners also had the data from these projects in written format. A group of us is still working on a "Position Paper" in response to information we find to be lacking the city's HPD "Fact" sheet, but we have been stalled due to the missing information from public records, and of course now with the more pressing General Plan release. We maintain that there is a great need and desire to have a public study session with the City Council and Planning Commission in regards to understanding and properly reviewing HPD.
Good evening commissioners and staff. I sent you written comments earlier about the fire issues on this project and I look forward to hearing those addressed.
I wanted to focus my comments tonight on the Hillside Preservation District Ordinance variance being requested. Over the past 5 months I have trying to review past projects with HPD variances. Mr. Murdock gave me a list of 10 projects that his records showed applied for variances, but he did not know the outcome of all of them.
Of the 10 projects, only 4 were single family homes, so I will focus on those as they pertain to precedent for this project. 650 Corona approved in 2014 did not ask for a variance 130 Dardenelle- I am still missing the minutes from 1988 where the home was originally approved. There was a minor variance asked for 20 years later in 2008 for a small addition. The findings to grant the variance carefully explain that the site had been previously disturbed for a road for a water tank access for the water district.
200 Berendos HPD showed 0 disturbance was allowed. They applied for 18.3% disturbance and the PC thought that was too much. It was redesigned and approved for 14.4% disturbance. The project was never built. For the project next door to this one at 722 Talbot, I am still waiting for planning commission minutes for the hearing on November 4, 2004. I found the City Council minutes which indicated that the project had had a prior study session with the Planning Commission, so they actively worked to come to a design solution that the Planning Commission could accept before finalizing their design. That project is on a site 2.5 times the size of this one, 66,565 square feet with an average slope of 43.35%, not nearly as steep as this project, and without the 100% slope drop-off. The staff report compares the scale of the proposed house to the others on the street as part of the justification or the variance. They only allowed 11% disturbance.
If you read Dr. James Kremer’s recent piece on HPD and taking law, I’m sure you saw that there is a lot discretion available to you as commissioners in determining what is “reasonable use” so as not to be confiscatory. This is a small, very burdened piece of land. Between the areas of 100% slope and the utility easements, it is already not at all in the same category of value as the adjacent home. To me it seems that granting 27% disturbance versus 11% next door, could actually be considered discriminatory by the owners of 722 Talbot who certainly paid a lot more money for their piece of land.
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2 And one more thing, the exterior steps and concrete landing shown on the east side of the house on the elevations, is not shown on the site plan, and is therefore missing in the HPD calculations.
Thank you for your attention to these matters.
Christine Boles, Architect
Beausoleil Architects
Pacifica, CA 94044
“Do your little bit of good where you are; it's those little bits of good put together that overwhelm the world.” - Desmond Tutu CAUTION: This email originated from outside of the City of Pacifica. Unless you recognize the sender's email address and know the content is safe, do not click links, open attachments or reply.
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Attachment: Attachment H - Public Comment Received at City Council Meeting - March 14, 2022 (4914 : TBD Talbot Single-Family Residential
CITY OF PACIFICA
COUNCIL AGENDA SUMMARY REPORT
3/28/2022
1 SUBJECT:
Discussion Regarding Updates to the Park Development Impact Fee RECOMMENDED ACTION:
Receive Report Regarding Park Development Facilities Impact Fee and the Quimby Act Parkland Dedication Requirements and In Lieu Fees within the City of Pacifica and Provide Direction to Staff Regarding Potential Fee Reductions for Affordable Housing Units and Accessory Dwelling Units (ADU).
STAFF CONTACT:
Sam Bautista, P.E., Deputy Director of Public Works
[email protected]
(650) 738-3767
Tina Wehrmeister, Assistant City Manager/Planning Director [email protected]
(650) 738-7409
Lisa Petersen, P.E., Director of Public Works
[email protected]
(650) 738-3767
BACKGROUND:
On February 14, 2022, staff brought this item to the City Council for consideration. The City Council asked staff to return with general clarification regarding the proposed fees including a discussion regarding applicability to affordable housing developments. Staff is requesting direction from the Council and will place this item on the April 25th agenda for action.
The City of Pacifica has a park impact fee program to ensure that new development pays the capital costs associated with growth. In the case of parks, these impact fees would apply to the most common development type in Pacifica currently - incremental growth associated with additions and new single-family homes. The proposed fee update would also apply to other types of new development including multi-family housing and subdivisions.
Pacifica’s park impact fees were last adopted in 2012 and need to be updated to reflect service demand and incorporate best available information. Currently, park impact fees generate an average of $150,352 per year which is not sufficient to maintain the City’s existing level of service for park facilities and serve future growth.
In California, local governments can impose two types of development impact fees for funding parks and recreational facilities. Under the Quimby Act (Government Code § 66477), local governments may require the dedication of land for parks or the payment of fees in-lieu of land dedication as a condition of subdivision map approval. To fund the construction of new park and recreational facilities, local governments may also impose AB1600 Park Impact Fees by 6 Packet Pg. 324
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following the guidelines set forth by the Mitigation Fee Act (Government Code § 66000). On March 26, 2012, City Council adopted Resolution No. 09-2012 establishing the need for both types of fees: a Parkland Dedication In-Lieu Fee (Quimby Act) and a Park Facilities Impact Fee, within the City of Pacifica (Attachment “A”) (collectively the “Park Fees Program”). The City prepared a Park Facilities Impact Fee Study to establish the nexus between the imposition of new Citywide Park Impact Fees and the estimated reasonable cost of providing the service for which the fee is charged. The Park Fees Program is designed to ensure that new development pays their fair of the cost of land acquisition for parks (in order to maintain the City’s existing ratio of parks-to-population) and their fair share of the cost of development of new parks, trails, and open space.
Quimby Act Fee
Local governments in California provide a critical role in the effort to set aside parkland and open space for recreational purposes. Cities and counties have been authorized since the passage of the 1975 Quimby Act to pass ordinances requiring that developers set aside land, donate conservation easements, or pay fees for park improvements. Revenues generated through the Quimby Act cannot be used for the operation and maintenance of park facilities.
The goal of the Quimby Act was to require developers to help mitigate the impacts of growth from new development. The Quimby Act gives authority for passage of land dedication ordinances only to cities and counties. The Quimby Act only applies to residential subdivision developments. The fees must be paid and land conveyed directly to the local public agencies that provide park and recreation services community-wide. The fee is based on the cost of land in the community and the City’s current park service standards, which exceeds five (5) park acres per one thousand (1,000) residents standard.
Park Impact Fee
An impact fee is a fee that is imposed by a local government on a new or proposed development project to pay for all or a portion of the costs of providing public services to the new development. Impact fees are a charge on new development to help fund and pay for the construction or needed expansion of offsite capital improvements. Projects subject to this fee include new single-family homes and additions, two of the most common development types in Pacifica. A park impact fee is based on maintaining the current level of park service for a community, cost of land, and anticipated population growth.
DISCUSSION:
In order to maintain the City’s existing ratio of parks-to-population, development impact fees are needed to fund new development’s share of the cost of park and recreational facilities. The fees are driven by the cost of parks and the existing ratio of park acreage to population. The goal of this effort is to ensure there is adequate funding to acquire land, build new parks, and improve existing parks to meet the demand of the increased population.
Currently, the City imposes the Quimby Act Fee and Mitigation Fee Act Fees depending on the type of development. The Quimby Act Fee in-lieu of land dedication is a fee, which is payable by residential development occurring in subdivisions. The Mitigation Fee Act Fee has two components:
· A Mitigation Fee Act Fee for land acquisition. This fee is payable by residential development not occurring in subdivisions.
· A Mitigation Fee Act Fee for parkland improvements. This fee is payable by all residential development.
A development project pays either the Quimby Act Fee in-lieu of land dedication, or the Mitigation Fee Act Fee for land acquisition, not both. The Quimby and Mitigation Fee Act land6 Packet Pg. 325
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related fees are the exact same amount, and all residential development pays the Mitigation Fee Act improvements fee, therefore, the total fee is the same for everyone. The nuance is that those subject to Quimby can dedicate the land instead of paying the fee, in which case, they would still be responsible for the Mitigation Fee Act improvement fee.
These fees are a funding source for park improvements in Pacifica. Recently, the fees have been used to fund a portion of the construction of Community Center Park and Fairmont Park improvements, in which the footprint of the play structures were increased in both parks. It is anticipated that a portion of funding used to install new expanded play structures at Imperial Park, Skyridge Park, Marvilla Park and Brighton Park will be provided by these fees. Without these fees, there would be no continuing money source for new or major improvements to Pacifica’s parks, athletic fields, and open space.
The City plans to use park facilities fee revenues to purchase parkland or construct improvements to add to the system of park and recreation facilities that serves new development. The City may only use impact fee revenue to provide facilities and intensify usage of existing facilities needed to serve new development. Fee revenue collected under the Quimby Act can also be used to rehabilitate park facilities, in addition to acquiring new parkland. Also, as an example, these fees could be used for the construction of new trails to expand the trails system; however, if the new trails are located on non-City-owned parcels, the City must obtain public access easements for the use and maintenance of these trails.
It is good practice to analyze and periodically update impact fees, and with the enactment of AB 602, impact fees now must be updated at least every eight years. To that end, the City contracted with Willdan Financial Services to assist with the update (Attachment “B”). These fees are calculated based on cost of parkland (per acre) and cost of park improvement (per acre). In 2012, the costs of parkland and park improvements were $150,000 (per acre) and $411,000 (per acre), respectively. In December 2021, the costs of parkland and park improvements were $1,545,000 (per acre) and $1,350,000 (per acre), respectively. These increased costs result in higher calculated fees. Based on the total costs of facilities needed to serve new development from the impact fee update study, the total projected fee revenue is $31,584,450 (from 2021 to 2040). The following table shows the current, updated Park Facilities Impact, and remodel/add bedroom fees:
Bedrooms Current Park Facilities
Impact Fee
Updated Park Facilities
Impact Fee
Remodel/Add
Bedroom
0 $0 $20,522
1 $3,702 $24,066 $3,544
2 $5,181 $36,764 $12,698
3 $6,416 $44,589 $7,825
4 $7,897 $50,938 $6,349
5 $9,130 $58,910 $7,972
Additional
Bedroom
+$1,481 +$7,972 $7,972
Bedroom Calculation and Fee Schedule
All fees are calculated based on the average number of people living in a dwelling unit in Pacifica. Occupant density assumptions ensure a reasonable relationship between the size of a development project, the increase in service population associated with the project, and the amount of the fee. Persons per bedroom assumptions ensure a reasonable relationship between the size of a dwelling unit and the residents, and therefore demand for public facilities. 6 Packet Pg. 326
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For residential development, the fee is based on the number of bedrooms in each additional housing unit, so the fee schedule must convert service population estimates to these measures of bedrooms per dwelling unit and number of dwelling units in the project. The conversion is done with average household size factors that vary by bedrooms proposed in the dwelling unit and are established from the 2019 American Housing Survey, which estimates the persons per bedroom. The occupant densities are factors taken into consideration when calculating the fees.
To calculate fees, the investment in park facilities is determined on a per resident basis for both land acquisition and improvements. These cost factors are based on the unit cost estimates and facility standards. The fees scale with the increases in average residents per dwelling unit, by number of bedrooms. The more people that live in a particular sized dwelling unit on average, the higher the fees. The incremental fee per bedroom is the difference between the fee for a particular number of bedrooms and the fee for a unit with one fewer bedroom. The increases in average persons per dwelling unit by number of bedrooms are not linear, so the incremental fee per bedroom is not uniform as the number of bedrooms increases.
The City anticipates that the park fees would be the primary revenue source to fund new development’s investment in park facilities. “Table 9” from the final report shows the maximum justified park facilities fee based on a five acre per 1,000 resident standard. Fees can also be charged incrementally for the addition of net new bedrooms. For example, if a homeowner wants to add a bedroom to their existing three-bedroom home, the homeowner would pay $6,349.
The total fee includes an administrative charge to fund costs that include: (1) legal, accounting, and other administrative support and (2) impact fee program administrative costs including revenue collection, revenue and cost accounting, mandated public reporting, and fee justification analyses. The table below shows the updated, proposed Park Facilities Impact Fee. 6 Packet Pg. 327
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As a comparison, the following tables shows Park Impact Fees of cities on the Peninsula (based on a four-bedroom single family unit), along with their corresponding standard level of service:
City Park Impact Fee Level of Park Service
(Acre)
Pacifica (existing) $5,887 5.00
Pacifica (max. justified) $50,938 5.00
Belmont $54,160 3.44
Half Moon Bay $7,764 5.00
Millbrae $55,522 2.65
Palo Alto $62,584 5.00
San Mateo $29,598 2.00
South San Francisco $29,124 3.00
Sunnyvale $87,120 5.00
Fee Reductions for Affordable Housing Units and Accessory Dwelling Units (ADU) Many cites have reduced fees for affordable housing. For example, the City of Fremont and the City of San Jose (among others) charge park impact fees for deed-restricted affordable housing at 50% of the max justified rate. Palo Alto exempts all impact fees for 100% affordable housing.
Many cities also exempt the inclusionary units in a project from the impact fees, but still charge fees to the market rate units. An analysis was performed to determine how affordable housing fee reductions/exemptions would affect the projected fee revenue. Based on historical data from 2015 to 2020, approximately 6.25% of the new dwelling units were moderate or below market rate units. The following table shows the calculated loss of fee revenue from 25% fee reduction to 100% fee exemption for Moderate and Below Market Rate Units.
A 100% fee exemption would result in a loss of approximately $2 million of park impact fees, while 75%, 50%, and 25% fee reductions would result in park impact fee loss of approximately $1.5 million, $1 million, and $500,000, respectively (from 2021 to 2040). It is in the City 6 Packet Pg. 328
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Council’s discretion to decide whether to implement fee reductions/exemptions for affordable housing units. However, by not collecting sufficient fees, the City may require commitment of other non-fee revenue to undertake future park projects, otherwise, future park projects could be deferred or delayed due to reduced fee revenue.
The data provided for the fee reduction analysis did not include ADUs, so the analysis did not take ADUs into account. In addition, the fees would be different for each ADU relative to the size of the primary unit, so there is no way to estimate the impact it would have on anticipated fee revenues. The California State Legislature recently amended requirements on local agencies for the imposition of development impact fees on accessory dwelling units (ADU) with Assembly Bill AB 68 in 2021. The amendment to California Government Code §65852.2(f)(2) stipulates that local agencies may not impose any impact fees on ADUs less than 750 square feet. ADUs greater than 750 square feet can be charged impact fees in proportion to the size of the primary dwelling unit. Thus, State law already exempts ADUs under 750 sf from paying impact fees.
Anecdotally, a reasonable assumption is that the smaller ADUs under 750 sf will be “naturally affordable.” The Council may wish to consider requiring ADUs larger than 750 sf to pay the proportional impact fee. If the Council decides to reduce impact fees for affordable units, that fee reduction could be available to ADUs larger than 750 sf if they are restricted units.
Staff is seeking direction from Council on whether the Park Development Facilities Impact Fee and the Quimby Act Parkland Dedication Requirements and In Lieu Fees should include reductions for affordable housing units and/or ADUs. Depending on the direction from the Council, staff will finalize the resolution and ordinance adopting the Park Development Facilities Impact Fee and the Quimby Act Parkland Dedication Requirements and In Lieu Fees for Council’s consideration at the regular meeting on April 25, 2022.
RELATION TO CITY COUNCIL GOALS AND WORK PLAN:
The updated park in-lieu fee is consistent with the following Council adopted Goal:
· Stewardship of City Infrastructure: The updated park in-lieu fee would assist the City in acquiring parkland and/or fund the design and construction of public park improvements that would promote a healthy environment and activities for residents and visitors.
FISCAL IMPACT:
Park in-lieu fees assist the City in providing adequate park facilities necessitated by new development. Staff’s evaluation does not result in a budgetary impact.
ORIGINATED BY:
Engineering
ATTACHMENT LIST:
Attachment "A" - Resolution No. 09-2012 Establishing Parkland Dedication In-Lieu Fee (PDF) Attachment "B" - Pacifica Park Development Impact Fee Update (PDF) 6 Packet Pg. 329
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Attachment: Attachment "A" - Resolution No. 09-2012 Establishing Parkland Dedication In-Lieu Fee (4939 : Update Park Development Impact
CITY OF PACIFICA
PARK DEVELOPMENT IMPACT FEE
UPDATE
FINAL REPORT
MARCH 11, 2022
Oakland Office Corporate Office Other Regional Offices
66 Franklin Street 27368 Via Industria Aurora, CO
Suite 300 Suite 200 Orlando, FL
Oakland, CA 94607 Temecula, CA 92590 Phoenix, AZ
Tel: (510) 832-0899 Tel: (800) 755-6864 Plano, TX
Fax: (888) 326-6864 Seattle, WA
Washington, DC
www.willdan.com
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Packet Pg. 364 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions
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Packet Pg. 365 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions i
TABLE OF CONTENTS
1. INTRODUCTION ........................................................................... 2 Background and Study Objectives 2
Organization of the Report 2
Facility Standards and Cost Allocation Approach 2
2. LAND USE ASSUMPTIONS ............................................................ 4 Use of Growth Projections for Impact Fees 4
Land Use Types 4
Growth Projections for City of Pacifica 5
Occupant Densities 6
3. PARKS & RECREATION FACILITIES ................................................ 7 Existing Park and Recreation Facilities Inventory 7
Parkland Unit Costs 9
City of Pacifica Park Facilities Standards 9
Facilities Needed to Accommodate New Development 10
Parks Facilities Cost per Capita 11
Use of Fee Revenue 11
Fee Schedule 12
Fee Increases 12
4. IMPLEMENTATION...................................................................... 14 Inflation Adjustment 14
Reporting Requirements 14
Fee Accounting 14
Programming Revenues and Projects with the CIP 14
5. MITIGATION FEE ACT FINDINGS.................................................. 15 Purpose of Fee 15
Use of Fee Revenues 15
Benefit Relationship 15
Burden Relationship 16
Proportionality 16
APPENDIX ......................................................................................... 17
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Packet Pg. 366 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions 2 1. Introduction
This report summarizes an analysis of the need for public facilities and capital improvements to support future development within the City of Pacifica through 2040. It is the City’s intent that the costs representing future development’s share of these facilities and improvements be imposed on that development in the form of a development impact fee, also known as a public facilities fee. The public facilities and improvements included in this analysis of the City’s public facilities fee program all fall into the parks and recreation facilities category.
Background and Study Objectives
The primary policy objective of a park impact fee program is to ensure that new development pays the capital costs associated with growth. To fulfill this objective, public agencies should review and update their fee programs periodically to incorporate the best available information.
The primary purpose of this report is to create fees that incorporate current park acquisition and development costs needed to maintain the City’s parkland standards and serve future growth.
The City imposes public facilities fees under authority granted by the Mitigation Fee Act, contained in California Government Code Sections 66000 et seq. This report provides the necessary findings required by the Act for adoption of the fees presented in the fee schedules contained herein.
Depending on the characteristics of the development project, the City may use the Quimby Act to calculate impact fees. The Quimby Act only applies to residential subdivisions. The Quimby Act allows a city to require developers to dedicate at least three acres and up to five acres per 1,000 residents, if the city’s existing park standard as of the last Census justifies the higher level. In this case, fees charged under the Quimby Act or the Mitigation Fee Act support a standard of five acres of parkland per 1,000 residents.
Organization of the Report
The determination of a public facilities fee begins with the selection of a planning horizon and development of projections for population and employment. These projections are used throughout the analysis of different facility categories and are summarized in Chapter 2.
Chapter 3 is devoted to documenting the maximum justified public facilities fee for parks and recreation facilities.
Chapter 4 describes the fee implementation process. The five statutory findings required for adoption of the proposed public facilities fees in accordance with the Mitigation Fee Act (codified in California Government Code Sections 66000 through 66025) are summarized in Chapter 5.
Facility Standards and Cost Allocation Approach
A facility standard is a policy that indicates the amount of facilities required to accommodate service demand. Examples of facility standards include building square feet per capita and park acres per capita. Standards also may be expressed in monetary terms such as the value of facilities per capita, or the value of improvements per acre or per capita. The adopted facility standard is a critical component in determining development’s need for new facilities and the amount of the fee. Standards determine new development’s fair share of planned facilities and ensure that new development does not fund deficiencies associated with the existing city infrastructure.
The parks and recreation facilities fees calculated in this report use an existing inventory demand standard translated into facility costs per capita to determine new development’s fair share of
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Packet Pg. 367 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions City of Pacifica Parks and Recreation Facilities Fee Study 3 planned facility costs. A cost standard provides a reasonable method for converting disparate types of facilities, in this case parkland and special use recreational facilities, into a single measure of demand (capital cost per capita). The cost standard justified is based on the existing inventory of parks and recreation facilities. New development would fund the expansion of facilities at the same rate that existing development has provided facilities to date, thus by definition, there is no existing deficiency. In this case the City’s existing inventory justifies a standard that exceeds five acres per 1,000 residents. To be consistent with the maximum standard identified in the Quimby Act, this analysis caps the fees at a five acre per 1,000 resident standard.
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Packet Pg. 368 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions 4 2. Land Use Assumptions
This chapter describes the projections of growth used in this study. The existing service population in 2021 is used as the base year of the study and the planning horizon is the year 2040. This chapter also describes the sources of the unit costs for land and buildings used in this study.
Use of Growth Projections for Impact Fees
Estimates of the existing service population and projections of growth are critical assumptions used throughout this report. These estimates are used as follows:
• The estimate of existing service population in 2021 is used as an indicator of existing facility demand and to determine existing facility standards. • Estimates of total service population in 2040 are used to determine the total amount of public facilities required to accommodate the future service population. • Estimates of existing population and new development are used to allocate the fair share of total planned facility costs between existing and new development.
Land Use Types
To ensure a reasonable relationship between each fee and the type of development paying the fee, growth projections distinguish between different land use types. The fees calculated in this report are charged per bedroom for residential dwelling units. Relevant terms are defined below. • Bedroom: A room in a dwelling unit that may be used for sleeping accommodation including such spaces that may be labeled as bedroom, master bedroom, den, library, office, study or the like, when such space conforms to the definition of a “Sleeping Unit” in accordance with the requirements for a sleeping accommodation as provided in the building code.
Note that under recently adopted AB 602, fees adopted after July 1, 2022, must either calculate a fee levied or imposed on a housing development project proportionately to the square footage of the proposed units, or make specified findings explaining why square footage is not an appropriate metric to calculate the fees. In this fee study, the fees are calculated per additional bedroom. The justification for calculating fees using this approach is as follows:
Residential building square footage is not an appropriate metric to calculate fees imposed on housing development project because as square footage increases, a building does not necessarily house more people. Since residents are the drivers of demand for parks, it is important to use a metric that scales with increases in residents. In this case, data from the American Housing Survey, and American Community Survey is used to estimate the number of residents associated with each additional bedroom in Pacifica. Scaling fees with increases in residents provides the reasonable relationship between the development project and the burden posed by that project for new park facilities. Further, using increases in bedrooms to estimate occupancy and subsequently calculate impact fees incentivizes smaller developments, since projects with fewer bedrooms pay lower fees than projects with more bedrooms.
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Packet Pg. 369 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions City of Pacifica Parks and Recreation Facilities Fee Study 5 • Dwelling: A building or structure, or portion thereof, designed for residential occupancy with facilities for cooking, sleeping, and bathing; provided, however, “dwelling” shall not mean any convalescent/nursing home, hospital, hotel/motel, or congregate care facility.
• Residential Use: Residential use is a place of residence wherein housing is the primary land use. Types of residential uses include single-family, multifamily, mobile home/trailer, and secondary unit. For the purposes of the development impact fees, “bedroom,” as defined herein, shall be the residential use characteristic used to determine the appropriate fees required by each residential type. • Unit: One or more rooms in a dwelling designed for occupancy by one person, or one group of people, with a common entry and a common cooking facility.
The City should have the discretion to impose the parks and recreation facilities fee based on the specific aspects of a proposed development regardless of zoning. The guideline to use is the probable occupant density of the development. The fee imposed should be based on the land use type that most closely matches the probable occupant density of the development.
Impact Fees for Accessory Dwelling Units
The California State Legislature recently amended requirements on local agencies for the imposition of development impact fees on accessory dwelling units (ADU) with Assembly Bill AB 68 in 2021. The amendment to California Government Code §65852.2(f)(2) stipulates that local agencies may not impose any impact fees on ADU less than 750 square feet. ADU greater than 750 square feet can be charged impact fees in proportion to the size of the primary dwelling unit.
Calculating Impact Fees for Accessory Dwelling Units
For ADUs greater than 750 square feet, impact fees can be charged as a percentage of the single family impact fee. The formula is:
𝐴𝐷𝑈 𝑆𝑞𝑢𝑎𝑟𝑒 𝐹𝑒𝑒𝑡
𝑃𝑟𝑖𝑚𝑎𝑟𝑦 𝑅𝑒𝑠𝑖𝑑𝑒𝑛𝑐𝑒 𝑆𝑞𝑢𝑎𝑟𝑒 𝐹𝑒𝑒𝑡
× 𝑆𝑖𝑛𝑔𝑙𝑒 𝐹𝑎𝑚𝑖𝑙𝑦 𝐼𝑚𝑝𝑎𝑐𝑡 𝐹𝑒𝑒 = 𝐴𝐷𝑈 𝐼𝑚𝑝𝑎𝑐𝑡 𝐹𝑒𝑒
In the case of an 800 square foot ADU and a 1,600 square foot primary residence, the park fees fees would be 50 percent (800 square feet / 1,600 square feet = 50%) of the primary dwelling unit fee.
Growth Projections for City of Pacifica
Park and recreation facilities in Pacifica primarily serve residents in the City of Pacifica. The City lacks significant private sector employment, and plans for parks to serve its residential population.
Therefore, residents comprise the park and recreation facilities service population.
The base year for this study is the year 2021. The planning horizon is 2040. Resident growth between 2021 and 2040 comprises the growth increment in this analysis. The City’s population in 2020 per the US Census is used to calculate the parkland standard under the Quimby Act. The projection for 2040 is based on population projections provided by the Association of Bay Area Governments (ABAG).
Table 1 shows estimates of the growth in terms of residents between 2021 and 2040. The table also shows the City’s population in 2020.
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Packet Pg. 370 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions City of Pacifica Parks and Recreation Facilities Fee Study 6 Table 1: Parks Service Population
Residents
Census 2020 38,130
Existing Household Population (2021) 37,708
Growth (2021 - 2040) 2,182
Total (2040) 39,890
Sources: US Census Bureau; CA DOF, Table E-5, 2021; ABAG Projections 2040 by Jurisdiction; Willdan Financial Services.
Occupant Densities
All fees in this report are calculated based on dwelling units. Occupant density assumptions ensure a reasonable relationship between the size of a development project, the increase in service population associated with the project, and the amount of the fee.
Persons per bedroom assumptions ensure a reasonable relationship between the size of a dwelling unit and the residents, and therefore demand for public facilities. For residential development, the fee is based on the number of bedrooms in each additional housing unit, so the fee schedule must convert service population estimates to these measures of bedrooms per dwelling unit and number of dwelling units in the project.
This conversion is done with average household size factors that vary by bedrooms proposed in the dwelling unit, shown in Table 2. The data series that was used to statistically establish these household size factors is from the 2019 American Housing Survey (AHS), the most recent AHS data available. Willdan used AHS data from the Pacific Division to estimate the persons per bedroom for the Pacific Division. The estimate of persons per bedroom for the Pacific Division was then adjusted using based on difference in average dwelling unit density for Pacifica compared to the Pacific Division as calculated from US Census’ American Community Survey (ACS) data. These adjustments were necessary because data for the City of Pacifica is not specifically available from the American Housing Survey, and the American Community Survey does not provide data at the granularity needed to estimate these factors for the City.
Table 2: Occupant Density
Residential - per Dwelling Unit, by Number of Bedrooms
0 1.39 Residents per Dwelling Unit
1 1.63 Residents per Dwelling Unit
2 2.49 Residents per Dwelling Unit
3 3.02 Residents per Dwelling Unit
4 3.45 Residents per Dwelling Unit
5 3.99 Residents per Dwelling Unit
Each Additional Bedroom 0.54 Residents per Bedroom
Sources: American Housing Survey, 2019; U.S. Census Bureau, 2019 5-Year American Community Survey, Tables B25024 and B25033; Willdan Financial Services.
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Packet Pg. 371 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions 7 3. Parks & Recreation Facilities
The following chapter documents the nexus analysis, demonstrating the need for new park and recreation facilities demanded by new development. This analysis documents two separate fees based on the Quimby Act and the Mitigation Fee Act. The City would collect the fee based a standard of 5.0 acres per 1,000 residents if the development was subject to the Quimby Act land dedication requirement. For all other development, the City would collect based on the existing standard through the Mitigation Fee Act. The City would only collect one of the two fees depending on which was appropriate. In this case, because the City’s existing standard exceeds
5.0 acres, both fees are calculated at the 5.0 acre per 1,000 resident standard.
Existing Park and Recreation Facilities Inventory
The City of Pacifica maintains several park and recreation facilities throughout the city. Table 3 summarizes the City’s existing parkland inventory. All facilities are located within the City limits.
The City has revised this inventory from the prior impact fee analysis in 2012, based on the latest information available. The inventory distinguishes between developed and undeveloped parkland.
Developed parkland includes parks that are open for public use with typical park amenities. This includes facilities that are owned by other agencies that the City has joint use agreements for, such as school fields. Undeveloped parkland and open space represents land that the City owns, but does not yet include any improvements or amenities.
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Packet Pg. 372 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions City of Pacifica Parks and Recreation Facilities Fee Study8 Table 3: Parkland Inventory
Park Name
Developed
Acreage
District Parks
Frontierland Park 63.00
Neighborhood Parks
Fairmont Park 6.57
Fairmont West Park 5.84
Fairway Park 16.71
Imperial Park 12.68
Oddstad Park 17.95
Saltaire Park 0.40
Sanchez Park 6.35
Subtotal 66.50
Pocket Parks
Edgemar Park 1.20
Brighton Mini-Park 0.10
Horizon Mini-Park 0.10
Palmetto Mini-Park 0.10
Pomo Park 0.80
Portola Mini-Park 0.20
Skyridge Park 1.90
Subtotal 4.40
Joint Use Facilities - School Fields
Terra Nova High School 33.00
Subtotal 33.00
Special Facilities
Calera Creek Multi-purpose Trail 12.40
Skate Park 1.40
Cattle Hill Open Space - Trailhead Parking Lot 0.14
Cattle Hill Open Space - Baquiano Trail 0.63
APN 009-650-270 (Harry Dean Trail spur) 0.81
Grace McCarthy Vista Point 2.60
Pacifica Beach Park 1.86
Rockaway Beach Promenade 0.10
Beach Boulevard Promenade 0.91
Beach parking lot (Highway 1 & Rockaway Beach) 1.33
APN 018-150-040 (Beach Parking Lot) 0.40
APN 022-161-120 (Beach Parking, Restrooms, Beach) 0.77
APN 022-191-270 et. al (Beach Parking, Restrooms, Beach) 2.12 San Pedro Terrace Trail 0.61
Subtotal 26.08
Total 192.98
Source: City of Pacifica.
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Packet Pg. 373 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions City of Pacifica Parks and Recreation Facilities Fee Study 9 Parkland Unit Costs
Table 4 shows the estimated cost per acre for developing parkland, including land acquisition.
The land value of $1.5 million per acre is the average acquisition cost per acre in the City, based on an analysis of land sales comparisons since 2018 in Pacifica and neighboring Half Moon Bay.
The assumed cost of park improvements is based on a recent cost estimate from a neighboring City, South San Francisco, and includes the typical improvements that the City would include in a standard park, but excludes special use facilities such as pools or recreation centers. The improvements in the cost estimate include the following: site preparation, grading, construction of curbs, gutters, play area, electrical, furnishings irrigation and planting. City staff confirmed that the example project cost estimate is like the types of park improvements that the City of Pacifica is planning to construct. In total it costs an estimated $2.9 million to acquire and improve an acre of parkland in Pacifica.
Table 4: Parkland Unit Costs
Item
Cost
Per Acre
Land Acquisition1$1,545,000
Standard Park Improvements2$1,350,000
Vehicles and Equipment 6,800
Total - Improvements $1,356,800
Total Cost per Acre $2,901,800
1 Based on an analysis of sales comparisons in Pacifica and Half Moon Bay since 2018.
2 Improvement costs are estimated at $1.35 million per acre for site improvements (curbs, gutters, w ater, and electrical access), plus basic park and school field amenities such as basketball or tennis court, restroom, parking, tot lot, irrigation, turf, open green space, pedestrian paths, and picnic tables based on recent costs from a neighboring jurisdiction. Excludes special use facilities such as recreation centers and pools.
Sources: Costar; City of Pacifica; Appendix Table A.1, Willdan Financial Services.
City of Pacifica Park Facilities Standards
To calculate new development’s need for new parks, municipalities commonly use a ratio expressed in terms of developed park acres per 1,000 residents. Table 5 shows the existing standard for improved park acreage per 1,000 residents and documents the City’s standard as of the last Census for the Quimby Act standard. Since both standard calculations exceed five acres per 1,000 residents, the fees documented in this report are capped at a five-acre standard, consistent with the maximum Quimby Act standard.
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Packet Pg. 374 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions City of Pacifica Parks and Recreation Facilities Fee Study 10 Table 5: Park Facilities Level of Service Standards
Mitigation Fee
Act Standard
Quimby Act
Standard
Improved Park Acreage 192.98 192.98
Service Population (Residents) 37,708 38,130
Level of Service Standard (Acres per 1,000 Residents) 5.12 5.06 Policy Level of Service (Acres per 1,000 Residents) 5.00 5.00 Sources: Tables 1 and 3.
Facilities Needed to Accommodate New Development
Table 6 shows the park facilities needed to accommodate new development at the policy standard. To maintain this standard through the planning horizon, new development must fund the purchase and improvement of 20.14 acres of parkland, at a total cost of $58.3 million.
Table 6: Park Facilities to Accommodate New Development Calculation Parkland Improvements Total
Parkland (Quimby Act or Mitigation Fee Act), Improvements (Mitigation Fee Act) Facility Standard (acres/1,000 residents) A 5.00 5.00
Resident Growth (2021-2035) B 2,182 2,182
Facility Needs (acres) C = (B / 1,000) x A 10.91 10.91
Average Unit Cost (per acre) D $ 1,545,000 $ 1,350,000
Total Cost of Parkland To Serve New Development E = C x D $ 16,855,950 $ 14,728,500 $ 31,584,450 Sources: Tables 1, 4 and 5.
Capital Improvement Plan
California Government Code Section 66016.5. (a) (6) states: “Large jurisdictions shall adopt a capital improvement plan as a part of the nexus study.” Table 7 displays the City’s preliminary parks and recreation facilities capital improvement plan (CIP). Note that the projects shown in the CIP are not necessarily intended to be fully funded with park impact fee revenue; rather, they are capacity expanding projects that are eligible for park impact fee revenue. The exact amount of park impact fee revenue programmed to a given project will be determined annually though the City’s capital planning process.
Also note that the CIP does not drive the fee calculation. The fee calculation is driven by the facility standards and unit costs used to determine the cost per capita below.
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Packet Pg. 375 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions City of Pacifica Parks and Recreation Facilities Fee Study 11 Table 7: Preliminary Capital Improvement Plan
Name
Estimated
Cost
400 Esplanade Coastal Trail $ 775,000
500 Esplanade Coastal Trail 400,000
Ahni (Cattle Hill) Trail Improvements 650,000
Pedro Point Headlands Trail 6,500,000
Sanchez Field and Park Improvements 750,000
Fairmont West Field Improvements 750,000
Frontierland Lower Park Expansion 3,500,000
TOTAL $13,325,000
Source: City of Pacifica.
Parks Facilities Cost per Capita
Table 8 shows the cost per capita of providing new park facilities at the five acre per 1,000 resident standard. The cost per capita is shown separately for land and improvements. The costs per capita in this table will serve as the basis of three fees:
• A Quimby Act Fee in-lieu of land dedication. This fee is payable by residential development occurring in subdivisions.
• A Mitigation Fee Act Fee for land acquisition. This fee is payable by residential development not occurring in subdivisions.
• A Mitigation Fee Act Fee for parkland improvements. This fee is payable by all residential development.
A development project pays either the Quimby Act Fee in-lieu of land dedication, or the Mitigation Fee Act Fee for land acquisition, not both. All development projects pay the Mitigation Fee Act Fee for park improvements.
Table 8: Park Facilities Cost per Capita
Improvements
Calculation Quimby Fee OR Impact Fee AND Impact Fee
Parkland Investment (per acre) A $ 1,545,000 $ 1,545,000 $ 1,350,000 Level of Service (acres per 1,000 residents) B 5.00 5.00 5.00 Total Cost per 1,000 capita C = A x B $ 7,725,000 $ 7,725,000 $ 6,750,000 Cost per Resident D = C / 1,000 $ 7,725 $ 7,725 $ 6,750 Sources: Tables 4 and 6.
Land
Use of Fee Revenue
The City plans to use park facilities fee revenue to purchase parkland or construct improvements to add to the system of park and recreation facilities that serves new development. The City may only use impact fee revenue to provide facilities and intensify usage of existing facilities needed to serve new development.
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Packet Pg. 376 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions City of Pacifica Parks and Recreation Facilities Fee Study 12 Fee revenue collected under the Quimby Act can also be used to rehabilitate park facilities, in addition to acquiring new parkland.
Fee Schedule
To calculate fees by land use type, the investment in park facilities is determined on a per resident basis for both land acquisition and improvements. These cost factors (shown in Table 8) are based on the unit cost estimates and facility standards. The fees scale with the increases in average residents per dwelling unit, by number of bedrooms as identified in Table 2. The more people that live in a particular sized dwelling unit on average, the higher the fees. The incremental fee per bedroom is difference between the fee for a particular number of bedrooms and the fee for a unit with one fewer bedroom. The increases in average persons per dwelling unit by number of bedrooms are not linear, so the incremental fee per bedroom is not uniform as the number of bedrooms increases.
The City anticipates that the park fees would be the primary revenue source to fund new development’s investment in park facilities. Table 9 shows the maximum justified park facilities fee based on a five acre per 1,000 resident standard. Fees can also be charged incrementally for the addition of net new bedrooms.
The total fee includes an administrative charge to fund costs that include: (1) legal, accounting, and other administrative support and (2) impact fee program administrative costs including revenue collection, revenue and cost accounting, mandated public reporting, and fee justification analyses.
Table 9: Park Facilities Impact Fee Schedule
Number of
Bedrooms
Land
Acquisiton
per Capita
Improvements Cost
per Capita
Total
Cost per
Capita Density1 Base Fee
Admin
Charge2
Total Fee
per
Dwelling
Unit
Incremental
Fee per
Bedroom
0 $ 7,725 $ 6,750 $ 14,475 1.39 $ 20,120 $ 402 $ 20,522 1 7,725 6,750 14,475 1.63 23,594 472 24,066 $ 3,544
2 7,725 6,750 14,475 2.49 36,043 721 36,764 12,698
3 7,725 6,750 14,475 3.02 43,715 874 44,589 7,825
4 7,725 6,750 14,475 3.45 49,939 999 50,938 6,349
5 7,725 6,750 14,475 3.99 57,755 1,155 58,910 7,972
Additional Bedroom 7,725 6,750 14,475 0.54 7,817 156 7,972 1 Persons per dwelling unit.
Sources: Tables 2 and 7.
2 Administrative charge of 2.0 percent for (1) legal, accounting, and other administrative support and (2) impact fee program administrative costs including revenue collection, revenue and cost accounting, mandated public reporting, and fee justification analyses.
Fee Increases
Per AB 602 “If a nexus study supports the increase of an existing fee, the local agency shall review the assumptions of the nexus study supporting the original fee and evaluate the amount of fees collected under the original fee.”
The assumptions from the nexus study supporting the original fee have been reviewed and updated as necessary. These updates include adjustments to the City’s existing facility inventories, unit cost assumptions, existing and projected service population and parkland standards.
Table 10 displays and analysis of the fees collected under the current fee program. The table shows the previous five years of park fee revenue collection history. During this time period the
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Packet Pg. 377 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions City of Pacifica Parks and Recreation Facilities Fee Study 13 City collected an average of $150,352 per year. City staff confirmed that fees collected at this amount are not sufficient to maintain the City’s existing level of service for park facilities.
Table 10: Historic Fee Revenue
Park Impact
Fee/In-Lieu Fee
Revenue
FY 2020-21 133,028
FY 2019-20 160,779
FY 2018-19 180,520
FY 2017-18 134,399
FY 2016-17 143,032
Five Year Average 150,352
Sources: City of Pacifica Mitigation Fee Act Annual Report of Development Fees, FY2016-17 through FY2020-21
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Packet Pg. 378 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions 14 4. Implementation
Inflation Adjustment
The City can keep its impact fee program up to date by periodically adjusting the fees for inflation.
Such adjustments should be completed regularly to ensure that new development will fully fund its share of needed facilities. We recommend that the California Construction Cost Index (https://www.dgs.ca.gov/RESD/Resources/Page-Content/Real-Estate-Services-DivisionResources-List-Folder/DGS-California-Construction-Cost-Index-CCCI) be used for adjusting fees for inflation. The California Construction Cost Index is based on data from the Engineering News Record and is aggregated and made available for free by the State of California.
The fee amounts can be adjusted based on the change in the index compared to the index in the base year of this study (2021).
While fee updates using inflation indices are appropriate for periodic updates to ensure that fee revenues keep up with increases in the costs of public facilities, the City will also need to conduct more extensive updates of the fee documentation and calculation (such as this study) when significant new data on growth forecasts and/or facility plans become available. Note that decreases in index values will result in decreases to fee amounts.
Reporting Requirements
The City should comply with the annual and five-year reporting requirements of the Act. For facilities to be funded by a combination of public fees and other revenues, identification of the source and amount of these non-fee revenues is essential. Identification of the timing of receipt of other revenues to fund the facilities is also important.
Fee Accounting
The City should deposit fee revenues into separate restricted fee accounts for each of the fee categories identified in this report. Fees collected for a given facility category should only be expended on new facilities of that same category.
Programming Revenues and Projects with the CIP
The City should commit all projected fee revenues and fund balances to specific projects in its Capital Improvements Program. These should represent the types of facilities needed to serve growth as described in this report. The use of the CIP in this manner documents a reasonable relationship between new development and the use of those revenues. The CIP also provides the documentation necessary for the City to hold funds in a project account for longer than five years if necessary to collect sufficient monies to complete a project.
The City may decide to alter the scope of the planned projects or to substitute new projects as long as those new projects continue to represent an expansion of the City’s facilities. If the total cost of facilities varies from the total cost used as a basis for the fees, the City should consider revising the fees accordingly.
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Packet Pg. 379 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions 15 5. Mitigation Fee Act Findings
Fees are assessed and typically paid when a building permit is issued and imposed on new development projects by local agencies responsible for regulating land use (cities and counties).
To guide the imposition of facilities fees, the California State Legislature adopted the Mitigation Fee Act with Assembly Bill 1600 in 1987 and subsequent amendments. The Act, contained in California Government Code §§66000 – 66025, establishes requirements on local agencies for the imposition and administration of fees. The Act requires local agencies to document five statutory findings when adopting fees.
The five findings in the Act required for adoption of the maximum justified fees documented in this report are: 1) Purpose of fee, 2) Use of fee Revenues, 3) Benefit Relationship, 4) Burden Relationship, and 5) Proportionality. They are each discussed below and are supported throughout this report.
Purpose of Fee
• Identify the purpose of the fee (§66001(a)(1) of the Act).
We understand that it is the policy of the City that new development will not burden the existing service population with the cost of facilities required to accommodate growth. The purpose of the fees proposed by this report is to implement this policy by providing a funding source from new development for capital improvements to serve that development. The fees advance a legitimate City interest by enabling the City to provide capital facilities to new development.
Use of Fee Revenues
• Identify the use to which the fees will be put. If the use is financing facilities, the facilities shall be identified. That identification may, but need not, be made by reference to a capital improvement plan as specified in §65403 or §66002, may be made in applicable general or specific plan requirements, or may be made in other public documents that identify the facilities for which the fees are charged (§66001(a)(2) of the Act).
Fees proposed in this report, if enacted by the City, would be used to fund expanded facilities to serve new development. Facilities funded by these fees are designated to be located within the City. Fees addressed in this report will be used to fund park and recreation facilities.
Descriptions of the planned facilities such as size and cost estimates are included in Chapter 3 of this report. More thorough descriptions of certain planned facilities, including their specific location, if known at this time, are included in master plans, capital improvement plans, or other City planning documents or are available from City staff. The City may change the list of planned facilities to meet changing needs and circumstances of new development, as it deems necessary.
The fees should be updated if these amendments result in a significant change in the fair share cost allocated to new development.
Planned facilities to be funded by the fees are described in the Existing Park and Recreation Facilities Inventory, City of Pacific Park Facilities Standards, or the Facility Needed to Accommodate New Development sections in Chapter 3 of this report.
Benefit Relationship
• Determine the reasonable relationship between the fees' use and the type of development project on which the fees are imposed (§66001(a)(3) of the Act).
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Packet Pg. 380 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions City of Pacifica Parks and Recreation Facilities Fee Study 16 We expect that the City will restrict fee revenue to the acquisition of land, construction of facilities and buildings, and purchase of related equipment, furnishings, and vehicles used to serve new development as described above under the “Use of Fee Revenues” finding. The City will keep fees in segregated accounts. Facilities funded by the fees are expected to provide a citywide network of facilities accessible to the additional residents and workers associated with new development. Under the Act, fees are not intended to fund planned facilities needed to correct existing deficiencies. Thus, a reasonable relationship can be shown between the use of fee revenue and the new development paying the fees.
Burden Relationship
• Determine the reasonable relationship between the need for the public facilities and the types of development on which the fees are imposed (§66001(a)(4) of the Act).
Facilities need is based on a facility standard that represents the demand generated by new development for those facilities. For park facilities, demand is measured by a single facility standard that can be applied across land use types to ensure a reasonable relationship to the type of development. The demand for parks facilities is based on residential population.
The standards used to identify facility needs are also used to determine if the planned facilities will partially serve the existing service population by correcting existing deficiencies. This approach ensures that new development will only be responsible for its fair share of planned facilities, and that the fees will not unfairly burden new development with the share of facilities associated with serving the existing service population.
Chapter 2, Land Use Assumptions, provides a description of how service population and growth projections are calculated. Facility standards are described in the City of Pacific Park Facilities Standards section of Chapter 3.
Proportionality
• Determine how there is a reasonable relationship between the fees amount and the cost of the facilities or portion of the facilities attributable to the development on which the fee is imposed (§66001(b) of the Act).
The reasonable relationship between each facilities fee for a specific new development project and the cost of the facilities attributable to that project is based on the estimated service population that will be generated by the project. Fees for a specific project are based on the project’s number of dwelling units and the number of bedrooms in each dwelling unit. New development projects with greater numbers of units or more bedrooms per unit can result in a higher service population, resulting in higher fee revenue than projects with fewer units or bedrooms. Thus, the fees ensure a reasonable relationship between a specific new development project and the cost of the facilities attributable to that project.
See Chapter 2, Land Use Assumptions for a description of how facility demand factors are determined for residential uses. See the Fee Schedule section of Chapter 3 for a presentation of the maximum justified facilities fees.
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Packet Pg. 381 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions 17 Appendix
Appendix Table A.1: Park Vehicles and Equipment Inventory Vehicle # Type Units Unit Cost Total Cost
41 Toyota Prius 1 $ 26,858 $ 26,858
56 Ford Escape 1 25,547 25,547
85 Chevy Blazer 1 19,551 19,551
89 Ford Taurus 1 14,265 14,265
200 Ford F250 1 17,450 17,450
201 Chevy 1500 1 21,738 21,738
202 Ford F150 1 24,006 24,006
205 Ford F350 1 21,274 21,274
220/221 Ford F250 2 25,179 50,358
222/223 Ford F350 2 29,832 59,664
216 Ford F250 Utility 1 21,886 21,886
224 Ford F350 Utility 1 32,650 32,650
225 Ford F350 Stakebody 1 36,650 36,650
301 Toyota Tacoma 4X4 1 25,719 25,719
307 Ford Ranger 1 15,407 15,407
505 John Deere Wide Area Mower 1 42,569 42,569
533 John Deere 310sk 1 99,440 99,440
534 Bobcat E50 1 51,091 51,091
535 Bobcat Skidsteer 1 24,232 24,232
536 Cat Skidsteer 1 69,423 69,423
537 John Deere Dozer 1 25,000 25,000
539 Diablo Trailer 1 3,929 3,929
561 Bandit Chipper 1 39,197 39,197
563 John Deere Mower 1 20,539 20,539
600 Ford Tree Bucket Truck 1 166,535 166,535
601 John Deere Front Loader 1 36,461 36,461
626 GMC Dump Truck 1 33,172 33,172
627 GMC Dump Truck 1 32,684 32,684
628 Inernational 4400 Dump Truck 1 64,359 64,359
629 Ford F450 Dump Bed 1 54,018 54,018
660 Ziman Tilt Trailer 1 9,472 9,472
661 Ziman Tilt Trailer(SMALL) 1 1,001 1,001
664 Texas Trailer Small Mower 1 1,774 1,774
669 Longhorn Trailer 1 4,225 4,225
670 525 Gallon Water Trailer 1 4,295 4,295
Total $ 1,196,439
Total Improved Park Acres 192.98
Vehicles Cost per Improved Acre $ 6,200
Sources: City of Pacifica.
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Packet Pg. 382 Attachment: Attachment "B" - Pacifica Park Development Impact Fee Update (4939 : Update Park Development Impact Fee and Fee Reductions
CITY OF PACIFICA
COUNCIL AGENDA SUMMARY REPORT
3/28/2022
1 SUBJECT:
Consider Approval of a Preliminary Concept of a Bike Park at Lower Frontierland Park RECOMMENDED ACTION:
Approve the preliminary concept of a Bike Park in Pacifica at the lower Frontierland Park site.
STAFF CONTACT:
Michael Perez, Director, Parks, Beaches and Recreation
(650) 738-7382
[email protected]
Anthony Schriver, Acting Assistant Recreation Supervisor (650) 738-7461
[email protected]
BACKGROUND/DISCUSSION:
At the 2019 Council Goal Setting, several citizens came forth to speak in support of a bike park in Pacifica and Council agreed to add having a Bike Park Study Session to their 2019/2020 Work Plan. The full work plan description is as follows:
Work in this priority will begin by conducting a PB&R Commission study session to discuss the feasibility of a bike park in Pacifica, including potential locations, associated costs, operational concerns, legal issues and funding possibilities. Efforts will also engage local advocates, the Pacifica Bike Park Committee, as well as residents in neighborhoods where a bike park might be located. Once staff and advocates have researched and analyzed information based on Commission direction, a study session will be scheduled with City Council to receive direction on next steps.
Following Council Goal Setting, the Pacifica Bike Park Committee (PBPC) made a presentation of their plans and an initial proposal during a Parks, Beaches and Recreation (PB&R) Commission study session in June of 2019. Following the presentation, Commissioners asked questions and gave feedback to the group for follow up. The PBPC became a 501c3 non-profit that year and returned to the PB&R Commission for a second presentation in August 2020.
BPAC highlighted activities since the Council Goal Setting include:
· June 2019, held a pre-study session with Parks, Beaches, and Recreation staff and PBPC members
· June 2019, held a study session with the Parks, Beaches, and Recreation Commission; PBPC made a presentation, covering topics that included:
o History of Bike Park efforts in Pacifica
o Location criteria/info, and preference for Frontierland Park o Commissioners wanted to hear more about community support and specifically regarding the preferred location
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· Effective June 2019, Pacifica Bike Park became a 501(c) 3, and elected board members · In September 2019, PBPC participated in the Fog Fest, hosting a booth to collect signatures for support and gather information via a survey
· September 2019 through January 2020, surveys continued · In February 2020, PBPC members met with PB&R staff for an update and to discuss next steps
· August 26, 2020, the Pacifica PBPC gave a presentation at a second study session with the PB&R Commission engaged in discussion and received input Both the PBPC and past bike park advocates have considered a long list of potential sites for a bike park location. Many were eliminated from consideration based on failure to meet some of the basic criteria, such as whether the site was City-owned. The PBPC then looked more specifically at and highlighted three sites for evaluation - Fairmont Park, the Sharp Park Rifle Range, and lower Frontierland Park. The criteria considered for the evaluation of these sites included:
· Whether or not it was of adequate size - 30,000sf or greater · Desirable existing slope, terrain, and contour
· Existing infrastructure - bathrooms, irrigation/drainage, parking · Location - ease of access, public transportation, proximity to neighbors · Minimal anticipated environmental impact
· Whether or not it is City-owned
The outcome of this evaluation resulted in a list of pros and cons for each site and an ultimate recommendation of lower Frontierland Park as their preferred location.
Fairmont Park is an established existing City-owned park and the site is home to one of our Child Care Services preschool facilities. There is limited unused space available, very close to neighboring houses and any bike park development would take away from existing park features.
The Rifle Range property is very remote and not owned by Pacifica. Staff communicated with Dana Ketcham, the Director of Property Management, Permits and Reservations for the San Francisco Recreation and Parks Department and were informed that the rifle range location could not be used for a bike park. It was contaminated by lead throughout the area and the remediation done was to cap the land - a seal was placed over the lead to isolate it. The area is fenced off and public access is prohibited in the specific area being considered for the bike park.
Lower Frontierland Park was determined to be the most desirable location based on several factors. It is part of an existing park, but the specific area is underutilized. There is infrastructure for restrooms, the size is very good with excellent slop/contour and there is a paved parking lot adjacent to the upper park.
On November 19, 2020, a joint study session with City Council and PB&R Commission was held to discuss the Bike Park concept. The Council and Commission gave input regarding the PBPC’s recommendation of lower Fronteirland Park as a preferred location to help the Committee more thoroughly define the project. They asked the PBPC to gather more specific information regarding the chosen location and to engage the local neighborhood.
This process was delayed due to continued set-backs caused by COVID-19 restrictions. In October and November of 2021, staff along with PBPC, with feedback from the PB&R Commission developed a survey using the City-wide FlashVote system for Pacifica residents.
To include more people and increase the opportunity for engagement, the survey was extended through the end of December.
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At the February 23, 2022 PB&R Commission meeting, the PBPC presented an overview of their progress. Their presentation included information on considered locations as well as their discussions with a non-profit group with experience in developing, designing, maintaining, and fundraising to build a bike park. They also shared information regarding the survey results.
A total of 1,382 participants took the survey between November 16th- 18th and December 1st- 31st. Results indicated that most of the people taking the survey thought that a bike park would be a good addition for Pacifica. Most respondents said their families would utilize the bike park if it were built at Lower Frontierland Park. There was also a difference in responses regarding funding with almost 60% supporting funding the park with private funds/grants and almost 50% supporting the park being built with City funds.
Concerns that participants expressed and included not enough parking, that the location is too hard to get to, too noisy, too dangerous for riders, not a safe place for kids, and not enough features for beginners/younger kids. However, more than half of participants said that none of the above were concerns to them.
Of the five questions that were asked, three of the questions had open ended/unfiltered response options where participants could express anything that they felt was important. While totaling a small percentage of the comments, some common opposition concerns expressed were related to wanting the space to be left “as is,” environmental impact, funding, liability/safety, litter, crime and vandalism, opening and closing of the park, and drug/alcohol use. Common trends in comments supportive of a bike park included responders saying they loved the idea, that it would be great for the youth and families/all ages, highlighted the importance of providing fun, safe outdoor recreation for youth, that it would provide fun for entire families, pointed out the community building nature of the project as positive, as well as comments about the positive impacts for local business.
PBPC also shared ideas to address the feedback, suggestions, and comments received from the survey. Following the presentation, discussion and questions, the Commission voted to recommend to Council approval of the concept of a bike park in Pacifica at the lower Frontierland Park location. Staff is in agreement in recommending this as the preferred site based on available locations and the site selection process.
Should Council approve the recommendation by the Commission, it will allow the PBPC to move forward. Identifying a preliminary location will allow for the raising of funds and help with further feasibility studies regarding park location, design, and environmental studies.
ALTERNATIVE ACTION:
Council may direct staff to consider alternative locations.
RELATION TO CITY COUNCIL GOALS AND WORK PLAN:
This action helps to support youth services, which is a component of A Healthy and Compassionate Community. It also promotes An Engaged Community, taking actions to restore trust in City government, expanding communication and building community.
FISCAL IMPACT:
There is no fiscal impact associated with approving the concept of a bike park. City support of an actual project and expending staff resources, including City funding would be contingent on the fundraising and other efforts of the Pacifica Bike Park Committee. 7 Packet Pg. 385
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ORIGINATED BY:
Parks, Beaches & Recreation Department
ATTACHMENT LIST:
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CITY OF PACIFICA
COUNCIL AGENDA SUMMARY REPORT
3/28/2022
1 SUBJECT:
Construction of Anza Pump Station Repair Project
RECOMMENDED ACTION:
Approve the following actions for the Anza Pump Station Repair Project (C036):
A. Authorize the City Manager to Award and Execute a Construction Services Agreement with DW Nicholson Corporation (Attachment “A”) in an amount not to exceed $2,326,000.00 and authorize a budget authority for construction in the amount of $2,791,200.00, which includes contingencies in an amount not to exceed Twenty Percent (20%) of the Construction Contract amount; and
B. Authorize the City Manager to award and execute a Construction Services Agreement with Pump Repair Service Co. (Attachment “B”) to furnish and install a new third stormwater pump in an amount not to exceed $207,394.22 and authorize a budget authority for pump furnishing and installation in the amount of $228,133.64, which includes contingencies in an amount not to exceed Ten Percent (10%) of the Construction Contract amount; and
C. Authorize the City Manager to Award and Execute a Purchase Agreement with Peterson Power Systems Inc. (Attachment “C”) to furnish and support installation of a new third natural gas engine in an amount not to exceed $326,087.93 and authorize a budget authority for engine furnishing and installation support in the amount of $358,696.72, which includes contingencies in an amount not to exceed Ten Percent (10%) of the Purchase Agreement amount; and
D. Authorize the City Manager to approve and execute Task Order No. 2 (Attachment “D”) with Schaaf & Wheeler Consulting Civil Engineers, Inc. for Engineering Services During Construction (ESDC) in an amount not to exceed $105,630; and E. Authorize the City Manager to award and execute a Master Services Agreement (Attachment ‘E”) and Task Order No. 1 (Attachment “F”) with Ghirardelli Associates, Inc. to provide Construction Management Services in an amount not to exceed $220,600.00 and authorize a budget authority for Construction Management in an amount not to exceed $242,660.00 which includes contingencies in an amount not to exceed Ten Percent (10%) of the of Task Order No. 1; and F. Authorize City Staff to execute future Change Orders not to exceed the contingency amounts specified above.
STAFF CONTACT:
Nelson Schlater, P.E., Senior Engineer - Wastewater
(650) 738-3767
[email protected]
Sam Bautista, P.E., Deputy Director of Public Works/City Engineer (650) 738-3771
[email protected]
Lisa Petersen, P.E., Director of Public Works
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(650) 738-3770
[email protected]
BACKGROUND/DISCUSSION:
The Anza Pump Station is a stormwater pump station located just off San Pedro Beach, west of Cabrillo Highway between Crespi Drive and Linda Mar Boulevard. On March 16, 2020, a fire occurred at the Anza Pump Station causing catastrophic damage. During the fire investigation, the pumps, engines, shafts, and other mechanisms of the pumping system were inspected. The inspection found that the fire resulted in damage to the pump station’s mechanical, electrical, control systems, and building roof. Although most of the pumping system (that consists of three pumps and engines plus associated equipment) was damaged by the fire and will need to be replaced, it was determined that that one pump, built in the 1940’s, could be temporarily repaired and run with a rental engine from Herc Rentals and this has allowed the Anza Pump Station to function during the recent storm events. Although a temporary repair is in place, it is not sustainable, and a new pump and engine will be required with the final repair. The roof, damaged beyond repair, needs to be replaced and a temporary roof has been installed. The existing damage to the pump station prohibits proper normal operation and necessary redundancy, which could cause flooding and threaten the safety of persons, property, and critical public infrastructure.
The City of Pacifica’s Emergency Plan and Section 4-2.01 et seq. of the Pacifica Municipal Code empower the City Manager, acting as the Director of Emergency Services, to proclaim the existence of a local emergency when there is an actual or threatened existence of conditions of disaster or of extreme peril to the safety of persons and properties within this City. The Proclamation of Local Emergency was declared on April 8, 2020. The Proclamation has been continued and will continue until the Anza Pump Station is repaired and in working condition.
Additionally, pursuant to Section 3-15.09 (A) of the Pacifica Municipal Code, in cases of an emergency the City Manager is authorized to proceed at once to replace or repair any public facility without adopting plans, specifications, strain sheets, or working details, or giving notice for bids to let contracts. The City complies with Public Contract Code section 22050, which provides a process for City Council’s review of the emergency action if notice of bids to let contracts for public projects will not be given because of the emergency. This allows staff to obtain the necessary equipment to rehabilitate the pump station faster. In this case, the City Manager has determined that the damaged pump station threatens the health and safety of persons and properties, including critical public infrastructure, which requires immediate attention and constitutes an emergency pursuant to Pacifica Municipal Code section 4-2.02 and Public Contract Code section 1102.
The City applied for and received an Emergency Coastal Development Permit from the California Coastal Commission (CCC) related to installation of a gas line and third pump and engine at the pump station. The City is in discussion with the Commission on whether permitting is required or not for other fire damaged components of the station. The City’s position is that these should be covered under the current City CCC permitting for maintenance and repair and not require a new CCC Coastal Development Permit, a position that is critical for the City to be able to continue to repair and maintain other City infrastructure in other City areas that have CCC oversight. The City will continue to move forward with Anza Pump Station repairs during these conversations due to the emergency nature of this repair project.
Previous Council Authorizations for the Anza Pump Station The following actions related to the Anza Pump Station were previously approved by Council and occurred at several Council meetings between 2020 and 2021. Costs for these actions are provided under the fiscal section of this report. The actions were as follows:
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-Rebuild of damaged pump, purchase of pump and reinstallation -Consultant services for design services for the repair -Bathroom repairs
-Purchase of two engines
Currently Requested Council Authorizations for Anza Pump Station in this Report All purchases related to the Anza Pump Station emergency work are covered under the Emergency Proclamation that is brought to Council at the beginning of each month. This allows the City Manager, acting as the Emergency Services Manager, to proceed at once to replace or repair any public facility without adopting plans/specifications or giving notice for bids to let contracts. However, in instances where time allows, staff will come to Council prior to authorization as is the case related to the below requests.
Construction Services Agreement with DW Nicholson Corporation As discussed, under an Emergency Proclamation, a city can procure services without soliciting bids. However, while the City was completing on-going conversations with the California Coastal Commission on permitting requirements to allow the Anza project to move forward, staff put out an advertisement for pre-qualification of bidders in the summer of 2021 to ensure pump station experienced contractors would receive the work. Ultimately, two contactors were verified who could complete the work, DW Nicholson and GSE Construction Company. DW Nicholson was the only contractor who submitted during the prequalification process. In order to allow for additional bidders, staff was able to identify a second contractor who was qualified and was willing to bid on the project, GSE Construction Company.
The City received bids from both of the contractors (that were reviewed by the City’s insurance adjuster) in February, with DW Nicholson providing the lower bid shown below:
Company Bid Percent Difference
DW Nicholson Corporation $2,326,000.00
GSE Construction Company, Inc. $2,416,000.00 4%
The pump station bid prices are substantially higher than the cost estimate received in the summer of 2021, with pricing approximately doubling. This is related to the time delay in working with the Coastal Commission on the permitting issues as well as escalating material costs, fuel increases and supply chain disruptions. Additionally, the current pump station/treatment plant construction marketplace is extremely busy. Due to the emergency nature of the work, staff recommends authorizing a budget authority for construction in the amount of $2,791,200.00, which includes contingencies in an amount not to exceed twenty percent (20%) of the Construction Contract amount for any unforeseen conditions and the unknown impacts of items listed above.
Agreements with Pump Repair Service for stormwater pump & Peterson Power Systems for natural gas engine
To save money on the project and avoid the contractor markups, staff is recommending the prepurchase of the third stormwater pump and natural gas engine, which will restore the pump station to its original configuration. The pump and gas engine are the same models from the same suppliers as the previously purchased pump/engines, thereby simplifying operation and maintenance. Staff recommends authorizing a budget authority for furnishing and installation of a new third stormwater pump in the amount of $228,133.64, which includes contingencies in an amount not to exceed ten percent (10%) of the Construction Contract amount. Furthermore, staff recommends authorizing a budget authority for furnishing and installation support of a new third natural gas engine in the amount of $358,696.72, which includes contingencies in an 8 Packet Pg. 389
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amount not to exceed ten percent (10%) of the Purchase Agreement amount.
Construction Management
Construction Management (CM) will be performed by Ghirardelli Associates Inc. who was approved as an On-Call Engineering Consultant for the Department of Public Works Engineering Division during the 2021 On-Call Consultant selection process. Ghirardelli Associates Inc. provided all required documentation during the Request For Qualification process, and their reference checks provided positive feedback. Staff therefore requested a proposal from Ghirardelli Associates and found that the proposed work is adequate for the Anza Pump Station Repair Project. Therefore, staff recommends approval of the Master Agreement and Task Order No. 1 between the City of Pacifica and Ghirardelli Associates Inc. for the construction management, inspections and material testing of this project in the amount of $220,600.00. Staff recommends authorizing a budget authority for construction management in an amount not to exceed $242,660.00, which includes contingencies in the amount not to exceed ten percent (10%) of Task Order No. 1 for any unforeseen conditions.
Design Services
Engineering support during construction (ESDC) is needed and will be performed by the project design engineer, Schaaf & Wheeler, as is typical. Staff recommends approval of Task Order No. 2 with Schaaf & Wheeler Consulting Civil Engineers, Inc. for Engineering Services During Construction (ESDC) in an amount not to exceed $105,630. EDSC tasks include reviewing submittals and answering questions, as well as providing technical expertise as issues arise during construction. This will increase total compensation for all task orders under this Master Services Agreement from $264,160 to $369,790.
The cost estimate for these project approvals, including the above contingencies is $3,726,320.36. Project funding will be reimbursable by insurance as described below in further detail. The project requires a significant level of Construction Management, given the complexity of the construction disciplines (structural, mechanical, and electrical). The ESDC level of effort is consistent with the pump station repairs required, to ensure compliance with the construction documents.
The following schedule is anticipated for the Anza Pump Station Repair Project:
Description Date
Council Approval of to Award Contracts March 2022
Award of Construction/Purchase Agreements April 2022
Construction Start May 2022
Substantial Completion November/December 2022
Final Completion December 2022/January 2023
The project will install the new steel roof as part of the upcoming work. Furthermore, to maintain pump station capacity during project improvements, the City will maintain the existing temporary rental engine and large repaired 1940’s stormwater pump; these facilities will be removed at the end of the project.
Approval of the recommendations will allow staff to move forward with constructing improvements that will result in a restored stormwater pump station that will protect the health and safety of persons and properties, including critical public infrastructure. Should the Council 8 Packet Pg. 390
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approve the recommended actions in this report, the project will be constructed. The City Manager recommends that the City Council approve the construction, equipment, and construction services contracts as discussed in this Council report.
ALTERNATIVE ACTION:
Council may choose not to approve these agreements; however, this will result in project delays, possible increase of construction costs and increased possibility of equipment failure at the pump station and could lead to catastrophic flooding events. Staff does not recommend this alternate action.
RELATION TO CITY COUNCIL GOALS AND WORK PLAN:
Approval of the construction contract and supporting agreements is consistent with the following Council adopted Goals:
• Stewardship of City Infrastructure and Maintaining a Safe Community: This construction project will help facilitate return of the Anza Pump Station to its pre-fire capacity, conveying storm water flows to the ocean to mitigate potential impacts of flooding including threatening the safety of residents and damaging private property or critical public infrastructure.
FISCAL IMPACT:
The fiscal impacts associated with the Anza Pump Station Repair Project (C036) will be submitted for reimbursement to the City’s insurance carrier, PLAN JPA. The City’s deductibles are $225,000 for PLAN JPA and $10,000 for American International Group (AIG). The total project use of funds for the Anza Pump Station Repair Project (C036) to date, including the recommended agreement approvals, is as follows:
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As previously noted in a Council update, staff intends to bring updated costs related to the Herc rental to Council by the end of the fiscal year in a report listing on-going City agreements and associated costs.
ORIGINATED BY:
Public Works - Wastewater Division
ATTACHMENT LIST:
Attachment A - Construction Services Agreement with DW Nicholson (PDF) Attachment B - Construction Services Agreement with Pump Repair Service Co. (PDF) Attachment C - Purchase Agreement with Peterson Power Systems, Inc. (PDF) Attachment D-Agreement_Schaaf Wheeler_20220316_TaskOrder#2_Anza Pump Station Repair Project (PDF)
Attachment E- Agreement_Ghirardelli Associates Inc_20220316_Anza Pump Station Repair CM (PDF)
Attachment F-Agreement_Ghirardelli Associates Inc_20220316_Task Order #1_Anza Pump Station Repair CM (PDF)
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ATTACHMENT A
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SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
INSURER(S) AFFORDING COVERAGE
INSURER F :
INSURER E :
INSURER D :
INSURER C :
INSURER B :
INSURER A : NAIC #
NAME: CONTACT
(A/C, No): FAX
E-MAIL ADDRESS:
PRODUCER
(A/C, No, Ext): PHONE
INSURED
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR WVDADDL
INSD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $
$
$
$ PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person) COMBINED SINGLE LIMIT
AUTOS ONLY
AUTOS ONLY AUTOS NON-OWNED OWNED SCHEDULED
ANY AUTO
AUTOMOBILE LIABILITY
Y / N WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?
(Mandatory in NH) DESCRIPTION OF OPERATIONS below
If yes, describe under
ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEEE.L. EACH ACCIDENT EROTH- STATUTE PER
(MM/DD/YYYY) LIMITS POLICY EXP(MM/DD/YYYY) POLICY EFFLTR TYPE OF INSURANCE POLICY NUMBER INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
EXCESS LIAB
UMBRELLA LIAB EACH OCCURRENCE $ AGGREGATE $
$
OCCUR
CLAIMS-MADE DED RETENTION $
PRODUCTS - COMP/OP AGG $ GENERAL AGGREGATE $ PERSONAL & ADV INJURY $ MED EXP (Any one person) $
EACH OCCURRENCE $ DAMAGE TO RENTED
PREMISES (Ea occurrence) $ COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC
CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)
CANCELLATION
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.
CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED
AUTOS ONLY
3/4/2022
Woodruff-Sawyer & Co.
50 California Street, Floor 12
San Francisco CA 94111
Ranjani Sharma 415-402-6507 415-989-9923 [email protected] Hartford Fire Insurance Company 19682 DWNICHO-01 Sentinel Insurance Company, Ltd. 11000 D.W. Nicholson Corporation
24747 Clawiter Road
Hayward, CA 94545
Hartford Casualty Insurance Company 29424 586965547
A X 1,000,000 X 300,000 5,000 1,000,000 2,000,000 X
Y Y 57UEAFM6332 7/1/2021 7/1/2022
2,000,000
A 1,000,000 X
X X
Y Y 57UEAFM6453 7/1/2021 7/1/2022
C X 10,000,000 XY Y 57HHABB6552 7/1/2021 7/1/2022
10,000,000
B Y 57WEAAD1UNH 7/1/2021 7/1/2022
X
1,000,000 1,000,000 1,000,000
City of Pacifica, Anza Pump Station Repair (C036) - The City of Pacifica (City), each of its officials, officers, employees, agents and volunteers; the Design Consultant, Owners; Representative and each of their officials, officers, partners, employees, agents and volunteers are additional insured, on a primary, non-contributory basis, per the attached endorsements. Severability of Interest and Blanket Contractual Liability are included in the policy coverage form.
Waiver of Subrogation, in favor of additional insureds, is included per endorsements attached. Umbrella Excess Liability is written on a following form basis excess of underlying. Policies contain a 30-day notice of cancellation, 10-day notice of cancellation for non-payment of premium. City of Pacifica 540 Crespi Drive
Pacifica CA 94044
X $25,000 Ded.
8.a
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© 2016 The Hartford
(Includes copyrighted material of Insurance Services Office, Inc. with its permission.)
COMMERCIAL GENERAL LIABILITY COVERAGE FORM
Various provisions in this policy restrict coverage.
Read the entire policy carefully to determine rights,
duties and what is and is not covered.
Throughout this policy the words "you" and "your"
refer to the Named Insured shown in the
Declarations, and any other person or organization
qualifying as a Named Insured under this policy. The
words "we", "us" and "our" refer to the stock
insurance company member of The Hartford
providing this insurance.
The word "insured" means any person or
organization qualifying as such under Section II –
Who Is An Insured.
Other words and phrases that appear in quotation
marks have special meaning. Refer to Section V –
Definitions.
SECTION I – COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY
DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured
becomes legally obligated to pay as damages
because of "bodily injury" or "property
damage" to which this insurance applies. We
will have the right and duty to defend the
insured against any "suit" seeking those
damages. However, we will have no duty to
defend the insured against any "suit" seeking
damages for "bodily injury" or "property
damage" to which this insurance does not
apply. We may, at our discretion, investigate
any "occurrence" and settle any claim or "suit"
that may result. But:
(1) The amount we will pay for damages is
limited as described in Section III – Limits
Of Insurance; and
(2) Our right and duty to defend ends when
we have used up the applicable limit of
insurance in the payment of judgments or
settlements under Coverages A or B or
medical expenses under Coverage C.
No other obligation or liability to pay sums or
perform acts or services is covered unless
explicitly provided for under Supplementary
Payments – Coverages A and B.
b. This insurance applies to "bodily injury" and
"property damage" only if:
(1) The "bodily injury" or "property damage" is
caused by an "occurrence" that takes
place in the "coverage territory";
(2) The "bodily injury" or "property damage"
occurs during the policy period; and
(3) Prior to the policy period, no insured listed
under Paragraph 1. of Section II – Who Is
An Insured and no "employee" authorized
by you to give or receive notice of an
"occurrence" or claim, knew that the
"bodily injury" or "property damage" had
occurred, in whole or in part. If such a
listed insured or authorized "employee"
knew, prior to the policy period, that the
"bodily injury" or "property damage"
occurred, then any continuation, change
or resumption of such "bodily injury" or
"property damage" during or after the
policy period will be deemed to have been
known prior to the policy period.
c. "Bodily injury" or "property damage" will be
deemed to have been known to have
occurred at the earliest time when any
insured listed under Paragraph 1. of Section II
– Who Is An Insured or any "employee"
authorized by you to give or receive notice of
an "occurrence" or claim:
(1) Reports all, or any part, of the "bodily
injury" or "property damage" to us or any
other insurer;
(2) Receives a written or verbal demand or
claim for damages because of the "bodily
injury" or "property damage"; or
(3) Becomes aware by any other means that
"bodily injury" or "property damage" has
occurred or has begun to occur.
d. Damages because of "bodily injury" include
damages claimed by any person or
organization for care, loss of services or
death resulting at any time from the "bodily
injury".
e. Incidental Medical Malpractice And Good
Samaritan Coverage
"Bodily injury" arising out of the rendering of
or failure to render the following health care
services by any "employee" or "volunteer
worker" shall be deemed to be caused by an
"occurrence" for:
Policy Number: 57UEAFM6332
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(1) Professional health care services such as:
(a) Medical, surgical, dental, laboratory, xray or nursing services or treatment, advice or instruction, or the related
furnishing of food or beverages;
(b) Any health or therapeutic service,
treatment, advice or instruction; or
(c) The furnishing or dispensing of drugs
or medical, dental, or surgical supplies
or appliances; or
(2) First aid services, which include:
(a) Cardiopulmonary resuscitation,
whether performed manually or with a
defibrillator; or
(b) Services performed as a Good
Samaritan.
For the purpose of determining the limits of
insurance, any act or omission together with
all related acts or omissions in the furnishing
of these services to any one person will be
considered one "occurrence".
However, this Incidental Medical Malpractice
And Good Samaritan Coverage provision
applies only if you are not engaged in the
business or occupation of providing any of the
services described in this provision.
2. Exclusions
This insurance does not apply to:
a. Expected Or Intended Injury
"Bodily injury" or "property damage" expected
or intended from the standpoint of the
insured. This exclusion does not apply to
"bodily injury" or "property damage" resulting
from the use of reasonable force to protect
persons or property.
b. Contractual Liability
"Bodily injury" or "property damage" for which
the insured is obligated to pay damages by
reason of the assumption of liability in a
contract or agreement. This exclusion does
not apply to liability for damages:
(1) That the insured would have in the
absence of the contract or agreement; or
(2) Assumed in a contract or agreement that
is an "insured contract", provided the
"bodily injury" or "property damage"
occurs subsequent to the execution of the
contract or agreement. Solely for the
purposes of liability assumed in an
"insured contract", reasonable attorney
fees and necessary litigation expenses
incurred by or for a party other than an
insured are deemed to be damages
because of "bodily injury" or "property
damage", provided:
(a) Liability to such party for, or for the
cost of, that party's defense has also
been assumed in the same "insured
contract"; and
(b) Such attorney fees and litigation
expenses are for defense of that party
against a civil or alternative dispute
resolution proceeding in which
damages to which this insurance
applies are alleged.
c. Liquor Liability
"Bodily injury" or "property damage" for which
any insured may be held liable by reason of:
(1) Causing or contributing to the intoxication
of any person;
(2) The furnishing of alcoholic beverages to a
person under the legal drinking age or
under the influence of alcohol; or
(3) Any statute, ordinance or regulation
relating to the sale, gift, distribution or use
of alcoholic beverages.
This exclusion applies even if the claims
against any insured allege negligence or
other wrongdoing in:
(a) The supervision, hiring, employment,
training or monitoring of others by that
insured; or
(b) Providing or failing to provide
transportation with respect to any
person that may be under the influence
of alcohol;
if the "occurrence" which caused the "bodily
injury" or "property damage", involved that
which is described in Paragraph (1), (2) or (3)
above.
However, this exclusion applies only if you
are in the business of manufacturing,
distributing, selling, serving or furnishing
alcoholic beverages. For the purposes of this
exclusion, permitting a person to bring
alcoholic beverages on your premises, for
consumption on your premises, whether or
not a fee is charged or a license is required
for such activity, is not by itself considered the
business of selling, serving or furnishing
alcoholic beverages.
d. Workers' Compensation And Similar Laws
Any obligation of the insured under a workers'
compensation, disability benefits or
unemployment compensation law or any
similar law.
e. Employer's Liability
"Bodily injury" to:
(1) An "employee" of the insured arising out of
and in the course of:
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(a) Employment by the insured; or
(b) Performing duties related to the
conduct of the insured's business; or
(2) The spouse, child, parent, brother or sister
of that "employee" as a consequence of
Paragraph (1) above.
This exclusion applies:
(1) Whether the insured may be liable as an
employer or in any other capacity; and
(2) To any obligation to share damages with
or repay someone else who must pay
damages because of the injury.
This exclusion does not apply to liability
assumed by the insured under an "insured
contract".
f. Pollution
(1) "Bodily injury" or "property damage"
arising out of the actual, alleged or
threatened discharge, dispersal, seepage,
migration, release or escape of
"pollutants":
(a) At or from any premises, site or
location which is or was at any time
owned or occupied by, or rented or
loaned to, any insured. However, this
subparagraph does not apply to:
(i) "Bodily injury" if sustained within a
building and caused by smoke,
fumes, vapor or soot produced by
or originating from equipment that
is used to heat, cool or dehumidify
the building, or equipment that is
used to heat water for personal
use, by the building's occupants or
their guests;
(ii) "Bodily injury" or "property damage"
for which you may be held liable, if
you are a contractor and the owner
or lessee of such premises, site or
location has been added to your
policy as an additional insured with
respect to your ongoing operations
performed for that additional
insured at that premises, site or
location and such premises, site or
location is not and never was
owned or occupied by, or rented or
loaned to, any insured, other than
that additional insured; or
(iii) "Bodily injury" or "property damage"
arising out of heat, smoke or fumes
from a "hostile fire";
(b) At or from any premises, site or
location which is or was at any time
used by or for any insured or others for
the handling, storage, disposal,
processing or treatment of waste;
(c) Which are or were at any time
transported, handled, stored, treated,
disposed of, or processed as waste by
or for:
(i) Any insured; or
(ii) Any person or organization for
whom you may be legally
responsible;
(d) At or from any premises, site or
location on which any insured or any
contractors or subcontractors working
directly or indirectly on any insured's
behalf are performing operations if the
"pollutants" are brought on or to the
premises, site or location in connection
with such operations by such insured,
contractor or subcontractor. However,
this subparagraph does not apply to:
(i) "Bodily injury" or "property damage"
arising out of the escape of fuels,
lubricants or other operating fluids
which are needed to perform the
normal electrical, hydraulic or
mechanical functions necessary for
the operation of "mobile equipment"
or its parts, if such fuels, lubricants
or other operating fluids escape
from a vehicle part designed to
hold, store or receive them. This
exception does not apply if the
"bodily injury" or "property damage"
arises out of the intentional
discharge, dispersal or release of
the fuels, lubricants or other
operating fluids, or if such fuels,
lubricants or other operating fluids
are brought on or to the premises,
site or location with the intent that
they be discharged, dispersed or
released as part of the operations
being performed by such insured,
contractor or subcontractor;
(ii) "Bodily injury" or "property damage"
sustained within a building and
caused by the release of gases,
fumes or vapors from materials
brought into that building in
connection with operations being
performed by you or on your behalf
by a contractor or subcontractor; or
(iii) "Bodily injury" or "property damage"
arising out of heat, smoke or fumes
from a "hostile fire"; or
(e) At or from any premises, site or
location on which any insured or any
contractors or subcontractors working
8.a
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directly or indirectly on any insured's
behalf are performing operations if the
operations are to test for, monitor,
clean up, remove, contain, treat,
detoxify or neutralize, or in any way
respond to, or assess the effects of,
"pollutants".
(2) Any loss, cost or expense arising out of
any:
(a) Request, demand, order or statutory or
regulatory requirement that any
insured or others test for, monitor,
clean up, remove, contain, treat,
detoxify or neutralize, or in any way
respond to, or assess the effects of,
"pollutants"; or
(b) Claim or suit by or on behalf of a
governmental authority for damages
because of testing for, monitoring,
cleaning up, removing, containing,
treating, detoxifying or neutralizing, or
in any way responding to, or assessing
the effects of, "pollutants".
However, this paragraph does not apply to
liability for damages because of "property
damage" that the insured would have in
the absence of such request, demand,
order or statutory or regulatory
requirement, or such claim or "suit" by or
on behalf of a governmental authority.
g. Aircraft, Auto Or Watercraft
"Bodily injury" or "property damage" arising
out of the ownership, maintenance, use or
entrustment to others of any aircraft, "auto" or
watercraft owned or operated by or rented or
loaned to any insured. Use includes operation
and "loading or unloading".
This exclusion applies even if the claims
against any insured allege negligence or
other wrongdoing in the supervision, hiring,
employment, training or monitoring of others
by that insured, if the "occurrence" which
caused the "bodily injury" or "property
damage" involved the ownership,
maintenance, use or entrustment to others of
any aircraft, "auto" or watercraft that is owned
or operated by or rented or loaned to any
insured.
This exclusion does not apply to:
(1) A watercraft while ashore on premises you
own or rent;
(2) A watercraft you do not own that is:
(a) Less than 51 feet long; and
(b) Not being used to carry persons for a
charge;
(3) Parking an "auto" on, or on the ways next
to, premises you own or rent, provided the
"auto" is not owned by or rented or loaned
to you or the insured;
(4) Liability assumed under any "insured
contract" for the ownership, maintenance
or use of aircraft or watercraft;
(5) "Bodily injury" or "property damage"
arising out of:
(a) The operation of machinery or
equipment that is attached to, or part
of, a land vehicle that would qualify
under the definition of "mobile
equipment" if it were not subject to a
compulsory or financial responsibility
law or other motor vehicle insurance
law where it is licensed or principally
garaged; or
(b) The operation of any of the machinery
or equipment listed in Paragraph f.(2)
or f.(3) of the definition of "mobile
equipment"; or
(6) An aircraft that is not owned by any
insured and is hired, chartered or loaned
with a paid crew. However, this exception
does not apply if the insured has any other
insurance for such "bodily injury" or
"property damage", whether the other
insurance is primary, excess, contingent
or on any other basis.
h. Mobile Equipment
"Bodily injury" or "property damage" arising
out of:
(1) The transportation of "mobile equipment"
by an "auto" owned or operated by or
rented or loaned to any insured; or
(2) The use of "mobile equipment" in, or while
in practice for, or while being prepared for,
any prearranged racing, speed,
demolition, or stunting activity.
i. War
"Bodily injury" or "property damage", however
caused, arising, directly or indirectly, out of:
(1) War, including undeclared or civil war;
(2) Warlike action by a military force, including
action in hindering or defending against an
actual or expected attack, by any
government, sovereign or other authority
using military personnel or other agents;
or
(3) Insurrection, rebellion, revolution, usurped
power, or action taken by governmental
authority in hindering or defending against
any of these.
j. Damage To Property
"Property damage" to:
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(1) Property you own, rent, or occupy,
including any costs or expenses incurred
by you, or any other person, organization
or entity, for repair, replacement,
enhancement, restoration or maintenance
of such property for any reason, including
prevention of injury to a person or damage
to another's property;
(2) Premises you sell, give away or abandon,
if the "property damage" arises out of any
part of those premises;
(3) Property loaned to you;
(4) Personal property in the care, custody or
control of the insured;
(5) That particular part of real property on
which you or any contractors or
subcontractors
working directly or indirectly on your behalf
are performing operations, if the "property
damage" arises out of those operations; or
(6) That particular part of any property that
must be restored, repaired or replaced
because "your work" was incorrectly
performed on it.
Paragraphs (1), (3) and (4) of this exclusion
do not apply to "property damage" (other than
damage by fire) to premises, including the
contents of such premises, rented to you for a
period of seven or fewer consecutive days. A
separate limit of insurance applies to Damage
To Premises Rented To You as described in
Section III – Limits Of Insurance.
Paragraph (2) of this exclusion does not apply
if the premises are "your work" and were
never occupied, rented or held for rental by
you.
Paragraphs (3) and (4) of this exclusion do
not apply to "property damage" arising from
the use of elevators.
Paragraphs (3), (4), (5) and (6) of this
exclusion do not apply to liability assumed
under a sidetrack agreement.
Paragraphs (3) and (4) of this exclusion do
not apply to "property damage" to borrowed
equipment while not being used to perform
operations at the job site.
Paragraph (6) of this exclusion does not apply
to "property damage" included in the
"products-completed operations hazard".
k. Damage To Your Product
"Property damage" to "your product" arising
out of it or any part of it.
l. Damage To Your Work
"Property damage" to "your work" arising out
of it or any part of it and included in the
"products-completed operations hazard".
This exclusion does not apply if the damaged
work or the work out of which the damage
arises was performed on your behalf by a
subcontractor.
m. Damage To Impaired Property Or Property
Not Physically Injured
"Property damage" to "impaired property" or
property that has not been physically injured,
arising out of:
(1) A defect, deficiency, inadequacy or
dangerous condition in "your product" or
"your work"; or
(2) A delay or failure by you or anyone acting
on your behalf to perform a contract or
agreement in accordance with its terms.
This exclusion does not apply to the loss of
use of other property arising out of sudden
and accidental physical injury to "your
product" or "your work" after it has been put
to its intended use.
n. Recall Of Products, Work Or Impaired
Property
Damages claimed for any loss, cost or
expense incurred by you or others for the loss
of use, withdrawal, recall, inspection, repair,
replacement, adjustment, removal or disposal
of:
(1) "Your product";
(2) "Your work"; or
(3) "Impaired property";
if such product, work, or property is withdrawn
or recalled from the market or from use by
any person or organization because of a
known or suspected defect, deficiency,
inadequacy or dangerous condition in it.
o. Personal And Advertising Injury
"Bodily injury" arising out of "personal and
advertising injury".
p. Access or Disclosure Of Confidential Or
Personal Information And Data-related
Liability
Damages arising out of:
(1) Any access to or disclosure of any
person's or organization's confidential or
personal information, including patents,
trade secrets, processing methods,
customer lists, financial information, credit
card information, health information or any
other type of nonpublic information; or
(2) The loss of, loss of use of, damage to,
corruption of, inability to access, or
inability to manipulate electronic data.
This exclusion applies even if damages are
claimed for notification costs, credit
monitoring expenses, forensic expenses,
8.a
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public relations expenses or any other loss,
cost or expense incurred by you or others
arising out of that which is described in
Paragraph (1) or (2) above.
However, unless Paragraph (1) above
applies, this exclusion does not apply to
damages because of "bodily injury”.
As used in this exclusion, electronic data
means information, facts or programs stored
as or on, created or used on, or transmitted to
or from computer software, including systems
and applications software, hard or floppy
disks, CD-ROMS, tapes, drives, cells, data
processing devices or any other media which
are used with electronically controlled
equipment.
q. Employment-Related Practices
"Bodily injury" to:
(1) A person arising out of any "employment–
related practices"; or
(2) The spouse, child, parent, brother or sister
of that person as a consequence of "bodily
injury" to that person at whom any
"employment-related practices" are
directed.
This exclusion applies:
(1) Whether the injury-causing event
described in the definition of "employmentrelated practices" occurs before employment, during employment or after
employment of that person;
(2) Whether the insured may be liable as an
employer or in any other capacity; and
(3) To any obligation to share damages with
or repay someone else who must pay
damages because of the injury.
r. Asbestos
(1) "Bodily injury" or "property damage"
arising out of the "asbestos hazard".
(2) Any damages, judgments, settlements,
loss, costs or expenses that:
(a) May be awarded or incurred by reason
of any claim or suit alleging actual or
threatened injury or damage of any
nature or kind to persons or property
which would not have occurred in
whole or in part but for the "asbestos
hazard";
(b) Arise out of any request, demand,
order or statutory or regulatory
requirement that any insured or others
test for, monitor, clean up, remove,
encapsulate, contain, treat, detoxify or
neutralize or in any way respond to or
assess the effects of an "asbestos
hazard"; or
(c) Arise out of any claim or suit for
damages because of testing for,
monitoring, cleaning up, removing,
encapsulating, containing, treating,
detoxifying or neutralizing or in any
way responding to or assessing the
effects of an "asbestos hazard".
s. Recording And Distribution Of Material Or
Information In Violation Of Law
"Bodily injury" or "property damage" arising
directly or indirectly out of any action or
omission that violates or is alleged to violate:
(1) The Telephone Consumer Protection Act
(TCPA), including any amendment of or
addition to such law;
(2) The CAN-SPAM Act of 2003, including
any amendment of or addition to such law;
(3) The Fair Credit Reporting Act (FCRA), and
any amendment of or addition to such law,
including the Fair and Accurate Credit
Transaction Act (FACTA); or
(4) Any federal, state or local statute,
ordinance or regulation, other than the
TCPA or CAN-SPAM Act of 2003 or FCRA
and their amendments and additions, that
addresses, prohibits or limits the printing,
dissemination, disposal, collecting,
recording, sending, transmitting,
communicating or distribution of material
or information.
Damage To Premises Rented To You –
Exception For Damage By Fire, Lightning Or
Explosion
Exclusions c. through h. and j. through n. do not
apply to damage by fire, lightning or explosion to
premises while rented to you or temporarily
occupied by you with permission of the owner. A
separate limit of insurance applies to this
coverage as described in Section III – Limits Of
Insurance.
COVERAGE B PERSONAL AND ADVERTISING
INJURY LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured
becomes legally obligated to pay as damages
because of "personal and advertising injury"
to which this insurance applies. We will have
the right and duty to defend the insured
against any "suit" seeking those damages.
However, we will have no duty to defend the
insured against any "suit" seeking damages
for "personal and advertising injury" to which
this insurance does not apply. We may, at our
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discretion, investigate any offense and settle
any claim or "suit" that may result. But:
(1) The amount we will pay for damages is
limited as described in Section III – Limits
Of Insurance; and
(2) Our right and duty to defend end when we
have used up the applicable limit of
insurance in the payment of judgments or
settlements under Coverages A or B or
medical expenses under Coverage C.
No other obligation or liability to pay sums or
perform acts or services is covered unless
explicitly provided for under Supplementary
Payments – Coverages A and B.
b. This insurance applies to "personal and
advertising injury" caused by an offense
arising out of your business but only if the
offense was committed in the "coverage
territory" during the policy period.
2. Exclusions
This insurance does not apply to:
a. Knowing Violation Of Rights Of Another
"Personal and advertising injury" arising out of
an offense committed by, at the direction or
with the consent or acquiescence of the
insured with the expectation of inflicting
"personal and advertising injury".
b. Material Published With Knowledge Of
Falsity
"Personal and advertising injury" arising out of
oral, written or electronic publication, in any
manner, of material, if done by or at the
direction of the insured with knowledge of its
falsity.
c. Material Published Prior To Policy Period
"Personal and advertising injury" arising out of
oral, written or electronic publication, in any
manner, of material whose first publication
took place before the beginning of the policy
period.
d. Criminal Acts
"Personal and advertising injury" arising out of
a criminal act committed by or at the direction
of the insured.
e. Contractual Liability
"Personal and advertising injury" for which the
insured has assumed liability in a contract or
agreement. This exclusion does not apply to
liability for damages that the insured would
have in the absence of the contract or
agreement.
f. Breach Of Contract
"Personal and advertising injury" arising out of a
breach of contract, except an implied contract to
use another's "advertising idea" in your
"advertisement".
g. Quality Or Performance Of Goods –
Failure To Conform To Statements
"Personal and advertising injury" arising out of
the failure of goods, products or services to
conform with any statement of quality or
performance made in your "advertisement".
h. Wrong Description Of Prices
"Personal and advertising injury" arising out of
the wrong description of the price of goods,
products or services.
i. Infringement Of Intellectual Property
Rights
(1) "Personal and advertising injury" arising
out of any actual or alleged infringement
or violation of any intellectual property
rights such as copyright, patent,
trademark, trade name, trade secret, trade
dress, service mark or other designation
of origin or authenticity; or
(2) Any injury or damage alleged in any clam
or "suit" that also alleges an infringement
or violation of any intellectual property
right, whether such allegation of
infringement or violation is made by you or
by any other party involved in the claim or
"suit", regardless of whether this
insurance would otherwise apply.
However, this exclusion does not apply if the
only allegation in the claim or "suit" involving
any intellectual property right is limited to:
(1) Infringement, in your "advertisement", of:
(a) Copyright;
(b) Slogan; or
(c) Title of any literary or artistic work; or
(2) Copying, in your "advertisement", a
person’s or organization’s "advertising
idea" or style of "advertisement".
j. Insureds In Media And Internet Type
Businesses
"Personal and advertising injury" committed
by an insured whose business is:
(1) Advertising, broadcasting, publishing or
telecasting;
(2) Designing or determining content of web
sites for others; or
(3) An Internet search, access, content or
service provider.
However, this exclusion does not apply to
Paragraphs a., b. and c. of the definition of
"personal and advertising injury" under the
Definitions Section.
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For the purposes of this exclusion, the placing
of frames, borders or links, or advertising, for
you or others anywhere on the Internet, is not
by itself, considered the business of
advertising, broadcasting, publishing or
telecasting.
k. Electronic Chatrooms Or Bulletin Boards
"Personal and advertising injury" arising out of
an electronic chatroom or bulletin board the
insured hosts, owns, or over which the
insured exercises control.
l. Unauthorized Use Of Another's Name Or
Product
"Personal and advertising injury" arising out of
the unauthorized use of another's name or
product in your e-mail address, domain name
or metatags, or any other similar tactics to
mislead another's potential customers.
m. Pollution
"Personal and advertising injury" arising out of
the actual, alleged or threatened discharge,
dispersal, seepage, migration, release or
escape of "pollutants" at any time.
n. Pollution-Related
Any loss, cost or expense arising out of any:
(1) Request, demand, order or statutory or
regulatory requirement that any insured or
others test for, monitor, clean up, remove,
contain, treat, detoxify or neutralize, or in
any way respond to, or assess the effects
of, "pollutants"; or
(2) Claim or suit by or on behalf of a
governmental authority for damages
because of testing for, monitoring,
cleaning up, removing, containing,
treating, detoxifying or neutralizing, or in
any way responding to, or assessing the
effects of, "pollutants".
o. War
"Personal and advertising injury", however
caused, arising, directly or indirectly, out of:
(1) War, including undeclared or civil war;
(2) Warlike action by a military force, including
action in hindering or defending against an
actual or expected attack, by any
government, sovereign or other authority
using military personnel or other agents;
or
(3) Insurrection, rebellion, revolution, usurped
power, or action taken by governmental
authority in hindering or defending against
any of these.
p. Internet Advertisements And Content Of
Others
"Personal and advertising injury" arising out
of:
(1) An "advertisement" for others on your web
site;
(2) Placing a link to a web site of others on
your web site;
(3) Content, including information, sounds,
text, graphics, or images from a web site
of others displayed within a frame or
border on your web site; or
(4) Computer code, software or programming
used to enable:
(a) Your web site; or
(b) The presentation or functionality of an
"advertisement" or other content on
your web site.
q. Right Of Privacy Created By Statute
"Personal and advertising injury" arising out of
the violation of a person's right of privacy
created by any state or federal act.
However, this exclusion does not apply to
liability for damages that the insured would
have in the absence of such state or federal
act.
r. Violation Of Anti-Trust law
"Personal and advertising injury" arising out of
a violation of any anti-trust law.
s. Securities
"Personal and advertising injury" arising out of
the fluctuation in price or value of any stocks,
bonds or other securities.
t. Recording And Distribution Of Material Or
Information In Violation Of Law
"Personal and advertising injury" arising
directly or indirectly out of any action or
omission that violates or is alleged to violate:
(1) The Telephone Consumer Protection Act
(TCPA), including any amendment of or
addition to such law;
(2) The CAN-SPAM Act of 2003, including
any amendment of or addition to such law;
(3) The Fair Credit Reporting Act (FCRA), and
any amendment of or addition to such law,
including the Fair and Accurate Credit
Transaction Act (FACTA); or
(4) Any federal, state or local statute,
ordinance or regulation, other than the
TCPA or CAN-SPAM Act of 2003 or FCRA
and their amendments and additions, that
addresses, prohibits or limits the printing,
dissemination, disposal, collecting,
recording, sending, transmitting,
communicating or distribution of material
or information.
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u. Employment-Related Practices
"Personal and advertising injury" to:
(1) A person arising out of any "employment–
related practices"; or
(2) The spouse, child, parent, brother or sister
of that person as a consequence of
"personal and advertising injury" to that
person at whom any "employment-related
practices" are directed.
This exclusion applies:
(1) Whether the injury-causing event
described in the definition of "employmentrelated practices" occurs before employment, during employment or after
employment of that person;
(2) Whether the insured may be liable as an
employer or in any other capacity; and
(3) To any obligation to share damages with
or repay someone else who must pay
damages because of the injury.
v. Asbestos
(1) "Personal and advertising injury" arising
out of the "asbestos hazard".
(2) Any damages, judgments, settlements,
loss, costs or expenses that:
(a) May be awarded or incurred by reason
of any claim or suit alleging actual or
threatened injury or damage of any
nature or kind to persons or property
which would not have occurred in
whole or in part but for the "asbestos
hazard";
(b) Arise out of any request, demand,
order or statutory or regulatory
requirement that any insured or others
test for, monitor, clean up, remove,
encapsulate, contain, treat, detoxify or
neutralize or in any way respond to or
assess the effects of an "asbestos
hazard"; or
(c) Arise out of any claim or suit for
damages because of testing for,
monitoring, cleaning up, removing,
encapsulating, containing, treating,
detoxifying or neutralizing or in any
way responding to or assessing the
effects of an "asbestos hazard".
w. Access Or Disclosure Of Confidential Or
Personal Information
"Personal and advertising injury" arising out of
any access to or disclosure of any person's or
organization's confidential or personal
information, including patents, trade secrets,
processing methods, customer lists, financial
information, credit card information, health
information or any other type of nonpublic
information.
This exclusion applies even if damages are
claimed for notification costs, credit
monitoring expenses, forensic expenses,
public relations expenses or any other loss,
cost or expense incurred by you or others
arising out of any access to or disclosure of
any person's or organization's confidential or
personal information.
COVERAGE C MEDICAL PAYMENTS
1. Insuring Agreement
a. We will pay medical expenses as described
below for "bodily injury" caused by an
accident:
(1) On premises you own or rent;
(2) On ways next to premises you own or
rent; or
(3) Because of your operations;
provided that:
(1) The accident takes place in the "coverage
territory" and during the policy period;
(2) The expenses are incurred and reported
to us within three years of the date of the
accident; and
(3) The injured person submits to
examination, at our expense, by
physicians of our choice as often as we
reasonably require.
b. We will make these payments regardless of
fault. These payments will not exceed the
applicable limit of insurance. We will pay
reasonable expenses for:
(1) First aid administered at the time of an
accident;
(2) Necessary medical, surgical, X-ray and
dental services, including prosthetic
devices; and
(3) Necessary ambulance, hospital,
professional nursing and funeral services.
2. Exclusions
We will not pay expenses for "bodily injury":
a. Any Insured
To any insured, except "volunteer workers".
b. Hired Person
To a person hired to do work for or on behalf
of any insured or a tenant of any insured.
c. Injury On Normally Occupied Premises
To a person injured on that part of premises
you own or rent that the person normally
occupies.
d. Workers Compensation And Similar Laws
To a person, whether or not an "employee" of
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any insured, if benefits for the "bodily injury" are
payable or must be provided under a workers'
compensation or disability benefits law or a
similar law.
e. Athletics Activities
To a person injured while practicing,
instructing or participating in any physical
exercises or games, sports, or athletic
contests.
f. Products-Completed Operations Hazard
Included within the "products-completed
operations hazard".
g. Coverage A Exclusions
Excluded under Coverage A.
SUPPLEMENTARY PAYMENTS – COVERAGES
A AND B
1. We will pay, with respect to any claim we
investigate or settle, or any "suit" against an
insured we defend:
a. All expenses we incur.
b. Up to $1,000 for cost of bail bonds required
because of accidents or traffic law violations
arising out of the use of any vehicle to which
the Bodily Injury Liability Coverage applies.
We do not have to furnish these bonds.
c. The cost of appeal bonds or bonds to release
attachments, but only for bond amounts
within the applicable limit of insurance. We do
not have to furnish these bonds.
d. All reasonable expenses incurred by the
insured at our request to assist us in the
investigation or defense of the claim or "suit",
including actual loss of earnings up to $500 a
day because of time off from work.
e. All court costs taxed against the insured in
the "suit". However, such costs do not
include attorneys' fees, attorneys' expenses,
witness or expert fees, or any other expenses
of a party taxed to the insured.
f. Prejudgment interest awarded against the
insured on that part of the judgment we pay. If
we make an offer to pay the applicable limit of
insurance, we will not pay any prejudgment
interest based on that period of time after the
offer.
g. All interest on the full amount of any judgment
that accrues after entry of the judgment and
before we have paid, offered to pay, or
deposited in court the part of the judgment
that is within the applicable limit of insurance.
These payments will not reduce the limits of
insurance.
2. If we defend an insured against a "suit" and an
indemnitee of the insured is also named as a
party to the "suit", we will defend that indemnitee
if all of the following conditions are met:
a. The "suit" against the indemnitee seeks
damages for which the insured has assumed
the liability of the indemnitee in a contract or
agreement that is an "insured contract";
b. This insurance applies to such liability
assumed by the insured;
c. The obligation to defend, or the cost of the
defense of, that indemnitee, has also been
assumed by the insured in the same "insured
contract";
d. The allegations in the "suit" and the
information we know about the "occurrence"
are such that no conflict appears to exist
between the interests of the insured and the
interests of the indemnitee;
e. The indemnitee and the insured ask us to
conduct and control the defense of that
indemnitee against such "suit" and agree that
we can assign the same counsel to defend
the insured and the indemnitee; and
f. The indemnitee:
(1) Agrees in writing to:
(a) Cooperate with us in the investigation,
settlement or defense of the "suit";
(b) Immediately send us copies of any
demands, notices, summonses or legal
papers received in connection with the
"suit";
(c) Notify any other insurer whose
coverage is available to the
indemnitee; and
(d) Cooperate with us with respect to
coordinating other applicable
insurance available to the indemnitee;
and
(2) Provides us with written authorization to:
(a) Obtain records and other information
related to the "suit"; and
(b) Conduct and control the defense of the
indemnitee in such "suit".
So long as the above conditions are met,
attorneys' fees incurred by us in the defense of
that indemnitee,
necessary litigation expenses incurred by us and
necessary litigation expenses incurred by the
indemnitee at our request will be paid as
Supplementary Payments. Notwithstanding the
provisions of Paragraph 2.b.(2) of Section I –
Coverage A – Bodily Injury And Property
Damage Liability, such payments will not be
deemed to be damages for "bodily injury" and
"property damage" and will not reduce the limits
of insurance.
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Our obligation to defend an insured's indemnitee
and to pay for attorneys' fees and necessary
litigation expenses as Supplementary Payments
ends when:
a. We have used up the applicable limit of
insurance in the payment of judgments or
settlements; or
b. The conditions set forth above, or the terms of
the agreement described in Paragraph f.
above, are no longer met.
SECTION II – WHO IS AN INSURED
1. If you are designated in the Declarations as:
a. An individual, you and your spouse are
insureds, but only with respect to the conduct
of a business of which you are the sole
owner.
b. A partnership or joint venture, you are an
insured. Your members, your partners, and
their spouses are also insureds, but only with
respect to the conduct of your business.
c. A limited liability company, you are an
insured. Your members are also insureds, but
only with respect to the conduct of your
business. Your managers are insureds, but
only with respect to their duties as your
managers.
d. An organization other than a partnership, joint
venture or limited liability company, you are
an insured. Your "executive officers" and
directors are insureds, but only with respect to
their duties as your officers or directors. Your
stockholders are also insureds, but only with
respect to their liability as stockholders.
e. A trust, you are an insured. Your trustees are
also insureds, but only with respect to their
duties as trustees.
2. Each of the following is also an insured:
a. Employees And Volunteer Workers
Your "volunteer workers" only while
performing duties related to the conduct of
your business, or your "employees", other
than either your "executive officers" (if you are
an organization other than a partnership, joint
venture or limited liability company) or your
managers (if you are a limited liability
company), but only for acts within the scope
of their employment by you or while
performing duties related to the conduct of
your business.
However, none of these "employees" or
"volunteer workers" are insureds for:
(1) "Bodily injury" or "personal and advertising
injury":
(a) To you, to your partners or members (if
you are a partnership or joint venture),
to your members (if you are a limited
liability company), to a co-"employee"
while in the course of his or her
employment or performing duties
related to the conduct of your
business, or to your other "volunteer
workers" while performing duties
related to the conduct of your
business;
(b) To the spouse, child, parent, brother or
sister of that co-"employee" or that
"volunteer worker" as a consequence
of Paragraph (1)(a) above;
(c) For which there is any obligation to
share damages with or repay someone
else who must pay damages because
of the injury described in Paragraphs
(1)(a) or (1)(b) above; or
(d) Arising out of his or her providing or
failing to provide professional health
care services.
If you are not in the business of providing
professional health care services:
(a) Subparagraphs (1)(a), (1)(b) and (1)(c)
above do not apply to any "employee"
or "volunteer worker" providing first aid
services; and
(b) Subparagraph (1)(d) above does not
apply to any nurse, emergency medical
technician or paramedic employed by
you to provide such services.
(2) "Property damage" to property:
(a) Owned, occupied or used by,
(b) Rented to, in the care, custody or
control of, or over which physical
control is being exercised for any
purpose by
you, any of your "employees", "volunteer
workers", any partner or member (if you
are a partnership or joint venture), or any
member (if you are a limited liability
company).
b. Real Estate Manager
Any person (other than your "employee" or
"volunteer worker"), or any organization while
acting as your real estate manager.
c. Temporary Custodians Of Your Property
Any person or organization having proper
temporary custody of your property if you die,
but only:
(1) With respect to liability arising out of the
maintenance or use of that property; and
(2) Until your legal representative has been
appointed.
d. Legal Representative If You Die
Your legal representative if you die, but only
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with respect to duties as such. That
representative will have all your rights and
duties under this Coverage Part.
e. Unnamed Subsidiary
Any subsidiary, and subsidiary thereof, of
yours which is a legally incorporated entity of
which you own a financial interest of more
than 50% of the voting stock on the effective
date of the Coverage Part.
The insurance afforded herein for any
subsidiary not named in this Coverage Part
as a named insured does not apply to injury
or damage with respect to which such insured
is also a named insured under another policy
or would be a named insured under such
policy but for its termination or the exhaustion
of its limits of insurance.
3. Newly Acquired Or Formed Organization
Any organization you newly acquire or form,
other than a partnership, joint venture or limited
liability company, and over which you maintain
financial interest of more than 50% of the voting
stock, will qualify as a Named Insured if there is
no other similar insurance available to that
organization. However:
a. Coverage under this provision is afforded only
until the 180th day after you acquire or form
the organization or the end of the policy
period, whichever is earlier;
b. Coverage A does not apply to "bodily injury"
or "property damage" that occurred before
you acquired or formed the organization; and
c. Coverage B does not apply to "personal and
advertising injury" arising out of an offense
committed before you acquired or formed the
organization.
4. Nonowned Watercraft
With respect to watercraft you do not own that is
less than 51 feet long and is not being used to
carry persons for a charge, any person is an
insured while operating such watercraft with your
permission. Any other person or organization
responsible for the conduct of such person is
also an insured, but only with respect to liability
arising out of the operation of the watercraft, and
only if no other insurance of any kind is available
to that person or organization for this liability.
However, no person or organization is an insured
with respect to:
a. "Bodily injury" to a co-"employee" of the
person operating the watercraft; or
b. "Property damage" to property owned by,
rented to, in the charge of or occupied by you
or the employer of any person who is an
insured under this provision.
5. Additional Insureds When Required By
Written Contract, Written Agreement Or
Permit
The following person(s) or organization(s) are an
additional insured when you have agreed, in a
written contract, written agreement or because of
a permit issued by a state or political subdivision,
that such person or organization be added as an
additional insured on your policy, provided the
injury or damage occurs subsequent to the
execution of the contract or agreement.
A person or organization is an additional insured
under this provision only for that period of time
required by the contract or agreement.
However, no such person or organization is an
insured under this provision if such person or
organization is included as an insured by an
endorsement issued by us and made a part of
this Coverage Part.
a. Vendors
Any person(s) or organization(s) (referred to
below as vendor), but only with respect to
"bodily injury" or "property damage" arising
out of "your products" which are distributed or
sold in the regular course of the vendor's
business and only if this Coverage Part
provides coverage for "bodily injury" or
"property damage" included within the
"products-completed operations hazard".
(1) The insurance afforded the vendor is
subject to the following additional
exclusions:
This insurance does not apply to:
(a) "Bodily injury" or "property damage" for
which the vendor is obligated to pay
damages by reason of the assumption
of liability in a contract or agreement.
This exclusion does not apply to
liability for damages that the vendor
would have in the absence of the
contract or agreement;
(b) Any express warranty unauthorized by
you;
(c) Any physical or chemical change in the
product made intentionally by the
vendor;
(d) Repackaging, except when unpacked
solely for the purpose of inspection,
demonstration, testing, or the
substitution of parts under instructions
from the manufacturer, and then
repackaged in the original container;
(e) Any failure to make such inspections,
adjustments, tests or servicing as the
vendor has agreed to make or normally
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undertakes to make in the usual
course of business, in connection with
the distribution or sale of the products;
(f) Demonstration, installation, servicing
or repair operations, except such
operations performed at the vendor's
premises in connection with the sale of
the product;
(g) Products which, after distribution or
sale by you, have been labeled or
relabeled or used as a container, part
or ingredient of any other thing or
substance by or for the vendor; or
(h) "Bodily injury" or "property damage"
arising out of the sole negligence of the
vendor for its own acts or omissions or
those of its employees or anyone else
acting on its behalf. However, this
exclusion does not apply to:
(i) The exceptions contained in Subparagraphs (d) or (f); or (ii) Such inspections, adjustments,
tests or servicing as the vendor has
agreed to make or normally
undertakes to make in the usual
course of business, in connection
with the distribution or sale of the
products.
(2) This insurance does not apply to any
insured person or organization, from
whom you have acquired such products,
or any ingredient, part or container,
entering into, accompanying or containing
such products.
b. Lessors Of Equipment
(1) Any person(s) or organization(s) from
whom you lease equipment; but only with
respect to their liability for "bodily injury",
"property damage" or "personal and
advertising injury" caused, in whole or in
part, by your maintenance, operation or
use of equipment leased to you by such
person(s) or organization(s).
(2) With respect to the insurance afforded to
these additional insureds this insurance
does not apply to any "occurrence" which
takes place after the equipment lease
expires.
c. Lessors Of Land Or Premises
Any person or organization from whom you
lease land or premises, but only with respect
to liability arising out of the ownership,
maintenance or use of that part of the land or
premises leased to you.
With respect to the insurance afforded these
additional insureds the following additional
exclusions apply:
This insurance does not apply to:
1. Any "occurrence" which takes place after
you cease to lease that land; or
2. Structural alterations, new construction or
demolition operations performed by or on
behalf of such person or organization.
d. Architects, Engineers Or Surveyors
Any architect, engineer, or surveyor, but only
with respect to liability for "bodily injury",
"property damage" or "personal and
advertising injury" caused, in whole or in part,
by your acts or omissions or the acts or
omissions of those acting on your behalf:
(1) In connection with your premises; or
(2) In the performance of your ongoing
operations performed by you or on your
behalf.
With respect to the insurance afforded these
additional insureds, the following additional
exclusion applies:
This insurance does not apply to "bodily
injury", "property damage" or "personal and
advertising injury" arising out of the rendering
of or the failure to render any professional
services by or for you, including:
1. The preparing, approving, or failing to
prepare or approve, maps, shop drawings,
opinions, reports, surveys, field orders,
change orders or drawings and
specifications; or
2. Supervisory, inspection, architectural or
engineering activities.
This exclusion applies even if the claims
against any insured allege negligence or
other wrongdoing in the supervision, hiring,
employment, training or monitoring of others
by that insured, if the "occurrence" which
caused the "bodily injury" or "property
damage", or the offense which caused the
"personal and advertising injury", involved the
rendering of or the failure to render any
professional services by or for you.
e. Permits Issued By State Or Political
Subdivisions
Any state or political subdivision, but only with
respect to operations performed by you or on
your behalf for which the state or political
subdivision has issued a permit.
With respect to the insurance afforded these
additional insureds, this insurance does not
apply to:
(1) "Bodily injury", "property damage" or
"personal and advertising injury" arising
out of operations performed for the state
or municipality; or
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(2) "Bodily injury" or "property damage"
included within the "products-completed
operations hazard".
f. Any Other Party
Any other person or organization who is not
an additional insured under Paragraphs a.
through e. above, but only with respect to
liability for "bodily injury", "property damage"
or "personal and advertising injury" caused, in
whole or in part, by your acts or omissions or
the acts or omissions of those acting on your
behalf:
(1) In the performance of your ongoing
operations;
(2) In connection with your premises owned
by or rented to you; or
(3) In connection with "your work" and
included within the "products-completed
operations hazard", but only if
(a) The written contract or agreement
requires you to provide such coverage
to such additional insured; and
(b) This Coverage Part provides coverage
for "bodily injury" or "property damage"
included within the "productscompleted operations hazard".
However:
(1) The insurance afforded to such additional
insured only applies to the extent
permitted by law; and
(2) If coverage provided to the additional
insured is required by a contract or
agreement, the insurance afforded to such
additional insured will not be broader than
that which you are required by the contract
or agreement to provide for such
additional insured.
With respect to the insurance afforded to
these additional insureds, this insurance does
not apply to:
"Bodily injury", "property damage" or
"personal and advertising injury" arising out of
the rendering of, or the failure to render, any
professional architectural, engineering or
surveying services, including:
(1) The preparing, approving, or failing to
prepare or approve, maps, shop drawings,
opinions, reports, surveys, field orders,
change orders or drawings and
specifications; or
(2) Supervisory, inspection, architectural or
engineering activities.
This exclusion applies even if the claims
against any insured allege negligence or
other wrongdoing in the supervision, hiring,
employment, training or monitoring of others
by that insured, if the "occurrence" which
caused the "bodily injury" or "property
damage", or the offense which caused the
"personal and advertising injury", involved the
rendering of or the failure to render any
professional services by or for you.
The limits of insurance that apply to additional
insureds is described in Section III – Limits Of
Insurance.
How this insurance applies when other insurance
is available to the additional insured is described
in the Other Insurance Condition in Section IV –
Commercial General Liability Conditions.
No person or organization is an insured with respect
to the conduct of any current or past partnership,
joint venture or limited liability company that is not
shown as a Named Insured in the Declarations.
SECTION III – LIMITS OF INSURANCE
1. The Most We Will Pay
The Limits of Insurance shown in the
Declarations and the rules below fix the most we
will pay regardless of the number of:
a. Insureds;
b. Claims made or "suits" brought; or
c. Persons or organizations making claims or
bringing "suits".
2. General Aggregate Limit
The General Aggregate Limit is the most we will
pay for the sum of:
a. Medical expenses under Coverage C;
b. Damages under Coverage A, except
damages because of "bodily injury" or
"property damage" included in the "productscompleted operations hazard"; and c. Damages under Coverage B.
3. Products-Completed Operations Aggregate
Limit
The Products-Completed Operations Aggregate
Limit is the most we will pay under Coverage A
for damages because of "bodily injury" and
"property damage" included in the "productscompleted operations hazard".
4. Personal And Advertising Injury Limit
Subject to 2. above, the Personal and
Advertising Injury Limit is the most we will pay
under Coverage B for the sum of all damages
because of all "personal and advertising injury"
sustained by any one person or organization.
5. Each Occurrence Limit
Subject to 2. or 3. above, whichever applies, the
Each Occurrence Limit is the most we will pay for
the sum of:
a. Damages under Coverage A; and
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b. Medical expenses under Coverage C
because of all "bodily injury" and "property
damage" arising out of any one "occurrence".
6. Damage To Premises Rented To You Limit
Subject to 5. above, the Damage To Premises
Rented To You Limit is the most we will pay
under Coverage A for damages because of
"property damage" to any one premises, while
rented to you, or in the case of damage by fire,
lightning or explosion, while rented to you or
temporarily occupied by you with permission of
the owner.
In the case of damage by fire, lightning or
explosion, the Damage to Premises Rented To
You Limit applies to all damage proximately
caused by the same event, whether such
damage results from fire, lightning or explosion
or any combination of these.
7. Medical Expense Limit
Subject to 5. above, the Medical Expense Limit is
the most we will pay under Coverage C for all
medical expenses because of "bodily injury"
sustained by any one person.
8. How Limits Apply To Additional Insureds
If you have agreed in a written contract or written
agreement that another person or organization
be
added as an additional insured on your policy,
the most we will pay on behalf of such additional
insured is the lesser of:
a. The limits of insurance specified in the written
contract or written agreement; or
b. The Limits of Insurance shown in the
Declarations.
Such amount shall be a part of and not in
addition to Limits of Insurance shown in the
Declarations and described in this Section.
The Limits of Insurance of this Coverage Part apply
separately to each consecutive annual period and to
any remaining period of less than 12 months,
starting with the beginning of the policy period
shown in the Declarations, unless the policy period
is extended after issuance for an additional period of
less than 12 months. In that case, the additional
period will be deemed part of the last preceding
period for purposes of determining the Limits of
Insurance.
SECTION IV – COMMERCIAL GENERAL
LIABILITY CONDITIONS
1. Bankruptcy
Bankruptcy or insolvency of the insured or of the
insured's estate will not relieve us of our
obligations under this Coverage Part.
2. Duties In The Event Of Occurrence, Offense,
Claim Or Suit
a. Notice Of Occurrence Or Offense
You or any additional insured must see to it
that we are notified as soon as practicable of
an "occurrence" or an offense which may
result in a claim. To the extent possible,
notice should include:
(1) How, when and where the "occurrence" or
offense took place;
(2) The names and addresses of any injured
persons and witnesses; and
(3) The nature and location of any injury or
damage arising out of the "occurrence" or
offense.
b. Notice Of Claim
If a claim is made or "suit" is brought against
any insured, you or any additional insured
must:
(1) Immediately record the specifics of the
claim or "suit" and the date received; and
(2) Notify us as soon as practicable.
You or any additional insured must see to it
that we receive written notice of the claim or
"suit" as soon as practicable.
c. Assistance And Cooperation Of The
Insured
You and any other involved insured must:
(1) Immediately send us copies of any
demands, notices, summonses or legal
papers received in connection with the
claim or "suit";
(2) Authorize us to obtain records and other
information;
(3) Cooperate with us in the investigation or
settlement of the claim or defense against
the "suit"; and
(4) Assist us, upon our request, in the
enforcement of any right against any person
or organization which may be liable to the
insured because of injury or damage to
which this insurance may also apply.
d. Obligations At The Insureds Own Cost
No insured will, except at that insured's own
cost, voluntarily make a payment, assume
any obligation, or incur any expense, other
than for first aid, without our consent.
e. Additional Insureds Other Insurance
If we cover a claim or "suit" under this
Coverage Part that may also be covered by
other insurance available to an additional
insured, such additional insured must submit
such claim or "suit" to the other insurer for
defense and indemnity.
However, this provision does not apply to the
extent that you have agreed in a written
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contract or written agreement that this
insurance is primary and non-contributory
with the additional insured's own insurance.
f. Knowledge Of An Occurrence, Offense,
Claim Or Suit
Paragraphs a. and b. apply to you or to any
additional insured only when such
"occurrence", offense, claim or "suit" is known
to:
(1) You or any additional insured that is an
individual;
(2) Any partner, if you or the additional
insured is a partnership;
(3) Any manager, if you or the additional
insured is a limited liability company;
(4) Any "executive officer" or insurance
manager, if you or the additional insured is
a corporation;
(5) Any trustee, if you or the additional
insured is a trust; or
(6) Any elected or appointed official, if you or
the additional insured is a political
subdivision or public entity.
This duty applies separately to you and any
additional insured.
3. Legal Action Against Us
No person or organization has a right under this
Coverage Part:
a. To join us as a party or otherwise bring us
into a "suit" asking for damages from an
insured; or
b. To sue us on this Coverage Part unless all of
its terms have been fully complied with.
A person or organization may sue us to recover
on an agreed settlement or on a final judgment
against an insured; but we will not be liable for
damages that are not payable under the terms of
this Coverage Part or
that are in excess of the applicable limit of
insurance. An agreed settlement means a
settlement and release of liability signed by us,
the insured and the claimant or the claimant's
legal representative.
4. Other Insurance
If other valid and collectible insurance is
available to the insured for a loss we cover under
Coverages A or B of this Coverage Part, our
obligations are limited as follows:
a. Primary Insurance
This insurance is primary except when b.
below applies. If other insurance is also
primary, we will share with all that other
insurance by the method described in c.
below.
b. Excess Insurance
This insurance is excess over any of the other
insurance, whether primary, excess,
contingent or on any other basis:
(1) Your Work
That is Fire, Extended Coverage, Builder's
Risk, Installation Risk or similar coverage
for "your work";
(2) Premises Rented To You
That is fire, lightning or explosion
insurance for premises rented to you or
temporarily occupied by you with
permission of the owner;
(3) Tenant Liability
That is insurance purchased by you to
cover your liability as a tenant for
"property damage" to premises rented to
you or temporarily occupied by you with
permission of the owner;
(4) Aircraft, Auto Or Watercraft
If the loss arises out of the maintenance or
use of aircraft, "autos" or watercraft to the
extent not subject to Exclusion g. of
Section I – Coverage A – Bodily Injury
And Property Damage Liability;
(5) Property Damage To Borrowed
Equipment Or Use Of Elevators
If the loss arises out of "property damage"
to borrowed equipment or the use of
elevators to the extent not subject to
Exclusion j. of Section I - Coverage A -
Bodily Injury And Property Damage
Liability;
(6) When You Are Added As An Additional
Insured To Other Insurance
Any other insurance available to you
covering liability for damages arising out
of the premises or operations, or products
and completed operations, for which you
have been added as an additional insured
by that insurance; or
(7) When You Add Others As An
Additional Insured To This Insurance
Any other insurance available to an
additional insured.
However, the following provisions apply to
other insurance available to any person or
organization who is an additional insured
under this coverage part.
(a) Primary Insurance When Required
By Contract
This insurance is primary if you have
agreed in a written contract or written
agreement that this insurance be
primary. If other insurance is also
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primary, we will share with all that
other insurance by the method
described in c. below.
(b) Primary And Non-Contributory To
Other Insurance When Required By
Contract
If you have agreed in a written
contract, written agreement, or permit
that this insurance is primary and noncontributory with the additional insured's own insurance, this insurance
is primary and we will not seek
contribution from that other insurance.
Paragraphs (a) and (b) do not apply to
other insurance to which the additional
insured has been added as an additional
insured.
When this insurance is excess, we will have
no duty under Coverages A or B to defend
the insured against any "suit" if any other
insurer has a duty to defend the insured
against that "suit". If no other insurer defends,
we will undertake to do so, but we will be
entitled to the insured's rights against all
those other insurers.
When this insurance is excess over other
insurance, we will pay only our share of the
amount of the loss, if any, that exceeds the
sum of:
(1) The total amount that all such other
insurance would pay for the loss in the
absence of this insurance; and
(2) The total of all deductible and self-insured
amounts under all that other insurance.
We will share the remaining loss, if any, with
any other insurance that is not described in
this Excess Insurance provision and was not
bought specifically to apply in excess of the
Limits of Insurance shown in the Declarations
of this Coverage Part.
c. Method Of Sharing
If all of the other insurance permits
contribution by equal shares, we will follow
this method also. Under this approach each
insurer contributes equal amounts until it has
paid its applicable limit of insurance or none
of the loss remains, whichever comes first.
If any of the other insurance does not permit
contribution by equal shares, we will
contribute by limits. Under this method, each
insurer's share is based on the ratio of its
applicable limit of insurance to the total
applicable limits of insurance of all insurers.
5. Premium Audit
a. We will compute all premiums for this
Coverage Part in accordance with our rules
and rates.
b. Premium shown in this Coverage Part as
advance premium is a deposit premium only.
At the close of each audit period we will
compute the earned premium for that period
and send notice to the first Named Insured.
The due date for audit and retrospective
premiums is the date shown as the due date
on the bill. If the sum of the advance and
audit premiums paid for the policy period is
greater than the earned premium, we will
return the excess to the first Named Insured.
c. The first Named Insured must keep records of
the information we need for premium
computation, and send us copies at such
times as we may request.
6. Representations
a. When You Accept This Policy
By accepting this policy, you agree:
(1) The statements in the Declarations are
accurate and complete;
(2) Those statements are based upon
representations you made to us; and
(3) We have issued this policy in reliance
upon your representations.
b. Unintentional Failure To Disclose Hazards
If unintentionally you should fail to disclose all
hazards relating to the conduct of your
business that exist at the inception date of
this Coverage Part, we shall not deny
coverage under this Coverage Part because
of such failure.
7. Separation Of Insureds
Except with respect to the Limits of Insurance,
and any rights or duties specifically assigned in
this Coverage Part to the first Named Insured,
this insurance applies:
a. As if each Named Insured were the only
Named Insured; and
b. Separately to each insured against whom
claim is made or "suit" is brought.
8. Transfer Of Rights Of Recovery Against
Others To Us
a. Transfer Of Rights Of Recovery
If the insured has rights to recover all or part
of any payment, including Supplementary
Payments, we have made under this
Coverage Part, those rights are transferred to
us. The insured must do nothing after loss to
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impair them. At our request, the insured will
bring "suit" or transfer those rights to us and
help us enforce them.
b. Waiver Of Rights Of Recovery (Waiver Of
Subrogation)
If the insured has waived any rights of
recovery against any person or organization
for all or part of any payment, including
Supplementary Payments, we have made
under this Coverage Part, we also waive that
right, provided the insured waived their rights
of recovery against such person or
organization in a contract, agreement or
permit that was executed prior to the injury or
damage.
9. When We Do Not Renew
If we decide not to renew this Coverage Part, we
will mail or deliver to the first Named Insured
shown in the Declarations written notice of the
nonrenewal not less than 30 days before the
expiration date.
If notice is mailed, proof of mailing will be
sufficient proof of notice.
SECTION V – DEFINITIONS
1. "Advertisement" means the widespread public
dissemination of information or images that has
the purpose of inducing the sale of goods,
products or services through:
a. (1) Radio;
(2) Television;
(3) Billboard;
(4) Magazine;
(5) Newspaper; or
b. Any other publication that is given widespread
public distribution.
However, "advertisement" does not include:
a. The design, printed material, information or
images contained in, on or upon the
packaging or labeling of any goods or
products; or
b. An interactive conversation between or
among persons through a computer network.
2. "Advertising idea" means any idea for an
"advertisement".
3. "Asbestos hazard" means an exposure or
threat of exposure to the actual or alleged
properties of asbestos and includes the mere
presence of asbestos in any form.
4. "Auto" means:
a. A land motor vehicle, trailer or semitrailer
designed for travel on public roads, including
any attached machinery or equipment; or
b. Any other land vehicle that is subject to a
compulsory or financial responsibility law or
other motor vehicle insurance law where it is
licensed or principally garaged.
However, "auto" does not include "mobile
equipment".
5. "Bodily injury" means physical:
a. Injury;
b. Sickness; or
c. Disease
sustained by a person and, if arising out of the
above, mental anguish or death at any time.
6. "Coverage territory" means:
a. The United States of America (including its
territories and possessions), Puerto Rico and
Canada;
b. International waters or airspace, but only if
the injury or damage occurs in the course of
travel or transportation between any places
included in a. above; or
c. All other parts of the world if the injury or
damage arises out of:
(1) Goods or products made or sold by you in
the territory described in a. above;
(2) The activities of a person whose home is
in the territory described in a. above, but is
away for a short time on your business; or
(3) "Personal and advertising injury" offenses
that take place through the Internet or
similar electronic means of communication
provided the insured's responsibility to pay
damages is determined in the United States of
America (including its territories and possessions),
Puerto Rico or Canada, in a "suit" on the merits
according to the substantive law in such territory or
in a settlement we agree to.
7. "Employee" includes a "leased worker".
"Employee" does not include a "temporary
worker".
8. "Employment-Related Practices" means:
a. Refusal to employ that person;
b. Termination of that person's employment; or
c. Employment-related practices, policies, acts
or omissions, such as coercion, demotion,
evaluation, reassignment, discipline,
defamation, harassment, humiliation,
discrimination or malicious prosecution
directed at that person.
9. "Executive officer" means a person holding any
of the officer positions created by your charter,
constitution, by-laws or any other similar
governing document.
10."Hostile fire" means one which becomes
uncontrollable or breaks out from where it was
intended to be.
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11."Impaired property" means tangible property,
other than "your product" or "your work", that
cannot be used or is less useful because:
a. It incorporates "your product" or "your work"
that is known or thought to be defective,
deficient, inadequate or dangerous; or
b. You have failed to fulfill the terms of a
contract or agreement;
if such property can be restored to use by the
repair, replacement, adjustment or removal of
"your product" or "your work", or your fulfilling the
terms of the contract or agreement.
12."Insured contract" means:
a. A contract for a lease of premises. However,
that portion of the contract for a lease of
premises that indemnifies any person or
organization for damage by fire, lightning or
explosion to premises while rented to you or
temporarily occupied by you with permission
of the owner is subject to the Damage to
Premises Rented To You Limit described in
Section III – Limits of Insurance;
b. A sidetrack agreement;
c. Any easement or license agreement,
including an easement or license agreement
in connection with construction or demolition
operations on or within 50 feet of a railroad;
d. An obligation, as required by ordinance, to
indemnify a municipality, except in connection
with work for a municipality;
e. An elevator maintenance agreement;
f. That part of any other contract or agreement
pertaining to your business (including an
indemnification of a municipality in connection
with work performed for a municipality) under
which you assume the tort liability of another
party to pay for "bodily injury" or "property
damage" to a third person or organization,
provided the "bodily injury" or "property
damage" is caused, in whole or in part, by
you or by those acting on your behalf. Tort
liability means a liability that would be
imposed by law in the absence of any
contract or agreement.
Paragraph f. includes that part of any contract
or agreement that indemnifies a railroad for
"bodily injury" or "property damage" arising
out of construction or demolition operations,
within 50 feet of any railroad property and
affecting any railroad bridge or trestle, tracks,
road-beds, tunnel, underpass or crossing.
However, Paragraph f. does not include that
part of any contract or agreement:
(1) That indemnifies an architect, engineer or
surveyor for injury or damage arising out
of:
(a) Preparing, approving, or failing to
prepare or approve, maps, shop
drawings, opinions, reports, surveys,
field orders, change orders or drawings
and specifications; or
(b) Giving directions or instructions, or
failing to give them, if that is the
primary cause of the injury or damage;
or
(2) Under which the insured, if an architect,
engineer or surveyor, assumes liability for
an injury or damage arising out of the
insured's rendering or failure to render
professional services, including those listed
in (1) above and supervisory, inspection,
architectural or engineering activities.
13."Leased worker" means a person leased to you
by a labor leasing firm under an agreement
between you and the labor leasing firm, to
perform duties related to the conduct of your
business. "Leased worker" does not include a
"temporary worker".
14."Loading or unloading" means the handling of
property:
a. After it is moved from the place where it is
accepted for movement into or onto an
aircraft, watercraft or "auto";
b. While it is in or on an aircraft, watercraft or
"auto"; or
c. While it is being moved from an aircraft,
watercraft or "auto" to the place where it is
finally delivered;
but "loading or unloading" does not include the
movement of property by means of a mechanical
device, other than a hand truck, that is not
attached to the aircraft, watercraft or "auto".
15."Mobile equipment" means any of the following
types of land vehicles, including any attached
machinery or equipment:
a. Bulldozers, farm machinery, forklifts and other
vehicles designed for use principally off public
roads;
b. Vehicles maintained for use solely on or next
to premises you own or rent;
c. Vehicles that travel on crawler treads;
d. Vehicles, whether self-propelled or not,
maintained primarily to provide mobility to
permanently mounted:
(1) Power cranes, shovels, loaders, diggers or
drills; or
(2) Road construction or resurfacing
equipment such as graders, scrapers or
rollers;
e. Vehicles not described in a., b., c. or d. above
that are not self-propelled and are maintained
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primarily to provide mobility to permanently
attached equipment of the following types:
(1) Air compressors, pumps and generators,
including spraying, welding, building
cleaning, geophysical exploration, lighting
and well servicing equipment; or
(2) Cherry pickers and similar devices used to
raise or lower workers;
f. Vehicles not described in a., b., c. or d. above
maintained primarily for purposes other than
the transportation of persons or cargo.
However, self-propelled vehicles with the
following types of permanently attached
equipment are not "mobile equipment" but will
be considered "autos":
(1) Equipment designed primarily for:
(a) Snow removal;
(b) Road maintenance, but not
construction or resurfacing; or
(c) Street cleaning;
(2) Cherry pickers and similar devices
mounted on automobile or truck chassis
and used to raise or lower workers; and
(3) Air compressors, pumps and generators,
including spraying, welding, building
cleaning, geophysical exploration, lighting
and well servicing equipment.
However, "mobile equipment" does not include
any land vehicle that is subject to a compulsory
or financial responsibility law or other motor
vehicle insurance law where it is licensed or
principally garaged. Land vehicles subject to a
compulsory or financial responsibility law or other
motor vehicle insurance law are considered
"autos".
16."Occurrence" means an accident, including
continuous or repeated exposure to substantially
the same general harmful conditions.
17."Personal and advertising injury" means
injury, including consequential "bodily injury",
arising out of one or more of the following
offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry
into, or invasion of the right of private
occupancy of a room, dwelling or premises
that a person or organization occupies,
committed by or on behalf of its owner,
landlord or lessor;
d. Oral, written or electronic publication, in any
manner, of material that slanders or libels a
person or organization or disparages a
person's or organization's goods, products or
services;
e. Oral, written or electronic publication, in any
manner, of material that violates a person's
right of privacy;
f. Copying, in your "advertisement", a person’s
or organization’s "advertising idea" or style of
"advertisement"; or
g. Infringement of copyright, slogan, or title of
any literary or artistic work, in your
"advertisement".
18."Pollutants" mean any solid, liquid, gaseous or
thermal irritant or contaminant, including smoke,
vapor, soot, fumes, acids, alkalis, chemicals and
waste. Waste includes materials to be recycled,
reconditioned or reclaimed.
19."Products-completed operations hazard":
a. Includes all "bodily injury" and "property
damage" occurring away from premises you
own or rent and arising out of "your product"
or "your work" except:
(1) Products that are still in your physical
possession; or
(2) Work that has not yet been completed or
abandoned. However, "your work" will be
deemed completed at the earliest of the
following times:
(a) When all of the work called for in your
contract has been completed.
(b) When all of the work to be done at the
job site has been completed if your
contract calls for work at more than
one job site.
(c) When that part of the work done at a
job site has been put to its intended
use by any person or organization
other than another contractor or
subcontractor working on the same
project.
Work that may need service,
maintenance, correction, repair or
replacement, but which is otherwise
complete, will be treated as completed.
b. Does not include "bodily injury" or "property
damage" arising out of:
(1) The transportation of property, unless the
injury or damage arises out of a condition
in or on a vehicle not owned or operated
by you, and that condition was created by
the "loading or unloading" of that vehicle
by any insured;
(2) The existence of tools, uninstalled
equipment or abandoned or unused
materials; or
(3) Products or operations for which the
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completed operations are subject to the
General Aggregate Limit.
20."Property damage" means:
a. Physical injury to tangible property, including
all resulting loss of use of that property. All
such loss of use shall be deemed to occur at
the time of the physical injury that caused it;
or
b. Loss of use of tangible property that is not
physically injured. All such loss of use shall
be deemed to occur at the time of the
"occurrence" that caused it.
As used in this definition, computerized or
electronically stored data, programs or software
are not tangible property. Electronic data means
information, facts or programs:
a. Stored as or on;
b. Created or used on; or
c. Transmitted to or from;
computer software, including systems and
applications software, hard or floppy disks, CDROMS, tapes, drives, cells, data processing devices or any other media which are used with
electronically controlled equipment.
21."Suit" means a civil proceeding in which
damages because of "bodily injury", "property
damage" or "personal and advertising injury" to
which this insurance applies are alleged. "Suit"
includes:
a. An arbitration proceeding in which such
damages are claimed and to which the
insured must submit or does submit with our
consent; or
b. Any other alternative dispute resolution
proceeding in which such damages are
claimed and to which the insured submits with
our consent.
22."Temporary worker" means a person who is
furnished to you to substitute for a permanent
"employee" on leave or to meet seasonal or
short-term workload conditions.
23."Volunteer worker" means a person who
a. Is not your "employee";
b. Donates his or her work;
c. Acts at the direction of and within the scope
of duties determined by you; and
d. Is not paid a fee, salary or other
compensation by you or anyone else for their
work performed for you.
24."Your product":
a. Means:
(1) Any goods or products, other than real
property, manufactured, sold, handled,
distributed or disposed of by:
(a) You;
(b) Others trading under your name; or
(c) A person or organization whose
business or assets you have acquired;
and
(2) Containers (other than vehicles),
materials, parts or equipment furnished in
connection with such goods or products.
b. Includes
(1) Warranties or representations made at
any time with respect to the fitness,
quality, durability, performance or use of
"your product"; and
(2) The providing of or failure to provide
warnings or instructions.
c. Does not include vending machines or other
property rented to or located for the use of
others but not sold.
25."Your work":
a. Means:
(1) Work or operations performed by you or
on your behalf; and
(2) Materials, parts or equipment furnished in
connection with such work or operations.
b. Includes
(1) Warranties or representations made at
any time with respect to the fitness,
quality, durability, performance or use of
"your work", and
(2) The providing of or failure to provide
warnings or instructions.
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OAK #4836-0105-9886 v2
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CITY OF PACIFICA
540 Crespi Drive, Pacifica, CA 94044
CONSTRUCTION SERVICES AGREEMENT
Anza Storm Water Station: Pump #3
DATE: March 16, 2022
1. IDENTIFICATION OF CONTRACTOR:
CONTRACTOR: Pump Repair Service Co., P.O. 34327, San Francisco, CA 94134-0327 LICENSE NO: N/A CLASS: N/A
2. SCOPE OF THE WORK
Rebuild and repair pump gear drive. See proposal attached as Appendix A.
3. COMPENSATION FOR WORK. Contractor’s total compensation for the Work performed under this Agreement (Contract Sum) is $207,394.22, 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.
4. SCHEDULE OF PERFORMANCE FOR THE WORK. Contractor shall commence and complete the Work by the following dates:
Commencement Date shall be on the date established in the Notice to Proceed. Owner reserves the right to modify or alter the Commencement Date of the Work.
Substantial Completion Date: Within 150 calendar days of Commencement Date.
4.01 Liquidated Damage Amounts.
A. As liquidated damages for delay Contractor shall pay Owner Five Hundred dollars ($500.00) for each Day that expires after the time specified herein for Contractor to achieve Substantial Completion of the entire Work, until achieved.
B. As liquidated damages for delay Contractor shall pay Owner Five Hundred dollars ($500.00) for each Day that expires after the time specified herein for Contractor to achieve Final Completion of the entire Work, until achieved.
4.02 Scope 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 ATTACHMENT B 8.b
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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.
5. TERMS AND CONDITIONS.
5.01 Contractor shall perform the Work in accordance with the terms and conditions of this Agreement and the following attachments (together, Contract Documents):
A. Appendix A – Scope of Work
B. Appendix B – General Conditions
C. Appendix C – Insurance
D. Appendix D – Construction Labor and Materials Payment Bond E. Appendix E – Construction Performance Bond
F. Appendix F – Supplemental Conditions
5.02 The Contract Documents are the sole and exclusive provisions that govern the Work. Any provision contained in any Owner purchase order issued in connection with this Agreement or any Work shall be null and void and shall have no force or effect.
5.03 Agreement number must appear on all invoices and correspondence. Send invoices in duplicate immediately upon performance of Work ordered hereon or as otherwise provided in the Contract Documents to :
City of Pacifica, Department of Public Works, 540 Crespi Drive, Pacifica, CA 94044.
CONTRACTOR: Pump Repair Service Co. OWNER: City of Pacifica _____________________________________________ ____________________________________________ Signature Signature
_____________________________________________ ____________________________________________ Wayne Archer, President Kevin Woodhouse, City Manager
_____________________________________________ ____________________________________________ Date Date
APPROVED AS TO FORM: ATTEST:
_____________________________________________ ____________________________________________ Michelle Marchetta Kenyon, City Attorney Sarah Coffey, City Clerk Addresses for Notices: Addresses for Notices:
Pump Repair Service Co. City of Pacifica
Attn: Wayne Archer Attn: Kevin Woodhouse, City Manager
P.O. Box 34327 540 Crespi Drive
San Francisco, CA 94134-0327 Pacifica, CA 94044
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Appendix A to Construction Services Agreement
SCOPE OF WORK
Pump Repair Co. to provide City with equipment and field installation labor of:
Peerless 36 MF 1 stage propeller
Pump 36" below ground discharge,
416 SS shaft, 3 % oil tubes,
44"x56"x1 % base plate painting
Blue enameled, 22' base to bell
Design conditions: 28,500 GPM@ 16' TDH
Johnson H500 3 to 1 195 HP
580 RPM angle gear drive
36” Dresser couplings
Misc hardware
Please also see attached proposal.
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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 be a part of the parties’ agreement. The Agreement and other Contract Documents shall govern the Work (whenever performed), and shall supersede all other purchase orders and agreements between Contractor and Owner, and any proposal, with respect to the Work.
1.02 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 (i) a construction labor and material payment bond, in accordance with Civil Code Section 9550 and in form attached hereto Appendix D – Construction Labor and Materials Payment Bond, and (ii) a construction performance bond in form attached hereto as Appendix E – Construction Performance 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).
1.03 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 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 Contract Documents, and invoices, payrolls, timecards, records and all other data related to matters covered by the Contract Documents. Contractor shall furnish to Owner, its authorized agents, officers, or employees, such other 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 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 Contract Documents shall have the same rights conferred to Owner by this section. Such rights shall be specifically enforceable.
1.04 Use of Contract Documents and Other Information. Drawings, Specifications, and other Contract Documents are made available to Contractor solely for Contractor’s use under the Contract Documents.
Further, all tangible and intangible property developed, produced and/or provided by Contractor under the Contract Documents, and all such items (other than Contract Documents) provided by Owner to Contractor in connection with the Contract Documents including, without limitation, drawings, specifications, sketches, models, samples, tools, computer programs, technical information, confidential business information, scripts, customer or personnel information and data, whether written, oral or otherwise (all hereinafter referred to as Information) shall be Owner’s sole property. Contractor may not use Contract Documents or Information for any purpose unrelated to Contract Documents without Owner’s prior written consent. All copies of Information in written, graphic or other tangible form shall be delivered to Owner upon completion of Work, or earlier if otherwise provided in Contract Documents.
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1.05 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 Contract Documents. Contractor shall not contract any portion of the Work or otherwise assign the Contract Documents 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.) 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 or relieve Contractor from its 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.
1.06 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 within five days of Owner’s written notice (or other time period specified in the notice), Contractor shall pay all of the Owner’s resulting claims, costs, losses and damages. Where Contractor fails to timely correct Defective Work, or defects are discovered outside the correction period, Owner shall have all rights and remedies granted by law.
1.07 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 bidders prior to the deadline for submitting bids, 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 Public Contract Code Section 7104. 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 bidding.
ARTICLE 2 LEGAL
2.01 Compliance with Laws; Conflict of Interests. Contractor shall comply with all applicable federal and state laws, regulations and policies, as amended, including those regarding discrimination, unfair labor practices, anti-kick-back, collusion, prevailing wages, labor compliance, 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
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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, or will be employed or retained, to solicit or obtain any contract with Owner, upon an agreement or understanding for a contingent fee, except a bona fide employee or agency.
2.02 Licenses, Patents, Permits. Before commencing Work, Contractor shall apply for, obtain and maintain in current status, at its own expense, any license, permit or approval required from any agency for the performance of Work. To the greatest extent permitted by law, Contractor shall not be entitled to any compensation for any Work performed while not properly licensed, etc.
2.03 Employee Wages; Records; Apprentices. This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. Contractor shall post job site notices as prescribed by regulation.
Contractor shall pay prevailing wages to its employees on any Order in excess of $1,000.00. 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. The payroll records shall be certified and submitted as required by law, including Labor Code Section 1771.4 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 Contract Sum exceeds $2,000 and is funded with federal funds, then Contractor shall pay federal Davis Bacon wages and comply with applicable federal requirements.
2.04 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.
2.05 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 Contract Documents or other applicable law, shall be cumulative and not subject to limitation.
2.06 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.
ARTICLE 3 MISCELLANEOUS
3.01 No Modification or Waiver; Severability. 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. Should any part of the Contract Documents be declared invalid, void or unenforceable, all remaining parts, terms and provisions of the Contract Documents shall remain in full force and effect and shall in no way be invalidated, impaired or affected thereby.
3.02 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
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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.
3.03 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.
3.04 Notices. All notices between the parties hereto shall be in writing and may be served by commercial express/overnight courier service or by depositing the same in the United States mail, postage prepaid and certified receipt requested, and addressed as indicated beneath each party’s signature in the Master Agreement, or as either party may otherwise provide to the other.
3.05 Dispute Resolution. All Contractor claims not otherwise subject to Public Contract Code Sections 20104 et seq shall, as a condition precedent to litigation thereon, first be mediated. Mediation shall be confidential, nonbinding, pursuant to the construction mediation procedures of JAMS in San Francisco, California, and utilize the services of a mediator mutually acceptable to the parties. If the parties are unable to agree, the mediator will be selected by JAMS from its panel of approved construction industry mediators, having a minimum of 10 years’ experience in the construction industry. The cost of mediation shall be equally shared by all parties to the mediation. The parties shall, prior to the commencement of a mediation pursuant to this Paragraph, upon notice of the other party, exchange relevant, non-privileged project documents in compliance with Code of Civil Procedure Sections 2031.010 et seq. Additionally, the parties may agree mutually to engage in additional discovery prior to mediation. Should the parties proceed with additional discovery, they shall, unless mutually agreed otherwise, comply with Code of Civil Procedure Sections 2019, et. seq. The Mediator will undertake to resolve any discovery disputes relating to the Mediation.
3.06 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 other than Owner and Contractor. 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.
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.
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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 Pacifica, 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. [If applicable] 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. [Alternatively, if applicable] An Installation Floater including, without limitation, coverage against loss or damage to the Work by fire, lightening, wind, hail, vandalism, malicious mischief, 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 the Work. [If either Builder’s Risk or an Installation Floater is required, continue] 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 performance of the Work. The insurer shall waive all rights of subrogation against Owner.
5. Insurance policies in Appendix C shall contain an endorsement containing the following terms:
5.01 City of Pacifica, 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.
5.02 The 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.
5.03 Written 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.
5.04 Insurance 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.
6. 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 5.03 above.
7. 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.
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Appendix D to Construction Services Agreement
CONSTRUCTION LABOR AND MATERIAL PAYMENT BOND
KNOW ALL PERSONS BY THESE PRESENTS:
1. THAT WHEREAS, the City of Pacifica, a general law city and municipal corporation of the State of California (Owner) has awarded to Pump Repair Services Co., P.O. Box 34327, San Francisco, CA 94134-0327 as Principal a Construction Services Agreement, dated the 24th of January, 2022 (Agreement), titled Anza Storm Water Station: Pump #3 located at Anza Pump Station, Pacifica State Beach in the amount of $207,394.22 (Contract Sum), which Agreement is by this reference made a part hereof, for the work described as follows:
(Pump and Gear Drive Repair and Rebuild per Appendix A)
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 Contractors Bonding and Insurance Company as Surety, are held and firmly bound unto Owner in the sum of 100% OF THE CONTRACT SUM ($207,394.22), 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 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 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___.
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CONTRACTOR AS PRINCIPAL SURETY
Company: (Corp. Seal) Company: (Corp. Seal)
Signature Signature
Wayne Archer
Name Name
President
Title Title
405 Allan Street
Street Address Street Address
Daly City, CA 94014
City, State, Zip Code City, State, Zip Code
END OF DOCUMENT
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Appendix E to Construction Services Agreement
CONSTRUCTION PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
1. THAT WHEREAS, City of Pacifica, a general law city and municipal corporation of the State of California (Owner) has awarded to Pump Repair Services Co., P.O. Box 34327, San Francisco, CA 94134-0327 as Principal a Construction Services Agreement, dated the 24th of January, 2022 (Agreement), titled Anza Storm Water Station: Pump #3 located at Anza Pump Station, Pacifica State Beach in the amount of $207,394.22 (Contract Sum), which Agreement is by this reference made a part hereof, for the work described as follows:
(Pump and Gear Drive Repair and Rebuild per Appendix A
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 Contractor’s Bonding and Insurance Company 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:
6.01 Undertake 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
6.02 Obtain 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 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.
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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 F to Construction Services Agreement
SUPPLEMENTAL CONDITIONS
1. Plans
No project plans for this project.
2. Shop Drawings
Shop drawings shall not be required on this project.
3. Dust Control and Cleanup
During the construction period, the dust level shall be kept at a minimum. The premises shall also be kept free from the accumulation of waste material or rubbish. Failure to meet this requirement may result in project shutdown.
The final cleaning shall leave the facilities ready for use with no additional cleanup. Use no cleaning materials which will contaminate the ocean. At the completion of the contract, the Contractor shall remove all remaining litter, debris, materials, temporary structures and equipment from the site. The premises shall be left in a clean and orderly condition acceptable to the City Engineer.
In the event Contractor leaves the job overnight in an unclean condition, City may take action to provide necessary requirements and will deduct the cost of doing so from subsequent Contractor payments.
4. Public Safety
Contractor shall be responsible during all phases of work to provide for public safety and convenience. It shall be the Contractor’s responsibility to provide adequate provisions to assure the safety of the general public throughout the duration of the project, including periods when no work is being performed. The site shall be thoroughly fenced-off when work is not actively in progress, and lighted barricades shall be placed around any obstructions not encompassed by this fence.
In the event Contractor leaves the job overnight in an unsafe condition, or fails to provide for public safety and convenience, City may take action to provide necessary requirements and will deduct the cost of doing so from subsequent Contractor payments.
All applicable safety regulations shall be complied with to protect the public and the Contractor’s employees. Strict compliance with Cal/OSHA safety requirements in doing the work is required.
5. Prevailing Wage Rates
The Contractor shall post, in a location on the job site, the prevailing wage rate Determination which is applicable to this project.
6. Discrimination
No discrimination shall be made in the employment of persons upon public works because of the race, sex, age, color, national origin, creed, sexual orientation or marital status of such persons and
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every contractor for public works violating this section is subject to all the penalties imposed for a violation of Section 1735 of the California Labor Code.
7. Employment of Apprentices
Attention is directed to the provisions in Sections 1777.5 (Chapter 1411, Statutes of 1967) and 1777.6 of the Labor Code concerning the employment of apprentices by the Contractor or any subcontractor under him.
The Contractor and any subcontractor shall comply with the requirements of Sections 1777.5 and 1777.6 in the employment of apprentices.
Information relative to apprenticeship standards, wage schedules and other requirements may be obtained from the Director of Industrial Relations, ex officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices.
8. Materials and Supplies
All materials and supplies called for by contractor’s scope and proposal and shall be new unless otherwise specified.
9. Protection
The Contractor shall provide adequate protection for the site and surroundings throughout the work.
All damage done to existing property shall be neatly repaired or replaced at the Contractor’s expense.
Work shall be executed in a careful and orderly manner with the least possible disturbance to public and occupants of the area.
The Contractor shall conduct his operations in such a manner as to avoid damage to existing improvements and adjacent property. The Contractor shall, at its sole cost and expense, repair or replace any damage occurring from his operations to pursue completion of the contract. The repairs and replacement shall be to the satisfaction of the Engineer and according to City standards and practices. The minimum repair or replacement shall be equal to surrounding existing conditions or better, and the Engineer’s decision as to acceptable repair or replacement shall be final. The burden of proof as to whether there was existing damage by the Contractor shall rest with the Contractor.
The site shall be maintained in a neat and orderly manner at all times. All existing facilities shall be protected and, if they are damaged or destroyed by the Contractor, shall be restored or replaced in kind at his expense, to their original conditions, or better, as approved by the City or other owner thereof. The site shall be secured at the conclusion of each work day.
10. Inspections
Inspectors, employed by the City, shall be authorized to inspect all work done and all materials furnished. Such inspection may extend to all or any part of the work on the project and to the preparation, fabrication or manufacture of the materials to be used. An inspector is not authorized to revoke, alter or waive any requirements of the specifications. He is authorized to call the attention of the Contractor to any failure of the work or materials to conform to the specifications and contract. He shall have the authority to reject materials or suspend the work until any question at issue can be referred to and decided by the Engineer.
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An inspector will in no case act as foreman or perform other duties for the Contractor, nor interfere with the Contractor’s management of the work.
In case the Contractor refuses to suspend operations on verbal order, the inspector giving such verbal order will then issue the order in writing. After placing the order in the hands of the person in charge of the work for the Contractor, the inspector will immediately leave the job. Work done during the absence of the inspector will not be accepted or compensated.
The Contractor shall prosecute work only in the presence of an authorized inspector or authorized representative of the Engineer, and any work done without such inspection shall be at the Contractor’s risk and be subject to rejection.
The Contractor shall furnish the Engineer with every reasonable facility for ascertaining whether or not the work, as performed, is in accordance with the requirements and intent of the specifications and contract. The Contractor shall at all times and for any purpose permit the Engineer and any of his representatives and representatives of the City to have access to the work and the premises used by the Contractor.
11. Defective Materials
Any materials condemned or rejected by the Engineer as not meeting the requirements of these specifications may be branded or otherwise marked by the Engineer and shall, on demand, be at once removed by the Contractor to a satisfactory distance from the work.
If the Contractor does not remove such material within a reasonable time, fixed by written notice, the City may remove and store the materials at the expense of the Contractor. If the Contractor does not pay the expense of such removal and storage within ten days thereafter, the City may, upon ten days’ written notice, sell such materials at auction or at private sale. The City will account for the net proceeds thereof after deducting all the costs and expenses that should have been borne by the Contractor.
No partial payment, inspection, taking possession of, or other act made or done by the Engineer or the City with respect to the work prior to the final completion and acceptance thereof shall relieve Contractor from performing the Work in accordance with this contract, and shall not affect or prejudice the right of the Engineer or the City to reject any defective work or material or to require the Contractor complete fulfillment of all the provisions of the contract.
If the Engineer deems it expedient and not in the best interests of the City to correct work injured or done not in accordance with the contract, the defective work may be accepted subject to an equitable deduction from the contract price which may be made therefor by the City upon certificate from the Engineer.
12. Temporary Suspension of Work and Extension of Time for Performance When conditions at the site of the proposed work are unsatisfactory for the prosecution of a part or all of the work as adjudged by the Contractor and he is forced to suspend such work until reasonable conditions for its prosecution exist, he may request, in writing, that the Engineer authorize such suspension of work. Without the Engineer’s approval, any suspensions violate this specification.
Unsatisfactory conditions may include, but not limited to: inclement weather, excessively high surf and/or tides, strikes, excessive high or low ambient temperature and inability of delivery of materials by suppliers for good reason.
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When, in the opinion of the Engineer, suspensions of work are beyond the control of both the Contractor and the City (including, without limitation, adverse weather, conditions, earthquakes, force majeure events), the time of performance as set forth in the Agreement will be extended by the Engineer, in writing, by a period of time equal to that lost due to the delay occasioned by the allowed suspension, all at no additional cost to the City and without waiver of remedies for nonproliferation of the work. Such allowed suspension of work shall not relieve the Contractor of his contractual responsibilities.
13. Laws and Regulations
The Contractor shall comply with all local, regional, State and Federal laws and regulations at all times. In addition, the Contractor shall meet the standards set by the Air Quality Act for Noise and Pollution. If there is any conflict between these specifications and provisions and any laws or regulations, the matter shall be brought to the attention of the Engineer immediately.
14. Sound Control Requirements
The Contractor shall comply with all local sound control and noise level rules, regulations and ordinances which apply to any work performed pursuant to the contract.
Each internal combustion engine, used for any purposes 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.
15. Air Pollution Control
The Contractor shall comply with all air pollution control rules, regulations, ordinances and statutes which apply to any work performed pursuant to the contract, involving any air pollution control rules, regulations, ordinances and statutes specified in Section 11017 of the Government Code.
16. Water Pollution
General:
Contractor shall take all measures necessary to prevent debris or contamination from entering the ocean. Best Management Practice (BMP) shall be enforced at all times.
Correction of Inadequate Pollution and Erosion Control Measures:
If the measures being taken by the Contractor are inadequate to control water pollution effectively, the City Engineer may direct the Contractor to revise operations. The directions will be in writing and will specify the items of work for which the Contractor’s water pollution control measures are inadequate. No further work shall be performed on those items until the water pollution control measures are made adequate.
Abatement of Other Water Pollution:
The cleanup of water pollution by chemicals, petroleum products, cement or by the escape of any other material that is harmful or potentially harmful, from the work site as a result of the Contractor’s operations, into drainage systems or the ocean shall be the financial responsibility of the Contractor.
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The means of cleanup and the party or parties to be engaged to perform the cleanup work shall be determined by the Engineer in consultation with appropriate hazardous materials, pollution control, safety, health and wildlife authorities and officials. The Contractor shall immediately carry out cleanup orders issued to him through or by the Engineer and shall make the work site accessible to personnel and equipment from outside pollution control resources called in by the Engineer. The cost of cleanup action called for by the Engineer and performed by outside resources shall be deducted from any monies due or become due the Contractor.
Compensation:
Full compensation for conforming to the requirements of this section shall be considered as included in the Contract Sum paid for the various items of work and no additional compensation will be allowed therefor.
17. Environmental Protection Requirements
Source Reduction and Recycling
The California Integrated Waste Management Act of 1989 (AB 939) mandates that 25 percent of the waste stream in the City of Pacifica be diverted from landfill by 1995 and that this diversion increase to 50 percent by 2000. AB 939 also required the City of Pacifica to prepare and adopt a Source Reduction and Recycling Element (SRRE) outlining recommended programs to meet the above noted diversion goals. One of the approved SRRE programs is to require the utilization of recycled construction materials for City projects. All work performed under this contract and all contractors and their associates and/or employees shall utilize recycled materials and recycle construction materials where feasible. Construction/Demolition Recycling Resources Lists are available from the Pacifica Planning Department and the California Integrated Waste Management Board.
Contractor shall reuse or recycle any useful construction materials generated during the project.
Disposal
At the end of each working day, the Contractor shall collect all scrap, debris and waste material and dispose of such materials properly.
Hazardous Material/Waste Management
A. Storage
The Contractor shall label and store all hazardous materials, such as pesticides, paints, thinners, solvents, and fuels; and all hazardous wastes, such as waste oil and antifreeze; in accordance with the City of Pacifica Hazardous Materials Storage Ordinance and all applicable State and Federal regulations.
The Contractor shall store all hazardous materials and all hazardous wastes in accordance with secondary containment regulations, and it is recommended that these materials and wastes be covered, as needed, to avoid potential management of collected rain water as a hazardous waste.
The Contractor shall keep an accurate, up-to-date inventory, including Material Safety Data Sheets (MSDSs), of hazardous materials and hazardous wastes stored on-site, to assist emergency response personnel in the event of a hazardous materials incident.
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B. Disposal
The Contractor shall use secondary containment, such as a drip pan, to catch leaks or spills any time that vehicle or equipment fluids are dispensed, changed or poured.
The Contractor shall keep a stockpile of spill cleanup materials, such as rags or absorbents, readily accessible on site.
The Contractor shall clean up leaks and spills of vehicle or equipment fluids immediately and dispose of the waste and cleanup materials as hazardous waste, as described in the section above.
The Contractor shall not wash any spilled material into streets, gutters, storm drains or creeks and shall not bury spilled hazardous materials.
The Contractor shall report any hazardous materials spill to the City of Pacifica Building Division at (650) 738-7344.
The Contractor shall inspect vehicles and equipment arriving on site for leaking fluids and shall promptly repair leaking vehicles and equipment. Drip pans shall be used to catch leaks until repairs are made.
C. Activity-Specific Requirements
The following requirements shall be met on all projects within the City of Pacifica that include the listed activities.
Concrete, Grout and Mortar Waste Management
Material Management:
The Contractor shall store concrete, grout, and mortar away from drainage areas and ensure that these materials do not enter the storm drain system or the ocean waters.
Concrete Truck/Equipment Wash Out:
The Contractor shall not wash out concrete trucks or equipment into streets or gutters.
The Contractor shall perform washout of concrete trucks or equipment off-site or in a designated area on-site where the water will flow onto dirt or into a temporary pit in a dirt area. The Contractor shall let the water percolate into the soil and dispose of the hardened concrete in a trash container. If a suitable dirt area is not available, then the Contractor shall collect the wash water and remove it off-site.
18. Layout of Work
Layout of work shall be done by the Contractor. Contractor shall mark the work area limits and facilities to be removed and replaced. All layout shall be approved by the City.
19. Substitutions
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Substitutions in material or methods of construction, when necessary because of material shortages or in order to avoid serious delay may be made only after they are approved by the City Engineer in writing.
20. Traffic Control and Public Access
The Contractor shall be responsible for proper traffic control to assure public safety and convenience.
Continuous safe public access shall be maintained to residential structures at all times.
21. Material and Workmanship
All materials and workmanship are to be the best of their respective kinds. The terms “or equal,” “approved,” “selected” and so forth shall mean as approved, etc. by the City Engineer. All materials and equipment used should be in accordance with the manufacturer’s printed directions.
Use adequate numbers of skilled workmen who are thoroughly trained and experienced in necessary crafts and who are completely familiar with the specified requirements and methods needed for proper performance of work specified. Use equipment adequate in terms of size, capacity and numbers to accomplish work in a timely manner.
22. Drug-Free Workplace
The Contractor is required to comply with the Drug-Free Workplace Act of 1988. The requirements of the Drug-Free Workplace Policy are described in City of Pacifica Administrative Policy Number 46.
23. Harassment and Discrimination
The Contractor is required to comply with City of Pacifica Administrative Policy Number 33, Harassment and Discrimination in the Workplace.
24. Payroll Records
Contractor and each Sub-Contractor shall keep an accurate payroll record, showing the name, address, social security number, work week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him in connection with the public work. All payroll records shall be certified and maintained by the Contractor and be made available to auditors and managers from the City upon request.
8.b
Packet Pg. 501 Attachment: Attachment B - Construction Services Agreement with Pump Repair Service Co. (4930 : Anza Pump Station Repair Project (C036)) Construction Services Agreement 00 5205 - 20
OAK #4836-0105-9886 v2
05620-0129
4/1/20
8.b
Packet Pg. 502 Attachment: Attachment B - Construction Services Agreement with Pump Repair Service Co. (4930 : Anza Pump Station Repair Project (C036))