Agenda packet, regular meeting — San Mateo City Council, September 18, 2023 (part 1 of 3)

CITY OF SAN MATEO
City Council Regular Meeting
September 18, 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:

Monday, September 18, 2023
To join via telephone: (408) 638-0968
Webinar ID: 898 9153 7762 Passcode: 619034
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.

Deputy Mayor Lisa Diaz Nash will teleconference into this meeting from:

Sheraton Hanoi Hotel, K5 Nghi Tam, 11 Xuan Dieu Road, Tay Ho District Hanoi, Vietnam

CALL TO ORDER
Pledge of Allegiance
Roll Call

CEREMONIAL

1. Fish Market Day – Proclamation

2. Home Maintenance Awards

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.

3. City Council Meeting Minutes - Approval
Approve the minutes of the special and regular meetings of September 5, 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).)

4. 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

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potentially significant physical impact on the environment.

5. Zoning Code Amendment for Planning Application Extensions – Ordinance Adoption Adopt 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), adoption 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.

6. Delaware Safe Routes to School Corridor – Grant Funding Acceptance Adopt a Resolution to approve the acceptance of $1,661,000 of California Transportation Commission Active Transportation Program Cycle 5 grant funding for the Delaware Safe Routes to School Corridor Project.

CEQA: This item 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).

7. Wastewater Treatment Plant: Grit, Rag, and Scum Hauling and Disposal – Agreement Approve an agreement to Compactor Management Company, LLC for Wastewater Treatment Plant grit, rag, and scum hauling and disposal in the amount of $156,100; establish a contingency reserve of $15,610; and authorize the Public Works Director to execute the contract in substantially the form presented and issue change orders within the contingency reserve.

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

8. Central Park Tennis Court Garage Structural Improvements – Contract Adopt a Resolution to approve an alternative purchasing procedure to award a construction contract to Angeles Contractor, Inc. for structural improvements to the Central Park Tennis Court Garage in the amount of $241,870.66; 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.

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 existing or former use. (CEQA Guidelines Section 15301.)

9. Transit Center Restroom Remodel Project – Appropriation and Contract Adopt a Resolution to appropriate $150,000 from the Capital Project Fund reserve to fund the Transit Center Restroom Remodel Project and approve an alternative purchasing procedure to award a construction contract to Angeles Contractor, Inc. for improvements to the restrooms located at the Transit Center in the amount of

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$121,133.76; establish a contingency reserve in the amount of $12,000; and authorize the Public Works Director to execute the contract in substantially the form presented and issue change orders within the contingency amount.

10. 41st Ave/Pacific Blvd Trash Capture Project – Agreement and Appropriation Adopt a Resolution to approve a cooperative agreement with Caltrans; accept and appropriate funding from Caltrans in the amount of $630,000 for the design and construction of the 41st Ave/Pacific Blvd Trash Capture Project; and authorize the Public Works Director to execute the agreement in substantially the form presented.

CEQA: Entering into a cooperative agreement and the receipt of funds from Caltrans 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).) The CEQA clearance requirements for the Project will be determined during the design phase, and prior to construction of the Project.

11. Deferred Compensation Program – Agreement
Approve two agreements with Voya Retirement Insurance and Annuity Company Plan for Retiree Health Reimbursements Services at no additional cost.

CEQA: This agreement 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).)

12. Racial Equity Art Project – Revised Agreement
Approve an agreement with Rafael Blanco LLC for the Racial Equity Art Project to be painted on the Pedestrian Mall in an amount not to exceed $200,000 and authorize the City Manager to execute the agreement in substantially the form presented.

CEQA: This project is categorically exempt from environmental review pursuant to CEQA Guidelines Section 15301 (existing facilities) because it consists of the repair, maintenance, and/or minor alteration of an existing public facility (B Street Pedestrian mall) with no expansion of use.

13. Liquidambar Street Tree Pruning – Agreement
Approve an agreement with Arboricultural Specialties, Inc., dba Professional Tree Care Co., for Liquidambar Street Tree Pruning in the amount of $167,960.00; authorize a 10% contingency of $16,796.00, for a total amount not to exceed $184,756; and authorize the Director of Parks and Recreation to execute the agreement in substantially the form presented and issue change orders within the contingency amount.

CEQA: This Agreement 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.)

14. San Mateo County Gang Intelligence Unit – Agreement Approve an agreement with the County of San Mateo to assign one San Mateo Police Sergeant to the San Mateo County Gang Intelligence Unit for a reimbursement amount not to exceed $120,000 for the 2024 Fiscal Year; and

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authorize the Chief of Police to execute the agreement in substantially the form presented.

CEQA: This action 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. (Public Resources Code Section 21065.)

15. Community Wellness and Crisis Response Team Mental Health Partnership – Agreement Adopt a Resolution to appropriate $40,890 to the Police Department’s fiscal year 2023-2024 operating budget; approve an agreement with the County of San Mateo and City of Foster City for provision of shared mental health crisis response services in an estimated amount of $104,065; and authorize the Chief of Police to execute the agreement in substantially the form presented.

CEQA: This action 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. (Public Resources Code Section 21065.)

16. 2022-23 Consolidated Annual Performance and Evaluation Report – Adoption Adopt the Consolidated Annual Performance and Evaluation Report for submission to the Department of Housing and Urban Development.

CEQA: This administrative review of the 2022-23 CAPER 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. (Public Resources Code Section 21065.)

17. Collaborative Solutions, LLC Enterprise Planning System Implementation Services and Workday Delivery Assurance – Supplemental Budget Appropriation and Change Orders Adopt a Resolution to approve a supplemental budget appropriation of $780,580 of unassigned fund balance from the Equipment Replacement Fund to increase the budget for the Enterprise Resource Planning Software Project; approve Change Order No. 5 and Change Order No. 6 to the master services agreement with Collaborative Solutions, LLC for enterprise resource planning system implementation services in the amount of $760,900, for a new agreement total of $4,142,665; approve a Change Order to the master subscription agreement with Workday, Inc. for delivery assurance services in the amount of $19,680 for a new agreement total of $152,755; and authorize the City Manager to execute the Change Orders.

CEQA: These change orders are not a project subject to CEQA, because they are an organizational or administrative activity that will not result in direct or indirect physical changes in the environment. (CEQA Guidelines Section 15378(b)(5).)

18. South Bayside Waste Management Authority’s Acquisition of Real Property - Approval Adopt a Resolution approving South Bayside Waste Management Authority’s purchase of real property located at 1245 San Carlos Avenue, Suite E, San Carlos, California, to be utilized as SBWMA’s administrative offices.

CEQA: This activity 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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19. Delegate Authority to the City Attorney to Settle Claims and Litigation – Approval Adopt a Resolution to increase delegated authority to the City Attorney to settle claims and litigation, and to the City Attorney and City Manager to jointly settle workers’ compensation claims and litigation, both from $30,000 to $50,000.

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

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.

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.

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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.
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https://www.cityofsanmateo.org/193/Channel-San-Mateo-Live-Stream

PUBLIC COMMENTS/REQUEST TO SPEAK
Prior to the Meeting
Send comments to:
[email protected]
until 4 p.m. the day of the meeting.

During the meeting
By Zoom:

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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2023

OUTSTANDING HOME

MAINTENANCE
AWARDS
Congratulations to all our Winners!!

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Beresford Hillsdale Neighborhood Association
301 31st Ave
Paul Uehara

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Central Neighborhood Association
719 S. Fremont St
Caleb Stewart and Judy Syrkin-Nikolau

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Sugarloaf Homeowners Association
3516 Broadview Ct.

Susan Kazarian

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North Central Home Association
847 N. Idaho Street
Ana Martinez

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Baywood Owners ImprovementAssociation
606 Yale Drive
Dave & Ana Ridgeway

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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: 3 Section Name: CONSENT CALENDAR Account Number: 10-1511 File ID: 23-7966 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: City Clerk's Office
MEETING DATE: September 18, 2023
SUBJECT:

City Council Meeting Minutes - Approval
RECOMMENDATION:

Approve the minutes of the special and regular meetings of September 5, 2023.

BUDGET IMPACT:

There is no budget impact from 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 2023-09-05 Special
Att 2 - Minutes 2023-09-05 Regular

STAFF CONTACT
Patrice Olds, City Clerk
[email protected]
(650) 522-7042

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City Council Special Meeting Minutes – 9/5/2023 Page 1
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COUNCIL MEMBERS
Amourence Lee, Mayor
Lisa Diaz Nash, Deputy Mayor
Rich Hedges
Adam Loraine
Robert Newsom Jr.

CITY OF SAN MATEO
Special Meeting Minutes
City Council
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org

September 5, 2023
City Hall Council Chambers 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

STUDY SESSION

1. Campaign Finance – Voluntary Expenditure Limits and Public Financing Models Martin McTaggart, Deputy City Clerk, provided a presentation on research relating to voluntary expenditure limits (VEL) and public financing models for election campaigns. Council asked questions of staff. There was no public comment.

Council discussion ensued with consensus to return with a VEL ordinance for consideration with the preferred limit per resident set at $2.50. The preferred increase would be tied to Consumer Price Index and rounded to a simple round number. Further review is needed on excluding certain expenses from the limits. Council is interested in hearing more about public financing models but not at this time, due to commitments already made and suggested shelving it for two years. A discussion ensued on the City picking up campaign statement costs to publish in the sample voter ballot.

ADJOURNMENT –The meeting adjourned at 6:59 p.m.

APPROVED BY: SUBMITTED BY:

Amourence Lee, Mayor Patrice Olds, City Clerk

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City Council Regular Meeting Minutes – 9/5/2023 Page 1
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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
September 5, 2023
City Hall Council Chambers 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. Suicide Prevention / Recovery Happens Month – Proclamation - Sheri Boles, San Mateo County Health’s Behavioral Health & Recovery Services, received the proclamation

CONSENT CALENDAR
The following items, 2 through 4 and 6 through 12, were considered to be routine by the City Council. Item 5 was removed to be considered separately. After the titles of the items were read by the Deputy City Clerk, the public was invited to comment and there were no speakers. Motion passed 5-0.

Moved: Hedges, Seconded: Diaz Nash
Ayes: Lee, Diaz Nash, Hedges, Loraine, and Newsom
Noes: None

2. City Council Meeting Minutes – Approval
Approve the minutes of the special and regular meetings of August 21, 2023.

3. City Council 2024 Regular Meeting Calendar – Adoption Adopt the City Council Regular Meeting schedule for the calendar year 2024.

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.”

Enactment: Ordinance No. 2023-06

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.

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City Council Regular Meeting Minutes – 9/5/2023 Page 2
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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.

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.

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.

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.

Enactment: Resolution No. 97 (2023)

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.

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.

Enactment: Resolution No. 98 (2023)

END OF CONSENT CALENDAR

REMOVED FROM CONSENT CALENDAR

5. Tobacco Retailer Permit Amendments – Ordinance Adoption Item #5 was pulled from the Consent Calendar by the request of staff to reintroduce this ordinance rather than adopt it. City Attorney Rasiah explained there were some discrepancies between the County and City versions and that they need to be identical.

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City Council Regular Meeting Minutes – 9/5/2023 Page 3
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Motion to reintroduce 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: Hedges, Seconded: Newsom
Ayes: Lee, Diaz Nash, Hedges, Loraine, and Newsom
Noes: None
PUBLIC COMMENT – There were no speakers.

PUBLIC HEARING

13. Zoning Code Amendment for Planning Application Extensions – Ordinance Introduction Julia Klein, Principal Planner, Community Development Department, provided a presentation on the need to update the municipal code with regard to planning application extensions. She outlined the history of the ordinance, which expired in 2015, and the reasons for needing this codified related to factors that can delay a project from external factors, equity with subdivision map act projects, benefits and noted that it is only for projects that have not been issued building permits. Council asked questions of staff.

The Mayor opened the Public Hearing.

Public Comment – Dave Cohen, Ethics San Mateo, expressed concerns with members of the Planning Commission working in conflict with the requirements to be fair and impartial. Lisa Vande Voorde stated profound concerns with the language that are being asked to approve, developers can now delay for up to four years.

The Mayor closed the Public Hearing. Additional questions of staff from Council.

Motion to 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). Motion passed 5-0.

Moved: Hedges, Seconded: Newsom
Ayes: Lee, Diaz Nash, Hedges, Loraine, and Newsom
Noes: None

REPORTS AND ANNOUNCEMENTS
City Manager, City Attorney and Council Members reported on their various assignments and liaison roles. Council Member Loraine expressed appreciation to City staff for putting on the General Plan Update Town Hall last week and encouraged residents to participate in future meetings.

ADJOURNMENT –The meeting adjourned at 7:51 p.m.

APPROVED BY: SUBMITTED BY:

Amourence Lee, Mayor Patrice Olds, City Clerk

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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: 23-7709-02 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Police Department
MEETING DATE: September 18, 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 September 5, 2023, the City Council re-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 in Track Changes

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

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CITY OF SAN MATEO

PROPOSED 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

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:

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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:

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.

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

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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:

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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.

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

Section 9. Section 7.41.034 of the San Mateo Municipal Code is added to Chapter 7.41 as follows:

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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.

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:

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

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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:

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

Section 16. Section 7.41.060 of the San Mateo Municipal Code is amended as follows:

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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.

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:

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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.

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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Bay Area Division

www.heart.org
Dear Mayor and Council,
The American Heart Association respectfully asks for the adoption of San Mateo County’s comprehensive Tobacco Retail License Ordinance Model with flavored tobacco sales restriction of all flavored tobacco products in the City of San Mateo without exemption. This policy will help reduce access to the products that are the tobacco industry’s key strategy for targeting and addicting new smokers, San Mateo’s youth.

We know policy is only as strong as enforcement and a flavored tobacco restriction needs a strong Tobacco Retail License (TRL) to be effective. By adopting the County’s Policy, San Mateo will benefit from the City/County partnership for enforcement. The County policy is strong because it includes: a fee that is high enough to cover the cost of enforcement, a minimum number of compliance checks per year with rechecks upon violation, a designated enforcement body and a penalty structure that applies to the owner/licensee.

The tobacco industry is actively and aggressively working to addict new young people, particularly those from communities of color, with flavored tobacco products. They know that flavors like grape, mint (menthol), cotton candy, bubble gum and gummy bears mask the harsh taste of tobacco and are highly appealing to youth. We’ve made progress with the passage of SB793/Prop 31, but we have stronger local examples that include all products, all flavors with programs for compliance monitoring.

Cigarette smoking is the leading cause of preventable disease and death in the United States, claiming on average 480,000 lives each year. Evidence shows that smoking increases the risk for heart disease and stroke.

Adopting the County’s comprehensive Tobacco Retail License will help protect our community from tobacco addiction and is crucial to preventing tobacco-related death and disease. Thank you for your consideration of this vital health policy priority.

Sincerely,

Dr. John Maa, Board Member
Bay Area Division, American Heart Association

September 18th, 2023
San Mateo City
330 W 20th Ave
San Mateo, CA 94403

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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: 25-3112 File ID: 23-7860-01 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Community Development Department
MEETING DATE: September 18, 2023
SUBJECT:

Zoning Code Amendment for Planning Application Extensions – Ordinance Adoption RECOMMENDATION:

Adopt 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).

BACKGROUND:

On September 5, 2023, City Council introduced 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). If adopted the ordinance would become effective 30-days after adoption.

BUDGET IMPACT:

Updates to the City’s Zoning Code are fully funded in the annual budget with no additional impact to the General Fund.

ENVIRONMENTAL DETERMINATION:

In accordance with California Environmental Quality Act (CEQA) Guidelines, section 15061(b)(3), adoption 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.

NOTICE PROVIDED:

All meeting noticing requirements were met.

ATTACHMENTS
Att 1 - Proposed Ordinance
Att 2 – Proposed Ordinance in track changes
Att 3 - Public Comment

STAFF CONTACT
Julia Klein, Principal Planner
[email protected]
(650) 522-7216

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PROPOSED ORDINANCE
Amendment to San Mateo Municipal Code Section 27.08.087 Regarding the Planning Approval Extension Process
WHEREAS, the Zoning Code contains limited provisions for planning approval extensions; and WHEREAS, the City desires to provide additional flexibility for development projects to avoid expiration of planning entitlement approvals to account for external factors, such as changing economic conditions; and WHEREAS, the City desires to modify the Zoning Code to allow for planning approval extensions of up to two years, when certain findings can be made; and
WHEREAS, on August 8, 2023, the Planning Commission held a duly and properly noticed public hearing, received all written and oral public comments, and voted 5-0 to recommend that the City Council approve the proposed ordinance.

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

Section 1. Legislative Findings.

At a duly noticed public hearing on September 5, 2023, the City Council of the City of San Mateo reviewed and considered the agenda report dated September 5, 2023, and attachments thereto, the exemption from environmental review, together with comments received during the public review process, and hereby finds and determines that the proposed ordinance is consistent with the adopted General Plan in that it supports successful completion of projects that implement and achieve the General Plan’s stated goals and policies.

Section 2. Section 27.08.087 of the San Mateo Municipal Code is amended as follows:

27.08.087 PLANNING APPROVAL EXTENSION.

The following extensions to planning approvals are available:
(a) Extensions required by state or federal law. Where state or federal law requires that extension of a planning approval be considered, the Zoning Administrator shall approve an extension if they find that the project complies with all applicable zoning, planning, and general plan regulations and conditions. (b) City extensions. The Zoning Administrator may approve one extension of a planning approval for up to two years, subject to the following provisions:
(1) Application required. To apply for a planning approval extension, an applicant must submit the application prior to the expiration date of the planning approval, pay the application fee and provide the reason(s) for the extension request.

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(2) Findings required. To approve a time extension, the Zoning Administrator must find all of the following:
(A) The approved project is still consistent with the City's General Plan; and (B) The approved project is still consistent with the City's Zoning Ordinance; and (C) The extension will not result in any new environmental impacts or an increase in severity of previously identified environmental impacts. (c) Notice of Zoning Administrator Decision on Extension. Notice will be provided to the neighborhood by the same process followed for the original project approval. Notice will also be provided to the Planning Commission and City Council within ten days of the Zoning Administrator's decision. (d) Appeals. The decision of the Zoning Administrator is appealable to the Planning Commission within ten days of the Zoning Administrator's decision by filing a written appeal with the Planning Division and payment of applicable fees. When an appeal is filed, the expiration date of a planning approval is tolled until a final action is taken. The provisions of Municipal Code Chapter 26.48 govern for all projects with associated subdivision maps.

Section 3. Environmental Determination. In accordance with California Environmental Quality Act (CEQA) Guidelines, section 15061(b)(3), adoption of this ordinance is covered by the "common sense exemption" in that it can be seen with certainty that the ordinance, which updates the process for considering a planning application extension, will not have a significant effect on the environment per Guidelines Section 15061(b)(3).

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

Section 1. Legislative Findings.

At a duly noticed public hearing on September 5, 2023, the City Council of the City of San Mateo reviewed and considered the staff report dated September 5, 2023, and attachments thereto, the exemption from environmental review, together with comments received during the public review process, and hereby finds and determines that the proposed ordinance is consistent with the adopted General Plan in that it supports successful completion of projects that implement and achieve the General Plan’s stated goals and policies.

Section 2. Section 27.08.087 of the San Mateo Municipal Code is amended as follows:

27.08.087 PLANNING APPROVAL EXTENSION.

The following extensions to planning approvals are available:
(a) Extensions required by state or federal law. Where state or federal law requires that extension of a planning approval be considered, the Zoning Administrator willshall approve an extension if he or shethey finds that the project complies with all applicable zoning, planning, and general plan regulations and conditions. (b) City extensions applied for prior to July 1, 2015. The Zoning Administrator may approve applications filed prior to July 1, 2015, for extensions of planning approvals, as a minor modification to a planning approval, for extensions of two years each. No applications for extensions may be considered on or after July 1, 2015.City Extensions. The Zoning Administrator may approve one extension of a planning approval for up to two years, subject to the following provisions:
(1) Application required. In order to apply for a planning approval extension, an applicant must pay the extension application fee and submit a copy of the project plans as originally approved. Application Required. To

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apply for a planning approval extension, an applicant must submit the application prior to the expiration date of the planning approval, pay the application fee and provide the reason(s) for the extension request. (2) Findings rRequired. In order toTo approve a time extension, the Zoning Administrator must find all of the following:
(A) The approved project is still consistent with the City's General Plan; and (B) The approved project is still consistent with the City's Zoning Ordinance; and (C) The project site and its environs are in substantially the same condition as when the project was initially approved.The extension will not result in any new environmental impacts or an increase in severity of previously identified environmental impacts.
(c) Notice of Zoning Administrator dDecision on eExtension. Notice will be provided to the neighborhood by the same process followed for the original project approval. Notice will also be provided to the Planning Commission and City Council within ten days of the Zoning Administrator's decision. (d) Appeals. The decision of the Zoning Administrator is appealable to the Planning Commission within ten days of the Zoning Administrator's decision by filing a written appeal with the Planning Secretary. With regard to the extension of subdivision maps, the provisions of Municipal Code Chapter 26.72 govern.Planning Division and payment of applicable fees. When an appeal is filed, the expiration date of the planning approval is tolled until a final action is taken. The provisions of Municipal Code Chapter 26.48 govern for all projects with associated subdivision maps.

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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From: Amy Jussel,
Sent: Wednesday, August 9, 2023 2:13 PM
To: Julia Klein <[email protected]>
Cc: Manira Sandhir <[email protected]>
Subject: VERY helpful! THANK you so much! FW: 8/8 Planning Commission agenda item inquiry This is VERY HELPFUL thank you! Also, it would be helpful to articulate in some form of summary for the lay person to read as constituents will read the small paragraph as permanent ordinance and a code change...so it would behoove all to give transparency from the get go...While we're at it...

Wondering if you could also address the empty hole/ugly visual of the open lot/chainlink fence w/trees cut down as voters would like to see this USED efficiently during the two year interim/lag or...better yet, used for affordable housing and not an office building! So if you could address those concerns that would be helpful too!
Appreciatively, Amy
On 8/9/23 1:59 PM, Julia Klein wrote:

Hi Amy,
I’m following up to let you know that your comment letter was provided to the Commissioners prior to the Planning Commission meeting, and a copy is saved to the project file for this code amendment.

I also want to follow up regarding concerns that were raised.

First, this amendment would not set a precedent for applicants seeking extensions. It provides an option to apply and each extension request would be evaluated on a case-by-case basis on whether they can meet the criteria in the findings section of the proposed ordinance.

I also want to clarify that larger projects typically have subdivision maps as part of the original planning application approval, and thus already have the option to request extensions through the subdivision map act. These types of project are not affected by this proposed code amendment.

It should be noted that applicants for smaller projects, such as duplexes and triplexes, face similar challenges as larger projects when it comes to external factors that may affect their ability to complete the project. While they may face similar external challenges beyond their control, the zoning code currently does not provide them any option to apply for an extension. This code amendment attempts to address that disparity.

Second, the CEQA exemption is limited to this code amendment. It is not a blank exemption on future extension requests. Each extension request would be evaluated individually, and must be able to meet the criteria in the finding section including, “(C) The extension will not result in any new environmental impacts or an increase in severity of previously identified environmental impacts.” The City can deny extension requests that do not meet the criteria.

I hope this information is helpful, please let me know if there are further questions.

Best,

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Julia Klein
Principal Planner | Community Development Department
330 W. 20th Ave., San Mateo, CA 94403
650-522-7216 | [email protected]

From: Amy Jussel,
Sent: Tuesday, August 8, 2023 2:55 PM
To:

Planning <[email protected]>; Planning Commission <[email protected]>; Patrice Olds <[email protected]> Cc: City Council (San Mateo) <[email protected]> Subject: 8/8 Planning Commission agenda item inquiry

Can't attend this eve due to an HOA Board meeting so will submit my query concerning this:

"Ordinance Recommendation Recommend to the City Council adoption of an Ordinance to amend San Mateo Municipal Code Section 27.08.087 (Planning Approval Extension) to allow for extensions of up to two years for approved planning application; and determine the amendment is exempt from further environmental review pursuant to California Environmental Quality Act (CEQA) Section 15061(b)(3)" This is disconcerting and raised my eyebrows as it reads as if this would be a 'precedent' ordinance? Altering codes future forward in perpetuity by allowing being them to be exempt from CEQA is alarming, I am totally against this being a Municipal code change...how is this even legal? Also, I'm not sure what this planning extension refers to but it sure sounds like Block 21.

Many in our community are totally against leaving a barren, chain linked hole in the ground with all trees cut down and wrapped in plastic as the 'welcome to San Mateo' view...At the very list, the city should consider mandating that the developer adhere to their timeline or default to a "community use" in the interim, rolling out sod for a park or play area or something more visibly appealing than the destruction of all the trees to put up yet another unnecessary office building the community doesn't need or desire. sigh.

As usual, public has very little say in this steamrolling and over-reach, but we are certainly watching.

Please include my comments in your 'packet' if that's an option.

Thank you, Amy Jussel Bedard
MGA#1, District 4
* PRIVILEGE AND CONFIDENTIALITY NOTICE: This message, together with any attachments, is intended only for the use of the individual or entity to which it is addressed. It may contain information that is confidential and prohibited from disclosure. If you are not the intended recipient, you are hereby notified that any dissemination or copying of this message or any attachment is strictly prohibited. If you have received this message in error, please notify the original sender immediately by telephone or by return e-mail and delete this message along with any attachments from your computer. Thank you.

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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: 10-4661 File ID: 23-7612 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: September 18, 2023
SUBJECT:

Delaware Safe Routes to School Corridor – Grant Funding Acceptance RECOMMENDATION:

Adopt a Resolution to approve the acceptance of $1,661,000 of California Transportation Commission Active Transportation Program Cycle 5 grant funding for the Delaware Safe Routes to School Corridor Project.

BACKGROUND:

On September 8, 2020, City Council approved a letter of support for the City to apply for California Transportation Commission (CTC) Active Transportation Program (ATP) Cycle 5 funding to fund the environmental, design, right-of-way, and construction phases of the Delaware Safe Routes to School Corridor Project (Project). The funds are 100% from the State and are unique in that there is no City match requirement. The Project limits are on South Delaware Street from Pacific Avenue to 19th Avenue and primarily focus on improving safety and connectivity to two public schools accessed from Delaware Street and connecting neighborhood children directly to the schools they attend. The Project includes a Class IV separated bike lane and a bicycle boulevard as planned in the adopted 2020 Bicycle Master Plan. The Project will provide necessary safety improvements along this roadway in an area with a high level of traffic and a history of vehicle collisions and will also improve connectivity to the newly relocated Hillsdale Caltrain station from the north and south.

In June 2021, the CTC awarded the City $1,661,000 in grant funding to deliver the Project through all phases (environmental, design, right-of-way, and construction). Since the award, there have been some staff turnover resulting in some delays. Staff resources are now at more sufficient levels and staff now recommends City Council approve the Resolution to accept the ATP Cycle 5 grant funding for the Project.

The City previously approved Resolution 113 (2016) that delegates broad authority for the Public Works Director to sign master agreements and program supplemental agreements (PSAs) with Caltrans. The updated master agreement and PSA for this project were fully executed in April 2022. After the funds have been accepted through this Council action, staff will begin the design phase and develop the overall project schedule for design and community engagement.

BUDGET IMPACT:

The Delaware Safe Routes to School Corridor Project (46r022), included in the FY 2023-24 capital budget, is funded entirely through these ATP Cycle 5 grant funds and has no local match requirements. Acceptance of the $1,661,000 ATP Cycle 5 grant funding will not impact local funding.

ENVIRONMENTAL DETERMINATION:

This item 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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NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 - Proposed Resolution

STAFF CONTACT
Jay Yu, Engineering Manager
[email protected]
(650) 522-7323

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RESOLUTION NO. (2023)
AUTHORIZING THE ACCEPTANCE OF $1,661,000 OF CALIFORNIA TRANSPORTATION COMMISSION ACTIVE TRANSPORTATION PROGRAM CYCLE 5 GRANT FUNDING FOR THE DELAWARE SAFE ROUTES TO

SCHOOL CORRIDOR PROJECT
WHEREAS, at the September 8, 2020, City Council meeting, Council approved a letter of support to applied for $1,661,000 in California Transportation Commission Active Transportation Program (ATP) Cycle 5 grant funding for the Delaware Safe Routes to School Corridor Project; and WHEREAS, in June 2021, the California Transportation Commission awarded the City $1,661,000 in ATP Cycle 5 grant funding to complete the environmental, design, right-of-way, and construction phases for the Delaware Safe Routes to School Corridor project; and
WHEREAS, staff proposes accepting $1,661,000 of ATP Cycle 5 grant funding for the Delaware Safe Routes to School Corridor project.

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

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

2. Acceptance of $1,661,000 in ATP Cycle 5 grant funding for the Delaware Safe Routes to School Corridor Project (46r022) is approved.

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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: 72-4671 File ID: 23-7890 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: September 18, 2023
SUBJECT:

Wastewater Treatment Plant: Grit, Rag, and Scum Hauling and Disposal – Agreement RECOMMENDATION:

Approve an agreement to Compactor Management Company, LLC for Wastewater Treatment Plant grit, rag, and scum hauling and disposal in the amount of $156,100; establish a contingency reserve of $15,610; and authorize the Public Works Director to execute the contract in substantially the form presented and issue change orders within the contingency reserve.

BACKGROUND:

The Wastewater Treatment Plant (officially the Water Quality Control Plant) requires hauling and disposal of grit, rags, and scum on a weekly basis that is essential to maintain normal operations. This agreement will provide for the removal of an estimated 1,400 tons of material with 140 hauls of solids over 21 months.

In accordance with Municipal Code section 3.60.030, a competitive public process was used to obtain bids for this service.

Specifications and a Notice Inviting Sealed Bids were published in August 2023. Four bids were received and opened on August 10, 2023, with the following results:

Bid AmountContractor
Per Ton Trip Total
Compactor Management Company LLC $63 $485 $156,100
Allied Waste of North America, LLC dba Allied Waste Services of Daly City/Republic Services of Daly City $79 $505 $181,300
Naman Trucking $56 $1,500 $288,000
Advanced Chemical Transport, INC. DBA ACT ENVIRO $95 $1,240 $306,600 Staff evaluated the submitted bids, and determined the lowest responsive and responsible bid was submitted by Compactor Management Company, LLC. Based on its review, staff recommends awarding the agreement accordingly.

BUDGET IMPACT:

Sufficient funds are available in the Wastewater Treatment Plant’s operating budget to award this agreement.

ENVIRONMENTAL DETERMINATION:

This contract is categorically exempt from CEQA as an “existing facility,” because it consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities,

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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
Att 2 - Bid Summary

STAFF CONTACT
Michael Sutter, Wastewater Treatment Operations Superintendent [email protected]
650-522-7376
Robert Learmonth, Wastewater Treatment Plant Manager
[email protected]
650-522-7386

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CITY OF SAN MATEO, CALIFORNIA

WASTE WATER TREATMENT PLANT

GRIT RAG & SCUM HAULING AND DISPOSAL
OCTOBER 1, 2023 TO JUNE 30, 2025

AGREEMENT TO SUPPLY EQUIPMENT, LABOR, AND MATERIAL

FOR GRIT, RAG & SCUM HAULING AND DISPOSAL

CITY OF SAN MATEO

CITY COUNCIL AWARD
THIS AGREEMENT (“Agreement” or “Contract”), made and entered in to this day of ____________________________, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California, hereinafter referred to as "CITY", and Compactor Management Company LLC., hereinafter r e f e r r e d to as "CONTRACTOR".

RECITALS
(A) City desires certain grit, rag, and scum hauling and disposal services for its Water Quality Control Plant operations (“Services” or “Work”). (B) A notice was duly published for bids for the contract for the services hereinafter described.
(C) After notice duly given, on the date hereof, the City awarded the contract for the Services hereinafter described to Contractor .

IT IS AGREED, as follows:

1. Scope of Work. Contractor shall perform the work according to the Contract Book entitled: Grit, Rag, & Scum Hauling and Disposal, October 1, 2023 to June 30, 2025.

2. Contract Price. City shall pay and the Contractor shall accept, in full payment for the work above agreed to be performed up to the sum of $156,100.

Said price is determined by the prices contained in Contractor’s bid, and shall be paid as described in the Contract Book. In the event work is performed or materials furnished in addition to or a reduction of those set forth in Supplier’s bid and the specifications herein such work materials will be paid for as described in the Contract Book.

3. The Contract Documents. The complete contract consists of the following documents: This agreement; the Notice Inviting Sealed Proposals; the Accepted Proposal; the Contract Book; and Addendum Number ____ issued to the Contract Book.

All rights and obligations of City and Contractor are fully set forth and described in the contract documents.

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All of the above-named documents are intended to cooperate, so that any work called for in one, and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents. The documents comprising the complete contract will hereinafter be referred to as "the contract documents." In the event of any variation or discrepancy between any portion of this agreement and any portion of the other contract documents, this agreement shall prevail.

4. Termination. The City may terminate this contract immediately in the event of Contractor's default or breach of the contract and upon 60 days written notice without cause.

5. Schedule. All work shall be performed in accordance with the schedule provided pursuant to the Contract book.

6. Performance by Sureties. In the event of any termination as herein before provided. City shall immediately give written notice thereof to Contractor and Contractor's sureties, and the sureties shall have the right to take over and perform the agreement provided, however, that if the sureties, within 5 days after giving them said notice of termination, do not give City written notice of their intention to take over the performance thereof within 5 days after notice to City of such election, City may take over the work and prosecute the same to completion, by contract or by any other method it may deem advisable, for the account, and at the expense of Contractor, and the sureties shall be liable to City for any excess cost or damages occasioned City thereby; and in such event, City may, without liability for so doing, take possession of, and utilize in completing the work, such materials, appliances, plant and other property belonging to Contractor as may be on the site of the work and necessary therefor.

7. Prevailing Wage Scale. In general, the prevailing wage scale, as determined by the Director of Industrial Relations of the State of California, in force on the day this bid was announced, will be the minimum paid to all craftsmen and laborers working on this project. In some cases, prevailing wage determinations have either a single asterisk (*) or double asterisks (**) after the expiration date in effect on the date of advertisement for bids.

In c a s e s where the prevailing wage determinations have a single asterisk (*) after the expiration date which are in effect on the date of advertisement for bids. such determinations remain in effect for the life of the project. Prevailing wage determinations which have double asterisks (**) after the expiration date indicate that the basic hourly wage rate, overtime, and holiday pay rates, and employer payments to be paid for work performed after this date have been predetermined. If work is extended past this date, the new rate must be paid and should be incorporated in contracts the Contractor enters into.

A copy of the correct determination will be posted at the job site. It is understood that it is the responsibility of the bidder to determine the correct scale. The City will keep a copy of the wage scale in the City Clerk's office for the convenience of bidders. Any errors or defects in the materials in the City Clerk's office will not excuse a bidder's failure to comply with the actual scale then in force.

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8. Insurance. The Contractor shall provide and maintain:

A. Commercial General Liability Insurance, occurrence form, with a limit of not less than $2,000,000 e a c h occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two (2) times the occurrence limit.

B. Automobile Liability Insurance, occurrence form, with a limit of not less than $1,000,000 each occurrence. Such insurance shall include coverage for owned, hired, and non-owned
automobiles.

C. Workers Compensation in at least the minimum statutory limits.

D. General Provisions for all insurance. All insurance shall:

I. Include the City of San Mateo and The Estero Municipal Improvement District, their elected and appointed officials, employees, and agents as additional insureds with respect to this Agreement and the performance of services in this Agreement. The coverage shall contain no special limitations on the scope of its protection to the above-designated insureds.

II.

Be primary with respect to any insurance or self-insurance programs of City of San Mateo and The Estero Municipal Improvement District, their elected and appointed officials, employees, and agents .

III. Be evidenced, prior to commencement of services, by properly executed policy endorsements in addition to a certificate of insurance.

IV. No changes in insurance may be made without the written approval of the City Attorney's office.

V. NOTICE OF CANCELLATION: The CITY requires 30 days written notice of cancellation. Additionally, the notice statement on the certificate should not include the wording "endeavor to" or "But failure to mail such notice shall impose no obligation or liability of any k i n d upon the company its agents or representatives".

9. Hold Harmless and Indemnity Provision. Contractor agrees to hold harmless and indemnify City of San Mateo and Estero Municipal Improvement District, their elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense

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arising from performance of this contract, including claims, loss, liability, damage, and expense caused or claimed to be caused by passive negligence of City of San Mateo or Estero Municipal Improvement District, their elected and appointed officials, employees, and agents; provided, however that this provision does not apply to claims, loss, liability, damage or expense arising from (a) the sole negligence or willful misconduct of City of San Mateo or Estero Municipal Improvement District or (b) the active negligence of City of San Mateo or Estero Municipal Improvement District; further provided, that this provision shall not affect the validity of any insurance contract, workers compensation or agreement issued by an admitted insurer as defined by the Insurance Code.

Contractor will defend City of San Mateo and Estero Municipal Improvement District, their elected and appointed officials, employees, and agents, against any such claims.

10. Attorney Fees. Attorney fees in amount not exceeding $85 per hour per attorney, and in total amount not exceeding $5,000 shall be recoverable as costs (that is, by the filing of a cost bill) by prevailing party in any action or actions to enforce the provisions of this contract. The above $5,000 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 that neither party to this contract shall have to pay the other more than $5,000 for attorney fees arising out of an action, or actions, to enforce the provisions of this contract. The parties expect and hope there will be no litigation and that any differences will be resolved amicably.

11. 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 California State Board of Mediation and Conciliation, or other agreed-upon service. The mediator shall be selected by a "blindfolded" process.

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.

12. Provisions Cumulative. The provisions of this agreement are cumulative, and in addition to and not in limitation of, any other rights or remedies available to City.

13. Notices. All notices shall be in writing, and delivered in person or transmitted by certified mail, postage prepaid.

Notices required to be given to City shall be addressed follows: Director of Public Works
City of San Mateo
330 West 20th Avenue
San Mateo, CA 94403
Notices required to be given to Contractor shall be addressed as appears in the signature block as shown on the Bidder's Statement.

14. Nonassignability. Both parties hereto recognize that this Agreement is for the personal

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services of Contractor and cannot be transferred, assigned, or subcontracted by Contractor without the prior written consent of the City.

15. Reliance Upon Skill on Contractor. It is mutually understood and agreed by a between the parties hereto that Contractor is skilled in the performance of the work agreed to be done under this Agreement and that City relies upon the skill of Contractor to do and perform the work in the most skillful manner, and Contractor agrees to thus perform the work. The acceptance of Contractor’s work by City does not operate as a release of Contractor from said obligation.

16. Interpretation. As used herein any gender includes each other gender, the singular includes the plural and vice versa.

17. 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.

IN WITNESS WHEREOF, this agreement has been duly executed by the parties hereinabove named, as of the day and year first above written.

SUPPLIER CITY OF SAN MATEO,
a municipal corporation
_________________________________ _________________________________ Toni Lucio, Brad B. Underwood,
Sales Manager Public Works Director
*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
ADDITIONAL CORPORATE OFFICER APPROVED AS TO FORM:
(if necessary per the above)
_________________________________ _________________________________ Ken Truong, Linh Nguyen, Inside Sales Assistant City Attorney

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WASTEWATER TREATMENT PLANT GRIT

RAG & SCUM HAULING AND DISPOSAL

ADVANCED CHEMICAL
TRANSPORT, INC.

DBA ACT ENVIRO
BID OPENING: August 10, 2023

BID SUMMARY

COMPACTOR
MANAGEMENT CO. ALLIED WASTE SERVICES Naman Trucking

DESCRIPTION OF WORK
ITEM
NO.

UNIT TOTAL
COST

UNIT TOTAL

COSTPRICE PRICE PRICE PRICE

PER TON PER TON PER TON PER TON
Disposal of grit, rag & scum.

Estimated fourteen hundred (1400)
tons.

Initially, this contract requires two-each
20 yard topless roll off bins.

Dependent upon the new headworks
start up the two exisiting bins will need
to be replaced with four topless 20-
yard roll off bins. The new four each 20-
yard topless roll off bins require four
wheels, one near each corner, and the
following dimensions – 4’4” X 22’9” X
8’3” to accommodate a new
1 $63.00 $88,200.00 $79.00 $110,600.00 $56.00 $78,400.00 $95.00 $133,000.00 dumpsterveyor system.

Round trip transportation of two-each
twenty (20) yard, topless containers.

Estimated one hundred forty (140)
hauls.
2 $485.00 $67,900.00 $505.00 $70,700.00 $1,500.00 $210,000.00 $1,240.00 $173,600.00 TOTAL
$156,100.00 $181,300.00 $288,400.00 $306,600.00

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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: 8 Section Name: CONSENT CALENDAR Account Number: 82-4681 File ID: 23-7895 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: September 18, 2023
SUBJECT:

Central Park Tennis Court Garage Structural Improvements – Contract RECOMMENDATION:

Adopt a Resolution to approve an alternative purchasing procedure to award a construction contract to Angeles Contractor, Inc. for structural improvements to the Central Park Tennis Court Garage in the amount of $241,870.66; 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.

BACKGROUND:

The Central Park Tennis Court Garage has served the San Mateo downtown community for over sixty years. It is a concrete structure that has 132 underground parking spaces on a single level and six tennis courts on the roof level. In 2020, waterproofing improvements were made to extend the life of the garage until 2030 that requires performing annual assessments to track seasonal movement in the structure. The assessment performed in June 2023 confirmed significant movement and identified damage to specific girder locations, cracking at columns and spalling at perimeter piers. This type of damage requires immediate attention to prevent further damage to the structure.

The construction drawings for the improvements to address the damage were developed by ZFA Structural Engineers. The scope of work involves the installation of new steel columns and repairs to cracks and spalling at various locations. The construction drawings were used as the basis for development of a fixed-price proposal utilizing a process called “job order contracting” (JOC). The JOC process includes a contract for a fixed term or maximum dollar value in which a contractor is selected based on a competitive bid to perform various and separate job orders in the future, during the life of the contract. The JOC contract serves as an "on call" contracting program that is procured through one umbrella or framework contract. The contract is competitively procured at the onset of the program using a unit price book (UPB), unit price list construction catalog, or custom list of construction prices as a basis for pricing in the procurement process. Each individual job order is then priced from that UPB and allows for rapid deployment of projects with a transparent pricing mechanism.

The JOC process is a competitive procurement method for construction services approved by the City Council by resolution on March 18, 2019, pursuant to San Mateo Municipal Code section 3.60.070(h)(3), which permits the use of procedures approved by the Council that are not set forth in the purchasing ordinance. Specifically, this process involves the development of a detailed project list, establishment of a firm price using a unit price book, and the selection of a pre- qualified construction contractor upon the City’s authorization to proceed.

In this case, a multi-step process was used to select Angeles Contractor, Inc. to perform the work, subject to Council approval. First, Sourcewell (formerly known as the National Joint Powers Alliance or NJPA) conducted a competitive proposal process to select The Gordian Group, Inc. (Gordian) to implement JOC on behalf of Sourcewell member agencies.

Second, Gordian competitively bids and administers the JOC process with the use of Gordian’s unit price book that will

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CITY OF SAN MATEO
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provide the best price to the City. This allows the City to complete required public improvements efficiently by eliminating the need to develop project specifications and eliminating solicitation of bids through a project-specific competitive bidding process. Here, Gordian used the JOC process to select Angeles Contractor, Inc., the low bidder and pre-qualified contractor selected to construct the improvement project.

With contract approval, the procurement of materials will begin in October 2023 with construction in November of 2023 and completion by January 2024. Based on the above, staff recommends award of the contract to Angeles Contractor, Inc. because of their experience and availability to perform these construction services.

BUDGET IMPACT:

There is sufficient funding available in the Downtown Parking Improvements (461001) project for this construction contract and contingency authorization.

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 existing or former use. (CEQA Guidelines Section 15301.)

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 - Proposed Resolution
Att 2 - Contract

STAFF CONTACT
Steve Wu, Project Manager II
[email protected]
(650) 522-7345

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CITY OF SAN MATEO
RESOLUTION NO. ____ (2023)

APPROVING AN ALTERNATIVE PURCHASING PROCEDURE TO AWARD A CONSTRUCTION CONTRACT TO ANGELES CONTRACTOR, INC. FOR THE CENTRAL PARK TENNIS COURT GARAGE STRUCTURAL

IMPROVEMENTS PROJECT
WHEREAS, San Mateo Municipal Code Section 3.60.070(h)(3) authorizes the City Council to approve alternative purchasing procedures upon a finding that the alternative purchasing procedure is in the best interest of the City; and
WHEREAS, Sourcewell (formerly known as NJPA) has conducted competitive bidding processes to select Gordian, Inc. (Gordian) to implement Job Order Contracting on behalf of their member agencies; and WHEREAS, the Job Order Contracting process allows for an umbrella construction contract to cover various and separate job orders during the life of the contract, and is beneficial for renovation, remodeling, or alterations where many small project tasks will arise, but the timing, type, and quantity of work are unknown; and
WHEREAS, Sourcewell and Gordian have conducted competitive bidding to select contractors to perform Job Order Contracting based on Gordian’s Unit Price Book; and WHEREAS, unit price books provide fixed unit prices used for establishing budgets for contractor services at member agencies; and
WHEREAS, use of Gordian’s Unit Price Book and contract provides a competitive price to the City and allows the City to complete required public improvements efficiently by eliminating the need to develop project specifications or solicit bids for each minor project task; and WHEREAS, the City approved the Job Order Contracting as a competitive procurement method for construction services by resolution on March 18, 2019 upon findings that the Job Order Contracting process with Gordian is in the best interests of the City; and
WHEREAS, the Central Park Tennis Court Garage Structural Improvements project is designed and documented to be priced using Gordian’s Unit Price Book; and WHEREAS, Angeles Contractor, Inc. was selected based on their experience and availability to perform construction services using the Gordian’s Unit Price Book; and WHEREAS, based on these circumstances, staff has determined that this is the best price available because companies have submitted competitive bids.

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

1. In accordance with CEQA Guidelines Section 15301, this project is categorically exempt from CEQA as an “existing facility” in that it consists of the renovation of an existing building and involves negligible or no expansion of existing or former use.

2. The Job Order Contracting process, as approved by City Council on March 18, 2019, utilizing Gordian’s contract and Unit Price Book to award a construction contract to Angeles Contractor, Inc. is in the best interests of the City because it offers the best price to the City and allows the City to complete the structural improvements at the Central Park Tennis Court Garage efficiently by eliminating the need to develop project specifications and eliminating the need for the solicitation of bids through a project-specific competitive bidding process.

3. A construction contract is approved in the amount of $241,870.66 to Angeles Contractor, Inc. for the Central Park Tennis Court Garage Structural Improvements project.

4. The Public Works Director is authorized to execute the contract on behalf of the City and issue change orders within the contingency amount.

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This document is a MODIFIED version of EJCDC® C-522, Copyright © 2016 by the National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers, or is based in part on excerpts from copyrighted EJCDC documents. Those portions of the text that originated in copyrighted EJCDC documents remain subject to the copyright.

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CONTRACT FOR CONSTRUCTION
This Contract is by and between.

OWNER CONTRACTOR
The City of San Mateo
330 West 20th Street
San Mateo, California 94403
Angeles Contractor, Inc.
783 Phillips Drive
City of Industry, CA 91748
Owner and Contractor hereby agree as follows:

ARTICLE 1 - THE WORK

1.01 Work
A. Work includes all labor, materials, equipment, services, and documentation necessary to construct the Project defined herein. The Work may include related services such as testing, start-up, and commissioning, all as required by the Contract Documents.

B. The Contractor shall complete all Work as specified or indicated in the Contract Documents.

The Project is generally described as follows:

1.Central Park Tennis Court Garage Structural Improvements which includes site barriers; demolition and disposal; new structural columns; cracking and spalling repairs; painting; inspection; testing and closeout.

2. The Site of the Work includes designated work areas described in greater detail in the Contract Documents but generally located at 50 E. 5th Avenue, San Mateo, CA 94401.

ARTICLE 2 - DEFINITIONS AND TERMINOLOGY

2.01 Defined Terms
A. Wherever used in the Bidding Requirements or Contract Documents, a term printed with initial capital letters, including the term’s singular and plural forms, will have the meaning indicated in the definitions below. In addition to terms specifically defined, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms.

1. Architect:

See Engineer.

2. Constituent of Concern—Asbestos, petroleum, radioactive materials, polychlorinated biphenyls (PCBs), hazardous waste, and any substance, product, waste, or other material of any nature whatsoever that is or becomes listed, regulated, or addressed pursuant to (a) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§9601 et seq. (“CERCLA”); (b) the Hazardous Materials Transportation Act, 49 U.S.C. §§5501 et seq.; (c) the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq. (“RCRA”); (d) the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq.; (e) the Clean Water Act, 33 U.S.C. §§1251 et seq.; (f) the Clean Air Act, 42 U.S.C. §§7401 et seq.; or (g) any other federal, state, or local statute, law,

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rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material.

3. Engineer:
a. ZFA Structural Engineers, 1390 El Camino Real, Suite 100, San Carlos, CA 94070.

4. Hazardous Environmental Condition— The presence at the Site of Constituents of Concern in such quantities or circumstances that may present a danger to persons or property exposed thereto. The presence at the Site of materials that are necessary for the execution of the Work, or that are to be incorporated in the Work, and that are controlled and contained pursuant to industry practices, Laws and Regulations, and the requirements of the Contract, does not establish a Hazardous Environmental Condition.

5. Resident Project Representative - The authorized representative of Owner assigned to assist Owner at the Site. As used herein, the term Resident Project Representative or “RPR” includes any assistants or field staff of Resident Project Representative. The RPR for this project is:
a. Steve Wu, City of San Mateo

2.02 Terminology
A. The words and terms discussed in the following paragraphs are not defined but, when used in the Bidding Requirements or Contract Documents, have the indicated meaning.

B. Intent of Certain Terms or Adjectives:

1. The Contract Documents include the terms “as allowed,” “as approved,” “as ordered,” “as directed” or terms of like effect or import to authorize an exercise of professional judgment by Owner, Engineer, or Architect. In addition, the adjectives “reasonable,” “suitable,” “acceptable,” “proper,” “satisfactory,” or adjectives of like effect or import are used to describe an action or determination of Engineer as to the Work. It is intended that such exercise of professional judgment, action, or determination will be solely to evaluate, in general, the Work for compliance with the information in the Contract Documents and with the design concept of the Project as a functioning whole as shown or indicated in the Contract Documents (unless there is a specific statement indicating otherwise). The use of any such term or adjective is not intended to and shall not be effective to assign to Engineer any duty or authority to supervise or direct the performance of the Work, or any duty or authority to undertake responsibility contrary to the provisions of any provision of the Contract Documents.

C. Day:

1. The word “day” means a calendar day of 24 hours measured from midnight to the next midnight.

D. Defective:

1. The word “defective,” when modifying the word “Work,” refers to Work that is unsatisfactory, faulty, or deficient in that it:
a. does not conform to the Contract Documents; or

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b. does not meet the requirements of any applicable inspection, reference standard, test, or approval referred to in the Contract Documents; or c. has been damaged prior to Engineer’s recommendation of final payment (unless responsibility for the protection thereof has been assumed by Owner at Substantial Completion.

E. Furnish, Install, Perform, Provide:

1. The word “furnish,” when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition.

2. The word “install,” when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use.

3. The words “perform” or “provide,” when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use.

4. If the Contract Documents establish an obligation of Contractor with respect to specific services, materials, or equipment, but do not expressly use any of the four words “furnish,” “install,” “perform,” or “provide,” then Contractor shall furnish and install said services, materials, or equipment complete and ready for intended use.

F. Unless stated otherwise in the Contract Documents, words or phrases that have a well- known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning.

2.03 Contract Documents Defined
A. The Contract Documents consist of the following documents:

1. This Contract.

2. Performance bond.

3. Payment bond.

4. Exhibits to this Contract (enumerated as follows):
a. Exhibit A - Contractor’s Proposal
b. Exhibit B – Insurance Requirements for Construction Contracts.

5. National Joint Powers Alliance - Book 2: IQCC Standard Terms and Conditions and Contract General Conditions.

6. National Joint Powers Alliance - Book 3: Task Catalog.

7. National Joint Powers Alliance Book 4: Technical Specifications.

8. The following which may be delivered or issued on or after the Effective Date of the Contract:
a. Work Change Directives.

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b. Change Orders.
c. Field Orders.

ARTICLE 3 - CONTRACT DOCUMENTS

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

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

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

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

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

3.02 Reporting and Resolving Discrepancies
A. Reporting Discrepancies:

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

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

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3. Contractor shall not be liable to Owner or Engineer for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless Contractor had actual knowledge thereof.

B. Resolving Discrepancies:

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

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

3. In the event of a conflict that cannot be resolved by interpreting the Contract Documents as a single, integrated document and giving effect to each provision therein, the Contract Document higher in precedence shall control and supersede the Contract Documents lower in precedence in accordance with the following listing arranged from the highest to the lowest in precedence:
a. Change Order.
b. Addenda.
c. Contract.
d. Technical Specifications included as an Exhibit to this Contract. e. Drawings included as an Exhibit to this Contract.
f. Owner Standard Specifications.
g. Owner Standard Drawings.
h. National Joint Powers Alliance Book 4: Technical Specifications. i. National Joint Powers Alliance - Book 2: IQCC Standard Terms and Conditions and Contract General Conditions.
j. The provisions of any standard specification, manual, reference standard, or code, or the instruction of any Supplier (whether or not specifically incorporated by reference as a Contract Document).
k. The provisions of any Laws or Regulations applicable to the performance of the Work (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation).
l. Notice to Bidder.

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m. Instruction to Bidder.

ARTICLE 4 - CONTRACT TIMES

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

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

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

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

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

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

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

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

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ARTICLE 5 - CONTRACT PRICE

5.01 Payment
A. Owner shall pay Contractor in accordance with the Contract Documents, the lump sum amount of $241,870.66 for all Work.

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

ARTICLE 6 - BONDS AND INSURANCE

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

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

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

ARTICLE 7 - CONTRACTOR’S RESPONSIBILITIES

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

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

C. Contractor shall at all times maintain good discipline and order at the Site.

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

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

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

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

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

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

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

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

7.07 Laws and Regulations; Taxes
A. Contractor shall give all notices required by and shall comply with all local, state, and federal Laws and Regulations applicable to the performance of the Work. Except where otherwise

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expressly required by applicable Laws and Regulations, neither Owner nor RPR shall be responsible for monitoring Contractor’s compliance with any Laws or Regulations.

B. Contractor shall bear all resulting costs and losses, and shall indemnify and hold harmless Owner and RPR, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them from and against all claims, costs, losses, and damages if Contractor performs any Work or takes any other action knowing or having reason to know that it is contrary to Laws or Regulations.

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

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

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

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

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

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

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

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

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

Contractor shall forfeit as a penalty to Owner the sum of $25.00 for each laborer, workman,

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or mechanic employed in the execution of this contract by Contractor, or by any subcontractor, for each calendar day during which such laborer, workman, or mechanic is required or permitted to labor more than eight hours in any calendar day and 40 hours in any one calendar week in violation of the provisions of Section 1810 and 1816, inclusive, of the Labor Code of the State of California.

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

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

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

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

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

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

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

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

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

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

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

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

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

Contractor shall give RPR prompt written notice if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby or are required as a result thereof. If RPR determines that a change in the Contract Documents is required because of the action taken by Contractor in response to such an emergency, a Work Change Directive or Change Order will be issued.

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

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

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

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

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

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

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

H. Shop drawings are not Contract Documents.

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

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

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7.13 Indemnification
A. To the fullest extent permitted by Laws and Regulations, and in addition to any other obligations of Contractor under the Contract or otherwise, Contractor shall indemnify and hold harmless Owner and RPR, and the officials, employees, and agents, of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of RPR, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to the performance of the Work. Contractor will defend Owner, its elected and appointed officials, employees, and agents against any such claims. However, this provision does not apply to claims, loss, liability, damage, or expense arising from the sole negligence or willful misconduct of the Owner
ARTICLE 8 - OWNER’S RESPONSIBILITIES

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

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

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

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

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

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

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

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

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

ARTICLE 9 - RPR’S STATUS DURING CONSTRUCTION

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

B. Neither RPR’s authority or responsibility under this Article 9 or under any other provision of the Contract, nor any decision made by RPR in good faith either to exercise or not exercise

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such authority or responsibility or the undertaking, exercise, or performance of any authority or responsibility by RPR, shall create, impose, or give rise to any duty in contract, tort, or otherwise owed by RPR to Contractor, any subcontractor, any supplier, any other individual or entity, or to any surety for or employee or agent of any of them.

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

RPR will not be required to make exhaustive or continuous inspections on the Site to check the quality or quantity of the Work.

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

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

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

ARTICLE 10 - CHANGES IN THE WORK

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

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

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

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

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

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

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ARTICLE 11 - DIFFERING SUBSURFACE OR PHYSICAL CONDITIONS

11.01 Differing Conditions Process
A. If Contractor believes that any subsurface or physical condition including but not limited to utilities or other underground facilities that are uncovered or revealed at the Site either differs materially from that shown or indicated in the Contract Documents or is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in Work of the character provided for in the Contract Documents then Contractor shall, promptly after becoming aware thereof and before further disturbing the subsurface or physical conditions or performing any Work in connection therewith (except in an emergency), notify Owner and RPR in writing about such condition. Contractor shall not further disturb such condition or perform any Work in connection therewith (except with respect to an emergency) until receipt of a written statement permitting Contractor to do so.

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

1. Review the subsurface or physical condition in question;

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

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

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

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

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

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

ARTICLE 12 - CLAIMS AND DISPUTE RESOLUTION

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

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

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

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

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

12.02 Mediation
Should any dispute arise out of this Contract, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by the American Arbitration Association, the California State Board of Mediation and Conciliation, or other agreed-upon service. The mediator shall be selected by a blind draw. The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reach by the parties but not more than 60 days, unless the maximum time is extended by the parties.

ARTICLE 13 - TESTS AND INSPECTIONS; CORRECTION OF DEFECTIVE WORK

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

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

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

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

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

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

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

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

F. If the Work is defective or Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or fails to perform the Work in such a way that the completed Work

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will conform to the Contract Documents, then Owner may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated.

ARTICLE 14 - PAYMENTS TO CONTRACTOR

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

14.02 Applications for Payments:

A. Contractor shall submit an application for payment in a form acceptable to the RPR, no more frequently than monthly, to RPR. Applications for payment will be prepared and signed by Contractor. Contractor shall provide supporting documentation required by the Contract Documents. Payment will be paid for Work completed as of the date of the application for payment.

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

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

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

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

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

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

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

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

C. If RPR considers the Work substantially complete or upon resolution of all reasons for non- issuance of a certificate identified in 14.06.B, RPR will deliver to Owner a certificate of substantial completion which shall fix the date of substantial completion and include a punch list of items to be completed or corrected before final payment.

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

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

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

1. All documentation called for in the Contract Documents;

2. Consent of the surety to final payment;

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

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

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

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

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

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

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ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION

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

15.02 Owner May Terminate for Cause
A. Contractor’s failure to perform the Work in accordance with the Contract Documents or other failure to comply with a material term of the Contract Documents will constitute a default by Contractor and justify termination for cause.

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

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

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

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

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

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

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

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

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

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

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

ARTICLE 16 - CONTRACTOR’S REPRESENTATIONS

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

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

2. Contractor has visited the Site, conducted a thorough visual examination of the Site and adjacent areas, and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work.

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

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

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

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

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

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

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

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ARTICLE 17 - MISCELLANEOUS

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

17.02 Limitation of Damages
A. Neither Owner, RPR, nor any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, shall be liable to Contractor for any claims, costs, losses, or damages sustained by Contractor on or in connection with any other project or anticipated project.

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

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

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

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

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

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

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

17.10 Waiver
A. None of the following shall operate as a waiver of any provision of the contract documents, or of any power herein reserved by the Owner, or any right to damages herein provided: 1) inspection by the Owner or its authorized agents or representatives; 2) any order or certificate for payment, or any payment for, or acceptance of the whole or any party of the work by the Owner; 3) an extension of time; or 4) any position taken by the Owner or its authorized agents or representatives.

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

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

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

OWNER: CONTRACTOR:

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

APPROVED AS TO FORM
Linh Nguyen
Assistant City Attorney

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EXHIBIT A
CONTRACTOR’S PROPOSAL

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EXHIBIT B

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

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

18.02 Coverage shall be at least as broad as:

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

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

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

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

E.Surety Bonds as described below.

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

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

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

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

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policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.

ARTICLE 19 - OTHER INSURANCE PROVISIONS

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

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

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

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

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

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

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

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

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

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

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4. A copy of the claims reporting requirements must be submitted to the City for review.

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

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

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

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

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

19.08 Surety Bonds.

A. Contractor shall provide the following Surety Bonds:

1. Performance Bond

2. Payment Bond

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

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

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19.09 Special Risks or Circumstances.

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

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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: 9 Section Name: CONSENT CALENDAR Account Number: 10-4691 File ID: 23-7898 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: September 18, 2023
SUBJECT:

Transit Center Restroom Remodel Project – Appropriation and Contract RECOMMENDATION:

Adopt a Resolution to appropriate $150,000 from the Capital Project Fund reserve to fund the Transit Center Restroom Remodel Project and approve an alternative purchasing procedure to award a construction contract to Angeles Contractor, Inc. for improvements to the restrooms located at the Transit Center in the amount of $121,133.76; establish a contingency reserve in the amount of $12,000; and authorize the Public Works Director to execute the contract in substantially the form presented and issue change orders within the contingency amount.

BACKGROUND:

In May 2023, the City Council directed Public Works, using the General Fund, to open a restroom for public use as part of the Fiscal Year (FY) 2022-23 City Council Objectives strategic initiative. Public Works identified options to open a restroom within an existing City facility which includes the costs associated to clean and maintain safety and security. Public Works staff evaluated and concluded that the most feasible option for a public restroom is to be located within the Transit Center and anticipates that reopening the restrooms at this location will result in call-outs for clogged drains, repair and replacement of fixtures as well as graffiti abatement. The approximate costs for daily cleaning of the restrooms are approximately $1,500 per month for each restroom for total of $36,000 per year.

The Transit Center was built in 1999 and has above ground parking, two separate structures that are connected by a continuous roof structure and an underground garage. The facility serves Caltrain patrons and has spaces for restaurant and office tenants. The structure includes public restrooms that consist of two single-occupancy facilities containing a standard toilet and lavatory. The restrooms are currently intended to separately serve males and females. After the evaluation of the existing restroom conditions, it was found that the restrooms do not meet clearance requirements consistent with current building code. In addition, the public restroom facilities were previously closed due to consistent vandalism and have been locked and unavailable to the public for the past eight years.

The construction drawings for the improvements were developed by Public Works Facilities. The scope of work involves the relocation and replacement of plumbing fixtures and associated appurtenances, installing lighting and ventilation, re- setting the doors, re-sloping the floor, and installing new wall panels. The construction drawings were used as the basis for development of a fixed-price proposal utilizing a process called “job order contracting” (JOC). The JOC process includes a contract for a fixed term or maximum dollar value in which a contractor is selected based on a competitive bid to perform various and separate job orders in the future, during the life of the contract. The JOC contract serves as an “on call” contracting program that is procured through one umbrella or framework contract. The contract is competitively procured at the onset of the program using a unit price book (UPB), unit price list construction catalog, or custom list of construction prices as a basis for pricing in the procurement process. Each individual job order is then priced from that UPB and allows for rapid deployment of projects with a transparent pricing mechanism.

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CITY OF SAN MATEO
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The JOC process is a competitive procurement method for construction services approved by the City Council by resolution on March 18, 2019, pursuant to San Mateo Municipal Code section 3.60.070(h)(3), which permits the use of procedures approved by the Council that are not set forth in the purchasing ordinance. Specifically, this process involves the development of a detailed project list, establishment of a firm price using a unit price book, and the selection of a pre- qualified construction contractor upon the City’s authorization to proceed.

Second, Gordian competitively bids and administers the JOC process with the use of Gordian’s unit price book that will provide the best price to the City. This allows the City to complete required public improvements efficiently by eliminating the need to develop project specifications and eliminating solicitation of bids through a project-specific competitive bidding process. Here, Gordian used the JOC process to select Angeles Contractor, Inc., the low bidder, and pre-qualified contractor selected to construct the improvement project.

With contract approval, the procurement of materials will begin in October 2023 with construction in November of 2023 and completion by April 2024. Based on the above, staff recommends award of the contract to Angeles Contractor, Inc. because of their experience and availability to perform these construction services.

BUDGET IMPACT:

The Capital Project Fund has a reserve, which is comprised of the unspent fund balance from completed CIP Projects originally funded by the General Fund. There are sufficient funds from this reserve to cover the appropriation of $150,000.

The budget includes the costs for the construction contract with Angeles Contractor, Inc., contingency, and the staff time to manage the Project.

ENVIRONMENTAL DETERMINATION:

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 - Proposed Resolution
Att 2 - Contract

STAFF CONTACT
Steve Wu, Project Manager II
[email protected]
(650) 522-7345

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CITY OF SAN MATEO
RESOLUTION NO. ____ (2023)

AUTHORIZING AN APPROPRIATION IN THE AMOUNT OF $150,000 FROM THE CAPITAL PROJECT FUND

RESERVE AND APPROVING AN ALTERNATIVE PURCHASING PROCEDURE FOR THE TRANSIT CENTER

RESTROOM REMODEL PROJECT
WHEREAS, the City Council recognizes the need to remodel the restrooms at the Transit Center to be compliant with the current applicable codes and support public needs in the City of San Mateo; and WHEREAS, funding will be needed to remodel the restrooms at the Transit Center; and WHEREAS, sufficient funds are available in the unassigned fund balance from the General Fund to satisfy the funding needs; and
WHEREAS, San Mateo Municipal Code Section 3.60.070(h)(3) authorizes the City Council to approve alternative purchasing procedures upon a finding that the alternative purchasing procedure is in the best interest of the City; and
WHEREAS, Sourcewell (formerly known as NJPA) has conducted competitive bidding processes to select Gordian, Inc. (Gordian) to implement Job Order Contracting on behalf of their member agencies; and WHEREAS, the Job Order Contracting process allows for an umbrella construction contract to cover various and separate job orders during the life of the contract, and is beneficial for renovation, remodeling, or alterations where many small project tasks will arise, but the timing, type, and quantity of work are unknown; and
WHEREAS, Sourcewell and Gordian have conducted competitive bidding to select contractors to perform Job Order Contracting based on Gordian’s Unit Price Book; and WHEREAS, unit price books provide fixed unit prices used for establishing budgets for contractor services at member agencies; and
WHEREAS, use of Gordian’s Unit Price Book and contract provides a competitive price to the City and allows the City to complete required public improvements efficiently by eliminating the need to develop project specifications or solicit bids for each minor project task; and WHEREAS, the City approved the Job Order Contracting as a competitive procurement method for construction services by resolution on March 18, 2019 upon findings that the Job Order Contracting process with Gordian is in the best interests of the City; and
WHEREAS, the Transit Center Restroom Remodel project is designed and documented to be priced using Gordian’s Unit Price Book; and

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WHEREAS, Angeles Contractor, Inc. was selected based on their experience and availability to perform construction services using the Gordian’s Unit Price Book; and WHEREAS, based on these circumstances, staff has determined that this is the best price available because companies have submitted competitive bids.

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

2. An appropriation of $150,000 from the Capital Project Fund reserve to fund the Transit Center Restroom Remodel (46F038) project is authorized.

3. The Job Order Contracting process, as approved by City Council on March 18, 2019, utilizing Gordian’s contract and Unit Price Book to award a construction contract to Angeles Contractor, Inc. is in the best interests of the City because it offers the best price to the City and allows the City to complete the restroom remodel at the Transit Center efficiently by eliminating the need to develop project specifications and eliminating the need for the solicitation of bids through a project-specific competitive bidding process.

4. A construction contract is approved in the amount of $121,133.76 to Angeles Contractor, Inc. for the Transit Center Restroom Remodel (46F038) project.

5. The Public Works Director is authorized to execute the contract on behalf of the City and issue change orders within the contingency amount.

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CONTRACT FOR CONSTRUCTION
This Contract is by and between.

ARTICLE 1 - THE WORK

B. The Contractor shall complete all Work as specified or indicated in the Contract Documents.

The Project is generally described as follows:

1.Transit Center Restroom Remodel Project which includes site barriers; demolition and disposal; new fixtures; new lighting; new doors, new ventilation; new wall panels; new floor slope; painting; inspection; testing and closeout.

2. The Site of the Work includes designated work areas described in greater detail in the Contract Documents but generally located at 1 Transit Center Way, San Mateo, CA 94401.

ARTICLE 2 - DEFINITIONS AND TERMINOLOGY

1. Architect:

See Resident Project Representative

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Air Act, 42 U.S.C. §§7401 et seq.; or (g) any other federal, state, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material.

3. Engineer:

See Resident Project Representative

2.02 Terminology
A. The words and terms discussed in the following paragraphs are not defined but, when used in the Bidding Requirements or Contract Documents, have the indicated meaning.

B. Intent of Certain Terms or Adjectives:

C. Day:

1. The word “day” means a calendar day of 24 hours measured from midnight to the next midnight.

D. Defective:

1. The word “defective,” when modifying the word “Work,” refers to Work that is unsatisfactory, faulty, or deficient in that it:
a. does not conform to the Contract Documents; or

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b. does not meet the requirements of any applicable inspection, reference standard, test, or approval referred to in the Contract Documents; or c. has been damaged prior to Engineer’s recommendation of final payment (unless responsibility for the protection thereof has been assumed by Owner at Substantial Completion.

E. Furnish, Install, Perform, Provide:

2.03 Contract Documents Defined
A. The Contract Documents consist of the following documents:

1. This Contract.

2. Performance bond.

3. Payment bond.

4. Exhibits to this Contract (enumerated as follows):
a. Exhibit A - Contractor’s Proposal
b. Exhibit B – Insurance Requirements for Construction Contracts.

5. National Joint Powers Alliance - Book 2: IQCC Standard Terms and Conditions and Contract General Conditions.

6. National Joint Powers Alliance - Book 3: Task Catalog.

7. National Joint Powers Alliance Book 4: Technical Specifications.

8. The following which may be delivered or issued on or after the Effective Date of the Contract:
a. Work Change Directives.

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b. Change Orders.
c. Field Orders.

ARTICLE 3 - CONTRACT DOCUMENTS

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

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

3.02 Reporting and Resolving Discrepancies
A. Reporting Discrepancies:

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3. Contractor shall not be liable to Owner or Engineer for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless Contractor had actual knowledge thereof.

B. Resolving Discrepancies:

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m. Instruction to Bidder.

ARTICLE 4 - CONTRACT TIMES

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

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ARTICLE 5 - CONTRACT PRICE

5.01 Payment
A. Owner shall pay Contractor in accordance with the Contract Documents, the lump sum amount of $121,133.76 for all Work.

ARTICLE 6 - BONDS AND INSURANCE

ARTICLE 7 - CONTRACTOR’S RESPONSIBILITIES

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

C. Contractor shall at all times maintain good discipline and order at the Site.

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

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

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expressly required by applicable Laws and Regulations, neither Owner nor RPR shall be responsible for monitoring Contractor’s compliance with any Laws or Regulations.

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

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

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

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

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

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

Contractor shall forfeit as a penalty to Owner the sum of $25.00 for each laborer, workman,

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or mechanic employed in the execution of this contract by Contractor, or by any subcontractor, for each calendar day during which such laborer, workman, or mechanic is required or permitted to labor more than eight hours in any calendar day and 40 hours in any one calendar week in violation of the provisions of Section 1810 and 1816, inclusive, of the Labor Code of the State of California.

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

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

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

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

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

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

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

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

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

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

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

H. Shop drawings are not Contract Documents.

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

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

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

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

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

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

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

ARTICLE 9 - RPR’S STATUS DURING CONSTRUCTION

B. Neither RPR’s authority or responsibility under this Article 9 or under any other provision of the Contract, nor any decision made by RPR in good faith either to exercise or not exercise

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such authority or responsibility or the undertaking, exercise, or performance of any authority or responsibility by RPR, shall create, impose, or give rise to any duty in contract, tort, or otherwise owed by RPR to Contractor, any subcontractor, any supplier, any other individual or entity, or to any surety for or employee or agent of any of them.

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

RPR will not be required to make exhaustive or continuous inspections on the Site to check the quality or quantity of the Work.

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

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

ARTICLE 10 - CHANGES IN THE WORK

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

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

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ARTICLE 11 - DIFFERING SUBSURFACE OR PHYSICAL CONDITIONS

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

1. Review the subsurface or physical condition in question;

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

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

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

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

ARTICLE 12 - CLAIMS AND DISPUTE RESOLUTION

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

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

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

ARTICLE 13 - TESTS AND INSPECTIONS; CORRECTION OF DEFECTIVE WORK

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

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

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

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

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

F. If the Work is defective or Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or fails to perform the Work in such a way that the completed Work

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will conform to the Contract Documents, then Owner may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated.

ARTICLE 14 - PAYMENTS TO CONTRACTOR

14.02 Applications for Payments:

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

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

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

1. All documentation called for in the Contract Documents;

2. Consent of the surety to final payment;

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

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

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

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

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

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ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION

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

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

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

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

ARTICLE 16 - CONTRACTOR’S REPRESENTATIONS

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

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

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

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

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

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San Mateo City CouncilSeptember 18, 2023

San Mateo City Council
September 18, 2023