Agenda packet — San Mateo City Council, December 4, 2023

CITY OF SAN MATEO
City Council Regular Meeting
December 4, 2023
7:00 PM
City Hall Council Chamber
Entrance is on O’Farrell Street

COUNCIL MEMBERS
Amourence Lee, Mayor
Lisa Diaz Nash, Deputy Mayor
Rich Hedges
Adam Loraine
Rob Newsom Jr.

AGENDA
THIS MEETING CAN BE ATTENDED IN PERSON OR REMOTE BY JOINING ZOOM – SEE CODES BELOW.

PUBLIC COMMENTS WILL BE ACCEPTED BOTH IN PERSON AND REMOTEL Y.

SEE END OF AGENDA FOR OPTIONS AND INSTRUCTIONS ON HOW TO PARTICIPATE IN THE MEETING.

To join via Zoom – click here:

December 4, 2023
To join via telephone: (408) 638-0968
Webinar ID: 811 5372 0813 Passcode: 215217
The City Council meeting will conclude by 11:00 p.m. unless otherwise extended by council vote.

Any unheard items will automatically move forward to the next regular meeting.

CALL TO ORDER
Pledge of Allegiance
Roll Call

CEREMONIAL

1. Shop Small San Mateo – Raffle Winner Pull

CONSENT CALENDAR
All matters listed under the Consent Calendar are considered by the Council to be routine and will be enacted by one motion without discussion. If discussion is desired, that item may be removed and considered separately.

2. New Objective Design Standards for Multi-Family and Residential Mixed-Use Development – Ordinance Adoption Adopt an Ordinance to amend the Zoning Code (Title 27) related to ODS and review processes for multi-family and residential mixed-use projects, and align the fence height standards to match building code standards.

CEQA: In accordance with California Environmental Quality Act (CEQA) Guidelines, Section 15061(b)(3), adoption of this ordinance is covered by the "common sense exemption" in that CEQA applies only to projects which have the potential to cause a significant effect on the environment.

3. Municipal Code Clean Up Amendments for San Mateo Municipal Code Chapter 7.35 “Mandatory Organic Waste Disposal Reduction Ordinance” – Ordinance Adoption
Adopt an Ordinance to amend San Mateo Municipal Code Chapter 7.35, “Mandatory Organic Waste Disposal Reduction Ordinance” to Update the Title and Code References in Preparation for Enforcement Beginning January 1, 2024.

CEQA: In accordance with California Environmental Quality Act (CEQA) Guidelines, sections 15168, 15162, and 15308, this action does not require further environmental review because 1) in accordance with CEQA Guidelines

1 of 268

Section 15168, the activities described in this Ordinance are entirely within the scope of a program Environmental Impact Report prepared by CalRecycle concerning the SB 1383 Regulations (PEIR) and the PEIR adequately described the activities described in this Ordinance; and 2) in accordance with CEQA Guidelines Section 15168 and 15162, no conditions exist necessitating supplemental or subsequent environmental review. Additionally, this action is categorically exempt from CEQA as it is an action taken to protect the environment. (CEQA Guidelines Section 15308.)

4. Delaware Street Safe Routes to School Corridor Bicycle Improvements – Appropriation, Budget Transfer, and Agreement
Adopt a Resolution to appropriate $28,000 from the City’s Measure A funds to the Delaware Street Safe Routes to School Corridor Project in the Capital Project Fund; and transfer $92,400 from the Citywide Street Reconstruction Package 1 Project to the Delaware Street Safe Routes to School Corridor Project (Project) in the Capital Project Fund, for a total Project design budget of $380,080; approve a Design Professional Services Agreement with Sandis Civil Engineers Surveyors Planners for the Delaware Street Safe Routes to School Corridor Bicycle Improvements Project in the amount of $290,980; establish a contingency reserve in the amount of $29,100 for the agreement; and authorize the Public Works Director to execute the agreement in substantially the form presented and issue change orders within the contingency amount.

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

5. Police Vehicle Computer Replacement – Purchase
Adopt a Resolution to approve the use of an alternative purchasing procedure and Master Purchasing Agreement and Participating Addendum with CDWG for the purchase of 56 Panasonic laptops per the City’s computer replacement schedule in the amount of $252,996.21and 40 Havis laptop docking stations in the amount of $27,582.65 for a total amount of $280,578.86; and authorize the Chief of Police to execute the agreement in substantially the form presented.

CEQA: This action is not a project subject to CEQA, because it can be seen with certainty that it will not cause a physical change in the environment. (Public Resources Code Section 21065.)

6. Bermuda Drive Utility Relocation Project – Agreement Approve an agreement with St. Francis Electric, LLC for the Bermuda Drive Utility Relocation Project in the amount of $167,105; establish a contingency reserve in the amount of $25,000; and authorize the Public Works Director to execute the agreement in substantially the form presented and issue change orders as allowed by the contract documents and within the amount of the contingency amount.

7. Staffing of Police Officers at College of San Mateo Football Games – Agreement Approve an agreement with the San Mateo County Community College District to staff Police Officers at the College of San Mateo home football games and authorize the Chief of Police to execute the agreement in substantially the form presented.

2 of 268

CEQA: This action is not a project subject to CEQA, because it can be seen with certainty that it will not cause a physical change in the environment. (Public Resources Code Section 21065.)

8. Child Care Facilities Fund Loan for Improvements at 2575 Flores Street – Agreement Adopt a Resolution to approve a Child Care Facilities Fund loan of $430,000 to Mighty Tiger Preschool, LLC for tenant improvements at 2575 Flores Street, Suite 1, San Mateo to establish a new child care facility, and authorize the City Manager to execute the loan agreement, promissory note, short form deed of trust and agreement containing covenants affecting real property and all related documents in such a manner that does not substantially change the loan terms.

CEQA: The loan agreement and related childcare facility improvements are categorically exempt from CEQA as an “existing facility,” because it consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. (CEQA Guidelines Section 15301.)

9. Citywide Tree Planting Services – Appropriation and Agreement Adopt a Resolution to authorize an appropriation of $288,942.50 from the Tree Replacement Fund to the Parks and Recreation Capital Improvement Project Tree Planting Fund; approve an agreement with Loral Horticultural Services Inc. for Citywide Tree Planting Services in the amount of $262,675.00; establish a 10 percent contingency reserve of $26,275.50; and authorize the Director of Parks and Recreation to execute the agreement in substantially the form presented.

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

10. CalRecycle – Grant Applications
Adopt a Resolution to approve the submission of grant applications to the California Department of Resources Recycling and Recovery; and authorize the City Manager, or Solid Waste Supervisor as designee, to execute all required documentation necessary for the grant application process.

CEQA: This action by the City in passing a resolution allowing receipt of State money and submission of grant applications 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).)

11. Fallen Heroes Memorial Artwork Fabrication – Appropriation and Agreement Adopt a Resolution to authorize an appropriation in the amount of $103,400 from the Art in Public Places Fund to the Parks and Recreation Capital Improvement Project Central Park Fund for the fabrication of the Fallen Heroes Memorial artwork and approve a purchase agreement with Thomas-Swan Sign Company, Inc., for custom fabricated signage in an amount not to exceed $103,400; and authorize the Director of the Parks and Recreation to execute a purchase agreement in substantially the form presented.

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

3 of 268

12. Excess Workers' Compensation Insurance Policy for Calendar Years 2024 and 2025 – Purchase Approve the purchase of excess workers' compensation insurance from Safety National in an amount projected to be $491,604.00 for the two-year period commencing January 1, 2024, and ending December 31, 2025.

CEQA: This agreement 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).)

13. Receipt and Use of Development Impact Fees and In-Lieu Fees – Annual Report Adopt a Resolution to make findings and accept the annual report on receipt and use of development impact fees and in-lieu fees for the year ended June 30, 2023.

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

CEREMONIAL - COUNCIL REORGANIZATION
Public Comment will be taken at the end of all Ceremonial - Council Reorganization actions.

14(a).

Recognition of Mayor Amourence Lee
Adopt Commendatory Resolution No. C-3 commending Amourence Lee for her term as Mayor in 2023. 14(b)
. City Council Reorganization – Mayor
Nominations and vote for Mayor for 2024.
14(c)
. City Council Reorganization – Deputy Mayor
Nominations and vote for Deputy Mayor for 2024.

PUBLIC COMMENT
Members of the public wishing to comment on any item not appearing on the agenda may address the City Council at this time. State law prevents Council from taking action on any matter not on the agenda; your comments may be referred to staff for follow up.

Public comment is limited to a total of 15 minutes; however, an opportunity for additional public comment may be provided later in the agenda.

REPORTS AND ANNOUNCEMENTS
City Manager, City Attorney and Council Members report on their various assignments and liaison roles and Council requests for scheduling future items.

ADJOURNMENT
----------------------------------------------------------------------------------------------------------------------------- AGENDAS:

Agendas and material are posted on the City’s website on the Friday preceding each Council Meeting and can be viewed on the City's website at
www.cityofsanmateo.org
. Any supplemental material distributed to the Council after the posting of the agenda will be made part of the official record.

WATCHING A MEETING ON TV:

City Council meetings are broadcast live on Comcast/channel 27, Wave/channel 26, or AT&T/channel 99.

For transmission problems during the broadcast, please call (650) 522-7099. For all other broadcast comments, call (650) 522-7040, Monday-Friday, 8 a.m. - 5 p.m.

WATCHING A MEETING ON A COMPUTER:

There are three ways to stream.

4 of 268

1) Public Meeting Portal
www.cityofsanmateo.org/publicmeetings
2) City YouTube channel and stream it on YouTube:
http://youtube.com/CityofSanMateo
3) Watch TV live stream:
https://www.cityofsanmateo.org/193/Channel-San-Mateo-Live-Stream

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

During the meeting
By Zoom:

Click the link at the top of the agenda and you’ll be added to the meeting. All attendees are muted by default. When the item of interest is open for consideration, select the “Raise Your Hand” icon and you will be called on at the appropriate time.

By telephone:

Call (408) 638-0968 and enter the conference ID found at the top of the meeting agenda. When the item of interest is open for consideration, select *9 to raise your hand. When called upon, press *6 to unmute, state your name and provide your comments.

In Person:

At the meeting complete a “Request to Speak” form, submit a request at the speaker kiosk or scan the QR code.

ACCESSIBILITY:

In compliance with the Americans with Disabilities Act, those with disabilities requiring special accommodations to participate in this meeting may contact the City Clerk’s Office at (650) 522-7040 or [email protected]
. Notification 48 hours prior to the meeting will
enable the City to make reasonable arrangements to ensure accessibility to this meeting.

5 of 268

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: 2 Section Name: CONSENT CALENDAR Account Number: 10-1511 File ID: 23-8252 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: City Clerk's Office
MEETING DATE: December 04, 2023
SUBJECT:

New Objective Design Standards for Multi-Family and Residential Mixed-Use Development – Ordinance Adoption RECOMMENDATION:

Adopt an Ordinance to amend the Zoning Code (Title 27) related to ODS and review processes for multi-family and residential mixed-use projects, and align the fence height standards to match building code standards.

BACKGROUND:

On November 20, 2023, the City Council introduced the attached proposed ordinance (Attachment 1) to amend the Zoning Code (Title 27) related to ODS and review processes for multi-family and residential mixed-use projects, and align the fence height standards to match building code standards. If adopted this ordinance will become effective 30 days after its adoption.

BUDGET IMPACT:

There is no budget impact associated with this ordinance adoption.

ENVIRONMENTAL DETERMINATION:

In accordance with California Environmental Quality Act (CEQA) Guidelines, Section 15061(b)(3), adoption of this ordinance is covered by the "common sense exemption" in that 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 proposed amendments create objective design standards and a streamlined review process for small projects up to twenty-five (25) residential dwelling units subject to objective design standards would not cause a physical change in the environment and therefore would not have a significant effect on the environment. Proposals for multi-family or residential mixed-use development will be considered as individual projects and will be evaluated pursuant to CEQA at the time of application submittal.

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 - Proposed Ordinance

STAFF CONTACT
Martin McTaggart, Deputy City Clerk
[email protected]
(650) 522-7044

6 of 268

CITY OF SAN MATEO

DRAFT ORDINANCE
Amending Title 27, Zoning, Related to Objective Design Standards and Review Process for Multi- Family and Mixed-Use Residential Projects, and Align Fence Height Standard for Planning Applications with Building Code Standards.

WHEREAS, under the Housing Accountability Act, housing development projects, as defined, are subject to design review standards and criteria provided that they are objective in nature and not subjective; and
WHEREAS, the City of San Mateo (City) desires to update its existing design standards for multi- family residential and residential mixed-use developments to offer objective design criteria for streamlined review of projects; and
WHEREAS, the City’s draft 2023-2031 Housing Element identifies programs to further streamline processing for projects, including the adoption of objective design standards and the increase of Zoning Administrator approval authority to include projects with 6 to 25 residential dwelling units; and WHEREAS, the City has conducted extensive community outreach over the last three years regarding objective design standards, including three public outreach meetings and two Planning Commission study sessions; and
WHEREAS, in accordance with California Environmental Quality Act (CEQA) Guidelines, Section 15061(b)(3), adoption of this ordinance is covered by the "common sense exemption" in that 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 proposed amendments create objective design standards and a streamlined review process for small projects up to twenty-five (25) residential dwelling units subject to objective design standards would not cause a physical change in the environment and therefore would not have a significant effect on the environment. Proposals for multi-family or residential mixed-use development will be considered as individual projects and will be evaluated pursuant to CEQA at the time of application submittal; and
WHEREAS, on October 24, 2023, the Planning Commission held a duly noticed public hearing, received all written and oral public comments, and recommended that the City Council approve the proposed ordinance.

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

Section 1. Legislative Findings.

At a duly noticed public hearing, the City Council of the City of San Mateo reviewed and considered the accompanying staff report and attachments thereto, the exemption from environmental review, together with comments received during the public review process, and hereby finds and determines that the proposed ordinance is consistent with the adopted General Plan in that it supports

7 of 268

successful completion of projects that implement and achieve the General Plan’s stated goals and policies.

Section 2. Section 27.06.020 of the San Mateo Municipal Code is amended as follows:

27.06.020 ZONING ADMINISTRATOR—POWERS AND DUTIES.

The Zoning Administrator shall enforce the provisions of this Title, and shall:

(a) Conduct such inspections of buildings, structures, and use of land as are necessary to determine compliance with the terms of this Title;

(b) Establish, with the approval of the Council, and administer rules for the conduct of the Zoning Administrator's office;

(d) Provide and maintain a continuing program of education and public information on zoning matters;

(e) Recommend abatement of violations of this Title and aid in prosecution thereof;

(f) Receive, file, and transmit to the appropriate approval body all planning applications and all appeals which the designated approval body is authorized to review or to take final action upon under the provisions of this Title;

(g) Interpret provisions of the zoning ordinance, subject to appeal of the decision to the Planning Commission;

(h) Have the authority to review and approve, conditionally approve, or disapprove the following types of projects, provided that the projects do not result in any significant impacts pursuant to the California Environmental Quality Act (CEQA), subject to public notice and to appeal of the final action to the Planning Commission:

(1) Site plan and architectural review for projects that incorporate:

(A) Up to twenty-five (25) residential dwelling units that meet objective design standards as adopted by resolution of the City Council; or

(B) Up to (5) residential dwelling units that do not meet objective design standards as adopted by resolution of the City Council; or

8 of 268

(D) Other minor site improvements including but not
limited to parking lots, landscaping, recreation facilities, accessory structures, recycling collection areas, circular driveways in R1, R2 districts;

(E) Fences over seven (7) feet and those over three (3) feet when located in a front yard and/or street side yard
setback or within forty-five (45) feet of a street
intersection line, authorized by Chapter 27.84.

(F) Freestanding signs.

(2) Site development permits for removal of major vegetation required for the construction of projects that require Zoning Administrator review and approval, or grading of five thousand (5,000) cubic yards or less under Chapter

23.40. (3) Variances as authorized by Chapter 27.78, for single-family, accessory dwelling units, duplex dwellings, or residential projects with up to six (6) residential dwelling units.

(4) Temporary use permits authorized by Chapter 27.74.

(5) Modifications authorized by Chapter 27.08.

(6) Special permits to allow the following:

(A) Recycling facilities subject to regulations established in Chapter 27.69;

(B) Plumbing in detached accessory buildings in the R-1 zone, as authorized under Chapter 27.18

(D) Temporary real estate sales offices, as authorized under Chapters

26.04 and 27.18;

(E) Swimming pools, hot tubs, and spas located in required front or street side yards, as authorized under Chapter 27.18; and

(F) Additional floor area ratio in the R-3 District, as authorized under

9 of 268

Chapter 27.22.

(7) Concurrent development of two or more contiguous lots or parcels of real property in R-1 and R-2 districts.

(8) Parcel Maps without exceptions as authorized by Title 26 (Subdivision).

(9) Single-Family Dwelling Design Review (SFDDR) Applications.

(10) City projects that meet the following criteria:

(A) The project was conceptually approved as part of, or approved concurrent with, a Master Plan, program document, or project planning document that is in effect and has been previously approved by the City Council; and

(B) The project does not propose major changes from previous City Council approval; and

(C) The project would not result in a significant environmental impact pursuant to the California Environmental Quality Act (CEQA).

(i) Notwithstanding the above, the Zoning Administrator may refer the application to the Planning Commission for hearing and action when it is unclear whether the necessary findings for project approval can be made.

Section 3. Section 27.06.040 of the San Mateo Municipal Code is amended as follows:

27.06.040 PLANNING COMMISSION—JURISDICTION.
(a) The Commission shall review and take final action, subject to appeal to the Council, upon all applications for:
(1) Appeals from the decisions of the Zoning Administrator; (2) Special use permits other than for high rise buildings, or those identified under Section 27.06.020(h)(6);
(3) Site Plan and Architectural Review for projects that incorporate:
(A) Twenty-six (26) or more residential dwelling units that meet objective design standards as adopted by resolution of the City Council; or

10 of 268

(B) Six (6) or more residential dwelling units that do not meet objective design standards as adopted by resolution of the City Council; or (C) Over 10,000 square feet of non-residential development. (4) Site Development Planning Applications involving grading of more than five thousand (5,000) cubic yards under Section 23.40;
(5) Tentative Maps and Parcel Maps with exceptions under Title 26 (Subdivisions); (6) Applications which are accompanied by environmental impact reports, other than reclassifications, planned developments, special use permits for high rise buildings, and general plan amendments;
(7) Release of conditions or easements recorded by the City under Section 27.08.045. (8) Modifications under Section 27.08.080(b).
(9) Variances as authorized in Section 27.78.040 for planning applications for structures other than single-family and duplex.
(10) Planned signing districts and freestanding signs over eight (8) feet in height. (b) The Commission shall review and make recommendations to the Council upon all applications for reclassifications, planned developments, site plan and architectural review for buildings exceeding 55 feet in height, General Plan amendments, projects which are fully or partially funded by the City and otherwise require Planning Commission review, and projects which include as part of the site any parcel of land which is in whole or in part subject to the tidelands trust provisions of State law. (c) The Commission may, on its own initiative, recommend to the Council that proceedings be initiated for an amendment, supplement, change or repeal of the whole or any portion of this Title, provided that public hearings thereon shall be held in the manner prescribed in this Title. The Commission shall periodically initiate a comprehensive review of the provisions of this Title and make a report of its findings to the Council.

Section 4. Section 27.08.030 of the San Mateo Municipal Code is amended as follows:

27.08.030 SITE PLAN AND ARCHITECTURAL REVIEW (SPAR).
(a) The following projects, as well as other projects that may be designated in this code, require a site plan and architectural review and no such project shall commence until the approval body has approved a planning application for site plan and architectural review: any building, new parking lot, fence over seven (7) feet in height, or an extension, alteration, or addition of or to an existing building or parking lot; historic buildings within the Downtown Specific Plan area as specified in Chapter 27.66.

11 of 268

Single family and accessory buildings that conform to the standards contained in Chapter 27.18, or minor facade modifications as defined in Section 27.04.313, and which conform with Section 27.08.031, are exempt from this requirement, unless they are specifically designated by this section as requiring review. In making its review, the Zoning Administrator, Development Review Board, and Planning Commission shall be guided by the standards adopted by the Planning Commission and City Council. The application shall be approved if the Zoning Administrator or Commission finds all of the following to exist:
(1) The structures, site plan, and landscaping are in scale and harmonious with the character of the neighborhood;
(2) The development will not be detrimental to the harmonious and orderly growth of the City;
(3) The development will not impair the desirability of investment or occupation in the vicinity, and otherwise is in the best interests of the public health, safety, or welfare; (4) The development meets all applicable standards as adopted by the Planning Commission and City Council, conforms with the General Plan, and will correct any violations of the zoning ordinance, building code, or other municipal codes that exist on the site; (5) The development will not adversely affect matters regarding police protection, crime prevention, and security.
(b) All buildings, structures, landscaping, and other establishments shall be constructed in accordance with the approved drawings.
(c) The City Council shall review and make the final determination on all buildings exceeding fifty-five (55) feet in height or where required by express General Plan provisions.

Section 5. Section 27.21.030 of the San Mateo Municipal Code is amended as follows:

27.21.030 Rules of Procedure
Except as otherwise outlined below, the applicable rules of procedure contained in Chapter

27.08 shall apply to all SB 9 planning applica�ons. Where there is a conﬂict, standards in this Chapter shall prevail.
(a) Planning Application Submittal. An SB 9 planning application, on the form(s) prescribed by the Department, for either an attached or detached unit(s) and/or urban lot splits, shall be submitted for all development pursuant to the provisions of this Chapter. (1) An applicant may file concurrent planning applications under this Chapter for one or two-unit development and an urban lot split.

12 of 268

(2) Processing of Applications. Unless an SB 9 application is submitted pursuant to Section 27.21.045 of this Chapter, SB 9 application(s) shall be processed as prescribed in Section

27.08.040 of the San Mateo Municipal Code, except that these applications shall be considered ministerially with no public hearing.
(b) Informational Notice. Upon receipt of an SB 9 planning application, and once the project is deemed complete, the City shall provide an informational notice that an SB 9 application has been filed with the City to all property owners and tenants within a 500-foot radius of the subject parcel and to the applicable neighborhood association(s) in accordance with the noticing procedures adopted by the Department.
(c) Ministerial Permit Approval. If an SB 9 planning application complies with the provisions of this Chapter, a ministerial, non-discretionary permit shall be issued. Notwithstanding anything contrary in this code, the issuance of a ministerial SB 9 Two-Unit Development permit and/or a SB 9 Urban Lot Split permit is not appealable.
(d) Submittal Requirements. In addition to the requirements of Section 27.08.010(c), each application shall be accompanied by all of the following:
(1) Application Forms. Completed SB 9 planning application forms as prescribed by the Department;
(2) Property Ownership. Verification of property ownership in the form of a preliminary title report that is no more than a year old, showing the current owners of the property, the names of record owners of the land, and all existing easements and other reservations, restrictions, or covenants; and
(3) Legal Description. An accurate legal description of the property and any resultant lots in the case of an urban lot split application; and (4) Plans. Scaled and accurate plans to include required applicable information as outlined in the Planning Application and/or Urban Lot Split Submittal Requirements checklists; and
(5) Affidavit. A completed property owner tenant disclosure affidavit and acknowledgement that the application meets SB 9 eligibility requirements. (6) Findings. Findings of Approval. An SB 9 application not submitted pursuant to Section 27.21.045 of this Chapter shall be approved ministerially if the Zoning Administrator or designee makes all the following findings:
(A) The parcel is within the Two-Unit Overlay District and meets all qualifying criteria as outlined in this Chapter;

13 of 268

(B) The development meets all applicable objective standards contained in and required by the General Plan, San Mateo Municipal Code or other City adopted plans, policies, or standards;
(C) The development does not adversely affect matters regarding police protection, crime prevention, and security because it adheres to the objective standards of Chapter 23.54;
(D) The proposed SB 9 unit(s) is consistent with all applicable SB 9 objective design standards of the Two-Unit Overlay District.
(7) Findings of Denial. An SB 9 application shall be denied if the Building Official makes written findings, based upon a preponderance of evidence, that:
(A) The proposed housing development would have a specific adverse impact, as defined and determined in paragraph (2) of subdivision (d) of Section 65589.5, as amended, of the Government Code, upon public health and safety or the physical environment, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact(s).

Section 6. Section 27.39.120 of the San Mateo Municipal Code is amended as follows:

27.39.120 RESIDENTIAL DEVELOPMENT STANDARDS.

In this district, residen�al uses shall be permited as part of mixed-use developments, subject to the City’s Objec�ve Design Standards as adopted by resolu�on of the City Council and requirements of Sec�on 27.38.130.

Section 7. Environmental Determination. In accordance with California Environmental Quality Act (CEQA) Guidelines, Section 15061(b)(3), adoption of this ordinance is covered by the "common sense exemption" in that 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 proposed amendments create objective design standards and a streamlined review process for small projects up to twenty-five (25) residential dwelling units subject to objective design standards would not cause a physical change in the environment and therefore would not have a significant effect on the environment. Proposals for multi- family or residential mixed-use development will be considered as individual projects and will be evaluated pursuant to CEQA at the time of application submittal.

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.

14 of 268

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 accordance 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 30 days after its adoption.

15 of 268

CITY OF SAN MATEO

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 3 Section Name: CONSENT CALENDAR Account Number: 10-1511 File ID: 23-8253 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: City Clerk's Office
MEETING DATE: December 04, 2023
SUBJECT:

Municipal Code Clean Up Amendments for San Mateo Municipal Code Chapter 7.35 “Mandatory Organic Waste Disposal Reduction Ordinance” – Ordinance Adoption
RECOMMENDATION:

Adopt an Ordinance to amend San Mateo Municipal Code Chapter 7.35, “Mandatory Organic Waste Disposal Reduction Ordinance” to Update the Title and Code References in Preparation for Enforcement Beginning January 1, 2024.

BACKGROUND:

On November 20, 2023, the City Council introduced the attached proposed ordinance (Attachment 1) to amend San Mateo Municipal Code Chapter 7.35, “Mandatory Organic Waste Disposal Reduction Ordinance” to Update the Title and Code References in Preparation for Enforcement Beginning January 1, 2024. If adopted this ordinance will become effective 30 days after its adoption.

BUDGET IMPACT:

There is no budget impact associated with this ordinance adoption.

ENVIRONMENTAL DETERMINATION:

In accordance with California Environmental Quality Act (CEQA) Guidelines, sections 15168, 15162, and 15308, this action does not require further environmental review because 1) in accordance with CEQA Guidelines Section 15168, the activities described in this Ordinance are entirely within the scope of a program Environmental Impact Report prepared by CalRecycle concerning the SB 1383 Regulations (PEIR) and the PEIR adequately described the activities described in this Ordinance; and 2) in accordance with CEQA Guidelines Section 15168 and 15162, no conditions exist necessitating supplemental or subsequent environmental review. Additionally, this action is categorically exempt from CEQA as it is an action taken to protect the environment. (CEQA Guidelines Section 15308.)

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 - Proposed Ordinance

STAFF CONTACT
Martin McTaggart, Deputy City Clerk
[email protected]
(650) 522-7044

16 of 268

9 3
2 8

CITY OF SAN MATEO

DRAFT ORDINANCE
Amending Chapter 7.35, “Mandatory Organic Waste Disposal Reduction Ordinance” of the San Mateo Municipal Code
WHEREAS, the State of California passed Senate Bill 1383 (Chapter 395, Statutes of 2016), the Short- lived Climate Pollutant Reduction Act of 2016, which requires the California Department of Resources Recycling and Recovery (CalRecycle) to adopt regulations to reduce organic waste; and WHEREAS, CalRecycle has finalized implementing regulations by revising Chapter 12 (Short-Lived Climate Pollutants) of Division 7 of Title 14 of the California Code of Regulations (SB 1383 Regulations); and WHEREAS, the SB 1383 Regulations require a 50 percent reduction of organic waste by 2020 from 2014 baseline levels and a 75 percent reduction by 2025, and further require the recovery by 2025 of at least 20 percent of currently disposed of edible food for human consumption; and WHEREAS, the SB 1383 Regulations require cities, counties, and special districts providing solid waste collection services to adopt and enforce an implementing ordinance or other mechanism by January 1, 2022 that includes the regulation of waste haulers and generators of organic waste and edible food, as well as enforcement provisions and penalties for violations; and WHEREAS, the South Bayside Waste Management Authority (SBWMA) developed a Model Mandatory Organic Waste Disposal Reduction Ordinance for its member agencies to utilize; and WHEREAS, the City of San Mateo adopted the “Mandatory Organic Waste Disposal Reduction Ordinance” (Ordinance) on December 6, 2021; and
WHEREAS, the Ordinance provides for an education period for non-compliance from January 1, 2022 through December 31, 2023; and
WHEREAS, the Ordinance provides for enforcement to begin on January 1, 2024; and WHEREAS, amendments to the Ordinance’s enforcement section are necessary to correct certain code references prior to enforcement.

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

Section 1. The title of Chapter 7.35 of the San Mateo Municipal Code is amended as follows: "Mandatory Organic Waste Disposal Reduction”.

Section 2. Section 7.35.010 of the San Mateo Municipal Code is amended as follows:

7.35.010 Title
This Chapter shall be known as the "Mandatory Organic Waste Disposal Reduction" ordinance and may be so cited and commonly referred to in this Chapter as the "Ordinance."

17 of 268

9 3
2 8
Section 3. Section 7.35.130 of the San Mateo Municipal Code is amended as follows:

7.35.130 Enforcement
(a) Violation of any provision of this Chapter shall constitute grounds for issuance of a Notice of Violation and assessment of a fine by the Jurisdiction Enforcement Official, Designee for Edible Food Recovery, or representative. Enforcement Actions under this ordinance are issuance of an administrative citation and assessment of a fine. The City’s procedures on imposition of administrative fines are hereby incorporated in their entirety, as modified from time to time, and shall govern the imposition, enforcement, collection, and review of administrative citations issued to enforce this ordinance and any rule or regulation adopted pursuant to this ordinance, except as otherwise indicated in this ordinance. (b) Other remedies allowed by law may be used, including civil action or prosecution as misdemeanor or infraction. The City or its Designee for Edible Food Recovery may pursue civil actions in the California courts to seek recovery of unpaid administrative citations. The City or its Designee for Edible Food Recovery may choose to delay court action until such time as a sufficiently large number of violations, or cumulative size of violations exist such that court action is a reasonable use of the City’s or Designee for Edible Food Recovery’s staff and resources.
(c) Responsible Entity for Enforcement
(1) Enforcement pursuant to this ordinance may be undertaken by the Jurisdiction Enforcement Official, which may be the city manager, city attorney, or their designee, or combination thereof, or Designee for Edible Food Recovery.
(A) Jurisdiction Enforcement Official(s) and Designee for Edible Food Recovery (for Edible Food Recovery provisions) will interpret ordinance; determine the applicability of waivers, if violation(s) have occurred; implement Enforcement Actions; and, determine if compliance standards are met.
(B) Jurisdiction Enforcement Official(s) and Designee for Edible Food Recovery (for Edible Food Recovery provisions) may issue Notices of Violation(s). (d) Process for Enforcement
(1) Jurisdiction Enforcement Officials or Designee for Edible Food Recovery and/or their Designee will monitor compliance with the ordinance randomly and through Compliance Reviews, Route Reviews, investigation of complaints, and an Inspection program (that may include Remote Monitoring).

Section 7.35.120 establishes Jurisdiction’s and Designee for Edible Food Recovery’s right to conduct Inspections and investigations.
(2) The City or its Designee for Edible Food Recovery may issue an official notification to notify regulated entities of its obligations under the ordinance. (3) For incidences of Prohibited Container Contaminants found in containers, the City or its Designee will issue a Notice of Violation to any generator found to have Prohibited Container

18 of 268

9 3
2 8
Contaminants in a container. Such notice will be provided via a cart tag or other communication immediately upon identification of the Prohibited Container Contaminants or within 30 days after determining that a violation has occurred. If the City or its Designee observes Prohibited Container Contaminants in a generator’s containers on more than two (2) consecutive occasion(s), the City or its Designee may assess contamination processing fees or contamination penalties on the generator provided by law.

The City or its Designee for Edible Food Recovery will issue a Notice of Violation to any Tier One or Tier Two Commercial Edible Food Generator found to have Edible Food in any waste container or to any Food Recovery Organization or Food Recovery Service found to have Edible Food recovered from a Tier One or Tier Two Edible Food Generator in a waste collection container which has not been documented by a notice of significant spoilage as required in this Ordinance. Such notice will be provided by email communication immediately upon identification of the violation or within three (3) calendar days after determining that a violation has occurred. If the City or its Designee for Edible Food Recovery observes Edible Food in a Tier One or Tier Two Commercial Edible Food Generator, or Food Recovery Organization, or Food Recovery Service waste container on more than two (2) consecutive occasion(s), the City or its Designee for Edible Food Recovery may assess an administrative citation and fine, pursuant to the Edible Food Recovery penalties provisions contained in this Ordinance, on the Tier One or Tier Two Commercial Edible Food Generator, Food Recovery Organization, or Food Recovery Service. (4) With the exception of violations of generator contamination of container contents addressed under Section 7.35.130(d)(3), the City or its Designee for Edible Food Recovery shall issue a Notice of Violation requiring compliance within 60 days of issuance of the notice. (5) Absent compliance by the respondent within the deadline set forth in the Notice of Violation, the City or its Designee for Edible Food Recovery (for the Edible Food Recovery provisions) may commence an action to impose penalties via an administrative citation and fine, pursuant to its Administrative citation and fine procedures.

For the purposes of Edible Food Recovery, the Designee for Edible Food Recovery may commence an action to impose penalties, via an administrative citation and fine, pursuant to the Edible Food Recovery penalties provisions contained in this Ordinance and/or Title 1 of the San Mateo Municipal Code.

Notices shall be sent to “owner” at the official address of the owner maintained by the tax collector for the City or if no such address is available, to the owner at the address of the dwelling or Commercial property or to the party responsible for paying for the collection services, depending upon available information
(e) Penalty Amounts for Types of Violations
The penalty levels for violations unrelated to the Edible Food Recovery requirement are as follows:
(1) For a first violation, the amount of the base penalty shall be $100 per violation.

19 of 268

9 3
2 8
(2) For a second violation, the amount of the base penalty shall be $200 per violation. (3) For a third or subsequent violation, the amount of the base penalty shall be $500 per violation.
(f) Compliance Deadline Extension Considerations
The City or its Designee for Edible Food Recovery may extend the compliance deadlines set forth in a Notice of Violation issued in accordance with Section 7.35.130 if it finds that there are extenuating circumstances beyond the control of the respondent that make compliance within the deadlines impracticable, including the following:
(1) Acts of God such as earthquakes, wildfires, flooding, and other emergencies or natural disasters;
(2) Delays in obtaining discretionary permits or other government agency approvals; or, (3) Deficiencies in Organic Waste recycling infrastructure or Edible Food Recovery capacity and the City is under a corrective action plan with CalRecycle pursuant to 14 CCR Section 18996.2 due to those deficiencies.
(g) Appeals Process
Persons receiving an administrative citation containing a penalty for an uncorrected violation may request a hearing to appeal the citation. A hearing will be held only if it is requested within the time prescribed and consistent with the City or its Designee for Edible Food Recovery’s procedures in the City’s or its Designee for Edible Food Recovery’s codes for appeals of administrative citations. Evidence may be presented at the hearing. The City or its Designee for Edible Food Recovery will appoint a hearing officer who shall conduct the hearing and issue a final written order. (h) Education Period for Non-Compliance
Beginning January 1, 2022 and through December 31, 2023, the City or its Designee for Edible Food Recovery (for edible food generator and food recovery organization and service requirements) may conduct Inspections, Remote Monitoring, Route Reviews or waste evaluations, and Compliance Reviews, depending upon the type of regulated entity, to determine compliance, and if the City or its Designee for Edible Food Recovery determines that Organic Waste Generator, Self-Hauler, hauler, Tier One Commercial Edible Food Generator, Food Recovery Organization, Food Recovery Service, or other entity is not in compliance, it shall provide educational materials and/or, for the purposes of Edible Food Recovery, training to the entity describing its obligations under this ordinance and a notice that compliance is required by January 1, 2022, and that violations may be subject to administrative civil penalties starting on January 1, 2024.
(i) Civil Penalties for Non-Compliance

20 of 268

9 3
2 8
Beginning January 1, 2024, if the City or its Designee for Edible Food Recovery (Designee for Edible Food determination only for Tier 1 and Tier 2 Commercial Edible food generator and food recovery organization and service requirements) determines that an Organic Waste Generator, Self-Hauler, hauler, Tier One or Tier Two Commercial Edible Food Generator, Food Recovery Organization, Food Recovery Service, or other entity is not in compliance with this ordinance, it shall document the noncompliance or violation, issue a Notice of Violation, and take Enforcement Action pursuant to Section 7.35.130, as needed.

Section 4. Environmental Determination. In accordance with California Environmental Quality Act (CEQA) Guidelines, sections 15168, 15162, and 15308, this action does not require further environmental review because 1) in accordance with CEQA Guidelines Section 15168, the activities described in this Ordinance are entirely within the scope of a program Environmental Impact Report prepared by CalRecycle concerning the SB 1383 Regulations (PEIR) and the PEIR adequately described the activities described in this Ordinance; and 2) in accordance with CEQA Guidelines Section 15168 and 15162, no conditions exist necessitating supplemental or subsequent environmental review. Additionally, this action is categorically exempt from CEQA as it is an action taken to protect the environment. (CEQA Guidelines Section 15308.) 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.

21 of 268

CITY OF SAN MATEO
4 5
5 9

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 4 Section Name: CONSENT CALENDAR Account Number: 10-4661 File ID: 23-8161 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: December 04, 2023
SUBJECT:

Delaware Street Safe Routes to School Corridor Bicycle Improvements – Appropriation, Budget Transfer, and Agreement RECOMMENDATION:

Adopt a Resolution to appropriate $28,000 from the City’s Measure A funds to the Delaware Street Safe Routes to School Corridor Project in the Capital Project Fund; and transfer $92,400 from the Citywide Street Reconstruction Package 1 Project to the Delaware Street Safe Routes to School Corridor Project (Project) in the Capital Project Fund, for a total Project design budget of $380,080; approve a Design Professional Services Agreement with Sandis Civil Engineers Surveyors Planners for the Delaware Street Safe Routes to School Corridor Bicycle Improvements Project in the amount of $290,980; establish a contingency reserve in the amount of $29,100 for the agreement; and authorize the Public Works Director to execute the agreement in substantially the form presented and issue change orders within the contingency amount.

BACKGROUND:

In the City’s 2020 Bicycle Master Plan (Plan), Delaware Street is identified as a major north-south connector providing critical bicycle access to major connections and destinations, including Fiesta Gardens International School and George Hall Elementary School. The Plan recommends upgrading the existing Class II bike lanes to Class IV separated bike lanes on Delaware Street from 19th Avenue to 28th Avenue and upgrading the existing bicycle route to a bicycle boulevard on Delaware Street from 28th Avenue to Pacific Boulevard where they will connect with existing bicycle facilities southerly on Pacific Boulevard (Project). These new bicycle facilities on Delaware are necessary to create a low-stress corridor suitable for users of all ages serving, in particular, younger cyclists needing access to the nearby schools. A description of the various types of bicycle facilities described above is included in Attachment 3.

In April 2021, the California Transportation Commission awarded the City $1,661,000 in Regional Active Transportation Program (ATP) grant funding to Project 46R022 Delaware Street Safe Routes to School Corridor Bike Improvements for design and construction of the bicycle facility upgrades described above on Delaware Street. Community outreach is also included in the Project scope, which will solicit feedback from the community regarding the proposed bicycle facilities and their connection to current or future bicycle facilities and engage with residents directly adjacent to the project to identify any impacts (i.e. parking), concerns or challenges with the Project’s implementation and work toward addressing those issues. The feedback received will help inform the Project design.

Of the overall grant fund amount ($1,661,000), approximately $260,000 is allocated for design and $1.4M for construction.

As the same segment of roadway on Delaware Street was planned to be resurfaced by the City Street Reconstruction Program in 2028, staff is looking to streamline the two (2) projects and leverage a smooth roadway surface for the proposed Class IV bike facility on Delaware Street. Therefore, it is proposed to transfer $92,400 from project 467008 Citywide Street Reconstruction Package 1 to the 46R022 Delaware Street Safe Routes to School Corridor Bike

22 of 268

CITY OF SAN MATEO
4 5
5 9
Improvement project, in order to accelerate the design of the resurfacing of this roadway segment in advance of the Class IV separated bike lane improvements. As a result, the total design cost including design contingency and staff cost is approximately $380,080.

Sandis Civil Engineers Surveyors Planners (Sandis) was selected through a qualification process using a request for proposals (RFP) for professional engineering design services. The Project was advertised on September 7, 2023, and a total of five (5) proposals were received on October 12, 2023. Staff’s review of the proposals included an evaluation and scoring method based on each firm’s qualifications while taking into account the contract price proposed relative to the work to be performed. Staff reviewed the five proposals and selected Sandis based on their proposal. Sandis’s scope, schedule, and qualifications best align with the City’s needs. Therefore, staff recommends awarding an agreement to Sandis to perform the design services for this Project for an amount not to exceed $290,980. A contingency reserve of $29,100 (10% of the contract amount) is recommended to cover any unforeseen changes during the design process.

Because the Project is being completed with ATP grant funds, which have a “timely use of funds” requirement, the City is working toward completing the design for this Project by October 2024 to meet the construction fund allocation deadline requirement in early 2025. Grant funds for preliminary engineering (design) are limited to $260,000, with a total Project design cost of approximately $380,080. There is a Project deficit of $28,000, when including the Project 467008 transfer of $92,400. To cover this deficit, staff recommends an appropriation of $28,000 from the City‘s Measure A funds and a transfer of $92,400 from the Citywide Street Reconstruction Package 1 Project. Please see Table 1. Design Cost Breakdown below for additional detail.

Table 1. Design Cost Breakdown
* rounded to the nearest thousandth
BUDGET IMPACT:

There are sufficient funds in the City’s Measure A funds and the Citywide Street Reconstruction Package 1 (467008) Project for the recommended appropriation in the amount of $28,000 to cover increased design costs since the Project was initially estimated and budget transfer in the amount of $92,400 to cover pavement rehabilitation design costs. With the supplemental funding from the appropriation and budget transfer, the Delaware Street Safe Routes to School Corridor (46r022) Project will have sufficient available budget to fully fund the agreement, contingency reserve, staff costs, and locally funded Project components.

ENVIRONMENTAL DETERMINATION:

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

NOTICE PROVIDED
All meeting noticing requirements were met.

23 of 268

CITY OF SAN MATEO
4 5
5 9

ATTACHMENTS
Att 1 – Proposed Resolution
Att 2 – Agreement
Att 3 – Bicycle Network Facilities

STAFF CONTACT
Sang Hee Cho, Associate Engineer
[email protected]
(650) 522-7348
Bethany Lopez, Senior Engineer
[email protected]
(650) 522-7313

24 of 268

9 3
8 1

CITY OF SAN MATEO
RESOLUTION NO. (2023)
APPROVING AN APPROPRIATION IN THE AMOUNT OF $28,000 FROM THE CITY’S MEASURE A FUNDS AND AUTHORIZING A BUDGET TRANSFER IN THE AMOUNT OF $92,400 FROM THE CITYWIDE STREET RECONSTRUCTION PACKAGE 1 PROJECT TO THE DELAWARE STREET SAFE

ROUTES TO SCHOOL CORRIDOR BICYCLE PROJECT IN THE CAPITAL PROJECTS FUND WHEREAS, at the September 8, 2020 City Council meeting, Council approved a letter of support to apply for $1,661,000 in California Transportation Commission Active Transportation Program (ATP) Cycle 5 grant funding for the Delaware Safe Routes to School Corridor Project; and
WHEREAS, in June 2021, the California Transportation Commission awarded the City $1,661,000 in ATP Cycle 5 grant funding to complete the environmental, design, right-of-way, and construction phases for the Delaware Safe Routes to School Corridor Project; and WHEREAS, on October 2, 2023, City Council adopted a resolution to accept the grant funds and authorized the City Manager to execute the necessary funding agreements; and WHEREAS, design costs in the amount of $380,080 are needed for the Delaware Safe Routes to School Corridor Project; and
WHEREAS, the accepted grant funds are limited to $260,000 for preliminary engineering costs and additional funding appropriation to the Delaware Safe Routes to School Corridor Project is required to supplement project design components that were not in the original grant application such as pavement and curb ramp improvements; and WHEREAS, staff recommends an appropriation in the amount of $28,000 from the City’s Measure A funds and a budget transfer in the amount of $92,400 from the Citywide Street Reconstruction Package 1 Project to the Delaware Safe Routes to School Corridor Project in the Capital Projects Fund.

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

1. In accordance with California Environmental Quality Act (CEQA) Guidelines section 15301, this project is categorically exempt from CEQA as an “existing facility” because it consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use.

2. An appropriation in the amount of $28,000 in the City’s Measure A funds to the

25 of 268

9 3
8 1
Delaware Safe Routes to School Corridor (46r022) Project in the Capital Projects Fund is approved.

3. A budget transfer in the amount of $92,400 from the Citywide Street Reconstruction Package 1 (467008) Project to the Delaware Safe Routes to School Corridor (46r022) Project in the Capital Projects Fund is approved.

26 of 268

Design Professional Services 2022 Page 1 of 10
Rev 9/22

AGREEMENT WITH SANDIS CIVIL ENGINEERS SURVEYORS PLANNERS

FOR DESIGN PROFESSIONAL SERVICES
FOR
Delaware Street Safe Routes to School Corridor Bicycle Improvements Project

This Agreement, made and entered into this day of ____________________, by and between the CITY OF SAN MATEO , a municipal corporation existing under the laws of the State of California (“CITY”), and SANDIS CIVIL ENGINEERS SURVEYORS PLANNERS , a corporation, (“CONSULTANT”), whose address is 636 9
th St, Oakland, CA 94607:

RECITALS:

A. CITY desires certain professional design servic es hereinafter described.

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

NOW, THEREFORE, IT IS AGREED as follows:

SECTION 1 - SCOPE OF SERVICES

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

SECTION 2 - DUTIES OF CONSULTANT

CONSULTANT shall be responsible for the profession al quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.

CONSULTANT represents that it is qualified to furn ish the services described under this Agreement.

CONSULTANT shall be responsible for employing or e ngaging all persons necessary to perform the services of CONSULTANT.

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

SECTION 3 - DUTIES OF CITY

CITY shall provide pertinent information regarding its requirements for the project.

27 of 268

Design Professional Services 2022 Page 2 of 10
Rev 9/22
CITY shall examine documents submitted by CONSULTA NT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.

SECTION 4 - TERM

The services to be performed under this Agreement shall commence upon execution of the Agreement and be completed by December 31, 2026.

SECTION 5 - PAYMENT

Payment shall be made by CITY only for services re ndered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONSULTANT a fee in an amount not to exceed $290,980, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.

SECTION 6 - TERMINATION

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

Upon termination and upon CITY's payment of the am ount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.

SECTION 7 - OWNERSHIP OF DOCUMENTS

All documents prepared by CONSULTANT in the perfor mance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.

SECTION 8 - CONFIDENTIALITY

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

SECTION 9 - INTEREST OF CONSULTANT

CONSULTANT covenants that it presently has no inte rest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.

28 of 268

Design Professional Services 2022 Page 3 of 10
Rev 9/22
SECTION 10 - CONSULTANT'S STATUS

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

SECTION 11 - INDEMNITY

CONSULTANT agrees to hold harmless and indemnify C ITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s negligence, recklessness or willful misconduct to the maximum extent permitted by state law.

To the extent permitted by Civil Code section 2782.8, CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.

SECTION 12 - INSURANCE

CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.

SECTION 13 - NONASSIGNABILITY

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

SECTION 14 - RELIANCE UPON PROFESSIONAL

SKILL OF CONSULTANT

It is mutually understood and agreed by and betwee n the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.

SECTION 15 - WAIVERS

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

29 of 268

Design Professional Services 2022 Page 4 of 10
Rev 9/22
applicable law or ordinance.

SECTION 16 – SEVERABILITY

If any term or portion of this Agreement is held t o be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.

SECTION 17 - COSTS AND ATTORNEY FEES

Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.

SECTION 18 - NON-DISCRIMINATION

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

SECTION 19 - MEDIATION

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

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

30 of 268

Design Professional Services 2022 Page 5 of 10
Rev 9/22
SECTION 20 - LITIGATION

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

SECTION 21 - NOTICES

All notices hereunder shall be given in writing an d mailed, postage prepaid, addressed as follows:

To CITY: Sang Hee Cho
City of San Mateo
330 W 20
th Ave
San Mateo, CA, 94403

To CONSULTANT:

Sandis Civil Engineers Surveyors Planners
Attn: Nate Levine
636 9
th St
Oakland, CA, 94607

SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT

This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.

This document may be amended only by written instr ument, signed by both CITY and CONSULTANT.

SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT

CONSULTANT has all requisite power and authority t o conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.

SECTION 24 - GOVERNING LAW AND VENUE

This Agreement shall be governed by the laws of th e State of California and, in the event of litigation, venue will be in the County of San Mateo.

[SIGNATURE PAGE FOLLOWS]

31 of 268

Design Professional Services 2022 Page 6 of 10
Rev 9/22
IN WITNESS WHEREOF, CITY and CONSULTANT have execu ted this Agreement the day and year first above written.

CITY OF SAN MATEO

CONTRACTOR

Brad Underwood
Interim Public Works Director

Date Jeff Setera
Its Authorized Agent
President

If a Corporation, can be either 1)
President or 2) Vice President plus
an additional corporate officer
(i.e., Secretary, Treasurer) who
shall sign below.

Date

APPROVED AS TO FORM

ADDITIONAL CORPORATE

OFFICER
(if necessary per the above)

Linh Nguyen
Assistant City Attorney
Date Tony Brubaker
CFO

Date

Attachments:

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

32 of 268

Design Professional Services 2022 Page 7 of 10
Rev 9/22

EXHIBIT A

SCOPE OF SERVICES

33 of 268

S C O P E O F W O R K

EXHIBIT A: SCOPE OF SERVICES
Task 1 - Project Management and Coordination
Upon NTP, Our team will schedule a kick-off meeting to establish lines of communication with City staff to discuss scope of work, schedule, and budget. We will also request and compile available information from the City ahead of developing a Detailed Wor k Plan to confirm alignment with the City’s goals for the project. We will meet with City staff regularly and will provide project management services, including meeting agendas and notes, maintaining the project schedule and budget, invoices, and regular communication with the City. Our services will induce the following:
• Ensure efficient, coordinated project development high-quality delivery within budget and on schedule. Manage the project, including subconsultants, and keep the City informed. Represent the City, with approval, in communications with external agencies.
• Provide key personnel as proposed, no reassignment without City approval. Submit monthly progress reports, including completed activities, upcoming tasks, issues, mitigation actions, project decisions, updated schedule, budget status, work completion, and essential project details.
• Submit baseline and monthly progress schedules, highlighting key permits and approvals needed for design and construction facilitation.
• Participate in virtual and in-person meetings with the City, including kick-off, bi-weekly progress reviews, design submittal presentations, and other meetings as outlined in the scope of services.

Deliverables:
• Scope of work
• Schedule
• Budget/Invoices
Task 2 - Community Outreach and Engagement
Leshner Planning & Transportation (LPT) will lead Task 2 in close coordination with City Staff as well as support from the larger Sandis team, with the goals of raising awareness about the project, gathering information on existing conditions, evaluating potential improvements, and overall, developing a community-supported project.

Task 2.1 Community Engagement Plan
As a first step, LPT will review relevant recent community engagement activities and summaries from other planning efforts such as the 2020 Bicycle Master Plan. LPT will then work collaboratively with City Staff and Sandis to develop an engagement plan that meaningfully engages key stakeholders (e.g., local businesses, schools) and community members and sets the project up to be responsive to community needs. The public engagement plan will identify specific engagement tools, events, approaches to advertising events/tools, etc., to support the project.

We anticipate planning 2-3 engagement phases to collect feedback on:

1. Existing conditions, gaps, opportunities

2. Potential proposed improvements

3. The draft project
(Note: tasks 1 & 2 may be combined based on feedback from City staff.) We assume that the final engagement plan will be based on one round of consolidated comments on a draft engagement plan.

Task 2.2 Community Engagement Activities
For scoping purposes, we have assumed the following activities, which will be refined and finalized as part of developing the Community Engagement Plan in Task 2.1:

• Stakeholder meetings – LPT will plan and lead two (2) meetings with relevant stakeholder groups such as local schools (i.e., Fiesta Gardens International School and George Hall Elementary School) and/or businesses (e.g., SurveyMonkey). We assume one meeting would occur virtually and one would occur in person. • Workshops (2) – LPT will plan for and lead one (1) virtual and one (1) in-person 2-hour workshop (or public meeting), with day of support from City staff and Sandis staff.

34 of 268

S C O P E O F W O R K
• Outreach materials – LPT will develop outreach materials (e.g., graphics, flyers) based on Sandis’s drawings, with input/review from City Staff.

• Project webpage content – LPT will work with Sandis to develop website copy and images/documents to post to the City’s website to inform the community about the overall project and provide project updates. We assume preparing up to 2 website copy/materials updates.

Task 2.3 Documentation
LPT will summarize and analyze feedback from participants at the conclusion of the community engagement process and document outreach activities, findings, and results in summary memorandum. The final outreach memo will be based on one round of consolidated comments on the draft memo.

Optional Task 2A – Demonstration project
If selected by the City, the Sandis team can develop a detailed scope and fee estimate for planning and implementing a demonstration project, e.g., temporary Class IV separated bikeway. This type of event would help show the community what a potential proposed project would look like and how it would operate and could help educate the public about a newer bikeway facility type.

Optional Task 2B – Standalone project website
If selected by the City, our team can develop a specific scope and fee to create a standalone project website with additional functionality such as a map survey tools, comment collection, text message surveys, and more. The project website would serve as a virtual open house, and offer interactive features to engagement the community and solicit feedback. In our experience, this type of website may be beneficial for the project but not an outright requirement. Our team recommends discussing and refining the needs/goals of the website upon selection or at the project kick off.

Optional Task 2C – Pop-up events
If selected by the City, LPT will plan and lead two (2) in-person pop-up events with support from Sandis staff. Pop-up events or tabling at local events could occur at the Hillsdale Caltrain Station, Bay Meadows Park, the County Event Center or other local gathering places in the study area.

Optional Task 2D – Online survey
If selected by the City, LPT will develop an online survey to collect feedback on existing conditions and/or proposed improvements. Once the survey is closed, LPT will summarize survey results.

Task 3 – Caltrans Approval (ROW Authorization)
Sandis will prepare complete Plans, Specifications, and Estimates for work within Caltrans right of way so that the improvements at S Delaware St and 19th Ave can be reviewed, approved, and permitted by Caltrans for construction, if needed. It is assumed that these improvements would be limited to striping only, and would provide a transition from the Class IV facility on Delaware, to the intersection, as part of an interim condition We assume that only 1-2 plan sheets would be required for this.

Task 4 – Site Investigations including Geotechnical, Survey, and Utility Potholing Our team will conduct preliminary site investigations that support the design and construction of project improvements, related to the sidewalks, intersections, and roadway.

This includes the following:

Task 4.1 Geotechnical Investigations and Recommendations Ninyo & Moore will provide subsurface exploration consisting of four borings up to 5 feet deep and preparation of a geotechnical report with recommendations for replacement pavement/sections for a determined traffic index. It is assumed that boring permits will not be needed due to the depth of exploration and encroachment permits for the exploration will be provided at no cost to Ninyo & Moore. Costs for analytical testing, exploration traffic control, and drilling subcontractor have

35 of 268

S C O P E O F W O R K
been added as reimbursable expenses. Recommendations will include specific locations and treatment types and are assumed to be the following:

• 19th to Pacific (PCI 38) – 2” Grind and Overlay with 6” Deep Base Repairs • Pacific to 450’ south of 25th Ave (PCI 61) – 2” Grind and Overlay • 450’ south of 25th Ave to 28th Ave (PCI 69) – Slurry

Work related to this task will be tracked and invoiced under a unique task, Task 4.1

Task 4.2– Topographical Survey and Base Mapping
Sandis will perform a topographic field survey to gather the necessary information and detail for the design of the Project along S Delaware St, between 19th Ave and Pacific Blvd. The boundary shall establish City right-of-way and be used to confirm that all improvements are within the City’s right-of-way. Sandis will use an aerial drone to collect information for the overall corridor; a topographic field survey will occur at the signalized intersections or at locations where new curb ramps will be provided. It is assumed that detailed elevations and underground information are not needed outside of the intersection/curb ramp improvement locations.

Existing right of way will be based upon available maps and deeds on file in the County public records and Caltrans maps. We will include and show plottable easements, if any, and right-of-way lines with length and bearing (including reference on basis) on each boundary course. A Preliminary Title Report with referenced documents will be ordered if needed.

Sandis will conduct fieldwork, office calculations, and drafting to produce a topographic survey of the project area at a 1” = 20’ Scale. This survey will show the location and sizes of existing trees (Driplines will be assumed), grade breaks, high points, low points signs, fences, walls, buildings, striping, driveways, walkways, drainages, structures, lights, poles, bollards, vegetated or landscaped areas (including bushes, etc), USA markings, vaults, valves, meters, boxes, pedestals, cleanouts, manholes, drain inlets, catch basins, culverts, outfalls, and standpipes within the project area(s). Field measurements of inverts of accessible and unobstructed visible catch basins, area drains, storm drain manholes, and sanitary sewer manholes will be shown.

Elevation spot grades and/or the combination of contours will be shown at one (1) foot intervals or as appropriate to clearly define the slopes. Elevations collected by ground surveys will be shown to an accuracy of 0.01’ (one hundredth) of a foot.

Heavily brushed areas will be defined at the perimeter. Brush clearing will be the responsibility of the client if ground elevations need to be collected in those areas. Existing elevations shall be shown at a maximum of 100-foot cross sections.

Spot elevations shall be shown at all points of vertical or horizontal change (grade break). Elevations will be based on available NGS or locally published benchmarks.

Utility information will be based on surface evidence located in the field and the solicitation of the records of the various utility providers. Sandis will coordinate directly with the utility providers to achieve this. Sandis will issue an underground service alert to field-verify the data provided by various utilities, particularly where there may be conflicts with proposed pole and conduit locations.

Mechanical detection of existing high-risk utilities will also be provided. Potholing can be provided at an additional expense.

We recommend utilizing non-invasive utility locating methods first, utilizing potholing at critical and congested locations.

Deliverables:
• Geotechnical report
• Topographic base map including utility information
• Utility report
Task 5 – Preliminary Engineering
30% Design Plans
Task 5 will include preparing 30% design plans (PDF) which will encompass plan layouts, typical sections, details, and budget- level construction cost estimates. The outcomes of Task 2 (Community Outreach and Engagement) and the selected design and operations alternative will be integrated into the preliminary engineering phase. Additionally, our team will explore connections to existing or potential future bicycle facilities within the city, including but not limited to 28th Avenue (between El Camino Real and Delaware Street) and 19th Avenue (between Pacific Boulevard and Fashion Island Boulevard).

36 of 268

S C O P E O F W O R K
Sandis will prepare a Basis of Design to support and document design decisions used to prepare the 30% Design Plans. Our process will consist of the following:
• Identify site constraints, including necessary curb ramp replacements, areas of ponding, impacts to private driveways, and other improvements to support successful reconstruction. • Identify existing utility conflicts and suggest utility relocation as needed, coordinating with third-party utilities in accordance with franchise agreements and addressing potential schedule impacts. • Create 30% design drawings outlining proposed improvements and work limits. • Determine the scope of traffic signal modifications required for the preferred alternative and provide preliminary layouts. Preliminary signal layouts will be based on utility research and locating to mitigate or identify utility conflicts. • Design bicycle facilities and connections, specifying materials (or parking separation) for separating vehicles and bicyclists.
• Incorporate the above into a Basis of Design (BOD) and conduct a workshop attended by Public Works management for acceptance before proceeding with detailed design work.

Deliverables:
• 30% design submittal including plans, specifications outline, and cost estimate • Basis of Design (BOD) report
• Technical review workshop agenda and minutes

Task 6 – Preparation of Detailed Plans, Specifications, and Cost Estimates (PS&E) for Construction Sandis will advance the 30% design plan layout, as developed in Task 5, to the final construction documents. This process will involve creating 90% and final construction contract documents. Each submittal will include plans, specifications, and estimates. Sandis will utilize City of San Mateo bidding documents (bid list) throughout the process.

The design documents will encompass all necessary traffic signal modifications essential for the existing traffic signals to function properly, as identified in the preferred design alternative selected during Task 5.

This includes an array of critical components, such as upgrades to signal poles and mast arms, the implementation of multi- modal detection systems, emergency vehicle preemption, and potentially closed-circuit television (CCTV). The plan set will include information on existing traffic signal cabinets and their contents, conduits, conductors, and phase diagrams.

Furthermore, the consultant will address the civil engineering aspects required to implement the signal operations and other corridor improvements outlined in the preferred scenario.

This may include improvements such as:
• Median cutback
• Pedestrian refuges
• Pavement restoration/rehabilitation
• New or reconstructed ADA curb ramps,
• Class IV Separation
We assume that following plans (but not limited to) will be needed:
• Demolition Plans
• Layout Plans (Pavement Improvements Extents)
• Grading Plans
• Electrical and Signal Plans
• Signing and Striping Plans
• Construction Details

37 of 268

S C O P E O F W O R K

We assumed that the City’s Traffic Consultant will prepare signal timing cards for any changes to the corridor signal phasing and timing. Sandis will coordinate with the Traffic Consultant to ensure that the design and operations are congruent.

Depending on the selected layout and improvements, stormwater management and treatment may be needed. Sandis is experienced with treatment requirements and practices and can provide this, if identified, as an additional service.

Our work approach for Task 6 is the following:
• Communicate with various agencies and utility companies as necessary to obtain information, and coordinate other activities required to complete the scope of services. • Present in-progress plans at the biweekly progress meetings with the City, if requested. • Prepare and submit plans, specifications, and cost estimates for the 90% design development milestones. • Prepare for and facilitate a design review with City staff. • Prepare and submit final construction contract documents incorporating all comments from previous reviews. • Prepare plans using AutoCAD and plot at appropriate scales on 22-inch x 34-inch sheets. • Write specifications in the format of Caltrans standard specifications 2018 version. The City will provide standard City general conditions for consultant’s use. Prepare all special provisions and technical specifications required for construction in a manner that integrates clearly with City and Caltrans specifications. Review general conditions and coordinate any proposed changes with City. This project may utilize federal funds for construction; write specifications accordingly.
• Develop a schedule of bid items to address all required contract work and prepare clear specifications for measurement and payment. Provisions for alternate items may be considered as an approach to keep the project within budget.
• Identify any physical work required for project implementation outside of the construction contract and provide recommendations for procurement methods.
• We assume that consolidated comments will be issued after each City review. Sandis will provide responses to these comments as part of the subsequent submittal.

Deliverables:
• 90% PS&E submittals in electronic format (MS Word, Excel, and PDF) • Technical review workshop/meeting
• Final bid documents: submit original stamped drawings and complete contract book including bid documents, general conditions and special provisions in electronic format (MS Word and PDF, plans in AutoCAD and PDF) • Final quantity estimates, quantity calculation sheets, final construction cost estimate submitted in the format of the schedule of bid items in electronic format (MS Word and PDF), including detailed construction cost estimate documentation
• Other documentation as needed to clarify design and contract approach Task 7 – Bidding Support
Our team will provide support during the bidding process, including but not limited to attending the pre-bid meeting, and preparing draft addenda or clarifications documents.

Deliverables:
• Contract addenda, if needed, for distribution by City • Written responses to bidder’s questions for distribution by City during bid phase Potential Additional Tasks
The following task can be provided as an Alternate or Additional service, if requested.

Alternate Task 1 – Engineering Services During Construction Sandis can provide design support during the construction of the project, including but not limited to attending the pre- construction meeting, assisting with review and preparation of responses to contractor Requests for Information, assisting

38 of 268

S C O P E O F W O R K
with review and preparation of responses to contractor submittals, assisting with preparation of contract change orders, participating in the final walk through, and assisting with preparation of the punch list. Construction Support. • Attend the pre-construction meeting to respond to questions concerning the PS&E • Review and prepare response to Request for Information (RFI) from the contractor • Review the Contractors submittals and shop drawings for compatibility with design • Assist the City in preparing the Contract Change Orders (CCO), if needed • Participate in the final walk-through of the constructed project • Perform final review/evaluation and assist with the preparation of the punch list of work deficiencies • Prepare Record Drawings (As-builts)

39 of 268

Design Professional Services 2022 Page 8 of 10
Rev 9/22

EXHIBIT B

PAYMENT RATES

40 of 268

Leshner Planning &
Transportation
Sandis

PIC/QAQC
Sandis
PM
Sandis
PE
Sandis
DE
Sandis
Eng. Tech
Sandis
Survey PM
Sandis
Proj Surveyor
Principal Project
Manager Senior Staff Admin
Assistant
Lab
Technician Principal Fee Allowance

2023 Hourly Charge Rate* $300 $215 $170 $130 $135 $215 $145 $220 $195 $180 $75 $110 $195 Task 1 Project Management and Coordination 116 $24,400
Schedule Updates 2 10 10 22 $4,450
Budgeting/Invoicing 2 12 14 $3,180
Project Meetings and Support 4 50 10 16 80 $16,770
Task 2 Community Outreach and Engagement
242 $43,330

2.1 - Prepare outreach plan 4 16 20 $3,980

2.2 - Stakeholder meetings and Workshops (2 each) 28 6 44 78 $15,410

2.2 - Project website content and materials (Concepts) 20 16 28 36 20 120 $19,420

2.3 - Documentation 4 4 16 24 $4,520
Task 3 Caltrans Approval (ROW Authorization)
20 $3,260

3.1 - Caltrans Permitting and Support 4 8 8 20 $3,260
Task 4 Site Investigations including Geotechnical, Survey, and Utility Potholing 150 $69,950

4.1 - Geotechnical Investigations, Testing and Report 5 20 20 6 21 $5,500 72 $16,860

4.2 - Topographical Survey and Base Mapping 8 32 18 16 $30,000 74 $42,230

4.2 - Utility Locating and Pot Holing Allowance 4 $10,000 4 $10,860 Task 5 Preliminary Engineering 278 $44,350

5.1 - 30% Design 4 32 48 68 60 212 $33,180

5.2 - Basis of Design 2 18 18 28 66 $11,170
Task 6 Preparation of Detailed Plans, Specs, and Cost Estimate for Construction 635 $99,570

6.1 - 90% PS&E 4 62 104 140 92 402 $62,830

6.2- 100% PS&E 4 30 48 66 48 196 $30,870

6.3 - Pavement Rehabilitation Design 1 6 8 10 12 37 $5,870 Task 7 Bidding Support 36 $6,520
Contract Addenda 8 4 4 16 $2,920
RFI Response and Support 8 8 4 20 $3,600
Totals 23 308 282 356 290 18 16 5 20 20 6 21 112 1477 $285,880 Project Expenses $2,000 $2,000
Outreach Materials $3,100 $3,100
Total $290,980
Optional Tasks
Task 2.A: Pop-up Events (2) $5,000 $5,000
Alt. Task 1 - Engineering Services During Construction $30,000 $30,000 Totals $35,000
Notes:

1. Hours and staff assignments may be adjusted by the consultant as needed to implement the tasks described during the course of the project.

2. Rates are subject to annual rate adjustments

CITY OF SAN MATEO DELAWARE STREET SAFE ROUTES TO

SCHOOL CORRIDOR BIKE INSTRASTRUCTURE PROJECT
Task
Hours
check
Total Task Fee
Sandis Ninyo & Moore
check

41 of 268

Design Professional Services 2022 Page 9 of 10
Rev 9/22

EXHIBIT C

INSURANCE REQUIREMENTS

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

1. Commercial General Liability (CGL) : Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including pr oducts-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall a pply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

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

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

4. Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.

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

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

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

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

42 of 268

Design Professional Services 2022 Page 10 of 10
Rev 9/22
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any ri ght to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue o f the payment of any loss under such insurance.

CONSULTANT agrees to obtain any endorsement that ma y be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.

Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

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

Verification of Coverage
CONSULTANT shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CONSULTANT’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

43 of 268

SHARED-USE PATH (CLASS 1)
• Two-way facility that is physically separated from motor vehicle traffic • Used by bicyclists, pedestrians, and other non-motorized users • May not serve all destinations directly

BIKE BOX
• Dedicated space between the crosswalk and vehicle stop line where bicyclists can wait during the red light at signalized intersections
• Improves visibility and motorists’ awareness of bicyclists at intersections SEPARATED BIKE LANE (CLASS 4)
• A bicycle-only facility that is physically separated from motor vehicle traffic and distinct from the sidewalk
• Appropriate on streets with medium or high traffic volumes and/or speeds

WAYFINDING
• Typically includes signage and pavement markings
• Helps bicyclists identify the best routes to destinations and to connecting routes • May include distances or travel times to destinations BIKE LANE (CLASS 2)
• Provides exclusive space for bicyclists in the roadway; designated by pavement markings and signage
• Buffered bike lanes increase comfort by adding a painted buffer to a standard bike lane
• Appropriate on streets with low or medium traffic volumes

BIKE DETECTION/PUSH BUTTON
• Bicycle detectors are located in the street at intersections and trigger a green light for bicyclists who wait above the detector marking
• Bicycle pushbuttons are located on signal poles within reach of a bicyclist waiting in the roadway; the buttons trigger a green light for bicyclists once pushed (similar to pedestrian pushbuttons)
BICYCLE BOULEVARD (CLASS 3)
• Prioritize bicycle through-travel
• Use traffic calming to slow vehicle traffic and maintain low motor vehicle volumes • Often applied on quiet streets, in neighborhoods

PAINTED CONFLICT MARKINGS
• Painted pavement markings can improve visibility of bike lanes at intersections • Alerts all roadway users of expected behaviors to reduce conflicts with turning vehicles and at driveways
RURAL ROUTE (CLASS 3)
• Provide shoulders to accommodate bicyclists
• Supplement with warning signage and wayfinding
• Located in rural areas where dedicated bicycle facilities will not fit, or would be inappropriate given the surrounding context

RECTANGULAR RAPID FLASHING BEACONS (RRFB)
• RRFBs combine a crossing warning sign with a bright flashing beacon that is activated only when a bicyclist or pedestrian is present • Increases motorists’ yielding compliance and bicyclist and pedestrian visibility These bicycle facilities and improvements are a part of the bicycle planning “toolbox” and will be considered as a part of the San Mateo Bicycle Master Plan recommendations.

Bicycle Network Facilities
San Mateo Bicycle Master Plan

44 of 268

CITY OF SAN MATEO
4 5
6 4

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 5 Section Name: CONSENT CALENDAR Account Number: 10-5112 File ID: 23-8180 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Police Department
MEETING DATE: December 04, 2023
SUBJECT:

Police Vehicle Computer Replacement – Purchase
RECOMMENDATION:

Adopt a Resolution to approve the use of an alternative purchasing procedure and Master Purchasing Agreement and Participating Addendum with CDWG for the purchase of 56 Panasonic laptops per the City’s computer replacement schedule in the amount of $252,996.21and 40 Havis laptop docking stations in the amount of $27,582.65 for a total amount of $280,578.86; and authorize the Chief of Police to execute the agreement in substantially the form presented.

BACKGROUND:

Each of the Police Department’s patrol vehicles have an in-car computer, which are Panasonic CF-33 ‘Toughbook’ style laptops. Our City’s replacement strategy for computers is to replace after five years in service to mitigate potential maintenance issues, support problems, and to keep the equipment current with industry standards. The CF-33s were purchased in April, 2018, and are past due for replacement. The Police Department has identified the Panasonic FZ-55 laptop as the optimal device, aligning with policing industry best practices for in-car computers. In addition to the new laptops, new docking stations, that hold the laptop and enable their usage in the patrol vehicles, are also needed. Havis docking stations have been identified by staff as the optimal hardware to meet this need.

Staff obtained the quotation for the proposed purchase through a purchasing cooperative known as the National Intergovernmental Purchasing Alliance (NIPA) with the City of Mesa, Arizona as the lead agency. NIPA contracts allow participants to pay less through competitively solicited, evaluated, and awarded contracts that leverage the cooperative buying power of local government agencies, avoiding costs normally associated with the development of highly technical bid specifications, while assuring that competitive prices were received. CDWG is a participating vendor under NIPA contract #2018011-01 and is recommended because the quality of its customer support and services, its efficient warranty and replacement policy, and because its products have proven to be of high quality and are stable and reliable.

Municipal Code section 3.60.070(h)(3) provides that the City may use any purchasing procedures approved by the City Council, if the City Council makes a finding concurrent with the award of the contract that the procedures are in the best interest of the City. Utilizing NIPA’s procurement service is in the best interest of the City because it offers competitively priced contracts for goods and services, allows the City to avoid costs normally associated with the development of highly technical bid specifications, and assures that competitive prices are received. Based on the above, staff recommends approving the purchase of 56 laptop computers pursuant to the Master Purchasing Agreement and Participating Addendum with CDWG for an amount not to exceed $252,996.21; and 40 docking stations in an amount not to exceed $27,581.65.

BUDGET IMPACT:

Funds have been accrued and are available for the laptop computers and docking stations through the City’s Computer

45 of 268

CITY OF SAN MATEO
4 5
6 4
Replacement Fund (Fund 81) for the purchase, which includes a 5-year warranty.

ENVIRONMENTAL DETERMINATION:

This action is not a project subject to CEQA, because it can be seen with certainty that it will not cause a physical change in the environment. (Public Resources Code Section 21065.)

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Attachment 1 – Proposed Resolution
Attachment 2 – CDWG Quote for Panasonic Laptops
Attachment 3 – CDWG Quote for Havis Docking Stations
Attachment 4 – City of Mesa, AZ, NIPA Agreement and Amendments

STAFF CONTACT
Ed Barberini, Chief of Police
[email protected]
(650) 522-7600
Matt Lethin, Lieutenant
[email protected]
(650) 522-7663

46 of 268

CITY OF SAN MATEO
RESOLUTION NO. ____ (2023)

APPROVING AN ALTERNATIVE PURCHASING PROCEDURE FOR ISSUANCE OF PURCHASE ORDERS TO CDWG FOR PURCHASE OF REPLACEMENT IN-CAR COMPUTERS ($252,996.21) AND DOCKING STATIONS ($27,582.65) FOR POLICE PATROL VEHICLES WHEREAS, the City replaces computer hardware on an ongoing basis once it has reached its operational lifespan of five (5) years; and
WHEREAS, the City has identified that the Panasonic laptop computers inside the Police Department’s patrol vehicles have reached the end of their operational life per the replacement schedule; and WHEREAS, Municipal Code Section 3.60.070(h)(3) provides that the City may use purchasing procedures approved by the City Council if the Council makes a finding that the procedures are in the best interest of the City; and
WHEREAS, as a public sector agency, the City may participate in the National Intergovernmental Purchasing Alliance (NIPA) which offers contracts that have been competitively bid and negotiated; and WHEREAS, CDWG is a participating vendor under the current NIPA contract; and WHEREAS, CDWG is the preferred vendor due to the quality of its customer support and services; and WHEREAS, the Department of Information Technology and Police Department have determined the Panasonic FZ-55 laptops and Havis docking stations purchased from CDWG best meets the City’s needs.

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

1. This action is not a project subject to CEQA, because it can be seen with certainty that it will not cause a physical change in the environment (Public Resources Code Section 21065.)

2. Pursuant to Municipal Code Section 3.60.070(h)(3), the purchase of Panasonic FZ-55 laptops and Havis docking stations from CDWG through the National Intergovernmental Purchasing Alliance (NIPA) is in the best interest of the City because the NIPA procurement service officers competitively priced contracts for goods and services; and avoids costs normally associated with the development of highly technical bid specifications, while assuring the competitive prices were received.

3. The Chief of Police is authorized to issue purchase orders to CDWG in the amounts of $252,996.21 (laptops) and $27,582.65 (docking stations) and execute related documents for the replacement of computers and docking stations inside patrol vehicles.

47 of 268

Hardware Software Services ITSolutionsBrandsResearchHub CURTIS JOE,Thank you for considering CDWG for your technology needs. The details of your quote are below. If you are an eProcurement or single sign on customer, please log into your system to access the CDW site. You can search for your quote to retrieve and transfer back into your system for processing.For all other customers, click below to convert your quote to an order.

Convert Quote to Order
QUOTE# QUOTEDATE QUOTEREFERENCE CUSTOMER# GRANDTOTALNPZP91110/30/2023NPZP9116671948$252,996.21 IMPORTANT-PLEASEREADFees applied to item(s): 7530155
QUOTEDETAILSITEM QTY CDW# UNITPRICE EXT.PRICEPanasonic Toughbook 55 - 14" - Intel Core i5 1145G7 - vPro - 16 GB RAM - 51 56 7530155$2,898.00$162,288.00Mfg. Part#: FZ-55FZ-4WAMContract: National IPA Technology Solutions (2018011-01)LIND PA1580-1642 - car power adapter - 120 Watt56 2090640$129.00$7,224.00Mfg. Part#: CF-LNDDC120UNSPSC: 39121006Contract: National IPA Technology Solutions (2018011-01) Panasonic Public Sector Service Package - extended service agreement - 2 ye56 4195499$549.00$30,744.00Mfg. Part#: CF-SVCPSY5UNSPSC: 81112307Electronic distribution - NO MEDIAContract: National IPA Technology Solutions (2018011-01) Panasonic FZ-VZSU1HUIS - notebook battery - Li-Ion - 6500 mAh 56 6677954$181.93$10,188.08Mfg. Part#: FZ-VZSU1HUISContract: National IPA Technology Solutions (2018011-01) Panasonic Smart Battery Warranty - extended service agreement - 5 years - y56 6700714$349.00$19,544.00Mfg. Part#: CF-SVCBATX2SW5Y5 YEAR DUAL SMART BATT WARR W/ SVCSSMART BATT MONITORING SOFTWAREElectronic distribution - NO MEDIAContract: National IPA Technology Solutions (2018011-01)

48 of 268

Page 2 of 3 ends

QUOTEDETAILS(CONT.)PAN 5YR B2M SMART COMB YR 1-556 6518127$98.00$5,488.00Mfg. Part#: CF-SVCB2MCMB5Y5YR B2M SMART SUITE COMB SUB SVCSSVC INCL SMARTBATT MNTRNG SMART DVElectronic distribution - NO MEDIAContract: National IPA Technology Solutions (2018011-01)RECYCLINGFEEDETAILSITEM QTY CDW# UNITPRICE EXT.PRICERECYCLING FEE 4" TO LESS THAN 15"Fee Applied to Item: 753015556 654809$4.00$224.00 SUBTOTAL $235,476.08SHIPPING $0.00RECYCLINGFEE $224.00SALESTAX $17,296.13GRANDTOTAL $252,996.21 PURCHASERBILLINGINFO DELIVERTOBilling Address:CITY OF SAN MATEOSTEVE ENGLE330 W 20TH AVESAN MATEO, CA 94403-1388Phone: (650) 522-7062Payment Terms: NET 30-VERBAL Shipping Address:CITY OF SAN MATEOCURTIS JOE330 W 20TH AVESAN MATEO, CA 94403-1388Phone: (650) 522-7062Shipping Method: UPS Ground (2-3 days)Pleaseremitpaymentsto:CDW Government75 Remittance DriveSuite 1515Chicago, IL 60675-1515 Sales Contact Info
Kenny Stoller | (877) 246-8092 | [email protected]
LEASEOPTIONSFMV TOTALFMV LEASE OPTIONBO TOTALBO LEASE OPTION$235,700.08$6,255.48/Month$235,700.08$7,243.06/Month Monthly payment based on 36 month lease. Other terms and options are available. Contact your Account Manager for details. Payment quotedis subject to change. Why finance? Lower Upfront Costs. Get the products you need without impacting cash flow. Preserve your working capital and existing credit line. Flexible Payment Terms. 100% financing with no money down, payment deferrals and payment schedules that match your company'sbusiness cycles. Predictable, Low Monthly Payments. Pay over time. Lease payments are fixed and can be tailored to your budget levels or revenue streams. Technology Refresh. Keep current technology with minimal financial impact or risk. Add-on or upgrade during the lease term and choose toreturn or purchase the equipment at end of lease.

49 of 268

Page 3 of 3 ends

Bundle Costs. You can combine hardware, software, and services into a single transaction and pay for your software licenses over time! Weknow your challenges and understand the need for flexibility. General Terms and Conditions: This quote is not legally binding and is for discussion purposes only. The rates are estimate only and are based on a collection of industry datafrom numerous sources. All rates and financial quotes are subject to final review, approval, and documentation by our leasing partners.Payments above exclude all applicable taxes. Financing is subject to credit approval and review of final equipment and services configuration.Fair Market Value leases are structured with the assumption that the equipment has a residual value at the end of the lease term.

NeedHelp?
MyAccount
Support
Call 800.800.4239
About Us |Privacy Policy |Terms and Conditions This order is subject to CDW's Terms and Conditions of Sales and Service Projects athttp://www.cdwg.com/content/terms-conditions/product-sales.aspxFor more information, contact a CDW account manager © 2023 CDWG LLC, 200 N. Milwaukee Avenue, Vernon Hills, IL 60061 | 800.808.4239

50 of 268

Convert Quote to Order
QUOTE# QUOTEDATE QUOTEREFERENCE CUSTOMER# GRANDTOTALNQBC84710/31/2023NQBC8476671948$27,581.65 QUOTEDETAILSITEM QTY CDW# UNITPRICE EXT.PRICEPanasonic Docking Station for TOUGHBOOK Rugged Notebook40 5864668$629.00$25,160.00Mfg. Part#: HA-55LVD0HAVIS DOCKING STATION FOR DOCKTOUGHBOOK 54 AND 55 RUGGED LAPTOPContract: Sourcewell 081419-CDW Tech Catalog (081419#CDW) SUBTOTAL $25,160.00SHIPPING $0.00SALESTAX $2,421.65GRANDTOTAL $27,581.65 PURCHASERBILLINGINFO DELIVERTOBilling Address:CITY OF SAN MATEOSTEVE ENGLE330 W 20TH AVESAN MATEO, CA 94403-1388Phone: (650) 522-7062Payment Terms: NET 30-VERBAL Shipping Address:CITY OF SAN MATEOCURTIS JOE330 W 20TH AVESAN MATEO, CA 94403-1388Phone: (650) 522-7062Shipping Method: DROP SHIP-COMMON CARRIERPleaseremitpaymentsto:CDW Government75 Remittance DriveSuite 1515Chicago, IL 60675-1515 Sales Contact Info
Kenny Stoller | (877) 246-8092 | [email protected]

LEASEOPTIONS

51 of 268

Page 2 of 2 ends

FMV TOTALFMV LEASE OPTIONBO TOTALBO LEASE OPTION$25,160.00$680.58/Month$25,160.00$784.24/Month Monthly payment based on 36 month lease. Other terms and options are available. Contact your Account Manager for details. Payment quotedis subject to change. Why finance? Lower Upfront Costs. Get the products you need without impacting cash flow. Preserve your working capital and existing credit line. Flexible Payment Terms. 100% financing with no money down, payment deferrals and payment schedules that match your company'sbusiness cycles. Predictable, Low Monthly Payments. Pay over time. Lease payments are fixed and can be tailored to your budget levels or revenue streams. Technology Refresh. Keep current technology with minimal financial impact or risk. Add-on or upgrade during the lease term and choose toreturn or purchase the equipment at end of lease. Bundle Costs. You can combine hardware, software, and services into a single transaction and pay for your software licenses over time! Weknow your challenges and understand the need for flexibility. General Terms and Conditions: This quote is not legally binding and is for discussion purposes only. The rates are estimate only and are based on a collection of industry datafrom numerous sources. All rates and financial quotes are subject to final review, approval, and documentation by our leasing partners.Payments above exclude all applicable taxes. Financing is subject to credit approval and review of final equipment and services configuration.Fair Market Value leases are structured with the assumption that the equipment has a residual value at the end of the lease term.

52 of 268

City of Mesa, AZ
Contract # 2018011-01
for
Information Technology Solutions and Services
with
CDW Government, LLC
Effective: March 1, 2018

53 of 268

The following documents comprise the executed contract between the City of Meza, AZ and CDW Government, LLC., effective March 1, 2018:

I. Executed Contract
II. Mayor and Council Approval
III. Supplier Response
IV. Original RFP

54 of 268

OFFICE OF THE CITY CLERK

COUNCIL MINUTES

February 5, 2018

The City Council of the City of Mesa met in a Regular Council Meeting in the Council Chambers, 57 East 1st Street, on February 5, 2018 at 5:45 p.m.

COUNCIL PRESENT COUNCIL ABSENT OFFICERS PRESENT

John Giles
David Luna
Mark Freeman
Christopher Glover
Francisco Heredia
Kevin Thompson
Jeremy Whittaker

None

Christopher Brady
Dee Ann Mickelsen
Jim Smith
Mayor’s Welcome.

Invocation by Pastor Ben Diaz with Palabra de Vida (Word of Life).

Pledge of Allegiance was led by Councilmember Thompson.

Awards, Recognitions and Announcements.

There were no awards, recognitions or announcements.

1. Take action on all consent agenda items.

All items listed with an aster isk (*) will be considered as a group by the City Council and will be enacted with one motion. There will be no separate discussion of these items unless a Councilmember or citizen requests, in which event the item will be removed from the consent agenda and considered as a separate item. If a citizen wants an item removed from the consent agenda, a blue card must be completed and given to the City Clerk prior to the Council’s vote on the consent agenda.

It was moved by Councilmember Thompson, seconded by Councilmember Glover, that the consent agenda items be approved.

Carried unanimously.

*2. Approval of minutes from previous meetings as written.

Minutes from the January 8, 11, and 22, 2018 Council meetings.

55 of 268

Regular Council Meeting
February 5, 2018

Page 2 ends

3. Take action on the following liquor license applications:

*3-a. It Ain’t Chemo

This is a one -day event to be held on Saturday, February 10, 2018 from 9:00 A.M. to 9:00 P.M. at Riverview Park, 2100 West Rio Salado Parkway. (District 1)

*3-b. AMC Superstition East 12

A multi- screen cinema i s requesting a new Series 6 Bar License for American Multi- Cinema Inc., 1935 South Signal Butte Road - Andrea Dahlman Lewkowitz, agent. There is no existing license at this location. (District 6)

*3-c. ATL Wings

A restaurant that serves lunch and dinner is requesting a new Series 12 Restaurant License for Stapley Wings LLC, 1455 South Stapley Drive, Suites 22- 24 - Andrea Dahlman Lewkowitz, agent. The existing license held by Mark Killian, sole proprietor, will revert to the State. (District 4)

*3-d. Elgin Distillery

This is a one-day craft distillery festival to be held on Saturday, March 3, 2018 from 9:00 A.M. to 4:00 P.M. at Sunland Village, 4601 East Dolphin Avenue. (District 2)

*3-e. Village of Elgin Winery

This is a one- day wine festival event to be held on Saturday, March 3, 2018 from 9:00 A.M. to 4:00 P.M. at Sunland Village, 4601 East Dolphin Avenue. (District 2)

4. Take action on the following off-track betting license application:

*4-a. Turf Paradise, TP Racing LLLP

New Off-Track Betting License for Turf Paradise, TP Racing LLLP to telecast at Moose & Bear, located at 118 East McKellips Road, Suite 103, TB Concepts LLC. Applicant:

Vincent Acri Francia. (District 1)

5. Take action on the following contracts:

*5-a. One-Year Renewal to the Term Contract for Executive Physicals for Citywide Departments as requested by the Human Resources Department. (Citywide)

This contract provides annual physicals for the City’s executive staff as a means of maintaining optimum health. There are approx imately 65- 70 positions eligible to participate in this program.

The Human Resources Department and Purchasing recommend authorizing the renewal contract with Banner Occupational Health Clinics, at $88,500, based on estimated usage.

56 of 268

Regular Council Meeting
February 5, 2018

Page 3 ends

*5-b. One-Year Renewal to the Term Contract for Deceased Animal Collection Services for the Community Services Department. (Citywide)

This contract provides a vendor to collect and dispose of deceased animals up to 150 pounds that are reported within the City. The contractor is responsible for the proper disposal by cremation or other means in accordance with the standards and methods approved by the Maricopa County Health Department.

The Community Services Department and Purchasing recommend authorizing the renewal contract with APM/Couts Enterprises, Inc., dba Arizona Pet Mortuary, at $54,000, based on estimated usage.

*5-c. Purchase of One Replacement Fire Apparatus, an Air Light/Rehab Unit, for the Fire and Medical Department (Sole Source). (Citywide)

The apparatus being replaced has met established replacement criteria and will be sold by a sealed bid process or traded -in as part of the City's fire apparatus purchase agreement with Pierce Manufacturing. In addition, Fire and Medical will trade-in two units to further offset the price for the Air/Light Rehab unit.

The Fire and Medical Department and Purchasing recommend authorizing the purchase using the City’s five-year purchase agreement with Pierce Manufacturing Inc., through their designated local dealer, Hughes Fire Equipment Inc., at $502,264.75. This purchase is funded by the Capital -General Fund and authorized 2013 Public Safety Bonds.

*5-d. Three-Year Term Contract for Landscape Maintenance Services for Parks, Retention Basins and Sports Fields - Zones 1, 2, 3 and 4 for the Parks, Recreation and Community Facilities Department (PRCF). (Citywide)

These contracts provide landscape maintenance services for sports fields, parkways, medians, parks, retention basins or grounds adjacent to City facilities. The City has divided the landscaping into geographic areas known as Zones 1, 2, 3 and 4. PRCF has done an analysis to bring the work under this contract in- house and, at this time, contracting continues to be in the best financial interest of the City.

The evaluation committee recommends awarding the contract to the highest-scored proposal from Mariposa Landscape Arizona, Inc.; Zone 1, at $1,435,319.57 annually; Zone 2, at $959,183.45 annually; Zone 3, at $974,364.20 annually; and Zone 4, at $1,221,738.22 annually; based on estimated usage.

*5-e. Three-Year Term Contract for Plumbing Services for the Parks, Recreation and Community Facilities Department. (Citywide)

This contract will establish a list of pre -qualified plumbing contractors to perform plumbing services on various City facilities/projects on an as-needed basis.

The evaluation committee recommends awarding the contract to the four, highest-scored proposals from Mesa Energy Systems Inc.; RKS Plumbing and Mechanical Inc.; Sun Mechanical Inc.; and W.D. Manor Mechanical Contractors, Inc.; cumulatively not to exceed $100,000 annually, based on estimated usage.

57 of 268

Regular Council Meeting
February 5, 2018

Page 4 ends

*5-f. Purchase of Furniture for the Main Library as requested by the Library Services Department. (Citywide)

This purchase will provide seating and tables for two new rooms at the Main Library, Teen Room and ThinkSpot. The Library worked with several vendors utilizing cooperative contracts specifying their needs and goals with this project.

The Library Services Department and Purchasing recommend authorizing the purchase using the Northern Arizona University cooperative contract with Atmosphere Commercial Interiors, at $50,876.25.

*5-g. Five-Year Term Contract with CDW Government, LLC and SHI International Corp. for Information Technology Solutions and Services for Various Departments throughout the City. (Citywide)

This contract will provide the City and participating agencies a full range of information technology solution products and services to meet varying requirements of governmental agencies. The scope of products and services available under these contracts include standard business and high- end workstations; laptop and notebook computers; network equipment; computer and network products and peripherals; monitors; various cloud, consulting, and technical support services; financing; various software products; and the contractors' comprehensive product offering.

Mesa, as the lead agency, has partnered with the National Intergovernmental Purchasing Alliance Company (National IPA) to lead this contract. The contract will be available to over 45,000 public agencies nationally. While no minimum volume is guaranteed to the suppliers, the estimated annual volume of IT Solutions purchased under this master agreement is approximately $500 million per year. The City will receive rebates annually for administering and awarding this contract.

A committee representing the Police, and Information Technology Departments, City Manager’s Office, Police- Information Technology, National IPA and Purchasing evaluated responses. The evaluation committee recommends awarding the contract to the highest-scored proposals from CDW Government, LLC and SHI International Corp., at $3,100,000 annually, based on estimated usage.

*5-h. One-Year Term Contract for Electrical and Lighting Supplies for the Materials and Supply Warehouse (for Citywide Departments). (Citywide)

Multiple departments use this Citywide contract for their miscellaneous electrical equipment and supplies.

The Business Services Department and Purchasing rec ommend authorizing the purchase using the State of Arizona cooperative contract with Border States Industries, Inc., at $100,000, based on estimated usage.

*5-i. Re-Award the Three- Year Term Contract for Microfilm Conversion Services for the Police Department. (Citywide)

This contract will provide services to convert Police Department data from microfilm to digital media. Police, Records Division use microfilm that is becoming worn and damaged. The previous vendor is unable to satisfactorily fulfill the contract requirements.

58 of 268

Regular Council Meeting
February 5, 2018

Page 5 ends

The Police Department and Purchasing recommend re- awarding the contract to the second highest scored proposal, ICM Conversions, at $400,000 annually, based on estimated usage.

*5-j. Purchase of Falcon District Brand Signage as reques ted by the Economic Development Department. (Citywide)

Continuing to build awareness and to promote the Falcon Field Economic Activity Area, this purchase for the Falcon District signage includes the installation of two branded monument signs to be located on Greenfield and Higley Roads, south of the 202.

Additionally, the City will install utility and transit signal box wraps and will mount branded banners promoting aerospace, technology, and manufacturing on light poles around the airport.

The Economic Development Department and Purchasing recommend authorizing the purchase using the City of Peoria cooperative contract with YESCO Phoenix, at $146,670.49. This purchase is funded by Local Streets Sales Tax.

*5-k. Purchase of Three Replacement Rollback Trailers for the Transportation Department. (Citywide)

These trailers will replace three aging equipment trailers that are at the end of their service life. The trailers will meet the needs and safety requirements for transporting the large equipment required to perform street and right-of-way maintenance.

The Transportation Department and Purchasing recommend authorizing the purchase using the National Joint Powers Alliance contract with Empire Southwest (a Mesa business), at $176,764.77. This purchase is funded by Local Streets Sales Tax.

*5-l. One-Year Renewal to the Term Contract for Radio- Based Endpoint Encoders (for Water Meter Reading) for the Water Resources Department. (Citywide)

This contract provides Itron radio -based endpoint encoders and acces sories purchased directly from Itron, Inc., the manufacturer. The endpoint stores 40 days of hourly reads to ensure data integrity and offers advanced customer side leak detection and reverse flow and tamper alarms. Water Utility installs approximately 540 radio-based endpoint encoders on new and existing meters annually.

The Water Resources Department and Purchasing recommend authorizing the renewal with Itron, Inc., at $100,000, based on estimated usage.

*5-m. Purchase of Water Treatment Plant Shop Tools and Equipment for the New Signal Butte Water Treatment Plant as requested by the Water Resources Department. (Citywide)

This purchase is for tools and equipment needed for the start-up and maintenance in the various shops at the new Signal Butte Water Treatment Plant.

The Water Resources Department and Purchasing recommend awarding the contract to the lowest, responsive and responsible bidders: Copper State Bolt & Nut Co. (a Mesa business); Glendale Industrial Supply, LLC, dba UNICOA Construction and Industrial Supply; Mallory Safety & Supply LLC; and W.W. Grainger, Inc.; cumulatively not to exceed $153,000, based on estimated usage.

59 of 268

Regular Council Meeting
February 5, 2018

Page 6 ends

*5-n. One-Year Renewal to the Term Contract for Fire Hydrant Water Meters for the Water Resources Department. (Citywide)

This contract provides 3” fire hydrant water meters to accurately measure construction water use of fire hydrants. The meters are installed by Water Utility staff to serve contractors and other customers needing to connect to City fire hydrants for tempora ry construction water service and dust control purposes.

The Water Resources Department and Purchasing recommend authorizing the renewal with Badger Meter Inc., dba National Meter Automation, at $35,000, based on estimated usage.

*5-o. Greenfield Water Reclamation Plant (GWRP), Phase III Expansion Guaranteed Maximum Price (GMP) No. 2. (Citywide)

The City of Mesa, Town of Gilbert, and Town of Queen Creek seek to provide an additional 14 million gallons per day annual average day flow of liquids and solids treatment capacity at the existing GWRP, complete with the required infrastructure, technology, and environmental features to ensure a reliable, efficient, and expanded plant to meet the current and future demands.

Staff recommends awarding the contrac t for the completion of this project to McCarthy Building Companies in the amount of $120,302,333 and authorize a change order allowance $6,015,117 (5%) for a total project amount of $126,317,450. This project is funded by the Greenfield Water Reclamation Plant Joint Venture Fund, with contributions coming from its members based on usage. Mesa’s portion of this GMP is $72,229,521 and is funded by 2014 authorized Wastewater Bonds.

*5-p. Sewer Pipe and Manhole Rehabilitation: Mesa Drive, Millet Avenue, Horne, and 6th Avenue. (District 4)

The existing sanitary sewer lines covered by this project were built during the 1950’s and 1960’s. The age of these pipes greatly increases their risk of failure and emergency repairs. This method of construction can be completed while leaving the pipe in place and without excavation. Similarly, the sewer manholes will be cleaned, repaired, and coated in place. Only the concrete adjustment rings will be removed and replaced.

Staff recommends awarding the contract for this pr oject to the lowest, responsible bidder, B and F Contracting, Inc, in the amount of $1,394,294.67, and authorize a change order allowance in the amount of $139,430 (10%), for a total amount of $1,533,724.67. Funding for this project is available from the 2014 Wastewater Bond Program.

*5-q. Sidewalks at Railroad Crossing on Alma School. (Districts 3 and 4)

To continue to meet current railroad approach and clearance standards at the Alma School Road railroad crossing, additional safety improvements will need to be made.

The project improvements for roadway and sidewalk approach at this location will facilitate greater public safety and needed clearances from railroad signals along with a smoother roadway crossing of the Union Pacific Railroad track. Mesa wil l participate in the federally-funded Railway-Highway Grade Crossing Program, and will be responsible

60 of 268

Regular Council Meeting
February 5, 2018

Page 7 ends

for adjusting the existing concrete sidewalks around the proposed cantilevers and gates, and installing concrete medians.

This project was previously awarded by Council on July 10, 2017, however, the previously selected contractor could not comply with the federal requirements and the project was released for bid a second time.

Staff recommends awarding the contract to the lowest, responsible bidder, AJP Electric, in the amount of $149,494, plus an additional $14,949 (10%) as a change order allowance, for a total amount of $164,443. Funding is available from the Local Streets Sales Tax, of which 94.3% will be reimbursed by Arizona Department of Transporta tion (Federal) Grant under the Railway-Highway Grade Crossing.

6. Take action on the following resolutions:

*6-a. Approving and authorizing the City Manager to submit the Second Substantial Amendment to the Fiscal Year 2017/2018 Annual Action Plan to the U.S. Department of Housing and Urban Development related to the allocation of funding obtained under the Community Development Block Grant (CDBG) program. This Amendment will allow for reallocation of $600,000 in CDBG funds from the Senior Center Renovation Project (247 North Macdonald) to the Eagles Park Project (828 East Broadway Road). (District 4) – Resolution No. 11088.

*6-b. Approving and authorizing the City Manager to enter into a Grant Agreement with the Arizona Department of Public Safety to accept $1,335,284 in Victims of Crime Act (VOCA) grant funds. The finding will be used for salaries and expenses for the Mesa Prosecutors Office, Victim Services Unit for a three-year period. (Citywide) – Resolution No. 11089.

*6-c. Approving and authorizing the City Manager to enter into a Lease Agreement with New Cingular Wireless PCS for a cellular site on a portion of 5950 East Virginia Street, also known as Mesa Fire Station 214. (District 5) – Resolution No. 11090.

*6-d. Approving and authorizing the City Manager to enter into a Development Agreement for City-Share Reimbursement with PPGN -Ray, LLLP, for the reimbursement of $100,568 for regional street and street lighting improvements that are being required by the City in conjunction with a proposed residential development known as Crismon Road at PPGN, located at 5461 South Ellsworth Road. (District 6) – Resolution No. 11091.

*6-e. Approving and authorizing the City Manager to enter into an Intergovernmental Agreement with the Maricopa County, Department of Transportation for the pavement rehabilitation of Adobe Road from Higley Road to Recker Road. The City will contribute an estimated $54,417 for the portion of the project that is within City boundaries that will be funded from the 2013 Streets Bond Program. (District 5) – Resolution No. 11092.

*6-f. Approving and authorizing the City Manager to enter into First Amendments to the Development Agreement, Ground and Air Lease, and License Agreement with 3W Management, LLC, to facilitate the development of, and job creation and retention at, the City-owned property generally located at the southwest corner of Main Street and South Pomeroy and 34 South Pomeroy, which is the development commonly known as The GRID. (District 4) – Resolution No. 11093.

61 of 268

Regular Council Meeting
February 5, 2018

Page 8 ends

7. Introduction of the following ordinance and setting February 26, 2018 as the dat e of the public hearing on this ordinance:

*7-a. ZON17-00323 (District 5) The 8800 to 8900 blocks of East Main Street (south side).

Located west of Red Mountain Freeway on the south side of Main Street (16.4± acres).

Rezoning from RS-43 and GC to GC-PAD; and Site Plan Review. This request will allow for the development of an RV dealership and storage facility. Jeff Welker, Welker Development Resources, applicant; Roger D. Overson, owner.

Staff Recommendation: Approval with conditions

P&Z Board Recommendation: Approval with conditions (Vote: 6-0)

8. Discuss, receive public comment, and take action on the following ordinances:

*8-a. ZON17-00309 (District 2) The 5200 block of East Inverness Avenue (south side).

Located east of Higley Road south of the US60 Freeway (1.9 ± acres). Rezoning from RM-3-PAD to LC; and Site Plan Review. This request will allow for the development of a commercial building. John Schoenauer, HD Management, applicant; Sevilla, LLC, owner. – Ordinance No. 5419.

Staff Recommendation: Approval with conditions

P&Z Board Recommendation: Approval with conditions (Vote: 7-0)

*8-b. ZON17-00283 (District 6) The 7100 to 7300 blocks of East Ray Road (north side).

Located east of Power Road on the north side of Ray Road (56.0± acres). Rezone from LI-AF to LI -AF-PAD. This request will allow for the development of an industrial subdivision. Omar Cervantes, XCL Engineering, LLC, applicant; Phx -Mesa Gateway Airport 193, LLC, owner. – Ordinance No. 5420.

Staff Recommendation: Approval with conditions

P&Z Board Recommendation: Approval with conditions (Vote: 7-0)

*8-c. ZON17-00432 (District 3) The 800 and 900 blocks of West Southern Avenue (south side), the 1200 and 1300 blocks of South Extension Road (west side), and the 800 and 900 blocks of West Grove Avenue (north side). Located at the southwest corner of Southern Avenue and Extension Road (19.3 ± acres). PAD Amendment; Site Plan Modification. This request w ill allow the development of a new multiple- residence building in an existing multiple- residence complex. Reese Anderson, Pew and Lake, PLC, applicant; Edward B. Frankel, Trustee of the Frankel Family Trust, owner. – Ordinance No. 5421.

Staff Recommendation: Approval with conditions

P&Z Board Recommendation: Approval with conditions (Vote: 7-0)

9. Take action on the following subdivision plat:

*9-a. "Allred Ranch" (District 2) The 2900 to 3100 blocks of East Southern Avenue (north side), and t he 900 to 1200 blocks of South Los Alamos (west side). Located east of

62 of 268

Regular Council Meeting
February 5, 2018
Page9
Lindsay Road on the north side of Southern Avenue. 108 RSL-4.5 PAD lots (25± acres).

KB Home Phoenix, Inc., developer; Dan Auxier, EPS Group, engineer.

Items not on the Consent Agenda

10. Items from citizens present.

There were no items from citizens present.

11. Adjournment.

Without objection, the Regular Council Meeting adjourned at 5:57 p.m.

ATTEST:

DEE ANN MICKELSEN, CITY CLERK
~
~AYOR
I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular Council Meeting of the City Council of Mesa, Arizona, held on the 5th day of February, 2018. I further certify that the meeting was duly called and held and that a quorum was present.

DEE ANN MICKELSEN, CITY CLERK
js

63 of 268

Page 1 of 32 ends

AGREEMENT PURSUANT TO SOLICITATION

CITY OF MESA AGREEMENT NUMBER 2018011

INFORMATION TECHNOLOGY SOLUTIONS & SERVICES

CITY OF MESA, Arizona (“City”)
Department Name City of Mesa – Purchasing Division
Mailing Address P.O. Box 1466
Mesa, AZ 85211-1466
Delivery Address 20 East Main St, Suite 400
Mesa, AZ 85201
Attention Sharon Brause, CPPO, CPPB, CPCP
Senior Procurement Officer
E-Mail [email protected]
Phone (480) 644-2815
Fax (480) 644-2655

AND

CDW GOVERNMENT LLC, (“Contractor”)
Mailing Address 230 N. Milwaukee Ave
Vernon Hills, IL 60061-9740
Remit Address 75 Remittance Dr, Suite #1515
Chicago, IL 60675-1515
Attention Jumana Dihu, Program Manager
E-Mail [email protected]
Phone (312) 547-2495
Fax (312) 705-9437
Website www.cdwg.com

64 of 268

Page 2 of 32 ends

CITY OF MESA AGREEMENT PURSUANT TO SOLICITATION

This Agreement pursuant to solicitation (“ Agreement”) is entered into this 28 th day of February, 2018, by and between the City of Mesa, Arizona, an Arizona municipal corporation (“ City”), and CDW GOVERNMENT LLC, an Illinois limited liability company (“Contractor”). The City and Contractor are each a “Party” to the Agreement or together are “Parties” to the Agreement.

RECITALS

A. The City issued solicitation number 2018011 (“Solicitation”) for INFORMATION TECHNOLOGY SOLUTIONS & SERVICES, to which Contractor provided a response (“Response”); and

B. The City Selected Contractor’s Response as being in the best interest of the City and wishes to engage Contractor in providing the services/materials described in the Solicitation and Response.

In consideration of the reciprocal promises contained in the Agreement, and for other valuable and good consideration, which the Parties acknowledge the receipt and sufficiency of, the Parties agree to the following Terms & Conditions.

TERMS & CONDITIONS

1. Term. This Agreement is for a term beginning on March 1, 2018 and ending on February 28, 2023.

The use of the word “ Term” in the Agreement includes the aforementioned period as well as any applicable extensions or renewals in accordance with this Section 1.

1.1 Renewals. On the mutual written agreement of the Parties, the Term may be renewed up to a maximum of two (2), one (1) year periods. Any renewal(s) will be a continuation of the same terms and conditions as in effect immediately prior to the expiration of the then - current term.

1.2 Extension for Procurement Processes . Upon the expiration of the Term of this Agreement, including any renewals permitted herein, at the City’s sole discretion this Agreement may be extended on a month-to-month basis for a maximum of six (6) months to allow for the City’s procurement processes in the selection of a Contractor to provide the services/materials provided under this Agreement. The City will notify the Contractor in writing of its intent to extend the Agreement at least thirty (30) calendar days prior to the expiration of the Te rm. Any extension under this Subsection 1.2 will be a continuation of the same terms and conditions as in effect immediately prior to the expiration of the then - current term.

1.3 Delivery. Delivery shall be made to the location(s) contained in the Scope of W ork within thirty (30) days after receipt of an order. Title to Products and risk of loss or damage during shipment pass from Contractor to City upon delivery to the destination specified on the applicable purchase order (F.O.B. Destination, freight prepa id and allowed). Contractor agrees to deliver all products to be delivered F.O.B. destination, freight pre -paid and allowed to various locations throughout the City. In many cases within the City, the Contractor may be asked to deliver all products to the front counter within a given department. For special orders, the Parties agree to negotiate in good faith an alternative delivery date when necessary. Notwithstanding the foregoing, title to software will remain with the applicable licensor(s), and the City's rights therein are contained in the license agreement between such licensor(s) and the City.

2. Scope of Work . The Contractor will provide the necessary staff, services and associated resources to provide the City with the services, materials, and obligations attached to this Agreement as Exhibit A (“Scope of Work”) Contractor will be responsible for all costs and expenses incurred by Contractor that are incident to the performance of the Scope of Work unless otherwise

65 of 268

Page 3 of 32 ends

stated in Exhibit A. Contractor will supply all equipment and instrumentalities necessary to perform the Scope of Work. If set forth in Exhibit A , the City will provide Contractor’s personnel with adequate workspace and such other related facilities as may be required by Contractor to carry out the Scope of Work.

The Agreement is based on the Solicitation and Response which are hereby incorporated by reference into the Agreement as if written out and included herein. In addition to the requirements specifically set forth in the Scope of Work, the Parties acknowledge and agree that the Parties shall perform in accordance with all terms, conditions, specifications and other requirements set forth within the Solicitation and Response unless modified herein.

3. Orders. Orders must be placed with the Contractor by either a: (i) Purchase Order when for a one- time purchase; (ii) procurement card ; (iii) Delivery Order or Blanket Purchase Order for a requirements contract where multiple as -needed orders will be placed with the Con tractor; (iv) Executed Statement of Work (SOW); or (v) Executed Cloud Service Order (CSO) Form. The City may use the Internet to communicate with Contractor and to place orders as permitted under this Agreement. Unless explicitly stated in a separate writing executed by the Parties, t he terms and conditions on any order form, quote, or similar document provided by Contractor to the City will not take precedence over the language set forth in this Agreement or any of the documents outlined in Section 4 below.

4. Document Order of Precedence . In the event of any inconsistency between the terms of the body of the Agreement, Exhibits, Solicitation, and Response, the language of the documents will control in the following order.

a. Amendments to the Agreement
b. Agreement
c. Exhibits

1. Mesa Standard Terms & Conditions (Exhibit C)

2. Pricing (Exhibit B)

3. Scope of Work (Exhibit A)

4. Other Exhibits not listed above
d. Solicitation including any addenda
e. Contractor’s Response

5. Payment. Subject to the provisions of the Agreement, the City will pay Contractor the sum(s) described in Exhibit B (“Pricing”) in consideration of Contractor’s performance of the Scope of Work during the Term.

6. Pricing. Contractor’s pricing shall be in the format of a minimum percentage discount off a verifiable price index. Contractor may submit discounts for various manufacturers. At the time of purchase, Contractor may offer deeper discounts beyond the discounted price list, based on volume or other factors, as applicable. Minimum discounts will remain firm during the entirety of the Term of the Agreement, unless the Contractor requests to increase its discount percentage, and Pricing will include all charges that may be incurred in fulfilling requireme nt(s). In addition to decreasing prices for the balance of the Term due to a change in market conditions, a Contractor may conduct sales promotions involving price reductions for a specified lesser period. In the event a product is discontinued, Contractor will provide a product of the same or greater functionality, utilizing the discount structure.

It is the Contractor’s responsibility to provide the City with an up -to-date price list for the duration of the Agreement.

6.1 Prices. All pricing discounts shall be firm for the Term and all extensions or renewals of the Term except where otherwise provided in this Agreement, and will include all costs of the Contractor providing the materials/service including transportation, insurance and

66 of 268

Page 4 of 32 ends

warranty costs. No fuel surcharges will be accepted unless allowed in this Agreement.

The City shall not be invoiced at prices higher than those stated in the Agreement.

No price modifications will be accepted without proper request by the Contractor and response by the City’s Purchasing Division.

6.2 Price Adjustment. Any requests for reasonable price adjustments must be submitted in accordance with this Section. Requests for adjustment in cost of labor and/or materials must be supported by appropriate documentation. There is no guarantee the City will accept a price adjustment ; therefore, Contractor should be prepared for the Pricing to be firm over the Term of the Agreement. The City is only willing to entertain price adjustments based on an increase to Contractor’s actual expenses or other reasonable adjustment in providing the services/materials under the Agreement. If the City agrees to the adjusted price terms, the City shall issue written approval of the change.

During the sixty (60) day period prior to the expiration of the then-current term date of the Agreement, the Contractor may submit a written request to the City to allow an increase to the prices in an amount not to exceed the twelve (12) month change in the Consumer Price Index for All Urban Consumer s (CPI-U), US City Average, All Items, Not Seasonally Adjusted as published by the U.S. Department of Labor, Bureau of Labor Statistics ( http://www.bls.gov/cpi/home.htm). The City shall review t he request for adjustment and respond in writing; such response and approval shall not be unreasonably withheld.

6.3 Renewal and Extension Pricing . Any extension of the Agreement will be at the same pricing as the initial term. If the Agreement is renewed in accordance with Section 1, pricing may be adjusted for amounts other than inflation that represent actual costs to the Contractor based on the mutual agreement of the Parties. Contractor may submit a request for a price adjustment along with appropriate supporting documentation demonstrating the cost to the Contractor. Renewal prices shall be firm for the term of the renewal period and may be adjusted thereafter as outlined in the Subsection 6.2. There is no guarantee the City will accept a price adjustment.

6.4 Invoices. Payment will be made to Contractor following the City’s receipt of a properly completed invoice. Any issues regarding billing or invoicing must be directed to the City Department/Division requesting the service or material from the Contractor. A prop erly completed invoice should contain, at a minimum, all of the following:

a. Contractor name, address, and contact information;
b. City billing information;
c. City contract number as listed on the first page of the Agreement; d. Invoice number and date;
e. Payment terms;
f. Date of service or delivery;
g. Description of materials or services provided;
h. If materials provided, the quantity delivered and pricing of each unit; i. Applicable taxes; and
j. Total amount due.

6.5 Payment of Funds . Contractor acknowledges the City may, at i ts option and where available use a Procurement Card/e -Payables to make payment for orders under the Agreement; otherwise, payment will be th rough a traditional method of a check or Electronic Funds Transfer (EFT) as available.

67 of 268

Page 5 of 32 ends

6.6 Disallowed Costs, Overpayment. If at any time the City determines that a cost for which payment was made to Contractor is a disallowed cost, such as an overpayment or a charge for materials/service not in accordance with the Agreement, the City will notify Contractor in writing of the disallowance; such notice will state the means of correction which may be, but is not limited to, adjustment of any future claim/invoice submitted by Contractor in the amount of the disallowance or to require repayment of the disallowed amount by Contractor. Contractor will be provided with the opportunity to respond to the notice.

7. Insurance.

7.1 Contractor must obtain and maintain at its expense throughout the Term of the Agreement, at a minimum, the types and amounts of insurance set forth in this Section 7 from insurance companies authorized to do business in the State of Arizona; the insurance must cover the materials/service to be provided by Contractor under the Ag reement. For any insurance required under the Agreement, Contractor will name the City of Mesa, its agents, representatives, officials, volunteers, officers, elected officials, and employees as additional insured, as evidenced by providing either an addit ional insured endorsement or proper insurance policy excerpts.

7.2 Nothing in this Section 7 limits Contractor’s responsibility to the City. The insurance requirements herein are minimum requirements for the Agreement and in no way limit any indemnity promise(s) contained in the Agreement.

7.3 The City does not warrant the minimum limits contained herein are sufficient to protect Contractor and subcontractor(s) from liabilities that might arise out of performance under the Agreement by Contractor, its agents, representatives, employees, or subcontractor(s).

Contractor is encouraged to purchase additional insurance as Contractor determines may be necessary.

7.4 Each insurance policy required under the Agreement must be in effect at or prior to the execution of the Agreement and remain in effect for the Term of the Agreement.

7.5 Prior to the execution of the Agreement, Contractor will provide the City with a Certificate of Insurance (using an appropriate “ACORD” or equivalent certificate) signed by the issuer with applicable endorsements. The City reserves the right to request additional copies of any or all of the policies, endorsements, or notices relating thereto required under the Agreement.

7.6 When the City requires a Certificate of Insurance to be furnished, Cont ractor's insurance is primary of all other sources available. When the City is a certificate holder and/or an additional insured, Contractor agrees no policy will expire, be canceled, or be materially changed to affect the coverage available without advance written notice to the City.

7.7 The policies required by the Agreement must contain a waiver of transfer rights of recovery (waiver of subrogation) against the City, its agents, representatives, officials, volunteers, officers, elected officials, and emplo yees for any claims arising out of the work of Contractor.

7.8 All insurance certificates and applicable endorsements are subject to review and approval by the City's Risk Management Division.

7.9 Types and Amounts of Insurance . Contractor must obtain and retai n throughout the term of the Agreement, at a minimum, the following:

7.9.1 Worker’s compensation insurance in accordance with the provisions of Arizona law. If Contractor operates with no employees, Contractor must provide the City

68 of 268

Page 6 of 32 ends

with written proof Contractor has no employees. If employees are hired during the course of this Agreement, Contractor must procure worker’s compensations in accordance with Arizona law.

7.9.2 The Contractor shall maintain at all times during the term of this contract, a minimum amount of $1 million per occurrence/$2 million aggregate Commercial General Liability insurance, including Contractual Liability. For Commercial General Liability insurance, the City of Mesa, their agents, officials, volunteers, officers, elected officials or employees shall be named as additional insured, as evidenced by providing an additional insured endorsement.

7.9.3 Automobile liability, bodily injury and property damage with a limit of $1 million per occurrence including owned, hired and non-owned autos.

8. Requirements Contract. Contractor acknowledges and agrees the Agreement is a requirements contract; the Agreement does not guarantee any purchases will be made (minimum or maximum).

Orders will only be placed when the City identifies a need and issues a purchase order or a written notice to proceed. The City reserves the right to cancel purchase orders or a notice to proceed within three (3) business days of issuance; any such cancellation will be in writing. Should a purchase order or notice to proceed be canceled, the City agrees to reimburse Contractor for any actual and documented costs incurred by Contractor. The City will not reimburse Contractor for any avoidable costs incurred after receipt of cancellation including, but not limited to, lost profits, shipment of materials, or performance of services. The City reserves the right to purchase contracted items through other sources if determined in the best interests of the City to do so.

9. Notices. All notices to be given pursuant to the Agreement will be delivered to the Contractor at the address listed on Page 1 of this Agreement. Notice will be delivered pursuant to the requirements set forth the Mesa Standard Terms and Conditions that are attached to the Agreement as Exhibit C.

10. Representations of Contractor. To the best of Contractor’s knowledge, Contractor agrees that:

a. Contractor has no obligations, legal or otherwise, inconsistent with the terms of the Agreement or with Contractor’s undertaking of the relationship with the City;

b. Performance of the services called for by the Agreement do not and will not violate any applicable law, rule, regulation, or any proprietary or other right of any third party;

c. Contractor will not use in the performance of Contractor’s responsibilities under the Agreement any proprietary information or trade secret of a former employer of its employees (other than City, if applicable); and

d. Contractor has not entered into and wi ll not enter into any agreement, whether oral or written, in conflict with the Agreement.

11. Mesa Standard Terms and Conditions. Exhibit C to the Agreement is the Mesa Standard Terms and Conditions as modified by the Parties, which are incorporated by reference into the Agreement as though fully set forth herein. In the event of any inconsistency between the terms of the Agreement and the Mesa Standard Terms and Conditions, the language of the Agreement will control. The Parties or a Party are referred to as a “party” or “parties” in the Mesa Standard Terms and Conditions. The Term is referred to as the “term” in the Mesa Standard Terms and Conditions.

12. Counterparts and Facsimile or Electronic Signatures. This Agreement may be executed in two (2) or more counterparts, each of which will be deemed an original and all of which, taken together, will constitute one agreement. A facsimile or other electronically delivered signature to the

69 of 268

70 of 268

EXHIBIT A

SCOPE OF WORK

Page 8 of 32 ends

1. MINIMUM REQUIREMENTS. Contractor must meet the following minimum qualifications:
a. A full range of information technology solution products and services to meet varying requirements of governmental agencies.
b. Have a strong national presence as a computer solutions provider. c. Have a distribution model capable of delivering products, free of charge, in a timely manner on a nationwide basis.
d. Have a demonstrated sales presence.
e. Ability to provide a toll-free telephone and state of the art electron ic facsimile and internet ordering and billing capabilities.
f. Be able to meet the minimum requirements of the cooperative purchasing program detailed herein.

2. ORDERING. Although the City is open to alternate ordering methods, the primary methods for customers placing orders with the Contractor is through the following:

a. Online
b. Telephone
c. Fax
d. Email

3. SCOPE OF PRODUCTS . Contractor will provide the ability to purchase a comprehensive, wide variety of Information Technology Solution Products including , but not limited to , the following categories:

a. Personal Computer Systems: National brand name desktop PCs, notebooks and laptops from Enterprise Tier and Middle Tier Contractors that are business related computers, manufactured by companies, such as, Apple, COMPAQ, Dell, Gateway, Hewlett Packard, IBM / Lenovo and Toshiba.

b. Standard Business Workstation : These will be used for typical tasks, which will include word processing, spreadsheet analysis, database management, business graphics, statistical analysis, internet, and other office automation activities. Product will include the operating system license, software media and documentation in the hardware shipment.

c. High End Workstation: These will be used by application developers using GIS, CASE or other high -level language development tools, Computer Aided Design and Drafting professional, Internet Application developers or other sophisticated application work.

Product will include the operating system license, software media and documentation in the hardware shipment.

d. Laptop Computer or Notebook: These will be used by traveling or remote access users for typical office automation and busine ss productivity use. With a port replicator or docking station, it may also be used as a standard desktop. Product will include the operating system license, software media and documentation in the hardware shipment.

e. Network Equipment: This includes equipment primarily used for communications over an IP network. This includes layer 2 and layer 3 switches, routers, area wireless access points, point-to-point wireless access, optics, media interfaces (i.e. serial, T1, T3, OC3) and fiber channel. Class of equipment should include home office, small and medium business, and enterprise. Contractors may include, but not limited to, Cisco Systems, Dell, Juniper Networks, HP, Extreme Networks, Enterasys Networks, D -Link, Netgear, and Brocade Communications Systems.

71 of 268

EXHIBIT A

SCOPE OF WORK

Page 9 of 32 ends

f. Monitors: These will include plug and play compatible monitors that are manufactured for the above systems and/or any other brand that may be specifically called for by the ordering entity and which meet the most current UL and OSHA requirements.

g. Computer and Network Products and Peripherals : Complete availability of major manufacturers Product lines on items such as, but not limited to RAM, graphic accelerator cards, network interface cards, cables, printers, scanners, ke yboards, drives, memory cards, cables, batteries, etc.

h. Services:

i. Services means such as, consulting, technical support, trade-ins, repair, design, analysis, configuration, implementation, installation, training, and maintenance, etc. In addition, services which are related to the design, use or operation of the Products being purchased such as system configurations, testing, hardware/software installation, upgrades, imaging, etc. as described generally in this Agreement and as more particularly described in a Statement of Work or SOW (meaning a document in electronic or written form that is signed and delivered by each of the Parties for the performance of Services.
ii. Cloud Computing means third party cloud computing and storage services, where Contractor acts as a rebiller only and has no control over the delivery of the cloud computing and storage services. City acknowledges that the cloud service provider, and not Contractor, will be responsible for performance of the Cloud Services. Also, before Contractor can sell cloud computing and/or storage services from a third party to the City, City must execute an agreement governing said cloud computing and/or storage services with the third-party cloud services provider.

i. Comprehensive Product Offering: Contractor’s catalog and Services set forth in Exhibit B shall be available. The City reserves the right to accept or reject any or all items offered.

j. Financing: Options available such as lease programs and conditional sales contracts.

4. LICENSES. The City may be required to sign a separate agreement, rider or End User Licensing Agreement (“EULA”) , or such other terms as required by manufacturers , software publisher, or cloud service provider.

5. DEFECTIVE PRODUCT . All defective Products shall be replace d and exchanged by the Contractor. The cost of transportation, re -shipping or other like expenses shall be paid by the Contractor and in the case of certain, special orders, other reasonable charges may be paid by the Contractor as defined in the order or as otherwise agreed to by the Parties . All replacement Products must be received by the City within seven (7) days of initial notification , when such products are in Contractor stock; if replacement Product is not in Contractor’s stock, Contractor will use commercially reasonable efforts to order the product within one (1) business day of the initial notification from the City and will ensure product is received within seven (7) days after Contractor’s receipt of the product.

72 of 268

EXHIBIT B

PRICING

Page 10 of 32 ends

Item
# Product Product / Group Discount Manufacturer Name
1) Group 1 - Systems
1) Desktops 2.10% All
2) Notebooks 2.10% All
3) Tablets 2.25% All
4) Servers
(1 Processor, 2 Processor, 4+
Processor, Blade, Tower, Unix,
Handhelds, etc.)

4.00% All
2) Group 2 - Input Devices
5) Keyboards 6.75% All
6) Mice 6.75% All
7) Imaging Scanners 3.00% All
8) POS Scanners 3.00% All
9) Pointing Devices 3.50% All
10) Bar Code Readers 4.25% All
11) Audio Input 15.00% All
12) Input Adapters 5.00% All
13) PC and Network Cameras 5.50% All
14) Input Cables 15.00% All
15) Input Accessories 6.75% All
3) Group 3 - Output Devices
16) Displays 3.50% All
17) Printers 3.00% All
18) Inkjet Printers 3.00% All
19) Inkjet Photo Printers 3.00% All
20) Laser Printers 3.00% All
21) Label Printers 4.25% All
22) Dot Matrix Printers 3.00% All
23) Multi-Function Printers 3.00% All
24) Wide Format Printers 3.00% All
25) Multi-Function Inkjet Printers 3.00% All
26) Wide Format Printers 3.00% All
27) Fax Machine Printers 3.00% All
28) Printer Accessories 3.00% All
29) Projectors 3.50% All
30) Projector Accessories 3.50% All
31) Audio Input 15.00% All
32) Video Cards 3.50% All

73 of 268

EXHIBIT B

PRICING

Page 11 of 32 ends

33) Sound Cards 3.50% All
34) Output Accessories 6.75% All
35) Printer Consumables 3.00% All
4) Group 4 - Memory
36) Desktop 13.00% All
37) Flash 5.50% All
38) Networking 13.00% All
39) Notebook 13.00% All
40) Printer / Fax 13.00% All
41) Server 13.00% All
5) Group 5 - Storage Devices
42) Adapters Fiber Channel 5.50% All
43) Adapters FireWire / USB 5.50% All
44) Adapters IDE/ATA/SATA 5.50% All
45) Adapters RAID 5.50% All
46) Adapters SCSI 5.50% All
47) Bridges & Routers 5.50% All
48) Disk Arrays 5.50% All
49) Disk Arrays JBOD 5.50% All
50) Drives Magneto-Optical 5.50% All
51) Drives Removable Disks 5.50% All
52) Fiber Channel Switches 5.50% All
53) Hard Disks - External 5.50% All
54) Hard Disks - Fiber Channel 5.50% All
55) Hard Disks - IDE/ATA/S 5.50% All
56) Hard Disks - Notebook 5.50% All
57) Hard Disks - SCSI 5.50% All
58) Networking Accessories 5.50% All
59) Optical Drives - CD-ROM 5.50% All
60) Optical Drives - CD-RW 5.50% All
61) Optical Drives - DVD-CD 5.50% All
62) Optical Drives - DVD-RW 5.50% All
63) Storage Accessories 5.00% All
64) Storage - NAS 5.00% All
65) Storage - SAN 5.00% All
66) Tape Autoloaders -AIT 5.00% All
67) Tape Autoloaders - DAT 5.00% All
68) Tape Autoloaders - DLT 5.00% All
69) Tape Autoloaders - LTO 5.00% All
70) Tape Drives - 4mm 5.00% All

74 of 268

EXHIBIT B

PRICING

Page 12 of 32 ends

71) Tape Drives - 8mm/VXA 5.00% All
72) Tape Drives - AIT 5.00% All
73) Tape Drives - DAT 5.00% All
74) Tape Drives - DLT 5.00% All
75) Tape Drives - LTO/Ultrium 5.00% All
76) Tape Drives SDLT 5.00% All
77) Tape Drives - Travan 5.00% All
6) Group 6 - Network
Equipment
78) 10/100 Hubs & Switches 5.50% All
79) Bridges & Routers 5.50% All
80) Gigabit Hubs & Switches 5.50% All
81) Concentrators & Multiplexers 5.50% All
82) Hardware Firewalls 5.50% All
83) Intrusion Detection 5.50% All
84) KVM 4.00% All
85) Modems 5.50% All
86) Network Test Equipment 5.50% All
87) Network Adapters 5.50% All
88) Network Cables 15.00% All
89) Network Accessories 5.50% All
90) Repeaters & Transceivers 5.50% All
91) Wireless LAN Accessories 5.50% All
92) Token Authentication 5.50% All
93) 10G Fiber Optic Transceivers 5.50% All
94) 1G Fiber Optic Transceivers 5.50% All
7) Group 7 - Software
95) Licensing Packages
(e.g. Microsoft)

4.00% All
96) Licensing Backup 4.00% All
97) Licensing Barcode/OC 4.00% All
98) Licensing Business Application 4.00% All
99) Licensing CAD/CAM 4.00% All
100) Licensing - Cloning 4.00% All
101) Licensing - Computer Services 4.00% All
102) Licensee - Database 4.00% All
103) Licensing - Development 4.00% All
104) Licensing - Entertainment 4.00% All
105) Licensing - Financial 4.00% All
106) Licensing - Flow Chart 4.00% All
107) Licensing - Graphic Design 4.00% All
108) Licensing - Handheld 4.00% All

75 of 268

EXHIBIT B

PRICING

Page 13 of 32 ends

109) Licensing - Network OS 4.00% All
110) Licensing - OS 4.00% All
111) Licensing - Personal Organization 4.00% All
112) Licensing - Presentation 4.00% All
113) Licensing - Reference 4.00% All
114) Licensing - Report Analysis 4.00% All
115) Licensing - Spreadsheet 4.00% All
116) Licensing - Utilities 4.00% All
117) Licensing - Warranties 4.00% All
118) Licensing - Web Development 4.00% All
119) Licensing - Word Processing 4.00% All
120) Software - Backup 4.00% All
121) Software - Barcode / OCR 4.00% All
122) Software - Business Application 4.00% All
123) Software - CAD/CAM 4.00% All
124) Software - Cloning 4.00% All
125) Software - Computer Services 4.00% All
126) Software - Database 4.00% All
127) Software - Development 4.00% All
128) Software - Entertainment 4.00% All
129) Software - Financial 4.00% All
130) Software - Flow Chart 4.00% All
131) Software - Graphic Design 4.00% All
132) Software - Handheld 4.00% All
133) Software - OS 4.00% All
134) Software - Personal Organization 4.00% All
135) Software - Presentation 4.00% All
136) Software - Reference 4.00% All
137) Software - Report Analysis 4.00% All
138) Software - Spreadsheet 4.00% All
139) Software - Utilities 4.00% All
140) Software - Warranties 4.00% All
141) Software - Web Development 4.00% All
142) Software - Word Processing 4.00% All
8) Group 8 - Media Supplies
143) Media - 4mm tape 5.50% All
144) Media - AIT tape 5.50% All
145) Media - DAT tape 5.50% All
146) Media - DLT tape 5.50% All

76 of 268

EXHIBIT B

PRICING

Page 14 of 32 ends

147) Media LTO / Ultrium tape drive 5.50% All
148) Media - Magneto - Optical 5.50% All
149) Media - Optical 5.50% All
150) Media - SLR tape 5.50% All
151) Media - Travan tape 5.50% All
152) Media - VXA tape 5.50% All
153) Media - zip 5.50% All
9) Group 9 - Collaboration &
IP Telephony
154) IP phones 4.25% All
155) Video conferencing products 4.25% All
156) Voice gateways / servers 4.25% All
157) Headsets 4.25% All
158) Audio conferencing products 4.25% All
159) Analog phones 4.25% All
160) Accessories 4.25% All
10) Group 10 - Other
161) Advanced Integration 3.00% All
162) Asset Disposal 3.00% All
163) Asset Management 3.00% All
164) Cables 15.00% All
165) Cables - custom 15.00% All
166) Cables - printer 15.00% All
167) Complex warranties 3.00% All
168) Desktop Accessories 6.75% All
169) Display Accessories 3.50% All
170) Electronic Services 3.00% All
171) Handheld Accessories 6.75% All
172) Imaging Accessories 6.75% All
173) Imaging - Camcorders 3.50% All
174) Imaging - Digital Cameras 3.50% All
175) Internal Lab Service 3.00% All
176) Lab fees 3.00% All
177) Managed Services 3.00% All
178) Miscellaneous solutions 3.00% All
179) Mounting hardware for vehicles 2.50% All
180) Networking Warranties 3.50% All
181) Notebook Accessories 2.50% All
182) Notebook Batteries 5.00% All
183) PC Lab order services 3.00% All
184) POS Accessories 4.25% All

77 of 268

EXHIBIT B

PRICING

Page 15 of 32 ends

185) POS Displays 4.25% All
186) Power Accessories 5.00% All
187) Power Surge Protection 5.00% All
188) Power UPS 5.00% All
189) Server Accessories 4.00% All
190) Service Charge 2.00% All
191) System Components 13.00% All
192) Training Courses 3.00% All
193) Training Reference Manuals 3.00% All
194) Warranties - Electronic 3.00% All
195) iPAD / Tablet Stylus 6.75% All
196) Mouse / Wrist Pads 6.75% All
197) Security Locks and Hardware 6.75% All
198) Tools 6.75% All
199) Document Scanner Accessories 3.00% All
200) Flatbed Scanners 3.00% All
201) Mobile Scanners 3.00% All
202) Network Scanners 3.00% All
203) Sheet fed Scanners 3.00% All
204) Wide Format Scanners 3.00% All
205) Workgroup / Department
Scanner

3.00% All
206) Build to Order Desktops 2.10% All
207) Nettop 3.00% All
208) Point of Sale 4.25% All
209) Ultra Small Form Factor 2.10% All
210) Apple / Mac Memory Upgrades 13.00% All
211) Chips / SIMMs/SIPPs / ROMs 13.00% All
212) Computer Cases 13.00% All
213) CPUs / Fans 13.00% All
214) Memory Accessories 13.00% All
215) Motherboards / Chassis 13.00% All
216) 1 - 2 port Serial Boards 13.00% All
217) 3+ port Serial Boards 13.00% All
218) Console Server 4.00% All
219) Device Server 4.00% All
220) Terminal Server 4.00% All
221) Content Management 4.00% All
222) Firewall / VPN Appliances 5.50% All

78 of 268

EXHIBIT B

PRICING

Page 16 of 32 ends

223) Multifunction Security
Appliances

5.50% All
224) Network Camera Accessories 5.50% All
225) Network Cameras 5.50% All
226) Physical/Environmental Security 5.50% All
227) Security Appliance Accessories 5.50% All
228) Security Tokens 5.50% All
229) Unified Threat Management 5.50% All
230) 2-way Radios / Walkie Talkies 6.75% All
231) Apple Notebooks 2.50% All
232) Convertible PCs / Slate PCs /
iPAD

2.25% All
233) iPAD 2.25% All
234) Slate Tablet Computers 2.25% All
235) GPS / PDA 6.75% All
236) Wireless Communication Devices 2.50% All
237) Batteries 5.00% All
238) Power Supplies / Adapters 5.00% All
239) Rackmountain Equipment 5.00% All
240) Remote Power Management 5.00% All
241) Surge Suppressors 5.00% All
242) UPS / Battery Backup 5.00% All
243) 14" & smaller LCD Display 3.50% All
244) 15-19" LCD Display 3.50% All
245) 15-19" Wide LCD Display 3.50% All
246) 15-19" Wide LED Display 3.50% All
247) 20-30" LCD Display 3.50% All
248) 20-30" Wide LCD Display 3.50% All
249) 20-30" Wide LED Display 3.50% All
250) PCoIP and Zero Client Displays 3.50% All
251) Arm Mounts 3.50% All
252) Ceiling Mounts 3.50% All
253) Combo Mounts 3.50% All
254) Desktop Stands / Risers 3.50% All
255) Flat Wall Mounts 3.50% All
256) Mount Accessories 3.50% All
257) Pole Display 4.25% All
258) Stands / Carts / Feet 3.50% All
259) Tilt Wall Mounts 3.50% All

79 of 268

EXHIBIT B

PRICING

Page 17 of 32 ends

260) C-Cure Products 4.00% All
261) Istar Products 5.50% All
11) Group 11 - Services

SERVICE

STANDARD
HOURLY
RATE

DISCOUNT FROM

STANDARD RATE
Design and Analysis
Please see
CDW•G's
Professional
Services
Offering below
for descriptions
of CDW•G's
Professional
Services.

Configuration %
Implementation %
Installation %
Training %
Maintenance & Support %
CDW Configuration Services 5%
12)
Group 12 - Additional
Products/Services Not
Identified
Please see CDW•G's Configuration
Services Pricelist below for descriptions
and pricing of CDW•G's Configuration
Services.

Apple Products for eligible
Government and Educational Entities 0.50%
CDW•G has conformed to the National Pricing structure aligning to National IPA's product taxonomy, however, CDW•G will manage the resultant contract according to CDW•G's Product Tree below, which shall govern all purchases and provides more breadth and a more complete representation of the CDW•G Catalog. All discounts will be applied by product category listed below to CDW•G's Nationally Advertised Pricing which is publicly verifiable at www.cdwg.com.

CDW•G Product Tree
Categories
Discount
Accessories 6.75%
Power, Cooling & Racks 5.00%
Desktop Computers 3.00%
PC Compatible Desktop Computer 2.10%
PC Compatible Workstation 3.00%
Blade PCs 3.00%
RISC Processor Workstation 3.00%
Thin Clients 3.00%
Web TV Access Unit 3.00%

80 of 268

EXHIBIT B

PRICING

Page 18 of 32 ends

Windows Based Terminals 3.00%
Data Storage / Drives 5.50%
Enterprise Storage 5.00%
Point of Sale/Data Capture 4.25%
Servers & Server Management 4.00%
Services (CDW Delivered) 0.00%
Notebook/Mobile Devices 2.50%
Notebook Computers 2.10%
Notebook Accessories 2.50%
Wireless Communication Devices 2.50%
Convertible PCs/Slate PCs/iPAD 2.25%
Chromebooks 0.00%
Netcomm Products 5.50%
Gigabit Switch 6.00%
Modular Switch Chassis 6.00%
Modular Switches 5.50%
Carts and Furniture 5.00%
Printing & Document Scanning 3.00%
Services (3rd Party Delivered) 0.00%
Warranties-Product Protection 3.50%
Software 4.00%
Collaboration Hardware 4.25%
Memory/System Components 13.00%
Video-Projection-Pro Audio 3.50%
Cables 15.00%
CDW Configuration Services 5.00%
Apple Products for Eligible Entities .50%

CDW•G will work with Manufacturers and the City or Participating Agencies, as applicable, post award to ensure they are aware of and participating in special manufacturer programs.

CDW•G Account Managers will work with the City or Participating Agencies, as applicable, post award to determine if large orders qualify to receive additional discounts. These discounts are dependent on order size, delivery schedule and will be negotiated with Manufacturers.

As Apple's largest Corporate Channel Partner in the U.S., CDW•G has negotiated to offer Apple Products to Eligible Government and Educational Entities at the discount listed above and in the pricing table in this Exhibit B.

81 of 268

EXHIBIT B

PRICING

Page 19 of 32 ends

CDW•G Professional Services Offering
Major Metro Service Areas
Washington, DC Raleigh Madison
New York City
Metro
Houston Wausau
Los Angeles Tampa Milwaukee
San Francisco Atlanta Appleton
San Diego National Grand Rapids
Boston Metro Dallas Indianapolis
Chicago Cincinnati Cleveland
Federal Detroit
Philadelphia Minneapolis
Seattle St. Louis/KC
Denver
Nashville
Portland

Services apply to both CDW•G executed professional s ervices and services which are sub -contracted through a CDW•G authorized third party provider. Hourly or fixed rates will be negotiated based on the customer, geography, scope of the professional service engagement, and level of engineer required to perform the service. CDW•G will create a Statement of Work (SOW) de tailing the exact scoping and pricing of the Services to be provided, which will be executed by CDW•G and the National IPA member prior to the start of Services. Sample SOW is included in our proposal. Expenses (T and E) may be an additional consideration depending on project specifics.

Solution Domain Discipline Technology Domain Role

Datacenter Storage
Data Migration Senior Consulting Engineer
EMC Senior Consulting Engineer
IBM Senior Consulting Engineer
VMWare Senior Consulting Engineer
NetApp Senior Consulting Engineer

Datacenter Networking & Enterprise Networking Infrastructure & Networking
Associate Consulting Engineer
Consulting Engineer
Senior Consulting Engineer
Principal Consulting Engineer
Technical Lead

Mobility
Client Management
Client Virtualization
Endpoint Management
Mobile Device
Management
Associate Consulting Engineer
Consulting Engineer
Senior Consulting Engineer
Principal Consulting Engineer
Technical Lead
VDI Citrix Senior Consulting Engineer

Security Network Security Network Security
Associate Consulting Engineer
Consulting Engineer
Senior Consulting Engineer
Principal Consulting Engineer
Technical Lead

82 of 268

EXHIBIT B

PRICING

Page 20 of 32 ends

Security Information Security Information Security
Penetration Testing
Gap Analysis (HIPAA gap, PCI Gap,
NIST)

Collaboration Communication Voice, Video
Collaboration
Associate Consulting Engineer
Consulting Engineer
Senior Consulting Engineer
Principal Consulting Engineer
Technical Lead

Collaboration Engagement Contact Center
Associate Consulting Engineer
Consulting Engineer
Senior Consulting Engineer
Principal Consulting Engineer
Technical Lead

Collaboration Productivity Information Worker
Associate Consulting Engineer
Consulting Engineer
Senior Consulting Engineer
Principal Consulting Engineer
Technical Lead

Consulting Advisory Services Consulting Advisory Services Consulting Advisory Services
CAS_Business_Analyst
CAS_Consulting_Services_Architect
CAS_Engagement_Manager
CAS_Technology_Architect
CAS_Business_Architect

Project & Program
Management Project & Program Management Project & Program Management
Project Admin
Project Manager
Senior Project Manager
Program Manager

CDW•G Configuration Services
Service
Group EDC Description

Advertised
Price
Contract
Discount
Contract
Ceiling
Price
Hardware Configurations and Priority Service
Priority 1625768 PRIORITY SERVICE $ 21.99 5% $ 20.89 Hardware 1706188 CDW Hardware Install for Server $ 32.99 5% $ 31.34 Hardware 1706189 CDW Hardware Install for DT-LT $ 17.99 5% $ 17.09 Hardware 1820627 CDW Hardware Install for Netcom $ 22.99 5% $ 21.84 Hardware 3558560 CDW MOBILE DEVICE SIM CARD INSTALL $ 9.99 5% $ 9.49 Hardware 2437037 CDW RACK CONFIG 1 CREDIT $ 82.99 5% $ 78.84 Hardware 3803338 CDW HARDWARE INSTALL FOR PRINTER $ 32.99 5% $ 31.34 Asset Tagging
Asset Tags 322170 CDW ASSET TAGS NO INSTALL MAIL ONLY $ 0.98 5% $ 0.93 Asset Tags 338519 CDW ASSET TAG W/O INSTALL $ 9.99 5% $ 9.49 Asset Tags 338521 CUSTOMER ASSET TAG CONFIG SERVICE $ 9.99 5% $ 9.49 Asset Tags 500814 CDW CREATE CUSTOM TAG/LABEL $ 29.99 5% $ 28.49 Asset Tags 500815 BASIC CUSTOM TAG $ 9.99 5% $ 9.49 Asset Tags 500817 INTERMEDIATE CUSTOM TAG $ 17.99 5% $ 17.09

83 of 268

EXHIBIT B

PRICING

Page 21 of 32 ends

Asset Tags 500818 ADVANCED CUSTOM TAG $ 22.99 5% $ 21.84 Asset Tags 537315 CDW CREATED CUSTOM TAG – MAIL ONLY $ 1.22 5% $ 1.16 Asset Tags 955862 CDWG UID TAG/LABEL $ 9.99 5% $ 9.49 Asset Tags 1095109 CDW RFID TAG $ 61.99 5% $ 58.89 Asset Tags 3465262 BASIC CUSTOM TAG W/BOX DUP TAG $ 10.99 5% $ 10.44 Asset Tags 3465269 CUSTOMER ASSET TAG W/BOX DUP REQ6330 $ 10.99 5% $ 10.44 Asset Tags 4347185 CUSTOMER ASSET TAG W BOX DUP REQ6247 $ 12.99 5% $ 12.34 Asset Tags 3465895 INTERMEDIATE CUSTM TAG W-BOX DUP TAG $ 21.99 5% $ 20.89 Asset Tags 3982815 ADV CUSTOM TAG W/BOX DUP $ 24.99 5% $ 23.74 Configuration Service Bundles
Bundle 2342089 CDW HW IMAGE CDW ASSET TAG-REQ1173 $ 45.99 5% $ 43.69 Bundle 2342092 CDW HW IMAGE BASIC CUSTM TAG-REQ1174 $ 52.99 5% $ 50.34 Bundle 2342096 CDW HW IMAG CUSTMR ASSET TAG-REQ1175 $ 52.99 5% $ 50.34 Bundle 2342098 CDW IMAG CSTMR ASSET TAG PRI-REQ1176 $ 46.99 5% $ 44.64 Bundle 2342102 CDW IMAGE CDW ASSET TAG PRI-REQ1177 $ 39.99 5% $ 37.99 Bundle 2342106 CDW HW IMAGE PRIORITY-REQ1178 $ 53.99 5% $ 51.29 Bundle 2423730 CDW HW IMAGE CDW ASSET PRI-REQ1193 $ 53.99 5% $ 51.29 Bundle 2423732 CDW HW IMG BSC CSTM TAG PRI-REQ1194 $ 59.99 5% $ 56.99 Bundle 2423734 CDW HW IMAG CUSTMR ASSET PRI-REQ1195 $ 59.99 5% $ 56.99 Bundle 2426793 CDW IMAGE CUSTMER ASSET TAG-REQ1197 $ 39.99 5% $ 37.99 Bundle 2426795 CDW IMAGE CDW ASSET TAG-REQ1198 $ 32.99 5% $ 31.34 Bundle 2426798 CDW HARDWARE IMAGE DEPLOY-REQ1199 $ 45.99 5% $ 43.69 Bundle 2853723 CDW IMAGE BASIC CUSTOM TAG-REQ1324 $ 39.99 5% $ 37.99 Bundle 2853726 CDW IMAGE BIOS CUSTOMIZATION-REQ1325 $ 39.99 5% $ 37.99 Bundle 3269810 CDW HW IMG INTRM TAG CMPTRAC REQ1901 $ 63.99 5% $ 60.79 Bundle 3327808 CDW LIGHT TOUCH IMAGE DEPLOY W-VPN $ 42.99 5% $ 40.84 Bundle 4008018 LEVEL 1 IOS\ETCH INSERT REQ 5075 $ 39.99 5% $ 37.99 Bundle 4008025 LEVEL 1 IOS\ETCH REQ 5076 $ 33.99 5% $ 32.29 Bundle 4041681 IOS LVL1 & SRVC CUST INSERT REQ5156 $ 28.99 5% $ 27.54 Bundle 4056755 INT CUST TAG&DUP + DATA CAP CONTRACT $ 21.99 5% $ 20.89 Bundle 4086733 CDW LT IMAGE DEPLOY W/VPN&BOX LABEL $ 44.99 5% $ 42.74 Bundle 4171085 COI SPECOPS & PROJECTMANGEMENT R5611 $ 569.99 5% $ 541.49 Diagnostics
Diagnostics 214266 CDW BURN IN 12 HOURS $ 21.99 5% $ 20.89 Imaging
Imaging 195856 CDW INSTALLING CUSTOM SERVER IMAGE $ 113.99 5% $ 108.29 Imaging 247489 HILL ROM CREATE CUSTOM RESTORE CD $ 49.99 5% $ 47.49 Imaging 266912 CDW APPLE IMAGE DEPLOYMENT $ 32.99 5% $ 31.34 Imaging 283926 CDW MASTER IMAGE CREATION CREDIT $ 183.99 5% $ 174.79 Imaging 379370 CDW INSTALLING CUSTOM PDA IMAGE $ 17.99 5% $ 17.09 Imaging 534223 CDW STANDARD IMAGE DEPLOYMENT DT/NB $ 32.99 5% $ 31.34 Imaging 763587 FLASH DRIVE IMAGING $ 9.99 5% $ 9.49 Imaging 763593 CDW USB RESTORE UPTO 16GB $ 39.99 5% $ 37.99 Imaging 809048 CDW MAINTAIN CUSTOM PC IMAGE-CREDIT $ 31.99 5% $ 30.39 Imaging 1640342 CDW INSTALLING ALTIRIS SERVER IMAGE $ 113.99 5% $ 108.29 Imaging 1926223 CDW TERMINAL IMAGE DEPLOYMENT $ 32.99 5% $ 31.34 Imaging 2691836 CDW ZERO TOUCH IMAGE DEPLOYMENT $ 32.99 5% $ 31.34 Imaging 2798606 CDW IMAGE MODEL MIGRATION CREDIT $ 113.99 5% $ 108.29

84 of 268

EXHIBIT B

PRICING

Page 22 of 32 ends

Imaging 2869570 CDW USB RESTORE UPTO 32GB $ 52.99 5% $ 50.34 Imaging 3652393 CDW CREATE CUSTOM RECOVERY PARTITION $ 353.99 5% $ 336.29 Imaging 3765107 SERVER RACKING ADV IMAGING SVC $ 219.99 5% $ 208.99 Imaging 3982809 CDW USB RESTORE SVC UPTO 64GB $ 63.99 5% $ 60.79 Imaging 4008336 CHROME WHITE GLOVE SERVICE TIER1 $ 22.93 5% $ 21.78 Imaging 4008354 CHROME WHITE GLOVE SERVICE TIER2 $ 24.93 5% $ 23.68 Imaging 4419882 CHROME UNMANAGED KIOSK APP INSTALL $ 28.92 5% $ 27.47 Imaging 4086723 CDW IMAGE DEPLOY W BOX LABEL REQ6281 $ 33.99 5% $ 32.29 Imaging 4086738 CDW SCCM SRV-ZERO TOUCH W/BOX LABEL $ 33.99 5% $ 32.29 Laser Etching / Color Branding
Laser Etching 1461344 CDW LASER ETCHING-TIER 1 STATIC SML $ 11.00 5% $ 10.45 Laser Etching 2815190 CDW LASER ETCHING-TIER 2 STATIC LRG $ 15.00 5% $ 14.25 Laser Etching 2815191 CDW LASER ETCHING-TIER 3 DYNAMIC $ 22.00 5% $ 20.90 Color Branding 3223260 CDW COLOR BRANDING TEMPLATE $ - 5% $ - Color Branding 4100630 CDW COLOR BRANDING TIER 1 $ 15.00 5% $ 14.25 Color Branding 3223250 CDW COLOR BRANDING TIER 2 $ 22.00 5% $ 20.90 Color Branding 3436605 CDW COLOR BRANDING TIER 3 $ 30.00 5% $ 28.50 Mobile Carts
Mobile Carts 4466480 CDW CHROMEBOOK WIRE CART CONFIG $ 120.00 5% $ 114.00 Netcom
Netcom 311718 CDW NETWORK & SECURITY DEVICE CONFIG $ 40.00 5% $ 38.00 Netcom 1550455 CDW NETWORK & SEC CHASSIS CONFIG BUN $ 100.00 5% $ 95.00 Netcom 1550460 CDW NETWORK & SEC DEVICE CONFIG BUN $ 65.00 5% $ 61.75 Netcom 2394839 CDW NETWORK & SEC CHASSIS CONFIG $ 70.00 5% $ 66.50 Netcom 2432019 CDW VPN DOMAIN JOIN ONLY $ 8.00 5% $ 7.60 Netcom 3628500 CDW VPN DOMAIN JOIN ONLY-PCA $ 8.00 5% $ 7.60 Netcom 3651585 CDW AP/ENDPOINT PROVISIONING $ 30.00 5% $ 28.50 Netcom 4121801 CDW AP/ENDPOINT FIRMWARE UPDATE $ 16.00 5% $ 15.20 Netcom 4219966 CDW CLIENT VPN CONFIGURATION $ 12.00 5% $ 11.40 Other
Other 504311 CDW HP ILO ACTIVATION $ 12.00 5% $ 11.40 Other 872360 CDW SYSTEM BIOS/FIRMWARE UPG $ 16.00 5% $ 15.20 Other 1197175 CDW CUSTOM IP CONFIGURATION $ 12.00 5% $ 11.40 Other 1197180 CDW BIOS CUSTOMIZATION $ 5.00 5% $ 4.75 Other 1369901 CDW SRVC CUSTOM ADDED INSERTS $ 5.00 5% $ 4.75 Other 1369904 CDW DDS / COMPUTRACE ACTIVATION $ 5.00 5% $ 4.75 Other 1369905 CDW DATA CAPTURE & TRACKING SRVC $ 5.00 5% $ 4.75 Other 1713539 CDW SPECIAL CONFIG REQ - 1 CREDIT $ 5.00 5% $ 4.75 Other 1713542 CDW SPECIAL CONFIG REQ - 6 CREDITS $ 30.00 5% $ 28.50 Other 1713544 CDW SPECIAL CONFIG REQ - 12 CREDITS $ 60.00 5% $ 57.00 Other 2366694 CDW APPLE IOS CUSTOMIZATION LVL 1 $ 15.00 5% $ 14.25 Other 2366709 CDW APPLE IOS CUSTOMIZATION LVL 2 $ 30.00 5% $ 28.50 Other 2613286 CDW ANDROID CUSTOMIZATION LVL 1 $15.00 5% $ 14.25 Other 2613287 CDW ANDROID CUSTOMIZATION LVL 2 $ 30.00 5% $ 28.50 Other 2671476 CDW SCREEN OVERLAY INSTALL SERVICE $ 8.00 5% $ 7.60 Other 2696504 CDW Hard Drive Data Encryption DT/NB $ 12.00 5% $ 11.40 Other 2828923 CDW SAS RAID Activation $ 12.00 5% $ 11.40 Other 2858009 CDW KINDLE AD REMOVAL REQ1329 $ 30.00 5% $ 28.50

85 of 268

EXHIBIT B

PRICING

Page 23 of 32 ends

Other 3553290 CDW APPLE ID CREATION $ 5.00 5% $ 4.75 Other 3899153 CDW VPRO BASIC ACTIVATION REQ4717 $ 5.00 5% $ 4.75 Other 4248044 CDW LENOVO IMM ACTIVATION $ 12.00 5% $ 11.40 Other 4176320 CDW ASSET MGMNT UPDATE SVC REQ 5634 $ 1.25 5% $ 1.19 Software
Software 76056 CDW APPLICATION INSTALL DT/NB $ 36.00 5% $ 34.20 Software 76980 CDW NETWORK OPERATING SYSTEM INSTALL $ 200.00 5% $ 190.00 Software 346243 CDW STD WINDOWS CLIENT OS INSTALL $ 90.00 5% $ 85.50 Software 931000 CDW NETWORK APPLICATION INSTALL $ 100.00 5% $ 95.00 Software 1197183

CDW APPLICATION UPDATES AND
MAINTENANCE $ 22.00 5% $ 20.90
Software 1278296 CDW OEM MFG OS INSTALLATION $ 90.00 5% $ 85.50 Software 1291101 CDW LINUX INSTALLATION OS-ALL VERS $ 120.00 5% $ 114.00 Software 1550439 SUN SOLARIS INSTALLATION – ALL VERSIONS $ 200.00 5% $ 190.00 Software 1550447 VMWARE INSTALLATION – ALL VERSIONS $ 70.00 5% $ 66.50 Software 3803347 CDW SOFTWARE CONFIG FOR PRINTER $ 24.00 5% $ 22.80 Software 3982800 CDW HDD OS SWAP SVC REQ5012 $ 36.00 5% $ 34.20 Configuration Project Management / COI
Proj. Mgmt 3110955 CDW CONFIG PROJECT COORD HRLY CREDIT $ 75.00 5% $ 71.25 Proj. Mgmt 4289890 CDW CONFIG PM 150 HRLY CHARGE $ 150.00 5% $ 142.50 Proj. Mgmt 3536706 CDW COI PROJ COORD /OPS COST $ 5,000.00 5% $ 4,750.00 Proj. Mgmt 3543509 CDW CONFIG PROJECT COORD CREDIT/UNIT $ 5.00 5% $ 4.75 Proj. Mgmt 3752290 CDW PROJ MNGMNT CONFIG AP SVC $ 7.00 5% $ 6.65 Proj. Mgmt 4086747 CONFIGS SERVICES PROJ MGMT(PER UNIT) $ 1.00 5% $ 0.95 Proj. Mgmt 4087191 CONFIGS SERVICES PROJ MGMT(PER UNIT) $ 0.50 5% $ 0.48 COI 3268855 CDW CONFIG PROJECT COORD COI SVC $ 300.00 5% $ 285.00 COI 3561536 COI OPS PALLET RECEIVING/PROCESSING $ 480.00 5% $ 456.00 COI 4439488 COI OPS PALLET/MONTH REC/PRO $ 40.00 5% $ 38.00 COI 3659769 CDW COI OPERATIONAL EXPENSE WITH SN $ 10.00 5% $ 9.50 COI 3827583 COI TEMP TAG NO INSTALL E-MAIL $ 10.00 5% $ 9.50

86 of 268

EXHIBIT C

MESA STANDARD TERMS AND CONDITIONS

Page 24 of 32 ends

1. INDEPENDENT CONTRACTOR. It is expressly understood that the relationship of Contractor to the City will be that of an independent contractor. Contractor and all persons employed by Contractor, either directly or indirectly, are Contractor’s employees, not City employees.

Accordingly, Contractor and Contractor’s employees are not entitled to any benefits provided to City employees including, but not limited to, health benefits, enrollment in a retirement system, paid time off or other rights afforded City employees. Contractor employees will not be regarded as City employees or agents for any purpose, including the payment of unemployment or workers’ compensation. If any Contractor employees or subcontractors assert a claim for wages or other employment benefits against the City, Contractor will defend, indemnify and hold harmless the City from all such claims.

2. SUBCONTRACTING. Contractor may not subcontract work under this Agreement without the express written permission of the City. If Contractor has received authorization to subcontract work, it is agreed that all subcontractors performing work under the Agreement must comply with its provisions. Further, all agreements between Contractor and its subcontractors must provide that the terms and conditions of this Agreement be incorporated therein.

3. ASSIGNMENT. This Agreement may not be assigned either in whole or in part without first receiving the City’s written consent. Any attempted assignment, either in whole or in part, without such consent will be null and void and in su ch event the City will have the right at its option to terminate the Agreement. No granting of consent to any assignment will relieve Contractor from any of its obligations and liabilities under the Agreement.

4. SUCCESSORS AND ASSIGNS, BINDING EFFECT. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.

5. NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for the exclusive benefit of the parties. Nothing set forth in this Agreement is intended to create, or will create, any benefits, rights, or responsibilities in any third parties.

6. NON-EXCLUSIVITY. The City, in its sole discretion, reserves the right to request the materials or services set forth herein from other sources when deemed necessary and appropriate. No exclusive rights are encompassed through this Agreement.

7. AMENDMENTS. There will be no oral changes to this Agreement. This Agreement can only be modified in a writing signed by both parties. No charge for extra work or material will be allowed unless approved in writing, in advance, by the City and Contractor.

8. TIME OF THE ESSENCE. Time is of the essence to the performance of the parties’ obligations under this Agreement.

9. COMPLIANCE WITH APPLICABLE LAWS.
a. General. Contractor must procure all permits and licenses, and pay all charges and fees necessary and incidental to the lawful conduct of business. Contractor must stay fully informed of existing and future federal, state, and local laws, ordinances, and regulations that in any manner affect the fulfillment of this Agreement and must comply with the same at its own expense. Contractor bears full responsibility for training, safety, and providing necessary equipment for all Contractor personnel to achieve throughout the term of the Agreement. Upon request, Contractor will demonstrate to the City's satisfaction any programs, procedures, and other activities used to ensure compliance.
b. Drug-Free Workplace. Contractor is hereby advised that the City has adop ted a policy establishing a drug-free workplace for itself and those doing business with the City to ensure the safety and health of all persons working on City contracts and projects. Contractor will require a drug -free workplace for all Contractor perso nnel working under this Agreement.

Specifically, all Contractor personnel who are working under this Agreement must be notified in writing by Contractor that they are prohibited from the manufacture, distribution, dispensation, possession, or unlawful use of a controlled substance in the workplace.

87 of 268

EXHIBIT C

MESA STANDARD TERMS AND CONDITIONS

Page 25 of 32 ends

Contractor agrees to prohibit the use of intoxicating substances by all Contractor personnel, and will ensure that Contractor personnel do not use or possess illegal drugs while in the course of performing their duties.
c. Federal and State Immigration Laws. Contractor agrees to comply with the Immigration Reform and Control Act of 1986 (IRCA) in performance under this Agreement and to permit the City and its agents to inspect applicable personnel records to verif y such compliance as permitted by law. Contractor will ensure and keep appropriate records to demonstrate that all Contractor personnel have a legal right to live and work in the United States. i. As applicable to Contractor, under the provisions of A.R.S. § 41-4401, Contractor hereby warrants to the City that Contractor and each of its subcontractors will comply with, and are contractually obligated to comply with, all federal immigration laws and regulations that relate to their employees and A.R.S. § 23 -214(A) (hereinafter “Contractor Immigration Warranty”).
ii. A breach of the Contractor Immigration Warranty will constitute as a material breach of this Agreement and will subject Contractor to penalties up to and including termination of this Agreement at the sole discretion of the City.
iii. The City retains the legal right to inspect the papers of all Contractor personnel who provide services under this Agreement to ensure that Contractor or its subcontractors are complying with the Contractor Immi gration Warranty. Contractor agrees to assist the City in regard to any such inspections.
iv. The City may, at its sole discretion, conduct random verification of the employment records of Contractor and any subcontractor to ensure compliance with the Contractor Immigration Warranty. Contractor agrees to assist the City in regard to any random verification performed.
v. Neither Contractor nor any subcontractor will be deemed to have materially breached the Contractor Immigration Warranty if Contractor or s ubcontractor establishes that it has complied with the employment verification provisions prescribed by Sections 274A and 274B of the Federal Immigration and Nationality Act and the E -Verify requirements prescribed by A.R.S. § 23-214 (A).
d. Nondiscrimination. Contractor represents and warrants that it does not discriminate against any employee or applicant for employment or person to whom it provides services because of race, color, religion, sex, national origin, or disability, and represents and warrants t hat it complies with all applicable federal, state, and local laws and executive orders regarding employment. Contractor and Contractor’s personnel will comply with applicable provisions of Title VII of the U.S. Civil Rights Act of 1964, as amended, Sectio n 504 of the Federal Rehabilitation Act, the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.), and applicable rules in performance under this Agreement.
e. State Sponsors of Terrorism Prohibition. Per A.R.S. § 35 -392, Contractor must not be in violation of section 6(j) of the Federal Export Administration Act and subsequently prohibited by the State of Arizona from selling goods of services to the City.

10. SALES/USE TAX, OTHER TAXES.
a. Contractor is responsible for the payment of all taxes including fed eral, state, and local taxes related to or arising out of Contractor’s services under this Agreement, including by way of illustration but not limitation, federal and state income tax, Social Security tax, unemployment insurance taxes, and any other taxes or business license fees as required. If any taxing authority should deem Contractor or Contractor employees an employee of the City, or should otherwise claim the City is liable for the payment of taxes that are Contractor’s responsibility under this Agr eement, Contractor will indemnify the City for any tax liability, interest, and penalties imposed upon the City.

88 of 268

EXHIBIT C

MESA STANDARD TERMS AND CONDITIONS

Page 26 of 32 ends

b. The City is exempt from paying certain federal excise taxes and will furnish an exemption certificate upon request. The City is not exempt from state and local sales/use taxes.

11. AMOUNTS DUE THE CITY. Contractor must be current and remain current in all obligations due to the City during the performance of Services under the Agreement. Payments to Contractor may be offset by any delinquent amounts due the City or fees and charges owed to the City.

12. PUBLIC RECORDS. Contractor acknowledges that the City is a public entity, subject to Arizona’s public records laws (A.R.S. § 39 -121 et. seq.) and that any documents related to this Agreement may be su bject to disclosure pursuant to state law in response to a public records request or to subpoena or other judicial process.
a. If Contractor believes document related to the Agreement contains trade secrets or other proprietary data, Contractor must notify the City and include with the notification a statement that explains and supports Contractor’s claim. Contractor also must specifically identify the trade secrets or other proprietary data that Contractor believes should remain confidential.

b. In the event the City determines it is legally required to disclose pursuant to law any documents or information Contractor deems confidential trade secrets or proprietary data, the City, to the extent possible, will provide Contractor with prompt written notice by certified mail, fax, email or other method that tracks delivery status of the requirement to disclose the information so Contractor may seek a protective order from a court having jurisdiction over the matter or obtain other appropriate remedies. The notice will include a time period for Contractor to seek court ordered protection or other legal remedies as deemed appropriate by Contractor. If Contractor does not obtain such court ordered protection by the expiration of said time period, the City may release the information without further notice to Contractor.

13. AUDITS AND RECORDS. Contractor must preserve the records related to this Agreement for six (6) years after completion of the Agreement. The City or its authorized agent reserves the right to inspect any records related to the performance of work specified herein. In addit ion, the City may inspect any and all payroll, billing or other relevant records kept by Contractor in relation to the Agreement. Contractor will permit such inspections and audits during normal business hours and upon reasonable notice by the City. The audit of records may occur at Contractor’s place of business or at City offices, as determined by the City. Notwithstanding the foregoing, any Agreement audits must be pursuant to a signed Confidentiality Agreement agreed to by both parties which will be subject to applicable law, including the Arizona Public Records law. Contractor is not required to keep original documents and copies of relevant documents will suffice for the purposes of this provision. The audit must be conducted during regular busin ess hours at a mutually agreeable time and location, and upon reasonable advanced notice of records to be audited.

14. BACKGROUND CHECK. The City may conduct criminal, driver history, and all other requested background checks of Contractor personnel who woul d perform services under the Agreement or who will have access to the City’s information, data, or facilities in accordance with the City’s current background check policies. Any officer, employee, or agent that fails the background check must be replaced immediately for any reasonable cause not prohibited by law.

15. SECURITY CLEARANCE AND REMOVAL OF CONTRACTOR PERSONNEL. The City will have final authority, based on security reasons: (i) to determine when security clearance of Contractor personnel is requi red; (ii) to determine the nature of the security clearance, up to and including fingerprinting Contractor personnel; and (iii) to determine whether or not any individual or entity may provide services under this Agreement. If the City objects to any Contractor personnel for any reasonable cause not prohibited by law, then Contractor will, upon notice from the City, remove any such individual from performance of services under this Agreement.

16. DEFAULT.
a. A party will be in default if that party:

89 of 268

EXHIBIT C

MESA STANDARD TERMS AND CONDITIONS

Page 27 of 32 ends

i. Is or becomes insolvent or is a party to any voluntary bankruptcy or receivership proceeding, makes an assignment for a creditor, or there is any similar action that affects Contractor’s capability to perform under the Agreement; ii. Is the subject of a petition for involuntary bankruptcy not removed within sixty (60) calendar days;
iii. Conducts business in an unethical manner as set forth in the City Procurement Rules Article 7 or in an illegal manner; or
iv. Fails to carry out any term, promise, or condition of the Agreement. b. Contractor will be in default of this Agreement if Contractor is debarred from participating in City procurements and solicitations in accordance with Article 6 of the City’s Procurement Rules.
c. Notice and Opportunity to Cure. In the event a party is in default then the other party may, at its option and at any time, provide written notice to the defaulting party of the default. The defaulting party will have thirty (30) days from receipt of the notice to cure the default; the thirty (30) day cure period may be extended by mutual agreement of the parties, but no cure period may exceed ninety (90) days. A default notice will be deemed to be sufficient if it is reasonably calculated to provide notice of the nature and extent of such default. Failure of the non - defaulting party to provide notice of the default does not waive any rights under the Agreement. d. Anticipatory Repudiation. Whenever the City in good faith has reason to question Contractor’s intent or ability to perform, the City may demand that Contractor give a written assurance of its intent and ability to perform. In the event that the demand is made and no written assurance is given within five (5) calendar days, the City may treat this failure as an anticipatory repudiation of the Agreement.

17. REMEDIES. The remedies set forth in this Agreement are not exclusive. Election of one remedy will not preclude the use of other remedies. In the event of default:
a. The non-defaulting party may terminate the Agreement, and the t ermination will be effective immediately or at such other date as specified by the terminating party. b. The City may purchase the services required under the Agreement from the open market, complete required work itself, or have it completed at the expense o f Contractor. If the cost of obtaining substitute services exceeds the contract price, the City may recover the excess cost by: (i) requiring immediate reimbursement to the City; (ii) deduction from an unpaid balance due to Contractor; (iii) collection aga inst the proposal and/or performance security, if any; (iv) collection against liquidated damages (if applicable); or (v) a combination of the aforementioned remedies or other remedies as provided by law. Costs includes any and all, fees, and expenses inc urred in obtaining substitute services and expended in obtaining reimbursement, including, but not limited to, administrative expenses, attorneys’ fees, and costs.
c. The non-defaulting party will have all other rights granted under this Agreement and all rig hts at law or in equity that may be available to it.
d. Neither party will be liable for incidental, special, or consequential damages.

18. CONTINUATION DURING DISPUTES. Contractor agrees that during any dispute between the parties, Contractor will continue to p erform its obligations until the dispute is settled, instructed to cease performance by the City, enjoined or prohibited by judicial action, or otherwise required or obligated to cease performance by other provisions in this Agreement.

19. TERMINATION FOR CONVENIENCE. The City reserves the right to terminate this Agreement in part or in whole upon thirty (30) calendar days’ written notice.

20. TERMINATION FOR CONFLICT OF INTEREST (A.R.S. § 38-511). Pursuant to A.R.S. § 38-511, the City may cancel this Agreement w ithin three (3) years after its execution, without penalty or

90 of 268

EXHIBIT C

MESA STANDARD TERMS AND CONDITIONS

Page 28 of 32 ends

further obligation, if any person significantly involved in initiating, securing, drafting, or creating the Agreement for the City becomes an employee or agent of Contractor.

21. TERMINATION FOR NON -APPROPRIATION AND MODIFICATION FOR BUDGETARY CONSTRAINT. The City is a governmental agency which relies upon the appropriation of funds by its governing body to satisfy its obligations. If the City reasonably determines that it does not have funds to mee t its obligations under this Agreement, the City will have the right to terminate the Agreement without penalty on the last day of the fiscal period for which funds were legally available. In the event of such termination, the City agrees to provide writt en notice of its intent to terminate thirty (30) calendar days prior to the stated termination date.

22. PAYMENT TO CONTRACTOR UPON TERMINATION. Upon termination of this Agreement, Contractor will be entitled only to payment for those services performed up t o the date of termination, and any authorized expenses already incurred up to such date of termination. The City will make final payment within thirty (30) calendar days after the City has both completed its appraisal of the materials and services provided and received Contractor’s properly prepared final invoice.

23. NON-WAIVER OF RIGHTS. There will be no waiver of any provision of this agreement unless approved in writing and signed by the waiving party. Failure or delay to exercise any rights or remedies provided herein or by law or in equity, or the acceptance of, or payment for, any services hereunder, will not release the other party of any of the warranties or other obligations of the Agreement and will not be deemed a waiver of any such rights or remedies.

24. INDEMNIFICATION/LIABILITY.

a. To the fullest extent permitted by law, Contractor agrees to defend, indemnify, and hold the City, its officers, agents, and employees, harmless from and against any and all liabilities, demands, claims, suits, losses, damages, causes of action, fines or j udgments, including costs, attorneys’, witnesses’, and expert witnesses’ fees, and expenses incident thereto, relating to, arising out of, or resulting from: (i) misconduct by Contractor personnel under this Agreement; (ii) any negligent acts, errors, mistakes or omissions by Contractor or Contractor personnel; and (iii) Contractor or Contractor personnel’s failure to comply with this Agreement. However, notwithstanding the prior sentence, a ny claim shall not be an indemnified claim if such claim or damage was caused in whole by the actions of the City, its employees, agents, contractors or representatives.
b. Contractor will update the City during the course of the litigation to timely notify the City of any issues that may involve the independent negligence o f the City that is not covered by this indemnification.
c. The City assumes no liability for actions of Contractor and will not indemnify or hold Contractor or any third party harmless for claims based on this Agreement or use of Contractor -provided supplies or Services.
d. IN THE EVENT OF ANY LIABILITY INCURRED BY CONTRACTOR OR ANY OF ITS

AFFILIATES HEREUNDER, INCLUDING INDEMNIFICATION OF CITY BY CONTRACTOR,

THE ENTIRE LIABILITY OF CONTRACTOR AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED $5,000,000.00 OVER THE ENTIRE TERM OF THE AGREEMENT.

25. WARRANTY. Contractor warrants that the services and materials will conform to the requirements of Exhibit A . Additionally, Contractor warrants that all services will be performed in a good, workman-like and professional manner, as stated below.
a. Manufacturer’s Warranty. The City understands that the Contractor is not the manufacturer of the products purchased by the City hereunder and the only materials (product) warranties offered are those of the manufacturer, not the Contractor or its affiliates unless the manufacturer is the Contractor or its affiliates . THE CONTRACTOR AND ITS AFFILIATES

HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED,

91 of 268

EXHIBIT C

MESA STANDARD TERMS AND CONDITIONS

Page 29 of 32 ends

RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF

TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,

WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER'S WARRANTY.

b. Services Warranty. City's sole and exclusive remedy with respect to a warranty on the Services provided by Contractor will be, at the sole option of Contractor, to either: (a) use its reasonable commercial efforts to reperform any services not in substantial compliance with this warranty, or (b) refund amounts paid by City related to the portion of the services not in substantial compliance; provided, in each case, City notifies Contractor in writing within five (5) business days after performance of the applicable Services. City shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption during the performance of services and for any necessary reconstruction thereof.

c. Third Party Services Warranty. In connection with the products (materials), certain services, such as extended warranty service by manufacturers, are sold by the Contractor as a distributor or sales agent ("Third Party Services"). In the case of Third Party Services, the third party will be the party responsible for providing the services to the City and the City will look to the third party for any loss, claims or damages arising from or related to the provision of such Third- Party Services. Any amounts, including, but not limited to, taxes, associated with Third Party Services which may be collected by the Contractor will be collected solely in the capacity as an independent sales agent.

26. THE CITY’S RIGHT TO RECOVER AGAINST THIRD PARTIES. Contractor will do nothing to prejudice the City’s right to recover against third parties for any loss, destruction, or damage to City property, and will at the City’s request and expense, furnish to the City reasonable assistance and cooperation, including assistance in the prosecution or defense of suit and the execution of instruments of assignment in favor of the City in obtaining recovery.

27. NO GUARANTEE OF WORK. Contractor acknowledges and agrees that it is not entitled to deliver any specific amount of materials or services or any materials or services at all under this Agreement and acknowledges and agrees that the materials or services will be requested by the City on an as needed basis at the sole discretion of the City. Any document referencing quantities or performance frequencies represent the City's best estimate of current requireme nts, but will not bind the City to purchase, accept, or pay for materials or services which exceed its actual needs.

28. OWNERSHIP.
a. Except as it pertains to the Wor k Product in Subsection (b) below, a ll deliverables, services, and information provided by Contractor or the City pursuant to this Agreement (whether electronically or manually generated) including without limitation, reports, test plans, and survey results, graphics, and technical tables, originally prepared in the performance of this Agreement, are the property of the City and will not be used or released by Contractor or any other person except with prior written permission by the City. b. City's rights to Work Product (meaning deliverables to be provided or created individually or jointly in connection with the services, not materials, provided by Contractor , including but not limited to, all inventions, discoveries, methods, processes, for mulae, ideas, concepts, techniques, know -how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information, whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights, or discovered in the course of performance of this Agreement that are embodied in such work or materials) will be, upon payment in full, a non -transferable, non-exclusive, royalty-free license to use such Work Product solely for City's internal use. City obtains no ownership or other property rights thereto. City agrees that Contractor may incorporate intellectual property created by third parties into the Work Product and that City’s right to use such Work Prod uct may be subject to the rights of, and limited by agreements with, such third parties

92 of 268

EXHIBIT C

MESA STANDARD TERMS AND CONDITIONS

Page 30 of 32 ends

29. USE OF NAME. Contractor will not use the name of the City of Mesa in any advertising or publicity without obtaining the prior written consent of the City.

30. PROHIBITED ACTS. Pursuant to A.R.S. § 38-504, a current or former public officer or employee within the last twelve (12) months shall not represent another organization before the City on any matter for which the officer or employee was directly concerned and persona lly participated in during their service or employment or over which they had a substantial or material administrative discretion. Further, while employed by the City and for two (2) years thereafter, public officers or employees are prohibited from discl osing or using, without appropriate authorization, any confidential information acquired by such personnel in the course of his or her official duties at the City.

31. FOB DESTINATION FREIGHT PREPAID AND ALLOWED. All deliveries will be FOB destination freight prepaid and allowed unless otherwise agreed.

32. RISK OF LOSS. Contractor agrees to bear all risks of loss, injury, or destruction of Contractor’s goods or equipment incidental to providing these services and such loss, injury, or destruction will not release Contractor from any obligation hereunder.

33. SAFEGUARDING CITY PROPERTY. Contractor will be responsible for any damage to City real property or damage or loss of City personal property when such property is the responsibility of or in the custody of Contractor or its employees.

34. WARRANTY OF RIGHTS. Contractor warrants it has title to, or the right to allow the City to use, the materials and services being provided and that the City may use same without suit, trouble or hindrance from Contractor or third parties.

35. PROPRIETARY RIGHTS INDEMNIFICATION. Without limiting the foregoing, Contractor will at its expense defend the City against all claims asserted by any person that anything provided by Contractor infringes a patent, copyright, trade secret or other intellectual property right (collectively “Claim”) and must, without limitation, pay the costs, damages and attorneys' fees awarded against the City in any Claim, or pay any settlement of such Claim. Each party agrees to notify the other promptly of any ma tters to which this provision may apply and to cooperate with each other in connection with such defense or settlement. If a preliminary or final judgment is obtained against the City’s use or operation of the items provided by Contractor hereunder or any part thereof by reason of any alleged infringement, Contractor will, at its sole option and its expense and without limitation, either: (a) modify the item so that it becomes non -infringing; (b) procure for the City the right to continue to use the item; ( c) substitute for the infringing item other item(s) having at least equivalent capability; or (d) refund to the City an amount equal to the price paid, less reasonable usage, from the time of installation acceptance through cessation of use, which amount w ill be calculated on a useful life not less than five (5) years based on a five (5) year straight line amortized basis. The forgoing provisions in this Section state the entire liability of Contractor and the sole and exclusive remedy of the City with resp ect to any Claim. Contractor shall have no liability or obligation to the City to the extent any Claim is based upon: (i) any combination of anything provided by Contractor with other software, hardware or other materials not authorized by Contractor or manufacturer; or (ii) any addition to, or modification of, anything provided by Contractor made after delivery to the City by any person other than Contractor.

36. CONTRACT ADMINISTRATION. The contract will be administered by the Purchasing Administrator and/o r an authorized representative from the using department. All questions regarding the contract will be referred to the administrator for resolution. Supplements may be written to the contract for the addition or deletion of services. Payment will be neg otiated and determined by the contract administrator(s).

37. FORCE MAJEURE. Failure by either party to perform its duties and obligations will be excused by unforeseeable circumstances beyond its reasonable control, including acts of nature, acts of the public enemy, riots, fire, explosion, legislation, and governmental regulation. The party whose performance is so affected will within five (5) calendar days of the unforeseeable circumstance notify the other party of all pertinent facts and identify the force majeure event. The party whose

93 of 268

EXHIBIT C

MESA STANDARD TERMS AND CONDITIONS

Page 31 of 32 ends

performance is so affected must also take all reasonable steps, promptly and diligently, to prevent such causes if it is feasible to do so, or to minimize or eliminate the effect thereof. The delivery or performance date will be extended for a period equal to the time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of the delay, provided however, under no circumstances will delays caused by a force majeure extend beyo nd one hundred-twenty (120) calendar days from the scheduled delivery or completion date of a task unless agreed upon by the parties.

38. COOPERATIVE USE OF CONTRACT. This contract is available through National IPA to agencies nationwide. The City has also entered into various cooperative purchasing agreements with other Arizona government agencies, including the Strategic Alliance for Volume Expenditures (SAVE) cooperative. Under the SAVE Cooperative Purchasing Agreement, any contract may be extended for use by other municipalities, school districts and government agencies through National IPA or SAVE in the State of Arizona with the approval of Contractor. Any such usage by other entities must be in accordance with the statutes, codes, ordinances, charter and/or procurement rules and regulations of the respective government agency.

A contractor, subcontractor or vendor or any employee of a contractor, subcontractor or vendor who is contracted to provide services on a regular basis at an individual school shall obtain a valid fingerprint clearance card pursuant to title 41, chapter 12, article 3.1. A school district governing board shall adopt policies to exempt a person from the requirements of this subsection if the person's normal job duties are not likely to result in independent access to or unsupervised contact with pupils. A school district, its governing board members, its school council members and its employees are exempt from civil liability for the consequences of adoption and implementation of policies and procedures pursuant to this subsection unless the school district, its governing board members, its school council members or its employees are guilty of gross negligence or intentional misconduct.

Additionally, Contractor will comply with the governing body’s fingerprinting policy of each individual school district and public entity. Contractor, subcontractors, vendors and their employees will not provide services on school district properties until authorized by the school district.

Orders placed by other agencies and payment thereof will be the sole responsibility of that agency.

The City is not responsible for any disputes arising out of transactions made by others. The City is not a party to any agreements between the Contractor and National IPA, National IPA and other agencies, the Contractor and other agencies, or any third-party contracts in any way related to this Agreement or the cooperative use of this Agreement.

39. FUEL CHARGES AND PRICE INCREASES. No fuel surcharges will be accepted. No price increases will be accepted without proper request by Contractor and response by the City’s Purchasing Division.

40. NOTICES. All notices to be given pursuant to this Agreement must be delivered to the parties at their respective addresses . Notices may be (i) personally delivered; (ii) sent via certified or registered mail, postage prepaid; (iii) sent via overnight courier; or (iv) sent via email or facsimile.

If provided by personal delivery, receipt will be deemed effective upon delivery. If sent via certified or registered mail, receipt will be deemed effective three (3) calendar days after being deposited in the United States mail. If sent via overnight courier , email or facsimile, receipt will be deemed effective two (2) calendar days after the sending thereof.

41. GOVERNING LAW, FORUM. This Agreement is governed by the laws of the State of Arizona.

The exclusive forum selected for any proceeding or suit in law or equity arising from or incident to this Agreement will be Maricopa County, Arizona.

42. INTEGRATION CLAUSE. This Agreement, including all attachments and exhibits hereto, supersede all prior oral or written agreements, if any, between the parties and constitutes the entire agreement between the parties with respect to the work to be performed.

94 of 268

EXHIBIT C

MESA STANDARD TERMS AND CONDITIONS

Page 32 of 32 ends

43. PROVISIONS REQUIRED BY LAW. Any provision required by law to be in this Agreement is a part of this Agreement as if fully stated in it.

44. SEVERABILITY. If any provision of this Agreement is declared void or unenforceable, such provision will be severed from this Agreement, which will otherwise remain in full force and effect.

The parties will negotiate diligently in good faith for such amendment(s) of this Agreement as may be necessary to achieve the original intent of this Agreement, notwith standing such invalidity or unenforceability.

45. SURVIVING PROVISIONS. Notwithstanding any completion, termination, or other expiration of this Agreement, all provisions which, by the terms of reasonable interpretation thereof, set forth rights and obligatio ns that extend beyond completion, termination, or other expiration of this Agreement, will survive and remain in full force and effect. Except as specifically provided in this Agreement, completion, termination, or other expiration of this Agreement will not release any party from any liability or obligation arising prior to the date of termination.

46. A.R.S. SECTIONS 1-501 and 1-502. Pursuant to Arizona Revised Statutes Sections 1-501 and 1- 502, any person who applies to the City for a local public benefit (the definition of which includes a grant, contract or loan) must demonstrate his or her lawful presence in the United States. As the Agreement is deemed a local public benefit, if Contractor is an individual (natural) person or sole proprietorship, Contr actor agrees to sign and submit the necessary documentation to prove compliance with the statutes as applicable.

95 of 268

Matt Bauer
9/12/2018
...... ~~
mesa -az
Contract Title: INFORMATION TECHNOLOGY SOLUTIONS & SERVICES Contract Number: 2018011
Amendment Number: 1
Description of Change: Amendment to incorporate the below "Federal Certifications" document with the Contract.

Effective Date of Change: 8/7/2018
Acceptance: On behalf of the undersigned Contractor, I have given careful consideration to this Contract Amendment and hereby agree to the change(s) and except that as amended herein, all provisions of the Contract remain in full force and effect.

CDW GOVERNMENT, LLC.:

Signature
Christina V. Rother
Printed Name
Date
Signature
Printed Name
Date
City of Mesa:

Signature
City Manager Designee
Date

96 of 268

FEDERAL CERTIFICATIONS
ADDENDUM FOR AGREEMENT FUNDED BY U.S. FEDERAL GRANT
TO WHOM IT MAY CONCERN:

Participating Agencies may elect to use federal funds to purchase under the Master Agreement. This form should be completed and returned.

The following certifications and provisions may be required and apply when a Participating Agency expends federal funds for any purchase resulting from this procurement process. Pursuant to 2 C.F.R. § 200.326, all contracts, including small purchases, awarded by the Participating Agency and the Participating Agency's subcontractors shall contain the procurement provisions of Appendix II to Part 200, as applicable.

APPENDIX II TO 2 CFR PART 200
(A) Contracts for more than the simplified acquisition threshold currently set at $150,000, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.

Pursuant to Federal Rule (A) above, when a Participating Agency expends federal funds, the Participating Agency reserves all rights and privileges under the applicable laws and regulations with respect to this procurement in the event of breach of contract by either party.

Does offeror agree? YES C>J G....-- Initials of Authorized Representative of offeror (B) Termination for cause and for convenience by the grantee or subgrantee including the manner by which it will be effected and the basis for settlement. (All contracts in excess of $10,000) Pursuant to Federal Rule (8) above, when a Participating Agency expends federal funds, the Participating Agency reserves the right to immediately terminate any agreement in excess of $10,000 resulting from this procurement process in the event of a breach or default of the agreement by Offeror in the event Offeror fails to: (1) meet schedules, deadlines, and/or delivery dates within the time specified in the procurement solicitation, contract, and/or a purchase order; (2) make any payments owed; or (3) otherwise perform in accordance with the contract and/or the procurement solicitation. Participating Agency also reserves the right to terminate the contract immediately, with written notice to offeror, for convenience, if Participating Agency believes, in its sole discretion that it is in the best interest of Participating Agency to do so. Offeror will be compensated for work performed and accepted and goods accepted by Participating Agency as of the termination date if the contract is terminated for convenience of Participating Agency. Any award under this procurement process is not exclusive and Participating Agency reserves the right to purchase goods and services from other offerors when it is in Participating Agency's best interest.

Does offeror agree? YES Q ':-iCT==: Initials of Authorized Representative of offeror (C) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of "federally assisted construction contract" in 41 CFR Part 60-1.3 must include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, "Equal Employment Opportunity" (30 C FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and implementing regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor." Pursuant to Federal Rule (C) above, when a Participating Agency expends federal funds on any federally assisted construction contract, the equal opportunity clause is incorporated by reference herein.

Does offeror agree to abide by the above? YES 0>-.[ \l=-:-: Initials of Authorized Representative of offeror (D) Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141- 3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted
Construction"). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non- Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland "Anti-Kickback" Act (40 U.S.C. 3145), as

97 of 268

CONTRACT AMENDMENT
supplemented by Department of Labor regulations (29 CFR Part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency.

Pursuant to Federal Rule (D) above, when a Participating Agency expends federal funds during the term of an award for all contracts and subgrants for construction or repair, offerer will be in compliance with all applicable Davis-Bacon Act provisions.

Does offerer agree? YES ____ Q_,.__.<'-\l,._,.\L---::.=--- ---- - - - - -lnitials of Authorized Representative of offerer (E) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). Where applicable, all contracts awarded by the non-Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

Pursuant to Federal Rule (E) above, when a Participating Agency expends federal funds, offerer certifies that offerer will be in compliance with all applicable provisions of the Contract Work Hours and Safety Standards Act during the term of an award for all contracts by Participating Agency resulting from this procurement process.

Does offerer agree? YES Q>J \l--- Initials of Authorized Representative of offerer (F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of "funding agreement" under 37 CFR §401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that "funding agreement," the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency.

Pursuant to Federal Rule (F) above, when federal funds are expended by Participating Agency, the offerer certifies that during the term of an award for all contracts by Participating Agency resulting from this procurement process, the offerer agrees to comply with all applicable requirements as referenced in Federal Rule (F) above.

Does offerer agree? YES _ _ _ _ _ c""'""'-~-""""(L, _____ _ _ _ _ _ lnitials of Authorized Representative of offerer (G) Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended-Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non- Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 · 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA)
Pursuant to Federal Rule (G) above, when federal funds are expended by Participating Agency, the offerer certifies that during the term of an award for all contracts by Participating Agency member resulting from this procurement process, the offerer agrees to comply with all applicable requirements as referenced in Federal Rule (G) above.

Does offerer agree? YES C>.f ~ Initials of Authorized Representative of offerer (H) Debarment and Suspension (Executive Orders 12549 and 12689)-A contract award (see 2 CFR 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the 0MB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), "Debarment and Suspension." SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.

Pursuant to Federal Rule (H) above, when federal funds are expended by Participating Agency, the offerer certifies that during the term of an award for all contracts by Participating Agency resulting from this procurement process, the offeror certifies that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency.

Rev. July 2017

98 of 268

CONTRACT AMENDMENT
Does offerer agree? YES _____ C_AJ ......... _,~___,_,~ _____ ___ lnitials of Authorized Representative of offeror (I) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)-Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.

Pursuant to Federal Rule (I) above, when federal funds are expended by Participating Agency, the offerer certifies that during the term and after the awarded term of an award for all contracts by Participating Agency resulting from this procurement process, the offeror certifies that it is in compliance with all applicable provisions of the Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). The undersigned further certifies that:
(1) No Federal appropriated funds have been paid or will be paid for on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of congress, or an employee of a Member of Congress in connection with the awarding of a Federal contract, the making of a Federal grant, the making of a Federal loan, the entering into a cooperative agreement, and the extension, continuation, renewal, amendment, or modification of a Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of congress, or an employee of a Member of Congress in connection with this Federal grant or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all covered sub-awards exceeding $100,000 in Federal funds at all appropriate tiers and that all subrecipients shall certify and disclose accordingly.

Does offerer agree? YES ------'C ........ J~(L~"--------- - ----lnitials of Authorized Representative of offerer

RECORD RETENTION REQUIREMENTS FOR CONTRACTS INVOLVING FEDERAL FUNDS When federal funds are expended by Participating Agency for any contract resulting from this procurement process, offerer certifies that it will comply with the record retention requirements detailed in 2 CFR § 200.333. The offerer further certifies that offeror will retain all records as required by 2 CFR § 200.333 for a period of three years after grantees or subgrantees submit final expenditure reports or quarterly or annual financial reports, as applicable, and all other pending matters are closed.

Does offeror agree? YES C:.>-J C7 < Initials of Authorized Representative of offerer

CERTIFICATION OF COMPLIANCE WITH THE ENERGY POLICY AND CONSERVATION ACT When Participating Agency expends federal funds for any contract resulting from this procurement process, offerer certifies that it will comply with the mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42 U.S.C. 6321 et seq.; 49 C.F.R. Part 18).

Does offeror agree? YES Q.,.A) D---:: Initials of Authorized Representative of offeror

CERTIFICATION OF COMPLIANCE WITH BUY AMERICA PROVISIONS To the extent purchases are made with Federal Highway Administration, Federal Railroad Administration, or Federal Transit Administration funds, offerer certifies that its products comply with all applicable provisions of the Buy America Act and agrees to provide such certification or applicable waiver with respect to specific products to any Participating Agency upon request. Purchases made in accordance with the Buy America Act must still follow the applicable procurement rules calling for free and open competition.

Does offerer agree? YES ____ ("'---'-'A}__,,_~~=--------- --lnitials of Authorized Representative of offerer CERTIFICATION OF ACCESS TO RECORDS - 2 C.F .R. § 200.336 Offerer agrees that the Inspector General of the Agency or any of their duly authorized representatives shall have access to any books, documents, papers and records of offerer that are directly pertinent to offerer's discharge of its obligations under the Contract for the purpose of making audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to offerer's personnel for the purpose of interview Rev. July 2017

99 of 268

CONTRACT AMENDMENT
and discussion relating to such documents.

Does offerer agree? YES _ _ _ _ G ___ -&~ {i---=L ~-- ----- ----lnitials of Authorized Representative of offerer

CERTIFICATION OF APPLICABILITY TO SUBCONTRACTORS
Offerer agrees that all contracts it awards pursuant to the Contract shall be bound by the foregoing terms and conditions.

Does offerer agree? YES QN (2___ Initials of Authorized Representative of offerer Offeror agrees to comply with all federal, state, and local laws, rules, regulations and ordinances, as applicable. It is further acknowledged that offeror certifies compliance with all provisions, laws, acts, regulations, etc. as specifically noted above.

Offerer's Name: _ _ C=D:C...W'--'--'G--=o-'-ve=r=nm"'"'"e"'"n=t-=L=LC=---------------- - - - ---- - -- Address, City, State, and Zip Code: 230 N. Milwaukee Ave Vernon Hills IL 60061-9740 Phone Number: 866.339.9816 Fax Number: ___ _ ____ ______ _ Printed Name and Title of Authorized Representative:_=Christina=· =· =V~·=Roth=er=------------- - ---- Email Address: i::.:PSe.i::D.;:;:@""cc::.dw""'g:,..:..c:e::o""'m.,__ _ _ ___ _ _ _ ________ _ _ _ ___ _ _ _ _ _ _____ _ Signature of Authorized Representative: ru~ \( ~ Date: <\-~ ~ \ 1t Rev. July 2017

100 of 268

CONTRACT AMENDMENT
Rev. July 2017
Contract Title: Information Technology Solutions
Contract Number: 2018011 MA Number: 19000009
Amendment Number: Two (2)
Description of Change: Contract renewal. Term of contract March 1, 2023 through February 28, 2025.

Effect
ive Date of Change: March 1, 2023
Acceptance: On behalf of the undersigned Contract or, I have given careful consideration to this Contract Amendment and hereby agree to the change(s) and except that as amended herein, all provisions of the Contract remain in full force and effect.

CDW Government LLC: City of Mesa:

Signature Signature
Printed Name City Manager Designee
______________________________________
Date Date
Review
ed by:

Ted Stallings, Procurement Officer II
Robert F. Kirby, President
05/25/2022

101 of 268

From: Patrice Olds
To: Martin McTaggart
Subject: FW: Cost of 56 laptops for SMPD
Date: Friday, December 1, 2023 8:43:05 AM
Attachments: image001.png
image004.emz
image002.png

Patrice M. Olds, MMC
City Clerk
City of San Mateo
330 W. 20th Avenue
San Mateo, CA
94403-1388
[email protected]
www.cityofsanmateo.org
(650) 522-7042

From: Laurie Strange <[email protected]>
Sent: Friday, December 1, 2023 8:42 AM
To: Alex Khojikian <[email protected]>
Cc: Patrice Olds <[email protected]>
Subject:

FW: Cost of 56 laptops for SMPD

From: Doris Nishimoto
Sent: Thursday, November 30, 2023 9:10 PM
To: Amourence Lee <[email protected]>; City Mgr <[email protected]>; Lisa Diaz Nash <[email protected]>; Richard Hedges <[email protected]>; Rob Newsom <[email protected]>; Adam Loraine <[email protected]>; Noel Nish <[email protected]>; Ed Barberini <[email protected]> Cc: David Canepa <[email protected]>
Subject: Cost of 56 laptops for SMPD

Dear City Council and Manager,

RE: Item on upcoming City Agenda: Laptop purchase for SMPD

Is there any way to get this cost down for 56 laptops? What's going to happen to the old laptops? I went to the CDW-G website and found that the Panasonic toughbook is now on sale, so 56 laptops= $186,613.28. (Unless there is an upgrade not mentioned??)
Maybe renegotiate with the vendor to match this current price.

Panasonic TOUGHBOOK G2 10.1" Core i5-10310U 16GB RAM 512GB Windows 10 Pro - FZ-G2AZ002KM - 2-in-1 Laptops - CDWG.com

102 of 268

103 of 268

CITY OF SAN MATEO
4 5
6 7

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 6 Section Name: CONSENT CALENDAR Account Number: 26-4662 File ID: 23-8185 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: December 04, 2023
SUBJECT:

Bermuda Drive Utility Relocation Project – Agreement
RECOMMENDATION:

Approve an agreement with St. Francis Electric, LLC for the Bermuda Drive Utility Relocation Project in the amount of $167,105; establish a contingency reserve in the amount of $25,000; and authorize the Public Works Director to execute the agreement in substantially the form presented and issue change orders as allowed by the contract documents and within the amount of the contingency amount.

BACKGROUND:

In 2008, the City applied for preliminary engineering funds through the Highway Bridge Replacement and Rehabilitation Program (HBRRP) to evaluate the condition of the Bermuda Drive Bridge over Borel Creek and address the structural deficiencies identified in a bridge inspection report prepared by the California Department of Transportation (Caltrans). In 2010, Caltrans approved the HBRRP funds and City Council approved a professional services agreement with Biggs Cardosa Associates, Inc. (BCA) to perform the preliminary engineering to structurally retrofit the bridge.

Structural assessments and a detailed seismic analysis done in 2011 and 2012 by BCA recommended a full replacement of the bridge rather than a structural retrofit. In 2017, Caltrans provided official approval to proceed with a revised scope of work that includes full bridge replacement. On May 21, 2018, City Council approved the award of a professional services agreement with BCA for design and environmental documentation services for the Bermuda Drive Bridge Replacement Project. The design is currently anticipated to be completed during 2024.

The Bermuda Drive Utility Relocation Project (Project) is a subproject that is part of the larger Bermuda Drive Bridge Replacement Project. This Project involves undergrounding high-voltage electrical lines across Bermuda Drive to avoid conflict during pile installation during the Bermuda Drive Bridge Replacement Project. The Engineer’s Estimate for the Project is $250,000. The Project was advertised on October 2, 2023, and a total of five (5) bids were received and opened on October 24, 2023. The bids received are listed below in order of increasing bid amount.

Contractor Grand Total Bid Amount
St. Francis Electric, LLC $167,105.00
W.R. Forde Associates, Inc. $224,815.00
Corcus Construction, Inc. $260,475.00
MBS Engineering $284,406.32
PAR Western Line Contractors Nonresponsive
Staff reviewed the bids and determined that St. Francis Electric, LLC is the lowest responsive, responsible bidder and

104 of 268

CITY OF SAN MATEO
4 5
6 7
recommends it be awarded the construction contract. PAR Western Line Contractors’ bid was deemed nonresponsive as the bid amount was missing.

Based on staff’s prior experience, the Project presents a higher risk profile than other typical City construction contracts.

The Project includes trenching, utility relocation, and coordinated construction tasks with multiple utility companies. The requested contingency (15% of the construction contract) will allow staff to mitigate risk due to unanticipated conditions that may rise during construction.

BUDGET IMPACT:

Sufficient funds are available in the Bermuda Drive Bridge Replacement Project (#462250) to award this agreement.

ENVIRONMENTAL DETERMINATION:

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 - Agreement

STAFF CONTACT
Leo Chow, Acting Senior Engineer
[email protected]
(650) 522-7344
Jerred Cayabyab, Assistant Engineer
[email protected]
(650) 522-7578

105 of 268

9 3
8 8
AGREEMENT WITH ST. FRANCIS ELECTRIC, LLC

FOR PUBLIC IMPROVEMENT
FOR

BERMUDA DRIVE UTILITY RELOCATION PROJECT
CITY PROJECT NO. 462250UG
THIS AGREEMENT FOR PUBLIC IMPROVEMENTS (“Agreement”), made and entered into in the City of San Mateo, County of San Mateo, State of California, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California, (hereinafter called "City") and ST.

FRANICS ELECTRIC, LLC, a corporation, with offices at 975 Carden Street, San Leandro, CA 94577 (hereinafter called "Contractor"), entered into this day of ____________________.

RECITALS:
(a)City has taken appropriate proceedings to authorize construction of the public work and improvements or other matters herein provided, and execution of this Agreement. (b)A notice was duly published for bids for the contract for the improvement hereinafter described. (c)After notice duly given, on the date hereof, the City awarded the contract for the construction of the improvements hereinafter described to Contractor.

IT IS AGREED, as follows:

1. Scope of Work. Contractor shall perform the work according to the Contract Book entitled:

BERMUDA DRIVE UTLITY RELOCATION PROJECT
CITY PROJECT NO. 462250UG

2. Contract Price. City shall pay, and the Contractor shall accept, the sum of one hundred sixty-seven thousand one hundred five dollars ($167,105) in full payment for the work set forth above.

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

3. The Contract Documents. The complete contract consists of the following documents: this Agreement; the Notice Inviting Sealed Proposals; the Accepted Proposal; the Contract Book which includes the Special Provisions, Revised Standard Specifications dated April 16, 2021, and Contract Drawings, the State of California Standard Specifications 2018 Edition, the State of California Department of Transportation Standard Plans, 2018 Edition, the Faithful Performance Bond, and the Labor and Material Bond (hereinafter referred to as the “contract documents”).

106 of 268

9 3
8 8
All rights and obligations of City and Contractor are fully set forth and described in the contract documents.

The contract documents constitute the entire contract between the parties hereto pertaining to the subject matter hereof, fully supersede any and all prior understandings, representations, warranties and agreements between the parties hereto, or any of them, pertaining to the subject matter hereof, and may be modified only by written agreement signed by all of the parties hereto.

All of the above-named documents are complementary and are intended to operate in harmony, so that any work called for in one, and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents. In the event of any variation or discrepancy between any portion of this Agreement and any portion of the contract documents, this Agreement shall prevail. The precedence of the remaining contract documents will be as specified in the Contract Book.

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

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

6. Legal Work Day - Penalties for Violation. Eight hours of labor shall constitute a legal day's work. Contractor shall not require more than 8 hours labor in a day and 40 hours in a calendar week from any person employed by Contractor in the performance of such work unless such excess work is compensated for at not less than 1-1/2 times the basic rate of pay. Contractor shall forfeit as a penalty to City the sum of $25.00 for each laborer, workman or mechanic employed in the execution of this contract by Contractor, or by any subcontractor for each calendar day during which such laborer, workman or mechanic is required or permitted to labor more than 8 hours in any calendar day and 40 hours in any one calendar week in violation of the provisions of Sections 1810 and 1816, inclusive, of the Labor Code of the State of California.

7. Prevailing Wage Scale. The prevailing wage scale as determined by the Director of Industrial Relations of the State of California, in force on the day the bid was announced, will be the minimum paid to all craftsmen and laborers working on this project. Contractor shall also require any subcontractors who work or provide any services related to the project to pay all persons performing labor or rendering service under said subcontract or other arrangement at least the general prevailing rate of wages, determined as set forth herein for the respective crafts and employments, including such wages for holiday and overtime work. A copy of the correct determination will be posted at the job site. It is understood that it is the responsibility of Contractor to determine the correct scale. Copies of the prevailing wage rates are on file at the City Clerk's office, however, errors or defects in the materials in the City Clerk's office will not excuse a bidder's failure to comply with the actual scale then in force. Contractor must submit certified payrolls to the Department of Industrial Relations in accordance with Labor Code Section 1776.

Contractor agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter

5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.

8. Senate Bill 854 Compliance Required. In accordance with Labor Code Sections 1725.5 and 1771.1, all contractors and subcontractors must be registered with the Department of Industrial Relations. In accordance with Labor Code Section 1771.4 the contractor must post job site notices as required by

107 of 268

9 3
8 8
regulation and this project will be subject to compliance monitoring and enforcement by the Department of Industrial Relations.

9. Insurance. The Contractor shall procure and maintain for the duration of the contract and five years thereafter the insurance as specified in Exhibit A of this agreement.

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

11. 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 provision that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.

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

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

14. Notices. All notices shall be in writing, and delivered in person or transmitted by certified mail, postage prepaid.
a. Notices required to be given to City shall be addressed as follows:

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

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

108 of 268

9 3
8 8

16. Governing Law and Venue. This Agreement, the contract documents, and the performance hereon shall be governed, interpreted, construed, and regulated by the laws of the State of California. The parties agree that any action related to this Agreement or the contract documents will be venued in the County of San Mateo.

17. Headings. The title and headings of the various sections of this Agreement and the contract documents are intended solely for convenience of reference and are not intended to explain, modify, or place any construction on any provisions.

18. No Partnership or Agency. Nothing in this Agreement nor the contract documents shall be deemed to constitute a partnership in law between City and Contractor, or any sub-contractor, to constitute either party as an agent of the other for any purpose; or to entitle either party to commit or bind the other in any manner unless expressly agreed upon in the contract documents.

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

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

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

109 of 268

9 3
8 8
IN WITNESS WHEREOF, CITY OF SAN MATEO and ST. FRANCIS ELECTRIC, LLC have executed this Agreement the day and year first above written.

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

Date

APPROVED AS TO FORM ADDITIONAL CORPORATE

OFFICER
(if necessary per the above)
Linh Nguyen
Assistant City Attorney
Date <Insert Name>
<Insert Title>
Date

CITY OF SAN MATEO CONTRACTOR
Attachments:

Exhibit A: Insurance Requirements

110 of 268

9 3
8 8
Exhibit A
Insurance Requirements for Construction Contracts
Contractor shall procure and maintain for the duration of the contract, and for five years thereafter, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, his agents, representatives, employees, or subcontractors.

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

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

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

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

4.Surety Bonds as described below.

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

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

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

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

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

1.The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the Contractor.

General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).

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

111 of 268

9 3
8 8

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

Claims Made Policies – (If at all possible avoid and require occurrence type CGL policies) If any coverage required is written on a claims-made coverage form:

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

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

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

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

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

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

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

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

Subcontractors
Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors.

For CGL coverage subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.

Surety Bonds
Contractor shall provide the following Surety Bonds:

1. Bid bond

2. Performance bond

3. Payment bond

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

112 of 268

9 3
8 8
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances

113 of 268

CITY OF SAN MATEO
4 5
7 1

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 7 Section Name: CONSENT CALENDAR Account Number: 10-5112 File ID: 23-8189 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Police Department
MEETING DATE: December 04, 2023
SUBJECT:

Staffing of Police Officers at College of San Mateo Football Games – Agreement RECOMMENDATION:

Approve an agreement with the San Mateo County Community College District to staff Police Officers at the College of San Mateo home football games and authorize the Chief of Police to execute the agreement in substantially the form presented.

BACKGROUND:

The College of San Mateo hosts numerous football games on their campus throughout their college football season, and it has been past practice for the San Mateo Police Department to staff officers at these games as part of the overall security component. The San Mateo Community College District and the City had previously adopted an agreement outlining this relationship from 2018-2023; however, the agreement recently expired. Both the SMCCD and the Police Department wish to adopt an updated service agreement to continue this partnership, and the proposed agreement outlines the service details. The agreement in no way commits the Police Department to having to staff an officer if unable to do so for a variety of reasons.

The terms of the agreement run through June 30, 2026, with an option for the agreement to be extended for two additional years. The District will reimburse the City for the cost of officers, and the cost will increase annually, commensurate with the rates charged by the City’s comprehensive annual fee schedule. It is the City’s policy that City Council approve inter-governmental agency agreements.

BUDGET IMPACT:

The annual revenue generated by this agreement is expected to be negligible, with no negative budgetary impact.

ENVIRONMENTAL DETERMINATION:

This action is not a project subject to CEQA, because it can be seen with certainty that it will not cause a physical change in the environment. (Public Resources Code Section 21065.)

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 - Agreement

114 of 268

CITY OF SAN MATEO
4 5
7 1

STAFF CONTACT
Ed Barberini, Chief of Police
[email protected]
(650) 522-7600
Matt Lethin, Captain
[email protected]
(650) 522-7663

115 of 268

Location: ____________________________________ Agreement No. __________________ Standard Services Agreement – Modified 10/18/23 Page 1 of 8 3401 CSM Drive, San Mateo, CA 94402

STANDARD SERVICES AGREEMENT
WITH

CONTRACTOR NAME
This Agreement is entered into by and between the San Mateo County Community College Dis trict, a public educational agency (hereinafter called “District”) and the City of San Mateo, through the San Mateo Police Department, having its principal business address at 200 Franklin Park way, San Mateo, CA 94403 (hereinafter called "Contractor"). This Agreement shall become effectiv e upon the exec ution date of this Agreement by both Contractor and District, whichever shall later occur (the “Effective Date”). District and Contractor are referred to in this Agreement individually as “Party” and collectively as “Parties.” WHEREAS, it is necessary and desirable that Contractor be engaged by District for the purpose of performing services hereinafter described;
NOW, THEREFORE, in consideration of the mutual promises set forth below, the Parties agree as follows:

1. E
xhibits and Attachments. The following exhibits and attachments are attached to this Agreement and incorporated into this Agreement by this reference:

Exhibit A — Scope of Services
Exhibit B — Data Sharing and Security Standards (if applicable) Appendix 1 — Supplemental Terms and Conditions (if applicable)

2. S
ervices to be Provided by Contractor. Contractor shall perform the agreed-upon services as defined by the s
cope of work, deliverables, and standard of performance identified in Exhibit A, and in accordanc e with t he t
erms and conditions in this Agreement. The services listed in this Agreement and in Exhibit A are referred to as “Services."

3. T
erm. The term of this Agreement shall be from August 1st, 2023 through June 30, 2026.

3.1 Option to Extend. This Agreement may be renewed for additional time periods so long as: (1) the original Agreement Term plus the renewal periods does not exceed five years ; (2) both Parties execute a renewal in writing; and (3) insurance coverage continues pursuant to the requirements in Section 11 of this Agreement.

4. P
ayment. In consideration of the services rendered in accordance with all terms and conditions set forth herein and in Exhibit A, District shall make payment to Contractor in the manner specified in Exhibit A.

5. T
ermination. Either party may terminate this Agreement, in whole or in part, for its convenience at any time by w
ritten notice to Contractor thirty (30) days prior to the effective date of termination. In the event of termination, all finished or unfinished documents, data, studies, maps, photographs, reports, and materials (hereafter referred to as materials) prepared by Contractor under this Agreement shall become the property of the District and shall be promptly delivered to the District. In the event of termination under this section, Contractor shall be paid for all work satisfactorily performed through the date of termination. Such payment shall be that prorated portion of the full payment determined by comparing the work/services actually completed to the work/services required by the Agreement.

6. R
elationship of the Parties. It is understood that this is an Agreement by and between independent contractors and is not intended to, and shall not be construed to, create the relationship of agent, servant, employee, partnership, joint venture of association, or any other relationship whatsoever other than that of independent contractor. Except as District may specify in writing, Contractor shall have no authority, expressed or implied, to act on behalf of District in any capacity whatsoever. Contractor shall have no authority, expressed or implied, pursuant to this Agreement to bind District to any obligation whatsoever.

College of San Mateo
1179917

116 of 268

Standard Services Agreement – Modified 10/18/23 Page 2 of 8

7. Time of Performance. Time is of the essence and Contractor shall perform the services required by this Agreement in an expeditious and timely manner so as not to unreasonably delay the purpose of this Agreement.

8. Non-Discrimination. Contractor and District mutually agree that they will comply with all applicable Federal and California state anti -discrimination laws and regulations and agree not to unlawfully discriminate against any person, on the basis of race, color, age, ancestry, national origin, sex, religious creed, marital status, or physical or mental disability, or sexual orientation or any other category protected by law, including but not limited to, the California Fair Employment and Housing Act, and any other Federal or State laws and regulations related to Equal Employment Opportunity. Contractor's personnel policies shall be made available to District upon request. In addition, Contractor agrees to require like compliance by all hired subcontractors.

9. Ownership of Property. – Intentionally Omitted.

10. Licenses, Patents, Permits. Prior to commencement of work/services to be performed under this Agreement, Contractor shall apply for, obtain and maintain in current status, at his/her own expense, any license, permit or approval required from any agency for the performance of said work/services, or forfeit any right to compensation under this Agreement.

11. Insurance. Contractor shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, its agents, representatives, employees or subcontractors.

11.1 Minimum Scope and Limit of Insurance. Coverage shall be at least as broad as the amount(s) specified below:
a. Commercial General Liability in an amount not less than $1,000,000 per occurrence and $2,000,000 general aggregate for personal injury, bodily injury, death, other injury, and property damage. b. ☒ Automobile Liability in an amount not less than $1,000,000 per accident for bodily injury and property damage applicable to all owned, non-owned and hired vehicles. (to be checked if motor vehicle used in performing services) c. 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. d. Umbrella Liability in an amount not less than $2,000,000 per occurrence and general aggregate. e. ☐ Professional liability (Errors and Omissions): Insurance appropriate to the Contractor’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate. (to be checked if the work or a portion of the work is expected to involve the use of professional knowledge)

If the Contractor maintains higher limits than the minimums shown above, the District requires and shall be entitled to coverage for the higher limits maintained. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the District.

11.2 Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status . Contractor shall name District and its Board of Trustees, officers, employees, and agents as Additional Insured under its Commercial General Liability policy. b. Primary Coverage. Contractor’s insurance shall be primary to any insurance or self -insurance maintained by the District.
c. Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A( -)X, unless otherwise acceptable to the District.
d. Certificates of Insurance and Endorsements . Contractor shall furnish the District with original certificates of insurance and amendatory endorsements effecting coverages required by this

117 of 268

Standard Services Agreement – Modified 10/18/23 Page 3 of 8 Agreement and indicating a thirty (30) day cancellation notice or notice of reduction in coverage prior to the commencement of any work . However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. Contractor shall be responsible for all damages to persons or properties that occur as a result of Contractor's or Contractor's employees fault or negligence in connection with the performance of this Agreement.

12. Indemnification.

12.1 Contractor shall indemnify and save harmless the District and its officers, agents, employees, and servants from all claims, suits, or actions of every name, kind, and description resulting from this Agreement, the performance of any work or services required of Contractor under this Agreement, or payments made pursuant to this Agreement brought for, or on account of, any of the following: (a) injuries to or death of any person, including the Contractor’s employees/officers/agents; (b) damage to any property of any kind whatsoever and to whomever belonging; (c) any sanctions, penalties, or claims of damages resulting from Contractor’s failure to comply, if applicable, with the requirements set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended; or (d) any other loss or cost, including but not limited to that caused by the concurrent active or passive negligence of the District and/or its officers, agents, or servants. However, Contractor’s duty to indemnify and save harmless under this Section shall not apply to injuries or damage for which the Dist rict has be en found in a court of competent jurisdiction to be solely liable by reason of its own negligence or willful misconduct.

12.2 The duty of Contractor to indemnify and hold harmless, as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code.

12.3 The obligations set forth in this Section shall continue beyond the term of this Agreement as to any act or omission that occurred during or under this Agreement.

12.4 The indemnification and hold harmless agreement set forth above includes, but is not limited to, Contractor’s agreement at its sole expense to indemnify District, its officers, agents and employees from and defend or settle any claim or action brought against District to the extent that it is based on a claim that any services furnished hereunder infringed a patent, copyright, trademark, service mark, trade secret, or other legally protected intellectual property rights. Contractor shall pay all costs, fees (including attorneys' fees) and damages which may be incurred by District, its officers, agents and employees for any such claim or action or settlement thereof.

13. Accessibility. Contractor hereby warrants that the products and services to be provided under this Agreement comply with the accessibility requirements of Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d) and its implementing regulations set forth in Title 36, Code of Federal Regulations, part 1194.

Contractor agrees to promptly respond to and resolve any complaint regarding accessibility of its products and services which is brought to Contractor's attention. Contractor further agrees to indemnify and hold harmless the San Mateo County Community College District, its governing board, officers, employees and agents, the California Community Colleges Chancellor's Office, and any California community college using Contractor's products and services from any claim arising out of Contractor's failure to comply with the aforesaid requirements. Failure to comply with the aforesaid requirements shall constitute a breach and shall be cause for termination of this Agreement.

14. Assignability. Contractor shall not assign this Agreement or any portion thereof to a third party without the prior written consent of District, and any attempted assignment without such prior written consent in violation of this paragraph 14 is null and void and shall constitute a material breach of this Agreement by Contractor. In the event of any assignment, Contractor shall remain liable to District as principal for the performance of all obligations under this Agreement.

15. Failure to Perform. If, at any time, in the opinion of District, Contractor fails to render services of proper quality or has failed to perform, keep, and observe any of the terms or conditions herein contained on the part of Contractor to be performed, kept, and observed, District may give Contractor written notice to correct such conditions or cure such default; and if any such condition or default shall continue for ten (10) days after said

118 of 268

Standard Services Agreement – Modified 10/18/23 Page 4 of 8 written notice, then, and in that event, this Agreement shall cease and expire. Thereupon District or its duly authorized representative may employ other parties or carry this Agreement to completion as District may deem proper.

16. Force Majeure. Neither party shall be responsible for delays or failure in performance resulting from acts beyond the control of such parties. Such acts shall include, but not be limited to, Acts of God, labor disputes, civil disruptions, acts of war, pandemics, epidemics, fire, electrical power outages, earthquakes or other natural disasters, crisis incidents, major criminal investigation or serious local public safety matters.

17. Dispute Resolution. Should any dispute arise out of this Agreement, the parties agree to meet in mediation and attempt to reach a resolution with the assistance of a mutually agreed upon mediator. The mediation process shall provide for the selection, within fifteen (15) days of either party notifying the other of the existence of a dispute, by both parties of a disinterested third person as mediator and shall be concluded within forty-five (45) days from the commencement of the mediation unless a time requirement is extended by stipulation of both parties. If a mediated settlement is reached, neither party shall be the prevailing party for the purposes of the mediated settlement. Each party agrees to bear an equal quota of the expenses of the mediator. A party that refuses to participate in mediation or refuses to participate in the selection of a mediator cannot file a legal action. The non-refusing party shall be permitted to file a legal action immediately upon the other party’s refusal to participate in mediation or the selection of a mediator.

18. Waivers. No waiver by District of Contractor’s default of any terms or conditions hereof to be performed, kept, or observed by Contractor shall be construed to be or act as a waiver of any subsequent default of any of the terms and conditions herein contained.

19. Notices. All notices to be given between the parties hereto shall be in writing and may be served by commercial express/overnight courier service or by depositing the same in the United States mail, postage prepaid and certified receipt requested and addressed as follows:

For District:

San Mateo County Community College District
Office of the Executive Vice Chancellor of Administrative Services 3401 CSM Drive
San Mateo, CA 94402

For Contractor:

San Mateo Police Department
Matt Lethin, Captain/Field Operations Division
200 Franklin Parkway, San Mateo, CA 94403
Either party by written notice to the other party may change the address of the notice or the names of the persons or parties to receive written notices.

20. Expenditure of Public Funds. Contractor agrees to comply with Government Code Section 8546.7 which provides that any agreement involving expenditure of public funds in excess of $10,000 shall be subject to the examination and audit by the Auditor General for a period of three (3) years after final payment under the agreement.

21. Public Record. All agreements become the property of the District and as such become public documents available to be reviewed by the public upon request. Government Code Sections 6250 et. seq., the Public Records Act, define a public record as any writing containing information relating to the conduct of public business. “Writing” means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored. Any agreement may be published and made available to the public as part of the Board of Trustees approval process.

22. Protection of Confidential Information. - Intentionally Omitted.

119 of 268

Standard Services Agreement – Modified 10/18/23 Page 5 of 8

23. Severability. Should any part of this Agreement be declared through a final decision by a court or tribunal of competent jurisdiction to be unconstitutional, invalid, or beyond the authority of either party to enter into or to carry out, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement, absent the unexercised portion, can be interpreted reasonably to give effect to the intentions of the parties.

24. Amen
dments. This Agreement may be amended only by written instrument signed by both District and Contractor which writing shall state expressly that it is intended by the parties to amend the terms and conditions of this Agreement.

25. Gov
erning Law and Venue. This Agreement, including all exhibits attached hereto and incorporated herein by reference, shall be construed in and governed by the laws of the State of California. The parties consent to the exclusive jurisdiction and venue of the Superior Court of San Mateo County, California.

26. Ca
ptions. Any captions to or headings of the articles, sections, subsections, paragraphs, or subparagraphs of this Agreement are solely for the convenience of the parties, are not a part of this Agreement, and shall not be used for the interpretation or determination of validity of this Agreement or any provision hereof.

27. Co
ntrary Tax Positions. - Intentionally Omitted.

28. Co
unterparts and Electronic Signatures. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all which together shall constitute one and the same instrument. Both District and Contractor wish to permit this Agreement and future documents relating to this Agreement to be digitally signed in accordance with California Law. Any party to this Agreement may revoke such agreement to permit electronic signatures at any time in relation to all future documents by providing written notice pursuant to this Agreement.

29. En
tire Agreement. This Agreement, including all exhibits attached hereto and incorporated herein by reference, constitutes the sole agreement of the parties hereto and correctly states the rights, duties and obligations of each party. Any prior agreement, promises, negotiations, or representations between the parties not expressly stated in this document are of no force or effect. In the event of a conflict between the terms and conditions set forth herein and those in the exhibits attached hereto, the terms and conditions set forth herein shall prevail.

IN W
ITNESS WHEREOF, the respective parties have executed this Agreement on the dates indicated below.

CONTRACTOR SAN MATEO COUNTY COMMUNITY

COLLEGE DISTRICT
Signature Signature
Yanely Pulido, Director of General Services
Name/Title of Authorized Signatory
District Authorized Signatory

Date
Employer Identification Number:

Date
Federal Tax Payer Identification Number
(
EIN): _________________________ 94-3084147

120 of 268

Standard Services Agreement – Modified 10/18/23 Page 6 of 8

EXHIBIT A

SCOPE OF SERVICES

1. Des
cription of Services to be Performed and work product to be delivered to District by Contractor:
(reference and attach additional pages, if necessary)
Provide SMPD post-certified police officers to provide police services to CSM home football games, with payment rates subject to potential adjustment on an annual basis to correspond to the Outside Detail Rates for police services as adopted in the City of San Mateo’s Comprehensive Annual Salary Schedule.

2. Ro
les and Responsibilities:

Contractor agrees to:

Provide SMPD post-certified police officers to provide police services to CSM home football games Di
strict agrees to:

Provide payment in timely manner.

3. Ma
in Point of Contact:

Contractor District/College: College of San Mateo
Name: Matt Lethin Name: Jacqueline Pigozzi
Title: Captain, Field Operations Division Title: Assistant Athletic Director Phone: 650-522-7663 Phone: 650-574-6420
Email Address: [email protected] Email Address: [email protected]

4. Am
ount and Method of Payment:
☐ Single payment, upon successful completion of services/deliverables. ☒ Multiple payments. Explain how payments will be made (i.e., milestone payments, monthly payments etc.).

Pay
ment will be made when invoices are sent from the vendor for each game worked.

In any event, the total amount paid under this Agreement shall not exceed $5,000 annually.

Ser
vices shall be billed to “San Mateo County Community College District” and become payable after satisfactory completion of services and upon presentation of detailed invoice(s) specifying services being provided. All invoices must be reviewed and approved by assigned District/College Main Point of Contact prior to payment being made to Contractor. Contractor shall send invoices immediately upon performance of work with original receipts (if applicable), to: SMCCCD Accounts Payable Office, 3401 CSM Drive, San Mateo, CA 94402.

121 of 268

Standard Services Agreement – Modified 10/18/23 Page 7 of 8 APPENDIX 1

SUPPLEMENTAL TERMS AND CONDITIONS

1. Co
mpliance With Prevailing Wage and DIR Registration. Sections 1.1 or(and) 1.2 applicable only if the box(es) is(are) checked.
☐ 1.1 Employee / Prevailing Wages; Records; Apprentices. Pursuant to California Labor Codes 1771, 1774, and 1775, this Work is subject to compliance monitoring and enforcement by the Department of Industrial Relations. Contractor shall post job site notices as prescribed by regulation. Contractor and all subcontractors shall pay prevailing wages to its employees on any Agreement in excess of $1,000.00.

Copies of the prevailing rate of per diem wages are on file at Owner’s principal office. Contractor shall comply with the 8-hours per day/40 hours per week/overtime/working hours restrictions for all employees, pursuant to the California Labor Codes 1813 and 1815. Contractor and all subcontractors shall keep and maintain accurate employee payroll records for Work performed. The payroll records shall be certified and submitted as required by law, including Labor Code Section 1771.4 and 1776, including (if this Agreement is awarded on or after April 1, 2015 or continues on or after January 1, 2016) to the Labor Commissioner no less frequently than monthly. Contractor shall comply fully with Labor Code Section 1777.5 in the hiring of apprentices for work relating to this Agreement. If any Order exceeds $2,000 and is funded with federal funds, then Contractor shall pay federal Davis Bacon wages and comply with applicable federal requirements.
☐ 1.2 Mandatory Contractor and Subcontractor Registration. Pursuant to Labor Code Section 1771.1(a), Contractor represents that it and all of its Subcontractors are currently registered and qualified to perform public work pursuant to Labor Code Section 1725.5. Contractor covenants that any additional or substitute Subcontractors will be similarly registered and qualified.

2. CO
VID-19 Safety.

2.1 Contractor, for itself and its employees, agents and subcontractors, shall ensure that all services performed on District facilities under this A greement comply with applicable federal, State and local requirements regarding COVID-19. The Contract Price shall include all such costs of compliance.

2.2 Contractor shall have protocols and procedures in place during the term of the Agreement to prevent the spread of coronavirus (SARS- CoV-2). Measures implemented shall at a minimum follow applicable legal mandates and guidance regarding COVID-19.

2.3 Contractor agrees to indemnify and save harmless the District and its officers, agents, employees, and servants from all claims, suits, or actions of every name, kind, and description arising from or related to Contractor’s obligations under Section 1 (COVID-19 Safety) of this Appendix 1. The duty of Contractor to indemnify and save harmless, as set forth herein, shall include the duty to defend as established in Section 2778 of the California Civil Code.

3. Rem
ote Services/Use of Virtual Online Platforms . With District’s written consent, Contractor may provide services to District remotely, including by means of telephone or internet telephony, or over the internet through the use of virtual online platforms. Any live event will be broadcast through a private transmission solely sent to invited participants in the virtual attendance through a secure and password protected online platform. Contractor will work with District/College’s Point of Contact to set up the remote transmission and to ensure optimal broadcasting quality and security measures are in place leading up to the live event. Contractor will provide standard equipment including working computer with camera and computer microphone, reliable high-speed internet, and video capability. Prior to the event date, District will provide login links with instructions and download links to any required software programs at no cost to Contractor.

4. Rei
mbursable Expenses. Contractor may bill for reimbursable expenses incurred only in connection with the Scope of Services. Authorized reimbursables shall be billed by Contractor to the District at cost (1.0) times the expense incurred by the Contractor and subcontractors. Contractor shall submit invoices for expense costs with Contractor’s invoice for payment. Expenses must be supported with documentation that includes but is not limited to receipts, invoices, etc., which clearly associate the expense with the Services.

4.1 “Reimbursable Expe nses” mean actual expenses incurred by Contractor or subcontractors, such as expenses for: transportation and subsistence incidental thereto; toll telephone calls and telegrams, mail and overnight delivery services; reproduction of reports, drawings, specifications and similar publications related to the Services.

4.2 Reimbursable Expenses shall not include Local Travel.

122 of 268

Standard Services Agreement – Modified 10/18/23 Page 8 of 8

4.3 “Local Travel” means travel between Contractor’s offices and San Mateo County, and travel to any location within a fifty-mile radius of either Contractor’s office or San Mateo County.

4.4 Travel expense beyond Local Travel for travel by automobile shall be reimbursed at the current rate set by the U.S. Government, and for travel by other means shall be the actual expense incurred by Contractor.

5. Not Used.

123 of 268

CITY OF SAN MATEO
4 3
4 7

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 8 Section Name: CONSENT CALENDAR Account Number: 10-3159 File ID: 23-7739 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Community Development Department
MEETING DATE: December 4, 2023
SUBJECT:

Child Care Facilities Fund Loan for Improvements at 2575 Flores Street – Agreement RECOMMENDATION:

Adopt a Resolution to approve a Child Care Facilities Fund loan of $430,000 to Mighty Tiger Preschool, LLC for tenant improvements at 2575 Flores Street, Suite 1, San Mateo to establish a new child care facility, and authorize the City Manager to execute the loan agreement, promissory note, short form deed of trust and agreement containing covenants affecting real property and all related documents in such a manner that does not substantially change the loan terms.

BACKGROUND:

The Child Care Facilities Fund was originally established in 2004 with the Child Care Development Fee to address the critical need for more childcare spaces in the City. It took several years to receive sufficient fee revenue to facilitate financial assistance for projects that result in an increase in new, licensed, and high-quality childcare spaces. In October 2018, the City Council approved the Interim Child Care Fund Guidelines and authorized the release of a Notice of Funding Available (NOFA) in 2019, making San Mateo the first jurisdiction in the County to offer funds for childcare construction.

That NOFA resulted in the completion of three childcare projects which created a total of 98 new, licensed childcare spaces; with six of those spaces dedicated for infants of low-income families, which helps address a critical childcare need.

Despite several challenges for each of the borrowers, the three projects completed construction and opened during the first two years of the Covid-19 pandemic with limited capacity. The three completed facilities continue to operate and have been increasing their attendance as conditions and staffing allow.

The 2019 NOFA experience provided lessons and new ideas. There has been a longtime need for greater amount of information and assistance for potential childcare providers who are interested in starting or expanding their businesses.

With feedback and advocacy from childcare professionals and the lessons learned from the first completed projects, the City developed a comprehensive program for creating child care facilities. The first and most important tool is the new Child Care Start Up Guide, which is available in both English and Spanish. This publication is available on the City’s website (www.cityofsanmateo.org/childcarefacilitiesfund ) and helps identify important definitions, key steps and information about local and state requirements, and to navigate the City's permit process.

The Site Assessment Report is a unique service offered by the City that was created in response to the common questions received by potential child care providers and offers the most important information needed when selecting a location for a child care facility. This is a service available for anyone who is prepared with some basic information of the location and plans for the facility and needs help in determining if a potential property or location is viable. The site assessment is conducted by a collaborative of several divisions of the Community Development Department including the childcare facilities loan program staff, a plan checker, a building inspector, and a planner; a fire inspector with the San Mateo Consolidated Fire Department; and a representative from the Public Works Engineering team. This is a free and valuable opportunity for a cross-department service from City staff, especially for those who may not be as familiar with the various

124 of 268

CITY OF SAN MATEO
4 3
4 7
requirements specific to childcare facilities. It is intended to provide a broad summary of the conditions, requirements, and/or recommendations that can help inform the viability of a potential location. Loan applicants are required to complete this assessment to use for project planning and budgeting.

For those interested in obtaining financial assistance, the City has a variety of methods. To date, the primary method has been secured loans. The funds are legally restricted to capital expenditures only which is limited to construction and elements that are fixed in the property. The funds may not be used for operational or programmatic expenditures. These loans are available to childcare providers and/or developers to specifically develop, expand, or otherwise enhance childcare facilities resulting in new licensed child care spaces. The benefits to the loan option are that the terms include zero percent interest, deferred/no payments, and a loan forgiveness schedule based on the amount of money borrowed.

The loan forgiveness is contingent upon consistently meeting the annual performance requirements.

The City completed a comprehensive fee study in 2021 that included updates for applicability and increase of the Child Care Development Fee and adopted Municipal Code Chapter 23.65 Child Care Development Fee. The City Council revised the Interim Child Care Fund Guidelines in August 2022 to include the revised fee, new ordinance, additional information about the loan terms, and program processes. Upon approval of the interim guidelines, the Child Care Facility Fund (CCFF) program was initiated and was made available to applicants on a first-come first-serve basis with a priority for requests from projects that are the most “shovel ready”. The Child Care Development Fee that was adopted for FY 2023-2024 is $4,677.29 for a new single-family residential unit and $3,373.46 for a new multi-family unit. For new commercial development, which includes retail, office, industrial and hotels, the fee ranges from $0.14 to $0.67 per square-foot of new floor area.

DISCUSSION:

On April 12, 2023, Geoffrey Choy and Ruth H. Choy were the first applicants for the new CCFF program who inquired about obtaining a loan. Ms. Choy is an elementary teacher and operated a licensed small family childcare business in Belmont.

That business expanded to the current large family childcare business, which is currently running at full capacity. They have identified a new location at 2575 Flores Street in San Mateo to expand their business to create a new childcare center. They are in the process of obtaining a Child Care Center License and will transfer their existing Large Family Child Care Home license to the child care center license. Mr. Choy has a business background in small business lending and many years of project management with the federal government, the nonprofit sector, and the tech sector.

Prior to their inquiry, Mr. Choy had already reviewed the CCFF program materials and submitted his request for the Site Assessment Report with his inquiry. The assessment was completed onsite on May 4, 2023, including Mr. Choy, City staff, and Mr. Choy’s selected architect for his project. The report outcome supported the determination that the proposed location is viable, concurrent with the plans of the applicants. With a viable location confirmed, the next step was for the applicants to complete and submit the loan application, which was submitted on May 30, 2023.

Staff reviewed the initial application and provided follow up questions, along with recommended adjustments to the requested budget. Mr. Choy provided adequate responses that supported a complete application. Upon determination of a complete application, the staff committee of the Interim Department Director, Housing Manager, and Sr. Management Analyst assessed the application. The committee had some clarifying questions regarding the project completion timeline and received the subsequent satisfactory responses.

With the determination of the loan application as viable, the committee recommends City Council approval of the $430,000 loan to Mighty Tiger Preschool, LLC, resulting in 48 new licensed childcare spaces per the Resolution in Attachment 1. This loan and tenant improvements are comparable to one of the earlier project loans provided by the CCFF program, which was for $464,000. The borrowers will be required to enforce prevailing wage requirements in accordance with California law, and the loan forgiveness period will be 10 years. The documents to process the loan are included as Exhibit 1. Property owner CBR Flores LLC has reviewed the loan and understands that the agreement is effective upon the executing signature of the City. The termination of the loan agreement will occur on the earlier of: (1) the borrower satisfying the Program Requirements for ten (10) years during the Term, in which case the entire Loan amount shall be forgiven; (2) the full repayment of the loan; or (3) thirty (30) years after the effective date.

125 of 268

CITY OF SAN MATEO
4 3
4 7
BUDGET IMPACT:

The Child Care Facility Fund currently has approximately $1,300,000 allocated funds available for projects, sufficient to fund the $430,000 loan.

ENVIRONMENTAL DETERMINATION:

The loan agreement and related childcare facility improvements are categorically exempt from CEQA as an “existing facility,” because it consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. (CEQA Guidelines Section 15301.)

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 – Proposed Resolution
Exhibit 1 – Loan Agreement
Exhibit 2 – Promissory Note
Exhibit 3 – Short Form Deed of Trust
Exhibit 4 – City Use Agreement

STAFF CONTACT
Eloiza Murillo-Garcia, Housing Manager
[email protected]
(650) 522-7223

126 of 268

1 660\01\2564992.4

CITY OF SAN MATEO
RESOLUTION NO. ____ (2023)

APPROVING A CHILD CARE FACILITIES FUND LOAN OF $430,000 TO MIGHTY TIGER PRESCHOOL, LLC FOR TENANT IMPROVEMENTS AT 2575 FLORES STREET, SUITE 1 IN SAN

MATEO TO ESTABLISH A NEW CHILD CARE FACILITY AND AUTHORIZING THE EXECUTION OF

LOAN DOCUMENTS

WHEREAS, the City Council has prioritized its commitment to providing and developing innovative approaches to increase the supply of child care spaces within our community and strives to serve as a model for other communities throughout the county and the country; and

WHEREAS, on November 15, 2021, the City Council adopted an ordinance codifying Chapter 23.65, “Child Care Development Fee;” and

WHEREAS, on August 15, 2022, the City Council approved the revision of the Interim Child Care Fund Guidelines facilitating the implementation of the Child Care Facilities Fund program; and

WHEREAS, in November 2022, the new Child Care Facilities Fund program was launched, allowing for access to funding assistance on an open and rolling basis; and

WHEREAS, in April 2023, the first request for financial assistance from the Child Care Facilities Fund was submitted; and

WHEREAS, a City staff committee including the Housing Manager, the Interim Community Development Department Director, and Senior Management Analyst reviewed the project application for viability and concurred in a recommendation of approval for a loan in the amount of $430,000 to Mighty Tiger Preschool, LLC for tenant improvements at 2575 Flores Street, Suite 1 in San Mateo to establish a new child care facility.

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

1. This loan is not a project subject to CEQA, because it is an organizational and administrative activity that will not result in direct or indirect physical changes in the environment. (CEQA Guidelines Section 15378(b)(5).) In addition, the child care facility is categorically exempt from CEQA as an “existing facility,” because it consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. (CEQA Guidelines Section 15301.)

127 of 268

2 660\01\2564992.4

2. Funds have previously been allocated to CIP project CHILD CARE FACILITIES 310600 with a balance of $1,300,000 and the loan will be drawn from project PRJ-00016.

3. The project loan listed below is approved and the City Manager or his designee is authorized to execute the loan documents, including the Loan Agreement Between the City of San Mateo and Mighty Tiger Preschool, LLC ( Exhibit 1), Promissory Note (Exhibit 2), Short Form Deed of Trust (Exhibit 3) and Agreement Containing Covenants Affecting Real Property (Exhibit 4) and any related documents that do not substantially change the loan terms, on behalf of the City:
a. Mighty Tiger Preschool, LLC - $430,000

128 of 268

3 660\01\2564992.4
Exhibit 1

LOAN AGREEMENT

BETWEEN

CITY OF SAN MATEO

AND

MIGHTY TIGER PRESCHOOL, LLC

129 of 268

4 660\01\2564992.4
ARTICLE 1. DEFINITIONS AND EXHIBITS ............................................................................. 7 Section 1.1 Definitions................................................................................................... 7 Section 1.2 Exhibits. ...................................................................................................... 8 ARTICLE 2. LOAN PROVISIONS ............................................................................................... 9 Section 2.1 Loan. ........................................................................................................... 9 Section 2.2 Interest......................................................................................................... 9 Section 2.3 Use of Loan Funds. ..................................................................................... 9 Section 2.4 Security. ...................................................................................................... 9 Section 2.5 Subordination. ............................................................................................. 9 Section 2.6 Conditions Precedent to Disbursement of Loan Funds............................. 10 Section 2.7 Repayment Schedule. ................................................................................ 12 Section 2.8 Non-Recourse. .......................................................................................... 12 Section 2.9 Compliance with Laws. ............................................................................ 13 Section 2.10 State Prevailing Wages. ............................................................................ 13 Section 2.11 Accessibility. ............................................................................................. 14 Section 2.12 Equal Opportunity. .................................................................................... 14 Section 2.13 Change in Development; Progress Reports. ............................................. 15 Section 2.14 Inspections. ............................................................................................... 15 Section 2.15 Approved Development Budget; Revisions to Budget. ............................ 15 Section 2.16 Construction Contract. .............................................................................. 15 Section 2.17 Performance and Payment Bonds. ............................................................ 15 Section 2.18 Commencement and Completion of Construction. ................................... 17 ARTICLE 3. LOAN REQUIREMENTS ...................................................................................... 17 Section 3.1 Annual Report; Information. ..................................................................... 17 Section 3.2 Hazardous Materials. ................................................................................ 17 Section 3.3 Maintenance; Damage and Destruction. ................................................... 19 Section 3.4 Fees and Taxes. ......................................................................................... 20 Section 3.5 Operation of Development as Childcare Facility. ..................................... 20 Section 3.6 Nondiscrimination..................................................................................... 20 Section 3.7 Transfer. .................................................................................................... 20 Section 3.8 Insurance Requirements. ........................................................................... 21 ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF BORROWER ......................... 22 Section 4.1 Representations and Warranties. ............................................................... 22 ARTICLE 5. DEFAULT AND REMEDIES ................................................................................ 24 Section 5.1 Events of Default. ..................................................................................... 24 Section 5.2 Remedies. .................................................................................................. 25 Section 5.3 Right of Contest. ....................................................................................... 26 Section 5.4 Remedies Cumulative. .............................................................................. 26

130 of 268

5 660\01\2564992.4
ARTICLE 6. GENERAL PROVISIONS ..................................................................................... 26 Section 6.1 Relationship of Parties. ............................................................................. 26 Section 6.2 No Claims. ................................................................................................ 27 Section 6.3 Amendments. ............................................................................................ 27 Section 6.4 Indemnification. ........................................................................................ 27 Section 6.5 Non-Liability of City Officials, Employees and Agents. ......................... 27 Section 6.6 No Third Party Beneficiaries. ................................................................... 28 Section 6.7 Discretion Retained By City. .................................................................... 28 Section 6.8 Notices, Demands and Communications. ................................................. 28 Section 6.9 Applicable Law. ........................................................................................ 28 Section 6.10 Parties Bound. ........................................................................................... 28 Section 6.11 Attorneys' Fees. ......................................................................................... 29 Section 6.12 Severability. .............................................................................................. 29 Section 6.13 Force Majeure. .......................................................................................... 29 Section 6.14 City Approval............................................................................................ 29 Section 6.15 Waivers. .................................................................................................... 29 Section 6.16 Title of Parts and Sections. ....................................................................... 29 Section 6.17 Entire Understanding of the Parties. ......................................................... 29 Section 6.18 Multiple Originals; Counterpart. ............................................................... 30

Exhibit A Legal Description of the Property
Exhibit B Approved Development Budget
Exhibit C Program Requirements
Exhibit D Form of Annual Report

131 of 268

6 660\01\2564992.4

LOAN AGREEMENT
(City of San Mateo Child Care Loan Program)
This Loan Agreement (the “Agreement”) is dated as of _______________, 20___ (the “Effective Date”), and is between the City of San Mateo, a California municipal corporation (the “City”), and MIGHTY TIGER PRESCHOOL, a California Limited Liability Company (“Borrower”).

RECITALS
A. In addition to defined terms in these recitals, defined terms used, but not defined, in these recitals are as defined in Article 1 of this Agreement.

B. On August 15, 2022, the City Council approved revision of the Interim Child Care Fund Guidelines for Child Care Fund Program (the “Program”).

C. Borrower leases the real property commonly known as 2575 Flores St, Suite 1, San Mateo, California, as more particularly described in Exhibit A (the “Property”), and the Borrower desires to construct, or otherwise expand, an approximately three thousand three hundred seven (3,307) square foot childcare facility to provide child care services for up to forty-eight (48) participants on the Property (the “Development”). The Development and any additional improvements constructed on the Property are referred to as the “Improvements”. The Property Owner has provided consent for the Improvements.

D. Borrower owns the real property more commonly known as 115 Agustin Narvaez Street #4, San Jose, California, as more particularly described in Exhibit A (the “Collateral Property”), and Borrower desires to use this real property as collateral for the Loan.

E. Borrower submitted an application and the City has selected the Borrower’s application for funding. Pursuant to the Program the Borrower desires to borrow from the City, and the City desires to lend to the Borrower four hundred thirty thousand Dollars ($430,000) (the “Loan”) for the development of the Development.

F. The Loan is evidenced by the Note, the Regulatory Agreement, and is secured by the Deed of Trust. The Loan is being made solely to finance the construction of the Development, and is intended to increase the supply of quality childcare within the City. Due to the assistance provided Borrower through the Loan, the City is requiring the Borrower to enter into the Regulatory Agreement.

The Parties therefore agree as follows:

132 of 268

7 660\01\2564992.4

AGREEMENT

ARTICLE 1.

DEFINITIONS AND EXHIBITS
Section 1.1 Definitions. The following terms have the following meanings:
(a) “Agreement” means this Loan Agreement.
(b) “Annual Report” shall mean the Borrower’s annual report to the City regarding the Borrower’s compliance with the Program Requirements. A form of the Annual Report is attached as Exhibit D.
(c) “Approved Development Budget” means the proforma budget for the construction of the Development, including sources and uses of funds, as approved by the City, and attached hereto and incorporated herein as Exhibit B. (d) “City” means the City of San Mateo, a municipal corporation. (e) “Deed of Trust” means the Short Form Deed of Trust and Assignment of Rents of even date herewith among Borrower, as Trustor, First American Title Company Title Company, as trustee, and the City, as beneficiary, that will encumber the Collateral Property to secure repayment of the Loan and performance of the covenants of the Loan Documents. (f) “Default Rate” means the lesser of the maximum rate permitted by law and ten percent (10%) per annum.
(g) “Development” has the meaning set forth in Paragraph C of the Recitals. (h) “Event of Default” has the meaning set forth in Section 5.1. (i) “Hazardous Materials” means: (1) any substance, material, or waste that is petroleum, petroleum-related, or a petroleum by-product, asbestos or asbestos-containing material, polychlorinated biphenyls, flammable, explosive, radioactive, freon gas, radon, or a pesticide, herbicide, or any other agricultural chemical; and (2) any waste, substance or material defined as or included in the definition of “hazardous substances”, “hazardous wastes”, “hazardous materials”, “toxic materials”, “toxic waste”, “toxic substances”, or words of similar import under any Hazardous Materials Law.
(j) “Hazardous Materials Claims” means with respect to the Property: (1) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Borrower or the Property pursuant to any Hazardous Materials Law; and (2) all claims made or threatened by any third party against Borrower or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials.
(k) “Hazardous Materials Law” means any federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials, health, industrial hygiene, environmental conditions, or the regulation or protection of the environment, and all

133 of 268

8 660\01\2564992.4
amendments thereto as of this date and to be added in the future and any successor statute or rule or regulation promulgated thereto.
(l) “Improvements” has the meaning set forth in Paragraph C of the Recitals. (m) “Loan Documents” means this Agreement, the Note, the Regulatory Agreement, and the Deed of Trust.
(n) “Loan” has the meaning set forth in Paragraph D of the Recitals. (o) “Note” means the promissory note of even date herewith that evidences Borrower’s obligation to repay the Loan.
(p) “Program Requirements” shall mean the requirements set forth in Exhibit C, including, but not limited to, the Borrower’s obligation to provide child care services at the Property in accordance with the Loan Documents.
(q) “Property” has the meaning set forth in Paragraph C of the Recitals. “Collateral Property” has the meaning set forth in Paragraph C of the Recitals. (r) “Regulatory Agreement” means the Agreement Containing Covenants Affecting Real Property, of even date herewith, between the City and Borrower related to the Loan, to be recorded against the Property.
(s) “Retention Amount” means ten percent (10%) of each disbursement of the Loan made by the City to Borrower (other than the final disbursement of the Loan). (t) “Senior Loan” has the meaning set forth in Section 2.5. (u) “Term” means the term of the Loan which shall commence on the Effective Date and shall terminate on the earlier of: (i) the full forgiveness of the Loan by the City, in accordance with the Note; (ii) the full repayment of the Loan; or (iii) thirty (30) years following the Effective Date.
(v) “Transfer” has the meaning set forth in Section 3.8 below.

Section 1.2 Exhibits.

The following exhibits are attached to this Agreement and incorporated into this Agreement by this reference:

Exhibit A: Legal Description of the Property
Exhibit B: Approved Development Budget
Exhibit C: Program Requirements
Exhibit D: Form of Annual Report

134 of 268

9 660\01\2564992.4
ARTICLE 2.

LOAN PROVISIONS
Section 2.1 Loan.

Upon satisfaction of the conditions set forth in Section 2.6 of this Agreement, the City shall lend to Borrower the Loan for the purposes set forth in Section 2.3 of this Agreement.

Borrower’s obligation to repay the Loan is evidenced by the Note.

Section 2.2 Interest.
(a) Loan. Subject to the provisions of subsection (b) below, no interest will accrue on the outstanding principal balance of the Loan. (b) Default Interest. Upon the occurrence of an Event of a Default, interest on the outstanding principal balance of the Loan will begin to accrue, beginning on the date of such occurrence and continuing until the date the Loan is repaid in full or the Event of Default is cured, at which time the accrued interest shall be automatically forgiven at the Default Rate.

Section 2.3 Use of Loan Funds.

Borrower shall use the Loan for the construction of the Development consistent with the Approved Development Budget. Borrower may not use the Loan proceeds for any other purposes without the prior written consent of the City.

Section 2.4 Security.

In consideration of the Loan, Borrower shall: (a) secure its obligation to repay the Loan, as evidenced by the Note, by executing the Deed of Trust, and cause or permit it to be recorded as a lien against the Collateral Property, and (b) execute the Regulatory Agreement, and cause or permit it to be recorded against the Property.

Section 2.5 Subordination.
(a) Any agreement by the City to subordinate the Deed of Trust and/or Regulatory Agreement to an encumbrance securing and/or evidencing any loan obtained by Borrower to finance the Development (each, a “Senior Loan”) shall be subject to the satisfaction of each of the following conditions:
(1) All of the proceeds of the Senior Loan, less any transaction costs, are used to provide acquisition, construction and/or permanent financing for the Development. (2) The lender of the Senior Loan is a state or federally chartered financial institution, a nonprofit corporation or a public entity that is not affiliated with Borrower or any of Borrower’s affiliates, other than as a depositor or a lender. (3) Borrower demonstrates to the City’s satisfaction that subordination of the Deed of Trust and the Regulatory Agreement is necessary to ensure the viability of the Development, including the operation of the Development as a childcare facility, as required by

135 of 268

10 660\01\2564992.4
the Loan Documents. To satisfy this requirement, Borrower must provide to the City, in addition to any other information reasonably required by the City, evidence demonstrating that the proposed amount of the Senior Loan is necessary to provide adequate acquisition, construction, and/or permanent financing to ensure the viability of the Development, and adequate financing for the Development would not be available without the proposed subordination. (4) The subordination agreement(s) is structured to minimize the risk that the Deed of Trust and the Regulatory Agreement will be extinguished as a result of a foreclosure by the holder of the Senior Loan. To satisfy this requirement, the subordination agreement must provide the City with adequate rights to cure any defaults by Borrower, including: (i) providing the City or its successor with copies of any notices of default at the same time and in the same manner as provided to Borrower; and (ii) providing the City with a cure period of at least sixty (60) days to cure any default. (5) The subordination(s) of the Loan is effective only during the original term of the Senior Loan and any extension of its term that is approved in writing by the City.
(6) The subordination does not limit the effect of the Deed of Trust and the Regulatory Agreement before a foreclosure, nor require the consent of the Bank prior to the City exercising any remedies available to the City under the Loan Documents. (b) Upon a determination by the City Manager that the conditions in this Section have been satisfied, the City Manager, or his/her designee, will be authorized to execute the approved subordination agreement without the necessity of any further action or approval.

Section 2.6 Conditions Precedent to Disbursement of Loan Funds. (a) Conditions to Disbursement. The total disbursements made pursuant to this Section 2.6 may not exceed four hundred thirty thousand Dollars ($430,000). The City is not obligated to disburse any portion of the Loan, or to take any other action under the Loan Documents unless all of the following conditions have been and continue to be satisfied:
(1) There exists no Event of Default nor any act, failure, omission or condition that would constitute an Event of Default under the Loan Documents; (2) Borrower holds a legal or equitable property interest in the Property or is acquiring a legal or equitable property interest in the Property simultaneously with the disbursement of the Loan proceeds;
(3) Borrower has delivered to the City a copy of a corporate resolution authorizing Borrower to obtain the Loan, and execute the Loan Documents; (4) There exists no material adverse change in the financial condition of Borrower from that shown by the financial statements and other data and information furnished by Borrower to the City prior to the Effective Date;

136 of 268

11 660\01\2564992.4
(5) Borrower has furnished the City with evidence of the insurance coverage meeting the requirements of Section 3.8 below; (6) Borrower has executed and delivered to the City the Loan Documents and has caused all other documents, instruments, and policies required under the Loan Documents to be delivered to the City, including, but not limited to the construction contract, the payment and performance bonds, and the applicable permits for the construction of the Development, all as more particularly set forth below; (7) The Deed of Trust has been recorded against the Collateral Property in the Office of the Recorder of the County of Santa Clara, and the Regulatory Agreement has been recorded against the Property in the Office of the Recorder of the County of San Mateo;
(8) A title insurer reasonably acceptable to the City is unconditionally and irrevocably committed to issuing an LP-10 2006 ALTA Lender’s Policy of title insurance insuring the priority of the Deed of Trust in the amount of the Loan, subject only to such exceptions and exclusions as may be reasonably acceptable to the City, and containing such endorsements as the City may reasonably require. To the extent applicable, the Borrower shall provide whatever documentation (including an indemnification agreement), deposits or surety is reasonably required by the title company in order for the City’s Deed of Trust to be senior in lien priority to any mechanics liens in connection with any start of work that has occurred prior to the recordation of the Deed of Trust against the Collateral Property; (9) The City has received a written draw request from Borrower, including certification that the condition set forth in Section 2.6(a)(1) continues to be satisfied, and setting forth the proposed uses of funds consistent with this Agreement, the amount of funds needed less the Retention Amount, and, where applicable, a copy of the bill or invoice covering a cost incurred or to be incurred. When a disbursement is requested to pay any contractor in connection with work performed on, or for the benefit of, the Property, the written request must be accompanied by lien releases and/or mechanics lien title insurance endorsements reasonably acceptable to the City. The City reserves the right to inspect the Property and make an independent evaluation that all work has been completed. (b) Retention Amount. The City is not obligated to disburse any portion of the Retention Amount unless all of the following conditions have been and continue to be satisfied:
(1) There exists no Event of Default nor any act, failure, omission or condition that would constitute an Event of Default under this Agreement; (2) Borrower has caused the completion of the construction of the Development (as evidenced by a certificate of occupancy, or equivalent document); and (3) The City has received a written draw request from Borrower, including certification that the condition set forth in Section 2.6(a)(1) continues to be satisfied, and setting forth the proposed uses of funds consistent with this Agreement, the amount of the Retention Amount requested, and, where applicable, a copy of the bill or invoice covering a cost

137 of 268

12 660\01\2564992.4
incurred or to be incurred. When a disbursement is requested to pay any contractor in connection with work performed on, or for the benefit of, the Property, the written request must be accompanied by lien releases and/or mechanics lien title insurance endorsements reasonably acceptable to the City. The City reserves the right to inspect the Property and make an independent evaluation that all work has been completed.

Section 2.7 Repayment Schedule.
(a) Partial Forgiveness. For each year the Borrowers satisfies the Program Requirements, as evidenced by the City’s approval of the Annual Report, in accordance with Section 3.1, the City shall forgive a portion of the Loan in an amount equal to ten percent (10%) of the original principal amount four hundred thirty thousand Dollars ($430,000). In the event the Borrower satisfies the Program Requirements for ten (10) years, during the Term, then the entire Loan amount shall be forgiven, and in such event, the following shall occur: (i) this Agreement shall terminate; (ii) the City shall mark the Note as “Cancelled” and return the original Note to the Borrower; and (iii) the City shall cause the reconveyance of the Deed of Trust and termination of the Regulatory Agreement. In the event the Borrower fails to satisfy the Program Requirements for ten (10) years during the Term, then upon expiration of the Term, the Loan (less any portion previously forgiven by the City pursuant to the Loan Documents) shall be immediately due and payable.
(b) Payment in Full of Loan. Borrower shall pay all outstanding principal and accrued interest on the Loan, in full, on the earliest to occur of: (i) any Transfer other than as permitted pursuant to Section 3.7; (ii) an Event of Default; and (iii) the expiration of the Term. (c) Prepayment. Borrower may prepay the Loan at any time without premium or penalty.

Section 2.8 Non-Recourse.

Except as provided below, Borrower shall not have any direct or indirect personal liability for payment of the principal of, and interest on, the Loan. Following recordation of the Deed of Trust, the sole recourse of the City with respect to the principal of, or interest on, the Note will be to the property described in the Deed of Trust; provided, however, that nothing contained in the foregoing limitation of liability limits or impairs the enforcement of all the rights and remedies of the City against all such security for the Note, or impairs the right of City to assert the unpaid principal amount of the Note as demand for money within the meaning and intendment of Section 431.70 of the California Code of Civil Procedure or any successor provision thereto. The foregoing limitation of liability is intended to apply only to the obligation to repay the principal and interest on the Note. Except as hereafter set forth; nothing contained herein is intended to relieve Borrower of its obligation to indemnify the City under this Agreement, or liability for: (i) loss or damage of any kind resulting from waste, fraud or willful misrepresentation; (ii) the failure to pay taxes, assessments or other charges which may create liens on the Property that are payable or applicable prior to any foreclosure under the Deed of Trust (to the full extent of such taxes, assessments or other charges); (iii) the fair market value of any personal property or fixtures removed or disposed of by Borrower other than in accordance with the Deed of Trust; and (iv) the misappropriation of any proceeds under any insurance

138 of 268

13 660\01\2564992.4
policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage, loss or destruction to any portion of the Property.

Section 2.9 Compliance with Laws. Borrower shall cause all work performed in connection with the Development to be performed in compliance with:
(a) All applicable laws, codes, ordinances, rules and regulations of federal, state, City or municipal governments or agencies now in force or that may be enacted hereafter; and
(b) All directions, rules and regulations of any fire marshal, health officer, building inspector, or other officer of every governmental agency now having or hereafter acquiring jurisdiction. Borrower may permit the work to proceed only after procurement of each permit, license, or other authorization that may be required by any governmental agency having jurisdiction, and Borrower is responsible to the City for the procurement and maintenance thereof.

Section 2.10 State Prevailing Wages.
(a) To the extent required by applicable law, Borrower shall:
(1) pay, and shall cause any consultants or contractors to pay, prevailing wages for the construction of the Development as those wages are determined pursuant to California Labor Code Sections 1720 et seq.; (2) cause any consultants or contractors to employ apprentices as required by California Labor Code Section 1777.5 et seq., and the implementing regulations of the Department of Industrial Relations (the “DIR”), and to comply with the other applicable provisions of California Labor Code Sections 1720 et seq., 1777.5 et seq., and implementing regulations of the DIR;
(3) keep and retain, and shall cause any consultants and contractors to keep and retain, such records as are necessary to determine if such prevailing wages have been paid as required pursuant to California Labor Code Section 1720 et seq., and apprentices have been employed are required by California Labor Code Section 1777.5 et seq.; (4) post at the Property, or shall cause the contractor to post at the Property, the applicable prevailing rates of per diem wages. Copies of the currently applicable current per diem prevailing wages are available from DIR; (5) cause contractors and subcontractors performing work on the Property to be registered as set forth in California Labor Code Section 1725.5; (6) cause its contractors and subcontractors, in all calls for bids, bidding materials and the construction contract documents for work on the Property to specify that:

139 of 268

14 660\01\2564992.4
(A) no contractor or subcontractor may be listed on a bid proposal nor be awarded a contract for work on the Property unless registered with the DIR pursuant to California Labor Code Section 1725.5; and
(B) the work at the Property is subject to compliance
monitoring and enforcement by the DIR;
(7) provide the City all information required by California Labor Code Section 1773.3 as set forth in the DIR’s online form PWC-100 within 2 days of the award of any contract (https://www
.dir.ca.gov/pwc100ext/);
(8) cause its contractors to post job site notices, as prescribed by regulation by the DIR; and
(9) cause its contractors to furnish payroll records required by California Labor Code Section 1776 directly to the Labor Commissioner, at least monthly in the electronic format prescribed by the Labor Commissioner. (b) Borrower shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the City) the City against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Borrower, its contractor and subcontractors) to pay prevailing wages as determined pursuant to California Labor Code Section 1720 et seq., to employ apprentices pursuant to California Labor Code Section 1777.5 et seq., to meet the conditions of California Labor Code Section 1771.4, and implementing regulations of the DIR, or to comply with the other applicable provisions of California Labor Code Sections 1720 et seq., 1777.5 et seq., and 1771.4, and the implementing regulations of the DIR, in connection with the work undertaken at the Property.

The requirements in this Section survive the repayment of the Loan, and the reconveyance of the Deed of Trust.

Section 2.11 Accessibility.

Borrower shall cause the Development to be constructed in compliance with all applicable federal and state disabled persons accessibility requirements including but not limited to the Americans with Disabilities Act; and Title 24 of the California Code of Regulations (collectively, the “Accessibility Requirements”). Borrower shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the City) the City against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Borrower, its architect, contractor and subcontractors) to construct the Development in accordance with the Accessibility Requirements. The requirements in this Section survive repayment of the Loan and the reconveyance of the Deed of Trust.

Section 2.12 Equal Opportunity.

During the construction of the Development, discrimination on the basis of race, color, creed, religion, age, sex, sexual orientation, marital status, national origin, ancestry, or disability in the hiring, firing, promoting, or demoting of any person engaged in the construction work on the Property is not allowed.

140 of 268

15 660\01\2564992.4
Section 2.13 Change in Development; Progress Reports.

Following the Effective Date, the Borrower shall not make any change to the total square footage of the Development or any other change that will result in the reduction of the permitted number of users of the childcare facility without the City’s prior written consent, which shall not be unreasonably withheld, delayed, or conditioned. Until such time as Borrower has received a certificate of occupancy from the City for the Development, Borrower shall provide the City with quarterly progress reports regarding the Property.

Section 2.14 Inspections.

Borrower shall permit and facilitate, and shall require its contractors to permit and facilitate, observation and inspection at the Development by the City and by public authorities during reasonable business hours during the Term, for the purposes of determining compliance with this Agreement.

Section 2.15 Approved Development Budget; Revisions to Budget.

As of the Effective Date, the City has approved the Approved Development Budget set forth in Exhibit B. Borrower shall submit any required amendments to the Approved Development Budget to the City for approval within five (5) days after the date Borrower receives information indicating that actual costs of the Development vary or will vary from the costs shown on the Approved Development Budget. Written consent of the City will be required to amend the Approved Development Budget.

Section 2.16 Construction Contract.
(a) Prior to commencement of work at the Property, Borrower shall submit to the City for its approval a draft of the proposed contract for the construction of the Development.

All work and professional services are to be performed by persons or entities licensed or otherwise authorized to perform the applicable work or service in the State of California. The City’s approval of the construction contract shall not be deemed to constitute approval of or concurrence with any term or condition of the construction contract except as such term or condition may be required by this Agreement.
(b) Upon receipt by the City of the proposed contract, the City shall promptly review same and approve or disapprove it within five (5) days. If the construction contract is not approved by the City, the City shall set forth in writing and notify Borrower of the City’s reasons for withholding such approval. Borrower shall thereafter submit a revised contract for City approval, which approval is to be granted or denied in five (5) days in accordance with the procedures set forth above.

Section 2.17 Performance and Payment Bonds.

Prior to the commencement of work at the Property, Borrower shall deliver to the City copies of labor and material bonds and performance bonds for the construction of the Development in an amount equal to one hundred percent (100%) of the scheduled cost of the work (the “Construction Bonds”). Such bonds shall: (i) be in a form reasonably acceptably to

141 of 268

16 660\01\2564992.4
the City; (ii) be issued by a surety licensed to do business in California, named in the current list of “Surety Companies Acceptable on Federal Bonds” as published in the Federal Register by the Audit Staff Bureau of Accounts, U.S. Treasury Department, and reasonably acceptable to the City; and (iii) name the City as a co-obligee.

142 of 268

17 660\01\2564992.4
Section 2.18 Commencement and Completion of Construction.

Borrower shall make best efforts to commence construction of the Development on or prior to October 1, 2023; provided, however, in no event shall Borrower cause any construction work to be performed on the Property unless and until the Borrower has obtained all necessary permits for such work from the City and/or any other applicable governmental authority.

Borrower acknowledges that nothing in this Agreement obligates the City to issue any permit to the Borrower or for any proposed work on the Property. Borrower shall make best efforts to diligently prosecute such work to completion by no later than January 31, 2024.

ARTICLE 3.

LOAN REQUIREMENTS
Section 3.1 Annual Report; Information.

No later than each March 1, throughout the Term, the Borrower shall submit to the City the Annual Report that includes the status of implementation of the Program Requirements for the preceding year. The Annual Report shall also include a narrative summarizing the annual efforts, highlights, and challenges in achievement of goals that assure a high-quality program and includes a description of professional development and/or continuing education for staff that support quality and continuous improvement. The Borrower’s submission of, and the City’s approval of, the Annual Report is a condition precedent to the annual forgiveness of the Loan (if any). In the event the City disapproves of an Annual Report, then the City shall deliver, within sixty (60) days after receipt of the Annual Report, a written notice to the Borrower setting forth, in reasonable detail, the reasons for the City’s disapproval. Upon approval by the City of the Annual Report, the City shall deliver a written notice to the Borrower setting forth the portion of the Loan forgiven and the remaining balance of the Loan. In addition to such Annual Report, Borrower shall deliver such other information regarding the Development the City may reasonably request from time to time during the Term, including, but not limited to any litigation affecting the Borrower or the Property, or any notices from any licensing agency.

Section 3.2 Hazardous Materials.
(a) Borrower shall keep and maintain the Property (including but not limited to, soil and ground water conditions) in compliance with all Hazardous Materials Laws and may not cause or permit the Property to be in violation of any Hazardous Materials Law. Borrower may not cause or permit the use, generation, manufacture, storage or disposal of on, under, or about the Property or transportation to or from the Property of any Hazardous Materials, except such of the foregoing as may be customarily used in projects like the Development or kept and used in and about property of this type.
(b) Borrower shall immediately advise the City in writing if at any time it receives written notice of any Hazardous Materials Claims, and Borrower’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be subject to California Health and Safety Code, Section 25220 et seq., or any regulation adopted in accordance therewith, or to be otherwise

143 of 268

18 660\01\2564992.4
subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials Law.
(c) The City has the right to join and participate in, as a party if it so elects, and be represented by counsel acceptable to the City (or counsel of its own choice if a conflict exists with Borrower) in any legal proceedings or actions initiated in connection with any Hazardous Materials Claims and to have its reasonable attorneys’ fees in connection therewith paid by Borrower.
(d) Borrower shall indemnify and hold harmless the City and its board members, supervisors, directors, officers, employees, agents, successors and assigns from and against any loss, damage, cost, fine, penalty, judgment, award, settlement, expense or liability, directly or indirectly arising out of or attributable to: (1) any actual or alleged past or present violation of any Hazardous Materials Law; (2) any Hazardous Materials Claim; (3) any actual or alleged past or present use, generation, manufacture, storage, release, threatened release, discharge, disposal, transportation, or presence of Hazardous Materials on, under, or about the Property; (4) any investigation, cleanup, remediation, removal, or restoration work of site conditions of the Property relating to Hazardous Materials (whether on the Property or any other property); and (5) the breach of any representation of warranty by or covenant of Borrower in this Section 3.5, and Section 4.1(l). Such indemnity shall include, without limitation: (A) all consequential damages; (B) the costs of any required or necessary investigation, repair, cleanup or detoxification of the Property and the preparation and implementation of any closure, remedial or other required plans; and (z) all reasonable costs and expenses incurred by the City in connection with clauses (A) and (B), including but not limited to reasonable attorneys’ fees and consultant fees except to the extent caused by the City’s active negligence or willful misconduct.

This indemnification applies whether or not any government agency has issued a cleanup order.

Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision include, but are not limited to: (1) losses attributable to diminution in the value of the Property, (2) loss or restriction of use of rentable space on the Property and/or the Collateral Property, (3) adverse effect on the marketing of any rental space on the Property, and (4) penalties and fines levied by, and remedial or enforcement actions of any kind issued by any regulatory agency (including but not limited to the costs of any required testing, remediation, repair, removal, cleanup or detoxification of the Property and/or the Collateral Property and surrounding properties). This obligation to indemnify will survive termination of this Agreement and will not be diminished or affected in any respect as a result of any notice, disclosure, knowledge, if any, to or by the City of Hazardous Materials.
(e) Without the City’s prior written consent, which will not be unreasonably withheld, Borrower may not take any remedial action in response to the presence of any Hazardous Materials on, under or about the Property, nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Material Claims, which remedial action, settlement, consent decree or compromise might, in the City’s judgment, impair the value of the City's security hereunder; provided, however, that the City’s prior consent is not necessary in the event that the presence of Hazardous Materials on, under, or about the Property either poses an immediate threat to the health, safety or welfare of any individual or is of such a nature that an immediate remedial response is necessary and it is not reasonably possible to obtain the City’s consent before taking such action, provided that in such event Borrower shall

144 of 268

19 660\01\2564992.4
notify the City as soon as practicable of any action so taken. The City agrees not to withhold its consent, where such consent is required hereunder, if: (i) a particular remedial action is ordered by a court of competent jurisdiction; (ii) Borrower will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action; (iii) Borrower establishes to the reasonable satisfaction of the City that there is no reasonable alternative to such remedial action which would result in less impairment of the City’s security hereunder; or (iv) the action has been agreed to by the City.
(f) Borrower hereby acknowledges and agrees that: (1) this Section is intended as the City’s written request for information (and Borrower’s response) concerning the environmental condition of the Property as required by California Code of Civil Procedure Section 726.5; and (2) each representation and warranty in this Agreement (together with any indemnity obligation applicable to a breach of any such representation and warranty) with respect to the environmental condition of the Property is intended by the Parties to be an “environmental provision” for purposes of California Code of Civil Procedure Section 736. (g) In the event that any portion of the Property is determined to be “environmentally impaired” (as that term is defined in California Code of Civil Procedure Section 726.5(e)(3)) or to be an “affected parcel” (as that term is defined in California Code of Civil Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting the City’s or the trustee’s rights and remedies under the Deed of Trust, the City may elect to exercise its rights under California Code of Civil Procedure Section 726.5(a) to: (1) waive its lien on such environmentally impaired or affected portion of the Property; and (2) exercise, (A) the rights and remedies of an unsecured creditor, including reduction of its claim against Borrower to judgment, and (B) any other rights and remedies permitted by law. For purposes of determining the City’s right to proceed as an unsecured creditor under California Code of Civil Procedure Section 726.5(a), Borrower will be deemed to have willfully permitted or acquiesced in a release or threatened release of Hazardous Materials, within the meaning of California Code of Civil Procedure Section 726.5(d)(1), if the release or threatened release of Hazardous Materials was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any portion of the Property and Borrower knew or should have known of the activity by such lessee, occupant, or user which caused or contributed to the release or threatened release. All costs and expenses, including (but not limited to) attorneys’ fees, incurred by the City in connection with any action commenced under this paragraph, including any action required by California Code of Civil Procedure Section 726.5(b) to determine the degree to which the Property is environmentally impaired, plus interest thereon at the Default Rate, until paid, will be added to the indebtedness secured by the Deed of Trust and is due and payable to the City upon its demand made at any time following the conclusion of such action.

Section 3.3 Maintenance; Damage and Destruction.
(a) During the course of construction and operation of the Development Borrower shall maintain the Development and the Property in good repair and in a neat, clean and orderly condition. If there arises a condition in contravention of this requirement, and if Borrower has not cured such condition within thirty (30) days after receiving a City notice of such a condition, then in addition to any other rights available to the City, the City may perform all acts necessary to cure such condition, and to establish or enforce a lien or other encumbrance against the Property, subject to the provisions provided in subsection (b) below.

145 of 268

20 660\01\2564992.4
(b) Subject to the requirements of senior lenders, and if economically feasible in the City’s judgment after consultation with Borrower, if any improvement now or in the future on the Property is damaged or destroyed, then Borrower shall, at its cost and expense, diligently undertake to repair or restore such improvement consistent with the plans and specifications approved by the City with such changes as have been approved by the City. Such work or repair is to be commenced no later than the later of one hundred twenty (120) days, or such longer period approved by the City in writing, after the damage or loss occurs or thirty (30) days following receipt of the insurance proceeds, and is to be complete within one (1) year thereafter.

Any insurance proceeds collected for such damage or destruction are to be applied to the cost of such repairs or restoration and, if such insurance proceeds are insufficient for such purpose, then Borrower shall make up the deficiency. If Borrower does not promptly make such repairs then any insurance proceeds collected for such damage or destruction are to be promptly delivered by Borrower to the City as a special repayment of the Loan, subject to the rights of the senior lenders, if any.

Section 3.4 Fees and Taxes.

Borrower is solely responsible for payment of all fees, assessments, taxes, charges, and levies imposed by any public authority or utility company with respect to the Property or the Development, and shall pay such charges prior to delinquency. However, Borrower is not required to pay and discharge any such charge so long as: (a) the legality thereof is being contested diligently and in good faith and by appropriate proceedings; and (b) if requested by the City, Borrower deposits with the City any funds or other forms of assurance that the City in good faith from time to time determines appropriate to protect the City from the consequences of the contest being unsuccessful.

Section 3.5 Operation of Development as Childcare Facility.

Borrower shall operate the Development as a childcare facility consistent with: (a) the Regulatory Agreement; and (b) any other regulatory requirements imposed on the Borrower or the Property, including, but not limited to, obtaining and maintaining any required license(s).

Section 3.6 Nondiscrimination.

Borrower covenants by and for itself and its successors and assigns that there will be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, age, familial status, disability, sex, sexual orientation, marital status, ancestry or national origin in the admission of users of the Development, nor may Borrower or any person claiming under or through Borrower establish or permit any such practice or practices of discrimination. The foregoing covenant will run with the land.

Section 3.7 Transfer.

For purposes of this Agreement, “Transfer” means any sale, assignment, or transfer, whether voluntary or involuntary, of: (i) any rights and/or duties under this Agreement; and/or (ii) any interest in the Development, including (but not limited to) a fee simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a security interest, or an

146 of 268

21 660\01\2564992.4
interest evidenced by a land contract by which possession of the Development is transferred and Borrower retains title.
(a) No Transfer is permitted without the prior written consent of the City, which the City may withhold in its sole discretion. Notwithstanding any provision to the contrary, the Loan will automatically accelerate and be due in full upon any Transfer made without the prior written consent of the City. In the event of any conflict between this subsection and any other provision of the Loan Documents, this subsection shall prevail. (b) The City hereby approves the grant of the security interests in the Development for any deed of trust to which the City has agreed to subordinate.

Section 3.8 Insurance Requirements.
(a) Borrower shall maintain the following insurance coverage throughout the Term of the Loan:
(1) Workers’ Compensation insurance to the extent required by law, including Employer’s Liability coverage, with limits not less than One Million Dollars ($1,000,000) each accident.
(2) Commercial General Liability insurance with limits not less than Two Million Dollars ($2,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverages for Contractual Liability, Personal Injury, Broadform Property Damage, Products and Completed Operations.
(3) Automobile Liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverages for owned, non-owned and hired vehicles, as applicable. (4) Builders’ Risk insurance during the course of construction and upon completion, property insurance covering the Development, in form appropriate for the nature of such property, covering all risks of loss, excluding earthquake, for one hundred percent (100%) of the replacement value, with deductible, if any, acceptable to the City, naming the City as a Loss Payee, as its interests may appear. Flood insurance must be obtained if required by applicable federal regulations.
(5) Commercial crime insurance covering all officers and employees, for loss of Loan proceeds caused by dishonesty, in an amount approved by the City, naming the City a Loss Payee, as its interests may appear which insurance shall be maintained only until the entire balance of the Loan has been disbursed.
(b) Borrower shall cause any general contractor, agent, or subcontractor working on the Development under direct contract with Borrower or subcontract to maintain insurance of the types and in at least the minimum amounts described in subsections (1), (2), and (3) above, except that the limit of liability for commercial general liability insurance for subcontractors must be One Million Dollars ($1,000,000), and must require that such insurance will meet all of the general requirements of subsections (d) and (e) below.

147 of 268

22 660\01\2564992.4
(c) The required insurance must be provided under an occurrence form, and Borrower shall maintain the coverage described in subsection (a) continuously throughout the Term. Should any of the required insurance be provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs be included in such annual aggregate limit, such annual aggregate limit must be three times the occurrence limits specified above.
(d) Commercial General Liability, Automobile Liability and Property insurance policies must be endorsed to name as an additional insured the City and its officers, agents, employees and members of the City Council.
(e) All policies and bonds are to contain: (i) the agreement of the insurer to give the City at least thirty (30) days’ notice prior to cancellation (including, without limitation, for non-payment of premium) or any material change in said policies; (ii) an agreement that such policies are primary and non-contributing with any insurance that may be carried by the City; (iii) a provision that no act or omission of Borrower shall affect or limit the obligation of the insurance carrier to pay the amount of any loss sustained; and (iv) a waiver by the insurer of all rights of subrogation against the City and its authorized parties in connection with any loss or damage thereby insured against.

ARTICLE 4.

REPRESENTATIONS AND WARRANTIES OF BORROWER
Section 4.1 Representations and Warranties.

Borrower hereby represents and warrants to the City as follows and acknowledges, understands, and agrees that the representations and warranties set forth in this Article are deemed to be continuing during all times when any portion of the Loan remains outstanding:
(a) Organization. Borrower is duly organized, validly existing and in good standing under the laws of the State of California and has the power and authority to own its property and carry on its business as now being conducted. (b) Authority of Borrower. Borrower has full power and authority to execute and deliver this Agreement and to make and accept the borrowings contemplated hereunder, to execute and deliver the Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above.
(c) Authority of Persons Executing Documents. This Agreement and the Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement have been executed and delivered by persons who are duly authorized to execute and deliver the same for and on behalf of Borrower, and all actions required under Borrower’s organizational documents and applicable governing law for the authorization, execution, delivery and performance of this Agreement and the Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been duly taken.

148 of 268

23 660\01\2564992.4
(d) Valid Binding Agreements. The Loan Documents and all other documents or instruments executed and delivered pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute, legal, valid and binding obligations of Borrower enforceable against it in accordance with their respective terms.
(e) No Breach of Law or Agreement. Neither the execution nor delivery of the Loan Documents or of any other documents or instruments executed and delivered, or to be executed or delivered, pursuant to this Agreement, nor the performance of any provision, condition, covenant or other term hereof or thereof, will: (i) conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or order of any court, board, commission or agency whatsoever that is binding on Borrower, or conflict with any provision of the organizational documents of Borrower, or conflict with any agreement to which Borrower is a party; or (ii) result in the creation or imposition of any lien upon any assets or property of Borrower, other than liens established pursuant hereto. (f) Compliance with Laws; Consents and Approvals. The construction of the Development will comply with all applicable laws, ordinances, rules and regulations of federal, state and local governments and agencies and with all applicable directions, rules and regulations of the fire marshal, health officer, building inspector and other officers of any such government or agency.
(g) Pending Proceedings. Borrower is not in default under any law or regulation or under any order of any court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of Borrower, threatened against or affecting Borrower or the Development, at law or in equity, before or by any court, board, commission or agency whatsoever which might, if determined adversely to Borrower, materially affect Borrower’s ability to repay the Loan or impair the security to be given to the City pursuant hereto.
(h) Title to Land. At the time of recordation of the Deed of Trust, Borrower will have good and marketable fee title to the Collateral Property and there will exist thereon or with respect thereto no mortgage, lien, pledge or other encumbrance of any character whatsoever other than liens for current real property taxes and liens in favor of the City or approved in writing by the City.
(i) Financial Statements. The financial statements of Borrower and other financial data and information furnished by Borrower to the City fairly and accurately present the information contained therein. As of the date of this Agreement, there has not been any material adverse change in the financial condition of Borrower from that shown by such financial statements and other data and information.
(j) Sufficient Funds. Borrower holds sufficient funds and/or binding commitments for sufficient funds to complete the construction of the Development in accordance with the terms of this Agreement.
(k) Taxes. Borrower and its subsidiaries have filed all federal and other material tax returns and reports required to be filed, and have paid all federal and other material

149 of 268

24 660\01\2564992.4
taxes, assessments, fees and other governmental charges levied or imposed upon them or their income or the Property otherwise due and payable, except those that are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with generally accepted accounting principles. There is no proposed tax assessment against Borrower or any of its subsidiaries that could, if made, be reasonably expected to have a material adverse effect on the property, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of Borrower and its subsidiaries, taken as a whole, or which could result in: (i) a material impairment of the ability of Borrower to perform under any loan document to which it is a party; or (ii) a material adverse effect upon the legality, validity, binding effect or enforceability against Borrower of any Loan Document. (l) Hazardous Materials. To the best of Borrower’s knowledge, except as disclosed in writing by Borrower to the City prior to the Effective Date: (i) no Hazardous Material has been disposed of, stored on, discharged from, or released to or from, or otherwise now exists in, on, under, or around, the Property; (ii) neither the Property nor Borrower is in violation of any Hazardous Materials Law; and (iii) neither the Property nor Borrower is subject to any existing, pending or threatened Hazardous Materials Claims.

ARTICLE 5.

DEFAULT AND REMEDIES
Section 5.1 Events of Default.

Any one or more of the following constitutes an “Event of Default” by Borrower under this Agreement:
(a) Failure to Obtain Permit; Failure to Complete Work. If Borrower fails to obtain the necessary permit(s), or Borrower otherwise fails to comply with the requirements of Section 2.17.
(b) Failure to Make Payment. If Borrower fails to make any payment when such payment is due pursuant to the Loan Documents and such failure continues for ten (10) days after receipt of written notice form the City.
(c) Breach of Covenants. If Borrower fails to duly perform, comply with, or observe any other condition, term, or covenant contained in this Agreement, or in any of the other Loan Documents, and Borrower fails to cure such default within thirty (30) days after receipt of written notice thereof from the City to Borrower, or if such breach cannot be cured within such 30 day period, Borrower shall not be in breach so long as Borrower is diligently undertaking to cure such breach and such breach is cured within sixty (60) days; provided, however, that if a different period or notice requirement is specified under any other section of this Article, the specific provisions shall control.
(d) Default Under Other Loans. If a default is declared under any other financing for the Development by the lender of such financing and such default remains uncured following any applicable notice and cure period.

150 of 268

25 660\01\2564992.4
(e) Insolvency. If a court having jurisdiction makes or enters any decree or order: (1) adjudging Borrower to be bankrupt or insolvent; (2) approving as properly filed a petition seeking reorganization of Borrower, or seeking any arrangement for Borrower under the bankruptcy law or any other applicable debtor’s relief law or statute of the United States or any state or other jurisdiction; (3) appointing a receiver, trustee, liquidator, or assignee of Borrower in bankruptcy or insolvency or for any of their properties; (4) directing the winding up or liquidation of Borrower if any such decree or order described in clauses (1) to (4), inclusive, is unstayed or undischarged for a period of ninety (90) calendar days; or (5) Borrower admits in writing its inability to pay its debts as they fall due or will have voluntarily submitted to or filed a petition seeking any decree or order of the nature described in clauses (1) to (4), inclusive. The occurrence of any of the Events of Default in this paragraph will act to accelerate automatically, without the need for any action by the City, the indebtedness evidenced by the Note. (f) Assignment; Attachment. If Borrower assigns its assets for the benefit of its creditors or suffers a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon is returned or released within ninety (90) calendar days after such event or, if sooner, prior to sale pursuant to such sequestration, attachment, or execution. The occurrence of any of the events of default in this paragraph shall act to accelerate automatically, without the need for any action by the City, the indebtedness evidenced by the Note.
(g) Suspension; Termination. If Borrower voluntarily suspends or terminates its business.
(h) Liens on Property and the Development. If any claim of lien (other than liens approved in writing by the City) is filed against the Development or any part thereof, or any interest or right made appurtenant thereto, or the service of any notice to withhold proceeds of the Loan and the continued maintenance of said claim of lien or notice to withhold for a period of twenty (20) days, without discharge or satisfaction thereof or provision therefor (including, without limitation, the posting of bonds) satisfactory to the City. (i) Condemnation. If there is a condemnation, seizure, or appropriation of all or the substantial part of the Property and the Development. (j) Unauthorized Transfer. If any Transfer occurs other than as permitted pursuant to this Agreement.
(k) Representation or Warranty Incorrect. If any Borrower representation or warranty contained in this Agreement, or in any application, financial statement, certificate, or report submitted to the City in connection with any of the Loan Documents, proves to have been incorrect in any material respect when made.

Section 5.2 Remedies.

Upon the occurrence of an Event of Default and until such Event of Default is cured or waived, the City is relieved of any obligation to disburse any portion of the Loan. In addition, upon the occurrence of an Event of Default and following the expiration of all applicable notice and cure periods the City may proceed with any and all remedies available to it under law, this

151 of 268

26 660\01\2564992.4
Agreement, and the other Loan Documents. Such remedies include but are not limited to the following:
(a) Acceleration of Note. The City may cause all indebtedness of Borrower to the City under this Agreement and the Note, together with any accrued interest thereon, to become immediately due and payable. Borrower waives all right to presentment, demand, protest or notice of protest or dishonor. The City may proceed to enforce payment of the indebtedness and to exercise any or all rights afforded to the City as a creditor and secured party under the law including the Uniform Commercial Code, including foreclosure under the Deed of Trust. Borrower is liable to pay the City on demand all reasonable expenses, costs and fees (including, without limitation, reasonable attorney’s fees and expenses) paid or incurred by the City in connection with the collection of the Loan and the preservation, maintenance, protection, sale, or other disposition of the security given for the Loan. (b) Specific Performance. The City has the right to mandamus or other suit, action or proceeding at law or in equity to require Borrower to perform its obligations and covenants under the Loan Documents or to enjoin acts on things that may be unlawful or in violation of the provisions of the Loan Documents.
(c) Right to Cure at Borrower’s Expense. The City has the right (but not the obligation) to cure any monetary default by Borrower under a loan other than the Loan. Upon demand therefor, Borrower shall reimburse the City for any funds advanced by the City to cure such monetary default by Borrower, together with interest thereon from the date of expenditure until the date of reimbursement at the Default Rate.

Section 5.3 Right of Contest.

Borrower may contest in good faith any claim, demand, levy, or assessment the assertion of which would constitute an Event of Default hereunder. Any such contest is to be prosecuted diligently and in a manner unprejudicial to the City or the rights of the City hereunder.

Section 5.4 Remedies Cumulative.

No right, power, or remedy given to the City by the terms of this Agreement or the other Loan Documents is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy is cumulative and in addition to every other right, power, or remedy given to the City by the terms of any such instrument, or by any statute or otherwise against Borrower and any other person. Neither the failure nor any delay on the part of the City to exercise any such rights and remedies will operate as a waiver thereof, nor does any single or partial exercise by the City of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy.

ARTICLE 6.

GENERAL PROVISIONS
Section 6.1 Relationship of Parties.

152 of 268

27 660\01\2564992.4
Nothing contained in this Agreement is to be interpreted or understood by any of the Parties, or by any third persons, as creating the relationship of employer and employee, principal and agent, limited or general partnership, or joint venture between the City and Borrower or its agents, employees or contractors, and Borrower will at all times be deemed an independent contractor and to be wholly responsible for the manner in which it or its agents, or both, perform the services required of it by the terms of this Agreement. Borrower has and retains the right to exercise full control of employment, direction, compensation, and discharge of all persons assisting in the performance of services under the Agreement. In regards to the demolition or construction work, and operation of the Development, Borrower is solely responsible for all matters relating to payment of its employees, including compliance with Social Security, withholding, and all other laws and regulations governing such matters, and must include requirements in each contract that contractors are solely responsible for similar matters relating to their employees. Borrower is solely responsible for its own acts and those of its agents and employees.

Section 6.2 No Claims.

Nothing contained in this Agreement creates or justifies any claim against the City by any person that Borrower may have employed or with whom Borrower may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the work, or the operation of the Development, and Borrower shall include similar requirements in any contracts entered into for the construction or operation of the Development.

Section 6.3 Amendments.

No alteration or variation of the terms of this Agreement is valid unless made in writing by the Parties.

Section 6.4 Indemnification.

Borrower shall indemnify, defend and hold the City and its Council members, directors, officers, employees, agents, successors and assigns harmless against any and all claims, suits, actions, losses and liability of every kind, nature and description made against it and expenses (including reasonable attorneys’ fees) which arise out of or in connection with this Agreement, including but not limited to the construction, marketing and operation of the Development, except to the extent such claim arises from the gross negligence or willful misconduct of the City, its agents, and its employees. The provisions of this Section will survive the expiration of the Term and the reconveyance of the Deed of Trust.

Section 6.5 Non-Liability of City Officials, Employees and Agents.

No member, official, employee or agent of the City is personally liable to Borrower in the event of any default or breach of this Agreement by the City or for any amount that may become due from the City pursuant to this Agreement.

153 of 268

28 660\01\2564992.4
Section 6.6 No Third Party Beneficiaries.

There are no third party beneficiaries to this Agreement.

Section 6.7 Discretion Retained By City.

The City’s execution of this Agreement in no way limits any discretion the City may have in the permit and approval process related to the construction of the Development.

Section 6.8 Notices, Demands and Communications.

Formal notices, demands and communications between the City and the Borrower shall be sufficiently given if, and shall not be deemed given unless, (a) dispatched by certified mail, postage prepaid, return receipt requested, or (b) sent by express delivery or overnight courier service, or (c) sent via email to the email address set forth below, with a copy of such notice concurrently sent by either of the methods set forth in the preceding clauses (a) or (b), to the office of the Parties shown as follows, or such other address as the Parties may designate in writing from time to time:

City: City of San Mateo
330 W. 20
th Avenue
San Mateo, CA 94403
Attn: Community Development Department
Email: [email protected]

Borrower: Mighty Tiger Preschool, LLC
508 Davey Glen Rd
Belmont, CA 94002

Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected party may from time to time designate by mail as provided in this Section. Receipt will be deemed to have occurred on the date shown on a written receipt as the date of delivery or refusal of delivery (or attempted delivery if undeliverable).

Section 6.9 Applicable Law.

This Agreement is governed by the laws of the State of California.

Section 6.10 Parties Bound.

Except as otherwise limited herein, this Agreement binds and inures to the benefit of the parties and their heirs, executors, administrators, legal representatives, successors, and assigns.

This Agreement is intended to run with the land and to bind Borrower and its successors and assigns in the Property and the Development for the entire Term, and the benefit hereof is to inure to the benefit of the City and its successors and assigns.

154 of 268

29 660\01\2564992.4
Section 6.11 Attorneys’ Fees.

If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing party will have the right to recover its reasonable attorneys’ fees and costs of suit from the other party.

Section 6.12 Severability.

If any term of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions will continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability.

Section 6.13 Force Majeure.

In addition to specific provisions of this Agreement, performance by either party will not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock- outs, riots, floods, earthquakes, fires, quarantine restrictions, freight embargoes, lack of transportation, or court order. An extension of time for any cause will be deemed granted if notice by the party claiming such extension is sent to the other within ten (10) days from the commencement of the cause and such extension of time is not rejected in writing by the other party within ten (10) days after receipt of the notice. In no event will the City be required to agree to cumulative delays in excess of one hundred eighty (180) days.

Section 6.14 City Approval.

The City has authorized the City Manager, or his or her designee, to execute the Loan Documents and deliver such approvals or consents as are required by this Agreement, and to execute estoppel certificates concerning the status of the Loan and the existence of Borrower defaults under the Loan Documents.

Section 6.15 Waivers.

Any waiver by the City of any obligation or condition in this Agreement must be in writing. No waiver will be implied from any delay or failure by the City to take action on any breach or default of Borrower or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to Borrower to perform any obligation under this Agreement does not operate as a waiver or release from any of its obligations under this Agreement. Consent by the City to any act or omission by Borrower may not be construed to be consent to any other or subsequent act or omission or to waive the requirement for the City’s written consent to future waivers.

Section 6.16 Title of Parts and Sections.

Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and are to be disregarded in interpreting any part of the Agreement’s provisions.

Section 6.17 Entire Understanding of the Parties.

155 of 268

30 660\01\2564992.4
The Loan Documents constitute the entire agreement of the parties with respect to the Loan. This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both Parties had prepared it. The parties have read and reviewed this Agreement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party (including but not limited to Civil Code Section 1654 as may be amended from time to time, or any other state law, or common law principle) shall not apply to the interpretation of this Agreement.

Section 6.18 Multiple Originals; Counterpart.

This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts.

Remainder of Page Left Intentionally Blank

156 of 268

A-1
660\01\2564992.4
IN WITNESS WHEREOF, this Agreement has been executed by the Parties as of the Effective Date.

CITY:

CITY OF SAN MATEO,
a California municipal corporation

By:

Name: Alex Khojikian

Its: City Manager

APPROVED AS TO FORM CHILD CARE FACILITATOR:

MIGHTY TIGER PRESCHOOL,
a California Limited Liability Company

By:

Name: Mazarin Vakharia

Name: Geoffrey K. Choy
Its: Assistant City Attorney

Its: LLC Member

By:

Name: Ruth-Heidi Choy

Its: LLC Member

157 of 268

A-2
660\01\2564992.4

EXHIBIT A

LEGAL DESCRIPTION OF THE PROPERTY

2575 Flores Street, Unit #1, San Mateo, CA 94403

BEGINING AT THE INTERSECTION OF THE EASTERLY LINE OF FLORES STREET WITH THE NORTHWESTERLY LINE OF A 15 FOOT EASEMENT FOR STREET OR TRAVEL

PURPOSES AND PUBLIC UTILITIES, AS GRANTED BY DEED OF DEDICATION OF

EASEMENT FROM STADER, ALSO KNOWN AS FRED WILLIAM STADER, TO THE CITY OF SAN MATEO, A MUNICIPAL CORPORATION, DATED AUGUST 7,1950 AND RECORDED NOVEMBER 13,1950 IN BOOK 1974 OF OFFICIAL RECORDS AT PAGE 535, RECORDS OF SAN MATEO COUNTY, CALIFORNIA; THENCE FROM SAID POINT OF BEGINNING, ALONG SAID NORTHWESTERLY LINE, NORTH 70’ 44' EAST 167.87 FEET; THENCE LEAVING SAID NORTHWESTERLY LINE, NORTH 27° 41' WEST 40.44 FEET; THENCE SOUTH 70° 44' WEST 151,99 FEET TO THE EASTERLY LINE OF FLORES STREET AS ABOVE MENTIONED; THENCE ALONG SAID EASTERLY LINE SOUTH 1’ 58’ EAST 3.07 FEET AND ALONG A CURVE TO THE LEFT, WITH A RADIUS OF 305.00 FEET, A CENTRAL ANGLE OF 7° 10' 22", AN ARC DISTANCE OF 38.18 FEET TO THE POINT OF BEGINNING.

158 of 268

A-3
660\01\2564992.4

LEGAL DESCRIPTION OF THE COLLATERAL PROPERTY

115 Agustin Narvaez Street #4, San Jose, CA 95136

159 of 268

A-4
660\01\2564992.4

160 of 268

A-5
660\01\2564992.4

161 of 268

B-1
660\01\2564992.4

EXHIBIT B

APPROVED DEVELOPMENT BUDGET

162 of 268

C-1
660\01\2564992.4

EXHIBIT C

PROGRAM REQUIREMENTS

1. Child Care Spaces. Borrower shall retain and make available a total of [written number] (#) licensed child care spaces. Exception only accepted if Borrower is unable to provide a sufficient number of qualified staff to meet required ratios for a period of time not exceeding ninety (90) days.

2. Affordable Child Care Spaces. Borrower shall provide [written number] (#) of affordable spaces available to households who do not exceed 80% Area Median Income (AMI) as is annually published by the City. This shall include the reporting of the following documented data: 1) number of households, 2) annual household income, 3) amount of child care tuition charged, and 4) market rate tuition.

3. Licensing. Borrower shall provide third-party confirmation of current facility licensing.

4. Financial Reports. Borrower shall submit annual financial documents for the facility operation, either organizational audits or tax records.

163 of 268

D–1
660\01\2564992.4

EXHIBIT D

FORM OF ANNUAL REPORT
This document will be provided to borrowers in Word format to complete and submit.

This is an image of the document template.

164 of 268

D–2
660\01\2564992.4

165 of 268

1 660\01\2572024.1

Exhibit 2

PROMISSORY NOTE
(San Mateo-Child Care Loan Program)

$430,000 San Mateo, California
____________________, 20____

FOR VALUE RECEIVED, MIGHTY TIGER PRESCHOOL, a California Limited Liability Company ("Borrower"), promises to pay to the City of San Mateo, a California municipal corporation ("Holder"), the principal sum of four hundred thirty thousand Dollars ($430,000) plus interest thereon pursuant to Section 2 below. All capitalized terms used but not defined in this Promissory Note (the "Note") have the meanings set forth in the Loan Agreement (as defined below).

1. Borrower's Obligation. This Note evidences the Borrower's obligation to pay the Holder the principal amount of four hundred thirty thousand Dollars ($430,000) loaned to Borrower by Holder pursuant to that certain Loan Agreement between Borrower and Holder of even date herewith (the "Loan Agreement").

2. Interest. Except as otherwise set forth herein, this Note does not bear interest. If a Default occurs, interest on the principal balance will begin to accrue as of the date of Default (following expiration of applicable notice and cure periods) and continuing until such time as the Loan funds are repaid in full or the Default is cured, at which time the accrued interest shall be automatically forgiven at the default rate of the lesser of ten percent (10%), compounded annually, or the highest rate permitted by law.

3. Term and Repayment Requirements. Annual forgiveness and payments due under this Note, if any, are due in accordance with this Note and as set forth in Section 2.7 of the Loan Agreement.

4. No Assumption. This Note is not assumable by the successors and assigns of Borrower without the prior written consent of the Holder, except as may be otherwise set forth in the Loan Agreement.

5. Security. This Note is secured by that certain Short Form Deed of Trust and Assignment of Rents (the "Deed of Trust") wherein the Borrower is the trustor and the Holder is the beneficiary.

6. Terms of Payment.

(1) Borrower shall make all payments due under this Note in currency of the United States of America to Holder at the City of San Mateo, 330 W. 20th Avenue, San Mateo, CA 94403, Attn: Community Development Department, or such other place as Holder may from time to time designate.

166 of 268

2 660\01\2572024.1

(a) All payments on this Note are without expense to Holder. Borrower shall pay all costs and expenses, including reconveyance fees and reasonable attorney's fees of Holder, incurred in connection with the payment of this Note and the release of any security hereof.

(b) Notwithstanding any other provision of this Note, or any instrument securing the obligations of Borrower under this Note, if, for any reason whatsoever, the payment of any sums by Borrower pursuant to the terms of this Note would result in the payment of interest that exceeds the amount that Holder may legally charge under the laws of the State of California, then the amount by which payments exceed the lawful interest rate will automatically be deducted from the principal balance owing on this Note, so that in no event is Borrower obligated under the terms of this Note to pay any interest that would exceed the lawful rate.

(c) The obligations of Borrower under this Note are absolute and Borrower waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for any reason whatsoever.

(d) Upon recordation of the Deed of Trust, this Note will be nonrecourse to the Borrower, pursuant to and except as provided in Section 2.8 of the Loan Agreement.

7. Default.

(a) The entire unpaid principal balance, together with all interest thereon, and together with all other sums payable under this Note, shall at the option of the Holder become immediately due and payable without further demand, upon occurrence of:

(i) Any failure of Borrower to pay, in full, any payment required under this Note within five (5) days after receipt of written notice that such payment is due;

(ii) Any failure in the performance by the Borrower of any other term, condition, provision or covenant set forth in this Note subject to the notice and cure period set forth in the Loan Agreement;

(iii) The occurrence of any Default under any of the Loan Documents, or other instrument securing the obligations of the Borrower under this Note or under any other promissory notes hereafter issued by the Borrower to the Holder pursuant to the Loan Agreement or the Deed of Trust, subject to notice and cure periods, if any, set forth therein.

(b) The Holder's failure to exercise the remedy set forth in Subsection 7(a) above or any other remedy provided by law upon the occurrence of a default will not constitute a waiver of the right to exercise any remedy at any subsequent time in respect to the same or any other default. The acceptance by Holder hereof of any payment which is less than the total of all amounts due and payable at the time of such payment will not constitute a waiver of the right to exercise any of the foregoing remedies or options at that time or at any subsequent time, or nullify any prior exercise of any such remedy or option, without the express consent of the Holder, except as and to the extent otherwise provided by law.

167 of 268

3 660\01\2572024.1

8. Waivers.

(a) Borrower hereby waives diligence, presentment, protest and demand, and notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note.

Borrower expressly agrees that this Note or any payment hereunder may be extended from time to time, and that Holder may accept further security or release any security for this Note, all without in any way affecting the liability of Borrower.

(b) Any extension of time for payment of this Note or any installment hereof made by agreement of Holder with any person now or hereafter liable for payment of this Note must not operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in whole or in part.

9. Miscellaneous Provisions.

(a) All notices to Holder or Borrower are to be given in the manner and at the addresses set forth in the Loan Agreement, or to such addresses as Holder and Borrower may therein designate.

(b) Borrower promises to pay all costs and expenses, including reasonable attorney's fees, incurred by Holder in the enforcement of the provisions of this Note, regardless of whether suit is filed to seek enforcement.

(c) This Note may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.

(d) This Note is governed by the laws of the State of California.

(e) The times for the performance of any obligations hereunder are to be strictly construed, time being of the essence.

(f) The Loan Documents, of which this Note is a part, contain the entire agreement between the parties as to the Loan. This Note may not be modified except upon the written consent of the parties.

Remainder of Page Left Intentionally Blank

168 of 268

4 660\01\2572024.1

IN WITNESS WHEREOF, this Promissory Note is executed by Borrower and is effective as of the date first written above.

BORROWER:

MIGHTY TIGER PRESCHOOL,
a California Limited Liability Company

By:

Name: Geoffrey K. Choy
Its: LLC Member

By:

Name: Ruth-Heidi Choy
Its: LLC Member

169 of 268

660\01\2574271.1 1

Exhibit 3

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
Attention: Community Development Department

NO FEE FOR RECORDING PURSUANT
TO GOVERNMENT CODE SECTION 27383

SPACE ABOVE THIS LINE FOR RECORDER'S USE

ARTICLE 7.SHORT FORM DEED OF TRUST AND ASSIGNMENT OF RENTS

This Deed of Trust, made as of _________________, 20___, between, Eddy K. Choy and Maria Y.

Choy and Geoffrey Kamen Choy, herein called Trustor,
whose address is: 508 DAVEY GLEN RD,
BELMONT, CA 94002

First American Title Company, a California corporation, herein called Trustee, and the City of San Mateo, a California municipal corporation, herein called Beneficiary,

Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to TRUSTEE IN TRUST, WITH POWER OF SALE, That property located at 115 Agustin Narvaez Street #4, San Jose, California, 95136, described as follows:

SEE EXHIBIT A, incorporated herein by this reference

TOGETHER WITH the rents, issues and profits thereof, SUBJECT, HOWEVER, to the right, power and authority given to and conferred upon Beneficiary by paragraph (10) of the provisions incorporated herein by reference to collect and apply such rents, issues and profits.

For the Purpose of Securing:

1. Performance of each agreement of Trustor incorporated by reference or contained herein. 2.

Payment of the indebtedness evidenced by one promissory note of even date herewith, and any

170 of 268

660\01\2574271.1 2
extension or renewal thereof, in the principal sum of up to four hundred thirty thousand Dollars ($430,000) executed by Trustor in favor of Beneficiary or order. 3. Payment of such further sums as the then record owner of said property hereafter may borrow from Beneficiary, when evidenced by another note (or notes) reciting it is so secured.

To Protect the Security of This Deed of Trust, Trustor Agrees: By the execution and delivery of this Deed of Trust and the note secured hereby, including the provisions set forth EXHIBIT B of this Deed of Trust, which are incorporated by this reference, and the provisions (1) to (14) inclusive, of the fictitious deed of trust recorded in San Mateo County, in the book and at the page of Official Records in the office of the county recorder of the county where said property is located, noted below opposite the name of the county, viz.:
(a)
(b) COU

NTY BOOK PAGE
Alameda 435 684
Alpine 1 250
Amador 104 348
Butte 1145 1
Calaveras 145 152
(1)
Colusa 296
617
Contra Costa3978 47
Del Norte 78 414
El Dorado 568 456
Fresno 4626 572

OUNTY BOOK PAGE
(1)
Kings 792 833
(2)
Lake 362 39
Lassen 171 471
Los AngelesT2055
899
(3)
Madera 810 170
Marin 1508 339
Mariposa 77 292

(e)
(f) COUNTY

BOOK PAGE
Placer 895 301
Plumas 151 5
(1) Ri
verside 3005 523
Sacramento4331 62
San Benito 271 383
San Bernardino 5567
61 San FranciscoA332
905
San Joaquin2470311
San Luis Obispo1151

(g)
(h) CO

UNTY BOOK PAGE
Sierra 29 335
Siskiyou 468 181
Solano 1105 182
Sonoma 1851 689
Stanislaus1715 456
Sutter 572 297
Tehama 401 289
Trinity 93 366
Tulare 2294 275
Tuolumne 135 47
Ventura 2062 386
Yolo 653 245

(which provisions, identical in all counties, are printed on attached herewith) hereby are adopted and incorporated herein and made a part hereof as fully as though set forth herein at length; that Trustor will observe and perform said provisions; and that the references to property, obligations and parties in said provisions shall be construed to refer to the property, obligations, and parties set forth in this Deed of Trust.

171 of 268

660\01\2574271.1 3
TRUSTOR:

Eddy K. Choy and Maria Y. Choy,
husband and wife and Geoffrey Kamen
Choy, a single man as joint tenants
By:

Name: Eddy K. Choy
Its: Owner

By:

Name: Maria Y. Choy
Its: Owner

By:

Name: Geoffrey Kamen Choy
Its: Owner

172 of 268

660\01\2574271.1

STATE OF CALIFORNIA )
)
COUNTY OF __________________ )

On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

______________________________________
Name: ______________________________
Notary Public

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.

173 of 268

A-1
660\01\2574271.1
Exhibit A
Property Description

174 of 268

A-2
660\01\2574271.1

175 of 268

A-3
660\01\2574271.1

176 of 268

660\01\2574271.1
TO BE REMOVED PRIOR TO RECORDATION:

177 of 268

660\01\2574271.1

178 of 268

4870-5435-6876v1 1

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

C
ity of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
Attention: Community Development Department
NO F

EE FOR RECORDING PURSUANT
TO GOVERNMENT CODE SECTION 27383

AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY
(Child Care Loan Program)
This Agreement Containing Covenants Affecting Real Property (this "Agreement") is made and entered into as of _________________, 20___ (the "Effective Date"), by and between the City of San Mateo, a California municipal corporation (the "City"), MIGHTY TIGER PRESCHOOL, LLC a California Limited Liability Company, and its successors or assigns (collectively, the “Child Care Operator”), and CBR Flores LLC, a California Limited Liability Company (the “Owner”), with reference to the following facts, purposes, and understandings.

RECITALS
A. The Child Care Operator will operate a child care facility on that certain real property located at 2575 Flores St, Suite 1, San Mateo, CA 94403 in the City of San Mateo, County of San Mateo, State of California, as more particularly described in Exhibit A and also known by Assessor Parcel Number 039-371-370 (the “Child Care Facility” as further defined below).

B. Owner owns a fee title interest in the real property and the improvements located at 2575 Flores St, San Mateo, CA 94403 in the City of San Mateo, County of San Mateo, State of California, as more particularly described in Exhibit A (collectively, the “Property”).

C. The Child Care Operator and the City are parties to that certain Loan Agreement dated as of ______________, 20___ (the "Loan Agreement"). Pursuant to the Loan Agreement, the City has made a loan to the Child Care Operator in the amount four hundred thirty thousand Dollars ($430,000) (the "Loan") for the development of an approximately three thousand three hundred seven (3,307) square foot childcare facility providing child care services for up to forty-eight (48) participants (the "Child Care Facility").

D. In addition to this Agreement, the Loan is evidenced by certain loan documents, as more particularly set forth in the Loan Agreement (collectively, the "Loan Documents"), including, but not limited to a deed of trust executed by the Child Care Operator, as trustor, in Exhibit 4

179 of 268

4870-5435-6876v1 2

favor of the City, as beneficiary, recorded against the Collateral Property (the "Deed of Trust") in the official records of the County of San Mateo (the "Official Records"). The City, the Owner, and the Child Care Operator desire to enter into this Agreement to set forth their mutual understandings regarding the use of a portion of the Property for the Child Care Facility.

THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the City, the Child Care Operator, and the Owner (each a "Party", and, collectively, the "Parties") hereby agree as follows.

Section 1. Use Restriction. The Child Care Facility shall be used as a licensed child care facility providing child care services for up to forty-eight (48) participants, including eight (8) spaces for participants whose income does not exceed eighty percent (80%) of area median income for the County of San Mateo, in accordance with the Loan Documents (the "Permitted Use"). No other use of the Child Care Facility that is inconsistent with the Permitted Use is permitted by this Agreement. Owner and Child Care Operator acknowledge that the City made the Loan to the Child Care Operator, pursuant to the Loan Documents, in consideration for, and in reliance on, the Owner’s and Child Care Operator's obligation to restrict the Child Care Facility for the Permitted Use, in accordance with this Agreement, and that the City would not have agreed to make the Loan without the Owner’s and Child Care Operator's execution of, and obligation to comply with, this Agreement. The use restriction of the Permitted Use applies only to the ground floor (Suite 1) of the Property. The second floor of the Property is currently leased to another tenant and not part of the Permitted Use.

Section 2. Term of Agreement. The term of this Agreement shall commence as of the Effective Date and shall expire on the day that is ten (10) years from the Effective Date (the "Term"). This Agreement shall automatically terminate (without further action of the Parties) upon the expiration of the Term, and as evidenced by the reconveyance of the Deed of Trust; provided, however, upon the written request of the Child Care Operator, following the expiration of the Term, the City shall promptly execute a release, termination or similar document necessary to cause the release of this Agreement as an encumbrance on the title of the Property.

The Child Care Operator shall be solely liable and responsible for all costs and expenses related to the removal of this Agreement as an encumbrance against the Property following the expiration of the Term. Any damage to, or destruction of, the Child Care Facility shall have no impact on the Term. The Permitted Use shall terminate upon expiration of the Term or in the event of default, after the tenant default and lender cure period described below.

Section 3. Violations by Child Care Operator and Owner. The use of the Child Care Facility for any use other than the Permitted Use, in accordance with the requirements of this Agreement, shall be a violation of this Agreement. The failure of the Child Care Operator and/or Owner to cure any default in the Child Care Operator's obligations under the terms of this Agreement within thirty (30) days after the delivery of a written notice of default from the City or Owner, or such longer period of time up to an additional sixty (60) days as may be necessary to remedy such default, provided that the Child Care Operator has commenced action during the thirty (30) days necessary to remedy such default and the Child Care Operator is proceeding with reasonable diligence to remedy such default, will constitute a default under this Agreement. In

180 of 268

4870-5435-6876v1 3

the event of default by the Child Care Operator, Owner shall have right to replace the Child Care Operator with a new child care operator tenant following the end of the cure period.

Section 4. Remedies.
(a) Subject to the applicable notice and cure period set forth above, the City may exercise any and all remedies available to it under the Loan Documents, or otherwise available at law or equity, with respect to the Child Care Operator's or Owner’s failure to satisfy the terms of this Agreement. Child Care Operator and Owner acknowledge that any breach in Child Care Operator's performance of Child Care Operator's obligations under this Agreement would frustrate the public policy objectives desired by the City pursuant to the Loan Documents, and shall cause irreparable harm to the City. Therefore, Child Care Operator and Owner agree that the City is entitled to equitable relief in the form of specific performance, and that an award of damages may not be adequate to compensate the City for Child Care Operator's or Owner’s failure to perform according to the terms of this Agreement. The City, in its sole and absolute discretion, may elect the appropriate remedy for Child Care Operator's default under this Agreement. The City, in its sole and absolute discretion, may elect the appropriate remedy for Owner's default under this Agreement.
(b) The City may exercise any and all remedies available to it at law or equity with respect to Owner’s failure to have the Child Care Facility used for the Permitted Use for the Term of this Agreement.

Section 5. Covenants to Run With the Land. The Parties hereby declare their express intent that the covenants and restrictions set forth in this Agreement shall run with the land, and shall bind all successors in title to the Property, provided, however, that on the expiration of the Term said covenants and restrictions shall expire. Throughout the Term, each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof shall be held conclusively to have been executed, delivered and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument, unless the City expressly releases such conveyed portion of the Property from the requirements of this Agreement. All of the provisions of this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to applicable laws, including without limitation Section 1468 of the California Civil Code. Each covenant to do, or to refrain from doing, some act on the Property hereunder: (a) is for the benefit of the Property and is a burden on the Property, (b) runs with the Property, and (c) is binding upon each Party and each successive Child Care Operator during its operation of the Child Care Facility at the Property or any portion thereof, and shall be a benefit to and a burden upon each Party and the Property hereunder and each other person or entity succeeding in an interest to the Property.

Section 6. Recording and Filing. The Parties shall cause this Agreement, and all amendments and supplements to it (if any), to be recorded against the Property in the Official Records.

181 of 268

4870-5435-6876v1 4

Section 7. Amendments, Modifications, and Waivers. This Agreement may not be amended, modified or changed, nor shall any waiver of any provision hereof be effective, except by an instrument in writing and signed by the Parties.

Section 8. Waiver. In accordance with Section 7 above, the City may (but shall not be obligated to) waive any obligation imposed on the Owner and/or Child Care Operator pursuant to this Agreement; provided, however, the City's waiver of any term, covenant, or condition shall not be deemed to be a waiver of such term, covenant or condition of any subsequent breach of the same or any other term, covenant or condition. The City's failure to exercise any right, option or privilege hereunder shall not be deemed a waiver of such right, option or privilege nor shall it relieve the Owner and/or Child Care Operator from: (1) their obligation to perform each and every covenant and condition on their part to be performed, or (2) from any damages or other remedy for failure to perform the obligations of this Agreement.

Section 9. Entire Understanding of the Parties. This Agreement constitutes the entire understanding and agreement of the Parties with respect to the use of the Improvements on the Property. In the event of any conflict between the terms of this Agreement and the Loan Documents, the terms of this Agreement shall prevail. The Parties and their counsel have read and reviewed this Agreement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party (including, but not limited to Civil Code Section 1654, as may be amended from time to time) shall not apply to the interpretation of this Agreement.

Section 10. Severability. If any term, provision, covenant or condition of this Agreement is held in a final disposition by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force and effect.

Section 11. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to conflict of laws principles. In the event that suit shall be brought by either Party to this Agreement, the Parties agree that venue shall be exclusively vested in the state courts of the County of San Mateo, and the Parties consent to the personal and exclusive jurisdiction and venue of such court.

Section 12. Time. In all matters under this Agreement, the Parties agree that time is of the essence. References in this Agreement to days shall be to calendar days, unless otherwise indicated. If the last day of any period to give or reply to a notice, meet a deadline or undertake any other action occurs on a day that is not a day of the week on which the City of San Mateo is open to the public for carrying on substantially all business functions (a "Business Day"), then the last day for giving or replying to such notice, meeting such deadline or undertaking any such other action shall be the next succeeding Business Day. In no event shall a Saturday or Sunday be considered a Business Day.

Section 13. Notice. All notices given or certificates delivered under this Agreement shall be in writing and be deemed received on the delivery, or refusal, date shown on the delivery receipt, if: (i) personally delivered, (ii) mailed by certified mail, return receipt requested, postage prepaid, addressed as shown below, or (iii) delivered by reputable overnight delivery service with a receipt showing date of delivery. Either of the Parties may, by notice given hereunder,

182 of 268

4870-5435-6876v1 5

designate any further or different addresses to which subsequent notices, certificates or communications shall be sent.

City: City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
Attention: Community Development Department

Child Care Operator: Mighty Tiger Preschool, LLC
508 Davey Glen Rd
Belmont, CA 94002

Owner CBR Flores LLC
1336 Sanchez Ave.

Burlingame, CA 94010
Attn.: Chris Baker

Section 14. Indemnity.
(a) The Child Care Operator shall indemnify, defend (with counsel reasonably selected by the City), and hold harmless the City and its officers, officials, agents, and employees against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury or death of any person or damage to property or other liability of any nature, arising out of the Child Care Operator's and Owner’s performance of their obligations hereunder, except where the cause of such is solely due to the negligence or willful misconduct of City. The indemnification obligations set forth in this Section shall survive any termination of this Agreement.
(b) The Owner shall indemnify, defend (with counsel reasonably selected by the City), and hold harmless the City and its officers, officials, agents, and employees against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury or death of any person or damage to property or other liability of any nature, arising out of the Child Care Operator's and Owner’s performance of their obligations hereunder, except where the cause of such is solely due to the negligence or willful misconduct of City. The indemnification obligations set forth in this Section shall survive any termination of this Agreement.
(c) The Child Care Operator shall indemnify, defend (with counsel reasonably selected by the Owner), and hold harmless the Owner and its officers, officials, agents, and employees against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury or death of any person or damage to property or other liability of any nature, arising out of the Child Care Operator's performance of their obligations hereunder and the lease for the Child Care Facility, except where the cause of such is solely due to the negligence or willful misconduct of Owner. The indemnification obligations set forth in this Section shall survive any termination of this Agreement.

183 of 268

4870-5435-6876v1 6

Section 15. Discretion Retained by City. The Owner and Child Care Operator acknowledge and agree that nothing in this Agreement shall waive, limit, or otherwise impair any municipal power or authority of any office or department of the City acting in its capacity as a governmental regulatory authority with jurisdiction over the development, use, or operation of the Property.

Section 16. City Approval. The City has authorized the City Manager, or his or her designee, to execute this Agreement and deliver such approvals or consents as are required by this Agreement, and to execute estoppel certificates concerning the status of the Loan and the existence of Child Care Operator’ defaults under the Loan Documents.

Section 17. No Third Party Beneficiaries. This Agreement is not intended to create, nor shall it be in any way interpreted or construed to create any third party beneficiary rights in any person not a party hereto.

Section 18. No Partnership. This Agreement shall not be construed to constitute any form of partnership or joint venture between the Parties.

Section 19. Interpretation. The use in this Agreement of the words "including", "such as" or words of similar import when used with reference to any general term, statement or matter shall not be construed to limit such statement, term or matter to the specific statements, terms or matters, unless language of limitation, such as "and limited to" or words of similar import are used with reference thereto. The headings of this Agreement are for convenience only and do not in any way limit or amplify the terms or provisions hereof. All pronouns and variations thereof shall be deemed to refer to the masculine, feminine, or neuter, and to the singular or plural, as the identity of the party or parties may require.

Section 20. Estoppel Certificate. Upon the Owner and/or Child Care Operator's request, the City will execute and deliver to Owner or the Child Care Operator no more than fifteen (15) business days after the Owner’s and/or Child Care Operator's written request an estoppel certificate, stating that, to the best of the City's knowledge:
(a) This Agreement is unmodified and in full force and effect, or, if the Agreement is modified, how it has been modified;
(b) There is no outstanding default under the Agreement, or identifying any default which exists; and
(c) Such other matters as may be reasonably requested by the Owner and/or Child Care Operator.

If the Owner and/or Child Care Operator requests an estoppel certificate, and the City does not respond within fifteen (15) business days, the City shall be deemed to have delivered a certificate containing the requested statements.

Section 21. Owner and Child Care Operator Acknowledgement. The Owner and/or Child Care Operator agree and acknowledge that adequate, and good and valuable, consideration has been obtained by the Owner and/or Child Care Operator, pursuant to this Agreement and the

184 of 268

4870-5435-6876v1 7

Loan Documents. The Owner and/or Child Care Operator further acknowledges that due to the limitations on the Child Care Operator’s use of the Property, as set forth in this Agreement, the Owner and/or Child Care Operator may suffer economic loss or other consequences, including, but not limited to, economic loss or other consequences due to the Child Care Operator's inability to operate, or to permit the operation of, any particular form of business at the Property that does not constitute the Permitted Use. The Owner and/or Child Care Operator, on behalf of themselves and anyone claiming by, through or under the Owner and/or Child Care Operator specifically release and waive any claim against the City for such loss or economic consequences in connection with the limitations imposed pursuant to this Agreement, including but not limited any claim for inverse condemnation or similar claims. By its execution of this Agreement, the Owner and/or Child Care Operator, on behalf of themselves and anyone claiming by, through or under the Owner and/or Child Care Operator, hereby assume the above-mentioned risks and hereby expressly waives any right the Owner and/or Child Care Operator and anyone claiming by, through or under the Owner and/or Child Care Operator, may have against the City pursuant to Section 1542 of the California Civil Code, which reads as follows:
"A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."

Section 22. Multiple Originals; Counterparts. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts.

Remainder of Page Left Intentionally Blank

185 of 268

4870-5435-6876v1 8

IN WITNESS WHEREOF, the Parties have executed this Agreement by duly authorized representatives, all as of the Effective Date.

CITY:

CITY OF SAN MATEO,
a California municipal corporation

By:

Name: Alex Khojikian
Its: City Manager

APPROVED AS TO FORM CHILD CARE OPERATOR:

MIGHTY TIGER PRESCHOOL,
a California Limited Liability Company

By:

Name: Mazarin Vakharia Name: Geoffrey K. Choy
Its: Assistant City Attorney Its: LLC Member

By:

Name: Ruth-Heidi Choy
Its: LLC Member

(Signatures continue on next page)

186 of 268

4870-5435-6876v1 9

OWNER:

CBR Flores LLC, a California Limited
Liability Company

By:

Name: Chris Baker
Its: Manager

187 of 268

4870-5435-6876v1 A-1

EXHIBIT A

LEGAL DESCRIPTION OF PROPERTY
(2575 Flores Street, San Mateo, CA)

BEGINING AT THE INTERSECTION OF THE EASTERLY LINE OF FLORES STREET WITH THE NORTHWESTERLY LINE OF A 15 FOOT EASEMENT FOR STREET OR TRAVEL

PURPOSES AND PUBLIC UTILITIES, AS GRANTED BY DEED OF DEDICATION OF

188 of 268

4870-5435-6876v1 A-1

STATE OF CALIFORNIA )
)
COUNTY OF __________________ )

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.
_____________________________________
Name: ______________________________
Notary Public

STATE OF CALIFORNIA )
)
COUNTY OF __________________ )

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.

_____________________________________
Name: ______________________________
Notary Public
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.

189 of 268

CITY OF SAN MATEO
4 5
6 1

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 9 Section Name: CONSENT CALENDAR Account Number: 00-5718 File ID: 23-8167 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Parks and Recreation Department
MEETING DATE: December 4, 2023
SUBJECT:

Citywide Tree Planting Services – Appropriation and Agreement RECOMMENDATION:

Adopt a Resolution to authorize an appropriation of $288,942.50 from the Tree Replacement Fund to the Parks and Recreation Capital Improvement Project Tree Planting Fund; approve an agreement with Loral Horticultural Services Inc. for Citywide Tree Planting Services in the amount of $262,675.00; establish a 10 percent contingency reserve of $26,275.50; and authorize the Director of Parks and Recreation to execute the agreement in substantially the form presented.

BACKGROUND:

Tree Replacement Fees are levied on all development projects necessitating approval through a planning application, except for single-family dwelling design review applications, where trees will be removed as part of the development process.

Over the next two years, the Parks and Recreation Department plans to plant a total of 520 trees in the public right of way and within City parks. On October 19, 2023, a Notice Inviting Sealed Bids was posted on the City’s website and in the San Mateo Daily Journal. A total of five (5) bids were received by the submission deadline on October 31, 2023. The bid results are detailed below:

Bidder Total Base Bid
Loral Horticultural Services Inc. $ 262,675.00 Arborist Now $ 282,815.00
West Coast Arborists $ 298,800.00
SavATree $ 349,915.00
Professional Tree Care Co. $ 638,000.00
The lowest bidder, Loral Horticultural Services Inc., has satisfactorily met all the bid submission requirements. They also have a proven track record of successfully executing large landscape maintenance contracts for the City of San Mateo.

Therefore, staff recommends the award of contract to Loral Horticultural Services, Inc. for citywide tree planting services.

Staff recommends the award of contract to Loral Horticulture Services, Inc. and authorizing a budget appropriation of $288,942.50 from the Tree Replacement Fund (015-0194) to the Parks and Recreation Capital Improvement Project Tree Planting Fund (610008) for citywide planting services.

BUDGET IMPACT:

The Tree Replacement Fund (015-0194) has a current fund balance of $1,232,868.30, which is sufficient for this

190 of 268

CITY OF SAN MATEO
4 5
6 1
appropriation.

ENVIRONMENTAL DETERMINATION:

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

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1 - Proposed Resolution
Att 2 – Agreement

STAFF CONTACT
Matthew Fried, Managing Arborist
[email protected]
(650) 522-7422

191 of 268

9 4
3 3

CITY OF SAN MATEO
RESOLUTION NO. ____ (2023)

AUTHORIZING A BUDGET APPROPRIATION OF $288,942.50 FROM THE TREE REPLACEMENT FUND TO THE

PARKS AND RECREATION CAPITAL IMPROVEMENT PROJECT TREE PLANTING FUND FOR CITYWIDE TREE

PLANTING SERVICES
WHEREAS, the City Council is awarding a contract for the Citywide Tree Planting Services Project in the amount of $262,675.00, plus a 10% contingency of 26,275.50, concurrently with this resolution; and WHEREAS, an appropriation of $288,942.50 from the Tree Replacement Fund to the Parks and Recreation Capital Improvement Project Tree Planting Fund is necessary to fund the contract for tree planting services.

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

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

2. The budget appropriation in the amount of $288,942.50 from the Tree Replacement Fund (015-0194) to the Parks and Recreation Capital Improvement Project Tree Planting Fund (610008) is approved.

192 of 268

Signing In Process
Contract for Services Page 1 of 14
Rev 12/22
AGREEMENT WITH LORAL HORTICULTURAL SERVICES INC.

FOR CITYWIDE TREE PLANTING 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 LORAL HORTICULTURAL SERVICES INC., a corporation ("CONTRACTOR"), whose address is 704 South Amphlett Blvd, San Mateo, CA 94402.

RECITALS:

A. CITY desires certain Tree Planting Services hereinafter described.

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

NOW, THEREFORE, IT IS AGREED as follows:

SECTION 1 - SCOPE OF SERVICES
.

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

SECTION 2 - DUTIES OF CONTRACTOR

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

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

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

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

SECTION 3 - DUTIES OF CITY

CITY shall provide pertinent information regarding its requirements for the project.

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

DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA

193 of 268

Signing In Process
Contract for Services Page 2 of 14
Rev 12/22
SECTION 4 - TERM

The services to be performed under this Agreement shall commence on the date of execution of this Agreement and be completed on November 25, 2025.

SECTION 5 - PAYMENT

Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONTRACTOR an amount not to exceed $262,675.00, pursuant to rates stated in Exhibit B, attached and incorporated by reference.

SECTION 6 - TERMINATION

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

SECTION 7 - OWNERSHIP OF DOCUMENTS

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

SECTION 8 - CONFIDENTIALITY

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

SECTION 9 - INTEREST OF CONTRACTOR

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

SECTION 10 - CONTRACTOR'S STATUS

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

DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA

194 of 268

Signing In Process
Contract for Services Page 3 of 14
Rev 12/22
SECTION 11 - INDEMNITY

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

SECTION 12 - INSURANCE

Contractor shall procure and maintain for the duration of the contract the insurance specified in Exhibit C to this Agreement

SECTION 13 - NONASSIGNABILITY

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

SECTION 14 - RELIANCE UPON SKILL OF CONTRACTOR

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

SECTION 15 - WAIVERS

SECTION 16 - COSTS AND ATTORNEY FEES

Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA

195 of 268

Signing In Process
Contract for Services Page 4 of 14
Rev 12/22
is the intent of this provision that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.

SECTION 17 - NON-DISCRIMINATION

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

SECTION 18 - MEDIATION

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

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

SECTION 19 - LITIGATION

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

SECTION 20 - NOTICES

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

To CITY: Matthew Fried
City of San Mateo
330 W 20th Ave
San Mateo, CA 94403

DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA

196 of 268

Signing In Process
Contract for Services Page 5 of 14
Rev 12/22
To CONTRACTOR: Loral Horticultural Services Inc.

Attn: Mike Bergstrom
704 South Amphlett Blvd
San Mateo, CA 94402

SECTION 21 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT

This document represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, and agreements, either written or oral.

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

SECTION 22 - GOVERNING LAW AND VENUE

This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.

[SIGNATURE PAGE FOLLOWS]

DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA

197 of 268

Signing In Process
Contract for Services Page 6 of 14
Rev 12/22
IN WITNESS WHEREOF, CITY OF SAN MATEO and LORAL HORTICULTURAL SERVICES INC. have executed this Agreement the day and year first above written.

CITY OF SAN MATEO

CONTRACTOR

Joanne Magrini
Director of Parks and Recreation

Date Mike Bergstrom
President
Loral Horticultural Services Inc.

If a Corporation, can be either 1)
President or 2) Vice President
plus an additional corporate
officer (i.e., Secretary, Treasurer)
who shall sign below.

Date

APPROVED AS TO FORM

Mazarin Vakharia
Assistant City Attorney
Date

Attachments:

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

DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA 11/13/2023

198 of 268

Signing In Process
Contract for Services Page 7 of 14
Rev 12/22

EXHIBIT A - SCOPE OF SERVICES

Summary of Scope of Services
 Receive delivery of approximately 260 trees (mixture of 15 gallon and 24” box) annually.  Maintain tree health and vigor until planting.
 Plant trees in various locations throughout the City of San Mateo.  Provide stump-grinding services as needed to plant trees according to specifications.  Follow all applicable ANSI A300 Standards and BMPs and all specifications detailed below.  City to provide trees and staging area at 2001 Pacific Blvd, San Mateo, CA 94403.  Contractor to provide all labor and equipment necessary for scope of work, including receipt of tree deliveries.
 Contractor to provide all tree stakes, tree tie, soil (as needed), debris disposal, watering equipment, tree fencing, TreeDiapers.

Timing of Operations
Tree planting work will occur during the following time periods:
 YEAR 1 - November 25, 2023 – March 15, 2024
 YEAR 2 - November 15, 2024 – March 15, 2025

The complete list of tree planting locations will be provided to the contractor no later than November 20 in YEAR 1 and November 1 in YEAR 2.

All work must occur between the hours of 7:00 a.m. and 4:00 p.m. Monday through Friday. Contractor may not work on weekends, nor any holidays observed by the City of San Mateo. Once work has begun each year, the contractor must maintain a planting crew working on the project full-time until the project until completion. This work is not to be done “on the fly,” or suffer from multiple interruptions.

Contractor to maintain shared online log, updated daily, of all locations planted. There should never be ambiguity about what has/hasn’t been completed.

Utility Conflicts
Contractor is responsible for calling USA to determine potential utility conflicts for all planting sites. Where existing utilities prevent the planting of the tree in line with the green paint marking on the curb, contractor must alert Managing Arborist (or designee) to adjust planting location. Some underground utilities will not be reflected by a USA investigation. One example anticipated is private irrigation piping in the tree planting area.

Contractor assumes all responsibility for damage to underground utilities and irrigation, marked or not, and will promptly arrange for repairs to be made in the event of damage.

DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA

199 of 268

Signing In Process
Contract for Services Page 8 of 14
Rev 12/22
Tree Procurement, Delivery,
The City will tag and purchase all trees for this project at area nurseries.

The City will connect contractor with nurseries so that mutually agreed upon delivery may be scheduled.

Trees will be delivered to, and stored at, City of San Mateo Landscape Resources Yard (2001 Pacific Blvd). This is a secure site with access to water.

Contractor will provide equipment and labor to offload trees.

Upon delivery, contractor will refuse any material that does not meet American Association of Nursery Standards ANSI 760.1-2014. Contractor has authority to refuse any trees upon delivery, and shall notify CoSM of any rejected material.

Contractor to inspect all trees for an intact leader. If the leader is broken at the time of the planting, contractor will be responsible for replacement.

Storage
Once received, contractor assumes responsibility for watering and tree health and safety until trees are planted.

City to supply access to water. Contractor to provide a hose.

Tree Transport to Job Site
Trees are to be loaded, transported, and planted in such a way as to not injure any parts of the tree during these activities. Trees should be tarped prior to transport.

Traffic Control
Where necessary, contractor is responsible for setting up necessary signage and protocols to ensure the safety of workers, pedestrians, and motorists, and to comply with state and local regulations. ‘No Parking’ Signs
Contractor is responsible for posting “No Parking” signs, if needed to perform work. All signs must be posted a minimum of 48 hours in advance of work. Signs may be valid for a period not to exceed two business days. The City will provide signs to contractor upon request.

Site Preparation
Some of the planting sites will have existing stumps, shrubbery, or small dead trees. Contractor is responsible for removing these items from the planting site.

Where stump grinding is necessary, contractor shall remove grindings from site to bring planting area to grade.

Trees are not to be planted in a mixture any greater than 10% wood chips. See Figure 1.

Pavement, concrete and rocks over 2-inches in any dimension shall be removed from the planting pit to a minimum 24-inch depth.

Where backfilling is necessary to bring planter pit soil to grade or to replace stump grindings or other debris, contractor to supply quality topsoil. See Figure 2.

Below is a summary of the planting requirements. Contractor responsible for reviewing and ascribing to ISA BMP Tree Planting, 2nd Edition.

DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA

200 of 268

Signing In Process
Contract for Services Page 9 of 14
Rev 12/22
Planter Pit
Follow ANSI A300 64.4 and ISA BMP Tree Planting 2nd Edition. Planter hole width to be minimum 1.5 times rootball diameter.

Planting Depth
The bottom of true trunk flare must be at or slightly above finished grade. As defined in ISA BMP Tree Planting 2nd Edition, If trunk flare is not visible at top of root ball/container, contractor shall expose trunk flare prior to planting. Adventitious roots that have resulted from poor nursery practices do not constitute the TRUE trunk flare. Keep looking!
Root Care
After container is removed, root ball shall be trimmed in the following way:

1. Thick circling roots – straighten and/or cut cleanly

2. Thin roots—make three to four vertical cuts ½ inch deep around the root ball. Spread bottom out if necessary.

Tree Placement
Locate tree in hole and rotate to direct main branches away from street and pedestrian passages.

Watering at Planting
Water must be added to root zone and surrounding soil to bring root zone to field capacity.

Berm
Contractor to form a soil berm no less than 3 inches but no greater than 6 inches around perimeter of root ball.

Staking
Refer to ANSI A300 Part 3 and BMP Tree Support Systems, 3rd Edition.

If tree is delivered with a stake in the box/container, that stake is to be removed during planting.

Each tree is to get three treated stakes that are a minimum of 8 feet in height and 2 inches in diameter. The three stakes shall be laterally stabilized by three cross braces. The cross braces, to be provided by the contractor, will be 19” wide x 3.75” high, cut from 5/8" plywood or fencing. The braces shall be nail/screwed to the stakes at about 5 feet high. Nails shall not protrude from the surface of the wood. (Note: past contractors have found redwood fence boards of adequate width for this task.) See Figure 3.

Contractor will use staple gun to fasten one 3” x 15” vinyl sign to each of the three cross braces (3 stickers per tree using 4-8 staples per sticker). Educational signs to be provided by CoSM. See Figure 4.

Stakes should not extend more than 18 inches above cross brace signs.

Sites with Tree Grates
Sites with existing tree grates will require grate-specific tree stakes. One (1) J.R. Partners R2 Grate Stake must be installed in accordance with manufacturer specifications. Alternative grate stakes must be approved by the Managing Arborist.

DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA

201 of 268

Signing In Process
Contract for Services Page 10 of 14
Rev 12/22
Tree Tie
Trees are to be secured with ties of a stretchable rubber material. Tie material and configuration should prevent main stem and branches from rubbing against staking and cross braces. Contractor to present tying methods to Managing Arborist for approval prior to contract start.

Ties shall be secured in a manner allowing movement of trunk to permit proper trunk taper development.

TreeDiapers
On a limited number of sites, primarily median islands, TreeDiapers must be installed according to the manufacturer’s instructions. 15-gallon trees are to receive a Tree Diaper TD36R (Model#1036vA). 24-inch box trees are to receive a Tree Diaper TD48R (Model#1048). All vegetation beneath the TreeDiapers must be grubbed out prior to installation. On sites where TreeDiapers are installed, all ice plant and/or ivy must be grubbed out for radius of 6 feet from the tree.

Staffing and Supervision
One crew leader is to be assigned to work on this project for its entire duration. That crew leader shall be fluent in English and be able to accept instruction from the City’s Managing Arborist (or designee). The name of this supervisor should be submitted with the proposal, and they shall have at all times a charged mobile phone on which City staff can reach them.

Post-planting Inspection and Performance Criteria
The Managing Arborist or designee will conduct detailed post-planting inspections to ensure trees are planted according to the contract specifications. Contractor responsible for correcting all deviations noted during the post-work inspection. No Exceptions.

DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA

202 of 268

Signing In Process
Contract for Services Page 11 of 14
Rev 12/22

EXHIBIT B - PAYMENT RATES

Invoices are to be submitted no more frequently than once per 14 days. Each invoice shall include the full species name and container size of each tree planted and the corresponding address where that tree was planted. Total services invoiced under this Agreement shall not exceed $262,675.00.

Work shall be invoiced and will be paid according to the Schedule of Services and Service Descriptions below.

SCHEDULE OF SERVICES AND SERVICE DESCRIPTIONS

ITEM
NO.

SERVICE DESCRIPTION YEAR 1

UNIT PRICE

YEAR 2

UNIT PRICE

1 Standard Street Tree (15 gallon) $ 290.00 $ 300.00 2 Standard Street Tree (24-inch box) $ 555.00 $ 575.00 3 Street Tree w/ Existing Tree Grate (15 gallon) $ 525.00 $ 540.00 4 Street Tree w/ Existing Tree Grate (24-inch box) $ 850.00 $ 875.00 5 Park Tree (15 gallon) $ 325.00 $ 340.00 6 Park Tree (24-inch box) $ 585.00 $ 600.00 7 Park Tree w TreeDiaper (15 gallon) $ 425.00 $ 440.00 8 Park Tree w TreeDiaper (24-inch box) $ 745.00 $ 770.00

1. Standard Street Tree (15 gallon) – Planting of one (1) 15-gallon tree along a city street, using 3 tree stakes and cross-brace signage, as described in Exhibit A.

2. Standard Street Tree (24-inch box) - Planting of one (1) 24-inch box tree along a city street, using 3 tree stakes and cross-brace signage, as described in Exhibit A.

3. Street Tree w/ Existing Tree Grate (15 gallon) - Planting of one (1) 15 -gallon tree in a planting site with an existing tree grate. Providing and installing one J.R. Partners R2 Grate Stake, as described in Exhibit A.

4. Street Tree w/ Existing Tree Grate (24 -inch box) - Planting of one (1) 24 -inch box tree in a planting site with an existing tree grate. Providing and installing one J.R. Partners R2 Grate Stake, as described in Exhibit A.

5. Park Tree (15 gallon) – Planting of one (1) 15-gallon tree in a city park, using 2 tree stakes. No cross- braces or signage.

6. Park Tree (24-inch box) – Planting of one (1) 24 -inch box tree in a city park, using 2 tree stakes. No cross-braces or signage.

DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA

203 of 268

Signing In Process
Contract for Services Page 12 of 14
Rev 12/22

7. Park Tree w/ TreeDiaper (15 gallon) – Planting of one (1) 15-gallon tree in a park or park-like planting area, using 2 tree stakes. Providing and installing according to the manufacturer's instructions one (1) Tree Diaper TD36R (Model#1036vA). No cross-braces or signage.

8. Park Tree w/ TreeDiaper (24 -inch box) – Planting of one (1) 24 -inch box tree in a park or park -like planting area, using 2 tree stakes. Providing and installing according to the manufacturer's instructions one (1) Tree Diaper TD48R (Model#1048). No cross-braces or signage.

With the exception of the trees and the signage, the Contractor shall be provide all labor and materials required to successfully deliver the bid items above.

The City will purchase all plant material and signage.

DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA

204 of 268

Signing In Process
Contract for Services Page 13 of 14
Rev 12/22

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 Contractor has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.

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

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

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

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

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

DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA

205 of 268

Signing In Process
Contract for Services Page 14 of 14
Rev 12/22
Waiver of Subrogation
Contractor hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies rega rdless 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 Contractor 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
Contractor shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

DocuSign Envelope ID: 8EC13FEF-6900-4B8A-8915-B1BD04BF2BBA

206 of 268

CITY OF SAN MATEO
4 3
3 6

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 10 Section Name: CONSENT CALENDAR Account Number: 21-4678 File ID: 23-7707 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: December 4, 2023
SUBJECT:

CalRecycle – Grant Applications
RECOMMENDATION:

Adopt a Resolution to approve the submission of grant applications to the California Department of Resources Recycling and Recovery; and authorize the City Manager, or Solid Waste Supervisor as designee, to execute all required documentation necessary for the grant application process.

BACKGROUND:

The California Department of Resources Recycling and Recovery (CalRecycle) is a branch of the California Environmental Protection Agency that oversees the state's waste management, recycling, and waste reduction programs. City staff work closely with CalRecycle to meet its waste diversion goals for recycling and compost, construction and demolition recycling, mattress and tire collection, illegal dumping, and other state mandates.

When eligible, the City’s Solid Waste program submits grant applications to receive grant money from CalRecycle for promotion of waste diversion and help defray the costs to implement the requirements of SB 1383. SB 1383 is California’s Short Term Pollutants Reduction legislation, which seeks to reduce greenhouse gas emissions by reducing the amount of organics sent to landfill in the state. The City receives grants to promote recycling through the City/County Payment Program and uses this money for staff time and supplies to promote waste diversion at our special events, Music in the Park, B St. Nights, Beresford shredding/e-waste events, and the Bayfront Cleanup.

The City also receives money through the Cal Recycle Local Assistance Grant to defray some of the costs to implement SB 1383. These costs include recycled organics waste products procurement, education and outreach, and contamination analysis. In the next grant cycle, the City is on target to receive approximately $188,000 to be spent for SB 1383 implementation over the next two years.

To process our applications and receive these funds, CalRecycle requires the City of San Mateo to adopt a resolution authorizing the submission of applications and, if awarded, the administration of the funds. The resolution would authorize the execution of grant agreements and related documentation and will meet the CalRecycle grant application requirements for a time period of five years from the date of the Resolution.

BUDGET IMPACT:

There is currently no budgetary impact associated with this action, however not approving the resolution for grants with CalRecycle will cause the City not to receive the anticipated $188,000. If a Grant is awarded, a future request of Council will be appropriation of the grant funding to the Waste Disposal program in the Solid Waste Fund.

207 of 268

CITY OF SAN MATEO
4 3
3 6
ENVIRONMENTAL DETERMINATION:

This action by the City in passing a resolution allowing receipt of State money and submission of grant applications 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
Jack Johnson, Waste Management Supervisor
[email protected]
650.522.7346
Sven Edlund, Regulatory Compliance Manager
[email protected]
650.522.7296

208 of 268

CITY OF SAN MATEO
RESOLUTION NO. ____ (2023)

AUTHORIZING SUBMITTAL OF APPLICATION(S) FOR ALL CALRECYCLE GRANTS FOR WHICH THE CITY OF SAN

MATEO IS ELIGIBLE
WHEREAS, Public Resources Code sections 48000 et seq. authorizes the Department of Resources Recycling and Recovery (CalRecycle) to administer various grant programs (Grants) in furtherance of the State of California’s efforts to reduce, recycle and reuse solid waste generated in the state thereby preserving landfill capacity and protecting public health and safety and the environment; and WHEREAS, in furtherance of this authority CalRecycle is required to establish procedures governing the application, awarding, and management of Grants; and
WHEREAS, CalRecycle’s grant application procedures require, among other things, an applicant’s governing body to declare by resolution certain authorizations related to the administration of CalRecycle Grants.

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

1. This action by the City in passing a resolution authorizing the submission of grant applications is not 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 City Council authorizes the submittal of applications to CalRecycle for all grants for which the City of San Mateo is eligible.

3. The City Manager, or Solid Waste Supervisor as designee, is hereby authorized to execute all grant documents, including but not limited to, applications, agreements, amendments, and requests for payment, necessary to secure grant funds and implement the approved grant project on behalf of the City of San Mateo.

4. This authorization is effective for five (5) years from the date of adoption of this resolution.

209 of 268

CITY OF SAN MATEO
4 5
8 6

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 11 Section Name: CONSENT CALENDAR Account Number: 10-4679 File ID: 23-8219 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Parks and Recreation Department
MEETING DATE: Dec. 4, 2023
SUBJECT:

Fallen Heroes Memorial Artwork Fabrication – Appropriation and Agreement RECOMMENDATION:

Adopt a Resolution to authorize an appropriation in the amount of $103,400 from the Art in Public Places Fund to the Parks and Recreation Capital Improvement Project Central Park Fund for the fabrication of the Fallen Heroes Memorial artwork and approve a purchase agreement with Thomas-Swan Sign Company, Inc., for custom fabricated signage in an amount not to exceed $103,400; and authorize the Director of the Parks and Recreation to execute a purchase agreement in substantially the form presented.

BACKGROUND:

The City of San Mateo Municipal Code (23.60.030) states there is a fund known as the "Art in Public Places Fund" and that this fund shall be maintained by the City treasurer, and shall be used for the acquisition, installation, improvement, and maintenance of artwork to be displayed in the City, and the administration of the Art in Public Places Program.

The Parks and Recreation Department is constructing a Fallen Heroes Memorial at the direction of the City Council as part of the implementation of the Central Park Master Plan. Throughout the years, residents had been inquiring about where San Mateo has formal recognition for our fallen heroes and veterans. While there are six separate plaques scattered in Central Park recognizing veterans and service members, the City has no formal memorial. In response to community interest in 2015, Mayor Maureen Freschet recommended the creation of a memorial in Central Park to recognize all the City's Fallen Heroes, including public safety personnel. The San Mateo City Council unanimously agreed with the recommendation and directed that a Fallen Heroes Memorial be added to the Central Park Master Plan. An eleven- member steering committee, comprised of City Councilmembers, veterans, retired police and fire representatives, community members, and city staff was assembled to develop the memorial's concept.

The City contracted with RRM Design Group to develop a design concept for committee consideration. RRM returned with two concepts, including the Remembrance Poppy inspired by the national emblem of remembrance that was worn following World War I (Attachment 3). The Committee overwhelmingly chose the Remembrance Poppy which is the preferred design recommended to the Park and Recreation Commission. The City Council expressed unanimous support and approval for the design at its November 20, 2020, City Council Meeting, and later, at its May 17, 2021, meeting the Council appropriated $50,000 for construction of the memorial and approved the Fallen Heroes Recognition Policy. The design consists of seven vertical stainless-steel columns, each containing a segment of the poppy that, when viewed from a certain angle, will unite to form a single image. Each column will represent a branch of the military and the San Mateo Police and Fire Departments with engraved names of those who died in service.

Per the Purchasing Policy, the department conducted a public solicitation for quotes for the fabrication of the artwork and Thomas - Swan Sign Company, Inc. was chosen based on price and execution of previous work examples of similar scale.

Per Municipal Code Section 23.60.030, “Art In Public Places Fund,” the department gained unanimous approval from the Civic Arts Committee, at their November 13, 2023 meeting, to approve $94,000 plus a 10% contingency in the amount of

210 of 268

CITY OF SAN MATEO
4 5
8 6
$9,400 for a total of $103,400 for the fabrication of the Fallen Heroes Memorial artwork. Staff recommends that City Council approve the appropriation of the funds and authorize the Director of Parks and Recreation to execute a purchase agreement with Thomas - Swan Sign Company, Inc. in substantially the form presented inclusive of a 10% contingency.

BUDGET IMPACT:

There is sufficient funding available for the budget appropriation. The current fund balance of the Art in Public Places Fund stands at $999,946.84, with $294,567 appropriated (and available) by the Civic Arts Committee. This action will result in a reduction of this balance by $103,400.

ENVIRONMENTAL DETERMINATION:

This budget appropriation is not a project subject to CEQA, because it is an organizational or administrative activity that will not result in direct or indirect physical changes in the environment. (CEQA Guidelines Section 15378(b)(5).) The Fallen Heroes Memorial sitework is categorically exempt from CEQA as an “existing facility,” because it consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use (CEQA Guidelines Section 15301) and because it consists of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. (CEQA Guidelines Section 15303.)

NOTICE PROVIDED
All meeting noticing requirements were met.

ATTACHMENTS
Att 1- Proposed Resolution
Att 2 – Purchase Agreement Thomas – Swan Sign Company, Inc.

Att 3 - Remembrance Poppy Rendering

STAFF CONTACT
King Leong
[email protected]
(650) 522-7542

211 of 268

9 4
5 6

CITY OF SAN MATEO
RESOLUTION NO. ____ (2023)

APPROVING A BUDGET APPROPRIATION FOR THE FALLEN HEROES MEMORIAL ARTWORK FABRICATION WHEREAS, the "Art in Public Places Fund" must be used for the acquisition, installation, improvement, and maintenance of artwork to be displayed in the City, and the administration of the Art in Public Places Program; and
WHEREAS, the Parks and Recreation Department of the City of San Mateo is constructing a Fallen Heroes Memorial depicting a Remembrance Poppy at the direction of the City Council as part of the implementation of the Central Park Master Plan; and
WHEREAS, the Parks and Recreation Department submitted the Remembrance Poppy to the Civic Arts Committee for consideration as artwork for the Arts in Public Place Program, and the Civic Art Committee approved the artwork; and
WHEREAS, the Civic Arts Committee approved the recommendation of the budget appropriation at their November 13, 2023 meeting for the fabrication of the poppy artwork.

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

1. This budget appropriation is not a project subject to CEQA because it is an organization or administrative activity that will not result in direct or indirect physical changes to the environment. (CEQA Guidelines Section 15378(b)(5)). The Fallen Heroes Memorial sitework is categorically exempt from CEQA as an “existing facility,” because it consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use (CEQA Guidelines Section 15301) and because it consists of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. (CEQA Guidelines Section 15303.)

2. The appropriation of $103,400 from the Art in Public Places Fund to the Parks and Recreation Capital Improvement Project Central Park 610027, for the fabrication of the Fallen Heroes Memorial artwork is approved.

212 of 268

Purchase Contract for Goods Page 1 of 8
Rev 7/21
9 4
6 4

PURCHASE CONTRACT

FOR THE CENTRAL PARK FALLEN HEROES MEMORIAL REMEMBERANCE POPPY FROM THOMAS-SWAN SIGN COMPANY, INC.

This Purchase Contract (“Contract”), made and entered into this day of _________, 20__, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California (“CITY”), and Thomas-Swan Sign Company, Inc., a Corporation (“VENDOR”).

RECITALS:

A. CITY desires to purchase certain custom fabricated signage hereinafter described to be placed in Central Park as part of the Fallen Heroes Memorial.

B. CITY desires to engage VENDOR to provide this custom fabricated signage by reason of its qualifications and experience and VENDOR has offered to provide the required goods on the terms and in the manner set forth herein.

NOW, THEREFORE, IT IS AGREED as follows:

SECTION 1 - PURCHASE
The goods to be purchased from VENDOR under this Contract are described in Exhibit A, which is attached and incorporated by reference.

SECTION 2 - PRICE AND TAXES
All prices shall be as stated in this Contract and are firm and not subject to escalation.

This purchase is subject to all California sales tax. Municipalities are exempt from federal excise and transportation taxes. Prices shall exclude these taxes.

SECTION 3 - PAYMENT
Unless otherwise agreed in writing, payment terms shall be net thirty (30) days from date of delivery and acceptance of goods. Invoices must cite the purchase order number to prevent delay in payment. All invoices must be mailed to City of San Mateo, Attn: Accounts Payable, 330 West 20th Avenue, San Mateo, CA 94403.

213 of 268

Purchase Contract for Goods Page 2 of 8
Rev 7/21
9 4
6 4
SECTION 4 - DELIVERY AND PERFORMANCE
Time is of the essence in the performance of this Contract. Delivery of goods shall occur no later than March 3, 2024. If delivery of goods cannot be made at the specified time, VENDOR shall promptly notify the CITY of the earliest possible date for delivery. Notwithstanding such notice, if VENDOR for any reason fails to deliver goods within the time specified or to the CITY’s satisfaction the CITY may terminate this Contract or any part thereof without liability except for goods previously provided and accepted. The CITY’s receipt or acceptance of all or part of a non-conforming delivery shall not constitute a waiver of any claim, right or remedy the CITY has under this Contract or applicable law.

SECTION 5 - SHIPMENT AND INSPECTION
VENDOR assumes full responsibility for all transportation, transportation scheduling, packing, handling, insurance, and other services associated with delivery of all products. No charges for transportation containers, packing, etc., will be allowed the vendor unless so specified in this Contract.

All shipments shall be F.O. B. to the CITY’s Park Yard, at 2001 Pacific Blvd., San Mateo. Transportation charges shall be shown as a separate item on the invoice.

The CITY may revise shipping instructions as to any goods not as yet shipped. The CITY shall have the right to inspect any or all of the goods at VENDOR’s place of business or upon receipt by the CITY. By reason of its failure to inspect the goods, the CITY shall not be deemed to have accepted any defective goods or goods which do not conform to the specifications provided or to have waived any of the CITY’s rights or remedies arising by virtue of such defects or non-conformance. VENDOR shall be responsible for payment of shipping for the return of any defective goods. Shipping documents and invoices must cite the Purchase Order number.

SECTION 6 - WARRANTIES
In addition to any other expressed or implied warranties and unless otherwise agreed in writing, VENDOR warrants that all products delivered hereunder will be new, suitable for use as described, of the grade and quality specified, free from all defects in design, material and workmanship; in conformity with all samples, drawings, descriptions and specifications furnished; in compliance with all applicable federal, state and local laws and regulations, and free of any liens and encumbrances. These warranties shall not be deemed to exclude VENDOR’s standard warranties or other rights or warranties which the CITY may have or obtain.

SECTION 7 - INDEMNITY
VENDOR 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 VENDOR’s performance of this Contract, except for those claims arising out of CITY’s sole negligence or willful misconduct. VENDOR agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The VENDOR’s duty to indemnify shall survive expiration or early termination of this Contract.

214 of 268

Purchase Contract for Goods Page 3 of 8
Rev 7/21
9 4
6 4
SECTION 8 - TERMINATION
This Contract may be terminated by mutual consent of both parties or by the CITY at its discretion. The CITY may cancel an order for goods at any time with written notice to VENDOR, stating the extent and effective date of termination. Upon receipt of this written notice, VENDOR shall stop performance under this Contract as directed by the CITY. If the Contract is terminated, VENDOR shall be paid in accordance with the terms of the Contract for goods delivered and accepted.

SECTION 9 - REMEDIES
In the event of VENDOR’s breach of this Contract, City may take any or all of the following actions, without prejudice to any other rights or remedies available to the City by law: (a) require Vendor to repair or replace such goods, and upon VENDOR’s failure or refusal to do so, repair or replace the same at VENDOR’s expense; (b) reject any shipment or delivery containing defective or nonconforming goods and return for credit or replacement at VENDOR’s option, said return to be made at VENDOR’s cost and risk; (c) cancel any outstanding deliveries and treat such breach by VENDOR as VENDOR’s repudiation of this contract. In the event of the CITY’s breach hereunder, VENDOR’s exclusive remedy shall be VENDOR’s recovery of the goods or the purchase price payable for goods shipped prior to such breach.

SECTION 10 - COMPLIANCE WITH LAW
VENDOR warrants that it will comply with all federal, state, and local laws, ordinances, rules and regulations applicable to its performance under this Contract. VENDOR shall obtain and maintain throughout the life of the Contract all permits or licenses required in connection with the manufacture, sale, and shipment of the products ordered under this Contract.

SECTION 11 - ASSIGNMENT
VENDOR shall not delegate or subcontract any duties and services or assign any rights or claims under this Contract without the CITY’s prior written consent.

SECTION 12 - ARTWORK, DESIGNS, PATENTS, COPYRIGHTS AND TRADEMARKS VENDOR hereby agrees that the sale, use or incorporation into manufactured products of all machines, software, hardware, materials and other devices furnished under this Contract are free and clear of infringement of any valid patent, copyright, or trademark. VENDOR shall hold the CITY harmless from any and all costs and expenses, including attorney fees, liability, and loss of any kind growing out of claims, suits or actions alleging such infringement, and VENDOR agrees to defend such claims, suits or actions.

215 of 268

Purchase Contract for Goods Page 4 of 8
Rev 7/21
9 4
6 4
SECTION 13 - GOVERNING LAW
The Purchase Order and the Contract between the parties evidenced hereby or attached thereto shall be deemed to be made in the State of California and shall in all respects be construed and governed by the laws of that state.

SECTION 14 - VENUE
This Contract 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.

SECTION 15 - WAIVER
The waiver of any term, condition or provision hereof shall not be construed to be a waiver of any other such term, condition or provision, nor shall such waiver be deemed a waiver of a subsequent breach of the same term, condition or provision.

SECTION 16 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It 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 17 - MEDIATION
Should any dispute arise out of this Contract, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the California State Board of Mediation and Conciliation, or other agreed-upon service. The mediator shall be selected by a "blindfolded" process.

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

216 of 268

Purchase Contract for Goods Page 5 of 8
Rev 7/21
9 4
6 4
SECTION 18 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:

To CITY: Joanne Magrini
City of San Mateo
330 W 20th Avenue
San Mateo, CA 94403
To VENDOR: Thomas-Swan Sign Company, Inc.

Attn: Mike Roberts
2717 Goodrick Ave.

Richmond, CA 94801
SECTION 19 - AGREEMENT CONTAINS ALL UNDERSTANDINGS; AMENDMENT This document represents the entire and integrated agreement between CITY and VENDOR 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 VENDOR. [SIGNATURE PAGE FOLLOWS]

217 of 268

Purchase Contract for Goods Page 6 of 8
Rev 7/21
9 4
6 4
IN WITNESS WHEREOF, CITY OF SAN MATEO and THOMAS-SWAN SIGN COMPANY, INC. have executed this Agreement the day and year first above written.

CITY OF SAN MATEO VENDOR
Alex Khojikian
City Manager
Date Thomas-Swan Sign Company, Inc.

Mike Roberts
President
Date

APPROVED AS TO FORM
Mazarin Vakharia
Assistant City Attorney
Date

218 of 268

Purchase Contract for Goods Page 7 of 8
Rev 7/21
9 4
6 4

EXHIBIT A

219 of 268

Purchase Contract for Goods Page 8 of 8
Rev 7/21
9 4
6 4

220 of 268

ꢀꢁꢂꢁꢂꢃꢄꢅꢆꢇꢁꢈꢉꢊꢋꢋꢌꢈ
ꢀ-&E9&%E8788CꢁEA-/$-E#&$"4&E"E6"<076"2E&4#3&5E7'E9&4&4#9"6$&E/6E ꢂꢃꢄꢅꢁE/;EA796E<7E-7679E"6%E4&479/"2/D&E=-7;&EA-7E+"@&E<-&/9E2/@&;E<7E 897<&$=E7?9E$7?6<9Cꢆ;E):&&%74ꢇEꢈ<ꢆ;E./;<79/$"2E977=;E%"<&E#"$1E<7E!792%E !"9EꢉꢁEA-&6E"Eꢊ/&?<&6"6<Eꢋ7276&2EA";E7@&9$74&EA0<-E;7997AE"'<&9E"E #"<<2&E/6E<-&E8788Cꢌ$7@&9&%Eꢍ2"6%&9;Eꢍ/&2%E06Eꢎ&2+/?4ꢏEꢀ-&Eꢋ7376&3E A97=&E"E87&4E=7E$-"66&3E-/;E+9/&'ꢁE$"22&%Eꢐꢉ6Eꢍ2"6%&9;Eꢍ/&3%;ꢑꢒE ꢀ-/;E87&4E$"?+-<E<-&E&C&E7'E"E897(&;;79E"<E<-&E 60@&9;/<CE7'Eꢓ&79+/"ꢁE "6%E;-&E@7A&%E<7E"2A"C;EA&"9E"E9&%E8788CE/6E9&4&4#9"6$&E7'E<-7;&EA-7E -"%E#&&6E3&'=E#&-/6%ꢒEꢔ-&E27##/&%E<7E4"1&E<-&E9&%E8788CE"E6"=/76"2E 4&479/"2E;C4#73ꢁE"6%E76Eꢔ&8<&4#&9EꢄꢕꢁEꢖꢃꢄꢅꢁE<-&E9&%E8788CE7*0$/"22CE #&$"4&E<-&E ꢏꢔꢏE6"</76"2E&4#2&4E7'E9&4&4#9"6$&ꢏE
ꢗ&%E8788/&;E"9&E%766&%E76Eꢘ&479/"2Eꢙ"CE"6%E"2;7E76Eꢚ"</76"2Eꢛ788CE ꢙ"CꢏEꢀ-&Eꢜ4&9/$"6Eꢊ&,/76Eꢜ?B/2/"9CEꢌ '&4"3&E9&2">/@&;E7'EA"9<04&E @&<&9"6;ꢁE/;E<-&E4"/6E+97?8E<-"<E9"/;&;E476&CE<-97?+-E<-&E%/;<9/#?</76E 7'E$9&8&ꢝ8"8&9E8788/&;ꢞEꢀ-&;&E8788/&;E"9&E-"6%$9"'<&%E#CE@&<&9"6;E"6%E 897@/%&;E<-&4EA"+&;E"6%E"E<-&9"8&?</$E7?<2&<ꢒE
ꢀꢀꢁꢂꢀꢁꢂꢃꢂꢄꢅꢆꢇꢈꢃꢉꢊꢋꢌꢌꢍꢉ
ꢀꢁꢂꢃꢄꢅꢆꢃꢅꢂꢇꢃꢈꢉꢊꢃꢋꢅꢆ ꢀꢁꢂꢃ
ꢀꢁꢂꢃꢄꢅ
ꢄꢆꢇꢈꢉꢊ

221 of 268

ꢉꢃ ꢃꢋꢌꢈꢊ
ꢀꢁꢋꢂ ꢂꢇ#ꢌꢄꢃꢅꢇꢁꢂꢌꢌ#ꢌꢄꢂꢂꢁ
ꢊꢆꢇꢍꢊꢂꢇꢄꢌ#!ꢅꢄꢎ#ꢂꢇꢏꢉꢃ ꢂꢐ#ꢇꢃꢊꢂꢌ
ꢀꢁꢑꢇꢅꢄ#ꢙꢚꢛꢜꢚ$ꢂꢄꢒꢎꢂꢐ#ꢝꢞꢛꢚ$ꢒꢆꢇꢒꢉꢂꢄꢂ#
ꢂꢁꢓꢃꢅꢇꢄꢂꢐ#ꢌꢄꢂꢂꢁ#ꢔꢌꢁꢅꢒꢂꢕ#ꢆꢖ#ꢗꢆꢗꢗ"#ꢅꢊꢃꢏꢂ#
ꢂꢁ"ꢂꢇꢒꢎ#(changed to curved wood
& metal)
ꢃꢁꢘꢂꢒꢆꢙꢃꢄꢅ ꢂ#ꢗꢃ ꢅꢇꢏ#
ꢄꢁꢚꢁꢍꢌꢎꢛꢊꢆꢍꢇꢄ#ꢁꢅꢏꢎꢄꢌ#ꢄꢆ#illuminate names
ꢀꢁꢂꢃꢄꢅꢁꢆꢇꢈ
# 3ꢀꢁꢂꢃꢄꢅꢆꢆ$ꢆꢀꢅꢅꢄ
# ꢇꢁꢈꢃꢀꢅꢉ$ꢆꢀꢅꢅꢄ
# ꢊꢀꢋꢌꢅꢉ$ꢋꢍꢃꢋꢎꢅꢀꢅ
ꢏꢌꢅꢃ$!ꢈꢅ"ꢅꢉ$ꢐꢎꢍꢑ$ꢍꢃꢅ$ꢆꢒꢅꢋꢈꢓꢈꢋ
ꢒꢍꢈꢃꢀꢔ$ꢀꢌꢅ$ꢆꢅ!ꢅꢃ$ꢑꢍꢃ ꢑꢅꢃꢀꢆ$
ꢃꢈꢀꢅ$ꢀꢍ$ꢕꢖꢎꢑ$ꢁ$ꢆꢈꢃꢗꢄꢅ$ꢈꢑꢁꢗꢅꢘ$
ꢀ
$
ꢁ ꢀ ꢂ
ꢀꢁꢂ ꢃꢄꢅꢆꢇ#ꢈꢉꢆꢊ#ꢁꢃ!ꢇ#
ꢀꢀꢁꢂꢆꢀꢁꢂꢃꢂꢄꢅꢆꢇꢈꢃꢉꢊꢋꢌꢌꢍꢉ ꢀꢁꢂꢃ
ꢀꢁꢂꢃꢄꢅ
ꢄꢆꢇꢈꢉꢊꢀꢁꢂꢃꢄꢅꢆꢇꢈꢅꢇꢁꢉꢊꢆ

222 of 268

223 of 268

4 31
5 2

224 of 268

225 of 268

ꢈꢉꢊꢋꢌꢍ#ꢉꢎ%ꢏꢐꢋꢑ ꢐꢉꢋ%
ꢍꢒ ꢓꢍꢉ%ꢁꢔ%
ꢕꢉꢋꢌꢁ$ꢕꢎ%ꢖꢍꢉꢖꢌꢕ ꢕꢗ%
ꢍꢒ ꢓꢍꢉ%ꢘꢔ%
ꢕꢉꢋꢌꢁ$ꢕꢎ%ꢋꢌꢁꢉꢓ ꢕ%
ꢙꢒꢑꢍ ꢍ%ꢖꢌꢕꢎꢓ ꢚ
ꢛꢁ%ꢜꢍꢝꢞꢁ%ꢕ!ꢖꢑꢓꢉꢋ
ꢃꢂꢁꢀ
ꢀꢁꢂꢂꢃꢄꢅ ꢆꢃꢇꢈꢃꢉꢅ ꢊꢃꢊꢈꢇꢋꢁꢂꢅ
ꢀꢁꢂꢃꢄꢅꢁꢆꢇꢈ
ꢀꢁꢂꢁꢃꢄꢅꢆꢇꢈꢉꢅꢊꢋꢊꢋꢅ
ꢀꢀꢁ
ꢅ
ꢄ
ꢂꢃ
ꢁ
ꢀꢀꢁꢂꢃꢄꢀꢁꢂ%ꢃꢁ"ꢄꢅꢆ%ꢇꢁ%

226 of 268

CITY OF SAN MATEO
3 7
9 2

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 12 Section Name: CONSENT CALENDAR Account Number: 87-2314 File ID: 23-8221 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Human Resources Department
MEETING DATE: December 04, 2023
SUBJECT:

Excess Workers' Compensation Insurance Policy for Calendar Years 2024 and 2025 – Purchase RECOMMENDATION:

Approve the purchase of excess workers' compensation insurance from Safety National in an amount projected to be $491,604.00 for the two-year period commencing January 1, 2024, and ending December 31, 2025.

BACKGROUND:

The City has been insured for excess workers' compensation coverage with Safety National since 2009. In September of 2023, we requested that our benefits broker, Newfront, issue a bid request for coverage. The market for excess coverage in California is quite limited. Of the carriers contacted during the renewal process last year, only Safety National submitted a quote. Another carrier, Arch Insurance Co., indicated that they might be interested, but the premium they mentioned is significantly higher for the same level of self-insured retention. Municipal Code 3.60.050(c) provides that the City can forgo the competitive bidding process related to the placement of insurance coverage.

Based on the information provided by Newfront, Safety National is now again offering a two-year policy; this type of policy was not offered during the years 2020 through 2023. Our current policy provides workers' compensation liability limits of $25 million with a $2 million employer liability limit and a self-insured retention (SIR) of $1 million for each occurrence.

There is a $500,000 corridor deductible.

There are two options available for renewal:

Option 1: Renew Workers’ Compensation Excess Coverage Policy with Safety National for a period of one (1) year. The premium quoted by Safety National for a one-year policy is $245,802.00, which is an 8.64% increase compared to the premium for the current year ($226,244.00). Workers’ compensation liability limits will remain unchanged.

Option 2: Renew Workers’ Compensation Excess Coverage Policy with Safety National for a period of two (2) years. The premium quoted by Safety National for a two-year rate guarantee policy is $491,604.00 ($245,802.00 for the first year and $245,802.00 for the second year), which is an 8.64% increase in the first year of the policy compared to the premium for the current year ($226,244.00) and remains at the same for the second year of the policy, at $245,802.00 (0% increase in the premium). Workers’ compensation liability limits will remain unchanged compared to the current year policy. This option allows the City to avoid rate increase for the Workers’ Compensation Excess Coverage Policy in 2025.

To keep the premium at the same level for the second year of the policy, several conditions must be met, such as:
•Program Commitment Agreement is signed by the Employer and returned to Safety National within 60 days following the effective date of the Current Period.

227 of 268

CITY OF SAN MATEO
3 7
9 2
•No certified “act of terrorism”, as defined under the Terrorism Risk Insurance Act of 2002 or any subsequent acts, amendments, or reauthorizations thereto (“TRIA”), occurs during the Current Period (1/1/2024-1/1/2025). •No “pandemic” first originates and/or is first declared during the Current Period with “pandemic” defined as a disease prevalent throughout an entire state, country, continent, or world that meets either of the following criteria:
(a) Such disease is declared a pandemic by the World Health Organization; or (b) Any branch or agency of the United States Federal Government, or any state covered by the Excess Policy(ies), declares the spread of such disease to be a public health emergency. •No significant change in allocation of Exposure Basis (basis upon which the policy is rated and may include, but is not limited to, payroll or man hours) among states for the Renewal Period from that in place for the Current Period with “significant” being understood to mean a ±5% change in Exposure Basis of any state that represents more than 25% of the total policy Exposure Basis written in each preceding Liability Period or a ±50% change in Exposure Basis in any state that represents less than 25% of the total Exposure Basis for such preceding Liability Period. oIn other words, to keep the premium for CY 2025 at the same level as it is in 2024, the City’s Exposure Basis for CY 2025 should not change by more than 5% compared to the Exposure Basis for CY 2024. •No significant change in core business underwriting exposure, with “significant” being understood to mean a ±15% change in exposure for the Renewal Period over that in place for the Current Period. •No significant change in underwriting exposure through development of, or acquisition of, non-core business, with “significant” being understood to be a change in exposure that is in excess of 5% for the Renewal Period over that for the Current Period.
•No new, individual incurred loss during the Current Period to exceed 75% of that Excess Policy's applicable SIR/Retention amount with such losses to be valued as of 10/1/2024. •No development of existing claims having a date of loss prior to the effective date of the Current Period, to exceed 75% of the Excess Policy's applicable SIR/Retention amount with such losses to be valued as of 10/1/2024. oThe foregoing does not apply to specified claims that have been already taken into consideration for the premium pricing for the 2023 policy.

Our broker, Newfront, is recommending that we utilize Option 2 for renewal due to the savings it provides.

BUDGET IMPACT:

The premium quoted by Safety National for 2023 for both options is calculated at a rate of $0.3706 per $100 of covered estimated payroll, which results in an expected expenditure of $245,802.00 for each year, over the next two years. This rate is an 8.64% increase from our 2023 annual premium of $226,244 at a rate of $0.3598 per $100 of covered estimated payroll.

According to our broker, it would be most beneficial for the City to utilize Option 2, as this will allow the City to avoid potential rate increase in the year 2025. There are sufficient funds budgeted in the Workers' Compensation Fund for this expense.

ENVIRONMENTAL DETERMINATION:

This agreement 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 - Coverage Summary

228 of 268

CITY OF SAN MATEO
3 7
9 2

STAFF CONTACT
Yuliya Shukhat, Senior Risk Management Analyst
[email protected]
(650) 522-7263

229 of 268

230 of 268

231 of 268

232 of 268

233 of 268

234 of 268

235 of 268

236 of 268

237 of 268

238 of 268

239 of 268

240 of 268

241 of 268

242 of 268

243 of 268

244 of 268

245 of 268

246 of 268

247 of 268

248 of 268

249 of 268

250 of 268

251 of 268

252 of 268

253 of 268

CITY OF SAN MATEO
2 7
0 1

CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 13 Section Name: CONSENT CALENDAR Account Number: 10-2021 File ID: 23-8230 TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Finance Department
MEETING DATE: December 4, 2023
SUBJECT:

Receipt and Use of Development Impact Fees and In-Lieu Fees – Annual Report RECOMMENDATION:

Adopt a Resolution to make findings and accept the annual report on receipt and use of development impact fees and in- lieu fees for the year ended June 30, 2023.

BACKGROUND:

Development Impact Fees
The City of San Mateo assesses four development impact fees – Wastewater Treatment Plant Phase II Expansion Fee, Transportation Improvement Fee, South Trunk Area Sewer Improvement Fee, and Park Impact Fee.

Local governments often charge fees as a condition of approval for development projects to fund public improvements in order to compensate for the demands that the developments have on public resources. These fees are commonly known as development impact fees. In 1989, the State Legislature passed Assembly Bill 1600 (AB 1600), which added Sections 66000 et seq. to the California Government Code, commonly known as the Mitigation Fee Act. Government Code Section 66006 requires that the City make available to the public the following information regarding development impact fees within 180 days after the end of each fiscal year:

1. A brief description of the type of fee.

2. The amount of the fee.

3. The fee’s beginning and ending balances for the fiscal year.

4. Total fees collected and the interest earned, if applicable.

5. Identification of each public improvement on which impact fees were expended and the amount of expenditure on each improvement, including the total percentage of the cost of the public improvement that was funded with impact fees.

6. Identification and timeline of public improvements any unexpended fees will be used for. a. This information is listed in Exhibit A to the Resolution. Exhibit A shows the five-year plan for public improvement projects and their anticipated expenditures related to the Mitigation Fee Act and Quimby Act. Specific details on each of the projects listed in Exhibit A can be found in the five-year capital improvement program section in the City’s 2023-24 Budget, which was adopted by City Council on June 20, 2023.

7. Description and uses for transfers or loans of fees, if applicable.

8. Amounts of any refunds and allocations.

Further, the Mitigation Fee Act requires that findings describing the continuing need for impact fees be made every five years specifying the intended use of any unexpended impact fees, regardless of whether the fees are committed or

254 of 268

CITY OF SAN MATEO
2 7
0 1
uncommitted. If findings are not presented as scheduled, the City may be subjected to go through a refunding procedure.

The City is opting to make such findings every year.

In-Lieu Fees
In-lieu fees are fees that are collected by the City instead of requiring developers to provide or construct specified improvements or amenities with their projects. The City of San Mateo assesses five in-lieu fees – Parking In-Lieu Fee, Art in Public Places Fee, Tree Replacement Fee, Below Market Rate Housing Fee, and Park In-Lieu Fee.

Park
In-Lieu Fees are assessed pursuant to the Quimby Act under Government Code Section 66477. The other in-lieu fees do not have statutory reporting requirements but are included in this report. In an abundance of caution, and based on recent caselaw, this report and resolution include the same reporting requirements and findings for in-lieu fees that apply to impact fees. Under the Quimby Act, local governments may require the dedication of land for parks or the payment of fees in-lieu of land dedication as a condition of subdivision map approval. While park in-lieu fees are exempt from the reporting requirements included in the Mitigation Fee Act, these fees have separate Quimby Act reporting requirements, specifically:

1. The City must develop a schedule specifying the use of land or fees to develop park or recreational facilities to serve the residents of the subdivision.

2. Any Quimby fees collected must be committed within five years after the payment of the fees or the issuance of building permits on one-half of the lots created by the subdivision, whichever occurs later.

3. If not committed, the fees shall be distributed and paid to the record owners of the subdivision in the same proportion that the size of the lot bears to the total area of lots within the subdivision (Gov. Code section 66477(a)(6)).

Linkage Fees
Linkage fees are exactions for social needs indirectly related to development projects. The City of San Mateo assesses two linkage fees – Child Care Development Fee and Affordable Housing Commercial Linkage Fee. While these are linkage fees, they are included in this report with reporting requirements under the Mitigation Fee Act for informational purposes and to make sure that information is available in the event that a court rules in the future that linkage fees are subject to the reporting requirements of the Mitigation Fee Act.

This report complies with requirements of the Mitigation Fee Act and the Quimby Act outlined above.

Analysis
Development Impact Fees
Wastewater Treatment Plant Phase II Expansion FeeWastewater Treatment Plant Phase II Expansion Fee In April 2005, construction began to increase capacity of the wastewater treatment plant, and construction was substantially completed in the spring of 2009. Funds from the Sewer Enterprise Fund were used to pay for the expansion project. Under a Joint Powers Agreement (JPA), the treatment plant is partially owned by the Estero Municipal Improvement District (Foster City). Based on San Mateo’s share of the treatment plant and based on the total projected cost attributable to development based on the 2005 expansion study, the amount that is to be recovered through development fees is $3.52 million in total.

The Wastewater Treatment Plant Phase II Expansion Fee is imposed on all development that results in a change of use and that adds more sewage to the City’s sewage treatment system. The fee took effect on July 1, 2006 and will continue to be charged until $3.52 million is collected. Funds collected are transferred annually to the fund balance of the Sewer Enterprise Fund as a repayment to the Fund for the expansion cost. The fee is charged as shown in the 2022-23 Comprehensive Fee Schedule on page 10.8. The fees are determined by reference to site sewer study or engineering standards.

255 of 268

CITY OF SAN MATEO
2 7
0 1
The following table shows collections in 2022-23, as well as collections to date.

Wastewater Treatment Plant Expansion Impact Fee 2022-23 Beginning Balance $ -
Developer Fees $ 18,007
Interest Income / (Expense) $ -
Transfer to Sewer Enterprise Fund $ (18,007) Ending Balance $ -

Collections to
Date
Total Developer Fees Collected as of 2022-23 $ 2,864,310 Total Developer Fees Needed $ 3,520,000
% Collected 81%
Transportation Improvement Fee
San Mateo Municipal Code Chapter 27.13 establishes a transportation improvement fee for new development to fund City-wide traffic improvements to mitigate the cumulative impacts of new development and to accommodate future development. The fee is charged as shown in the 2022-23 Comprehensive Fee Schedule:

Residential
•Single-family Per dwelling unit $6,867.99
•Multi-family Per dwelling unit $3,468.58
Commercial and Industrial
•Retail Per 1,000 sq. ft. $27,735.48
•Office Per 1,000 sq. ft. $8,366.76
•Industrial Per 1,000 sq. ft. $4,589.64 •Hotel Per Room $4,367.84
•Institution Per 1,000 sq. ft. $3,568.50
The following table shows activities in 2022-23.

Transportation Improvement Fee 2022-23
Beginning Balance $ 257,416
Developer Fees $ 10,353
Interest Income / (Expense) $ 7,849 Expenditures $ (146,717)
Reclassification of Prior Years $ 186,802 Ending Balance $ 315,704
2022-23
Transportation Improvement Fee Total Expended Impact Fees Used % of Total Project Expenditures:
460037 El Camino at Highway 92 Landscape Improvements $ 33,362 $ 33,362 100% 460049 Poplar/Humboldt Signal Modify-Left Turn $ 470 $ 470 100% 466600 Citywide Traffic Calming $ 144,531 $ 112,631 78% 46R008 Railroad Ave Wall Enhancement $ 524 $ 524 100% Total Expenditures: $ 178,886 $ 146,717 82%

256 of 268

CITY OF SAN MATEO
2 7
0 1
The total ending balance as of the end of fiscal year was $315,704. The fund balance and continued collection of the Transportation Improvement Fee will be utilized to fund the project(s) listed in Exhibit A.

Park Impact Fee
Under San Mateo Municipal Code Chapter 13.05, a park impact fee is imposed on the construction of new residential units to accommodate the increased demand on park and recreation facilities. The fee is charged as shown in the 2022-23 Comprehensive Fee Schedule:

Per residential unit type:

Single family $29,598 per unit
Multi-family 2-4 units $27,172 per unit
Multi-family 5+ units $20,476 per unit
Mobile homes $17,564 per unit
The following table shows activities in 2022-23.

Park Impact Fee 2022-23
Beginning Balance $ 3,436,986
Developer Fees $ 27,172
Interest Income / (Expense) $ -
Expenditures $ -
Ending Balance $ 3,464,158
The total ending balance as of the end of fiscal year was $3,464,158. The fund balance and continued collection of the Park Impact Fee will be utilized to fund the project(s) listed in Exhibit A.

The Council is asked to make the following findings regarding development impact fees collected but not expended – these findings are detailed in the proposed resolution:

1. Development impact fees are collected to mitigate direct and indirect impacts from development.

2. These funds are expended in a timely manner to fund continued improvements to public facilities related to the increased demand on the facilities resulting from development.

3. There is a reasonable relationship between these impact fees and their purpose.

4. These impact fees continue to be required to fund applicable improvements, and as such, these fees will continue to be collected for utilization solely for their intended purpose.

In-Lieu Fees
Parking In-Lieu Fee
San Mateo Municipal Code Chapter 11.62 establishes a parking in-lieu fee for new development to fund for additional parking in downtown San Mateo. Applicants for planning approval within the Central Parking Improvement District may pay a fee in lieu of providing required parking on the property site in accordance with Title 27 of the municipal code. As shown in the 2022-23 Comprehensive Fee Schedule, the fee is $57,699.90 per space.

The following table shows activities in 2022-23.

Parking In-Lieu Fee 2022-23
Beginning Balance $ 5,865,562
Developer Fees $ 515,658
Interest Income / (Expense) $ 130,587
Expenditures $ (515,658)
Ending Balance $ 5,996,149

257 of 268

CITY OF SAN MATEO
2 7
0 1
The total ending balance as of the end of fiscal year was $5,996,149. The fund balance and continued collection of the Parking In-Lieu Fee will be utilized to fund the project(s) listed in Exhibit A.

Art in Public Places Fee
San Mateo Municipal Code Chapter 23.60 establishes a fee on developers in lieu of placing approved artwork at the development sites to balance the community’s physical growth and revitalization with its cultural and artistic resources.

The fee is applicable to commercial and multi-family residential projects exceeding three million dollars in building permit valuation, which is computed using the latest building valuation data as set forth by the International Conference of Building Officials (ICBO) unless, in the opinion of the Building Official, a different valuation measure should be used. As shown in the 2022-23 Comprehensive Fee Schedule, the fee is charged 1.19% of total building valuation.

The following table shows activities in 2022-23.

Art in Public Places Fee 2022-23
Beginning Balance $ 999,947
Developer Fees $ 7,082
Interest Income / (Expense) $ 23,461
Expenditures $ (7,082)
Ending Balance $ 1,023,408
The total ending balance as of the end of fiscal year was $1,023,408. The fund balance and continued collection of the Art in Public Places Fee will be utilized to fund the project(s) listed in Exhibit A.

Tree Replacement Fee
San Mateo Municipal Code Chapter 27.71 establishes a fee on all development requiring approval of a planning application, except for single-family dwelling design review applications, for the removal of existing trees on development sites. The fee is imposed if the trees to be removed are not made up with replacement trees on-site. As shown in the 2022- 23 Comprehensive Fee Schedule, the fee is charged $740 per landscape unit, which is a unit of measurement that indicates the value of each tree that is to be removed relative to the tree that is to be replaced.

Under San Mateo Municipal Code Chapter 13.35, the City may also impose a fee on any person or entity for removing trees that encroach on City streets. The fee is imposed if the tree to be removed is not replanted with a like tree satisfying City requirements. The fee is to be used by the City for plantings on public land. As shown in the 2022-23 Comprehensive Fee Schedule, the tree replacement cost is $740 per tree.

The following table shows activities in 2022-23.

Tree Replacement Fee 2022-23
Beginning Balance $ 1,178,640
Developer Fees $ 149,523
Interest Income / (Expense) $ 87
Expenditures $ (149,523)
Ending Balance $ 1,178,727
2022-23
Tree Replacement Fee Total Expended In-Lieu Fees Used % of Total Project Expenditures:
610008 Tree Planting - Parks Division $ 152,803 $ 149,523 98% Total Expenditures: $ 152,803 $ 149,523 98% The total ending balance as of the end of fiscal year was $1,178,727. The fund balance and continued collection of the Tree

258 of 268

CITY OF SAN MATEO
2 7
0 1
Replacement Fee will be utilized to fund the project(s) listed in Exhibit A.

Below Market Rate Housing Fee
The Below Market Rate Housing Fee, which became effective January 1, 2010 pursuant to City Council Resolution No. 121 (2008), is collected from developers in lieu of constructing affordable housing units onsite as required under the City’s Below Market Rate program. The fee applies to developments that contain fewer than 11 residential units, and to fractional unit requirements of less than .5 for developments that contain 11 or more units. The fee is charged as shown in the 2022-23 Comprehensive Fee Schedule:

A. Fractional required units for projects
consisting of 11 or more residential units

1. Rental 0.1 housing unit $30,788

0.2 housing unit $61,577

0.3 housing unit $92,365

0.4 housing unit $123,153

2. Owner 0.1 housing unit $27,354

0.2 housing unit $54,708

0.3 housing unit $82,062

0.4 housing unit $109,416
B. Requirement for projects less than 11 units

1. Rental 5 unit project $153,942
6 unit project $184,730
7 unit project $215,519
8 unit project $246,307
9 unit project $277,095
10 unit project $307,884

2. Owner 5 unit project $136,770
6 unit project $164,124
7 unit project $191,478
8 unit project $218,832
9 unit project $246,186
10 unit project $273,540
The following table shows activities in 2022-23.

Below Market Rate Housing Fee 2022-23
Beginning Balance $ 253,820
Developer Fees $ 461
Interest Income / (Expense) $ -
Expenditures $ -
Ending Balance $ 254,281
The total ending balance as of the end of the fiscal year was $254,281. A public improvement project is not currently identified in the five-year plan. The Below Market Rate Housing Fee will continue to be collected to build its fund balance, and potential housing related projects will be identified as the fund balance reaches to an appropriate level.

Park In-Lieu Fee
San Mateo Municipal Code Chapter 26.64 establishes a park in-lieu fee on subdivisions in residential planning application projects. Pursuant to the authority of the Subdivision Map Act, and in conformity with the parks and recreation element of the General Plan, the fee is imposed as a condition of final approval of a subdivision or parcel map for park and recreation

259 of 268

CITY OF SAN MATEO
2 7
0 1
facilities to serve the subdivision. The fee is charged as shown in the 2022-23 Comprehensive Fee Schedule:

Per residential unit type:

Single family $29,598 per unit
Multi-family 2-4 units $27,172 per unit
Multi-family 5+ units $20,476 per unit
Mobile homes $17,564 per unit
The following table shows activities in 2022-23.

Park In-Lieu Fee 2022-23
Beginning Balance $ 9,048,433
Developer Fees $ -
Interest Income / (Expense) $ -
Expenditures $ -
Ending Balance $ 9,048,433
No fees were collected or expended in 2022-23, and the total ending balance as of the end of the fiscal year was $9,048,433. The fund balance and continued collection of the Park In-Lieu Fee will be utilized to fund the project(s) listed in Exhibit A.

Linkage Fees
Child Care Development Fee
The Child Care Development Fee, which became effective on July 1, 2004 pursuant to City Council Resolution No. 34 (2004), is collected to mitigate the impact of commercial development on the need for child care facilities. The fee is charged as shown in the 2022-23 Comprehensive Fee Schedule:

Per Dwelling unit:

Single family $4,412.54
Multi-family $3,182.51
Per Sq. Ft.:

Retail $0.37
Office
Industrial
$0.63
$0.21
Hotel $0.13
The following table shows activities in 2022-23.

Child Care Development Fee 2022-23
Beginning Balance $ 2,156,369
Developer Fees $ 2,400
Interest Income / (Expense) $ 50,584
Expenditures $ (2,400)
Ending Balance $ 2,206,953

260 of 268

CITY OF SAN MATEO
2 7
0 1
2022-23
Child Care Development Fee Total Expended In-Lieu Fees Used % of Total Project Expenditures:
310600 Child Care Facilities $ 2,400 $ 2,400 100% Total Expenditures: $ 2,400 $ 2,400 100% The total ending balance as of the end of the fiscal year was $2,206,953. The fund balance and continued collection of the Child Care Development Fee will be utilized to fund the project(s) listed in Exhibit A.

Affordable Housing Commercial Linkage Fee
San Mateo Municipal Code Chapter 23.61 establishes an Affordable Housing Commercial Linkage Fee to mitigate the impact that developments have on the demand for affordable housing in the City. The fee is imposed on commercial projects over 5,000 sq. ft. and is charged as shown in the 2022-23 Comprehensive Fee Schedule:

Hotels Per square foot $12.46
Retail, restaurants, and services Per square foot $ 6.23 Office, research & development uses, and medical offices Per square foot $31.14 The fee does not apply to public use developments such as hospitals, nonprofit and government facilities, as well as churches, schools, and child care centers. Developers who enter written agreements to pay area standard wages to all construction workers on the project are entitled to a 25% reduction of the fee. Additionally, developers may provide construction of affordable housing units in lieu of the fee payment.

The following table shows activities in 2022-23.

Affordable Housing Commercial Linkage Fee 2022-23
Beginning Balance $ 3,159,518
Developer Fees $ -
Interest Income / (Expense) $ 91,269
Miscellaneous items $ (4,936)
Expenditures $ -
Ending Balance $ 3,245,851
The total ending balance as of the end of fiscal year was $3,245,851. The fund balance and continued collection of the Affordable Housing Commercial Linkage Fee will be utilized to fund the project(s) listed in Exhibit A.

BUDGET IMPACT:

There is no budget impact resulting from this report.

ENVIRONMENTAL DETERMINATION:

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

NOTICE PROVIDED
In accordance with Government Code Section 66006, all meeting noticing requirements were met. This information was made available to the public at least 15 days before the meeting.

261 of 268

CITY OF SAN MATEO
2 7
0 1

ATTACHMENTS
Att 1 - Proposed Resolution - Exhibit A: Public Improvement Project Expenditures Related to the Mitigation Fee Act and Quimby Act Five-Year Plan

STAFF CONTACT
Karley Toffey, Senior Management Analyst
[email protected]
(650) 522-7106
Renee Halcon, Acting Budget Manager
[email protected]
(650) 522-7127
Karen Huang, Finance Director
[email protected]
(650) 522-7102

262 of 268

9 4
8 1

CITY OF SAN MATEO
RESOLUTION NO. (2023)

ACCEPTING THE ANNUAL REPORT ON RECEIPT AND USE OF DEVELOPMENT IMPACT FEES, IN-LIEU FEES, AND LINKAGE FEES FOR THE YEAR ENDED JUNE 30, 2023 AND MAKING FINDINGS REGARDING

DEVELOPMENT IMPACT FEES AND IN-LIEU FEES COLLECTED BUT NOT EXPENDED WHEREAS, Government Code Sections 66000 et seq., commonly known as the Mitigation Fee Act, regulate the imposition, collections, expenditure, and reporting of development impact fees; and WHEREAS, Government Code Section 66001 requires that certain information be made available to the public regarding development impact fees on an annual basis; and WHEREAS, Government Code Section 66001 requires the City Council to make findings describing the continuing need for impact fees every five years specifying the intended use of any unexpended impact fees; and
WHEREAS, the City of San Mateo assesses four development impact fees – Wastewater Treatment Plant Phase II Expansion Fee, Transportation Improvement Fee, South Trunk Area Sewer Improvement Fee, and Park Impact Fee; and
WHEREAS, the City of San Mateo also collects in-lieu fees and linkage fees; and WHEREAS, even though a court has not yet ruled that linkage fees are subject to the state Mitigation Fee reporting requirements, the City of San Mateo adheres to those requirements for linkage fees in addition to development impact fees, and, based on recent caselaw, in-lieu fees; WHEREAS, the City Council of the City of San Mateo has read and considered the Development Impact Fees, In-Lieu Fees, and Linkage Fees Annual Report for the Year Ended June 30, 2023, and all accompanying attachments.

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

1. Acceptance of this report is an administrative activity that will not impact the environment and is therefore exempt from CEQA review in accordance with CEQA Guidelines section 15378(b)(5).

2. The City Council accepts the Development Impact Fees, In-Lieu Fees, and Linkage Fees Annual Report (Report) for the Fiscal Year Ended June 30, 2023, with attachments, and a copy is on file in the City Clerk’s Office.

3. Based on the Report and the schedule for expenditure of improvements attached as Exhibit A to this resolution, the City Council makes the following findings with regard to the development impact fees, in-lieu fees, and linkage fees collected but not expended in Fiscal Year 2022-2023 and listed below:

263 of 268

9 4
8 1
a. Transportation Improvement Fee
(1) This fee is used to build transportation infrastructure that is necessary to serve new development.
(2) There is a reasonable relationship between the fee and its purpose, because the amount of the fee is determined based on the anticipated amount of traffic that will be generated by new development.
(3) The sources and amounts of funding anticipated to complete the financing of the incomplete public improvements are shown in Exhibit A.
(4) The approximate dates on which the necessary funding is expected to be deposited are shown in Exhibit A.
b. Park Impact Fee
(1) This fee is used to develop parkland and parkland improvements that are necessary to serve new development.
(2) There is a reasonable relationship between the fee and its purpose, because the amount of the fee is determined based on the need for parkland and parkland improvements that will be generated by new development. (3) The sources and amounts of funding anticipated to complete the planned projects are shown in Exhibit A.
(4) The approximate dates on which the necessary funding is expected to be deposited are shown in Exhibit A.
c. Child Care Development Fee
(1) This fee will be used to support child care facilities that are necessary in order to serve new development.
(2) There is a reasonable relationship between the fee and its purpose, because the amount of the fee is determined based upon the anticipated need for child care that will be generated by new commercial development.
(3) The sources and amounts of funding expected to complete the anticipated projects are shown in Exhibit A.
(4) The approximate dates on which the necessary funding is expected to be deposited are shown in Exhibit A.
d. Affordable Housing Commercial Linkage Fee
(1) This fee will be used to support affordable housing that are necessary in order to serve new development.
(2) There is a reasonable relationship between the fee and its purpose, because the amount of the fee is determined based upon the anticipated need for affordable housing that will be generated by new commercial development.
(3) The sources and amounts of funding expected to complete the anticipated projects are shown in Exhibit A.
(4) The approximate dates on which the necessary funding is expected to be deposited are shown in Exhibit A.

264 of 268

9 4
8 1
e. Parking In-Lieu Fee
(1) This fee will be used to support for new development to fund for additional parking in downtown San Mateo.
(2) There is a reasonable relationship between the fee and its purpose, because the amount of the fee is determined based upon the anticipated need for additional parking that will be generated by new development.
(3) The sources and amounts of funding expected to complete the anticipated projects are shown in Exhibit A.
(4) The approximate dates on which the necessary funding is expected to be deposited are shown in Exhibit A.
f. Art in Public Places Fee
(1) This fee will be used to support placing approved artwork at the development sites to balance the community’s physical growth and revitalization with its cultural and artistic resources.
(2) There is a reasonable relationship between the fee and its purpose, because the amount of the fee is determined based upon the anticipated cost of future artwork related to future development.
(3) The sources and amounts of funding expected to complete the anticipated projects are shown in Exhibit A.
(4) The approximate dates on which the necessary funding is expected to be deposited are shown in Exhibit A.
g. Tree Replacement Fee
(1) This fee will be used for plantings on public land where applicants remove existing trees on development sites.
(2) There is a reasonable relationship between the fee and its purpose, because the amount of the fee is determined based upon the value of each tree that is to be removed relative to the tree that is to be replaced.
(3) The sources and amounts of funding expected to complete the anticipated projects are shown in Exhibit A.
(4) The approximate dates on which the necessary funding is expected to be deposited are shown in Exhibit A.
h. Below Market Rate Housing Fee
(1) This fee will be used to support affordable housing that is necessary in order to serve new development.
(2) There is a reasonable relationship between the fee and its purpose, because the amount of the fee is determined based upon the anticipated need for affordable housing

265 of 268

9 4
8 1
that will be generated by new development.
(3) The Below Market Rate Housing Fee will continue to be collected to build its fund balance, and potential housing related projects will be identified as the fund balance reaches to an appropriate level.
i. Park In-Lieu Fee
(1) This fee will be used for park and recreation facilities to serve the subdivision. (2) There is a reasonable relationship between the fee and its purpose, because the amount of the fee is determined based upon the anticipated need for park and recreation facilities that will be generated by new subdivisions. (3) The sources and amounts of funding expected to complete the anticipated projects are shown in Exhibit A.
(4) The approximate dates on which the necessary funding is expected to be deposited are shown in Exhibit A.

266 of 268

9 4
8 1
Exhibit A
City of San Mateo
Public Improvement Project Expenditures Related to the Mitigation Fee Act and Quimby Act Five-Year Plan
* Specific details on each of these projects can be found in the five-year capital improvement program section in the City’s 2023-24 Budget, which is adopted by City Council on June 20, 2023.

267 of 268

From: Patrice Olds
To: Martin McTaggart
Subject: FW: Council rotation
Date: Monday, December 4, 2023 8:40:50 AM

Patrice M. Olds, MMC
City Clerk
City of San Mateo
330 W. 20th Avenue
San Mateo, CA
94403-1388
[email protected]
www.cityofsanmateo.org
(650) 522-7042

From: Stacy Jimenez-Councilmember
Sent: Monday, December 4, 2023 8:07 AM
To: City Council (San Mateo) <[email protected]> Subject:

Council rotation

Dear Council,

I wish to first congratulate you all on a year well done. Despite a bumpy beginning, as a new council you have been able to come together, transcending differences in personality and ideology, and unite over your shared love of San Mateo. Thank you to outgoing Mayor Amourance Lee for your leadership.

As Foster City shares your meeting schedule, I will be unable to speak in person, but I nevertheless wanted to express my hope and expectation that you will continue to work together, and allow for a smooth and quick rotation of the positions tonight without drama or unnecessary histrionics, particularly because many eyes both within San Mateo and beyond will be watching.

It has been said that a true leader leads from any seat, and I hope that your city and the rest of San Mateo county will see that tonight. I look forward to continuing to watch this strong and capable council represent San Mateo well.

Best of luck to the new mayor and vice-mayor!

Regards,

Stacy Jimenez
Councilmember, Foster City

Get Outlook for iOS

268 of 268

San Mateo City CouncilDecember 4, 2023

San Mateo City Council
December 4, 2023