San Mateo City Council
August 21, 2023

ARTICLE 3 - CONTRACT DOCUMENTS

3.01 Intent of Contract Documents
A. It is the intent of the Contract Documents to describe a functionally complete project. The Contract Documents do not indicate or describe all the Work required to complete the Project. Additional details required for the correct installation of selected products are to be provided by the Contractor and coordinated with the Owner and RPR. This Contract supersedes prior negotiations, representations, and agreements, whether written or oral.

The Contract Documents are complementary; what is required by one part of the Contract Documents is as binding as if required by other parts of the Contract Documents.

B. During the performance of the Work and until final payment, Contractor and Owner shall submit all matters in question concerning the requirements of the Contract Documents or relating to the acceptability of the Work under the Contract Documents to the RPR. RPR will be the initial interpreter of the requirements of the Contract Documents, and judge of the acceptability of the Work thereunder.

C. RPR will render a written clarification, interpretation, or decision on the issue submitted, or initiate a modification to the Contract Documents.

D. Contractor, and its subcontractors and suppliers, shall not have or acquire any title to or ownership rights to any of the Drawings, Specifications, or other documents (including copies or electronic media editions) prepared by RPR or its consultants.

3.02 Reporting and Resolving Discrepancies
A. Reporting Discrepancies:

1. Contractor’s Verification of Figures and Field Measurements: Before undertaking each part of the Work, Contractor shall carefully study the Contract Documents, and check and verify pertinent figures and dimensions therein, particularly with respect to applicable field measurements. Contractor shall promptly report in writing to Engineer any conflict, error, ambiguity, or discrepancy that Contractor discovers, or has actual knowledge of, and shall not proceed with any Work affected thereby until the conflict, error, ambiguity, or discrepancy is resolved, by a clarification or interpretation by Engineer, or by an amendment or supplement to the Contract Documents.

2. Contractor’s Review of Contract Documents: If, before or during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents, or between the Contract Documents and (a) any applicable Law or Regulation, (b) actual field conditions, (c) any standard specification, manual, reference standard, or code, or (d) any instruction of any Supplier, then Contractor shall promptly report it to Engineer in writing. Contractor shall not proceed with the Work affected thereby (except in an emergency as required by Paragraph 7.15) until the conflict, error, ambiguity, or discrepancy is resolved, by a clarification or interpretation by Engineer, or by an amendment or supplement to the Contract Documents issued pursuant to Paragraph 11.01.

3. Contractor shall not be liable to Owner or Engineer for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless Contractor had actual knowledge thereof.
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This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

B. Resolving Discrepancies:

1. Except as may be otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity, or discrepancy between such provisions of the Contract Documents and:
a. the provisions of any standard specification, manual, reference standard, or code, or the instruction of any Supplier (whether or not specifically incorporated by reference as a Contract Document); or
b. the provisions of any Laws or Regulations applicable to the performance of the Work (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation).

2. When a conflict exists between drawings or between drawings and details, the more stringent of the two shall prevail. When a conflict exists between two specifications, the more stringent of the two shall prevail.

3. In the event of a conflict that cannot be resolved by interpreting the Contract Documents as a single, integrated document and giving effect to each provision therein, the Contract Document higher in precedence shall control and supersede the Contract Documents lower in precedence in accordance with the following listing arranged from the highest to the lowest in precedence:
a. Change Order.
b. Addenda.
c. Contract.
d. Technical Specifications included as an Exhibit to this Contract. e. Drawings included as an Exhibit to this Contract.
f. Owner Standard Specifications.
g. Owner Standard Drawings.
h. National Joint Powers Alliance Book 4: Technical Specifications. i. National Joint Powers Alliance - Book 2: IQCC Standard Terms and Conditions and Contract General Conditions.
j. The provisions of any standard specification, manual, reference standard, or code, or the instruction of any Supplier (whether or not specifically incorporated by reference as a Contract Document).
k. The provisions of any Laws or Regulations applicable to the performance of the Work (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation).
l. Notice to Bidder.
m. Instruction to Bidder.
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This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

ARTICLE 4 - CONTRACT TIMES

4.01 Contract Times
A. The Work will be substantially completed within 365 days after the Effective Date of the Contract and completed and ready for final payment within 395 days after the Effective Date of the Contract.

4.02 Liquidated Damages
A. Contractor and Owner recognize that time is of the essence in the performance of the Contract, and that Owner will incur damages if Contractor does not complete the Work according to the requirements of Paragraph 4.01. Because such damages for delay would be difficult and costly to determine and the parties agree that $1000 per day is a reasonable approximation of the Owner’s damages, Owner and Contractor agree that as liquidated damages for delay (but not as a penalty) Contractor shall pay Owner $1000 for each day that expires after the Contract Time for substantial completion.

4.03 Delays in Contractor’s Progress
A. If Owner, RPR, or anyone for whom Owner is responsible, delays, disrupts, or interferes with the performance or progress of the Work, then Contractor shall be entitled to an equitable adjustment in the Contract Times and Contract Price. Contractor’s entitlement to an adjustment of the Contract Times is conditioned on such adjustment being essential to Contractor’s ability to complete the Work within the Contract Times.

B. Contractor shall not be entitled to an adjustment in Contract Price or Contract Times for delay, disruption, or interference caused by or within the control of Contractor or their subcontractors or suppliers.

C. If Contractor’s performance or progress is delayed, disrupted, or interfered with by unanticipated causes not the fault of and beyond the control of Owner, Contractor, and those for which they are responsible, then Contractor shall be entitled to an equitable adjustment in Contract Times.

D. Contractor shall not be entitled to an adjustment in Contract Price or Contract Times for any delay, disruption, or interference if such delay is concurrent with a delay, disruption, or interference caused by or within the control of Contractor or Contractor’s subcontractors or suppliers.

4.04 Progress Schedules
A. Contractor shall develop a progress schedule and submit to the RPR for review and comment before starting Work on the Site. The Contractor shall modify the schedule in accordance with the comments provided by the RPR.

B. The Contractor shall update and submit the progress schedule to the RPR each month. The Owner may withhold payment if the Contractor fails to submit the schedule.

ARTICLE 5 - CONTRACT PRICE

5.01 Payment
A. Owner shall pay Contractor in accordance with the Contract Documents, the lump sum amount of $244,267.56 for all Work.
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This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

B. For any additional Work authorized by Owner, Owner shall pay Contractor in an amount equal to the total of all extended prices for actual Work completed. The extended price is determined by multiplying the unit price in the National Joint Powers Alliance - Book 3: Task Catalog times the actual quantity of that Work item completed. Actual quantities installed will be determined by the RPR.

ARTICLE 6 - BONDS AND INSURANCE

6.01 Bonds
A. Before starting Work, Contractor shall furnish a performance bond and a payment bond from surety companies that are duly licensed or authorized to issue bonds in the required amounts in the jurisdiction in which the Project is located. Each bond shall be in an amount equal to the Contract Price, as security for the faithful performance and payment of all of Contractor’s obligations under the Contract. These bonds shall remain in effect until the completion of the correction period specified in Paragraph 7.12 but, in any case, not less than one year after the date when final payment becomes due.

B. Performance by Sureties. In the event of any termination, Owner shall immediately give written notice to Contractor and Contractor’s sureties, and the sureties shall have the right to take over and perform the Contract, provided, however, that if the sureties, within five days after giving them notice of said termination, do not give Owner written notice of their intention to take over the performance thereof within five days after notice, Owner may take over the work and prosecute the same to completion, by contract or by any other method it may deem advisable, for the account, and at the expense of Contractor, and the sureties shall be liable to Owner for any excess cost or damages occasioned Owner thereby; and, in such event, Owner may, without liability for so doing, take possession of, and utilize in completing the work, such materials, appliances, plant and other property belonging to Contractor as may be on the site of the work and necessary therefore

6.02 Insurance
A. The Contractor shall procure and maintain the insurance specified in the Exhibit B of this Contract for the greater of (1) the duration of the contract plus a period of five (5) years after completion of the Project or (2) the duration shown in Exhibit B.

ARTICLE 7 - CONTRACTOR’S RESPONSIBILITIES

7.01 Supervision and Superintendence
A. Contractor shall supervise and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. Contractor shall be solely responsible for the means, methods, techniques, sequences, safety, and procedures of construction.

B. Contractor shall assign a competent resident superintendent who is to be present at all times during the execution of the Work. This resident superintendent shall not be replaced without written notice to and approval by the Owner and RPR except under extraordinary circumstances.

C. Contractor shall at all times maintain good discipline and order at the Site. 424 of 653
This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

D. Except as otherwise required for the safety or protection of persons or the Work or property at the Site or adjacent thereto, and except as otherwise stated in the Contract Documents, all Work at the Site shall be performed during regular working hours, Monday through Friday.

7.02 Other Work at the Site
A. In addition to and apart from the Work of the Contractor, other work may occur at or adjacent to the Site. Contractor shall take reasonable and customary measures to avoid damaging, delaying, disrupting, or interfering with the work of Owner, any other contractor, or any utility owner performing other work at or adjacent to the Site.

7.03 Services, Materials, and Equipment
A. Unless otherwise specified in the Contract Documents, Contractor shall provide and assume full responsibility for all services, materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other facilities and incidentals necessary for the performance, testing, start up, and completion of the Work, whether or not such items are specifically called for in the Contract Documents.

B. All materials and equipment incorporated into the Work shall be new, of good quality and shall be stored, applied, installed, connected, erected, protected, used, cleaned, and conditioned in accordance with instructions of the applicable supplier, except as otherwise may be provided in the Contract Documents.

7.04 Subcontractors and Suppliers
A. Contractor may retain subcontractors and suppliers for the performance of parts of the Work acceptable to Owner, provided that no work may be performed by a subcontractor who is debarred pursuant to Labor Code Sections 1777.1 or 1777.7.

7.05 Quality Management
A. Contractor is fully responsible for the managing quality to ensure Work is completed in accordance with the Contract Documents.

7.06 Licenses, Fees and Permits
A. Contractor shall pay all license fees and royalties and assume all costs incident to performing the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others.

B. Contractor shall obtain and pay for all construction permits and licenses unless otherwise provided in the Contract Documents.

7.07 Laws and Regulations; Taxes
A. Contractor shall give all notices required by and shall comply with all local, state, and federal Laws and Regulations applicable to the performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, neither Owner nor RPR shall be responsible for monitoring Contractor’s compliance with any Laws or Regulations.

B. Contractor shall bear all resulting costs and losses, and shall indemnify and hold harmless Owner and RPR, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them from and against all claims, costs, 425 of 653
This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

losses, and damages if Contractor performs any Work or takes any other action knowing or having reason to know that it is contrary to Laws or Regulations.

C. Contractor shall pay all applicable sales, consumer, use, and other similar taxes Contractor is required to pay in accordance with Laws and Regulations.

D. In accordance with Public Contract Code Section 7103.5, the contractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the contractor, without further acknowledgment by the parties.

E. Contractor shall give notice of hazardous materials and certain changed conditions in jobs involving trenching more than four feet deep.

F. In accordance with Labor Code Section 1773.2, contractor will make travel and subsistence payments as required by statute.

G. In accordance with Labor Code Section 1771, contractor must pay prevailing wages. The prevailing wage scale as determined by the Director of Industrial Relations of the State of California, in force on the day the bid was announced, will be the minimum paid to all craftsmen and laborers working on this project. Contractor shall also require any subcontractors who work or provide any services related to the project to pay all persons performing labor or rendering service under said subcontract or other arrangement at least the general prevailing rate of wages, determined as set forth herein for the respective crafts and employments, including such wages for holiday and overtime work. A copy of the correct determination will be posted at the job site. It is understood that it is the responsibility of Contractor to determine the correct scale. Copies of the prevailing wage rates are on file at the City Clerk’s office; however, errors or defects in the materials in the City Clerk’s office will not excuse a bidder’s failure to comply with the actual scale then in force. In accordance with Labor Code Section 1775, the statutory provisions for failure to pay prevailing wages will be enforced.

H. In accordance with Labor Code Section 1776, contractor must comply with the statutory requirements relating to certified copies of payroll records.

I. In accordance with Labor Code Section 1777.5, contractor must comply with the statutory requirements relating to the employment of apprentices.

J. In accordance with Labor Code Section 1810, eight hours labor constitutes a legal day’s work.

Contractor shall not require more than eight hours’ labor in a day and 40 hours in a calendar week from any person employed by Contractor in the performance of such work unless such excess work is compensated for at not less than one and one-half times the basic rate of pay.

Contractor shall forfeit as a penalty to Owner the sum of $25.00 for each laborer, workman, or mechanic employed in the execution of this contract by Contractor, or by any subcontractor, for each calendar day during which such laborer, workman, or mechanic is required or permitted to labor more than eight hours in any calendar day and 40 hours in any one calendar week in violation of the provisions of Section 1810 and 1816, inclusive, of the Labor Code of the State of California.
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This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

K. In accordance with Labor Code Section 1813, the statutory provisions for penalties for failure to comply with wage and hour laws will be enforced.

L. In accordance with Labor Code Section 1860, the contractor must secure the payment of workers’ compensation to its employees.

M. In accordance with Labor Code Section 6705, the contractor must submit a detailed plan of the shoring and bracing for trenches five feet deep or more for contracts in excess of $25,000.

N. In accordance with Labor Code Sections 1725.5 and 1771.1, all contractors and subcontractors must be registered with the Department of Industrial Relations. In accordance with Labor Code Section 1771.4, the contractor must post job site notices as required by regulation and this project will be subject to compliance monitoring and enforcement by the Department of Industrial Relations.

7.08 Record Documents
A. Contractor shall maintain one printed record copy of all Drawings, Specifications, Addenda, Change Orders, Work Change Directives, Field Orders, written interpretations and clarifications, and approved shop drawings in a safe place at the Site. Contractor shall annotate them to show changes made during construction. Contractor shall deliver these record documents to RPR upon completion of the Work.

7.09 Safety and Protection
A. Contractor shall be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work.

B. Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury, or loss to:

1. All persons on the Site or who may be affected by the Work;

2. All the Work and materials and equipment to be incorporated therein, whether in storage on or off the Site; and

3. Other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, other work in progress, utilities, and underground facilities not designated for removal, relocation, or replacement in the course of construction.

C. All damage, injury, or loss to any property caused, directly or indirectly, in whole or in part, by Contractor, or anyone for whose acts the Contractor may be liable, shall be remedied by Contractor at its expense (except damage or loss attributable to the fault of Contract Documents or to the acts or omissions of Owner or RPR and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of Contractor).

D. Contractor shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Laws or Regulations.

E. In emergencies affecting the safety or protection of persons or the Work or property at the Site or adjacent thereto, Contractor shall act to prevent threatened damage, injury, or loss.

Contractor shall give RPR prompt written notice if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby or are required as a result thereof. If RPR determines that a change in the Contract 427 of 653
This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

Documents is required because of the action taken by Contractor in response to such an emergency, a Work Change Directive or Change Order will be issued.

7.10 Shop Drawings, Samples, and Other Submittals
A. Contractor shall review and coordinate the shop drawing and samples with the requirements of the Work and the Contract Documents and shall verify all related field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information.

B. Each submittal shall bear a stamp or specific written certification that Contractor has satisfied Contractor’s obligations under the Contract Documents with respect to Contractor’s review of that submittal, and that Contractor approves the submittal.

C. With each submittal, Contractor shall give RPR specific written notice, in a communication separate from the submittal, of any variations that the shop drawing or sample may have from the requirements of the Contract Documents.

D. RPR will provide timely review of shop drawings and samples.

E. RPR’s review and approval will not extend to means, methods, techniques, sequences, or procedures of construction or to safety precautions or programs.

F. RPR’s review and approval of a separate item does not indicate approval of the assembly in which the item functions.

G. Contractor shall make corrections required by RPR and shall return the required number of corrected copies of shop drawings and submit, as required, new samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by RPR on previous submittals.

H. Shop drawings are not Contract Documents.

7.11 Warranties and Guarantees
A. Contractor warrants and guarantees to Owner that all Work will be in accordance with the Contract Documents and will not be defective. RPR and its officers, directors, members, partners, employees, agents, consultants, and subcontractors shall be entitled to rely on Contractor’s warranty and guarantee.

7.12 Correction Period
A. If within one year after the date of substantial completion, any Work is found to be defective, or if the repair of any damages to the Site, adjacent areas that Contractor has arranged to use through construction easements or otherwise, and other adjacent areas used by Contractor as permitted by Laws and Regulations, is found to be defective, then Contractor shall promptly and without cost to Owner, correct such defective Work.

7.13 Indemnification
A. To the fullest extent permitted by Laws and Regulations, and in addition to any other obligations of Contractor under the Contract or otherwise, Contractor shall indemnify and hold harmless Owner and RPR, and the officials, employees, and agents, of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of RPR, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to the performance of 428 of 653
This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

the Work. Contractor will defend Owner, its elected and appointed officials, employees, and agents against any such claims. However, this provision does not apply to claims, loss, liability, damage, or expense arising from the sole negligence or willful misconduct of the Owner
ARTICLE 8 - OWNER’S RESPONSIBILITIES

8.01 Owner’s Responsibilities
A. Except as otherwise provided in the Contract Documents, Owner shall issue all communications to Contractor through RPR.

B. Owner shall make payments to Contractor as provided in this Contract.

C. Owner shall provide Site and easements required to construct the Project.

D. If Owner intends to contract with others for the performance of other work at or adjacent to the Site, unless stated elsewhere in the Contract Documents, Owner shall have sole authority and responsibility for such coordination.

E. The Owner shall be responsible for performing inspections and tests required by applicable codes.

F. The Owner shall not supervise, direct, or have control or authority over, nor be responsible for, Contractor’s means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Owner will not be responsible for Contractor’s failure to perform the Work in accordance with the Contract Documents.

G. While at the Site, Owner’s employees and representatives shall comply with the specific applicable requirements of Contractor’s safety programs of which Owner has been informed.

H. Owner shall furnish copies of any applicable Owner safety programs to Contractor.

I. In accordance with Public Contract Code Section 9201, Owner shall give contractor timely notification of the receipt of any third-party claims relating to the contract.

ARTICLE 9 - RPR’S STATUS DURING CONSTRUCTION

9.01 RPR’s Status
A. RPR will be Owner’s representative during construction. The duties and responsibilities and the limitations of authority of RPR as Owner’s representative during construction are set forth in this Contract.

B. Neither RPR’s authority or responsibility under this Article 9 or under any other provision of the Contract, nor any decision made by RPR in good faith either to exercise or not exercise such authority or responsibility or the undertaking, exercise, or performance of any authority or responsibility by RPR, shall create, impose, or give rise to any duty in contract, tort, or otherwise owed by RPR to Contractor, any subcontractor, any supplier, any other individual or entity, or to any surety for or employee or agent of any of them.

C. RPR will make visits to the Site at intervals appropriate to the various stages of construction.

RPR will not be required to make exhaustive or continuous inspections on the Site to check the quality or quantity of the Work.
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This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

D. RPR has the authority to reject Work if Contractor fails to perform Work in accordance with the Contract Documents.

E. RPR will render decisions regarding the requirements of the Contract Documents and judge the acceptability of the Work.

F. RPR will not supervise, direct, control, or have authority over or be responsible for Contractor’s means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. RPR will not be responsible for Contractor’s failure to perform the Work in accordance with the Contract Documents.

ARTICLE 10 - CHANGES IN THE WORK

10.01 Authority to Change the Work
A. Without invalidating the Contract and without notice to any surety, Owner may, at any time or from time to time, order additions, deletions, or revisions in the Work.

10.02 Change Orders
A. Owner and Contractor shall execute appropriate Change Orders covering:

1. Changes in the Contract Price or Contract Times which are agreed to by the parties, including any undisputed sum or amount of time for Work actually performed in accordance with a Work Change Directive;

2. Changes in the Work which are: (a) ordered by Owner or (b) agreed to by the parties or (c) resulting from the RPR’s decision, subject to the need for RPR’s recommendation if the change in the Work involves the design (as set forth in the Drawings, Specifications, or otherwise), or other engineering or technical matters; and

3. Changes in the Contract Price or Contract Times or other changes which embody the substance of any final binding results under Article 12.

B. If the provisions of any bond require notice to be given to a surety of any change affecting the general scope of the Work or the provisions of the Contract Documents (including, but not limited to, Contract Price or Contract Times), the giving of any such notice will be Contractor’s responsibility. The amount of each applicable bond will be adjusted to reflect the effect of any such change.

ARTICLE 11 - DIFFERING SUBSURFACE OR PHYSICAL CONDITIONS

11.01 Differing Conditions Process
A. If Contractor believes that any subsurface or physical condition including but not limited to utilities or other underground facilities that are uncovered or revealed at the Site either differs materially from that shown or indicated in the Contract Documents or is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in Work of the character provided for in the Contract Documents then Contractor shall, promptly after becoming aware thereof and before further disturbing the subsurface or physical conditions or performing any Work in connection therewith (except in an emergency), notify Owner and RPR in writing about such condition. Contractor shall not further disturb such condition or perform any Work in connection therewith (except with 430 of 653
This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

respect to an emergency) until receipt of a written statement permitting Contractor to do so.

B. After receipt of written notice, RPR will promptly:

1. Review the subsurface or physical condition in question;

2. Determine necessity for Owner obtaining additional exploration or tests with respect to the condition;

3. Determine whether the condition falls within the differing site condition as stated herein;

4. Obtain any pertinent cost or schedule information from Contractor;

5. Prepare recommendations to Owner regarding the Contractor’s resumption of Work in connection with the subsurface or physical condition in question and the need for any change in the Drawings or Specifications; and

6. Advise Owner in writing of RPR’s findings, conclusions, and recommendations.

C. After receipt of RPR’s written findings, conclusions, and recommendations, Owner shall issue a written statement to Contractor regarding the subsurface or physical condition in question, addressing the resumption of Work in connection with such condition, indicating whether any change in the Drawings or Specifications will be made, and adopting or rejecting RPR’s written findings, conclusions, and recommendations, in whole or in part.

ARTICLE 12 - CLAIMS AND DISPUTE RESOLUTION

12.01 Claims Process
A. The party submitting a claim shall deliver it directly to the other party to the Contract and the RPR promptly (but in no event later than 10 days) after the start of the event giving rise thereto.

B. The party receiving a claim shall review it thoroughly, giving full consideration to its merits.

The two parties shall seek to resolve the claim through the exchange of information and direct negotiations. All actions taken on a claim shall be stated in writing and submitted to the other party.

C. If efforts to resolve a claim are not successful, the party receiving the claim may deny it by giving written notice of denial to the other party. If the receiving party does not take action on the claim within 45 days, the claim is deemed denied.

D. If the dispute is not resolved to the satisfaction of the parties, Owner or Contractor shall give written notice to the other party of the intent to submit the dispute to a court of competent jurisdiction unless the Owner and Contractor both agree to an alternative dispute resolution process.

12.02 Mediation
Should any dispute arise out of this Contract, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by the American Arbitration Association, the California State Board of Mediation and Conciliation, or other agreed-upon service. The mediator shall be 431 of 653
This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

selected by a blind draw. The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reach by the parties but not more than 60 days, unless the maximum time is extended by the parties.

ARTICLE 13 - TESTS AND INSPECTIONS; CORRECTION OF DEFECTIVE WORK

13.01 Tests and Inspections
A. Owner and RPR will have access to the Site and the Work at reasonable times for their observation, inspection, and testing. Contractor shall provide them proper and safe conditions for such access.

B. Contractor shall give RPR timely notice of readiness of the Work for all required inspections and tests and shall cooperate with inspection and testing personnel to facilitate required inspections and tests.

C. If any Work that is to be inspected, tested, or approved is covered by Contractor without written concurrence of RPR, Contractor shall, if requested by RPR, uncover such Work for observation. Such uncovering shall be at Contractor’s expense.

13.02 Defective Work
A. Contractor shall ensure that the Work is not defective.

B. RPR has the authority to determine whether Work is defective, and to reject defective Work.

C. Prompt notice of all defective Work of which Owner or RPR has actual knowledge will be given to Contractor.

D. The Contractor shall promptly correct all such defective Work.

E. When correcting defective Work, Contractor shall take no action that would void or otherwise impair Owner’s special warranty and guarantee, if any, on said Work.

F. If the Work is defective or Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or fails to perform the Work in such a way that the completed Work will conform to the Contract Documents, then Owner may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated.

ARTICLE 14 - PAYMENTS TO CONTRACTOR

14.01 Progress Payments
A. The Contractor shall prepare a schedule of values that will serve as the basis for progress payments. The schedule of values will be in a form of application for payment acceptable to RPR. The unit price breakdown submitted with the bid will be used for unit price work. Break lump sum items into units that will allow for measurement of Work in progress.

14.02 Applications for Payments:

A. Contractor shall submit an application for payment in a form acceptable to the RPR, no more frequently than monthly, to RPR. Applications for payment will be prepared and signed by 432 of 653
This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

Contractor. Contractor shall provide supporting documentation required by the Contract Documents. Payment will be paid for Work completed as of the date of the application for payment.

B. Beginning with the second application for payment, each application shall include an affidavit of Contractor stating that all previous progress payments received on account of the Work have been applied on account to discharge Contractor’s legitimate obligations associated with prior applications for payment.

14.03 Retainage
A. The Owner shall retain 5% of each progress payment until the Work is substantially complete.

14.04 Review of Applications
A. Within 10 days after receipt of each application for payment, the RPR will either indicate in writing a recommendation for payment and present the application for payment to Owner or return the application for payment to Contractor indicating in writing RPR’s reasons for refusing to recommend payment. The Contractor will make the necessary corrections and resubmit the application for payment.

B. RPR will recommend reductions in payment (set-offs) which, in the opinion of the RPR, are necessary to protect Owner from loss because the Work is defective and requires correction or replacement.

C. The Owner is entitled to impose set-offs against payment based on any claims that have been made against Owner on account of Contractor’s conduct in the performance of the Work, incurred costs, losses, or damages on account of Contractor’s conduct in the performance of the Work, or liquidated damages that have accrued as a result of Contractor’s failure to complete the Work.

14.05 Contractor’s Warranty of Title
A. Contractor warrants and guarantees that title to all Work, materials, and equipment furnished under the Contract will pass to Owner free and clear of (1) all liens and other title defects, and (2) all patent, licensing, copyright, or royalty obligations, no later than seven days after the time of payment by Owner.

14.06 Substantial Completion
A. The Contractor shall notify Owner and RPR in writing that the Work is substantially complete and request the RPR issue a certificate of substantial completion when Contractor considers the Work ready for its intended use. Contractor shall at the same time submit to Owner and RPR an initial draft of punch list items to be completed or corrected before final payment.

B. RPR will make an inspection of the Work with the Owner and Contractor to determine the status of completion. If RPR does not consider the Work substantially complete, RPR will notify Contractor and Owner in writing giving the reasons therefor.

C. If RPR considers the Work substantially complete or upon resolution of all reasons for nonissuance of a certificate identified in 14.06.B, RPR will deliver to Owner a certificate of substantial completion which shall fix the date of substantial completion and include a punch list of items to be completed or corrected before final payment. 433 of 653
This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

14.07 Final Inspection
A. Upon written notice from Contractor that the entire Work is complete, RPR will promptly make a final inspection with Owner and Contractor and will notify Contractor in writing of all particulars in which this inspection reveals that the Work, or agreed portion thereof, is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies.

14.08 Final Payment
A. Contractor may make application for final payment after Contractor has satisfactorily completed all Work defined in the Contract, including providing all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance, certificates of inspection, annotated record documents and other documents.

B. The final application for payment shall be accompanied (except as previously delivered) by:

1. All documentation called for in the Contract Documents;

2. Consent of the surety to final payment;

3. Satisfactory evidence that all title issues have been resolved such that title to all Work, materials, and equipment has passed to Owner free and clear of any liens or other title defects, or will so pass upon final payment;

4. A list of all disputes that Contractor believes are unsettled; and

5. Complete and legally effective releases or waivers (satisfactory to Owner) of all lien rights arising out of the Work, and of liens filed in connection with the Work.

C. The Work is complete (subject to surviving obligations) when it is ready for final payment as established by the RPR’s written recommendation of final payment.

14.09 Waiver of Claims
A. The making of final payment will not constitute a waiver by Owner of claims or rights against Contractor.

B. The acceptance of final payment by Contractor will constitute a waiver by Contractor of all claims and rights against Owner other than those pending matters that have been duly submitted.

ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION

15.01 Owner May Suspend Work
A. At any time and without cause, Owner may suspend the Work or any portion thereof for a period of not more than 60 consecutive days by written notice to Contractor and RPR. Such notice will fix the date on which Work will be resumed. Contractor shall resume the Work on the date so fixed. Contractor shall be entitled to an adjustment in the Contract Price or an extension of the Contract Times, or both, directly attributable to any such suspension.

15.02 Owner May Terminate for Cause
A. Contractor’s failure to perform the Work in accordance with the Contract Documents or other failure to comply with a material term of the Contract Documents will constitute a default by Contractor and justify termination for cause. 434 of 653
This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

B. If Contractor defaults in its obligations, then after giving Contractor and any surety ten days written notice that Owner is considering a declaration that Contractor is in default and termination of the Contract, Owner may proceed to:

1. Declare Contractor to be in default, and give Contractor and any surety notice that the Contract is terminated; and

2. Enforce the rights available to Owner under any applicable performance bond.

C. Owner may not proceed with termination of the Contract under Paragraph 15.02.B if Contractor within seven days of receipt of notice of intent to terminate begins to correct its failure to perform and proceeds diligently to cure such failure.

D. Subject to the terms and operation of any applicable performance bond, if Owner has terminated the Contract for cause, Owner may exclude Contractor from the Site, take possession of the Work, incorporate in the Work all materials and equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere, and complete the Work as Owner may deem expedient.

E. In the case of a termination for cause, if the cost to complete the Work, including related claims, costs, losses, and damages, exceeds the unpaid contract balance, Contractor shall pay the difference to Owner.

15.03 Owner May Terminate for Convenience
A. Upon seven days written notice to Contractor, Owner may, without cause and without prejudice to any other right or remedy of Owner, terminate the Contract. In such case, Contractor shall be paid for, without duplication of any items:

1. Completed and acceptable Work executed in accordance with the Contract Documents prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such Work;

2. Expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials, or equipment as required by the Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses; and

3. Other reasonable expenses directly attributable to termination, including costs incurred to prepare a termination for convenience cost proposal.

B. Contractor shall not be paid on account of loss of anticipated overhead, profits, or revenue, or other economic loss arising out of or resulting from such termination.

ARTICLE 16 - CONTRACTOR’S REPRESENTATIONS

16.01 Contractor Representations
A. Contractor makes the following representations when entering into this Contract:

1. Contractor has examined and carefully studied the Contract Documents, and any data and reference items identified in the Contract Documents.

2. Contractor has visited the Site, conducted a thorough visual examination of the Site and adjacent areas, and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. 435 of 653
This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

3. Contractor is familiar with and is satisfied as to all Laws and Regulations that may affect cost, progress, and performance of the Work.

4. Contractor has considered the information known to Contractor itself; information commonly known to contractors doing business in the locality of the Site; information and observations obtained from visits to the Site; the Contract Documents; and the Siterelated reports and drawings identified in the Contract Documents, with respect to the effect of such information, observations, and documents on:
a. The cost, progress, and performance of the Work;
b. The means, methods, techniques, sequences, and procedures of construction to be employed by Contractor; and
c. Contractor’s safety precautions and programs.

5. Based on the information and observations referred to in the preceding paragraph, Contractor agrees that no further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract.

6. Contractor is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Contract Documents.

7. Contractor has given RPR written notice of all conflicts, errors, ambiguities, or discrepancies that Contractor has discovered in the Contract Documents, and the written resolution thereof by RPR is acceptable to Contractor.

8. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work.

9. Contractor’s entry into this Contract constitutes an incontrovertible representation by Contractor that, without exception, all prices in the Contract are premised upon performing and furnishing the Work required by the Contract Documents.

ARTICLE 17 - MISCELLANEOUS

17.01 Cumulative Remedies
A. The duties and obligations imposed by this Contract and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee, or by other provisions of the Contract. The provisions of this paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply.

17.02 Limitation of Damages
A. Neither Owner, RPR, nor any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, shall be liable to Contractor for any claims, costs, losses, or damages sustained by Contractor on or in connection with any other project or anticipated project.
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This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

17.03 No Waiver
A. A party’s non-enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Contract.

17.04 Survival of Obligations
A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract, as well as all continuing obligations indicated in the Contract, will survive final payment, completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Contractor.

17.05 Contractor’s Certifications
A. Contractor certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for or in executing the Contract.

17.06 Controlling Law and Venue
A. This Contract is to be governed by the law of the state of California and, in the event of litigation, venue will be in the County of San Mateo.

17.07 Notices
A. All notices shall be in writing, and delivered in person, or transmitted by certified mail, postage prepaid. Notices required to be given to Owner or Contractor shall be addressed as appears in the signature block at the end of this Contract.

17.08 No Partnership or Agency
A. Nothing in this Contract nor in the contract documents shall be deemed to constitute a partnership in law between Owner and Contractor, or any subcontractor, to constitute either party as an agent of the other for any purpose; or to entitle either party to commit or bind the other in any manner unless expressly agreed upon in the contract documents.

17.09 Severability
A. If any part or provision of the contract documents is determined by any court to be illegal, invalid, or unenforceable, in whole or in part, the contract documents shall continue to be valid as to its other provisions and the remainder of the affected provision, unless it can be concluded from the circumstances that, in the absence of the provisions found to be null and void, the parties would not have entered into the contract documents. The parties shall use all reasonable efforts to replace any and all provisions or parts found to be null and void with provisions that are valid under the applicable law and come closest to their original intention.

17.10 Waiver
A. None of the following shall operate as a waiver of any provision of the contract documents, or of any power herein reserved by the Owner, or any right to damages herein provided: 1) inspection by the Owner or its authorized agents or representatives; 2) any order or certificate for payment, or any payment for, or acceptance of the whole or any party of the work by the Owner; 3) an extension of time; or 4) any position taken by the Owner or its authorized agents or representatives.
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This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

17.11 Warranty
A. Contractor warrants and guarantees that the materials and equipment provided shall be at least of the quality specified and new unless otherwise required or permitted by the contract documents and, if no quality is specified, then the materials and equipment shall be of commercial grade, suitable for heavy public use in facilities of similar size and complexity,, that the work performed hereunder will be free from defects, and that the work will conform to the requirements of the contract documents.

IN WITNESS WHEREOF, Owner and Contractor have signed this Contract.

This Contract will be effective on __________________ (which is the Effective Date of the Contract).

OWNER: CONTRACTOR:

By: Matt Fabry By: Young Kang
Title: Acting Public Works Director Title: President
Address for giving notices: Address for giving notices:
330 West 20th Avenue 783 Phillips Drive
San Mateo, CA 94403 City of Industry, CA 91748
License No.: CA License # 858483
(where applicable)

APPROVED AS TO FORM
Linh Nguyen
Assistant City Attorney
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EXHIBIT A
CONTRACTOR’S PROPOSAL
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EXHIBIT B

INSURANCE REQUIREMENTS FOR CONSTRUCTION CONTRACTS
ARTICLE 18 - MINIMUM SCOPE AND LIMIT OF INSURANCE

18.01 Contractor shall procure and maintain for the duration of the contract, and for five (5) years thereafter, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, his agents, representatives, employees, or subcontractors.

18.02 Coverage shall be at least as broad as:

A. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $5,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.

B. Automobile Liability: Insurance Services Office Form CA 0001 covering Code 1 (any auto), with limits no less than $5,000,000 per accident for bodily injury and property damage.

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

D. Builder’s Risk (Course of Construction) insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions.

E. Surety Bonds as described below.

F. Professional Liability (if Design/Build), with limits no less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate.

G. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.

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

18.04 Self-Insured Retentions. Self-insured retentions must be declared to and approved by the City. At the option of the City, either: the contractor shall cause the insurer shall to reduce or eliminate such self-insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The 451 of 653
policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.

ARTICLE 19 - OTHER INSURANCE PROVISIONS

19.01 The insurance policies are to contain, or be endorsed to contain, the following provisions:

A. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the Contractor. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).

B. For any claims related to this project, the Contractor’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.

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

19.02 Builder’s Risk (Course of Construction) Insurance A. Contractor may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear.

B. If the project does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.

19.03 Claims Made Policies
A. If any coverage required is written on a claims-made coverage form:

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

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

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

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

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

19.05 Waiver of Subrogation
A. Contractor hereby agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors.

19.06 Verification of Coverage
A. Contractor shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.

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

19.08 Surety Bonds.

A. Contractor shall provide the following Surety Bonds:

1. Performance Bond

2. Payment Bond

3. Maintenance Bond
B. The Payment Bond and the Performance Bond shall be in a sum equal to the contract price.

If the Performance Bond provides for a one-year warranty a separate Maintenance Bond is not necessary. If the warranty period specified in the contract is for longer than one year a Maintenance Bond equal to 10% of the contract price is required. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California. 453 of 653

19.09 Special Risks or Circumstances.

A. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances. 454 of 653

CITY OF SAN MATEO

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 22 Section Name: CONSENT CALENDAR Account Number: 72-4674 File ID: 23-7796 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: August 21, 2023
SUBJECT:

Temporary Standby Generator for Dale Avenue Pump Station Upgrade – Contract Change Order RECOMMENDATION:

Approve Contract Change Order No. 2 to the Agreement with Herc Rentals, Inc. for a temporary emergency standby generator to support the Dale Ave Pump Station Upgrade project in an amount not-to-exceed $107,216.64 for rental services through the end of January 2024; increase the total agreement value to $436,477.21; increase the contingency reserve by $80,000; and authorize the Public Works Director to execute the change order in substantially the form presented and issue change orders within the contingency amount.

BACKGROUND:

The Basins 2 & 3 Collection System Improvements (Basins 2 & 3) is a Clean Water Program project that increases capacity and improves flow management to prevent sanitary sewer overflows in several areas throughout the City, including one at Dale Avenue Pump Station (DAPS). The DAPS Upgrade project included refurbishment of force mains, pump station equipment upgrades, and replacement of the existing emergency standby generator.

In October 2019, City Council awarded an agreement to Anvil Builders, Inc. (Anvil) to construct the DAPS Upgrade project.

Anvil’s scope of work is nearly complete; however, there is still work associated with installation of the permanent emergency standby generator. The emergency standby generator at DAPS provides backup power supply for the pumps and facility during a power failure scenario. Due to permitting requirements to comply with the latest air quality emission standards, installation of the new emergency standby generator is required. While installing the new generator, a temporary standby generator is required to ensure continuous power capability.

In August 2022, City Council approved a $222,090.41 agreement with Herc Rentals, Inc. (Herc) to provide a temporary standby generator required to support the DAPS Upgrade Project throughout the remainder of Anvil’s efforts to install the permanent emergency standby generator. The Council also approved the establishment of a $110,046 contingency reserve in case of unforeseen conditions or delays. At the time of the agreement approval, the new permanent emergency generator was expected to be installed by the end of summer of 2023.

In July 2023, the contingency reserve was utilized to execute Contract Change Order No. 1, adding $107,170.16 to the agreement. This change order addressed additional costs not accounted for in the original quote and agreement, such as utilizing longer cables to relocate the temporary generator from the public right of way and onto the DAPS site. Residential property owners adjacent to the DAPS site raised a concern that storing the temporary generator in the public right of way impacted residential parking, so the temporary generator was relocated onto the DAPS property to address this concern.

The change order also extended the time for the temporary generator to be utilized to September 2023. The time extension was necessary due to delays with design, permitting, and procurement of the permanent generator components.
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CITY OF SAN MATEO
Procurement delays have now extended the anticipated completion date to January 2024. As a result, an increase of $107,216.64 to the agreement with Herc is required to have Herc continue to provide a temporary standby generator through the end of January 2024. Staff recommends approval of Contract Change Order No. 2 to increase the value of the agreement, and to add $80,000 to the contingency reserve in case further unforeseen delays associated with procurement, installation, testing, and startup of the new permanent generator occur.

BUDGET IMPACT:

Sufficient funds are available in the Basins 2 and 3 Collection System Improvements (46s003) project to fund this contract change order.

ENVIRONMENTAL DETERMINATION:

The agreement addressed by this administrative report is being undertaken to support the Clean Water Program. This project is subject to the requirements of the California Environmental Quality Act (CEQA), the general components of which are included as part of the Final Programmatic Environmental Impact Report (Final PEIR) (SCH No. 201532006) that was prepared for the Clean Water Program. The Final PEIR was certified by City Council on June 6, 2016.

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 – Contract Change Order No. 2

STAFF CONTACT
Deryk Daquigan, Engineering Manager
[email protected]
(650) 522-7287
Matt Fabry, Deputy Director
[email protected]
650 522 7309
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CITY OF SAN MATEO

PUBLIC WORKS DEPARTMENT
330 WEST 20TH AVENUE
SAN MATEO, CA 94403
(650) 522-7300 CONTRACT CHANGE ORDER # 2
PROJECT: Temporary Standby Generator for Dale Ave Pump Station Upgrade TO: Herc Rentals, Inc.

CONTRACT CHANGE ORDER NO. 2 Page 1 of 1
PO/SCON No. Date 8/21/2023
Fund
PO-0000378
590 Capital Projects Fund
Cost Center Wastewater Treatment Plant
Spend Category Other Contractual Services
You are hereby directed to make the herein described changes from the plans and specifications or do the following described work not included in the plans and specifications on your contract.

DESCRIPTION OF WORK
Following is a description of work to be done, estimate of quantities, and prices to be paid.

The temporary 1000 kW generator rental at DAPS is anticipated to be required to through January 31, 2024, four months beyond the current end date of services. The attached quote from Herc Rentals for temporary standby generator rental services is for $160,824.96 for six months, or a calculated monthly rate of $26,804.16. The previous Contract Change Order No.1 increased the contract value and extended the term through to September 2023. Based on this calculated monthly rate, the total cost of the four remaining months (October through January) is $107,216.64.

Total cost of change not to exceed: $107,216.64
We, the undersigned contractor, have given careful consideration to the change proposed and hereby agree, if this proposal is approved, that we will provide all equipment, furnish all materials, except as may otherwise be noted above, and perform all services necessary for the work above specified, and will accept as full payment therefore the prices shown above.

STATEMENT OF ACCOUNT
Original Contract Price
Previous Change Orders
Total to date
$ 222,090.41
$107,170.16
$329,260.57
$107,216.64 By reason of this proposed change, extension of time through January 31, 2024 will be allowed. This Change Order
Revised Contract Price
Date Approved:

By:

Date Accepted: $436,477.21
Contractor: Herc Rentals, Inc.

By:

Title: BRAD UNDERWOOD, Interim Director of Public Works DISTRIBUTION: Purchasing, City Clerk, Contractor, Construction Manager, Project Analyst, Project File NOTE: This change order is not effective until approved by the Director of Public Works.
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CITY OF SAN MATEO

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 23 Section Name: CONSENT CALENDAR Account Number: 72-4675 File ID: 23-7800 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: August 21, 2023
SUBJECT:

Marina Lagoon Fill Pump Overhaul – Change Order
RECOMMENDATION:

Approve Change Order No. 4 with Koffler Electrical Mechanical Apparatus Repair, Inc. dba KEMAR, to overhaul the Marina Lagoon fill pump for an amount of $13,845.78, for a revised total not-to-exceed amount of $556,050.14 and authorize the Public Works Director to execute the change order in substantially the form presented.

BACKGROUND:

The City manages water levels in the Marina Lagoon to optimize flood control, recreation, aesthetics, and ecological benefits. The City has five large diesel pumps that lower levels by pumping water to the San Francisco Bay (Bay). One electric pump is used to raise levels by pumping Bay water into the Marina Lagoon to maintain seasonal operating levels.

The pumps were installed in 1989. Due to their long service life and harsh operation conditions (such as submersion in salt water), the manufacturer recommends the City overhaul the pumps to avoid unanticipated failures. Due to the Marina Lagoon’s critical role in flood control for the City, these pumps need to be maintained in good working order.

The City previously repaired two of the diesel pumps and contracted with KEMAR to rehabilitate the remaining four pumps (three diesel pumps and the electric fill pump). However, unforeseen additional repairs on the last two diesel pumps resulted in increased costs.

On January 17, 2023, Council approved staff‘s request for Change Order No. 3 (CCO No. 3) to pay for the cost of the overhaul of the electric fill pump. Once the work was started, KEMAR found damages to the pump diffuser which was not quoted as part of the original proposal. The diffuser is an important element of the pump that reduces water velocity leaving the impeller thus increasing the discharge pressure. The diffuser required welding on multiple cracks and rebalancing. Due to these unforeseen costs, additional funds are now needed to complete the overhaul of the final pump. In order to provide enough funding for this work, staff recommends approving a contract change order for $13,845.78.

BUDGET IMPACT:

Sufficient funding for contract change order (CCO) No. 4 is included in the Storm Sewer Maintenance operating budget.

ENVIRONMENTAL DETERMINATION:

This pump overhaul contract is categorically exempt from CEQA as an “existing facility,” because it consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use. (CEQA Guidelines Section 15301.)
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CITY OF SAN MATEO

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 - Change Order No. 4

STAFF CONTACT
Tony Baltodano, Field Maintenance Manager
[email protected]
6505227359
Matt Fabry, Deputy Director
[email protected]
650 522 7309
461 of 653
Q:\pw\Field Maintenance\ADMINISTRATION\POARS\Sewer\2024\Koffler\23_24 Koffler PUMP OVERHAUL\Koffler Marina Lagoon fill pump overhaul Change Order #4.doc

CITY OF SAN MATEO

PUBLIC WORKS DEPARTMENT
330 WEST 20TH AVENUE
SAN MATEO, CA 94403
(650) 522-7300 CONTRACT CHANGE ORDER
PROJECT: MARINA LAGOON FILL PUMP
TO: Koffler Electrical Mechanical Apparatus Repair, Inc., dba Kemar CONTRACT CHANGE ORDER NO. 4 Page 1 of 1
PO/SCON No. PO-0000448 Date
Fund 720
Cost Center Sewer
Spend Category Other Contractual Services
You are hereby directed to make the herein described changes from the plans and specifications or do the following described work not included in the plans and specifications on your contract.

DESCRIPTION OF WORK

DESCRIPTION OF WORK
There is one 200hp Patterson pump to be rebuilt at a cost of $158,980.05. Following is a description of work to be done, estimate of quantities, and prices to be paid.

Extra work needed for replacement of one of the Marina Lagoon Pumps:
• Manufactured complete new lube tube assembly ● Weld lube line guards • Welded suction bell support arms ● Welded multiple suction cracks inside suction bell housing • Drill out 12 mounting holes in 3” thick plate
• Rebuild of 200hp electric motor
• Welded multiple cracks on the diffuser
Total cost of change not to exceed: $13,845.78
We, the undersigned contractor, have given careful consideration to the change proposed and hereby agree, if this proposal is approved, that we will provide all equipment, furnish all materials, except as may otherwise be noted above, and perform all services necessary for the work above specified, and will accept as full payment therefore the prices shown above.

By reason of this proposed change, --- days extension of time will be allowed.

Date Accepted:

Contractor – Koffler Electrical Mechanical Apparatus Repair, Inc. dba KEMAR By:

Ren Anderson, VP, CFO
DISTRIBUTION: Purchasing, City Clerk, Contractor, Construction Manager, Project Analyst, Project File

08.21.2023
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STATEMENT OF ACCOUNT
Original Contract Price $ 466,400.00
Previous Change Orders $ 75,804.36
Total to date $ 542,204.36
This Change Order $ 13,845.78
Revised Contract Price $ 556,050.14
Date Approved:

By:

Brad Underwood, Acting Public Works Director
Date Approved:

By:

Alex Khojikian, City Manager
NOTE: This change order is not effective until approved by the Director of Public Works.
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CITY OF SAN MATEO

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 24 Section Name: CONSENT CALENDAR Account Number: 72-4674 File ID: 23-7803 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: August 21, 2023
SUBJECT:

Wastewater Treatment Plant Immediate Action Project, Package II – Appropriation and Contingency Increase RECOMMENDATION:

Adopt a Resolution to authorize an appropriation of funds in the amount of $1,250,000 from the Sewer Fund Reserves to the Wastewater Treatment Plant Immediate Action Projects, Package II Project (Project), revising the total project budget to a value of $14,346,372; approve a $210,000 increase to the contingency reserve associated with the Myers & Sons Construction, LLC construction contract for the Project; and authorize the Public Works Director to issue change orders within the contingency reserve amount.

BACKGROUND:

The Clean Water Program (CWP) includes significant infrastructure upgrades at the Wastewater Treatment Plant (WWTP).

The WWTP Immediate Action Projects, Package II Project (Project) includes scope to improve the aging solids handling systems at the WWTP, including improvements to the sludge cake pumping system and installation of a sludge cake storage hopper.

The Project budget accounts for construction contract costs, as well as engineering services, project management, and construction management services. The current available budget for the Project is $13,096,372, much of which has been spent or encumbered. The Project has experienced multiple challenges related to the design and construction of the solid handling process improvements, leading to construction delays that have resulted in additional construction, engineering, and management costs and services. As of July 2023, the Project is estimated to be complete by January 2024 with an estimated budget at completion of $14,346,372. To address the Project budget deficit, a budget appropriation of $1,250,000 from the Sewer Fund Reserves to the project account is recommended.

On January 7, 2019, City Council approved an agreement with Myers & Sons Construction, LLC (Myers) for construction of the Project in the amount of $6,340,000 with a contingency reserve of $634,000. The contingency reserve was established and utilized to address and mitigate unknowns that arose during construction. On June 6, 2022, City Council approved an increase of $300,000 to the contingency reserve associated with Myers construction contract, increasing the total contingency to $934,000. To date, approximately $830,000 of the contingency has been used to issue negotiated change orders to the Myers contract. An increase of $210,000 to the contingency reserve associated with the Myers construction contract is now requested because the remaining contingency balance is insufficient to address anticipated construction cost changes for completing base scope activities.

The Project continues to experience multiple challenges. This appropriation does not address any withheld or contested costs the City may negotiate with the contractor and/or design engineer. Another supplemental appropriation may be required at a future date.
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CITY OF SAN MATEO
BUDGET IMPACT:

There are sufficient funds available in the Sewer Fund Reserves for this appropriation to the WWTP Immediate Action Project, Package II Project (46T009).

The initial authorized agreement with Myers for construction was in the amount of $6,340,000. A contingency reserve of $934,000 was previously approved. A portion of the appropriated funds will be utilized to fund the additional $210,000 contingency amount associated with the Myers construction contract for the Project.

ENVIRONMENTAL DETERMINATION:

The work addressed by this administrative report is being undertaken to support the Clean Water Program. This project is subject to the requirements of the California Environmental Quality Act (CEQA), the general components of which are included as part of the Final Programmatic Environmental Impact Report (Final PEIR) (SCH No. 201532006) that was prepared for the Clean Water Program. The Final PEIR was certified by City Council on June 6, 2016.

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 - Proposed Resolution

STAFF CONTACT
Deryk Daquigan, Engineering Manager
[email protected]
(650) 522-7287
Matt Fabry, Deputy Director
[email protected]
(650) 522-7309
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CITY OF SAN MATEO
RESOLUTION NO. ____ 2023
AUTHORIZING AN APPROPRIATION OF $1,250,000 FROM THE SEWER FUND RESERVES TO THE WASTEWATER

TREATMENT PLANT IMMEDIATE ACTION PROJECT, PACKAGE II PROJECT WHEREAS, the Clean Water Program (CWP) includes significant infrastructure upgrades at the Wastewater Treatment Plant (WWTP); and
WHEREAS, the WWTP Immediate Action Projects, Package II Project (Project) includes scope to improve the aging solids handling systems at the WWTP, including improvements to the sludge cake pumping system and installation of a sludge cake storage hopper; and
WHEREAS, the Project budget accounts for construction contract costs and engineering services, project management, and construction management services; and
WHEREAS, the current Project budget is $13,096,372, much of which is spent or encumbered; and WHEREAS, the Project has experienced multiple challenges related to the design and construction of the solid handling process improvements, leading to construction delays that have resulted in additional construction, engineering, and management costs and services; and WHEREAS, as of July 24, 2023, the Project is estimated to be complete by January 2024 with an estimated budget at completion of $14,346,372; and
WHEREAS, to address the Project budget deficit, a budget appropriation of $1,250,000 from the Sewer Fund Reserves to the Project account is required; and
WHEREAS, this appropriation does not include any withheld or contested costs the City may negotiate with the contractor and/or design engineer.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN MATEO, CALIFORNIA, HEREBY RESOLVES that:

1. The Clean Water Program is subject to the requirements of the California Environmental Quality Act (CEQA), the general components of which are included as part of the Final Programmatic Environmental Impact Report (Final PEIR) (SCH No. 201532006) that was prepared for the Clean Water Program. The Final PEIR was certified by City Council on June 6, 2016.

2. An appropriation of $1,250,000 from Sewer Fund Reserves to the WWTP Immediate Action Projects, Package II (46T009) project, revising the total project budget to a value of $14,346,372, is authorized.
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CITY OF SAN MATEO

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 25 Section Name: CONSENT CALENDAR Account Number: 88-1712 File ID: 23-7821 TO: City Council
FROM: Prasanna W. Rasiah, City Attorney
PREPARED BY: City Attorney's Office
MEETING DATE: August 21, 2023
SUBJECT:

Comprehensive Liability Fund – Appropriation
RECOMMENDATION:

Adopt a Resolution to approve a supplemental budget appropriation of $1,000,000 of unassigned fund balance from the General Fund to increase transfers out from the General Fund to the Comprehensive Liability Fund to increase the budget for legal costs.

BACKGROUND:

The adopted budget for Fiscal Year (FY) 2023-24 includes $2,825,000 for the Comprehensive Liability Fund. This fund is used for insurance premiums, litigation expenses, claims management and payments, and other legal and professional services. The largest single component of this fund are insurance premiums, which have dramatically increased of late.

However, the City has also seen significant increases in litigation costs, which have been primarily driven by substantial demands from plaintiffs. These in turn are influenced by large jury verdicts that can discourage low dollar value settlements and, in some cases, drive up litigation costs. This situation is not unique to San Mateo, as local jurisdictions around the state are experiencing the same legal and financial pressures. Thus, in order to appropriately plan for such expenses, staff recommends an appropriation of $1,000,000 of unassigned fund balance from the General Fund to increase transfers out to the Comprehensive Liability Fund. Staff will monitor whether such an increase will be needed for Fiscal Year 2024-25 as it manages legal expenses for the remainder of this fiscal year.

BUDGET IMPACT:

An appropriation of $1,000,000 of unassigned fund balance from the General Fund (Fund 100) to increase transfers out to the Comprehensive Liability Fund (Fund 880) will result in a new balance in Fund 880 of $3,825,000 for Fiscal Year 2023-24.

There is sufficient unassigned fund balance in the General Fund for this appropriation.

ENVIRONMENTAL DETERMINATION:

This resolution is not a project subject to CEQA, because it is an organizational or administrative activity that will not result in direct or indirect physical changes in the environment. (CEQA Guidelines Section 15378(b)(5).)

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 - Proposed Resolution
467 of 653

CITY OF SAN MATEO

STAFF CONTACT
Prasanna W. Rasiah, City Attorney
[email protected]
(650) 522-7020
468 of 653

CITY OF SAN MATEO
RESOLUTION NO. ____ (2023)
AUTHORIZE A SUPPLEMENTAL BUDGET APPROPRIATION OF $1,000,000 OF UNASSIGNED FUND BALANCE

FROM THE GENERAL FUND TO INCREASE TRANSFERS OUT TO THE COMPREHENSIVE LIABILITY FUND TO

INCREASE THE BUDGET FOR LEGAL COSTS
WHEREAS, an increase to the Comprehensive Liability Fund (Fund 880) is necessary in order to adjust for a significant rise in legal expenses, which includes litigation costs, professional services, and claims; and WHEREAS, an appropriation of $1,000,000 of unassigned fund balance from the General Fund to increase transfers out to the Comprehensive Liability Fund is necessary to appropriately plan for legal expenses over the remainder of Fiscal Year 2023-24.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN MATEO, CALIFORNIA, HEREBY RESOLVES that:

1. This resolution is not a project subject to CEQA, because it is an organizational or administrative activity that will not result in direct or indirect physical changes in the environment. (CEQA Guidelines Section 15378(b)(5).).

2. The Council authorizes the supplemental budget appropriation of $1,000,000 from unassigned fund balance from the General Fund to increase transfers out to the Comprehensive Liability Fund (#880) to increase the budget for legal costs.
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CITY OF SAN MATEO

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 26 Section Name: CONSENT CALENDAR Account Number: 10-2021 File ID: 23-7817 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Finance Department
MEETING DATE: August 21, 2023
SUBJECT:

Community Facilities District No. 2008-1 (Bay Meadows) Annual Appropriations Limit for Fiscal Year 2023-24 – Approval RECOMMENDATION:

Adopt a Resolution to approve the annual appropriations limit for fiscal year 2023-24 for Community Facilities District No. 2008-1 (Bay Meadows).

BACKGROUND:

The City Council established Community Facilities District (CFD) No. 2008-1 (Bay Meadows) in August 2008 pursuant to the Mello-Roos Community Facilities Act for the sole purpose of financing facilities and services. California Government Code Section 7910(a) requires the governing body of each local jurisdiction to establish the appropriations limit, which was set at $10,000,000 for fiscal year 2008-09 as a part of the CFD formation resolution.

The Mello-Roos Act also provides for annual adjustment of the appropriations limit by changes in per capita income for the State of California and changes in population, the latter of which the City's change in population has been used for the calculation. Due to administrative oversight, the annual update of the appropriations limit has not occurred since formation of the CFD in 2008. However, the appropriations limit was set at a level in 2008-09 that avoids any appropriation limit issues. Moving forward, the CFD appropriations limit will be added as a separate resolution to the City's budget process. Establishment of the appropriations limit does not require a public hearing.

As reflected in the table below, the Bay Meadows CFD is well under the 2023-24 appropriation limit of $18,591,223, the calculation of which is provided in Exhibit A to the proposed resolution, included as Attachment 1:

Description Amount
Appropriation Limit for 2023-24 $18,591,223
Total Revenues $4,941,385
Less Debt Service Appropriations $4,839,838
Appropriations Subject to Limit $101,547
Amount Under / (Over) Limit $18,489,675
BUDGET IMPACT:

Approval of the Bay Meadows CFD appropriations limit does not have any budgetary impact. The Bay Meadows CFD Fund is a fiduciary fund, as the City serves in a fiduciary capacity for Bay Meadows CFD's assets. 470 of 653

CITY OF SAN MATEO
ENVIRONMENTAL DETERMINATION:

This appropriations limit is not a project subject to CEQA, because it is an organizational or administrative activity that will not result in direct or indirect physical changes in the environment. (CEQA Guidelines Section 15378(b)(5).)

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 - Proposed Resolution

STAFF CONTACT
Rich Lee, Director, Finance
[email protected]
(650) 522-7102
471 of 653

CITY OF SAN MATEO
RESOLUTION NO. ____ (2023)
RESOLUTION APPROVING THE ANNUAL APPROPRIATIONS LIMIT FOR FISCAL YEAR 2023-24 FOR COMMUNITY FACILITIES DISTRICT NO. 2008-1 (BAY MEADOWS),

CITY OF SAN MATEO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA WHEREAS, under Article XIIIB of the Constitution of the State of California, the total annual appropriations subject to limitation of an entity of local government may not exceed the appropriations limit of the local government entity for the prior year adjusted for the change in the cost of living and the change in population, except as otherwise provided; and WHEREAS, Article XIIIB defines local government as any city, county, city and county, school district, special district, authority, or other political subdivision of or within the State; and WHEREAS, the Mello-Roos Community Facilities Act of 1982, as amended (the “Mello-Roos Act”) provides for the establishment of legally constituted governmental entities known as community facilities districts for the sole purpose of financing facilities and services; and WHEREAS, the Mello-Roos Act provides for the establishment of an appropriations limit for community facilities districts; and
WHEREAS, this City Council has established Community Facilities District No. 2008-1 (Bay Meadows), City of San Mateo, County of San Mateo, State of California (the “CFD”) pursuant to Resolution No. 85 (2008), adopted by the City Council on August 11, 2008; and WHEREAS, at a special, mailed-ballot election held on August 11, 2008, the qualified electors of the CFD approved an appropriations limit for the CFD, subject to adjustment as provided in Article XIIIB of the Constitution; and
WHEREAS, California Government Code Section 7910(a) provides that each year the governing body of each local jurisdiction shall, by resolution, establish its appropriations limit and make other necessary determinations for the following fiscal year pursuant to Article XIII B of the California Constitution at a regularly scheduled meeting or noticed special meeting; and WHEREAS, the Mello-Roos Act provides for adjustment of the appropriations limit for changes in the per capita personal income in the State of California and changes in population, as defined by subdivisions (b) and (c) of California Government Code Section 7901, except that the change in population may be estimated by the legislative body in the absence of an estimate by the Department of Finance, and in accordance with Section 1 of Article XIII B of the California Constitution, and, for purposes of adjusting for changes in population, the population of the community facilities shall be deemed to be at least one person during each calendar year; and 472 of 653
WHEREAS, the calculation of the appropriation limit of the CFD for fiscal year 2023-24 is set forth in Exhibit A, and has been made available to the general public for fifteen days prior to the date of adoption of this resolution.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN MATEO, CALIFORNIA HEREBY FINDS AND RESOLVES that:

Section 1: The City Council, by recorded vote adopting this resolution, hereby determines and chooses that, with regard to fiscal year 2023-24 and the calculations specified herein for such fiscal year, the term “change in population” for purposes of Article XIII B of the Constitution of the State of California and Division 9 of Article 1 of the Government Code of the State of California shall mean the change in population within the City of San Mateo.

Section 2. The City Council, by a recorded vote, hereby establishes the appropriations limit of the CFD for fiscal year 2023-24 as set forth in Exhibit A, and hereby finds that the City Council has complied with the provisions of Article XIIIB and other applicable provisions of law.

Section 3. The City Council hereby finds that the adoption of this resolution does not constitute a project under the California Environmental Quality Act because it is an organizational or administrative activity that will not result in direct or indirect physical changes in the environment, and therefore, no environmental assessment is necessary. (CEQA Guidelines Section 15378(b)(5).) Section 4. Pursuant to California Government Code Section 7910, a judicial action or proceeding to attack, review, set aside, void, or annul the action of the City Council to establish the appropriations limit for fiscal year 2023-24 shall be commenced within 45 days of the effective date of the resolution.

Section 5. This resolution shall take effect from and after its adoption 473 of 653
Community Facilities District 2008-1 (Bay M eadows)
Exhibit A - Appropriation Limit Calculation
For the fiscal year 2023-24
(b) (d)
(a) Percentage Percentage (k) (l)
Appropriation Beginning Change in Change in Appropriation Ending Limit Appropriation Per Capita City Change Appropriation Year Limit Personal Income Population Factor Limit 2023-2024 17,858,010 4.44% -0.32% 1.0410579 18,591,223
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CITY OF SAN MATEO

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 27 Section Name: CONSENT CALENDAR Account Number: 10-4679 File ID: 23-7833 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: August 21, 2023
SUBJECT:

Marina Lagoon Pump Station – Appropriation and Agreement RECOMMENDATION:

Adopt a Resolution to authorize an appropriation in the amount of $500,000 from the General Fund unassigned fund balance to the Public Works Department operating budget for critical improvements at the Marina Lagoon Pump Station to ensure the station is prepared for the upcoming rain season; adopt a Resolution to approve an alternative purchasing procedure and approve an agreement with Cummins Inc. for maintenance on the diesel engines at the Marina Lagoon Pump Station in an amount not to exceed $303,562.87; establish a $30,000 contingency reserve; and authorize the Public Works Director to execute the agreement in substantially the form presented and issue change orders within the contingency amount.

BACKGROUND:

The Marina Lagoon Pump Station controls the levels of the Marina Lagoon, which is a critical flood control facility receiving stormwater drainage from approximately two-thirds of the City of San Mateo. The pump station has five discharge pumps, each able to pump 150,000 gallons per minute, that are programmed to keep lagoon levels at specified seasonal set points. Each pump is powered by a 550-horsepower diesel engine. The pumps and engines are original to the station, which was constructed in the late 1980s.

During the December 31, 2022 storm, multiple engines failed, preventing the pump station from keeping up with incoming flows. Backup engines and associated pumps, which should have started when other engines failed, did not start. Critical alarms alerting staff to the engine failures did not call out. The transducer that measures water levels at the lagoon was ultimately submerged, leading to inaccurate lagoon level readings.

Staff has been performing a detailed investigation of why these problems happened during the storm on New Year’s Eve.

Cummins Inc., the diesel engine manufacturer, has performed multiple assessments of the engines and recommended maintenance for the five diesel engines. The recommended maintenance on the engines will cost approximately $303,562.87. In addition, the City’s consultant for system alarms of pump stations identified critical wiring and programming needs to ensure engine failure alarms are initiated and immediately call for backup engines/pumps. The ultrasonic transducer that measures the lagoon water level needs to be raised to ensure accurate readings. Alarm programming improvements are needed to ensure all critical alarms are logged and called out to field staff. Staff anticipates these improvements will cost up to an additional $200,000 but be implemented by multiple contractors at cost thresholds expected to be within the City Manager’s contracting authority.

San Mateo Municipal Code Section 3.60.070(h)(3) authorizes procurement without competitive bidding upon a finding by the City Council that the alternative purchasing procedure is in the best interest of the City. As the manufacturer of the diesel engine pumps at the Marina Lagoon Pump Station, Cummins Inc. has already performed multiple assessments of the 475 of 653

CITY OF SAN MATEO
engines, has the expertise to perform necessary maintenance for its engines, and is the only available vendor to source materials and perform the maintenance within the requisite time frame. Therefore, staff recommends for the City Council to adopt a resolution to approve an alternative purchasing procedure and to approve an agreement with Cummins Inc. for engine repairs in the amount of $303,562.97.

There are insufficient funds in the Field Maintenance Division’s 2023-24 operating budget for storm system maintenance to cover the above described costs. Accordingly, staff also recommends for the Council to appropriate $500,000 of unassigned fund balance from the General Fund to cover the cumulative cost of these improvements.

BUDGET IMPACT:

The proposed resolution would authorize appropriating $500,000 of unassigned fund balance from the General Fund to the Public Works Department Storm and Flood Control program operating budget. If approved, this appropriation will provide funding for the agreement as well as additional anticipated improvements needed.

ENVIRONMENTAL DETERMINATION:

This City Council action is categorically exempt from CEQA as an “existing facility,” because it consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use. (CEQA Guidelines Section 15301.)

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 – Proposed Resolution (Budget Appropriation)
Att 2 – Proposed Resolution (Alternative Purchasing Procedure) Att 3 – Agreement

STAFF CONTACT
Matt Fabry, Deputy Director
[email protected]
(650) 522-7309
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CITY OF SAN MATEO
RESOLUTION NO. ____ 2023
AUTHORIZING A BUDGET APPROPRIATION OF $500,000 FROM THE CITY’S UNASSIGNED GENERAL FUND

BALANCE TO THE PUBLIC WORKS DEPARTMENT OPERATING BUDGET FOR MARINA LAGOON PUMP STATION

IMPROVEMENTS
WHEREAS, the Marina Lagoon Pump Station controls water levels in the Marina Lagoon, a critical flood control facility where approximately two-thirds of the City of San Mateo drains during storm events; and WHEREAS, critical maintenance is needed on the five diesel engines that power the Marina Lagoon Pump Station discharge pumps to ensure the station is prepared for the upcoming rainy season; and WHEREAS, critical wiring, programming, and alarm updates are needed at the Marina Lagoon Pump station to ensure the station is prepared for the upcoming rainy season; and WHEREAS, there is insufficient budget within the Storm and Flood Control program for Fiscal Year 2023-24 to implement these critical improvements; and
WHEREAS, to address the Marina Lagoon Pump Station needs, a budget appropriation of $500,000 of unassigned fund balance from the General Fund is required.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN MATEO, CALIFORNIA, HEREBY RESOLVES that:

1. This City Council action is categorically exempt from CEQA as an “existing facility,” because it consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use. (CEQA Guidelines Section 15301).

2. An appropriation of $500,000 from unassigned fund balance in the General Fund to the Public Works Department operating budget for the Storm and Flood Control program for Fiscal Year 2023- 24, is authorized.
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CITY OF SAN MATEO
RESOLUTION NO. (2023)
APPROVING AN ALTERNATIVE PURCHASING PROCEDURE FOR AN AGREEMENT WITH CUMMINS, INC.

FOR MAINTENANCE ON FIVE DIESEL ENGINES AT THE MARINA LAGOON PUMP STATION WHEREAS, the Marina Lagoon Pump Station controls water levels in the Marina Lagoon, a critical flood control facility where approximately two-thirds of the City of San Mateo drains during storm events; and WHEREAS, critical maintenance is needed on the five diesel engines that power the Marina Lagoon Pump Station discharge pumps to ensure the station is prepared for the upcoming rainy season; and WHEREAS, San Mateo Municipal Code Section 3.60.070(h)(3) provides that the City may use an alternative purchasing procedure approved by the City Council if the Council makes a finding concurrent with the award that the procedures are in the best interest of the City; and WHEREAS, the five diesel engines were manufactured by Cummins, Inc. (Cummins) and are over 35 years old; and
WHEREAS, Cummins has performed multiple assessments of the five diesel engines and recommends maintenance to the engines; and
WHEREAS, Cummins is the most appropriate entity to perform the critical maintenance due to their knowledge of the engines and ability to secure the necessary parts and do the work in the necessary timeframe; and
WHEREAS, based on the above, City staff recommends approval of an agreement with Cummins, Inc. to perform necessary maintenance to the five diesel engines located at the Marina Lagoon Pump Station.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN MATEO, CALIFORNIA, HEREBY RESOLVES that:

1. This City Council action is categorically exempt from CEQA as an “existing facility,” because it consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use. (CEQA Guidelines Section 15301).

2. Pursuant to Municipal Code Section 3.60.070(h)(3), it is found that approval of the agreement with Cummins, Inc. to maintain the diesel engines at the Marina Lagoon Pump Station is in the City’s best interest because:
a. Cummins is the original manufacturer of the engines; and b. Cummins has performed multiple assessments of the five diesel engines and determined required maintenance actions; and
c. The age of the engines makes it difficult to secure parts for repairs outside of Cummins; and 478 of 653
d. Staff has been unable to find other vendors able to perform the maintenance on these engines; and
e. The need to have the engines maintained prior to the coming rainy season does not allow time to secure an alternate vendor.

3. The agreement with Cummins, Inc. in the amount of $303,562.87 is hereby approved.

4. A contingency reserve of $30,000 is established for this work.

5. The Public Works Director is authorized to execute the agreement in substantially the form presented and issue change orders within the contingency reserve amount. 479 of 653
Signing In Process
Contract for Services Page 1 of 10
Rev 12/22

AGREEMENT WITH CUMMINS INC

FOR SERVICES TO

MARINA LAGOON CUMMINS DIESEL ENGINES
This Agreement, made and entered into this day of____________________, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California ("CITY"), and CUMMINS INC., a corporation ("CONTRACTOR"), whose address is 14775 Wicks Boulevard, San Leandro, California 94577.

RECITALS:

A. CITY desires certain services hereinafter described.

B. CITY desires to engage CONTRACTOR to provide these services by reason of its qualifications and experience for performing such services and CONTRACTOR has offered to provide the required services on the terms and in the manner set forth herein.

NOW, THEREFORE, IT IS AGREED as follows:

SECTION 1 - SCOPE OF SERVICES
.

The scope of services to be performed by CONTRACTOR under this Agreement is as described in Exhibit A to this Agreement, which is attached and incorporated by reference.

SECTION 2 - DUTIES OF CONTRACTOR
CONTRACTOR shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONTRACTOR under this Agreement. CONTRACTOR shall, without additional compensation, correct or revise any errors or deficiencies in its work.

CONTRACTOR represents that it is qualified to furnish the services described under this Agreement.

CONTRACTOR shall be responsible for employing or engaging all persons necessary to perform the services of CONTRACTOR.

CONTRACTOR agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.

SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.

CITY shall examine documents submitted by CONTRACTOR and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONTRACTOR'S work.

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SECTION 4 - TERM
The services to be performed under this Agreement shall commence on September 17, 2023 and be completed on October 31, 2023.

SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONTRACTOR a fee in an amount of $303,562.87, pursuant to rates stated in Exhibit B, attached and incorporated by reference.

SECTION 6 - TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon ten (10) days' written notice to CONTRACTOR. CONTRACTOR agrees to cease all work under this Agreement upon receipt of said written notice.

SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONTRACTOR in the performance of this Agreement are and shall be the property of CITY, whether the project for which they are made is executed or not.

SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONTRACTOR in connection with the performance of this Agreement are confidential until released by CITY to the public. CONTRACTOR shall not make any such documents or information available to any individual or organization not employed by CONTRACTOR or CITY without the written consent of CITY before any such release.

SECTION 9 - INTEREST OF CONTRACTOR
CONTRACTOR covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.

SECTION 10 - CONTRACTOR'S STATUS
It is expressly agreed that in the performance of the services required under this Agreement, CONTRACTOR shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONTRACTOR an agent or employee of CITY while providing services under this Agreement.

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SECTION 11 - INDEMNITY
CONTRACTOR agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONTRACTOR’s performance of this Agreement, except for those claims arising out of CITY’s sole negligence or willful misconduct. CONTRACTOR agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONTRACTOR’S duty to indemnify shall survive expiration or early termination of this Agreement.

SECTION 12 - INSURANCE
Contractor shall procure and maintain for the duration of the contract the insurance specified in Exhibit C to this Agreement.

SECTION 13 - NONASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONTRACTOR and cannot be transferred, assigned, or subcontracted by CONTRACTOR without the prior written consent of CITY.

SECTION 14 - RELIANCE UPON SKILL OF CONTRACTOR
It is mutually understood and agreed by and between the parties hereto that CONTRACTOR is skilled in the performance of the work agreed to be done under this Agreement and that CITY relies upon the skill of CONTRACTOR to do and perform the work in the most skillful manner, and CONTRACTOR agrees to thus perform the work. The acceptance of CONTRACTOR's work by CITY does not operate as a release of CONTRACTOR from said obligation.

SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.

SECTION 16 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It DocuSign Envelope ID: 46BFF947-BC7F-49A4-B5D1-B4E9D6F3F671 482 of 653
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is the intent of this provision that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.

SECTION 17 - NON-DISCRIMINATION
CONTRACTOR warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONTRACTOR nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.

SECTION 18 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.

The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.

SECTION 19 - LITIGATION
CONTRACTOR shall testify at CITY's request if litigation is brought against CITY in connection with CONTRACTOR's services under this Agreement. Unless the action is brought by CONTRACTOR, or is based upon CONTRACTOR's wrongdoing, CITY shall compensate CONTRACTOR for preparation for testimony, testimony, and travel at CONTRACTOR's standard hourly rates at the time of actual testimony.

SECTION 20 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:

To CITY: Matt Fabry
Deputy Public Works Director
1949 Pacific Boulevard
San Mateo, CA 94403
To CONTRACTOR: Cummins Inc.

Attn: Lanre Ige
14775 Wicks Boulevard
San Leandro, CA 94577
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SECTION 21 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, and agreements, either written or oral.

This document may be amended only by written instrument, signed by both CITY and CONTRACTOR.

SECTION 22 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, CITY OF SAN MATEO and CUMMINS, INC. have executed this Agreement the day and year first above written.

CITY OF SAN MATEO CONTRACTOR
Brad B. Underwood
Public Works Director
Date Lanre Ige
President
If a Corporation, can be either 1)
President or 2) Vice President plus
an additional corporate officer
(i.e., Secretary, Treasurer) who
shall sign below.

Date

APPROVED AS TO FORM
Linh Nguyen
Assistant City Attorney
Date
Attachments:

Exhibit A: Scope of Services
Exhibit B: Payment Rates
Exhibit C: Insurance Requirements
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EXHIBIT A

SCOPE OF SERVICES
CUMMINS INC. THE DIESEL ENGINE MANUFACTURER, HAS PERFORMED MULTIPLE ASSESSMENTS OF THE MARINA LAGOON DIESEL ENGINES. PER CUMMINS RECOMMENDATION, THE SCOPE OF WORK FOR EACH ENGINE WILL VARY BASED ON THE QUOTES ON EXHIBIT B.

PARTS REPLACEMENT MAY INCLUDE:
 HOSES
 FUEL INJECTORS
 GASKETS
 SENSORS
 ADJUSTING OVER HEADS
 DRAFT TUBES
 HARNESS WIRING
 ORINGS

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EXHIBIT B

PAYMENT RATES
Engine #1:

Serial #37110084
Quote #42419- $57,574.26
Engine #2:

Serial #37110068
Quote #42423- $54,983.74
Engine #3:

Serial #37110085
Quote #42425- $56,782.17
Engine #4:

Serial #37110087
Quote #42426- $55,069.47
Engine #5:

Serial #37110086
Quote #42428- $50,044.04
Additional Shelf Stock Parts:

Quote #135602- $29,109.19
Total- $303,562.87
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EXHIBIT C

INSURANCE REQUIREMENTS

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

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

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

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

If the contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the contractor.

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

Additional Insured Status
The City, its elected and appointed officials, employees, and agents are to be covered as additional insureds to the extent of contractor’s indemnification obligations herein on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Contractor; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).

Primary Coverage
To the extent of contractor’s indemnification obligations, for any claims related to this contract, the Contractor’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or self-insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the Contractor’s insurance and shall not contribute with it.

Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days’ prior written notice (10 days for non-payment) has been given to the contractor, who agrees to promptly relay any such notice received to the City.

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Waiver of Subrogation
Contractor hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Waiver of subrogation does not apply to loss caused by the gross negligence or willful misconduct of the City.

Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to the City.

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

Verification of Coverage
Contractor shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them.

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CITY OF SAN MATEO

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 28 Section Name: NEW BUSINESS Account Number: 10-4679 File ID: 23-7832 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: August 21, 2023
SUBJECT:

New Year's Eve Storm - Status Report and Staff Direction RECOMMENDATION:

Receive a report on the 2022 New Year's Eve storm and provide staff direction on priorities for future storm preparation activities.

BACKGROUND:

The City of San Mateo experienced a major storm event on December 31, 2022 (New Year’s Eve, and hereafter referred to as the “NYE Storm”) and continued to receive significant precipitation as the California coast was impacted by a series of atmospheric rivers that carried significant tropical moisture from over the Pacific Ocean. The California coast was hit by 31 atmospheric rivers between October and March, with six major storms impacting the Bay Area between December 26, 2022 and January 17, 2023. The NYE Storm brought over four and a half inches of rain to parts of the City of San Mateo within 12 hours, and over five inches in the course of 24 hours. For perspective, the typical annual rainfall for the City of San Mateo is 22 inches, meaning nearly a quarter of the City’s annual rainfall fell on New Year’s Eve.

Significant flooding occurred throughout the City of San Mateo during the NYE Storm. Few areas were spared, with flooding occurring in all of the City’s watersheds. Citizen groups have identified at least 40 streets that experienced flooding. Notable examples include San Mateo Creek overtopped its banks in multiple locations, flooding businesses on North B Street and residences along Arroyo Court; Leslie Creek, also referred to as the 16th Avenue Channel, overtopped its banks and flooded homes in the Sunnybrae neighborhood; Borel Creek, or the 19th Avenue Channel, overtopped its banks and flooded the City’s Corporation Yard; Laurel Creek flooded in numerous locations, impacting neighborhoods in the San Mateo Village and upstream near Laurelwood Park; the Marina Lagoon rose above flood stage, flooding properties on the shoreline; Shoreview, Parkside, and Fiesta Gardens neighborhood areas flooded; and, the 42nd Avenue undercrossing flooded, with the intersection with El Camino Real and Pacific Boulevard closed to traffic – unfortunately, one car that drove through barricades required an underwater rescue by the San Mateo Police Department, and tragically resulted in a fatality. The City’s sanitary sewer system was overwhelmed with rainwater infiltration, causing diluted wastewater to spill into the streets in numerous areas throughout the City, exacerbating flooding and worsening the health and safety concerns of affected residents.

The Storm Drain System
To better understand why the City’s storm drain system was overwhelmed during the NYE Storm, it is important to understand what comprises the storm drain system, what conveyance capacity it provides, and how the runoff generated during the NYE storm compared. When it rains, runoff in the City of San Mateo is ultimately conveyed through the storm drain system to San Francisco Bay. The storm drain system includes multiple conveyance mechanisms:
• Roadways and gutters – Runoff from properties and roadways is initially carried within the concrete gutter against the curb along the side of a roadway. Along some roadways, a swale or ditch may serve as the gutter. 490 of 653

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• Storm drain inlets – water flowing in the gutter or ditch ultimately drains into an opening, often at least partially grated, that connects to a catch basin and the subsurface storm drain system. • Catch basins – storm drain inlets allow water to initially enter small subsurface boxes that serve two purposes:
catch and contain sediment and debris and route the water into underground pipes. Some catch basins are called “bubble-ups,” where one catch basin connects to another catch basin on the other side of a street via an underground pipe. Water flows from the gutter into one catch basin, under the street, and bubbles-up out of the other basin to continue flowing down the gutter on the other side of the street. Bubble-ups, by design, hold water, and are often confused by the public as clogged storm drains. • Manholes – these are vertical access points into the underground piping system for maintenance purposes as well as junction locations for the underground piping system • Storm Drain Pipes – Storm drain pipes (which are completely separate from the sanitary sewer pipes that carry wastewater from homes or businesses) run underground from catch basins to manholes and/or to the nearest surface water body – in San Mateo, these are creeks, hardened channels, or the Marina Lagoon. Pipes are designed to flow downhill by gravity, and the City has approximately 130 miles of storm drain pipelines. • Pump Stations – when a piping network can no longer convey flow downhill by gravity due to an underground restriction or when depths become too deep to efficiently manage runoff, pumps are used to lift water back “uphill” to an elevation at which water can continue flowing downhill by gravity. The City has nine storm drain pump stations of varying sizes.
• Creeks/Channels – San Mateo Creek and Laurel Creek represent natural creek drainages with improvements in various reaches to provide enhanced flow conveyance from more urbanized areas. The 16th and 19th Avenue Channels are excavated channels collecting local runoff for conveyance through fully urbanized areas to the Marina Lagoon.

Storm Drain Design
A storm drain system is typically designed to manage a certain size storm event that has a statistical likelihood of happening in any given year. Cumulatively, the desired “level of service” for the City’s system is generally a “100-year” storm event. A 100-year event is an event of a magnitude that statistically has a 1% chance of happening in any given year (one in 100 chance). Given the low percentage likelihood of 100-year events, storm drain systems, including the City’s, are typically designed to convey runoff from the 10-year event (10% likelihood in any year, or a one in 10 chance) within the pipes, with streets carrying the remaining volume for the 100-year event to the six-inch curb depth. This means that in a 100-year storm event, the streets are intended to flood up to the curb level, and then gradually drain as the pipes are able to convey the accumulated runoff.

The extent of flooding in particular areas of the City during the NYE Storm varied, with some areas experiencing relatively minor ponding around drain inlets in the street, some areas seeing entire streets full of water to the curb level as described above with water contained to the street, while other areas had water accumulating beyond the curb level into yards and driveways, and, in the worst cases, flooding into garages and people’s homes.

The cause of the flooding in each area likely varied as well. Areas with minor ponding may have been due to debris clogging a storm drain inlet or downstream pipe. Flooding that was contained within the streets is consistent with storm drain system design for extreme storm events, with the pipes carrying a portion of the volume and the rest contained in the roadway below the curb line. Due to the age of the City’s storm drain system, there are places with inadequate storm drain system capacity that likely contributed to flooding in other areas, such as where storm drain pipes may be undersized for a 10-year event, or where a culvert under a roadway (like Highway 101) or the railroad tracks is undersized and causes flow to back up in a creek or channel and spill over the banks. In some instances, City storm pump stations had equipment failures, such as what happened at the Marina Lagoon. Most notably, however, is that the flooding on New Year’s Eve was primarily the result of a storm that overwhelmed the capacity of the City’s storm drain system – as will be discussed further below, certain phases of the storm exceeded a 100-year event and ultimately the 12-hour storm duration exceeded a 300-year event (i.e., a one in 300 chance of happening in any given year). 491 of 653

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The New Year’s Eve Storm
Prior to New Year’s Eve, the National Weather Service was forecasting one to two inches of rain for San Mateo. Actual rainfall ended up being much more significant. Overall, the NYE Storm can generally be characterized as a “double-barrel” event, with a significant period of rainfall in the early morning hours, followed by a period of less rainfall in the late morning, and then a second, intense period of rain in the early afternoon, with rainfall generally ending by 6 PM. Rain on New Year’s Eve started falling lightly around midnight, with about 0.6 inch falling between midnight and 5 AM, at which time it started to rain much more heavily, with the two-hour rainfall equivalent to a 125-year storm event and the threehour rainfall a 115-year event. When looking at the same running time periods in the afternoon, the peaks were generally smaller than the morning rainfall peaks, but still significant. Overall, the running 12-hour total rainfall on New Year’s Eve peaked at 4.54 inches, equaling a 300-year storm event. Details can be found in the attached Schaaf & Wheeler report, which is further discussed below.

The Marina Lagoon
The Marina Lagoon serves a critical role in flood control for the City, with over two-thirds of the City draining to the Marina Lagoon, including the Leslie Creek/16th Avenue Channel, Borel Creek/19th Avenue Channel, and Laurel Creek watersheds, as well as areas adjacent to and east of the Marina Lagoon that drain directly to the Marina Lagoon. The only way for water to leave the Marina Lagoon is through the Marina Lagoon Pump Station, located at the northern end of the Marina Lagoon. During the NYE Storm, the Marina Lagoon rose above flood stage, flooding some homes, damaging docks, and impacting drainage in neighborhoods near the Marina Lagoon.

Station Design and Base Flood Elevation
In order to understand the larger context of what happened at the Marina Lagoon Pump Station on New Year’s Eve, it helps to understand the history of the design of the station, how the pumps were intended to operate, and what the Marina Lagoon’s flood elevation is. The Marina Lagoon Pump Station was designed and built in the mid to late-1980s. The design called for the pump station to keep water levels in the Marina Lagoon between 95 and 98 feet (City of San Mateo datum) during a 100-year storm event. To achieve this, 600,000 gallons per minute (gpm) of pumping capacity was needed, which was achieved through four 150,000 gpm pumps. For redundancy, a fifth identical pump was installed. Each of these pumps is powered by a separate 550-horsepower diesel engine.

Over the ensuing decades, updated Marina Lagoon modeling resulted in the Federal Emergency Management Administration (FEMA) mapping a base flood elevation (BFE) of three feet at the Marina Lagoon, based on rounding up a flood elevation of 2.6 feet (equivalent of 97.5 feet in the City of San Mateo datum). The FEMA BFE is used to establish flood zones and federal flood insurance mandates and is also what the City’s Building Department uses to determine the minimum finished floor elevation when permitting structures. Responding to community concerns regarding flood insurance requirements, the City worked with Schaaf & Wheeler on additional modeling and modifications to pump operational practices, leading FEMA to revise the BFE down to two feet, based on rounding down from a flood elevation of

2.4 feet (97.3 feet using City of San Mateo datum). The importance of this discussion is to highlight that the original pump station was designed to operate between 95 and 98 feet with four duty pumps and one standby pump. Now, in order to maintain the FEMA BFE of two feet, the station has to maintain Marina Lagoon levels between 95 and 97.3 feet, which requires all five pumps to manage a 100-year event. Meaning, there is less working volume within which to manage a 100- year event and no redundancy in terms of extra pumps.

Pump station operation is automated, with pumps set to run based on seasonal set points (the Marina Lagoon is kept two feet lower in the winter than summer to provide storm storage capacity) for Marina Lagoon levels that are monitored using an ultrasonic sensor. When levels in the Marina Lagoon rise to a specified elevation, the lead pump is called to run.

If levels continue to rise to the next set point, the first lag pump is called, and so on until all five pumps are running. As Marina Lagoon levels decrease, pumps are sequentially shut down. At the front of the pump station is a trash rack that helps prevent debris from potentially clogging the pumps – this rack has to be manually kept clean by City staff.

Pump Station Failures
Multiple pump station equipment failures occurred during the NYE Storm, resulting in the Marina Lagoon level reaching approximately 98.4 feet (higher than both the original design maximum Marina Lagoon level of 98 feet and the current 492 of 653

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FEMA BFE of 97.3 feet).
• During the intense rainfall in the first “barrel” of the double-barrel event, multiple pump engines failed. • In addition to engines failing (meaning the associated pump was not running), backup pumps were not immediately called to run after the engines failed.
• One engine (Engine 4) had mechanical problems all day long and did not run for the majority of the storm event. • Engine failure alarms for Engines 1, 2, and 5 were not logged in the City’s Supervisory Control and Data Acquisition, or SCADA system. None of the engine alarms were called out to City staff to alert them of the problems. The only Marina Lagoon alarm that was called out to staff that day was high lagoon level alarm at 5:30 am. • The ultrasonic sensor that measures Marina Lagoon levels and controls the pumps was only able to reliably read to approximately 97.2 feet before it maxed out and ultimately was submerged. • The trash rack was continuously impacted by debris carried into the Marina Lagoon from the storm flows, requiring ongoing cleaning by City staff to keep the rack from plugging and reducing flow to the pumps.

The City’s SCADA system monitors all of the 37 storm and sanitary sewer pump stations. Alarms are called out to three staff members on the City’s Pump Crew. Around 5 am on New Year’s Eve, SCADA alarms started being called out from pump stations all over the City, for high wet well levels, dry pit flooding, barscreen failures, utility power failure, etc.

When the high water level alarm was called out for the Marina Lagoon, it was not necessarily a red flag for the Pump Crew – all it meant was the Marina Lagoon level had reached the point at which two pumps would have been running and a third would soon be called. Without also receiving the engine failure alarms, staff were not aware of the critical situation at the Marina Lagoon. After addressing other storm drain infrastructure, Pump Crew staff went to the Marina Lagoon around 8 am on New Year’s Eve.

Once staff arrived at the station, they were able to correct multiple engine failures and by 9:10 am get four pumps running continuously until the early morning hours of January 1, but the challenges with Engine 4 continued all day long, with staff intermittently getting all five pumps running. However, the engine failures early in the morning resulting in multiple pumps not running when they should have, prevented the station from catching up and keeping the Marina Lagoon levels below flood stage. Schaaf & Wheeler’s modeling shows that Marina Lagoon levels peaked around 5-6 pm on New Year’s Eve at about 98.4 feet. The pumps continued running until 8:40 am on January 1 when the Marina Lagoon level was finally back to the normal winter set point of 94.9 feet.
3 rd Party Expert Analysis
The City retained Schaaf & Wheeler, a consultant that has worked with the City for decades on storm drainage issues and hydraulic modeling, to analyze what happened on New Year’s Eve, and specifically at the Marina Lagoon Pump Station.

Schaaf & Wheeler ultimately submitted two technical reports, one a Hydrologic and Hydraulic Study (H&H Study) focused on the New Year’s Eve storm and flooding impacts, and one a Pump Station Study focused on what transpired at the Marina Lagoon Pump Station.

Much of what is written above regarding the New Year’s Eve storm is detailed in the H&H Study. The report also details the modeling Schaaf & Wheeler performed to analyze the impacts of the storm on the Marina Lagoon and upstream watersheds, as well as the validation efforts to ensure model outputs matched what the community experienced based on submitted photos of flooding from New Year’s Eve. Finally, the report evaluates how the engine/pump failures at the Marina Lagoon Pump Station impacted water levels in the Marina Lagoon and upstream watersheds, and how those levels would have differed had the pump station functioned as intended. Key findings from the H&H Study include:
• The NYE Storm was significant, with the 12-hour intensity equivalent to a 300-year event, which exceeds the design storm for the Marina Lagoon Pump Station.
• The engine/pump failures early on and the ongoing failure throughout the day of Engine 4, prevented the Marina Lagoon level from being drawn down during the break between the rainfall peaks, and ultimately resulted in the Marina Lagoon level rising to a peak of 98.4 feet.
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• Modeling indicates that water elevations in the Marina Lagoon had little impact on flooding within the upstream watersheds, with creek/channel capacity being the primary driver for interior flooding. • Interior flooding from the 16th Avenue Channel/Leslie Creek just upstream of Highway 101 (Sunnybrae Neighborhood) and Laurel Creek just upstream of George Hall Elementary School (the Village) was due to local capacity deficiencies, not the elevated Marina Lagoon levels. • Engine failures at the Marina Lagoon Pump Station resulted in Marina Lagoon levels being approximately one foot higher than if all engines and pumps had operated as intended. Schaaf & Wheeler’s modeling indicates Marina Lagoon levels would have peaked at approximately 97.4 feet, instead of 98.4 feet. This is one tenth of a foot higher than the current BFE of 97.3 feet, but within the original pump station design parameter of keeping levels below 98 feet.
• Although the NYE Storm exceeded the design capacity of the Marina Lagoon Pump Station, the model results illustrate the importance of ensuring that the pump station can operate as intended to mitigate the impacts of such an extreme storm.

The Pump Station Study confirmed the above-described engine/pump failures, lack of backup pumps when engines/pumps failed, the lack of alarms being called out to City staff, and the inability to read Marina Lagoon levels above approximately

97.2 feet due to submergence of the level sensor. Key findings of the Pump Station Study include:
• The Marina Lagoon Pump Station is nearing the end of its useful life, with many of the mechanical systems more than 35 years old [Note: all five pumps have been recently refurbished, and three gear-box assemblies replaced] • The pump station includes five individual pump assemblies each consisting of a diesel engine driver, right-angle gear reduction box, and an axial flow pump. Each of these components comprise the pump system, and each is a potential point of failure within the system.
• The pump manufacturer (Patterson Pumps) stated the lowest permissible water level to ensure minimum submergence and thereby minimize potential for pump system damage is 95 feet (on City of San Mateo datum). • When debris clogs the trash rack outside the Marina Lagoon Pump Station, the pumps can draw water levels within the pump station to levels lower than the Marina Lagoon, potentially even below safe operating levels for the pump system.

Schaaf & Wheeler’s Pump Station Study provided short-term recommendations for improving the Marina Lagoon Pump Station’s operation and reliability, categorized as either maintenance/condition assessments or improvements. Most of these recommendations have already been implemented by City staff, are in progress, or are the subject of a separate Council item on this meeting’s agenda requesting a budget appropriation and contract approval for diesel engine maintenance and wiring, programming, and alarm improvements. The Pump Station Study also included long-term recommendations focused on developing a preferred operational strategy for the pump station, as well as addressing pump manufacturer concerns for pumping below 95 feet. City staff are still investigating and evaluating those recommendations.

Preparation for Future Storms
Since New Year’s Eve and the subsequent storms, staff has been evaluating high priority actions to prepare for future winter storms. The community has also raised flood-related concerns and recommended actions for staff and the Council to consider as part of efforts to improve flood preparedness. The following sections detail actions staff has already taken (Table 1), plan to take in next 3-6 months (Table 2), and could take in the next 6-18 months to prepare for future storm events (Table 3). For the latter two, if additional resources are needed for staff to be able to move forward, high level estimates are provided. This is consistent with community calls for the Council to consider authorizing “Rainy Day” emergency reserves to address flood preparedness and also recognizing that the City’s Community Flood and Storm Protection Initiative, if ultimately approved by property owners, would not start generating revenue until early 2025 as a fee that would appear on property tax rolls starting in 2024-25. 494 of 653

CITY OF SAN MATEO
Table 1: Actions Already Taken
Project/Task Funds Already Invested
Schaaf & Wheeler: Modeling and Pumps Station Assessment Support Hydrology & Hydraulics Study; Pump Station Study; Pump Rehabilitation Review Memorandum; Draft Scope of Work for Pump Station Intake Analysis; Cathodic Protection System Rehabilitation Memorandum; Diesel Engine Testing Scope Recommendations; Electrical Controls Testing Scope Recommendations; Review of Telstar Controls Testing Results; Presentations at multiple community meetings $ 75,000 Telstar: Wiring, Programming, and Controls Support
Analysis of pump station wiring, signals, and programming; Programming modifications to call replacement pumps $ 5,000
Koffler: Pump Repair/Rehabilitation Support
Vibration analyses of all five pumps on 2/10/23 and 4/27/23 $3,000 Cummins: Diesel Engine Support
Condition assessment of all five engines; Lab analysis of oil and coolant $ 30,000 Enterprise Automation: SCADA Alarm Support
Investigation into SCADA alarm conditions on NYE $ 8,000 Thunderbird Communications: Remote Telemetry Unit Support Investigation into pump station radio/SCADA communications $ 3,500 Koffler: Pump Repair/Rehabilitation Support
4000 Pacific Blvd Pump Station Pump Rehabilitation $ 21,000 Total $ 145,500
Table 2: Actions to be Implemented in Next 3-6 Months1
Project/Task
A Additional Marina Lagoon Pump Station pump vibration analysis at summer lagoon levels B Develop Marina Lagoon Alternatives Analysis for Pumping Below 95’ C Install debris rack at 4000 Pacific Boulevard Pump Station D Provide data on City’s website for Marina Lagoon levels and pumps running E Implement additional safety systems for trash rack cleaning at Marina Lagoon Pump Station F Develop an RFP to update the 2004 Storm Drain Master Plan and develop a prioritized implementation strategy G Inspect and clean all City-owned trash capture devices H Inspect and clean all City-owned trash racks
I
Inspect and clean all storm pump station wet wells
J Prepare traffic control/closures and stage materials for roads with known flooding concerns K Coordinate with Office of Emergency Services on wet weather planning and training L Work with community on Marina Lagoon Pump Station Standard Operating Procedures M Establish a Marina Lagoon Resident Flood Watch communication program N Coordinate improved public outreach and messaging on emergency preparations Notes:
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CITY OF SAN MATEO
Table 3: Activities That Could be Implemented in Next 3-18 Months with Additional Funding1 Funding Need
Project/Task
Est. Min.

Cost Est. Full Cost
1 Perform maintenance on all five diesel engines, upgrade wiring, programming, and alarms, and purchase a spare pump lubricator system at Marina Lagoon Pump Station (see separate August 21, 2023 Council agenda item requesting a budget appropriation and contract) 2 $ 500,000 $ 500,000
2 Deploy up to five (5) Sand Bag stations throughout the City for upcoming rainy season, with focus on areas with history of flooding, and coordinate with community volunteers for filling bags, monitoring stations 3 $ 30,000 $ 50,000 3 Inspect and clean all catch basins before rainy season and recurring cleaning at hot spots throughout rainy season 4 $ 350,000 $ 500,000
4 Localized lagoon maintenance dredging under existing permit 5 $ 1,200,000 $ 1,200,000 5 Localized, small-scale drainage improvements 6 $ 275,000 $ 1,050,000 6 Camera monitoring of priority creeks/trash racks 7 $ 150,000 $ 225,000 7 LiDAR aerial survey (Ground surface, creeks, & lagoon bathymetric) $ 600,000 $ 1,000,000 8 Storm Drain Master Plan update $ 450,000 $ 2,475,000
Model Update, Alternatives Analysis, Prioritization, Report $ - $ 500,000 Storm Drain Condition Assessment 8 $ 375,000 $ 1,850,000 Pump Station Condition Assessment 9 $ 75,000 $ 125,000
9 Marina Lagoon dredging: Design, environmental, & permitting $ 1,250,000 $ 1,475,000 Environmental study $ 300,000 $ 300,000
Permitting $ 200,000 $ 200,000
Design 10 $ 750,000 $ 975,000
Total $ 4,805,000 $ 8,475,000
Notes:
1 Items are generally ordered by priority or impact, with items at the top of the list being either higher priority or expected to have more immediate impact than items further down the list 2 Funding appropriation request is part of a separate 8/21 agenda item 3 Minimum cost for three (3) stations, maximum for five (5), and dependent upon how much sand is consumed 4 Minimum cost for cleaning all 5,845 catch basins once, maximum to clean priority locations throughout season 5 Assumes removal of 2,000 cubic yards of sediment from creek mouths, the maximum allowed by permit 6 Minimum cost assumes improvements at ten (10) priority locations, full at forty (40) locations 7 Minimum cost assumes camera installs at eight (8) priority locations, full at twelve (12) locations 8 Minimum cost for assessing 25% of storm drain system, full at 100% 9 Minimum cost accounts for four (4) critical pump stations sites 10 Minimum cost for design assumes progress up to 30% construction documents Staff will present an overview of the NYE Storm and associated impacts issues as well as more details on the above potential activities for Council feedback and direction, and Schaaf & Wheeler staff will present findings of their modeling.

Much of what is included above and will be provided in the presentation is intended to be responsive to concerns raised by the public, including the Flood-Safe San Mateo coalition’s written questions submitted to Council at the July 17 meeting.

Staff is requesting Council feedback and direction on: (1) are there additional storm preparation activities not listed in the above Tables that Council would like staff to investigate and/or implement, and; (2) of the listed activities that will require 496 of 653

CITY OF SAN MATEO
appropriation of additional funding in order to implement, what would Council like staff to further develop for future Council consideration or action. The items that require additional funding are numbered and ordered based on staff’s recommended priority, with the top items being the most critical or providing the greatest short-term benefit.

To assist Council in prioritizing a potential future funding appropriation, staff provides the following recommendation. The City’s budget shortfall projection recently improved when the State appropriated $1.9 million for the City’s Vehicle License Fund (VLF) shortfall – staff recommends this as an upper limit for an overall General Fund appropriation. The Council expressed interest in exploring options for appropriating Rainy-Day Reserve funds – staff recommends Council consider funds limited to $1.1 million from the Rainy-Day Reserve, for a total appropriation of $3 million.

This level of appropriation would generally allow staff to implement items 1 through 7 from Table 3 ($3.1 million). Note that Item 1 in Table 3 is the subject of a separate item on this same agenda that specifically requests $0.5 million for important upgrades to the Marina Lagoon Pump Station, staff’s highest priority for short-term implementation. Items 2 through 6 would allow staff to deploy three sand bag stations this rainy season, inspect and clean all catch basins prior to the rainy season, implement localized Lagoon dredging up to 2,000 cubic yards under the existing Army Corps of Engineers Permit, implement up to 10 high-priority localized drainage improvements, install up to eight cameras for monitoring key creek, trash rack, or pump station locations, and acquire new high-resolution surface elevation data (including within the Lagoon) that will directly support updating the Storm Drain Master Plan and designing a large-scale Marina Lagoon dredging project. Assuming Council direction to proceed with any of the recommended items from Table 3, staff would bring items back for Council consideration or consent as soon as feasible, likely in September, which would include refined cost estimates and scopes of action given the current high-level nature of the proposed actions.

BUDGET IMPACT:

There is no budget impact for providing direction on priorities for future storm preparation activities. Based on the direction provided, staff may come back to Council with future requests for which budget impacts will be clearly defined.

ENVIRONMENTAL DETERMINATION:

This status report is not a project subject to CEQA, because it is an organizational or administrative activity that will not result in direct or indirect physical changes in the environment. (CEQA Guidelines Section 15378(b)(5).)

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 – Schaaf & Wheeler Hydrologic and Hydraulic Study Att 2 – Schaaf & Wheeler Pump Station Study

STAFF CONTACT
Matt Fabry, Deputy Director
[email protected]
(650) 522-7309
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4699 Old Ironsides Drive, Suite 350
Santa Clara, CA 95054
(408) 246-4848
[email protected]

MEMORANDUM
DATE: March 14, 2023
TO: Azalea Mitch, PE and Matt Fabry, PE (City of San Mateo) FROM: Charles D. Anderson, PE and Justin R. Maynard, PE SUBJECT: Marina Lagoon Performance during New Years Eve 2022 Storm Introduction
The City of San Mateo retained Schaaf & Wheeler to perform an evaluation of Marina Lagoon Pump Station performance during the New Years Eve 2022-23 storm.

Marina Lagoon (Lagoon) is a mapped FEMA Special Flood Hazard Area (SFHA). The Lagoon is mapped as a Zone AE with a water surface elevation of 2 feet NAVD88 (96.9 feet on the City of San Mateo Datum, or CSM). This designation was assigned to the area as part of a Letter of Map Revision effective August 6, 2015. It is noted that the mapped BFE designation is rounded to the nearest foot. The calculated BFE is 2.4 feet NAVD (97.3 feet CSM).

The Lagoon is fed by three major open channel drainages – 16th Avenue Channel (Leslie Creek), 19th Avenue Channel (Borel Creek), and Laurel Creek to the south – as well as numerous smaller drainage areas served by closed conduit systems with outfalls directly to the Lagoon. The study location may be seen in Figure 1.

Figure 1. Study Area Overview
Marina Lagoon PS
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Methodology
This study is based on prior modeling performed for the 2004 City of San Mateo Storm Drain Master Plan (SDMP). The SDMP utilizes the Danish Hydraulic Institute (DHI) MIKE URBAN software with the MOUSE solver to model storm drain systems and overland flow throughout the City. The City SDMP model consists of three interrelated products:

1. MOUSE, which computes surface runoff and routes the runoff through the storm drain pipe network using a hydrodynamic pipe flow module;

2. MIKE FLOOD (MIKE 21), which is a two-dimensional (2-D) modeling module that connects the modeled ground surface to the one-dimensional pipe network and routes flows out of or into the storm drain system based on calculated hydraulic grades.

3. MIKE URBAN, an ArcMap based graphical user interface.

Recently, DHI began to phase out MIKE URBAN in favor of MIKE+, which streamlines the use of the three modules described above with improved model management.

Schaaf & Wheeler first imported existing MIKE URBAN models into MIKE+ software (three MU models were imported into a single MIKE+ model capable of modeling the entire Lagoon), then reviewed rainfall data and statistics to develop a calibrated hydrologic and hydraulic model of the entire Marina Lagoon drainage area and tributary pipe and open channel systems. A 2-D overland model has also been developed to evaluate potential flooding from pipe systems and channels.

Baseflow recession parameters have been calibrated to the USGS San Francisquito Creek at Stanford streamflow gage. These parameters were not included in the SDMP models. However, they are an important factor in evaluating the New Years Eve storm, given the depth and duration of rainfall that occurred.

Rainfall Data
Rainfall data has been provided by the City for three local gages including gage AU981 near Laurel Creek. Additional data has also been retrieved from CDEC for the Pulgas gage to evaluate a longer time period and acquire useful data for calibrating the hydrologic model to the USGS San Francisquito Creek stream gage at Stanford.

Data are available on a five-minute interval for the AU981 gage (shown in Figure 2). Pulgas gage data are available in hourly intervals (shown in Figure 3) from December 25, 2022 to January 24, 2023.
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Figure 2: AU981 Gage Rainfall Depth from 12/29/22 to 1/1/23 Figure 3: Pulgas Gage Rainfall Depth from 12/25/22 to 1/24/23 One important hydrologic consideration is antecedent moisture. By observing a longer record than the storm that may have been the direct cause of system surcharge and/or flooding, it is apparent that there was some rainfall in the days leading up to the storm that may have caused greater than average antecedent moisture conditions (AMC).

During the storm itself, a depth-duration-frequency analysis of the AU981 gage indicates the overall severity of the storm. Defining the return period of a storm is meaningless without context. In this case, durations of interest are not defined by very short bursts of rainfall.

Watershed lags are on the order of an hour or two, and based on SCADA information provided by the City the Lagoon water level rose through approximately a 12-hour period.

The pump station’s original design is documented as providing capacity for a 100-year inflow.

This inflow has historically been calculated using a statistically balanced event spanning 24 or 72 hours. Recorded rainfall events are not usually balanced like this, however, so it is important to evaluate the frequency of the storm at various durations. The AU981 precipitation depth data has been aggregated into running totals for various durations, by summing the previous hour for each 5-minute interval.
12/31/2022 13:22, 0.22
0 0.05

0.1 0.15

0.2 0.25
12/29 0:00 12/29 12:00 12/30 0:00 12/30 12:00 12/31 0:00 12/31 12:00 1/1 0:00 Depth (inch)
Au981 (5-min Totals)
0 0.2

0.4 0.6

0.8 1

1.2 12/25 12/30 1/4 1/9 1/14 1/19 1/24
Depth (inch)
Pulgas Gage (Hourly Totals)
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Maximum depths have been compared with Valley Water 2013 TDS equations, which were used to establish the Lagoon BFE, for a mean annual precipitation of 22 inches, and NOAA ATLAS 14 precipitation frequency (PF) values at the location of the gage. The return period of the maximum depth at each frequency is estimated based on both TDS and NOAA Atlas 14 PF values. This analysis is summarized in Table 1 and Table 2, with return periods at or above the design 100-year magnitude highlighted.

Table 1: PF Analysis Based on Valley Water TDS Method
Duration
NYE 2022
Max Depth
(in)
100-yr TDS
Design Storm
Max Depth
(in)
200-yr TDS
Design Storm
Max Depth
(in)
Est. Return
Period
(22” TDS)
10-min 0.29 N/A N/A N/A
15-min 0.37 0.512 0.551 10
30-min 0.52 0.66 0.71 14
1 hr 0.93 0.93 0.99 100
2-hr 1.61 1.39 1.47 400
3-hr 1.97 1.77 1.88 300
6 hr 2.42 2.70 2.88 45
12 hr 4.54 3.81 4.07 600
24 hr 5.1 4.88 5.21 150
48 hr 5.79 6.38 6.79 43
72-hr 5.97 7.35 7.85 18
Table 2: PF Analysis Based on ATLAS 14 Return Periods
Duration
NYE 2022
Max Depth
(in)

NOAA ATLAS
14 100-year
Depth (in)

NOAA ATLAS
14 200-year
Depth (in)
Est. Return
Period
(ATLAS 14)
10-min 0.29 0.48 0.54 10
15-min 0.37 0.58 0.66 10
30-min 0.52 0.80 0.91 12
1 hr 0.93 1.14 1.29 35
2-hr 1.61 1.53 1.70 125
3-hr 1.97 1.89 2.08 115
6 hr 2.42 2.70 2.96 46
12 hr 4.54 3.93 4.32 300
24 hr 5.1 5.58 6.17 55
48 hr 5.79 7.11 7.90 30
72-hr 5.97 8.42 9.37 15
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It is apparent based on both TDS and NOAA Atlas14 that the New Year’s Eve storm exceeded the 100-year design magnitude for several durations based on maximum values. The “doublebarreled” nature of the rainfall, with back-to-back peaks on various durations may also affect the Lagoon, particularly if the time between peaks is not sufficient to draw down Lagoon levels.

Plots of running rainfall depth totals for select durations are shown in Figure 4. Based on NOAA Atlas 14 PF tables, these peaks are characterized by duration as:
• 1-hour: Two ~35-year peaks
• 2-hour duration: 125-year peak followed by a second 75-year peak • 3-hour duration: 115-year peak followed by a second 60-year peak • 12-hour: Converges to a single 300-year peak
While the second peaks are generally smaller than the first, by the time the second peak comes, soils in the drainage area may be fully saturated. Combined with contributions of baseflow generated by shallow groundwater left behind by the first peak, the second peak may have greater runoff potential than the first.

Hydrologic Analysis
Calibration and Baseflow Recession
Schaaf & Wheeler has utilized existing models of the San Francisquito Creek gage to calibrate Rainfall Dependent Infiltration (RDI) parameters in MIKE+. The Pulgas gage is not located within the San Francisquito drainage area. As such, the calibration does not focus heavily on AMC or peak matching. The goal of this analysis is primarily to calibrate the shape of baseflow recession based on recorded San Francisquito streamflow gage data throughout the month of January. The calibration basin is shown relative to the Marina Lagoon drainage area, along with an assortment of precipitation depths in the vicinity of the study area as Figure 5.

MIKE+ RDI is characterized by several parameters defining lag times for overland flow, interflow, and groundwater flow, as well as percentages of the drainage areas contributing to groundwater and overland flows resulting from rainfall abstraction into soils. These parameters are then used as a starting point and further modified in the Marina Lagoon drainage area to better match Lagoon water levels recorded by SCADA. It is not unreasonable to expect that overland lag in particular might be less for the somewhat smaller Marina Lagoon drainage areas, which are also modeled on a much finer scale than the 37.5 square mile San Francisquito Creek watershed used for calibration. Parameters are summarized in Table 3 and the results of the San Francisquito Creek watershed model are compared with gage data in Figure 6.
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Figure 4: Running Precipitation Depth Totals for Gage AU981 for Various Durations

0.89 0.93
0 0.1

0.2 0.3

0.4 0.5

0.6 0.7

0.8 0.9
1 Depth (inch)
Running 1-hour Depth Totals

1.61 1.44
0 0.2

0.4 0.6

0.8 1

1.2 1.4

1.6 1.8
Depth (inch)
Running 2-hour Depth Totals

1.94 1.73
0 0.5
1 1.5
2 2.5
Depth (inch)
3-hour Depth

4.54 0
1 2
3 4
5 Depth (inch)
Running 12-hour Depth Totals
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Figure 5: Calibration Basin and Precipitation Depths for 6- and 12-hour Durations (Various Gages) 504 of 653
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Table 3: RDI Parameters for the MIKE+ Hydrology Model
Parameter
Default
San
Francisquito
Basin
Selected for
Marina Lagoon
Hydrology
Surface Storage (ft) 0.833 0.25 0.25
Root Zone Storage (ft) 8.333 3 3
TC Overland (hours) 20 12* 6*
TC Interflow (hours) 500 600 600
TC Baseflow (hours) 2,000 1,000 1,000
*Primary calibration parameter for Marina Lagoon based on smaller basin sizes Figure 6: San Francisquito Creek RDI Calibration Model Result Comparison to Gage Data Although not the focus of this analysis, prior calibrations of curve number for the San Francisquito Creek gage (CN 64 with an AMC value of II) are shown to remain representative of the watershed’s runoff potential. The four highest peaks are on the same order of magnitude as gaged discharge. Three are lower than the gaged peaks by approximately 35 percent on average. However, this deviation could just as easily be a result of rainfall at the Pulgas gage being somewhat lower than the actual rainfall over the San Francisquito Creek watershed during the same storm. Curve numbers from the SDMP models for the San Mateo systems have also been assigned AMC II values and therefore have not been altered for this analysis.

The model underestimates peak magnitude for subsequent peaks when only the surface runoff (Curve Number without baseflow/RDI) is considered. Significant runoff volume is also missing when baseflow recession is not included. These are crucial considerations for the Marina Lagoon model.
0 1,000
2,000
3,000
4,000
5,000
6,000
7,000
8,000
12/25 12/30 1/4 1/9 1/14 1/19 1/24 1/29
Discharge (cfs)
Date
San Francisquito Gage Discharge
Model Output
Model (w/o Baseflow)
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Marina Lagoon Drainage Area
For the Marina Lagoon model, precipitation data from the AU981 gage is used directly, without increase or reduction. Actual precipitation throughout the drainage area may have varied somewhat during the New Year’s Eve storm. However, this is the nearest gage to the drainage area and an initial assumption is made that this may be representative of an average condition across the basin without adjustment. Ultimately, the results of the model well replicate the SCADA data (discussed in the next section), so no further adjustments were made.

The full drainage area to the Lagoon is shown in Figure 7. In general, catchments from the SDMP models are used in this study as well. However, the boundaries of catchments have been examined and adjusted as necessary based on 2017 San Mateo County LiDAR data.

Figure 7: Marina Lagoon Model Drainage Area
The drainage area on the east side of the lagoon surrounding Mariner’s Island Boulevd and within San Mateo City limits has also been added to the model, with curve number and lag assumed to be similar to nearby catchments located on the west. This assumption does not fully consider the storm drain properties of those added drainage areas. However, it does ensure that the model captures runoff volume from the full drainage area to the Lagoon. 506 of 653
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Hydraulic Analysis
Hydraulic Model Setup
Schaaf & Wheeler first imported three individual SDMP models into a single MIKE+ model.

Various modifications to the model are required to form a complete picture of the operation of the lagoon and the behavior of its full tributary area:
• Pipe systems within the small drainage area within City limits at the northeast end of the lagoon are added.
• The two dams on Laurel Creek have been refined to better reflect their behavior throughout the storm. (An orifice and a weir are added, representing the hydraulics of the low-level outlets and the spillways.)
• A 2D domain is added to the lower reaches of the model generally covering the area from just upstream of El Camino Real to the western edge of the Lagoon. • The 42nd Avenue Pump Station is added to the model.
• The three channels conveying flow into the Lagoon have been converted from “Generic Shape” 1D elements to “River” elements with cross sections and culverts to better reflect conveyance capacity and spill over the channel banks.
• Marina Lagoon is added to the model as an open channel element, allowing for the connection of each outfall along the full length of the lagoon, capturing any variation in hydraulic grade along the length of the lagoon during the storm, and fully considering lag throughout the system.

The pipe system and river centerlines are shown in Figure 7, along with the catchment areas.

The 2D domain is shown in Figure 8. Most of the 2D area extends from just upstream of El Camino Real to the western edge of Marina Lagoon. The exception is along Laurel Creek where the domain extends further upstream to ensure any potential capacity deficiency is captured along the creek that might impact the timing and magnitude of runoff reaching the Lagoon. 507 of 653
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Figure 8: Elevation Map Within the 2D Domain Area with Inset Detail of Triangular Elements.

Tides
Tidal levels are also examined for the duration of the storm to verify whether they may have affected pump capacity. Tide data over the period of interest is acquired for the Redwood City tide gage from the NOAA Tides and Currents website (Figure 9). While tidal levels were likely slightly different at the Marina Lagoon Pump Station outfall, one would not expect to see significantly higher levels in such proximity to this gage, particularly to the point of adversely affecting the capacity of the pumps. The design operating point for the pumps considers a static head based on a pump station pipe discharge elevation of 103 feet CSM.

Figure 9: Redwood City Tide Data (NOAA Gage 9414523)
Peak 7.8 ft NAVD (102.5 CSM),
12/31 3:45 PM
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The highest tidal level of 102.7 feet CSM during the storm occurred on December 31 at approximately 3:45 PM. It is very unlikely that this tide elevation had any measurable impact on pumping capacity. Ultimately, therefore, a tidal boundary is not used as an input to the model.

Model Scenarios
The composite MIKE+ model has been utilized to evaluate the performance of the lagoon under various circumstances during the New Years Eve storm.

The three scenarios discussed in this analysis are:

1. Pump failures roughly match those indicated by SCADA;

2. Pumps operate at their current, intended set levels throughout the storm; and

3. Pumps operate at the set levels recommended in the 2014 Marina Lagoon Operation report by Schaaf and Wheeler. This document establishes pump set levels to obtain a BFE of 2.4 feet NAVD, or 97.3 ft CSM in the Lagoon.

Pumps and Boundary Conditions
Pumps are modeled with approximate system curves, based on static head differential between the discharge (103 feet CSM) and the variable Lagoon level. The MIKE+ model is currently only capable of turning pumps on and off at single input on and off points. Modeling failures within the operating range requires a means of shutting the pumps off regardless of their set points.

To mimic engine failures for Scenario 1, each pump is assigned an individual boundary condition, defined by a variable time series input based on SCADA information provided by the City. When a pump should be operating, its discharge boundary is set to a 103 feet elevation, indicating normal design operation. During periods when the engines are known to have failed, however, the discharge elevation is increased to 115 ft on City datum (beyond the expected operating range during the storm), and the pump curve has been modified so that the pump discharge drops abruptly to zero, as shown in Table 4.

Table 4: Pump Curve Inputs to the MIKE+ Model.

Static
Head (ft)
Discharge
(cfs) Notes
0 340 Upper end of expected range (Lagoon
6 330 elevation 98.4, Discharge 103)
8 320 Low end of expected range (Lagoon

10.7 310 elevation 94.4, Discharge 103)
15 310 Threshold for forced failure
>= 15.01 0 Failure range including the discharge
elevation boundary of 115
For model Scenarios 2 and 3, where the engine failures are omitted, the boundary condition is set to a constant 103 feet CSM discharge elevation for each pump, ensuring that capacity remains within the range of 310 cfs to 340 cfs.
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Model Results
Results from the hydraulic model highlight the impact
of pump failures during a storm of this magnitude. City Operations staff indicated that the level sensor is
installed at approximately elevation 97 feet CSM. This
impacted the ability of SCADA to capture the true highwater level in the Lagoon during this storm, as the sensor was submerged for a significant period of time.

However, staff were able to provide a picture of a staff gage in the lagoon from December 31st at
approximately 4:40 PM (Figure 10), providing a means
to evaluate model performance in the absence of
reliable SCADA levels with the sensor submerged.

Lagoon water levels for the three modeled scenarios
are provided as Figure 11.

Figure 11: Model Results Overlain on SCADA Water Level Data The model may be generating slightly too much volume on the tail end of the storm. However, the peak water surface estimated by the model matches the photo provided by operations to within a tenth of a foot. This may simply indicate that locally, an excess of baseflow volume is being generated after the second peak. The exact timing of baseflow at this point is only expected to impact lagoon drawdown after the storm. Most importantly, the model appears to adequately capture the contributions of baseflow rates concurrent with the second peak. 12/31 ~5 PM, 98.45 ft
94 94.5
95 95.5
96 96.5
97 97.5
98 98.5
99 Elevation (ft, CSM Datum)
SCADA Water Level
Model Water Level (w/Failures)
Model Water Level (w/o Failures)
Model Water Level (2014 Report Set Points)
Figure 10: Staff Gage During the Storm,
Reading Approximately 98.4 feet CSM
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A plot of modeled pump discharge for Scenarios 1 and 2, over binary SCADA status (on/off) is provided for each engine in Figure 12. Lead (Engine 5) Lag 1 (Engine 2) Lag 2 (Engine 3) Lag 3 (Engine 5) Lag 4 (Engine 4) Figure 12: Model Pump Discharge and SCADA On/Off Status Plots 0 120
240
360
480
0 600
1 2
3 4
5 12/31 00:00 12/31 12:00 01/01 00:00 01/01 12:00
Model Discharge
(cfs)
SCADA Status
(Binary)
0 120
240
360
480
0 600
1 2
3 4
5 12/31 00:00 12/31 12:00 01/01 00:00 01/01 12:00
Model Discharge
(cfs)
SCADA Status
(Binary)
0 120
240
360
480
0 600
1 2
3 4
5 12/31 00:00 12/31 12:00 01/01 00:00 01/01 12:00
Model Discharge
(cfs)
SCADA Status
(Binary)
0 120
240
360
480
0 600
1 2
3 4
5 12/31 00:00 12/31 12:00 01/01 00:00 01/01 12:00
Model Discharge
(cfs)
SCADA Status
(Binary)
0 120
240
360
480
0 600
1 2
3 4
5 12/31 00:00 12/31 12:00 01/01 00:00 01/01 12:00
Model Discharge (cfs)
SCADA Status
(Binary)
SCADA Model (w/Failures) Model (No Failures)
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The number of pumps running through each model, compared with SCADA records is shown in Figure 13.

Figure 13: Number of Pumps Running in Simulations and from SCADA Records.

Inflows to the lagoon primarily come from three sources:
• Three tributary open channels. (16th Avenue, 19th Avenue, and Laurel Creek) • A variety of smaller pipe systems with outfalls directly to the lagoon. • Direct rainfall on the lagoon surface and on surrounding topography with surface drainage directly into the lagoon.

The three tributary open channel systems convey most inflow into the Lagoon. Discharge from each tributary channel is shown in Figure 14. The attenuation of the first peak in the Laurel Creek drainage area by the two dams is apparent in its hydrograph. However, by the time the second peak occurred, storage capacity in the dams was not available to provide that same level of attenuation. The first and second peak discharges are roughly equivalent for the other two channels.
0 1
2 3
4 5
6 12/31 0:00 12/31 6:00 12/31 12:00 12/31 18:00 1/1 0:00 1/1 6:00 1/1 12:00 # Pumps Running Modeled (w/Failures) Modeled (w/o Failures) SCADA
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Figure 14: Discharge Hydrographs for the Three Major Lagoon Tributaries Discharge from pipe systems as well as direct rainfall have been extracted from the model to develop an estimate of a total inflow hydrograph for the lagoon. The total inflow is examined against the capacity of the pumps throughout the storm (with and without engine failures) in Figure 15.
2,095
2,315
0 500
1,000
1,500
2,000
2,500
12/31 0:00 12/31 6:00 12/31 12:00 12/31 18:00 1/1 0:00 1/1 6:00 1/1 12:00 Discharge (cfs)
16th Ave
19th Ave
Laurel
Total
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Figure 15: Lagoon Total Inflow and Pump Discharge Rates (Top) Over Lagoon Water Levels (Middle) and Excess Storage Volume (Bottom)
~2,930 cfs
0 500
1,000
1,500
2,000
2,500
3,000
3,500
Discharge (cfs)
Modeled Pump Discharge (w/Failures)
Modeled Pump Discharge (w/o Failures)
Approx. Total Inflow

97.61 98.47

96.90 97.40
94 95
96 97
98 99
Elevation (feet CSM)
Water Level (w/Failures)
Water Level (w/o Failures)
0 50
100
150
200
250
300
350
400
450
500
Excess Stored Volume (AF)
Excess Storage Due to Failures
Simultaneous Failure of
Four Engines to Start
Continued, Intermittent
Failure of One Engine
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Potential Interior Flooding Impacts
Results from the MIKE21 2D model may be used to evaluate impacts of the engine failures, if any, on interior drainage systems tributary to the Lagoon. An overview of 2D model flooding results is shown for Scenarios 1 and 2 in Figure 16 and Figure 17. The 2D result for Scenario 3 is nearly identical to the result for Scenario 2 and is therefore not shown.

Figure 16: Interior Flooding with Engine Failures
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Figure 17: Interior Flooding without Engine Failures
At a glance, the difference between the two results is hardly apparent. Overlays have been generated where differences occur to highlight the impacts of the engine failures on interior flooding (Figure 18 through Figure 20).
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Figure 18: Interior Flooding Overlay (North)
w/Failures
w/o Failures
Flood Extent
(>1” Depth)
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Figure 19: Interior Flooding Overlay (Central)
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Figure 20: Interior Flooding Overlay (South)
Flow depths in the channels are not fully reflected in the 2D model result. They are accounted for instead in the 1D River model. Two-dimensional routing occurs only if the rivers or pipe systems spill onto the surface. To evaluate the full extent of impact on the three major open channel systems, profiles of each are provided as Figure 21.

The two areas experiencing the most significant interior flooding are 16th Avenue Channel just upstream of Highway 101 and Laurel Creek just upstream of George Hall Elementary School.

Both areas are due to local capacity deficiencies. For the 16th Avenue Channel, the Highway 101 crossing is apparently undersized for peak flows of this magnitude. Three culverts exist at George Hall Elementary that have previously been identified as capacity deficient with complex hydraulics. However, spill from the channel is modeled in the vicinity of Curtiss Street. The culvert at this point was not included in prior modeling, and the sections are based on LiDAR.

While the model could use further refinement to capture channel capacity more accurately, all else equal, it is apparent from the work completed that Lagoon performance is not impacting the hydraulic grades at this upstream location in Laurel Creek. 519 of 653
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Figure 21: 16th Ave Channel (Top), 19th Ave Channel (Middle), and Laurel Creek (Bottom) S Delaware S Grant Hwy 101 S Norfolk Kehoe 88 90
92 94
96 98
100
102
104
106
108
0 1,000 2,000 3,000 4,000 5,000 6,000 7,000
Elevation (ft CSM)
Distance (ft)
Ground
Left Bank
Right Bank
HGL (w/Failures)
HGL (w/o Failures)
Culverts/Bridges
S Delaware
S Grant
Hwy 101
S Norfolk
88 90
92 94
96 98
100
102
104
106
108
0 1,000 2,000 3,000 4,000 5,000
Elevation (ft CSM)
Distance (ft)
Ground
Left Bank
Right Bank
HGL (w/Failures)
HGL (w/o Failures)
Culverts/Bridges
Curtiss
S Grant
Hwy 101
90 95
100
105
110
115
120
0 1,000 2,000 3,000 4,000 5,000 6,000 7,000
Elevation (ft CSM)
Distance (ft)
Ground
Left Bank
Right Bank
HGL (w/Failures)
HGL (w/o Failures)
Closed Conduit
Culverts/Bridges
George Hall Elem. School
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Additional Flood Mapping in the Lagoon
A simple 2-D HEC-RAS model is used to develop higher resolution mapping of the flood fringes along the perimeter of the Lagoon. Water levels extracted from the MIKE+ result are input to HEC-RAS as a water level boundary and allowed to fill the lagoon over the 2017 San Mateo County LiDAR topography DEM.

The results of this mapping are attached with an index map.

Additional Model Verification
Given the lack of definitive surveyed high-water marks and the submergence of the ultrasonic level sensor during the storm, it is difficult to fully evaluate the accuracy of the model. The model uses rainfall data from a single point in space for an approximately 1,600-acre drainage area, so there is bound to be some uncertainty.

Aside from the photograph of the staff gage shown in Figure 10, other photographs have been compiled from residents that provide some means of verifying that the model is providing at least reasonable results. One such photo on the north end of the Lagoon is provided as Figure

22. This photo, taken from a home within the Mariner’s Island development, faces the small island and the opposite bank of the Lagoon to the south. A row of houses along Clipper Street is visible, with the waterline approaching the top of a wall at 2315 Clipper Street. Based on the 2017 County LiDAR, the top of this wall is approximately elevation 3.6 feet NAVD88 (approximately 98.5 feet CSM). That photo is time stamped approximately 3:45 PM on December 31. At that time, the model indicates a Lagoon elevation of 98.3 feet CSM.

A second photo from Mariner’s Island is shown as Figure 23. This photo faces eastward, towards Fathom Drive and Mariner’s Island Boulevard. (Gilead Sciences buildings appear in the background). A profile in the vicinity of the photo shows a ground elevation near the structures of approximately 2.9 feet NAVD88 (approximately 97.3 feet CSM). It is clear in the photos that concrete pads and at least the bottom step at these homes are submerged. Assuming these stairs have a rise of approximately 8 inches, landing on an elevated pad at their base, the water surface is likely higher than 98 feet CSM in the photos, which is consistent with model results.

Another photo, taken near the southern end of the lagoon along the Bay Trail is shown as Figure 24. This photo is taken on the western bank of the lagoon, facing south. Utility poles and the debris boom are clearly visible in the photo, as well a low point in the trail that was inundated by flood waters. A map of the area with 2017 LiDAR contours and an elevation profile through the low point in the trail is provided in Figure 25. The low point in the trail is approximately elevation 2.74 feet NAVD88 (97.64 feet CSM). It is reasonable to estimate from the profile and the photo that the low point in the trail was submerged by anywhere from six inches to a foot. It is not known at what time the photo was taken. However, this would indicate a high-water mark of approximately 98.1 feet to 98.6 feet CSM, which again is consistent with model results.

An evaluation of resident-provided photos (regardless of the exact time that they were taken) shows that the model produces results that reasonably replicate the experience of New Years Eve. Resident-provided photos appear to show maximum water surface elevations that are above 98 feet CSM.
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Figure 22: Photo of Lagoon Island and South Bank from a Residence on the Northern Shore of the Lagoon (Top) Over Satellite Image and 2017 LiDAR Profile (Bottom) Waterline
Near top of
Wall
Wall
Approx. Top of
Wall Elev
2315
Clipper St
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Figure 23: Photos from a Home on Port Drive, Facing East 523 of 653
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Figure 24: Map and Elevation Profile in the Vicinity of the Homes in Figure 23 Photos Port Dr
Approx. Ground
Elevation
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Figure 25: Paved Trail near O’Neil Tide Gates During High Water (Left) and After the Lagoon was Pumped Down (Right)
Figure 26: Map and Elevation Profile near Bay Trail Photos Approx. Location
of Photo
Approx. Location
of Utility Pole
Low Point
in Trail
Utility
Pole
Debris
Boom
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Conclusions
Based on the data available, the MIKE+ model is calibrated well enough to replicate the behavior of the pump engines and the lagoon during the New Years Eve storm. Engine on and off status matches well with limited deviation from the SCADA output for each engine. Although it may be noted that the model does not consider manual operation after the lagoon was initially drawn down.

The rise in lagoon levels is well represented in the model, as is the peak level documented photographically by Operations staff in the afternoon on December 31. It is also apparent from photographs provided by residents that the model is accurately capturing peak water surface elevations higher than 98 feet CSM, based on an evaluation of documented water surfaces against 2017 County LiDAR. The model may overestimate baseflow volumes immediately after the second peak, which does not affect the evaluation of Lagoon performance. The modeled water level appears to remain elevated for an extended period, with drawdown occurring later than the ultransonic sensor data indicates. However, it is difficult to ascertain whether the sensor would have given accurate readings after being submerged. Either way, this is not likely to impact the overall conclusions of this analysis.

The model ultimately indicates that with all five pumps operating at their respective set levels during the storm (without failures), the water level in the lagoon should have fallen significantly during the trough between rainfall peaks to approximately elevation 96.2 feet CSM. The water level would have then peaked at approximately elevation 97.4 feet CSM, or 2.5 feet NAVD.

Instead, the failure of one engine to start as intended followed closely by the simultaneous failure of four engines for approximately 40 minutes allowed the water level to rise by 0.7 foot over the predicted first peak had all engines operated as planned. The continued failure of Engine 4 to start did not allow for drawdown to occur at all between peaks. Instead, the water level plateaued until the second influx of runoff occurred, pushing the water level to its maximum of approximately elevation 98.4 feet CSM, or 3.5 feet NAVD.

Water elevations in the Lagoon had little impact on interior flooding, as channel capacity is apparently the primary driver of flooding for areas that experienced it (16th Avenue Channel and Laurel Creek in particular). The Lagoon has the greatest impact on the hydraulic grade in the 19th Avenue Channel (Borel Creek), where the water surface difference propagated all the way to the railroad. In contrast, Lagoon tailwater impact diminishes at Highway 101 along 16th Avenue Channel and within approximately 1,500 feet of the Lagoon outlet for Laurel Creek.

Based on the water surface profiles generated by the model, it is apparent why Lagoon performance made little difference to the overland flooding depths and extents.

Two-dimensional HEC-RAS modeling of the Lagoon water level provides higher resolution mapping of the flooding extents along the edge of the Lagoon. This shows that because of the engine failures there was likely increased risk to properties immediately adjacent to, or with foundations extending into the lagoon.

The New Years Eve storm exceeded the design capacity of the pump station, with inflow greater than a 100-year return period for several consequential durations. However, the model results presented here illustrate the importance of ensuring that the Marina Lagoon pump station can operate as intended to mitigate the impacts of such an extreme storm. 526 of 653
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FIGURE A-1:

Marina Lagoon New Years Eve 2022 Flood Modeling March 2023 C:\Users\JMaynard\Documents\Projects\CSMT.56\GeoData\Projects\CSMT56_RAS-LagoonFigures\ Printed 3/8/2023 City of San Mateo / CSMT.56 $
0 75 150 Feet
H
J H
Clipper St
Ark St
Joinville Park
An
c
hor Rd
Port Dr
J Hart Clinton Dr
J Hart Clinton Dr
Clipper St
P ort Dr
E 3rd Ave
E 3rd Ave
J Hart Clinton Dr
J Hart Clinton Dr
Tidelands Park
Scott St
Lake St
Fathom
Dr
Inundation (Peak, No Failures)
Inundation (Peak w/Failures)
S Norfolk St
Hayward Park
Hacienda
St
Flores
St
Hillsdale
Shopping
Center
Laurel
E 3rd Ave
Kehoe Ave
Mariner
s Island Blvd
Edgewater Blvd
Bayshore Fwy
Mariners Point
Golf Center
Bridgepointe
Tidelands Park
Leo J Ryan Pa
Foster C
E 40th Ave
Edison St
Branson
Dr
E Hillsdale
Blvd
S El Camino Real
Bayshore Fwy
Resident Photograph
Location (Approx.)
Staff Gage
Location (Approx.)
A
B
Notes:
art Clinton Dr
Photo A
J
- S
a
e
r
e
t C
r
l
e
i
p
nt
o
o
rt
n
Figure 22
Dr
Photo B - See report Figure 23-24
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FIGURE A-2:

Marina Lagoon New Years Eve 2022 Flood Modeling March 2023 C:\Users\JMaynard\Documents\Projects\CSMT.56\GeoData\Projects\CSMT56_RAS-LagoonFigures\ Printed 3/8/2023 City of San Mateo / CSMT.56 $
0 75 150 Feet
Clipper St
Ark
St
Joinville Park
R
o
b
erta
Dr
Kehoe Ave
Ark
St
nville
Shoal Dr
Clipper St
Kehoe Ave
Lake St
Shoal Dr
Neptune
Ct
S
c
ott St
ake St
Kehoe Ave
Lake St
Fathom Dr
Shoal Dr
ers Island Blvd
Mariners Island
Park
Fathom
Dr
Mariners Island Blvd
Mariners Island Blvd
Inundation (Peak, No Failures)
Inundation (Peak w/Failures)
Norfolk St
ark
Hacienda
St
Flores
St
Hillsdale
Shopping
Center
aurel
E 3rd Ave
Kehoe Ave
Mariners Island Blvd
Edgewater Blvd
Bayshore Fwy
Mariners Point
Golf Center
Bridgepointe
Tidelands Park
Leo J Ryan Park
Foster City
E 40th Ave
Edison St
Branson
Dr
E Hillsdale
Blvd
S El Camino Real
Bayshore Fwy
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Figure Subtitle
FIGURE A-3:

Marina Lagoon New Years Eve 2022 Flood Modeling March 2023 C:\Users\JMaynard\Documents\Projects\CSMT.56\GeoData\Projects\CSMT56_RAS-LagoonFigures\ Printed 3/8/2023 City of San Mateo / CSMT.56 $
0 75 150 Feet
R
o
b
erta
Dr
Shoal Dr
Roberta Dr
Boston Ave
Borden St
Seal Ct
Parkside
Aquatic Park
Roberta
Dr
Borden St
Dewey St
Brooks St
Roberta
Dr
Eisenhower St
Shoal Dr
Shoal Dr
Neptune
Ct
Sextant Ct
Armada Way
Shoal Dr
Shoreline Dr
Inundation (Peak, No Failures)
Inundation (Peak w/Failures)
S Norfolk St
Hayward Park
Hacienda
St
Flores
St
Hillsdale
Shopping
Center
Laurel
E 3rd Ave
Kehoe Ave
Mar ni ers Island Blvd
Edgewater Blvd
Bayshore Fwy
Mariners Point
Golf Center
Bridgepointe
Tidelands Park
Leo J Ryan Pa
Foster Ci
E 40th Ave
Edison St
Branson
Dr
E Hillsdale
Blvd
S El Camino Real
Bayshore Fwy
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FIGURE A-4:

Marina Lagoon New Years Eve 2022 Flood Modeling March 2023 C:\Users\JMaynard\Documents\Projects\CSMT.56\GeoData\Projects\CSMT56_RAS-LagoonFigures\ Printed 3/8/2023 City of San Mateo / CSMT.56 $
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Marina Branch
Library
92 Fash
92 ion Island Blvd
S Norfolk St
J Arthur Younger Fwy
J Arthur Younger Fwy
13B
76 S ho reline
Dr
Fashion
Island
Blvd
92 92
92 92
Fashion Island Blvd
S
Norfolk St
J Arthur Younger Fwy
J Arthur Younger Fwy
Day Ave
Waters Park Dr
S Norfolk St
Bayside
Building
Materials
Shoreline Dr
Fashion
Island Blvd
Fashion Island Blvd
Vista
del Mar
J Arthur Younger Fwy
J Arthur Younger Fwy
Day Ave
Inundation (Peak, No Failures)
Inundation (Peak w/Failures)
S Norfolk St
Hayward Park
Hacienda
St
Flores
St
Hillsdale
Shopping
Center
Laurel
E 3rd Ave
Kehoe Ave
Mar ni ers Island Blvd
Edgewater Blvd
Bayshore Fwy
Mariners Point
Golf Center
Bridgepointe
Tidelands Park
Leo J Ryan Pa
Foster Ci
E 40th Ave
Edison St
Branson
Dr
E Hillsdale
Blvd
S El Camino Real
Bayshore Fwy
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FIGURE A-5:

Marina Lagoon New Years Eve 2022 Flood Modeling March 2023 C:\Users\JMaynard\Documents\Projects\CSMT.56\GeoData\Projects\CSMT56_RAS-LagoonFigures\ Printed 3/8/2023 City of San Mateo / CSMT.56 $
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thur Younger Fwy
Day Ave
Waters Park Dr
S Norfolk St
Bayside
Building
Materials
S
N
orfolk
St
Vista del Mar
Vista
del Mar
Miramar
Via Vista
Marina Ct
Day Ave
Marina Ct
Vista del Mar
Marina Ct
Sea
Spray Ln
Hillsdale
Blvd
Inundation (Peak, No Failures)
Inundation (Peak w/Failures)
Norfolk St
ark
Hacienda
St
Flores
St
Hillsdale
Shopping
Center
aurel
E 3rd Ave
Kehoe Ave
Mariners Island Blvd
Edgewater Blvd
Bayshore Fwy
Mariners Point
Golf Center
Bridgepointe
Tidelands Park
Leo J Ryan Park
Foster City
E 40th Ave
Edison St
Branson
Dr
E Hillsdale
Blvd
S El Camino Real
Bayshore Fwy
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FIGURE A-2:

Marina Lagoon New Years Eve 2022 Flood Modeling March 2023 C:\Users\JMaynard\Documents\Projects\CSMT.56\GeoData\Projects\CSMT56_RAS-LagoonFigures\ Printed 3/8/2023 City of San Mateo / CSMT.56 $
0 75 150 Feet
Marina Ct
Lakeshore Park
Lakeshore Park
Ciro Ave
S
Norfolk St
Holland
St
E
Hillsdale
Blvd
E
Hillsdale
Blvd
S
Norfolk St
E Hillsdale Blvd
Se
Celestial Ln
Aries
Ln
Pisces Ln
Ara Ln
Draco Ln
E Hillsdale
Blvd
E Hillsdale
Blvd
Celestial Ln
Scorpio Ln
Beach
Park
B
Celestial
Ln
B
each
P
ark
Blvd
Celestial Ln
Inundation (Peak, No Failures)
Inundation (Peak w/Failures)
Norfolk St
ark
Hacienda
St
Flores
St
Hillsdale
Shopping
Center
aurel
E 3rd Ave
Kehoe Ave
Mariners Island Blvd
Edgewater Blvd
Bayshore Fwy
Mariners Point
Golf Center
Bridgepointe
Tidelands Park
Leo J Ryan Park
Foster City
E 40th Ave
Edison St
Branson
Dr
E Hillsdale
Blvd
S El Camino Real
Bayshore Fwy
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FIGURE A-7:

Marina Lagoon New Years Eve 2022 Flood Modeling March 2023 C:\Users\JMaynard\Documents\Projects\CSMT.56\GeoData\Projects\CSMT56_RAS-LagoonFigures\ Printed 3/8/2023 City of San Mateo / CSMT.56 $
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Lago
St
El Parque Ct
Bahia St
Playa
St
B
a
hia
St
Vega Cir
Beach
Park
Blvd
Los Prados
St
Los Prados St
Bahia St
Lla
n
o
St
L
o
s
Pra
d
o
s
St
M
aris
m
a
St Lla
n
o
St
Marisma St
Polaris
Ave
Beach Park Blvd
Vega
Cir
C
u
m
b
erla
n
d
Ct
Port R
P
ort R
o
y
al A
v
e
Inundation (Peak, No Failures)
Inundation (Peak w/Failures)
Norfolk St
ark
Hacienda
St
Flores
St
Hillsdale
Shopping
Center
aurel
E 3rd Ave
Kehoe Ave
Mar ni ers Island Blvd
Edgewater Blvd
Bayshore Fwy
Mariners Point
Golf Center
Bridgepointe
Tidelands Park
Leo J Ryan Park
Foster City
E 40th Ave
Edison St
Branson
Dr
E Hillsdale
Blvd
S El Camino Real
Bayshore Fwy
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FIGURE A-8:

Marina Lagoon New Years Eve 2022 Flood Modeling March 2023 C:\Users\JMaynard\Documents\Projects\CSMT.56\GeoData\Projects\CSMT56_RAS-LagoonFigures\ Printed 3/8/2023 City of San Mateo / CSMT.56 $
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Los Prados St
Kimberly Way
Marisma St
P
ort Roya
l Ave
Bayshore Fwy
Bayshore
Fwy
Laurel Creek
101
101
101
Branson
Dr
M artin Dr
Bayshore Fwy
Bayshore Fwy
101
Winchester
Ct
Port Royal
Ave
Winchester
Ct
Winchester Ct
Port Royal Ave
Port Royal Ave
Chesapeake Ave
Boothbay
Ave
101
Port Royal Ave
Lyme Ln
Coral Ln
Rock Ha rbor Ln
Inundation (Peak, No Failures)
Inundation (Peak w/Failures)
S Norfolk St
Hayward Park
Hacienda
St
Flores
St
Hillsdale
Shopping
Center
Laurel
E 3rd Ave
Kehoe Ave
Mariner
s Island Blvd
Edgewater Blvd
Bayshore Fwy
Mariners Point
Golf Center
Bridgepointe
Tidelands Park
Leo J Ryan Pa
Foster Ci
E 40th Ave
Edison St
Branson
Dr
E Hillsdale
Blvd
S El Camino Real
Bayshore Fwy
Resident Photograph
Location
C Notes:

Photo C - See report Figure 25
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May 4, 2023
Figure 1: Storm event on New Year’s Eve and Marina Lagoon Level Figure 2 shows the tide data reading at Redwood City provided by NOAA. During the storm event, the tide peaked at 7.8 ft NAVD (102.7 ft CSM). The 100-year tide elevation of 105.1 ft CSM did not occur during the storm. The Redwood City tide elevation is reasonably similar to that of the Marina Lagoon Pump Station and therefore considered equivalent for this analysis. 536 of 653
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May 4, 2023
Figure 2: Redwood City Tide Data
Marina Lagoon Storm Water Pump Station Operation
The Marina Lagoon Pump Station was originally constructed in 1985 and is equipped with five 150,000 gpm capacity axial flow pumps driven by diesel engines with power transmitted through right-angle gear reduction boxes that discharge water from Marina Lagoon into San Francisco Bay. The pump station is equipped with a Programmable Logic Controller (PLC) system that operates the pumps based on the lagoon water level. The ultrasonic level sensor that monitors the lagoon level is located at the lagoon on the wing wall of a bridge adjacent to the pump station intake as shown in Figure 3. This lagoon level sensor also provides data to the PLC system to trigger high and low-level alarms.

Figure 3: Location of the Marina Lagoon Pump Station and Lagoon Level Sensor 537 of 653
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Figure 4: Marina Lagoon Level Sensor
The wetwell is not equipped with a level sensor to gauge the change in water level across the trash rack located at the wetwell entrance; however, there is a mechanical float in the wetwell that triggers a separate high-level alarm.

The pumps can be controlled automatically with set-points or turned on or off manually on the pump control panel (Figure 5) in the pump station. If any of the pump or engine alarms listed below are triggered, the pump will automatically shut off. Triggered alarms will light up indicating the specific issue on the engine control panel (Figure 6) in the pump station, while only being logged as “engine general failure” in the SCADA system. When a pump fails, the PLC system is programmed to turn on another pump as a replacement within 3 minutes.

Pump or engine alarms:
• Pump shaft lubricator failure
• Engine Overcrank
• Engine Overspeed
• High water temperature in the engine heat exchanger
• Low engine oil pressure
• Low gear box oil pressure
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Figure 5: Pump Control Panel
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Figure 6: Engine Control Panel
Typically, the City of San Mateo operates the pump station to control lagoon water surface elevations (WSEL) for summer recreation and winter flood protection, during the winter the City draws the lagoon water level down further for a dock maintenance level for a duration of approximately four weeks. During the summer months, the lagoon’s WSEL is roughly 96.9 ft.

During the winter months, the lagoon’s WSEL is lowered to roughly 94.9 ft. The dock maintenance period draws the lagoon down to a WSEL of roughly 93.4 ft. 540 of 653
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New Year’s Eve Pump Station Operation
During the New Year’s Eve storm event, there were several issues that resulted in higher-thanusual lagoon levels. The City operations staff has reported that a lot of debris washed down to the lagoon and blocked the trash rack at the pump station. They had to constantly remove the debris during the storm because the lagoon water had difficulties draining into the wetwell once the trashrack became clogged.

Other problems included pump and engine failures along with SCADA system issues. The operations staff arrived at the pump station at approximately 8:00 am on 12/31/22, finding pumps not running as specified by pump set-points and engine failure alarm lights illuminated at the engine control panel. The pump and alarm set points for New Year’s Eve are shown in Table 1 and Table 2. Only Pump 3 was running around 8:00 am. All other pumps should have been operating as well, since the water level was higher than 97.00 ft. After approximately thirty minutes, operations staff were able to restart an additional three pumps, and for the majority of the remaining storm, four out of the five pumps ran continuously.

Table 1. New Year’s Eve Pump Station Set-Points
Pump
Pump Start
(feet CSM)
Pump Stop
(feet CSM)
Lead 94.90 94.40
Lag1 95.00 94.40
Lag2 95.30 94.40
Lag3 96.00 95.00
Lag4 96.90 95.50
Table 2. New Year’s Eve Pump Station Alarm Set-Points
Pump
Alarm Level
(feet CSM)
High 95.20
Low 94.38
Leading up to the time when operations staff arrived at the pump station, pumps had issues starting or remaining running during the early portions of the storm event. The below description is based on SCADA records of pump run status and lagoon water levels provided by the City.

Pump 4 had triggered an engine failure alarm in SCADA around 2:25 am on New Year’s Eve. It had turned on momentarily for less than 5 minutes possibly as the Lead Pump at 94.89 ft. The control panel showed that the overcrank alarm was triggered when the staff arrived at the pump station. Operations staff tried to get Pump 4 restarted but the engine had problems and was out of order for the majority of the storm. Operations staff were able to later replace the engine starter and return the pump into service.
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Pump 5 was turned on around 2:55 am when the water level was at 94.90 ft. It may have been turned on as back-up pump to Pump 4 or it may have been the actual Lead Pump and Pump 4 turning on was an anomaly, historical data is not sufficient to determine. Pump 5 failed around 4:35 am due to a pump lubricator failure. The staff found that it was out of lubricant and were able to restart the pump once the grease for the pump was replenished. The SCADA system did not record an engine or pump failure alarm for the pump.

Pump 2 had turned on at 5:00 am as the Lag 1 Pump when the water level was at 95.00 ft, but then turned off at 7:45 am with a pump lubricator alarm. The pump lubrication system was malfunctioning, and the staff had to override the pump shut-off control and bypass the pump lubricator in order to restart the pump. The SCADA system did not record an engine or pump failure alarm for the pump.

Pump 3 had turned on at 5:45 am as the Lag 2 Pump when the water level was at 95.40 ft and continued to run without an issue during the storm event.

Pump 1 should have turned on at 7:25 am as the Lag 3 Pump when the water level was at

96.00 ft, but the pump did not start until 8:25 am once operations staff arrived at the pump station. The SCADA system did not record an engine or pump failure alarm for the pump.

Besides mechanical pump and engine issues, there appear to be issues in the SCADA system.

The SCADA alarm log only registered the high-level lagoon alarm and Engine 4 general failure alarm. It did not register general failure for Engine 1, 2, and 5. When asked about SCADA system issues, the operations staff mentioned that the PLC and new SCADA system pump and alarm set-points must be adjusted separately. It is possible that sometimes set-points are not coordinated between the two systems when changes are made. Also, the staff may not be notified of certain alarms at the pump station due to SCADA alarm priorities being incorrectly registered as a low priority. The SCADA alarm log could not be cross-checked with the PLC data log because the New Year’s Eve data had already been overwritten in the local PLC’s stored memory at the time the data was requested.

Based on the pump station local PLC programming records, when a pump fails while running or fails to start, a replacement pump should be started within 3 minutes. As mentioned before, when Pump 4 failed, Pump 5 may have turned on as a replacement pump. The SCADA log shows that the Engine 4 general failure alarm was registered at 2:28 am; however, Pump 5 turned on 30 minutes afterwards instead of 3 minutes. When Pump 5 failed at 4:35 am, a replacement pump did not start, Pump 2 started at the Lag 1 setpoint and Pump 3 started at the Lag 2 setpoint; meanwhile there was no replacement Lead pump running. Effectively the pump station was deficient one pump from 4:35 am to 7:40 am, then deficient four pumps due to failures until 8:25 am.

Investigation Findings
Schaaf & Wheeler collected pump station equipment information, consulted with the pump manufacturer engineers, developed pump system curves, and conducted computer modeling of the storm event and storm drain infrastructure to help determine operational capacities of the pump station and lagoon system as well as operational constraints. Schaaf & Wheeler has reviewed documentation that provides the original pump station design parameters for performance during storm events, and the design storm statistics related to the original lagoon and pump station design.
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Pump Station Equipment Information
The Marina Lagoon Pump Station was originally constructed in 1985. The pump station is comprised of five individual pump assemblies each consisting of a diesel engine driver, rightangle gear reduction box, and axial flow pump. The City replaced three gear boxes in 2005 due to original gear box failures, and the City rebuilt the five axial flow pumps within the last five years. The diesel engines are routinely maintained but status of substantial rebuild of the units is unknown. The pump control system was also replaced in the past and included removal of the original level sensing bubbler system and pump controller with an ultrasonic level sensor and PLC-based pump controller. The main components of the pump assemblies are summarized below.

Pumps
The five main stormwater pumps have individual 72-inch diameter flap-gated discharges with invert elevations of 97.0 feet CSM. Each pump has a 102-inch diameter intake bell at elevation

83.0 feet CSM.
- Patterson Pump Company: PO Box 790 Toccoa, GA 30577; Phone: (706)886-2101 - Size: 72x72; Type: AFV
- Capacity: 150,000 gpm @ 10 ft TDH; Shutoff @ 41 ft TDH - Speed: 275 RPM
- Serial No.: 85 BT 8490-G72
- Minimum pump submergence elevation: 95.0 ft CSM
Diesel Drivers
- Cummins: 14775 Wicks Blvd. San Leandro, CA 94577; Phone: (510)351-6101 - Model: VT A28P (VTA-1710P) V-12
- Rating Point: 545 Hp @ 1800 RPM
- Idle Speed: 800 RPM
- Maximum No Load Speed: 2000 RPM
Right Angle Gear Drives (Original on Pumps 1 and 2)
- TWG Thyssen Getriebe-Und Kupplungswerke GMBH: Sudstrabe 111 D 4690 Herne 1; Phone (023 23) 49 71; Fax: 08 229 868 taw d
- Model: KBV 315/S/So
- Gear Ratio: 6.3 to 1
- Anti-reverse rotation mechanism (back-stop mechanism) - Horizontal input, vertical output
- Water cooled heat exchanger
- Lubrication via positive displacement oil pump
- AGMA service factor: 1.25
Right Angle Gear Drives (Replacement on Pumps 3-5)
- Flender Corporation: 950 Tollgate Road Elgin, IL 60123; Phone: (847)931-1990 - Model: B2SV09
- Gear Ratio: 6.391 to 1
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- Anti-reverse rotation mechanism (back-stop mechanism) - Horizontal input, vertical output
- Water cooled heat exchanger
- Lubrication via positive displacement oil pump
- AGMA service factor: 1.25
Power Take-off
- Twin Disc Inc.: 1328 Racine St. Racine, WI 53403; Phone: (262)638-4000 - Model: SP318PO – 3002097, dry clutch PTO
- BOM: 37019
- Serial No: 199555
Figure 7: Marina Lagoon Pump Station Interior
Pump and System Curve
To determine how the pump is operating for the site-specific installation, a system curve is prepared based on as-built drawings and known field conditions. The record pump curve is plotted against the system curves to determine pump operating points. The system curve analysis typically includes a design, high head, and low head curve to better understand the potential operating band of the pump in all plausible conditions.

Figure 8 shows the low, high, and design head system curves for typical pump operation and the low and high tide system curve when the lagoon level is drawn lower for dock maintenance. 544 of 653
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Table 3 explains parameters the system curves are based on. The black line represents the pump curve obtained from the pump manufacturer and is documented as the “model curve” for the specified pumps. The solid orange line shows the brake horsepower curve of the pump. The dashed orange line shows the brake horsepower required at the engine assuming the gearbox has 95% efficiency.

The system curve confirms the original design rating point for the pump system of 150,000 gpm at 10 ft TDH and 520 HP is very close to the current “winter” operating parameters at the station. The original pump station Contract Documents show pump operating lagoon levels between 95.0 and 97.0 feet. The pump manufacturer was contacted to determine the minimum allowable submergence for the installed pumps, which was confirmed that lagoon water level of

95.0 ft CSM is the lowest permissible water level recommended by the pump manufacturer.

The pump engine is rated for 545 hp. Figure 8 shows that operating the pumps at higher-thandesign system heads will exceed the rated horsepower of the engine. The original pump station Contract Documents specify pump horsepower rating of 520 BHP, which is likely also the approximate rating of the right-angle gear box.

Table 3. System Curve Parameters
Pump Wetwell Pumping Elevation
Forcemain Discharge
Elevation
Low Head Design summer lagoon level Forcemain discharge crown elevation
High Head New Year’s Eve lead pump stop
level
100-year tide elevation
Design Head New Year’s Eve lead pump start
level
Forcemain discharge crown
elevation
Dock Maintenance – Low Tide Dock maintenance lagoon level Low tide Dock Maintenance – High Tide Dock maintenance lagoon level High tide 545 of 653
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Figure 8: Pump and System Curves
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Pump Station Structure
The Marina Lagoon Pump Station is comprised of an intake structure with a passive trashrack, a sloped approach structure, wetwell sump with pump bays, and a discharge structure. The pumps are located at the back of the wetwell sump in individual pump bays with pump intake near the bottom of the sump. The pumps lift lagoon water through the pump housing to individual discharge pipes that outfall through flap gates to the Bay. The intake trashrack is approximately the same width as the wetwell. The trashrack is located on the sloped portion of the approach structure and spans the vertical distance from floor slab to roof slab. The trashrack is comprised of fixed vertical steel flat bars with horizontal spacing between bars to allow water to pass through but stop debris from entering the wetwell, thereby protecting pumps from ingesting debris. During large station flows debris collects on the trashrack and restricts flow. The higher the pump station flow rate, the more debris tends to collect on the rack and more restriction develops. Once the trashrack becomes clogged, the pumps draw the wetwell water level down below the lagoon water level and the pumps begin to become starved of water. In some cases, the pumps can draw water below safe operating levels and can cause adverse conditions that may result in increased wear on pumps or mechanical failure.

Storm Model Findings
Schaaf & Wheeler prepared a hydraulic computer model of the City’s storm drain, creek, and lagoon system to analyze the NYE storm and the outcome of having the pumps run with (1) the programmed set-points during the storm event with no pump failures, (2) the programmed setpoints during the storm with the recorded pump failures, and (3) the pump station design setpoints as described in Schaaf & Wheeler’s 2014 memorandum. Figure 9 shows there is no substantial difference in simulated lagoon water levels between the NYE logbook settings and 2014 memorandum settings assuming all pumps operate when called. The results show that if all pumps were running as intended, the lagoon water levels would have remained within design parameters. Refer to Schaaf & Wheeler’s Marina Lagoon New Year’s Eve 2022 Hydrology and Hydraulics memorandum for more details on the hydraulic study.

Figure 9: Simulation of lagoon and pump station system During the New Year’s Eve Storm 547 of 653
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Recommendations
Based on the findings of the Marina Lagoon Pump Station study, Schaaf & Wheeler has identified some short-term and long-term recommendations. The pump station is a terminal facility that is required to run during storm events to evacuate storm water from the interior drainage system and the recommendations provided are intended to help ensure reliable operation of the system.

Short-Term Recommendations
There are several short-term recommendations to improve pump station operation and reliability. We have separated the recommendations into two categories: maintenance / condition assessment, and improvements.

Maintenance and Condition Assessment
The pump station is nearing the end of its useful life, with many of the mechanical systems more than 35 years old. In order to maintain reliability of the pump station, the City has replaced or significantly overhauled certain major components including: pumps, gearboxes, electrical controls and level sensor over the years. In addition to the City’s previous work, we recommend additional condition assessment and maintenance as discussed below.

The diesel engines have not had major overhaul work performed to-date. The engine run-times are below a typical overhaul cycle (5,000 to 6,000 hours are currently on the engines) but the age of the engines also factors into the potential need for overhaul. As a first step, the engines should have a comprehensive condition assessment performed by a qualified contractor to check all critical engine systems including starting, cooling, combustion chamber, lubrication, fuel, and exhaust. During engine inspections, the PTO components should also be inspected for proper operation and wear. Engine 4 has known overheating and starting issues and may be a precursor to other engine issues. Engine oil samples should be sent to an oil analysis laboratory on an on-going basis to identify if there are warning signs of internal wear developing in the engines. Oil analysis is best performed on an ongoing basis to first set a baseline and then a progress comparison that may alert staff to potential issues.

The fueling system is made up of several components including buried storage tank, day tank, piping, pumps, and filters. Ongoing maintenance and condition assessment of these components will help ensure there are not failures during storm events and clean fuel is adequately delivered to engines.

A vibrational assessment should be performed on the pumps, especially if the City plans to operate the pumps below minimum pump submergence recommended by the manufacturer.

This vibrational assessment can help determine potential damage that can be caused by operating the pumps at lower water levels. The vibrational analysis can also identify mechanical components that are beginning to wear (bearings, shaft, propeller) and once a baseline is set, ongoing testing can help identify worsening conditions and allow the City to forecast preventative maintenance tasks prior to component failure.

The City previously replaced three of the five right-angle gear reduction boxes in 2005 due to failures of the original gear boxes. The replacement gear boxes were designed to withstand higher loads than the originals they replaced. The City may consider replacing the two 548 of 653
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remaining original gear boxes with new stronger units. When the pump system operates at higher hydraulic head conditions, increased stress is placed on all mechanical components and therefore can lead to premature failure of the components.

Lastly, the City should consider replacement of ancillary components that have a history of failures or reliability issues. Examples of components would be pump lubricators, electrical system relays and fuses, level sensors, batteries, and various systems’ pumps.

Short-term Improvements
Several immediate improvements at the pump station will provide increased reliability and help protect critical pumping system components.

The ultrasonic level sensor at the lagoon should be moved to a higher elevation to be able to measure high lagoon levels and be calibrated to provide accurate readings in the CSM datum. A land surveyor should be hired to record lagoon water levels tied to local benchmarks that have been recently verified for accuracy and can be compared to City-utilized LiDAR ground surface data. During the land surveying work, fixed staff gauges at the lagoon should also be surveyed to confirm correct readings on City datum. City staff should adjust level sensor programming to calibrate readings based on the land surveying work.

There is currently no level sensor in the pump station wetwell. A new level sensor should be installed to allow monitoring of wetwell water levels. Wetwell water levels should be monitored to ensure pumps do not operate below the manufacturer’s recommended minimum submergence due to clogged trashracks. The local PLC could be programmed to calculate the differential water level between the lagoon level sensor and the wetwell level sensor and alert City staff if the differential exceeds a predetermined maximum, thereby providing an alert that the trashrack likely requires cleaning.

In addition to the the wetwell level sensor, a wetwell low-level float switch should be installed and be configured to shutdown pumps at a safe water level and initiate an alarm condition regardless of PLC pump setpoints. The low-level float would operate as a mechanical backup to the PLC pump controls. The current wetwell high-level float should be calibrated to provide a mechanical backup alarm condition in case of PLC pump control failure.

Operations staff have indicated that the trashrack at the pump station becomes clogged with debris during storm events and when pumps are operational. The trashrack clogging increases as more pumps are operated and intake velocities increase. Since unrestricted flow to the wetwell is critical for reliable operation of the pump station, solutions to reducing debris load are recommended. One alternative is to install mechanical trashrack rake systems, which clean the racks on a continual basis. Installing mechanical rake systems requires comprehensive designs and potential electrical upgrades, in addition to structural assessments and site security provisions. A second alternative is to install floating log booms in the lagoon upstream of the trashrack to allow large debris to collect away from the trashrack and reduce clogging at the pump station. The floating log boom configuration would likely include two sections with each spanning from the island to the shoreline in front of the pump station intake.

Alarm and pump control issues during the storm event have indicated that the PLC and SCADA alarm systems need to be reviewed and coordinated. It should be investigated why engine general failure alarms were not triggered during the storm and why a replacement pump was 549 of 653
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not automatically started as back-up when a pump failed. Adjustments in the pump and alarm set points should be automatically communicated between the local PLC and SCADA systems.

Once the PLC program is revised and integrated, the pump control and alarm system should be field tested to verify that both the Engine Control Panel and the Pump Control Panel are operating as intended. It is encouraged that the City and operations staff collaborate in reevaluating the priority of SCADA alarms to ensure that critical pump station issues are not overlooked.

As part of the local PLC and pump control logic is revisited, upgrades to the PLC are recommended to provide expanded memory storage capacity in order to save local alarms and statuses for adequate days after a significant event occurs. The ability for City staff to review detailed alarms and system status that are only available on the local PLC is critical to determine what failures may have occurred and what remedies should be performed. The City should also confirm if the PLC and level sensor has a UPS or battery backup system. A UPS should be installed if it is not already present in order to reliably operate the pump station during power outages and allow faster response once the pump station backup generator is started and operational.

There appears to be several homes built down into the lagoon (Figure 10) and are likely more prone to flooding at elevated lagoon water levels. A land survey may help determine the lowest finished floor elevation of the homes to assist in identifying potential constraints for lagoon operational protocols and allow the City to communicate with the homeowners so they are aware of potential risks.

Figure 10: Homes more prone to flooding on the banks of Marina Lagoon 550 of 653
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Long-Term Recommendations
Long-term planning should include determining the preferred operational strategy for Marina Lagoon. The lagoon is a critical component of the overall storm drainage and flood control system maintained and operated by the City and therefore the operational strategy of the lagoon could have impacts on the overall performance of the City storm drain system. Once the lagoon operational strategy is determined, the Marina Lagoon Pump Station should be assessed for operational constraints and a preliminary design report should be prepared that outlines the alternatives for improvements to the station to meet the City’s lagoon operational strategy goals.

The pump station is nearing the end of its useful life, which should be taken into consideration as part of future long-term planning.

There are currently several operational constraints of the pump station that warrant further consideration. These constraints are summarized below.

The original pump station design anticipated lagoon water levels to operate between 95.0 and

98.0 feet CSM. The mechanical systems were designed around these operating parameters and there is not much, if any, flexibility for operating outside of these parameters for several reasons. The pumps are pumping at their minimum submergence at 95.0 ft. The required horsepower for the pumps (including gear box power consumption) is at the engines’ horsepower rating at 95.0 ft. The original gear boxes are designed to withstand the rated power output of the engines. For axial flow pump systems, as head (lift) increases, horsepower requirements increase and therefore as the lagoon levels are pumped lower, horsepower requirements of the pumping system increase.

As lagoon water levels decrease, intake velocities increase and velocities across the trashrack increase. Increased velocities at the trashrack increase the headloss across the trashrack and result in the further lowering of the wetwell water level below lagoon levels when the pumps are operating. The increased intake velocities also tend to pull more debris towards the trashrack, compounding the headloss issue.

It is recommended that the pumps do not operate at wetwell water levels lower than the minimum submergence stated by the manufacturer. Pumping the lagoon level down to the dock maintenance level is not encouraged because it will shorten the life of the pump, diesel engine and gearboxes. If necessary, the engine and gearboxes should be upgraded to handle the extra horsepower requirements. Furthermore, a wetwell hydraulic study is recommended to examine the potential for vortices formation at low pumping levels to help ensure the pumps can reliably operate at the lower water levels. Mitigation measures, such as altering the pump sump and installing baffles or splitter plates, can be taken to reduce the potential for pump-damaging vortices.
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THE FOLLOWING PUBLIC

COMMENTS WERE SUBMITTED

FOLLOWING THE PUBLICATION

OF THE AGENDA PACKET
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1 From: Mareva
Sent: Saturday, August 19, 2023 3:27:54 PM
To: City Council (San Mateo) <[email protected]>; Matt Fabry <[email protected]>; City Mgr <[email protected]>; Patrice Olds <[email protected]> Subject: Request to Match Actions with Words
Dear Mayor Lee, Deputy Mayor Diaz-Nash, Councilmember Hedges, Councilmember Lorraine, and Councilmember Newsom,
As a member of the Flood-Free San Mateo Coalition and the Adhoc Committee working directly with the Department of Public Works on SOPs for the coming winter, I want to remind you that endorsing the ballot measure is NOT enough to restore your credibility with the residents of San Mateo. In fact, if you do not support the DPW's fiscal needs, there will be even more opposition fanned by the growing opinion that a ballot measure is NOT needed and that the City of San Mateo should pay for everything outright. So, please, do not fan those fires.

The patience of many is being tested. The passing of this measure by the boots-on-the-ground residents will NOT get us ready for the already predicted severe storms looming just a few months away. We have worked directly with Matt Fabry, who is the most organized, diligent, and responsive director to date at Public Works, and his goal matches ours: minimize the risk of flooding damage, loss of property, and prevent loss of lives by prioritizing projects to get us ready NOW. He is a gem of both; rational, informed-thought and public responsiveness. We are happy and willing to work with him and his team and look forward to working with our new City Manager.

On Monday, trust his body of work, and our input, and support all the steps needing funding- not with words, but by taking fiscal action. In addition, Mayor Lee, please in your power as Mayor, see that Matt Fabry & PW gets a spot on EVERY CC AGENDA to report the progress of the coming winter's flood prevention and preparedness.

The time is NOW. I believe we can agree: Prevention is far cheaper than the cure! Mareva
Mareva Godfrey
Parenting and Family Life Coach: "The quality of your life is directly dependent on the quality of your relationships." Esther Perel Retired Master Teacher/ Resource Specialist/ Induction Mentor @SMFCSD 553 of 653
From: Genel Morgan
Sent: Monday, August 21, 2023 12:38 PM
To: Richard Hedges <[email protected]>; Adam Loraine <[email protected]>; Lisa Diaz Nash <[email protected]>; Amourence Lee <[email protected]>; Rob Newsom <[email protected]>
Cc: Patrice Olds <[email protected]>
Subject: Release emergency funds for flood control
Dear City Council Members,
As a long time San Mateo resident and owner of a home where my daughter and her family now reside in Glendale Village in San Mateo, I am strongly urging you to vote YES to release emergency funds to start dealing with the imminent threat of flooding in the city and continue to work with state and federal agencies that can provide more help.

If you don't do what is necessary to address this predictable disaster, I predict you will see consequences at the ballot box in the future.

The City Council continues to support building more and more housing, but dealing with city infrastructure needs to take priority right now.

Regards
Genel Morgan
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From: Patrice Olds
To: Martin McTaggart
Subject: FW: excessive rain water
Date: Monday, August 21, 2023 3:27:20 PM
Patrice M. Olds, MMC
City Clerk
City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403-1388
[email protected]
www.cityofsanmateo.org
(650) 522-7042
From:

Sent: Monday, August 21, 2023 3:20 PM
To: City Council (San Mateo) <[email protected]> Subject: excessive rain water
I understand you will be having a meeting tonight to discuss run off rain water and extra water that has filled our city historically when we have excessive rains
Last winter it was really noticeable several times and the water comes down EAST TO WEST in my area . I live at the last block before the Borel Shopping Center. Most often the water flows down the block to Barneson to the drain on the NW corner effectively ,,,The excessive amount of water is also very visible coming down Barneson from Alameda past Borel JHS,,,Maple street which is basically very flat gets the water accumulating on those Northern corners.

However several days last year I walked down Borel Avenue and turned left on Jasmine street and the water running down was excessive of course so i walked in the middle of the street as it had a slightly higher elevation...yes the water was up almost to my ankles At Jasmine street I made my left turn by Spice Restuarant and arrived at El Camno the sidewalks were overflowing and the cars were in lots of water on EL CAMINO,,,only one lane was usable going southbound as the amount of water by Mc Donalds was really high I waded to McDonalds on the side walk and the walkway up to the entrance kept most water from coming in ,,,The Parking lot was full of water of course ,,so my feet and socks were drenched,,,This happened for two straight days and then on the third I decided not to go out
Bottom line our tax revenues need to be used to address water tables and locations that suffer from water causing flooding I know there are other people who have other similar stories ,,Bottom line is that our infrastructures are being ignored,,,I want the city to get the crews out to insue that all outdoor drains are fully working and empty so this water can properly drain instead of being full and the excess water stands there for days ...I personally took my broom down to the corner and pushed some leaves away so the drain can accept some water,,,Yes it helped many tree limbs and leaves were there,,,This was just one location so obviously all drains must be attended to ,,, Do we need drain committees for every block???I honestly do not think our citizens are progressive enough to go out and do these knd of tasks so it really depends on our PUBLIC WORKS depts to do these tasks to empty drains Preventative maintenance to trim back limbs is being done properly so I will not attack this at all but perhaps more vigorous actions should be done
That being said , I want the City to reduce the buiding premits being issued A moratorium needs to be made as it is obvious that this over building in San Mateo cannot handle this sprawl of increased density ,,,Our infrastructures cannot handle even the flows of water during storms ,,We have a planning commissioner named MR EBETNER or 555 of 653
similar spelling who I specifically blame for much of this as his fanatical approvals for builidng locations does not include infrastructure studies at all Please remove him Rick Karr
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Discrimination Complaint in Flood Repair-Building Permit -Public Hearing Comments 8-21-2023 1 Dear Mayor and City Councilmembers,
I am a flood victim of the New Year’s Eve 2023 Flood Disaster.

I am being Discriminated and Retaliation against, in obtaining a Flood Repair building permit.

I am being discriminated by the Building Official Mike Titsworth; he refuses to implement the previously approved ADA Reasonable Accommodation in building permit process that granted a retroactive development building permit pursuant to sb1221 that became state housing law effective Jan. 1, 2019.

Prior to Mr. Titsworth appointment to his now leadership position, the city had previously “granted” me, ADA Reasonable Accommodations in Nov. 2019 in the building permit process, to legalize an unpermitted ADU built in 1994. Mr. Titsworth has engaged in retaliation, intimidation discrimination actions to prevent me from summiting building permit plans and application consistent with the approved ADA reasonable accommodations.

This discrimination has been ongoing for three years, and now has become URGENT because Mr. Titsworth refuses to allow an emergency building permit to repair flood damage caused on New Year’s Eve 2023 state declared disaster.

In other words, this discrimination was been ongoing before the New Year’s Eve flood disaster, however now the matter is urgent because I am displaced from the flood and Mr. Titsworth continues his same discrimination and retaliation practice, he is now strong-arming my urgent need for flood repairs by holding my building permit hostage, unless I abandoned the approved Reasonable Accommodation previously granted using the 1994 development standard for review pursuant to a building permit.

Community Development Director Komar Kojayan, in her Nov. 15, 2019 approval letter specifically states:
“The building division and staff has explained on multiple occasions, both in person and in writing, that they “are willing” to evaluate your plans according to the building standards and codes in effect at the time the basement was constructed, and also provide reasonable accommodations as to the application of those standards and codes”.
“If you would like the city to apply the building standards and codes in effect when the basement was constructed, please provide some documentation evidencing the date of construction”.

The city’s grant; allowed me to summit building permit plans retroactively to the time when the ADU was constructed in 1994. The granted accommodations allowed me to utilized the 1994 development standards in summiting building plans for review in obtaining a building permit.
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Discrimination Complaint in Flood Repair-Building Permit -Public Hearing Comments 8-21-2023 2 For the past five years Mr. Titsworth has unlawfully interfered in my continuous efforts to legalized my ADU affordable housing project.

Mike Titsworth via intimidation and threats against my civil engineer expert Bill Wong with professional dispensary complaints against his engineer license; unless Mr. Wong submitted ADU building permit plans based on current building codes and development standards. Mr.

Titsworth specifically prohibited Mr. Wong and I from utilizing/summitting development building permit plans for review. Specifically, Mr. Titsworth prohibited my use city’s electronic submittal process thereby refusing my participation in city programs and services in creating affordable housing opportunity for persons with disabilities.

Failure to provide reasonable accommodation is defined by the Department of Justice and ADA as discrimination. Here the city approved the requested reasonable accommodation however the then freshman building official, Mr. Titsworth refused to allow the accommodation to be implemented, instead Mr. Titsworth has created barrier after barriers to impede any kind of process or procedures to implement the city’s housing element program of the General Plan.

After many staff complaints regarding Mr. Titsworth discrimination practices and lack of ADA decision making training, Mr. Titsworth has now been promoted and now hold an Exective Officer as the Acting Deputy Director of the Community Development Department, yet Mr.

Titsworth has zero ADA decision-making training thereby inept in administering housing element reasonable accommodation program and service.

On New Year’s Eve 2023 flood event my ADU flooded and I summitted a building permit to repair and replace the flood damage from the state declared disaster.

Mr. Titsworth is now again discriminating me via “strong arm” tactic whereby he prohibits my access to city services and programs by prohibiting my ability to summit plans and have them reviewed in a timely manner. Mr. Titsworth has over-reached his authority by refusing to implement development standard previously approved via reasonable accommodation without cause or explanation to cause me intentional harm and substantial damages.

I have repeated requested the assistance of the City’s ADA Coordinator for David Fink, however he left the city three years ago, and the city has not replaced the ADA Coordinator, leaving me without a voice, due process, grievance/appeal procedures and without anybody to engage in a timely good faith interactive dialog and ADA advocate to instill ADA laws and standards.

City Councilmembers, reasonable accommodations are hereby made for the City Council to revalidate the Community Development Directors reasonable accommodation grant dated November 15, 2019 and expert evidence, letter signed and wet stamped dated July 26, 2022 by Civil Engineer Bill Wong.

ADA Reasonable Accommodation are mandated by the City General Plan, Housing Element.

City Councilmembers, my request is urgent, as I am a person with disabilities and have been displaced by the flooding event.
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Discrimination Complaint in Flood Repair-Building Permit -Public Hearing Comments 8-21-2023 3 Further, Mr. Titsworth refuses to allow the City of San Mateo Reasonable Accommodation Ordinance 27.79 which articulated program standards and procedures, this program is offered by the San Mateo Community Development Department which Mr. Titsworth is the Deputy Director, yet Mr. Titsworth has zero ADA training in the decision-making process for reasonable accommodation request, therefore he is inept from administration of housing element Reasonable Accommodation Ordinance 27.79.

Further, Mike Titsworth does not possess any ADA decision-making training therefore lacks compliance with ADA decision-making standards, causing discrimination culture among executive staff.

City Councilmembers, I am without process and the discrimination and harassment and damages are on-going. Please revalidate the said reasonable accommodation previously granted. The granted reasonable accommodations were taken away without cause or lawful reasoning in violation of ADA laws and standards amounting to discrimination and intentional interference in the implementation of housing reasonable accommodations.

City Councilmembers, please direct Mike Titsworth to comply with the City’s previously approved reasonable accommodation on Nov. 15 2019 letter attachment herein.

Shawn Mooney
1241 Shoal Drive
From: Shawn Mooney
Sent: Monday, August 14, 2023 8:18 AM
To: Mike Titsworth
Cc: Mary Eusebio
Subject: Mike Titsworth New Year Eve Flood Repair permit & Finalize ADU building permit pursuant to ADA Reasonable Accommodations Granted Nov 2019 & City fee waiver flood relief program Hi Mike, I applied for an express building permit on 7-31-2023 to repair and replace flood damages that occurred on New Year’s Eve disaster to my ADU. I would like to combine my flood repair building permit with my outstanding ADU building permit.

I would like to hit the “reset button” moving forward, and request your willingness to do the same, so that I may have a clear path in obtaining my ADU housing building permit.

The current condition of my ADU is completely empty of all contents, open walls, no insolation or sheetrock.

That said, I am requesting a pre-wall closure city inspection. It’s my belief all code violations identified five years ago have all been completed, pursuant to the building codes and building standards in place at the time the ADU was constructed in 1994.

As you know the city previously granted my ADA reasonable accommodation request via the Community Development Director letter dated November 15, 2019 attached. 559 of 653
Discrimination Complaint in Flood Repair-Building Permit -Public Hearing Comments 8-21-2023 4 This ADA reasonable accommodation was granted prior to your appointment as the new Building Official with the consent of the previous Building Official as described in the said November 15, 2019 letter.

Further, the granted reasonable accommodation letter by the Community Development Director was copied to the then (2019) City Manager, City Attorney and Acting Building Official without any objection.

Mike, I am requesting an inspection ASAP to verify code and flood repairs meet or exceed the 1994 building code standards.

Mike, I have an urgent need to complete the flood damage repairs immediately as the flood damage has caused me to be displaced from living in my ADU until the repairs are completed.

Notable, after the new year eve flood the city hired a consultant to identify the cause of the flood.

“The model ultimately indicates that with all five pumps operating at their respective set levels during the storm (without failures), the water level in the lagoon should have fallen significantly during the trough between rainfall peaks to approximately elevation 96.2 feet CSM. The water level would have then peaked at approximately elevation 97.4 feet CSM, or 2.5 feet NAVD.

Instead, the failure of one engine to start as intended followed closely by the simultaneous failure of four engines for approximately 40 minutes allowed the water level to rise by 0.7 foot over the predicted first peak had all engines operated as planned. The continued failure of Engine 4 to start did not allow for drawdown to occur at all between peaks.

Instead, the water level plateaued until the second influx of runoff occurred, pushing the water level to its maximum of approximately elevation 98.4 feet CSM, or 3.5 feet NAVD”.

Mike, as you know the city approved a fee waiver of building permit fees for the flood repair victims. See the attached city web page published announcement that specifically states to participate in the fee waiver resolution to contact the building department. I am requesting to participate in the flood relief program.

Notable, the city approved the fee waiver permit after the Schaaf & Wheeler report was already published, thus the cause of the flood was known. Notable, the Schaaf & Wheeler report is scheduled to be before the City Council on August 21, 2023, including an anticipated Executive Staff Report that has not yet been published.

Mike, as you know the state ADU housing laws have substantially relaxed in favor of creating affordable ADU housing to mitigate the state housing shortage crisis. Please factor into your consideration here, the many ADU housing laws that has changed in support of affordable housing including affordable housing for people with disabilities in the past five years. The 560 of 653
Discrimination Complaint in Flood Repair-Building Permit -Public Hearing Comments 8-21-2023 5 urgent flood repairs are needed to mitigate further damages caused by my displacement to a declared state disaster event by the California Governor.

Kind Regards,
Shawn Mooney
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New Year’s Eve Storm
Status Report and
Staff Direction
Matt Fabry, P.E.

Deputy Director – Public Works Department
Chuck Anderson, P.E.

President – Schaaf & Wheeler
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Agenda
• Overview
• Storm Drainage 101
• The New Year’s Eve Storm
• The Marina Lagoon
• Schaaf & Wheeler Analysis
• Wet Weather Preparation
• Staff Recommendation/Next Steps
• Council Feedback & Direction
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• New Year’s Eve
storm &
significant
flooding
throughout
community
• Council request
for analysis of
storm & response
• Community calls
for action
• Outreach &
engagement
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Council Feedback & Direction
Staff is requesting Council feedback and direction on:

1. Are there any questions on the New Year’s Eve Storm Analysis?

2. Does Council concur with staff’s proposed three-phased approach to implementing and funding additional storm
preparedness actions?

3. Any feedback on the proposed storm outreach/communication strategy?
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STORM DRAINAGE 101
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Stormwater System
Our stormwater system comprises:
130 miles
of storm drain
pipes, 5,800
catch basins
20 miles
open creeks
& drainage
channels
(public & private)
1 flood control
lagoon
(Marina Lagoon)
10 pump
stations
3-miles
Bayfront
levee
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• North Shoreview/Pump Stations District
• San Mateo Creek
• Third & Detroit Pump Station
• 16th Avenue/Leslie Creek
• 19th Avenue/Borel Creek
• Laurel Creek
• Mariners Island/Direct to Marina Lagoon
Background
Watersheds
Population
105,000
Area
12 sq. mi.
land
Seven major watersheds
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Sewer Lateral
Sewer Pipe
Drain Inlet /
Catch Basin
Wastewater is collected into
the sanitary sewer system and
flows to the treatment plant
Stormwater Pipe
Surface runoff enters
the stormwater system
and flows to waterways
Sanitary Sewer vs. Stormwater Systems
Manhole Gutter
Road
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Wet Weather Prep
• Clearing catch basins with trash
capture devices in known
problem areas
• Cleaning trash racks/devices
• Removing leaves & debris
• Preparing pump stations
• Managing Marina Lagoon
• 24/7 public sandbag stations
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NEW YEAR’S EVE STORM
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What we expected (1 inch) vs. What we saw (5 inches)
New Year’s Eve
Weather Forecast vs. Actual
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New Year’s Eve
Actual Rain
San Mateo, particularly
south of Highway 92 and
northeast of Interstate
280, had some of the
heaviest local rainfall
totals during the NYE
2022 storm event, with a
12-hour total of 4.54
inches of rain.
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Rainfall Duration
(hours)
Rolling Maximum Depth
(inches)
Annualized
Return Period*
1 0.93 35-year
2 1.61 125-year
3 1.97 115-year
6 2.42 50-year
12 4.54 300-year
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14 575 of 653
15 576 of 653
16 577 of 653
Storm Response
• Opened 24/7 Emergency
Operations Center – twice
• Proclaimed local emergency
• Secured & distributed 2,000 cubic
yards of sand at 2 sandbag stations
• 24/7 operations, increased Public
Works staffing, PW call center
• Prepared to pre-emptively close
roads
• Set up City Hall as evacuation site &
temporary shelter
• Worked with SFPUC to plan for
possible reservoir spill to San
Mateo Creek
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Community Collaboration
• Two focused meetings with Marina Lagoon residents
• Two broad community meetings
• Ongoing engagement with Flood-Free San Mateo
Coalition leaders
• Collaboration with community on Standard Operating
Procedures for Marina Lagoon Pump Station
• Ongoing education regarding Community Flood and
Storm Protection Initiative
Recovery Support
• Storm Damage Fund - 47 grants to
residents & businesses = $178,395
in direct financial support
• City undergoing lengthy FEMA
reimbursement process
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THE MARINA LAGOON
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A Closer Look
The Marina Lagoon System
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A Closer Look
The Marina Lagoon System
South End
Tide Gate
O’Neill Slough
Laurel
Creek
Inlet
Borel
Creek
Inlet
Leslie
Creek
Inlet
Marina
Lagoon
Pump
Station
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A Closer Look
The Marina Lagoon System:

Diesel-Driven Discharge Pumps
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Pump Station
Operation on NYE
• Rapid lagoon level rise
in early hours
• Multiple engines failed
between 5-8 AM
• Replacement pumps
not called on failures
• One engine had
problems all day
• Alarms not called out
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SCHAAF & WHEELER ANALYSIS
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25 Rainfall
Design Storm Used to Establish BFE in 2014
NYE 2022
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26 1988: Elevation 98 ft. CSM Datum / 3.1 ft. NAVD 1984 Hopper Report 526 acre-ft
2017 County LiDAR
135 acre-ft
428 ac-ft
(+6%)
Lagoon Storage
2017 M&N Survey
441 acre-ft
(-29%)
622 acre-ft Past Present

94.79 ft CSM
2014: Elevation 97.3 ft. CSM Datum / 2.4 ft. NAVD / 2 ft. NAVD 100 Yr. Base Flood 1988: Elevation 95 ft. CSM Datum / 0.1 ft. NAVD
1960s: Elevation 91 ft. CSM Datum
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27 12/31/22, 4:40 PM
Model Verification for NYE

98.45 feet CSM – 94.94 feet = 3.51 feet NAVD
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28 Lagoon Water Levels
12/31/22, 4:40 PM
Findings 589 of 653
29 • Had All Marina Lagoon Pumps
Operated when Called during NYE:

1. Flooding from 16th Ave Channel
upstream of Highway 101

2. Some flooding around 19th Ave
Channel (Borel) upstream of Highway
101

3. Spill from Laurel Creek at George Hall
School Culvert

4. Isolated other flooding, mostly
contained in streets downstream of
Highway 101
*Very shallow flooding (<1” in depth) not shown
Findings 590 of 653
30 w/Failures
w/o Failures
Flood Extent
(>1” Depth)
Findings 591 of 653
31 w/Failures
w/o Failures
Flood Extent
(>1” Depth)
Findings 592 of 653
32 w/Failures
w/o Failures
Flood Extent
(>1” Depth)
Findings 593 of 653
33 Summary

1. The NYE event in San Mateo was greater than
the FEMA 100-year design event used to
establish Marina Lagoon’s base flood
elevation.

2. Maximum Lagoon levels were about 1 foot
higher during the storm than they would have
been had pumps been called per the logbook
settings and all pumps operated when called.

3. Most of the street flooding shown during the
simulated storm results from inadequate
storm drain and creek capacity rather than
higher than expected Lagoon levels.

4. The most important preventative measure is
to ensure that all pumps are operational
when called.
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WET WEATHER PREPARATION
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Staff Recommendation – A Sequenced Approach
35 • Approach based on capacity, sequencing, and one-time funding • Immediate Actions – focus on upcoming rainy season
• Most require no additional resources
• Several require more resources to implement
• Short-Term – next 6-12 months
• Require additional resources, prepare for future rainy seasons, lay foundation for mid-term actions
• Mid-Term Actions
• Actions foundational to long-term, but best after short-term • Update needs and prioritize implementation
• Prepare for Marina Lagoon dredging
• Staff not recommending resource allocation at this time – need more data and better scoping 596 of 653
Immediate-term Actions – No Add’l Resources Needed
Project/Task
A Additional Marina Lagoon Pump Station pump vibration analysis at summer lagoon levels B Develop Marina Lagoon Alternatives Analysis for Pumping Below 95’ C Install debris rack at 4000 Pacific Boulevard Pump Station D Provide data on City’s website for Marina Lagoon levels and pumps running E Implement additional safety systems for trash rack cleaning at Marina Lagoon Pump Station F Develop an RFP to update the 2004 Storm Drain Master Plan and develop a prioritized implementation strategy G Inspect and clean all City-owned trash capture devices H Inspect and clean all City-owned trash racks
I Inspect and clean all storm pump station wet wells
J Prepare traffic control/closures and stage materials for roads with known flooding concerns K Coordinate with Office of Emergency Services on wet weather planning and training L Work with community on Marina Lagoon Pump Station Standard Operating Procedures M Establish a Marina Lagoon Resident Flood Watch communication program N Coordinate improved public outreach and messaging on emergency preparations 36 597 of 653
Outreach, Education, & Engagement
• Print & electronic mailers • Outreach at upcoming General Plan Town Halls, Bayfront Clean up event • Digital ad campaign & social media • Storm preparedness tips (www.cityofsanmateo.org/floodprep) • Continue to use emergency alert systems, as needed (SMC Alert & Nixle) • Rain barrel rebate program • Adopt a Drain Program (www.cityofsanmateo.org/Adopt-a-Drain)
www.cityofsanmateo.org/stormwater
Over 16k+ views
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Immediate-term (Phase I) Actions Requiring Additional
Resources
Project/Task
Funding Need
Est. Min.

Cost
Est. Full
Cost
1 Perform maintenance on all five diesel engines, upgrade wiring, programming, and alarms, and purchase a spare pump lubricator system at Marina Lagoon Pump Station (see separate August 21, 2023 Council agenda item requesting a budget appropriation and contract) 2 $ 500,000 $ 500,000 2 Deploy up to five (5) Sand Bag stations throughout the City for upcoming rainy season, with focus on areas with history of flooding, and coordinate with community volunteers for filling bags, monitoring stations 3 $ 30,000 $ 50,000 3 Inspect and clean all catch basins before rainy season and recurring cleaning at hot spots throughout rainy season 4 $ 350,000 $ 500,000 38 599 of 653
Short-term actions requiring additional resources
Project/Task
Funding Need
Est. Min.

Cost
Est. Full
Cost
4 Localized lagoon maintenance dredging under existing permit 5 $ 1,200,000 $ 1,200,000 5 Localized, small-scale drainage improvements 6 $ 275,000 $ 1,050,000 6 Camera monitoring of priority creeks/trash racks 7 $ 150,000 $ 225,000 7 LiDAR aerial survey (Ground surface, creeks, & lagoon bathymetric) $ 600,000 $ 1,000,000 39 600 of 653
Mid-term actions requiring additional resources
Project/Task
Funding Need
Est. Min.

Cost
Est. Full
Cost
8 Storm Drain Master Plan update $ 450,000 $ 2,475,000
Model Update, Alternatives Analysis, Prioritization, Report $ - $ 500,000 Storm Drain Condition Assessment 8 $ 375,000 $ 1,850,000 Pump Station Condition Assessment 9 $ 75,000 $ 125,000
9 Marina Lagoon dredging: Design, environmental, & permitting $ 1,250,000 $ 1,475,000 Environmental study $ 300,000 $ 300,000
Permitting $ 200,000 $ 200,000
Design 10 $ 750,000 $ 975,000
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Staff Recommendation
Sequenced Implementation:
• Immediate, Short-Term, and Mid-Term Actions
Consider Appropriation of $3 M for Immediate and Short-Term • $1.9 M General Fund from State’s VLF appropriation
• State’s VLF appropriation was not planned in adopted
budget, consistent with past practice
• $1.1 M Rainy Day Reserve
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Next Steps
Immediately start work to perform necessary maintenance and programming at the Marina Lagoon Pump Station
If Council supports the staff recommendation, staff would:
• Bring back a $3M appropriation action on September 5 for items 1-7.

Items to approve contracts, as needed, would be brought back as soon as possible.
• Public Works staff will begin cleaning catch basins and capture devices starting in September
• Start design process for future localized lagoon dredging project. 42 603 of 653

COUNCIL FEEDBACK & DIRECTION
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Council Feedback & Direction
Staff is requesting Council feedback and direction on:

1. Are there any questions on the New Year’s Eve Storm Analysis?

2. Does Council concur with staff’s proposed three-phased approach to implementing and funding additional storm
preparedness actions?

3. Any feedback on the proposed storm outreach/communication strategy?
44 605 of 653
Thank You
Matt Fabry, P.E
Deputy Director – Public Works Department
[email protected]
650-522-7309
45 606 of 653

CITY OF SAN MATEO

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 29 Section Name: NEW BUSINESS Account Number: 10-5131 File ID: 23-7709 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Police Department
MEETING DATE: August 21, 2023
SUBJECT:

Tobacco Retailer Permit Amendments – Ordinance Introduction RECOMMENDATION:

Introduce an Ordinance to amend San Mateo Municipal Code Chapter 7.41 "Tobacco Retailer Permit" to consolidate and clarify existing definitions and enact additional requirements for tobacco retailer permits.

BACKGROUND:

San Mateo Municipal Code Chapter 7.41 provides that sellers of any tobacco product must obtain and maintain a valid tobacco retailer permit. The City of San Mateo authorizes personnel from the San Mateo County Health Department to administer and enforce the requirements of San Mateo Municipal Code Chapter 7.41 "Tobacco Retailer Permit" on behalf of the City. Recently, the San Mateo County Board of Supervisors adopted an ordinance to amend the San Mateo County Code related to Tobacco Retailer Permits. The County Health Department has indicated it will continue to administer a tobacco retailer permit program for those cities which adopt the County’s same comprehensive ordinance in its entirety.

The San Mateo Police Department wishes to continue to partner with the County to administer a tobacco retailer permit program in the City of San Mateo. The proposed amendments to Chapter 7.41 will add definitions to incorporate best practices across the state, strengthen ordinance language to reduce youth access to tobacco products, and make the San Mateo Municipal Code consistent with the San Mateo County Code, thereby promoting more efficient administration and enforcement.

Staff recommends introduction of the Ordinance to provide consistency and maintain the City's interest in providing stringent regulation for the sale of tobacco products.

BUDGET IMPACT:

No budget impact is anticipated as a result of the revised ordinance.

ENVIRONMENTAL DETERMINATION:

In accordance with California Environmental Quality Act (CEQA) Guidelines, section 15378(b)(5), adoption of this ordinance is categorically exempt from CEQA as an administrative activity that will not result in a potentially significant physical impact on the environment.

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 – Proposed Ordinance
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CITY OF SAN MATEO
Att 2 – Proposed Ordinance – Track Changes

STAFF CONTACT
Ed Barberini, Chief of Police
[email protected]
(650) 522-7600
Tricia Toomey, Business Manager
[email protected]
(650) 522-7623
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CITY OF SAN MATEO

DRAFT ORDINANCE
Amending Chapter 7.41 “Tobacco Retailer Permit” of the San Mateo Municipal Code WHEREAS, the City of San Mateo has authorized personnel from the County of San Mateo to administer and enforce Municipal Code Chapter 7.41 “Tobacco Retailer Permit” on behalf of the City; and WHEREAS, the San Mateo County Board of Supervisors recently adopted an ordinance to amend the San Mateo County Code related to Tobacco Retailer Permits; and WHEREAS, San Mateo County has indicated it will continue to administer a tobacco retailer permit program for those cities which adopt the County’s same comprehensive ordinance in its entirety; and WHEREAS, the San Mateo Police Department wishes to continue to partner with the County to administer a tobacco retailer permit program in the City of San Mateo; and WHEREAS, the proposed amendments to Chapter 7.41 will add definitions to incorporate best practices across the state, strengthen ordinance language to reduce youth access to tobacco products, and make the San Mateo Municipal Code consistent with the San Mateo County Code, thereby promoting more efficient administration and enforcement.

NOW, THEREFORE, THE COUNCIL OF THE CITY OF SAN MATEO ORDAINS AS FOLLOWS:

Section 1. Section 7.41.005 of the San Mateo Municipal Code is added to Chapter 7.41 as follows:

7.41.005 Definitions.
(a) "Characterizing Flavor" means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a Tobacco Product or any byproduct produced by the Tobacco Product.

Characterizing flavors include, but are not limited to, tastes or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A Tobacco Product shall not be determined to have a Characterizing Flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a Characterizing Flavor. (b) "Constituent" means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a Tobacco Product during the processing, manufacture, or packing of the Tobacco Product.
(c) “Consumer” means a person who purchases a Tobacco Product for consumption. (d) “Coupon” means any voucher, rebate, card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a discounted price. 609 of 653
(e) “Director” means the Chief of San Mateo County Health, or designee. (f) "Distinguishable" means perceivable by either the sense of smell or taste. (g) “Electronic Smoking Device” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e- hookah. Electronic smoking device includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine, and whether natural or synthetic. “Electronic Smoking Device” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.
(h) "Flavored Tobacco Product" means any Tobacco Product that contains a Constituent that imparts a Characterizing Flavor.
(i) “Full Retail Price” means the price listed for a Tobacco Product on its Packaging or on any related shelving, advertising, or display where the Tobacco Product is sold or offered for Sale, plus all applicable taxes and fees if such taxes and fees are not included in the listed price. (j) “Labeling” means written, printed, pictorial, or graphic matter upon any Tobacco Product or any of its packaging.
(k) “Packaging” means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a Tobacco Product is sold, or offered for Sale, to a Consumer. (l) “Permit” or “Tobacco Retailer Permit” means a valid permit issued by the Director to a Person to act as a Tobacco Retailer.
(m) “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other entity. (n) "Pharmacy" means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for Sale, regardless of whether the retail establishment Sells other retail goods in addition to prescription pharmaceuticals. (o) “Sale” or “Sell” means transfer to, exchange, barter, or distribute for a commercial purpose. (p) “Self-Service Display” shall be defined as the open display or storage of Tobacco Products in a manner that is physically accessible to the general public without the assistance of the retailer or employee of the retailer and a direct face-to-face transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display. (q) “Tobacco Paraphernalia” means any item designed or marketed for the consumption, use, or preparation of Tobacco Products.
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(r) “Tobacco" or "Tobacco Product(s)" means:
(1) any product containing, made of, or derived from tobacco or nicotine, whether natural or synthetic, that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;
(2) any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine, and whether natural or synthetic; or (3) any component, part, or accessory of (1) or (2), whether or not any of these contains tobacco or nicotine, whether natural or synthetic, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.
(4) “Tobacco Product” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose. (s) “Tobacco Product Flavor Enhancer” means a product designed, manufactured, produced, marketed or Sold to produce a Characterizing Flavor when added to a Tobacco Product. (t) “Tobacco Retailer” means any Person who Sells, or offers for Sale, Tobacco Products. This definition is without regard to the quantity of Tobacco Products sold or offered for Sale. (u) “Youth-Populated Area” means a parcel of real property that is occupied, in whole or in part, by any of the following:
(1) a private or public school that educates children in grades kindergarten through high school; (2) a library that is open to the public;
(3) a playground that is open to the public;
(4) a youth center, defined as a facility where children ages 6 to 17 come together for programs and activities;
(5) a recreation facility open to the public, defined as an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes. “Recreation facility” includes, but is not limited to, a gymnasium, playing court, playing field, and swimming pool;
(6) a public or private college or university that serves as an institution for education beyond the high school level;
(7) a licensed child-care facility or preschool, other than a small-family day care home or a largefamily daycare home as defined in California Health & Safety Code § 1596.78. 611 of 653
Section 2. Section 7.41.010 of the San Mateo Municipal Code is amended as follows:

7.41.010 Requirement for a Permit.
(a) No Tobacco Retailer or other Person shall Sell or offer for Sale any Tobacco Product without a current and valid Tobacco Retailer Permit from San Mateo County for each location where such activities are conducted. (b) Permits are valid for one year and must be timely renewed annually by the Permit holder in order to continue to sell or offer for sale any Tobacco Product. A Retailer must obtain a separate Permit for each location at which any Tobacco Product will be sold, offered for sale or distributed. A Permit that is not renewed in a timely manner shall expire at the end of its term, and the Tobacco Retailer must obtain a new Permit prior to any further sale, offer for sale, or distribution of any Tobacco Product. (c) No Tobacco Retailer shall violate, or cause or allow the Tobacco Retailer’s agents or employees to violate, any provision of this Chapter or any other local, state, or federal law applicable to Tobacco Products or Tobacco Retailing.
(d) Tobacco Retailers are responsible for the actions of their employees and agents relating to the sale, offer to sell, and furnishing of tobacco products at the retail location. The sale of any tobacco product by an employee shall be considered an act of the tobacco retailer and the permit holder shall be responsible for any monetary penalties levied.
(e) Nothing in this Chapter shall be construed to penalize the purchase, use, or possession of a Tobacco Product by any Person not engaged in Tobacco Retailing.

Section 3. Section 7.41.015 of the San Mateo Municipal Code is added to Chapter 7.41 as follows

7.41.015 Permit Conveys a Limited, Conditional Privilege.

Nothing in this Chapter shall be construed to grant any Person or entity obtaining and maintaining a Permit any status or right other than the limited, conditional privilege to Sell Tobacco Products and act as a Tobacco Retailer at the location in the County identified on the face of the Permit for the period of time shown on the Permit. All Permits are issued subject to the County’s right to amend this Chapter from time to time, and Retailers shall comply with all provisions of this Chapter, as amended.

Section 4. Section 7.41.020 of the San Mateo Municipal Code is amended as follows:

7.41.020 Application, Issuance and Renewal Procedure.
(a) Application for a Tobacco Retailer's Permit or the renewal of a Tobacco Retailer Permit shall be submitted in the name of the Person proposing to conduct retail sales of Tobacco Products, referred to herein as the “Applicant,” and shall be signed by such Person or an authorized agent thereof. All applications shall be submitted to the Director on a form supplied by the Director and contain, at a minimum, the following information:
(1) The name, address, and telephone number of the Applicant; 612 of 653
(2) The business name, address, and telephone number of the location where Tobacco Products are proposed to be sold, offered for sale or distributed by the Applicant; and (3) Proof that the location for which a Tobacco Retailer’s Permit is sought has been issued a valid state license for the sale of Tobacco Products, if the Tobacco Retailer sells products that require such license;
(4) A statement whether or not the Tobacco Retailer or any agent of the Retailer has been found to have violated this Chapter or other applicable law governing Tobacco Products or Tobacco Retailing and, if so, the dates and locations of all such violations within the previous five years; and (5) Such other information as the Director determines is necessary for implementation of this Chapter.
(6) An application for a new or renewal Permit will be denied if there are any outstanding fines or late fees issued by the Director, or during any period of suspension. (7) It is the responsibility of each Permit holder to be informed regarding all laws applicable to Tobacco Retailing, including those laws affecting the issuance of a Tobacco Retailer Permit. No Permit holder may rely on the issuance of a Permit as a determination by San Mateo County that the Permit holder has complied with all laws applicable to Tobacco Retailing. A Permit issued contrary to this Chapter or any other law, or on the basis of false or misleading information supplied by the Applicant, shall be revoked. Nothing in this Chapter shall be construed to vest in any person or entity obtaining or maintaining a Tobacco Retailer’s Permit any status or right to act as a Tobacco Retailer in contravention of any provision of law.

Section 5. Section 7.41.030 of the San Mateo Municipal Code is amended as follows:

7.41.030 Display of Permit.

Upon receipt of an application for a tobacco retailer's permit in compliance with the requirements of this Chapter, the Director or designee may issue a permit which, if issued, must be prominently displayed in a publicly visible location at the location where tobacco product sales are conducted and permitted.

Section 6. Section 7.41.031 of the San Mateo Municipal Code is added to Chapter 7.41 as follows:

7.41.031 Prohibitions Regarding Coupons, Discounts, Pharmacies, Flavored Tobacco, and Electronic Smoking Devices.
(a) No Tobacco Retailer shall do any of the following:
(1) Honor or redeem, or offer to honor or redeem, a Coupon to allow a Consumer to purchase a Tobacco Product for less than Full Retail Price;
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(2) Sell any Tobacco Product to a Consumer through a multiple package discount or otherwise provide any such product to a Consumer for less than the Full Retail Price in consideration for the purchase of any Tobacco Product or any other item; or
(3) Provide any free or discounted item to a Consumer in consideration for the purchase of any Tobacco Product.
(b) No Person, Tobacco Retailer or other legal entity shall sell or distribute to a person any electronic smoking device that delivers natural or synthetic nicotine or any other substance(s) to the person inhaling from the device. This includes any component, part, or accessory intended or reasonably expected to be used with the electronic device, whether or not sold separately.
(c) No Person or Tobacco Retailer shall sell or offer to sell any Flavored Tobacco Product or Tobacco Product Flavor Enhancer. There shall be a rebuttable presumption that a Tobacco Product is a Flavored Tobacco Product if a manufacturer or any of the manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the Tobacco Product has or produces a Characterizing Flavor including, but not limited to, text, color, and/or images on the product's labeling or packaging that are used to explicitly or implicitly communicate that the Tobacco Product has a Characterizing Flavor.
(d) No Pharmacy or Pharmacy employee or agent shall sell or offer to sell any Tobacco Product. The Director shall not issue any new, or renew any existing, Tobacco Retailer Permit for any Pharmacy. (e) Subdivisions (b) and (c) of this Section shall not apply to the duty- free stores located at the San Francisco International Airport.

Section 7. Section 7.41.032 of the San Mateo Municipal Code is added to Chapter 7.41 as follows:

7.41.032 Packaging and Labeling.

No Tobacco Retailer or other Person shall Sell or offer for Sale any Tobacco Product to any Consumer unless the Tobacco Product (1) is Sold in the original manufacturer’s Packaging intended for Sale to Consumers; (2) conforms to all applicable federal Labeling requirements; and (3) conforms to all applicable child-resistant packaging requirements.

Section 8. Section 7.41.033 of the San Mateo Municipal Code is added to Chapter 7.41 as follows:

7.41.033 Self-Service Displays Prohibited; On-site, In-Person Sales Required. (a) Tobacco Retailing by means of a Self-Service Display is prohibited. (b) All Sales of Tobacco Products and Tobacco Paraphernalia shall be conducted in- person, over the counter, in the permitted location.

Section 9. Section 7.41.034 of the San Mateo Municipal Code is added to Chapter 7.41 as follows:
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7.41.034 Notice of Minimum Age for Purchase of Tobacco Products Tobacco Retailers shall post conspicuously, at each point of purchase, a notice stating that Selling Tobacco Products to anyone under 21 years of age is illegal and subject to penalties. The form and content of such notice shall be subject to the approval of the Director.

Section 10. Section 7.41.035 of the San Mateo Municipal Code is added to Chapter 7.41 as follows:

7.41.035 Positive Identification Required.

No Tobacco Retailer or other Person shall Sell or offer to Sell a Tobacco Product to another Person without first verifying by means of government-issued photographic identification that the recipient is at least the minimum legal sales age required under state law to purchase a Tobacco Product.

Section 11. Section 7.41.036 of the San Mateo Municipal Code is added to Chapter 7.41 as follows:

7.41.036 Minimum Age for Individuals Selling Tobacco Products.

No Tobacco Retailer shall allow, at its Retail location, any individual who is younger than 21 years of age to Sell or offer to Sell Tobacco Products.

Section 12. Section 7.41.037 of the San Mateo Municipal Code is added to Chapter 7.41 as follows:

7.41.037 Display or Offers to Sell Tobacco Products Without Tobacco Retailer Permit Prohibited (a) Tobacco Retailer without a current valid Permit:
(1) Shall keep all Tobacco Products out of public view. The public display of Tobacco Products in violation of this provision shall constitute Tobacco Retailing without a Permit. (2) Shall not display any advertisement relating to Tobacco Products that offers the Sale of such products from the Tobacco Retailer’s location.

Section 13. Section 7.41.038 of the San Mateo Municipal Code is added to Chapter 7.41 as follows:

7.41.038 Limits on Eligibility for a Permit.
(a) No Tobacco Retailer’s Permit may be issued to authorize Tobacco Retailing at or from other than a fixed location. For example, Sales by Persons on foot or from vehicles or other forms of mobile vending are prohibited.
(b) No Tobacco Retailer’s Permit may be issued to authorize Sales of Tobacco Products at a temporary event, such as flea markets and farmers’ markets.
(c) No new Tobacco Retailer Permit may be issued to authorize Tobacco Product Sales at any location within 1,000 feet of a Youth-Populated Area, as measured by a straight line from the nearest point of the 615 of 653
property line of any parcel on which a Youth-Populated Area is located and any point along the property line of the parcel on which the Permit applicant has or proposes to locate the business. (d) No new Tobacco Retailer’s Permit may be issued for a location which is within 500 feet of a location already occupied by another Tobacco Retailer, as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of the property line of the parcel on which an existing Tobacco Retailer’s business is located. (e) Tobacco Retailers with a current and valid Permit as of the date of adoption of this ordinance shall be exempt from subsections (c) and (d) of this Section unless the existing Tobacco Retailer fails to timely renew the Permit prior to its annual expiration.
(f) The Sale of Tobacco Products and accessories is prohibited in County owned structures and in any area of a structure leased by the County, wherever located.

Section 14. Section 7.41.040 of the San Mateo Municipal Code is amended as follows:

7.41.040 Fees for Permit
Tobacco retailers shall pay all applicable fees at the rates set forth in Section 5.64.070 of the San Mateo County Code. Fees shall be used by the Director to administer and enforce this chapter.

Section 15. Section 7.41.050 of the San Mateo Municipal Code is amended as follows:

7.41.050 Permit is Nontransferable.
(a) Tobacco Retailer Permits are nontransferable as between Persons, locations, or otherwise. Any attempted transfer shall render the Permit null and void. (b) Notwithstanding any other provision of this Chapter, prior violations of this Chapter at a location shall continue to be counted against that location and Permit ineligibility and suspension periods shall continue to apply to that location unless:
(1) One hundred percent of the interest in the stock, assets, or income of the business, other than a security interest for the repayment of debt, has been transferred to the new owner(s); and (2) The County is provided with clear and convincing evidence, including an affidavit, that the business has been acquired in an Arm's Length Transaction. An Arm’s Length Transaction, for the purposes of this section, means a transaction in which two or more unrelated and unaffiliated parties agree on the transfer in question; the parties act independently and in their own self-interest; and the parties have equal bargaining power and symmetric information, leading the parties to agree upon fairmarket terms.

Section 16. Section 7.41.060 of the San Mateo Municipal Code is amended as follows:
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7.41.060 Enforcement.
(a) The Director or the Director’s designee shall enforce this Chapter consistent with the provisions herein.
(b) Violations of this Chapter may be criminally prosecuted as infraction(s) or misdemeanor(s) at the discretion of the prosecuting attorney as the interests of justice require. (c) This Section shall not be interpreted to limit the applicable civil or administrative remedies available under law.

Section 17. Section 7.41.065 of the San Mateo Municipal Code is added to Chapter 7.41 as follows:

7.41.065 Public Nuisance.

Any violation of this Chapter is hereby declared a public nuisance, subject to all applicable civil, administrative, and criminal remedies and penalties according to the provisions and procedures of contained in the San Mateo County Code and state law, including but not limited to, an action for abatement or injunctive relief.

Section 18. Section 7.41.068 of the San Mateo Municipal Code is added to Chapter 7.41 as follows:

7.41.068 Compliance Monitoring.
(a) Compliance with this Chapter shall be monitored by the Director. In addition, any peace officer may enforce the provisions of this Chapter. The Director may designate additional persons to monitor and facilitate compliance with this Chapter.
(b) Individuals designated to enforce the provisions of this Chapter shall inspect each Tobacco Retailer annually to determine if the Tobacco Retailer is complying with all applicable laws. Compliance checks shall take place during normal business hours, with or without notice. All permitted premises must be open to inspection by designated persons during regular business hours.
(c) Nothing in this section shall create a right of action in any Tobacco Retailer or other person or entity against the County or its agents.

Section 19. Section 7.41.070 of the San Mateo Municipal Code is amended as follows:

7.41.070 Suspension or Revocation of Permit.
(a) Grounds for Suspension or Revocation.
(1) A Tobacco Retailer Permit may be suspended or revoked, as set forth below in subdivision (b), if any court of a competent jurisdiction determines, or the Director finds, based on a preponderance of the evidence after notice and opportunity for the Tobacco Retailer to be heard, that either of the following violations have occurred:
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(A) After the Permit was issued it is determined that the Application for the Permit is incomplete or inaccurate.
(B) The Tobacco Retailer or Tobacco Retailer’s agent has violated any of the requirements, conditions, or prohibitions of this Chapter or any applicable local, state, or federal tobacco-related law.
(2) Notwithstanding the foregoing, a Tobacco Retailer Permit shall be suspended or revoked, for the maximum time periods and as set forth in subdivision (b), if any court of competent jurisdiction determines, or the Director finds, based on a preponderance of evidence and after notice and opportunity for the Tobacco Retailer to be heard, that the Tobacco Retailer, or any agent or employee of the Tobacco Retailer, has Sold Tobacco Products to any Person(s) under the age of 21 years.
(b) Time Period of Suspension of Permit.
(1) Upon the first violation within any sixty (60) month period, the Permit to Sell Tobacco Products may be suspended for up to 30 days.
(2) Upon the second violation within any sixty (60) month period, the Permit to Sell Tobacco Products may be suspended for up to 90 days.
(3) Upon the third violation within any sixty (60) month period, the Permit to Sell Tobacco Products may be suspended for up to one year.
(4) Upon the fourth violation within any sixty (60) month period, the Permit to Sell Tobacco Products shall be revoked. If a Permit is revoked, the Retailer shall not be eligible for a new Permit for a period of five (5) years after the effective date of revocation. (c) Effective Date of Suspension or Revocation. Within ten (10) calendar days of the hearing, the Director shall issue written findings and an order regarding the suspension or revocation, which order will be effective ten (10) calendar days from the date such order was sent by certified mail to the Retailer, unless a timely appeal is filed in accordance with subsection (d). (d) Appeal of Suspension or Revocation. The decision of the Director is appealable to the San Mateo County Licensing Board and the procedural rules of the San Mateo County Licensing Board shall govern hearings on all appeals of suspensions and revocations. (1) An appeal must be in writing, be addressed to the Director and be hand- delivered to the offices of the Division of Environmental Health.
(2) An appeal must be received by the Director before the effective date of suspension or revocation provided by subsection (c) in order to be considered. (3) The filing of a timely appeal will stay a suspension or revocation pending a decision on the appeal by the San Mateo County Licensing Board.
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(4) The decision of the San Mateo County Licensing Board shall be a final administrative order, with no further administrative right of appeal.

Section 20. Section 7.41.080 of the San Mateo Municipal Code is amended as follows:

7.41.080 Administrative Fine.
(a) Grounds for Fine. A fine may be imposed on a Tobacco Retailer upon findings made by the Director, based on a preponderance of the evidence, that any Tobacco Retailer, or any agent or employee of the Tobacco Retailer, has violated any of the requirements, conditions, or prohibitions of this Chapter. A fine shall be imposed in the maximum amounts set forth in subsection (b) of this section upon findings made by the Director that the Tobacco Retailer, or any agent or employee of the Tobacco Retailer, has Sold any Tobacco Product to any Person(s) under the age of 21 years. Any administrative fine shall be imposed solely against the Tobacco Retailer, not the Tobacco Retailer’s employees or agents. (b) Amount of Fine. Upon written findings made by the Director under subsection (a), the person or entity holding the Tobacco Retailer Permit shall be subject to an administrative fine for each such violation as follows:
(1) A fine not exceeding five hundred dollars ($500) for a first violation within a sixty (60) month period; and
(2) A fine not exceeding one thousand dollars ($1,000) for each subsequent violation within a sixty (60) month period.
(c) Each day that Tobacco Products are Sold or offered for Sale without a Permit or otherwise in violation of this Chapter shall constitute a separate violation. A finding of "offered for Sale" in violation of this Chapter will be made if Tobacco Products are either actually Sold and/or displayed in the retail establishment, or if advertisements offering to Sell Tobacco Products are visible to customers. (d) Fine Procedures. Notice of the fine shall be served on the Tobacco Retailer by certified mail. The notice shall contain a description of the facts upon which the asserted violation is based and an advisement of the right to request a hearing before the Director contesting the imposition of the fine. Said hearing must be requested within ten calendar days of the date appearing on the notice of the fine. The decision of the Director shall be a final administrative order, with no administrative right of appeal. (e) Failure to Pay Fine. If a fine imposed pursuant to this Chapter is not paid within 30 calendar days from the date appearing on the notice of the fine or of the notice of determination of the Director after the review provided for under subdivision (c) of this Section, the fine may be referred to a collection agency within or external to the County. In addition, any outstanding fines must be paid prior to the issuance of any new Permit or renewal of a Permit.

Section 21. Section 7.41.090 of the San Mateo Municipal Code is amended as follows:
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7.41.090 Authorization of Enforcement by San Mateo County Personnel.

The County of San Mateo, its officers, employees and agents are hereby authorized to administer and enforce this chapter on behalf of the City, within the jurisdictional boundaries of this city. Such enforcement authority includes, but is not limited to, the collection of fees and fines expending such revenue in the enforcement of the tobacco retailer requirements, holding hearings, suspending permits and issuing administrative fines.

Section 22. Environmental Determination. In accordance with California Environmental Quality Act (CEQA) Guidelines, section 15378(b)(5), adoption of this ordinance is categorically exempt from CEQA as an administrative activity that will not result in a potentially significant physical impact on the environment.

Section 23. Severability. In the event any section, clause or provision of this ordinance shall be determined invalid or unconstitutional, such section, clause or provision shall be deemed severable and all other sections or portions hereof shall remain in full force and effect.

Section 24. Publication. This Ordinance shall be published in summary in a newspaper of general circulation, posted in the City Clerk's Office, and posted on the City's website, all in accord with Section 2.15 of the City Charter.

Section 25. Legislative History and Effective Date. This ordinance was introduced on Clerk to complete., and adopted on Clerk to complete., and shall be effective 30 days after its adoption. 620 of 653
Chapter 7.41

TOBACCO RETAILER PERMIT

7.41.005 DEFINITIONS
(a) "Characterizing Flavor" means a distinguishable taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a Tobacco Product or any byproduct produced by the Tobacco Product. Characterizing flavors include, but are not limited to, tastes or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A Tobacco Product shall not be determined to have a Characterizing Flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a Characterizing Flavor. (b) "Constituent" means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a Tobacco Product during the processing, manufacture, or packing of the Tobacco Product. (c) “Consumer” means a person who purchases a Tobacco Product for consumption. (d) “Coupon” means any voucher, rebate, card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a discounted price.
(e) “Director” means the Chief of San Mateo County Health, or designee. (f) "Distinguishable" means perceivable by either the sense of smell or taste. (g) “Electronic Smoking Device” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e- hookah. Electronic smoking device includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine, and whether natural or synthetic. “Electronic Smoking Device” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic
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purposes where such product is marketed and sold solely for such an approved purpose. (h) "Flavored Tobacco Product" means any Tobacco Product that contains a Constituent that imparts a Characterizing Flavor.
(i) “Full Retail Price” means the price listed for a Tobacco Product on its Packaging or on any related shelving, advertising, or display where the Tobacco Product is sold or offered for Sale, plus all applicable taxes and fees if such taxes and fees are not included in the listed price.
(j) “Labeling” means written, printed, pictorial, or graphic matter upon any Tobacco Product or any of its packaging.
(k) “Packaging” means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a Tobacco Product is sold, or offered for Sale, to a Consumer.
(l) “Permit” or “Tobacco Retailer Permit” means a valid permit issued by the Director to a Person to act as a Tobacco Retailer.
(m) “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other entity. (n) "Pharmacy" means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for Sale, regardless of whether the retail establishment Sells other retail goods in addition to prescription pharmaceuticals.
(o) “Sale” or “Sell” means transfer to, exchange, barter, or distribute for a commercial purpose.
(p) “Self-Service Display” shall be defined as the open display or storage of Tobacco Products in a manner that is physically accessible to the general public without the assistance of the retailer or employee of the retailer and a direct face-to-face transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
(q) “Tobacco Paraphernalia” means any item designed or marketed for the consumption, use, or preparation of Tobacco Products.
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(r) “Tobacco" or "Tobacco Product(s)" means:
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(1) any product containing, made of, or derived from tobacco or nicotine, whether natural or synthetic, that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;
(2) any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine, and whether natural or synthetic; or
(3) any component, part, or accessory of (1) or (2), whether or not any of these contains tobacco or nicotine, whether natural or synthetic, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.
(4) “Tobacco Product” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.
(s) “Tobacco Product Flavor Enhancer” means a product designed, manufactured, produced, marketed or Sold to produce a Characterizing Flavor when added to a Tobacco Product.
(t) “Tobacco Retailer” means any Person who Sells, or offers for Sale, Tobacco Products.

This definition is without regard to the quantity of Tobacco Products sold or offered for Sale.
(u) “Youth-Populated Area” means a parcel of real property that is occupied, in whole or in part, by any of the following:
(1) a private or public school that educates children in grades kindergarten through high school;
(2) a library that is open to the public;
(3) a playground that is open to the public;
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(4) a youth center, defined as a facility where children ages 6 to 17 come together for programs and activities;
(5) a recreation facility open to the public, defined as an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes. “Recreation facility” includes, but is not limited to, a gymnasium, playing court, playing field, and swimming pool;
(6) a public or private college or university that serves as an institution for education beyond the high school level;
(7) a licensed child-care facility or preschool, other than a small-family day care home or a large-family daycare home as defined in California Health & Safety Code § 1596.78.

7.41.010 REQUIREMENT FOR A PERMIT.

It is unlawful for any retailer, individual, or entity to sell or offer for sale any tobacco products without first obtaining and maintaining a valid tobacco retailer's permit from the Environmental Health Division of the San Mateo County Health Department (the "Environmental Health Division") for each location where such sales are conducted. Permits are valid for one year and shall be renewed annually. (a) No Tobacco Retailer or other Person shall Sell or offer for Sale any Tobacco Product without a current and valid Tobacco Retailer Permit from San Mateo County for each location where such activities are conducted.
(b) Permits are valid for one year and must be timely renewed annually by the Permit holder in order to continue to sell or offer for sale any Tobacco Product. A Retailer must obtain a separate Permit for each location at which any Tobacco Product will be sold, offered for sale or distributed. A Permit that is not renewed in a timely manner shall expire at the end of its term, and the Tobacco Retailer must obtain a new Permit prior to any further sale, offer for sale, or distribution of any Tobacco Product. (c) No Tobacco Retailer shall violate, or cause or allow the Tobacco Retailer’s agents or employees to violate, any provision of this Chapter or any other local, state, or federal law applicable to Tobacco Products or Tobacco Retailing. (d) Tobacco Retailers are responsible for the actions of their employees and agents relating to the sale, offer to sell, and furnishing of tobacco products at the retail location. The 625 of 653
sale of any tobacco product by an employee shall be considered an act of the tobacco retailer and the permit holder shall be responsible for any monetary penalties levied. (e) Nothing in this Chapter shall be construed to penalize the purchase, use, or possession of a Tobacco Product by any Person not engaged in Tobacco Retailing.

As used in Title 7 of this Code, the terms "tobacco" or "tobacco products" shall be defined as set forth in Section 7.40.020(l).

7.41.015 PERMIT CONVEYS A LIMITED, CONDITIONAL PRIVILEGE Nothing in this Chapter shall be construed to grant any Person or entity obtaining and maintaining a Permit any status or right other than the limited, conditional privilege to Sell Tobacco Products and act as a Tobacco Retailer at the location in the County identified on the face of the Permit for the period of time shown on the Permit. All Permits are issued subject to the County’s right to amend this Chapter from time to time, and Retailers shall comply with all provisions of this Chapter, as amended.

7.41.020 APPLICATION, ISSUANCE AND RENEWAL PROCEDURE.
(a) Application for a Tobacco Retailer's Permit or the renewal of a Tobacco Retailer Permit shall be submitted in the name of the Person proposing to conduct retail sales of Tobacco Products, referred to herein as the “Applicant,” and shall be signed by such Person or an authorized agent thereof. All applications shall be submitted to the Director on a form supplied by the Director and contain, at a minimum, the following information:
(1) The name, address, and telephone number of the Applicant; (2) The business name, address, and telephone number of the location where Tobacco Products are proposed to be sold, offered for sale or distributed by the Applicant; and
(3) Proof that the location for which a Tobacco Retailer’s Permit is sought has been issued a valid state license for the sale of Tobacco Products, if the Tobacco Retailer sells products that require such license;
(4) A statement whether or not the Tobacco Retailer or any agent of the Retailer has been found to have violated this Chapter or other applicable law governing Tobacco Products or Tobacco Retailing and, if so, the dates and locations of all such violations within the previous five years; and
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(5) Such other information as the Director determines is necessary for implementation of this Chapter.
(6) An application for a new or renewal Permit will be denied if there are any outstanding fines or late fees issued by the Director, or during any period of suspension. (7) It is the responsibility of each Permit holder to be informed regarding all laws applicable to Tobacco Retailing, including those laws affecting the issuance of a Tobacco Retailer Permit. No Permit holder may rely on the issuance of a Permit as a determination by San Mateo County that the Permit holder has complied with all laws applicable to Tobacco Retailing. A Permit issued contrary to this Chapter or any other law, or on the basis of false or misleading information supplied by the Applicant, shall be revoked. Nothing in this Chapter shall be construed to vest in any person or entity obtaining or maintaining a Tobacco Retailer’s Permit any status or right to act as a Tobacco Retailer in contravention of any provision of law. (a) Application for a tobacco retailer's permit shall be submitted in the name of the entity or person proposing to conduct retail tobacco sales and shall be signed by such person or an authorized agent thereof. All applications shall be submitted on a form supplied by the Environmental Health Division and contain the following information:
(1) The name, address and telephone number of the applicant; (2) The business name, address, and telephone number of each location where tobacco is retailed; and
(3) Such other information as the Director of the Environmental Health Division or his or her designee (the "Director") determines is necessary for implementation of the ordinance codified in this chapter.
(b) Applicants for renewal must follow the application procedures set forth in subsection (a). A renewal for a tobacco retailer's permit will be denied if the application is for a person or location for which a suspension is in effect.

7.41.030 DISPLAY OF PERMIT.

Upon receipt of an application for a tobacco retailer's permit in compliance with the requirements of this Chapter, the Director or designee may shall issue a permit which, if issued, must be prominently displayed in a publicly visible location at each the location where tobacco product retail sales are conducted and permitted.
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7.41.031 PROHIBITIONS REGARDING COUPONS, DISCOUNTS, PHARMACIES, FLAVORED TOBACCO, AND

ELECTRONIC SMOKING DEVICES
(a) No Tobacco Retailer shall do any of the following:
(1) Honor or redeem, or offer to honor or redeem, a Coupon to allow a Consumer to purchase a Tobacco Product for less than Full Retail Price; (2) Sell any Tobacco Product to a Consumer through a multiple package discount or otherwise provide any such product to a Consumer for less than the Full Retail Price in consideration for the purchase of any Tobacco Product or any other item; or
(3) Provide any free or discounted item to a Consumer in consideration for the purchase of any Tobacco Product.
(b) No Person, Tobacco Retailer or other legal entity shall sell or distribute to a person any electronic smoking device that delivers natural or synthetic nicotine or any other substance(s) to the person inhaling from the device. This includes any component, part, or accessory intended or reasonably expected to be used with the electronic device, whether or not sold separately.
(c) No Person or Tobacco Retailer shall sell or offer to sell any Flavored Tobacco Product or Tobacco Product Flavor Enhancer. There shall be a rebuttable presumption that a Tobacco Product is a Flavored Tobacco Product if a manufacturer or any of the manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the Tobacco Product has or produces a Characterizing Flavor including, but not limited to, text, color, and/or images on the product's labeling or packaging that are used to explicitly or implicitly communicate that the Tobacco Product has a Characterizing Flavor. (d) No Pharmacy or Pharmacy employee or agent shall sell or offer to sell any Tobacco Product. The Director shall not issue any new, or renew any existing, Tobacco Retailer Permit for any Pharmacy.
(e) Subdivisions (b) and (c) of this Section shall not apply to the duty- free stores located at the San Francisco International Airport.

7.41.032 PACKAGING AND LABELING
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No Tobacco Retailer or other Person shall Sell or offer for Sale any Tobacco Product to any Consumer unless the Tobacco Product (1) is Sold in the original manufacturer’s Packaging intended for Sale to Consumers; (2) conforms to all applicable federal Labeling requirements; and (3) conforms to all applicable child-resistant packaging requirements.

7.41.033 SELF-SERVICE DISPLAYS PROHIBITED; ON-SITE, IN-PERSON SALES REQUIRED (a) Tobacco Retailing by means of a Self-Service Display is prohibited. (b) All Sales of Tobacco Products and Tobacco Paraphernalia shall be conducted in- person, over the counter, in the permitted location.

7.41.034 NOTICE OF MINIMUM AGE FOR PURCHASE OF TOBACCO PRODUCTS Tobacco Retailers shall post conspicuously, at each point of purchase, a notice stating that Selling Tobacco Products to anyone under 21 years of age is illegal and subject to penalties.

The form and content of such notice shall be subject to the approval of the Director.

7.41.035 POSITIVE IDENTIFICATION REQUIRED
No Tobacco Retailer or other Person shall Sell or offer to Sell a Tobacco Product to another Person without first verifying by means of government-issued photographic identification that the recipient is at least the minimum legal sales age required under state law to purchase a Tobacco Product.

7.41.036 MINIMUM AGE FOR INDIVIDUALS SELLING TOBACCO PRODUCTS No Tobacco Retailer shall allow, at its Retail location, any individual who is younger than 21 years of age to Sell or offer to Sell Tobacco Products.

7.41.037 DISPLAY OR OFFERS TO SELL TOBACCO PRODUCTS WITHOUT TOBACCO RETAILER PERMIT

PROHIBITED
A Tobacco Retailer without a current valid Permit:
(a) Shall keep all Tobacco Products out of public view. The public display of Tobacco Products in violation of this provision shall constitute Tobacco Retailing without a Permit.
(b) Shall not display any advertisement relating to Tobacco Products that offers the Sale of such products from the Tobacco Retailer’s location.
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7.41.038 LIMITS ON ELIGIBILITY FOR A PERMIT
(a) No Tobacco Retailer’s Permit may be issued to authorize Tobacco Retailing at or from other than a fixed location. For example, Sales by Persons on foot or from vehicles or other forms of mobile vending are prohibited.
(b) No Tobacco Retailer’s Permit may be issued to authorize Sales of Tobacco Products at a temporary event, such as flea markets and farmers’ markets. (c) No new Tobacco Retailer Permit may be issued to authorize Tobacco Product Sales at any location within 1,000 feet of a Youth-Populated Area, as measured by a straight line from the nearest point of the property line of any parcel on which a YouthPopulated Area is located and any point along the property line of the parcel on which the Permit applicant has or proposes to locate the business. (d) No new Tobacco Retailer’s Permit may be issued for a location which is within 500 feet of a location already occupied by another Tobacco Retailer, as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of the property line of the parcel on which an existing Tobacco Retailer’s business is located. (e) Tobacco Retailers with a current and valid Permit as of the date of adoption of this ordinance shall be exempt from subsections (c) and (d) of this Section unless the existing Tobacco Retailer fails to timely renew the Permit prior to its annual expiration. (f) The Sale of Tobacco Products and accessories is prohibited in County owned structures and in any area of a structure leased by the County, wherever located.

7.41.040 FEES FOR PERMIT.

The fee for Ttobacco retailer's permit shall pay all applicable fees at the rates set forthreflect the County's costs of processing the permit and regulating compliance with this chapter and shall be contained in Section 5.64.070 of the San Mateo County Code. Fees shall be used by the Director to administer and enforce this chapter.

7.41.050 PERMIT IS NONTRANSFERABLE.

Tobacco retailer's permits are nontransferable as between entities, retailers, individuals, locations or otherwise.
630 of 653
(a) Tobacco Retailer Permits are nontransferable as between Persons, locations, or otherwise. Any attempted transfer shall render the Permit null and void. (b) Notwithstanding any other provision of this Chapter, prior violations of this Chapter at a location shall continue to be counted against that location and Permit ineligibility and suspension periods shall continue to apply to that location unless:
(1) One hundred percent of the interest in the stock, assets, or income of the business, other than a security interest for the repayment of debt, has been transferred to the new owner(s); and
(2) The County is provided with clear and convincing evidence, including an affidavit, that the business has been acquired in an Arm's Length Transaction.

An Arm’s Length Transaction, for the purposes of this section, means a transaction in which two or more unrelated and unaffiliated parties agree on the transfer in question; the parties act independently and in their own selfinterest; and the parties have equal bargaining power and symmetric information, leading the parties to agree upon fair-market terms.

7.41.060 Enforcement of Applicable Law
If an agent or employee of the tobacco retailer violates any provisions of this chapter or any city, federal, or state tobacco-related law, the tobacco retailer shall immediately report the violation to the Police Department and the Environmental Health Division. (a) The Director or the Director’s designee shall enforce this Chapter consistent with the provisions herein.
(b) Violations of this Chapter may be criminally prosecuted as infraction(s) or misdemeanor(s) at the discretion of the prosecuting attorney as the interests of justice require.
(c) This Section shall not be interpreted to limit the applicable civil or administrative remedies available under law.

7.41.065 PUBLIC NUISANCE
Any violation of this Chapter is hereby declared a public nuisance, subject to all applicable civil, administrative, and criminal remedies and penalties according to the provisions and procedures of contained in the San Mateo County Code and state law, including but not limited to, an action for abatement or injunctive relief
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7.41.068 COMPLIANCE MONITORING
(a) Compliance with this Chapter shall be monitored by the Director. In addition, any peace officer may enforce the provisions of this Chapter. The Director may designate additional persons to monitor and facilitate compliance with this Chapter. (b) Individuals designated to enforce the provisions of this Chapter shall inspect each Tobacco Retailer annually to determine if the Tobacco Retailer is complying with all applicable laws. Compliance checks shall take place during normal business hours, with or without notice. All permitted premises must be open to inspection by designated persons during regular business hours.
(c) Nothing in this section shall create a right of action in any Tobacco Retailer or other person or entity against the County or its agents.

7.41.070 SUSPENSION OR REVOCATION OF PERMIT.
(a) Grounds for Suspension. A tobacco retailer's permit may be suspended, as set forth below in subdivision (b), by the Director upon a finding, after notice and opportunity to be heard, that either of the following occurred:
(1) After the permit was issued it was determined that the application for the permit is incomplete or inaccurate.
(2) The permittee or his or her agent has violated any provision of this chapter or any city, federal, or state tobacco-related law.
(b) Time Period of Suspension of Permit.
(1) Upon the first time that the Director makes the finding that either subsection (a)(1) or (a)(2) of this section has occurred, the permit to sell tobacco products shall be suspended for up to 30 days.
(2) Upon the second time that the Director makes the finding set forth in subsection (a)(1) or (a)(2) of this section within 24 months of the first determination, the permit to sell tobacco products shall be suspended for no less than 30 days and up to 90 days. (3) Upon the third and each subsequent time that the Director makes the finding set forth in subsections (a)(1) and (a)(2) within 24 months of a prior determination, the permit to sell tobacco products shall be suspended for no less than 90 days and up to one year. (c) Effective Date of Suspension.
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(1) If the Director makes oral findings and issues an order of suspension at the hearing, the suspension will be effective 10 days from the date of the hearing, unless a timely appeal is filed in accordance with subsection (d).
(2) If the Director makes written findings and issues an order of suspension by certified mail after the hearing, the suspension will be effective 15 days from the date appearing on the notice of that finding and order of suspension, unless a timely appeal is filed in accordance with subsection (d).
(d) Appeal of Suspension.
(1) The decision of the Director may be appealed to the San Mateo County Licensing Board.
(2) An appeal must be in writing, be addressed to the Director and be hand-delivered to the offices of the Division of Environmental Health.
(3) An appeal must be received by the Division of Environmental Health before the effective date of suspension provided by subsection (c)(1) or (c)(2) in order to be considered. (4) The filing of a timely appeal will stay a suspension pending a decision on the appeal by the San Mateo County Licensing Board.
(5) The decision of the San Mateo County Licensing Board shall be a final administrative order, with no further administrative right of appeal.
(a) Grounds for Suspension or Revocation.
(1) A Tobacco Retailer Permit may be suspended or revoked, as set forth below in subdivision (b), if any court of a competent jurisdiction determines, or the Director finds, based on a preponderance of the evidence after notice and opportunity for the Tobacco Retailer to be heard, that either of the following violations have occurred:
(1) After the Permit was issued it is determined that the Application for the Permit is incomplete or inaccurate.
(2) The Tobacco Retailer or Tobacco Retailer’s agent has violated any of the requirements, conditions, or prohibitions of this Chapter or any applicable local, state, or federal tobacco-related law. 633 of 653
(2) Notwithstanding the foregoing, a Tobacco Retailer Permit shall be suspended or revoked, for the maximum time periods and as set forth in subdivision (b), if any court of competent jurisdiction determines, or the Director finds, based on a preponderance of evidence and after notice and opportunity for the Tobacco Retailer to be heard, that the Tobacco Retailer, or any agent or employee of the Tobacco Retailer, has Sold Tobacco Products to any Person(s) under the age of 21 years.
(b) Time Period of Suspension of Permit.
(1) Upon the first violation within any sixty (60) month period, the Permit to Sell Tobacco Products may be suspended for up to 30 days.
(2) Upon the second violation within any sixty (60) month period, the Permit to Sell Tobacco Products may be suspended for up to 90 days.
(3) Upon the third violation within any sixty (60) month period, the Permit to Sell Tobacco Products may be suspended for up to one year.
(4) Upon the fourth violation within any sixty (60) month period, the Permit to Sell Tobacco Products shall be revoked. If a Permit is revoked, the Retailer shall not be eligible for a new Permit for a period of five (5) years after the effective date of revocation.

Effective Date of Suspension or Revocation.
(c) Within ten (10) calendar days of the hearing, the Director shall issue written findings and an order regarding the suspension or revocation, which order will be effective ten (10) calendar days from the date such order was sent by certified mail to the Retailer, unless a timely appeal is filed in accordance with subsection (d).

Appeal of Suspension or Revocation.
(d) The decision of the Director is appealable to the San Mateo County Licensing Board and the procedural rules of the San Mateo County Licensing Board shall govern hearings on all appeals of suspensions and revocations. (1) An appeal must be in writing, be addressed to the Director and be hand634 of 653 delivered to the offices of the Division of Environmental Health. (2) An appeal must be received by the Director before the effective date of suspension or revocation provided by subsection (c) in order to be considered. (3) The filing of a timely appeal will stay a suspension or revocation pending a decision on the appeal by the San Mateo County Licensing Board. (4) The decision of the San Mateo County Licensing Board shall be a final administrative order, with no further administrative right of appeal.

7.41.080 ADMINISTRATIVE FINE.
(a) Ground for Fine. A fine may be imposed upon finding made by the Director, that any retailer, individual, or entity who is an owner of a retail establishment:
(1) Does not have a valid tobacco retailer's permit; and (2) Offers for sale any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco or products prepared from tobacco.
(b) Amount of Fine. Upon findings made under subsection (a), the retailer, individual, or entity who is an owner of a retail establishment shall be subject to an administrative fine as follows:
(1) A fine not exceeding $100 for a first violation.
(2) A fine not exceeding $200 for a second violation.
(3) A fine not exceeding $500 for the third and subsequent violations. (4) Each day that tobacco products are offered for sale without a permit shall constitute a separate violation. A finding of "offering for sale" will be made if these tobacco products are actually sold and/or displayed in the retail establishment. (c) Fine Procedures. Notice of the fine shall be served on the retailer, individual, or entity who is owner of the establishment by certified mail. The notice shall contain an advisement of the right to request a hearing before the Director or designee contesting the imposition of the fine. Said hearing must be requested within 10 days of the date appearing on the notice of the fine. The decision of the Director shall be a final administrative order, with no administrative right of appeal. 635 of 653
(d) Failure to Pay Fine. If said fine is not paid within 30 days from the date appearing on the notice of the fine or of the notice of determination of the Director or designee after the hearing, the fine shall be referred to a collection agency within or external to the County. In addition, any outstanding fines must be paid prior to the issuance of any permit by the San Mateo County Environmental Health Division of the Department of Health and Department of Planning and Building. (a) Grounds for Fine. A fine may be imposed on a Tobacco Retailer upon findings made by the Director, based on a preponderance of the evidence, that any Tobacco Retailer, or any agent or employee of the Tobacco Retailer, has violated any of the requirements, conditions, or prohibitions of this Chapter. A fine shall be imposed in the maximum amounts set forth in subsection (b) of this section upon findings made by the Director that the Tobacco Retailer, or any agent or employee of the Tobacco Retailer, has Sold any Tobacco Product to any Person(s) under the age of 21 years.Any administrative fine shall be imposed solely against the Tobacco Retailer, not the Tobacco Retailer’s employees or agents.
(b) Amount of Fine. Upon written findings made by the Director under subsection (a), the person or entity holding the Tobacco Retailer Permit shall be subject to an administrative fine for each such violation as follows:
(1) A fine not exceeding five hundred dollars ($500) for a first violation within a sixty (60) month period; and
(2) A fine not exceeding one thousand dollars ($1,000) for each subsequent violation within a sixty (60) month period.
(c) Each day that Tobacco Products are Sold or offered for Sale without a Permit or otherwise in violation of this Chapter shall constitute a separate violation. A finding of "offered for Sale" in violation of this Chapter will be made if Tobacco Products are either actually Sold and/or displayed in the retail establishment, or if advertisements offering to Sell Tobacco Products are visible to customers. (d) Fine Procedures. Notice of the fine shall be served on the Tobacco Retailer by certified mail. The notice shall contain a description of the facts upon which the asserted violation is based and an advisement of the right to request a hearing before the Director contesting the imposition of the fine. Said hearing must be requested within ten calendar days of the date appearing on the notice of the fine. The decision of the Director shall be a final administrative order, with no administrative right of appeal. 636 of 653
(e) Failure to Pay Fine. If a fine imposed pursuant to this Chapter is not paid within 30 calendar days from the date appearing on the notice of the fine or of the notice of determination of the Director after the review provided for under subdivision (c) of this Section, the fine may be referred to a collection agency within or external to the County. In addition, any outstanding fines must be paid prior to the issuance of any new Permit or renewal of a Permit.

7.41.090 AUTHORIZATION OF ENFORCEMENT BY SAN MATEO COUNTY PERSONNEL.

The County of San Mateo, its officers, employees and agents are hereby authorized to administer and enforce this chapter on behalf of the City, within the jurisdictional boundaries areas of this city. Such enforcement authority includes, but is not limited to, the collection of fees and fines expending such revenue in the enforcement of the tobacco retailer requirements, holding hearings, suspending permits and issuing administrative fines.
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Ordinance for Introduction
Tobacco Retailer Permits
SMMC Chapter 7.41
San Mateo City Council Meeting
August 21, 2023
Tricia Toomey
Business Manager
San Mateo Police Department
638 of 653
Background
• SMMC 7.41 states sellers of any tobacco product must
obtain and maintain a valid tobacco retailer permit
• Permits issued by Environmental Health Division of San Mateo County Health Department
• Permits cost $672
• Valid for one year and must be renewed annually
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Impetus for Changes
• County Board of Supervisors amended County Code
• Strengthen language
• Reduce youth access to tobacco products
• Incorporate input from state health organizations, the Tobacco Education Coalition and best practices in other California jurisdictions • County Health will administer permit programs for cities who adopt same language
• Requesting cities adopt changes for consistency and efficiency • Staff has reviewed proposed changes
• Meets interests in providing stringent regulation for these products 640 of 653
Key Provisions of Proposed Changes
• Updates definitions to align with best practices throughout the State
• i.e. include synthetic nicotine
• Align language with new statewide ban on flavored tobacco • Restricts where new retailers may be located
• No new permits w/in 1000 ft of a youth populated area • No new permits w/in 500 ft of location already occupied by another tobacco retailer
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Key Provisions (cont.)
• Increases age for those who sell tobacco products to 21 • Consistent with State law
• Increases fines
• up to $500 - first violation
• up to $1000- all subsequent violations w/in a 60 month period • Requires permit be suspended if business is found to have sold products to persons under age 21
• Requires two inspections/year to monitor compliance with laws
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Recommended Action
•Introduce the Ordinance
• Make SMMC consistent with County Code
• Maintain City interest in stringently regulating sale of tobacco products
• Schedule Tobacco Retailer Permit Ordinance
for Adoption 9/5/23
•Ordinance to take effect 10/6/23
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CITY OF SAN MATEO

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 30 Section Name: NEW BUSINESS Account Number: 10-5131 File ID: 23-7710 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Police Department
MEETING DATE: August 21, 2023
SUBJECT: Drinking in Public Areas – Ordinance Introduction RECOMMENDATION:

Introduce an Ordinance to amend San Mateo Municipal Code Section 10.04.080 ”Drinking - Public Areas” and repeal Section 10.04.090 ”Drinking - Private Parking Lots.”
BACKGROUND:

The Police Department has experienced difficulty with enforcement of SMMC 10.04.080 ”Drinking - Public Areas” and

10.04.090 ”Drinking - Private Parking Lots” particularly in areas adjacent to transit (i.e. train platforms and bus stops) due to the ambiguity of the current language. Unlike other cities, the current code does not address drinking at transit areas, certain areas of public property or trespassers on private property such as apartment complexes. Since the Alcoholic Beverage Control Act does not control all aspects of alcohol possession in the state, local government is permitted to restrict public drinking.

The Police Department believes it is necessary to make updates to more clearly specify those areas which drinking is unlawful. The transit station is the physical structure associated with the area, the transit platforms are the waiting areas and transit stops include bus stops and areas of the train stops which might be outside of the platform or station. This amendment clearly lists all locations in San Mateo where it is illegal to consume, drink or possess an open container of any alcoholic or intoxicating beverage. The proposed ordinance amends SMMC Section 10.04.080 to incorporate language from Section 10.04.090 so that all relevant language is in a single code section; and will then repeal Section 10.04.090.

BUDGET IMPACT:

Enforcement of the proposed changes to the Municipal Code can be accommodated within existing staffing and budget authority.

ENVIRONMENTAL DETERMINATION:

In accordance with California Environmental Quality Act (CEQA) Guidelines, section 15061(b)(3), adoption of this ordinance is not a project subject to CEQA in that it can be seen with certainty that it will not have a significant effect on the environment.

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 – Proposed Ordinance
Att 2 – Proposed Ordinance – Track Changes
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CITY OF SAN MATEO

STAFF CONTACT
Ed Barberini, Chief of Police
[email protected]
(650) 522-7600
Matthew Earnshaw, Lieutenant
[email protected]
(650) 522-7627
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CITY OF SAN MATEO

DRAFT ORDINANCE
Amending Chapter 10.04 “Public Peace and Order” Relating to Drinking in Public Areas and Private Parking Lots
WHEREAS, the Police Department has experienced difficulty enforcing San Mateo Municipal Code (SMMC) Sections 10.04.080 “Drinking – Public Areas” and 10.04.090 “Drinking – Private Parking Lots” due to ambiguity in the code language; and
WHEREAS, currently the SMMC does not address drinking at transit areas, certain areas of public property, or trespassers on private property; and
WHEREAS, the California Alcoholic Beverage Control Act does not control all aspects of alcohol possession in the state, and local government is permitted to restrict public drinking; and WHEREAS, the proposed amendment to Section 10.04.080 will more clearly specify where drinking is unlawful and incorporate language from Section 10.04.090 so that all relevant language is in a single section of the SMMC.

NOW, THEREFORE, THE COUNCIL OF THE CITY OF SAN MATEO ORDAINS AS FOLLOWS:

Section 1. Section 10.04.080 of the San Mateo Municipal Code is amended as follows:

10.04.080 Drinking – Public Areas.

Except as otherwise provided in this code, it shall be unlawful for any person to consume, drink, or possess an open container of any alcoholic or intoxicating beverage in any quantity in the following places:
(1) On any public street, sidewalk, right-of-way, highway, alley, transit station, transit stop, transit platform, or parking facility, or on any public properties owned, operated, and maintained by the City of San Mateo.
(2) On the premises, or within 500 feet, of any business engaged in the retail sale of alcoholic beverages.
(3) On any private parking lot open to the public including, but not limited to, shopping center parking lots.
(4) On a private street, alley, driveway, stairway, doorway, or other outdoor area of private property open to public view without the express permission of the owner, their agent, or the person in lawful possession thereof.

Section 2. Section 10.04.090 of the San Mateo Municipal Code is repealed.

Section 3. Environmental Determination. In accordance with California Environmental Quality Act (CEQA) Guidelines, section 15061(b)(3), adoption of this ordinance is not a project subject to CEQA in that it can be seen with certainty that it will not have a significant effect on the environment. 646 of 653
Section 4. Severability. In the event any section, clause or provision of this ordinance shall be determined invalid or unconstitutional, such section, clause or provision shall be deemed severable and all other sections or portions hereof shall remain in full force and effect.

Section 5. Publication. This Ordinance shall be published in summary in a newspaper of general circulation, posted in the City Clerk's Office, and posted on the City's website, all in accord with Section 2.15 of the City Charter.

Section 6. Legislative History and Effective Date. This ordinance was introduced on Clerk to complete., and adopted on Clerk to complete., and shall be effective 30 days after its adoption. 647 of 653

10.04.080 DRINKING—PUBLIC AREAS.

Except as otherwise provided in this code, Iit is shall be unlawful for any person to consume, drink, or possess any open container of any alcoholic beer, wine, or other intoxicating beverage in any quantity in the following places:
(1) oOn any public street, sidewalk, right-of-wayalley, street, or highway, alley, transit station, transit stop, transit platform, or parking facility, or on any public properties owned, operated, and maintained by the City of San Mateo.
(2) On the premises, or within 500 feet, of any business engaged in the retail sale of alcoholic beverages.
(3) On any private parking lot open to the public including, but not limited to, shopping center parking lots.
(4) On a private street, alley, driveway, stairway, doorway, or other outdoor area of private property open to public view without unless the expressly permission of the owner, their agent, or the person in lawful possession thereof. permitted at that location pursuant to a permit, such as an outdoor dining permit or special event permit, and the consumption is in conformance with the terms of the permit.

10.04.090 DRINKING—PRIVATE PARKING LOTS.

It is unlawful for any person to drink or possess any open container of beer, wine, or other intoxicating beverage upon that portion of private property open to the public and within 500 feet of any public sidewalk, alley, street or highway, which is used or intended to be used for the parking or storage of motor vehicles by customers or employees of any business, commercial or industrial establishment without the express written permission of the owner, agent, or person in lawful possession thereof. This section shall not be deemed to make punishable any such act or acts which are prohibited by the Vehicle Code or by any other law of the State.
648 of 653
Ordinance for Introduction
Drinking in Public Areas
SMMC Chapter 10.04.080-090
San Mateo City Council Meeting
August 21, 2023
Lieutenant Matthew Earnshaw
San Mateo Police Department
649 of 653
Background
• SMPD has experienced difficulty enforcing:
• SMMC 10.04.080 Drinking - Public Areas
• SMMC 10.04.090 Drinking - Private Parking lots
• Ambiguity of language
• Code does not address transit areas, certain areas of public property, or trespassers on private property such as
apartment complexes
650 of 653
Intent of Changes to SMMC 10.04.080
• Clearly specify areas where consuming, drinking or possessing an open container of alcohol is unlawful
• Include transit stations, transit stops, transit platforms or parking facilities
• Incorporate language from Chapter 10.04.090 Drinking - Private Parking Lots
• Consolidate all relevant language into a single code section 651 of 653
Proposed Language
(1) On any public street, sidewalk, right-of-way, highway, alley, transit station, transit stop, transit platform, or parking facility, or on any public properties owned, operated, and maintained by the City of San Mateo. (2) On the premises, or within 500 feet, of any business engaged in the retail sale of alcoholic beverages.
(3) On any private parking lot open to the public including, but not limited to, shopping center parking lots.
(4) On a private street, alley, driveway, stairway, doorway, or other outdoor area of private property open to public view without the express permission of the owner, their agent, or the person in lawful possession thereof. 652 of 653
Recommended Action
•Introduce the Ordinance
• Make language more clear
• Increase ability to enforce
• Schedule Drinking in Public Areas Ordinance
for Adoption 9/5/23
•Ordinance to take effect 10/6/23
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