yard/loading area. The property also includes a 15-foot railroad easement along its western side, adjacent to a Union Pacific Railroad easement that runs north towards the 1100 Clarendon Street property.
Improvements to the Subject Property related to the previously permitted cannabis manufacturing use are incomplete, leaving the property in an unfinished condition which has impacted its marketability. The current property owner purchased the Subject Property in 2023 for $2,300,000 with plans to complete the improvements for its HVAC business, but abandoned the project and re-listed the property for sale for $2,520,000 in January 2024.
ANALYSIS
In order to meet the targeted goal of 5 acres of park land per 1,000 residents, the City must acquire a minimum of 110 acres of park land by 2028. The approximately 26.5 acres of park land located at 1100 Clarendon Street is a critical property for the City to meet these standards and fulfill the increasing demands for Parks and Recreation. The Parks and Recreation department currently has waiting lists for both youth indoor and outdoor sports. While the City continues to grow, the Parks and Recreation department continues to struggle to meet the increasing demands.
The Subject Property will greatly improve access and increase mobility to the future 26.5 acres of park land at 1100 Clarendon Street planned to be renovated and maintained by the City Parks and Recreation department.
The Sycamore Trail Overpass Phase II is nearly complete on the north side of the 1100 Clarendon Street property, and the acquisition of the Subject Property will provide future opportunities to integrate with existing trails and/or create new modes of travel through the 2286 Del Monte property.
Staff has negotiated a $2,400,000 purchase price for the Subject Property with a 10% down, of which $120,000 will be credited toward the purchase, and $120,000 is compensation for the extended due diligence period through December 31, 2024. The due diligence period will allow City staff to complete a thorough evaluation of the Subject Property and investigate the feasibility of renovating the 12,000 square foot building for indoor recreational needs or demolishing the building and designing additional parking and mobility connections for the
26.5 acres of park land. The extended period will also provide sufficient time to assemble the final funding package for acquisition of the Subject Property, should the City decide to close the transaction.
Environmental Considerations
The proposed property acquisitions are exempt from CEQA analysis under the Class 1 (Existing Facilities), Class 3 (New Construction or Conversion of Small Structures), and Class 32 (In-Fill Development) Categorical Exemptions, California Code of Regulations, Title 14, Division 6, Chapter 3, Article 19, Sections 15301, 15303, 15332. The project site is fully developed with surrounding uses being primarily industrial in nature. There is no on-site or nearby habitat value. The purpose of acquiring the property is for expanding future park access to 1100 Clarendon Street. Additional environmental analysis may be required in the future to support other site improvements/uses once those are developed and reasonably foreseeable. The City will file a Notice of Exemption (NOE) (see Attachment 4, NOE) for this effort if approved by the Council.
Commission Recommendation
Due to timing constraints, this item was not presented to the Parks, Recreation, and Intergenerational Services Commission.
Strategic Plan Integration
The proposed property acquisition supports the City Council’s Strategic Goal of “Parks and Open Spaces:
Provide diverse outdoor options for recreation and communing with nature at any age.” It also supports the 2019 Parks, Recreation and Open Space Master Plan Implementation by improving access and increasing mobility to the previously identified new park site, at 1100 Clarendon street.
Alternatives
The Council’s primary alternatives are summarized below:
1. Authorize the City Manager to execute the PSA for the Subject Property as negotiated by staff and described in this report;
2. Direct staff to renegotiate the terms of the PSA; or
3. Decline to approve the PSA.
Coordination and Review
This report was prepared in coordination with Capital Projects, Port, Community Development and Finance departments, the City Manager’s Office, and the City Attorney. 699
Property Acquisition 2286 Del Monte
June 5, 2024
Budget/Cost Impact
The proposed $250,000 of Park Impact Fee Funds is 10% down payment towards the purchase price of $2,400,000 plus $10,000 for due diligence costs. Staff will return to the Council prior to the end of the year with a budget appropriation request of approximately $2,300,000 to complete property purchase after due diligence and when final funding sources have been identified. The table below outlines the total anticipated property transaction costs.
Item Cost
Property Purchase Price $ 2,400,000
Down Payment and Extended due diligence period fee $ 240,000 Remainder of Purchase Price to be paid December 2024 $ 2,280,000 Due Diligence Costs $ 10,000
Closing Costs: $ 5,000
Total $ 2,535,000
ATTACHMENT(S)
1. Resolution 24-63
2. Purchase and Sale Agreement
3. NOE
4. Aerial Map
700
RESOLUTION 24-63
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST SACRAMENTO APPROVING A BUDGET APPROPRIATION OF $250,000 FROM PARK IMPROVEMENT
FUND FOR A DOWN PAYMENT AND DUE DILIGENCE COSTS TOWARD THE ACQUISITION OF 2286 DEL MONTE STREET FOR FUTURE PARK ACCESS WHEREAS, the 2019 2019 Parks, Recreation and Open Space Master Plan noted that the City has a deficiency of 72 acres of developed park land to meet national and state standards for developed park per 100 residents; and
WHEREAS, within the Master Plan, the 26.5 acre site at 1100 Clarendon Street, the site of the old River City High School is identified as a potential site of a new park; and WHEREAS, in 2018 a letter was signed by the Superintendent of the Washington Unified School District (WUSD) acknowledging its intent to support the development of a recreation and reuse plan for the site at 1100 Clarendon Street to allow the City to construct and maintain recreation and park space and add the property to the current Joint Use Facilities Agreement between WUSD and the City resulting in a new 26.5 acre park to be renovated and maintained by the City and open to the public; and
WHEREAS, the 1.12 acre site at 2286 Del Monte Street is adjacent to 1100 Clarendon Street and is currently listed for sale; and
WHEREAS, staff has negotiated a $2,400,000 purchase price for 2268 Del Monte Street with a 10% initial payment of $240,000, of which $120,000 will be credited toward the purchase, and $120,000 is compensation for the extended due diligence period through December 31, 2024, and will not be credited toward the final purchase price; and WHEREAS, the Park Improvement Fund has sufficient balance for the down payment of $240,000 plus $10,000 for due diligence costs; and
WHEREAS, staff will recommend a funding source for the remaining $2,280,000 of the purchase price at a future date before the expiration of the due diligence period on December 31, 2024; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of West Sacramento as follows:
1. The City Council hereby approves amendments to the Operations and Maintenance budget for FY 2023-2024 as listed below.
SOURCES
$250,000 211-0000-3110 Park Improvement Fund
$250,000 400-9900-4990/400-51279-4990 Tsfr In from PIF
$250,000 Total Sources
USES
$250,000 400-9900-5530/400-51279-5800 Park land Acquisitions $250,000 211-9530-5950 Tsfr out to CIP-51279
$250,000 Total Uses
*Note: Interfund Transfers are not included in the total to avoid duplication of costs. 701
PASSED AND ADOPTED this 5th day of June, 2024 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Martha Guerrero, Mayor
ATTEST:
Jennifer Cusmir, City Clerk
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STANDARD OFFER, AGREEMENT AND ESCROW INSTRUCTIONS
FOR PURCHASE OF REAL ESTATE
(Non-Residential)
Dated:
1. Buyer.
1.1 City of West Sacramento , ("Buyer") hereby offersto purchase the real property, hereinafter described, from the owner thereof ("Seller") (collectively, the "Parties" or individually, a "Party"), through an escrow ("Escrow") to close 30 or December 31, 2024 days after the waiver orsatisfaction of the Buyer's Contingencies, ("Expected Closing Date") to be held by Jenny Vega, Placer Title ("Escrow Holder") whose address is 301 University Ave, Ste 120, Sacramento, CA 95825 , Phone No. 916-446-7319 , Facsimile No. 916-973-3617 upon the terms and conditions set forth in this agreement ("Agreement"). Buyershall have the right to assign Buyer'srights hereunder, but any such assignment shall not relieve Buyer of Buyer's obligations herein unless Seller expressly releases Buyer.
1.2 The term "Date of Agreement" as used herein shall be the date when by execution and delivery (as defined in paragraph 20.2) of this document or a subsequent counteroffer thereto, Buyer and Seller have reached agreement in writing whereby Seller agrees to sell, and Buyer agrees to purchase, the Property upon terms accepted by both Parties.
2. Property.
2.1 The real property ("Property") that isthe subject of this offer consists of (insert a brief physical description) +/- 12,000sf Industrial building, zoned light Industrial (M-1) on +/- 1.12 acres islocated in the County of Yolo County , is commonly known as(street address, city,state, zip) 2286 Del Monte Drive, West Sacramento, CA and is legally described as: to be defined in Escrow (APN: 067-150-003 ).
2.2 If the legal description of the Property is not complete or isinaccurate, this Agreement shall not be invalid and the legal description shall be completed or corrected to meet the requirements of Placer Title ("Title Company"), which shall issue the title policy hereinafter described.
2.3 The Property includes, at no additional cost to Buyer, the permanent improvements thereon, including those items which pursuant to applicable law are a part of the property, as well as the following items, if any, owned by Seller and at present located on the Property: electrical distribution systems (power panel, bus ducting, conduits, disconnects, lighting fixtures); telephone distribution systems (lines, jacks and connections only);space heaters; heating, ventilating, air conditioning equipment ("HVAC"); air lines; fire sprinkler systems; security and fire detection systems; carpets; window coverings; wall coverings; and (collectively, the "Improvements").
2.4 The fire sprinkler monitor: is owned by Seller and included in the Purchase Price, is leased by Seller, and Buyer will need to negotiate a new lease with the fire monitoring company, ownership will be determined during Escrow, or there is no fire sprinkler monitor.
2.5 Except as provided in Paragraph 2.3, the Purchase Price does not include Seller's personal property, furniture and furnishings, and -- all of which shall be removed by Seller prior to Closing.
3. Purchase Price.
3.1 The purchase price ("Purchase Price") to be paid by Buyer to Seller for the Property shall be $2,400,000 , payable as follows:
(Strike any not applicable)
(a) Cash down payment, including the Deposit as defined in paragraph 4.3 (or if an all cash transaction, the Purchase Price):
$2,400,000
(b) Amount of "New Loan" as defined in paragraph 5.1, if any:
$0
(c) Buyershall take title to the Property subject to and/or assume the following existing deed(s) of trust ("Existing Deed(s) of Trust")securing the existing promissory note(s) ("Existing Note(s)"):
(i) An Existing Note ("First Note") with an unpaid principal balance as of the Closing of approximately:
$0
Said First Note is payable at N/A per month, including interest at the rate of N/A % per annum until paid (and/or the entire unpaid balance is due on N/A ). (ii) An Existing Note ("Second Note") with an unpaid principal balance as of the Closing of approximately:
N/A
Said Second Note is payable at N/A per month, including interest at the rate of N/A % per annum until paid (and/or the entire unpaid balance is due on N/A ). (d) Buyershall give Seller a deed of trust ("Purchase Money Deed of Trust") on the property, to secure the promissory note of Buyer to Seller described in paragraph 6 ("Purchase Money Note") in the amount of:
$0
Total Purchase Price: $2,400,000
3.2 If Buyer is taking title to the Property subject to, or assuming, an Existing Deed of Trust and such deed of trust permitsthe beneficiary to demand payment 703
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of fees including, but not limited to, points, processing fees, and appraisal fees as a condition to the transfer of the Property, Buyer agrees to pay such fees up to a maximum of 1.5% of the unpaid principal balance of the applicable Existing Note.
4. Deposits.
4.1 Buyer has delivered to Broker a check in the sum of , payable to Escrow Holder, to be delivered by Broker to Escrow Holder within 2 or business days after both Parties have executed this Agreement and the executed Agreement has been delivered to Escrow Holder, or within 2 or five (5) business days after both Parties have executed this Agreement and the executed Agreement has been delivered to Escrow Holder Buyershall deliver to Escrow Holder a check in the sum of $240,000.00. See Addendum Para XX . Ifsaid check is not received by Escrow Holder within said time period then Seller may elect to unilaterally terminate thistransaction by giving written notice ofsuch election to Escrow Holder whereupon neither Party shall have any further liability to the other under this Agreement. Should Buyer and Seller not enter into an agreement for purchase and sale, Buyer's check or funds shall, upon request by Buyer, be promptly returned to Buyer.
4.2 Additional deposits:
(a) Within 5 business days after the Date of Agreement, Buyer shall deposit with Escrow Holder the additional sum of to be applied to the Purchase Price at the Closing.
(b) Within 5 business days after the contingencies discussed in paragraph 9.1 (a) through (m) are approved or waived, Buyer shall deposit with Escrow Holder the additional sum of to be applied to the Purchase Price at the Closing. (c) If an Additional Deposit is not received by Escrow Holder within the time period provided then Seller may notify Buyer, Escrow Holder, and Brokers, in writing that, unless the Additional Deposit is received by Escrow Holder within 2 business days following said notice, the Escrow shall be deemed terminated without further notice or instructions.
4.3 Escrow Holdershall deposit the funds deposited with it by Buyer pursuant to paragraphs 4.1 and 4.2 (collectively the "Deposit"), in a State or Federally chartered bank in an interest bearing account whose term is appropriate and consistent with the timing requirements of this transaction. The interest therefrom shall accrue to the benefit of Buyer, who hereby acknowledges that there may be penalties or interest forfeitures if the applicable instrument isredeemed prior to its specified maturity. Buyer's Federal Tax Identification Number is . NOTE: Such interest bearing account cannot be opened until Buyer's Federal Tax Identification Number is provided.
4.4 Notwithstanding the foregoing, within 5 days after Escrow Holder receives the monies described in paragraph 4.1 above, Escrow Holdershall release $100 ofsaid moniesto Seller as and for independent consideration for Seller's' execution of this Agreement and the granting of the contingency period to Buyer as herein provided. Such independent consideration is non-refundable to Buyer but shall be credited to the Purchase Price in the event that the purchase of the Property is completed.
4.5 Upon waiver of all of Buyer's contingencies the Deposit shall become non-refundable but applicable to the Purchase Price except in the event of a Seller breach, or in the event that the Escrow is terminated pursuant to the provisions of Paragraph 9.1(n) (Destruction, Damage or Loss) or 9.1(o) (Material Change).
5. Financing Contingency. (Strike if not applicable)
5.1 This offer is contingent upon Buyer obtaining from an insurance company, financial institution or other lender, a commitment to lend to Buyer a sum equal to at least % of the Purchase Price, on terms acceptable to Buyer. Such loan ("New Loan") shall be secured by a first deed of trust or mortgage on the Property. If this Agreement provides for Seller to carry back junior financing, then Sellershall have the right to approve the terms of the New Loan. Sellershall have 7 days following receipt of the commitmentsetting forth the proposed terms of the New Loan to approve or disapprove ofsuch proposed terms. If Seller failsto notify Escrow Holder, in writing, of the disapproval within said 7 days itshall be conclusively presumed that Seller has approved the terms of the New Loan.
5.2 If Buyershall fail to notify its Broker, Escrow Holder and Seller, in writing within days following the Date of Agreement, that the New Loan has not been obtained, itshall be conclusively presumed that Buyer has either obtained said New Loan or has waived this New Loan contingency.
5.3 If Buyershall notify its Broker, Escrow Holder and Seller, in writing, within the time specified in paragraph 5.2 hereof, that Buyer has not obtained said New Loan, this Agreementshall be terminated, and Buyershall be entitled to the prompt return of the Deposit, plus any interest earned thereon, less only Escrow Holder and Title Company cancellation fees and costs, which Buyer shall pay.
6. Seller Financing. (Purchase Money Note). (Strike if not applicable)
6.1 If Seller approves Buyer's financials (see paragraph 6.5) the Purchase Money Note shall provide for interest on unpaid principal at the rate of % per annum, with principal and interest paid as follows: . The Purchase Money Note and Purchase Money Deed of Trust shall be on the current forms commonly used by Escrow Holder, and be junior and subordinate only to the Existing Note(s) and/or the New Loan expressly called for by this Agreement.
6.2 The Purchase Money Note and/or the Purchase Money Deed of Trust shall contain provisions regarding the following (see also paragraph 10.3 (b)):
(a) Prepayment. Principal may be prepaid in whole or in part at any time without penalty, at the option of the Buyer. (b) Late Charge. A late charge of 6% shall be payable with respect to any payment of principal, interest, or other charges, not made within 10 days after it is due.
(c) Due On Sale. In the event the Buyer sells or transfers title to the Property or any portion thereof, then the Seller may, at Seller's option, require the entire unpaid balance of said Note to be paid in full.
6.3 If the Purchase Money Deed of Trust is to be subordinate to other financing, Escrow Holdershall, at Buyer's expense prepare and record on Seller's behalf a request for notice of default and/or sale with regard to each mortgage or deed of trust to which it will be subordinate.
6.4 WARNING: CALIFORNIA LAW DOES NOT ALLOW DEFICIENCY JUDGEMENTS ON SELLER FINANCING. IF BUYER ULTIMATELY DEFAULTS ON THE LOAN, SELLER'S SOLE REMEDY IS TO FORECLOSE ON THE PROPERTY.
6.5 Seller's obligation to provide financing is contingent upon Seller'sreasonable approval of Buyer's financial condition. Buyer to provide a current financial statement and copies of its Federal tax returns for the last 3 yearsto Seller within 10 days following the Date of Agreement. Seller has 10 days following receipt of such documentation to satisfy itself with regard to Buyer's financial condition and to notify Escrow Holder asto whether or not Buyer's financial condition is acceptable. If Seller failsto notify Escrow Holder, in writing, of the disapproval of this contingency within said time period, itshall be conclusively presumed that Seller has approved Buyer's financial condition. If Seller is notsatisfied with Buyer's financial condition or if Buyer fails to deliver the required documentation then Seller may notify Escrow Holder in writing that Seller Financing will not be available, and Buyershall have the option, within 10 days of the receipt of such notice, to either terminate this transaction or to purchase the Property without Seller financing. If Buyer failsto notify Escrow Holder within said time period of its election to terminate this transaction then Buyershall be conclusively presumed to have elected to purchase the Property without Seller financing. If Buyer electsto terminate, Buyer's Deposit shall be refunded less Title Company and Escrow Holder cancellation fees and costs, all of which shall be Buyer's obligation. 704
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7. Real Estate Brokers.
7.1 Each Party acknowledges receiving a Disclosure Regarding Real Estate Agency Relationship, confirms and consentsto the following agency relationships in thistransaction with the following real estate broker(s) ("Brokers") and/or their agents(“Agent(s)”):
Seller's Brokerage Firm MBS Realty dba The Vollman Company License No. 02091276 is the broker of (check one):
the Seller; or both the Buyer and Seller (dual agent).
Seller's Agent Dan Mincher, CCIM License No. 01703483 is(check one): the Seller's Agent (salesperson or broker associate); or both the Seller's Agent and the Buyer's Agent (dual agent).
Buyer's Brokerage Firm None License No. isthe broker of (check one): the Buyer; or both the Buyer and Seller (dual agent).
Buyer's Agent License No. is (check one): the Buyer's Agent (salesperson or broker associate); or both the Buyer's Agent and the Seller's Agent (dual agent).
The Parties acknowledge that other than the Brokers and Agentslisted above, there are no other brokers or agents representing the Parties or due any fees and/or commissions under this Agreement. Buyershall use the services of Buyer's Broker exclusively in connection with any and all negotiations and offers with respect to the Property for a period of 1 year from the date inserted for reference purposes at the top of page 1.
7.2 Buyer and Seller each represent and warrant to the other that he/she/it has had no dealings with any person, firm, broker, agent or finder in connection with the negotiation of this Agreement and/or the consummation of the purchase and sale contemplated herein, other than the Brokers and Agents named in paragraph 7.1, and no broker, agent or other person, firm or entity, other than said Brokers and Agentsis/are entitled to any commission or finder's fee in connection with this transaction as the result of any dealings or acts ofsuch Party. Buyer and Seller do each hereby agree to indemnify, defend, protect and hold the other harmlessfrom and against any costs, expenses or liability for compensation, commission or charges which may be claimed by any broker, agent, finder or othersimilar party, other than said named Brokers and Agents by reason of any dealings or act of the indemnifying Party.
8. Escrow and Closing.
8.1 Upon acceptance hereof by Seller, this Agreement, including any counteroffers incorporated herein by the Parties, shall constitute not only the agreement of purchase and sale between Buyer and Seller, but also instructions to Escrow Holder for the consummation of the Agreement through the Escrow. Escrow Holder shall not prepare any further escrow instructions restating or amending the Agreement unless specifically so instructed by the Parties or a Broker herein. Subject to the reasonable approval of the Parties, Escrow Holder may, however, include itsstandard general escrow provisions. In the event that there is any conflict between the provisions of the Agreement and the provisions of any additional escrow instructions the provisions of the Agreementshall prevail as to the Parties and the Escrow Holder.
8.2 As soon as practical after the receipt of this Agreement and any relevant counteroffers, Escrow Holdershall ascertain the Date of Agreement as defined in paragraphs 1.2 and 20.2 and advise the Parties and Brokers, in writing, of the date ascertained.
8.3 Escrow Holder is hereby authorized and instructed to conduct the Escrow in accordance with this Agreement, applicable law and custom and practice of the community in which Escrow Holder is located, including any reporting requirements of the Internal Revenue Code. In the event of a conflict between the law of the state where the Property islocated and the law of the state where the Escrow Holder islocated, the law of the state where the Property is located shall prevail.
8.4 Subject to satisfaction of the contingencies herein described, Escrow Holder shall close this escrow (the "Closing") by recording a general warranty deed (a grant deed in California) and the other documentsrequired to be recorded, and by disbursing the funds and documents in accordance with this Agreement.
8.5 Buyer and Seller shall each pay one-half of the Escrow Holder's charges and Sellershall pay the usual recording fees and any required documentary transfer taxes. Sellershall pay the premium for a standard coverage owner's or joint protection policy of title insurance. (See also paragraph 11.)
8.6 Escrow Holdershall verify that all of Buyer's contingencies have been satisfied or waived prior to Closing. The matters contained in paragraphs 9.1 subparagraphs (b), (c), (d), (e), (g), (i), (n), and (o), 9.4, 12, 13, 14, 16, 18, 20, 21, 22, and 24 are, however, matters of agreement between the Parties only and are not instructions to Escrow Holder.
8.7 If thistransaction isterminated for non-satisfaction and non-waiver of a Buyer's Contingency, as defined in paragraph 9.2 or disapproval of any other mattersubject to Buyer's approval, then neither of the Partiesshall thereafter have any liability to the other under this Agreement, except to the extent of a breach of any affirmative covenant or warranty in this Agreement. In the event ofsuch termination, Buyer shall,subject to the provisions of paragraph 8.10, be promptly refunded all funds deposited by Buyer with Escrow Holder, less only the $100 provided for in paragraph 4.4 and the Title Company and Escrow Holder cancellation fees and costs, all of which shall be Buyer's obligation. If thistransaction isterminated as a result of Seller's breach of this Agreement then Sellershall pay the Title Company and Escrow Holder cancellation fees and costs.
8.8 The Closing shall occur on the Expected Closing Date, or assoon thereafter asthe Escrow isin condition for Closing; provided, however, that if the Closing does not occur by the Expected Closing Date and said Date is not extended by mutual instructions of the Parties, a Party not then in default under this Agreement may notify the other Party, Escrow Holder, and Brokers, in writing that, unless the Closing occurs within 5 business days following said notice, the Escrow shall be deemed terminated without further notice or instructions.
8.9 Except as otherwise provided herein, the termination of Escrow shall not relieve or release either Party from any obligation to pay Escrow Holder'sfees and costs or constitute a waiver, release or discharge of any breach or default that has occurred in the performance of the obligations, agreements, covenants or warranties contained therein.
8.10 If this Escrow is terminated for any reason other than Seller's breach or default, then as a condition to the return of Buyer's deposit, Buyershall within 5 days after written request deliver to Seller, at no charge, copies of allsurveys, engineering studies, soil reports, maps, master plans, feasibility studies and othersimilar items prepared by or for Buyer that pertain to the Property.
9. Contingenciesto Closing.
9.1 IF, BEFORE EXPIRATION OF THE APPLICABLE TIME, BUYER FAILS TO PROVIDE ESCROW HOLDER WRITTEN NOTICE OF BUYER'S DISAPPROVAL OF ANY OF
BUYER'S CONTINGENCIES OR ANY OTHER MATTER THAT IS SUBJECT TO BUYER'S APPROVAL IN THIS AGREEMENT, THEN BUYER SHALL BE CONCLUSIVELY DEEMED TO HAVE SATISFIED SUCH BUYER'S CONTINGENCIES AND/OR APPROVED OF SUCH OTHER MATTERS. If a number of days is completed in any of the optionalspaces in subparagraphs 9.1 (a) through (m), then such number shall apply and override the pre-printed number, even if the pre-printed number is notstricken. The Closing of this transaction is contingent upon the satisfaction or waiver of the following contingencies:
(a) Disclosure. Seller shall make to Buyer, through Escrow, all of the applicable disclosures required by law (See AIR CRE ("AIR")standard form entitled "Seller's Mandatory Disclosure Statement") and provide Buyer with a completed Property Information Sheet ("Property Information Sheet") concerning the Property, duly executed by or on behalf of Seller in the current form or equivalent to that published by the AIR within 10 or 10 days following the Date of Agreement. 705
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Buyer has 10 days from the receipt ofsaid disclosures to approve or disapprove the matters disclosed. (b) Physical Inspection. Buyer has 10 or Thru December 15, 2024 days following the receipt of the Property Information Sheet or the Date of Agreement, whichever islater, to satisfy itself with regard to the physical aspects and size of the Property. (c) Hazardous Substance Conditions Report. Buyer has 30 or Thru December 15, 2024 days following the receipt of the Property Information Sheet or the Date of Agreement, whichever is later, to satisfy itself with regard to the environmental aspects of the Property. Seller recommends that Buyer obtain a Hazardous Substance Conditions Report concerning the Property and relevant adjoining properties. Any such report shall be paid for by Buyer. A "Hazardous Substance" for purposes of this Agreement is defined as any substance whose nature and/or quantity of existence, use, manufacture, disposal or effect, render it subject to Federal, state or local regulation, investigation, remediation or removal as potentially injurious to public health or welfare. A "Hazardous Substance Condition" for purposes of this Agreement is defined asthe existence on, under or relevantly adjacent to the Property of a Hazardous Substance that would require remediation and/or removal under applicable Federal, state or local law. (d) Soil Inspection. Buyer has 30 or Thru December 15, 2024 days following the receipt of the Property Information Sheet or the Date of Agreement, whichever islater, to satisfy itself with regard to the condition of the soils on the Property. Seller recommends that Buyer obtain a soil test report.
Any such report shall be paid for by Buyer. Seller shall provide Buyer copies of any soilsreport that Seller may have within 10 days following the Date of Agreement. (e) Governmental Approvals. Buyer has 30 or Thru December 15, 2024 days following the Date of Agreement to satisfy itself with regard to approvals and permitsfrom governmental agencies or departments which have or may have jurisdiction over the Property and which Buyer deems necessary or desirable in connection with its intended use of the Property, including, but not limited to, permits and approvals required with respect to zoning, planning, building and safety, fire, police, handicapped and Americans with Disabilities Act requirements, transportation and environmental matters. (f) Conditions of Title. Escrow Holder shall cause a current commitment for title insurance ("Title Commitment") concerning the Property issued by the Title Company, as well aslegible copies of all documentsreferred to in the Title Commitment ("Underlying Documents"), and a scaled and dimensioned plot showing the location of any easementsto be delivered to Buyer within 10 or 21 days following the Date of Agreement. Buyer has 10 days from the receipt of the Title Commitment, the Underlying Documents and the plot plan to satisfy itself with regard to the condition of title. The disapproval by Buyer of any monetary encumbrance, which by the terms of this Agreement is not to remain against the Property after the Closing, shall not be considered a failure of this contingency, as Sellershall have the obligation, at Seller's expense, to satisfy and remove such disapproved monetary encumbrance at or before the Closing. (g) Survey. Buyer has 30 or 90 days following the receipt of the Title Commitment and Underlying Documents to satisfy itself with regard to any ALTA title supplement based upon a survey prepared to American Land Title Association ("ALTA")standards for an owner's policy by a licensed surveyor, showing the legal description and boundary lines of the Property, any easements of record, and any improvements, poles,structures and things located within 10 feet of either side of the Property boundary lines. Any such survey shall be prepared at Buyer's direction and expense. If Buyer has obtained a survey and approved the ALTA title supplement, Buyer may elect within the period allowed for Buyer's approval of a survey to have an ALTA extended coverage owner's form of title policy, in which event Buyershall pay any additional premium attributable thereto. (h) Existing Leases and Tenancy Statements. Seller shall within 10 or -- days following the Date of Agreement provide both Buyer and Escrow Holder with legible copies of all leases, subleases or rental arrangements (collectively, "Existing Leases") affecting the Property, and with a tenancy statement ("Estoppel Certificate") in the latest form or equivalent to that published by the AIR, executed by Seller and/or each tenant and subtenant of the Property. Sellershall use its best efforts to have each tenant complete and execute an Estoppel Certificate. If any tenant fails or refuses to provide an Estoppel Certificate then Seller shall complete and execute an Estoppel Certificate for that tenancy. Buyer has 10 days from the receipt ofsaid Existing Leases and Estoppel Certificates to satisfy itself with regard to the Existing Leases and any other tenancy issues. (i) Owner's Association. Seller shall within 10 or -- days following the Date of Agreement provide Buyer with a statement and transfer package from any owner's association servicing the Property. Such transfer package shall at a minimum include: copies of the association's bylaws, articles of incorporation, current budget and financial statement. Buyer has 10 days from the receipt ofsuch documentsto satisfy itself with regard to the association. (j) Other Agreements. Sellershall within 10 or days following the Date of Agreement provide Buyer with legible copies of all other agreements("Other Agreements") known to Seller that will affect the Property after Closing. Buyer has 10 days from the receipt ofsaid Other Agreementsto satisfy itself with regard to such Agreements.
(k) Financing. If paragraph 5 hereof dealing with a financing contingency has not been stricken, the satisfaction or waiver of such New Loan contingency. (l) Existing Notes. If paragraph 3.1(c) has not been stricken, Seller shall within 10 or days following the Date of Agreement provide Buyer with legible copies of the Existing Notes, Existing Deeds of Trust and related agreements (collectively, "Loan Documents") to which the Property will remain subject after the Closing. Escrow Holdershall promptly request from the holders of the Existing Notes a beneficiary statement ("Beneficiary Statement") confirming: (1) the amount of the unpaid principal balance, the current interest rate, and the date to which interest is paid, and (2) the nature and amount of any impounds held by the beneficiary in connection with such loan. Buyer has 10 or days following the receipt of the Loan Documents and Beneficiary Statements to satisfy itself with regard to such financing. Buyer's obligation to close is conditioned upon Buyer being able to purchase the Property without acceleration or change in the terms of any Existing Notes or charges to Buyer except as otherwise provided in this Agreement or approved by Buyer, provided, however, Buyershall pay the transfer fee referred to in paragraph 3.2 hereof. Likewise if Seller is to carry back a Purchase Money Note then Sellershall within 10 or days following the Date of Agreement provide Buyer with a copy of the proposed Purchase Money Note and Purchase Money Deed of Trust. Buyer has 10 or days following the receipt of such documents to satisfy itself with regard to the form and content thereof. (m) Personal Property. In the event that any personal property isincluded in the Purchase Price, Buyer has 10 or -- days following the Date of Agreement to satisfy itself with regard to the title condition of such personal property. Seller recommends that Buyer obtain a UCC-1 report. Any such report shall be paid for by Buyer. Sellershall provide Buyer copies of any liens or encumbrances affecting such personal property that it is aware of within 10 or -- days following the Date of Agreement.
(n) Destruction, Damage or Loss. Subsequent to the Date of Agreement and prior to Closing there shall not have occurred a destruction of, or damage or lossto, the Property or any portion thereof, from any cause whatsoever, which would cost more than $10,000.00 to repair or cure. If the cost of repair or cure is $10,000.00 or less, Seller shall repair or cure the loss prior to the Closing. Buyer shall have the option, within 10 days after receipt of written notice of a loss costing more than $10,000.00 to repair or cure, to either terminate this Agreement or to purchase the Property notwithstanding such loss, but without deduction or offset against the Purchase Price. If the cost to repair or cure is more than $10,000.00, and Buyer does not elect to terminate this Agreement, Buyer shall be entitled to any insurance proceeds applicable to such loss. Unless otherwise notified in writing, Escrow Holder shall assume no such destruction, damage or loss has occurred prior to Closing.
(o) Material Change. Buyer shall have 10 days following receipt of written notice of a Material Change within which to satisfy itself with regard to such change. "Material Change" shall mean a substantial adverse change in the use, occupancy, tenants, title, or condition of the Property that occurs after the date of this 706
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offer and prior to the Closing. Unless otherwise notified in writing, Escrow Holder shall assume that no Material Change has occurred prior to the Closing. (p) Seller Performance. The delivery of all documents and the due performance by Seller of each and every undertaking and agreement to be performed by Seller under this Agreement.
(q) Brokerage Fee. Payment at the Closing ofsuch brokerage fee as isspecified in this Agreement or later written instructions to Escrow Holder executed by Seller and Brokers ("Brokerage Fee"). It is agreed by the Parties and Escrow Holder that Brokers are a third party beneficiary of this Agreement insofar as the Brokerage Fee is concerned, and that no change shall be made with respect to the payment of the Brokerage Fee specified in this Agreement, without the written consent of Brokers.
9.2 The contingencies specified in subparagraphs 9.1(a) through (m) are for the benefit of, and may be waived by, Buyer, and are referred to collectively as "Buyer's Contingencies" and individually as a "Buyer's Contingency."
9.3 Buyer's timely and written disapproval or conditional approval of a Buyer's Contingency or any other matter that is subject to Buyer's approval in this Agreementshall constitute disapproval thereof ("Disapproved Item(s)"). Concurrent with notice of a Disapproved Item, Buyer may make a request to Seller regarding such Disapproved Item ("Buyer's Request"). If Buyer fails to make a timely and written Buyer's Request, then this Agreementshall terminate due to the non-satisfaction and non-waiver of a contingency. Seller may respond to a Buyer's Request within 10 days following Seller's receipt thereof ("Seller's Response").
Seller's acceptance of a Buyer's Request shall amend this Agreement accordingly. If Seller failsto provide a timely and written Seller's Response, then Seller's Response shall be deemed to be a rejection of Buyer's Request. Buyer may, within 10 days following the earlier of Buyer'sreceipt of a Seller's Response (which is not an acceptance of Buyer's Request) or the date of Seller's deemed rejection of a Buyer's Request ("Buyer's Reply Period"), reply to a Seller's Response ("Buyer's Reply") and elect to (i) terminate this Agreement due to the non-satisfaction and non-waiver of the applicable contingency, (ii) accept the Seller's Response in which event this Agreementshall be amended accordingly, or (iii) withdraw Buyer's Request and waive the Disapproved Item in which event Buyer shall accept the Property subject to the Disapproved Item. If Buyer fails to provide a timely and written Buyer's Reply, then Buyer shall be deemed to have elected to terminate this Agreement as of the end of the Buyer's Reply Period. The date Buyer accepts a Seller's Response or withdraws a Buyer's Request and waives a Disapproved Item shall be the date of Buyer's approval of the Disapproved Item. A Party shall provide to Escrow Holder copy of all notices of a Disapproved Item, Buyer's Request, Seller's Response and Buyer's Reply and Escrow Holdershall promptly provide copies thereof to the other Party. Unless the Partiesin writing agree otherwise, if the Expected Closing Date is a specific calendar date and a Buyer's Reply Period expires after such specific calendar date, then notwithstanding paragraph 1.1, the Expected Closing Date shall be extended to be 3 business days after the earlier of the date Buyer withdraws a Buyer's Request and waives the applicable Disapproved Item or Buyer accepts the applicable Seller's Response.
9.4 The Parties acknowledge that extensive local,state and Federal legislation establish broad liability upon owners and/or users of real property for the investigation and remediation of Hazardous Substances. The determination of the existence of a Hazardous Substance Condition and the evaluation of the impact of such a condition are highly technical and beyond the expertise of Brokers. The Parties acknowledge that they have been advised by Brokersto consult their own technical and legal experts with respect to the possible presence of Hazardous Substances on the Property or adjoining properties, and Buyer and Seller are not relying upon any investigation by orstatement of Brokers with respect thereto. The Parties hereby assume all responsibility for the impact ofsuch Hazardous Substances upon their respective interests herein.
10. Documents and Other Items Required at or Before Closing.
10.1 Five days prior to the Closing date Escrow Holder shall obtain an updated Title Commitment concerning the Property from the Title Company and provide copies thereof to each of the Parties.
10.2 Seller shall deliver to Escrow Holder in time for delivery to Buyer at the Closing:
(a) Grant or general warranty deed, duly executed and in recordable form, conveying fee title to the Property to Buyer. (b) If applicable, the Beneficiary Statements concerning Existing Note(s). (c) If applicable, the Existing Leases and Other Agreementstogether with duly executed assignmentsthereof by Seller and Buyer. The assignment of Existing Leases shall be on the most recent Assignment and Assumption of Lessor'sInterest in Lease form published by the AIR or its equivalent. (d) An affidavit executed by Seller to the effect that Seller is not a "foreign person" within the meaning of Internal Revenue Code Section 1445 or successorstatutes. If Seller does not provide such affidavit in form reasonably satisfactory to Buyer at least 3 business days prior to the Closing, Escrow Holdershall at the Closing deduct from Seller's proceeds and remit to the Internal Revenue Service such sum as isrequired by applicable Federal law with respect to purchases from foreign sellers.
(e) If the Property is located in California, an affidavit executed by Seller to the effect that Seller is not a ''nonresident" within the meaning of California Revenue and Tax Code Section 18662 or successorstatutes. If Seller does not provide such affidavit in form reasonably satisfactory to Buyer at least 3 business days prior to the Closing, Escrow Holdershall at the Closing deduct from Seller's proceeds and remit to the Franchise Tax Board such sum as isrequired by such statute. (f) If applicable, a bill ofsale, duly executed, conveying title to any included personal property to Buyer. (g) If the Seller is a corporation, a duly executed corporate resolution authorizing the execution of this Agreement and the sale of the Property.
10.3 Buyer shall deliver to Seller through Escrow:
(a) The cash portion of the Purchase Price and such additional sums as are required of Buyer under this Agreementshall be deposited by Buyer with Escrow Holder, by federal funds wire transfer, or any other method acceptable to Escrow Holder in immediately collectable funds, no later than 2:00 P.M. on the business day prior to the Expected Closing Date provided, however, that Buyershall not be required to deposit such moniesinto Escrow if at the time set for the deposit of such monies Seller isin default or hasindicated that it will not perform any of its obligations hereunder. Instead, in such circumstances in order to reserve itsrights to proceed Buyer need only provide Escrow with evidence establishing that the required monies were available. (b) If a Purchase Money Note and Purchase Money Deed of Trust are called for by this Agreement, the duly executed originals of those documents, the Purchase Money Deed of Trust being in recordable form, together with evidence of fire insurance on the improvements in the amount of the full replacement cost naming Seller as a mortgage loss payee, and a real estate tax service contract (at Buyer's expense), assuring Seller of notice of the status of payment of real property taxes during the life of the Purchase Money Note.
(c) The Assignment and Assumption of Lessor'sInterest in Lease form specified in paragraph 10.2(c) above, duly executed by Buyer. (d) Assumptions duly executed by Buyer of the obligations of Seller that accrue after Closing under any Other Agreements. (e) If applicable, a written assumption duly executed by Buyer of the loan documents with respect to Existing Notes. (f) If the Buyer is a corporation, a duly executed corporate resolution authorizing the execution of this Agreement and the purchase of the Property.
10.4 At Closing, Escrow Holder shall cause to be issued to Buyer a standard coverage (or ALTA extended, if elected pursuant to 9.1(g)) owner's form policy of title insurance effective as of the Closing, issued by the Title Company in the full amount of the Purchase Price, insuring title to the Property vested in Buyer, subject only to the exceptions approved by Buyer. In the event there is a Purchase Money Deed of Trust in this transaction, the policy of title insurance shall be a joint protection policy insuring both Buyer and Seller.
IMPORTANT: IN A PURCHASE OR EXCHANGE OF REAL PROPERTY, IT MAY BE ADVISABLE TO OBTAIN TITLE INSURANCE IN CONNECTION WITH THE CLOSE OF 707
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ESCROW SINCE THERE MAY BE PRIOR RECORDED LIENS AND ENCUMBRANCES WHICH AFFECT YOUR INTEREST IN THE PROPERTY BEING ACQUIRED. A NEW POLICY OF TITLE INSURANCE SHOULD BE OBTAINED IN ORDER TO ENSURE YOUR INTEREST IN THE PROPERTY THAT YOU ARE ACQUIRING.
11. Prorations and Adjustments.
11.1 Taxes. Applicable real property taxes and special assessment bonds shall be prorated through Escrow as of the date of the Closing, based upon the latest tax bill available. The Parties agree to prorate as of the Closing any taxes assessed against the Property by supplemental bill levied by reason of events occurring prior to the Closing. Payment of the prorated amount shall be made promptly in cash upon receipt of a copy of any supplemental bill.
11.2 Insurance. WARNING: Any insurance which Seller may have maintained will terminate on the Closing. Buyer is advised to obtain appropriate insurance to cover the Property.
11.3 Rentals, Interest and Expenses. Scheduled rentals, interest on Existing Notes, utilities, and operating expenses shall be prorated as of the date of Closing.
The Parties agree to promptly adjust between themselves outside of Escrow any rentsreceived after the Closing.
11.4 Security Deposit. Security Deposits held by Sellershall be given to Buyer as a credit to the cash required of Buyer at the Closing.
11.5 Post Closing Matters. Any item to be prorated that is not determined or determinable at the Closing shall be promptly adjusted by the Parties by appropriate cash payment outside of the Escrow when the amount due is determined.
11.6 Variations in Existing Note Balances. In the event that Buyer is purchasing the Property subject to an Existing Deed of Trust(s), and in the event that a Beneficiary Statement asto the applicable Existing Note(s) discloses that the unpaid principal balance ofsuch Existing Note(s) at the closing will be more or less than the amount set forth in paragraph 3.1(c) hereof ("Existing Note Variation"), then the Purchase Money Note(s) shall be reduced or increased by an amount equal to such Existing Note Variation. If there isto be no Purchase Money Note, the cash required at the Closing per paragraph 3.1(a)shall be reduced or increased by the amount of such Existing Note Variation.
11.7 Variations in New Loan Balance. In the event Buyer is obtaining a New Loan and the amount ultimately obtained exceeds the amount set forth in paragraph 5.1, then the amount of the Purchase Money Note, if any,shall be reduced by the amount of such excess.
11.8 Owner's Association Fees. Escrow Holder shall: (i) bring Seller's account with the association current and pay any delinquencies or transfer feesfrom Seller's proceeds, and (ii) pay any up front fees required by the association from Buyer'sfunds.
12. Representations and Warranties of Seller and Disclaimers.
12.1 Seller's warranties and representations shallsurvive the Closing and delivery of the deed for a period of 3 years, and any lawsuit or action based upon them must be commenced within such time period. Seller's warranties and representations are true, material and relied upon by Buyer and Brokersin all respects. Seller hereby makes the following warranties and representations to Buyer and Brokers:
(a) Authority of Seller. Seller is the owner of the Property and/or has the full right, power and authority to sell, convey and transfer the Property to Buyer as provided herein, and to perform Seller's obligations hereunder. (b) Maintenance During Escrow and Equipment Condition At Closing. Except as otherwise provided in paragraph 9.1(n) hereof, Sellershall maintain the Property until the Closing in its present condition, ordinary wear and tear excepted. (c) Hazardous Substances/Storage Tanks. Seller has no knowledge, except as otherwise disclosed to Buyer in writing, of the existence or prior existence on the Property of any Hazardous Substance, nor of the existence or prior existence of any above or below ground storage tank. (d) Compliance. Except as otherwise disclosed in writing, Seller has no knowledge of any aspect or condition of the Property which violates applicable laws, rules, regulations, codes or covenants, conditions or restrictions, or of improvements or alterations made to the Property without a permit where one was required, or of any unfulfilled order or directive of any applicable governmental agency or casualty insurance company requiring any investigation, remediation, repair, maintenance or improvement be performed on the Property. (e) Changes in Agreements. Prior to the Closing, Seller will not violate or modify any Existing Lease or Other Agreement, or create any new leases or other agreements affecting the Property, without Buyer's written approval, which approval will not be unreasonably withheld. (f) Possessory Rights. Seller has no knowledge that anyone will, at the Closing, have any right to possession of the Property, except as disclosed by this Agreement or otherwise in writing to Buyer.
(g) Mechanics' Liens. There are no unsatisfied mechanics' or materialmens' lien rights concerning the Property. (h) Actions, Suits or Proceedings. Seller has no knowledge of any actions, suits or proceedings pending or threatened before any commission, board, bureau, agency, arbitrator, court or tribunal that would affect the Property or the right to occupy or utilize same. (i) Notice of Changes. Seller will promptly notify Buyer and Brokers in writing of any Material Change (see paragraph 9.1(o)) affecting the Property that becomes known to Seller prior to the Closing.
(j) No Tenant Bankruptcy Proceedings. Seller has no notice or knowledge that any tenant of the Property isthe subject of a bankruptcy or insolvency proceeding.
(k) No Seller Bankruptcy Proceedings. Seller is not the subject of a bankruptcy, insolvency or probate proceeding. (l) Personal Property. Seller has no knowledge that anyone will, at the Closing, have any right to possession of any personal property included in the Purchase Price nor knowledge of any liens or encumbrances affecting such personal property, except as disclosed by this Agreement or otherwise in writing to Buyer.
12.2 Buyer hereby acknowledges that, except as otherwise stated in this Agreement, Buyer is purchasing the Property in its existing condition and will, by the time called for herein, make or have waived all inspections of the Property Buyer believes are necessary to protect its own interest in, and its contemplated use of, the Property. The Parties acknowledge that, except as otherwise stated in this Agreement, no representations, inducements, promises, agreements, assurances, oral or written, concerning the Property, or any aspect of the occupational safety and health laws, Hazardous Substance laws, or any other act, ordinance or law, have been made by either Party or Brokers, or relied upon by either Party hereto.
12.3 In the event that Buyer learns that a Seller representation or warranty might be untrue prior to the Closing, and Buyer electsto purchase the Property anyway then, and in that event, Buyer waives any right that it may have to bring an action or proceeding against Seller or Brokers regarding said representation or warranty.
12.4 Any environmental reports, soils reports, surveys, and othersimilar documents which were prepared by third party consultants and provided to Buyer by Seller or Seller'srepresentatives, have been delivered as an accommodation to Buyer and without any representation or warranty as to the sufficiency, accuracy, completeness, and/or validity of said documents, all of which Buyer relies on at its own risk. Seller believes said documents to be accurate, but Buyer is advised to retain appropriate consultants to review said documents and investigate the Property.
13. Possession.
Possession of the Property shall be given to Buyer at the Closing subject to the rights of tenants under Existing Leases. 708
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14. Buyer's Entry.
At any time during the Escrow period, Buyer, and its agents and representatives, shall have the right at reasonable times and subject to rights of tenants, to enter upon the Property for the purpose of making inspections and testsspecified in this Agreement. No destructive testing shall be conducted, however, without Seller's prior approval which shall not be unreasonably withheld. Following any such entry or work, unless otherwise directed in writing by Seller, Buyershall return the Property to the condition it was in prior to such entry or work, including the re-compaction or removal of any disrupted soil or material as Seller may reasonably direct. Allsuch inspections and tests and any other work conducted or materialsfurnished with respect to the Property by or for Buyershall be paid for by Buyer as and when due and Buyer shall indemnify, defend, protect and hold harmless Seller and the Property of and from any and all claims, liabilities, losses, expenses (including reasonable attorneys' fees), damages, including those for injury to person or property, arising out of or relating to any such work or materials or the acts or omissions of Buyer, its agents or employeesin connection therewith.
15. Further Documents and Assurances.
The Parties shall each, diligently and in good faith, undertake all actions and procedures reasonably required to place the Escrow in condition for Closing as and when required by this Agreement. The Parties agree to provide all further information, and to execute and deliver all further documents, reasonably required by Escrow Holder or the Title Company.
16. Attorneys' Fees.
If any Party or Broker brings an action or proceeding (including arbitration) involving the Property whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees and costs. Such fees may be awarded in the same suit or recovered in a separate suit, whether or notsuch action or proceeding is pursued to decision or judgment. The term "Prevailing Party" shall include, without limitation, a Party or Broker who substantially obtains or defeatsthe reliefsought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense. The attorneys' fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys' feesreasonably incurred.
17. Prior Agreements/Amendments.
17.1 This Agreementsupersedes any and all prior agreements between Seller and Buyer regarding the Property.
17.2 Amendments to this Agreement are effective only if made in writing and executed by Buyer and Seller.
18. Broker's Rights.
18.1 If thissale is not consummated due to the default of either the Buyer or Seller, the defaulting Party shall be liable to and shall pay to Brokers the Brokerage Fee that Brokers would have received had the sale been consummated. If Buyer isthe defaulting party, payment ofsaid Brokerage Fee is in addition to any obligation with respect to liquidated or other damages.
18.2 Upon the Closing, Brokers are authorized to publicize the facts of thistransaction.
19. Notices.
19.1 Whenever any Party, Escrow Holder or Brokers herein shall desire to give orserve any notice, demand, request, approval, disapproval or other communication, each such communication shall be in writing and shall be delivered personally, by messenger, or by mail, postage prepaid, to the address set forth in this agreement or by facsimile transmission, electronic signature, digital signature, or email.
19.2 Service of any such communication shall be deemed made on the date of actual receipt if personally delivered, or transmitted by facsimile transmission, electronic signature, digital signature, or email. Any such communication sent by regular mail shall be deemed given 48 hours after the same is mailed.
Communications sent by United States Express Mail or overnight courier that guarantee next day delivery shall be deemed delivered 24 hours after delivery of the same to the Postal Service or courier. If such communication isreceived on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day.
19.3 Any Party or Broker hereto may from time to time, by notice in writing, designate a different address to which, or a different person or additional persons to whom, all communications are thereafter to be made.
20. Duration of Offer.
20.1 If this offer is not accepted by Seller on or before 5:00 P.M. according to the time standard applicable to the city of West Sacramento, CA on the date of , itshall be deemed automatically revoked.
20.2 The acceptance of this offer, or of any subsequent counteroffer hereto, that creates an agreement between the Parties as described in paragraph 1.2, shall be deemed made upon delivery to the other Party or either Broker herein of a duly executed writing unconditionally accepting the last outstanding offer or counteroffer.
21. LIQUIDATED DAMAGES. (This Liquidated Damages paragraph is applicable only if initialed by both Parties).
THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, PRIOR TO SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED BY SELLER IF BUYER FAILS TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT. THEREFORE, IF, AFTER THE SATISFACTION OR WAIVER
OF ALL CONTINGENCIES PROVIDED FOR THE BUYER'S BENEFIT, BUYER BREACHES THIS AGREEMENT, SELLER SHALL BE ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF $120,000.00 . UPON PAYMENT OF SAID SUM TO SELLER, BUYER SHALL BE RELEASED FROM ANY FURTHER LIABILITY TO SELLER, AND ANY ESCROW CANCELLATION FEES AND TITLE COMPANY CHARGES SHALL BE PAID BY SELLER.
Buyer'sInitials Seller'sInitials
22. ARBITRATION OF DISPUTES. (This Arbitration of Disputes paragraph is applicable only if initialed by both Parties.)
22.1 ANY CONTROVERSY AS TO WHETHER SELLER IS ENTITLED TO LIQUIDATED DAMAGES AND/OR BUYER IS ENTITLED TO THE RETURN OF THE DEPOSIT SHALL BE DETERMINED BY BINDING ARBITRATION ADMINISTERED BY THE JUDICIAL ARBITRATION & MEDIATION SERVICES, INC. ("JAMS") IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES ("COMMERCIAL RULES"). ARBITRATION HEARINGS SHALL BE HELD IN THE COUNTY WHERE THE PROPERTY IS LOCATED.
SUCH CONTROVERSY SHALL BE ARBITRATED BY A SINGLE ARBITRATOR, APPOINTED UNDER THE COMMERCIAL RULES WHO HAS HAD AT LEAST 5 YEARS OF EXPERIENCE IN THE TYPE OF REAL ESTATE THAT IS THE SUBJECT OF THIS AGREEMENT. THE ARBITRATOR SHALL HEAR AND DETERMINE SAID CONTROVERSY IN
ACCORDANCE WITH APPLICABLE LAW OF THE JURISDICTION WHERE THE PROPERTY IS LOCATED, THE INTENTION OF THE PARTIES AS EXPRESSED IN THIS 709
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AGREEMENT AND ANY AMENDMENTS THERETO, AND UPON THE EVIDENCE PRODUCED AT AN ARBITRATION HEARING. PRE-ARBITRATION DISCOVERY SHALL BE PERMITTED IN ACCORDANCE WITH THE COMMERCIAL RULES OR STATE LAW APPLICABLE TO ARBITRATION PROCEEDINGS. THE ARBITRATOR SHALL RENDER AN AWARD WITHIN 30 DAYS AFTER THE CONCLUSION OF THE HEARING, WHICH MAY INCLUDE ATTORNEYS' FEES AND COSTS TO THE PREVAILING PARTY PER PARAGRAPH 16 HEREOF AND SHALL BE ACCOMPANIED BY A REASONED OPINION. THE FAILURE OR REFUSAL OF A PARTY TO PAY SUCH PARTY'S REQUIRED SHARE
OF THE DEPOSITS FOR ARBITRATOR COMPENSATION OR ADMINISTRATIVE CHARGES SHALL CONSTITUTE A WAIVER BY SUCH PARTY TO PRESENT EVIDENCE OR
CROSS-EXAMINE WITNESSES, BUT SUCH WAIVER SHALL NOT ALLOW FOR A DEFAULT JUDGMENT AGAINST THE NON-PAYING PARTY IN THE ABSENCE OF EVIDENCE AND LEGAL ARGUMENT AS THE ARBITRATOR MAY REQUIRE FOR MAKING AN AWARD. JUDGMENT MAY BE ENTERED ON THE AWARD IN ANY COURT OF COMPETENT JURISDICTION NOTWITHSTANDING THE FAILURE OF A PARTY DULY NOTIFIED OF THE ARBITRATION HEARING TO APPEAR THEREAT.
22.2 BUYER'S RESORT TO OR PARTICIPATION IN SUCH ARBITRATION PROCEEDINGS SHALL NOT BAR SUIT IN A COURT OF COMPETENT JURISDICTION BY THE
BUYER FOR DAMAGES AND/OR SPECIFIC PERFORMANCE UNLESS AND UNTIL THE ARBITRATION RESULTS IN AN AWARD TO THE SELLER OF LIQUIDATED DAMAGES, IN WHICH EVENT SUCH AWARD SHALL ACT AS A BAR AGAINST ANY ACTION BY BUYER FOR DAMAGES AND/OR SPECIFIC PERFORMANCE.
22.3 NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL ARBITRATION.
Buyer'sInitials Seller'sInitials
23. Miscellaneous.
23.1 Binding Effect. This Agreementshall be binding on the Parties without regard to whether or not paragraphs 21 and 22 are initialed by both of the Parties.
Paragraphs 21 and 22 are each incorporated into this Agreement only if initialed by both Parties at the time that the Agreement is executed. Signatures to this Agreement accomplished by means of electronic signature orsimilar technology shall be legal and binding.
23.2 Applicable Law. This Agreementshall be governed by, and paragraph 22.3 is amended to refer to, the laws of the state in which the Property islocated.
Any litigation or arbitration between the Parties hereto concerning this Agreement shall be initiated in the county in which the Property islocated.
23.3 Time of Essence. Time is of the essence of this Agreement.
23.4 Counterparts. This Agreement may be executed by Buyer and Seller in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Escrow Holder, after verifying that the counterparts are identical except for the signatures, is authorized and instructed to combine the signed signature pages on one of the counterparts, which shall then constitute the Agreement.
23.5 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT.
23.6 Conflict. Any conflict between the printed provisions of this Agreement and the typewritten or handwritten provisions shall be controlled by the typewritten or handwritten provisions. Seller and Buyer must initial any and all handwritten provisions.
23.7 1031 Exchange. Both Seller and Buyer agree to cooperate with each other in the event that either or both wish to participate in a 1031 exchange. Any party initiating an exchange shall bear all costs of such exchange. The cooperating Party shall not have any liability (special or otherwise) for damagesto the exchanging Party in the event that the sale is delayed and/or that the sale otherwise fails to qualify as a 1031 exchange.
23.8 Days. Unless otherwise specifically indicated to the contrary, the word "days" as used in this Agreementshall mean and refer to calendar days.
24. Disclosures Regarding the Nature of a Real Estate Agency Relationship.
24.1 The Parties and Brokers agree that their relationship(s) shall be governed by the principles set forth in the applicable sections of the California Civil Code, as summarized in paragraph 24.2.
24.2 When entering into a discussion with a real estate agent regarding a real estate transaction, a Buyer or Seller should from the outset understand what type of agency relationship or representation it has with the agent or agentsin the transaction. Buyer and Seller acknowledge being advised by the Brokersin this transaction, as follows:
(a) Seller's Agent. A Seller's agent under a listing agreement with the Seller acts as the agent for the Seller only. A Seller's agent orsubagent hasthe following affirmative obligations: (1) To the Seller: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Seller. (2) To the Buyer and the Seller: a. Diligent exercise of reasonable skills and care in performance of the agent's duties. b. A duty of honest and fair dealing and good faith. c. A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above.
(b) Buyer's Agent. A selling agent can, with a Buyer's consent, agree to act as agent for the Buyer only. In these situations, the agent is not the Seller's agent, even if by agreement the agent may receive compensation for servicesrendered, either in full or in part from the Seller. An agent acting only for a Buyer has the following affirmative obligations. (1) To the Buyer: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Buyer. (2) To the Buyer and the Seller: a. Diligent exercise of reasonable skills and care in performance of the agent's duties. b. A duty of honest and fair dealing and good faith. c. A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above.
(c) Agent Representing Both Seller and Buyer. A real estate agent, either acting directly or through one or more associate licensees, can legally be the agent of both the Seller and the Buyer in a transaction, but only with the knowledge and consent of both the Seller and the Buyer. (1) In a dual agency situation, the agent has the following affirmative obligations to both the Seller and the Buyer: a. A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either Seller or the Buyer. b. Other duties to the Seller and the Buyer asstated above in their respective sections (a) or (b) of this paragraph 24.2. (2) In representing both Seller and Buyer, the agent may not, without the express permission of the respective Party, disclose to the other Party confidential information, including, but 710
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not limited to, facts relating to either Buyer's or Seller's financial position, motivations, bargaining position, or other personal information that may impact price, including Seller's willingness to accept a price lessthan the listing price or Buyer's willingness to pay a price greater than the price offered. (3) The above duties of the agent in a real estate transaction do not relieve a Seller or Buyer from the responsibility to protect their own interests. Buyer and Sellershould carefully read all agreementsto assure that they adequately express their understanding of the transaction. A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional. Buyer hasthe duty to exercise reasonable care to protect Buyer, including asto those facts about the Property which are known to Buyer or within Buyer's diligent attention and observation. Both Seller and Buyershould strongly consider obtaining tax advice from a competent professional because the federal and state tax consequences of a transaction can be complex and subject to change. (d) Further Disclosures. Throughout thistransaction Buyer and Seller may receive more than one disclosure, depending upon the number of agents assisting in the transaction. Buyer and Sellershould each read its contents each time it is presented, considering the relationship between them and the real estate agent in thistransaction and that disclosure. Buyer and Seller each acknowledge receipt of a disclosure of the possibility of multiple representation by the Broker representing that principal. This disclosure may be part of a listing agreement, buyer representation agreement orseparate document. Buyer understands that Broker representing Buyer may also represent other potential buyers, who may consider, make offers on or ultimately acquire the Property. Seller understands that Broker representing Seller may also represent other sellers with competing properties that may be of interest to this Buyer. Brokers have no responsibility with respect to any default or breach hereof by either Party. The Parties agree that no lawsuit or other legal proceeding involving any breach of duty, error or omission relating to thistransaction may be brought against Broker more than one year after the Date of Agreement and that the liability (including court costs and attorneys' fees), of any Broker with respect to any breach of duty, error or omission relating to this Agreementshall not exceed the fee received by such Broker pursuant to this Agreement; provided, however, that the foregoing limitation on each Broker'sliability shall not be applicable to any gross negligence or willful misconduct ofsuch Broker.
24.3 Confidential Information. Buyer and Seller agree to identify to Brokers as "Confidential" any communication or information given Brokers that is considered by such Party to be confidential.
25. Construction of Agreement. In construing this Agreement, all headings and titles are for the convenience of the Parties only and shall not be considered a part of this Agreement. Whenever required by the context, the singular shall include the plural and vice versa. This Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, asif both Parties had prepared it.
26. Additional Provisions.
Additional provisions of this offer, if any, are as follows or are attached hereto by an addendum or addenda consisting of paragraphs -- through -- . (If there are no additional provisions write "NONE".)
26.1. Application of Deposit. As referenced in paragraph 4.2, the entire Deposit shall be applicable to the Purchase Price. One-half of the Deposit ($120,000) shall be immediately non-refundable and released to Seller upon receipt by and through Escrow.
The other one-half of the Deposit shall be subject to the terms of the Agreement.
26.2 Review Period: Notwithstanding anything to the contrary in the Agreement, Buyer shall have through December 15, 2024 (the “Review Period”) to conduct such inspections and investigations (including without limitation the satisfaction of all Contingencies to Closing set forth in Sections 9.1(a) through 9.1(g), inclusive) Buyer deems necessary in its sole discretion to determine the suitability of the Property. By the end of the Review Period, Buyer may give the Seller written notice that Buyer either approves or disapproves the condition and suitability of the Property. In the event that Buyer fails to timely provide such a notice, such failure shall be deemed to be a disapproval of the condition and suitability of the Property. In the event Buyer disapproves the condition and suitability of the Property, or is deemed to have disapproved the condition and suitability of the Property, this Agreement shall terminate automatically, and: (i) Seller and Buyer shall execute and deliver to Escrow Holder cancellation instructions and all other documents that are reasonably required by Escrow Holder and/or the Seller in order to cancel this Escrow and release any interest of Buyer in and to the Property; (ii) Escrow Holder shall release the remaining $120,000 of the Deposit to Buyer; (iii) Escrow Holder shall return all documents to the applicable party, and (iv) neither party shall have any rights or obligations arising out of this Agreement, except as otherwise set forth in the Agreement.
26.3. Condition of the Property. Seller shall regularly cut and maintain the overgrown vegetation on the Property and maintain security from vandalism and trespassers through the term of the Agreement.
26.4 Delivery of Property. Upon close of escrow, Seller shall deliver the Property vacant, free of all occupants or trespassers, and free of all furnishing and personal property.
26.5 Liens. Seller shall be responsible for any contractor liens related to previous work at the Property, whether such liens are filed before or after closing on the 711
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Property, and Seller shall indemnify Buyer for any such claims or liens.
26.6 City Council Approval: This offer shall be contingent on final approval from the City Council.
26.7 Brokerage Commission. Buyer shall not be responsible for any brokerage commissions for the brokers listed in Section 7 of the Agreement. All commissions under that section will be paid by Seller.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY AIR CRE OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS AGREEMENT OR THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS AGREEMENT.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PROPERTY. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY, THE INTEGRITY AND CONDITION OF ANY STRUCTURES AND OPERATING SYSTEMS, AND THE SUITABILITY OF THE PROPERTY FOR BUYER'S INTENDED USE.
WARNING: IF THE PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THIS AGREEMENT MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
NOTE:
1. THIS FORM IS NOT FOR USE IN CONNECTION WITH THE SALE OF RESIDENTIAL PROPERTY.
2. IF EITHER PARTY IS A CORPORATION, IT IS RECOMMENDED THAT THIS AGREEMENT BE SIGNED BY TWO CORPORATE OFFICERS.
The undersigned Buyer offers and agreesto buy the Property on the terms and conditions stated and acknowledges receipt of a copy hereof.
BROKER
None
Attn:
Title:
Address:
Phone:
Fax:
Email:
Federal ID No.:
Broker DRE License #:
Agent DRE License #:
Date:
BUYER
City of West Sacramento
By:
Name Printed:
Title:
Phone:
Fax:
Email:
By:
Name Printed:
Title:
Phone:
Fax:
Email:
Address:
Federal ID No.:
27. Acceptance.
27.1 Seller acceptsthe foregoing offer to purchase the Property and hereby agreesto sell the Property to Buyer on the terms and conditions therein specified.
27.2 In consideration of real estate brokerage service rendered by Brokers, Seller agreesto pay Brokers a real estate Brokerage Fee in a sum equal to an amount as defined by seperate agreement % of the Purchase Price to be divided between the Brokers as follows: Seller's Broker % and Buyer's Broker %. This Agreementshall serve as an irrevocable instruction to Escrow Holder to pay such Brokerage Fee to Brokers out of the proceeds accruing to the account of Seller at the Closing.
27.3 Seller acknowledges receipt of a copy hereof and authorizes Brokersto deliver a signed copy to Buyer.
NOTE: A PROPERTY INFORMATION SHEET IS REQUIRED TO BE DELIVERED TO BUYER BY SELLER UNDER THIS AGREEMENT.
Date:
712
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BROKER
MBS Realty dba The Vollman Company
Attn: Dan Mincher, CCIM
Title: Broker-Associate
Address: 11500 Sunrise Gold Circle Ste E,
Rancho Cordova, Ca 95742
Phone: 916-929-2000
Fax:
Email: [email protected]
[email protected]
Federal ID No.:
Broker DRE License #: 02091276
Agent's DRE License #: 01703483
SELLER
Kevin Comerford
By:
Name Printed: Kevin Comerford
Title:
Phone:
Fax:
Email:
By:
Name Printed:
Title:
Phone:
Fax:
Email:
Address:
Federal ID No.:
AIR CRE * https://www.aircre.com * 213-687-8777 * [email protected] NOTICE: No part of these works may be reproduced in any form without permission in writing. 713
Statutory Exemptions. State code number:
_______________________________________________
Print Form
Notice of Exemption Appendix E
To: Office of Planning and Research From: (Public Agency): ____________________________ P.O. Box 3044, Room 113 _______________________________________________ Sacramento, CA 95812-3044 County Clerk
(Address)
___________________________
___________________________
County of: __________________
Project Title: ____________________________________________________________________________ Project Applicant: ________________________________________________________________________ Project Location - Specific:
Project Location - City: ______________________ Project Location - County:
Description of Nature, Purpose and Beneficiaries of Project:
_____________________
Name of Public Agency Approving Project: _____________________________________________________ Name of Person or Agency Carrying Out Project: ________________________________________________ Exempt Status: (check one):
Ministerial (Sec. 21080(b)(1); 15268);
Declared Emergency (Sec. 21080(b)(3); 15269(a));
Emergency Project (Sec. 21080(b)(4); 15269(b)(c));
Reasons why project is exempt:
Lead Agency
Contact Person: ____________________________ Area Code/Telephone/Extension: _______________ If filed by applicant:
1. Attach certified document of exemption finding.
2. Has a Notice of Exemption been filed by the public agency approving the project? Yes No Signature: ____________________________ Date:
Signed by Lead Agency Signed by Applicant
Authority cited: Sections 21083 and 21110, Public Resources Code. Date Received for filing at OPR:
Reference: Sections 21108, 21152, and 21152.1, Public Resources Code. _______________
Categorical Exemption. State type and section number: ____________________________________ ______________________________________________
______________ Title: _______________________
714 Revised 2011
715
CITY COUNCIL AGENDA REPORT
MEETING DATE: June 5, 2024 ITEM # 14
SUBJECT:
CONSIDERATION OF FIRST READING OF ORDINANCE 24-6 AMENDING CHAPTER
12.08 OF THE CITY OF WEST SACRAMENTO MUNICIPAL CODE REGULATING
SPECIAL EVENTS IN THE CITY
INITIATED OR REQUESTED BY: REPORT COORDINATED OR PREPARED BY:
[ ] Council [ X ] Staff
[ ] Other
Erin Rivas, Business Manager
Parks and Recreation Department
ATTACHMENT [ X ] Yes [ ] No [ ] Information [ ] Direction [ X ] Action
OBJECTIVE
The objective of this report is to introduce Ordinance 24-6, amending Chapter 12.08 of the City of West Sacramento Municipal Code regulating Special Events within the city limits.
RECOMMENDED ACTION
Staff respectfully recommends that the City Council:
1) Waive the first reading and read by title and number only Ordinance 24-6, amending Chapter 12.08 of the City of West Sacramento Municipal Code related to Special Events within the city limits of the City of West Sacramento; and
2) Inform the audience that the second reading and adoption of Ordinance 24-6, is tentatively scheduled for June 26, 2024.
BACKGROUND
Chapter 12.08 of the City of West Sacramento Municipal Code relates to Special Events within the city limits of the City of West Sacramento. Chapter 12.08 was last updated in 2022 to reflect changes in the City Special Event Program and provide improved customer service to constituents. The updates were primarily administrative, but the updates included:
Updating the number of attendees associated with Special Event categories Increasing the size of tents, canopies or awnings triggering a Special Event Permit Defining an “Annual Permit”
Updating the application deadline for Category III Events Establishing that late applications may be subject to a late fee Updating the requirements for block parties
Adding language to address unpaid event costs
Including language reflecting the City Council-adopted Administrative Policy related to the waiver or reduction of City service fees
An interdisciplinary team of staff, including Parks, Police, Fire, Transportation, Parking, Building and Public Works department representatives meet monthly to review pending Special Event Permit applications. As part of these meetings, staff has seen a significant increase in applications for Special Events in parking lots within the Entertainment District. The purpose of the parking lots in the Entertainment District is to support vehicle parking for Special Event attendees within the Entertainment District. To address the safety and need to regulate the use of parking lots for Special Events, staff is proposing to update Chapter 12.08 of the Municipal Code.
ANALYSIS
Proposed updates to Chapter 12.08 of the City’s Municipal Code related to Special Events are included as part of Attachment 1 and summarized below:
12.08.050 - Permits for special events occurring at venues or facilities not intended for special events as its primary purpose.
– Permits will be considered for events when involving venues or facilities not constructed for the purpose of producing, hosting or staging special events or sporting events. These permits shall be subject to the same rules and regulations applicable to other special event permits. The amendment eliminates applicability of this subsection to only agricultural and residential zones, subject to the restrictions of the following subsections.
– No more than twelve special events per calendar year shall be permitted in agricultural or residential zones, when involving venues or facilities that were not designed or intended for such events as its 716
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June 5, 2024
primary purpose. The applicant shall submit a special event permit application for each event. – Permits will not be considered for events proposed on privately owned parcels principally used for parking, where parking is not incidental to another on-site activity and the parcel is not intended for special events as its primary purpose.
12.08.100 Grounds for denial.
– A permit request will be denied if the event occurs on privately owned parcel(s), or portion thereof, that is/are principally used for parking and the parking use on the parcel(s) is not incidental to another on-site commercial activity.
12.08.170 Waiver or reduction in city support service fees. – Section deleted as the policy identified in the section will be updated and modified within the Administrative Policy Manual and cross-reference in the municipal code is not necessary or required.
A draft ordinance, along with a redline version reflecting proposed updates to Chapter 12.08, are included as Attachments 1 and 2, respectively. These updates are primarily administrative, but further promote the facilitation of Special Events within the City. The City recognizes that Special Events provide cultural enrichment, promote economic vitality and enhance community identity and pride. Properly permitting Special Events helps to consider the public benefits of the event, along with public health and safety and reducing impacts to residents and businesses.
Environmental Considerations
This action is not a project that is subject to CEQA because it is not an activity that may cause either a direct or reasonably foreseeable indirect physical change in the environment. (Pub. Resources Code, § 21065; CEQA Guidelines §§ 15060(c), 15378(a).)
Commission Recommendation
On February 26, staff provided information on proposed updates to the Municipal Code related to Special Events to the Arts, Cultural, and Historical Preservation Commission. This information was provided as part of the Director’s Report. The Commission was generally supportive.
Strategic Plan Integration
The proposed updates to Chapter 12.08 of the Municipal Code supports the City Council’s 2019 Strategic Plan Goal, West Sacramento: A Preferred Place to Live, Work, and Play by providing a mechanism for facilitating a wide range of Special Events that highlight and support the diverse nature of the City. Additionally, this project supports the City’s 2019 Strategic Plan Management Agenda High Priority item: “Parks, Recreation and Open Space Master Plan Implementation.” Updating the municipal code in relation to Special Events aligns with Implementation Strategy #6, Recreation Programming, “Update the Special Events policy to ensure equitable utilization of City resources when supporting external events.” Alternatives
The Council’s primary alternatives are summarized below:
1. Propose additional modifications to the Municipal Code and direct staff to return at a future date with additional information and/or a modified Ordinance; or
2. Decline action at this time.
Coordination and Review
The proposed Municipal Code updates have been coordinated with the Community Development, Fire, Police, and Public Works departments, the City Manager’s Office, and the City Attorney.
Budget/Cost Impact
The proposed Municipal Code updates support a more efficient Special Event Permit application review and permitting process, reduced staff time, cost savings, and improved customer service.
ATTACHMENTS
1. Draft Ordinance 24-6
2. Redline Version of Proposed Updates to Chapter 12-08 of the City Municipal Code 717
Attachment 1
ORDINANCE 24-6
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF WEST SACRAMENTO
AMENDING CHAPTER 12.08 RELATED TO SPECIAL EVENTS
The City Council of the City of West Sacramento does ordain as follows:
Section 1. Purpose and Authority. The purpose of this Ordinance is to amend Chapter
12.08 of the West Sacramento Municipal Code. The Ordinance is enacted in accordance with the authority granted to cities by State law.
Section 2. Amendments to Chapter 12.08 of the West Sacramento Municipal Code.
A. Section 12.08.050 of Chapter 12.08 is hereby amended to read:
"12.08.050 Permits for special events occurring at venues or facilities not intended for special events as its primary purpose.
A. Permits will be considered for events involving venues or facilities not constructed for the purpose of producing, hosting or staging special events or sporting events. These permits shall be subject to the same rules and regulations applicable to other special event permits. Please see Section 17.30.220.
B. No more than twelve special events per calendar year shall be permitted in agricultural or residential zones when involving venues or facilities that were not designed or intended for such events as its primary purpose. The applicant shall submit a special event permit application for each event.
C. Permits will not be considered for events proposed on privately owned parcels principally used for parking, where parking is not incidental to another onsite activity and the parcel is not intended for special events as its primary purpose.
B. Section 12.08.100 of Chapter 12.08 is hereby amended to add new Subsection A(12), to read:
12. The event occurs on privately owned parcel(s), or portion thereof, that is/are principally used for parking and the parking use on the parcel(s) is not incidental to another on-site commercial activity.
C. Section 12.08.170 of Chapter 12.08 is hereby deleted in its entirety and the remaining sections of 12.08 are renumbered accordingly.
Section 3. Severability. If any provision of this chapter, or the application of any such provision to any person or circumstance shall be held invalid, the remainder of this chapter, to the extent it can be given effect, or the application of those provisions to persons or 718
Ordinance 24-6
circumstances other than those as to which it is held invalid, shall not be affected thereby, and to this end the provisions of this chapter are severable.
Section 4. Effective Date and Publication. This ordinance shall take effect 30 days after its adoption, and pursuant to Resolution 99-46 was published in summary format prior to adoption, and a summary will be published within 15 days after adoption in a paper of general circulation published and circulated within the City of West Sacramento.
PASSED AND ADOPTED by the City Council of the City of West Sacramento this 26th day of June, 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Martha Guerrero, Mayor
ATTEST: Approved as to form:
Jennifer Cusmir, City Clerk Jeffrey Mitchell, City Attorney
CODIFY X UNCODIFY
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Title 12 STREETS, SIDEWALKS AND PUBLIC PLACES
Chapter 12.08 SPECIAL EVENTS
12.08.000 Intent of chapter.
12.08.010 Special events.
12.08.020 Additional definitions.
12.08.030 Permits required—Exemptions.
12.08.040 Annual permits for events occurring at facilities designed for special events.
12.08.050 Permits for special events occurring at venues or facilities in agricultural or, residential zones, ,not intended for special events as its primary purpose.
12.08.060 Application procedure.
12.08.070 Contents of application form.
12.08.080 Action on application.
12.08.090 Permit conditions.
12.08.100 Grounds for denial.
12.08.110 Permit issuance.
12.08.120 Appeal procedure.
12.08.130 Indemnification agreement.
12.08.140 Insurance.
12.08.150 City support service fees.
12.08.160 Cleanup deposits for certain special events.
12.08.170 Waiver or reduction in city support service fees.
12.08.180 Duties of permittee.
12.08.190 Unlawful to sponsor, authorize or participate in an event without a permit or notice.
12.08.200 Unlawful to exceed scope of permit.
12.08.210 Revocation of permit.
12.08.220 Violation—Penalty.
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12.08.000 Intent of chapter.
The city is committed to facilitating a wide range of special events that highlight and support the diverse nature of the city. The city recognizes that special events provide cultural enrichment, promote economic vitality and enhance community identity and pride. The city recognizes that some events may result in temporary inconveniences or disturbances to residents and businesses in surrounding areas. Permit conditions for a special event will consider the benefits of special events, while reasonably balancing the city’s obligation to protect the public health, safety and peaceful enjoyment of residents and businesses. Permit conditions will also consider the area of the city where the event is proposed and the types of events and activities that were contemplated for that area. The city has designated two entertainment districts, the Waterfront Entertainment District and Downtown Entertainment District.
These districts have been planned as active and event-oriented areas of the city. It is not the intent of the city in adopting this chapter to regulate or judge the content of events, but instead to provide a workable and content-neutral framework for mitigating the impacts attributable to special events. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.010 Special events.
A. A special event is defined as any organized activity, formation, parade, procession, a block party or assembly, outside of normal business operations other than that which occurs as part of normal business activity, that is likely to meet any one or more of the following criteria:
1. Be attended by one hundred people or more;
2. May obstruct, delay or interfere with the normal flow of pedestrian or vehicular traffic on any public or private right-of-way or sidewalk;
3. Can reasonably be expected to be a hazard to the public peace, health, safety or general welfare of the public;
4. Can reasonably be expected to require the provision of city support services, such as police, fire, public works, or parks maintenance;
5. Includes the use of amplified sound, fireworks, pyrotechnics, or noisemakers, such as, but not limited to, horns, sirens, cannon or gun blast sounds or whistles;
6. Involves the use of temporary structures such as stages or other configurations that would require fire and/or building inspector approval;
7. Uses tents, canopies or awnings spanning four hundred square feet or larger;
8. Includes the distribution or sale of alcoholic beverages;
9. Involves the use of mobile vendors; or
10. Will be using armed security.
B. Special events will fall within one of the following categories:
1. Category I. Category I events generally involve fewer than five hundred people and are 721
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2. Category II. Category II events generally range between five hundred and two thousand nine hundred ninety-nine people and are anticipated to require a moderate need for city support services.
3. Category III. Category III events generally range between three thousand people and above and are anticipated to require a significant need for city support services.
C. The event category typically determines the level of city support services required to maintain minimal interference and inconvenience to the general public resulting from the event. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.020 Additional definitions.
“Annual permit” means an annual permit intended for a series (three or more) of similar special events sponsored by the same person or organization in the same twelve month period. “Applicant” means any person applying for a permit to conduct or sponsor an event governed by this chapter. Applicants must be eighteen years of age or older. “Block party” means an event involving the temporary closure of a public or private right-ofway. “City manager” means the city manager or the city manager’s designee. “City support services” means city personnel, contractors, and equipment. “Entertainment district” means an area of the city planned for vibrant and regular special events, the boundaries of which have been established by city council resolution. “First Amendment” means the First Amendment of the United States Constitution and the equivalent provisions in the California Constitution.
“Non-refundable permit application fee” means a non-refundable fee that is intended to cover the actual costs of processing and reviewing special event applications and administering the special events permit program.
“Organizer” means any person who is conducting, sponsoring or organizing a special event. “Participant” means a spectator, fan, supporter or any other person attending for the purpose of watching and/or participating in the special event.
“Permit” means a special event permit granted pursuant to this chapter. “Permit application fee” means the fee to be paid by the applicant at the time the application for a permit is filed with the special events administrator.
“Permittee” means any person or organization who has been issued a permit by the city. “Person” means any individual, firm, partnership, association, corporation, governmental entity, company or organization of any kind. 722
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https://library.qcode.us/lib/west_sacramento_ca/pub/municipal_code/item/title_12-chapter_12_08?view=all 4/14 “Right-of-way” means the dedicated portion of any street or road within the city. “SEA” means special events administrator, who is the city manager or designee. “Sound engineer” means the individual designated by the SEA to review and monitor preparation and/or implementation of the amplified sound plan for events using amplified sound. “Sound/music supervisor” means the individual designated by the applicant/permittee to monitor implementation of the amplified sound plan for events using amplified sound. “Specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, and written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.030 Permits required—Exemptions.
A. Except as otherwise provided herein, all special events occurring within the city shall be prohibited, unless a permit, properly issued by the SEA, has first been obtained.
B. Exemptions. A permit is not required for the following:
1. Funeral processions.
2. Governmental agencies acting within the scope of their authorized function.
3. Regularly scheduled religious services.
4. Category I events held on city property; in such cases organizers shall comply with Chapter
12.12 (Parks and Community Service Facilities) of this code.
5. Category I events held at a private facility that was constructed for the purpose of conducting special events of the type proposed to be held at the facility.
6. Non-commercial special events at private residences. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.040 Annual permits for events occurring at facilities designed for special events.
A. Annual permits will be considered for venues or facilities constructed for the purpose of producing, hosting or staging special or sporting events, and/or in the entertainment districts.
Except as otherwise provided in this section, these annual permits shall be subject to the same rules and regulations applicable to individual permits.
B. Applications for annual permits shall be submitted not less than ninety days before the first scheduled event of the calendar year. An annual permit application shall be accompanied by a nonrefundable permit application fee in the amount set by city council in the book of fees. This nonrefundable permit application fee shall be based on typical costs associated with processing and reviewing special event permit applications and administering the special events program and is not intended to generate revenue that exceeds actual staffing costs for administering the permit review and issuance process. 723
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https://library.qcode.us/lib/west_sacramento_ca/pub/municipal_code/item/title_12-chapter_12_08?view=all 5/14 C. For sporting events, the application shall also include a list of all anticipated activities, not related to game play, held before, during or after the event that would otherwise be deemed a special event. By way of example, and not limitation, such additional activities may include:
pyrotechnics displays, vehicular races/demonstrations or other hazardous activities, concerts, and animal exhibitions. The SEA can prohibit, restrict, or place conditions on such additional activities when the application is considered.
D. The permittee shall be responsible for the city’s costs in providing a level of public services necessary to ensure the health, safety and welfare of both the special event’s participants and the community. Upon approval of the annual permit, the SEA shall provide the applicant with a statement of the estimated cost of providing such services for each event. The estimated cost for an initial annual permit shall be based on the applicant’s projected attendance for its first year of operations. Thereafter, the estimated cost shall be based on the city’s costs actually incurred in the previous year, modified as necessary to account for changes in the size, scope, or numbers of anticipated events during the term of the permit.
E. The annual permit shall authorize the permittee to conduct only such event(s) as is described in the permit, and in accordance with the terms and conditions of the annual permit. It is unlawful for the permittee to willfully violate the terms and conditions of the annual permit, or for any event participant with knowledge thereof, to willfully violate the terms and conditions of the annual permit. Should the holder of an annual permit desire to conduct an activity that would otherwise be deemed a special event but is not authorized by the annual permit, the permittee shall be required to obtain an individual special event permit for the unauthorized activity.
F. The SEA shall issue the annual permit after the application has been approved, the applicant has agreed in writing to comply with all of the terms and conditions of the permit, and the requirements of this chapter respecting indemnification, insurance, public services and cleanup deposits have been fully satisfied. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.050 Permits for special events occurring at venues or facilities in agricultural or residential zones, not intended for special events as its primary purpose.
A. Permits will be considered for events in agricultural and residential zones, involving venues or facilities not constructed for the purpose of producing, hosting or staging special events or sporting events. These permits shall be subject to the same rules and regulations applicable to other special event permits. Please see Section 17.30.220.
B. No more than twelve special events per calendar year shall be permitted in agricultural or residential zones or when involving at venues or facilities that were not designed or intended for such events as its primary purpose. The applicant shall submit a special event permit application for each event. (Ord. 22- 18 § 2; Ord. 15-3 § 3)
B.C. Permits will not be considered for events proposed on privately owned parcels principally used for parking, where parking is not incidental to another on-site activity and the parcel is not intended for special events as its primary purpose.
12.08.060 Application procedure. 724
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https://library.qcode.us/lib/west_sacramento_ca/pub/municipal_code/item/title_12-chapter_12_08?view=all 6/14 A. Except as otherwise provided herein, all applications for permits shall be filed with the SEA according to the following;
1. Category I Events—thirty days prior to the event.
2. Category II Events—sixty days prior to the event.
3. Category III Events—one hundred eighty days prior to the event.
B. Notwithstanding the foregoing, the SEA shall consider an application that is filed after the filing deadline if:
1. The event is a noncommercial activity involving First Amendment expressive activity, and waiving the filing deadline is necessary to protect First Amendment rights;
2. The SEA determines that there is sufficient time to process and review the application and to obtain all city support services needed for the event. Good cause may be demonstrated by showing that the circumstances that gave rise to the permit application did not reasonably allow the participants to file an application within the time prescribed.
C. Applications received less than the required minimum number of days prior to the event as noted above will be subject to a late fee in an amount set by the city council in the city’s book of fees. (Ord. 22- 18 § 2; Ord. 15-3 § 3)
12.08.070 Contents of application form.
A. The permit application shall be accompanied by a nonrefundable special event permit application fee in an amount set by the city council in the city’s book of fees. This nonrefundable permit application fee shall be based on typical costs associated with processing and reviewing special event permit applications and administering the special events program and is not intended to generate revenue that exceeds actual staffing costs for administering the permit review and issuance process.
B. The application for a permit shall include the information set forth below:
1. Written proof of consent by the owners of the property where the special event is to be held;
2. The name, address, email address and telephone number of the applicant and an alternative contact person;
3. The location of the event, including its boundaries and site plan drawings;
4. If the proposed event is sponsored by an organization, the name, address and telephone number of the organization, and the authorized representative of the organization;
5. The nature and purpose of the event, including a list of all planned activities that are contemplated for the special event;
6. The name, address and telephone number of the person(s) who will be present and in charge of the event on the day of the special event; 725 9/11/23, 12:51 PM Chapter 12.08 SPECIAL EVENTS
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7. Date and estimated starting and ending times of the special event;
8. The estimated number of participants/attendees of the special event;
9. The type and estimated number of vehicles, animals and structures which will be used at the special event, and whether there will be water aid stations at the special event;
10. Whether any food or non-alcoholic beverages will be sold or consumed at the special event, and if so, proof of compliance with all applicable local, state and federal laws, rules and regulations, including proof that the applicant has obtained all necessary permits;
11. Whether any alcoholic beverages will be sold or consumed at the event and, if so, proof of compliance with all applicable laws, rules and regulations of the Alcohol Board of Control (ABC);
12. Parking site plan that includes provisions for meeting the guidelines set forth in the Americans with Disabilities Act;
13. The plan for clean-up after the special event, including any contracts to effectuate the clean-up;
14. Proof of liability and property insurance;
15. A description of the sanitary facilities to serve the participants of the special event;
16. If the event includes a parade or procession, the application shall include: (a) the planned route;
(b) the number and kind of vehicles, equipment and animals which will be involved; (c) a plan for the assembly and dispersal of the parade/procession; and (d) a statement as to whether the parade/procession will occupy all, or only a portion of, the streets proposed to be traversed;
17. A plan to provide notice to area businesses and/or residents that will likely be significantly impacted by noise, amplified sound, traffic, odor, dust or light from the event. The notice is to be delivered by the applicant to the impacted area, as determined by the SEA, no later than seventytwo hours prior to the event and will include pertinent information about the event. Within entertainment districts, a plan and notification of businesses and residents shall be required for any events expected to have a specific adverse impact on the residents and businesses; and
18. Any additional information that, under the particular circumstances of the special event application, the SEA finds reasonably necessary to determine whether to approve or conditionally approve a permit.
C. Amplified Sound Plan. The application shall include an amplified sound plan if the event is using amplified sound. This plan, which must be approved by the SEA prior to the event, as part of the special event permit shall include:
1. A list of the sound equipment that will be used at the event;
2. A site plan showing the placement and direction the speakers will be pointed. (Speakers will not be allowed outside of the permitted area);
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3. A description of the use of directional speaker systems with cutoff points;
4. The consideration of smaller systems in specific locations throughout the venue, rather than far ranging single amplification systems;
5. Times and duration of planned sound checks; and
6. The name of a sound/music supervisor who will remain on site throughout the event along with contact information and the procedure for contacting the sound/music supervisor if there are issues during the event.
Decibel and other sound check measures may be required at pre-determined locations throughout the event timeframe. The sound/music supervisor shall have the results of the decibel and other sound check measures available should he or she need to respond to an inquiry.
Depending on the magnitude of an event, the SEA may require that the applicant’s amplified sound plan be reviewed and monitored by a professional sound engineer hired by the city. The cost of the city’s sound engineer will be borne by the applicant. The city’s sound engineer may require modifications to the amplified sound plan that will maintain the integrity of the event while minimizing the impact on surrounding areas.
Amplified sound guidelines will be set forth as one of the conditions in the special event permit.
Additionally, the city’s sound engineer will monitor sound pursuant to the standards approved in the special event permit. The city sound engineer will perform at the applicant’s expense and will be in ongoing contact with the sound/music supervisor throughout the event to ensure compliance. (Ord. 22- 18 § 2; Ord. 15-3 § 3)
12.08.080 Action on application.
The SEA shall approve, conditionally approve or deny an application no fewer than ten calendar days prior to the scheduled event; or thirty calendar days after the receipt of a complete Category II application; or forty-five days after the receipt of a complete Class III application. Denials shall be based on one or more of the conditions or criteria specified in this chapter. In the event of special circumstances, as determined by the SEA, time limits for such a determination may be reasonably extended. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.090 Permit conditions.
The SEA may condition the issuance of a permit by imposing reasonable restrictions on the time, place and manner of conducting the event as are necessary or appropriate to protect persons and property and to control traffic, provided that such restrictions shall not unreasonably interfere with the right of free speech. Such conditions may include, but are not limited to, the following:
A. Alteration of the staffing for, or the date, time, route or location of the event; B. Conditions concerning accommodation of pedestrian or vehicular traffic, including restricting the event to only a portion of a street;
C. Requirements for provision of first aid and sanitary facilities, including the presence of 727
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E. Approval of any proposed private security forces;
F. Restrictions on the number and type of vehicles, animals or structures at the event; G. Compliance with animal protection ordinances and laws; H. Requirements for use of garbage containers, cleanup, and restoration of city property; I. Conditions to address noise in general, traffic, odor, dust or lighting; J. Restrictions on the time and use of fireworks, amplified sound and noise makers such as, but not limited to, horns, sirens, canon or gun blast sounds and whistles. With the exception of July 4th and New Year’s Eve into the new year, these sounds shall be restricted in entertainment districts to no later than ten p.m. Sunday through Thursday and midnight on Friday and Saturday.
In all other areas of the city these sounds shall be restricted to ten p.m. Sunday through Saturday; K. Permits for block parties may be conditioned on having approval of a majority of all residents living on streets affected by the block party;
L. Compliance with any relevant ordinance or law and obtaining any legally required permit or license;
M. Adequate proof of payment of the city support service fees; N. Adequate proof of compliance with the clean-up requirements; and O. Facilities designed for special events and operating under the terms of an existing use permit shall comply with the operating conditions and limitations set forth in the use permit, and in the event any of those terms conflict with the terms set forth in this chapter, the use permit shall control. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.100 Grounds for denial.
A. The SEA shall approve an application for a permit unless he or she determines, from a consideration of the application or other pertinent information, that:
1. Information contained in the application, or supplemental information requested from the applicant, is false in any material detail;
2. The application is incomplete, or the applicant failed to complete the application after having been notified of the additional information or documents required;
3. The applicant undertook a prior special event without a required permit or otherwise in violation of this chapter;
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4. The applicant failed to pay the additional costs of a prior special event charged pursuant to Section 12.08.150(C);
5. Another permit application has been received prior in time, or has already been approved, to hold another event at the time and place requested by the applicant or so close in time and/or place as to cause undue traffic congestion, or the police department is unable to meet the needs for police services for both events;
6. The concentration of persons, animals and vehicles at the site of the event, or the assembly and disbanding areas around the event, will either prevent proper police, fire or emergency medical services to areas contiguous to the event or exceed the capabilities of the police, fire or emergency medical services needed to adequately protect the participants from the conduct of others;
7. The size of the event will require diversion of so great a number of city police officers and other public employees to ensure that participants stay within the boundaries or route of the event, or to protect participants in the event, as to prevent normal protection to the rest of the city.
Nothing herein authorizes denial of a permit when additional peace officers or approved private security forces to supplement these peace officers would be available to the city, if requested by the city in advance of the event. Nothing herein authorizes denial of a permit because of the need to protect participants from the conduct of others, if reasonable conditions can be imposed to allow for adequate protection of event participants with the number of police officers available to police the event;
8. The location of the event will substantially interfere with any construction or maintenance work scheduled to take place upon or along the city streets or a previously granted encroachment permit;
9. The event will occur at a time when a school is in session at a route or location adjacent to the school or class thereof, and the noise created by the activities of the event would substantially disrupt the educational activities of the school or class thereof;
10. Given the nature of the special event, and/or the past history of the applicant, sponsors and/or participants, the SEA reasonably determines that event presents a substantial risk to the health, safety and welfare of the participants and/or local residents that cannot be adequately mitigated using available public resources; or
11. The applicant failed to comply with the California Fire Code during previous special events.
12. The event occurs on privately owned parcel(s), or portion thereof, that is/are principally used for parking and the parking use on the parcel(s) is not incidental to another on-site commercial activity.
B. When the grounds for denial specified in subsections (A)(4) through (A)(10) of this section can be corrected by altering either the staffing for, or the date, time, duration, route, or location of the event, the SEA shall, instead of denying the application, conditionally approve the application upon the applicant’s written acceptance of conditions for permit issuance. The conditions imposed pursuant to this section shall provide for only such modifications of the applicant’s proposed event 729 9/11/23, 12:51 PM Chapter 12.08 SPECIAL EVENTS
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C. If the application is denied, the SEA shall inform the applicant of the grounds for denial in writing. If the application is conditionally approved, the SEA shall inform the applicant of any permit conditions at the time the application is approved. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.110 Permit issuance.
A. The SEA shall issue the permit after the application has been approved, the applicant has agreed in writing to comply with all of the terms and conditions of the permit, and the requirements of this chapter have been fully satisfied.
B. The SEA shall not withhold the issuance of a permit if the primary purpose of the proposed event is First Amendment expressive activity and the applicant has requested a waiver pursuant to Section
12.08.170. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.120 Appeal procedure.
A. The applicant may appeal to the city council the denial or conditional approval of a permit, or the revocation of a permit pursuant to Section 12.08.210.
B. Appeals shall be conducted pursuant to Chapter 1.08 of this code.
C. Notwithstanding Chapter 1.08, all appeals shall be filed with the city clerk no later than five days following the notice of decision by the SEA. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.130 Indemnification agreement.
Prior to the issuance of a permit, the applicant shall execute an indemnification agreement. The agreement shall provide that the applicant shall defend, indemnify and hold harmless the city and its officers, officials, employees and volunteers from any liability to any persons or property resulting from any damage or injury occurring in connection with the permitted event, insofar as permitted by law. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.140 Insurance.
A. The permittee of a special event must possess or obtain public liability insurance to protect against liability for personal injury and property damage arising from the event. Coverage shall be a comprehensive general liability insurance policy. Minimum limits required:
1. Two million dollars for each occurrence combined single limit bodily injury and property damage.
2. If food or nonalcoholic beverages are to be sold or served at the event, the policy must also include an endorsement for products liability in an amount not less than five hundred thousand dollars. If alcoholic beverages are to be sold or served at the event, the policy must also include an endorsement for liquor liability in an amount not less than five hundred thousand dollars.
B. Insurance required pursuant to this section shall be maintained for the duration of the event and shall: 730
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1. Name the city, its officers, officials, employees and volunteers on the policy or by endorsement as additional insureds on the applicant’s policies of insurance.
2. Be a primary policy and not contributory or in excess of any policy of city.
3. Declare all deductibles on the policy. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.150 City support service fees.
A. Upon approval of an application for a permit, the SEA shall provide the applicant with a statement of the estimated cost of providing city support services. The cost of such services shall be solely borne by the applicant and shall be paid to the city at the time the event is permitted. A permit will not be issued unless fees have been paid.
B. The city support service fees will be established by the city council in the book of fees.
The amount of such fees shall be based on the city’s actual cost of providing the services necessary to ensure the safety of both the special event’s participants and the community.
C. If the actual cost of city support services for the event is less than the estimated cost, the applicant will promptly be refunded the difference by the city. If the actual cost for city support services is more than the estimated cost, the difference shall become due and payable to the city upon the permittee’s receipt of a statement of costs. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.160 Cleanup deposits for certain special events.
A. The applicant for an event in public facilities or on public property or rights-of-way involving the sale of food or beverages, erection of structures, horses or other large animals, or water aid stations, shall be required to provide a cleanup deposit prior to the issuance of a permit. As an alternative to such deposit, the applicant may provide a written contract for event cleanup.
B. The cleanup deposit shall be returned after the event, if the area used for the event has been cleaned and restored to the same condition as existed prior to the event.
C. If the public facilities, property, or rights-of-way used by the participants of the special event have not been fully cleaned or restored, the permittee shall be billed for the actual cost for cleanup and restoration, and the cleanup deposit, or a portion thereof, shall be applied toward payment of the bill. If the permittee disputes the bill, the permittee may appeal to the SEA within five days after receipt of the bill. Should there be any unexpected balance on deposit after completion of the work, this balance shall be refunded to the applicant/sponsor. Should the amount of the bill exceed the cleanup deposit, the difference shall become due and payable to the city upon the applicant’s receipt of the bill.
D. If an applicant has unpaid cleaning costs from a previous special event, all future special event permit applications will be denied until the debt has been remedied. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.170 Waiver or reduction in city support service fees.
The city council adopted Administrative Policy IX-A-6 which sets forth the policy factors and procedure for city council to consider when administering special event fee waivers to ensure they 731
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12.08.1780 Duties of permittee.
A. Each permittee shall comply with all terms and conditions of the permit.
B. Each permittee shall ensure that the person in charge of any special event shall carry the permit on his or her person or otherwise have the permit immediately available upon demand.
C. Each permittee shall ensure the area used for the permitted event is immediately cleaned and restored to the same condition as existed prior to the event.
D. Each permittee shall comply with all applicable local, state and federal laws, rules and regulations, including, but not limited to, this chapter, the California Fire Code. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.1890 Unlawful to sponsor, authorize or participate in an event without a permit or notice.
It is unlawful for any person to sponsor or conduct a special event requiring a permit unless a permit has been issued for the event. It is unlawful for any person to participate in a special event with the knowledge that the sponsor of the event has not been issued the required permit. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.19200 Unlawful to exceed scope of permit.
It is unlawful to exceed the scope of the permit for the event(s) described in the permit, and in accordance with the terms and conditions of the permit. It is unlawful for the permittee to willfully violate the terms and conditions of the permit, or for any event participant with knowledge thereof, to willfully violate the terms and conditions of the permit. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.2010 Revocation of permit.
A. The SEA may revoke a permit upon a finding that the event is not being conducted in compliance with any term, condition, restriction, or limitation of the permit, or if he or she finds that, as a result of changed circumstances, any one or more of the grounds for denial have been met. Notice of such action revoking a permit shall be delivered in writing to the permittee by personal service or by registered mail. Appeal to the city council from any such revocation may be taken in accordance with Section 12.08.120.
B. The SEA, chief of police or designee and/or fire captain or designee may revoke a permit and close a special event prior to the expiration of the permit in the event of the occurrence of a riot, major disorder or serious breach of the peace when, in their opinion, it is necessary to prevent injury to persons and/or to property. (Ord. 22-18 § 2; Ord. 15-3 § 3)
12.08.2120 Violation—Penalty.
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1.12. (Ord. 22-18 § 2; Ord. 15-3 § 3)
Contact:
City Clerk: 916-617-4500
Published by Quality Code Publishing, Seattle, WA. By using this site, you agree to the terms of use. 733
CITY COUNCIL AGENDA REPORT
MEETING DATE: June 5, 2024 ITEM #15
SUBJECT:
CONSIDERATION OF RESOLUTION 24-58 AUTHORIZING A CONTRACT WITH ACCELA, INC. AND A BUDGET APPROPRIATION OF $159,379 FOR PERMIT AND CODE
ENFORCEMENT CASE MANAGEMENT SOFTWARE
INITIATED OR REQUESTED BY: REPORT COORDINATED OR PREPARED BY:
[ ] Council [X] Staff
[ ] Other
Jon Robinson, Deputy City Manager
City Manager’s Office
ATTACHMENT [X] Yes [ ] No [ ] Information [ ] Direction [ X ] Action
OBJECTIVE
This report requests Council consideration of Resolution 24-58 (Attachment 1), which authorizes a contract with Accela, Inc. for permit management software, and approves an appropriation of $159,379 for FY 2023/24, after which future appropriations will be requested through the normal budget process.
RECOMMENDED ACTION
Staff respectfully recommends that the City Council:
1) Approve Resolution 24-58, which authorizes the City Manager or his designee to execute a contract with Accela, Inc. in substantially the form shown Exhibit A to the Resolution, authorizes the City Manager to take any actions necessary to effectuate the agreement, and appropriates $159,379 for the first year of this contract;
2) Authorize the City Manager, or his designee, to execute non-substantive changes or modifications to the contract with Accela, Inc., with approval from the City Attorney; and 3) Authorize the City Manager, or his designee, to execute amendments to extend the term of the contract, if necessary.
BACKGROUND
Each year, the Community Development and Fire Departments processes thousands of permit applications, varying in complexity from simple items such as water heater replacements, to complex developments like new residential subdivisions, industrial complexes or office towers. Each of these applications must be tracked from intake, to plan check, permit issuance, inspection, and permit finalization, which makes accurate recordkeeping the key to keeping these important construction projects moving. In addition, the Code Enforcement Division tracks and manages caseloads and requires a platform to track progress. In addition, the City’s permitting software has allowed the public to apply online for, and check the status of, a variety of permits.
Most modern permit operations today utilize some form of enterprise software to facilitate timely and accurate processing of applications. Since 2013, West Sacramento has used the Accela platform, which is one of the industry leaders in permitting software, and is utilized by a wide variety of jurisdictions, including the cities of Concord, Roseville, and Sacramento.
Historically, the City has used an “on-premises” version of Accela’s software, meaning that the software itself resides on the City’s servers. Like many companies, Accela is now seeking to eliminate the on-premises version of its software, and to operate exclusively from the cloud (i.e., its own centralized servers) going forward.
To that end, Accela has announced that after January 1, 2025, it will no longer support the on-premises version of its permitting software, which the City had been utilizing at a cost that was substantially lower than other similarly sized jurisdictions. Migration to a cloud-based product comes with a substantial price increase, which Accela attributes to an internal effort to standardize its rates across users.
This staff report is to request Council authority to enter into an updated contract with Accela, and approval of Resolution 24-58, which would appropriate the funds necessary for the transition and the first year of operating expenses associated with the change.
ANALYSIS
The City has budgeted $61,427 in FY 2023/24 for the on-premises version of Accela. The proposal summarized in this report includes a cost increase, but staff has negotiated a ramp-up period to reduce the impact of this change, and further reduced the cost the City by proposing a longer term. 734
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Under the structure that staff has negotiated with Accela, there will be a one-time $100,000 migration fee to compensate Accela for the work necessary to transition the City from the on-premises to the cloud version of its software. In years 2 and 3 of the contract, the City’s cost will ramp up 25.5 percent in order to reach the price structure that Accela is imposing across its client base. After that point, the cost of the software will increase at 5 percent annually, a typical rate for software contracts. The current appropriation request is summarized in the table below.
Use of Funds FY 23/24 Total
Migration Fee (1x) $100,000
New Annual Fee $117,306
Pro-rated Amount (to June 30, 2024) $3,500
Less Unspent Budgeted Amount ($61,427)
This Request $159,379
As shown above, the FY 2023/24 cost is partially offset by the existing amount budgeted for the on-premises version of Accela during this period. It is also important to note that this appropriation request covers costs through FY 2024/25. Funding for subsequent years of the proposed seven-year contract would be budgeted as part of the City’s normal biennial budget process.
While the cost increase associated with the proposed cloud migration is unfortunate, the City’s alternatives are very limited. Switching vendors would necessitate years of work, cost hundreds of thousands of dollars, and would likely not materially lower the City’s expense after onboarding costs were considered. While newer, smaller software companies might offer products that are nominally less expensive, staff’s assessment is that the risk associated with choosing a less established partner for this vital function substantially outweighs the potential reward. Staff will monitor Accela’s performance throughout the term of the proposed contract and will reconsider alternatives with the goal of providing a robust platform for permit and case management tracking while also providing a user-friendly public-facing portal.
Environmental Considerations
This action is not a project that is subject to CEQA because it is not an activity that may cause either a direct or reasonably foreseeable indirect physical change in the environment. (Pub. Resources Code, § 21065; CEQA Guidelines §§ 15060(c), 15378(a).)
Commission Recommendation
N/A
Strategic Plan Integration
N/A
Alternatives
The Council’s primary alternatives are summarized below:
1. Approve Resolution 24-58 , which authorizes the City Manager or his designee to execute a contract with Accela, Inc. in substantially the form shown in Attachment 1 to this report, and appropriates $159,379 for the first year of this contract, and authorize the City Manager or his designee to take any actions necessary to effectuate the agreement referenced in this report, including non-substantive amendments or modifications to the agreement, and/or execution of other documents.
2. Direct staff to continue using the existing on-premises version of Accela after it is no longer supported by Accela.
3. Direct staff to find a new software vendor for building permit tracking.
Alternative 1 is staff’s recommended action. Staff does not recommend Alternative 2, because without ongoing support, the on-premises Accela software would be subject to security threats and potential catastrophic failure that would be beyond the City’s means to correct. Staff does not recommend Alternative 3, because the cost 735
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and function of similar established software platforms is currently very similar to Accela, so the time and cost to identify, procure, and implement a new software platform is not justified.
Coordination and Review
This report was prepared by City Manager’s Office, in collaboration with the Community Development Department.
Budget/Cost Impact
The recommended action will result in an expenditure of $217,306 in FY 2023/24, which includes a one-time migration cost of $100,000. The appropriation requested in this staff report is $159,379, because staff is proposing to redirect $61,427 budgeted for the on-premises version of Accela to the cloud version. There are sufficient funds available in the General Fund and the Community Development Fund to cover the additional one-time and ongoing appropriations. Future costs of the proposed seven-year agreement would be appropriated via the mid-term and biennial budget processes.
ATTACHMENT
1. Resolution 24-58
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Attachment 1
RESOLUTION 24-58
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST SACRAMENTO AUTHORIZING A CONTRACT WITH ACCELA, INC. AND APPROVING AN APPROPRIATION OF $159,379 FOR PERMIT TRACKING SOFTWARE
WHEREAS, maintaining an efficient and orderly construction permitting process is integral to the economic health of the City of West Sacramento; and WHEREAS, the City has spent years adopting the on-premises version of the Accela platform to manage building permits and related processes; and WHEREAS, Accela has informed the City that it will stop supporting the on-premises version of its software in 2025, requiring the City to migrate to the cloud-based version of the software or find an alternative vendor; and
WHEREAS, in order to maintain continuity and realize the value of the City’s investment in Accela to date, the City wishes to migrate to the cloud-based version of this software.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of West Sacramento as follows:
1. The City Council hereby authorizes the City Manager or his designee to execute a contract in substantially the form shown in Exhibit A and to take any actions necessary to effectuate that agreement, including non-substantive amendments or modifications to the agreement, and the execution of other documents.
2. The City Council hereby approves amendments to the Operations and Maintenance budget for fiscal year 2023/24 as listed below:
SOURCES
$155,713 650-0000-3110 Community Development Fund Balance $ 3,666 101-0000-3110 General Fund Available Balance
$159,379 TOTAL SOURCES
USES
$ 55,713 650-9310-5257 Community Development Software Maint. $100,000 650-9310-5261 Community Development Prof Svc
$ 3,666 101-9150-5257 General Fund – Fire Admin– Software Maint. $159,379 TOTAL USES
3. The City Council hereby finds that the facts set forth in the recitals to this Resolution are true and correct and establish the factual basis for the City Council’s adoption of this Resolution.
4. This Resolution shall take effect immediately upon its adoption. 737
Resolution 24-58 Authorizing a Contract with Accela, Inc. and Related Appropriation
PASSED AND ADOPTED by the West Sacramento City Council this 5th day of June 2024, by the following vote:
AYES:
NOES:
ABSENT:
Martha Guerrero, Mayor
ATTEST:
Jennifer Cusmir, City Clerk
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ACCELA SUBSCRIPTION SERVICES AGREEMENT
This Accela Subscription Services Agreement (this “Agreement”) is entered into as of the date of the applicable Order, as defined below, that incorporates these terms (the “Effective Date”) by and between Accela, Inc. and the entity identified in such Order (“Customer”).
1. DEFINITIONS.
1.1 "Accela System" means the information technology infrastructure used by or on behalf of Accela in performing the Subscriptions Services, including all computers, software (including but not limited to Accela Software), hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Accela or its third party suppliers.
1.2 "Aggregate Data" means data and information related to Customer's use of the Subscription Services, including anonymized analysis of all data processed in the Subscription Services, that is used by Accela in an aggregate and anonymized manner, including compiling statistical and performance information related to the provision and operation of the Services.
1.3 "Authorized User" means one named employee, contractor or agent of Customer (each identified by a unique email address) for whom Customer has purchased a subscription to the Subscription Services and who is authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement.
1.4 “Consulting Services” means packaged or time and materials consulting, review, training or other services (but excluding Subscription and Support Services) delivered by Accela to Customer pursuant an Order. The current Consulting Services Policy is available at www.accela.com/terms/.
1.5 “Customer Data” means the content, materials, and data that Customer, Authorized Users, and External Users enter into the Subscription Services. Customer Data does not include any component of the Subscription Services, material provided by or on behalf of Accela, or Aggregate Data.
1.6 “Documentation” means the then-current technical and functional user documentation in any form made generally available by Accela for the Subscription Services.
1.7 “External Users” means third party users of the Subscription Services that access the public-facing interfaces of the Subscription Services to submit queries and requests to facilitate communications between such third party and Customer.
1.8 “Intellectual Property Rights” means any patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, know-how, and any other intellectual property rights, in all cases whether or not registered or registrable and recognized in any country or jurisdiction in the world.
1.9 “Order” means an Accela order form or other mutually acceptable document fully executed between Customer and Accela that incorporates this Agreement. 739
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1.10 “Service Availability Policy” means the Service Availability and Security Policy located at www.accela.com/terms/.
1.11 “Subscription Services” means the civic administration services, comprised of the Accela System, Software, and Support Services, to which Customer may license access to in accordance with the terms herein.
1.12 “Software” means any licensed software (including client software for Authorized Users’ devices) and Documentation that Accela uses or makes available as part of the Subscription Services.
1.13 “Support Services” means those technical and help services provided by Accela in accordance with the Software Support Services Policies (SaaS) located at www.accela.com/terms/.
1.14 “Subscription Period” means the duration of Customer’s authorized use of the Subscription Services as designated in the Order.
2. USAGE AND ACCESS RIGHTS.
2.1 Right to Access. Subject to the terms and conditions of this Agreement, Accela hereby grants to Customer a limited, non-exclusive, non-transferable right and license during the Subscription Period, to permit: (i) Authorized Users to access and use the internal and administrative interfaces of the Subscription Services in accordance with the Documentation to support Customer’s internal business purposes and (ii) its External Users the ability to access and use the publicly available interfaces to submit requests and information to Customer. Each instance of the Subscription Service shall be provisioned with the amount of storage set forth in the Order and additional storage may be purchased at the then-current rates.
2.2 Support Services & Service Availability. During the Subscription Period, Accela shall provide to Customer the Support Services specified in the Order and shall make all commercially reasonable efforts to attain the service levels specified in the applicable policies. The remedies set forth in the Support Services and Service Availability Policy are the sole and exclusive remedies for any breach of the service levels. Customer grants Accela a royalty-free, worldwide, transferable, sub- licensable, irrevocable, perpetual license to use or incorporate into its software or services any suggestions or other feedback provided by Customer or Authorized Users relating to the operation or features of the Subscription Services.
2.3 Purchasing Consulting Services. Customer may purchase Consulting Services from Accela by executing an Order for such services. All prices are exclusive of travel and expenses, which will be invoiced at actual cost, without markup, and will comply with the Consulting Services Policy located at www.accela.com/terms/ or as otherwise agreed in the applicable Order. If applicable, one Consulting Services day shall be equal to eight (8) hours.
2.4 Restrictions on Use. Customer shall not, and shall not permit others to: (i) use or access the Subscription Services in any manner except as expressly permitted by the Agreement, including but not limited to, in a manner that circumvents contractual usage restrictions set forth in this Agreement; (ii) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Subscription Services available for access by third parties except as otherwise expressly provided herein; (iii) use the Subscription Service in a way that: (a) violates or infringes upon the rights 740
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of a third party; or (b) stores or transmits libelous, tortious, or otherwise unlawful material or malicious code or viruses; (iv) create derivative works, reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about any of the Subscription Services (except to and only to the extent such rights are proscribed by law); (v) interfere with or disrupt the security, integrity, operation, or performance of the Subscription Services; (vi) access, use, or provide access or use to the Subscription Services or Documentation for the purposes of competitive analysis or the development, provision, or use of a competing software, SaaS or product or any other purpose that is to Accela’s detriment or commercial disadvantage; (vii) provide access to the Subscription Services to competitors of Accela; (viii) access or use components of the Subscription Service not licensed by Customer; (ix) use or allow the use of the Subscription Services by anyone located in, under the control of, or that is a national or resident of a U.S. embargoed country or territory or by a prohibited end user under Export Control Laws (as defined in Section 12.3, Compliance with Laws); (x) remove, delete, alter or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Subscription Services; or (xi) access or use the Subscription Services in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Subscription Services could lead to personal injury or severe physical or property damage.
2.5 Ownership. Accela retains all Intellectual Property Rights, including all rights, title and license to the Subscription Service, Software, Accela System, Support Services, Consulting Services, and Aggregate Data, any related work product of the foregoing and all derivative works thereof by whomever produced; provided however, that to the extent such materials are delivered to Customer as part of the Subscription Services, Consulting Services or Support Services then Customer shall receive a limited license consistent with the terms of Section 2 to use such materials during the Subscription Period.
2.6 Customer’s Responsibilities. Customer will: (i) be responsible for meeting Accela’s applicable minimum system requirements for use of the Subscription Services set forth in the Documentation; (ii) be responsible for Authorized Users’ compliance with this Agreement and for any other activity (whether or not authorized by Customer) occurring under Customer’s account; (iii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data; (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services and Customer Data under its account, and notify Accela promptly of any such unauthorized access or use, and; (v) use the Subscription Services only in accordance with the applicable Documentation, laws and government regulations.
3. PAYMENT TERMS.
3.1 Purchases Directly from Accela. Except as otherwise set forth in an Order, Subscription fees shall be invoiced annually in advance and such fees shall be due and payable on the first day of the Subscription and on each anniversary thereafter for each renewal, if any. All other invoices shall be due and payable net thirty (30) from the date of the applicable invoice. All amounts payable to Accela under this Agreement shall be paid by Customer in full without any setoff, deduction, debit, or withholding for any reason. Any late payments shall be subject to an additional charge of the lesser of 1.5% per month or the maximum permitted by law. All Subscription Services fees are exclusive of any taxes, levies, duties, 741
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withholding or similar governmental assessments of any nature (collectively, "Taxes"). If any such Taxes are owed or payable for such transactions, they shall be paid separately by Customer without set-off to the fees due Accela.
3.2 Purchases from Authorized Resellers. In the event that Customer has purchased any products or services through a reseller, subject to these terms, any separate payment arrangements and terms shall be exclusively through such reseller and Accela is not a party to such transactions. Accela’s sole obligations are set forth herein and Customer acknowledges that its rights hereunder may be terminated for non-payment to such third party.
4. CONFIDENTIALITY. As used herein, "Confidential Information" means all confidential information disclosed by a one party to this Agreement to the other party of this Agreement whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure without breach of any obligation owed to the disclosing party; (iii) is received without restriction from a third party without breach of any obligation owed to the disclosing party; or (iv) was independently developed by the receiving party. Each party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information except as permitted herein, and will limit access to Confidential Information to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound to protect such Confidential Information consistent with this Agreement. The receiving party may disclose Confidential Information if it is compelled by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party's request and cost, to contest, limit, or protect the disclosure.
5. CUSTOMER DATA.
5.1 Ownership. Customer reserves all its rights, title, and interest in and to the Customer Data. No rights are granted to Accela hereunder with respect to the Customer Data, except as otherwise set forth explicitly in Section 5.
5.2 Usage. Customer shall be responsible for Customer Data as entered in to, applied or used in the Subscription Services. Customer acknowledges that Accela generally does not have access to and cannot retrieve lost Customer Data. Customer grants to Accela the non-exclusive right to process Customer Data (including personal data) for the sole purpose of and only to the extent necessary for Accela: (i) to provide the Subscription Services; (ii) to verify Customer’s compliance with the restrictions set forth in Section 2.4 (Restrictions on Use) if Accela has a reasonable belief of Customer’s non-compliance; and (iii) as otherwise set forth in this Agreement. Accela may utilize the information concerning Customer’s use of the Subscription Services (excluding any use of Customer’s Confidential Information) to improve Subscription Services, to provide Customer with reports on its use of the Subscription Services, and to compile aggregate statistics and usage patterns by customers using the Subscription Services.
5.3 Use of Aggregate Data. Customer agrees that Accela may collect, use and disclose Aggregate Data derived from the use of the Subscription Services for industry analysis, benchmarking, analytics, 742
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marketing and other business purposes. All Aggregate Data collected, used and disclosed will be in aggregate form only and will not identify Customer, its Authorized Users or any third parties utilizing the Subscription Services.
6. WARRANTIES AND DISCLAIMERS.
6.1 Subscription Services Warranty. During the Subscription Period, Accela warrants that Subscription Services shall perform materially in accordance with the applicable Documentation. As Customer’s sole and exclusive remedy and Accela’s entire liability for any breach of the foregoing warranty, Accela will use commercially reasonable efforts to: (a) repair the Subscription Services in question; (b) replace the Subscription Services in question with those of substantially similar functionality; or (c), after making all commercially reasonable attempts to do the foregoing, terminate the applicable Subscription Services and refund all unused, prepaid fees paid by Customer for such non-compliant Subscription Services.
6.2 Consulting Services Warranty. For ninety (90) days from the applicable delivery, Accela warrants that Consulting Services shall be performed in a professional and workmanlike manner. As Customer’s sole and exclusive remedy and Accela’s entire liability for any breach of the foregoing warranty, Accela will use commercially reasonable efforts to (a) re-perform the Consulting Services in a compliant manner; or, after making all commercially reasonable attempts to do the foregoing, (b) refund the fees paid for the non-compliant Consulting Services.
6.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ACCELA MAKES NO WARRANTY OF ANY
KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, SECURITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.4. Cannabis-Related Activities. If Customer purchases any Subscription Services for use with any cannabis-related activities, the following additional disclaimers shall apply: Accela is considered a software service provider to its customers and not a cannabis related business or agent thereof. In addition to the foregoing, Accela only retains Subscription Services fees of this Agreement from its Customer for general software services, a state or local government agency, and does not retain these fees from any type of External Users. It is the sole responsibility of the Customer to offer state law compliant services, which may be coordinated and facilitated through the use of the Subscription Services. Accela makes no representations, promises, or warranties with respect to the legality, suitability, or otherwise regarding any third party provider, including partners, and have no responsibility or liability with respect to services provided to Customer by such third parties.
7. INDEMNIFICATION. Accela will defend (or at Accela’s option, settle) any third party claim, suit or action brought against Customer to the extent that it is based upon a claim that the Subscription Services, as furnished by Accela hereunder, infringes or misappropriates the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are finally awarded against Customer, provided that Customer provides: (a) Accela notice of such claim as soon practical and in no event later than would reasonably permit Accela to respond to such claim, (b) reasonable cooperation to Accela, at Accela’s expense, in the defense and/or settlement of such claim and (c) Accela the sole and exclusive control of the defense, litigation and settlement of such claim. In the event that Accela reasonably believes, in its sole discretion, that such claim may 743
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prevail or that the usage of the Subscription Services may be joined, Accela may seek to: (a) modify the Subscription Services such that it will be non-infringing (provided such modification does not materially reduce the functionality or performance of Customer’s installed instance); (b) replace the Subscription Services with a service that is non-infringing and provides substantially similar functionality and performance; or, if the first two options are not commercially practicable, (c) terminate the remainder of the Subscription Period and refund any, pre-paid, unused fees received by Accela. Accela will have no liability under this Section 7 to the extent any claims arise from (i) any combination of the Subscription Services with products, services, methods of a third party; (ii) a modification of the Subscription Services that were either implemented by anyone other than Accela or implemented by Accela in accordance with Customer specifications; (iii) any use of the Subscription Services in a manner that violates this Agreement or the instructions given to Customer by Accela; (iv) a version of the Subscription Services other than the current, fully patched version, provided such updated version would have avoided the infringement; or (v) Customer’s breach of this Agreement. THIS SECTION 7
STATES THE ENTIRE OBLIGATION OF ACCELA AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR
ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS RELATED TO THIS AGREEMENT.
8. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING OUT OF EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY OR CUSTOMER’S BREACH OF SECTION 2, NEITHER PARTY’S AGGREGATE
LIABILITY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE
USE OF OR INABILITY TO USE THE SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER
THEORY OF LIABILITY, SHALL EXCEED TWO TIMES THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. EXCEPT FOR LIABILITY ARISING OUT OF CUSTOMER’S BREACH OF SECTION 2 OR EITHER PARTY’S LIABILITY FOR
DEATH OR PERSONAL INJURY, IN NO EVENT SHALL EITHER PARTY OR ANY OTHER PERSON OR ENTITY
INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICE BE LIABLE FOR ANY INCIDENTAL,
SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR
LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST
OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR FROM THE USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICES, WHETHER BASED ON
WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING EXCLUSIONS APPLY WHETHER OR NOT A PARTY HAS BEEN INFORMED OF THE
POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. SECURITY. Accela has implemented commercially viable and reasonable information security processes, policies and technology safeguards to protect the confidentiality and integrity of Customer Data, personal data protect against reasonably anticipated threats. Customer acknowledges that, notwithstanding security features of the Subscription Services, no product, hardware, software or service can provide a completely secure mechanism of electronic transmission or communication and that there are persons and entities, including enterprises, governments and quasi- governmental actors, as well as technologies, that may attempt to breach any electronic security measure. Subject only to its limited warranty obligations set forth in Section 6, Accela will have no liability for any such security breach. Customer further acknowledges that the Subscription Services is not guaranteed to operate without interruptions, failures, or errors. If Customer or Authorized Users use the Subscription Services 744
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in any application or environment where failure could cause personal injury, loss of life, or other substantial harm, Customer assumes any associated risks and will indemnify Accela and hold it harmless against those risks.
10. THIRD PARTY SERVICES. Customer may choose to obtain a product or service from a third party that is not directly produced by Accela as a component of the Subscription Services (“Third Party Services”) and this may include third party products resold by Accela. Accela assumes no responsibility for, and specifically disclaims any liability, warranty or obligation with respect to, any Third Party Service or the performance of the Subscription Services (including Accela’s service level commitment) when the Subscription Services are used in combination with or integrated with Third Party Services.
11. TERM AND TERMINATION.
11.1 Agreement Term. This Agreement shall become effective on the Effective Date and shall continue in full force and effect until the expiration of any Subscription Periods set forth in an applicable Order governed by the Agreement.
11.2 Subscription Periods & Renewals. Subscription Periods begin as specified in the applicable Order and, unless terminated earlier in accordance with this Agreement, continue for the term specified therein. Except as otherwise specified in the applicable Order, (a) all Subscription Services will automatically renew for additional Subscription Periods equal to the expiring Subscription Period, unless either party gives the other at least sixty (60) days’ notice of non-renewal before the end of the relevant Subscription Period and (b), Orders may only be cancelled or terminated early in accordance with Section 11.3. Subscription Services renewals may be subject to an annual increase, for which Accela shall provide Customer notice prior to the renewal of the Subscription Period. In the event of any nonrenewal or other termination, Customer’s right to use the Subscription Services will terminate at the end of the relevant Subscription Period.
11.3 Termination or Suspension for Cause. A party may terminate this Agreement and Subscription Services license granted hereunder for cause upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such thirty (30) day period. Either party may terminate immediately if the other party files for bankruptcy or becomes insolvent. Accela may, at its sole option, suspend Customer’s or any Authorized User’s access to the Subscription Services, or any portion thereof, immediately if Accela: (i) suspects that any person other than Customer or an Authorized User is using or attempting to use Customer Data; (ii) suspects that Customer or an Authorized User is using the Subscription Services in a way that violates this Agreement and could expose Accela or any other entity to harm or legal liability; (iii) is or reasonably believes it is required to do so by law or court order or; (iv) Customer’s payment obligations are more than ninety (90) days past due, provided that Accela has provided at least thirty (30) days’ notice of such suspension for delinquent payment. Should Customer terminate this Agreement for cause, Accela will refund a pro-rata portion of unused, pre-paid fees.
11.4 Termination for Non-Appropriation. If the Customer’s City Council does not appropriate funds to enable the Customer to continue to make purchases under the Agreement, this Agreement will be cancelled immediately and Accela will be given written notice of such termination. In the event of termination of this Agreement under this paragraph, Accela shall be paid any applicable fees up to the date of termination, and Customer shall not receive any refund of prepaid fees.
11.5 Effect of Termination. If this Agreement expires or is terminated for any reason: (i) within thirty 745
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(30) calendar days following the end of Customer’s final Subscription Period, upon Customer’s request Accela provided Customer Data and associated documents in a database dump file; provided that Customer pays (a) all costs of and associated with such copying, as calculated at Accela’s then-current time-and-materials rates, and (b) any and all unpaid amounts due to Accela; (ii) licenses and use rights granted to Customer with respect to Subscription Services and intellectual property will immediately terminate; and (iii) Accela’s obligation to provide any further services to Customer under this Agreement will immediately terminate, except as mutually agreed between the parties. If the Subscription Services are nearing expiration date or are otherwise terminated, Accela will initiate its data retention processes, including the deletion of Customer Data from systems directly controlled by Accela. Accela’s current Data Storage Policy can be accessed www.accela.com/terms/.
11.6 Survival. Sections 2.5 (Ownership and Proprietary Rights), 4 (Confidentiality), 6.3 (Disclaimer), 8 (Limitation of Liability), 11.4 (Effect of Termination), 11.5 (Surviving Provisions), and 12 (General Provisions) will survive any termination or expiration of this Agreement.
12. GENERAL.
12.1 Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (i) personal delivery; (ii) three days after sending registered, return receipt requested, post or; (iii) one day after sending by commercial overnight carrier. Notices will be sent to the address specified by the recipient in writing when entering into this Agreement or establishing Customer’s account for the Subscription Services.
12.2 Governing Law and Jurisdiction. This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action related to the subject matter of this Agreement will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
12.3 Compliance with Laws. Each party will comply with all applicable laws and regulations with respect to its activities under this Agreement including, but not limited to, export laws and regulations of the United States and other applicable jurisdictions. Further, in connection with the services performed under this Agreement and Customer’s use of the Subscription Services, the parties agree to comply with all applicable anti-corruption and anti-bribery laws, statutes and regulations.
12.4 Assignment. Customer may not assign or transfer this Agreement, whether by operation of law or otherwise, without the prior written consent of Accela, which shall not be unreasonably withheld.
Any attempted assignment or transfer, without such consent, will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.5 Publicity. Notwithstanding anything to the contrary, each party will have the right to publicly announce the existence of the business relationship between parties without disclosing the specific terms of the Agreement.
12.6 Miscellaneous. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to 746
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the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
Accela will not be liable for any delay or failure to perform under this Agreement to the extent such delay or failure results from circumstances or causes beyond the reasonable control of Accela. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or similar relationship between the parties. This Agreement, including any attachments hereto as mutually agreed upon by the parties, constitute the entire agreement between the parties concerning its subject matter and it supersedes all prior communications, agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by a duly authorized representative of each party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary, no additional or conflicting terms or conditions stated in any of Customer’s purchase order documentation or otherwise will be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. 747
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Proprietary and Confidential
Statement of Work
West Sacramento, CA
SaaS Migration Services
5/14/2024
Version 1.0
Accela, Inc.
2633 Camino Ramon
Suite 120
San Ramon, CA 94583
Tel: 925-659-3200
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TABLE OF CONTENTS
TABLE OF CONTENTS ..................................................................................................................................................................... 2 DOCUMENT CONTROL .................................................................................................................................................................... 3 INTRODUCTION ................................................................................................................................................................................ 4 OVERVIEW............................................................................................................................................................................................ 4 SCOPE OF SERVICES...................................................................................................................................................................... 4 WORK DESCRIPTION............................................................................................................................................................................. 5 OUT OF SCOPE................................................................................................................................................................................. 5 PROJECT ASSUMPTIONS ............................................................................................................................................................... 6 GENERAL PROJECT ASSUMPTIONS........................................................................................................................................................ 6 INTEGRATION ASSUMPTIONS ................................................................................................................................................................. 6 PROJECT TIMELINE ............................................................................................................................................................................... 6 PROJECT COMPLETION.......................................................................................................................................................................... 6 PROJECTS PUT ON HOLD...................................................................................................................................................................... 6 PAYMENT TERMS............................................................................................................................................................................. 6 PAYMENT SCHEDULE ............................................................................................................................................................................ 6 EXPENSES............................................................................................................................................................................................ 7 CONTRACT SUM.................................................................................................................................................................................... 7 ADMINISTRATION............................................................................................................................................................................. 7 CHANGE ODERS ................................................................................................................................................................................... 7 EXPIRATION.......................................................................................................................................................................................... 7 DISCLAIMERS........................................................................................................................................................................................ 7 SIGNATURES .................................................................................................................................................................................... 9 APPENDIX A: CHANGE ORDER FORM......................................................................................................................................... 10 SIGNATURE AND ACCEPTANCE............................................................................................................................................................. 10 749
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DOCUMENT CONTROL
Date Author Version Change Reference
5/13/2024 J. White 1.0 SOW Creation
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INTRODUCTION
OVERVIEW
This Statement of Work (“SOW”) dated as of the last date of signature below sets forth the scope and definition of the project-based professional services (collectively, the “Professional Services”) to be provided by Accela, Inc., its affiliates and/or agents (“Accela”) for West Sacramento, CA (“Agency” or “Customer”).
This SOW is issued pursuant to and governed by the terms and conditions of the Accela Consulting Services Policy found at www.accela.com/terms.
In the event of a conflict between the SOW and the Agreement, the terms of the SOW shall prevail as to pricing, delivery dates, and description of the applicable Professional Services but will not prevail over, modify, or terminate any surviving provision of the Agreement. This SOW is effective as of the date that the SOW was last signed by the Customer and Accela (“SOW Effective Date”).
Notwithstanding anything to the contrary, Accela is not assigning or licensing any intellectual property to the Customer under this SOW.
SCOPE OF SERVICES
Accela will provide services to the Agency for migrating the Accela on-premise Civic Platform instance to the Accela Cloud based on the materials provided by the Agency in the SaaS Migration Questionnaire. • Import/upgrade of MS SQL DBs (up to 3 environments: Development, Test, Production) • Assistance migrating 4 specific interfaces:
o GIS with XAPO
o CSLB
o Credit Card Payment Adapter (Virtual Merchant)
o Open Data Queries (using ERDB)
• Migration of up to 125 SSRS reports
• Upgrade EMSE Master Scripts
o Convert standard choice scripting to EMSE 3.0
• Assist in integrating Azure SSO
• Up to 40 hour of issue resolution and testing assistance during UAT • Go live planning and cutover assistance
Products
The following Accela products are in scope for this Project:
• Accela Automation
o Accela Electronic Document Review (AEDR)
• Accela Citizen Access
• Accela GIS
• Accela Mobile
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WORK DESCRIPTION
Accela will perform a migration of the customer’s on-premise Accela environments using MS SQL (up to 3 environments: Support, Test, Production) to the Accela SaaS platform.
Steps:
1. Customer provides an updated backup of the MS SQL databases for the environments to be migrated
2. Perform the database migration (Accela, Jetspeed, AGIS, and ADS databases as required) a. Copy database to Accela site
b. Execute preparation and remediation scripts; drop any custom objects c. Import data from the MS SQL DB into Accela SaaS SQL instance
3. Execute validation scripts to confirm the schema
4. Provision tenant instance in Accela SaaS
5. Update environment specific data in the databases
6. Load ADS documents
7. Start Accela services and validate the system is functional i.e. login, search, create records, etc.
8. Execute automated test tool to ensure proper system functionality
9. Customer performs migration validation
10. Remediate any data issues that found from the migration
11. Provide the customer with a backup of the revised SQL DB
12. Upgrade EMSE master scripts to the current version
o Convert standard choice scripts to EMSE 3.0
o Perform event-level unit testing on converted scripts
13. Migrate and Test integrations
o Repoint service endpoints to new URLs
o Adjust firewall rules and network topologies as necessary o Update interface EMSE scripting dependences for Azure compatibility o Unit test and ensure base functionality
14. Migrate and update SSRS reports (maximum of 125)
o Import reports into the Accela SaaS environment
o Update reports to remove dependencies on custom objects (stored procedures, functions)
o Facilitate customer testing and remediate any issues found resulting from migration
15. Validate Ad Hoc reports
o Remove dependencies on custom views where possible
o Convert to SSRS as needed
16. Develop go live plan
17. Final go-live/roll back decision
18. Execute go live plan
19. Provide 2 weeks of post go live support from the project team
OUT OF SCOPE
Any Coding, conversion or additional services not specifically described in this document is the responsibility of Agency.
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PROJECT ASSUMPTIONS
GENERAL PROJECT ASSUMPTIONS
• Agency will provide the necessary data, files, and other specified inputs to perform the work described in this agreement. These items will be uploaded to secure Azure storage by the Agency.
Failure to provide these items in a timely fashion will result in a project delay. Such a delay will result in a Change Order.
• Agency will ensure that Accela resources have access to a Dev or Test version of the 3rd party systems for interface development. All interfaces will be developed against 1 (one), agreed upon version of the 3rd party system.
• Agency will provide source code for relevant interfaces in scope. If source code is unavailable, then the project may be delayed or addition cost may result from the re-development of a new interface.
Integration Assumptions
• Hosting of interfaces remains the responsibility of the agency unless specifically included in the Accela SaaS license agreement.
• The agency will purchase the Enhanced Reporting Database (ERD) as part of their SaaS license. If the agency does not purchase ERD, then additional scope may be required to migrate interfaces.
PROJECT TIMELINE
The project is estimated to take 20 weeks. The projected start date for the Project isforty-five (45) calendar days after mutual acceptance and signature of this SOW.
PROJECT COMPLETION
Upon completion of the work defined above, this contract will be closed.
PROJECTS PUT ON HOLD
It is understood that sometimes Agency priorities are revised requiring the Agency to place the Accela implementation on hold. The Agency must send a formal written request sent to Accela to put the project on hold. Delays of 2 weeks or more that have a tangible impact to Accela’s resource plan are subject to change order.
If an Agency-based delay puts the project on hold for more than 90 days, Accela reserves the right to terminate the contract and negotiate new terms. If an Agency-based delay puts the project on hold past the termination period, Accela reserves the right to terminate the contract at the time of the delay. After that time, Accela can choose to cancel the rest of the Statement of Work. To finish the project will require a new Statement of Work at new pricing.
PAYMENT TERMS
PAYMENT SCHEDULE
• 50% due at contract signing $50,000.
• 50% invoiced at completion $50,000.
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EXPENSES
There is no provision for travel expenses or travel time in this SOW because Agency does not need any onsite resources. Travel to the Agency will not be conducted unless a Change Order, inclusive of travel expense terms and conditions, is signed prior to travel commencing to cover the cost of the travel.
CONTRACT SUM
The total estimated amount payable under this SOW, as calculated from the above-mentioned fees, is $100,000. This estimated price is based on the information available at time of signing and the assumptions, dependencies and constraints, and roles and responsibilities of the Parties, as stated in this SOW.
ADMINISTRATION
CHANGE ODERS
In order to make a change to the scope of Professional Services in this SOW, and subject to the Disclaimers below, Agency must submit a written request to Accela specifying the proposed changes in detail. Accela will submit to Agency an estimate of the charges and the anticipated changes in the delivery schedule that will result from the proposed change in the Professional Services Change Order. Accela will continue performing the Professional Services in accordance with the SOW until the parties agree in writing on the change in scope of work, scheduling, and fees therefore. Any Change Order will be agreed to by the parties in writing prior to implementation of the Change Order. If Accela’s effort changes due to changes in timing, roles, responsibilities, assumptions, scope, etc. or if additional support hours are required, a change order will be created that details these changes, and impact to project and cost (if any). Any change order will be signed by Accela and Agency prior to commencing any activities defined in the change order. Standard blended rate for Accela resources is $250 per hour. The Change Order Template is attached hereto as Appendix A.
EXPIRATION
The scope and terms of this SOW must be executed before 6/30/2024. If the SOW is not executed, the current scope and terms can be renegotiated.
DISCLAIMERS
Accela makes no warranties in respect of the Services described in this SOW except as set out in the governing Subscription Services Agreement. Any configuration of or modification to the Product that can be consistently supported by Accela via APIs, does not require direct database changes and is capable of being tested and maintained by Accela will be considered a “Supported Modification”. Accela’s obligations and warranties in respect of its Services, Products, and maintenance and support, as set out the agreement between Accela and Agency, does not extend outside the Supported Modifications or to any Agency manipulation of implemented scripts, reports, interfaces and adaptors.
In the event Agency requires significant changes to this SOW (including cumulative revisions across any one or more Change Orders) which Accela reasonably determines (a) is a material modification of the nature or scope of Services as initially contemplated by the Parties under this SOW and/or (b) is significantly outside the Supported Modifications, Accela may, upon no less than thirty (30) days’ notice to Agency, 754
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suspend or terminate this SOW and/or any Change Order issued hereunder. In the event of any such termination or suspension, the parties will work together in finalizing agreed-upon Deliverables. 755
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SIGNATURES
This Statement of Work is agreed to by the parties and made effective upon the date of last signature. If undated by Agency, the effective date will be as of the Accela signature hereto.
ACCELA, INC. West Sacramento, CA
Authorized Signature Authorized Signature
Name - Type or Print Name - Type or Print
Title Title
Date Date
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APPENDIX A: CHANGE ORDER FORM
Agency: CO #:
Project Code: Date:
Contract ID:
Initiating Department:
Initiated By:
A. PROJECT CHANGE DESCRIPTION/TASK SUMMARY:
1. [Description of Change #1 – Issue details/scope impact, add as many as needed] • Schedule impact:
• Resource impact:
• Cost impact:
2. Etc.
Total Project Schedule Impact: [Enter]
Total Project Resource Impact: [Enter]
Total Project Cost Impact: [Enter]
B. BILLING TERMS:
Please describe the method by which Accela may bill the customer. Typically for CO’s this is T&M.
C. EXPIRATION:
If this is a CO for a bucket of T&M hours there needs to be an expiration date
SIGNATURE AND ACCEPTANCE
The above Services will be performed in accordance with this Change Order/Work Authorization and the provisions of the Contract for the purchase, modification, and maintenance of the Accela systems. The approval of this Change Order will act as a Work Authorization for Accela and/or Agency to perform work in accordance with this Change Order, including any new payment terms identified in this Change Order. This Change Order takes precedent and supersedes all other documents and discussions regarding this subject matter.
Accepted By: Accepted By:
Accela, Inc.
By: By:
Print Name: Print Name:
Title: Title:
Date: Date:
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Accela, Inc.
Consolidated SaaS Support Policies
This document contains two policies, the Standard Support SaaS Services and the Preferred Support SaaS Services Policies. Please refer to the appropriate section, depending on the level of Support Services you have purchased from Accela.
In the event you are unsure or wish to upgrade your Support Services Level,please contact your account manager.
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2633 Camino Ramon, Suite 500
San Ramon, CA, 94583
Proposed by: Brad Jacobs
Contact Phone:
Contact Email: [email protected]
Quote ID: Q-33375
Valid Through: 6/28/2024
Currency: USD
_______________________________________________________________________________________ Order Form
Address Information
Bill To: Ship To:
City of West Sacramento City of West Sacramento
1110 West Capitol Ave., 3rd Floor
West Sacramento, California 95691
United States
1110 West Capitol Ave., 3rd Floor
West Sacramento, California 95691
United States
Billing Name: Anthony Arieas
Billing Phone: 9166174529
Billing Email: [email protected]
_______________________________________________________________________________________ Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 1 6/28/2024 6/27/2025 12 $1,470.00 70 $102,900.00 > Accela Building - SaaS Year 1 6/28/2024 6/27/2025 12 $0.00 70 $0.00 > Accela Planning - SaaS Year 1 6/28/2024 6/27/2025 12 $0.00 70 $0.00 > Accela Business Licensing -
SaaS
Year 1 6/28/2024 6/27/2025 12 $0.00 70 $0.00
> Accela Fire - SaaS Year 1 6/28/2024 6/27/2025 12 $0.00 70 $0.00 Enhanced Reporting Database
(ERD)
Year 1 6/28/2024 6/27/2025 12 $14,406.00 1 $14,406.00
Unit - Training 6/28/2024 84 $0.00 40 $0.00
TOTAL: $117,306.00
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 2 6/28/2025 6/27/2026 12 $1,845.14 70 $129,160.08 > Accela Building - SaaS Year 2 6/28/2025 6/27/2026 12 $0.00 70 $0.00 > Accela Planning - SaaS Year 2 6/28/2025 6/27/2026 12 $0.00 70 $0.00 > Accela Business Licensing -
SaaS
Year 2 6/28/2025 6/27/2026 12 $0.00 70 $0.00
> Accela Fire - SaaS Year 2 6/28/2025 6/27/2026 12 $0.00 70 $0.00 Quote Number:Q-33375-1 Print Date:5/14/2024
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Enhanced Reporting Database
(ERD)
Year 2 6/28/2025 6/27/2026 12 $18,082.41 1 $18,082.41
TOTAL: $147,242.49
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 3 6/28/2026 6/27/2027 12 $2,316.02 70 $162,121.73 > Accela Building - SaaS Year 3 6/28/2026 6/27/2027 12 $0.00 70 $0.00 > Accela Planning - SaaS Year 3 6/28/2026 6/27/2027 12 $0.00 70 $0.00 > Accela Business Licensing -
SaaS
Year 3 6/28/2026 6/27/2027 12 $0.00 70 $0.00
> Accela Fire - SaaS Year 3 6/28/2026 6/27/2027 12 $0.00 70 $0.00 Enhanced Reporting Database
(ERD)
Year 3 6/28/2026 6/27/2027 12 $22,697.04 1 $22,697.04
TOTAL: $184,818.77
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 4 6/28/2027 6/27/2028 12 $2,431.83 70 $170,227.82 > Accela Building - SaaS Year 4 6/28/2027 6/27/2028 12 $0.00 70 $0.00 > Accela Planning - SaaS Year 4 6/28/2027 6/27/2028 12 $0.00 70 $0.00 > Accela Business Licensing -
SaaS
Year 4 6/28/2027 6/27/2028 12 $0.00 70 $0.00
> Accela Fire - SaaS Year 4 6/28/2027 6/27/2028 12 $0.00 70 $0.00 Enhanced Reporting Database
(ERD)
Year 4 6/28/2027 6/27/2028 12 $23,831.89 1 $23,831.89
TOTAL: $194,059.71
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 5 6/28/2028 6/27/2029 12 $2,553.42 70 $178,739.21 > Accela Building - SaaS Year 5 6/28/2028 6/27/2029 12 $0.00 70 $0.00 > Accela Planning - SaaS Year 5 6/28/2028 6/27/2029 12 $0.00 70 $0.00 > Accela Business Licensing -
SaaS
Year 5 6/28/2028 6/27/2029 12 $0.00 70 $0.00
> Accela Fire - SaaS Year 5 6/28/2028 6/27/2029 12 $0.00 70 $0.00 Quote Number:Q-33375-1 Print Date:5/14/2024
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Enhanced Reporting Database
(ERD)
Year 5 6/28/2028 6/27/2029 12 $25,023.49 1 $25,023.49
TOTAL: $203,762.70
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 6 6/28/2029 6/27/2030 12 $2,681.09 70 $187,676.17 > Accela Building - SaaS Year 6 6/28/2029 6/27/2030 12 $0.00 70 $0.00 > Accela Planning - SaaS Year 6 6/28/2029 6/27/2030 12 $0.00 70 $0.00 > Accela Business Licensing -
SaaS
Year 6 6/28/2029 6/27/2030 12 $0.00 70 $0.00
> Accela Fire - SaaS Year 6 6/28/2029 6/27/2030 12 $0.00 70 $0.00 Enhanced Reporting Database
(ERD)
Year 6 6/28/2029 6/27/2030 12 $26,274.66 1 $26,274.66
TOTAL: $213,950.83
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 7 6/28/2030 6/27/2031 12 $2,815.14 70 $197,059.98 > Accela Building - SaaS Year 7 6/28/2030 6/27/2031 12 $0.00 70 $0.00 > Accela Planning - SaaS Year 7 6/28/2030 6/27/2031 12 $0.00 70 $0.00 > Accela Business Licensing -
SaaS
Year 7 6/28/2030 6/27/2031 12 $0.00 70 $0.00
> Accela Fire - SaaS Year 7 6/28/2030 6/27/2031 12 $0.00 70 $0.00 Enhanced Reporting Database
(ERD)
Year 7 6/28/2030 6/27/2031 12 $27,588.40 1 $27,588.40
TOTAL: $224,648.38
Pricing Summary
Period Net Total
Year 1 $ 117,306.00
Year 2 $ 147,242.49
Year 3 $ 184,818.77
Year 4 $ 194,059.71
Year 5 $ 203,762.70
Year 6 $ 213,950.83
Year 7 $ 224,648.38
Total $ 1,285,788.88
Additional Terms:
Quote Number:Q-33375-1 Print Date:5/14/2024
1. No additional or conflicting terms or conditions stated in Customer’s order documentation, including purchase orders, will be incorporated into or form any part of this Order Form or the governing agreement, and all such terms or conditions will be null.
2. This Order Form, including any OnPrem Licenses, Maintenance and Support, and Subscription Services, Enhanced Reporting Database and Managed Application Services will be governed by the applicable terms and conditions. If those terms and conditions are non-existent, have expired, do not apply or have otherwise been terminated, the following terms at https:// www.accela.com/terms/ will govern as applicable, based on the Customer’s purchase.
3. All Software Licenses, Maintenance, and Subscription purchases are non-cancelable and non-refundable.
4. If Customer has a prior agreement with Accela, and this purchase is co-terming with that prior agreement, if the start date on this Order Form is before the actual delivery date of the purchase, Accela may pro-rate this purchase so that it can co-term with the prior agreement.
5. If this Order Form is executed and/or returned to Accela by Customer after the Order Start Date above, Accela may adjust the Order Start Date and Order End Date without increasing the total price based on the date Accela activates the products and provided that the total term length does not change.
6. Pricing is based upon payment by ACH or check. Payment by credit card (including Purchase Cards) for product and services in this Order Form will be subject to a service charge of 3%. There is no service charge for ACH or check payment.
7. Enhanced Reporting Database pricing is based on a percentage of Customers SaaS Annual Contract Value if applicable. As SaaS Annual Contract Value increases/decreases based on seat count changes or annual uplift ERD pricing will be adjusted accordingly at contract renewal.
8. Training credits may be used to register Customer’s select users for any regularly scheduled live or virtual training event found on the Accela University Calendar located at (https://accela.arlo.co/w/US/upcoming/). Additionally, Accela University will offer unlimited access to the entire library of self-paced elearnings for SaaS Civic Platform and Accela Mobile end-users.
Customer shall be responsible for all other costs and expenses incurring in connection with the Training.
9. Customer may have two (2) no-cost Accelerate passes for years 1–3 and one (1) no-cost Accelerate pass for years 4-7.
Accelerate passes have no cash or credit value,are non-transferable, and there is no guarantee that an Accelerate conference will be held each or every year of this Order Form.
Signatures
Accela, Inc. Customer
Signature: Signature:
Print Name: Print Name:
Title: Title:
Date: Date:
Quote Number:Q-33375-1 Print Date:5/14/2024
Policy 1
Accela, Inc.
Standard SaaS Support Services Policy
Dated: April 21, 2021
This Accela Standard SaaS Support Services Policy (“Support Policy”) governs the terms under which Accela provides Support Services and is subject to the SaaS services agreement (“Agreement”) entered into between Accela and the recipient of such services (“Customer”).
This Support Policy may be updated from time to time by Accela in its sole discretion.
General Requirements and Hours of Operation
a. Ticketing Support: Accela will provide access to a ticketing system, which will be available twenty‐four (24) hours per day, seven (7) days per week. A qualified support specialist shall use commercially reasonably efforts to answer questions and resolve problems regarding the Subscription Service from 4:00 A.M. until 6:00 P.M. Pacific Standard Time Monday through Friday, excluding Accela’s observed holidays. b. Telephone Support: Accela’s Customer Support Department, a live technical support facility, will be available to Customer from 4:00 A.M. until 6:00 P.M. Pacific Standard Time Monday through Friday, excluding Accela’s observed holidays. c. Online Support Material: Available twenty‐four (24) hours, seven (7) days a week, Accela will make available to Customer certain archived software updates and other technical information in Accela’s online support databases.
(1) Agency Contacts: “Agency Contacts” are the individuals who will be the primary users of the Support Plan. You may designate up to two (2) Agency Contacts and agree to let Accela know if they change.
Your Agency Contacts will be responsible for:
Overseeing your Agency’s support case activity, developing and deploying troubleshooting processes within your Agency’s organization.
Agency will ensure Agency Contacts:
Have completed the Administrator Training offered as part of Accela’s implementation and adoption programs. Are knowledgeable about the Agency’s configured solution in order to assist Accela in analyzing and resolving technical issues. Have a basic understanding of any problem that is the subject of a case, and the ability to reproduce the problem in order to assist Accela in diagnosing and triaging the problem.
(2) Submitting a Case
Agency Contacts may submit cases via:
a. the online support portal by logging into the Accela Success Community at 763
https://success.accela.com and selecting Get Support > Submit a case or b. a telephone call to Customer Support as described below (For Severity Level 1 and Severity Level 2 issues, Agency must call Customer Support) (3) Updates
Updates may address security fixes, critical patches, general maintenance functionality, and documentation and shall be made available at Accela’s discretion. Accela is under no obligation to develop any future functionality or enhancements unless otherwise specified in the Agreement. If an update for the Service is made available to Customer pursuant to this Support Policy, it will automatically replace the previous version of the applicable Service.
Where practical, Accela will schedule Updates during non‐business hours and will provide Customers with advance notice of all Updates.
(4) Upgrade/Downgrade of Severity Level
If, during the Support Request process, the issue either warrants assignment of a higher severity level than currently assigned or no longer warrants the severity level currently assigned based on its current impact on the production operation of the SaaS offering, then the severity level will be upgraded or downgraded accordingly to the severity level that most appropriately reflects its current impact.
(5) Customer Cooperation
Accela must be able to reproduce errors in order to resolve them. Agency agrees to cooperate and work closely with Accela to reproduce errors, including, without limitation, conducting diagnostic or troubleshooting activities, implementation of fixes or updates previously provided by Accela, or providing information as reasonably requested and appropriate. Also, Accela may access Agency Contacts account and/or an admin account and/or Agency’s personnel may be asked to provide remote access to their internal system for, without limitation, conducting diagnostic or troubleshooting activities, or implementation of fixes or updates previously provided by Accela.
(6) Third Party Product Support
If any third‐party software is supplied by Accela, Accela disclaims all support obligations for such third‐party software, unless expressly specified by Accela in Customer’s Agreement. (7) Exclusions
The following Support Exclusions are not covered by this Support Policy:
a. Support required due to Customer’s or any End User’s or third party’s misuse of the Services;
b. Support during times outside of Accela’s regular business hours stated above; c. Support necessitated by external factors outside of Accela’s reasonable control, including any force majeure event or Internet access or related problems beyond the Ser vice demarcation point;
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d. Support of or caused by customizations (if outside of Accela’s best practice recommendations), configuration changes, scripting, or data loss caused by or on behalf of Customer or any End User;
e. Support of or caused by Customer’s or any End User’s or third party’s equipment, software or other technology (other than third party equipment within Accela’s direct control); f. Support to resolve or work‐around conditions which cannot be reproduced in Accela’s support environment and
g. Support of any software add‐ons supplied together with the Service (except where specified in the customer’s Agreement).
Any support services falling within these Support Exclusions may be provided by Accela at its discretion and, if so provided, may be subject to additional pricing and support terms as specified by Accela. (8) Error Classification
Functional Definitions: For the purposes of error classification, essential or major functions include: data capture features, SLA and alarming features, performance management features and application performance problem resolution features.
Severity Definition
Level 1 Supported Product is non‐functional or seriously affected and there is no reasonable workaround available (e.g. business is halted).
Level 2 Supported Product is affected and there is no workaround available or the workaround is impractical (e.g. Supported Product response is very slow, day to day operations continue but are impacted by the work around).
Level 3 Supported Product is non‐functional however a convenient workaround exists
(e.g. non‐critical feature is unavailable or requires additional user intervention).
Level 4 Supported Product works, but there is a minor problem (e.g. incorrect label, or
cosmetic defect).
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(9) Target Initial Response Time
Accela will use commercially reasonable efforts to respond to each case within the applicable response time described in the table below:
Target Initial Response Time by Case Severity
Severity Level Target Initial Response Time
1 1 daya
2 3 daysa
3 5 daysa
4 7 daysa
a
Initial response times are including M‐F, 4 am to 6 pm PT, excluding weekends and holidays. Severity Level 1 and 2 cases must be submitted via telephone as described above. Severity Level 1 and 2 target initial response times do notapply to cases submitted via email or electronically via the Accela Success Community.
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Policy 2
Accela, Inc.
Preferred SaaS Support Policy
Dated: April 21, 2021
This Accela Preferred SaaS Support Services Policy (“Support Policy”) governs the terms under which Accela provides Support Services and is subject to the SaaS services agreement (“Agreement”) entered into between Accela and the recipient of such services (“Customer”). This Support Policy may be updated from time to time by Accela in its sole discretion. This policy only applies to Customers that have purchased Preferred Level Support.
General Requirements and Hours of Operation
a. Ticketing Support: Accela will provide access to a ticketing system, which will be available twenty‐four (24) hours per day, seven (7) days per week. A qualified support specialist shall use commercially reasonably efforts to answer questions and resolve problems regarding the Subscription Service from 4:00 A.M. until 6:00 P.M. Pacific Standard Time Monday through Friday, excluding Accela’s observed holidays.
b. Telephone Support: Accela Customer Support Department, a live technical support facility, will be available in English to your identified Agency Contacts twenty‐four hours a day, seven days a week (including weekends and holidays). Telephone support will be handled via a dedicated Preferred Support line. Access to Accela self‐service resources is available 24x7 through the Accela Success Community site. Cases may be handled by a triage agent, who will document the case and route it to the appropriate Accela support engineer for resolution.
Accela support engineers will follow through on the case for the Agency Contacts. Actual resolution time will vary. Resolutions can take many forms – a workaround, code update, user training, or other solution.
c. Online Support Material: Available twenty‐four (24) hours, seven (7) days a week, Accela will make available to Customer certain archived software updates and other technical information in Accela’s online support databases.
(1) Agency Contacts: “Agency Contacts” are the individuals who will be the primary users of the Support Plan. You may designate up to ten (10) Agency Contacts and agree to let Accela know if they change.
Your Agency Contacts will be responsible for:
Overseeing your Agency’s support case activity, developing and deploying troubleshooting processes within your Agency’s organization.
Agency will ensure Agency Contacts:
Have completed the Administrator Training offered as part of Accela’s implementation and adoption programs. Are knowledgeable about the Agency’s configured solution in order to assist Accela in analyzing and resolving technical issues. Have a basic understanding of any problem that is the subject of a case, and the ability to reproduce the problem in order to assist Accela in diagnosing and triaging the problem. 767
(2) Submitting a Case: Agency Contacts may submit cases via:
a. the online support portal by logging into the Accela Success Community at https://success.accela.com and selecting Get Support > Submit a case or b. a telephone call to Customer Support as described below (For Severity Level 1 and Severity Level 2 issues, Agency must call Customer Support) (3) Updates: Updates may address security fixes, critical patches, general maintenance functionality, and documentation and shall be made available at Accela’s discretion. Accela is under no obligation to develop any future functionality or enhancements unless otherwise specified in the Agreement. If an update for the Service is made available to Customer pursuant to this Support Policy, it will automatically replace the previous version of the applicable Service.
Where practical, Accela will schedule Updates during non‐business hours and will provide Customers with advance notice of all Updates.
(4) Upgrade/Downgrade of Severity Level: If, during the Support Request process, the issue either warrants assignment of a higher severity level than currently assigned or no longer warrants the severity level currently assigned based on its current impact on the production operation of the SaaS offering, then the severity level will be upgraded or downgraded accordingly to the severity level that most appropriately reflects its current impact. (5) Customer Cooperation: Accela must be able to reproduce errors in order to resolve them.
Agency agrees to cooperate and work closely with Accela to reproduce errors, including conducting diagnostic or troubleshooting activities, implementation of fixes or updates previously provided by Accela, or providing information as reasonably requested and appropriate. Also, Accela may access Agency Contacts account and/or an admin account and/or Agency’s personnel may be asked to provide remote access to their internal system for, without limitation, conducting diagnostic or troubleshooting activities, or implementation of fixes or updates previously provided by Accela.
(6) Third Party Product Support: If any third‐party software is supplied by Accela, Accela disclaims all support obligations for such third‐party software, unless expressly specified by Accela in Customer’s Agreement.
(7) Named Technical Support Advisor: Accela will provide a named technical support advisor for any Preferred support plan holders. The technical support advisor will have knowledge of the customers system and provide oversite for any support cases created with Accela. They will also facilitate the following:
1. Scheduled calls to review open support tickets with Accela and
2. a monthly service review to review overall support performance. 768
(8) Monthly APO Data Loads: Included with the Preferred support plan is a monthly upload of APO data to your hosted environment. This must be requested following the methods outlined in the case submission process in this document. All APO load cases will be addressed as a Sev3 severity level case.
(9) Exclusions: The following Support Exclusions are not covered by this Support Policy:
a. Support required due to Customer’s or any End User’s or third party’s misuse of the Services;
b. Support during times outside of Accela’s regular business hours stated above; c. Support necessitated by external factors outside of Accela’s reasonable control, including any force majeure event or Internet access or related problems beyond the Service demarcation point;
d. Support of or caused by customizations (if outside of Accela’s best practice recommendations), configuration changes, scripting, or data loss caused by or on behalf of Customer or any End User;
e. Support of or caused by Customer’s or any End User’s or third party’s equipment, software or other technology (other than third party equipment within Accela’s direct control);
f. Support to resolve or work‐around conditions which cannot be reproduced in Accela’s support environment and
g. Support of any software add‐ons supplied together with the Service (except where specified in the Agreement).
Any support services falling within these Support Exclusions may be provided by Accela at its discretion and, if so provided, may be subject to additional pricing and support terms as specified by Accela.
(10) Error Classification:
Functional Definitions: For the purposes of error classification, essential or major functions include: data capture features, SLA and alarming features, performance management features and application performance problem resolution features.
Severity Definition
Level 1 Supported Product is non‐functional or seriously affected and there is no reasonable workaround available (e.g. business is halted).
Level 2 Supported Product is affected and there is no workaround available or the workaround is impractical (e.g. Supported Product response is very slow, day to day operations continue but are impacted by the work around).
Level 3 Supported Product is non‐functional however a convenient workaround exists (e.g. non‐critical feature is unavailable or requires additional user intervention).
Level 4 Supported Product works, but there is a minor problem (e.g. incorrect label, or cosmetic defect).
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(11) Target Initial Response Time: Accela will use commercially reasonable efforts to respond to each case within the applicable response time described in the table below:
Target Initial Response Time by Case Severity
Severity Level Target Initial Response Time
1 1 houra
2 4 hoursa
3 8 hoursa
4 24 hoursa
a
Initial response times are 24x7, including weekends and holidays. Severity Level 1 and 2 cases must be submittedvia telephone as described above. Severity Level 1 and 2 target initial response times do not apply to cases submitted electronically.
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Consulting Services Policy Rev. 20210315
Accela, Inc.
Consulting Services Policy
This Consulting Services Policy (the "Policy") is binding upon execution of any order form, agreement, or statement of work (collectively and each an “Order”) between Accela and the entity receiving services (“Customer”) that incorporates the Policies by reference and are in addition to the terms and conditions for Consulting Services set forth in the License Agreement (as defined below). Accela on-premises software or subscription services for Accela software (SaaS) is governed by the license agreement between the Customer and Accela (the “License Agreement”).
Consulting Services Covered
Accela provides a variety of services covered by these policies, including but not limited to consulting, implementation, configuration, and custom training services.
Performance of Services
Accela shall provide the services in accordance with the following processes and policies:
o Accela will use reasonable efforts to meet any performance dates specified in applicable Order, and any such dates are estimates only.
o Accela will select persons and entities to perform the Consulting Services that meet industry standards for the Consulting Services' performance provided to the Customer. o Consulting Services provided by Accela on a "Time and Material" basis are not subject to acceptance criteria by the Customer, unless otherwise set forth in the applicable Order. o Consulting Services are provided eight hours a day, Monday through Friday (Accela recognized holidays excluded) during Accela regular business hours. Hours worked more than eight hours or holidays are generally subject to 2x the Consulting Services hourly or daily fee. o All Consulting Services must be scheduled. Accela will contact the Customer regarding the schedule and notify the Customer (email accepted) of the date for commencement of the Consulting Services. Unless otherwise set forth in the Customer Order, the Customer must contact Accela a minimum of five business days to reschedule the Consulting Services' start date. If the Customer does not contact Accela to reschedule the Consulting Service start date as set forth in the Customer Order or where no reschedule time is stated, a minimum of five (5) business days, the Customer is responsible for any expenses incurred by Accela due to the Customer failure to notify Accela properly. o Accela will observe all reasonable security requirements provided by the Customer to Accela in writing during access to Customer premises.
o Any changes to the Consulting Services' scope may require a signed change order detailing the changes, additional time required, and necessary variations of fees. o Accela owns all intellectual property right in all documents, work product, and other materials prepared by Accela or delivered to the Customer during the course of performing the Consulting Services, including any items identified as such in the Order (collectively, the "Deliverables”). Excluding Accela Software, and subject to the Customer payment of all fees for the Consulting Services, Accela grants the Customer a license to use the Deliverables subject to the terms and restrictions applicable to the License Agreement, as such terms apply to Accela’s software and SaaS services..
To efficiently provide the Customer with Accela Consulting Services, the Customer will:
o Secure all necessary licenses, permits, and comply will all applicable law concerning the Consulting Services before the Consulting Services start date.
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Consulting Services Policy Rev. 20210315
o Provide access to the Customer premises and provide safe office accommodation and other facilities as reasonably requested by Accela to perform the Consulting Services. o Have all equipment ready and available for Accela's access to perform the Consulting Services. o Provide such materials or information as Accela may reasonably request to carry out the Consulting Services in a timely manner and ensure that such Customer materials or information are complete and accurate.
o Respond to Accela request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Accela to perform the Consulting Services in accordance with the requirements of the Order.
o Unless otherwise set forth in the Order, the Customer agrees to reimburse Accela for all actual, documented, and reasonable travel and out-of-pocket expense incurred by Accela in the Consulting Services' performance. Unless otherwise agreed in advance, Accela’s consultants shall travel using economy class flights, reasonable business appropriate accommodations, and standard size car rentals.
Privacy
Any personal information (PII) that the Customer provides to Accela or Accela accesses during the provisioning of the Consulting Services is subject to Accela's Privacy Policy at https://www.accela.com/privacy-policy/.The Customer represents and warrants that the Customer has received all applicable consents from persons whose personal information the Customer provides to Accela or may be accessed by Accela during Accela performance of the Consulting Services.
Supplemental Terms
For any Customer receiving Consulting Services from Accela that has not yet entered into a License Agreement, Customer, commencing on the first day Consulting Services are provided, Customer is granted a thirty (30) day license to use Deliverables (and any other Accela materials provided during such engagement, subject to the applicable License Agreement set forth at accela.com/terms/. At the end of the thirty (30) day license, if Customer has not entered into a new License Agreement referencing Consulting Services, Customer’s license to the Deliverables granted under “Supplemental Terms” of this Policy is terminated. 772
20210212
Accela Availability and Security Policy
Service Availability:
Accela will use commercially reasonable efforts to (a) provide bandwidth sufficient for Customer’s use of the Subscription Services provided hereunder and in an applicable Order Form and (b) operate and manage the Subscription Services with a ninety-nine and nine percent (99.9%) uptime goal (the “Availability SLA”), excluding situations identified as “Excluded” below.
“Excluded" means any outage that results from any of the following:
a. Any maintenance performed by Accela during Accela’s standard maintenance windows. Accela will notify Customer within forty-eight (48) hours of any standard maintenance and within twenty-four (24) hours for other non-standard emergency maintenance (collectively referred to herein as “Scheduled Maintenance”). Scheduled maintenance includes off-business-hours (agency time) deployments of major releases & service packs. Major releases are deployed into an agency's non-production environments well in advance, typically 4 weeks ahead of production, to allow for adequate user acceptancetesting. b. Customer’s information content or application programming, or the acts or omissions of Customer or its agents, including, without limitation, the following:
1. Any mis-configuration by Customer (as determined in Accela’s sole discretion), including, without limitation, configuration errors and bad or unintended usage of the Subscription Services.
2. Force majeure or other circumstancesbeyond Accela’s reasonable controlthat could not be avoided by its exercise of due care.
c. Failures of the carrier networks itself and the network by which Customer connects to the carrier networks any other network unavailability.
d. Any window of time when Customer agrees that Subscription Services availability/unavailability will not be monitored or counted.
e. Interruptions or delays in providing the Subscription Services resulting from telecommunication or Internet service provider failures.
f. Customer’s or any third party’s use of the Subscription Services in an unauthorized or unlawful manner.
Remedies for Excessive Downtime:
In the event the Availability of the Subscription Services falls below the Availability SLA in a given calendar month, Accela will pay Customer a service credit (“Service Credit”) equal to the percentage of the fees set forth in the table below corresponding to the actual Availability of the Subscription Services during the applicable calendar month. Such Service Credit will be issued as a credit against any fees owed by Customer for the next calendar month of the Subscription Period or, if Customer does not owe any additional fees, then Accela will pay Customer the amount of the applicable Service Credit within thirty (30) days after the end of the calendar month in which such credit accrued. Such Service Credit will be in addition to any other remedies available to Customer at law, in equity or under this Agreement.
System availability is measured by the following formula: x = (n - y) *100 / n 773
20210212
Notes:
(1) "x" is the uptime percentage; "n" is the total number of hours in the given calendar month minus scheduled downtime; and "y" is the total number of downtime hours in the given calendar month. (2) Specifically excluded from "n and "y" in this calculation are the exception times on scheduled upgrade and maintenance windows.
Service Availability Percentage of Monthly Service
Fees Credited
>99.9% 0%
95.0% ‐ < 99.9% 5% (max of $280)
90.0%‐ < 95.0% 10% (max of $560)
80.0% ‐ < 90.0% 20% (max $840)
70.0% ‐ < 80.0% 30% (max of $1,120)
60.0% ‐ < 70.0% 40% (max of $1,400)
< < 60% 50% (max of $2,800)
Customer Account Login:
For Accela user interface access, Accela uses TLS 1.2 with AES 256 bit or similar encryption for protection of data in transit, which is supported by most modern browsers. Accela will also restrict applicable administrative user interface access to Customer corporate networks for additional security on written request by Customer.
Accela SaaS Service Delivery:
Accela manages its apps and infrastructures within the industry-leading Microsoft Azure hosting environment, specifically designed and constructed to deliver world- class physical security, power availability, infrastructure flexibility and growth capacity. Accela’s audit and compliance foundation includes SSAE 18 SOC 2 Type II, HIPAA, California Consumer Privacy Act (CCPA), and PCI-DSS (payment adapters). Accela’s partnership with Microsoft delivers multi-layered security in physical datacenters, infrastructure and operations, with adherence to its numerous security certifications. More information can be found at https://azure.microsoft.com/enus/overview/security/. 774
20210723
ACCELA, INC.
DATA STORAGE POLICY
The Licensee’s subscription comes with a limit of 2.5TB data storage for all cloud environments. Data storage includes:
• Transaction data;
• Reference data;
• Configuration data;
• Documents and Report Files;
• Backup copies; and
• Other data stored by Accela on behalf of the customer.
Additional storage can be purchased from Accela in blocks of 500GB, with a price of one thousand dollars ($1,000) per year. When Licensee approaches the 2.5TB limit, it will begin receiving monthly notifications highlighting data usage levels across its environment. Once the 2.5TB limit is reached, a charge of one thousand dollars ($1,000) for an additional 500GB will be automatically added to the Licensee’s subscription renewal.
Data Retention
If the Licensee’s Software as a Service (“SaaS”) subscription expires or is otherwise terminated, Contractor will initiate its data retention processes, including the deletion of licensee data from systems directly controlled by Contractor.
• If a Licensee’s SaaS subscription expires or is otherwise terminated, Contractor will store its customer data, as defined in the master agreement between Licensee and Contractor, for ninety (90) days (the “Retention Period”). During the Retention Period, provide Licensee with a notice indicating its intention to delete its CustomerData. • After the Retention Period, Contractor will, within a commercially reasonable amount of time, disable the account and delete the customer data, including any cached or backup copies.
History and log data will be available to customers in real-time for up to 2 years in production and 1 year in non-production, unless otherwise specified. After 2 years, the history data will be archived and retained for up to 7 years. This data will be provided to the customer upon request.
Frequently Asked Questions
Can Licensee track its storage usage on the Accela Cloud? It's not currently possible to track storage usage in the Civic Platform application. However, Licensee will receive a report detailing its data usage annually, at the time of renewal. Licensee can request this information at any time outside of the renewal period by submitting a support case through Accela Customer Support. When Licensee approaches the storage limit, it will receive monthly notifications particularizing its storage usage.
What will happen if Licensee exceeds its storage limit? If Licensee’s Accela Cloud instance exceeds the storage limit, it will receive notification and a charge of one thousand ($1,000) per 500GB of usage will be billed at the time of subscription 775
20210723
renewal.
Can I increase my storage limit?
Yes. Storage limits can be increased by purchasing additional storage in blocks of 500GB at one thousand dollars ($1,000) per year.
776
CITY COUNCIL AGENDA REPORT
MEETING DATE: June 5, 2024 ITEM #16
SUBJECT:
CONSIDERATION OF RESOLUTION 24-62 AMENDING THE DESIGNATED POSITION
LIST OF THE CITY OF WEST SACRAMENTO CONFLICT OF INTEREST CODE INITIATED OR REQUESTED BY: REPORT COORDINATED OR PREPARED BY:
[ ] Council [X] Staff
[ ] Other
Jennifer Cusmir, City Clerk
City Manager’s Office
ATTACHMENT [X] Yes [ ] No [ ] Information [ ] Direction [X] Action
OBJECTIVE
The objective of this report is to comply with state law regarding the adoption and subsequent amendments of the City’s Conflict of Interest Code.
RECOMMENDED ACTION
Staff respectfully recommends that the City Council adopt Resolution 24-62 amending the Designated Position List of the Conflict of Interest Code.
BACKGROUND
Under the Political Reform Act (“The Act”), all public agencies are required to adopt a Conflict of Interest Code (Code). The Code designates positions required to file Statements of Economic Interest (Form 700) and assigns disclosure categories specifying the types of interests to be reported. The Form 700 is a public document intended to alert public officials and members of the public to the types of financial interests that may create conflicts of interests.
The Code must be reviewed biennially, by October 1 of every even numbered year. Staff has reviewed the current Conflict of Interest Code and made revisions as needed to those employees required to file.
ANALYSIS
The Fair Political Practices Commission dictates that each conflict of interest code be comprised of the following three components:
Terms of the Code: The FPPC recommends that agencies incorporate FPPC Regulation 18730 in Title 2, Division 6 of the California Code of Regulations by reference because the type of information to be in the main body of the code is quite complex and Regulation 18730 contains all of these provisions. The FPPC will amend the regulation to include legislative and regulatory changes that affect the main body of the code; therefore, this component of an agency’s code is automatically in compliance with the Act.
The City’s current Code incorporates Regulation 18730 by reference.
Designated Positions: The Code must specifically list positions that make or participate in making decisions which may foreseeably have a material effect on economic interests. Typically, positions that involve voting on matters, negotiating contracts, or making recommendations on purchases without substantive review must be included in codes.
The City’s designated positions are reflective of FPPC recommendations and include non-employee members of decision-making bodies and all consultants making independent decisions.
Disclosure Categories: A primary purpose of the code is to require disclosure by designated employees of those types of investments, interests in real property, sources of income and business positions that designated positions may affect in their decision-making. For example, the manager of an agency should be assigned full disclosure (all investments, interests in real property, sources of income and business positions) because the manager makes decisions that affect a wide range of interests. Alternatively, a purchasing agent whose decision-making is limited to the purchases of office supplies should only be assigned disclosure of investments, sources of income and business positions in entities that provide office supplies, equipment or merchandise of the type used by the agency.
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Resolution 24-62 – Conflict of Interest Code
June 5, 2024
The current disclosure categories were modeled using the FPPC’s disclosure categories. No amendments have been made to this portion of the Code.
Government Code Section 87303 further states that codes are effective upon approval by an agency’s code reviewing body. The code reviewing body for city agencies is the City Council.
Environmental Considerations
This action is not a project that is subject to CEQA because it is not an activity that may cause either a direct or reasonably foreseeable indirect physical change in the environment. (Pub. Resources Code, § 21065; CEQA Guidelines §§ 15060(c), 15378(a).)
Commission Recommendation
N/A
Strategic Plan Integration
This is a procedural requirement pursuant to state law.
Alternatives
While there is no alternative to adopting a conflict of interest code, the Council may choose to modify disclosure categories, and/or the designated positions required to file Form 700.
Coordination and Review
This report was coordinated with the Human Resources division.
Budget/Cost Impact
N/A
ATTACHMENT
1. Resolution 24-62
2. Conflict of Interest Code (redline)
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Attachment 1
RESOLUTION 24-62
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST SACRAMENTO
AMENDING THE DESIGNATED POSITION LIST (APPENDIX A) OF THE CITY OF WEST
SACRAMENTO CONFLICT OF INTEREST CODE
WHEREAS, Government Code Section 87300 requires that the City of West Sacramento adopt and promulgate a Conflict of Interest Code pursuant to Article 3 of Chapter 7 of Title 9; and WHEREAS, said Code is to be reviewed biennially, by October 1 of every even numbered year, to determine that it is current and accurate; and WHEREAS, this update amends the designated position list (Appendix A).
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of West Sacramento as follows:
1. All previously adopted designated position lists are rescinded.
2. All designated employees, officials, and consultants shall file their Statements of Economic Interest with the City Clerk.
3. California Code of Regulations 18730, as amended, and the list of designated positions (Appendix A), and the list of disclosure categories (Appendix B), incorporated herein by reference, constitutes the City of West Sacramento’s Conflict of Interest Code.
These amendments shall become effective immediately.
PASSED AND ADOPTED this 5th day of June, 2024 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Martha Guerrero, Mayor
ATTEST:
Jennifer Cusmir, City Clerk
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CITY OF WEST SACRAMENTO CONFLICT OF INTEREST CODE
(Regulations of the Fair Political Practices Commission, Title 2, Division 6, California Code of Regulations) § 18730. Provisions of Conflict of Interest Codes.
(a) Incorporation by reference of the terms of this regulation along with the designation of employees and the formulation of disclosure categories in the Appendix referred to below constitute the adoption and promulgation of a conflict of interest code within the meaning of Section 87300 or the amendment of a conflict of interest code within the meaning of Section 87306 if the terms of this regulation are substituted for terms of a conflict of interest code already in effect. A code so amended or adopted and promulgated requires the reporting of reportable items in a manner substantially equivalent to the requirements of article 2 of chapter 7 of the Political Reform Act, Sections 81000, et seq. The requirements of a conflict of interest code are in addition to other requirements of the Political Reform Act, such as the general prohibition against conflicts of interest contained in Section 87100, and to other state or local laws pertaining to conflicts of interest. (b) The terms of a conflict of interest code amended or adopted and promulgated pursuant to this regulation are as follows:
(1) Section 1. Definitions.
The definitions contained in the Political Reform Act of 1974, regulations of the Fair Political Practices Commission (Regulations 18110, et seq. ), and any amendments to the Act or regulations, are incorporated by reference into this conflict of interest code.
(2) Section 2. Designated Employees.
The persons holding positions listed in the Appendix are designated employees. It has been determined that these persons make or participate in the making of decisions which may foreseeably have a material effect on economic interests.
(3) Section 3. Disclosure Categories.
This code does not establish any disclosure obligation for those designated employees who are also specified in Section 87200 if they are designated in this code in that same capacity or if the geographical jurisdiction of this agency is the same as or is wholly included within the jurisdiction in which those persons must report their economic interests pursuant to article 2 of chapter 7 of the Political Reform Act, Sections 87200, et seq.
In addition, this code does not establish any disclosure obligation for any designated employees who are designated in a conflict of interest code for another agency, if all of the following apply:
(A) The geographical jurisdiction of this agency is the same as or is wholly included within the jurisdiction of the other agency;
(B) The disclosure assigned in the code of the other agency is the same as that required under article 2 of chapter 7 of the Political Reform Act, Section 87200; and (C) The filing officer is the same for both agencies.1
Such persons are covered by this code for disqualification purposes only. With respect to all other designated employees, the disclosure categories set forth in the Appendix specify which kinds of economic interests are reportable. Such a designated employee shall disclose in the employee's statement of economic interests those economic interests the employee has which are of the kind described in the disclosure categories to which the employee is assigned in the Appendix. It has been determined that the economic interests set forth in a designated employee's disclosure categories are the kinds of economic interests which the employee foreseeably can affect materially through the conduct of the employee's office. 780
2 (4) Section 4. Statements of Economic Interests: Place of Filing.
The code reviewing body shall instruct all designated employees within its code to file statements of economic interests with the agency or with the code reviewing body, as provided by the code reviewing body in the agency's conflict of interest code.2
(5) Section 5. Statements of Economic Interests: Time of Filing. (A) Initial Statements. All designated employees employed by the agency on the effective date of this code, as originally adopted, promulgated and approved by the code reviewing body, shall file statements within 30 days after the effective date of this code. Thereafter, each person already in a position when it is designated by an amendment to this code shall file an initial statement within 30 days after the effective date of the amendment.
(B) Assuming Office Statements. All persons assuming designated positions after the effective date of this code shall file statements within 30 days after assuming the designated positions, or if subject to State Senate confirmation, 30 days after being nominated or appointed. (C) Annual Statements. All designated employees shall file statements no later than April 1. If a person reports for military service as defined in the Servicemember's Civil Relief Act, the deadline for the annual statement of economic interests is 30 days following the person's return to office, provided the person, or someone authorized to represent the person's interests, notifies the filing officer in writing prior to the applicable filing deadline that the person is subject to that federal statute and is unable to meet the applicable deadline, and provides the filing officer verification of the person's military status. (D) Leaving Office Statements. All persons who leave designated positions shall file statements within 30 days after leaving office.
(5.5) Section 5.5. Statements for Persons Who Resign Prior to Assuming Office.
Any person who resigns within 12 months of initial appointment, or within 30 days of the date of notice provided by the filing officer to file an assuming office statement, is not deemed to have assumed office or left office, provided the person did not make or participate in the making of, or use the person's position to influence any decision and did not receive or become entitled to receive any form of payment as a result of the person's appointment. Such persons shall not file either an assuming or leaving office statement. (A) Any person who resigns a position within 30 days of the date of a notice from the filing officer shall do both of the following:
(1) File a written resignation with the appointing power; and (2) File a written statement with the filing officer declaring under penalty of perjury that during the period between appointment and resignation the person did not make, participate in the making, or use the position to influence any decision of the agency or receive, or become entitled to receive, any form of payment by virtue of being appointed to the position.
(6) Section 6. Contents of and Period Covered by Statements of Economic Interests. (A) Contents of Initial Statements.
Initial statements shall disclose any reportable investments, interests in real property and business positions held on the effective date of the code and income received during the 12 months prior to the effective date of the code.
(B) Contents of Assuming Office Statements.
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3 Assuming office statements shall disclose any reportable investments, interests in real property and business positions held on the date of assuming office or, if subject to State Senate confirmation or appointment, on the date of nomination, and income received during the 12 months prior to the date of assuming office or the date of being appointed or nominated, respectively.
(C) Contents of Annual Statements.
Annual statements shall disclose any reportable investments, interests in real property, income and business positions held or received during the previous calendar year provided, however, that the period covered by an employee's first annual statement shall begin on the effective date of the code or the date of assuming office whichever is later, or for a board or commission member subject to Section 87302.6, the day after the closing date of the most recent statement filed by the member pursuant to Regulation 18754. (D) Contents of Leaving Office Statements.
Leaving office statements shall disclose reportable investments, interests in real property, income and business positions held or received during the period between the closing date of the last statement filed and the date of leaving office.
(7) Section 7. Manner of Reporting.
Statements of economic interests shall be made on forms prescribed by the Fair Political Practices Commission and supplied by the agency, and shall contain the following information:
(A) Investment and Real Property Disclosure.
When an investment or an interest in real property3 is required to be reported,4 the statement shall contain the following:
1. A statement of the nature of the investment or interest;
2. The name of the business entity in which each investment is held, and a general description of the business activity in which the business entity is engaged;
3. The address or other precise location of the real property;
4. A statement whether the fair market value of the investment or interest in real property equals or exceeds $2,000, exceeds $10,000, exceeds $100,000, or exceeds $1,000,000. (B) Personal Income Disclosure. When personal income is required to be reported,5 the statement shall contain:
1. The name and address of each source of income aggregating $500 or more in value, or $50 or more in value if the income was a gift, and a general description of the business activity, if any, of each source;
2. A statement whether the aggregate value of income from each source, or in the case of a loan, the highest amount owed to each source, was $1,000 or less, greater than $1,000, greater than $10,000, or greater than $100,000;
3. A description of the consideration, if any, for which the income was received;
4. In the case of a gift, the name, address and business activity of the donor and any intermediary through which the gift was made; a description of the gift; the amount or value of the gift; and the date on which the gift was received;
5. In the case of a loan, the annual interest rate and the security, if any, given for the loan and the term of 782
4 the loan.
(C) Business Entity Income Disclosure. When income of a business entity, including income of a sole proprietorship, is required to be reported,6 the statement shall contain:
1. The name, address, and a general description of the business activity of the business entity;
2. The name of every person from whom the business entity received payments if the filer's pro rata share of gross receipts from such person was equal to or greater than $10,000. (D) Business Position Disclosure. When business positions are required to be reported, a designated employee shall list the name and address of each business entity in which the employee is a director, officer, partner, trustee, employee, or in which the employee holds any position of management, a description of the business activity in which the business entity is engaged, and the designated employee's position with the business entity.
(E) Acquisition or Disposal During Reporting Period. In the case of an annual or leaving office statement, if an investment or an interest in real property was partially or wholly acquired or disposed of during the period covered by the statement, the statement shall contain the date of acquisition or disposal. (8) Section 8. Prohibition on Receipt of Honoraria.
(A) No member of a state board or commission, and no designated employee of a state or local government agency, shall accept any honorarium from any source, if the member or employee would be required to report the receipt of income or gifts from that source on the member's or employee's statement of economic interests. (B) This section shall not apply to any part-time member of the governing board of any public institution of higher education, unless the member is also an elected official. (C) Subdivisions (a), (b), and (c) of Section 89501 shall apply to the prohibitions in this section. (D) This section shall not limit or prohibit payments, advances, or reimbursements for travel and related lodging and subsistence authorized by Section 89506.
(8.1) Section 8.1. Prohibition on Receipt of Gifts in Excess of $520.
No member of a state board or commission, and no designated employee of a state or local government agency, shall accept gifts with a total value of more than $520 in a calendar year from any single source, if the member or employee would be required to report the receipt of income or gifts from that source on the member's or employee's statement of economic interests.
(A) This section shall not apply to any part-time member of the governing board of any public institution of higher education, unless the member is also an elected official. (B) Subdivisions (e), (f), and (g) of Section 89503 shall apply to the prohibitions in this section. (8.2) Section 8.2. Loans to Public Officials.
(A) No elected officer of a state or local government agency shall, from the date of the election to office through the date that the officer vacates office, receive a personal loan from any officer, employee, member, or consultant of the state or local government agency in which the elected officer holds office or over which the elected officer's agency has direction and control.
(B) No public official who is exempt from the state civil service system pursuant to subdivisions (c), (d), (e), (f), and (g) of Section 4 of Article VII of the Constitution shall, while he or she holds office, receive a personal loan from any officer, employee, member, or consultant of the state or local government agency in which the public official holds office or over which the public official's agency has direction and control. This subdivision 783
5 shall not apply to loans made to a public official whose duties are solely secretarial, clerical, or manual. (C) No elected officer of a state or local government agency shall, from the date of the election to office through the date that the officer vacates office, receive a personal loan from any person who has a contract with the state or local government agency to which that elected officer has been elected or over which that elected officer's agency has direction and control. This subdivision shall not apply to loans made by banks or other financial institutions or to any indebtedness created as part of a retail installment or credit card transaction, if the loan is made or the indebtedness created in the lender's regular course of business on terms available to members of the public without regard to the elected officer's official status. (D) No public official who is exempt from the state civil service system pursuant to subdivisions (c), (d), (e), (f), and (g) of Section 4 of Article VII of the Constitution shall, while the official holds office, receive a personal loan from any person who has a contract with the state or local government agency to which that elected officer has been elected or over which that elected officer's agency has direction and control. This subdivision shall not apply to loans made by banks or other financial institutions or to any indebtedness created as part of a retail installment or credit card transaction, if the loan is made or the indebtedness created in the lender's regular course of business on terms available to members of the public without regard to the elected officer's official status. This subdivision shall not apply to loans made to a public official whose duties are solely secretarial, clerical, or manual.
(E) This section shall not apply to the following:
1. Loans made to the campaign committee of an elected officer or candidate for elective office.
2. Loans made by a public official's spouse, child, parent, grandparent, grandchild, brother, sister, parentin-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the spouse of any such persons, provided that the person making the loan is not acting as an agent or intermediary for any person not otherwise exempted under this section.
3. Loans from a person which, in the aggregate, do not exceed $500 at any given time.
4. Loans made, or offered in writing, before January 1, 1998. (8.3) Section 8.3. Loan Terms.
(A) Except as set forth in subdivision (B), no elected officer of a state or local government agency shall, from the date of the officer's election to office through the date the officer vacates office, receive a personal loan of $500 or more, except when the loan is in writing and clearly states the terms of the loan, including the parties to the loan agreement, date of the loan, amount of the loan, term of the loan, date or dates when payments shall be due on the loan and the amount of the payments, and the rate of interest paid on the loan. (B) This section shall not apply to the following types of loans:
1. Loans made to the campaign committee of the elected officer.
2. Loans made to the elected officer by his or her spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the spouse of any such person, provided that the person making the loan is not acting as an agent or intermediary for any person not otherwise exempted under this section.
3. Loans made, or offered in writing, before January 1, 1998. (C) Nothing in this section shall exempt any person from any other provision of Title 9 of the Government Code.
(8.4) Section 8.4. Personal Loans.
(A) Except as set forth in subdivision (B), a personal loan received by any designated employee shall 784
6 become a gift to the designated employee for the purposes of this section in the following circumstances:
1. If the loan has a defined date or dates for repayment, when the statute of limitations for filing an action for default has expired.
2. If the loan has no defined date or dates for repayment, when one year has elapsed from the later of the following:
a. The date the loan was made.
b. The date the last payment of $100 or more was made on the loan. c. The date upon which the debtor has made payments on the loan aggregating to less than $250 during the previous 12 months.
(B) This section shall not apply to the following types of loans:
1. A loan made to the campaign committee of an elected officer or a candidate for elective office.
2. A loan that would otherwise not be a gift as defined in this title.
3. A loan that would otherwise be a gift as set forth under subdivision (A), but on which the creditor has taken reasonable action to collect the balance due.
4. A loan that would otherwise be a gift as set forth under subdivision (A), but on which the creditor, based on reasonable business considerations, has not undertaken collection action. Except in a criminal action, a creditor who claims that a loan is not a gift on the basis of this paragraph has the burden of proving that the decision for not taking collection action was based on reasonable business considerations.
5. A loan made to a debtor who has filed for bankruptcy and the loan is ultimately discharged in bankruptcy. (C) Nothing in this section shall exempt any person from any other provisions of Title 9 of the Government Code.
(9) Section 9. Disqualification.
No designated employee shall make, participate in making, or in any way attempt to use the employee's official position to influence the making of any governmental decision which the employee knows or has reason to know will have a reasonably foreseeable material financial effect, distinguishable from its effect on the public generally, on the official or a member of the official's immediate family or on:
(A) Any business entity in which the designated employee has a direct or indirect investment worth $2,000 or more;
(B) Any real property in which the designated employee has a direct or indirect interest worth $2,000 or more; (C) Any source of income, other than gifts and other than loans by a commercial lending institution in the regular course of business on terms available to the public without regard to official status, aggregating $500 or more in value provided to, received by or promised to the designated employee within 12 months prior to the time when the decision is made;
(D) Any business entity in which the designated employee is a director, officer, partner, trustee, employee, or holds any position of management; or
(E) Any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating $500 or more provided to, received by, or promised to the designated employee within 12 months prior to the time when the decision is made.
785
7 (9.3) Section 9.3. Legally Required Participation.
No designated employee shall be prevented from making or participating in the making of any decision to the extent the employee's participation is legally required for the decision to be made. The fact that the vote of a designated employee who is on a voting body is needed to break a tie does not make the employees' participation legally required for purposes of this section. (9.5) Section 9.5. Disqualification of State Officers and Employees.
In addition to the general disqualification provisions of section 9, no state administrative official shall make, participate in making, or use the official's position to influence any governmental decision directly relating to any contract where the state administrative official knows or has reason to know that any party to the contract is a person with whom the state administrative official, or any member of the official's immediate family has, within 12 months prior to the time when the official action is to be taken:
(A) Engaged in a business transaction or transactions on terms not available to members of the public, regarding any investment or interest in real property; or (B) Engaged in a business transaction or transactions on terms not available to members of the public regarding the rendering of goods or services totaling in value $1,000 or more. (10) Section 10. Disclosure of Disqualifying Interest.
When a designated employee determines that the employee should not make a governmental decision because the employee has a disqualifying interest in it, the determination not to act may be accompanied by disclosure of the disqualifying interest.
(11) Section 11. Assistance of the Commission and Counsel.
Any designated employee who is unsure of the duties under this code may request assistance from the Fair Political Practices Commission pursuant to Section 83114 and Regulations 18329 and 18329.5 or from the attorney for the employee's agency, provided that nothing in this section requires the attorney for the agency to issue any formal or informal opinion.
(12) Section 12. Violations.
This code has the force and effect of law. Designated employees violating any provision of this code are subject to the administrative, criminal and civil sanctions provided in the Political Reform Act, Sections 81000- 91014. In addition, a decision in relation to which a violation of the disqualification provisions of this code or of Section 87100 or 87450 has occurred may be set aside as void pursuant to Section 91003. 1 Designated employees who are required to file statements of economic interests under any other agency's conflict of interest code, or under article 2 for a different jurisdiction, may expand their statement of economic interests to cover reportable interests in both jurisdictions, and file copies of this expanded statement with both entities in lieu of filing separate and distinct statements, provided that each copy of such expanded statement filed in place of an original is signed and verified by the designated employee as if it were an original. See Section 81004.
2 See Section 81010 and Regulation 18115 for the duties of filing officers and persons in agencies who make and retain copies of statements and forward the originals to the filing officer. 3 For the purpose of disclosure only (not disqualification), an interest in real property does not include the principal residence of the filer.
786
8 4 Investments and interests in real property which have a fair market value of less than $2,000 are not investments and interests in real property within the meaning of the Political Reform Act. However, investments or interests in real property of an individual include those held by the individual's spouse and dependent children as well as a pro rata share of any investment or interest in real property of any business entity or trust in which the individual, spouse and dependent children own, in the aggregate, a direct, indirect or beneficial interest of 10 percent or greater.
5A designated employee's income includes the employee's community property interest in the income of the employee's spouse but does not include salary or reimbursement for expenses received from a state, local or federal government agency.
6 Income of a business entity is reportable if the direct, indirect or beneficial interest of the filer and the filer's spouse in the business entity aggregates a 10 percent or greater nterestinterest. In addition, the disclosure of persons who are clients or customers of a business entity is required only if the clients or customers are within one of the disclosure categories of the filer.
Note: Authority cited: Section 83112, Government Code. Reference: Sections 87103(e), 87300- 87302, 89501, 89502 and 89503, Government Code.
HISTORY
1. New section filed 4-2-80 as an emergency; effective upon filing (Register 80, No. 14).
Certificate of Compliance included.
2. Editorial correction (Register 80, No. 29).
3. Amendment of subsection (b) filed 1-9-81; effective thirtieth day thereafter (Register 81, No. 2).
4. Amendment of subsection (b)(7)(B)1. filed 1-26-83; effective thirtieth day thereafter (Register 83, No. 5).
5. Amendment of subsection (b)(7)(A) filed 11-10-83; effective thirtieth day thereafter (Register 83, No. 46).
6. Amendment filed 4-13-87; operative 5-13-87 (Register 87, No. 16).
7. Amendment of subsection (b) filed 10-21-88; operative 11-20-88 (Register 88, No. 46).
8. Amendment of subsections (b)(8)(A) and (b)(8)(B) and numerous editorial changes filed 8-28- 90; operative 9-27-90 (Reg. 90, No. 42).
9. Amendment of subsections (b)(3), (b)(8) and renumbering of following subsections and amendment of Note filed 8-7-92; operative 9-7-92 (Register 92, No. 32).
10. Amendment of subsection (b)(5.5) and new subsections (b)(5.5)(A)-(A)(2) filed 2-4-93; operative 2-4-93 (Register 93, No. 6).
11. Change without regulatory effect adopting Conflict of Interest Code for California Mental Health Planning Council filed 11-22-93 pursuant to title 1, section 100, California Code of Regulations (Register 93, No. 48).
Approved by Fair Political Practices Commission 9-21-93.
12. Change without regulatory effect redesignating Conflict of Interest Code for California Mental Health Planning Council as chapter 62, section 55100 filed 1-4-94 pursuant to title 1, section 100, California Code of Regulations (Register 94, No. 1).
13. Editorial correction adding History 11 and 12 and deleting duplicate section number (Register 94, No. 17).
787
9 14. Amendment of subsection (b)(8), designation of subsection (b)(8)(A), new subsection (b)(8)(B), and amendment of subsections (b)(8.1)-(b)(8.1)(B), (b)(9)(E) and Note filed 3-14-95; operative 3-14-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 11).
15. Editorial correction inserting inadvertently omitted language in footnote 4 (Register 96, No. 13).
16. Amendment of subsections (b)(8)(A)-(B) and (b)(8.1)(A), repealer of subsection (b)(8.1)(B), and amendment of subsection (b)(12) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43).
17. Amendment of subsections (b)(8.1) and (9)(E) filed 4-9-97; operative 4-9-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15).
18. Amendment of subsections (b)(7)(B)5., new subsections (b)(8.2)-(b)(8.4)(C) and amendment of Note filed 8-24-98; operative 8-24-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 35).
19. Editorial correction of subsection (a) (Register 98, No. 47).
20. Amendment of subsections (b)(8.1), (b)(8.1)(A) and (b)(9)(E) filed 5-11-99; operative 5-11- 99 pursuant to Government Code section 11343.4(d) (Register 99, No. 20).
21. Amendment of subsections (b)(8.1)-(b)(8.1)(A) and (b)(9)(E) filed 12-6-2000; operative 1-1- 2001 pursuant to the 1974 version of Government Code section 11380.2 and Title 2, California Code of Regulations, section 18312(d) and (e) (Register 2000, No. 49).
22. Amendment of subsections (b)(3) and (b)(10) filed 1-10-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 2).
23. Amendment of subsections (b)(7)(A)4., (b)(7)(B)1.-2., (b)(8.2)(E)3., (b)(9)(A)-(C) and footnote 4. filed 2- 13-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 7).
24. Amendment of subsections (b)(8.1)-(b)(8.1)(A) filed 1-16-2003; operative 1-1-2003. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2003, No. 3).
25. Editorial correction of History 24 (Register 2003, No. 12).
26. Editorial correction removing extraneous phrase in subsection (b)(9.5)(B) (Register 2004, No. 33).
27. Amendment of subsections (b)(2)-(3), (b)(3)(C), (b)(6)(C), (b)(8.1)-(b)(8.1)(A), (b)(9)(E) and (b)(11)-(12) filed 1-4-2005; operative 1-1-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 1).
28. Amendment of subsection (b)(7)(A)4. filed 10-11-2005; operative 11-10-2005 (Register 2005, No. 41).
29. Amendment of subsections (a), (b)(1), (b)(3), (b)(8.1), (b)(8.1)(A) and (b)(9)(E) filed 12-18- 2006; operative 1-1-2007. Submitted to OAL pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51).
30. Amendment of subsections (b)(8.1)-(b)(8.1)(A) and (b)(9)(E) filed 10-31-2008; operative 11- 30-2008. 788
10 Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2008, No. 44).
31. Amendment of section heading and section filed 11-15-2010; operative 12-15-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 47).
32. Amendment of section heading and subsections (a)-(b)(1), (b)(3)-(4), (b)(5)(C), (b)(8.1)- (b)(8.1)(A) and (b)(9)(E) and amendment of footnote 1 filed 1-8-2013; operative 2-7-2013. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2013, No. 2).
33. Amendment of subsections (b)(8.1)-(b)(8.1)(A), (b)(8.2)(E)3. and (b)(9)(E) filed 12-15-2014; operative 1-1-2015 pursuant to section 18312(e)(1)(A), title 2, California Code of Regulations. Submitted to OAL for filing and printing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2014, No. 51).
34. Redesignation of portions of subsection (b)(8)(A) as new subsections (b)(8)(B)-(D), amendment of subsections (b)(8.1)-(b)(8.1)(A), redesignation of portions of subsection (b)(8.1)(A) as new subsections (b)(8.1)(B)-(C) and amendment of subsection (b)(9)(E) filed 12- 1-2016; operative 12-31-2016 pursuant to Cal.
Code Regs. tit. 2, section 18312(e). Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2016, No. 49).
35. Amendment of subsections (b)(8.1)-(b)(8.1)(A) and (b)(9)(E) filed 12-12-2018; operative 1- 11-2019 pursuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing and printing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2018, No. 50).
36. Amendment of subsections (b)(8.1)-(8.1)(A) filed 12-23-2020; operative 1-1-2021 pursuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing pursuant to Fair Political Practices Commission v.
Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2020, No. 52).
37. Amendment of subsections (b)(3)(C), (b)(5)(C), (b)(5.5), (b)(5.5)(A)(2), (b)(7)(D), (b)(8)(A),(b)(8.1)(A), (b)(8.2)(A), (b)(8.2)(C)-(D), (b)(8.3)(A), (b)(9), (b)(9.3), (b)(9.5), (b)(10) and (b)(11) and footnote 5 filed 5-12- 2021; operative 6-11-2021 pursuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2021, No. 20).
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APPENDIX A
CITY OF WEST SACRAMENTO
CONFLICT OF INTEREST CODE
APPENDIX OF DESIGNATED POSITIONS AND DISCLOSURE CATEGORIES I. DESIGNATED POSITIONS: The positions listed below are designated positions and the individual occupying each position is deemed to make, or participate in the making of, decisions which may have a material effect on a financial interest of that individual. The individuals occupying the designated positions shall disclose their economic interests in accordance with the corresponding disclosure categories, defined in Section II below.
Designated Position Disclosure Categories
Administrative Analyst I/II/Senior ................................................................................................ 1 Assistant City Manager ............................................................................................................... 1 Associate Planner/Senior ........................................................................................................... 1 Associate Transportation Planner/Senior .................................................................................... 1 Battalion Chief ............................................................................................................................ 1 Budget Manager ......................................................................................................................... 1 Building Inspector I/II/Senior ....................................................................................................... 1 Business Manager ...................................................................................................................... 1 Capital Improvement Manager .................................................................................................... 1 Chief Building Official .................................................................................................................. 1 City Attorney ............................................................................................................................... 4 City Clerk .................................................................................................................................... 1 City Manager .............................................................................................................................. 4 Code Enforcement Manager ....................................................................................................... 1 Community Investment Manager ................................................................................................ 1 Construction Administrative Specialist ........................................................................................ 2 Construction Facilities Development Manager ............................................................................ 1 Consultant 1 ................................................................................................................................................................................................................. 1 Deputy City Manager/Chief Innovation Officer Director of Innovation and Technology ................ 1 Deputy Fire Chief ........................................................................................................................ 1 Deputy Police Chief .................................................................................................................... 1 Director of Community Development .......................................................................................... 1 Director of Economic Development & Housing ........................................................................... 1 Director of Finance & Technology ............................................................................................... 1 Director of Parks & Recreation.................................................................................................... 1 Director of Public Works O & M .................................................................................................. 1 Drafting Services Manager ......................................................................................................... 1 Economic Development Manager ............................................................................................... 1 Environmental Services & Sustainability Manager ....................................................................... 3 Equipment & Facilities Superintendent ....................................................................................... 1 790
Finance Analyst/Senior ............................................................................................................... 1 Finance Manager ........................................................................................................................ 1 Finance Supervisor ..................................................................................................................... 1 Fire Battalion Chief ..................................................................................................................... 1 Fire Chief .................................................................................................................................... 1 Fire Marshal ............................................................................................................................... 1 Flood General Manager .............................................................................................................. 1 Flood Protection Planner ............................................................................................................ 1 Hearing Officer ........................................................................................................................... 1 Housing Manager ....................................................................................................................... 1 Human Resources Manager ....................................................................................................... 1 Information Technology Manager ............................................................................................... 3 Member of the Board of Appeals ................................................................................................ 1 Member of the City Council/Financing Authority/Successor Agency ........................................... 4 Member of the Planning Commission ......................................................................................... 4 Permit Services Manager ............................................................................................................ 1 Parks Operations Superintendent ............................................................................................... 3 Plans Examiner I/II/Senior .......................................................................................................... 1 Police Chief ................................................................................................................................ 1 Police Lieutenant ........................................................................................................................ 1 Police Services Coordinator ........................................................................................................ 3 Port General Manager ................................................................................................................ 1 Principal Engineer ...................................................................................................................... 1 Principal Planner ........................................................................................................................ 1 Program Manager/Senior ........................................................................................................... 1 Project Manager I/II/Senior ......................................................................................................... 2 Public Information Officer ........................................................................................................... 1 Purchasing Manager................................................................................................................... 1 Recreation Manager ................................................................................................................... 2 Senior Analyst ............................................................................................................................ 1 Senior Civil Engineer .................................................................................................................. 1 Senior Finance Analyst ............................................................................................................... 1 Senior Planner ............................................................................................................................ 1 Senior Transportation Planner .................................................................................................... 1 Supervising Civil Engineer .......................................................................................................... 1 Supervising Transportation Planner ............................................................................................ 1 Utilities Maintenance Superintendent .......................................................................................... 3 Water Treatment Plant Superintendent ....................................................................................... 3 791
1 Consultants shall disclose pursuant to the broadest disclosure category in the code subject to the following limitation:
The City Manager may determine in writing that a particular Consultant, although a “designated position,” is hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirements in this section. Such written determination shall include a description of the Consultant’s duties and, based upon that description, a statement of the extent of disclosure requirements. The City Manager’s determination is public record and shall be retained for public inspection in the same manner as this Conflict of Interest Code.
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APPENDIX B
DISCLOSURE CATEGORIES
Category 1 (Full Disclosure):
All interest in real property in the City of West Sacramento, or the city’s sphere of influence, including property located within a two-mile radius of any property owned or used by the City of West Sacramento or any of its departments; as well as investments, business positions and sources of income, including gifts, loans and travel payments.
Category 2 (Full Disclosure Excluding Real Property):
All investments, business positions and sources of income, including gifts, loans, and travel payments.
Category 3 (General Contracting/Permitting/Licensing Category):
Investments, business positions, and sources of income of the type which provide services, supplies, materials, machinery or equipment of the type utilized by the official, consultant, or employee’s department or division.
Category 4 (GC 87200 Filers):
All officials and employees in this category shall disclose their economic interests as required pursuant to Government Code sections 87200, et seq.
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CITY COUNCIL AGENDA REPORT
MEETING DATE: June 5, 2024 ITEM #17
SUBJECT:
CONSIDERATION OF RESOLUTION 24-55 CALLING AN ELECTION AND REQUESTING
THAT THE BOARD OF SUPERVISORS PERMIT THE COUNTY CLERK TO RENDER
SPECIFIED SERVICES TO THE CITY RELATING TO THE CONDUCT OF A MUNICIPAL ELECTION ON NOVEMBER 5, 2024
INITIATED OR REQUESTED BY: REPORT COORDINATED OR PREPARED BY:
[X] Council [ ] Staff
[ ] Other
Jennifer Cusmir, City Clerk
City Manager’s Office
ATTACHMENT [X] Yes [ ] No [ ] Information [ ] Direction [X] Action
OBJECTIVE
The objective of this report is to call an election for the purpose of electing two council members, for District 1 and District 2, and a mayor, and to consolidate the election with the statewide general election on November 5, 2024.
RECOMMENDED ACTION
Staff respectfully recommends that the City Council adopt Resolution 24-55 calling an election and requesting that the Board of Supervisors permit the County Clerk to render specified services to the City relating to the conduct of a Municipal Election to be held on November 5, 2024 in consolidation with the General Election.
BACKGROUND
If the City wishes to have the County Clerk conduct the election, the Council must request the Board of Supervisors, by resolution, to consolidate the Municipal and General Elections and allow the County Clerk to conduct the election. The County Clerk has requested that the resolution requesting consolidation be received no later than June 18, 2024. The candidate filing period begins July 15, 2024.
ANALYSIS
The California Elections Code and Government Code specify certain requirements and options available to a City for the conduct of an election. The steps outlined in this report are required to allow the County Clerk to conduct the election for the City. Resolution 24-55 calls the election, specifies the offices to be filled, requests consolidation with the General Election on November 5, 2024 and outlines election services to be provided by the County Clerk to the City. The latter includes publication of required legal notices, ballot printing and mailing, absentee ballot distribution and receipt, precinct worker recruitment and training and election-day activities including vote tabulation. The resolution also states that each candidate is to pay $400 for the publication of the optional Candidate’s Statement. If the candidate chooses also to have the statement in Russian and/or Spanish, the candidate will be charged in full in accordance with fees established by Yolo County Elections. The word count for the statements is 400. The City Clerk is the filing officer for city council and mayoral candidate nomination papers, FPPC filings, as well as issues concerning any ballot measure. The City Clerk will also coordinate and oversee daily election activities within the City, including handling phone requests for polling locations and tracking tabulation of the votes after the polls close.
Environmental Considerations
N/A
Commission Recommendation
N/A
Strategic Plan Integration
The recommended action furthers the City’s goals of providing quality city services.
Coordination and Review
This report was coordinated with the City Attorney.
Budget/Cost Impact
The election cost is included in the 2024-2025 budget.
ATTACHMENT
1. Resolution 24-55 794
Attachment 1
RESOLUTION 24-55
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST SACRAMENTO CALLING A MUNICIPAL ELECTION ON NOVEMBER 5, 2024 AND REQUESTING THAT YOLO
COUNTY ELECTIONS PROVIDE ELECTION SERVICES
WHEREAS, under provisions of the laws relating to general law cities in the State of California, a General Municipal Election shall be held on November 5, 2024; and WHEREAS, pursuant to the requirements of the laws of the State relating to General Law Cities, there is called and ordered to be held in the City of West Sacramento, CA, on Tuesday, November 5, 2024, a General Municipal Election for the purpose of electing two members of the City Council, one from District 1 and one from District 2 for the full term of four years, and one Mayor for a term of four years; and
WHEREAS, the Elections Division of the County Assessor/Clerk-Recorder/Elections Department for Yolo County (the “Elections Division”) has traditionally provided the City of West Sacramento with services necessary to conduct a municipal election and has the necessary expertise to provide these services; and
WHEREAS, the Yolo County Board of Supervisors is hereby requested to permit the County Clerk to render the election services specified herein; and WHEREAS, the City has traditionally consolidated its election with the County and requests to consolidate with the Statewide General Election on November 5, 2024.
NOW, THEREFORE, BE IT RESOLVED that the City Council for the City of West Sacramento does hereby resolve, declare, determine, and order as follows:
Section 1. The City Council of the City of West Sacramento respectfully requests that the Yolo County Board of Supervisors consolidate the Municipal Election with the General Election, to authorize the County Clerk to provide the services specified in Exhibit “A” and Section 2. Pursuant to the requirements of the law, there is called and ordered to be held in the City of West Sacramento on Tuesday, November 5, 2024, a general municipal election for the purpose of electing two members of the City Council, one from District 1 and one from District 2, for terms that expire in November of 2028, and one Mayor for a term that expires in November 2028.
Section 3. The Yolo County Board of Supervisors is hereby requested to:
1. Authorize the Elections Division to provide all necessary election services including:
a. Providing election supplies necessary for an all-mail ballot election. b. Publish all legal notices pertaining to the election and provide a copy of affidavit of publication to City.
c. Issue nomination papers and verify nomination signatures. d. Verify all ballot envelope signatures.
e. Provide one set of voter lists at the close of registration. f. Provide proof samples of all City ballot materials in a timely manner to allow for any changes prior to the final printing deadline.
g. Print and mail county voter information guides.
h. Print, process, and mail official ballots.
i. Provide services for collecting and counting ballots. j. Provide Statement of Vote pursuant to state law.
k. Provide any other services reasonably required to conduct this special municipal election as a consolidated election.
795
Attachment 1
Section 4. The City Council hereby authorizes reimbursement to Yolo County for services rendered related to this Special Election.
Section 5. Each candidate is to pay $400 for the publication of the optional Candidate's Statement, pursuant to Election Code section 13306 and the Book of Fees. If the candidate elects to have Spanish and/or Russian translation of his/her candidate statement, the candidate will be charged in full in accordance with fees established by Yolo County Elections. The limitation of the number of words that a candidate may use in his or her Candidate Statement is 400 words.
PASSED AND ADOPTED this 5th day of June 2024 by the following vote:
AYES:
NOES:
ABSENT:
Martha Guerrero, Mayor
ATTEST:
Jennifer Cusmir, City Clerk
796
Exhibit A
Exhibit “A” of Resolution 24-55
Services to be rendered by the Yolo County Clerk to the City of West Sacramento for the November 5, 2024 General Municipal Election:
a. The publication of all required legal notices pertaining to the election and provide copy of affidavit of the publication to the City. b. Verify nomination signatures.
c. Provide copies of all precinct maps and additional maps the City requires. d. Provide one set of voter lists (precinct/street order) at the close of registration.
e. Recruiting and training for precinct workers and securing polling places. f. Provide printer proof samples of all city ballot material in a timely manner to allow for any changes prior to the final printing deadline. g. Encoding the ballots for computer count, providing a test run, appointing an Accuracy and Logistics Board to certify computer programming for ballot tabulation, tabulating unofficial election results.
h. Verification of absent voter ballots application signatures, and processing absent voter pamphlets.
i. Labeling sample ballot pamphlets.
j. Providing election supplies, including voting booths, tables, chairs, voting devices, flags, and other election-related items.
k. Provide Statement of Vote pursuant to state law.
l. Any other services reasonably required to conduct this election.
West Sacramento City Clerk, as the Chief Elections Official for the City of West Sacramento, will conduct all aspects of election not specified above, including but not limited to:
a. Issue and file candidates’ nomination papers.
b. Proof sample/official ballots.
c. Prepare resolution canvassing voted adopted by Council. d. Serve as filing officer for all FPPC statements for city candidates and ballot measure committees.
e. Other services as required.
797
CITY COUNCIL AGENDA REPORT
MEETING DATE: June 5, 2024 ITEM #18
SUBJECT:
PUBLIC HEARING TO CONSIDER RESOLUTION 24-56 ADOPTING THE 2024-2025
ANNUAL ACTION PLAN FOR THE COMMUNITY DEVELOPMENT BLOCK GRANT
PROGRAM
INITIATED OR REQUESTED BY: REPORT COORDINATED OR PREPARED BY:
[ ] Council [ X ] Staff
[ ] Other
Isaah, Alford, Community Investment Planner
Economic Development and Housing
ATTACHMENT [ X ] Yes [ ] No [ ] Information [ ] Direction [ X ] Action
OBJECTIVE
The objective of this report is to provide the Council with information necessary to conduct a public hearing to receive comments and adopt the 2024-2025 Annual Action Plan for the use of federal Community Development Block Grant (CDBG) funding.
RECOMMENDED ACTION
Staff respectfully recommends that the City Council conduct a public hearing and, upon closing the hearing, approve Resolution 24-56 (Attachment 1) adopting the 2024-2025 Annual Action Plan (Attachment 2) for the use of federal CDBG funding.
BACKGROUND
The City of West Sacramento (City) became eligible to receive federal CDBG Entitlement funding from the U.S.
Department of Housing and Urban Development (HUD) in fiscal year 2016/2017. In accordance with HUD regulations, the City developed a five-year Consolidated Plan examining the needs of low-income persons and neighborhoods and setting goals for the use of CDBG funding. The current HUD Income Limits for Yolo County can be found in Attachment 3. The consolidated planning process honors community connections established during previous outreach efforts and builds upon the community concerns voiced during the citizen participation process. The City’s 2021-2025 Consolidated Plan was adopted by the City Council on April 21, 2021, and subsequently approved by HUD. The Consolidated Plan identified six goals to be addressed within the fiveyear period:
Consolidated Plan Goal #1: Address the supportive services needs of persons experiencing homelessness and those at risk of homelessness;
Consolidated Plan Goal #2: Create low barrier housing opportunities for persons experiencing homelessness and extremely low-income households;
Consolidated Plan Goal #3: Construct infrastructure improvements in low-income neighborhoods; Consolidated Plan Goal #4: Provide Fair Housing services for low-and moderate-income residents; Consolidated Plan Goal #5: Support small business success; and Consolidated Plan Goal #6: Preservation of Affordable housing stock.
No more than 15% of the annual allocation may be spent on public services. Additionally, the City is limited to no more than 20% each year for general program administration such as required reporting to HUD, addressing fair housing issues, conducting environmental review of CDBG funded projects, or for planning activities such as developing the Consolidated Plan, Annual Action Plan, and required fair housing studies.
ANALYSIS
HUD encourages jurisdictions to focus CDBG funds on activities that will provide a significant impact, rather than spreading funds around in a “scatter shot” manner. The impact of CDBG can be further enhanced by using funds to leverage other local, State or federal sources. The federal CDBG program is a flexible funding source which allows Entitlement jurisdictions to use the money for a wide range of activities including, but not limited to:
Acquisition and/or rehabilitation of affordable housing (new housing construction is not allowed). Acquisition, construction or rehabilitation of public facilities serving low-income persons (e.g. parks, youth centers, health clinics or homeless shelters).
Construction or rehabilitation of public infrastructure that serves low-income residential units or neighborhoods (e.g. sewer lines or street improvements). Public services are limited to low-income residents (e.g. homeless programs, youth programs, services 798
CDBG Annual Action Plan
June 5, 2024