2.5 Lessee as Prior Owner/Occupant. The warranties made by Lessor in Paragraph 2 shall be of no force or effect if immediately prior to the Start Date Lessee was the owner or occupant of the Premises. In such event, Lessee shall be responsible for any necessary corrective work.
2.6 Vehicle Parking. Lessee shall be entitled to use the number of Parking Spaces specified in Paragraph 1.2(b) on those portions of the Common Areas designated from time to time by Lessor for parking. Lessee shall not use more parking spaces than said number. Said parking spaces shall be used for parking by vehicles no larger than full-size passenger automobiles or pick-up trucks, herein called "Permitted Size Vehicles." Lessor may regulate the loading and unloading of vehicles by adopting Rules and Regulations as provided in Paragraph 2.9. No vehicles other than Permitted Size Vehicles may be parked in the Common Area without the prior written permission of Lessor. In addition:
(a) Lessee shall not permit or allow any vehicles that belong to or are controlled by Lessee or Lessee's employees, suppliers, shippers, customers, contractors or invitees to be loaded, unloaded, or parked in areas other than those designated by Lessor for such activities. (b) Lessee shall not service or store any vehicles in the Common Areas. (c) If Lessee permits or allows any of the prohibited activities described in this Paragraph 2.6, then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.7 Common Areas - Definition. The term "Common Areas" is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Project and interior utility raceways and installations within the Unit that are provided and designated by the Lessor from time to time for the general non-exclusive use of Lessor, Lessee and other tenants of the Project and their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas, loading and unloading areas, trash areas, roofs, roadways, walkways, driveways and landscaped areas.
2.8 Common Areas - Lessee's Rights. Lessor grants to Lessee, for the benefit of Lessee and its employees, suppliers, shippers, contractors, customers and invitees, during the term of this Lease, the non-exclusive right to use, in common with others entitled to such use, the Common Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by Lessor under the terms hereof or under the terms of any rules and regulations or restrictions governing the use of the Project. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas. Any such storage shall be permitted only by the prior written consent of Lessor or Lessor's designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur, then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.9 Common Areas - Rules and Regulations. Lessor or such other person(s) as Lessor may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and regulations ("Rules and Regulations") for the management, safety, care, and cleanliness of the grounds, the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or tenants of the Building and the Project and their invitees. Lessee agrees to abide by and conform to all such Rules and Regulations, and shall use its best efforts to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform. Lessor shall not be responsible to Lessee for the non-compliance with said Rules and Regulations by other tenants of the Project.
2.10 Common Areas - Changes. Lessor shall have the right, in Lessor's sole discretion, from time to time:
(a) To make changes to the Common Areas, including, without limitation, changes in the location, size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways and utility raceways; (b) To close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains available; (c) To designate other land outside the boundaries of the Project to be a part of the Common Areas; (d) To add additional buildings and improvements to the Common Areas; (e) To use the Common Areas while engaged in making additional improvements, repairs or alterations to the Project, or any portion thereof; and (f) To do and perform such other acts and make such other changes in, to or with respect to the Common Areas and Project as Lessor may, in the exercise of sound business judgment, deem to be appropriate.
3. Term.
3.1 Term. The Commencement Date, Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3.
3.2 Early Possession. Any provision herein granting Lessee Early Possession of the Premises is subject to and conditioned upon the Premises being available for such possession prior to the Commencement Date. Any grant of Early Possession only conveys a non-exclusive right to occupy the Premises. If Lessee totally or partially occupies the Premises prior to the Commencement Date, the obligation to pay Base Rent shall be abated for the period of such Early Possession. All other terms of this Lease (including but not limited to the obligations to pay Lessee's Share of Common Area Operating Expenses, Real Property Taxes and insurance premiums and to maintain the Premises) shall be in effect during such period. Any such Early Possession shall not affect the Expiration Date.
3.3 Delay In Possession. Lessor agrees to use commercially reasonable efforts to deliver exclusive possession of the Premises to Lessee by the Commencement Date. If, despite said efforts, Lessor is unable to deliver possession by such date, Lessor shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease or change the Expiration Date. Lessee shall not, however, be obligated to pay Rent or perform its other obligations until Lessor delivers possession of the Premises and any period of rent abatement that Lessee would otherwise have enjoyed shall run from the date of delivery of possession and continue for a period equal to what Lessee would otherwise have enjoyed under the terms hereof, but minus any days of delay caused by the acts or omissions of Lessee. If possession is not delivered within 60 days after the Commencement Date, as the same may be extended under the terms of any Work Letter executed by Parties, Lessee may, at its option, by notice in writing within 10 days after the end of such 60 day period, cancel this Lease, in which event the Parties shall be discharged from all obligations hereunder. If such written notice is not received by Lessor within said 10 day period, Lessee's right to cancel shall terminate. If possession of the Premises is not delivered within 120 days after the Commencement Date, this Lease shall terminate unless other agreements are reached between Lessor and Lessee, in writing.
3.4 Lessee Compliance. Lessor shall not be required to tender possession of the Premises to Lessee until Lessee complies with its obligation to provide evidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lessee shall be required to perform all of its obligations under this Lease from and after the Start Date, including the payment of Rent, notwithstanding Lessor's election to withhold possession pending receipt of such evidence of insurance. Further, if Lessee is required to perform any other conditions prior to or concurrent with the Start Date, the Start Date shall occur but Lessor may elect to withhold possession until such conditions are satisfied.
4. Rent.
4.1. Rent Defined. All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent ("Rent").
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4.2 Payment. Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States, without offset or deduction (except as specifically permitted in this Lease), on or before the day on which it is due. All monetary amounts shall be rounded to the nearest whole dollar. In the event that any statement or invoice prepared by Lessor is inaccurate such inaccuracy shall not constitute a waiver and Lessee shall be obligated to pay the amount set forth in this Lease. Rent for any period during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. Payment of Rent shall be made to Lessor at its address stated herein or to such other persons or place as Lessor may from time to time designate in writing.
Acceptance of a payment which is less than the amount then due shall not be a waiver of Lessor's rights to the balance of such Rent, regardless of Lessor's endorsement of any check so stating. In the event that any check, draft, or other instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25 in addition to any Late Charge to compensate Lessor for additional time and expenses incurred in handling the dishonored payment and Lessor, at its option, may require all future Rent be paid by cashier's check. Payments will be applied first to accrued late charges and attorney's fees, second to accrued interest, then to Base Rent and Common Area Operating Expenses, and any remaining amount to any other outstanding charges or costs.
5. Security Deposit. Lessee shall deposit with Lessor upon execution hereof the Security Deposit as security for Lessee's faithful performance of its obligations under this Lease. If Lessee fails to pay Rent, or otherwise Defaults under this Lease, Lessor may use, apply or retain all or any portion of said Security Deposit for the payment of any amount already due Lessor, for Rents which will be due in the future, and/ or to reimburse or compensate Lessor for any liability, expense, loss or damage which Lessor may suffer or incur by reason thereof. If Lessor uses or applies all or any portion of the Security Deposit, Lessee shall within 10 days after written request therefor deposit monies with Lessor sufficient to restore said Security Deposit to the full amount required by this Lease. If the Base Rent increases during the term of this Lease, Lessee shall, upon written request from Lessor, deposit additional monies with Lessor so that the total amount of the Security Deposit shall at all times bear the same proportion to the increased Base Rent as the initial Security Deposit bore to the initial Base Rent. Should the Agreed Use be amended to accommodate a material change in the business of Lessee or to accommodate a sublessee or assignee, Lessor shall have the right to increase the Security Deposit to the extent necessary, in Lessor's reasonable judgment, to account for any increased wear and tear that the Premises may suffer as a result thereof. If a change in control of Lessee occurs during this Lease and following such change the financial condition of Lessee is, in Lessor's reasonable judgment, significantly reduced, Lessee shall deposit such additional monies with Lessor as shall be sufficient to cause the Security Deposit to be at a commercially reasonable level based on such change in financial condition. Lessor shall not be required to keep the Security Deposit separate from its general accounts. Within 90 days after the expiration or termination of this Lease, Lessor shall return that portion of the Security Deposit not used or applied by Lessor. Lessor shall upon written request provide Lessee with an accounting showing how that portion of the Security Deposit that was not returned was applied. No part of the Security Deposit shall bear interest or be considered prepayment for any monies to be paid by Lessee under this Lease. THE SECURITY DEPOSIT SHALL NOT BE USED BY LESSEE IN LIEU OF PAYMENT OF THE LAST MONTH'S RENT.
6. Use.
6.1 Use. Lessee shall use and occupy the Premises only for the Agreed Use, or any other legal use which is reasonably comparable thereto, and for no other purpose. Lessee shall not use or permit the use of the Premises in a manner that is unlawful, creates damage, waste or a nuisance, or that disturbs occupants of or causes damage to neighboring premises or properties. Other than guide, signal and seeing eye dogs, Lessee shall not keep or allow in the Premises any pets, animals, birds, fish, or reptiles. Lessor shall not unreasonably withhold or delay its consent to any written request for a modification of the Agreed Use, so long as the same will not impair the structural integrity of the Building or the mechanical or electrical systems therein, and/or is not significantly more burdensome to the Project. If Lessor elects to withhold consent, Lessor shall within 7 days after such request give written notification of same, which notice shall include an explanation of Lessor's objections to the change in the Agreed Use.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term "Hazardous Substance" as used in this Lease shall mean any product, substance, or waste whose presence, use, manufacture, disposal, transportation, or release, either by itself or in combination with other materials expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the environment or the Premises, (ii) regulated or monitored by any governmental authority, or (iii) a basis for potential liability of Lessor to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substances shall include, but not be limited to, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, by-products or fractions thereof. Lessee shall not engage in any activity in or on the Premises which constitutes a Reportable Use of Hazardous Substances without the express prior written consent of Lessor and timely compliance (at Lessee's expense) with all Applicable Requirements. "Reportable Use" shall mean (i) the installation or use of any above or below ground storage tank, (ii) the generation, possession, storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, notice, registration or business plan is required to be filed with, any governmental authority, and/or (iii) the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises or neighboring properties. Notwithstanding the foregoing, Lessee may use any ordinary and customary materials reasonably required to be used in the normal course of the Agreed Use, ordinary office supplies (copier toner, liquid paper, glue, etc.) and common household cleaning materials, so long as such use is in compliance with all Applicable Requirements, is not a Reportable Use, and does not expose the Premises or neighboring property to any meaningful risk of contamination or damage or expose Lessor to any liability therefor. In addition, Lessor may condition its consent to any Reportable Use upon receiving such additional assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the environment against damage, contamination, injury and/or liability, including, but not limited to, the installation (and removal on or before Lease expiration or termination) of protective modifications (such as concrete encasements) and/or increasing the Security Deposit. (b) Duty to Inform Lessor. If Lessee knows, or has reasonable cause to believe, that a Hazardous Substance has come to be located in, on, under or about the Premises, other than as previously consented to by Lessor, Lessee shall immediately give written notice of such fact to Lessor, and provide Lessor with a copy of any report, notice, claim or other documentation which it has concerning the presence of such Hazardous Substance. (c) Lessee Remediation. Lessee shall not cause or permit any Hazardous Substance to be spilled or released in, on, under, or about the Premises (including through the plumbing or sanitary sewer system) and shall promptly, at Lessee's expense, comply with all Applicable Requirements and take all investigatory and/or remedial action reasonably recommended, whether or not formally ordered or required, for the cleanup of any contamination of, and for the maintenance, security and/or monitoring of the Premises or neighboring properties, that was caused or materially contributed to by Lessee, or pertaining to or involving any Hazardous Substance brought onto the Premises during the term of this Lease, by or for Lessee, or any third party. (d) Lessee Indemnification. Lessee shall indemnify, defend and hold Lessor, its agents, employees, lenders and ground lessor, if any, harmless from and against any and all loss of rents and/or damages, liabilities, judgments, claims, expenses, penalties, and attorneys' and consultants' fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Lessee, or any third party (provided, however, that Lessee shall have no liability under this Lease with respect to underground migration of any Hazardous Substance under the Premises from areas outside of the Project not caused or contributed to by Lessee). Lessee's obligations shall include, but not be limited to, the effects of any contamination or injury to person, property or the environment created or suffered by Lessee, and the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease. No termination, cancellation or release agreement entered into by Lessor and Lessee shall release Lessee from its obligations under this Lease with respect to Hazardous Substances,
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unless specifically so agreed by Lessor in writing at the time of such agreement. (e) Lessor Indemnification. Except as otherwise provided in paragraph 8.7, Lessor and its successors and assigns shall indemnify, defend, reimburse and hold Lessee, its employees and lenders, harmless from and against any and all environmental damages, including the cost of remediation, which are suffered as a direct result of Hazardous Substances on the Premises prior to Lessee taking possession or which are caused by the gross negligence or willful misconduct of Lessor, its agents or employees. Lessor's obligations, as and when required by the Applicable Requirements, shall include, but not be limited to, the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease. (f) Investigations and Remediations. Lessor shall retain the responsibility and pay for any investigations or remediation measures required by governmental entities having jurisdiction with respect to the existence of Hazardous Substances on the Premises prior to the Lessee taking possession, unless such remediation measure is required as a result of Lessee's use (including "Alterations", as defined in paragraph 7.3(a) below) of the Premises, in which event Lessee shall be responsible for such payment. Lessee shall cooperate fully in any such activities at the request of Lessor, including allowing Lessor and Lessor's agents to have reasonable access to the Premises at reasonable times in order to carry out Lessor's investigative and remedial responsibilities. (g) Lessor Termination Option. If a Hazardous Substance Condition (see Paragraph 9.1(e)) occurs during the term of this Lease, unless Lessee is legally responsible therefor (in which case Lessee shall make the investigation and remediation thereof required by the Applicable Requirements and this Lease shall continue in full force and effect, but subject to Lessor's rights under Paragraph 6.2(d) and Paragraph 13), Lessor may, at Lessor's option, either (i) investigate and remediate such Hazardous Substance Condition, if required, as soon as reasonably possible at Lessor's expense, in which event this Lease shall continue in full force and effect, or (ii) if the estimated cost to remediate such condition exceeds 12 times the then monthly Base Rent or $100,000, whichever is greater, give written notice to Lessee, within 30 days after receipt by Lessor of knowledge of the occurrence of such Hazardous Substance Condition, of Lessor's desire to terminate this Lease as of the date 60 days following the date of such notice. In the event Lessor elects to give a termination notice, Lessee may, within 30 days thereafter, give written notice to Lessor of Lessee's commitment to pay the amount by which the cost of the remediation of such Hazardous Substance Condition exceeds an amount equal to 12 times the then monthly Base Rent or $100,000, whichever is greater. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days following such commitment. In such event, this Lease shall continue in full force and effect, and Lessor shall proceed to make such remediation as soon as reasonably possible after the required funds are available. If Lessee does not give such notice and provide the required funds or assurance thereof within the time provided, this Lease shall terminate as of the date specified in Lessor's notice of termination.
6.3 Lessee's Compliance with Applicable Requirements. Except as otherwise provided in this Lease, Lessee shall, at Lessee's sole expense, fully, diligently and in a timely manner, materially comply with all Applicable Requirements, the requirements of any applicable fire insurance underwriter or rating bureau, and the recommendations of Lessor's engineers and/or consultants which relate in any manner to the Premises, without regard to whether said Applicable Requirements are now in effect or become effective after the Start Date. Lessee shall, within 10 days after receipt of Lessor's written request, provide Lessor with copies of all permits and other documents, and other information evidencing Lessee's compliance with any Applicable Requirements specified by Lessor, and shall immediately upon receipt, notify Lessor in writing (with copies of any documents involved) of any threatened or actual claim, notice, citation, warning, complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with any Applicable Requirements. Likewise, Lessee shall immediately give written notice to Lessor of: (i) any water damage to the Premises and any suspected seepage, pooling, dampness or other condition conducive to the production of mold; or (ii) any mustiness or other odors that might indicate the presence of mold in the Premises.
6.4 Inspection; Compliance. Lessor and Lessor's "Lender" (as defined in Paragraph 30) and consultants authorized by Lessor shall have the right to enter into Premises at any time in the case of an emergency, and otherwise at reasonable times after reasonable notice, for the purpose of inspecting and/or testing the condition of the Premises and/or for verifying compliance by Lessee with this Lease. The cost of any such inspections shall be paid by Lessor, unless a violation of Applicable Requirements, or a Hazardous Substance Condition (see Paragraph 9.1(e)) is found to exist or be imminent, or the inspection is requested or ordered by a governmental authority. In such case, Lessee shall upon request reimburse Lessor for the cost of such inspection, so long as such inspection is reasonably related to the violation or contamination. In addition, Lessee shall provide copies of all relevant material safety data sheets (MSDS) to Lessor within 20 days of the receipt of written request therefor. Lessee acknowledges that any failure on its part to allow such inspections or testing will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, should the Lessee fail to allow such inspections and/or testing in a timely fashion the Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater for the remainder to the Lease. The Parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee's failure to allow such inspection and/or testing. Such increase in Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to such failure nor prevent the exercise of any of the other rights and remedies granted hereunder.
7. Maintenance; Repairs; Utility Installations; Trade Fixtures and Alterations.
7.1 Lessee's Obligations.
(a) In General. Subject to the provisions of Paragraph 2.2 (Condition), 2.3 (Compliance), 6.3 (Lessee's Compliance with Applicable Requirements), 7.2 (Lessor's Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Lessee shall, at Lessee's sole expense, keep the Premises, Utility Installations (intended for Lessee's exclusive use, no matter where located), and Alterations in good order, condition and repair (whether or not the portion of the Premises requiring repairs, or the means of repairing the same, are reasonably or readily accessible to Lessee, and whether or not the need for such repairs occurs as a result of Lessee's use, any prior use, the elements or the age of such portion of the Premises), including, but not limited to, all equipment or facilities, such as plumbing, HVAC equipment, electrical, lighting facilities, boilers, pressure vessels, fixtures, interior walls, interior surfaces of exterior walls, ceilings, floors, and skylights but excluding any items which are the responsibility of Lessor pursuant to Paragraph 7.2. Lessee, in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices, specifically including the procurement and maintenance of the service contracts required by Paragraph 7.1(b) below. Lessee's obligations shall include restorations, replacements or renewals when necessary to keep the Premises and all improvements thereon or a part thereof in good order, condition and state of repair.
(b) Failure to Perform. If Lessee fails to perform Lessee's obligations under this Paragraph 7.1, Lessor may enter upon the Premises after 15 days' prior written notice to Lessee (except in the case of an emergency, in which case no notice shall be required), perform such obligations on Lessee's behalf, and put the Premises in good order, condition and repair, and Lessee shall promptly pay to Lessor a sum equal to 115% of the cost thereof. (c) Replacement. Subject to Lessee's indemnification of Lessor as set forth in Paragraph 8.7 below, and without relieving Lessee of liability resulting from Lessee's failure to exercise and perform good maintenance practices, if an item described in Paragraph 7.1(b) cannot be repaired other than at a cost which is in excess of 50% of the cost of replacing such item, then such item shall be replaced by Lessor, and the cost thereof shall be prorated between the Parties and Lessee shall only be obligated to pay, each month during the remainder of the term of this Lease or any extension thereof, on the date on which Base Rent is due, an amount equal to the product of multiplying the cost of such replacement by a fraction, the numerator of which is one, and the denominator of which is 144 (i.e. 1/144th of the cost per month). Lessee shall pay Interest on the unamortized balance but may prepay its obligation at any time.
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7.2 Lessor's Obligations. Subject to the provisions of Paragraphs 2.2 (Condition), 2.3 (Compliance), 6 (Use), 7.1 (Lessee's Obligations), 9 (Damage or Destruction) and 14 (Condemnation), Lessor, shall keep in good order, condition and repair the foundations, exterior walls, plate glass windows and exterior doors, structural condition of interior bearing walls, exterior roof, fire sprinkler system, Common Area fire alarm and/or smoke detection systems, fire hydrants, parking lots, walkways, parkways, driveways, landscaping, fences, signs and utility systems serving the Common Areas and all parts thereof, as well as providing the services for which there is a Common Area Operating Expense pursuant to Paragraph 4.2. Lessor shall not be obligated to paint the exterior or interior surfaces of exterior walls nor shall Lessor be obligated to maintain, repair or replace windows, doors or plate glass of the Premises.
7.3 Utility Installations; Trade Fixtures; Alterations. (a) Definitions. The term "Utility Installations" refers to all floor and window coverings, air and/or vacuum lines, power panels, electrical distribution, security and fire protection systems, communication cabling, lighting fixtures, HVAC equipment, plumbing, and fencing in or on the Premises. The term "Trade Fixtures" shall mean Lessee's machinery and equipment that can be removed without doing material damage to the Premises. The term "Alterations" shall mean any modification of the improvements, other than Utility Installations or Trade Fixtures, whether by addition or deletion. "Lessee Owned Alterations and/or Utility Installations" are defined as Alterations and/or Utility Installations made by Lessee that are not yet owned by Lessor pursuant to Paragraph 7.4(a). (b) Consent. Lessee shall not make any Alterations or Utility Installations to the Premises without Lessor's prior written consent. Lessee may, however, make non-structural Alterations or Utility Installations to the interior of the Premises (excluding the roof) without such consent but upon notice to Lessor, as long as they are not visible from the outside, do not involve puncturing, relocating or removing the roof or any existing walls, will not affect the electrical, plumbing, HVAC, and/or life safety systems, do not trigger the requirement for additional modifications and/or improvements to the Premises resulting from Applicable Requirements, such as compliance with Title 24, and/or life safety systems, and the cumulative cost thereof during this Lease as extended does not exceed a sum equal to 3 month's Base Rent in the aggregate or a sum equal to one month's Base Rent in any one year. Notwithstanding the foregoing, Lessee shall not make or permit any roof penetrations and/or install anything on the roof without the prior written approval of Lessor. Lessor may, as a precondition to granting such approval, require Lessee to utilize a contractor chosen and/or approved by Lessor. Any Alterations or Utility Installations that Lessee shall desire to make and which require the consent of the Lessor shall be presented to Lessor in written form with detailed plans. Consent shall be deemed conditioned upon Lessee's: (i) acquiring all applicable governmental permits, (ii) furnishing Lessor with copies of both the permits and the plans and specifications prior to commencement of the work, and (iii) compliance with all conditions of said permits and other Applicable Requirements, including compliance with state prevailing wage laws in the event that tenant improvements or repairs constitute "public works" in accordance with Labor Code section 1720 in a prompt and expeditious manner. Any Alterations or Utility Installations shall be performed in a workmanlike manner with good and sufficient materials. Lessee shall promptly upon completion furnish Lessor with as-built plans and specifications. For work which costs an amount in excess of one month's Base Rent, Lessor may condition its consent upon Lessee providing a lien and completion bond in an amount equal to 150% of the estimated cost of such Alteration or Utility Installation and/or upon Lessee's posting an additional Security Deposit with Lessor.
(c) Liens; Bonds. Lessee shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Lessee at or for use on the Premises, which claims are or may be secured by any mechanic's or materialmen's lien against the Premises or any interest therein. Lessee shall give Lessor not less than 10 days notice prior to the commencement of any work in, on or about the Premises, and Lessor shall have the right to post notices of non-responsibility. If Lessee shall contest the validity of any such lien, claim or demand, then Lessee shall, at its sole expense defend and protect itself, Lessor and the Premises against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof. If Lessor shall require, Lessee shall furnish a surety bond in an amount equal to 150% of the amount of such contested lien, claim or demand, indemnifying Lessor against liability for the same. If Lessor elects to participate in any such action, Lessee shall pay Lessor's attorneys' fees and costs.
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7.4 Ownership; Removal; Surrender; and Restoration . (a) Ownership. Subject to Lessor's right to require removal or elect ownership as hereinafter provided, all Alterations and Utility Installations made by Lessee shall be the property of Lessee, but considered a part of the Premises. Lessor may, at any time, elect in writing to be the owner of all or any specified part of the Lessee Owned Alterations and Utility Installations. Unless otherwise instructed per paragraph 7.4(b) hereof, all Lessee Owned Alterations and Utility Installations shall, at the expiration or termination of this Lease, become the property of Lessor and be surrendered by Lessee with the Premises. (b) Removal. By delivery to Lessee of written notice from Lessor not earlier than 90 and not later than 30 days prior to the end of the term of this Lease, Lessor may require that any or all Lessee Owned Alterations or Utility Installations be removed by the expiration or termination of this Lease. Lessor may require the removal at any time of all or any part of any Lessee Owned Alterations or Utility Installations made without the required consent. (c) Surrender; Restoration. Lessee shall surrender the Premises by the Expiration Date or any earlier termination date, with all of the improvements, parts and surfaces thereof broom clean and free of debris, and in good operating order, condition and state of repair, ordinary wear and tear excepted. "Ordinary wear and tear" shall not include any damage or deterioration that would have been prevented by good maintenance practice. Notwithstanding the foregoing and the provisions of Paragraph 7.1(a), if the Lessee occupies the Premises for 12 months or less, then Lessee shall surrender the Premises in the same condition as delivered to Lessee on the Start Date with NO allowance for ordinary wear and tear. Lessee shall repair any damage occasioned by the installation, maintenance or removal of Trade Fixtures, Lessee owned Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any storage tank installed by or for Lessee.
Lessee shall also remove from the Premises any and all Hazardous Substances brought onto the Premises by or for Lessee, or any third party (except Hazardous Substances which were deposited via underground migration from areas outside of the Project) to the level specified in Applicable Requirements. Trade Fixtures shall remain the property of Lessee and shall be removed by Lessee. Any personal property of Lessee not removed on or before the Expiration Date or any earlier termination date shall be deemed to have been abandoned by Lessee and may be disposed of or retained by Lessor as Lessor may desire. The failure by Lessee to timely vacate the Premises pursuant to this Paragraph 7.4(c) without the express written consent of Lessor shall constitute a holdover under the provisions of Paragraph 26 below.
8. Insurance; Indemnity.
8.1 Payment of Premiums. The cost of the premiums for the insurance policies required to be carried by Lessor, pursuant to Paragraphs 8.2(b), 8.3(a) and
8.3(b), shall be a Common Area Operating Expense. Premiums for policy periods commencing prior to, or extending beyond, the term of this Lease shall be prorated to coincide with the corresponding Start Date or Expiration Date.
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force a Commercial General Liability policy of insurance protecting Lessee and Lessor as an additional insured against claims for bodily injury, personal injury and property damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $2,000,000 per occurrence with an annual aggregate of not less than $4,000,000. Lessee shall add Lessor, its elected and appointed officials, employees, and agents as an additional insured by means of an endorsement at least as broad as the Insurance Service Organization's "Additional Insured- Managers or Lessors of Premises" Endorsement. The policy shall not contain any intra-insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Lease as an "insured contract" for the performance of Lessee's indemnity obligations under this Lease. The limits of said insurance shall not, however, limit the liability of Lessee nor relieve Lessee of any obligation hereunder. Lessee shall provide an endorsement on its liability policy(ies) which provides that its insurance shall be primary to and not contributory with any similar insurance carried by Lessor, whose insurance shall be considered excess insurance only.
(b) Carried by Lessor. Lessor shall maintain liability insurance as described in Paragraph 8.2(a), in addition to, and not in lieu of, the insurance required to be maintained by Lessee. Lessee shall not be named as an additional insured therein.
8.3 Property Insurance - Building, Improvements and Rental Value . (a) Building and Improvements. Lessor shall obtain and keep in force a policy or policies of insurance in the name of Lessor, with loss payable to Lessor, any ground-lessor, and to any Lender insuring loss or damage to the Premises. The amount of such insurance shall be equal to the full insurable replacement cost of the Premises, as the same shall exist from time to time, or the amount required by any Lender, but in no event more than the commercially reasonable and available insurable value thereof. Lessee Owned Alterations and Utility Installations, Trade Fixtures, and Lessee's personal property shall be insured by Lessee not by Lessor. If the coverage is available and commercially appropriate, such policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake unless required by a Lender), including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction or replacement of any portion of the Premises as the result of a covered loss. Said policy or policies shall also contain an agreed valuation provision in lieu of any coinsurance clause, waiver of subrogation, and inflation guard protection causing an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where the Premises are located. If such insurance coverage has a deductible clause, the deductible amount shall not exceed $5,000 per occurrence. (b) Rental Value. Lessor shall also obtain and keep in force a policy or policies in the name of Lessor with loss payable to Lessor and any Lender, insuring the loss of the full Rent for one year with an extended period of indemnity for an additional 180 days ("Rental Value insurance"). Said insurance shall contain an agreed valuation provision in lieu of any coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected Rent otherwise payable by Lessee, for the next 12 month period.
(c) Adjacent Premises. Lessee shall pay for any increase in the premiums for the property insurance of the Building and for the Common Areas or other buildings in the Project if said increase is caused by Lessee's acts, omissions, use or occupancy of the Premises. (d) Lessee's Improvements. Since Lessor is the Insuring Party, Lessor shall not be required to insure Lessee Owned Alterations and Utility Installations unless the item in question has become the property of Lessor under the terms of this Lease.
8.4 Lessee's Property; Business Interruption Insurance; Worker's Compensation Insurance .
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(a) Property Damage. Lessee shall obtain and maintain insurance coverage on all of Lessee's personal property, Trade Fixtures, and Lessee Owned Alterations and Utility Installations. Such insurance shall be full replacement cost coverage with a deductible of not to exceed $1,000 per occurrence. The proceeds from any such insurance shall be used by Lessee for the replacement of personal property, Trade Fixtures and Lessee Owned Alterations and Utility Installations. (b) Business Interruption. Lessee shall obtain and maintain loss of income and extra expense insurance in amounts as will reimburse Lessee for direct or indirect loss of earnings attributable to all perils commonly insured against by prudent lessees in the business of Lessee or attributable to prevention of access to the Premises as a result of such perils.
(c) Worker's Compensation Insurance. Lessee shall obtain and maintain Worker's Compensation Insurance in such amount as may be required by Applicable Requirements. Such policy shall include a 'Waiver of Subrogation' endorsement. Lessee shall provide Lessor with a copy of such endorsement along with the certificate of insurance or copy of the policy required by paragraph 8.5. (d) No Representation of Adequate Coverage. Lessor makes no representation that the limits or forms of coverage of insurance specified herein are adequate to cover Lessee's property, business operations or obligations under this Lease.
8.5 Insurance Policies. Insurance required herein shall be by companies maintaining during the policy term a "General Policyholders Rating" of at least A-, VII, as set forth in the most current issue of "Best's Insurance Guide", or such other rating as may be required by a Lender. Lessee shall not do or permit to be done anything which invalidates the required insurance policies. Lessee shall, prior to the Start Date, deliver to Lessor certified copies of policies of such insurance or certificates with copies of the required endorsements evidencing the existence and amounts of the required insurance. No such policy shall be cancelable or subject to modification except after 30 days prior written notice to Lessor. Lessee shall, at least 10 days prior to the expiration of such policies, furnish Lessor with evidence of renewals or "insurance binders" evidencing renewal thereof, or Lessor may increase his liability insurance coverage and charge the cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon demand. Such policies shall be for a term of at least one year, or the length of the remaining term of this Lease, whichever is less. If either Party shall fail to procure and maintain the insurance required to be carried by it, the other Party may, but shall not be required to, procure and maintain the same.
8.6 Waiver of Subrogation. Without affecting any other rights or remedies, Lessee and Lessor each hereby release and relieve the other, and waive their entire right to recover damages against the other, for loss of or damage to its property arising out of or incident to the perils required to be insured against herein. The effect of such releases and waivers is not limited by the amount of insurance carried or required, or by any deductibles applicable hereto. The Parties agree to have their respective property damage insurance carriers waive any right to subrogation that such companies may have against Lessor or Lessee, as the case may be, so long as the insurance is not invalidated thereby.
8.7 Indemnity. Except for Lessor's gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor, its elected and appointed officials, employees and its agents, Lessor's master or ground lessor, partners and Lenders, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys' and consultants' fees, expenses and/or liabilities arising out of, involving, or in connection with, a Breach of the Lease by Lessee and/or the use and/or occupancy of the Premises and/or Project by Lessee and/or by Lessee's employees, contractors or invitees . If any action or proceeding is brought against Lessor by reason of any of the foregoing matters, Lessee shall upon notice defend the same at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indemnified.
8.8 Exemption of Lessor and its Agents from Liability. Notwithstanding the negligence or breach of this Lease by Lessor or its agents, neither Lessor nor its agents shall be liable under any circumstances for: (i) injury or damage to the person or goods, wares, merchandise or other property of Lessee, Lessee's employees, contractors, invitees, customers, or any other person in or about the Premises, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, indoor air quality, the presence of mold or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, HVAC or lighting fixtures, or from any other cause, whether the said injury or damage results from conditions arising upon the Premises or upon other portions of the Building, or from other sources or places; (ii) any damages arising from any act or neglect of any other tenant of Lessor or from the failure of Lessor or its agents to enforce the provisions of any other lease in the Project; or (iii) injury to Lessee's business or for any loss of income or profit therefrom. Instead, it is intended that Lessee's sole recourse in the event of such damages or injury be to file a claim on the insurance policy(ies) that Lessee is required to maintain pursuant to the provisions of paragraph 8.
8.9 Failure to Provide Insurance. Lessee acknowledges that any failure on its part to obtain or maintain the insurance required herein will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, for any month or portion thereof that Lessee does not maintain the required insurance and/or does not provide Lessor with the required binders or certificates evidencing the existence of the required insurance, the Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater. The parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee's failure to maintain the required insurance. Such increase in Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to the failure to maintain such insurance, prevent the exercise of any of the other rights and remedies granted hereunder, nor relieve Lessee of its obligation to maintain the insurance specified in this Lease.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations, which can reasonably be repaired in 3 months or less from the date of the damage or destruction, and the cost thereof does not exceed a sum equal to 6 month's Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total. (b) "Premises Total Destruction" shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which cannot reasonably be repaired in 3 months or less from the date of the damage or destruction and/or the cost thereof exceeds a sum equal to 6 month's Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total.
(c) "Insured Loss" shall mean damage or destruction to improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which was caused by an event required to be covered by the insurance described in Paragraph 8.3(a), irrespective of any deductible amounts or coverage limits involved.
(d) "Replacement Cost" shall mean the cost to repair or rebuild the improvements owned by Lessor at the time of the occurrence to their condition existing immediately prior thereto, including demolition, debris removal and upgrading required by the operation of Applicable Requirements, and without deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the occurrence or discovery of a condition involving the presence of, or a contamination by, a Hazardous Substance, in, on, or under the Premises which requires restoration.
9.2 Partial Damage - Insured Loss. If a Premises Partial Damage that is an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair such damage (but
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not Lessee's Trade Fixtures or Lessee Owned Alterations and Utility Installations) as soon as reasonably possible and this Lease shall continue in full force and effect; provided, however, that Lessee shall, at Lessor's election, make the repair of any damage or destruction the total cost to repair of which is $10,000 or less, and, in such event, Lessor shall make any applicable insurance proceeds available to Lessee on a reasonable basis for that purpose. Notwithstanding the foregoing, if the required insurance was not in force or the insurance proceeds are not sufficient to effect such repair, the Insuring Party shall promptly contribute the shortage in proceeds as and when required to complete said repairs. In the event, however, such shortage was due to the fact that, by reason of the unique nature of the improvements, full replacement cost insurance coverage was not commercially reasonable and available, Lessor shall have no obligation to pay for the shortage in insurance proceeds or to fully restore the unique aspects of the Premises unless Lessee provides Lessor with the funds to cover same, or adequate assurance thereof, within 30 days following receipt of written notice of such shortage and request therefor. If Lessor receives said funds or adequate assurance thereof within said 10 day period, the party responsible for making the repairs shall complete them as soon as reasonably possible and this Lease shall remain in full force and effect. If such funds or assurance are not received, Lessor may nevertheless elect by written notice to Lessee within 30 days thereafter to: (i) make such restoration and repair as is commercially reasonable with Lessor paying any shortage in proceeds, in which case this Lease shall remain in full force and effect, or (ii) have this Lease terminate 30 days thereafter. Lessee shall not be entitled to reimbursement of any funds contributed by Lessee to repair any such damage or destruction. Premises Partial Damage due to flood or earthquake shall be subject to Paragraph 9.3, notwithstanding that there may be some insurance coverage, but the net proceeds of any such insurance shall be made available for the repairs if made by either Party.
9.3 Partial Damage - Uninsured Loss. If a Premises Partial Damage that is not an Insured Loss occurs, unless caused by a negligent or willful act of Lessee (in which event Lessee shall make the repairs at Lessee's expense), Lessor may either: (i) repair such damage as soon as reasonably possible at Lessor's expense (subject to reimbursement pursuant to Paragraph 4.2), in which event this Lease shall continue in full force and effect, or (ii) terminate this Lease by giving written notice to Lessee within 30 days after receipt by Lessor of knowledge of the occurrence of such damage. Such termination shall be effective 60 days following the date of such notice. In the event Lessor elects to terminate this Lease, Lessee shall have the right within 30 days after receipt of the termination notice to give written notice to Lessor of Lessee's commitment to pay for the repair of such damage without reimbursement from Lessor. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days after making such commitment. In such event this Lease shall continue in full force and effect, and Lessor shall proceed to make such repairs as soon as reasonably possible after the required funds are available. If Lessee does not make the required commitment, this Lease shall terminate as of the date specified in the termination notice.
9.4 Total Destruction. Notwithstanding any other provision hereof, if a Premises Total Destruction occurs, this Lease shall terminate 60 days following such Destruction. If the damage or destruction was caused by the gross negligence or willful misconduct of Lessee, Lessor shall have the right to recover Lessor's damages from Lessee, except as provided in Paragraph 8.6.
9.5 Damage Near End of Term. If at any time during the last 6 months of this Lease there is damage for which the cost to repair exceeds one month's Base Rent, whether or not an Insured Loss, Lessor may terminate this Lease effective 60 days following the date of occurrence of such damage by giving a written termination notice to Lessee within 30 days after the date of occurrence of such damage. Notwithstanding the foregoing, if Lessee at that time has an exercisable option to extend this Lease or to purchase the Premises, then Lessee may preserve this Lease by (a) exercising such option and (b) providing Lessor with any shortage in insurance proceeds (or adequate assurance thereof) needed to make the repairs on or before the earlier of (i) the date which is 30 days after Lessee's receipt of Lessor's written notice purporting to terminate this Lease, or (ii) the day prior to the date upon which such option expires. If Lessee duly exercises such option during such period and provides Lessor with funds (or adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor shall, at Lessor's commercially reasonable expense, repair such damage as soon as reasonably possible and this Lease shall continue in full force and effect. If Lessee fails to exercise such option and provide such funds or assurance during such period, then this Lease shall terminate on the date specified in the termination notice and Lessee's option shall be extinguished.
9.6 Abatement of Rent; Lessee's Remedies .
(a) Abatement. In the event of Premises Partial Damage or Premises Total Destruction or a Hazardous Substance Condition for which Lessee is not responsible under this Lease, the Rent payable by Lessee for the period required for the repair, remediation or restoration of such damage shall be abated in proportion to the degree to which Lessee's use of the Premises is impaired, but not to exceed the proceeds received from the Rental Value insurance. All other obligations of Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for any such damage, destruction, remediation, repair or restoration except as provided herein.
(b) Remedies. If Lessor is obligated to repair or restore the Premises and does not commence, in a substantial and meaningful way, such repair or restoration within 90 days after such obligation shall accrue, Lessee may, at any time prior to the commencement of such repair or restoration, give written notice to Lessor and to any Lenders of which Lessee has actual notice, of Lessee's election to terminate this Lease on a date not less than 60 days following the giving of such notice. If Lessee gives such notice and such repair or restoration is not commenced within 30 days thereafter, this Lease shall terminate as of the date specified in said notice. If the repair or restoration is commenced within such 30 days, this Lease shall continue in full force and effect. "Commence" shall mean either the unconditional authorization of the preparation of the required plans, or the beginning of the actual work on the Premises, whichever first occurs.
9.7 Termination; Advance Payments. Upon termination of this Lease pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be made concerning advance Base Rent and any other advance payments made by Lessee to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee's Security Deposit as has not been, or is not then required to be, used by Lessor.
10. Real Property Taxes.
10.1 Definition. As used herein, the term "Real Property Taxes" shall include any form of assessment; real estate, general, special, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes); improvement bond; and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the Project, Lessor's right to other income therefrom, and/or Lessor's business of leasing, by any authority having the direct or indirect power to tax and where the funds are generated with reference to the Project address. The term "Real Property Taxes" shall also include any tax, fee, levy, assessment or charge, or any increase therein: (i) imposed by reason of events occurring during the term of this Lease, including but not limited to, a change in the ownership of the Project, (ii) a change in the improvements thereon, and/or (iii) levied or assessed on machinery or equipment provided by Lessor to Lessee pursuant to this Lease.
In calculating Real Property Taxes for any calendar year, the Real Property Taxes for any real estate tax year shall be included in the calculation of Real Property Taxes for such calendar year based upon the number of days which such calendar year and tax year have in common.
10.2 Payment of Taxes. Except as otherwise provided in Paragraph 10.3, Lessor shall pay the Real Property Taxes applicable to the Project, and said payments shall be included in the calculation of Common Area Operating Expenses in accordance with the provisions of Paragraph 4.2.
10.3 Additional Improvements. Common Area Operating Expenses shall not include Real Property Taxes specified in the tax assessor's records and work sheets as being caused by additional improvements placed upon the Project by other lessees or by Lessor for the exclusive enjoyment of such other lessees. Notwithstanding Paragraph 10.2 hereof, Lessee shall, however, pay to Lessor at the time Common Area Operating Expenses are payable under Paragraph 4.2, the entirety of any increase in Real Property Taxes if assessed solely by reason of Alterations, Trade Fixtures or Utility Installations placed upon the Premises by Lessee or at Lessee's
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request or by reason of any alterations or improvements to the Premises made by Lessor subsequent to the execution of this Lease by the Parties.
10.4 Joint Assessment. If the Building is not separately assessed, Real Property Taxes allocated to the Building shall be an equitable proportion of the Real Property Taxes for all of the land and improvements included within the tax parcel assessed, such proportion to be determined by Lessor from the respective valuations assigned in the assessor's work sheets or such other information as may be reasonably available. Lessor's reasonable determination thereof, in good faith, shall be conclusive.
10.5 Personal Property Taxes. Lessee shall pay prior to delinquency all taxes assessed against and levied upon Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all personal property of Lessee contained in the Premises. When possible, Lessee shall cause its Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Lessor. If any of Lessee's said property shall be assessed with Lessor's real property, Lessee shall pay Lessor the taxes attributable to Lessee's property within 30 days after receipt of a written statement setting forth the taxes applicable to Lessee's property. Lessee recognizes and understands in executing this Lease that its interest in the Premises created herein may be subject to a possessory interest tax and agrees to pay promptly when due any possessory interest tax imposed on its interest in the Premises.
11. Utilities and Services.
11.1 Lessee shall pay for all water, gas, heat, light, power, telephone, vector control, trash disposal and other utilities and services supplied to the Premises, together with any taxes thereon. Notwithstanding the provisions of Paragraph 4.2, if at any time in Lessor's sole judgment, Lessor determines that Lessee is using a disproportionate amount of water, electricity or other commonly metered utilities, or that Lessee is generating such a large volume of trash as to require an increase in the size of the trash receptacle and/or an increase in the number of times per month that it is emptied, then Lessor may increase Lessee's Base Rent by an amount equal to such increased costs. There shall be no abatement of Rent and Lessor shall not be liable in any respect whatsoever for the inadequacy, stoppage, interruption or discontinuance of any utility or service due to riot, strike, labor dispute, breakdown, accident, repair or other cause beyond Lessor's reasonable control or in cooperation with governmental request or directions.
11.2 Within fifteen days of Lessor's written request, Lessee agrees to deliver to Lessor such information, documents and/or authorization as Lessor needs in order for Lessor to comply with new or existing Applicable Requirements relating to commercial building energy usage, ratings, and/or the reporting thereof.
12. Assignment and Subletting.
12.1 Lessor's Consent Required.
(a) Lessee shall not voluntarily or by operation of law assign, transfer, mortgage or encumber (collectively, "assign or assignment") or sublet all or any part of Lessee's interest in this Lease or in the Premises without Lessor's prior written consent. (b) Unless Lessee is a corporation and its stock is publicly traded on a national stock exchange, a change in the control of Lessee shall constitute an assignment requiring consent. The transfer, on a cumulative basis, of 25% or more of the voting control of Lessee shall constitute a change in control for this purpose. (c) The involvement of Lessee or its assets in any transaction, or series of transactions (by way of merger, sale, acquisition, financing, transfer, leveraged buy-out or otherwise), whether or not a formal assignment or hypothecation of this Lease or Lessee's assets occurs, which results or will result in a reduction of the Net Worth of Lessee by an amount greater than 25% of such Net Worth as it was represented at the time of the execution of this Lease or at the time of the most recent assignment to which Lessor has consented, or as it exists immediately prior to said transaction or transactions constituting such reduction, whichever was or is greater, shall be considered an assignment of this Lease to which Lessor may withhold its consent. "Net Worth of Lessee" shall mean the net worth of Lessee (excluding any guarantors) established under generally accepted accounting principles. (d) An assignment or subletting without consent shall, at Lessor's option, be a Default curable after notice per Paragraph 13.1(d), or a non-curable Breach without the necessity of any notice and grace period. If Lessor elects to treat such unapproved assignment or subletting as a non-curable Breach, Lessor may either:
(i) terminate this Lease, or (ii) upon 30 days written notice, increase the monthly Base Rent to 110% of the Base Rent then in effect. Further, in the event of such Breach and rental adjustment, (i) the purchase price of any option to purchase the Premises held by Lessee shall be subject to similar adjustment to 110% of the price previously in effect, and (ii) all fixed and non-fixed rental adjustments scheduled during the remainder of the Lease term shall be increased to 110% of the scheduled adjusted rent.
(e) Lessee's remedy for any breach of Paragraph 12.1 by Lessor shall be limited to compensatory damages and/or injunctive relief. (f) Lessor may reasonably withhold consent to a proposed assignment or subletting if Lessee is in Default at the time consent is requested. (g) Notwithstanding the foregoing, allowing a de minimis portion of the Premises, i.e. 20 square feet or less, to be used by a third party vendor in connection with the installation of a vending machine or payphone shall not constitute a subletting.
12.2 Terms and Conditions Applicable to Assignment and Subletting . (a) Regardless of Lessor's consent, no assignment or subletting shall : (i) be effective without the express written assumption by such assignee or sublessee of the obligations of Lessee under this Lease, (ii) release Lessee of any obligations hereunder, or (iii) alter the primary liability of Lessee for the payment of Rent or for the performance of any other obligations to be performed by Lessee. (b) Lessor may accept Rent or performance of Lessee's obligations from any person other than Lessee pending approval or disapproval of an assignment.
Neither a delay in the approval or disapproval of such assignment nor the acceptance of Rent or performance shall constitute a waiver or estoppel of Lessor's right to exercise its remedies for Lessee's Default or Breach.
(c) Lessor's consent to any assignment or subletting shall not constitute a consent to any subsequent assignment or subletting. (d) In the event of any Default or Breach by Lessee, Lessor may proceed directly against Lessee, any Guarantors or anyone else responsible for the performance of Lessee's obligations under this Lease, including any assignee or sublessee, without first exhausting Lessor's remedies against any other person or entity responsible therefor to Lessor, or any security held by Lessor. (e) Each request for consent to an assignment or subletting shall be in writing, accompanied by information relevant to Lessor's determination as to the financial and operational responsibility and appropriateness of the proposed assignee or sublessee, including but not limited to the intended use and/or required modification of the Premises, if any, together with a fee of $500 as consideration for Lessor's considering and processing said request. Lessee agrees to provide Lessor with such other or additional information and/or documentation as may be reasonably requested. (See also Paragraph 36) (f) Any assignee of, or sublessee under, this Lease shall, by reason of accepting such assignment, entering into such sublease, or entering into possession of the Premises or any portion thereof, be deemed to have assumed and agreed to conform and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Lessee during the term of said assignment or sublease, other than such obligations as are contrary to or inconsistent with provisions of an assignment or sublease to which Lessor has specifically consented to in writing. (g) Lessor's consent to any assignment or subletting shall not transfer to the assignee or sublessee any Option granted to the original Lessee by this Lease unless such transfer is specifically consented to by Lessor in writing. (See Paragraph 39.2)
12.3 Additional Terms and Conditions Applicable to Subletting. The following terms and conditions shall apply to any subletting by Lessee of all or any part of
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the Premises and shall be deemed included in all subleases under this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's interest in all Rent payable on any sublease, and Lessor may collect such Rent and apply same toward Lessee's obligations under this Lease; provided, however, that until a Breach shall occur in the performance of Lessee's obligations, Lessee may collect said Rent. In the event that the amount collected by Lessor exceeds Lessee's then outstanding obligations any such excess shall be refunded to Lessee. Lessor shall not, by reason of the foregoing or any assignment of such sublease, nor by reason of the collection of Rent, be deemed liable to the sublessee for any failure of Lessee to perform and comply with any of Lessee's obligations to such sublessee. Lessee hereby irrevocably authorizes and directs any such sublessee, upon receipt of a written notice from Lessor stating that a Breach exists in the performance of Lessee's obligations under this Lease, to pay to Lessor all Rent due and to become due under the sublease. Sublessee shall rely upon any such notice from Lessor and shall pay all Rents to Lessor without any obligation or right to inquire as to whether such Breach exists, notwithstanding any claim from Lessee to the contrary. (b) In the event of a Breach by Lessee, Lessor may, at its option, require sublessee to attorn to Lessor, in which event Lessor shall undertake the obligations of the sublessor under such sublease from the time of the exercise of said option to the expiration of such sublease; provided, however, Lessor shall not be liable for any prepaid rents or security deposit paid by such sublessee to such sublessor or for any prior Defaults or Breaches of such sublessor. (c) Any matter requiring the consent of the sublessor under a sublease shall also require the consent of Lessor. (d) No sublessee shall further assign or sublet all or any part of the Premises without Lessor's prior written consent. (e) Lessor shall deliver a copy of any notice of Default or Breach by Lessee to the sublessee, who shall have the right to cure the Default of Lessee within the grace period, if any, specified in such notice. The sublessee shall have a right of reimbursement and offset from and against Lessee for any such Defaults cured by the sublessee.
13. Default; Breach; Remedies.
13.1 Default; Breach. A "Default" is defined as a failure by the Lessee to comply with or perform any of the terms, covenants, conditions or Rules and Regulations under this Lease. A "Breach" is defined as the occurrence of one or more of the following Defaults, and the failure of Lessee to cure such Default within any applicable grace period:
(a) The abandonment of the Premises; the vacating of the Premises prior to the expiration or termination of this Lease without providing a commercially reasonable level of security, or where the coverage of the property insurance described in Paragraph 8.3 is jeopardized as a result thereof, or without providing reasonable assurances to minimize potential vandalism; or failure to deliver to Lessor exclusive possession of the entire Premises in accordance herewith prior to the expiration or termination of this Lease.
(b) The failure of Lessee to (i) make any payment of Rent or any Security Deposit required to be made by Lessee hereunder, whether to Lessor or to a third party, when due, (ii) to provide reasonable evidence of insurance or surety bond, or (iii) to fulfill any obligation under this Lease which endangers or threatens life or property, where such failure continues for a period of 5 business days following written notice to Lessee. THE ACCEPTANCE BY LESSOR OF A PARTIAL PAYMENT OF
RENT OR SECURITY DEPOSIT SHALL NOT CONSTITUTE A WAIVER OF ANY OF LESSOR'S RIGHTS, INCLUDING LESSOR'S RIGHT TO RECOVER POSSESSION OF THE PREMISES.
(c) The failure of Lessee to allow Lessor and/or its agents access to the Premises or the commission of waste, act or acts constituting public or private nuisance, and/or an illegal activity on the Premises by Lessee, where such actions continue for a period of 5 business days following written notice to Lessee. In the event that Lessee commits waste, a nuisance or an illegal activity a second time then, the Lessor may elect to treat such conduct as a non-curable Breach rather than a Default.
(d) The failure by Lessee to provide (i) reasonable written evidence of compliance with Applicable Requirements, (ii) the service contracts, (iii) the rescission of an unauthorized assignment or subletting, (iv) an Estoppel Certificate or financial statements, (v) a requested subordination, (vi) evidence concerning any guaranty and/or Guarantor, (vii) any document requested under Paragraph 41, (viii) material safety data sheets (MSDS), or (ix) any other documentation or information which Lessor may reasonably require of Lessee under the terms of this Lease, where any such failure continues for a period of 30 days following written notice to Lessee.
(e) A Default by Lessee as to the terms, covenants, conditions or provisions of this Lease, or of the rules adopted under Paragraph 2.9 hereof, other than those described in subparagraphs 13.1(a), (b), (c) or (d), above, where such Default continues for a period of 30 days after written notice; provided, however, that if the nature of Lessee's Default is such that more than 30 days are reasonably required for its cure, then it shall not be deemed to be a Breach if Lessee commences such cure within said 30 day period and thereafter diligently prosecutes such cure to completion. (f) The occurrence of any of the following events: (i) the making of any general arrangement or assignment for the benefit of creditors; (ii) becoming a "debtor" as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within 60 days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where possession is not restored to Lessee within 30 days; or (iv) the attachment, execution or other judicial seizure of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where such seizure is not discharged within 30 days; provided, however, in the event that any provision of this subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and not affect the validity of the remaining provisions. (g) The discovery that any financial statement of Lessee or of any Guarantor given to Lessor was materially false. (h) If the performance of Lessee's obligations under this Lease is guaranteed: (i) the death of a Guarantor, (ii) the termination of a Guarantor's liability with respect to this Lease other than in accordance with the terms of such guaranty, (iii) a Guarantor's becoming insolvent or the subject of a bankruptcy filing, (iv) a Guarantor's refusal to honor the guaranty, or (v) a Guarantor's breach of its guaranty obligation on an anticipatory basis, and Lessee's failure, within 60 days following written notice of any such event, to provide written alternative assurance or security, which, when coupled with the then existing resources of Lessee, equals or exceeds the combined financial resources of Lessee and the Guarantors that existed at the time of execution of this Lease.
13.2 Remedies. If Lessee fails to perform any of its affirmative duties or obligations, within 30 days after written notice (or in case of an emergency, without notice), Lessor may, at its option, perform such duty or obligation on Lessee's behalf, including but not limited to the obtaining of reasonably required bonds, insurance policies, or governmental licenses, permits or approvals. Lessee shall pay to Lessor an amount equal to 115% of the costs and expenses incurred by Lessor in such performance upon receipt of an invoice therefor. In the event of a Breach, Lessor may, with or without further notice or demand, and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such Breach:
(a) Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession to Lessor. In such event Lessor shall be entitled to recover from Lessee: (i) the unpaid Rent which had been earned at the time of termination; (ii) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the Lessee proves could have been reasonably avoided; (iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the Lessee proves could be reasonably avoided; and (iv) any other amount necessary to compensate Lessor for all the detriment proximately caused by the Lessee's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including but not limited to the cost of recovering possession of the Premises, expenses of reletting, including
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necessary renovation and alteration of the Premises, reasonable attorneys' fees, and that portion of any leasing commission paid by Lessor in connection with this Lease applicable to the unexpired term of this Lease. Lessor and Lessee agree that the damages to be incurred by the Lessor in the event of Lessee's default of the Lease would be difficult or impossible to calculate and the parties therefore intend to provide by the foregoing for liquidated damages and not a penalty and agree that the sum provided is a reasonable pre-estimate of the probable loss. The worth at the time of award of the amount referred to in provision (iii) of the immediately preceding sentence shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of the District within which the Premises are located at the time of award plus one percent. Efforts by Lessor to mitigate damages caused by Lessee's Breach of this Lease shall not waive Lessor's right to recover any damages to which Lessor is otherwise entitled. If termination of this Lease is obtained through the provisional remedy of unlawful detainer, Lessor shall have the right to recover in such proceeding any unpaid Rent and damages as are recoverable therein, or Lessor may reserve the right to recover all or any part thereof in a separate suit. If a notice and grace period required under Paragraph 13.1 was not previously given, a notice to pay rent or quit, or to perform or quit given to Lessee under the unlawful detainer statute shall also constitute the notice required by Paragraph 13.1. In such case, the applicable grace period required by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and the failure of Lessee to cure the Default within the greater of the two such grace periods shall constitute both an unlawful detainer and a Breach of this Lease entitling Lessor to the remedies provided for in this Lease and/or by said statute. (b) Continue the Lease and Lessee's right to possession and recover the Rent as it becomes due, in which event Lessee may sublet or assign, subject only to reasonable limitations. Acts of maintenance, efforts to relet, and/or the appointment of a receiver to protect the Lessor's interests, shall not constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available under the laws or judicial decisions of the state wherein the Premises are located. The expiration or termination of this Lease and/or the termination of Lessee's right to possession shall not relieve Lessee from liability under any indemnity provisions of this Lease as to matters occurring or accruing during the term hereof or by reason of Lessee's occupancy of the Premises.
13.3 Inducement Recapture. Any agreement for free or abated rent or other charges, the cost of tenant improvements for Lessee paid for or performed by Lessor, or for the giving or paying by Lessor to or for Lessee of any cash or other bonus, inducement or consideration for Lessee's entering into this Lease, all of which concessions are hereinafter referred to as "Inducement Provisions," shall be deemed conditioned upon Lessee's full and faithful performance of all of the terms, covenants and conditions of this Lease. Upon Breach of this Lease by Lessee, any such Inducement Provision shall automatically be deemed deleted from this Lease and of no further force or effect, and any rent, other charge, bonus, inducement or consideration theretofore abated, given or paid by Lessor under such an Inducement Provision shall be immediately due and payable by Lessee to Lessor, notwithstanding any subsequent cure of said Breach by Lessee. The acceptance by Lessor of rent or the cure of the Breach which initiated the operation of this paragraph shall not be deemed a waiver by Lessor of the provisions of this paragraph unless specifically so stated in writing by Lessor at the time of such acceptance.
13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Lessor by any Lender. Accordingly, if any Rent shall not be received by Lessor within 5 days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall immediately pay to Lessor a one-time late charge equal to 10% of each such overdue amount or $100, whichever is greater. The parties hereby agree that such late charge and NSF fee (per the clause below) represents a fair and reasonable estimate of the costs Lessor will incur by reason of such late and/or NSF payment. Acceptance of such late or NSF charge by Lessor shall in no event constitute a waiver of Lessee's Default or Breach with respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for 3 consecutive installments of Base Rent, then notwithstanding any provision of this Lease to the contrary, Base Rent shall, at Lessor's option, become due and payable quarterly in advance. If a check is returned NSF, Lessee shall pay to Lessor twenty-five ($25.00) dollars as a NSF fee, which shall be deemed additional Base Rent.
13.5 Interest. Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due shall bear interest from the 31st day after it was due. The interest ("Interest") charged shall be computed at the rate of 10% per annum but shall not exceed the maximum rate allowed by law. Interest is payable in addition to the potential late charge provided for in Paragraph 13.4.
13.6 Breach by Lessor.
(a) Notice of Breach. Lessor shall not be deemed in breach of this Lease unless Lessor fails within a reasonable time to perform an obligation required to be performed by Lessor. For purposes of this Paragraph, a reasonable time shall in no event be less than 30 days after receipt by Lessor, and any Lender whose name and address shall have been furnished to Lessee in writing for such purpose, of written notice specifying wherein such obligation of Lessor has not been performed; provided, however, that if the nature of Lessor's obligation is such that more than 30 days are reasonably required for its performance, then Lessor shall not be in breach if performance is commenced within such 30 day period and thereafter diligently pursued to completion. (b) Performance by Lessee on Behalf of Lessor. In the event that neither Lessor nor Lender cures said breach within 30 days after receipt of said notice, or if having commenced said cure they do not diligently pursue it to completion, then Lessee may elect to cure said breach at Lessee's expense and offset from Rent the actual and reasonable cost to perform such cure, provided however, that such offset shall not exceed an amount equal to the greater of one month's Base Rent or the Security Deposit, reserving Lessee's right to reimbursement from Lessor for any such expense in excess of such offset. Lessee shall document the cost of said cure and supply said documentation to Lessor.
14. Condemnation. If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (collectively "Condemnation"), this Lease shall terminate as to the part taken as of the date the condemning authority takes title or possession, whichever first occurs.
If more than 10% of the floor area of the Unit, or more than 25% of the parking spaces is taken by Condemnation, Lessee may, at Lessee's option, to be exercised in writing within 15 days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within 15 days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. If Lessee does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the Base Rent shall be reduced in proportion to the reduction in utility of the Premises caused by such Condemnation. Condemnation awards and/or payments shall be the property of Lessor, whether such award shall be made as compensation for diminution in value of the leasehold, the value of the part taken, or for severance damages; provided, however, that Lessee shall be entitled to any compensation paid by the condemnor for Lessee's relocation expenses, loss of business goodwill and/or Trade Fixtures, without regard to whether or not this Lease is terminated pursuant to the provisions of this Paragraph. All Alterations and Utility Installations made to the Premises by Lessee, for purposes of Condemnation only, shall be considered the property of the Lessee and Lessee shall be entitled to any and all compensation which is payable therefor. In the event that this Lease is not terminated by reason of the Condemnation, Lessor shall repair any damage to the Premises caused by such Condemnation.
15. Brokerage Fees.
15.1 Additional Commission. In addition to the payments owed pursuant to Paragraph 1.10 above, Lessor agrees that: (a) if Lessee exercises any Option, (b) if Lessee or anyone affiliated with Lessee acquires from Lessor any rights to the Premises or other premises owned by Lessor and located within the Project, (c) if Lessee
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remains in possession of the Premises, with the consent of Lessor, after the expiration of this Lease, or (d) if Base Rent is increased, whether by agreement or operation of an escalation clause herein, then, Lessor shall pay Brokers a fee in accordance with the fee schedule of the Brokers in effect at the time the Lease was executed. The provisions of this paragraph are intended to supersede the provisions of any earlier agreement to the contrary.
15.2 Assumption of Obligations. Any buyer or transferee of Lessor's interest in this Lease shall be deemed to have assumed Lessor's obligation hereunder.
Brokers shall be third party beneficiaries of the provisions of Paragraphs 1.10, 15, 22 and 31. If Lessor fails to pay to Brokers any amounts due as and for brokerage fees pertaining to this Lease when due, then such amounts shall accrue Interest. In addition, if Lessor fails to pay any amounts to Lessee's Broker when due, Lessee's Broker may send written notice to Lessor and Lessee of such failure and if Lessor fails to pay such amounts within 10 days after said notice, Lessee shall pay said monies to its Broker and offset such amounts against Rent. In addition, Lessee's Broker shall be deemed to be a third party beneficiary of any commission agreement entered into by and/or between Lessor and Lessor's Broker for the limited purpose of collecting any brokerage fee owed.
15.3 Representations and Indemnities of Broker Relationships. Lessee and Lessor each represent and warrant to the other that it has had no dealings with any person, firm, broker, agent or finder (other than the Brokers and Agents, if any) in connection with this Lease, and that no one other than said named Brokers and Agents is entitled to any commission or finder's fee in connection herewith. Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold the other harmless from and against liability for compensation or charges which may be claimed by any such unnamed broker, finder or other similar party by reason of any dealings or actions of the indemnifying Party, including any costs, expenses, attorneys' fees reasonably incurred with respect thereto.
16. Estoppel Certificates.
(a) Each Party (as "Responding Party") shall within 15 days after written notice from the other Party (the "Requesting Party") execute, acknowledge and deliver to the Requesting Party a statement in writing in form similar to the then most current "Estoppel Certificate" form published BY AIR CRE, plus such additional information, confirmation and/or statements as may be reasonably requested by the Requesting Party. (b) If the Responding Party shall fail to execute or deliver the Estoppel Certificate within such 10 day period, the Requesting Party may execute an Estoppel Certificate stating that: (i) the Lease is in full force and effect without modification except as may be represented by the Requesting Party, (ii) there are no uncured defaults in the Requesting Party's performance, and (iii) if Lessor is the Requesting Party, not more than one month's rent has been paid in advance.
Prospective purchasers and encumbrancers may rely upon the Requesting Party's Estoppel Certificate, and the Responding Party shall be estopped from denying the truth of the facts contained in said Certificate. In addition, Lessee acknowledges that any failure on its part to provide such an Estoppel Certificate will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, should the Lessee fail to execute and/or deliver a requested Estoppel Certificate in a timely fashion the monthly Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater for remainder of the Lease. The Parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee's failure to provide the Estoppel Certificate. Such increase in Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to the failure to provide the Estoppel Certificate nor prevent the exercise of any of the other rights and remedies granted hereunder. (c) If Lessor desires to finance, refinance, or sell the Premises, or any part thereof, Lessee and all Guarantors shall within 30 days after written notice from Lessor deliver to any potential lender or purchaser designated by Lessor such financial statements as may be reasonably required by such lender or purchaser, including but not limited to Lessee's financial statements for the past 3 years. All such financial statements shall be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.
17. Definition of Lessor. The term "Lessor" as used herein shall mean the owner or owners at the time in question of the fee title to the Premises, or, if this is a sublease, of the Lessee's interest in the prior lease. In the event of a transfer of Lessor's title or interest in the Premises or this Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit held by Lessor. Upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with respect to the obligations and/or covenants under this Lease thereafter to be performed by the Lessor.
Subject to the foregoing, the obligations and/or covenants in this Lease to be performed by the Lessor shall be binding only upon the Lessor as hereinabove defined.
18. Severability. The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.
19. Days. Unless otherwise specifically indicated to the contrary, the word "days" as used in this Lease shall mean and refer to calendar days.
20. Limitation on Liability. The obligations of Lessor under this Lease shall not constitute personal obligations of Lessor, or its partners, members, directors, officers or shareholders, and Lessee shall look to the Premises, and to no other assets of Lessor, for the satisfaction of any liability of Lessor with respect to this Lease, and shall not seek recourse against Lessor's partners, members, directors, officers or shareholders, or any of their personal assets for such satisfaction.
21. Time of Essence. Time is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under this Lease.
22. No Prior or Other Agreements; Broker Disclaimer. This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective. Lessor and Lessee each represents and warrants to the Brokers that it has made, and is relying solely upon, its own investigation as to the nature, quality, character and financial responsibility of the other Party to this Lease and as to the use, nature, quality and character of the Premises. Brokers have no responsibility with respect thereto or with respect to any default or breach hereof by either Party.
23. Notices.
23.1 Notice Requirements. All notices required or permitted by this Lease or applicable law shall be in writing and may be delivered in person (by hand or by courier) or may be sent by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, together with email if desired, and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23. The addresses noted adjacent to a Party's signature on this Lease shall be that Party's address for delivery or mailing of notices. Either Party may by written notice to the other specify a different address for notice, except that upon Lessee's taking possession of the Premises, the Premises shall constitute Lessee's address for notice. A copy of all notices to Lessor shall be concurrently transmitted to such party or parties at such addresses as Lessor may from time to time hereafter designate in writing.
23.2 Date of Notice. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. If sent by regular mail the notice shall be deemed given 72 hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered by United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given 24 hours after delivery of the same to the Postal Service or courier. Notices delivered by hand shall be deemed delivered upon actual receipt. If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day.
23.3 Options. Notwithstanding the foregoing, in order to exercise any Options (see paragraph 39), the Notice must be sent by Certified Mail (return receipt
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requested), Express Mail (signature required), courier (signature required) or some other methodology that provides a receipt establishing the date the notice was received by the Lessor.
24. Waivers.
(a) No waiver by Lessor of the Default or Breach of any term, covenant or condition hereof by Lessee, shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default or Breach by Lessee of the same or of any other term, covenant or condition hereof. Lessor's consent to, or approval of, any act shall not be deemed to render unnecessary the obtaining of Lessor's consent to, or approval of, any subsequent or similar act by Lessee, or be construed as the basis of an estoppel to enforce the provision or provisions of this Lease requiring such consent. (b) The acceptance of Rent by Lessor shall not be a waiver of any Default or Breach by Lessee. Any payment by Lessee may be accepted by Lessor on account of monies or damages due Lessor, notwithstanding any qualifying statements or conditions made by Lessee in connection therewith, which such statements and/or conditions shall be of no force or effect whatsoever unless specifically agreed to in writing by Lessor at or before the time of deposit of such payment. (c) THE PARTIES AGREE THAT THE TERMS OF THIS LEASE SHALL GOVERN WITH REGARD TO ALL MATTERS RELATED THERETO AND HEREBY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TO THE EXTENT THAT SUCH STATUTE IS INCONSISTENT WITH THIS LEASE.
25. Disclosures Regarding The Nature of a Real Estate Agency Relationship. (a) When entering into a discussion with a real estate agent regarding a real estate transaction, a Lessor or Lessee should from the outset understand what type of agency relationship or representation it has with the agent or agents in the transaction. Lessor and Lessee acknowledge being advised by the Brokers in this transaction, as follows:
(i) Lessor's Agent. A Lessor's agent under a listing agreement with the Lessor acts as the agent for the Lessor only. A Lessor's agent or subagent has the following affirmative obligations: To the Lessor: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessor. To the Lessee and the Lessor: (a) Diligent exercise of reasonable skills and care in performance of the agent's duties. (b) A duty of honest and fair dealing and good faith. (c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above.
(ii) Lessee's Agent. An agent can agree to act as agent for the Lessee only. In these situations, the agent is not the Lessor's agent, even if by agreement the agent may receive compensation for services rendered, either in full or in part from the Lessor. An agent acting only for a Lessee has the following affirmative obligations. To the Lessee: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessee. To the Lessee and the Lessor: (a) Diligent exercise of reasonable skills and care in performance of the agent's duties. (b) A duty of honest and fair dealing and good faith. (c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the Parties.
An agent is not obligated to reveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above.
(iii) Agent Representing Both Lessor and Lessee. A real estate agent, either acting directly or through one or more associate licenses, can legally be the agent of both the Lessor and the Lessee in a transaction, but only with the knowledge and consent of both the Lessor and the Lessee. In a dual agency situation, the agent has the following affirmative obligations to both the Lessor and the Lessee: (a) A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either Lessor or the Lessee. (b) Other duties to the Lessor and the Lessee as stated above in subparagraphs (i) or (ii). In representing both Lessor and Lessee, the agent may not, without the express permission of the respective Party, disclose to the other Party confidential information, including, but not limited to, facts relating to either Lessee's or Lessor's financial position, motivations, bargaining position, or other personal information that may impact rent, including Lessor's willingness to accept a rent less than the listing rent or Lessee's willingness to pay rent greater than the rent offered. The above duties of the agent in a real estate transaction do not relieve a Lessor or Lessee from the responsibility to protect their own interests. Lessor and Lessee should carefully read all agreements to assure that they adequately express their understanding of the transaction. A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional. Both Lessor and Lessee should strongly consider obtaining tax advice from a competent professional because the federal and state tax consequences of a transaction can be complex and subject to change. (b) Brokers have no responsibility with respect to any default or breach hereof by either Party. The Parties agree that no lawsuit or other legal proceeding involving any breach of duty, error or omission relating to this Lease may be brought against Broker more than one year after the Start Date and that the liability (including court costs and attorneys' fees), of any Broker with respect to any such lawsuit and/or legal proceeding shall not exceed the fee received by such Broker pursuant to this Lease; provided, however, that the foregoing limitation on each Broker's liability shall not be applicable to any gross negligence or willful misconduct of such Broker.
(c) Lessor and Lessee agree to identify to Brokers as "Confidential" any communication or information given Brokers that is considered by such Party to be confidential.
26. No Right To Holdover. Lessee has no right to retain possession of the Premises or any part thereof beyond the expiration or termination of this Lease. At or prior to the expiration or termination of this Lease Lessee shall deliver exclusive possession of the Premises to Lessor. For purposes of this provision and Paragraph
13.1(a), exclusive possession shall mean that Lessee shall have vacated the Premises, removed all of its personal property therefrom and that the Premises have been returned in the condition specified in this Lease. In the event that Lessee does not deliver exclusive possession to Lessor as specified above, then Lessor's damages during any holdover period shall be computed at the amount of the Rent (as defined in Paragraph 4.1) due during the last full month before the expiration or termination of this Lease (disregarding any temporary abatement of Rent that may have been in effect), but with Base Rent being 125% of the Base Rent payable during such last full month. Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
28. Covenants and Conditions; Construction of Agreement. All provisions of this Lease to be observed or performed by Lessee are both covenants and conditions.
In construing this Lease, all headings and titles are for the convenience of the Parties only and shall not be considered a part of this Lease. Whenever required by the context, the singular shall include the plural and vice versa. This Lease shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.
29. Binding Effect; Choice of Law. This Lease shall be binding upon the Parties, their personal representatives, successors and assigns and be governed by the laws of the State in which the Premises are located. Any litigation between the Parties hereto concerning this Lease shall be initiated in the county in which the Premises are located. Signatures to this Lease accomplished by means of electronic signature or similar technology shall be legal and binding.
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30. Subordination; Attornment; Non-Disturbance.
30.1 Subordination. This Lease and any Option granted hereby shall be subject and subordinate to any ground lease, mortgage, deed of trust, or other hypothecation or security device (collectively, "Security Device"), now or hereafter placed upon the Premises, to any and all advances made on the security thereof, and to all renewals, modifications, and extensions thereof. Lessee agrees that the holders of any such Security Devices (in this Lease together referred to as "Lender") shall have no liability or obligation to perform any of the obligations of Lessor under this Lease. Any Lender may elect to have this Lease and/or any Option granted hereby superior to the lien of its Security Device by giving written notice thereof to Lessee, whereupon this Lease and such Options shall be deemed prior to such Security Device, notwithstanding the relative dates of the documentation or recordation thereof.
30.2 Attornment. In the event that Lessor transfers title to the Premises, or the Premises are acquired by another upon the foreclosure or termination of a Security Device to which this Lease is subordinated (i) Lessee shall, subject to the non-disturbance provisions of Paragraph 30.3, attorn to such new owner, and upon request, enter into a new lease, containing all of the terms and provisions of this Lease, with such new owner for the remainder of the term hereof, or, at the election of the new owner, this Lease will automatically become a new lease between Lessee and such new owner, for the remainder of the term hereof and (ii) Lessor shall thereafter be relieved of any further obligations hereunder and such new owner shall assume all of Lessor's obligations, except that such new owner shall not: (a) be liable for any act or omission of any prior lessor or with respect to events occurring prior to acquisition of ownership; (b) be subject to any offsets or defenses which Lessee might have against any prior lessor, (c) be bound by prepayment of more than one month's rent, or (d) be liable for the return of any security deposit paid to any prior lessor which was not paid or credited to such new owner.
30.3 Non-Disturbance. With respect to Security Devices entered into by Lessor after the execution of this Lease, Lessee's subordination of this Lease shall be subject to receiving a commercially reasonable non-disturbance agreement (a "Non-Disturbance Agreement") from the Lender which Non-Disturbance Agreement provides that Lessee's possession of the Premises, and this Lease, including any options to extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof and attorns to the record owner of the Premises. Further, within 60 days after the execution of this Lease, Lessor shall, if requested by Lessee, use its commercially reasonable efforts to obtain a Non-Disturbance Agreement from the holder of any pre-existing Security Device which is secured by the Premises. In the event that Lessor is unable to provide the Non-Disturbance Agreement within said 60 days, then Lessee may, at Lessee's option, directly contact Lender and attempt to negotiate for the execution and delivery of a Non-Disturbance Agreement.
30.4 Self-Executing. The agreements contained in this Paragraph 30 shall be effective without the execution of any further documents; provided, however, that, upon written request from Lessor or a Lender in connection with a sale, financing or refinancing of the Premises, Lessee and Lessor shall execute such further writings as may be reasonably required to separately document any subordination, attornment and/or Non-Disturbance Agreement provided for herein.
31. Attorneys' Fees. See Paragraph 54 in the Addendum attached hereto.
32. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agents shall have the right to enter the Premises at any time, in the case of an emergency, and otherwise at reasonable times after reasonable prior notice for the purpose of showing the same to prospective purchasers, lenders, or tenants, and making such alterations, repairs, improvements or additions to the Premises as Lessor may deem necessary or desirable and the erecting, using and maintaining of utilities, services, pipes and conduits through the Premises and/or other premises as long as there is no material adverse effect on Lessee's use of the Premises. All such activities shall be without abatement of rent or liability to Lessee.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, any auction upon the Premises without Lessor's prior written consent. Lessor shall not be obligated to exercise any standard of reasonableness in determining whether to permit an auction.
34. Signs. Lessor may place on the Premises ordinary "For Sale" signs at any time and ordinary "For Lease" signs during the last 6 months of the term hereof. Except for ordinary "For Sublease" signs which may be placed only on the Premises, Lessee shall not place any sign upon the Project without Lessor's prior written consent.
All signs must comply with all Applicable Requirements.
35. Termination; Merger. Unless specifically stated otherwise in writing by Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual termination or cancellation hereof, or a termination hereof by Lessor for Breach by Lessee, shall automatically terminate any sublease or lesser estate in the Premises; provided, however, that Lessor may elect to continue any one or all existing subtenancies. Lessor's failure within 10 days following any such event to elect to the contrary by written notice to the holder of any such lesser interest, shall constitute Lessor's election to have such event constitute the termination of such interest.
36. Consents. All requests for consent shall be in writing. Except as otherwise provided herein, wherever in this Lease the consent of a Party is required to an act by or for the other Party, such consent shall not be unreasonably withheld or delayed. Lessor's actual reasonable costs and expenses (including but not limited to architects', attorneys', engineers' and other consultants' fees) incurred in the consideration of, or response to, a request by Lessee for any Lessor consent, including but not limited to consents to an assignment, a subletting or the presence or use of a Hazardous Substance, shall be paid by Lessee upon receipt of an invoice and supporting documentation therefor. Lessor's consent to any act, assignment or subletting shall not constitute an acknowledgment that no Default or Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then existing Default or Breach, except as may be otherwise specifically stated in writing by Lessor at the time of such consent. The failure to specify herein any particular condition to Lessor's consent shall not preclude the imposition by Lessor at the time of consent of such further or other conditions as are then reasonable with reference to the particular matter for which consent is being given. In the event that either Party disagrees with any determination made by the other hereunder and reasonably requests the reasons for such determination, the determining party shall furnish its reasons in writing and in reasonable detail within 10 business days following such request.
37. Guarantor.
37.1 Execution . The Guarantors, if any, shall each execute a guaranty in the form most recently published BY AIR CRE. In the event Lessee sublets the Premises and Lessor allows the new subtenant to become a Guarantor, the previous Guarantor shall be released from all liability under this Lease.
37.2 Default. It shall constitute a Default of the Lessee if any Guarantor fails or refuses, upon request to provide: (a) evidence of the execution of the guaranty, including the authority of the party signing on Guarantor's behalf to obligate Guarantor, and in the case of a corporate Guarantor, a certified copy of a resolution of its
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board of directors authorizing the making of such guaranty, (b) current financial statements, (c) an Estoppel Certificate, or (d) written confirmation that the guaranty is still in effect.
38. Quiet Possession. Subject to payment by Lessee of the Rent and performance of all of the covenants, conditions and provisions on Lessee's part to be observed and performed under this Lease, Lessee shall have quiet possession and quiet enjoyment of the Premises during the term hereof.
39. Options. If Lessee is granted any option, as defined below, then the following provisions shall apply.
39.1 Definition. "Option" shall mean: (a) the right to extend or reduce the term of or renew this Lease or to extend or reduce the term of or renew any lease that Lessee has on other property of Lessor; (b) the right of first refusal or first offer to lease either the Premises or other property of Lessor; (c) the right to purchase, the right of first offer to purchase or the right of first refusal to purchase the Premises or other property of Lessor.
39.2 Options Personal To Original Lessee. Any Option granted to Lessee in this Lease is personal to the original Lessee, and cannot be assigned or exercised by anyone other than said original Lessee .
39.3 Multiple Options. In the event that Lessee has any multiple Options to extend or renew this Lease, a later Option cannot be exercised unless the prior Options have been validly exercised.
39.4 Effect of Default on Options .
(a) Lessee shall have no right to exercise an Option: (i) during the period commencing with the giving of any notice of Default and continuing until said Default is cured, (ii) during the period of time any Rent is unpaid (without regard to whether notice thereof is given Lessee), (iii) during the time Lessee is in Breach of this Lease, or (iv) in the event that Lessee has been given 3 or more notices of separate Default, whether or not the Defaults are cured, during the 12 month period immediately preceding the exercise of the Option.
(b) The period of time within which an Option may be exercised shall not be extended or enlarged by reason of Lessee's inability to exercise an Option because of the provisions of Paragraph 39.4(a).
(c) An Option shall terminate and be of no further force or effect, notwithstanding Lessee's due and timely exercise of the Option, if, after such exercise and prior to the commencement of the extended term or completion of the purchase, (i) Lessee fails to pay Rent for a period of 30 days after such Rent becomes due (without any necessity of Lessor to give notice thereof), or (ii) if Lessee commits a Breach of this Lease.
40. Security Measures. Lessee hereby acknowledges that the Rent payable to Lessor hereunder does not include the cost of guard service or other security measures, and that Lessor shall have no obligation whatsoever to provide same. Lessee assumes all responsibility for the protection of the Premises, Lessee, its agents and invitees and their property from the acts of third parties.
41. Reservations. Lessor reserves the right: (i) to grant, without the consent or joinder of Lessee, such easements, rights and dedications that Lessor deems necessary; (ii) to cause the recordation of parcel maps and restrictions; and (iii) to create and/or install new utility raceways, so long as such easements, rights, dedications, maps, restrictions, and utility raceways do not unreasonably interfere with the use of the Premises by Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to effectuate such rights.
42. Performance Under Protest. If at any time a dispute shall arise as to any amount or sum of money to be paid by one Party to the other under the provisions hereof, the Party against whom the obligation to pay the money is asserted shall have the right to make payment "under protest" and such payment shall not be regarded as a voluntary payment and there shall survive the right on the part of said Party to institute suit for recovery of such sum. If it shall be adjudged that there was no legal obligation on the part of said Party to pay such sum or any part thereof, said Party shall be entitled to recover such sum or so much thereof as it was not legally required to pay. A Party who does not initiate suit for the recovery of sums paid "under protest" within 6 months shall be deemed to have waived its right to protest such payment.
43. Authority; Multiple Parties; Execution.
(a) If either Party hereto is a corporation, trust, limited liability company, partnership, or similar entity, each individual executing this Lease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on its behalf. Each Party shall, within 30 days after request, deliver to the other Party satisfactory evidence of such authority. (b) If this Lease is executed by more than one person or entity as "Lessee", each such person or entity shall be jointly and severally liable hereunder. It is agreed that any one of the named Lessees shall be empowered to execute any amendment to this Lease, or other document ancillary thereto and bind all of the named Lessees, and Lessor may rely on the same as if all of the named Lessees had executed such document. (c) This Lease may be executed by the Parties in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
44. Conflict. Any conflict between the printed provisions of this Lease and the typewritten or handwritten provisions shall be controlled by the typewritten or handwritten provisions.
45. Offer. Preparation of this Lease by either party or their agent and submission of same to the other Party shall not be deemed an offer to lease to the other Party. This Lease is not intended to be binding until executed and delivered by all Parties hereto.
46. Amendments. This Lease may be modified only in writing, signed by the Parties in interest at the time of the modification. As long as they do not materially change Lessee's obligations hereunder, Lessee agrees to make such reasonable non-monetary modifications to this Lease as may be reasonably required by a Lender in connection with the obtaining of normal financing or refinancing of the Premises.
47. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT.
48. Arbitration of Disputes. An Addendum requiring the Arbitration of all disputes between the Parties and/or Brokers arising out of this Lease is is not attached to this Lease. See Paragraph 55 in the Addendum attached hereto.
49. Accessibility; Americans with Disabilities Act.
(a) The Premises:
have not undergone an inspection by a Certified Access Specialist (CASp). Note: A Certified Access Specialist (CASp) can inspect the subject premises and
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determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises. have undergone an inspection by a Certified Access Specialist (CASp) and it was determined that the Premises met all applicable construction-related accessibility standards pursuant to California Civil Code §55.51 et seq. Lessee acknowledges that it received a copy of the inspection report at least 48 hours prior to executing this Lease and agrees to keep such report confidential.
have undergone an inspection by a Certified Access Specialist (CASp) and it was determined that the Premises did not meet all applicable construction-related accessibility standards pursuant to California Civil Code §55.51 et seq. Lessee acknowledges that it received a copy of the inspection report at least 48 hours prior to executing this Lease and agrees to keep such report confidential except as necessary to complete repairs and corrections of violations of construction related accessibility standards.
In the event that the Premises have been issued an inspection report by a CASp the Lessor shall provide a copy of the disability access inspection certificate to Lessee within 7 days of the execution of this Lease.
(b) Since compliance with the Americans with Disabilities Act (ADA) and other state and local accessibility statutes are dependent upon Lessee's specific use of the Premises, Lessor makes no warranty or representation as to whether or not the Premises comply with ADA or any similar legislation. In the event that Lessee's use of the Premises requires modifications or additions to the Premises in order to be in compliance with ADA or other accessibility statutes, Lessee agrees to make any such necessary modifications and/or additions at Lessee's expense.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED,
THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY AIR CRE OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE STRUCTURAL INTEGRITY, THE
CONDITION OF THE ROOF AND OPERATING SYSTEMS, COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT AND THE SUITABILITY OF THE PREMISES FOR LESSEE'S INTENDED USE.
WARNING: IF THE PREMISES ARE LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED.
The parties hereto have executed this Lease at the place and on the dates specified above their respective signatures.
Executed at:
On:
By LESSOR:
CITY OF SAN MATEO
By:
Name Printed: Alex Khojikian
Title: City Manager
APPROVED AS TO FORM:
By:
Name Printed: Mazarin Vakharia
Title: Assistant City Attorney
Address: 330 West 20th Avenue, San Mateo, CA
94403
Executed at:
On:
By LESSEE:
COLD STONE CREAMERY LEASING COMPANY, INC.
By:
Name Printed:
Title:
Phone:
Fax:
Email:
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BROKER
Prodesse Property Group
Attn: Dean Isaacs
Title: Commercial Portfolio Manager
Address: 1065 E. Hillsdale Blvd., Suite 317,
Foster City, CA 94404
Phone: (650) 578-9661
Fax: (650) 578-9009
Email: [email protected]
Federal ID No.:
Broker DRE License #:
01167036 Agent DRE License #:
00807972
AIR CRE * https:// www.aircre.com * 213-687-8777 * [email protected] NOTICE: No part of these works may be reproduced in any form without permission in writing.
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DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIP
(As required by the Civil Code)
When you enter into a discussion with a real estate agent regarding a real estate transaction, you should from the outset understand what type of agency relationship or representation you wish to have with the agent in the transaction.
SELLER'S AGENT
A Seller's agent under a listing agreement with the Seller acts as the agent for the Seller only. A Seller's agent or a subagent of that agent has the following affirmative obligations:
To the Seller: A fiduciary duty of utmost care, integrity, honesty and loyalty in dealings with the Seller.
To the Buyer and the Seller:
(a) Diligent exercise of reasonable skill and care in performance of the agent's duties. (b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the parties.
An agent is not obligated to reveal to either party any confidential information obtained from the other party that does not involve the affirmative duties set forth above.
BUYER'S AGENT
A Buyer's agent can, with a Buyer's consent, agree to act as agent for the Buyer only. In these situations, the agent is not the Seller's agent, even if by agreement the agent may receive compensation for services rendered, either in full or in part from the Seller. An agent acting only for a Buyer has the following affirmative obligations:
To the Buyer: A fiduciary duty of utmost care, integrity, honesty and loyalty in dealings with the Buyer.
To the Buyer and the Seller:
(a) Diligent exercise of reasonable skill and care in performance of the agent's duties. (b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the parties.
An agent is not obligated to reveal to either party any confidential information obtained from the other party that does not involve the affirmative duties set forth above.
AGENT REPRESENTING BOTH SELLER AND BUYER
A real estate agent, either acting directly or through one or more salesperson and broker associates, can legally be the agent of both the Seller and the Buyer in a transaction, but only with the knowledge and consent of both the Seller and the Buyer.
In a dual agency situation, the agent has the following affirmative obligations to both the Seller and the Buyer:
(a) A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either the Seller or the Buyer. (b) Other duties to the Seller and the Buyer as stated above in their respective sections.
In representing both Seller and Buyer, a dual agent may not, without the express permission of the respective party, disclose to the other party confidential information, including, but not limited to, facts relating to either the Buyer's or Seller's financial position, motivations, bargaining position, or other personal information that may impact price, including the Seller's willingness to accept a price less than the listing price or the Buyer's willingness to pay a price greater than the price offered.
SELLER AND BUYER RESPONSIBILITIES
Either the purchase agreement or a separate document will contain a confirmation of which agent is representing you and whether that agent is representing you exclusively in the transaction or acting as a dual agent. Please pay attention to that confirmation to make sure it accurately reflects your understanding of your agent’s role. The above duties of the agent in a real estate transaction do not relieve a Seller or Buyer from the responsibility to protect his or her own interests. You should carefully read all agreements to assure that they adequately express your understanding of the transaction. A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional. If you are a Buyer, you have the duty to exercise reasonable care to protect yourself, including as to those facts about the property which are known to you or within your diligent attention and observation. Both Sellers and Buyers should strongly consider obtaining tax advice from a competent professional because the federal and state tax consequences of a transaction can be complex and subject to change.
Throughout your real property transaction you may receive more than one disclosure form, depending upon the number of agents assisting in the transaction. The law requires each agent with whom you have more than a casual relationship to present you with this disclosure form. You should read its contents each time it is presented to you, considering the relationship between you and the real estate agent in your specific transaction. This disclosure form includes the provisions of Sections 2079.13 to 2079.24, inclusive, of the Civil Code set forth on page 2. Read it carefully. I/WE ACKNOWLEDGE RECEIPT OF A COPY OF THIS DISCLOSURE AND THE PORTIONS OF THE CIVIL CODE PRINTED ON THE BACK (OR A SEPARATE PAGE).
Buyer Seller Lessor Lessee Date:
Buyer Seller Lessor Lessee Date:
Agent: Prodesse Property GroupDRE Lic. #: 01167036 Real Estate Broker (Firm)
By: DRE Lic. #: 00807972Date:
(Salesperson or Broker-Associate)
THIS FORM HAS BEEN PREPARED BY AIR CRE. NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF THIS FORM FOR ANY SPECIFIC TRANSACTION. PLEASE SEEK LEGAL COUNSEL AS TO THE APPROPRIATENESS OF THIS FORM.
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DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIP
CIVIL CODE SECTIONS 2079.13 THROUGH 2079.24 (2079.16 APPEARS ON THE FRONT) 2079.13. As used in Sections 2079.7 and 2079.14 to 2079.24, inclusive, the following terms have the following meanings:
(a) “Agent” means a person acting under provisions of Title 9 (commencing with Section 2295) in a real property transaction, and includes a person who is licensed as a real estate broker under Chapter 3 (commencing with Section 10130) of Part 1 of Division 4 of the Business and Professions Code, and under whose license a listing is executed or an offer to purchase is obtained. The agent in the real property transaction bears responsibility for that agent’s salespersons or broker associates who perform as agents of the agent. When a salesperson or broker associate owes a duty to any principal, or to any buyer or seller who is not a principal, in a real property transaction, that duty is equivalent to the duty owed to that party by the broker for whom the salesperson or broker associate functions. (b) “Buyer” means a transferee in a real property transaction, and includes a person who executes an offer to purchase real property from a seller through an agent, or who seeks the services of an agent in more than a casual, transitory, or preliminary manner, with the object of entering into a real property transaction. “Buyer” includes vendee or lessee of real property. (c) “Commercial real property” means all real property in the state, except (1) single-family residential real property, (2) dwelling units made subject to Chapter 2 (commencing with Section 1940) of Title 5, (3) a mobilehome, as defined in Section 798.3, (4) vacant land, or (5) a recreational vehicle, as defined in Section 799.29. (d) “Dual agent” means an agent acting, either directly or through a salesperson or broker associate, as agent for both the seller and the buyer in a real property transaction. (e) “Listing agreement” means a written contract between a seller of real property and an agent, by which the agent has been authorized to sell the real property or to find or obtain a buyer, including rendering other services for which a real estate license is required to the seller pursuant to the terms of the agreement. (f) “Seller's agent” means a person who has obtained a listing of real property to act as an agent for compensation. (g) “Listing price” is the amount expressed in dollars specified in the listing for which the seller is willing to sell the real property through the seller’s agent. (h) “Offering price” is the amount expressed in dollars specified in an offer to purchase for which the buyer is willing to buy the real property. (i) “Offer to purchase” means a written contract executed by a buyer acting through a buyer’s agent that becomes the contract for the sale of the real property upon acceptance by the seller. (j) “Real property” means any estate specified by subdivision (1) or (2) of Section 761 in property, and includes (1) single-family residential property, (2) multiunit residential property with more than four dwelling units, (3) commercial real property, (4) vacant land, (5) a ground lease coupled with improvements, or (6) a manufactured home as defined in Section 18007 of the Health and Safety Code, or a mobilehome as defined in Section 18008 of the Health and Safety Code, when offered for sale or sold through an agent pursuant to the authority contained in Section 10131.6 of the Business and Professions Code. (k) “Real property transaction” means a transaction for the sale of real property in which an agent is retained by a buyer, seller, or both a buyer and seller to act in that transaction, and includes a listing or an offer to purchase. (l) “Sell,” “sale,” or “sold” refers to a transaction for the transfer of real property from the seller to the buyer and includes exchanges of real property between the seller and buyer, transactions for the creation of a real property sales contract within the meaning of Section 2985, and transactions for the creation of a leasehold exceeding one year’s duration. (m) “Seller” means the transferor in a real property transaction and includes an owner who lists real property with an agent, whether or not a transfer results, or who receives an offer to purchase real property of which he or she is the owner from an agent on behalf of another. “Seller” includes both a vendor and a lessor of real property. (n) “Buyer's agent” means an agent who represents a buyer in a real property transaction. 2079.14. A seller’s agent and buyer’s agent shall provide the seller and buyer in a real property transaction with a copy of the disclosure form specified in Section 2079.16, and shall obtain a signed acknowledgment of receipt from that seller and buyer, except as provided in Section 2079.15, as follows: (a) The seller’s agent, if any, shall provide the disclosure form to the seller prior to entering into the listing agreement. (b) The buyer’s agent shall provide the disclosure form to the buyer as soon as practicable prior to execution of the buyer’s offer to purchase. If the offer to purchase is not prepared by the buyer’s agent, the buyer’s agent shall present the disclosure form to the buyer not later than the next business day after receiving the offer to purchase from the buyer. 2079.15. In any circumstance in which the seller or buyer refuses to sign an acknowledgment of receipt pursuant to Section 2079.14, the agent shall set forth, sign, and date a written declaration of the facts of the refusal. 2079.16 Reproduced on Page 1 of this AD form.
2079.17(a) As soon as practicable, the buyer’s agent shall disclose to the buyer and seller whether the agent is acting in the real property transaction as the buyer’s agent, or as a dual agent representing both the buyer and the seller. This relationship shall be confirmed in the contract to purchase and sell real property or in a separate writing executed or acknowledged by the seller, the buyer, and the buyer’s agent prior to or coincident with execution of that contract by the buyer and the seller, respectively. (b) As soon as practicable, the seller’s agent shall disclose to the seller whether the seller’s agent is acting in the real property transaction as the seller’s agent, or as a dual agent representing both the buyer and seller. This relationship shall be confirmed in the contract to purchase and sell real property or in a separate writing executed or acknowledged by the seller and the seller’s agent prior to or coincident with the execution of that contract by the seller. (C) CONFIRMATION: The following agency relationships are confirmed for this transaction.
Seller's Brokerage Firm NOT APPLICABLE License Number Is the broker of (check one): o the seller; or o both the buyer and seller. (dual agent) Seller's Agent NOT APPLICABLE License Number
Is (check one): o the Seller's Agent. (salesperson or broker associate); or o both the Buyer's Agent and the Seller's Agent. (dual agent) Buyer's Brokerage Firm NOT APPLICABLE License Number Is the broker of (check one): o the buyer; or o both the buyer and seller. (dual agent) Buyer's Agent NOT APPLICABLE License Number
Is (check one): o the Buyer's Agent. (salesperson or broker associate); or o both the Buyer's Agent and the Seller's Agent. (dual agent) (d) The disclosures and confirmation required by this section shall be in addition to the disclosure required by Section 2079.14. An agent’s duty to provide disclosure and confirmation of representation in this section may be performed by a real estate salesperson or broker associate affiliated with that broker. 2079.18 (Repealed pursuant to AB-1289, 2017-18 California Legislative session) 2079.19 The payment of compensation or the obligation to pay compensation to an agent by the seller or buyer is not necessarily determinative of a particular agency relationship between an agent and the seller or buyer. A listing agent and a selling agent may agree to share any compensation or commission paid, or any right to any compensation or commission for which an obligation arises as the result of a real estate transaction, and the terms of any such agreement shall not necessarily be determinative of a particular relationship.
2079.20 Nothing in this article prevents an agent from selecting, as a condition of the agent’s employment, a specific form of agency relationship not specifically
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prohibited by this article if the requirements of Section 2079.14 and Section 2079.17 are complied with. 2079.21 (a) A dual agent may not, without the express permission of the seller, disclose to the buyer any confidential information obtained from the seller. (b) A dual agent may not, without the express permission of the buyer, disclose to the seller any confidential information obtained from the buyer. (c) “Confidential information” means facts relating to the client’s financial position, motivations, bargaining position, or other personal information that may impact price, such as the seller is willing to accept a price less than the listing price or the buyer is willing to pay a price greater than the price offered. (d) This section does not alter in any way the duty or responsibility of a dual agent to any principal with respect to confidential information other than price. 2079.22 Nothing in this article precludes a seller’s agent from also being a buyer’s agent. If a seller or buyer in a transaction chooses to not be represented by an agent, that does not, of itself, make that agent a dual agent. 2079.23 (a) A contract between the principal and agent may be modified or altered to change the agency relationship at any time before the performance of the act which is the object of the agency with the written consent of the parties to the agency relationship. (b) A lender or an auction company retained by a lender to control aspects of a transaction of real property subject to this part, including validating the sales price, shall not require, as a condition of receiving the lender’s approval of the transaction, the homeowner or listing agent to defend or indemnify the lender or auction company from any liability alleged to result from the actions of the lender or auction company. Any clause, provision, covenant, or agreement purporting to impose an obligation to defend or indemnify a lender or an auction company in violation of this subdivision is against public policy, void, and unenforceable. 2079.24 Nothing in this article shall be construed to either diminish the duty of disclosure owed buyers and sellers by agents and their associate licensees, subagents, and employees or to relieve agents and their associate licensees, subagents, and employees from liability for their conduct in connection with acts governed by this article or for any breach of a fiduciary duty or a duty of disclosure.
AIR CRE * https:// www.aircre.com * 213-687-8777 * [email protected] NOTICE: No part of these works may be reproduced in any form without permission in writing.
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ADDENDUM TO LEASE
Date:November 1, 2023
By and Between
Lessor:CITY OF SAN MATEO
Lessee:COLD STONE CREAMERY LEASING COMPANY, INC.
Property Address:375 Second Avenue, San Mateo, CA 94401 (street address, city, state, zip)
Paragraph: 50-55
In the event of any conflict between the provisions of this Addendum and the printed provisions of the Lease, this Addendum shall control.
AIR CRE * https:// www.aircre.com * 213-687-8777 * [email protected] NOTICE: No part of these works may be reproduced in any form without permission in writing.
50. Prop 65. California’s Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986 (“Prop. 65”), was enacted as a ballot initiative in November 1986. Prop. 65 protects the state's drinking water sources from being contaminated with chemicals known to cause cancer, birth defects or other reproductive harm, and requires businesses to inform Californians about exposures to such chemicals.
Proposition 65 requires the state to maintain and update a list of chemicals known to the state to cause cancer or reproductive toxicity. For more information, see the internet site of the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA), which administers the Prop. 65 program, https://oehha.ca.gov/proposition-65/about-proposition-65. Tenant shall undertake and implement all notice and warning requirements applicable at and regarding the Premises, on behalf of Tenant, Landlord, and Landlord’s property managers, members, directors, officers, agents, and employees.
51. Water Intrusion. Lessee is aware that there is an existing building design component that has allowed water intrusion in the past. Though there has been considerable effort to mitigate the situation, the Lessee will acknowledge that in severe weather, there may be water intrusion at the doors, water draining from the doors on the interior floor when doors are opened, and wind-driven water entering the air shaft and to the retail space. Lessee is responsible for the immediate removal of the water and immediate notification of intrusion to the Lessor.
Items listed as exceptions shall be dealt with in the following manner: Lessee is responsible for the immediate notification to Lessor of maintenance, loss, damage or any other issues related to the Premises as indicated:
maintenance issues - Public Works, (650) 522-7300, claims - first Lessee's insurer as stated in the Lease, secondly, the City Attorney's Department (650) 522-7020, all other questions - Economic Development, (650) 522-7240. If properly notified, Lessor will pay up to a total of $25,000.00 over the term of the Lease to repair damages to the Premises resulting from water intrusion.
52. Costs and Attorney Fees. Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Lease. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this provision that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Lease.
53. Mediation. Should any dispute arise out of this Lease, any party may request that it be submitted to
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mediation. The parties shall meet in mediation within thirty (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 blind draw.
54. Governing Law and Venue. This Agreement is governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
55. Notice of Damage, Maintenance or Loss. Lessee is responsible for the immediate notification to Lessee of maintenance, loss, damage or any other issues related to the Premises as indicated:
□ Maintenance Issues, - Public Works, 650-522-7300
□ Claims - First, Tenant insurer as stated in Lease, secondly, the City Attorney’s Department, 650-522- 7020
□ All other questions – City Manager’s Office, 650-522-7000
56. Subletting. Notwithstanding anything to the contrary contained in this Lease, Tenant shall have the right, without Landlord's consent and without the imposition of any fees, to sublet the Premises (each a “Permitted Sublease”) to a duly authorized franchisee approved Franchisor, and provided that one of such franchisee’s principals has a minimum of 2 years’ experience in retail sales, operations or ownership, whereby such franchisee agrees to assume and perform all covenants and conditions of Tenant contained in this Lease pursuant to the terms of a sublease. Notwithstanding anything to the contrary contained herein, following any Permitted Sublease, Tenant shall not be released from any liability under this Lease.
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RENT ADJUSTMENT(S)
(ORIGINAL TERM)
STANDARD LEASE ADDENDUM
Dated:November 1, 2023
By and Between
Lessor:CITY OF SAN MATEO
Lessee:COLD STONE CREAMERY LEASING COMPANY, INC.
Property Address:375 Second Avenue, San Mateo, CA 94401 (street address, city, state, zip)
Paragraph: 56
The monthly Base Rent during the Original Term of the Lease shall be increased by using the method(s) selected below (check method(s) to be used and fill in appropriately):
I. Consumer Price Index.
a. The monthly Base Rent shall be increased on and every months thereafter during the Original Term ("CPI Increase Date(s)") commensurate with the increase in the CPI (as herein defined) determined as follows: the monthly Base Rent scheduled for the first month of the Original Term shall be multiplied by a fraction the denominator of which is the Base CPI (as herein defined), and the numerator of which is the Comparison CPI (as herein defined). The amount so calculated shall constitute the new Base Rent until the next CPI Increase Date, but in no event shall any such new Base Rent be less than the Base Rent for the month immediately preceding the applicable CPI Increase Date. b. The term "CPI" shall mean the Consumer Price Index of the Bureau of Labor Statistics of the U.S. Department of Labor for (select one): CPI W (Urban Wage Earners and Clerical Workers) or CPI U (All Urban Consumers), for (fill in Urban Area): or the area in which the Premises is located, All Items (1982-1984 = 100). The term "Comparison CPI" shall mean the CPI of the calendar month which is 2 full months prior to the applicable Original Term CPI Increase Date. The term "Base CPI" shall mean the CPI of the calendar month which is 2 full months prior to the Commencement Date of the Original Term. c. If the compilation and/or publication of the CPI is transferred to another governmental department, bureau or agency or is discontinued, then instead the index most nearly the same as the CPI shall be used to calculate the Base Rent increases hereunder. If the Parties cannot agree on such alternative index, then the matter shall be submitted for decision to the American Arbitration Association in accordance with the then rules of said association and the decision of the arbitrators shall be binding upon the parties, with the cost of such arbitration being paid equally by the Parties.
II. Fixed Percentage. The monthly Base Rent shall be increased on and every months thereafter during the Original Term ("Percentage Increase Date(s)") by percent ( %) of the monthly Base Rent scheduled to be paid for the month immediately preceding the applicable Percentage Increase Date.
III. Fixed Rental Adjustment(s) ("FRA").
The monthly Base Rent shall be increased to the following amounts on the dates set forth below:
On (fill in FRA Adjustment Date(s)): The new Base Rent shall be:
November 1, 2024 $3,341.84 per month
November 1, 2025 $3,442.09 per month
November 1, 2026 $3,545.35 per month
November 1, 2027 $3,651.71 per month
BROKER'S FEE: For each adjustment in Base Rent specified above, the Brokers shall be paid a Brokerage Fee in accordance with paragraph 15 of the Lease or if applicable, paragraph 9 of the Sublease.
AIR CRE * https://www.aircre.com * 213-687-8777 * [email protected]
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Site Plan
Floor Plan
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OPTION(S) TO EXTEND
STANDARD LEASE ADDENDUM
Dated:November 1, 2023
By and Between
Lessor:CITY OF SAN MATEO
Lessee:COLD STONE CREAMERY LEASING COMPANY, INC.
Property Address:375 Second Avenue, San Mateo, CA 94401 (street address, city, state, zip)
Paragraph: 57
A. OPTION(S) TO EXTEND:
Lessor hereby grants to Lessee the option to extend the term of this Lease for one (1) additional sixty (60) month period(s) commencing when the prior term expires upon each and all of the following terms and conditions:
(i) In order to exercise an option to extend, Lessee must give written notice of such election to Lessor and Lessor must receive the same at least 6 (six) but not more than twelve (12)months prior to the date that the option period would commence, time being of the essence. If proper notification of the exercise of an option is not given and/or received, such option shall automatically expire. Options (if there are more than one) may only be exercised consecutively.
(ii) The provisions of paragraph 39, including those relating to Lessee's Default set forth in paragraph 39.4 of this Lease, are conditions of this Option. (iii) Except for the provisions of this Lease granting an option or options to extend the term, all of the terms and conditions of this Lease except where specifically modified by this option shall apply.
(iv) This Option is personal to the original Lessee, and cannot be assigned or exercised by anyone other than said original Lessee and only while the original Lessee is in full possession of the Premises and without the intention of thereafter assigning or subletting. (v) The monthly rent for each month of the option period shall be calculated as follows, using the method(s) indicated below:
(Check Method(s) to be Used and Fill in Appropriately)
I. Cost of Living Adjustment(s) (COLA)
a. On (Fill in COLA Dates): November 1, 2028, and each subsequent annual anniversary of the extended lease term the Base Rent shall be adjusted by the change, if any, from the Base Month specified below, in the Consumer Price Index of the Bureau of Labor Statistics of the U.S. Department of Labor for (select one): CPI W (Urban Wage Earners and Clerical Workers) or CPI U (All Urban Consumers), for (Fill in Urban Area): San Francisco - Oakland - Hayward . All Items (1982-1984 = 100), herein referred to as "CPI". b. The monthly Base Rent payable in accordance with paragraph A.I.a. of this Addendum shall be calculated as follows: the Base Rent set forth in paragraph
1.5 of the attached Lease, shall be multiplied by a fraction the numerator of which shall be the CPI of the calendar month 2 months prior to the month(s) specified in paragraph A.I.a. above during which the adjustment is to take effect, and the denominator of which shall be the CPI of the calendar month which is 2 months prior to (select one): the first month of the term of this Lease as set forth in paragraph 1.3 ("Base Month") or (Fill in Other "Base Month"): . The sum so calculated shall constitute the new monthly Base Rent hereunder, but in no event, shall any such new monthly Base Rent be less than the Base Rent payable for the month immediately preceding the rent adjustment.
c. In the event the compilation and/or publication of the CPI shall be transferred to any other governmental department or bureau or agency or shall be discontinued, then the index most nearly the same as the CPI shall be used to make such calculation. In the event that the Parties cannot agree on such alternative index, then the matter shall be submitted for decision to the American Arbitration Association in accordance with the then rules of said Association and the decision of the arbitrators shall be binding upon the parties. The cost of said Arbitration shall be paid equally by the Parties.
II. Market Rental Value Adjustment(s) (MRV)
a. On (Fill in MRV Adjustment Date(s)) the Base Rent shall be adjusted to the "Market Rental Value" of the property as follows:
1) Four months prior to each Market Rental Value Adjustment Date described above, the Parties shall attempt to agree upon what the new MRV will be on the adjustment date. If agreement cannot be reached, within thirty days, then:
(a) Lessor and Lessee shall immediately appoint a mutually acceptable appraiser or broker to establish the new MRV within the next 30 days. Any associated costs will be split equally between the Parties, or (b) Both Lessor and Lessee shall each immediately make a reasonable determination of the MRV and submit such determination, in writing, to
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arbitration in accordance with the following provisions:
(i) Within 15 days thereafter, Lessor and Lessee shall each select an independent third party appraiser or broker ("Consultant" - check one) of their choice to act as an arbitrator (Note: the parties may not select either of the Brokers that was involved in negotiating the Lease). The two arbitrators so appointed shall immediately select a third mutually acceptable Consultant to act as a third arbitrator. (ii) The 3 arbitrators shall within 30 days of the appointment of the third arbitrator reach a decision as to what the actual MRV for the Premises is, and whether Lessor's or Lessee's submitted MRV is the closest thereto. The decision of a majority of the arbitrators shall be binding on the Parties. The submitted MRV which is determined to be the closest to the actual MRV shall thereafter be used by the Parties. (iii) If either of the Parties fails to appoint an arbitrator within the specified 15 days, the arbitrator timely appointed by one of them shall reach a decision on his or her own, and said decision shall be binding on the Parties. (iv) The entire cost of such arbitration shall be paid by the party whose submitted MRV is not selected, ie. the one that is NOT the closest to the actual MRV.
2) When determining MRV, the Lessor, Lessee and Consultants shall consider the terms of comparable market transactions which shall include, but not be limited to, rent, rental adjustments, abated rent, lease term and financial condition of tenants. 3) Notwithstanding the foregoing, the new Base Rent shall not be less than the rent payable for the month immediately preceding the rent adjustment. b. Upon the establishment of each New Market Rental Value:
1) the new MRV will become the new "Base Rent" for the purpose of calculating any further Adjustments, and 2) the first month of each Market Rental Value term shall become the new "Base Month" for the purpose of calculating any further Adjustments.
III. Fixed Rental Adjustment(s) (FRA)
The Base Rent shall be increased to the following amounts on the dates set forth below:
On (Fill in FRA Adjustment Date(s)): The New Base Rent shall be:
IV. Initial Term Adjustments
The formula used to calculate adjustments to the Base Rent during the original Term of the Lease shall continue to be used during the extended term.
B. NOTICE:
Unless specified otherwise herein, notice of any rental adjustments, other than Fixed Rental Adjustments, shall be made as specified in paragraph 23 of the Lease.
AIR CRE * https:// www.aircre.com * 213-687-8777 * [email protected] NOTICE: No part of these works may be reproduced in any form without permission in writing.
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GUARANTY OF LEASE
WHEREAS, CITY OF SAN MATEO , hereinafter "Lessor", and COLD STONE CREAMERY LEASING COMPANY, INC. , hereinafter "Lessee", are about to execute a document entitled "Lease" dated November 1, 2023 concerning the premises commonly known as (street address, city, state, zip) 375 Second Avenue, San Mateo, CA 94401 wherein Lessor will lease the premises to Lessee, and WHEREAS, hereinafter "Guarantors" have a financial interest in Lessee, and WHEREAS, Lessor would not execute the Lease if Guarantors did not execute and deliver to Lessor this Guaranty of Lease.
NOW THEREFORE, in consideration of the execution of said Lease by Lessor and as a material inducement to Lessor to execute said Lease, Guarantors hereby jointly, severally, unconditionally and irrevocably guarantee the prompt payment by Lessee of all rents and all other sums payable by Lessee under said Lease and the faithful and prompt performance by Lessee of each and every one of the terms, conditions and covenants of said Lease to be kept and performed by Lessee.
It is specifically agreed by Lessor and Guarantors that: (i) the terms of the foregoing Lease may be modified by agreement between Lessor and Lessee, or by a course of conduct, and (ii) said Lease may be assigned by Lessor or any assignee of Lessor without the consent of or notice to Guarantors and that this Guaranty shall guarantee the performance of said Lease as so modified.
This Guaranty shall not be released, modified or affected by the failure or delay on the part of Lessor to enforce any of the rights or remedies of the Lessor under said Lease.
No notice of default by Lessee under the Lease need be given by Lessor to Guarantors, it being specifically agreed that the guarantee of the undersigned is a continuing guarantee under which Lessor may proceed immediately against Lessee and/or against Guarantors following any breach or default by Lessee or for the enforcement of any rights which Lessor may have as against Lessee under the terms of the Lease or at law or in equity.
Lessor shall have the right to proceed against Guarantors following any breach or default by Lessee under the Lease without first proceeding against Lessee and without previous notice to or demand upon either Lessee or Guarantors.
Guarantors hereby waive (a) notice of acceptance of this Guaranty. (b) demand of payment, presentation and protest, (c) all right to assert or plead any statute of limitations relating to this Guaranty or the Lease, (d) any right to require the Lessor to proceed against the Lessee or any other Guarantor or any other person or entity liable to Lessor, (e) any right to require Lessor to apply to any default any security deposit or other security it may hold under the Lease, (f) any right to require Lessor to proceed under any other remedy Lessor may have before proceeding against Guarantors, (g) any right of subrogation that Guarantors may have against Lessee.
Guarantors do hereby subordinate all existing or future indebtedness of Lessee to Guarantors to the obligations owed to Lessor under the Lease and this Guaranty.
If a Guarantor is married, such Guarantor expressly agrees that recourse may be had against his or her separate property for all of the obligations hereunder.
The obligations of Lessee under the Lease to execute and deliver estoppel statements and financial statements, as therein provided, shall be deemed to also require the Guarantors to provide estoppel statements and financial statements to Lessor. The failure of the Guarantors to provide the same to Lessor shall constitute a default under the Lease.
The term "Lessor" refers to and means the Lessor named in the Lease and also Lessor's successors and assigns. So long as Lessor's interest in the Lease, the leased premises or the rents, issues and profits therefrom, are subject to any mortgage or deed of trust or assignment for security, no acquisition by Guarantors of the Lessor's interest shall affect the continuing obligation of Guarantors under this Guaranty which shall nevertheless continue in full force and effect for the benefit of the mortgagee, beneficiary, trustee or assignee under such mortgage, deed of trust or assignment and their successors and assigns.
The term "Lessee" refers to and means the Lessee named in the Lease and also Lessee's successors and assigns.
Any recovery by Lessor from any other guarantor or insurer shall first be credited to the portion of Lessee's indebtedness to Lessor which exceeds the maximum liability of Guarantors under this Guaranty.
No provision of this Guaranty or right of the Lessor can be waived, nor can the Guarantors be released from their obligations except in writing signed by the Lessor.
Any litigation concerning this Guaranty shall be initiated in a state court of competent jurisdiction in the county in which the leased premises are located and the Guarantors consent to the jurisdiction of such court. This Guaranty shall be governed by the laws of the State in which the leased premises are located and for the purposes of any rules regarding conflicts of law the parties shall be treated as if they were all residents or domiciles of such State.
In the event any action be brought by said Lessor against Guarantors hereunder to enforce the obligation of Guarantors hereunder, the unsuccessful party in such action shall pay to the prevailing party therein a reasonable attorney's fee. The attorney's fee award shall not be computed in accordance with any court fee schedule, but shall be such as to full reimburse all attorneys' fees reasonably incurred.
If any Guarantor is a corporation, partnership, or limited liability company, each individual executing this Guaranty on said entity's behalf represents and warrants that he or she is duly authorized to execute this Guaranty on behalf of such entity. Signatures to this Guaranty accomplished by means of electronic signature or similar technology shall be legal and binding.
If this Form has been filled in, it has been prepared for submission to your attorney for his approval. No representation or recommendation is made BY AIR CRE,
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the real estate broker or its agents or employees as to the legal sufficiency, legal effect, or tax consequences of this Form or the transaction relating thereto.
GUARANTORS Executed At:
On:
By:
Name Printed:
Title:
Address:
By:
Name Printed:
Title:
Address:
AIR CRE * https:// www.aircre.com * 213-687-8777 * [email protected] NOTICE: No part of these works may be reproduced in any form without permission in writing.
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OFGRR-2.02, Revised 10-22-2020
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RULES AND REGULATIONS FOR
STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE - NET Date:November 1, 2023
By and Between
Lessor:CITY OF SAN MATEO
Lessee:COLD STONE CREAMERY LEASING COMPANY, INC.
Property Address:375 Second Avenue, San Mateo, CA 94401 (street address, city, state, zip)
GENERAL RULES
1. Lessee shall not suffer or permit the obstruction of any Common Areas, including driveways, walkways and stairways.
2. Lessor reserves the right to refuse access to any persons Lessor in good faith judges to be a threat to the safety and reputation of the Project and its occupants.
3. Lessee shall not make or permit any noise or odors that annoy or interfere with other lessees or persons having business within the Project.
4. Lessee shall not keep animals or birds within the Project, and shall not bring bicycles, motorcycles or other vehicles into areas not designated as authorized for same.
5. Lessee shall not make, suffer or permit litter except in appropriate receptacles for that purpose.
6. Lessee shall not alter any lock or install new or additional locks or bolts.
7. Lessee shall be responsible for the inappropriate use of any toilet rooms, plumbing or other utilities. No foreign substances of any kind are to be inserted therein.
8. Lessee shall not deface the walls, partitions or other surfaces of the Premises or Project.
9. Lessee shall not suffer or permit anything in or around the Premises or Building that causes excessive vibration or floor loading in any part of the Project.
10. Furniture, significant freight and equipment shall be moved into or out of the building only with the Lessor's knowledge and consent, and subject to such reasonable limitations, techniques and timing, as may be designated by Lessor. Lessee shall be responsible for any damage to the Office Building Project arising from any such activity.
11. Lessee shall not employ any service or contractor for services or work to be performed in the Building, except as approved by Lessor.
12. Lessee shall return all keys at the termination of its tenancy and shall be responsible for the cost of replacing any keys that are lost.
13. No Lessee, employee or invitee shall go upon the roof of the Building.
14. Lessee shall not suffer or permit smoking or carrying of lighted cigars or cigarettes in areas reasonably designated by Lessor or by applicable governmental agencies as non-smoking areas.
15. Lessee shall not use any method of heating or air conditioning other than as provided by Lessor.
16. Lessee shall not install, maintain or operate any vending machines upon the Premises without Lessor's written consent.
17. The Premises shall not be used for lodging or manufacturing,
18. Lessee shall comply with all safety, fire protection and evacuation regulations established by Lessor or any applicable governmental agency.
19. Lessor reserves the right to waive any one of these rules or regulations, and/or as to any particular Lessee, and any such waiver shall not constitute a waiver of any other rule or regulation or any subsequent application thereof to such Lessee.
20. Lessee assumes all risks from theft or vandalism and agrees to keep its Premises locked as may be required.
21. Lessor reserves the right to make such other reasonable rules and regulations as it may from time to time deem necessary for the appropriate operation and safety of the Project and its occupants. Lessee agrees to abide by these and such rules and regulations.
PARKING RULES
1. Parking areas shall be used only for parking by vehicles no longer than full size, passenger automobiles herein called "Permitted Size Vehicles." Vehicles other than Permitted Size Vehicles are herein referred to as "Oversized Vehicles."
2. Lessee shall not permit or allow any vehicles that belong to or are controlled by Lessee or Lessee's employees, suppliers, shippers, customers, or invitees to be loaded, unloaded, or parked in areas other than those designated by Lessor for such activities.
3. Parking stickers or identification devices shall be the property of Lessor and be returned to Lessor by the holder thereof upon termination of the holder's parking privileges. Lessee will pay such replacement charge as is reasonably established by Lessor for the loss of such devices.
4. Lessor reserves the right to refuse the sale of monthly identification devices to any person or entity that willfully refuses to comply with the applicable rules, regulations, laws and/or agreements.
5. Users of the parking area will obey all posted signs and park only in the areas designated for vehicle parking.
6. Unless otherwise instructed, every person using the parking area is required to park and lock his own vehicle. Lessor will not be responsible for any damage to vehicles, injury to persons or loss of property, all of which risks are assumed by the party using the parking area.
7. Validation, if established, will be permissible only by such method or methods as Lessor and/or its licensee may establish at rates generally applicable to visitor parking.
8. The maintenance, washing, waxing or cleaning of vehicles in the parking structure or Common Areas is prohibited.
9. Lessee shall be responsible for seeing that all of its employees, agents and invitees comply with the applicable parking rules, regulations, laws and agreements.
10. Lessor reserves the right to modify these rules and/or adopt such other reasonable and non-discriminatory rules and regulations as it may deem necessary for the proper operation of the parking area.
11. Such parking use as is herein provided is intended merely as a license only and no bailment is intended or shall be created hereby.
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Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 13 Section Name: CONSENT CALENDAR Account Number: 26-4662 File ID: 23-7865 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: November 6, 2023
SUBJECT:
On-Call Public Works Engineering Support Services – Agreements RECOMMENDATION:
Approve individual on-call professional engineering support services agreements through June 30, 2026, with up to one optional one-year extension, with: BKF Engineers in an amount not to exceed $400,000; CSG Consultants, Inc. in an amount not to exceed $400,000; DKS Associates in an amount not to exceed $500,000; Fehr & Peers in an amount not to exceed $500,000; Krupka Consulting in an amount not to exceed $300,000; and W-Trans in an amount not to exceed $500,000; and authorize the Public Works Director to execute the agreements in substantially the form presented and execute any future term extensions or amendments that do not change the not to exceed amount of the agreements.
BACKGROUND:
The Public Works Department (“PW”) provides specialized review services within the Transportation Division during the Planning Entitlement review and Building Permit review processes. Currently, these services are provided by staff. The City is required to abide by State-required deadlines for these review processes; failure to meet these deadlines may result in the invocation of the Permit Streamlining Act for Planning Entitlements or certain building permits being deemed approved, such as Accessory Dwelling Units.
Due to the high volume of complex development the City is experiencing and limited staff availability, those services have been difficult to provide in a timely manner to meet required deadlines. To meet the needed review timelines, PW is proposing transitioning to consultant reviewers in supplementing staff efforts and thereby increase the Division’s capacity in providing these specialized technical review services.
PW issued a request for qualifications (“RFQ”) in June 2023 to solicit multiple firms capable of providing specialized review services on an on-call basis. The RFQ identified three (3) areas where PW was seeking specialized support services and allowed interested firms to submit statements of qualifications for any or all of those identified areas. The three (3) areas identified were: Transportation Planning, Traffic Engineering, and C.3 Stormwater Management.
In total, PW staff received responses from nine (9) firms and evaluated those submissions based on the firms’ experience in the area, the proposed consultant staff, and the pricing structure. Ultimately, PW staff utilized those criteria and follow- up interviews to identify which firms to propose Council award on-call professional engineering support services agreements. The chosen firms together cover all three areas of services needed. The following table demonstrates each firm and their respective service areas and proposed not-to-exceed award amounts :
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CONSULTANT SERVICE AREA(S) AWARD AMOUNT NOT TO EXCEED
BKF Engineers C.3 Stormwater $400,000
CSG Consultants C.3 Stormwater $400,000
DKS Associates Transportation Planning & Traffic Engineering $500,000 Fehr & Peers Transportation Planning & Traffic Engineering $500,000 Krupka Consulting Transportation Planning & Traffic Engineering $300,000 W-Trans Transportation Planning & Traffic Engineering $500,000 These firms will each enter into separate agreements with the City to provide services in each identified area for which they were deemed qualified. The term of these agreements will be for approximately 3-year terms ending on June 30, 2026 with the option to extend an additional year pending a performance review by staff.
BUDGET IMPACT:
Each consultant will be issued a blanket purchase order in an amount not to exceed the fees listed above. Historical costs associated with these services as provided by staff amounted to approximately $100,000 per fiscal year for C.3 stormwater review and $300,000 per fiscal year for transportation planning and traffic engineering. The support services provided by these consultant firms will be charged as they are incurred to planning application trust accounts, which are funded by the project developer.
ENVIRONMENTAL DETERMINATION:
The award of these professional services agreements 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 – Agreement with BKF Engineers
Att 2 – Agreement with CSG Consultants
Att 3 – Agreement with DKS Associates
Att 4 – Agreement with Fehr & Peers
Att 5 – Agreement with Krupka Consulting
Att 6 – Agreement with W-Trans
STAFF CONTACT
Jason Hallare, Senior Engineer
[email protected]
650-522-7316
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AGREEMENT WITH BKF ENGINEERS
FOR PROFESSIONAL CONSULTANT SERVICES
FOR
C3 STORMWATER ON-CALL SUPPORT SERVICES
This Agreement, made and entered into this day of ____________________, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California (“CITY”), and BKF Engineers, a corporation, (“CONSULTANT”), whose address is 255 Shoreline Drive, Suite 200, Redwood City, CA 94065.
RECITALS:
A. CITY desires certain C3 Stormwater On-call Support services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these C3 Stormwater On-call Support services by reason of its qualifications and experience for performing such services and CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF SERVICES
The scope of services to be performed by CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
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CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence upon execution of the Agreement and be completed on June 30, 2026, with up to one (1) optional one-year extension by the CITY.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONSULTANT a fee in an amount not to exceed $400,000.00, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
SECTION 6 - TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon ten (10) days' written notice to CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
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SECTION 10 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
Indemnity for Design Professional Services. CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s negligence, recklessness or willful misconduct in the performance of its design professional services under this Agreement. To the maximum extent permitted by law and Civil Code section 2782.8, CONSULTANT agrees to defend CITY, its elected and appointed officials, employees, and agents against any such claims.
Indemnity for Activities Other Than Design Professional Services. CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s performance of non-design professional services under this Agreement, except for those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims.
The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
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SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.
SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 16 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
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SECTION 19 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Jason Hallare, Senior Engineer
City of San Mateo
330 West 20th Avenue
San Mateo, CA 94403
To CONSULTANT: BKF Engineers
Attn: James Dallosta
255 Shoreline Drive, Suite 200
Redwood City, CA 94065
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONSULTANT.
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SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, CITY OF SAN MATEO and BKF ENGINEERS have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Brad Underwood
Interim Director of Public Works
Date Greg Hurd Date
APPROVED AS TO FORM
Linh Nguyen
Assistant City Attorney
Date
Attachments:
Exhibit A:
Exhibit B:
Exhibit C:
Scope of Services
Fee Schedule
Insurance Requirements
President and CEO
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EXHIBIT A
SCOPE OF SERVICES
The scope of work for this C3 Stormwater On-Call contract will include:
Review and evaluation of project plans for compliance with MRP Permit Order No. R2- 2022-0018 (MRP3.0) and the San Mateo Countywide Water Pollution Prevention Program C.3 Regulated Project Guide.
Review projects for stormwater management and treatment which generally include:
o Stormwater management plans
o City and County C3-C6 checklists
o Project design approach narratives
o Infeasibility memos
o Stormwater drainage area exhibits
o Modeling results
o BMP sizing calculations
o Design-level construction documents (site, grading, utility, treatment facilities) o Stormwater Treatment Measure maintenance information
o Planting designs and soil/mulch specifications
o Engineer’s opinions of probable costs (engineer’s estimate) Preparation of written comments and recommendations regarding the plans and submittal packages, including identification of deficiencies and suggestions for improvement.
Attendance of meetings with project proponents and other stakeholders as necessary to discuss plan review findings and recommendations. Meetings may include planning commission during evening hours.
Coordination with our staff and other agencies to ensure that all plan review requirements are met.
Coordinate submitted plans with other existing planning documents and studies. Management of on-going reviews, budget tracking, and invoicing.
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FEE SCHEDULE
City of San Mateo | On-Call Plan Review Services BKF ENGINEERS 18 BKF ENGINEERS
PROFESSIONAL SERVICES RATE SCHEDULE
EFFECTIVE JANUARY 1, 2023
CLASSIFICATION HOURLY RATE
PROJECT MANAGEMENT
Principal $288.00
Senior Associate Principal $268.00
Associate Principal $260.00
Senior Project Manager | Senior Technical Manager $253.00 Project Manager | Technical Manager $247.00
Engineering Manager | Surveying Manager | Planning Manager $228.00
TECHNICAL STAFF
Senior Project Engineer | Senior Project Surveyor | Senior Project Planner $212.00 Project Engineer | Project Surveyor | Project Planner $186.00 Design Engineer | Staff Surveyor | Staff Planner $162.00 BIM Specialist I, II, III $162.00 - $186.00 - $212.00
Technician I, II, III, IV $154.00 - $164.00 - $180.00 - $194.00 Drafter I, II, III, IV $121.00 - $133.00 - $143.00 - $159.00 Engineering Assistant | Surveying Assistant | Planning Assistant $101.00
FIELD SURVEYING
Survey Party Chief $212.00
Instrument Person $182.00
Survey Chainperson $136.00
Utility Locator I, II, III, IV $110.00 - $156.00 - $187.00 - $213.00 Apprentice I, II, III, IV $83.00 - $112.00 - $124.00 - $132.00
CONSTRUCTION ADMINISTRATION
Senior Consultant $277.00
Senior Construction Administrator $241.00
Resident Engineer $179.00
Field Engineer I, II, III $162.00 - $186.00 - $212.00
FUNDING & GRANT MANAGEMENT
Director of Funding Strategies $198.00
Funding Strategies Manager $181.00
Funding/Research Analyst I, II, III, IV $124.00 - $144.00 - $153.00 - $168.00
PROJECT ADMINISTRATION
Project Coordinator $135.00
Senior Project Assistant $117.00
Project Assistant $103.00
Clerical | Administrative Assistant $87.00
Expert witness rates are available upon request.
Subject to the terms of a services agreement:
• Charges for outside services, equipment, materials, and facilities not furnished directly by BKF Engineers will be billed as reimbursable expenses at cost plus 10%. Such charges may include, but shall not be limited to: printing and reproduction services; shipping, delivery, and courier charges; subconsultant fees and expenses; agency fees; insurance; transportation on public carriers; meals and lodging; and consumable materials. • Allowable mileage will be charged at the prevailing IRS rate per mile. • Monthly invoices are due within 30 days from invoice date. Interest will be charged at 1.5% per month on past due accounts.
• The rates shown are subject to periodic increases, including January 1st of each year.
E
XHIBIT B
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EXHIBIT C
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CONSULTANT has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate
If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its elected and appointed officials, employees, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONSULTANT’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the CONSULTANT’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or self-insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the CONSULTANT’s insurance and shall not contribute with it.
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Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days’ prior written notice (10 days for non-payment) has been given to the City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
CONSULTANT shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CONSULTANT’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
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AGREEMENT WITH CSG CONSULTANTS
FOR PROFESSIONAL CONSULTANT SERVICES
FOR
C3 STORMWATER ON-CALL SUPPORT SERVICES
This Agreement, made and entered into this day of ____________________, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California (“CITY”), and CSG Consultants, a corporation, (“CONSULTANT”), whose address is 550 Pilgrim Drive, Foster City, CA 94404.
RECITALS:
A. CITY desires certain C3 stormwater on-call support services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these C3 stormwater on-call support services by reason of its qualifications and experience for performing such services and CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF SERVICES
The scope of services to be performed by CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
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CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence upon execution of the Agreement and be completed on June 30, 2026, with up to one (1) optional one-year extension by the CITY.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONSULTANT a fee in an amount not to exceed $400,000.00, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
SECTION 6 - TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon ten (10) days' written notice to CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
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SECTION 10 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
Indemnity for Design Professional Services. CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s negligence, recklessness or willful misconduct in the performance of its design professional services under this Agreement. To the maximum extent permitted by law and Civil Code section 2782.8, CONSULTANT agrees to defend CITY, its elected and appointed officials, employees, and agents against any such claims.
Indemnity for Activities Other Than Design Professional Services. CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s performance of non-design professional services under this Agreement, except for those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims.
The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
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SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.
SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 16 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
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SECTION 19 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Jason Hallare, Senior Engineer
City of San Mateo
330 West 20th Avenue
San Mateo, CA 94403
To CONSULTANT: CSG Consultants
Attn: Nourdin Khayata
550 Pilgrim Drive
Foster City, CA 94404
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONSULTANT.
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SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, CITY OF SAN MATEO and CSG Consultants have executed this Agreement the day and year first above written.
CITY OF SAN MATEO
CONSULTANT
Brad Underwood
Interim Director of Public Works
Date Cyrus Kianpour
President
Date
APPROVED AS TO FORM
Linh Nguyen
Assistant City Attorney
Date Nourdin Khayata
Secretary
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Fee Rates
Exhibit C: Insurance Requirements
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
(if necessary per the above)
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EXHIBIT A
SCOPE OF SERVICES
The scope of work for this C3 Stormwater On-Call contract will include:
Review and evaluation of project plans for compliance with MRP Permit Order No. R2- 2022-0018 (MRP3.0) and the San Mateo Countywide Water Pollution Prevention Program C.3 Regulated Project Guide.
Review projects for stormwater management and treatment which generally include:
o Stormwater management plans
o City and County C3-C6 checklists
o Project design approach narratives
o Infeasibility memos
o Stormwater drainage area exhibits
o Modeling results
o BMP sizing calculations
o Design-level construction documents (site, grading, utility, treatment facilities) o Stormwater Treatment Measure maintenance information
o Planting designs and soil/mulch specifications
o Engineer’s opinions of probable costs (engineer’s estimate) Preparation of written comments and recommendations regarding the plans and submittal packages, including identification of deficiencies and suggestions for improvement.
Attendance of meetings with project proponents and other stakeholders as necessary to discuss plan review findings and recommendations. Meetings may include planning commission during evening hours.
Coordination with our staff and other agencies to ensure that all plan review requirements are met.
Coordinate submitted plans with other existing planning documents and studies. Management of on-going reviews, budget tracking, and invoicing.
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2023 - Engineering Department Hourly Rates
Bay Area Region
CSG’s services are billed on a time-and-materials basis according to our standard rates, shown below.
Professional Engineering Services 2023
Hourly Rate
Engineering Trainee $75
Administrative Assistant $85
Analyst $140
Engineering Designer/CASp Inspection & Consultation $150 Construction Inspector $165
Senior Analyst $165
Assistant Resident Engineer $180
Assistant Engineer $155
Associate Engineer $185
Senior Construction Inspector $175
Senior Engineer $210
Senior Land Surveyor $210
Resident Engineer $220
Structure Representative $220
Senior Structural Engineer $235
Senior Project Manager $235
Principal Engineer $250
Senior Principal Engineer $270
Two-Person Survey Crew $350
Sustainability Program Management Services Hourly Rate
Sustainability Program Analyst $145
Sustainability Program Senior Analyst $170
Sustainability Program Manager $200
All hourly rates include overhead costs including, but not limited to, salaries, benefits, Workers Compensation Insurance, travel and office expenses. CSG will coordinate the pickup and return of plans to and from CSG offices.
Overtime work will be billed at 1.5x the hourly rates indicated in the table above. On July 1 of each year following the contract start year, CSG will initiate a rate increase based on change in CPI for the applicable region. CSG will mail/email an invoice every month for services rendered during the previous month.
EXHIBIT B
FEE RATES
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EXHIBIT C
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CONSULTANT has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its elected and appointed officials, employees, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONSULTANT’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the CONSULTANT’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or self-insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the CONSULTANT’s insurance and shall not contribute with it.
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Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days’ prior written notice (10 days for non-payment) has been given to the City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
CONSULTANT shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CONSULTANT’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
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AGREEMENT WITH DKS ASSOCIATES
FOR PROFESSIONAL CONSULTANT SERVICES
FOR
TRANSPORTATION PLANNING AND TRAFFIC ENGINEERING ON-CALL SUPPORT SERVICES This Agreement, made and entered into this day of ____________________, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California (“CITY”), and DKS Associates, a corporation, (“CONSULTANT”), whose address is 1970 Broadway, Suite 740, Oakland, CA 94612.
RECITALS:
A. CITY desires certain transportation planning and traffic engineering on-call support services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these transportation planning and traffic engineering on-call support services by reason of its qualifications and experience for performing such services and CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF SERVICES
The scope of services to be performed by CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
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SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence upon execution of the Agreement and be completed on June 30, 2026, with up to one (1) optional one-year extension by the CITY.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONSULTANT a fee in an amount not to exceed $500,000.00, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
SECTION 6 - TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon ten (10) days' written notice to CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
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SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
SECTION 10 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
Indemnity for Design Professional Services. CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s negligence, recklessness or willful misconduct in the performance of its design professional services under this Agreement. To the maximum extent permitted by law and Civil Code section 2782.8, CONSULTANT agrees to defend CITY, its elected and appointed officials, employees, and agents against any such claims.
Indemnity for Activities Other Than Design Professional Services. CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s performance of non-design professional services under this Agreement, except for those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims.
The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
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SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.
SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 16 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
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SECTION 19 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Jason Hallare, Senior Engineer
City of San Mateo
330 West 20th Avenue
San Mateo, CA 94403
To CONSULTANT: DKS Associates
Attn: David Mahama
1970 Broadway, Suite 740,
Oakland, CA 94612
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONSULTANT.
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SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, CITY OF SAN MATEO and DKS ASSOCIATES have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Brad Underwood
Interim Director of Public Works
Date Richard Hutchinson
Vice President
Date
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.
APPROVED AS TO FORM ADDITIONAL CORPORATE OFFICER
(if necessary per the above)
Linh Nguyen
Assistant City Attorney
Date <Insert Name>
<Insert Title>
Date
Attachments:
Exhibit A:
Exhibit B:
Exhibit C:
Scope of Services
Fee Schedule
Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
The scope of work for this Transportation and Traffic Engineering contract will include:
Review and evaluation of project transportation planning and traffic engineering documents for compliance with City Plans and the CA MUTCD with consideration to other related guidelines such as NACTO.
Review projects for transportation planning and traffic engineering which generally include:
o Traffic impact studies
o Transportation demand management plans
o Trip reduction goals
o Parking operations
o Transit access
o Pedestrian and bicycle access and safety
o Access management plans
o Traffic signal designs
o Traffic operations
o Traffic striping
o MUTCD conformance
o Traffic control plans
o Site access and circulation
Preparation of written comments and recommendations regarding the plans and submittal packages, including identification of deficiencies and suggestions for improvement.
Attendance of meetings with project proponents and other stakeholders as necessary to discuss plan review findings and recommendations. Meetings may include planning commission during evening hours.
Coordination with our staff and other agencies to ensure that all plan review requirements are met.
Coordinate submitted plans with other existing planning documents and studies. Management of on-going reviews, budget tracking, and invoicing.
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25SAN MATEO ON-CALL TRAFFIC ENGINEERING & TRANSPORTATION PLANNING
FEE SCHEDULE
Fee Schedule
Effective January 1, 2023 through December 31, 2023
ENGINEERS and PLANNERS TECHNICIANS and SUPPORT STAFF
Grade Hourly Rate Grade Hourly Rate Tech Level Hourly Rate Grade5 75.00 Grade38 240.00 TechLevelG 65.00
Grade6 80.00 Grade39 245.00 TechLevelH 70.00
Grade7 85.00 Grade40 250.00 TechLevelI 75.00
Grade8 90.00 Grade41 255.00 TechLevelJ 80.00
Grade9 95.00 Grade42 260.00 TechLevelK 85.00
Grade10 100.00 Grade43 265.00 TechLevelL 90.00
Grade11 105.00 Grade44 270.00 TechLevelM 95.00
Grade12 110.00 Grade45 275.00 TechLevelN 100.00
Grade13 115.00 Grade46 280.00 TechLevelO 105.00
Grade14 120.00 Grade47 285.00 TechLevelP 110.00
Grade15 125.00 Grade48 290.00 TechLevelQ 115.00
Grade16 130.00 Grade49 295.00 TechLevelR 120.00
Grade17 135.00 Grade50 300.00 TechLevelS 125.00
Grade18 140.00 Grade51 305.00 TechLevelT 130.00
Grade19 145.00 Grade52 310.00 TechLevelU 135.00
Grade20 150.00 Grade53 315.00 TechLevelV 140.00
Grade21 155.00 Grade54 320.00 TechLevelW 145.00
Grade22 160.00 Grade55 325.00 TechLevelX 150.00
Grade23 165.00 Grade56 330.00 TechLevelY 155.00
Grade24 170.00 Grade57 335.00 TechLevelZ 160.00
Grade25 175.00 Grade58 340.00 TechLevelAA 165.00
Grade26 180.00 Grade59 345.00 TechLevelAB 170.00
Grade27 185.00 Grade60 350.00 TechLevelAC 175.00
Grade28 190.00 Grade61 355.00 TechLevelAD 180.00
Grade29 195.00 Grade62 360.00 TechLevelAE 185.00
Grade30 200.00 Grade63 365.00 TechLevelAF 190.00
Grade31 205.00 Grade64 370.00 TechLevelAG 195.00
Grade32 210.00 Grade65 375.00 TechLevelAH 200.00
Grade33 215.00 Grade66 380.00 TechLevelAI 205.00
Grade34 20.00 Grade67 385.00 TechLevelAJ 210.00
Grade35 225.00 Grade68 390.00 TechLevelAN 230.00
Grade36 230.00 Grade69 395.00 TechLevelAO 235.00
Grade37 235.00 Grade70 400.00 TechLevelAP 240.00
• Project expenses will be billed at cost plus ten percent for service and handling. Project expenses include project-related costs such as reproduction through outside services, transportation, subsistence, delivery/postage, and vendor and sub- contractor services.
• All invoices are due and payable within 30 days of date of invoice. Invoices outstanding over 30 days will be assessed a 11/4 percent service charge, compounded, for each 30 days outstanding beyond the initial payment period.Service charges are not included in any agreement for maximum charges.
EXHIBIT B
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EXHIBIT C
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CONSULTANT has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate
If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its elected and appointed officials, employees, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONSULTANT’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the CONSULTANT’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or self-insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the CONSULTANT’s insurance and shall not contribute with it.
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Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days’ prior written notice (10 days for non-payment) has been given to the City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
CONSULTANT shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CONSULTANT’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
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AGREEMENT WITH FEHR & PEERS
FOR PROFESSIONAL CONSULTANT SERVICES
FOR
TRANSPORTATION PLANNING AND TRAFFIC ENGINEERING ON-CALL SUPPORT SERVICES
This Agreement, made and entered into this day of ____________________, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California (“CITY”), and Fehr & Peers, a corporation, (“CONSULTANT”), whose address is 345 California Street, Suite 450, San Francisco, CA 94104.
RECITALS:
A. CITY desires certain transportation planning and traffic engineering on-call support services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these transportation planning and traffic engineering on-call support services by reason of its qualifications and experience for performing such services and CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF SERVICES
The scope of services to be performed by CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
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SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence upon execution of the Agreement and be completed on June 30, 2026, with up to one (1) optional one-year extension by the CITY.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered, and CONSULTANT shall submit invoices to CITY on a monthly basis describing in reasonable and understandable detail the services rendered, fee charged, and expenses incurred by CONSULTANT during the previous month.
CONSULTANT’s monthly invoices shall be paid within thirty (30) days after their receipt by CITY. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONSULTANT a fee in an amount not to exceed $500,000.00, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
SECTION 6 - TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon ten (10) days' written notice to CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement (“Work Product”), although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not. Third-party content that may be used or incorporated in the Work Product shall not become the property of CITY. CONSULTANT shall secure all licenses necessary to any third-party content incorporated into CONSULTANT’s Work Product for CITY to utilize CONSULTANT’s services and the Work Product for their intended purposes.
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SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
SECTION 10 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
Indemnity for Design Professional Services. CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s negligence, recklessness or willful misconduct in the performance of its design professional services under this Agreement. To the maximum extent permitted by law and Civil Code section 2782.8, CONSULTANT agrees to defend CITY, its elected and appointed officials, employees, and agents against any such claims.
Indemnity for Activities Other Than Design Professional Services. CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s performance of non-design professional services under this Agreement, except for those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims.
The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
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SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in accordance with the skill, care, and diligence ordinarily exercised by consultants providing similar services under similar circumstances to that of CONSULTANT under this Agreement, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.
SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 16 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
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SECTION 17 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
SECTION 19 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
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To CITY: Jason Hallare, Senior Engineer
City of San Mateo
330 West 20th Avenue
San Mateo, CA 94403
To CONSULTANT: Fehr & Peers
Attn: Matt Goyne
345 California Street, Suite 450,
San Francisco, CA 94104
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONSULTANT.
SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, CITY OF SAN MATEO and FEHR & PEERS have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Brad Underwood
Interim Director of Public Works
Date Chris Mitchell
President & CEO
Date
APPROVED AS TO FORM
Linh Nguyen
Assistant City Attorney
Date
Attachments:
Exhibit A:
Exhibit B:
Exhibit C:
Scope of Services
Fee Schedule
Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
The scope of work for this Transportation and Traffic Engineering contract will include:
Review and evaluation of project transportation planning and traffic engineering documents for compliance with City Plans and the CA MUTCD with consideration to other related guidelines such as NACTO.
Review projects for transportation planning and traffic engineering which generally include:
o Traffic impact studies
o Transportation demand management plans
o Trip reduction goals
o Parking operations
o Transit access
o Pedestrian and bicycle access and safety
o Access management plans
o Traffic signal designs
o Traffic operations
o Traffic striping
o MUTCD conformance
o Traffic control plans
o Site access and circulation
Preparation of written comments and recommendations regarding the plans and submittal packages, including identification of deficiencies and suggestions for improvement.
Attendance of meetings with project proponents and other stakeholders as necessary to discuss plan review findings and recommendations. Meetings may include planning commission during evening hours.
Coordination with our staff and other agencies to ensure that all plan review requirements are met.
Coordinate submitted plans with other existing planning documents and studies. Management of on-going reviews, budget tracking, and invoicing.
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On-Ca
ll Review Services
May 22, 2023
14 Fee Schedule
2023-202
4 (July 2023 through June 2024)
Hou
rly Billing Rates
Cla
ssification Hourly Rate
Principal $250.00 - $390.00
Senior Associate $205.00 - $320.00
Associate $175.00 - $290.00
Senior Engineer/Planner $160.00 - $240.00
Engineer/Planner $120.00 - $185.00
Senior Engineering Technician $150.00 - $220.00
Senior Project Accountant $170.00 - $190.00
Senior Project Coordinator $125.00 - $180.00
Project Coordinator $100.00 - $170.00
Technician $120.00 - $170.00
Intern $95.00 - $140.00
• Ot
her Direct Costs / Reimbursable expenses are invoiced at cost plus 10% for handling. • Personal auto mileage is reimbursed at the then current IRS approved rate (65.5 cents per mile as of Jan 2023).
• Voice & Data Communications (Telephone, fax, computer, e-mail, etc.) are invoiced at cost as a percentage of project labor.
Fe
hr & Peers reserves the right to change these rates at any time with or without advance notice.
EXHIBIT B
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EXHIBIT C
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CONSULTANT has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its elected and appointed officials, employees, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONSULTANT’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the CONSULTANT’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or self-insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the CONSULTANT’s insurance and shall not contribute with it.
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Notice of Cancellation
Contractor shall immediately notify the City when it has notice or receives notification that any insurance coverage is subject to cancellation, or is in fact cancelled, lapsed, or otherwise unavailable.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
CONSULTANT shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CONSULTANT’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
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AGREEMENT WITH KRUPKA CONSULTING
FOR PROFESSIONAL CONSULTANT SERVICES
FOR
TRANSPORTATION PLANNING AND TRAFFIC ENGINEERING ON-CALL SUPPORT SERVICES
This Agreement, made and entered into this day of ____________________, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California (“CITY”), and Krupka Consulting, a California Sole Proprietorship, (“CONSULTANT”), whose address is 431 Yale Drive, San Mateo, CA 94402.
RECITALS:
A. CITY desires certain transportation planning and traffic engineering on-call support services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these transportation planning and traffic engineering on-call support services by reason of its qualifications and experience for performing such services and CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF SERVICES
The scope of services to be performed by CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
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SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence upon execution of the Agreement and be completed on June 30, 2026, with up to one (1) optional one-year extension by the CITY.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONSULTANT a fee in an amount not to exceed $300,000.00, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
SECTION 6 - TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon ten (10) days' written notice to CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
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SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
SECTION 10 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
Indemnity for Design Professional Services. CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s negligence, recklessness or willful misconduct in the performance of its design professional services under this Agreement. To the maximum extent permitted by law and Civil Code section 2782.8, CONSULTANT agrees to defend CITY, its elected and appointed officials, employees, and agents against any such claims.
Indemnity for Activities Other Than Design Professional Services. CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s performance of non-design professional services under this Agreement, except for those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims.
The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
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SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.
SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 16 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
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SECTION 19 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's current hourly rates for legal testimony as stated in Exhibit B to this Agreement.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Jason Hallare, Senior Engineer
City of San Mateo
330 West 20th Avenue
San Mateo, CA 94403
To CONSULTANT: Krupka Consulting
Attn: Paul Krupka
431 Yale Drive
San Mateo, CA 94402
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONSULTANT.
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SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, CITY OF SAN MATEO and KRUPKA CONSULTING have executed this Agreement the day and year first above written.
CITY OF SAN MATEO
CONSULTANT
Brad Underwood
Interim Director of Public Works
Date Paul Krupka
Sole Proprietor
Date
APPROVED AS TO FORM
Linh Nguyen
Assistant City Attorney
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Fee Rates
Exhibit C: Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
The scope of work for this Transportation and Traffic Engineering contract will include:
Review and evaluation of project transportation planning and traffic engineering documents for compliance with City Plans and the CA MUTCD with consideration to other related guidelines such as NACTO.
Review projects for transportation planning and traffic engineering which generally include:
o Traffic impact studies
o Transportation demand management plans
o Trip reduction goals
o Parking operations
o Transit access
o Pedestrian and bicycle access and safety
o Access management plans
o Traffic signal designs
o Traffic operations
o Traffic striping
o MUTCD conformance
o Traffic control plans
o Site access and circulation
Preparation of written comments and recommendations regarding the plans and submittal packages, including identification of deficiencies and suggestions for improvement.
Attendance of meetings with project proponents and other stakeholders as necessary to discuss plan review findings and recommendations. Meetings may include planning commission during evening hours.
Coordination with our staff and other agencies to ensure that all plan review requirements are met.
Coordinate submitted plans with other existing planning documents and studies. Management of on-going reviews, budget tracking, and invoicing.
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EXHIBIT B
FEE RATES
Labor - The Consultant will charge fees based on time and expenses commensurate with the work completed.
The Consultant’s standard hourly rate for Paul Krupka is $235.
The Consultant’s hourly rate for legal testimony, including preparation and travel, is $470.
Expenses - The Consultant will bill out-of-pocket expenses at cost. The following are examples:
Travel expenses other than regular commuting, including airfares, rental vehicles, and highway mileage in cars owned by the Consultant or personal cars at the current IRS rate Telephone, fax, online, and telecommunications,
Postage and courier services,
Printing and reproduction,
Outsourced computer services,
Support services performed by vendors, and
Other expenses resulting from the work performed.
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EXHIBIT C
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CONSULTANT has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate
If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its elected and appointed officials, employees, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONSULTANT’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the CONSULTANT’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or self-insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the CONSULTANT’s insurance and shall not contribute with it.
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Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days’ prior written notice (10 days for non-payment) has been given to the City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
CONSULTANT shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CONSULTANT’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
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AGREEMENT WITH W-TRANS
FOR PROFESSIONAL CONSULTANT SERVICES
FOR
TRANSPORTATION PLANNING AND TRAFFIC ENGINEERING ON-CALL SUPPORT SERVICES This Agreement, made and entered into this day of ____________________, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California (“CITY”), and W-Trans, a corporation, (“CONSULTANT”), whose address is 414 13 th Street, 5th Floor, Oakland, CA 94612.
RECITALS:
A. CITY desires certain transportation planning and traffic engineering on-call support services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these transportation planning and traffic engineering on-call support services by reason of its qualifications and experience for performing such services and CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF SERVICES
The scope of services to be performed by CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
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SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence upon execution of the Agreement and be completed on June 30, 2026, with up to one (1) optional one-year extension by the CITY.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONSULTANT a fee in an amount not to exceed $500,000.00, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
SECTION 6 - TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon ten (10) days' written notice to CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
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SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
SECTION 10 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
Indemnity for Design Professional Services. CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s negligence, recklessness or willful misconduct in the performance of its design professional services under this Agreement. To the maximum extent permitted by law and Civil Code section 2782.8, CONSULTANT agrees to defend CITY, its elected and appointed officials, employees, and agents against any such claims.
Indemnity for Activities Other Than Design Professional Services. CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s performance of non-design professional services under this Agreement, except for those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims.
The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
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SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.
SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 16 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
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SECTION 19 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Jason Hallare, Senior Engineer
City of San Mateo
330 West 20th Avenue
San Mateo, CA 94403
To CONSULTANT: W-Trans
Attn: Mark Spencer
414 13th Street, 5th Floor,
Oakland, CA 94612
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONSULTANT.
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SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, CITY OF SAN MATEO and W-TRANS have executed this Agreement the day and year first above written.
CITY OF SAN MATEO
CONSULTANT
Brad Underwood
Interim Director of Public Works
Date Mark Spencer
President & Senior Principal
Date
APPROVED AS TO FORM
Linh Nguyen
Assistant City Attorney
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Fee Rates
Exhibit C: Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
The scope of work for this Transportation and Traffic Engineering contract will include:
Review and evaluation of project transportation planning and traffic engineering documents for compliance with City Plans and the CA MUTCD with consideration to other related guidelines such as NACTO.
Review projects for transportation planning and traffic engineering which generally include:
o Traffic impact studies
o Transportation demand management plans
o Trip reduction goals
o Parking operations
o Transit access
o Pedestrian and bicycle access and safety
o Access management plans
o Traffic signal designs
o Traffic operations
o Traffic striping
o MUTCD conformance
o Traffic control plans
o Site access and circulation
Preparation of written comments and recommendations regarding the plans and submittal packages, including identification of deficiencies and suggestions for improvement.
Attendance of meetings with project proponents and other stakeholders as necessary to discuss plan review findings and recommendations. Meetings may include planning commission during evening hours.
Coordination with our staff and other agencies to ensure that all plan review requirements are met.
Coordinate submitted plans with other existing planning documents and studies. Management of on-going reviews, budget tracking, and invoicing.
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490 Mendocino Avenue, Suite 201 SANTA ROSA, CA 95401 707.542.9500 414 13th Street, 5th Floor OAKLAND, CA 94612 510.444.2600 w-trans.com
Fee Schedule
2023 Staff Billing Rates
Position Billing Rate (per hour)
Senior Principal $290 – $350
Principal $225 – $290
Senior Engineer/Planner $185 – $225
Engineer/Planner $170 – $190
Associate Engineer/Planner $150 – $170
Assistant Engineer/Planner $130 – $145
Technician/Administrative $115 – $140
Intern $30 – $80
Field Technician $30 – $75
2023 Expense Charges
Item Charge
Mileage $0.72/mile*
Services and Expenses 10% surcharge
These rates are valid for work performed prior to December 31, 2023. Work performed after January 1, 2024, and any subsequent year may be billed at the revised rates
established for that year.
* Mileage charge will be based on the IRS Standard Mileage Rate (set at $0.655/mile effective January 1, 2023) plus 10 percent.
EXHIBIT B - FEE RATES
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EXHIBIT C
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CONSULTANT has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its elected and appointed officials, employees, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONSULTANT’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the CONSULTANT’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or self-insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the CONSULTANT’s insurance and shall not contribute with it.
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Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days’ prior written notice (10 days for non-payment) has been given to the City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
CONSULTANT shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CONSULTANT’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
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CITY OF SAN MATEO
CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 14 Section Name: CONSENT CALENDAR Account Number: 10-2312 File ID: 23-8140 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Human Resources Department
MEETING DATE: November 06, 2023
SUBJECT:
San Mateo Safety Management Association – Memorandum of Understanding Amendment RECOMMENDATION:
Adopt a Resolution to amend the Memorandum of Understanding with the San Mateo Safety Management Association for a term through June 21, 2026, and to approve a supplemental budget appropriation in the amount of $80,000.
BACKGROUND:
The San Mateo Safety Management Association represents two Police Captains and six Police Lieutenants. The contract with this bargaining unit expired on April 15, 2023.
Negotiations with the San Mateo Safety Management Association concluded on October 17, 2023, and the membership subsequently ratified the proposed changes to their Memorandum of Understanding. Consistent with the direction provided by the City Council, negotiators for the City and the bargaining unit have reached agreement. These agreements include:
Term: The contract will be for a period of 3 years, expiring on June 21, 2026.
Salary: The bargaining unit will receive a 4.0% salary increase effective July 9, 2026, a 3.0% increase effective June 23, 2024, and a 3.0% salary increase effective June 22, 2025.
Educational Incentives: Effective July 9, 2023, members who complete the California P.O.S.T. Executive Development Course, California POST Command College, or receive a Masters Degree from an accredited college are eligible for a 3% differential of base pay.
Management Incentive Pay: Effective July 9, 2023 the City will provide a 3% differential of base bay to all members of the bargaining unit recognizing the supervisory responsibilities of being part of the Police Department Command staff and to encourage promotions.
Other: There are language changes relating to departmental operations and housekeeping language that amend some of the terms and conditions of the contract.
BUDGET IMPACT:
A supplemental budget appropriation of available fund balance in the General Fund of $80,000 for the Police Department's 2023-24 operating budget is required to accommodate the negotiated increases.
ENVIRONMENTAL DETERMINATION:
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CITY OF SAN MATEO
This Tentative Agreement is not a project subject to CEQA, because it is a government fiscal activity which does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. (CEQA Guidelines Section 15378(b)(4).)
NOTICE PROVIDED
All meeting noticing requirements were met.
ATTACHMENTS
Att 1 - Proposed Resolution
Exhibit A - Tentative Agreement
STAFF CONTACT
Teresa Abrahamsohn, Director of Human Resources
[email protected]
650.522.7276
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CITY OF SAN MATEO
RESOLUTION NO. ____ (2023)
APPROVING AMENDMENTS TO THE MEMORANDUM OF UNDERSTANDING BETWEEN THE
CITY OF SAN MATEO AND SAN MATEO SAFETY MANAGEMENT ASSOCIATION UNIT AND A SUPPLEMENTAL
BUDGET APPROPRIATION
WHEREAS, the amendments are related to salary, term, other pays and miscellaneous language changes relating to departmental operations, and language clarity for the unit; and WHEREAS, the parties have met and conferred, and have reached tentative agreement to amend the Unit’s Memorandum of Understanding; and
WHEREAS, the Unit has ratified the Tentative Agreement; and WHEREAS, an appropriation of additional General Funds to the Fiscal Year 2023-24 Police Department operating budget is necessary to finance the increases.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN MATEO, CALIFORNIA, HEREBY RESOLVES that:
1. This Tentative Agreement is not a project subject to CEQA, because it is a government fiscal activity which does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. (CEQA Guidelines Section 15378(b)(4).)
2. The amendments to the Memorandum of Understanding for the San Mateo Safety Management Association Unit, set forth in the Tentative Agreements attached as Exhibit A, are approved and summarized as follows:
Term: The contract will be for a period of 3 years expiring on June 21, 2023.
Salary: The bargaining unit will receive a 4.0% salary increase effective July 9, 2023, a 3.0% increase effective June 23, 2024, and a 3.0% salary increase effective June 22, 2025.
Educational Incentives: Effective July 9, 2023, members who complete the California P.O.S.T.
Executive Development Course, California POST Command College, or receive a Master's Degree from an accredited college are eligible for a 3% differential of base pay.
Management Incentive Pay: Effective July 9, 2023 the City will provide a 3% differential of base pay to all members of the bargaining unit recognizing the supervisory responsibilities of being part of the Police Department Command staff and to encourage promotions.
Other: There are language changes relating to departmental operations and housekeeping language that amend some of the terms and conditions of the contract.
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3. A supplemental budget appropriation of available fund balance in the General Fund of $80,000 for the Police Department's 2023-24 operating budget is authorized to accommodate the negotiated increases.
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Exhibit A
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CITY OF SAN MATEO
CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 15 Section Name: CONSENT CALENDAR Account Number: 10-6661 File ID: 23-8154 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Human Resources Department
MEETING DATE: November 06, 2023
SUBJECT:
Service Employees’ International Union Library Per Diem Unit – Memorandum of Understanding Changes RECOMMENDATION:
Adopt a Resolution to amend the Memorandum of Understanding with the Service Employees’ International Union (SEIU) Local 521 Library Per Diem Unit for a term through June 21, 2026.
BACKGROUND:
The SEIU Library Per Diem Unit represents approximately 70 employees. The contract with this bargaining unit expired on March 4, 2023. Negotiations with SEIU concluded on October 25, 2023, and the membership subsequently ratified the proposed changes to their Memorandum of Understanding.
Consistent with the direction provided by the City Council, negotiators for the City and the bargaining unit have reached agreement. These agreements include:
Term: The contract will be for a period of three years, expiring on June 21, 2026.
Salary: The bargaining unit will receive a 4.0% salary increase effective July 9, 2023 and an additional 2.0% increase for Librarian I/II series for recruitment and retention efforts effective July 9, 2023, a 3.0% increase effective June 23, 2024, and a 3.0% salary increase effective June 22, 2025.
Health and Welfare: Effective July 1, 2023, the City’s contribution to HealthWorx increases from $350.00 per month to $390.00 per month.
Service Reward: Following the first full pay period following Council adoption a one-time, lump sum payment, for each milestone shall be distributed to eligible unit members in the following manner:
A. $500.00 for Unit Members employed for 10-19 years
B. $750.00 for Unit Members employed for 20 years or more Other: There are language changes relating to departmental operations and housekeeping language that amend some of the terms and conditions of the contract.
BUDGET IMPACT:
There is no budget impact in the current fiscal year for these recommended changes, as any increases can be absorbed within existing operating budgets. Updated salary and benefit amounts for these positions will be incorporated into the 2023-24 budget.
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ENVIRONMENTAL DETERMINATION:
This tentative agreement is not a project subject to CEQA, because it is a government fiscal activity which does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. (CEQA Guidelines Section 15378(b)(4).)
NOTICE PROVIDED
All meeting noticing requirements were met.
ATTACHMENTS
Att 1 – Proposed Resolution
Exhibit A - Tentative Agreements
STAFF CONTACT
Yumi Maeda, Senior Human Resource Analyst
[email protected]
(650) 522-7279
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CITY OF SAN MATEO
RESOLUTION NO. ____ (2023)
APPROVING AMENDMENTS TO THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SAN MATEO AND THE SERVICE EMPLOYEES’ INTERNATIONAL UNION LIBRARY PER DIEM UNIT
WHEREAS, the amendments are related to salary, term, other pays and miscellaneous language changes relating to departmental operations, and language clarity for the unit; and
WHEREAS, the parties have met and conferred, and have reached tentative agreement to amend the Unit’s MOU; and
WHEREAS, the Unit has ratified the Tentative Agreement; and
WHEREAS no appropriation of additional funds to the Fiscal Year 2023-24 Budget is necessary.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN MATEO, CALIFORNIA, HEREBY RESOLVES that:
1. This Tentative Agreement is not a project subject to CEQA, because it is a government fiscal activity which does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. (CEQA Guidelines Section 15378(b)(4).)
2. The amendments to the Memorandum of Understanding for the Service Employees’ International Union (SEIU) Local 521 Library Per Diem Unit, set forth in the Tentative Agreements attached as Exhibit A, are approved and summarized as follows:
Term: The contract will be for a period of three years, expiring on June 21, 2026.
Salary: The bargaining unit will receive a 4.0% salary increase effective July 9, 2023. For recruitment and retention purposes the Librarian I/II shall receive an additional 2.0% increase effective July 9, 2023. The bargaining unit will receive a 3.0% increase effective June 23, 2024, and a 3.0% salary increase effective June 22, 2025.
Health and Welfare: Effective July 1, 2023 the City’s contribution to HealthWorx increases from $350.00 per month to $390.00 per month.
Service Reward: Effective the first full pay period following Council adoption, a one-time, lump sum payment, for each milestone shall be distributed to eligible unit members in the following manner:
A. $500.00 for Unit Members employed for 10-19 years
B. $750.00 for Unit Members employed for 20 years or more
Other: There are language changes relating to departmental operations and housekeeping language that amend some of the terms and conditions of the contract.
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2. There is no budget impact in the current fiscal year for these recommended changes, as any increases can be absorbed within existing operating budgets. Updated salary and benefit amounts for these positions will be incorporated into the Fiscal Year 2023-2024 budget.
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CITY OF SAN MATEO and.SEIU LIBRARY PER DIEM UNIT
2023 MOU NEGOTIATIONS
TENTATIVE AGREEMENT
10.0 • SALARY ADJUSTMENT
10.1 Compensation Increases During the Term of this Agreement The Unit will receive the follmving across the board increases during the term of this agreement:
Effective July 9, 2023 employees will receive a four percent (4.0%) across the board increase. The effective date of this increase is in recognition of the pause in the negotiation process due to the City's change of City Manager. The union ackncnvlcdges this is an extraordinary circumstance and not a departure from the City's long-standing practice of adopting MOUs with salary effective dates the pay period following adoption or later.
To aid in recruitment and retention, the Librarian I/ll series shall receive an additional two percent (2.0%) increase effective July 9. 2023.
Effective .lune 23, 2024. employees will receive a three percent (3.0%) across the board increase.
Effective June 22, 2025, employees will receive a three percent (3.0%) across the board increase.
29.0 AGREEMENT TERM
This agreement terminates at 11 :59 p.m., June 21, 2026.
The existing and unmodified rules, regulations, resolutions or ordinances relating to wages, hours and conditions of employment not covered in this Agreement for workers in this Unit shall remain unchanged for said period unless such changes are the result of meeting and conferring as required by law.
Notwithstanding the provisions of this section, the City Council may increase the benefits for this Library Unit or may increase the wages of specific classifications in the Library Per Diem Unit.
For the SEIU: For the City:
Paul Vaughn �
EXHIBIT A
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2023 MOU NEGOTIATIONS
TENTATIVE AGREEMENT
21.3 Notice of Proposed Discipline
Whenever a disciplinary action is proposed to be taken against a worker, the worker shall be notified in writing of the proposed disciplinary action taken within at least five (5) working days in advance of the pre-disciplinary (“Skelly”) hearing.
Such written notification shall include:
A statement of the proposed disciplinary action to be taken against the worker; A statement of the facts upon which the proposed disciplinary action is based which shall set forth clearly and with such particularity the charges against the worker so that the worker can understand said charges;
A statement must indicate the cause for the pro posed disciplinary action pursuant to the Personnel Rules or other relevant City policies;
A statement should describe any actions taken against the worker that relates to the current proposed disciplinary action; and
A statement advising the worker that the written notice is to be placed in their official personnel file and that said worker has a right to Union representation.
The written notice of proposed disciplinary action shall be considered to be sufficient notice to the worker if the above informat ion is contained therein. The written notice of proposed disciplinary action must be presented to the employee, either by personal service, email or sent via regular and certified mail (return receipt requested) to the last address that worker has furnished to the appointing authority.
21.4 Notice of Disciplinary Action
Whenever a disciplinary action is taken against a worker, the worker shall be notified in writing of the action taken.
Such written notification shall include:
Statement of the disciplinary action taken against the worker; A statement of the facts upon which the disciplinary action is based which shall set forth clearly and with such particularity the charges against the worker so that the worker can understand said charges;
A statement must indicate the cause for the disciplinary action pursuant to the Personnel Rules or other relevant City policies;
A statement which generally describes any actions taken against the worker during the last five (5) years and which relates to the current disciplinary action; A statement advising the worker that the written notice is to be placed in their official personnel file and that said worker has a right to appeal to the Personnel Board.
The written notice of disciplinary a ction shall be considered to be sufficient notice to the worker if the above information is contained. The written notice of disciplinary action must DocuSign Envelope ID: 98F169F0-7ED0-40B4-9015-0CB98976952A
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be presented to the employee, either by personal service , email or sent via regular and certified mail (return receipt requested) to the last address that the worker has furnished to the appointing authority.
For the SEIU: For the City:
______________________ _________________________
Steve Tsou Stacey Cue
Date: _____________ Date: _________________
DocuSign Envelope ID: 98F169F0-7ED0-40B4-9015-0CB98976952A 3/6/20233/8/2023
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2023 MOU NEGOTIATIONS
TENTATIVE AGREEMENT
17.0 HEALTH AND WELFARE
17.1.4 Cost
Effective January 1, 2020, the premium is $417.95/month. Starting September 1, 2018, the City shall contribute $250.00 per month toward the premium, and the enrollee pays the remaining portion of the premium. Starting May 1, 2020, the City shall contribute $350.00 per month toward the premium, and the enrollee pays the remaining portion of the premium. Starting July 1, 2023, the City shall contribute $390.00 per month toward the premium, and the enrollee pays the remaining portion of the premium. If an employee's paycheck is not sufficient to cover their share of the premium in a pay period, the amount of arrears will be collected in the next paycheck. If the premium increases to $46500.00/month or more during the term of the MOU, the City shall send a meet and confer notice to the Union.
For the SEIU: For the City:
Steve Tsou Stacey Cue
Date: Gt7-412 Date:
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CITY OF SAN MATEO and SEIU LIBRARY PER DIEM UNIT
2023 MOU NEGOTIATIONS
TENTATIVE AGREEMENT
24.0 MISCELLANEOUS PROVISIONS
24.2 Library Service Reward
Following the first full pay period following Council adoption a one-time, lump sum payment, for each milestone shall be distributed to eligible unit members in the following manner:
A. $500.00 for Unit Members employed for ten (10) to nineteen (19) years B. $750.00 for Unit Members employed for twenty (20) or more.
The continuation of this provision beyond the term of the contract would need to be made by mutual agreement between the parties.
For the City:
Stacey Cue
Date: SI 2-1V1Q--,3 Date: 570 /2 3
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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: 16 Section Name: CONSENT CALENDAR Account Number: 10-6661 File ID: 23-8156 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Human Resources Department
MEETING DATE: November 06, 2023
SUBJECT:
Service Employees’ International Union Library Merit Unit – Memorandum of Understanding Changes RECOMMENDATION:
Adopt a Resolution to amend the Memorandum of Understanding with the Service Employees’ International Union (SEIU) Local 521 Library Merit Unit for a term through June 21, 2026.
BACKGROUND:
The SEIU Library Merit Unit represents approximately 23 employees. The contract with this bargaining unit expired on March 4, 2023. Negotiations with SEIU concluded on October 25, 2023, and the membership subsequently ratified the proposed changes to their Memorandum of Understanding.
Consistent with the direction provided by the City Council, negotiators for the City and the bargaining unit have reached agreement. These agreements include:
Term: The contract will be for a period of three years, expiring on June 21, 2026.
Salary: The bargaining unit will receive a 4.0% salary increase effective July 9, 2023 and additional 2.0% increase for Librarian I/II series for recruitment and retention efforts effective July 9, 2023, a 3.0% increase effective June 23, 2024, and a 3.0% salary increase effective June 22, 2025.
Other: There are language changes relating to departmental operations and housekeeping language that amend some of the terms and conditions of the contract.
BUDGET IMPACT:
There is no budget impact in the current fiscal year for these recommended changes, as any increases can be absorbed within existing operating budgets. Updated salary and benefit amounts for these positions will be incorporated into the 2023-24 budget.
ENVIRONMENTAL DETERMINATION:
This Tentative Agreement is not a project subject to CEQA, because it is a government fiscal activity which does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. (CEQA Guidelines Section 15378(b)(4).)
NOTICE PROVIDED
All meeting noticing requirements were met.
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ATTACHMENTS
Att 1 – Proposed Resolution
Exhibit A - Tentative Agreements
STAFF CONTACT
Yumi Maeda, Senior Human Resource Analyst
[email protected]
(650) 522-7279
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RESOLUTION NO. ____ (2023)
APPROVING AMENDMENTS TO THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SAN MATEO AND THE SERVICE EMPLOYEES’ INTERNATIONAL UNION LIBRARY MERIT UNIT WHEREAS, the amendments are related to salary, term, other pays and miscellaneous language changes relating to departmental operations, and language clarity for the unit; and WHEREAS, the parties have met and conferred, and have reached tentative agreement to amend the Unit’s MOU; and
WHEREAS, the Unit has ratified the Tentative Agreement; and WHEREAS, no appropriation of additional funds to the Fiscal Year 2023-24 Budget is necessary.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN MATEO, CALIFORNIA, HEREBY RESOLVES that:
1. This Tentative Agreement is not a project subject to CEQA, because it is a government fiscal activity which does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. (CEQA Guidelines Section 15378(b)(4).)
2. The amendments to the Memorandum of Understanding for the Service Employees’ International Union (SEIU) Local 521 Library Merit Unit, set forth in the Tentative Agreements attached as Exhibit A, are approved and summarized as follows:
Term: The contract will be for a period of three years, expiring on June 21, 2026.
Salary: The bargaining unit will receive a 4.0% salary increase effective July 9, 2023. For recruitment and retention purposes the Librarian I/II shall receive an additional 2.0% increase effective July 9, 2023. The bargaining unit will receive a 3.0% increase effective June 23, 2024, and a 3.0% salary increase effective June 22, 2025.
Other: There are language changes relating to departmental operations and housekeeping language that amend some of the terms and conditions of the contract.
2. There is no budget impact in the current fiscal year for these recommended changes, as any increases can be absorbed within existing operating budgets. Updated salary and benefit amounts for these positions will be incorporated into the Fiscal Year 2023-2024 budget.
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EXHIBIT A
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DocuSign Envelope ID: 98F169F0-7ED0-40B4-9015-0CB98976952A CITY OF SAN MATEO and SEIU LIBRARY MERIT UNIT
2023 MOU NEGOTIATIONS
TENTATIVE AGREEMENT
21.3 Disciplinary Action
21.3.1 Notice of Proposed Discipline
Whenever a disciplinary action is proposed to be taken against a worker, the worker shall be notified in writing of the proposed disciplinary action taken within at least five (5) working days in advance of the pre-disciplinary (“Skelly”) hearing. Such written notification shall include:
A statement of the proposed disciplinary action to be taken against the worker; A statement of the facts upon which the proposed disciplinary action is based which shall set forth clearly and with such particularity the charges against the worker so that the worker can understand said charges;
A statement must indicate the cause for the proposed disciplinary action pursuant to the Personnel Rules or other relevant City policies;
A statement should describe any actions taken against the worker that relates to the current proposed disciplinary action;
A statement advising the worker that the written notice is to be placed in their official personnel file and that said worker has a right to Union representation.
The written notice of proposed disciplinary action shall be considered to be sufficient notice to the worker if the above information is contained therein. The written notice of proposed disciplinary action must be presented to the employee, either by personal service, e-mail or sent via regular and certified mail (return receipt requested) to the last address that worker has furnished to the appointing authority.
21.3.2 Notice of Disciplinary Action
Whenever a disciplinary action is taken against a worker, the worker shall be notified in writing of the action taken.
Such written notification shall include:
Statement of the disciplinary action taken against the worker; A statement of the facts upon which the disciplinary action is based, which shall set forth clearly and with such particularity the charges against the worker so that the worker can understand said charges;
A statement must indicate the cause for the disciplinary action pursuant to the Personnel Rules or other relevant City policies;
A statement which generally describes any actions taken against the worker during the last five (5) years and which relates to the current disciplinary action; A statement advising the worker that the written notice is to be placed in their official personnel file and that said worker has a right to appeal to the Personnel Board.
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DocuSign Envelope ID: 98F169F0-7ED0-40B4-9015-0CB98976952A The written notice of disciplinary action shall be considered to be sufficient notice to the worker if the above information is contained. The written notice of disciplinary action must be presented to the employee, either by personal service, email or sent via regular and certified mail (return receipt requested) to the last address that the worker has furnished to the appointing authority.
For the SEIU: For the City:
__________ _______________
Steve Tsou Stacey Cue
3/8/2023
Date: _____________
3/6/2023
Date: _________________
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CITY OF SAN MATEO
CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 17 Section Name: CONSENT CALENDAR Account Number: 10-1511 File ID: 23-8155 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: City Clerk's Office
MEETING DATE: November 06, 2023
SUBJECT:
Park and Recreation Commission Appointment Subcommittee – Youth Commissioner Recommendations RECOMMENDATION:
Appoint Thomas Jacob Jelniker and Serene Audrey Li to the Park and Recreation Commission as Youth Commissioners for a term through November 6, 2024, and place Jaslene Mia Rodriguez and Charlotte Graham on an eligibility list for a period of one year should another Youth Commissioner vacancy on the Park and Recreation Commission occur.
BACKGROUND:
On March 6, 2023, the City Council adopted Ordinance (2023-1) to amend San Mateo Municipal Code Chapter 2.27 “Park and Recreation Commission” to provide for Council appointment of two non-voting youth advisory members. The City Clerk’s Office conducted a recruitment, which included an extensive outreach to organizations working with the youth community. A total of 15 applications were received, twelve applicants were screened as eligible for appointment, and, due to one withdrawal from consideration, a total of eleven applicants were interviewed by the Park and Recreation Commission Appointment Subcommittee, consisting of Mayor Amourence Lee and Council Member Robert Newsom, Jr.
The Appointment Subcommittee interviewed the following applicants:
•Charlotte Graham
•Daphne Paige Conrad
•Darshan Singh Bal
•Jaslene Mia Rodriguez
•Justin D. Wong
•Emily Yuan Peng
•Adam J Ryan
•Serene Audrey Li
•Seth Kantor
•Nabhan Singh
•Thomas Jacob Jelniker
The Appointment Subcommittee recommended the following action:
Applicant Recommended Action
Thomas Jacob Jelniker Immediate appointment through November 6, 2023 Serene Audrey Li Immediate appointment through November 6, 2023 Jaslene Mia Rodriguez Eligibility List through November 6, 2023 Charlotte Graham Eligibility List through November 6, 2023
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BUDGET IMPACT:
There is no budget impact associated with this administrative action.
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).)
NOTICE PROVIDED
All meeting noticing requirements were met.
ATTACHMENTS
Att 1 - Boards, Commissions and Committees List
STAFF CONTACT
Martin McTaggart, Deputy City Clerk
[email protected]
(650) 522-7044
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Boards, Commissions & Committees List
Term
Date
Appt’d
Term
Expires Term
Date
Appt’d
Term
Expires
COMMUNITY RELATIONS COMMISSION (650) 522-7220
Meeting: 3rd Wednesday, 7:00 p.m. City Hall (Room C)
1 Sheri Boles, Vice Chair 07-19-21 06-10-26
1 Meghan Crowell, Chair 06-10-21 06-10-25
1 Noopur Vyas Anand 09-06-22 06-10-26
1 Jerold Nugent 06-10-20 06-10-24
0 Alli Fitzgerald 01-17-23 06-10-24
PLANNING COMMISSION (650) 522-7212
Meeting: 2nd & 4th Tuesdays, 7:00 p.m. Council Chambers
2 John Ebneter, Chair 06-01-15 06-10-25
1 Adam Nugent 07-19-21 06-10-25
1 Seema Patel, Vice Chair 06-10-21 06-10-26
2 Margaret Williams 07-15-19 06-10-27
0 Martin Wiggins 05-16-22 06-10-24
LIBRARY BOARD (650) 522-7802
Meeting: 4th Monday, 5:30 p.m. Main Library Cedar Rm.
1 Richard Wysong 06-10-23 06-10-27
0 Sheila Canzian 04-17-23 06-10-25
0 Wendy McCall 04-17-23 06-10-24
1 Austin Volz, President 01-03-22 06-10-26
0 Shaylona Wheeler, Vice President 01-03-22 06-10-25
SENIOR CITIZENS COMMISSION (650) 522-7400
Meeting: 2nd Monday, every other month beginning in January 4:00 p.m. San Mateo Senior Center
0 Thomas Lease 04-17-23 06-10-25
0 Vacant 06-10-23 06-10-27
2 Monika Lee, Vice Chair 07-18-16 06-10-24
1 Ellen Wang, Chair 07-20-20 06-10-24
2 Mary Webb 02-17-15 06-10-26
PARK AND RECREATION COMMISSION (650) 522-7400
Meeting: 1st Wednesday, 7:00 p.m. City Hall (Room C)
1 Sarah Fields, Chair 06-10-21 06-10-25
0 Regina Trapp 10-16-23 06-10-27
1 Sandra Kiapi 06-10-23 06-10-27
0 Peter Wicher 10-16-23 06-10-26
2 Heather Wolnick, Vice Chair 07-17-17 06-10-25
SUSTAINABILITY & INFRASTRUCTURE (650) 522-7153
COMMISSION
Meeting: 2nd Wednesday, 7:00 p.m. Council Chambers
0 Pamela Rittelmeyer 01-17-23 06-10-24
1 Kimi Narita, Vice Chair 04-05-21 06-10-27
1 Sigalle Michael 08-15-22 06-10-26
2 Clifford S. Robbins 08-06-18 06-10-26
1 Susan Rowinski, Chair 08-06-18 06-10-25
PERSONNEL BOARD (650) 522-7260
Meeting: 3rd Tuesday, 7:00 p.m. City Hall (Room C)
1 Caiti Busch 06-10-21 06-10-25
1 Debra Kaiser 06-10-21 06-10-25
2 Gayle Murphy, Chair 07-20-15 06-10-26
1 Elizabeth DeWinter 06-10-23 06-10-27
1 Tony Villanueva, Vice Chair 01-19-21 06-10-24
YOUTH ACTIVITIES COUNCIL (YAC) (650) 522-7432
Meets twice a month, Coordinator: Adeline Jones
Youth from the following schools represent the voice of San Mateo teens: Aragon – Hillsdale – Serra – San Mateo
MOSQUITO & VECTOR CONTROL DISTRICT
(650) 573-8358
1 Ed Degliantoni 09-21-15 12-31-24
0 = appointed to unscheduled opening, eligible to serve a first full term 1 = in first term currently
2 = in second (final) term currently
Board and Commission Members are appointed by the City Council. To apply for future vacancies, or for further information, please contact the City Clerk. Members serve a four-year term of office. Qualifications: Registered Voter of the City of San Mateo.
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Term
Date
Appt’d
Term
Expires
MEASURE S OVERSIGHT COMMITTEE (650) 522-7040
Meeting: 3rd Tuesday of the 2nd month of the quarter (February, May, August, November) at 6:00 p.m. City Hall (Room C)
0 Sandy Shepler 04-17-23 06-10-24
0 Karen Moen 04-17-23 06-10-26
2 Thomas Morgan 02-05-18 06-10-25
0 William Yang 04-17-23 06-10-26
1 Nick Atkeson 06-10-23 06-10-27
CIVIC ARTS COMMITTEE (650) 522-7164
Meeting: 2nd Monday, every other month beginning in January, 4:00 p.m. City Hall (Room C)
Robert Gooyer, Vice Chair
Seema Patel
Ginger Slonaker
Stephen Tabler, Chair
Dianne Whitaker
INVESTMENT ADVISORY COMMITTEE (650) 522-7100
Meeting: 3rd Thursday of Jan/Apr/Jul/Oct at 3:30 p.m., City Hall (Room C)
Jeff Adams
Michael Carney
Chris deLong
Margaret Taylor, Chair
GENERAL PLAN SUBCOMMITTEE
Meeting: Varies
Cliff S. Robbins, Chair (Sustainability & Infrastructure Commission) Heather Wolnick, Vice Chair (Park and Recreation Commissioner) Lisa Diaz Nash (City Council Member)
Adam Loraine (City Council Member)
Seema Patel (Planning Commissioner)
Adam Nugent (Planning Commissioner)
Ken Chin (San Mateo Foster City School Board Member)
Board and Commission Members are appointed by the City Council. To apply for future vacancies, or for further information, please contact the City Clerk. Members serve a four-year term of office. Qualifications: Registered Voter of the City of San Mateo.
/s/ PATRICE M. OLDS, CITY CLERK
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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: 18 Section Name: CONSENT CALENDAR Account Number: 10-6143 File ID: 23-8126 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Parks and Recreation Department
MEETING DATE: November 6, 2023
SUBJECT:
Fallen Heroes Memorial at Central Park – Appropriation and Spending Plan RECOMMENDATION:
Adopt a Resolution to approve a budget appropriation of $228,836.81 in the 2023-24 Capital Improvement Program budget from the San Mateo City Parks and Recreation Foundation as a result of the fundraising effort of the Fallen Heroes Memorial Committee for the Fallen Heroes Memorial project at Central Park; and authorize the Parks and Recreation Director to expend the funds for the site work construction contract, procure site furniture, plaques, and other related improvements, as needed, and to pay other fees associated to the project.
BACKGROUND:
At its May 4, 2015, meeting, the City Council approved a concept to establish a living memorial in Central Park to honor San Mateans who gave the ultimate sacrifice in service to the country and the City, via both military service and public safety service. The expectation was set that the Fallen Heroes Memorial (Memorial) would be largely funded through community fundraising. The Memorial was approved as part of the Central Park Master Plan in March 2018. A committee was established led by former Mayor Maureen Freschet comprised of past councilmembers, community members, military service veterans, and public safety retirees to undertake managing the design proposal process, to research and determine the names to be etched on the Memorial, and to fundraise for the memorial costs. A goal of $300,000 was established and the Memorial Committee has been effective in reaching $303,836.81 in donations in the last two years. It is important to note that the City provided $50,000 to launch this effort, and those funds are currently assigned in the Capital Improvement Project fund and a pledge of $25,000 from the County of San Mateo will be secured once the contracts are approved and the actual construction begins.
The mission of the San Mateo City Parks and Recreation Foundation (Foundation), a 501(c)3 non-profit, is to work in collaboration with the City of San Mateo Parks and Recreation Department to support parks, recreation programs and capital projects that can be enjoyed by all San Mateo residents. The Foundation agreed to serve as the underlining non- profit organization so donors could receive the full tax benefit from their donations.
Although the committee exceeded its fundraising goal, due to rising construction costs since this Memorial was envisioned it will be a stretch to cover all the costs to construct and install the Memorial. Therefore, timely approval of the proposed contracts for the implementation of the Memorial and necessary purchases with access to the appropriate funds to commence this effort as soon as possible is vital. Staff will be returning to the next Council meeting with a contract approval for the site work contractor. Staff is also in the process of seeking additional budget appropriation from the “Art In Public Places” Fund (Municipal Code Section 23.60.030) and will be seeking approval from the Civic Arts Committee and, if successful, returning to Council for an additional appropriation for the fabrication of the artwork. The committee is still dedicated to continuing its best efforts to raise funds for this project.
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BUDGET IMPACT:
Once appropriated, the donated funds will augment the Parks and Recreation Department’s Capital Improvement Program account.
ENVIRONMENTAL DETERMINATION:
This budget appropriation is not a project subject to CEQA, because it is a government fiscal activity which does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. (CEQA Guidelines Section 15378(b)(4).)
NOTICE PROVIDED
All meeting noticing requirements were met.
ATTACHMENTS
Att. 1 – Proposed Resolution
STAFF CONTACT
Nicholas Tsiorvas, Business Manager
[email protected]
(650) 522-7408
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RESOLUTION NO. ____ (2023)
AUTHORIZING AN APPROPRIATION OF FUNDS AND AUTHORIZING THE PARKS AND RECREATION DIRECTOR TO
EXPEND THE FUNDS FOR THE FALLEN HEROES MEMORIAL AT CENTRAL PARK WHEREAS, City Council approved a concept to establish a living memorial in Central Park to honor San Mateans who gave the ultimate sacrifice in service to the country and the City, via both military service and public safety service; and
WHEREAS, a goal of $300,000 was established and the Memorial Committee has been effective in reaching $303,836.81 in donations in the last two years; and WHEREAS, the City of San Mateo Parks and Recreation Foundation agreed to serve as the underlining non-profit organization so donors could receive the full tax benefit from their donations.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN MATEO, CALIFORNIA, HEREBY RESOLVES that:
1. This budget appropriation is not a project subject to CEQA, because it is a government fiscal activity which does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. (CEQA Guidelines Section 15378( b)(4).)
2. A budget appropriation of $228,836.81 in the 2023-24 Capital Improvement Program budget from the San Mateo City Parks and Recreation Foundation is approved.
3. The Parks and Recreation Director is authorized to expend the funds for the site work construction contract, to procure site furniture, plaques, and other related improvements, as needed, and to pay other fees associated to the Fallen Heroes Memorial.
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Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 19 Section Name: PUBLIC HEARING Account Number: 26-3111 File ID: 23-8090 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Community Development Department
MEETING DATE: November 06, 2023
SUBJECT:
Bay Meadows Phase II Development Agreement Extension Request – Ordinance Introduction RECOMMENDATION:
Introduce an Ordinance to approve a three-year extension of the Bay Meadows Phase II Development Agreement.
BACKGROUND:
The Bay Meadows Phase II Project is an 83-acre transit-oriented development with a range of land uses, including residential, commercial, educational, and public park uses that redeveloped the former Bay Meadows Racetrack, which has a main site address of 2600 S. Delaware Street. The Bay Meadows Phase II area is subdivided into 18 development blocks: five office blocks, four mixed-use blocks, and nine residential blocks. The City Council originally approved the Bay Meadows Phase II Project in November of 2005 when adopting the Bay Meadows Phase II Specific Plan Amendment, Environmental Impact Report, and the Bay Meadows Phase II Development Agreement. The Bay Meadows Phase II Development Agreement (Attachment 2), adopted through Exhibit A to Ordinance No. 17 (2005), provides an 18-year timeframe for the vested rights of the projects and completion of improvements under the Agreement through December 20, 2023.
Bay Meadows Main Track Investors, LLC (“Owner”) has requested a three-year extension of the Development Agreement’s term, from December 20, 2023 to December 20, 2026 due to the impacts of the COVID-19 pandemic and the resulting slow-down in the office market. The Bay Meadows Phase II project developer, Wilson Meany (“Applicant”), has indicated that they are unable to construct the final two blocks (Mixed Use Blocks 2 and 3) within the original Development Agreement term ending on December 20, 2023.
On October 10, 2023, the Planning Commission voted unanimously (5-0) to recommend approval of the extension request.
After introduction and adoption of the Ordinance (Attachment 1), the Owner and City would execute and record the amendment prior to the end of the original Development Agreement term of December 20, 2023.
Development Agreement Extension Request
On August 11, 2023, the Applicant submitted a letter explaining the extension request of the Development Agreement for the Bay Meadows Phase II Project (PA-2023-050) for a period of three years. As outlined in the extension request letter (Attachment 3), the Applicant is seeking a three-year extension of the Development Agreement to extend the total term from 18 years to 21 years, which extends the Agreement’s term to December 20, 2026. The Applicant indicates that the extension is necessary due to the COVID-19 pandemic delaying their ability to complete the development of the final two blocks (MU2 and MU3) by causing ongoing disruption in the office and financing markets.
No other changes to the Development Agreement are being requested. In addition, no changes to the approved project are proposed. As such, the development will remain within the allowable range of office square-footage and residential
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density and will remain consistent with the City’s General Plan, the Rail Corridor Transit Oriented Development Plan, and the Bay Meadows Phase II Specific Plan Amendment. The original Development Agreement was approved by Ordinance, and an Ordinance Amendment approval by the City Council would be needed to make the requested change to the terms of the Development Agreement.
Section 3.8 of the Development Agreement states that the City cannot impose any further or additional exactions on the development of the project. The exactions applicable to the Project as provided in the Specific Plan and the Development Agreement shall not be modified or renegotiated by the City as a result of any amendment to the Specific Plan, the Project Approvals or the Development Agreement which does not materially increase the density or intensity of development. As such, no further exactions are sought for the extension request. In addition, Section 11.1 of the Development Agreement provides that the City and Developer may amend the Development Agreement by mutual consent in writing, and in a manner provided for in Government Code Section 65868 and Section 8 of the Development Agreement Resolution.
BUDGET IMPACT:
There are no direct fiscal implications to the City’s General Fund associated with this request. The City collected development impact fees at the time of issuance of building permits for development on each block.
ENVIRONMENTAL DETERMINATION:
The City Council certified the Final Environmental Impact report (EIR) for the San Mateo Rail Transit-Oriented Development Corridor Plan and the Bay Meadows Phase II Specific Plan Amendment, in compliance with the California Environmental Quality Act (CEQA) on April 18, 2005. The City Council then approved the Bay Meadows Specific Plan Amendment, re- certified the Final EIR for that project, and adopted the findings and statement of overriding considerations on November 7, 2005. Because there are no substantial changes to the project and no new information has become available since the time of the EIR, no further CEQA analysis is required at this time (CEQA Statute and Guidelines Section 21166).
PUBLIC COMMENTS:
One public comment was submitted prior to this public hearing, which requested more information regarding the Homeowners Association Board composition and indicated a concern for the visual appearance of the MU 2 and MU 3 blocks. This comment was forwarded to the Applicant for response regarding the Homeowners Association. In addition, the Applicant is responsible for upkeep of the visual appearance of all blocks during construction through fencing and maintaining sidewalk access through conditions of approval.
Public comments submitted after publication of this report will be forwarded to the City Council for review and consideration at the public hearing and posted to this item on the City’s Agendas & Minutes Public Meeting Portal as “Post Packet Public Comments.”
NOTICE PROVIDED
In accordance with Government Code Section 65091 and the City’s Municipal Code public noticing requirements, this public hearing was noticed to the following parties at least ten (10) days in advance of the City Council meeting:
•Property owners, residential tenants and business tenants within 1,000 feet of the project site. •The City’s “900 List”, which contains nearly 100 Homeowner Associations, Neighborhood Associations, local utilities, media, and other organizations interested in citywide planning projects; •The City’s Planning “Notify Me” email list; and,
•The interested parties list, which includes interested individuals who contacted the City and requested to be added to the project notification list.
ATTACHMENTS
Att 1 – Ordinance with Amendment to the Development Agreement Att 2 – Bay Meadows Phase II Development Agreement (2005) Att 3 – Extension Request Letter
Att 4 – Public Comment
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STAFF CONTACT
Rendell Bustos, Senior Planner Lisa Costa Sanders, Contract Planner [email protected] [email protected] (650) 522-7211
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DRAFT ORDINANCE
Approving the First Amendment to the Development Agreement Between the City of San Mateo and Bay Meadows Main Track Investors, LLC in Order to Extend the Development Agreement by Three Years for the Bay Meadows Phase II Project (PA-2023-050) WHEREAS, the ordinance approving the Bay Meadows Phase II Development Agreement was adopted by the City Council on November 7, 2005, and became effective on December 21, 2005; and
WHEREAS, Bay Meadows Main Track Investors, LLC (“Owner”) submitted an application on August 17, 2023 (PA-2023-050) requesting a three-year extension of the Development Agreement, citing the COVID-19 pandemic and its adverse impact on the ability of the Owner to complete the envisioned development on the Property within the allotted timeframe; and WHEREAS, Section 11.1 of the Development Agreement provides that the parties may amend the Development Agreement by mutual consent in writing, and in the manner provided for in Government Code Section 65868 and Section 8 of the Development Agreement Resolution; and
WHEREAS, the City and Bay Meadows wish to amend the Development Agreement to add three (3) years to the term to facilitate the beneficial development of the Property; and WHEREAS, the Development Agreement has not been amended or modified except as otherwise indicated in the First Amendment to the Development Agreement, and neither the Owner nor the City is in default in the performance of their respective obligations under the Development Agreement; and
WHEREAS, on October 10, 2023, the Planning Commission held a duly noticed public hearing at which all public comments were considered and recommended that the City Council approve the extension request; and
WHEREAS, on November 6, 2023, the City Council held a duly noticed public hearing at which all public comments were considered.
NOW, THEREFORE, THE COUNCIL OF THE CITY OF SAN MATEO ORDAINS AS FOLLOWS:
Section 1. In accordance with Government Code section 65867.5, the First Amendment to the Development Agreement is consistent with the City’s General Plan, the Rail Corridor Transit Oriented Development Plan, and the Bay Meadows Phase II Specific Plan Amendment in that the extension request provides for the orderly implementation of the Development Agreement in accordance with the San Mateo Rail Corridor Transit-Oriented Development Plan and the Bay Meadows Phase II Specific Plan. The extension provides sufficient time for the Owner to complete construction of the final two development blocks, including public improvements, consistent with the approved Site Plan and Architectural Review Modification (PA-2020-053). With the development of the final two development blocks, the
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overall Bay Meadows Phase II development will be within the allowable range of office uses and residential density as permitted in the Bay Meadows Phase II Specific Plan.
Section 2. For the reasons set forth in the Administrative Report accompanying the original project approval, the Development Agreement provides substantial public benefits to persons residing or owning property outside the boundaries of the development project, beyond the exactions for public benefits required in the normal development review process under federal, state, or local law.
Section 3. The City Council approves and authorizes the City Manager to execute the First Amendment to the Development Agreement in substantially the form attached as Exhibit A to this Ordinance. Section 1.5 of the Development Agreement is amended to extend the term to December 20, 2026.
Section 4. Environmental Determination. On April 18, 2005, a Supplemental Environmental Impact Report to the Rail Corridor Plan Environmental Impact Report was prepared for this Project and the City Council approved the Bay Meadows Specific Plan Amendment and re-certified the Final EIR for that project and adopted the findings and statement of overriding considerations on November 7, 2005 in accordance with Public Resources Code section 21061. Because there are no substantial changes to the project and no new information has become available since the time of the EIR, no further environmental analysis is required.
Section 5. 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 6. 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 7. 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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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Gibson, Dunn & Crutcher LLP
333 S. Grand Avenue, Suite 4900
Los Angeles, California 90071
Attention: Benjamin Saltsman, Esq.
With a copy to:
Office of the City Attorney
City of San Mateo
330 West 20th Avenue
San Mateo, California 94403
THE AREA ABOVE IS RESERVED FOR RECORDER’S USE
FIRST AMENDMENT TO THE DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF SAN MATEO AND BAY MEADOWS MAIN TRACK
INVESTORS, LLC
SEPARATE PAGE PURSUANT TO CAL. GOV’T CODE § 27361.6
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FIRST AMENDMENT TO THE DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF SAN MATEO AND BAY MEADOWS MAIN TRACK
INVESTORS, LLC
This FIRST AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF SAN MATEO AND BAY MEADOWS MAIN TRACK INVESTORS, LLC (“First Amendment”) is dated December ____, 2023, and is by and between the City of San Mateo, a municipal corporation of the State of California (“City”), and Bay Meadows Main Track Investors, LLC, a Delaware limited liability company (“Bay Meadows”).
WHEREAS, City and Bay Meadows are parties to that certain Bay Meadows Phase II Development Agreement dated November 21, 2005 and recorded in the Official Records of San Mateo County, California (“Official Records”) on January 24, 2006 as Instrument Number 2006-011071, as modified by (1) that certain Memorandum of Technical Corrections to the Bay Meadows Phase II Development Agreement (the “Memorandum of Corrections”) dated July 21, 2008 and recorded in the Official Records on July 22, 2008 as Instrument Number 2008-084562 and (2) that certain Minor Modification to the Development Agreement between The City of San Mateo and Bay Meadows Main Track Investors, LLC dated November 21, 2011 and recorded in the Official Records on March 26, 2012 as Instrument Number 2012-039872 (collectively, the "Development Agreement"), pertaining to the redevelopment of the "Property" described therein and on Exhibit “A” attached hereto (the "Property"), commonly known as Bay Meadows Phase II, located in the City of San Mateo, State of California; and WHEREAS, Section 11.1 of the Development Agreement provides that the parties may amend the Development Agreement by mutual consent in writing, and in the manner provided for in Government Code Section 65868 and Section 8 of the Development Agreement Resolution; and
WHEREAS, the Effective Date of the Development Agreement was December 21, 2005, and the Term therefore expires on December 20, 2023; and WHEREAS, the COVID-19 pandemic adversely impacted Bay Meadows’ ability to complete the envisioned development on the Property; and WHEREAS, the City and Bay Meadows wish to amend the Development Agreement to add three (3) years to the Term to facilitate the beneficial development of the Property; and
WHEREAS, after conducting a duly noticed public hearing on [October 10, 2023], by a vote of 5-0, the Planning Commission recommended that the City Council approve this First Amendment; and
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WHEREAS, On [November 6, 2023], the City Council held a duly noticed public hearing on this First Amendment and after independent review and consideration, approved this First Amendment by first reading of Ordinance No. _____________. On [November 20, 2023], the City Council approved this First Amendment by second reading of Ordinance ______________. Ordinance No. ____________ became effective on [December 20, 2023].
NOW, THEREFORE, the parties agree as follows:
1. Section 1.51 of the Development Agreement, “Term,” is modified to read as follows (with the deletion shown in strike-out form, and additions underlined):
“The term of this Agreement, commencing on the later to occur of (i) the Effective Date or (ii) if a legal proceeding is initiated challenging the validity of the Enacting Ordinance, the MMRP, the EIR, the General Plan Amendment, the Specific Plan Amendment or other Project Approval, this Agreement, or the Master Tentative Map Approval, the date such legal proceeding is finally concluded upholding the Enacting Ordinance or other relevant approval, and terminating eighteen (18) twenty-one (21) years thereafter, unless sooner Terminated as provided in this Agreement. For purposes hereof, a legal proceeding shall be deemed "finally concluded" upon the date of the entry of a final, non-appealable order or judgment in such proceeding upholding the validity of the Enacting Ordinance or other Project Approval. Notwithstanding anything to the contrary contained herein, the term of this Agreement ends on December 20, 20236.”
2. The parties intend hereby to modify the Development Agreement only as set forth in this First Amendment, and the parties hereby agree that, except as expressly modified hereby, the remaining terms of the Development Agreement are hereby confirmed and remain in full force and effect and a binding obligation.
3. The Development Agreement has not been amended or modified either orally or in writing except as indicated in this First Amendment, and neither Owner nor City is in default in the performance of their respective obligations under the Development Agreement.
4. This First Amendment may be executed in any number of counterparts, each of which, when executed, shall be deemed to be an original, and all of which shall be deemed to be one and the same instrument. Electronically transmitted signatures shall be deemed originals.
[SIGNATURES FOLLOW ON NEXT PAGE]
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Signature Page – First Amendment (Bay Meadows Phase II Development Agreement)
CITY OF SAN MATEO
BAY MEADOWS MAIN TRACK
INVESTORS, LLC
A Delaware
limited liability company
Alex Khojikian
City Manager
Date <Insert Name>
<Insert Title>
Date
ATTEST:
APPROVED AS TO FORM:
Patrice Olds
City Clerk
Date Prasanna W. Rasiah
City Attorney
Date
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF __________________)
On ________________, 2023, before me,
______________________________, a Notary Public, personally appeared__________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________________________________ (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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STATE OF CALIFORNIA )
COUNTY OF __________________)
On ________________, 2023, before me,
______________________________, a Notary Public, personally appeared__________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________________________________ (Seal)
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EXHIBIT A TO FIRST AMENDMENT
TO DEVELOPMENT AGREEMENT)
The Property
All that real property situated in the City and County of San Mateo, State of California being described as follows:
Blocks 1, 2, 3 and 10, Lot A and that Designated Remainder, as shown on the Final Map entitled “Bay Meadows Phase II, No. 1”, as said map was filed for record on August 25, 2010 in Book 137 of Maps, at Pages 37 through 46, in the Office of the Recorder of San Mateo County, State of California.
The Property is also described as Parcel 1, as shown on that certain map entitled “Bay Meadows No. 1, City of San Mateo, San Mateo County, California”, filed in the Office of the County Recorder of San Mateo County, State of California, on June 8, 1999 in Book 129 of Maps at page (s) 47 through 57, inclusive.
Attached hereto is a plat labeled “Exhibit A – Bay Meadows Project Boundary” and by this reference is made a part hereof.
106521255.2
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1 Rendell Bustos
From: Rendell Bustos
Sent: Tuesday, October 10, 2023 4:07 PM
To: Rae Parnmukh
Cc: Clerk; Emily Lesk; Lisa Costa-Sanders; Manira Sandhir; [email protected] Subject: RE: PA-2023-050 / Bay Meadows Agreement Extension and Annual Review - Homeowner questions Hi Rae,
Thanks for the additional comments below and for discussing the agenda item with me just now over the phone. I will forward this email thread to the Planning Commission for their consideration at tonight’s Public Hearing.
-Rendell
Rendell Bustos
Senior Planner | Community Development Department
330 W. 20th Ave., San Mateo, CA 94403
650-522-7211 | [email protected]
From: Rae Parnmukh
Sent: Tuesday, October 10, 2023 3:51 PM
To: Rendell Bustos <[email protected]>
Cc: Clerk <[email protected]>; Emily Lesk <[email protected]>; Lisa Costa-Sanders <[email protected]>; Manira Sandhir <[email protected]>; [email protected] Subject: Re: PA-2023-050 / Bay Meadows Agreement Extension and Annual Review - Homeowner questions
Hi,
Just spoke to Rendell, thank you for the call.
With regards to the meeting tonight, my main concern will be the following; - Visual impact of the pits not being developed and finished speedily. Granted I am sure all parties will take effort to complete the build out as is possible.
- Impact of the pits on the home valuations. Expecting that when the pits are fully built out, home values will rise due to the completion of the community.
I did ask if there would be some concessions to the city or homeowners due to the delay in buildout. If it is possible to impose a fee for this extension or if it is again requested in three years, that would give both the city and the homeowners some confidence that the pits won’t be everlasting.
Thank you,
Raewadee Parnmukh
Would still like a reply from Wilson Meany on the other aspects I brought up if possible.
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2 On Tue, Oct 10, 2023 at 14:07 Rae Parnmukh wrote:
Sure, that would help a lot. Apologies as I am not generally that active in City matters, so clar ification on the agenda and how it works, what is the main takeaway - verbally will be useful.
Could you try calling me between 3:35pm and 3:45pm?
If I am available, I will answer.
I have a window between meetings at 3:30 to 4pm.
Thanks,
Rae
On Tue, Oct 10, 2023 at 13:30 Rendell Bustos <[email protected]> wrote:
Hi Rae,
The full packet with the attachments is attached. I think it would be helpful if we discussed this agenda item over the phone to clarify the items being considered this evening. Can you let me know your best phone number and when you’d be available? I am available today after 3:30 pm.
In case we are not able to connect on the phone, there will be a public comment period for tonight’s Public Hearing but the Planning Commission does not have authority in matters regarding the Homeowners Association. You are able to join the meeting in-person at the City Hall Council Chambers or join the Zoom (www.cityofsanmateo.org/publicmeetings) and can comment freely on the agenda topic.
Lastly, I would emphasize that Wilson Meany staff have been cc’d in this correspondence who are reviewing your questions and will provide a response, since Homeowners Association matters are their purview.
-Rendell
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4 As an owner, I am concerned that these pits will remain undeveloped for three more years.
Will tonight’s meeting be the correct forum to express that concern?
As a homeowner in the community, what position is available to me, to hold the approval of this request gating further information to be provided in the HOA regard?
Thank you,
Rae
On Tue, Oct 10, 2023 at 10:22 Rendell Bustos <[email protected]> wrote:
Hi Rae,
Attached is the staff report for tonight’s Planning Commission Public Hearing, which is not related to the Homeowner’s Association board composition. Tonight’s Public Hearing is focused on a request to extend the Development Agreement, which is an agreement between the City of San Mateo and the land owner to develop the Bay Meadows Phase II area. This meeting will be viewable online and will be recorded (please see www.cityofsanmateo.org/publicmeetings).
Emily Lesk from Wilson Meany is coordinating on her end to respond to the questions focused on the HOA. These questions are not in the purview of the City or Planning Commission. I hope this helps clarify – let me know if you have further questions for City staff.
Thanks,
Rendell
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7 As a homeowner in Bay Meadows since 2015, I have been waiting for the HomeOwners Association to be turned over to the homeowners fully.
I have expressed continued concern that the Bay Meadows Homeowners Association is ill-formed with Wilson Meany representatives holding the majority of the seats,(3) on the Board. This has provided Wilson Meany unilateral control in decisions that impact homeowners the most.
As part of the review, can it be recorded, what is the ownership interest Wilson Meany has in the "Covered Property" or "Annexable territory"?
Without ownership interest, is Wilson Meany correct to hold majority or any board seats in the Bay Meadows Homeowners association?
With ownership described, does this extension, also extend their power over the Homeowner's Association for at minimum another three years?
All of my concerns, are governed by the following:
In the Bay Meadows CC&Rs in
Section 6.3 Classes of Voting Membership
Section 6.4 Voting Rights
But most specifically BYLAWS OF BAY MEADOWS COMMUNITY ASSOCIATION ARTICLE 2
2.2 QUALIFICATIONS FOR HOLDING OFFICE. Each Director, except for those initially appointed by Declarant to serve as interim Directors until the first annual meeting,must be (a) an Owner who meets the qualifications in this Section
2.2 or, (b) an agent of Declarant or an agent of a Neighborhood Builder for so long as Declarant or a Neighborhood Builder owns or has any interest in any portion of the Covered Property or any portion of the Annexable Territory, or (c) appointed to office by exercise of the Class C Board appointment right.
2.3.1 Term for Appointee Directors. Notwithstanding anything in these Bylaws to the contrary, all Directors appointed at any time by exercise of the Class C Board appointment right shall serve until the earlier of:
(a) Removal of Director by Declarant;
(b) The date of the appointed Director’s death or resignation from the Board of Directors;
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8 (c) The date that is three (3) years after the date on which the Class C Board appointment right expires; or (d) The date on which Declarant no longer owns any portion of the Covered Property or Annexable Territory.
It has been confirmed that there is no longer a Class C Board appointment right, the date as to when this expired cannot be obtained from the Board. I believe it was 2020, if this date can be recorded in the review that would be helpful as well.
Thanks,
Raewadee Parnmukh
* 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.
* 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.
* 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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Bay Meadows Phase II Development
Agreement Extension Request
(PA-2023-050)
City Council Public Hearing
November 6, 2023
Rendell Bustos, Senior Planner
Community Development Department
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BAY MEADOWS
PHASE II DA
2 Bay Meadows Phase II Overview
Extension Request
Public Input
Recommendation
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3 Bay Meadows
Phase II
1,048 Residential
Units
1.2 Million Sq. Ft.
Office
Bay Meadows Phase II Overview
Extension Request
Public Input
Recommendation
BAY MEADOWS
PHASE II DA
Development
Agreement
15 Acres of Public
Parks
$1.5 Million Financial
Contributions 18-Year Term
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4 Three-year extension request
•Extends term to December 20, 2026
•Extends term from 18 years to 21 years
Purpose of extension
•Caused by COVID-19 pandemic
•Delayed ability to complete final two blocks (MU 2 and MU 3)
No other changes to project or Development Agreement
•City is not imposing further exactions (Section 3.8)
•Project remains consistent with Specific Plans, General Plan, Zoning Code
Planning Commission Recommendation
•Recommended City Council approval by vote of 5-0
Bay Meadows Phase II Overview
Extension Request
Public Input
Recommendation
BAY MEADOWS
PHASE II DA
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5 Bay Meadows Phase II Overview
Extension Request
Public Input
Recommendation
BAY MEADOWS
PHASE II DA Public Noticing
•Postcard mailing (1000-foot radius)
•Placards posted on-site
•Newspaper posting
Public Comments
•Received one public comment before Planning
Commission regarding Homeowners Association and
upkeep of remaining vacant lots.
Forwarded to applicant to respond to Homeowners
Association inquiry
Condition of Approval: “Aesthetics During
Construction”
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6 Bay Meadows Phase II Overview
Extension Request
Public Input
Recommendation
BAY MEADOWS
PHASE II DA
Introduce an Ordinance to approve a three-year
extension of the Bay Meadows Phase II Development
Agreement.
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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: 20 Section Name: OLD BUSINESS Account Number: 10-4679 File ID: 23-8132 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: November 06, 2023
SUBJECT:
Wet Weather Preparations – Update
RECOMMENDATION:
Receive an update on the City's wet weather preparations.
BACKGROUND:
City staff have been engaging in a variety of actions to prepare for the upcoming rainy season. Many of these activities were presented to Council at the August 21, 2023 meeting, including actions for which additional resources were subsequently allocated by Council for implementation. The following sections provide an overview of the status of each of the actions presented to Council on August 21, as well as additional actions staff have been implementing that were not included in that presentation. Staff will also provide a summary presentation of the material in this report. Note that the categorization and lettering/numbering of the following items correlates to how they were presented at the August 21, 2023 meeting.
Immediate-Term Actions (No Additional Resources Required) A. Additional Marina Lagoon Pump Station pump vibration analysis at summer lagoon levels a. This action is complete.
B. Develop Marina Lagoon Alternatives Analysis for Pumping Below 95 feet a. City staff have executed an amendment to Schaaf & Wheeler’s existing agreement to evaluate alternatives including 1) contracting for a detailed hydraulic intake analysis to determine if existing pumps can safely lower the water level beyond standard winter operating levels, 2) installing a temporary rental pump system, 3) using one existing pump/gearbox/engine as a “sacrificial” pump with increased monitoring and anticipated replacement, and 4) constructing a new low-flow pump station adjacent to the existing pump station with pumps properly sized for lowering the lagoon levels below 95 feet.
C. Install debris rack at 4000 Pacific Boulevard Pump Station a. This action is complete.
D. Provide data on City’s website for Marina Lagoon levels and pumps running a. This action is nearly complete, with a beta version undergoing review and improvement by Public Works and Information Technology staff. Staff anticipate public roll-out of a public-facing webpage by December 1, 2023.
E. Implement additional safety systems for trash rack cleaning at Marina Lagoon Pump Station a. This action is complete.
F. Develop a RFP to update the 2004 Storm Drain Master Plan and develop a prioritized implementation strategy
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a. This action is underway, and combined with Short-Term Item 7, below, to perform a LiDAR aerial survey, as the survey data will feed directly into updated hydrologic and hydraulic modeling for the Master Plan.
G. Inspect and clean all City-owned trash capture devices a. This action is underway. All downtown trash capture devices have been cleaned, the remaining approximately 100 catch basins with trash capture devices are being cleaned with the overall catch basin cleaning work under Immediate-Term Actions Item 3, below.
H. Inspect and clean all City-owned trash racks
a. This action is underway – nearly all trash racks have been inspected and cleaned. The Laurelwood Dam trash rack is scheduled in the coming weeks and the Marina Lagoon Pump Station trash rack will be scraped for barnacles after November 1 when the lagoon level is lowered one foot toward winter operating levels.
I. Inspect and clean all storm pump station wet wells
a. This action is underway, with multiple stations already cleaned, and others scheduled for after November 1 when the Marina Lagoon is pumped down a foot toward winter operating levels.
J. Prepare traffic control/closures and stage materials for roads with known flooding concerns a. This action is underway, staff have already staged materials for road closures at key locations, including water walls and signs, and have other materials ready to deploy at the City’s Corporation Yard and storage yard on Ivy Road. Staff will have a mobile trailer pre-loaded with closure materials that can be readily deployed from the Corporation Yard, as needed.
K. Coordinate with Office of Emergency Services on wet weather planning and training a. This action is ongoing. City staff has met with Office of Emergency Services (OES) staff on multiple occasions to collaborate on development of a near-term Wet Weather Emergency Action Plan and a longer-term updated overall Emergency Action Plan for all potential disasters. Staff have provided supporting materials on Public Works wet weather preparation and planning activities to support OES’ efforts in developing the near-term document.
L. Work with community on Marina Lagoon Pump Station Standard Operating Procedures a. This action is nearing completion. Public Works staff have met with community volunteers with expertise in developing Standard Operating Procedures (SOPs) on numerous occasions to draft new SOPs for the Marina Lagoon Pump Station. To date, six chapters have been drafted.
M. Establish a Marina Lagoon Resident Flood Watch communication program a. This action is in progress. Staff are working with key Marina Lagoon representatives on communication and notification protocols/criteria to ensure residents can properly keep City staff informed of any lagoon issues during the rainy season.
N. Coordinate improved public outreach and messaging on emergency preparations a. This action is ongoing. A robust public information effort about stormwater issues and public safety preparedness was conducted as part of the Community Flood and Storm Protection Initiative leading up to Council’s action on the ballot. The City will continue to share safety messaging and emergency preparedness actions via City digital and print communication platforms. Staff are working on planning additional print mailings and digital communications to residents about ways they can prepare, and will provide updates on the City’s flood preparation web page as a hub of resources for the community. Staff will work to share this information with community partners for help disseminating these important public safety messages. Staff are also working with OES on notification procedures in the event of an emergency and will encourage residents to sign up for SMC Alerts and Nixle.
Immediate-Term Actions
1. Perform maintenance on all five diesel engines, upgrade wiring, programming, and alarms, and purchase a spare pump lubricator system at Marina Lagoon Pump Station
a. Engine maintenance is ongoing. One engine has been serviced to date, and three more have been scheduled. Unfortunately, supply chain issues have delayed scheduling maintenance activities while
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Cummins, the engine manufacturer, secures the required parts for maintaining the engines. Staff will need to closely monitor the weather forecast to determine if it is safe to proceed with maintenance on any engines that is currently scheduled later this calendar year. It is important to note the engines will continue to operate as normal, regardless of when the maintenance takes place. b. Upgrades to the wiring, programming, and alarms is underway, with much of the wiring and programming work being done by Telstar and Thunderbird already complete. Insurance issues delayed execution of a contract with Enterprise Automation but have since been resolved and a contract specific to the Marina Lagoon Pump Station is being executed under the City Manager’s authority, with a larger amendment to address other City needs coming to Council on November 20. Staff anticipates the bulk of the wiring and programming work, to include updated level sensing equipment, will be done by November 15, with the alarm work by Enterprise Automation being finished by December 1. c. A spare pump lubricator system has been ordered and is being fabricated, with expected delivery in the coming weeks.
d. Upgrades to the cathodic protection system that helps prevent corrosion to the pumps have been contracted and new equipment is on order and will be installed in the coming weeks.
2. Deploy up to five (5) Sand Bag stations throughout the City for upcoming rainy season, with focus on areas with history of flooding, and coordinate with community volunteers for filling bags, monitoring stations a. Staff deployed four Sand Bag stations as of October 14, one at the Anchor Road parking lot near the Bay Trail, one in the parking lot of Parkside Aquatic Park, one in the parking lot at the City’s Corporation Yard, and one in the parking lot of Beresford Park. Staff is continuing to explore opportunities for community volunteers to support monitoring the stations.
3. Inspect and clean all catch basins before rainy season and recurring cleaning at hot spots throughout rainy season a. Public Works staff has been working diligently on cleaning catch basins east of Highway 101. As of the writing of this report, staff have cleaned approximately 1,400 catch basins, focused in areas east of Highway 101. Staff anticipate having all catch basins east of El Camino Real cleaned within the next month.
Staff continues to pursue outside contract support for cleaning catch basins but has had difficulty finding contractors that are available and can perform the work for a reasonable cost.
Short-Term Actions
4. Localized lagoon maintenance dredging under existing permit a. This action is still pending. Staff will begin RFP development for this initiative this month.
5. Localized, small-scale drainage improvements
a. This action is still pending, but staff anticipate developing a package of priority locations to put out to bid in the coming months.
6. Camera monitoring of priority creeks/trash racks
a. This action is still pending.
7. LiDAR aerial survey (Ground surface, creeks, and lagoon bathymetric) a. This action, as described above, is being integrated into a Request for Proposals to update the City’s Storm Drain Master Plan. Staff anticipate having the RFP advertising for response in the next month.
Mid-Term Actions
8. Storm Drain Master Plan update
a. This action is still pending, but a Request for Proposals is under development as described above and will be advertising for response in the next month. Staff did identify $600,000 of approved funds to begin work on updating the Master Plan, in addition to the funds Council appropriated for the LiDAR aerial survey.
9. Marina Lagoon dredging: Design, environmental, and permitting a. This action is still pending and connected to getting updated LiDAR aerial survey data to have updated bathymetry information for the Marina Lagoon.
Additional Activities
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•Staff submitted Water Resources Development Act questionnaires to Senator Padilla for key storm drain/flood control infrastructure improvements and Marina Lagoon dredging. Staff continues working with the City’s legislative advocate to pursue potential earmark and/or grant funding for key projects. As part of his "Day in the District” visit to the City of San Mateo, staff brought Congressmember Kevin Mullin to the south end of the Marina Lagoon to see the impacts of sedimentation and highlight the need for potential federal support of future dredging activities.
•Staff submitted requests to the various resource agencies for emergency approval of creek/channel cleaning efforts at key locations and is in the process of securing consultant support to pursue a multi-year jurisdictional permit to perform creek/channel maintenance on an ongoing basis for sections that are owned/maintained by the City. Staff continues to collaborate with OneShoreline’s grant-funded project to secure resources agency permits for maintenance activities on multiple creek segments in San Mateo County, including multiple segments of San Mateo Creek.
•Staff proceeded with Council’s direction to pursue the Community Flood and Storm Protection Initiative. Staff engaged the community through a number of activities, including hosting a table at all five General Plan Town Hall meetings. The Council held a public hearing on the proposed stormwater fee on October 16, at which time it was determined a majority protest against the fee did not exist, and staff prepared the ballot and associated guide for mailing on November 1. Ballots are due December 17, 2023, and staff anticipate bringing the results to Council in January 2024.
•For weather-related events, San Mateo Consolidated (SMC) Fire assesses potential impacts ahead of the event and responds accordingly. For potentially excessive wet weather periods, SMC Fire may add crews to offset high call volumes and provide specialized equipment needed for water rescues and flooding situations. SMC Fire will also place Command Staff personnel on standby to assist with operational requirements as needed. Additionally, on a regional level, SMC Fire may participate in the prepositioning of county wide OES resources that are combined and made available to assist with jurisdictional needs throughout the county and the region. Police and San Mateo Consolidated Fire will be appropriately staffed to respond to calls for service and staff the Emergency Operations Center if necessary.
•On November 1, 2023, City staff hosted a cross departmental team meeting regarding storm preparation and response activities. The meeting included representatives from the Fire Department, Office of Emergency Management, Police Department, Public Works Department, Parks and Recreation Department, City Manager‘s Office and Community Development Department.
BUDGET IMPACT:
There is no budget impact associated with this information update.
ENVIRONMENTAL DETERMINATION:
This informational update 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
None
STAFF CONTACT
Matt Fabry, Deputy Director
[email protected]
650 522 7309
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Wet Weather
Preparations
Informational Update
Matt Fabry, P .E.
Deputy Director – Public Works Department
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Council Feedback & Direction
This is an informational update only, general City Council feedback is welcome.
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Stormwater System
When it rains, EVERYONE in San Mateo relies on our stormwater system. It comprises:
130 miles
of storm drain
pipes, 6,000 catch
basins
20 miles
open creeks
& drainage
channels
(public & private)
1 flood control lagoon
(Marina Lagoon)
10 pump stations
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• North Shoreview/Pump Stations District
• San Mateo Creek
• Third & Detroit Pump Station
• 16th Avenue/Leslie Creek
• 19th Avenue/Borel Creek
• Laurel Creek
• Mariners Island/Direct to Marina Lagoon
Background
Watersheds
Population
105,000
Area
12 sq. mi.
land
Seven major watersheds
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Immediate-term Actions
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Project/Task
A Additional Marina Lagoon Pump Station pump vibration analysis at summer lagoon levels B Develop Marina Lagoon Alternatives Analysis for Pumping Below 95’ C Install debris rack at 4000 Pacific Boulevard Pump Station D Provide data on City’s website for Marina Lagoon levels and pumps running E Implement additional safety systems for trash rack cleaning at Marina Lagoon Pump Station F Develop an RFP to update the 2004 Storm Drain Master Plan and develop a prioritized implementation strategy G Inspect and clean all City-owned trash capture devices H Inspect and clean all City-owned trash racks
I Inspect and clean all storm pump station wet wells
J Prepare traffic control/closures and stage materials for roads with known flooding concerns K Coordinate with Office of Emergency Services on wet weather planning and training L Work with community on Marina Lagoon Pump Station Standard Operating Procedures M Establish a Marina Lagoon Resident Flood Watch communication program N Coordinate improved public outreach and messaging on emergency preparations
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Marina Lagoon Levels &
Pump Status Dashboard
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Draft Request
for Proposals
for Storm
Drain Master
Plan
Update/LiDAR
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Before
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Storm Pump
Stations -
Wet Well
Cleaning
After
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Road Closure Preparation
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Outreach, Education, & Engagement
Winter Storm Preparedness Campaign
• Print & electronic mailers
• Social media
• Rain barrel rebate program
• Adopt a Drain Program
www.cityofsanmateo.org/AdoptADrain
• Continue to use emergency alert
systems, as needed (SMC Alert & Nixle)
www.cityofsanmateo.org/floodprep
www.cityofsanmateo.org/stormwater
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Immediate-term Actions
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1 Perform maintenance on all five diesel engines, upgrade wiring, programming, and alarms, and purchase a spare pump lubricator system at Marina Lagoon Pump Station
2 Deploy up to five (5) Sand Bag stations throughout the City for upcoming rainy season, with focus on areas with history of flooding, and coordinate with community volunteers for filling bags, monitoring stations
3 Inspect and clean all catch basins before rainy season and recurring cleaning at hot spots throughout rainy season
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Marina Lagoon Pump Station
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Marina Lagoon Pump Station
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Sandbag Stations
Anchor Road Lot
Corporation Yard
Beresford Park Lot
Parkside Aquatic Park Lot
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Sandbag Stations
www.cityofsanmateo.org/sandbags
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Catch Basin Cleaning
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Short- and Mid-term actions
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4 Localized lagoon maintenance dredging under existing permit 5 Localized, small-scale drainage improvements
6 Camera monitoring of priority creeks/trash racks
7 LiDAR aerial survey (Ground surface, creeks, & lagoon bathymetric) 8 Storm Water Master Plan Update
Model Update, Alternatives Analysis, Prioritization, Report Storm Drain Condition Assessment
Pump Station Condition Assessment
9 Marina Lagoon Dredging: Design, Environmental, & Permitting Environmental Study
Permitting
Design
Localized Lagoon Maintenance Dredging Under Existing Permit
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Status of Appropriations
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OPERATING BUDGET
SPEND CATEGORY MARINA LAGOON WET WEATHER PREPARATION
ENCUMBERED/
SPENT
Other Contractual Services 500,000 132,000 481,410
Maintenance & Repairs - Equipment Services 27,000
Maintenance & Repairs - Materials, Parts, & Supplies 50,000 9,000 Rents & Leases of Equipment 66,000
Salaries - Regular 125,000 90,000
TOTAL 500,000 400,000
Supplier Description of Services Amount Liquidated Remaining Cummins Marina Lagoon Engine Maintenance 303,562.87 303,562.87 Telstar Marina Lagoon Pump Control Upgrades 96,888.87 8,554.50 88,334.37 Enterprise Automation Marina Lagoon SCADA Programming 40,804.00 40,804.00 Exim Engineering Marina Lagoon Pump Automatic Lubricator 27,454.53 27,454.53 JDH Corrosion Consultants Purchase of Cathodic Protection Auto-Potential Rectifier 12,700.00 12,700.00 TOTAL 481,410.27 8,554.50 472,855.77
Capital Project Appropriation - Project 46c006: ($2,100,000) 4 Localized lagoon maintenance dredging under existing permit 5 Localized, small-scale drainage improvements
6 Camera monitoring of priority creeks/trash racks
7 LiDAR aerial survey (Ground surface, creeks, & lagoon bathymetric)
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San Mateo Creek
Crystal Springs Reservoir
SFPUC/OneShoreline
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Community Safety Tips
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• Prepare in advance – get sandbags & any supplies early, charge devices
• Sandbag info at: www.cityofsanmateo.org/sandbags
• Clear gutters around your home
• Check sump pumps on your property
• Remove belongings from areas that flooded in the past • Adopt-a-Drain to help keep storm drains near your home clear & report clogged drains
• Stay in the know – follow weather updates,
sign up for alerts (Nixle.com & SMCAlert.org)
• Avoid driving during storms if you can & NEVER DRIVE
THROUGH A FLOODED ROAD
• Visit www.cityofsanmateo.org/floodprep
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Council Feedback & Direction
This is an informational update only, general City
Council feedback is welcome.
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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: 21 Section Name: OLD BUSINESS Account Number: 10-1511 File ID: 23-8164 TO: City Council
FROM: Prasanna W. Rasiah, City Attorney
PREPARED BY: City Attorney’s Office
MEETING DATE: November 06, 2023
SUBJECT:
Campaign Finance – Voluntary Expenditure Limit – Ordinance Introduction RECOMMENDATION:
Introduce an Ordinance adding Section 2.80.055 “Voluntary Expenditure Limit” to San Mateo Municipal Code Chapter 2.80 “Contributions and Loans to City Candidate Campaigns,” amending various sections related to recall elections and aggregation of contributions, and adding a provision requiring the filing of campaign mass mailings if directed by the City Council; and provide direction to staff regarding candidate filing costs.
BACKGROUND:
At its Fiscal Year 2022-23 Goal Setting, the City Council directed staff to study campaign finance reform policies, including a voluntary expenditure limit. On September 5, 2023, the City Council held a study session regarding potential amendments to San Mateo Municipal Code Chapter 2.80 “Contributions and Loans to City Candidate Campaigns” and provided direction regarding voluntary expenditure limits, among other matters. The Council also considered whether to require campaign mailers to be filed with the City and requested additional information. City staff proposed making changes to Chapter 2.80 that address recall elections and aggregation of campaign contributions, and these are addressed below. If approved, the proposed ordinance would go into effect on January 1, 2024, in order to be consistent with campaign reporting periods.
Staff is seeking Council feedback this evening on the following questions:
1. Does the Council agree with the proposed municipal code changes as shown in the draft ordinance?
2. Does the Council wish to add a provision that requires campaign mailers to be filed with the City?
3. Should the City no longer charge candidates for the cost candidate statements? DISCUSSION:
Voluntary Expenditure Limit
The proposed voluntary expenditure limit (“VEL”) would codify an optional spending threshold wherein candidates would indicate their intention to abide by the limit when submitting their nomination documents during the candidate filing period. Candidates that accept the VEL will have one opportunity to notify the City Clerk that they have decided to decline the expenditure limit during a three-business day withdrawal period after the deadline to file nomination papers.
The listed benefits of accepting this limit are (1) the City’s website will identify such candidates, (2) the City will publish a list of these candidates in its regular digital newsletter twice (once after the withdrawal period and once when ballots are mailed), and (3) the City will publish notices in a newspaper of general circulation a list of candidates that agreed to the limit. A violation of the VEL municipal code provision will result in the City publicizing the violation by the same methods
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within 72 hours of the City’s knowledge.
Based on direction from a majority of the Council, the VEL would be calculated on the basis of $2.50 per resident in each electoral district, as indicated in the chart below. The amount of the limit, rounded to the nearest $100, would be published on the City’s website and in a newspaper of general circulation within 60 business days of ordinance adoption.
The limit would be adjusted every two years starting on January 1, 2026, based on changes in the consumer price index (CPI), considering 2023 as the base year.
District 1 District 2 District 3 District 4 District 5
District Population Based on 2020 U.S. Census 21,572 21,589 21,061 19,873 21,709 District Population x $2.50 $53,900 $54,000 $52,700 $49,700 $54,200 There are exceptions to the VEL, namely for filing fees, returned contributions, legal expenses, non-monetary contributions, post office box expenses, and post-election party expenses, all similar to the ordinance adopted by Redwood City.
Recall Elections
Municipal Code Chapter 2.80 requires amendments to align with changes in the law governing recall elections. Assembly Bill (AB) 2584 (2022) amended the process whereby a recall election occurs. Historically, the questions of whether an elected officer shall be removed from office and who should be their successor have been put to the voters in the form of one measure. (Note that the San Mateo City Charter does not provide for elections to fill a vacancy, leaving that decision to the Council and ultimately the Mayor, as specified.) However, AB 2584 changed this practice by removing the question of the officer’s successor from the recall election. Instead, the seat would remain vacant until the agency is able to fill the vacancy in accordance with its process for doing so.
In addition, recall committees are more akin to ballot measure committees than candidate committees, in that the issue submitted to the voters is whether an elected official should be recalled, and not who should fill the vacancy upon a successful recall. For these reasons, and based on court decisions, recall elections are not subject to candidate contribution limits. Accordingly, the draft ordinance amendment removes language addressing recall elections from the definition of a candidate and the basis provision imposing contribution limits. It also clarifies that Chapter 2.80 does not apply to recall elections. These changes can be easily seen in Attachment 2, which shows revisions in a redline format.
Aggregation of Contributions
The proposed ordinance also clarifies that aggregated contributions are subject to the $1,000 contribution limit. This clarification is needed as the existing code provides for two different contribution limits ($500 for individuals and $1,000 for organizations) but does not specify which limit applies when contributions are aggregated. Contributions by an individual are aggregated with contributions from organizations that the individual directs or controls. Also, contributions by two or more organizations are aggregated if they are directed or controlled by a majority of the same persons.
Potential Requirement to File Campaign Mailers (Mass Mailings) During the September 5, 2023, study session, the Council discussed whether to require campaign mailers (also known as mass mailings) regarding City candidates and measures to be filed with the City. While there are practical enforcement challenges as previously indicated by staff, some other cities have such a requirement.
For example, the City of Berkeley requires a copy of every mass mailing in support of or in opposition to a city candidate or measure to be sent to its election commission. BMC §2.12.325. Berkeley staff explained that enforcement against non- filers is complaint-driven, and that its election commission hears complaints. Their staff does not track staff time spent on mass mailings, and Berkeley’s rules only cover items sent through the U.S. mail, which is only a small fraction of campaign communications to the public. An index of filed mailings is posted on their website.
The term “mass mailing” is defined in state law as 200 or more substantially similar pieces of mail, but not including mail sent in response to an inquiry, as specified. Govt. §82041.5. San Mateo Municipal Code Chapter 2.80 incorporates state
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law definitions in the California Political Reform Act, unless defined otherwise in the chapter.
If the Council chooses to require the filing of mass mailings with the City, it can when introducing the ordinance include optional language as shown in Attachment 1. New Section 2.08.057 would create a filing requirement, and related changes are set forth in Section 2.08.020 (adding a definition of a measure) and in Section 2.08.050 (modifying the current exclusion of measures from the scope of the chapter).
Candidate Statement Filing Costs
The City Council also considered at its September study session whether to minimize the financial burden on candidates by eliminating costs associated with publishing a candidate statement in the County’s sample ballot and voter information guide. Standard practice for election administration at the municipal level has been to place the responsibility for the cost of the candidate statement on the candidate. If directed by the Council, the City could opt to absorb these costs.
BUDGET IMPACT:
There is no budget impact associated with introducing the proposed ordinance. Absorbing candidate statement filing costs would cost approximately $3,500 per election cycle.
ENVIRONMENTAL DETERMINATION:
This ordinance introduction is not a project subject to CEQA, because it is an organizational or administrative activity that will not result in direct or indirect physical changes in the environment. (CEQA Guidelines Section 15378(b)(5).)
NOTICE PROVIDED
All meeting noticing requirements were met.
ATTACHMENTS
Att 1 – Proposed Ordinance
Att 2 – Proposed Ordinance - Tracked Changes
Att 3 – Existing Ordinance – Chapter 2.80
STAFF CONTACT
Prasanna W. Rasiah, City Attorney
[email protected]
(650) 522-7020
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CITY OF SAN MATEO
DRAFT ORDINANCE
Amending Chapter 2.80 “Contributions and Loans to City Candidate Campaigns” to Add Section 2.80.055 “Voluntary Expenditure Limit,” and Amend Various Sections Related to Recall Elections and Aggregation of Contributions
WHEREAS, on September 5, 2023, the City Council held a study session regarding potential amendments to San Mateo Municipal Code Chapter 2.80 “Contributions and Loans to City Candidate Campaigns” and provided direction regarding voluntary expenditure limits; and WHEREAS, the adoption of SMMC Section 2.80.055 “Voluntary Expenditure Limit” will allow City Council candidates an opportunity to voluntarily agree to expenditure limits in exchange for specified benefits; and WHEREAS, various sections of Chapter 2.80 require amending to provide that contribution limits do not apply to recall elections, to make clarifying changes addressing the aggregation of contributions, and to make other revisions as directed by the City Council.
NOW, THEREFORE, THE COUNCIL OF THE CITY OF SAN MATEO ORDAINS AS FOLLOWS:
Section 1. Section 2.80.055 of the San Mateo Municipal Code is added to read as follows:
2.80.055 VOLUNTARY EXPENDITURE LIMIT.
(a) Each candidate for election to the City Council in November 2024, and for each City Council election thereafter, shall, prior to the time they file their nomination papers with the city clerk, advise the city clerk in writing on a form provided by the City whether or not the candidate will opt to voluntarily limit their campaign expenditures in accordance with the voluntary campaign expenditure limits set forth in this section and by resolution. The agreement to voluntarily limit campaign expenditures shall pertain to all expenditures incurred by the candidate or the candidate’s committee in support of their candidacy and shall include all such expenditures that a candidate or candidate’s committee is required to report pursuant to the California Political Reform Act of 1974, as amended, whether those expenditures are made before or after the filing of nomination papers.
(b) Withdrawal Period: within three (3) business days after the deadline to file nomination papers with the city clerk, a candidate that previously accepted the voluntary campaign expenditure limit will have one (1) opportunity to notify the city clerk that they have decided not to accept the voluntary campaign expenditure limit. The candidate shall thereafter be relieved of abiding by the expenditure limit. (c) Candidates who agree to abide by the voluntary campaign expenditure limit shall receive the following benefits and incentives at no cost to themselves:
(1) The City’s website will clearly identify which candidates have agreed to the voluntary expenditure limit.
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(2) The City will publish in its regular digital newsletter which candidates have agreed to the voluntary expenditure limit. This will be published twice (once at the next publishing of said newsletter after the withdrawal period and once when the ballots are mailed to residents.) (3) The City will publish notices in a newspaper of general circulation the candidates who agreed to the voluntary expenditure limit.
(d) Calculation of Voluntary Campaign Expenditure Limit. (1) A candidate for district City Councilmember who voluntarily agrees to expenditure ceilings shall not make qualified expenditures exceeding two dollars and fifty cents ($2.50) per resident in the electoral district for each election in which the candidate is seeking elective office. Residency of each electoral district shall be determined by the latest decennial census population figures available for that district. The City Clerk shall publish on its website and in a newspaper of general circulation the expenditure ceiling amount for each district, rounded to the nearest hundred dollars ($100), no later than sixty (60) business days following adoption of the ordinance from which this Section is derived. (2) Beginning on January 1, 2026, the City Clerk shall in even-numbered years increase the expenditure ceiling amounts based upon a finding that the cost of living in the immediate San Francisco Bay Area, as shown on the CPI for all items in the San Francisco Bay Area as published by the U.S.
Department of Labor, Bureau of Statistics, has increased. This increase shall be the cost-of-living adjustment (COLA) computed by reference to the CPI as indexed from a base year that commences in November 2023 (by way of example, on January 1, 2026, the City Clerk will adjust the voluntary expenditure ceiling amounts by determining the increase in CPI from November 2023— November 2025). The increase shall be rounded to the nearest hundred dollars ($100). The City Clerk shall publish the adjusted expenditure ceiling amounts no later than February 1st of each even-numbered year. (3) The voluntary campaign expenditure limit called for by this section shall include any expenditures made by the candidate or by the candidate’s campaign committee in connection with the preparation and publication of the candidate’s statement of qualifications in the sample ballot pamphlet published in accordance with California Elections Code Section 13307. (4) The following shall not count toward the voluntary campaign expenditure limit:
(A) Filing fees related to the candidacy, including the candidate statement filing fee, fees paid to the Secretary of State to open or maintain a committee, and fees to translate the candidate statement.
(B) Contributions returned by the candidate within thirty (30) days of receipt. (C) Legal fees and costs incurred in connection with litigation arising out of a campaign for City office.
(D) Non-monetary contributions as defined by the Fair Political Practices Commission. (E) Post-election party expenses.
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(F) Post office box expenses.
(e) Penalties: Any violation of this section, including the filing of false reports that entitle the candidate to the benefits conferred by this section, shall within seventy-two (72) hours of the City’s knowledge of the violation:
(1) Be posted on the City's website, and
(2) Be posted in the City’s regular digital newsletter; and (3) Be forwarded to newspapers of general circulation for publication.
Section 2. Section 2.08.020 of the San Mateo Municipal Code is amended to read as follows:
2.08.020 DEFINITIONS.
As used in this chapter, the words and phrases shall be defined in the same manner as they are defined in the Political Reform Act of 1974 (including any amendments thereto) as found in California Government Code Section 81000 et seq., unless defined otherwise in this section. For the purposes of this chapter, the terms below are defined as follows:
(a) "Candidate" means any individual listed on the ballot for election to any City office, or who otherwise has taken affirmative action to seek election to City office, or who receives a contribution or makes an expenditure, or who gives his or her consent for any other person to receive a contribution or make an expenditure with the purpose of bringing about his or her election to any City office. [Subsections (b) – (e) remain unchanged]
(f) [OPTIONAL] “Measure” means any City Charter amendment, ordinance or other proposition submitted to a popular vote at an election, whether by initiative, referendum or otherwise, or circulated for the purposes of submission to a popular vote at any election, whether or not the proposition qualifies for the ballot.
Section 3. Section 2.08.030 of the San Mateo Municipal Code is amended to read as follows:
2.08.030 LIMITATIONS ON CONTRIBUTIONS.
(a) For any particular election, no individual shall make, and no candidate, candidate committee treasurer or other person acting on behalf of a candidate committee shall solicit or accept from any individual any contribution which will cause the total amount contributed by such individual to exceed $500.00. (b) For any particular election, no organization shall make, and no candidate, candidate committee treasurer or other person acting on behalf of a candidate committee shall solicit or accept from any organization any contribution which will cause the total amount contributed by such organization to exceed $1,000.00. [Subsections (c) and (d) remain unchanged]
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Section 4. Section 2.08.045 of the San Mateo Municipal Code is amended to read as follows:
2.08.045 AGGREGATION OF CONTRIBUTIONS.
[Subsections (a) – (d) remain unchanged]
(e) Aggregated contributions under this section shall be subject to the $1000 contribution limit.
Section 5. Section 2.08.050 of the San Mateo Municipal Code is amended to read as follows:
2.08.050 CANDIDATE CAMPAIGNS ONLY.
The provisions of this chapter apply to election campaigns for candidates only. The provisions of this chapter do not apply to any recall, measure, referendum or initiative election [OPTIONAL: except as provided in Section 2.08.057].
[OPTIONAL SECTION 6 – MASS MAILINGS]
Section 6. Section 2.08.057 of the San Mateo Municipal Code is added to read as follows:
2.08.057 MASS MAILINGS – COPY TO CITY
A copy of every mass mailing in support of or in opposition to a candidate or measure shall be sent to the city clerk within one day of being mailed.
Section 7. Environmental Determination. In accordance with California Environmental Quality Act (CEQA) Guidelines Section 15061(b)(3), this action is covered by the "common sense exemption" in that CEQA applies only to projects which have the potential to cause a significant effect on the environment. Here, it can be seen with certainty that adopting an ordinance amending campaign regulations will not have a significant effect on the environment.
Section 8. 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 9. 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 10. Legislative History and Effective Date. This ordinance was introduced on Clerk to complete., and adopted on Clerk to complete., and shall be effective on January 1, 2024.
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Chapter 2.80 CONTRIBUTIONS AND LOANS TO CITY
CANDIDATE CAMPAIGNS
2.80.010 FINDINGS AND PURPOSE.
(a)The City Council hereby finds that preserving integrity and openness in the political process is a matter of the highest public interest; that the people of the City of San Mateo can be better served through a more informed electorate; that the trust of the people is essential to representative government; and that regulation of certain campaign contributions and loans is necessary to promote public confidence in government and to protect the integrity of the electoral process.
(b)The City Council further finds that regulation of campaign contributions is required because the costs of running political campaigns have reached levels that lead to a public perception that special interests and wealthy individuals may have undue influence on or access to elected officials.
(c)It is the policy of the City to promote and encourage broad-based citizen involvement in the financing of election campaigns.
(d)The City Council further finds that allowing candidates to lend unlimited amounts of their personal funds to their campaigns tends to undermine public confidence in the election process, because the public may perceive that candidates with large outstanding loans will seek contributors to repay their loan after the election, and may be predisposed to favor their post- election contributors.
(e)Protecting public confidence in the political process requires adequate enforcement of the provisions of this article.
2.80.020 Definitions.
As used in this chapter, the words and phrases shall be defined in the same manner as they are defined in the Political Reform Act of 1974 (including any amendments thereto) as found in (Ord. No. 2005-1 § 1.)
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California Government Code Section 81000 et seq., unless defined otherwise in this section. For the purposes of this chapter, the terms below are defined as follows:
(a)"Candidate" means any individual listed on the ballot for election to any City office, or who otherwise has taken affirmative action to seek election to City office, or who receives a contribution or makes an expenditure, or who gives his or her consent for any other person to receive a contribution or make an expenditure with the purpose of bringing about his or her election to any City office. "Candidate" also means an officeholder in connection with a recall election relating to such officeholder.
(b)"Candidate committee" means a committee that is controlled directly or indirectly by a candidate or that acts jointly with a candidate in connection with the making of expenditures. (c)"Contribution" means a payment, a forgiveness of a loan, a payment of a loan by a third party, or an enforceable promise to make a payment except to the extent full and adequate consideration is received unless it is clear from the surrounding circumstances that it is not made for political purposes. Except as provided herein, "contribution" includes (1) an expenditure made at the behest of a candidate or candidate committee unless full and adequate consideration is received for making the expenditure, and (2) any goods or services received by or behested by a candidate or candidate committee at no charge or at a discount from the fair market value, unless the discount is given in the regular course of business to members of the public.
The term "contribution" does not include a payment made by the occupant of a home or business for costs related to any meeting or fund raising event held in the occupant's home or business; or volunteer personal or professional services if the services are donated without any understanding or agreement that they shall be directly or indirectly repaid to him or her. (d)"Individual" means a natural person and shall not include a partnership, corporation, association, firm, business entity, committee, club, or other organization. (e)"Organization" means a partnership, corporation, association, firm, business entity, committee, club, union, or company.
(f)[OPTIONAL] “Measure” means any City Charter amendment, ordinance or other proposition submitted to a popular vote at an election, whether by initiative, referendum or otherwise, or circulated for the purposes of submission to a popular vote at any election, whether or not the proposition qualifies for the ballot.
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2.80.030 LIMITATIONS ON CONTRIBUTIONS.
(a)For any particular election, including a recall election, no individual shall make, and no candidate, candidate committee treasurer or other person acting on behalf of a candidate committee shall solicit or accept from any individual any contribution which will cause the total amount contributed by such individual to exceed $500.00. (b)For any particular election, including a recall election, no organization shall make, and no candidate, candidate committee treasurer or other person acting on behalf of a candidate committee shall solicit or accept from any organization any contribution which will cause the total amount contributed by such organization to exceed $1,000.00. (c)Any contribution or portion thereof that exceeds the limits in this section shall be returned to the contributor within 72 hours of receipt.
(d)The limitations imposed by this section shall not apply to contribution of a candidate's personal funds to the candidate's own campaign, or to any loan which is personally guaranteed by the candidate or is secured by property owned by the candidate. (Ord. No. 2021-23 § 1; Ord. No. 2005-1 § 1.)
(Ord. No. 2017-2 § 1; Ord. No. 2005-1 § 1.)
Cross References
Section 2.80.080(a)
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2.80.040 CANDIDATE LOANS.
No candidate shall personally loan their campaign an amount the outstanding balance of which exceeds $15,000.00 at any given point in time.
2.80.045 Aggregation of Contributions.
(a)To determine when contributions are aggregated under this chapter, "majority owned" means ownership of more than 50 percent.
(b)If an individual directs or controls an organization's contributions, the organization's contributions shall be aggregated with contributions made by both of the following:
(1)That individual.
(2)Any other organization whose contributions that individual directs or controls. (c)If two or more organizations make contributions that are directed or controlled by a majority of the same persons, the contributions of those entities shall be aggregated. (d)Contributions made by organizations that are majority owned by a person shall be aggregated with the contributions of the majority owner and all other organizations majority owned by that person, unless those organizations act independently in their contribution-making decisions.
(e)Aggregated contributions under this section shall be subject to the $1000 contribution limit. (Ord. No. 2005-1 § 1.)
Cross References
Section 2.80.080(a)
(Ord. No. 2021-23 § 2.)
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2.80.050 Candidate Campaigns Only.
The provisions of this chapter apply to election campaigns for candidates only. The provisions of this chapter do not apply to any recall, ballot measure, referendum or initiative election [OPTIONAL: except as provided in Section 2.08.057].
2.80.055 VOLUNTARY EXPENDITURE LIMIT.
(a)Each candidate for election to the City Council in November 2024, and for each City Council election thereafter, shall, prior to the time they file their nomination papers with the city clerk, advise the city clerk in writing on a form provided by the City whether or not the candidate will opt to voluntarily limit their campaign expenditures in accordance with the voluntary campaign expenditure limits set forth in this section and by resolution. The agreement to voluntarily limit campaign expenditures shall pertain to all expenditures incurred by the candidate or the candidate’s committee in support of their candidacy and shall include all such expenditures that a candidate or candidate’s committee is required to report pursuant to the California Political Reform Act of 1974, as amended, whether those expenditures are made before or after the filing of nomination papers. (b)Withdrawal Period: within three (3) business days after the deadline to file nomination papers with the city clerk, a candidate that previously accepted the voluntary campaign expenditure limit will have one (1) opportunity to notify the city clerk that they have decided not to accept the voluntary campaign expenditure limit. The candidate shall thereafter be relieved of abiding by the expenditure limit.
(c)Candidates who agree to abide by the voluntary campaign expenditure limit shall receive the following benefits and incentives at no cost to themselves:
(1)The City’s website will clearly identify which candidates have agreed to the voluntary expenditure limit.
(2)The City will publish in its regular digital newsletter which candidates have agreed to the voluntary expenditure limit. This will be published twice (once at the next publishing of said newsletter after the withdrawal period and once when the ballots are mailed to residents.) (3)The City will publish notices in a newspaper of general circulation the candidates who agreed to the voluntary expenditure limit.
(Ord. No. 2021-23 § 3; Ord. No. 2005-1 § 1.)
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(d)Calculation of Voluntary Campaign Expenditure Limit. (1)A candidate for district City Councilmember who voluntarily agrees to expenditure ceilings shall not make qualified expenditures exceeding two dollars and fifty cents ($2.50) per resident in the electoral district for each election in which the candidate is seeking elective office. Residency of each electoral district shall be determined by the latest decennial census population figures available for that district. The City Clerk shall publish on its website and in a newspaper of general circulation the expenditure ceiling amount for each district, rounded to the nearest hundred dollars ($100), no later than sixty (60) business days following adoption of the ordinance from which this Section is derived. (2)Beginning on January 1, 2026, the City Clerk shall in even-numbered years increase the expenditure ceiling amounts based upon a finding that the cost of living in the immediate San Francisco Bay Area, as shown on the CPI for all items in the San Francisco Bay Area as published by the U.S. Department of Labor, Bureau of Statistics, has increased. This increase shall be the cost-of-living adjustment (COLA) computed by reference to the CPI as indexed from a base year that commences in November 2023 (by way of example, on January 1, 2026, the City Clerk will adjust the voluntary expenditure ceiling amounts by determining the increase in CPI from November 2023— November 2025). The increase shall be rounded to the nearest hundred dollars ($100) . The City Clerk shall publish the adjusted expenditure ceiling amounts no later than February 1st of each even-numbered year.
(3)The voluntary campaign expenditure limit called for by this section shall include any expenditures made by the candidate or by the candidate’s campaign committee in connection with the preparation and publication of the candidate’s statement of qualifications in the sample ballot pamphlet published in accordance with California Elections Code Section 13307.
(4)The following shall not count toward the voluntary campaign expenditure limit:
(A)Filing fees related to the candidacy, including the candidate statement filing fee, fees paid to the Secretary of State to open or maintain a committee, and fees to translate the candidate statement.
(B)Contributions returned by the candidate within thirty (30) days of receipt. (C)Legal fees and costs incurred in connection with litigation arising out of a campaign for City office.
(D)Non-monetary contributions as defined by the Fair Political Practices Commission. (E)Post-election party expenses.
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(F)Post office box expenses.
(e)Penalties: Any violation of this section, including the filing of false reports that entitle the candidate to the benefits conferred by this section, shall within seventy-two (72) hours of the City’s knowledge of the violation:
(1)Be posted on the City's website, and
(2)Be posted in the City’s regular digital newsletter; and (3)Be forwarded to newspapers of general circulation for publication. [OPTIONAL SECTION – MASS MAILINGS]
2.08.057 MASS MAILINGS – COPY TO CITY
A copy of every mass mailing in support of or in opposition to a candidate or measure shall be sent to the city clerk within one day of being mailed.
2.80.060 INJUNCTION, OTHER COURT ACTION.
In addition to all other remedies and penalties provided for violation of this chapter, the City Attorney may bring suit in a court of competent jurisdiction to seek an injunction or other appropriate relief, to halt any violation of this chapter. Such action may include seeking a temporary restraining order or temporary injunction and other appropriate temporary relief. Nothing in this chapter shall be deemed to restrict a suit for damages on behalf of the City or on behalf of any other person or entity.
2.80.070 PENALTIES.
Any person who violates the provisions of this chapter is guilty of a public offense. (Ord. No. 2005-1 § 1.)
(Ord. No. 2012-2 § 5; Ord. No. 2005-1 § 1.)
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2.80.080 Post Election Review.
(a)No later than three (3) months after the certification of the results of a City election at which a City Council member is elected, the City Clerk shall calendar for City Council consideration a review of the provisions of this chapter. The purpose of such review is to allow the City Council to consider the ongoing appropriateness of the provisions of this chapter, including, but not limited to, the amount of the contribution and loan limits established in Sections 2.80.030 and 2.80.040. (b)Notwithstanding any other provision of this code, the City Clerk's failure to calendar this review within the time period specified shall not subject the City Clerk to any criminal or civil penalty.
2.80.090 SEVERABILITY.
Each section and provision of this chapter shall be considered severable and the invalidity of any section or provision of this chapter shall not affect the validity or enforceability of any other section or provision.
(Ord. No. 2021-23 § 4; Ord. No. 2005-1 § 1.)
(Ord. No. 2005-1 § 1.)
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City of San Mateo Law Library / City of San Mateo Municipal Code. / Title 2 ADMINISTRATION AND PERSONNEL / Chapter 2.80 CONTRIBUTIONS AND LOANS TO CITY CANDIDATE
CAMPAIGNS
Chapter 2.80 CONTRIBUTIONS AND LOANS TO
CITY CANDIDATE CAMPAIGNS
2.80.010 FINDINGS AND PURPOSE.
(a) The City Council hereby finds that preserving integrity and openness in the political process is a matter of the highest public interest; that the people of the City of San Mateo can be better served through a more informed electorate; that the trust of the people is essential to representative government; and that regulation of certain campaign contributions and loans is necessary to promote public confidence in government and to protect the integrity of the electoral process.
(b) The City Council further finds that regulation of campaign contributions is required because the costs of running political campaigns have reached levels that lead to a public perception that special interests and wealthy individuals may have undue influence on or access to elected officials.
(c) It is the policy of the City to promote and encourage broad-based citizen involvement in the financing of election campaigns.
(d) The City Council further finds that allowing candidates to lend unlimited amounts of their personal funds to their campaigns tends to undermine public confidence in the election process, because the public may perceive that candidates with large outstanding loans will seek contributors to repay their loan after the election, and may be predisposed to favor their post- election contributors.
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(e) Protecting public confidence in the political process requires adequate enforcement of the provisions of this article.
(Ord. No. 2005-1 § 1.)
2.80.020 Definitions.
As used in this chapter, the words and phrases shall be defined in the same manner as they are defined in the Political Reform Act of 1974 (including any amendments thereto) as found in California Government Code Section 81000 et seq., unless defined otherwise in this section. For the purposes of this chapter, the terms below are defined as follows:
(a) "Candidate" means any individual listed on the ballot for election to any City office, or who otherwise has taken affirmative action to seek election to City office, or who receives a contribution or makes an expenditure, or who gives his or her consent for any other person to receive a contribution or make an expenditure with the purpose of bringing about his or her election to any City office. "Candidate" also means an officeholder in connection with a recall election relating to such officeholder.
(b) "Candidate committee" means a committee that is controlled directly or indirectly by a candidate or that acts jointly with a candidate in connection with the making of expenditures. (c) "Contribution" means a payment, a forgiveness of a loan, a payment of a loan by a third party, or an enforceable promise to make a payment except to the extent full and adequate consideration is received unless it is clear from the surrounding circumstances that it is not made for political purposes. Except as provided herein, "contribution" includes (1) an expenditure made at the behest of a candidate or candidate committee unless full and adequate consideration is received for making the expenditure, and (2) any goods or services received by or behested by a candidate or candidate committee at no charge or at a discount from the fair market value, unless the discount is given in the regular course of business to members of the public.
The term "contribution" does not include a payment made by the occupant of a home or business for costs related to any meeting or fund raising event held in the occupant's home or business; or volunteer personal or professional services if the services are donated without any understanding or agreement that they shall be directly or indirectly repaid to him or her.
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(d) "Individual" means a natural person and shall not include a partnership, corporation, association, firm, business entity, committee, club, or other organization. (e) "Organization" means a partnership, corporation, association, firm, business entity, committee, club, union, or company.
(Ord. No. 2021-23 § 1; Ord. No. 2005-1 § 1.)
2.80.030 LIMITATIONS ON CONTRIBUTIONS.
(a) For any particular election, including a recall election, no individual shall make, and no candidate, candidate committee treasurer or other person acting on behalf of a candidate committee shall solicit or accept from any individual any contribution which will cause the total amount contributed by such individual to exceed $500.00. (b) For any particular election, including a recall election, no organization shall make, and no candidate, candidate committee treasurer or other person acting on behalf of a candidate committee shall solicit or accept from any organization any contribution which will cause the total amount contributed by such organization to exceed $1,000.00. (c) Any contribution or portion thereof that exceeds the limits in this section shall be returned to the contributor within 72 hours of receipt.
(d) The limitations imposed by this section shall not apply to contribution of a candidate's personal funds to the candidate's own campaign, or to any loan which is personally guaranteed by the candidate or is secured by property owned by the candidate. (Ord. No. 2017-2 § 1; Ord. No. 2005-1 § 1.)
Cross References
Section 2.80.080(a)
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2.80.040 CANDIDATE LOANS.
No candidate shall personally loan their campaign an amount the outstanding balance of which exceeds $15,000.00 at any given point in time.
(Ord. No. 2005-1 § 1.)
Cross References
Section 2.80.080(a)
2.80.045 Aggregation of Contributions.
(a) To determine when contributions are aggregated under this chapter, "majority owned" means ownership of more than 50 percent.
(b) If an individual directs or controls an organization's contributions, the organization's contributions shall be aggregated with contributions made by both of the following:
(1) That individual.
(2) Any other organization whose contributions that individual directs or controls. (c) If two or more organizations make contributions that are directed or controlled by a majority of the same persons, the contributions of those entities shall be aggregated. (d) Contributions made by organizations that are majority owned by a person shall be aggregated with the contributions of the majority owner and all other organizations majority owned by that person, unless those organizations act independently in their contribution-making decisions.
(Ord. No. 2021-23 § 2.)
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2.80.050 Candidate Campaigns Only.
The provisions of this chapter apply to election campaigns for candidates only. The provisions of this chapter do not apply to any ballot measure, referendum or initiative election. (Ord. No. 2021-23 § 3; Ord. No. 2005-1 § 1.)
2.80.060 INJUNCTION, OTHER COURT ACTION.
In addition to all other remedies and penalties provided for violation of this chapter, the City Attorney may bring suit in a court of competent jurisdiction to seek an injunction or other appropriate relief, to halt any violation of this chapter. Such action may include seeking a temporary restraining order or temporary injunction and other appropriate temporary relief. Nothing in this chapter shall be deemed to restrict a suit for damages on behalf of the City or on behalf of any other person or entity.
(Ord. No. 2005-1 § 1.)
2.80.070 PENALTIES.
Any person who violates the provisions of this chapter is guilty of a public offense. (Ord. No. 2012-2 § 5; Ord. No. 2005-1 § 1.)
2.80.080 Post Election Review.
(a) No later than three (3) months after the certification of the results of a City election at which a City Council member is elected, the City Clerk shall calendar for City Council consideration a review of the provisions of this chapter. The purpose of such review is to allow the City Council to consider the ongoing appropriateness of the provisions of this chapter, including, but not limited to, the amount of the contribution and loan limits established in Sections 2.80.030 and 2.80.040.
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(b) Notwithstanding any other provision of this code, the City Clerk's failure to calendar this review within the time period specified shall not subject the City Clerk to any criminal or civil penalty.
(Ord. No. 2021-23 § 4; Ord. No. 2005-1 § 1.)
2.80.090 SEVERABILITY.
Each section and provision of this chapter shall be considered severable and the invalidity of any section or provision of this chapter shall not affect the validity or enforceability of any other section or provision.
(Ord. No. 2005-1 § 1.)
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Campaign Ordinance
Amendments
November 6, 2023
Prasanna W. Rasiah
City Attorney
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Questions for Council
1. Does the Council agree with the proposed municipal code changes as shown in the draft ordinance?
2. Does the Council wish to include the optional provision requiring campaign mailers to be filed with the City?
3. Should the City no longer charge candidates for the cost of candidate statements?
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Voluntary Expenditure Limit
• Candidates indicate intention to abide by VEL
• One opportunity to decline after close of nominations • Based on $2.50/resident in each district
• Adjusted by CPI every two years
• Exceptions: filing fees, returned contributions, legal expenses, etc.
• Benefits: public identification on City website, newsletter, and newspaper
• Penalty for violation: publicizing by same methods
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Recalls and Contribution Aggregation
• Amendments clarify that contribution limits do not apply to recall elections
• Ballot question: whether to recall an elected official, not who should replace them
• Vacancies filled by appointment, not an election
• Aggregated contributions subject to $1,000 limit
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Campaign Mailers (Mass Mailings)
• Optional language – Council direction needed
• Draft provision would require campaign mailers to be filed with the City
• Exception for member communications under state law
• Does not include online communications
• Complaint driven enforcement
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Candidate Statement Filing Costs
• Should the City absorb costs for candidates to publish a candidate statement in County sample ballot and voter
information guide.
• Cost would be approximately $3,500 per election cycle. 6 of 7
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Questions for Council
1. Does the Council agree with the proposed municipal code changes as shown in the draft ordinance?
2. Does the Council wish to include the optional provision requiring campaign mailers to be filed with the City?
3. Should the City no longer charge candidates for the cost of candidate statements?
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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: 22 Section Name: NEW BUSINESS Account Number: 10-5112 File ID: 23-8086 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Police Department
MEETING DATE: November 06, 2023
SUBJECT:
Building Security Code – Ordinance Introduction
RECOMMENDATION:
Introduce an Ordinance adding Section 23.54.025 “Secured Building Access for Emergency Personnel” and Section
23.54.035 “Video Surveillance Systems” to Chapter 23.54 “Building Security Code.” BACKGROUND:
Ordinance amendments are occasionally needed to improve the San Mateo Municipal Code (SMMC or Municipal Code) so that they accurately reflect long-standing safety practices and requirements in the design review process that ensure optimal public safety for the community. Changes to the Municipal Code require approval by the City Council.
Chapter 23 Background
The purpose of SMMC Chapter 23, “Building Security Code,” is to safeguard property and to promote public welfare and safety by providing security standards to be used in the design, construction, and maintenance of buildings and vehicles and the quality of materials used therein.
Long-standing practice in the design review process has been to require that new commercial and multi-tenant developments install and maintain a system to allow for access to the structure/building in the cases of emergency and life-saving response. For years, staff has required such systems through the Conditions of Approval (COA) process, when working with the building development and construction team, since the Municipal Code does not have this requirement codified. Having such access is essential to allow first responders the ability to access communal areas in buildings to contact and aid community members in need. Without these systems, first responders are faced with deciding whether to damage property to gain access or to delay their response – neither of which is a desirable or preferred outcome.
Similar to access to structures, long-standing practice has been to require the installation and maintenance of video surveillance systems for commercial and multi-tenant buildings. These video surveillance systems are specifically required in publicly accessible exterior grounds contiguous to the property, where there is no reasonable expectation of privacy.
Staff have consistently required such systems through the COA process, and the systems reflect best practice in crime prevention through environmental design in serving as a deterrent mechanism as well as offering the potential of investigative leads after crimes have occurred. For such leads, PD staff are required to request access to video through building ownership/management, and abide by all legal requirements including those related to constitutional mandates.
Proposed Section 23.54.025 – “Secured Building Access for Emergency Personnel” This section would require the installation and maintenance of an access system for use by police officers when
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responding to an emergency and/or life-threatening need. The requirement would be applied to future commercial or multi-tenant development, and it would not be applied retroactively to existing buildings. The proposed code language for this Section is provided in the table below, with the Proposed Ordinance as Attachment 1.
Proposed New Section – 23.54.025
Where access to commercial or multi-tenant buildings is restricted because of secured entry points, the Police Chief or their designee is authorized to specify and require the installation and maintenance of an emergency access system, for when immediate police access is necessary for life-saving or emergency purposes. A police emergency access system installed and maintained under this section is in addition to the requirements of other adopted codes, including the California Fire Code.
Proposed Section 23.54.035 – “Video Surveillance Systems” This section would require the installation and maintenance of a video surveillance system to focus on publicly accessible exterior areas that are contiguous to the property for commercial and multi-tenant buildings. Additional cameras and/or systems may be required through the individual review process, and the owner is not prohibited from taking the initiative to install additional systems. The requirement would be applied to future development, and it would not be applied retroactively to existing buildings. The proposed code language for this Section is provided in the table below, with the Proposed Ordinance as Attachment 1.
Proposed New Section – 23.54.035
Commercial and multi-tenant buildings shall have installed and maintain a recording video surveillance system with cameras placed to view publicly accessible exterior grounds contiguous to that property. Additional cameras and camera technologies may be installed by a property owner, and additional cameras and camera technologies may be required based on project-specific conditions including, but not limited to, project size, and location as determined by the Chief of Police or their designee. A video surveillance system installed under this section shall be approved by the Chief of Police or their designee.
NEXT STEP:
An ordinance for second reading will be brought to the City Council for adoption at a subsequent meeting should the City Council approve the introduction of the proposed ordinance. If the second reading of the ordinance is approved, the ordinance would become effective 30 days after adoption.
PUBLIC ENGAGEMENT AND COMMENTS:
An online community workshop focused on these amendments as well as other amendments being considered by the Police Department to the City’s Building Security Code was held on May 25, 2023. Notice of this community workshop was provided a minimum of ten (10) days prior to the workshop through the San Mateo Daily Journal, posting at various public facilities, the City’s website, and the Citywide eNewsletter. Four community members attended the workshop. Comments and questions raised during the workshop addressed general security design methods but not specifically on the subject amendment. Public comments received after the publication of this report will be forwarded to the City Council for consideration at the public hearing and will be posted to this item online as “Post Packet Public Comments.” BUDGET IMPACT:
There is no projected fiscal impact resulting from these amendments if adopted and would be absorbed by already funded staff time.
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 which have the potential to cause a significant effect on the environment. Here, it can be seen with certainty that the ordinance amendment will not have a significant effect on the environment per Guidelines Section 15061(b)(3).
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NOTICE PROVIDED
All meeting noticing requirements were met.
ATTACHMENTS
Att 1 – Proposed Ordinance
STAFF CONTACT
Ed Barberini, Chief of Police
[email protected]
(650) 522-7600
Matt Lethin, Captain
[email protected]
(650) 522-7663
Brendan Bartholomew, Sergeant
[email protected]
(650) 522-7743
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DRAFT ORDINANCE
Amending Chapter 23.54 “Building Security Code” to Add Section 23.54.025 “Secured Building Access for Emergency Personnel,” and Section 23.54.035 “Video Surveillance Systems” WHEREAS, the San Mateo Police Department, as an active member of the City of San Mateo’s Design Review Board, has identified important additions to San Mateo Municipal Code (SMMC) Chapter 23.54, which sets forth Building Security Code requirements; and
WHEREAS, the adoption of SMMC Section 23.54.025 “Secured Building Access for Emergency Personnel,” will require all new commercial and multi-tenant buildings to install and maintain an access system for use by public safety personnel when responding to emergencies to ensure essential, life-saving responses can reach those in need; and
WHEREAS, the adoption of SMMC Section 23.54.035 “Video Surveillance Systems” will require all new commercial and multi-tenant buildings to install and maintain a video surveillance system in publicly accessible exterior areas contiguous to the property to ensure optimal public safety through safety technologies.
NOW, THEREFORE, THE COUNCIL OF THE CITY OF SAN MATEO ORDAINS AS FOLLOWS:
Section 1. Section 23.54.025 of the San Mateo Municipal Code is added to read as follows:
23.54.025 Secured Building Access for Emergency Personnel Where access to commercial or multi-tenant buildings is restricted because of secured entry points, the Police Chief or their designee is authorized to specify and require the installation and maintenance of an emergency access system, for when immediate police access is necessary for life-saving or emergency purposes.
A police emergency access system installed and maintained under this section is in addition to the requirements of other adopted codes, including the California Fire Code.
Section 2. Section 23.54.035 of the San Mateo Municipal Code is added to read as follows:
23.54.035 Video Surveillance Systems
Commercial and multi-tenant buildings shall have installed and maintain a recording video surveillance system with cameras placed to view publicly accessible exterior grounds contiguous to that property. Additional cameras and camera technologies may be installed by a property owner, and additional cameras and camera technologies may be required based on project-specific conditions including, but not limited to, project size, and location as determined by the Chief of Police or their designee. A video surveillance system installed under this section shall be approved by the Chief of Police or their designee.
Section 3. Environmental Determination. In accordance with California Environmental Quality Act (CEQA) Guidelines Section 15061(b)(3), this action is covered by the "common sense exemption" in that CEQA applies only to projects which have the potential to cause a significant effect on the environment. Here, it can be seen
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with certainty that the ordinance adoption, 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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Municipal Code Amendments
-
Additions to
Building Security Code Requirements
Ordinance Introduction
November 6, 2023
Brendan Bartholomew, Sergeant
Matt Lethin, Captain
Police Department
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Background
Purpose
Code Language
Public Outreach
Recommendation
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3 Building Security Code, applicable to new
developments and alterations.
Add new requirements for Emergency Access and
Security Cameras to Municipal Code 23.54.
Codifies existing practice, and increases
transparency and equity of security requirements.
To facilitate rapid responses to emergency calls,
increase security and investigative tools.
Background
Purpose
Code Language
Public Outreach
Recommendation
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4 Proposed Code Language
Where access to an area or enclosed
structure is restricted because of secured
openings, the Police Chief or their designee
is authorized to specify and require the
installation and maintenance of an
emergency access system, for when
immediate police access is necessary for
life-saving or emergency purposes. A police
emergency access system installed and
maintained under this section is in addition
to the requirements of other adopted
codes, including the California Fire Code.
Secure Building
Access
Requires
installation of a
system
Provides access
to respond to
emergencies
Equity,
transparency,
flexibility
Background
Purpose
Code Language
Public Outreach
Recommendation
SMMC Section 23.54.025
“Secured Building Access for
Emergency Personnel”
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5 Proposed Code Language
Commercial and multi-tenant buildings
shall have installed and maintain a
recording video surveillance system with
cameras placed to view publicly accessible
exterior grounds contiguous to that
property. Additional cameras and camera
technologies may be installed by a
property owner, and additional cameras
and camera technologies may be required
based on project-specific conditions
including, but not limited to, project size,
and location as determined by the Chief of
Police or their designee. A video
surveillance system installed under this
section shall be approved by the Chief of
Police or their designee.
Video Surveillance
System
Requires
installation of
security cameras
Viewing areas
where the public
can access
Equity,
transparency,
flexibility
Background
Purpose
Code Language
Public Outreach
Recommendation
SMMC Section 23.54.035
“Video Surveillance System”
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6 Access
System
Requires
installation of a
system
Provides access
to respond to
emergencies
Equity,
transparency,
flexibility
Security
Cameras
Requires
installation of
security cameras
Viewing areas
where the public
can access
Background
Purpose
Code Language
Public Outreach
Recommendation
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7 Community Meeting: May 25, 2023
• Provided overview of code amendment
• Discussed general security design requirements
• One concern about cost of installing security cameras and their effectiveness in preventing crime
• One comment supporting increased transparency
Public Comments
• No comments received after agenda announced
Background
Purpose
Code Language
Public Outreach
Recommendation
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RECOMMENDATION
Introduce an Ordinance to add two new sections to Municipal Code Chapter 23.54, “Building Security Code,” to outline requirements under 23.54.025 for “Secured Building Access for Emergency Personnel” and 23.54.035 for “Video Surveillance Systems.”
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Thank You
Brendan Bartholomew, Sergeant
Matt Lethin, Captain
Police Department
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CITY OF SAN MATEO
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Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 23 Section Name: NEW BUSINESS Account Number: 10-1311 File ID: 23-8102 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: City Manager's Office
MEETING DATE: November 6, 2023
SUBJECT:
City Council Priority List – Progress Report
RECOMMENDATION:
Review the progress report status updates of the City Council Priority List for fiscal year 2023-24.
BACKGROUND:
The City Council goal-setting process includes a three-step deliberation process resulting in the adoption of a City Council Priority List, which includes staff’s proposed work plan for each initiative for the upcoming fiscal year. The first step of the process was the City Council Blue Sky Workshop, held on February 11, 2023. At this workshop, the City Council reviewed the adopted fiscal year 2022-23 priorities, removed completed and operationalized items, and proposed new priorities to add to the list for the fiscal year 2023-24. At the March 20th meeting, City Council reviewed the draft Priority List to ensure accuracy. City Council formally adopted the fiscal year 2023-24 City Council Priority List at the April 17th meeting.
Staff is providing a progress report, which was formally called a mid-cycle review, of the City Council Priority List from fiscal year 2023-24 and will present the updates to City Council. This report provides a high-level summary of each priority and is included in the attached spreadsheet labeled 2023-2024 Priority List Updates. Fiscal Year 2023-2024 started on July 1, 2023, and ends on June 30, 2024, and this report focuses on the progress made from July 1 through October 30, 2023.
Staff has made progress on each of the priorities or at the very least, has identified next steps on how to proceed.
Staff recommends City Council review the priorities and the respective updates. Staff will be available to answer any questions.
BUDGET IMPACT:
There is no budget impact from this agenda item.
ENVIRONMENTAL DETERMINATION:
This progress report review 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 - 2023-2024 Priority List Updates
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STAFF CONTACT
Denise Garcia, Management Analyst II
[email protected]
(650) 522-7277
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Fiscal Year 2023-24 City Council Priorities
# Department Lead(s) Council Priority Status Update as of October 30, 2023 1 City Attorney's Office and
City Clerk's Office
Study campaign finance reform policies, including
voluntary expenditure limit, disclosure requirement for independent expenditures, and improving access for
voter education initiatives
Presented to Council on 9/5/23 in study session. Ordinance introduction scheduled for November 6, 2023.
2 City Clerk
Explore increasing representation of youth and seniors on City Boards and Commissions
After completing a recruitment, 11 candidates were interviewed on October 18, 2023., appointment is scheduled on November 6, 2023. Completed B&C demography study to inform future work; researching youth participation on other boards and commissions.
3 City Manager's Office Establish policies to decarbonize existing buildings and infrastructure and eliminate methane gas use by 2030
In May 2023, Rincon Consultants began development of the "Sustainable Buildings Strategy." In September 2023, Rincon completed the building inventory and market segmentation analysis and results were presented to the Sustainability and Infrastructure Commission. A project update to City Council is tentatively scheduled for a January Study Session. Outreach is ongoing. 4 City Manager's Office Integrate master plans to increase efficiency and community impact
Staff from the various department are concurrently working to consolidate and synthesize the master plans to achieve this goal. This is an ongoing effort that will take multiple years to complete. 5 Public Works Design and implement capital improvements for permanent street closure
B Street Pedestrian Mall Improvements Project - Design is underway and the project is anticipated to be put out to bid by November 30 and in construction Spring/Summer 2024. 6 Community Development
and City Manager's Office Create a racial equity community art project Final design was approved by CAC in September and Artist is working on the art installation throughout the month of October. Mural completion and unveiling is scheduled for October 28th. 7 Community Development
Analyze density minimums for mixed-use projects and
update the Density Bonus and Community Benefits
policies
A consultant, EPS, was retained in August and background work and data collection for the initiative began in September.
8 Finance Initiate a Community Budget Process for anticipated revenue from Measure CC
Currently the City hasn't received any Measure CC revenues. Staff will continue to monitor the Measure CC revenue collection.
9 Public Works Remove North Shoreview from FEMA Flood Assessment FEMA issued an AD (Additional Data) Letter on September 12, 2023 for clarification. New deadline revised to December 11, 2023 and staff is currently working on updated submission to comply to FEMA’s request.
Items to be Completed within the Fiscal Year
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Fiscal Year 2023-24 City Council Priorities
# Department Lead(s) Council Priority Status Update as of October 30, 2023 10 City Manager's Office and
Community Development
Implement the Climate Action Plan and work to reduce
greenhouse gas emissions
PlaceWorks conducted a technical update to the Climate Action Plan to align with the General Plan.
Adoption of the CAP Technical Update is tentatively scheduled for early 2024 in conjunction with the General Plan.
11 City Manager's Office Consider the adoption of wage theft protections Staff will bring forward best practices from other jurisdictions during a study session in the near future. 12 City Manager's Office Explore the establishment of Property-Based Improvement Districts
Staff will schedule a study session for City Council to evaluate how Property-Based Improvement Districts are formed.
13 City Manager's Office Explore the implementation of a Customer Response Management or 311 system
Staff is going to first evaluate what current systems are in place, what types of integration are possible, and has begun initial research on 311 service providers. Will require significant staff resources and internal process evaluation, which is expected to take time. 14 City Manager's Office and
City Attorney's Office Adopt a Retail Cannabis Ordinance Staff presented policy and permit options for consideration to City Council on October 2nd. City Council deferred this item to year 2025.
15 City Manager's Office and
City Attorney's Office
Review and update the City Charter related to district
elections, mayoral rotation, and filling Council vacancies Presentation to Council at October 16, 2023 study session. Future study session scheduled for January 2, 2024.
16 City Manager's Office and
Public Works
Enhance city-wide disaster response and emergency
preparedness
Staff is working with the Office of Emergency Services (under San Mateo Consolidated Fire) to develop a near-term Wet Weather Emergency Action Plan (EAP), as well as a longer-term new Citywide EAP.
Items to be Completed within 2 to 5 Years
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Fiscal Year 2023-24 City Council Priorities
# Department Lead(s) Council Priority Status Update as of October 30, 2023 17 Community Development Update the General Plan
General Plan Update work is ongoing and remains on schedule for completion in early 2024. The Draft General Plan was published in July and extensive community outreach and engagement campaign were initiated. Outreach continued, the Draft EIR was published, and a General Plan Subcommittee meeting was held in August. In September the City hosted five town hall meetings, various other outreach activities and held 2 public meetings before the Planning Commission. 18 Community Development Implement Housing Element Policies Based on Council direction, the Housing Element was updated and posted for public review in July and submitted to HCD in August. Code amendments to update the planning application extension process and clarify safety requirements for projects with housing were adopted in August and went into effect in September.
19 Library and Public Works Address structural issues at the Marina Library Architect and civil engineers completed onsite visits and will soon complete assessment report with recommendation for design of foundation improvements. Next PW will consult with library staff regarding interior library space scope. Construction start moved to fall 2024. 20 Public Works Reconstruct all failed streets in San Mateo by 2026 Phase 4's construction is ongoing – completed concrete and streetlight work. Grind/pave road reconstruction is underway. City will receive 65% PS&E by beginning of November for phase 5. 21 Public Works Replace all remaining high voltage circuits to improve safety and reliability of the street light system
Phase 2's project closed out. All paperwork and payments for PG&E agreements are complete for phase
3. Phase 4 - 65% PS&E is on-going, but not critical path due to delays to PG&E agreements. PG&E did not start work on our service locations during Q1.
22 Public Works Fund and deliver the Clean Water Program Collection system capacity improvements, annual sewer investigations, and upgrades are in progress and continue. Construction of the WWTP Upgrade & Expansion, Immediate Action, and Annual Major Components projects are in progress and will continue.
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Fiscal Year 2023-24 City Council Priorities
# Department Lead(s) Council Priority Status Update as of October 30, 2023 23 Library Implement Library Space Master Plan
Current master plan (MP) from 2017 remains relevant. The last item completed from the MP was a renovation of the children's library at the main library. Renovating the business area, jobseekers assistance area, or biotech area represent possible smaller projects that could be addressed individually at a relatively smaller cost.
24 Parks & Recreation Implement the Central Park Master Plan In process of finalizing construction documents for the playground. A number of bidders have been prequalified for the construction of the playground in preparation of seeking pricing. The Fallen Heroes Memorial which will be built adjacent to the playground has identified a fabricator and purchase agreements are being prepared so that the inauguration of the Memorial can take place in late Spring 2024.
25 Public Works
Expedite efforts to improve the stormwater collection,
drainage, and storage system, including dredging the
Marina lagoon
On October 16, City Council held a public meeting at which time a majority of property owners did not protest the proposed fee. Council authorized moving into the ballot phase. 26 Public Works Meet the 100% trash reduction mandate RFP was released and proposals received. Proposal review and consultant selection for design are underway.
27 Public Works Implement a Green Fleet by 2030
Kick off meeting with Peninsula Clean Energy to help facilitate the process in reviewing all city facilities to select the best for EV chargers for city vehicles. Identifying fleet vehicle assets at each location to eventually be converted to EV.
28 Public Works Expedite efforts to produce potable water from the Clean Water Program Project in preliminary engineering design and environmental review phase. 29 Public Works Minimize impacts to residents from train horn noise at City at-grade crossings
For the 4th and 5th Ave Railroad Crossings Projects, construction is ongoing. City completed concrete and street paving work. Caltrain awarded construction contract and issued Limited Notice-to-Proceed to contractor, Stacy & Witbeck. Project in preliminary engineering design phase. City and Caltrain held meeting regarding public outreach strategy.
30 Public Works Plan for the downtown grade separations and long-term train corridor improvements
Grant opportunities continue to be reviewed for this effort. No new grant applications have been submitted at this time.
31 Public Works Improve traffic flow on 19th Ave and Fashion Island Boulevard from Grant to Mariners Island Boulevard
Completed initial phase of outreach for Smart Corridor and Mobility Hub feasibility study; began development of conceptual alternatives. Discussed coordination with City project at Norfolk/Fashion Island with the SMCTA team.
32 Public Works
Complete all High and Medium-High priority projects in
the 2020 Bicycle Master Plan and the Pedestrian Master
Plan
RFP for Delaware Corridor project posted. Re-started consultant work on the 28th Avenue Gap Closure project for new design alternatives.
Items to be completed in 5 or more years
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City Council Priority List:
Progress Report
Denise Garcia
Management Analyst, City Manager’s Office
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Goal for this discussion:
• City Council to review and discuss (if needed) the priorities and updates to the 2023-24 City Council Priority List.
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Fiscal Year 2023-24 City Council Priorities
Timeline
February 11
Blue sky
workshop
March 20
Draft Priority
List Review
April 17
Priority List
Adopted
July 1
Priority List
commences
Today
Progress Report of
the Priority List
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Status Updates
• The City Council Priority List
identifies Council priority items staff will
work on between July 1, 2023 and June
30, 2024.
• All priorities are on track.
• A handful of priorities have not yet
commenced but are slated for later this
fiscal year.
• A couple of priorities are now complete.
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Priorities Commencing
in 2024
Items to be complete in 1
year:
• #4: Integrate master plans to
increase efficiency and
community impact. Propose to
move to 2–5-year completion
category.
• #8: Initiate a Community Budget
Process for anticipated revenue
from Measure CC.
Items to be completed
within 2 – 5 years:
• #11: Consider the adoption of
wage theft protections.
• #12: Explore the establishment
of Property-Based Improvement
Districts.
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Completed Priorities
• Create a racial equity
community art project
#6
• Adopt a Retail Cannabis
Ordinance
#14
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Recommendation
• City Council review and discuss (if needed) the priorities and updates to the 2023-24 City Council Priority List.
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Thank You
Denise Garcia
Management Analyst/City Manager’s Office
[email protected]
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