CITY OF SAN MATEO
City Council Regular Meeting
September 5, 2023
7:00 PM
City Hall Council Chamber
Entrance is on O’Farrell Street
COUNCIL MEMBERS
Amourence Lee, Mayor
Lisa Diaz Nash, Deputy Mayor
Rich Hedges
Adam Loraine
Rob Newsom Jr.
AGENDA
THIS MEETING CAN BE ATTENDED IN PERSON OR REMOTE BY JOINING ZOOM – SEE CODES BELOW.
PUBLIC COMMENTS WILL BE ACCEPTED BOTH IN PERSON AND REMOTEL Y.
SEE END OF AGENDA FOR OPTIONS AND INSTRUCTIONS ON HOW TO PARTICIPATE IN THE MEETING.
To join via Zoom – click here:
September 5, 2023
To join via telephone: (408) 638-0968
Webinar ID: 817 7962 9860 Passcode: 775706
The City Council meeting will conclude by 11:00 p.m. unless otherwise extended by council vote.
Any unheard items will automatically move forward to the next regular meeting.
CALL TO ORDER
Pledge of Allegiance
Roll Call
CEREMONIAL
1. Suicide Prevention / Recovery Happens Month – Proclamation
CONSENT CALENDAR
All matters listed under the Consent Calendar are considered by the Council to be routine and will be enacted by one motion without discussion. If discussion is desired, that item may be removed and considered separately.
2. City Council Meeting Minutes - Approval
Approve the minutes of the special and regular meetings of August 21, 2023.
CEQA: This minutes approval 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).)
3. City Council 2024 Regular Meeting Calendar – Adoption Adopt the City Council Regular Meeting schedule for the calendar year 2024.
CEQA: This action 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).)
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4. Drinking in Public Areas – Ordinance Adoption
Adopt 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.”
CEQA: 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.
5. Tobacco Retailer Permit Amendments – Ordinance Adoption Adopt 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.
CEQA: 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.
6. 2nd & El Camino Real Garage Improvements – Agreement Award an agreement to MBH Architects, Inc. for design professional services in the amount of $570,641; establish a contingency reserve in the amount of $57,000; and authorize the Public Works Director to execute the agreement in substantially the form presented and issue change orders within the contingency amount.
CEQA: This agreement is not a project subject to CEQA, because it can be seen with certainty that the proposed design professional services will not cause a physical change in the environment. (Public Resources Code Section 21065.)
7. 2nd & El Camino Real and Central Parking Garages Elevator Controls Upgrade – Agreement Approve an agreement with Consolidated CM, Inc. for elevator controls upgrade professional services in an amount not to exceed $147,950; establish a contingency reserve in the amount of $15,000; and authorize the Public Works Director to execute the agreement in substantially the form presented and issue change orders within the contingency amount.
CEQA: This project 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 use. (CEQA Guidelines Section 15301.)
8. Alameda de las Pulgas Corridor Analysis and Hillsdale Boulevard at Alameda de las Pulgas Traffic Signal Design – Agreement
Approve an agreement with Sandis Civil Engineers Surveyors Planners for the Alameda de las Pulgas Corridor Analysis and Hillsdale Boulevard at Alameda de las Pulgas Traffic Signal Design project in the amount of $219,598; establish a contingency reserve in the amount of $22,000; and authorize the Public Works Director to execute the agreement in substantially the form presented and issue change orders within the contingency amount.
CEQA: This project is exempt from CEQA review as an “existing facility,” in that the traffic signal installation project 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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9. On-Call Professional Consultant Services – Agreements Approve individual on-call professional consultant services agreements each for a term through December 31, 2025 with: Geocon Consultants, Inc. in an amount not to exceed $250,000; Sandis Civil Engineering Surveyors Planners in an amount not to exceed $300,000; Ghirardelli Associates, Inc. in an amount not to exceed $300,000; Park Engineering, Inc. in an amount not to exceed $300,000; BSK Associates in an amount not to exceed $150,000; and Nichols Consulting Engineers, CHTD. in an amount not to exceed $150,000; and Authorize the Public Works Director to execute the agreements in substantially the form presented and any future no-cost amendments.
CEQA:The award of on-call professional services agreements is not a project subject to CEQA review because it consists of an organizational or administrative activity that will not result in direct or indirect physical changes in the environment. (CEQA Guidelines Section 15378(b)(5).)
10. 2750 South Delaware Street Access Easement – Acceptance Adopt a Resolution to accept the Grant of Access Easement on 2750 South Delaware Street; and authorize the City Manager to execute the Grant of Access Easement in substantially the form presented.
CEQA: In accordance with CEQA Guidelines section 15061(b)(3), accepting the access easement is exempt from CEQA as acceptance of an easement will not have a significant effect on the environment.
11. Grand Jury Report: “Accessory Dwelling Units: Affordable Housing’s Panacea or Prevarication?” – Response Letter Approve a letter responding to the June 12, 2023, San Mateo County Civil Grand Jury report entitled, "Accessory Dwelling Units: Affordable Housing's Panacea or Prevarication?" and authorize the Mayor to send the response letter on behalf of the City Council.
CEQA: This response letter 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).)
12. Wet Weather Preparations – Appropriation
Adopt a Resolution to authorize a supplemental budget appropriation in the amount of $2,500,000 of unassigned fund balance from the General Fund, with $400,000 appropriated to the Public Works Department Fiscal Year 2023-24 operating budget and $2,100,000 appropriated to the capital budget in the Wet Weather Preparation Activities project.
CEQA: This appropriation is not a project subject to CEQA, because it is a government fiscal activity which does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. (CEQA Guidelines Section 15378(b)(4).)
PUBLIC COMMENT
Members of the public wishing to comment on any item not appearing on the agenda may address the City Council at this time. State law prevents Council from taking action on any matter not on the agenda; your comments may be referred to staff for follow up.
Public comment is limited to a total of 15 minutes; however, an opportunity for additional public comment may be provided later in the agenda.
PUBLIC HEARING
City Council action on the following public hearing(s) represents a final decision concluding all administrative proceedings. Judicial review may be had only if a petition is filed with the Court not later than the 90th day following the date the decision is made.
Judicial review of environmental determinations may be subject to a time period for litigation as short as 30 days following the date the decision is made.
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13. Zoning Code Amendment for Planning Application Extensions – Ordinance Introduction Introduce an Ordinance to amend the San Mateo Municipal Code Chapter 27.08.087 “Planning Approval Extension” to allow for extensions of approved planning applications for up to two years; and determine the amendment is exempt from further environmental review pursuant to California Environmental Quality Act (CEQA) Section 15061(b)(3).
CEQA: In accordance with California Environmental Quality Act (CEQA) Guidelines, section 15061(b)(3), introduction of this ordinance amendment is covered by the "common sense exemption" in that CEQA applies only to projects that have the potential to cause a significant effect on the environment. Here, it can be seen with certainty that updates to the ordinance for a planning application extension will not have a significant effect on the environment per Guidelines Section 15061(b)(3). Furthermore, this amendment is not a project subject to CEQA, because it can be seen with certainty that it will not cause a physical change in the environment.
REPORTS AND ANNOUNCEMENTS
City Manager, City Attorney and Council Members report on their various assignments and liaison roles and Council requests for scheduling future items.
ADJOURNMENT
----------------------------------------------------------------------------------------------------------------------------- AGENDAS:
Agendas and material are posted on the City’s website on the Friday preceding each Council Meeting and can be viewed on the City's website at
www.cityofsanmateo.org
. Any supplemental material distributed to the Council after the posting of the agenda will be made part of the official record.
WATCHING A MEETING ON TV:
City Council meetings are broadcast live on Comcast/channel 27, Wave/channel 26, or AT&T/channel 99.
For transmission problems during the broadcast, please call (650) 522-7099. For all other broadcast comments, call (650) 522-7040, Monday-Friday, 8 a.m. - 5 p.m.
WATCHING A MEETING ON A COMPUTER:
There are three ways to stream.
1) Public Meeting Portal
www.cityofsanmateo.org/publicmeetings
2) City YouTube channel and stream it on YouTube:
http://youtube.com/CityofSanMateo
3) Watch TV live stream:
https://www.cityofsanmateo.org/193/Channel-San-Mateo-Live-Stream
PUBLIC COMMENTS/REQUEST TO SPEAK
Prior to the Meeting
Send comments to:
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until 4 p.m. the day of the meeting.
During the meeting
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Click the link at the top of the agenda and you’ll be added to the meeting. All attendees are muted by default. When the item of interest is open for consideration, select the “Raise Your Hand” icon and you will be called on at the appropriate time.
By telephone:
Call (408) 638-0968 and enter the conference ID found at the top of the meeting agenda. When the item of interest is open for consideration, select *9 to raise your hand. When called upon, press *6 to unmute, state your name and provide your comments.
In Person:
At the meeting complete a “Request to Speak” form, submit a request at the speaker kiosk or scan the QR code.
ACCESSIBILITY:
In compliance with the Americans with Disabilities Act, those with disabilities requiring special accommodations to participate in this meeting may contact the City Clerk’s Office at (650) 522-7040 or [email protected]
. Notification 48 hours prior to the meeting will
enable the City to make reasonable arrangements to ensure accessibility to this meeting.
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CITY OF SAN MATEO
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CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 2 Section Name: CONSENT CALENDAR Account Number: 10-1111 File ID: 23-7875-01 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: City Clerk's Office
MEETING DATE: September 05, 2023
SUBJECT:
City Council Meeting Minutes - Approval
RECOMMENDATION:
Approve the minutes of the special and regular meetings of August 21, 2023.
BUDGET IMPACT:
There is no budget impact associated with this administrative action.
ENVIRONMENTAL DETERMINATION:
This minutes approval 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 - Minutes 2023-08-21 Special
Att 2 - Minutes 2023-08-21 Regular
STAFF CONTACT
Patrice Olds, City Clerk
[email protected]
(650) 522-7042
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COUNCIL MEMBERS
Amourence Lee, Mayor
Lisa Diaz Nash, Deputy Mayor
Rich Hedges
Adam Loraine
Rob Newsom Jr.
CITY OF SAN MATEO
Special Meeting Minutes
City Council
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
August 21, 2023
City Hall Council Chamber 5:30 PM
Special Meeting
CALL TO ORDER at 5:30 p.m.
Roll Call
Present: Mayor Lee, Deputy Mayor Diaz Nash, Council Members: Hedges, Loraine and Newsom
CLOSED SESSION
Following the opportunity for public comment, there were no speakers, the City Council convened into Closed Session to consider:
1. Public Employee Performance Evaluation – City Attorney ADJOURNMENT –The meeting adjourned at 6:45 p.m.
APPROVED BY: SUBMITTED BY:
Amourence Lee, Mayor Patrice Olds, City Clerk
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COUNCIL MEMBERS
Amourence Lee, Mayor
Lisa Diaz Nash, Deputy Mayor
Rich Hedges
Adam Loraine
Rob Newsom Jr.
CITY OF SAN MATEO
Regular Meeting Minutes
City Council Meeting
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
August 21, 2023
City Hall Council Chamber 7:00 PM
Regular Meeting
CALL TO ORDER at 7:00 p.m.
Pledge of Allegiance
Roll Call
Present: Mayor Lee, Deputy Mayor Diaz Nash, Council Members: Hedges, Loraine and Newsom
CEREMONIAL
1. Wildland Fire Prevention – Informational Update - Fire Chief Thrasher and Deputy Fire Chief Marshall presented.
2. Caltrans El Camino Real Roadway Renewal Project – Update - Rebecca Krawiec, Public and Stakeholder Outreach; Rommel Pardo Senior Project Manager; Matthew Goetz, District Land Surveyor; and Isaac Mai, Project Engineer; Caltrans, presented.
CONSENT CALENDAR
The following items, 3 through 27, were considered to be routine by the City Council. After the titles of the items were read by the Deputy City Clerk, the public was invited to comment and there were two speakers: Michael Grubb spoke on Item #8 regarding vacant lot remediation on Delaware; and Ryan Moriguchi spoke on Item #23 pump needs repair. Motion passed 5-0.
Moved: Hedges, Seconded: Newsom
Ayes: Lee, Diaz Nash, Hedges, Loraine, and Newsom
Noes: None
3. City Council Meeting Minutes - Approval
Approve the minutes of the special and regular meetings of July 17, 2023.
4. Cablecasting and Channel Management Services – Agreement Adopt a Resolution to use an alternative purchasing method to enter into an agreement with Millbrae Community Television (MCTV) for cablecasting, channel management, maintenance, and engineering support services in an amount not to exceed $50,000 per year for a three-year period beginning fiscal year 2023-24 through fiscal year 2025-26, with cost of living adjustments for a total amount not to exceed $155,000, and authorize the City Clerk to execute the contract in substantially the form presented.
Enactment: Resolution No. 84 (2023)
5. League of California Cities Annual Conference – Voting Delegate Designation Designate Council Member Rob Newsom Jr as the City's Voting Delegate for the 2023 League of California Cities Annual Conference and authorize Council Member Newsom to vote for the League's bylaws amendments.
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6. Zoning Code Amendments for City Projects, Modifications to Planning Applications, and Height Limitations and Exemptions – Ordinance Adoption
Adopt an Ordinance to amend the San Mateo Municipal Code Sections 27.02.060 “Height Limitations and Exemptions”, 27.02.140 “Exceptions”, 27.06.020 “Zoning Administrator – Powers and Duties”, 27.06.050 “Council Consideration and Determination”, and 27.08.080 “Planning Application Modifications” to streamline the review process for city projects, clarify the modification process for approved planning applications, and clarify height limitations and exemptions; and determine the amendments qualify for exemption from further environmental review pursuant to California Environmental Quality Act (CEQA) Section 15061(b)(3).
Enactment: Ordinance No. 2023-03
7. Municipal Code Amendments for New Development Parking Garage Security Requirements – Ordinance Adoption Adopt an Ordinance to amend San Mateo Municipal Code Section 23.54.030 “Parking Garage Security” to update security requirements for residential parking garages to provide flexibility for mixed-use buildings, exempt projects with less than five dwelling units, and standardize video surveillance and lighting requirements; and determine the amendments qualify for a Categorical Exemption from further environmental review pursuant to California Environmental Quality Act (CEQA) Section 15061(b)(3).
Enactment: Ordinance No. 2023-04
8. Concar Passage Mixed-Use Project: Development Agreement Execution Extension Request – Ordinance Adoption Adopt an Ordinance to approve a two-year extension to execute the Development Agreement for the Concar Passage Mixed-Use Project located at 640, 666, 678, 690 Concar Drive; 1820, 1850 S. Grant Street; and 1855 S.
Delaware Street.
Enactment: Ordinance No. 2023-05
9. Technical Services for Housing, Real Estate and Fiscal Analysis – Agreements Approve agreements with Economic and Planning Systems, Inc. for: (1) on-call services for a period of five years to assist the City with housing and fiscal analysis for policy projects and for private development applications for a total of $500,000; (2) technical assistance to evaluate and recommend housing policy options associated with Housing Element implementation in the amount of $103,500; and authorize the City Manager to execute each agreement in substantially the form presented.
10. Community Development Block Grant 2022-23 Annual Action Plan – Amendment and Agreement Adopt an amendment to the 2022 – 2023 Community Development Block Grant (CDBG) Annual Action Plan and approve an agreement to Samaritan House for public facilities improvements in an amount not to exceed $100,000 in CDBG funds and authorize the City Manager to execute the agreement in substantially the form presented.
11. Permanent Local Housing Allocation Grant Program Fiscal Year 2023-2024 – Grant Appropriation Adopt a Resolution to appropriate $584,800 of Permanent Local Housing Allocation grant program funds from the Department of Housing and Community Development into the fiscal year 2023-2024 operating budget.
Enactment: Resolution No. 85 (2023)
12. On-Call Professional Planning Services – Agreement
Approve an agreement with Metropolitan Planning Group for on-call professional technical planning services for a period of five years from August 22, 2023 through June 30, 2028 in an amount not to exceed $750,000 and authorize the City Manager to execute the agreement in substantially the form presented.
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13. Flock Safety Platform – Purchase Agreement
Adopt a Resolution to approve the use of an alternative purchasing procedure; approve an agreement with Flock Group Inc., to purchase Flock Safety Platform products and services for automated license plate reader technology for a five-year term in the cumulative amount of $501,350; and authorize the Chief of Police to execute the agreement in substantially the form presented.
Enactment: Resolution No. 86 (2023)
14. Cellebrite Premium Software Subscription – Agreement Approve an agreement with Cellebrite Inc., to provide a subscription to Cellebrite Premium Unlimited Software to provide digital forensics for a five-year term in the cumulative amount of $456,309.48; and authorize the Chief of Police to execute the agreement in substantially the form presented.
15. Traffic Safety Public Service Announcements – Agreements and Appropriation Adopt a Resolution to appropriate $110,840 to the Police Department’s fiscal year 2023-2024 operating budget; approve an agreement with Mr. Badly Productions for creation of public service announcement videos related to pedestrian safety and distracted driving in the amount of $110,840; approve an agreement with the County of San Mateo for reimbursement in the amount of $110,840 for creation of the public service announcements; and authorize the Chief of Police to execute the agreements in substantially the form presented.
Enactment: Resolution No. 87 (2023)
16. Washington Park Basketball Court Improvements – Contract Adopt a Resolution to approve an alternative purchasing procedure to award a construction contract to Angeles Contractor, Inc. for improvements to the basketball court at Washington Park in the amount of $252,916.84; establish a contingency reserve in the amount of $25,000; and authorize the Public Works Director to execute the contract in substantially the form presented and issue change orders within the contingency amount.
Enactment: Resolution No. 88 (2023)
17. Wastewater Treatment Plant Transfer Pumps Improvements Project – Bid Rejection Adopt a Resolution to reject the sole bid received for the Wastewater Treatment Plant Transfer Pumps Improvements Project; and authorize the Public Works Department to initiate a second Notice Inviting Bids.
Enactment: Resolution No. 89 (2023)
18. Construction Special Inspection Services for the Clean Water Program – Amendment Approve Amendment No. 1 to the professional services agreement with Smith Emery San Francisco to increase the agreement amount by $850,000 for a revised not-to-exceed amount of $2,350,000 for continuing as-needed construction special inspection services for various Clean Water Program projects; and authorize the Public Works Director to execute the amendment in substantially the form presented and issue project-specific task orders under the agreement.
19. Bridge Management Program Development – Agreement
Approve a professional consultant services agreement with Dewberry Engineers, Inc. in an amount not to exceed $250,000; establish a contingency reserve in the amount of $50,000; authorize the Public Works Director to execute the agreement in substantially the form presented and any future amendments within the contingency amount.
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20. Marina Library Structural Improvements Project – Grant Funding Adopt a Resolution to accept funding in the amount of $1,300,000 from the Targeted State Grant Program for the Marina Library Structural Improvements Project; ratify the Funding Agreement with the California State Library; and authorize the City Manager to execute all required documentation to receive the grant funds.
Enactment: Resolution No. 90 (2023)
21. Fire Stations 21 & 23 Shower Remodel – Contract
Adopt a Resolution to approve an alternative purchasing procedure to award a construction contract to Angeles Contractor, Inc. to remodel the showers at Fire Stations 21 and 23 in the amount of $244,267.56; establish a contingency reserve in the amount of $25,000; and authorize the Public Works Director to execute the contract in substantially the form presented and issue change orders within the contingency amount.
Enactment: Resolution No. 91 (2023)
22. Temporary Standby Generator for Dale Avenue Pump Station Upgrade – Contract Change Order 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.
23. Marina Lagoon Fill Pump Overhaul – Change Order
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.
24. Wastewater Treatment Plant Immediate Action Project, Package II – Appropriation and Contingency Increase 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.
Enactment: Resolution No. 92 (2023)
25. Comprehensive Liability Fund – Appropriation
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.
Enactment: Resolution No. 93 (2023)
26. Community Facilities District No. 2008-1 (Bay Meadows) Annual Appropriations Limit for Fiscal Year 2023-24 – Approval
Adopt a Resolution to approve the annual appropriations limit for fiscal year 2023-24 for Community Facilities District No. 2008-1 (Bay Meadows).
Enactment: Resolution No. 94 (2023)
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27. Marina Lagoon Pump Station – Appropriation and Agreement 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.
Enactment: Resolution Nos. 95 and 96 (2023)
PUBLIC COMMENT
Dianne Whitacker expressed appreciation to Heather Stewart who is retiring this week. Edward Evans, Norcal Carpenters Union, thanked the City for the strong labor standards language that went into the draft General Plan. Monika Lee, Age Friendly Task Force, asked for financial support. Olga appreciated the Fire presentation and also expressed concern with Eucalyptus trees. Speaking in support of SB403 to end caste discrimination: Thenmozhi Soundararajan, Sunita Singh and Gayatri JG.
Council recessed from 8:25 p.m. to 8:31 p.m.
NEW BUSINESS
28. New Year's Eve Storm - Status Report and Staff Direction Matt Fabry, Public Works Deputy Director, and Chuck Anderson, PE President Schaaf & Wheeler provided a presentation regarding an overview of the stormwater draining system, impacts from the 2022 New Year's Eve storm, the Marina Lagoon, Schaaf & Wheeler analysis of what went wrong on New Year’s Eve, future wet weather preparation and next steps.
Council asked questions of staff.
Public Comment – Daniel Cwirko-Godycki requested to please release rainy day funds immediately, support stormwater protection initiative. Russ Willsher concerned with weather conditions; release rainy day funds. Amy Jussel Bedard urged to release rainy day funds and the stormwater fee and is concerned that voters don’t see it as a city wide issue. Mantosh Kumar stated take action now. Rich Kranz commented about a lagoon level meter with a camera on it and to release rainy day funds. Lawrence Ives commented on infrastructure issues. Michelle Cwirko- Godcki said make everyone safe - use rainy day funds.
Nikki Huth advised to work on the east and west side simultaneously. Annette Bianco commented on severe flooding and urged taking urgent action to make everyone safer this winter. Andrea Shov voiced that neighbors were in a panic, release rainy day funds. Keith Carlson remarked to release rainy day fund and go over and above.
Heidi Moser concerned with pumps. Lila Kanda concerned with upcoming heavy rains and asked for money.
Valerie Oblath stated cannot control mother nature; prevent and prepare for coming winter. Mareva Godfrey declared the storm was terrifying.
Charlie Schirripa said use the rainy day fund. Andy Middione expressed urgent action needed; use rainy day. Katia Terentyera said no time to waste; release rainy day fund. Anna Cwirko-Godycki stated to support flood free San Mateo; release rainy day fund. Alex Cwirko-Godycki needs critical down payment to start. Jeff Lamont commented on impacts from flooding on lives and requested $8.5 million from rainy day fund. Jay Kuhre declared water is the biggest threat to the city of San Mateo. Susan Manheimer urged to please use the $8.5 million, don’t kick the can down the road. Kevin Simpson concerned with dam and the earthquake impact. Rick Sakuda explained dredging would have brought us more time and urged open communication. Thomas Morgan stated his support. Chris H
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says report seems conflicting. Jonathon Lee stated need to be proactive for winter and seed efforts with city rainy day fund. Taso Zografos supports rainy day fund but needs federal and state funding also. Karim Sarraf stated to release rainy day fund. Louise Duncalf support fixing the pump.
Finance Director Rich Lee answered questions and clarified the rainy day reserve funding and purpose. Council asked additional questions of staff and the consultant. Discussion amongst Council ensued around immediate, short-term and mid-term actions. Staff recommended a sequenced approach to actions, beginning with an appropriation of $3 million for short-term (6-12 months) and mid-term (over one year and foundational to long- term) actions which would include $1.9 million from the General Fund from Vehicle License Fee and $1.1 million from the rainy day reserve. Council concurred in staff’s recommendation.
City Manager Khojikian summarized that consensus of majority was to come back on September 5, 2023, for $3 million for items 1-7 in the short-term list and items 1-3 in the mid-term list immediately. Council directed to have one place on the website for the public to source to for further information.
Council recessed from 10:58 p.m. to 11:05 p.m.
29. Tobacco Retailer Permit Amendments – Ordinance Introduction Tricia Toomey, Police Department Business Manager, provided a presentation on the need to update our code to match the County codes that strengthen language, reduce youth access and incorporate best practices. Council asked questions of staff. Public Comment – Kevin Simpson stated to increase permit amounts and fines.
Motion to 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. Motion passed 5-0.
Moved: Loraine, Seconded: Hedges
Ayes: Lee, Diaz Nash, Hedges, Loraine, and Newsom
Noes: None
30. Drinking in Public Areas – Ordinance Introduction
Matthew Earnshaw, Police Lieutenant, provided a presentation outlining the need to update the City’s municipal code regarding drinking in public, specifically in public areas and private parking lots. Council asked questions of staff. There was no public comment.
Motion to 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.” Motion passed 5-0.
Moved: Hedges, Seconded: Newsom
Ayes: Lee, Diaz Nash, Hedges, Loraine, and Newsom
Noes: None
PUBLIC COMMENT (continued)
Speaking in support of SB 403: Kamaljeet, Sana Qutubuddin, and Pooja Singh. Chris H commented that previous measures W and CC were designed to add funding to maintain city services including storm protection.
REPORTS AND ANNOUNCEMENTS
City Manager, City Attorney and Council Members reported on their various assignments and liaison roles. Mayor requested SB 403 letter of support from San Mateo. Unanimous support from Council to ask CORA Speak Up to work with economic development to roll out the speak up program to businesses.
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ADJOURNMENT – Adjourned in memory of Ethel Batiste, long term pillar in the community and NAACP board member.
Firefighter Mike Ramsey, San Mateo Consolidated Fire Department, who lost his battle with a job-related illness on July 21, 2023 who will be deeply missed and with heart-felt sympathy for the wildfire tragedy that occurred in Maui. Following a moment of silence, the meeting adjourned at 12:11 a.m.
APPROVED BY: SUBMITTED BY:
Amourence Lee, Mayor Patrice Olds, City Clerk
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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: 3 Section Name: CONSENT CALENDAR Account Number: 10-1511 File ID: 23-7904 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: City Clerk's Office
MEETING DATE: September 05, 2023
SUBJECT:
City Council 2024 Regular Meeting Calendar – Adoption
RECOMMENDATION:
Adopt the City Council Regular Meeting schedule for the calendar year 2024.
BACKGROUND:
Attached is the proposed calendar for regular City Council meetings, which are held on the first and third Mondays of each month, with the exceptions as noted, due to holidays. One regular meeting is scheduled for the months of July, August, and December. The meeting in December was moved to December 9, 2024, to accommodate the 30-day period required by the County Elections Division to certify the election results.
BUDGET IMPACT:
There is no budget impact associated with this administrative action.
ENVIRONMENTAL DETERMINATION:
This action 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 Regular Meeting Calendar for 2024
STAFF CONTACT
Martin McTaggart, Deputy City Clerk
[email protected]
(650) 522-7044
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2024 City Council Calendar of Regular Meetings
All meetings start at 7:00 p.m. and at this time are being held in a hybrid in-person/remote manner.
This is subject to change at some point in the future.
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Day Date Notes
Tuesday January 2, 2024 (moved because of New Year’s Day) Tuesday January 16, 2024 (moved because of Martin Luther King Jr. Day) Monday February 5, 2024
Tuesday February 20, 2024 (moved because of Presidents’ Day holiday) Monday March 4, 2024
Monday March 18, 2024
Monday April 1, 2024
Monday April 15, 2024
Monday May 6, 2024
Monday May 20, 2024
Monday June 3, 2024
Monday June 17, 2024
Monday July 1, 2024 Cancelled – regular holiday schedule Monday July 15, 2024
Monday August 5, 2024 Cancelled – regular holiday schedule Monday August 19, 2024
Tuesday September 3, 2024 (moved because of Labor Day holiday) Monday September 16, 2024
Monday October 7, 2024
Monday October 21, 2024
Monday November 4, 2024
Monday November 18, 2024
Monday December 9, 2024 (moved due to time needed by County Elections Division to certify election results)
Monday December 16, 2024 Cancelled – regular holiday schedule
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CITY OF SAN MATEO
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CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 4 Section Name: CONSENT CALENDAR Account Number: 10-5131 File ID: 23-7710-01 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Police Department
MEETING DATE: September 05, 2023
SUBJECT: Drinking in Public Areas – Ordinance Adoption RECOMMENDATION:
Adopt 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:
On August 21, 2023, the City Council introduced an ordinance to San Mateo Municipal Code Section 10.04.080 “Drinking - Public Areas” and repeal Section 10.04.090 ”Drinking - Private Parking Lots.” 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.
If adopted, this ordinance would become effective 30-days after the date of adoption.
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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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.
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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.
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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.
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CITY OF SAN MATEO
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CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 5 Section Name: CONSENT CALENDAR Account Number: 10-5131 File ID: 23-7709-01 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Police Department
MEETING DATE: September 05, 2023
SUBJECT:
Tobacco Retailer Permit Amendments – Ordinance Adoption RECOMMENDATION:
Adopt 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:
On August 21, 2023, the City Council introduced the attached 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.
If adopted, this ordinance would become effective 30-days after the adoption date.
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
Att 2 – Proposed Ordinance – Track Changes
Att 3 – Updated Supplementary Proposed Ordinance
Att 4 – Updated Supplementary Proposed Ordinance – Track Changes
STAFF CONTACT
Ed Barberini, Chief of Police
[email protected]
(650) 522-7600
Tricia Toomey, Business Manager
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[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.
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(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 large- family daycare home as defined in California Health & Safety Code § 1596.78.
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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;
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(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
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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 fair- market 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.
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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
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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 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.
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.
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(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 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.
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(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 hand-
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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.
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(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.
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(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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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.
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(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 large- family daycare home as defined in California Health & Safety Code § 1596.78.
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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;
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(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) 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
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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 fair- market 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 at least two times during each twelve-month period 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. If a violation has occurred, the Tobacco Retailer shall be inspected again within three months. 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 shall 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.
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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.
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(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 large- family daycare home as defined in California Health & Safety Code § 1596.78.
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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;
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(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 Ttobacco Rretailer's Ppermit in compliance with the requirements of this Chapter, the Director or designee may issue a Ppermit which, if issued, must be prominently displayed in a publicly visible location at the location where Ttobacco Pproduct Ssales 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) 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
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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 fair- market 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 annuallyat least two times during each twelve-month period 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. If a violation has occurred, the Tobacco Retailer shall be inspected again within three months. 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 mayshall 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.
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CITY OF SAN MATEO
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CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 6 Section Name: CONSENT CALENDAR Account Number: 82-4681 File ID: 23-7663 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: September 5, 2023
SUBJECT:
2nd & El Camino Real Garage Improvements – Agreement
RECOMMENDATION:
Award an agreement to MBH Architects, Inc. for design professional services in the amount of $570,641; establish a contingency reserve in the amount of $57,000; 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 2nd & El Camino Real Garage has served the San Mateo downtown community for over seventy-five years. It is a concrete structure that has 385 parking spaces spanning five and a half stories. In 2021, a visual assessment identified multiple areas that are out of ADA compliance such as the slope along the path of travel, stairs, transitions, and lighting.
The concrete façade panel connections were observed to be either broken or deteriorated. There are broken or missing concrete wheel stops, damaged vehicle barriers, corroded tube steel lintels, missing waterproofing at all structural joints, concrete cracking and spalling throughout, faded striping and missing wayfinding indicators. In 2022, ZFA Structural Engineering (ZFA) performed a structural investigation which identified exposed, ruptured, and corroded post-tension beam tendons in various areas and recommends that repairs be made in advance to restore the integrity of the structure.
In February 2023, the Public Works Facilities Division interviewed three firms: Bureau Veritas; Edgett Williams Consulting Group; and MBH Architects, Inc. (MBH) to provide design professional services for this project. Staff determined that MBH understood the scope and phasing for the project, has previous experience with the project’s structural engineer, and is able to guide the project to completion within the desired time frame.
On August 4, 2023, MBH submitted a proposal to produce construction documents for a two phased approach: Phase 1:
Structural Repair and Phase 2: Parking Garage Improvements. These documents will include information required for permitting and construction that will be procured through the Job Order Contracting (JOC) process. Construction for Phase 1 is planned for early-2024 and Phase 2 in mid-2024.
Staff recommends approving this agreement in accordance with SMMC 3.60.040(c) which allows award to professional services consultants through a negotiated process without competitive bidding. Given MBH’s positive performance with similar projects in surrounding jurisdictions, their in-depth knowledge of this specific facility and their immediate availability, they are in the best position to perform this work.
BUDGET IMPACT:
There is sufficient funding available in the Parking Facility Structural Repairs (46F025) project to award this agreement.
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ENVIRONMENTAL DETERMINATION:
This agreement is not a project subject to CEQA, because it can be seen with certainty that the proposed design professional services will not cause a physical change in the environment. (Public Resources Code Section 21065.)
NOTICE PROVIDED
All meeting noticing requirements were met.
ATTACHMENTS
Att 1 - Agreement
STAFF CONTACT
Steve Wu, Project Manager II
[email protected]
(650) 522-7345
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AGREEMENT WITH MBH ARCHITECTS, INC.
FOR DESIGN PROFESSIONAL SERVICES
FOR
2ND & EL CAMINO GARAGE IMPROVEMENTS
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 MBH ARCHITECTS, INC., a Corporation (“CONSULTANT”), whose address is 960 Atlantic Avenue, Alameda, CA 94501.
RECITALS:
A. CITY desires certain design consulting services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these design consulting services by reason of its qualifications and experience for performing such services and CONSULTANT 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 CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT 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.
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CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence on September 6, 2023 and be completed on or about June 30, 2025.
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 CONSULTANT a fee in an amount not to exceed $570,641.
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 CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, 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 CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT 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.
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SECTION 10 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT 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 CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONSULTANT 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 CONSULTANT’s negligence, recklessness or willful misconduct to the maximum extent permitted by state law. To the extent permitted by Civil Code section 2782.8, CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit B to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.
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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 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - 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 is the intent of this Agreement 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 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT 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 19 - 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.
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SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Steve Wu, Project Manager
City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
To CONSULTANT: MBH Architects, Inc.
Attn: Marjorie Smith, President
960 Atlantic Avenue
Alameda, CA 94501
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT 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 CONSULTANT.
SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
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SECTION 24 - 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 and CONSULTANT have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Brad B. Underwood
Public Works Director
Date Jason Dries-Daffner
Its Authorized Agent
Principal
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 ADDITIONAL CORPORATE
OFFICER
(if necessary per the above)
Linh Nguyen
Assistant City Attorney
Date Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
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EXHIBIT B
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 12 07 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 CONSULTANT 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.
4.Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
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 insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT 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 CONSULTANT’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
For any claims related to this contract, the CONSULTANT’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 CONSULTANT’s insurance and shall not contribute with it.
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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 City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT 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.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
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
CONSULTANT 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 CONSULTANT’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.
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CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 7 Section Name: CONSENT CALENDAR Account Number: 46f025 File ID: 23-7836 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: September 05, 2023
SUBJECT:
2nd & El Camino Real and Central Parking Garages Elevator Controls Upgrade – Agreement RECOMMENDATION:
Approve an agreement with Consolidated CM, Inc. for elevator controls upgrade professional services in an amount not to exceed $147,950; establish a contingency reserve in the amount of $15,000; 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 elevator at the 2nd & El Camino Garage was installed in 1991 and serves five floors. The elevator at Central Parking Garage was installed in 1999 and serves four floors. Both elevators currently experience reliability issues and are at times out of service as they operate on obsolete control systems. An assessment performed in 2018 recommended that a controls upgrade be implemented at both locations to maintain safe operations (“Project”). Design specifications were produced for both locations in 2023. Construction at the 2nd & El Camino Garage will begin in October 2023. Construction at the Central Garage is planned for award and construction in the Spring of 2024.
The Project will require assistance for construction management and other professional services. Facilities staff inquired with various types of construction management firms in the Bay Area and discovered that only one firm, Consolidated CM, Inc. (Consolidated), specializes in elevator control installations. On August 2, 2023, Consolidated submitted a proposal on to provide construction management and support services for both locations.
Staff recommends approving this agreement in accordance with SMMC 3.60.040(c) which allows award to professional services consultants through a negotiated process without competitive bidding. Given that Consolidated specializes in elevator control installations, has a positive performance with similar projects in surrounding jurisdictions, and their in- depth knowledge of these specific facilities, they are in the best position to perform this work.
BUDGET IMPACT:
There is sufficient funding available in the Elevator Modernization Projects (461001 & 46F035) for this project.
ENVIRONMENTAL DETERMINATION:
This project 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 use. (CEQA Guidelines Section 15301.)
NOTICE PROVIDED
All meeting noticing requirements were met.
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ATTACHMENTS
Att 1 - Agreement
STAFF CONTACT
Steve Wu, Project Manager II
[email protected]
(650) 522-7345
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AGREEMENT WITH CONSOLIDATED CM, INC.
FOR PROFESSIONAL SERVICES
FOR
2ND & EL CAMINO REAL & CENTRAL PARKING GARAGES
ELEVATOR CONTROLS UPGRADE
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 CONSOLIDATED CM, INC., a Corporation (“CONSULTANT”), whose address is 180 Grand Avenue, Suite 1520, Oakland, CA 94612.
RECITALS:
A. CITY desires certain professional consulting services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these professional consulting services by reason of its qualifications and experience for performing such services and CONSULTANT 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 CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT 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.
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SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence on September 6, 2023 and be completed on or about June 30, 2024.
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 CONSULTANT a fee in an amount not to exceed $147,950.
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 CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, 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 CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
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SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT 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 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT 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 CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONSULTANT 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 CONSULTANT’s performance of this Agreement, except those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit B to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.
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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 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - 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 is the intent of this Agreement 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 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT 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 19 - 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.
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SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Steve Wu, Project Manager
City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
To CONSULTANT: Consolidated CM, Inc.
Attn: Scott Ritter, Sr. Project Manager
180 Grand Avenue, Suite 1520
Oakland, CA 94612
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT 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 CONSULTANT.
SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
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SECTION 24 - 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 and CONSULTANT have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Brad B. Underwood
Public Works Director
Date Lang Scoble
Its Authorized Agent
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 ADDITIONAL CORPORATE
OFFICER
(if necessary per the above)
Linh Nguyen
Assistant City Attorney
Date Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
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EXHIBIT B
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 12 07 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 CONSULTANT 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.
4.Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
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 insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT 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 CONSULTANT’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
For any claims related to this contract, the CONSULTANT’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 CONSULTANT’s insurance and shall not contribute with it.
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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 City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT 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.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
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
CONSULTANT 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 CONSULTANT’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.
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CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 8 Section Name: CONSENT CALENDAR Account Number: 10-4661 File ID: 23-7831 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: September 05, 2023
SUBJECT:
Alameda de las Pulgas Corridor Analysis and Hillsdale Boulevard at Alameda de las Pulgas Traffic Signal Design – Agreement
RECOMMENDATION:
Approve an agreement with Sandis Civil Engineers Surveyors Planners for the Alameda de las Pulgas Corridor Analysis and Hillsdale Boulevard at Alameda de las Pulgas Traffic Signal Design project in the amount of $219,598; establish a contingency reserve in the amount of $22,000; and authorize the Public Works Director to execute the agreement in substantially the form presented and issue change orders within the contingency amount.
BACKGROUND:
In 2017, a traffic signal was requested at the Hillsdale Boulevard at Alameda de las Pulgas intersection through the Hillsdale/Beresford Traffic Action Plan. In 2018, staff conducted a signal warrant analysis and found that the intersection meets the eight-hour and four-hour warrants, meaning that the proposed traffic signal improvements at the subject intersection are justified per California Manual on Uniform Traffic Control Devices standards.
The adopted 2020 Bicycle Master Plan identifies a proposed Class II bike lane on Alameda de las Pulgas; as that project is not yet funded for design, staff has scoped a corridor traffic analysis as part of this project that will look to assess current and future roadway operations on Alameda de las Pulgas to support future bicycle project implementation. The corridor traffic analysis will also produce high-level operational scopes for potential future traffic signal projects at the intersections of 28th, 31st, and 36th Avenues along the subject corridor. The proposed traffic signal operations at Hillsdale Boulevard and Alameda de las Pulgas intersection will look to optimize safety for all modes of transportation and work towards minimizing current and future operational deficiencies along the Alameda de las Pulgas corridor.
Sandis Civil Engineers Surveyors Planners (Sandis) was selected through a qualification process using a request for proposals (RFP) for professional engineering design services. The project was advertised on May 23, 2023, and a total of seven (7) proposals were received on June 21, 2023. Staff reviewed the seven proposals and short-listed three (3) consultants for interviews that were held on July 17, 2023. Of the three consultants that were interviewed, Sandis’ proposed scope, schedule, and budget best align with the City’s needs. Therefore, staff recommends awarding an agreement with Sandis to perform the design services for this project for an amount not to exceed $219,598 and establish a contingency reserve of $22,000 (10% of the contract budget) to cover any unforeseen changes during the design process.
BUDGET IMPACT:
There is sufficient funding in the Hillsdale Boulevard and Alameda de las Pulgas Signal (46R001) project account to award this agreement as well as the contingency reserve.
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ENVIRONMENTAL DETERMINATION:
This project is exempt from CEQA review as an “existing facility,” in that the traffic signal installation project 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 - Agreement
STAFF CONTACT
Sang Hee Cho, Associate Engineer
[email protected]
(650) 522-7348
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AGREEMENT WITH SANDIS CIVIL ENGINEERS SURVEYORS PLANNERS
FOR DESIGN PROFESSIONAL SERVICES
FOR
ALAMEDA DE LAS PULGAS CORRIDOR ANALYSIS AND HILLSDALE BOULEVARD AT ALAMEDA DE LAS
PULGAS TRAFFIC SIGNAL DESIGN
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 SANDIS CIVIL ENGINEERS SURVEYORS PLANNERS , a corporation, (“CONSULTANT”), whose address is 636 9
th St, Oakland, CA 94607:
RECITALS:
A. CITY desires certain professional design servic es hereinafter described.
B. CITY desires to engage CONSULTANT to provide th ese professional design services by reason of its qualifications and experience for performing such services and CONSULTANT 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 CONSULTAN T under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the profession al quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furn ish the services described under this Agreement.
CONSULTANT shall be responsible for employing or e ngaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT agrees to comply with the City’s minimu m 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.
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CITY shall examine documents submitted by CONSULTA NT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence on 9/5/2023 and be completed on 12/31/2025.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services re ndered 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 CONSULTANT a fee in an amount of $219,598, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
SECTION 6 - TERMINATION
Without limitation to such rights or remedies as C ITY 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 CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the am ount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the perfor mance of this Agreement, although instruments of professional service, 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 CONSULTANT i n connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT covenants that it presently has no inte rest, 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.
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SECTION 10 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT shall at all times be considered an independent CONSULTANT 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 CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONSULTANT agrees to hold harmless and indemnify C ITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s negligence, recklessness or willful misconduct to the maximum extent permitted by state law.
To the extent permitted by Civil Code section 2782.8, CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) 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 CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and betwee n the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT 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
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applicable law or ordinance.
SECTION 16 – SEVERABILITY
If any term or portion of this Agreement is held t o be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - 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 is the intent of this Agreement 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 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunit y Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT nor any of its sub-consultants 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 19 - MEDIATION
Should any dispute arise out of this Agreement, an y 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 th e 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.
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SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY's request if liti gation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing an d mailed, postage prepaid, addressed as follows:
To CITY: Sang Hee Cho
City of San Mateo
330 W 20
th Avenue
San Mateo, CA, 94403
To CONSULTANT: SANDIS
Attn: Nate Levine
636 9
th St
Oakland, CA, 94607
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instr ument, signed by both CITY and CONSULTANT.
SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority t o conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of th e 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 and CONSULTANT have execu ted this Agreement the day and year first above written.
CITY OF SAN MATEO
CONTRACTOR
Brad Underwood
Interim Director of Public Works
Date Jeff Setera
Its Authorized Agent
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
ADDITIONAL CORPORATE
OFFICER
(if necessary per the above)
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
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PROJECT COORDINATION AND PROJECT
MANAGEMENT
Upon NTP, our team will schedule a kick off meeting to establish lines of communication with City staff to discuss scope of work, schedule, and budget. We will also request and compile available information from the City ahead of develop- ing a Detailed Work Plan to confirm alignment with the City’s goals for the project.
We will meet with City staff regularly and will provide project management services, including meeting agendas and notes, maintaining the project schedule and budget, invoices, and regular communication with the City.
Deliverables:
• Scope of work
• Schedule
• Budget
• Information request
CORRIDOR TRAFFIC ANALYSIS
Our Traffic Team, led by Alta and supported by Kittelson, will analyze traffic operations along Alameda de las Pulgas between 24th Avenue and 42nd Avenue to ultimately evaluate the
implementation of bike facilities recommended in the City’s 2020 Bicycle Master Plan.
To do so, our team will acquire traffic counts from a traffic count vendor for the AM and PM 2-Hour peak period pedes- trian, bicycle, and vehicle turning movement counts at the following intersections (or as otherwise decided):
• Alameda de Las Pulgas and 28th Avenue
• Alameda de Las Pulgas and Ventura Avenue
• Alameda de Las Pulgas and 29th Avenue
• Alameda de Las Pulgas and Terrace Way
• Alameda de Las Pulgas and 30th Avenue
• Alameda de Las Pulgas and Sylvan Avenue
• Alameda de Las Pulgas and 31st Avenue
• Alameda de Las Pulgas and Ander Lane
• Alameda de Las Pulgas and Heather Lane
• Alameda de Las Pulgas and Stephen Road
• Alameda de Las Pulgas and West Hillsdale Boulevard
• Alameda de Las Pulgas and Voelker Drive
• Alameda de Las Pulgas and 36th Avenue
All counts shall be collected between the weekdays of Tues- day through Thursday.
Alta will provide a data request form to the City for all available traffic signal data (phasing, signal timing and signal coordi- nation), historic traffic counts and planned future projects that may affect the traffic operations along the corridor. Alta will review the traffic count data received to ensure the most relevant counts are incorporated into the analysis. Should it be deemed necessary, Alta will also include any requests for the City’s Streetlight Data and Remix by Via subscriptions in this initial data request.
TRAVEL DEMAND FORECASTS
Kittelson will prepare travel demand forecasts for the Alameda de Las Pulgas corridor from 24th Avenue to 42nd Avenue, and the portion of Hillsdale Boulevard crossing the study corridor.
Kittelson will use the current citywide travel model developed by Kittelson as part of the general plan update. Kittelson will then extract forecasts for several scenarios, providing segment and intersection-level forecasts for further Synchro LOS processing by the Team. This will start with 2019 base year model and add recent new facilities that opened (including grade crossings at 28th and 31st Avenues at ECR). Kittelson will then conduct a brief localized validation check using the 2023 counts. We propose to use the 2040 Preferred land use scenario for the cumulative 2040 modeling as it represents the likely buildout of the city’s general plan.
Our Team will collect new counts during the September period that Kittelson will use to validate the base year model in the corridor and increment the growth forecast.
We propose to provide traffic forecasts at up to 6 intersections, as follows:
1. ADLP/28th Avenue
2. ADLP/31st Avenue
3. ADLP/Hillsdale Avenue
4. ADLP/36th Avenue
5. TBD (if required)
6. TBD (if required)
And up to 4 scenarios, but may include:
1. 2019/23 no-build (for model validation)
2. 2019/23 reduced lane + bike lane extension
3. 2040 no-build
4. 2040 reduced lane + bike lane extension
Should it be necessary, Kittelson anticipates the team would utilize the forecasts from these four scenarios to manually fit any other operational scenarios that need testing.
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Kittleson will run the citywide model and extract the following outputs for the team:
1. Processed intersection peak hour turn volumes at all study intersections (in Excel).
2. Select link runs on ALDP and Hillsdale to assist the team with quantifying the percent local vs regional cut-
through traffic (intent is to demonstrate how much
traffic could potentially divert as a result of a lane
reduction associated with the bike lane extension
scenarios).
We anticipate the team will review the volume demands with the City to determine if they reasonably represent the growth and change in demands associated with the lane reduction, new signal, and bike lane addition scenarios. Following the review, if needed, the team can opt to make manual adjustments based on engineering judgment, especially to left turn volumes which may influence traffic signal timing and queue lengths.
We will not extract VMT results since there is no CEQA analysis for this project. However, should the City request it, additional performance measures can be extracted in the study area for community engagement.
EXISTING AND FUTURE CONDITIONS ANALYSES
Alta will perform the intersection traffic operations analysis based on count data collected/received to determine the average queue length and average vehicle delay during the AM and PM peak periods.
This analysis will utilize existing traffic volumes only to study the existing and future conditions with and without the planned bikeway improvements with one proposed roadway
configuration for the planned bikeway at the project
intersections identified above. The conditions will be evaluated in the existing and future scenarios. The Alta team will use Synchro (v11) software, the accompanying SimTraffic software, and Highway Capacity Manual (HCM) 6th Edition methodologies for estimating vehicle delays and queue lengths. Anticipated queue lengths will be reported for each intersection approach, and reported delay shall be represented as average vehicle delay per intersection for each scenario analyzed. The
scenarios developed will be the following:
• Existing Conditions (2023) without Planned Bikeway
Improvements
• Existing Conditions (2023) with Planned Bikeway
Improvements
• Future Conditions (2040) without Planned Bikeway
Improvements
• Future Conditions (2040) with Planned Bikeway
Improvements
The proposed configuration for the Existing and Future
Conditions with the Planned Bikeway Improvements shall include a road diet along Alameda de las Pulgas, which shall remove one travel lane in each direction. The Existing and Future Conditions with the Planned Bikeway Improvements shall also include high- level intersection design and operations, which may include, but are not limited to, turn pockets, parking removal, bicycle and pedestrian phasing, signal timing improvements, striping improvements, and hardscape improvements.
These improvements shall be identified and proposed for the optimization of safety and comfort for all users and work towards minimizing operational deficiencies.
In order for the future conditions to be analyzed, Alta will utilize the traffic forecasting completed by Kittelson.
The analysis shall also assess changes in volume to capacity (V/C) ratios for each of the identified scenarios and shall include high level operations scopes for traffic signals at the project and for Alameda de las Pulgas at 28th, 31st, and 36th Avenue intersections and up to two additional locations, for future conditions.
ALTERNATIVE CONCEPTS AND ANALYSIS
HILLSDALE BOULEVARD AT ALAMEDA DE LAS PULGAS INTERSECTION Special considerations will be given to the intersection of Alameda de las Pulgas and Hillsdale Boulevard, understanding- ing that the installation of the traffic signal will precede the implementation of the bicycle facilities on Alameda de las Pulgas. As such, high-level alternative concept designs will be produced for this intersection.
Up to three alternative designs may be produced, in AutoCAD and on aerial imagery at 1”=20’ scale. Each alternative will provide means for the bicycle facilities to be implemented at the intersection while mini- mizing the amount of work to be completed on the new traffic signal equipment for the facilities to be compatible. This work will account for additional signal heads that may be required for the bicycle facility phasing, the changing alignment of lanes approaching the intersection and their relationship to signal equipment placement and any phasing changes that may be required for the bicycle facility
implementation. These alternative designs will not require the addition of new poles or mast arms for the bicycle facilities to be implemented.
Each alternative shall be assessed for its connectivity, safety, and operational opportunities and trade-offs that it presents for the various modes of users. This will include a LOS delay, queuing, and volume to capacity ratio analysis for each alter-
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native in the Existing Conditions.
This alternatives comparison shall be presented to the
community for feedback and lead to the selection of a
preferred alternative.
PREFERRED ALTERNATIVE AND ANALYSIS MEMORANDUM
Alta will provide the City with a draft traffic study memoran- dum for review. The City may provide a response in the form of consolidated, consistent comments on the memorandum. Alta will address the comments and provide a final traffic study memorandum. This memorandum will outline the preferred
design, which shall include the preferred alternative for the design of Alameda de las Pulgas and Hillsborough Boulevard after receiving public input. It will also identify the necessary signal modifications, if any, for the implementation of the bicycle facilities at this intersection.
Both submittals will be accompanied with appendices, which will include, but is not limited to, the collected traffic data, all Synchro output reports from the Synchro analysis, and all SimTraffic queueing reports from the queuing analysis.
Deliverables:
• Existing Conditions Analysis Memorandum (with and
without bike facilities); PDF
• Future Conditions (2040) Analysis Memorandum (with and without bike facilities); PDF
• High-level operations phasing for traffic signals at
Alameda de las Pulgas at 28th, 31st, and 36th Avenues
• Up to three operational design conceptual alternatives for the Hillsdale Blvd/Alameda de las Pulgas traffic signal • Final Design and operations memorandum for Hillsdale
Boulevard/Alameda de Las Pulgas Traffic Signal
STAKEHOLDER AND COMMUNITY ENGAGEMENT
COMMUNITY OUTREACH PLAN
Alta will work closely with the City of San Mateo to develop a Community Engagement Plan (CEP) that will outline the
strategies and resources to be used to meaningfully engage with the community and various stakeholders, including those who are typically difficult to reach. The CEP will also include a schedule of activities, deliverables, and anticipated actions required of the City. We are sensitive to the limits on par- ticipants’ time, and will structure outreach and engagement opportunities that align with existing meetings and events as much as possible.
We anticipate that the CEP will also include a list of organiza- tions and contacts at Equity Priority Communities and CBOs to focus on and ensure that these communities achieve equitable access to safe active transportation.
WEBSITE (VIRTUAL OPEN HOUSE)
Alta will develop virtual workshops where participants can evaluate scenarios using slider photo renderings to show existing and future alternative cross-sections of real locations on the corridor along with benefits and trade-offs for each alternative. The virtual workshop will record participant input and collect ranked priorities on each alternative. A hard copy version will be available to collect input for mobile workshops.
Alta proposes to design and develop a custom web- based virtual open house for this project (an example can be seen at
https://grandave.altaplanning.cloud/), starting from content strategy and mockups, incorporating interactive map ele- ments, contextual project details, narrative copy, and support- ing text and infographics. The virtual open house will allow the general public to learn about the project’s extents, the current facilities, and proposed alternative typologies. The virtual open house will also afford the public opportunities to provide feedback during each phase of the project. Public input data will be collected anonymously and stored privately for export and analysis periodically during the active public commenting period as needed, and as a final export at the close of the commenting period.
CONTENT STRATEGY
Alta will work with the City to determine overall strategies and goals, content priorities, and other functional details needed through a virtual open house questionnaire. Alta will assess graphic asset and data needs and availability based on client guidance received through the questionnaire, and provide the City with a content inventory, listing content (text, high resolution photos, data, and graphic assets) needed to procure or produce prior to launch. Using the answers from the questionnaire, Alta will produce a draft storyboard and wireframes for two phases of the virtual open house for the City’s review and approval. These will establish a strategy
and structure for the virtual open house before any mockup design begins, and help with outlining and determining
functional elements, organizing and prioritizing content, and planning design direction.
The City will review the storyboard and wireframes and provide Alta with a consolidated, non-contradictory set of comments to incorporate into the design mockups.
CONTENT DEVELOPMENT
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Alta will draft copy based on client guidance received through the questionnaire and meetings. The City will review the draft copy and provide Alta with a single, consolidated, non- contradictory set of comments. Alta will finalize the copy, and with approval, incorporate into the design mockups used in the Virtual Open House will be produced by Alta.
DESIGN MOCK-UPS
Based on the approved content outline, storyboard, and wire- frames, and branding guidelines provided by the City, Alta will produce full design mockups of up to three key pages of the virtual open house to establish the layout, colors, typography, and graphic elements. These mockups will be presented as static PDF or JPG images. This task includes two rounds of review (one draft, one final). For each round, the City will review the mockups and provide Alta with a single, consolidated, non- contradictory set of comments to respond to or address in the subsequent round.
VIRTUAL OPEN HOUSE WEB DEVELOPMENT
With the client’s approval of the design mockups, Alta will proceed with production of the first development draft of the first phase of the virtual open house, which will include all design and content elements established through the content strategy and mockup processes. Depending on the functional details established during the content strategy process, some features or functionality may not be present or subject to review until the second round, and the first development draft will not be fully mobile optimized. This task includes two rounds of review (one draft, one final) for each of the three phases of the virtual open house. For each round in each phase, the City will review the development draft and provide Alta with a single, consolidated, non-contradictory set of comments to respond to or address in the subsequent round.
The final developed version will be feature-complete, mobile optimized, and accessible as defined by the WCAG 2.0 guide- lines. Alta will privately host the development draft of the virtual open house throughout the development process, providing access to the City during each scheduled review period to facilitate review, testing, and feedback. This development and review process will repeat for each of the three phases of the virtual open house. After the initial phase launches, subsequent development and review will take place on a separate preview instance of the virtual open house, with the final approved version deployed to replace the previous version at an agreed- upon launch date for each phase.
FINAL LAUNCH
Leading up to the public launch of the first phase, Alta will, if necessary, coordinate with the City to acquire a unique domain name for the virtual open house. Alta will be responsi- ble for technical administration of the new or existing domain name for the public launch, and will continue to provide host- ing of the virtual open house in its public production envi- ronment for one year for a fixed fee of $2,000. No changes, updates, or maintenance after the public launch are included in this scope.
After one year, Alta will privately archive the virtual open house, cancel any domain names associated with it, and provide a packaged archive of the virtual open house to the City upon request.
DEVELOPMENT OF COLLATERAL MATERIALS
Alta will create and print marketing collateral that includes project flyers, A-frame poster boards, postcards or door hangers for businesses and residents, cards to leave on wind- shields and bike spokes.
OUTREACH ACTIVITIES
Alta will work with the City to provide an inclusive, iterative and comprehensive suite of outreach activities. Outreach events will focus on gathering input from the community on opportunities and challenges related to the design concepts. Proposed events include:
• Stakeholder interviews – up to three (3 stakeholder inter- views). It is anticipated that the City will lead all logistical considerations for these meetings.
• 1 project workshop– potential location TBD
• Development of Postcard mailers with notices about the meetings and explanations about the project to neighbors within ½ mile buffer of project
• Attendance of up to one Sustainability and infrastructure commission meeting (up to 1 staff; 3 hrs)
SUMMARY OF ENGAGEMENT
Alta will take the collected outreach materials and results from the above tasks and develop a graphical outreach sum- mary memo for incorporation into the final plan. The summary will feature maps of identified issues, high-level summary analyses, and photos from events. Comment card comments will be
compiled into a Microsoft Excel matrix for SCTA to use.
Deliverables:
• Community Outreach Plan
• Website/ Virtual Open house (ex., https://grandave.alta- planning.cloud/)
• Attendance at Sustainability and Infrastructure Commis- sion (1 meeting up to 3 hrs for 2 staff)
• Collateral materials (project flyers, A-frame poster boards, postcards or door hangers)
• Outreach Summary Memo
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S E C T I O N C S C O P E O F S E R V I C E S
CITY OF SAN MATEO ALAMEDA DE LAS PULGAS CORRIDOR ANALYSIS AND HILLSDALE BOULEVARD AT ALAMEDA DE LAS PULGAS TRAFFIC SIGNAL DESIGN | JUNE 2023 SANDIS.NET 6
HILLSDALE BOULEVARD AT ALAMEDA DE LAS
PULGAS TRAFFIC SIGNAL PLANS,
SPECIFICATIONS, AND ESTIMATE (PS&E)
Upon kickoff of this task, a detailed work plan and schedule will be developed by Sandis to complete the PS&E phase in- cluding an outline of the various tasks and submittal delivery dates necessary to complete the PS&E and bid the project.
The PS&E phase will consist of the following submittals:
• 35% (Plans)
• 65% (Plans, Draft Specifications, and Estimate)
• 95% (Plans, Specifications, and Estimate/Bid List)
• 100% Final (Plans, Specifications, and Estimate/Bid List) We assume that 20 working days are needed for City review of 35% and 65% submittals and 15 working days for City review of all other submittals. Comments will be provided in a single consolidated set of redlines. Our team will also be available to attend plan review “page turners” if needed, to expedite plan review.
The City will submit a PG&E service application within two weeks following review, revision, and resubmittal of 35% plans. Sandis suggests the City review and consider submitting the application upon selecting the preferred signal layout in the previous task; our team can propose a suitable location for the service cabinet so that the application may be reviewed and submitted.
The design plan set will include infrastructure and equipment necessary to operate the traffic signal as identified in the pre- ferred scenario selected in the prior phase. This may include but is not limited to signal poles and mast arms, detection for all modes, emergency vehicle preemption, CCTV, com- munications to the nearest online intersection, traffic signal cabinet and contents, conduits, conductors, phase diagrams, and lighting. The plan set will also include necessary civil engineering work needed to implement the signal operations identified in the preferred scenario, including but not limited to, median cutback and concrete restoration, pavement resto- ration, pedestrian ramps, and new and replaced landscaping. We assume that utility and landscaping improvements are minimal; further
improvements can be provided as an additional service.
Our plan set will also include design detail for drainage im- pacts and sufficient utility information to satisfy the project’s utility certification. It should be noted that the example signal plan provided was from San Clemente and utilizes a conductor schedule formatting that is typical for Southern California. Our team is well experienced with this format but recommends a more typical conductor schedule to Northern California to attract competitive bids.
TOPOGRAPHICAL SURVEY AND BASE MAPPING
Sandis will perform a topographic field survey to gather the necessary information and detail for the design of the Project at the intersection of W. Hillsdale Blvd and Alameda de las Pulgas.
The boundary shall establish City right-of-way and be used to confirm that all improvements are within the City’s right-of-way.
Existing right-of-way will be based upon available maps and deeds on file in the County public records. We will include and show plottable easements, if any, and right-of-way lines with length and bearing (including reference on basis) on each boundary course. A Preliminary Title Report with referenced documents will be ordered if needed.
Sandis will conduct fieldwork, office calculations, and drafting to produce a topographic survey of the project area at an a 1” = 20’ Scale. This survey will show the location and sizes of existing trees (Driplines will be assumed), grade breaks, high points, low points signs, fences, walls, buildings, striping, driveways, walkways, drainages, structures, lights, poles, bollards, vegetated or landscaped areas (including bushes, etc), USA markings, vaults, valves, meters, boxes, pedestals, cleanouts, manholes, drain inlets, catch basins, culverts, out- falls, and standpipes within the project area(s). Field measure- ments of inverts of accessible and unobstructed visible catch basins, area drains, storm drain manholes, and sanitary sewer manholes will be shown.
Elevation spot grades and/or the combination of contours will be shown at one (1) foot intervals or as appropriate to clearly define the slopes. Elevations collected by ground surveys will be shown to an accuracy of 0.01’ (one hundredth) of a foot.
Heavily brushed areas will be defined at the perimeter. Brush clearing will be the responsibility of the client if ground eleva- tions need to be collected in those areas. Existing elevations shall be shown at a maximum of 100-foot cross sections. Spot
elevations shall be shown at all points of vertical or horizontal change (grade break). Elevations will be based on available NGS or locally published benchmarks. Utility information will be based on surface evidence located in the field and the solicitation of the records of the various utility providers. Sandis will coordinate directly with the utility providers to achieve this. Sandis will issue an underground service alert to field-verify the data provided by various utilities, particularly where there may be conflicts with proposed pole and conduit locations.
Mechanical detection and/or potholing (up to eight) of existing high risk utilities will also be provided.
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CITY OF SAN MATEO ALAMEDA DE LAS PULGAS CORRIDOR ANALYSIS AND HILLSDALE BOULEVARD AT ALAMEDA DE LAS PULGAS TRAFFIC SIGNAL DESIGN | JUNE 2023 SANDIS.NET 7
Deliverables:
• Topographic Survey and Utility Research and Field Work • Hillsdale Boulevard at Alameda de las Pulgas Traffic Signal Plans, Specifications, and Estimate
• PG&E submittal documents/Support
Our team will provide support during the bidding process, including but not limited to attending the pre-bid meeting, and preparing draft addenda or clarifications documents.
Sandis will also provide design support during the construc- tion of the project, including but not limited to attending the pre-construction meeting, assisting with review and
preparation of responses to contractor requests for
Information, assisting with review and preparation of responses to contractor submittals, assisting with preparation of contract change orders, participating in the final walk through, and assisting with preparation of the punch list.
We have included an optional fee for this task in our cost proposal and included escalation for two years.
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CITY OF SAN MATEO ALAMEDA DE LAS PULGAS CORRIDOR ANALYSIS AND HILLSDALE BOULEVARD AT ALAMEDA DE LAS PULGAS TRAFFIC SIGNAL DESIGN | JUNE 2023 SANDIS.NET 8
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EXHIBIT B
PAYMENT RATES
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CITY OF SAN MATEO PUBLIC WORKS DEPT. ON-CALL CONSULTANT SERVICES I CATEGORY#6: POTHOLING AND UNDERGROUND FACILITY LOCATING SERVICES, RESUME APPENDIX | FEBRUARY 2023
43 SANDIS.NET
APPENDIX BUDGET AND FEE SCHEDULE
Sandis
PIC/QAQC
Sandis
PM
Sandis
PE
Sandis
DE
Sandis
Survey Tech
Sandis
Survey PM
Sandis
Proj Surveyor
Sandis
Survey Crew
QC
Senior
Associate
Engineer
Senior
Planning
Associate
Traffic
Engineer
Design
Engineer
Design
Engineer Planner Digital Director Web Developer Project Coordinator
Senior
Principal Senior Planner
2023 Hourly Charge Rate* $300 $215 $170 $130 $125 $215 $145 $350 $297 $277 $256 $200 $200 $169 $154 $215 $154 $113 $325 $215 Project Coordination and Project Management $17,250
Schedule Updates 4 4 $860
Budgeting/Invoicing 1 6 1 1 9 $2,130
Project Meetings and Support 2 26 2 4 4 8 8 2 4 3 1 64 $14,260 Corridor Traffic Analysis $84,758
Traffic Counts Review 6 6 5 17 $2,965
Synchro Analysis 2 2 25 36 59 124 $23,155
Travel Forecasting 2 16 28 46 $11,650
Alternative Concept Designs 4 8 8 2 10 20 40 92 $16,574 Alternative Analysis 4 8 8 2 8 10 30 70 $14,070
Draft Memorandum 4 2 4 10 20 6 5 51 $10,141
Final Memorandum 4 2 4 2 10 4 5 31 $6,203
Stakeholder and Community Engagement $45,860
Community Outreach Plan 2 15 25 42 $8,120
Website (Virtual Open House) 2 5 10 5 5 20 15 25 87 $16,530 Outreach Activities 12 10 5 20 20 67 $13,090
Summary of Engagement 2 15 25 42 $8,120
Hillsdale Blvd at Alameda de las Pulgas Traffic Signal PS&Es $45,480 Topographical Survey and Base Mapping 6 24 10 12 12 64 $12,380 Utility Coordination 8 2 8 8 26 $4,940
35% Design 1 6 12 24 4 46.5 $7,708
65% Design 1 8 16 24 2 50.5 $8,264
95% Design 1 6 12 20 2 41 $6,784
100 % Design 1 6 10 12 2 31 $5,404
Totals 6 114 68 96 24 18 20 12 8 49 49 76 135 131 94 15 25 15 20 30 1005 $193,348 Project Expenses Estimate $26,250
Traffic Counts $7,500
Development of Outreach Materials $5,000
Printing Outreach Materials $5,000
Other Reimbursables and Expenses $750
Utility Locating $8,000
Total $219,598
Bidding and Construction Support (Optional)
Bidding Support 0 $4,000
Design Services During Construction (Includes 2 years of escalation) 0 $9,500
Totals 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 $13,500
Notes:
1. Hours and staff assignments may be adjusted by the consultant as needed to implement the tasks described during the course of the project. check $369,446
2. Rates are subject to annual rate adjustments check 1005
CITY OF SAN MATEO ALAMEDA DE LAS PULGAS
CORRIDOR ANALYSIS AND HILLSDALE BOULEVARD
TRAFFIC SIGNAL DESIGN
Task
Hours
Total Task
Fee
Sandis Alta Kittelson
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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 12 07 covering CGL on an “occurrence” basis, including pr oducts-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 a pply 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 CONSULTANT has no owned autos, hired, (Code 8) and non-owned a utos (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 Statut ory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
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 insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT 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 CONSULTANT’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
For any claims related to this contract, the CONSULTANT’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 CONSULTANT’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 City.
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Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any ri ght to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue o f the payment of any loss under such insurance.
CONSULTANT agrees to obtain any endorsement that ma y 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.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
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
CONSULTANT 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 CONSULTANT’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.
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CITY OF SAN MATEO
4 4
1 9
CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 9 Section Name: CONSENT CALENDAR Account Number: 10-4662 File ID: 23-7886 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: September 05, 2023
SUBJECT:
On-Call Professional Consultant Services – Agreements
RECOMMENDATION:
Approve individual on-call professional consultant services agreements each for a term through December 31, 2025 with:
Geocon Consultants, Inc. in an amount not to exceed $250,000; Sandis Civil Engineering Surveyors Planners in an amount not to exceed $300,000; Ghirardelli Associates, Inc. in an amount not to exceed $300,000; Park Engineering, Inc. in an amount not to exceed $300,000; BSK Associates in an amount not to exceed $150,000; and Nichols Consulting Engineers, CHTD. in an amount not to exceed $150,000; and Authorize the Public Works Director to execute the agreements in substantially the form presented and any future no-cost amendments.
BACKGROUND:
On January 20, 2023, the Department of Public Works staff issued a request for proposals (RFP) to select qualified firms to provide on-call professional consulting services for various specializations, including geotechnical services, surveying services, construction management and inspection, material testing, environmental and environmental compliance services, and potholing and underground facility locating. Consultant services are needed to assist the City in managing and implementing capital improvement projects.
The City received a total of thirty-eight (38) proposals that were evaluated based on the firms’ project understanding, experience with similar projects, and technical ability of key staff. The on-call engineering consulting firms recommended by staff for each specialization are in the table below, along with respective recommended agreement amounts. The not to exceed contract amounts for each consultant are based upon the type of services to be delivered and the estimated level of effort needed for these services.
Consultant Service Award Amount Not to Exceed
Geocon Consultants Geotechnical $250,000
Sandis Civil Engineers Surveyors and Planners Surveying, Potholing & Underground Facility Locating
$300,000
Ghirardelli Associates Construction Management & Inspection $300,000 Park Engineering Construction Management & Inspection $300,000 BSK Associates Material Testing $150,000
Nichols Consulting Engineers Environmental & Environmental Compliance $150,000 The proposed term of the agreements are through December 31, 2025, unless amended. Staff will develop specific project task orders, scopes of work, and budgets with each firm for work efforts performed as part of the on-call services. Based on the above, staff recommends that Council approve the on-call agreements.
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BUDGET IMPACT:
Each consultant will be issued a blanket purchase order in an amount not to exceed as listed above. Individual project budgets will fund work under the respective task orders.
ENVIRONMENTAL DETERMINATION:
The award of on-call professional services agreements is not a project subject to CEQA review because it consists of 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 – Agreement – Geocon Consultants, Inc.
Att 2 – Agreement – Sandis Civil Engineers Surveyors Planners Att 3 – Agreement – Ghirardelli Associates, Inc.
Att 4 – Agreement – Park Engineering, Inc.
Att 5 – Agreement – BSK Associates
Att 6 – Agreement – Nichols Consulting Engineers, CHTD.
STAFF CONTACT
Tina Pham, Senior Engineer
[email protected]
(650) 522-7305
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AGREEMENT WITH GEOCON CONSULTANTS, INC.
FOR PROFESSIONAL ON CALL CONSULTANT SERVICES
FOR
GEOTECHNICAL SERVICES
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 Geocon Consultants, Inc., a corporation (“CONSULTANT” or “Geocon”), with offices at 6671 Brisa Street, Livermore, CA 94550.
RECITALS:
A. CITY desires certain on call geotechnical services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these on call geotechnical services by reason of its qualifications and experience for performing such services and CONSULTANT 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 CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT 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.
CONSULTANT and his subconsultants shall comply with State’s Prevailing Wage Laws.
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SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence on upon execution of this agreement and be completed on December 31, 2025. This term of this Agreement may be extended by written amendment executed by the Director of Public Works and a duly authorized representative of CONSULTANT.
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 CONSULTANT a fee, based on verified time and materials, in an amount of $250,000, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
Cost adjustment for the second and subsequent year’s annual fixed amounts will be made using annual indexes of the “Consumer Price Index for All Urban Consumers,” Bay Area City Average, all items (1967=100) as published in the Monthly Review by the U.S. Department of Labor, (CPI). The annual increase in rates is not to exceed CPI or 3%, whichever is lower.
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 CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
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SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT 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 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT 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 CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONSULTANT 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 CONSULTANT’s performance of this Agreement, except those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
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SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work with the care and skill ordinarily used by members of CONSULTANT’s profession practicing under the same or similar circumstances at the same locality, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT 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 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - 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 is the intent of this Agreement 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 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT 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.
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SECTION 19 - 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 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Tina Pham, Senior Engineer
City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
To CONSULTANT: Geocon Consultants, Inc.
Attn: Shane Rodacker
6671 Brisa Street
Livermore, CA 94550
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
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This document may be amended only by written instrument, signed by both CITY and CONSULTANT.
SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - 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 Geocon Consultants, Inc. have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Brad Underwood
Interim Public Works Director
Date Shane Rodacker
Its Authorized Agent
Vice 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 ADDITIONAL CORPORATE
OFFICER
(if necessary per the above)
Linh Nguyen
Assistant City Attorney
Date William Lydon
Chief Financial Officer
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Fee Rates
Exhibit C: Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
Service Tasks include but are not limited to:
1. Pre-exploration activities & geotechnical feasibility assessment. a. Review of existing geotechnical data, public documentation, geologic maps, aerial photographs, and historic groundwater level.
b. Permitting.
2. Field exploration and geotechnical investigations.
a. Soil sampling.
b. Laboratory testing of select soil samples for moisture-density, Atterberg Limits, gradation, strength, corrosivity, consolidation tests, and R-value. c. Compiling and analyzing field and laboratory data.
3. Initial and final design level geotechnical reports, detailing site conditions, constraints, any applicable mitigation measures, findings, data results, and recommendations.
4. Supervision of all work by a registered Geotechnical Engineer (“GE”) and/or a Certified Engineering Geologist (“CEG”), as required.
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EXHIBIT B
FEE RATES
Professional Services
Engineering Field Technician/Special Inspector I .................................................................................................................... 85/135(PW)*/hr.
Engineering Field Technician/Special Inspector II ................................................................................................................... 95/140(PW)*/hr.
Engineering Field Technician/Special Inspector III/Equipment Operator ............................................................................. 105/150(PW)*/hr.
Laboratory Technician/Engineering Assistant .......................................................................................................................................... 90/hr.
Senior Laboratory Technician ................................................................................................................................................................. 110/hr.
Laboratory Supervisor ............................................................................................................................................................................ 140/hr.
Word Processor/Technical Editor/Drafter ............................................................................................................................................... 90/hr.
Research Assistant/Technical Illustrator/Senior Drafter ........................................................................................................................ 105/hr.
Project Coordinator/GIS Specialist ......................................................................................................................................................... 115/hr.
Staff Engineer/Geologist/Scientist/Field Supervisor .............................................................................................................................. 130/hr.
Senior Staff Engineer/Geologist/Scientist .............................................................................................................................................. 140/hr.
Project Engineer/Geologist/Scientist/Construction Supervisor ............................................................................................................. 150/hr.
Senior Project Engineer/Geologist/Scientist .......................................................................................................................................... 165/hr.
Senior Engineer/Geologist/Scientist/Certified Industrial Hygienist ....................................................................................................... 180/hr.
Associate Engineer/Geologist/Scientist ................................................................................................................................................. 210/hr.
Principal Engineer/Geologist/Scientist/Litigation Support .................................................................................................................... 240/hr.
Deposition or Court Appearance ............................................................................................................................................................ 425/hr.
Attorney Fees (General) ......................................................................................................................................................................... 400/hr.
Overtime (>8 to 12 hrs.), Saturday, and Night Rate ................................................................................................... 1.5x Regular Hourly Rate Overtime (>12 hrs.), Sunday, and Holiday Rate ............................................................................................................. 2x Regular Hourly Rate Minimum Professional Fee ............................................................................................................................................................ $500/Project Minimum Field Services Fee (per day or call-out) ................................................................................................................................. 4 Hours * Prevailing Wage (PW) per requirements of California Labor Code §720, et. Seq.
EQUIPMENT & ANALYTICAL TESTS
Nuclear Gauge ..................... Included in Technician Hourly Rate Pick-up Truck ................................................................ $140/day Equipment Truck ............................................................ 225/day Direct-Push Rig/Operator .............................. 190/235(PW)*/hr.
Direct-Push Sample Liner .................................................. 10/ea.
Equipment Trailer .......................................................... 100/day Wenner 4-Pin Earth Resistivity Meter ............................ 150/day Coring Machine (concrete, asphalt, masonry) …............ 250/day Dynamic Cone Penetrometer ......................................... 250/day Dilatometer (DMT) Test Equipment ............................... 800/day Generator or Air Compressor ......................................... 150/day GPS Unit ......................................................................... 160/day Drive-Tube Sampler or Hand-Auger ................................. 50/day Soil Sample Tube (Brass or Stainless) ................................ 12/ea.
Water Level Indicator ....................................................... 50/day Battery-Powered Pump .................................................... 75/day Photo-Ionization Meter .................................................. 150/day Level D PPE/Decon Rinse Equipment ............................. $50/day pH/Conductivity/Temperature Meter .............................. 60/day 55-gallon drum .................................................................. 90/ea.
TPHg (EPA 8015M) ........................................................... 90/ea.
TPHd/mo (EPA 8015M) .................................................... 80/ea.
Fuel Oxygenate Compounds (EPA 8260B) ...................... 135/ea.
Volatile Organic Compounds (EPA 8260B) ..................... 165/ea.
Semi-Volatile Organic Compounds (EPA 8270) .............. 300/ea.
CAM 17 Metals (EPA 6010B) ........................................... 200/ea.
Single Metal (EPA 6010B) ................................................ 35/ea.
STLC or TCLP Extraction ................................................... 75/ea.
Soil pH (EPA 9045C) ......................................................... 25/ea.
Organochlorine Pesticides (EPA 8081) ........................... 125/ea.
Naturally Occurring Asbestos (CARB 435) ...................... 125/ea.
Asbestos PLM .................................................................... 20/ea.
Asbestos 1,000-pt Count ................................................. 100/ea. 48-hr/24-hr Turn-around Time ………………..60%/100% surcharge
LABORATORY TESTS
COMPACTION CURVES
4-inch mold (D1557/D698) ........................................... $250/ea. 6-inch mold (D1557/D698) ............................................. 250/ea.
California Impact (CAL216) ............................................. 250/ea.
Check Point .................................................................... 100/ea.
SOIL AND AGGREGATE STABILITY
Resistance Value, R-Value (D2844/CAL301) ................. $300/ea.
R-Value, Treated (CAL301) .............................................. 325/ea.
California Bearing Ratio (D1883) .................................... 175/pt.
Stabilization Ability of Lime (C977) ................................ 200/ea.
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SOIL AND AGGREGATE PROPERTIES
#200 Wash (D1140/C117) ............................................... $90/ea.
Wet Sieve Analysis to #200 (D422/CAL202) .................... 125/ea.
Dry Sieve Analysis, 1.5”+ Aggregate (D6913) .................. 350/ea.
Hydrometer Analysis (D422) ........................................... 175/ea.
Sieve Analysis with Hydrometer (D422) .......................... 200/ea.
Specific Gravity, Soil (T100) ............................................. 100/ea.
Specific Gravity Coarse Aggregate (C127) ........................ 75/ea.
Specific Gravity Fine Aggregate (C128) ........................... 100/ea.
SHEAR STRENGTH
Unconfined Compression (D2166) ................................ $110/ea.
Direct Shear (3 points) (D3080) ....................................... 350/ea.
Unconsolidated-Undrained Triaxial Shear (D2850) ......... 135/pt.
Unconsolidated-Undrained Triaxial Staged (D2850) ....... 185/ea.
Consolidated-Undrained Triaxial Shear (D4767) ............. 315/pt.
Consolidated-Undrained Triaxial Staged (D4767) ........... 390/ea.
Consolidated-Drained Triaxial Shear (EM1110) ............... 400/pt.
Consolidated-Drained Triaxial Staged (EM1110) ............ 600/ea.
PERMEABILITY, CONSOLIDATION AND EXPANSION
Permeability, Flexible Wall (D5084) .............................. $315/ea.
Permeability, Rigid Wall (D5856) .................................... 315/ea.
Consolidation (D2435) ...................................................... 65/pt.
Expansion Index (D4829/UBC 29-2) ................................ 225/ea.
Swell/Collapse (D4546) ................................................... 175/pt.
AGGREGATE QUALITY
Sieve Analysis to #200 (C136) ....................................... $125/ea.
L.A. Rattler Test (500 rev.) (C131) ................................... 225/ea.
Durability Index (D3744/CAL229) ................................... 165/ea.
Fine Aggregate Angularity (CAL 234) .............................. 125/ea.
Flat and Elongated Particles (D4791/CAL 235) ............... 150/ea.
Percent Crushed Particles (CAL205) ................................ 150/ea.
Moisture Determination, tube sample (D2216) .............. $20/ea.
Moisture Determination and Unit Weight (D2937) .......... 40/ea.
Atterberg Limits: Plasticity Index (D4318) ...................... 210/ea.
Sand Equivalent (D2419/CAL217) ................................... 100/ea. pH and Resistivity (CAL643) ............................................ 125/ea.
Sulfate Content (CAL417) .................................................. 95/ea.
Chloride Content (CAL422) ............................................... 55/ea.
Organic Content (D2974) .................................................. 85/ea.
CONCRETE / MASONRY / REINFORCING STEEL
Compressive Strength, Cast Cylinders (C39) ................... $30/ea.
Compressive Strength, Cores (C42) ................................... 85/ea.
Flexural Strength Beam (C78/C293) .................................. 80/ea.
Splitting Tensile Test (C496) .............................................. 80/ea.
DSA Masonry Shear (DSA-207) .......................................... 75/ea.
Shotcrete Panel Coring and Comp. Strength (C1140) ..... 100/ea.
Rebar Tensile/Bend (up to #11/#11 and larger) …... 275/300/ea.
CMU Compressive Strength (C140) ................................. 100/ea.
Compressive Strength, Grout (C1019/UBC 21-19) ............ 30/ea.
Compressive Strength, Mortar (C109/UBC 21-15,16) ……. 30/ea.
CMU Unit Wt., Dimen., Absorption (C140) ....................... 75/ea.
Compressive Strength, Masonry Prism (C1314) .............. 250/ea.
HOT MIX ASPHALT
HMA Air Voids, Gyratory (T269) .................................... $525/ea.
Hamburg Wheel Tracker (T324) ................................... 1,000/ea.
Theoretical Max. Specific Gravity (D2041/CAL309) ........ 180/ea.
Ignition/Sieve Analysis (C136/CAL202) ........................... 250/ea.
HMA Core Unit Weight (D1188/CAL308) ........................ 100/ea. % Asphalt, Ignition Method (D6307/CAL382) ................. 125/ea. % Asphalt, Ignition Calibration (D6307/CAL382) ............ 400/ea.
Tensile Strength Ratio (T283) ………………………………...... 1,000/ea.
Reimbursable Expenses:
The City will reimburse CONSULTANT for only the expense set forth below in the Reimbursable Expenses Schedule. The City will reimburse these expenses at actual cost plus the specified markup. In no event shall the markup for reimbursable expense exceed 10%.
Reimbursable Expense Schedule
Type Markup
Subconsultant costs, subcontractor costs, and specialty equipment costs required to perform the Scope of Services
10%
The cost of photographing, printing, reproducing copying, mailing, shipping, and/or submitting deliverables.
5%
The cost of travel related expenses. Mileage and per diem shall be charged per current federal reimbursement rate.
No Markup
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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 12 07 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 CONSULTANT 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.
4.Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
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 insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT 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 CONSULTANT’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
For any CGL or Automobile Liability claims related to this contract, the CONSULTANT’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any CGL or Automobile Liability insurance or self-insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the CONSULTANT’s insurance and shall not contribute with it.
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Notice of Cancellation
CONSULTANT shall immediately notify the City when it has notice or receives notification that any insurance overage is subject to cancellation, or is in fact cancelled, lapsed, or otherwise unavailable.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT 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. Notwithstanding the foregoing with respect to Professional Liability (Errors and Omissions) waiver of subrogation may be provided as required by written contract per policy form in lieu of an endorsement page.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
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
CONSULTANT 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 CONSULTANT’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.
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AGREEMENT WITH SANDIS CIVIL ENGINEERS SURVEYORS PLANNERS
FOR PROFESSIONAL ON CALL CONSULTANT SERVICES
FOR
SURVEYING, POTHOLING, AND UNDERGROUND FACILITY LOCATING SERVICES 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 Sandis Civil Engineers Surveyors Planners, a corporation, (“CONSULTANT”), with offices at 1700 S. Winchester Boulevard, Suite 200, Campbell, CA 95008.
RECITALS:
A. CITY desires certain on-call surveying, potholing, and underground facility locating B. CITY desires to engage CONSULTANT to provide these on-call surveying, potholing, and underground facility locating services by reason of its qualifications and experience for performing such services and CONSULTANT 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 CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT 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.
CONSULTANT and his subconsultants shall comply with State’s Prevailing Wage Laws.
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SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence upon execution of this agreement and be completed on December 31, 2025. This term of this Agreement may be extended by written amendment executed by the Director of Public Works and a duly authorized representative of CONSULTANT.
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 CONSULTANT a fee, based on verified time and materials, in an amount of $300,000, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
Cost adjustment for the second and subsequent year’s annual fixed amounts will be made using annual indexes of the “Consumer Price Index for All Urban Consumers,” Bay Area City Average, all items (1967=100) as published in the Monthly Review by the U.S. Department of Labor, (CPI). The annual increase in rates is not to exceed CPI or 3%, whichever is lower.
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 CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
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SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT 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 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT 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 CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONSULTANT 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 CONSULTANT’s performance of this Agreement, except those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
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SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT 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 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - 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 is the intent of this Agreement 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 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT 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.
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SECTION 19 - 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 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Tina Pham
City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
To CONSULTANT: Sandis Civil Engineers Surveyors
Planners
Attn: Laura Cabral/Nicole Cooper
1700 S. Winchester Blvd., Suite 200
Campbell, CA 95008
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
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This document may be amended only by written instrument, signed by both CITY and CONSULTANT.
SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - 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 Sandis Civil Engineers Surveyors Planners have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Brad Underwood
Interim Public Works Director
Date Laura Cabral
Its Authorized Agent
Vice 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 ADDITIONAL CORPORATE
OFFICER
(if necessary per the above)
Linh Nguyen
Assistant City Attorney
Date Tony Brubaker
Chief Financial Officer
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Fee Rates
Exhibit C: Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
Service Tasks include but are not limited to:
1. Survey Services
a. Survey existing intersection from garage line or back-of-walk to centerline of street. b. Survey all hardscape, trees, utility boxes, and drain inlet rim elevations (include next closest inlet from the intersection on each leg of the intersection) c. Survey existing elevations of top of curb (TC), flowline (FL), lip of gutter, driveway approach, walkway, 5 foot AC conform, centerline, AC conform (25 feet from the center, all directions), 30 ft past all returns
d. Survey existing curb ramp: BC, POC, EC
e. Survey private property such as driveways, patios, stairways, walkways, etc. f. Inverts of all storm systems within the limits of work
2. Potholing and Underground Facility Locating Services a. Pre-inspection Activities (e.g. permitting and contacting 811 for Underground Service Alert markings
b. Performing inspections and field tests in accordance with the latest edition of codes, standard, and specifications
c. Locating utilities marked in field, including nondestructive methods d. Marking up of submitted drawings showing the determined location of underground facilities with a legend explaining the system and equipment used e. Compiling spreadsheet of information with pothole number, description of pothole location, pothole diameter, pothole depth, and findings
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EXHIBIT B
FEE RATES
January 1, 2023 – December 31, 2023
Engineering Services / QSD & QSP Services
Project Specialist/Clericial $105
Computer/Field/Engineer Technician Level I $105
Level II $115
Level III $130
Sr. Engineer Technician $135
Design Engineer Level I $125
Level II $130
Level III $135
Project Engineer/Traffic Engineer Level I $150
Level II $170
Level III $180
Senior Engineer Level 1 $205
Engineer Project Manager Level I $215
Level II $250
Associate Principal/Sr. Project Manager/Sr. Traffic Engineer $300 Principal $400
Forensic Revview/Analysis/Claim Support $500
Surveying Services / High Definition Scanning / 3 -D Modeling Computer/Surveying/Scanning Technician Level I $105
Level II $115
Level III $125
Project Surveyor/Scanning Specialist Level I $135
Level II $145
Level III $175
Survery Project Manager Level I $215
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Survey Project Manager Level II $250
Senior Field Survey Supervisor/AISC/Manager $300
Utility Locating Services 1-Person Crew $175
Utility Locating Services 2-Person Crew $290
Utility Locating Manager $165
1-Person Survery Crew $200
2-Person Survery Crew $350
2-Person Survery Crew With Apprentice $450
3-Person Survery Crew $500
Reimbursable Expenses:
The City will reimburse CONSULTANT for only the expense set forth below in the Reimbursable Expenses Schedule. The City will reimburse these expenses at actual cost plus the specified markup. In no event shall the markup for reimbursable expense exceed 10%.
Reimbursable Expense Schedule
Type Markup
Subconsultant costs, subcontractor costs, and specialty equipment costs required to perform the Scope of Services
10%
The cost of photographing, printing, reproducing copying, mailing, shipping, and/or submitting deliverables.
5%
The cost of travel related expenses. Mileage and per diem shall be charged per current federal reimbursement rate.
No Markup
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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 12 07 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 CONSULTANT 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.
4.Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
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 insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT 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 CONSULTANT’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
For any claims related to this contract, the CONSULTANT’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 CONSULTANT’s insurance and shall not contribute with it.
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8 9
8 6
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 City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT 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.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
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
CONSULTANT 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 CONSULTANT’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.
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AGREEMENT WITH GHIRARDELLI ASSOCIATES, INC.
FOR PROFESSIONAL ON CALL CONSULTANT SERVICES
FOR
CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES
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 Ghirardelli Associates, Inc., a corporation (“CONSULTANT”), with offices at 2055 Gateway Place, Suite 470, San Jose, CA 95110.
RECITALS:
A. CITY desires certain on call construction management and inspection services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these on call construction management and inspection services by reason of its qualifications and experience for performing such services and CONSULTANT 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 CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT 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.
CONSULTANT and his subcontractors shall comply with State’s Prevailing Wage Laws.
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SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence on upon execution of this agreement and be completed on December 31, 2025. This term of this Agreement may be extended by written amendment executed by the Director of Public Works and a duly authorized representative of CONSULTANT.
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 CONSULTANT a fee, based on verified time and materials, in an amount of $300,000, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
Cost adjustment for the second and subsequent year’s annual fixed amounts will be made using annual indexes of the “Consumer Price Index for All Urban Consumers,” Bay Area City Average, all items (1967=100) as published in the Monthly Review by the U.S. Department of Labor, (CPI). The annual increase in rates is not to exceed CPI or 3%, whichever is lower.
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 CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
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SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT 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 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT 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 CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
To the fullest extent provided by the law, CONSULTANT 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 CONSULTANT’s performance of this Agreement, except those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
With regard to design professional services performed by CONSULTANT, CONSULTANT 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 CONSULTANT’s negligence, recklessness or willful misconduct to the maximum extent permitted by state law. To the extent permitted by Civil Code section 2782.8, CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
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SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT 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 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - 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 is the intent of this Agreement 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.
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SECTION 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT 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 19 - 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 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Tina Pham, Senior Engineer
City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
To CONSULTANT: Ghirardelli Associates, Inc.
Attn: Charlie Kruegar
2055 Gateway Place, Suite 470
San Jose, CA 94110
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SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT 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 CONSULTANT.
SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - 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 Ghirardelli Associates, Inc. have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Brad Underwood
Interim Public Works Director
Date Randall Bruner
Its Authorized Agent
President/Chief Executive Officer
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: Fee Rates
Exhibit C: Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
Service Tasks include but are not limited to:
1. Project and Contract Administration
a. Coordinate pre-construction and weekly progress meetings b. Evaluate schedule
c. Communicate effectively and coordinate with the construction contractor and project manager
d. Prepare and submit construction monthly progress reports e. Review contract documents, environmental documents, applicable laws and regulations f. Review Submittals, Requests for Information, Contractor monthly invoices, Contractor’s work, Change Orders
2. Construction Observation, Inspection and Specialty Inspection a. Maintain daily inspection reports, including photos
b. Review Construction Contractor’s compliance with permits as well as health & safety standards
c. Coordinate any needed specialty inspections
3. Change Order Management
a. Coordinate, review, evaluate and recommend course of action for change order requests and submittals
4. Constructability Reviews
5. Construction Claims Analysis and Support
6. Specialty Inspection Services
7. Project Closeout and Acceptance Services
a. Develop corrective item work lists and inspection of corrective actions performed b. Prepare and submit final construction report
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EXHIBIT B
FEE RATES
2023 Hourly Rates
Role Range Straight OT Double OT
Contract Manager/ Project Manager Min $201.98 $201.98 $201.98 Max $346.63 $346.63 $346.63
Resident Engineer Min $201.98 $201.98 $201.98
Max $305.10 $305.10 $305.10
Structures Representative Min $201.98 $201.98 $201.98
Max $305.10 $305.10 $305.10
Construction Inspector Min $161.81 $242.72 $323.62
Max $235.77 $353.66 $471.54
Structures Inspector Min $161.81 $242.72 $323.62
Max $235.77 $353.66 $471.54
Electrical Inspector Min $161.81 $242.72 $323.62
Max $235.77 $353.66 $471.54
Mechanical Inspector Min $161.81 $242.72 $323.62
Max $235.77 $353.66 $471.54
Construction Safety Min $161.81 $242.72 $323.62
Max $235.77 $353.66 $471.54
Storm Water Pollution Prevention Min $161.81 $242.72 $323.62 Max $235.77 $353.66 $471.54
Project Controls/Scheduler Min $161.81 $242.72 $323.62
Max $235.77 $353.66 $471.54
Office Engineer Min $121.18 $181.77 $242.36
Max $221.92 $332.88 $443.84
Public Outreach Min $86.31 $129.47 $172.62
Max $172.62 $258.93 $345.24
Reimbursable Expenses:
The City will reimburse CONSULTANT for only the expense set forth below in the Reimbursable Expenses Schedule. The City will reimburse these expenses at actual cost plus the specified markup. In no event shall the markup for reimbursable expense exceed 10%.
Reimbursable Expense Schedule:
Type Markup
Subconsultant costs, subcontractor costs, and specialty equipment costs required to perform the Scope of Services
10%
The cost of photographing, printing, reproducing copying, mailing, shipping, and/or submitting deliverables.
5%
The cost of travel related expenses. Mileage and per diem shall be charged per current federal reimbursement rate.
No Markup
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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 12 07 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 CONSULTANT 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.
4.Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
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 insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT 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 CONSULTANT’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
For any claims related to this contract, the CONSULTANT’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 CONSULTANT’s insurance and shall not contribute with it.
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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 City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT 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.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
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
CONSULTANT 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 CONSULTANT’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.
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AGREEMENT WITH PARK ENGINEERING, INC.
FOR PROFESSIONAL ON CALL CONSULTANT SERVICES
FOR
CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES
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 Park Engineering, Inc., a corporation (“CONSULTANT”), with offices at 372 Village Square, Orinda, CA 94563.
RECITALS:
A. CITY desires certain on call construction management and inspection services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these on call construction management and inspection services by reason of its qualifications and experience for performing such services and CONSULTANT 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 CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT 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.
CONSULTANT and his subcontractors shall comply with State’s Prevailing Wage Laws.
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SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence on upon execution of this agreement and be completed on December 31, 2025. This term of this Agreement may be extended by written amendment executed by the Director of Public Works and a duly authorized representative of CONSULTANT.
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 CONSULTANT a fee, based on verified time and materials, in an amount of $300,000, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
Cost adjustment for the second and subsequent year’s annual fixed amounts will be made using annual indexes of the “Consumer Price Index for All Urban Consumers,” Bay Area City Average, all items (1967=100) as published in the Monthly Review by the U.S. Department of Labor, (CPI). The annual increase in rates is not to exceed CPI or 3%, whichever is lower.
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 CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
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SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT 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 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT 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 CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
To the fullest extent provided by the law, CONSULTANT 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 CONSULTANT’s performance of this Agreement, except those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
With regard to design professional services performed by CONSULTANT, CONSULTANT 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 CONSULTANT’s negligence, recklessness or willful misconduct to the maximum extent permitted by state law. To the extent permitted by Civil Code section 2782.8, CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
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SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT 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 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - 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 is the intent of this Agreement 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.
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SECTION 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT 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 19 - 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 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Tina Pham, Senior Engineer
City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
To CONSULTANT: Park Engineering, Inc.
Attn: Jaemin Park
372 Village Square
Orinda, CA 94563
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SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT 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 CONSULTANT.
SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - 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 Park Engineering, Inc. have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Brad Underwood
Interim Public Works Director
Date Jaemin Park
Its Authorized Agent
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: Fee Rates
Exhibit C: Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
Service Tasks include but are not limited to:
1. Project and Contract Administration
a. Coordinate pre-construction and weekly progress meetings b. Evaluate schedule
c. Communicate effectively and coordinate with the construction contractor and project manager
d. Prepare and submit construction monthly progress reports e. Review contract documents, environmental documents, applicable laws and regulations f. Review Submittals, Requests for Information, Contractor monthly invoices, Contractor’s work, Change Orders
2. Construction Observation, Inspection and Specialty Inspection a. Maintain daily inspection reports, including photos
b. Review Construction Contractor’s compliance with permits as well as health & safety standards
c. Coordinate any needed specialty inspections
3. Change Order Management
a. Coordinate, review, evaluate and recommend course of action for change order requests and submittals
4. Constructability Reviews
5. Construction Claims Analysis and Support
6. Specialty Inspection Services
7. Project Closeout and Acceptance Services
a. Develop corrective item work lists and inspection of corrective actions performed b. Prepare and submit final construction report
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EXHIBIT B
FEE RATES
Item
No.
Description Units Weekdays
(8 Hours Max)
Weekdays
(> 8 Hours/Day or
> 40 Hours/Week)
1 Senior Construction
Inspector/Assistant Resident Engineer
Rate/Hour $151.81 - $184.51 $227.71 - $276.76
2 Construction Inspector Rate/Hour $128.45 - $151.81 $192.67 - $227.71 3 Office Engineer Rate/Hour $116.78 - $ 164.82 $175.17 - $ 247.23 4 Resident Engineer/Structures
Representative/Construction Manager
Rate/Hour $198.52 - $256.91 $198.52 - $256.91
5 Claims Support Rate/Hour $198.52 - $256.91 $198.52 - $256.91 Item
No.
Description Units Weekdays/Holidays
(8 Hours Max)
Weekdays /Holidays
(> 8 Hours/Day or
> 40 Hours/Week)
1 Senior Construction
Inspector/Assistant Resident Engineer
Rate/Hour $151.81 - $184.51 $227.71 - $276.76
2 Construction Inspector Rate/Hour $128.45 - $151.81 $192.67 - $227.71 3 Office Engineer Rate/Hour $116.78 - $ 164.82 $175.17 - $ 247.23 4 Resident Engineer/Structures
Representative/Construction Manager
Rate/Hour $198.52 - $256.91 $198.52 - $256.91
5 Claims Support Rate/Hour $198.52 - $256.91 $198.52 - $256.91 Item
No.
Description Units After Hours
(8 Hours Max)
After Hours
(> 8 Hours/Day or
> 40 Hours/Week)
1 Senior Construction
Inspector/Assistant Resident Engineer
Rate/Hour $151.81 - $184.51 $227.71 - $276.76
2 Construction Inspector Rate/Hour $128.45 - $151.81 $192.67 - $227.71 3 Office Engineer Rate/Hour $116.78 - $ 164.82 $175.17 - $ 247.23 4 Resident Engineer/Structures
Representative/Construction Manager
Rate/Hour $198.52 - $256.91 $198.52 - $256.91
5 Claims Support Rate/Hour $198.52 - $256.91 $198.52 - $256.91
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Reimbursable Expenses:
The City will reimburse CONSULTANT for only the expense set forth below in the Reimbursable Expenses Schedule. The City will reimburse these expenses at actual cost plus the specified markup. In no event shall the markup for reimbursable expense exceed 10%.
Reimbursable Expense Schedule
Type Markup
Subconsultant costs, subcontractor costs, and specialty equipment costs required to perform the Scope of Services
10%
The cost of photographing, printing, reproducing copying, mailing, shipping, and/or submitting deliverables.
5%
The cost of travel related expenses. Mileage and per diem shall be charged per current federal reimbursement rate.
No Markup
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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 12 07 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 CONSULTANT 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.
4.Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
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 insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT 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 CONSULTANT’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
For any claims related to this contract, the CONSULTANT’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 CONSULTANT’s insurance and shall not contribute with it.
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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 City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT 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.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
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
CONSULTANT 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 CONSULTANT’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.
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AGREEMENT WITH BSK ASSOCIATES
FOR PROFESSIONAL ON CALL CONSULTANT SERVICES
FOR
MATERIAL TESTING SERVICES
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 BSK Associates, a corporation (“CONSULTANT”), with offices at 399 Lindberg Avenue, Livermore, CA 94551.
RECITALS:
A. CITY desires certain on call material testing services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these on call material testing services by reason of its qualifications and experience for performing such services and CONSULTANT 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 CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT 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.
CONSULTANT and his subconsultants shall comply with State’s Prevailing Wage Laws.
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SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence on upon execution of this agreement and be completed on December 31, 2025. This term of this Agreement may be extended by written amendment executed by the Director of Public Works and a duly authorized representative of CONSULTANT.
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 CONSULTANT a fee, based on verified time and materials, in an amount of $150,000, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
Cost adjustment for the second and subsequent year’s annual fixed amounts will be made using annual indexes of the “Consumer Price Index for All Urban Consumers,” Bay Area City Average, all items (1967=100) as published in the Monthly Review by the U.S. Department of Labor, (CPI). The annual increase in rates is not to exceed CPI or 3%, whichever is lower.
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 CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
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SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT 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 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT 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 CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONSULTANT 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 CONSULTANT’s performance of this Agreement, except those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
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SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT 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 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - 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 is the intent of this Agreement 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 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT 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.
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SECTION 19 - 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 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Tina Pham, Senior Engineer
City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
To CONSULTANT: BSK Associates
Attn: Michael Kibbey
399 Lindbergh Avenue
Livermore, CA 94551
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT 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 CONSULTANT.
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SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - 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 BSK Associates have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Brad Underwood
Interim Public Works Director
Date Renea Rangell
Its Authorized Agent
President/Chief Executive Officer
Date
APPROVED AS TO FORM
Linh Nguyen
Assistant City Attorney
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Fee Rates
Exhibit C: Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
Service Tasks for material testing and reporting include but are not limited to sampling of material including asphalt concrete, portland cement concrete, slurry, emulsion, aggregate base, soils and other material as necessary for grading, paving, concrete work and other related testing. The City will request services either by email or phone call and may give less than 48-hour notice. All testing procedures must meet current Caltrans Material Testing Requirements.
Testing and reporting may include but are not limited to the following:
1. Soil Testing per Caltrans Standard Specifications
a. Percent Compaction by Caltrans standards
b. Sand Equivalent
c. Moisture Content and Dry Density Determination
d. Durability Index
e. Unconfined Compressive Strength Test
f. Atterberg Limits Test
g. Gradation Analysis
h. Resistance (R) Values
2. Soil Sampling and Reporting
a. Sampling and Chain of Custody Reporting
b. Soil Analytical Composition and Classification Reporting c. Environmental Screening Levels Reporting
3. Concrete Testing per Caltrans Standard Specifications a. Concrete Slump Testing
b. Concrete Strength Testing
4. Asphalt Concrete Testing per Caltrans Standard Specifications
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EXHIBIT B
FEE RATES
BSK Associates – Schedule of Fees – July 1, 2023 to June 30, 2024 Professional Staff
Principal $285 Seismic GIS $220
Senior Professional $250 GIS Specialist $190
Project Professional II $235 Information Specialist II $180 Project Professional I $200 Information Specialist I $160 Staff Professional II $175 CAD $120
Staff Professional I $155 Litigation Support 1.5x Standard Rate
Project Administrator $110 Deposition/Trial 2.0x Standard Rate
Administrative Assistant/Clerical $100
Technical Staff – Field And Laboratory (Non-Prevailing Wage) Non-Destructive Inspection/Testing $165 Basis of Charges for Field Technician Services Special Inspector $140 Field Work from 0 to 4 hours Bill 4 hours Engineering Technician $135 Field Work from 4 to 8 hours Bill 8 hours Technician $130 Field Work over 8 hours/Saturdays Bill time and a half
Ground Penetrating Radar Scanning technician $315 Sundays, holidays and over 12 hours Bill double time
Core Drilling Technician $245 Night Shift (Shift commencing after 2pm/before 4am) Base Rate x
12.5%
Floor Flatness testing Technician $210 Show-up time (no work performed) Bill 2 hours Sample Pickup/Transportation/Delivery $120 Sampling or cylinder pickup, minimum charge Bill 2 hours Laboratory Technician $130
Northern CA Prevailing Wage Labor Rates
Group 1 – Special Inspector $170 Basis of Charges for Field Technician Services Group 2 – Special Inspector $165 Field Work from 0 to 4 hours Bill 4 hours Group 3 – Engineering Technician $146 Field Work from 4 to 8 hours Bill 8 hours Group 3 – Geotechnical Professional $185 Field Work over 8 hours/Saturdays Bill time and a half
Group 3 – Environmental Professional $185 Sundays, holidays and over 12 hours Bill double time
Group 4 - Technician $130 Night Shift (Shift commencing after 2pm/before 4am) Base Rate x
12.5%
Show-up time (no work performed) Bill 2 hours
Sampling or cylinder pickup, minimum charge Bill 2 hours Analysis Software Usage Fee
gINT (Software) $65 Slide (Software) $127
LPile (Software) $65 Settle3D (Software) $127
APile (Software) $65 Cpet-IT (Software) $65
SHAFT (Software) $65 LiqSVs (Software) $65
GROUP (Software) $127 ArcGIS (Software) $65
Cliq (Software) $65 Surfer (Software) $65
LiquefyPro (Software) $65 Seep/W (Software) $127
LqiIT (Software) $65
Equipment
Nuclear Gauge (Day) $70 10’ PVC Blank -2” (Each) $27
Skidmore Wilhelm Calibrator (Day) $70 10’ PVC Blank -4” (Each) $62 NDT Weld Testing Equipment – UT/MT/PT (Day) $70 10’ PVC Screen -2” (Each) $42 Proof Load Testing Equipment (Day) $70 10’ PVC Screen-4” (Each) $84 Torque Wrench (Day) $70 5’ PVC Blank -2” (Each) $18
GPR Scanning Equipment (Day) $325 5’ PVC Blank -4” (Each) $53 Rebar Locator/Pachometer (Day) $128 5’ PVC Screen -2” (Each) $27 Coring Equipment (Day) $240 5’ PVC Screen-4” (Each) $69 Relative Humidity Meter (Day) $70 55 Gallon Drum (Each) $125
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Moisture Emission Test Kit (Each) $48 6” x 5’ Steel Monument Cover (Each) $295 Wood Moisture Meter (Day) $70 Air Indicators (Each) $53 Air Meter (Concrete) $70 Combustible Gas Indicator (Day) $79 Laptop (Day) $75 Disposable Bailer (Each) $14
Document Scanner (Day) $32 HydroPunch Tip (Each) $25
Vehicle/Truck Charge (Day) $137 Lantec GEM 500 (Day) $258 Hand Auger (Day) $150 Locking Cap – 2” (Each) $25
Seismograph (Day) $317 Locking Cap – 4” (Each) $50
Hand-Held GPS (Day) $97 Silicone Tubing (Foot) $9
Slope Inclinometer Probe (Each) $500 Tedlar Vapor Bags (Each) $30 Double Ring Infiltrometer (Day) $150 Bottom Cap (Each) $10 Drilling Kit – Paint/Stakes/Lath (Each) $34 Disposable Purge Pump Tubing (Foot) $2 Drilling Supplies (Tubes/Caps) $350 Bison Resistivity Meter (Day) $203 Sample Sleeve w/ Caps/Teflon 6” (Each) $13 Chem Grout Pump (Day) $132 Manometer (Day) $247 DC Purge Pump (Day) $67
Generator $105 Development Pump and Controller (Day) $92 Power Auger $105 Dissolved Oxygen Meter (Day) $80
AC Cold Patch (Each) $19 Grundfos Converter (Day) $89
Bentonite Grout (Bag) $27 HydroPunch II (Each) $317
Bentonite Medium Chips (Bag) $25 Interface Meter (Each) $119 Bentonite Pellets (Bucket/Bag) $189 Kemmer Sampler (Day) $46 Bentonite Powder (Bag) $15 ORP Meter (Each) $85
Filter Sand (Bag) $14 Sample Pump (Day) $127
Portland Cement (Bag) $19 Scanning Equipment (Day) $128 Ready Mix (Bag) $18 Water Level Data Logger (Day) $98
Padlocks (Each) $27 Telescopic Wastewater Sampler (Day) $67 pH/EC/Temperature Meter (Day) $75 SVE System (Month) $1,400 PID/OVA (Day) $150 Combustible Gas Meter (Day) $240
Steam Cleaner (Day) $139 Water Meter (Day) $65
Turbidity Kit (Day) $85 Flow Monitoring Equipment (Day) $389 Water Sample Filters (Each) $28 Liquid Proportional Sampling Equipment (Day) $394 Well Sounder (Day) $60 Gas Detector Pump (Each) $46
Well Vault Traffic Rated Box (Each) $139 Landfill Gas Chromatograph (Day) $260 Bollards (Each) $119 Support Truck (Day) $260
Air Compressor (Day) $70 Sound Level Meter (Each) $41
Continuous Core Sampler (Day) $325 Water Level Transducers (Each) $15 4” Disposable Bailers (Each) $25
$
Soils & Aggregates $
Modified or Standard Proctor – 4” or 6” Mold $320 % Crushed Particles/Fractured Particles (CT 205/AASHTO T335)
$208
Proctor with Oversize Material $400 % Flat & Elongated (ASTM D4791) $159 Proctor Check Point (All Methods) $171 Minus 200 Wash/Aggregate (ASTM C117) $105 Caltrans Maximum Wet Density (CT 216) $270 Sieve Analysis w/ Wash (ASTM C136/CT 202/ AASHTO T27)
$215
Minus 200 Wash Soil (ASTM D1140) $105 Sieve Analysis – Coarse Only (ASTM C136/CT 202/ AASHTO T27)
$105
Moisture Content of Soils (ASTM D2216) $45 Coarse Specific Gravity/Absorption (ASTM C127/CT 206/T83)
$200
Plasticity Index (ASTM D4318) $276 Fine Specific Gravity/Absorption (ASTM C128/CT 207/T84)
$200
Expansion Index of Soils (UBC No. 29) $296 Sand Equivalent (ASTM D2419/CT 217/AASHTO T176) $159 Collapse Potential of Soils (ASTM D2435) $257 Durability Index (CT 229) $315 Organic Impurities (ASTM C40/CT213) $105 Abrasion by LA Rattler, Large Size (ASTM C131/ CT 211/ AASHTO T96)
$360
Tube Density & Moisture Content of Soil
(ASTM D2216)
$54 Abrasion by LA Rattler, Small Size
(ASTM C131/ CT 211/ AASHTO T96)
$296
Visual Classification ASTM D2488) $54 Cleanness Value of Aggregate (CT 227) $227 Hydrometer (ASTM D422/CT203) $300 Aggregate Wt pcf Compacted (ASTM C 29) $111 Double Hydrometer (ASTM D4221) $394 Gradation-Rip Rap – Per Sieve (D5519-Method A) $284 Uncompacted Void Content (CT234/AASHTO T304) $140 Sodium Sulfate Soundness-Min. Charge (ASTM C88/CT214)
$440
Sand Density Calibration (ASTM D1566) $220 Sodium Sulfate Soundness-Per Sieve Charge (ASTMC88/CT214)
$140
Minimum Resistivity of Soils (CT643) $177 R-Value of Soils (CT 301) $350 Consolidation (ASTM D2435) w/ 2 Time Rates $527 Soil Cement Compression – Set (ASTM D1633) $300
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Consolidation (ASTM D2435) w/ No Time Rates $350 CIR/FDR Compressive Strength Testing -Set $300 Unconfined Compressive Strength, Soil (ASTM D2166) $140 CIR/FDR Sample Preparation/Compaction $275 Remolded Consolidation (ASTM D2435) $446 CBR (ASTM D1883/AASHTO T-180) $1,250 Minimum Index Density Soils (ASTM D4254) $87 Preparation of Soil-Cement Samples $947 Direct Shear Remolded (ASTM D3080) $330 Soluble Sulfate Chloride & Sulfide $164 Direct Shear (ASTM D3080) $276 pH Sulfate & Chloride $83 Remolded Direct Shear (ASTM D3080) $330 % Lumps/Friable Particles (ASTM C142) $102 Remolded Flexwall Perm (ASTM D5084) $704 % Organics in Soil (ASTM D2974) $172 Hot Mix Asphalt
JMF Mix Design, Superpave/Caltrans $11,274 Bitumen Content – Ignition (ASTM D6307/CT382/AASHTO T308)
$282
JMF Verification – HMA – Superpave/Caltrans $6,533 Oil Content Correction Factor (ASTM D6307/CT382/AASHTO T308)
$656
JMF Production Startup – Superpave/Caltrans $6,078 Gradation from Extraction (ASTM D5444/AASHTO T30) $171 RAP Material Testing – Additional Fee $790 Bulk Specific Gravity (CT308/AASHTO T275/ASTM D2726)
$80
Rubberized RHMA Material – Additional Fee $1,824 HMA Theo. Max Density Rice Method (ASTM D2041/CT309)
$315
JMF Mix Design, HVEEM $3,900 Volumetric Calculations (VMA,VFA,DP,AV,Eff. Calcs) $67 JMF Mix Design, Marshall $4,627 Moisture Content of Asphalt (CT370/AASHTO T329) $83 Open Graded Asphalt Optimum Bitumen Content $2,785 Film Stripping $111 Gyratory Compaction – Set of 3 (AASHTO T312) $421 Compaction/Preparation of HMA Briquette (CT304) $276 Hamburg Wheel Track (AASHTO T324) $2,500 Stabilometer Value – Set of 3 (CT366) $350 Tensile Strength Ratio (CT371/AASHTO T283) $1,380 Lab Mixed TSR – Moisture Induced Damage (AASHTO T283/CT371)
$1,850
Marshall Maximum Density (ASTM D6926) $368 Calculated AC Maximum Density (CT367) $125 Marshall Stability & Flow (ASTM D6927) $315 Thickness Determination of AC Cores $27 Concrete & Masonry
Compression Test Concrete – Per Cylinder (ASTM C39) $35 Flexural Test of Beam (ASTM C78/CT523) $112 Compression Test Concrete – Set of 4/5 (ASTM C39) $171 Linear Shrinkage – Set of 3 (ASTM C157) $500 Compression Test of Core (ASTM C42) $76 Unit Weight Lt Wt Concrete (ASTM C567) $70 Compressive Strength of Shotcrete Panel $400 Splitting Tensile Strength of Concrete (ASTM C496) $150 Compression Test Composite CMU Prism (1) $208 Compressive Strength CMU Block (ASTM C140) $240 Compression Test Grout (Set of 4) $151 Comp. Strength, SG, & Abs. of CMU – Per Block (ASTM C140)
$276
Compression Test Mortar (Set of 3) $138 Masonry Linear Shrinkage (ASTM C426) $507 Metals & Fireproofing
Tensile & Bend of Rebar #3-11 $186 Brinell Hardness of Steel (ASTM E10) $125 Slip and Tensile Rebar Couplers 9CT670) $270 Rockwell Hardness of Steel (ASTM E18) $125 Bolt Proof & Ultimate Load $178 Face Bend of Steel Coupon $76 Bolt Hardness – Set of 3 $125 Root bend of Weld Coupon $76 Nut Proof Load – Set of 3 $178 Side Bend of Weld Coupon $76 Nut Hardness – Set of 3 $125 Tensile Test of Steel Coupon $105 Washer Hardness – Set of 3 $125 Bend Test of Steel Coupon $90 Dry Density Fireproofing (ASTM E605) $119 Adhesion/Cohesion Fireproof Materials $159 Reimbursable Expenses:
The City will reimburse CONSULTANT for only the expense set forth below in the Reimbursable Expenses Schedule. The City will reimburse these expenses at actual cost plus the specified markup. In no event shall the markup for reimbursable expense exceed 10%.
Reimbursable Expense Schedule
Type Markup
Subconsultant costs, subcontractor costs, and specialty equipment costs required to perform the Scope of Services
10%
The cost of photographing, printing, reproducing copying, mailing, shipping, and/or submitting deliverables.
5%
The cost of travel related expenses. Mileage and per diem shall be charged per current federal reimbursement rate.
No Markup
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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 12 07 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 CONSULTANT 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.
4.Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
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 insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT 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 CONSULTANT’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
For any claims related to this contract, the CONSULTANT’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 CONSULTANT’s insurance and shall not contribute with it.
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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 City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT 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.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
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
CONSULTANT 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 CONSULTANT’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.
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AGREEMENT WITH NICHOLS CONSULTING ENGINEERS, CHTD.
FOR PROFESSIONAL ON CALL CONSULTANT SERVICES
FOR
ENVIRONMENTAL & ENVIRONMENTAL COMPLIANCE SERVICES
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 Nichols Consulting Engineers, Chtd., a corporation, (“CONSULTANT” or “NCE”), with offices at 620 Coolidge Dr., Suite #100, Folsom, CA 95630.
RECITALS:
A. CITY desires certain professional on call environmental and environmental compliance services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these professional on call environmental and environmental compliance services by reason of its qualifications and experience for performing such services and CONSULTANT 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 CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT and his subconsultants shall comply with State’s Prevailing Wage Laws.
CONSULTANT 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.
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SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence upon execution of this agreement and be completed on December 31, 2025. This term of this Agreement may be extended by written amendment executed by the Director of Public Works and a duly authorized representative of CONSULTANT.
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 CONSULTANT a fee, based on verified time and materials, in an amount of $150,000, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
Cost adjustment for the second and subsequent year’s annual fixed amounts will be made using annual indexes of the “Consumer Price Index for All Urban Consumers,” Bay Area City Average, all items (1967=100) as published in the Monthly Review by the U.S. Department of Labor, (CPI). The annual increase in rates is not to exceed CPI or 3%, whichever is lower.
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 CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
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SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT 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 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT 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 CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONSULTANT 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 CONSULTANT’s performance of this Agreement, except those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
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SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT 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 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - 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 is the intent of this Agreement 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 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT 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.
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SECTION 19 - 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 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Tina Pham
City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
To CONSULTANT: Nichols Consulting Engineers, Chtd.
Attn: Matthew Tolley
620 Coolidge Dr., Suite #100
Folsom, CA 95630
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
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This document may be amended only by written instrument, signed by both CITY and CONSULTANT.
SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - 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 Nichols Consulting Engineers, Chtd. have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Brad Underwood
Interim Public Works Director
Date Margot Yapp
Its Authorized Agent
President
Date
APPROVED AS TO FORM
Linh Nguyen
Assistant City Attorney
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Fee Rates
Exhibit C: Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
Service Tasks include but are not limited to:
1. Environmental regulatory compliance support
2. Health and safety regulation compliance support
3. Technical support to manage environmental releases related to illicit discharge and hazardous spill response, including investigation, clean-up, and disposal oversight, and supporting the City with external regulatory agency notifications and communications
4. Environmental sampling and characterization, including collecting and analyzing air, soil, groundwater, and surface water samples.
a. Review of sampling, including those done by others
5. Conduct environmental assessments including:
a. Natural resource surveys (biological, cultural, etc.) b. Groundwater investigations
c. Human health/ecological risk assessments
6. NEPA/CEQA documentation and support
a. Waste characterization and regulatory support including sampling, hazardous waste determination, and disposal and re-use options
b. Comprehensive Air Quality Compliance Services, including California Accidental Release Prevention (CalARP)
c. Consulting for cost-effective solutions for the transport and disposal of contaminated material to appropriate disposal facilities
d. Prepare and/or update Spill Prevention, Control, and Countermeasures (SPCC) plans e. Preparing and obtaining jurisdictional permits for City projects f. Conducting environmental audits for City facilities and projects g. Environmental regulatory compliance training and support with the development of standards and protocols to support and improve City routine operations.
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EXHIBIT B
FEE RATES
Schedule of Charges 2023
Professional Services Rates
Principal $310/Hour
Associate $245/Hour
Senior II $215/Hour
Senior I $205/Hour
Project II $195/Hour
Project I $180/Hour
Staff II $170/Hour
Staff I $155/Hour
Technical Services
Senior Construction Manager* $160/Hour
($185-PW/Hour)
Construction Inspector* $140/Hour
($165-PW/Hour)
Senior Designer $170/Hour
CADD Designer $150/Hour
CADD Technician $130/Hour
Senior Field Scientist $135/Hour
Field Scientist $115/Hour
Senior Technician* $140/Hour
($165-PW/Hour)
Field/Engineering Technician* $115/Hour
($140-PW/Hour)
Project Administrator $130/Hour
Technical Editor $115/Hour
Clerical $105/Hour
Litigation Support
Engineer/Scientist $380/Hour
Court Appearances & Depositions $575/Hour
Equipment
Falling Weight Deflectometer Testing $4,000/Day
Coring $5,000/Day
Environmental Equipment (Separate Fee Schedule)
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Professional Services Rates
Professional Staff
Expert Witness Testimony $460
Principal Consultant $310
Senior Project Manager $225
Project Manager $205
Associate Project Manager $175
OSH Specialist $140
Technician $120
Administrative Support Personnel $90
Reimbursable Expenses:
The City will reimburse CONSULTANT for only the expense set forth below in the Reimbursable Expenses Schedule. The City will reimburse these expenses at actual cost plus the specified markup. In no event shall the markup for reimbursable expense exceed 10%.
Reimbursable Expense Schedule
Type Markup
Subconsultant costs, subcontractor costs, and specialty equipment costs required to perform the Scope of Services
10%
The cost of photographing, printing, reproducing copying, mailing, shipping, and/or submitting deliverables.
5%
The cost of travel related expenses. Mileage and per diem shall be charged per current federal reimbursement rate.
No Markup
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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 12 07 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 CONSULTANT 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.
4.Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
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 insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT 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 CONSULTANT’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
For any claims related to this contract, the CONSULTANT’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 CONSULTANT’s insurance and shall not contribute with it.
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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 City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT 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.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
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
CONSULTANT 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 CONSULTANT’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.
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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: 10 Section Name: CONSENT CALENDAR Account Number: 10-4679 File ID: 23-7887 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: September 05, 2023
SUBJECT:
2750 South Delaware Street Access Easement – Acceptance RECOMMENDATION:
Adopt a Resolution to accept the Grant of Access Easement on 2750 South Delaware Street; and authorize the City Manager to execute the Grant of Access Easement in substantially the form presented.
BACKGROUND:
A 36-inch City storm drainpipe conveys stormwater runoff from South El Camino Real into an existing drainage channel within Peninsula Corridor Joint Powers Board (PCJPB) Right-of-Way, adjacent to the western border of 2750 South Delaware Street. The drainage channel flows north into a 48-inch City storm drainpipe that leads to Borel Creek.
Historically, Public Works has maintained the drainage channel within the PCJPB Right-of-Way on an annual and as-needed basis to prevent flooding issues. Public Works traverses the private property at 2750 South Delaware Street to access the channel through an existing 20-foot wide Public Service Easement (PSE) along the property’s western border. Due to the Bay Meadows Station Block 1 development at 2750 S. Delaware Street, channel access is now limited to the northern tip of the property and project driveway. The northern tip of the property is not covered by the 20-foot-wide PSE. Public Works cannot access the channel through the new Hillsdale Caltrain Station parking lot in PCJPB Right-of-Way due to the parking lot’s distance from the channel and trees obstructing access to the channel.
The property owner of 2750 South Delaware Street, Bay Meadows Station 1 Investors, LLC, agrees to grant an access easement to the City of San Mateo on, across, and over the northern tip of their property not covered by the PSE for maintenance of the drainage channel. The Grant of Easement includes language that allows the Grantor to relocate the easement if an alternate point of access is identified and agreed upon by the Grantor and City of San Mateo.
The access easement was originally approved by Council on July 18, 2022. However, the County of San Mateo rejected recordation of the access easement document, as the document did not include a legal description. The applicant's Licensed Surveyor prepared a plat and legal description for the access easement. The City's contracted Licensed Surveyor determined the plat and legal description to be technically correct.
The easement allows operations and maintenance staff the proper rights to maintain the channel and prevent flooding issues. Staff recommends accepting the proposed access easement with plat and legal description.
BUDGET IMPACT:
There is no budgetary impact for accepting the access easement.
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CITY OF SAN MATEO
ENVIRONMENTAL DETERMINATION:
In accordance with CEQA Guidelines section 15061(b)(3), accepting the access easement is exempt from CEQA as acceptance of an easement will not have a significant effect on the environment.
NOTICE PROVIDED
All meeting noticing requirements were met.
ATTACHMENTS
Att 1 - Proposed Resolution
STAFF CONTACT
Karen Magallanes, Assistant Engineer
[email protected]
(650) 522-7576
Jason Hallare, Senior Engineer
[email protected]
650-522-7316
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CITY OF SAN MATEO
RESOLUTION NO. ____ (2023)
ACCEPTING THE GRANT OF ACCESS EASEMENT
2750 SOUTH DELAWARE STREET, SAN MATEO, CA 94403
WHEREAS, two City storms drain pipes convey stormwater runoff from South El Camino Real to a drainage channel within Peninsula Joint Powers Board (PJPB) Right-of-Way adjacent to the Western border of 2750 South Delaware Street to Borel Creek; and
WHEREAS, City of San Mateo Public Works staff maintains the drainage channel in PJPB Right-of-Way to prevent flooding issues; and
WHEREAS, Public Works staff traverses 2750 S. Delaware Street to a 20-foot wide Public Service Easement (PSE) along the property’s Western border to access the channel; and WHEREAS, the Bay Meadows Station Block 1 development at 2750 S. Delaware Street limits access to the channel to the Northern tip of the property not covered by the PSE; and WHEREAS, the property owner of 2750 South Delaware Street, Bay Meadows Station 1 Investors, LLC, agrees to grant an access easement to the City of San Mateo on, across and over the Northern tip of the property not covered by the PSE for maintenance of the drainage channel; and WHEREAS, the applicant’s Licensed Surveyor prepared a plat and legal description to allow for recordation of the access easement; and
WHEREAS, the City’s contracted Licensed Surveyor determined the plat and legal description to be technically correct.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN MATEO, CALIFORNIA, HEREBY RESOLVES that:
1. In accordance with CEQA Guidelines section 15061(b)(3), accepting the access easement is exempt from CEQA as acceptance of an easement will not have a significant effect on the environment.
2. The City Council hereby accepts the Grant of Access Easement, from Bay Meadows Station 1 Investors, LLC on behalf of the City of San Mateo, set forth in Exhibit A attached hereto.
3. The City Council hereby authorizes and directs the City Manager to execute the Grant of Access Easement, set forth in Exhibit A attached hereto.
4. The City Council hereby authorizes and direct the City Clerk to record the Grant of Access Easement with the San Mateo County Recorder’s Office.
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Exhibit 'A' -
Grant of Access Easement
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL
DOCUMENT TO:
City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
Attn: City Clerk
EXEMPT FROM RECORDING FEE
Pursuant to Government Code 6103
Space Above This Line for Recorder’s Use Only
A.P.N.: 040-031-250
GRANT OF ACCESS EASEMENT
The undersigned Grantor declares:
DOCUMENTARY TRANSFER TAX -$0-;
CITY TRANSFER TAX -$0-; and
SURVEY MONUMENT FEE -$0-,
[
[
] computed on the consideration or full value of property conveyed, OR ] computed on the consideration or full value less value of liens and/or encumbrances remaining at time of sale,
] unincorporated area;[
[ X ] City of SAN MATEO, and
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, BAY MEADOWS STATION 1 INVESTORS, LLC, a Delaware limited liability company (“Grantor”), hereby GRANTS to THE CITY OF SAN MATEO, a municipal corporation (“Grantee”), a non-exclusive easement (the “Access Easement”) for access on, across, and over that certain area of land described on Exhibit “A” and depicted on Exhibit “B” attached hereto and incorporated herein by reference, situated in the City of San Mateo, County of San Mateo, State of California (the “Easement Area”), for the purpose of maintaining a drainage channel adjacent to the Easement Area (the “Drainage Channel"). The foregoing Access Easement shall automatically terminate at such time that the City no longer requires the Easement Area for access to and maintenance of the Drainage Channel.
Grantee covenants and agrees to indemnify, defend, and hold harmless Grantor from and against any and all claims, demands, suits, actions, damages, liabilities, fees, costs and expenses (including reasonable attorneys’ fees and costs) (collectively, “Claims”) arising out of, caused by, or related in any way to Grantee’s use of the Easement Area or any of its agents, employees, contractors,
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invitees, or licensees use of the Easement Area; provided, however, such indemnification obligation shall not apply to Claims to the extent arising from Grantor’s gross negligence or intentional misconduct. Grantee shall promptly repair at its sole cost and expense any damage caused by Grantee’s use of the Easement Area, including without limitation damage to landscaping and pavement.
In connection with any development or operation of the Easement Area undertaken by Grantor or Grantor’s successors and assigns, if the Parties identify and agree upon an alternate point of access, Grantor reserves the right upon ninety (90) days’ prior written notice to Grantee to relocate the Easement Area described herein at Grantor’s sole cost and expense and to cause Grantee to promptly release and quitclaim said Access Easement. Grantor agrees to dedicate a new easement to Grantee at such time, and Grantee agrees to accept such easement, and Grantor agrees to cause the new easement to conform with the reasonable operational and maintenance requirements of Grantee for the Drainage Channel, and to negotiate in good faith with Grantee or its designee regarding the extent and limitations of such easement; provided, however, that nothing contained herein shall be construed or interpreted to create, nor shall it create, any obligation of Grantor to grant any greater easement rights than those granted or created by this agreement.
Dated: _____________________________, 2023
GRANTOR:
BAY MEADOWS STATION 1 INVESTORS, LLC,
a Delaware limited liability company
By:________________________________
Name:______________________________
Title:_______________________________
GRANTEE:
THE CITY OF SAN MATEO,
a municipal corporation
By:________________________________
Name: Alex Khojikian
Title: City Manager
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF SAN MATEO
)
) SS
)
On ________________________________, before me,
_________________________________, Notary Public, personally appeared ______________________________________________________________ _____________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
_________________________________
My Commission Expires:
___________________
This area for official notarial seal
Notary Notary
Name:____________________________
Notary Registration
Number:________________
Phone:____________________________
County of Principal Place of
Business:_________
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CITY OF SAN MATEO
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CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 11 Section Name: CONSENT CALENDAR Account Number: 25-3112 File ID: 23-7866 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Community Development Department
MEETING DATE: September 05, 2023
SUBJECT:
Grand Jury Report: “Accessory Dwelling Units: Affordable Housing’s Panacea or Prevarication?” – Response Letter RECOMMENDATION:
Approve a letter responding to the June 12, 2023, San Mateo County Civil Grand Jury report entitled, "Accessory Dwelling Units: Affordable Housing's Panacea or Prevarication?" and authorize the Mayor to send the response letter on behalf of the City Council.
BACKGROUND:
Since 1969, California has required that all local governments (cities and counties) adequately plan to meet the housing needs of their community. California’s local governments meet this requirement by adopting housing elements, which are updated every 8 years. Housing elements are one of several "chapters," or elements, of a city’s General Plan, and are required by the State. Housing elements are the only element of a General Plan subject to State requirements for content, and they must be certified by the California Department of Housing and Community Development (HCD).
For the upcoming eight-year housing element cycle (2023-2031), HCD has identified the nine-county Bay Area region’s housing need to be 441,176 units, with this number broken down into four income categories, from very low-income households (which includes extremely low) to above moderate (market rate) housing. This Regional Housing Needs Determination (RHND) is based on population projections produced by the California Department of Finance (DOF), as well as adjustments that incorporate the region’s existing housing need.
The City of San Mateo’s Regional Housing Needs Assessment (RHNA) for this housing cycle is 7,015 new housing units distributed across the four income groups: very low, low, moderate, and above moderate. The City’s Adopted Housing Element identifies how the City can accommodate its RHNA of 7,015 new homes over the next eight years, plus a buffer, and establishes goals, policies, and programs to help address the City’s current and future housing needs. These goals, policies, and programs are required to be accompanied by a list of eligible land resources and a Sites Inventory identified for planned residential development to accommodate the RHNA. HCD guidance stipulates that a projection of Accessory Dwelling Units (ADUs) expected to be built within the eight-year planning period can also be counted as part of the inventory. Based on permitting data, the City anticipates that 440 of the 7,015 units of the RHNA allocation (6%) would be ADUs.
San Mateo County Civil Grand Jury Report
On June 12, 2023, the San Mateo County Civil Grand Jury released a report entitled “Accessory Dwelling Units: Affordable Housing‘s Panacea or Prevarication?” (Attachment 2). The issue explored in this report is the possible misuse and over- reliance by some County of San Mateo communities on ADUs to meet their Regional Housing Needs Allocation (RHNA) requirements for very low, low, and moderate income units in the current housing cycle (2023-2031) in order to avoid developing multifamily affordable housing. The report notes that the State has made significant changes in the ADU laws
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to address the current housing needs, which include numerous Senate and Assembly bills which were enacted in 2018 and 2020. These laws required local jurisdictions to significantly reduce development requirements for ADUs and streamline the permitting process to increase production since ADUs have been identified as a housing type that can provide additional units at all income categories.
The report noted that San Mateo County jurisdictions have almost unanimously adopted the Association of Bay Area Governments (ABAG) percentage formula based on surveys to determine income affordability rather than actual usage of constructed ADUs. The formula allocates affordability levels to ADUs as follows: 30% Very Low Income, 30% Low Income, 30% Moderate and 10% Above Moderate. The report also noted that if HCD approves the County of San Mateo’s jurisdictions currently drafted Housing Elements, the County may end up with many affordable units that exist only on paper because they are counted as affordable by HCD but will not be made available or occupied by those who are actually income eligible.
Based on permitting history from the past four years (2019-2022), the City has issued an average of 60 building permits for new ADUs. The City’s Housing Element includes a conservatively lower estimate of 55 ADUs annually, for a total of 440 ADUs over the next eight years, for this housing cycle. Based on HCD-approved ABAG ADU survey, the City updated its breakdown to the 30-30-30-10 formula to estimate ADU affordability. This results in approximately 132 very low-income units, 132 low-income units, 132 moderate-income units and 44 above moderate- income units. However, it should be noted that the ADU production estimate represents only 6% of the City’s total RHNA of 7,015 units, and only 4.5% of the total sites inventory capacity of 9,944 units. In addition to ADUs, the City’s sites inventory includes several additional categories of sites, including pipeline projects, previous RHNA Cycle 5 sites, sites anticipated to redevelop, and vacant sites zoned for residential use.
The Report contains seven findings and six recommendations. Every jurisdiction in the County, including the City of San Mateo, has been asked to submit a response letter to the Honorable Judge Nancy L. Fineman no later than September 11, 2023. The City’s response must be approved by the Council at a public meeting. Staff has prepared a draft response letter for the Council’s review and approval. (Attachment 2).
The City provided responses to each of the findings and recommendations. The City’s responses to the seven findings and six recommendations are summarized in Table 1 below. More detailed responses are provided in the draft response letter.
Table 1: San Mateo Grand Jury Report on ADUs - Responses to Findings/Recommendations Finding City Response
F1. Due to recent changes in California ADU-related laws, local governments cannot condition ADU permits in San Mateo County on complying with affordability monitoring and verification.
City agrees.
F2. San Mateo County and most of its municipalities rely on ADUs to meet their affordable housing commitments in their RHNA-6 plans.
City partially agrees.
F3. Atherton, Hillsborough, Portola Valley, and Woodside rely on ADUs to meet as much as 80 percent of their affordable housing commitments in their RHNA-6 plans.
Not applicable.
F4. HCD has instructed San Mateo County jurisdictions to monitor and verify future ADU production and affordability every two years but has yet to specify how to verify whether very low-, low- or moderate-income households are occupying the ADUs as planned.
City partially agrees.
F5. Other than Brisbane and Redwood City, San Mateo County and its jurisdictions have yet to articulate how they will monitor and verify ADU production or affordability.
City does not agree.
F6. Without effective ADU monitoring and verification, it will be impossible to evaluate whether the jurisdictions are meeting their RHNA-6 obligations for low-, very-low, and moderate-income City does not agree.
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CITY OF SAN MATEO
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housing units.
F7. ADU affordability and occupancy could be monitored by agencies such as HIP Housing which has proven systems and processes to verify occupancy of deed-restricted rental properties in San Mateo County.
City agrees.
Recommendation City Response
R1. San Mateo County and each City should immediately stop using ADUs to meet their State-mandated very low-, low-, and moderate-income housing targets in their Housing Element submissions until they have also proposed an effective
monitoring system that verifies how newly developed ADU’s will be used.
Recommendation will not be implemented.
R2. By February 1, 2024, San Mateo County and each City should develop, adopt, and implement a verification system capable of monitoring and verifying how newly developed ADU’s are being used.
Part of the recommendation has yet to be
implemented but will be implemented in
the future, and part of the
recommendation is not warranted.
R3. By February 1, 2024, San Mateo County and each City should develop and adopt incentives for ADU owners which could be offered in exchange for deed restrictions that would include requirements for ADU tenants to participate in independent monitoring.
The City agrees with the goal of adopting
an affordable ADU program.
R4. By February 1, 2024, San Mateo County and each City should track the intended use of ADUs – rented or non-rented – during the permitting process and offer incentives in exchange for deed restrictions that require ADUs to be used as rentals.
This recommendation has yet to be
implemented but will be implemented in
the future.
R5. By April 1, 2024, San Mateo County and each City should develop and adopt a new ADU affordability distribution formula specific to each jurisdiction to the extent they are used for meeting the very low-, low-, and moderate-income housing requirements in their RHNA housing elements.
The recommendation will not be
implemented.
R6. San Mateo County and each City should consider working together to address Recommendations 2 and 3.
The recommendation has been
implemented.
BUDGET IMPACT:
There is no budget impact for this administrative action.
ENVIRONMENTAL DETERMINATION:
This response letter 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 – City of San Mateo Response Letter
Att 2 – San Mateo County Grand Jury Report
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CITY OF SAN MATEO
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STAFF CONTACT
Eloiza Murillo-Garcia, Housing Manager
[email protected]
(650) 522-7223
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September 5, 2023
Hon. Nancy L. Fineman
Judge of the Superior Court
c/o Bianca Fasuescu
Hall of Justice
400 County Center, 2nd Floor
Redwood City, CA 94063-1655
Subject: Response of the City of San Mateo to the San Mateo County Civil Grand Jury Report “Accessory Dwelling Units: Affordable Housing’s Panacea or Prevarication?”
Dear Honorable Judge Fineman,
Thank you for the opportunity to respond to the June 12, 2023, Grand Jury report entitled, “Accessory Dwelling Units: Affordable Housing’s Panacea or Prevarication?” The City of San Mateo’s responses to the findings and recommendations of the report are listed below.
Response to Findings:
F1. Due to recent changes in California ADU-related laws, local governments cannot condition ADU permits in San Mateo County on complying with affordability monitoring and verification.
Response: The City of San Mateo agrees with this finding.
F2. San Mateo County and most of its municipalities rely on ADUs to meet their affordable housing commitments in their RHNA-6 plans.
Response: The City of San Mateo partially agrees with this finding. The City of San Mateo anticipates that ADUs will meet some of its RHNA-6 affordable housing commitments; nonetheless ADUs are just one of many strategies being used. Specifically, San Mateo has a total lower income housing RHNA of 2,800 units and ADUs make up only 264 of these units (less than 10% of the lower income RHNA obligations). If circumstances result in fewer ADUs being built during the planning period that meet lower income thresholds, the City could still meet its RHNA utilizing other policies and programs contained in its Housing Element.
F3. Atherton, Hillsborough, Portola Valley, and Woodside rely on ADUs to meet as much as 80 percent of their affordable housing commitments in their RHNA-6 plans.
CITY OF SAN MATEO
City Council
330 W. 20th Avenue
San Mateo, CA 94403
www.cityofsanmateo.org
(650) 522-7040
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Response: Not applicable: the City of San Mateo is not named in this finding and therefore has no comment.
F4. HCD has instructed San Mateo County jurisdictions to monitor and verify future ADU production and affordability every two years but has yet to specify how to verify whether very low-, low- or moderate- income households are occupying the ADUs as planned.
Response: The City of San Mateo partially agrees with this finding. HCD’s comment to the City was that “[the City] must commit to also monitoring affordability of the ADU units that are permitted…” but did not specify the frequency of the monitoring. San Mateo’s July 2023 Housing Element includes an updated policy (H 1.4) that, among other things, commits the City to supporting a regional ADU monitoring effort through 21 Elements, a long-standing collaboration among the 21 jurisdictions of San Mateo County.
F5. Other than Brisbane and Redwood City, San Mateo County and its jurisdictions have yet to articulate how they will monitor and verify ADU production or affordability.
Response: The City of San Mateo does not agree with this finding. The City of San Mateo’s Housing Element includes multiple implementing actions under updated Policy H1.4 (Support Increased ADU Development) to monitor annual ADU production and verify affordability. As part of its Annual Progress Report to HCD, the City will provide a report on ADU permitting data to verify that Housing Element production targets are being achieved. In addition, the most recent version of the City’s Housing Element, published in July 2023, commits to monitoring ADU occupancy and rent levels through verification at permit issuance and supporting a regional ADU monitoring effort through 21 Elements, which is anticipated to begin in 2024/2025.
F6. Without effective ADU monitoring and verification, it will be impossible to evaluate whether the jurisdictions are meeting their RHNA-6 obligations for low-, very-low, and moderate-income housing units.
Response: The City of San Mateo does not agree with this finding. The City’s RHNA-6 obligations for low, very low and moderate income units is 3,975 units; however only 396 (approximately 10%) of these units will consist of ADUs. The City has multiple other strategies to achieve its affordable housing requirements for this housing cycle. Theoretically, the City has the ability to fully meet its RHNA obligations for every affordability category without any new ADUs being counted as affordable. However, there is ample evidence to support the finding that some percentage of ADUs are being rented at affordable levels and occupied by individuals and families who meet affordable income thresholds. Beyond the September 2021 ABAG report, which found that ADUs are rented at a variety of rates and often meet lower income affordability requirements based on the incomes of the occupants and/or their rental rates, there is data collected by many jurisdictions in San Mateo and Santa Clara counties over the past decade that shows ADUs are rented and occupied at affordable levels.
F7. ADU affordability and occupancy could be monitored by agencies such as HIP Housing which has proven systems and processes to verify occupancy of deed-restricted rental properties in San Mateo County.
Response: The City of San Mateo agrees with this finding. The City has the ability to establish internal processes to monitor ADU affordability and occupancy, or it could contract with an outside agency, such as
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HIP Housing. As outlined in the Housing Element, the City is committed to establishing an effective process to monitor ADU affordability and will be collaborating with 21 Elements to establish an ADU monitoring process that meets HCD requirements. However, it must be noted that the City does not have a high proportion of ADUs in their sites inventory for RHNA-6.
Response to Recommendations:
R1. San Mateo County and each City should immediately stop using ADUs to meet their State-mandated very low-, low-, and moderate-income housing targets in their Housing Element submissions until they have also proposed an effective monitoring system that verifies how newly developed ADU’s will be used.
Response: The recommendation will not be implemented because it is not warranted and is not reasonable.
While the City of San Mateo shares the Civil Grand Jury’s goal to increase ADU affordability monitoring, it is not practical or feasible to revise our Housing Element to eliminate the use of ADUs to meet affordable housing goals. The Housing Element was developed through a rigorous process of multiple years of public input and revisions and is close to a final submission to HCD. In addition, state law and HCD allow the City to count ADU production toward its RHNA-6 obligations. However, the City is committed to following state housing law and to supporting the 21 Elements effort to develop an effective regional ADU monitoring program. The City is also supporting the development of a new ADU nonprofit that will have programs to incentivize the production of affordable ADUs in San Mateo County. As previously mentioned, the City’s Housing Element Policy H1.4 contains multiple implementing actions, including an action to pursue additional actions if ADU production targets are not being met for two consecutive years.
R2. By February 1, 2024, San Mateo County and each City should develop, adopt, and implement a verification system capable of monitoring and verifying how newly developed ADU’s are being used.
Response: Part of the recommendation has yet to be implemented, but will be implemented in the future, and part of the recommendation is not warranted. The City of San Mateo agrees that it is important to have high quality information about who is living in ADUs. The city is participating in the 21 Elements effort to establish an ADU monitoring system. The monitoring is projected to launch in January 2025 and will likely survey people about their plans for their ADU at the time permits are issued. Due to homeowner privacy concerns and the cost of engaging with thousands of homeowners every year, it would not be practical to have an ongoing verification system that checks the income of every resident of every ADU in the County.
R3. By February 1, 2024, San Mateo County and each City should develop and adopt incentives for ADU owners which could be offered in exchange for deed restrictions that would include requirements for ADU tenants to participate in independent monitoring.
Response: The City of San Mateo agrees with the goal of adopting an affordable ADU program. The City is actively involved in the creation of an ADU nonprofit to serve San Mateo County jurisdictions. In addition, 21 Elements, working on behalf of the City, have been researching best practices for the creation of the ADU nonprofit. The draft work plan for the nonprofit calls for it to offer programs to incentivize the production of affordable ADUs and support homeowners in constructing ADUs in exchange for agreeing to rent at affordable levels. The nonprofit is projected to launch in July 2024.
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R4. By February 1, 2024, San Mateo County and each City should track the intended use of ADUs – rented or non-rented – during the permitting process and offer incentives in exchange for deed restrictions that require ADUs to be used as rentals.
Response: This recommendation has yet to be implemented but will be implemented in the future. As part of the monitoring program referenced in response to R2, the City of San Mateo will track the intended use of ADUs. The City has also included Policy 5.1.3 in its Housing Element to explore the potential for a City ADU loan program. The timeframe for implementation of the program is Summer 2024.
R5. By April 1, 2024, San Mateo County and each City should develop and adopt a new ADU affordability distribution formula specific to each jurisdiction to the extent they are used for meeting the very low-, low-, and moderate-income housing requirements in their RHNA housing elements.
Response: The recommendation will not be implemented because it is not warranted or is not reasonable.
While we agree with the importance of an accurate distribution formula, given the relatively small size of the City of San Mateo, a more meaningful distribution formula can be attained by collecting data on ADUs constructed across all San Mateo County jurisdictions. The City is supporting the creation of an ADU monitoring program through 21 Elements which will collect data that can be used to revise the distribution formula based on actual observed income levels.
In 2020, the Center for Community Innovation at the University of California at Berkeley (UC Berkeley) undertook a comprehensive, statewide survey of ADUs, resulting in a document entitled, “Implementing the Backyard Revolution: Perspectives of California’s ADU Homeowners,” which was released on April 22, 2021.
The UC Berkeley study, which was referenced in the 2021 ABAG report, surveyed thousands of homeowners statewide with repeat mailing and the data was aggregated to reduce the margins of errors. The margin of error would be too large if we are only surveying a small number of households. There is also no evidence in the data to suggest significant variation from city to city. The recommendations of 30/30/30/10 had a significant cushion built in to ensure cities did not accidentally underproduce the amount of housing needed. Based on the HCD-approved ABAG ADU survey, the City updated its breakdown to the 30/30/30/10 formula to estimate ADU affordability in the most recent draft of the Housing Element In July 2023 to be consistent with the other San Mateo County jurisdictions. The City had previously used the more conservative breakdown on 5/30/50/15 as noted in the Grand Jury Report.
R6. San Mateo County and each City should consider working together to address Recommendations 2 and 3.
Response: This recommendation has been implemented. San Mateo County jurisdictions work collaboratively through 21 Elements to develop, adopt, and implement housing policies and programs in the county. San Mateo County jurisdictions are already working together to address recommendations 2 and 3.
This response was approved by the San Mateo City Council at a public meeting on September 5, 2023.
Sincerely,
Amourence Lee
Mayor
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