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HomeMy WebLinkAbout2005-06-08 e-packet AGENDA REDEVELOPMENT AGENCY CITY OF SOUTH SAN FRANCISCO REGULAR MEETING MUNICIPAL SERVICE BUILDING COMMUNITY ROOM WEDNESDAY, JUNE 8, 2005 7:00 P.M. PEOPLE OF SOUTH SAN FRANCISCO You are invited to offer your suggestions. In order that you may know our method of conducting Agency business, we proceed as follows: The regular meetings of the Redevelopment Agency are held on the second and fourth Wednesday of each month at 7:00 p.m. in the Municipal Services Building, Community Room, 33 Arroyo Drive, South San Francisco, California. Public Comment: For those wishing to address the Board on any Agenda or non-Agendized item, please complete a Speaker Card located at the entrance to the Community Room and submit it to the Clerk. Please be sure to indicate the Agenda Item # you wish to address or the topic of your public comment. California law prevents Redevelopment Agency from taking action on any item not on the Agenda (except in emergency circumstances). Your question or problem may be referred to staff for investigation and/or action where appropriate or the matter may be placed on a future Agenda for more comprehensive action or a report. When your name is called, please come to the podium, state your name and address for the Minutes. COMMENTS ARE LIMITED TO THREE (3) MINUTES PER SPEAKER. Thank you for your cooperation. The Clerk will read successively the items of business appearing on the Agenda. As she completes reading an item, it will be ready for Board action. RAYMOND L. GREEN Chair JOSEPH A. FERNEKES Vice Chair RICHARD A. GARBARlNO, SR. Boardmember PEDRO GONZALEZ Boardmember KARYL MATSUMOTO Boardmember RICHARD BATTAGLIA Investment Officer SYLVIA M. PAYNE Clerk BARRY M. NAGEL Executive Director STEVEN T. MATTAS Counsel PLEASE SILENCE CELL PHONES AND PAGERS HEARTNG ASSISTANCE EQUIPMENT lS A v AILABLE FOR USE BY THE HEARTNG-IMPAIRED AT REDEVELOPMENT AGENCY MEETINGS CALL TO ORDER ROLL CALL AGENDA REVIEW PUBLIC COMMENTS CONSENT CALENDAR 1. Motion to approve the minutes of May 25, 2005 2. Motion to confirm expense claims of June 8, 2005 3. Resolution authorizing the use of tax increment revenues for public improvements and the execution of a settlement and release agreement with the County of San Mateo ADJOURNMENT REGULAR REDEVELOPMENT AGENCY MEETING AGENDA JUNE 8, 2005 PAGE 2 . ~~\l S:44 S ~ . ~:~ (0 n >-< >-< ~ ~ v . 0 C'4.lIFO-p..~\.~ - Redevelopment Agency Staff Report RDA AGENDA ITEM #3 DATE: TO: FROM: SUBJECT: June 8, 2005 Redevelopment Agency Board Marty VanDuyn, Assistant Executive Director RESOLUTION AUTHORIZING EXECUTION OF RELEASE AGREEMENT WITH THE COUNTY OF SAN MATEO RECOMMENDATION It is recommended that the Redevelopment Agency Board adopt the attached resolution authorizing the use of tax increment revenues for public improvements and the execution of a Settlement and Release Agreement with the County of San Mateo. BACKGROUND/DISCUSSION On April 27, 2005, the Redevelopment Agency and City Council held a joint public hearing to consider the proposed Plan Amendments, Fiscal Merger and Five Year Implementation Plan. The County of San Mateo submitted written objections to the proposed Plan Amendments and Fiscal Merger. On May 11,2005, the City Council adopted written findings ("Findings") in response to such objections. Agency and County staff have proposed "Mitigation Measures" to mitigate the fiscal impact of the proposed Plan Amendments and Fiscal Merger including the construction and installation of public access improvements to th.e San Bruno Mountain recreational area, improvements to the Safe Harbor facility, housing rehabilitation funds for Safe Harbor, improvements including cost waivers for the County-operated Health Clinic in South San Francisco, a rental waiver for the Health Clinic in South San Francisco, and financial assistance for the installation of the guardrail along Westborough Boulevard. The Redevelopment Agency may pay for cost of construction and installation of facilities and other improvements which are publicly owned if the City Council and the Agency determine all of the following: 1. The improvements are of benefit to the project area or the immediate neighborhood in which the project is located; 2. No other reasonable means of financing the improvements is available to the community; and 3. The payment of funds for the cost of the improvements will assist in the elimination of one or more blighting conditions inside the project areas, and will be consistent with the implementation plan adopted by the redevelopment agency. Staff Report Subject: San Mateo County Settlement and Release Agreement Page 2 With regards to the first determination, the improvements to public access to San Bruno Mountain will benefit the residents and employees of the Downtown Central, Shearwater and Gateway redevelopment areas by providing access to recreational facilities on property adj acent or very near to these three redevelopment areas. The housing and health clinic improvements serve and will continue to serve the residents of the Downtown Central redevelopment area where the clinic is located and the residents in El Camino area as well as employees in all of the redevelopment areas by providing temporary and permanent housing assistance and local medical facilities. Finally, reimbursement for the guardrail installation along Westborough Boulevard will serve residents and employees in the El Camino and Downtown Central redevelopment areas by providing an improved street system. With regards to the second determination, there is not available funding. Agency and City staff are aware of no other source of funds to finance the proposed improvements as the only other source available for such purpose would be the City general fund revenues which are committed for the provision of essential public services. The only available funds are those that will be made available as a result of the Plan Amendments and Fiscal Merger. With regards to the third determination, as indicated above the improvements will assist in removing blighting conditions within the project areas by providing additional housing services for the redevelopment areas, by ensuring the availability Of medical services for the residents and employees within the redevelopment areas, by providing additional recreational services for residents and employees ofthe Downtown Central, Gateway and Shearwater redevelopment areas and by ensuring improved traffic conditions for residents and employees of the Downtown Central and El Camino Corridor redevelopment areas who are likely to use Westborough Boulevard. CONCLUSION It is recommended that the Redevelopment Agency Board adopt the attached Resolution authorizing the use of tax increment revenues for public improvements and the execution of a Settlement Agreement with the County of San Mateo. It is anticipated that the County Board of Supervisors will consider and act upon the Agreement on June 22,2005. BY:~ Marty VanDuyn Assistant Executive rector , Q ~' l l . Approve:: <~ (, ", ., , . . Nagel ( Executive Director Attachment: Resolution Settlement and Release Agreement RESOLUTION NO. REDEVELOPMENT AGENCY, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AUTHORIZING THE USE OF TAX INCREMENT REVENUES FOR PUBLIC IMPROVEMENTS AND THE EXECUTION OF A SETTLEMENT AND RELEASE AGREEMENT WITH THE COUNTY OF SAN MATEO WHEREAS, pursuant to California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) ("CRL"), the City of South San Francisco ("City") and the Redevelopment Agency of the City of South San Francisco ("Agency") have proposed to amend the redevelopment plans for the El Camino Corridor, Downtown/Central, Gateway, and U.S. Steel/Shearwater project areas (hereafter, the foregoing are referred to individually as a "Project Area" and collectively as the "Project Areas") in order to extend the time limit within which the Agency may exercise eminent domain to acquire nonresidential property in the Downtown/Central Project Area and the original El Camino Corridor Project Area, add territory to the Downtown/Central Project Area, and fiscally merge the four Project Areas (the amendments to effectuate all of the foregoing are hereinafter collectively referred to as the "Plan Amendments and Fiscal Merger"); WHEREAS, on April 27, 2005, the Agency Board and the City Council held a joint public hearing to consider the proposed Plan Amendments and Fiscal Merger and the proposed implementation plan (the "Implementation Plan") which was included as Appendix H of the Report to Council prepared in connection with the proposed Plan Amendments and Fiscal Merger; WHEREAS, in letters dated April 27, 2005, the County of San Mateo ("County") submitted written objections to the proposed Plan Amendments and Fiscal Merger; WHEREAS, on May 11, 2005, the South San Francisco City Council ("City Council") adopted written findings ("Findings") in response to such objections, introduced ordinances to adopt the Plan Amendments and Fiscal Merger, and directed Agency staffto continue negotiations with the County regarding the County's objections; WHEREAS, Agency and County staff have proposed measures ("Mitigation Measures") to mitigate the fiscal impact of the proposed Plan Amendments and Fiscal Merger which Mitigation Measure are consistent with the Findings and are set forth in the 757845-1 1 Settlement and Release Agreement ("Settlement Agreement") attached hereto as Exhibit A. -, WHEREAS, the proposed Mitigation Measures include the construction and installation of certain public improvements as more particularly described in the Settlement Agreement (the "Public Improvements"), and CRL Section 33445 provides that a redevelopment agency may, with the consent of the legislative body, pay for the cost of construction and installation of facilities and other improvements which are publicly owned if the legislative body and the agency determine all of the following: 1. The improvements are of benefit to the project area or the immediate neighborhood in which the project is located; 2. No other reasonable means of financing the improvements is available to the community; and 3. The payment of funds for the cost of the improvements will assist in the elimination of one or more blighting conditions inside the project area, and will be consistent with the implementation plan adopted by the redevelopment agency; WHEREAS, the construction and installation of public access and other improvements to the San Bruno Mountain recreational area in the area immediately adjacent to the Downtown/Central, Gateway and U.S. Steel/Shearwater project areas will be of benefit to such project areas and will assist in the elimination of blighting conditions therein because such project areas are characterized by a lack of adequate open space and recreational facilities; WHEREAS, the construction and installation of the other Public Improvements will be of benefit to the project areas and will assist in the elimination of blighting conditions therein because WHEREAS, the County Board of Supervisors has determined that no other source of funds is reasonably available to the County to finance the projects identified in the Settlement Agreement as revenue that might otherwise be available for such purposes is committed for other purposes; WHEREAS, Agency and City staff are aware of no other source of funds reasonably available to the City or the Agency to finance the projects identified in the Settlement Agreement as the only other source available for such purpose would be City general fund revenues which are committed for the provision of essential public services such as police and fire services; WHEREAS, CRL Section 33490 (a)(1)(A) provides that a redevelopment agency may amend an implementation plan after conducting a public hearing on the proposed amendment following publication of notice once per week for three successive weeks in accordance with Government Code Section 6063; and 757845-1 2 WHEREAS, the Settlement Agreement provides that compliance with all requirements oflaw, including without limitation the completion of any required environmental review and the adoption by the County, the City and the Agency of all applicable required findings is required prior to the funding ofthe projects identified in the Settlement Agreement. NOW, THEREFORE, BE IT RESOLVED that the Redevelopment Agency of the City of South San Francisco hereby: 1. Finds, based upon the foregoing Recitals, that (i) the expenditure of tax increment funds to undertake the projects set forth in the Settlement Agreement will be of benefit to the Project Areas, (ii) no other reasonable means of financing such projects is reasonably available, and (iii) the expenditure of tax increment funds to install and construct the public improvements identified in the Settlement Agreement will eliminate blighting conditions in the Project Areas. 2. Directs Agency staff to schedule and publish notice for a public hearing to consider amendments to the Implementation Plan consistent with the intent of this Resolution. 3. Authorizes the Agency Executive Director or his designee to execute and deliver the Settlement and Release Agreement, substantially in the form attached hereto. 4. Authorizes the Agency Executive Director or his designee to execute and deliver such other instruments and to take such other action as necessary to carry out the intent of this Resolution. * * * * * * I hereby certify that the foregoing Resolution was regularly introduced and adopted by the Redevelopment Agency of the City of South San Francisco at a meeting held on the day of , 2005 by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: Agency Secretary 757845-1 3 SETTLEMENT AND RELEASE AGREEMENT THIS SETTLEMENT AND RELEASE AGREEMENT ("Agreement") is entered into as of , 2005, by and between the County of San Mateo, a public body corporate and politic ("County"), the City of South San Francisco, a municipal corporation ("City") and the Redevelopment Agency of the City of South San Francisco, a public agency ("Agency"). County, City and Agency are hereinafter referred to collectively as the "Parties." WHEREAS, pursuant to California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) ("CRL"), the City and the Agency have proposed to amend the redevelopment plans for the City's EI Camino Corridor, Downtown/Central, Gateway, and U.S. Steel/Shearwater project areas (hereafter, the foregoing are referred to individually as a "Project Area" and collectively as the "Project Areas") in order to extend the time limit within which the Agency may exercise eminent domain to acquire nonresidential property in the Downtown/Central Project Area and the original El Camino Corridor Project Area, add territory to the Downtown/Central Project Area, and fiscally merge the four Project Areas (the amendments to effectuate all of the foregoing are hereinafter collectively referred to as the "Plan Amendments and Fiscal Merger"); WHEREAS, in connection with the proposed Plan Amendments and Fiscal Merger, the Agency and the City have prepared and undertaken a series of studies, analyses, consultations, and public hearings, all in accordance with the requirements of the CRL; WHEREAS, on April 27 , 2005, the Agency and the City held a joint public hearing on the proposed Plan Amendments and Fiscal Merger; WHEREAS, in letters dated April 27, 2005, the County submitted written objections to the proposed Plan Amendments and Fiscal Merger; WHEREAS, on May 11,2005, the South San Francisco City Council ("City Council") adopted written findings in response to such objections, introduced ordinances to adopt the Plan Amendments and Fiscal Merger, and directed Agency staff to continue negotiations with the County regarding the County's objections; WHEREAS, Agency and County staff have proposed measures ("Mitigation Measures") which would mitigate the fiscal impact on the County of the proposed Plan Amendments and Fiscal Merger; WHEREAS, CRL Section 33352(n) provides that in response to objections raised by an affected taxing entity, a redevelopment agency may adopt mitigation measures including redevelopment plan amendments which limit the duration of the redevelopment plan or the total amount of tax increment to be received by the agency, or which address the proposed use, size, density, or location of development to be assisted by the agency; and WHEREAS, the City Council, the governing board of the Agency ("Agency Board") and the County Board of Supervisors ("County Board") have reviewed and approved the -1- adoption of the Mitigation Measures and have reviewed and approved the execution of this Agreement. NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows. 1. Limitation on Receipt of Tax Increment. The Agency will not receive taxes allocated to the Agency pursuant to Health and Safety Code Section 33670(b) from the Gateway Project Area after the earlier of (i) June 30, 2020, or (ii) the date upon which the combined tax increment allocation limit for the merged Project Areas is reached. The Agency and the City agree to include the foregoing limitation in the redevelopment plan amendment for the Gateway Proj ect Area. 2. Assistance to County Proiects. Following compliance with all requirements oflaw, including without limitation, the completion of any required environmental review and the adoption by the County Board, the Agency Board, and the City Council of all applicable findings required under CRL Section 33445, as a settlement of any and all threatened litigation and asserted or unasserted claims by the County against the Agency or City in connection with the Plan Amendments and Fiscal Merger, the Agency agrees that in order to avoid litigation and (without admitting any liability or wrongdoing), it will fund some or all of the public improvements identified in Exhibit A hereto, or such other projects as may be mutually agreed upon by the Agency and the County, by making payments in an aggregate amount not to exceed five million dollars ($5,000,000). At the sole discretion of County, such payments by the Agency shall be in the form of (1) reimbursement to the County for completed work on projects approved pursuant to this Agreement, (2) rent payment waivers by the Agency, or (3) direct payment to third parties when such payments are for work completed on projects approved pursuant to this Agreement and approved in writing by the County. The allocation of the five million dollars ($5,000,000) among the projects shall be as recommended by the County and approved by the Agency Executive Director which approval shall not be unreasonably withheld The parties agree that payments or cost waivers provided by Agency pursuant to this Agreement shall not exceed a total aggregate sum of $2,000,000 during fiscal years 2005-06 through 2006- 07 and a total aggregate sum of $3,000,000 during the period commencing with fiscal year 2007- 08. Notwithstanding the prior sentence, the parties agree that if the County elects to receive the rent waiver identified in Exhibit A, the time period for such waiver shall continue for 6.33 years and the value of those rent waivers shall deducted from and considered a part of the total obligation of $5,000,000. With regard to each of the public improvements identified in Exhibit A hereto, the parties have each determined that: i) the buildings, facilities, structures, or other improvements are of benefit to one or more of the Project Areas or the immediate neighborhood in which the public improvement is located; ii) other than as described in this Agreement, the County/Agency has no other reasonable means of financing the public improvements; and iii) the payment of funds for the acquisition of land or the cost the other improvements will assist in the elimination of one or more blighting conditions inside the Project Area or help provide housing for low- or moderate- income persons, and is consistent with the implementation plan adopted by the Agency pursuant to CRL Section 33490. The parties further agree that to the extent the Agency is required to 760691-1 amend the implementation plans for any of the redevelopment projects within South San Francisco to implement this plan, the Agency shall commence and complete the amendment process within six months of execution of this agreement. 3. Release of Claims: Covenant Not to Sue. The County hereby releases and forever discharges City and Agency from any and all claims, demands, proceedings, causes of action, orders, obligations, and liabilities directly or indirectly relating to or arising from or in connection with any challenge relating to the validity of the Plan Amendments and Fiscal Merger, the adoption or approval of the Plan Amendments and Fiscal Merger, or any of the findings or determinations of the Agency Board or the City Council made in connection with the Plan Amendments and Fiscal Merger, whether known or unknown, suspected or unsuspected, both at law and in equity, which County now has, has ever had, or may hereafter have, and whether or not relating to claims pending on, or asserted after, the date hereof. Without limiting the generality of the foregoing, it is understood that this Agreement is a full and final release of any and all claims relating to the validity of the Plan Amendments and Fiscal Merger, the adoption or approval of the Plan Amendments and Fiscal Merger, or any of the findings or determinations of the Agency Board or the City Council made in connection with the Plan Amendments and Fiscal Merger. The County hereby irrevocably covenants to refrain from directly or indirectly asserting any claim or demand, or commencing, instituting, supporting or causing to be commenced, instituted or supported, any action or proceeding of any kind, including without limitation any action or proceeding brought pursuant to Chapter 5 (commencing with Section 33500) of the CRL,by the County or any third party to question the validity of the Plan Amendments and Fiscal Merger, the adoption or approval the Plan Amendments and Fiscal Merger, or any of the findings or determinations of the Agency Board or the City Council made in connection with the Plant\mendments and Fiscal Merger. 4. Indemnity. Without in any way limiting any of the rights and remedies otherwise available to City and Agency, County shall indemnify, defend (with counsel approved by City and Agency) and hold City and Agency harmless from and against all loss, liability, claim, damage (including incidental and consequential damages) and expense (including costs of investigation and defense and reasonable consultants' and attorneys' fees) directly or indirectly relating to or arising from or in connection with (i) the assertion by or on behalf of County of any claim or County's initiation or support of any claim, demand, action or proceeding concerning any matter purported to be released pursuant to this Agreement, or (ii) any other violation of this Agreement by County, including without limitation, County's support of any third party claim, demand, action or proceeding which claim, demand, action or proceeding directly or indirectly relates to or arises from, or in connection with, any claim or other matter purported to be released pursuant to this Agreement. 5. Waiver. County acknowledges and agrees that County hereby waives all rights under Section 1542 of the Civil Code of California, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, 760691-1 which if known by him must have materially affected his settlement with the debtor." 6. Settlement. The Parties aclmowledge and agree that this Agreement is the compromise of a disputed claim, and that none of the agreements set forth herein are intended to be or shall be construed as an admission of liability on the part of any Party with respect to any claim or other matter purported to be released pursuant to this Agreement. 7. Representations and Warranties. 7.1 County. County hereby represents and warrants that (i) County has full power and authority to enter into this Agreement; (ii) all actions necessary on the part of County to authorize the execution hereof have been undertaken; and (iii) the persons executing this Agreement on County's behalf are duly authorized to do so. 7.2 City. City hereby represents and warrants that (i) City has full power and authority to enter into this Agreement; (ii) all actions necessary on the part of City to authorize the execution hereof have been undertaken; and (iii) the persons executing this Agreement on City's behalf are duly authorized to do so. 7.3 Agency. Agency hereby represents and warrants that (i) Agency has full power and authority to enter into this Agreement; (ii) all actions necessary on the part of Agency to authorize the execution hereof have been undertaken; and (iii) the persons executing this Agreement on Agency's behalf are duly authorized to do so. 8. Severability: Construction: Entire Agreement. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect unless the intent of the Parties would thereby be defeated. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable. All words used in this Agreement will be construed to be of such gender or number, as the circumstances require. Each Party participated in the negotiation and drafting of this Agreement with the benefit of counsel. This Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as ifboth Parties had prepared it. This Agreement contains the fmal, complete and exclusive statement of the agreement between the Parties pertaining to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings or agreements pertaining thereto. 9. Amendment. Governing Law: Attorneys' Fees: Counterparts. This Agreement (i) may not be modified except in a writing signed by the Parties, and (ii) shall be governed by and construed under the laws of the State of California without regard to principles of conflicts of law. In any action at law or in equity, arbitration or other proceeding arising in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees and other costs, including but not limited to court costs and expert and consultants' fees incurred in connection with such action, in addition to any other relief awarded. This Agreement may be 760691-1 executed in multiple counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. 10. Effective Date of the Agreement. This Agreement shall be effective upon completion of the following items: (1) approval and execution by the County, Agency, and City and (2) the expiration of any applicable statute of limitations related to approval of the Plan . Amendments and Fiscal Merger and the absence of any legal challenge to the approval of the Plan Amendments and Fiscal Merger filed within the appropriate statute of limitations. The parties agree that in the event that an individual or entity other than a party hereto files a legal challenge to the Plan Amendments and Fiscal Merger, the City and Agency shall not assert a statute oflimitations defense provided that the any legal action instituted by the County is filed with 14 days after the expiration of the appropriate statute oflimitations. IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first written above. COUNTY OF SAN MATEO By: Its: Attest: County Clerk Approved by: County Counsel CITY OF SOUTH SAN FRANCISCO By: Its: Attest: City Clerk Approved by: City Attorney 760691-1 REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO By: Its: Attest: Agency Secretary-- Approved by: Agency Counsel 760691-1 EXHIBIT A COUNTY PROJECTS Subject to the terms and conditions of the Agreement, the parties agree _that the following projects may be funded from the five million ($5,000,000) total amount set forth in the Agreement. 1. Safe Harbor Improvements 2. Safe Harbor Client Housing Rehabilitation 3. South San Francisco Health Clinic Improvements Cost Waiver 4. South San Francisco Health Clinic Building Improvements 5. South San Francisco Health Clinic Rent Waiver (through end of current term of lease, which is 6.33 years) 6. Reimbursement of costs for Westborough Guard Rail 7. Construction and insta1lation of access and other improvements, including a Habitat Conservation Plan Amendment as necessary to implement the foregoing, to the San Bruno Mountain recreational area in the area immediately adjacent to the Project Areas. 760691-1 AGENDA CITY COUNCIL CITY OF SOUTH SAN FRANCISCO REGULAR MEETING MUNICIPAL SERVICE BUILDING COMMUNITY ROOM WEDNESDAY, JUNE 8,2005 7:30 P.M. PEOPLE OF SOUTH SAN FRANCISCO You are invited to offer your suggestions. In order that you may know our method of conducting Council business, we proceed as follows: The regular meetings of the City Council are held on the second and fourth Wednesday of each month at 7:30 p.m. in the Municipal Services Building, Community Room, 33 Arroyo Drive, South San Francisco, California. Public Comment: For those wishing to address the City Council on any Agenda or non-Agendized item, please complete a Speaker Card located at the entrance to the Council Chamber's and submit it to the City Clerk. Please be sure to indicate the Agenda Item # you wish to address or the topic of your public comment. California law prevents the City Council from taking action on any item not on the Agenda (except in emergency circumstances). Your question or problem may be referred to staff for investigation and/or action where appropriate or the matter may be placed on a future Agenda for more comprehensive action or a report. When your name is called, please come to the podium, state your name and address (optional) for the Minutes. COMMENTS ARE LIMITED TO THREE (3) MINUTES PER SPEAKER. Thank you for your cooperation. The City Clerk will read successively the items of business appearing on the Agenda. As she completes reading an item, it will be ready for Council action. RAYMOND L. GREEN Mayor JOSEPH A. FERNEKES Mayor Pro T em RICHARD A. GARBARINO, SR. Councilman PEDRO GONZALEZ Councilman KARYL MATSUMOTO Councilwoman RICHARD BATTAGLIA City Treasurer SYLVIA M. PAYNE City Clerk BARRY M. NAGEL City Manager STEVEN T. MATTAS City Attorney PLEASE SILENCE CELL PHONES AND PAGERS HEARING ASSISTANCE EQUIPMENT AVAILABLE FOR USE BY THE HEARING IMPAIRED AT CITY COUNCIL MEETINGS CALL TO ORDER ROLL CALL PLEDGE OF ALLEGIANCE INVOCATION PRESENTATIONS . Annual Weed Abatement Program - Paramedic/Firefighter Paule Medeiros . Recognition of Police Chief Mark Raffaelli by Mr. John Woolley, representing the Department of Defense, Northern California Employer Support of the Guard & Reserve AGENDA REVIEW PUBLIC COMMENTS ITEMS FROM COUNCIL . Announcements . Committee Reports CONSENT CALENDAR 1. Motion to approve the minutes of May 23, 25, and 31, 2005 2. Motion to confirm expense claims of June 8, 2005 3. Motion to accept the Common Greens Tree Removal Project as complete in accordance with plans and specifications 4. Motion to reject the bid protest filed by Mitchell Engineering and Resolution awarding construction contract to JMB Construction, Inc. for the Swift Avenue Pump Station No.3 Upgrade and Swift Avenue Sanitary Sewer Replacement project in the amount of $2,520,000 5. Resolution authorizing the execution of a cooperation agreement with the County of San Mateo to secure and award HOME Partnership Funds through the County HOME Consortium . 6. Resolution approving a release agreement between County of San Mateo, City of South San Francisco and South San Francisco Redevelopment Agency 7. Acknowledgement of proclamations issued: National Youth Week, 5/24/05; John C. Martin, 5/25/05; and City retirees William Lucia and Carol Haskin, 6/4/05 ADMINISTRATIVE BUSINESS 8. Resolution awarding contract to Marcy Wong for architectural and engineering design services in the amount of $462,000 and construction management services to RGM and Associates in the amount of$490,780 for the Orange Memorial Park Community Center Project COUNCIL COMMUNITY FORUM ADJOURNMENT REGULAR CITY COUNCIL MEETING AGENDA JUNE 8, 2005 PAGE 2 ~~\l s:44 S ~ . :,.\J.\ on:) >-< >-< ~ ~ v <:> C4l!fP}'~\~ Staff Report AGENDA ITEM #3 DATE: June 8, 2005 TO: The Honorable Mayor and City Council FROM: Terry White, Director of Public Works SUBJECT: COMMON GREENS TREE REMOVAL PROJECT PROJECT NO. 51-13232-0322 RECOMMENDATION: It is recommended that the City Council, by motion, accept the Common Greens Tree Removal Project as complete in accordance with the plans and specifications BACKGROUND/DISCUSSION: This project removed sixty-two (62) previous trees in the Common Greens area that had structural defects, were damaging public or private property, or were already dead or dying. The Parks Department has planted twenty (20) new trees in the Common Greens area in accordance with the tree preservation ordinance permit issued for the project. FUNDING: This project was completed at a total cost of $74,880.00. There was adequate funding for the project. ~-' . Jb:') \ ""~ BY":::::::::.)..---, w/ . ~ ~ , Terry White I ' Director of Ruhlic Works ~ / .j .~.. "" .. r',) APproved:-<~,,,/ . \~ Haf i M. Nagel City Manager ( RTH/ TW G:\PROJECTS\CG Tree Removal/staffreportacceptance.doc - :-0~\l S:44 's (0 C"l >-< u.; ~ CJ U 0 C4lIFO"~~ Staff Report AGENDA ITEM #4 DATE: TO: FROM: SUBJECT: June 8, 2005 Honorable Mayor and City Council Marty Van Duyn, Assistant City Manager SWIFT AVENUE PUMP STATION NO. 3 UPGRADE AND SANITARY SEWER REPLACEMENT, ENGINEERING FILE NO. 71-13235-0558, PROJECT NO. SS-04-1, BID NO. 2344 RECOMMENDATION It is recommended that the City Council reject the bid protest received and adopt a resolution awarding the construction contract for the Swift Avenue Pump Station No.3 Upgrade and Sanitary Sewer Replacement, Engineering File No. 71-13235-0558, Project No. SS-04-1, Bid No. 2344, to the lowest responsive bidder, JMB Construction, Inc. of South San Francisco in the amount of $2,520,000.00; amend the 2004 - 2005 Capital Improvement Program budget to increase the project budget and change the project funding, and reject the bid protest filed by Mitchell Engineering. BACKGROUND/DISCUSSION In 2002, the City of South San Francisco approved the "Britannia East Grand" development for Slough SSF, LLC. This development includes the construction of eight (8) research & development (R&D) buildings and a three (3) story parking garage. Due to the large magnitude ofthe development, staff determined that the existing sanitary sewer line from the property to the Swift Avenue Pump Station (No.3) and the existing pumps will not be sufficient to handle the new sewage flow. Staff also inspected the existing sanitary sewer line and encountered differential settlement in the pipeline. As a result, staff recommended replacement ofthe sewer line and an upgrade of the pump station No.3 as a condition of the development. As part of the development agreement, Slough SSF, LLC committed to provide an amount not to exceed $2,800,000 towards the replacement of the Swift Avenue sanitary sewer and upgrade ofthe pump station No.3. Staff Report Subject: SWIFT AVENUE PUMP STATION NO.3 UPGRADE AND SWIFT AVENUE SANITARY SEWER REPLACEMENT Page 2 of3 Following the approval of development agreement with Slough SSF, LLC, the Engineering Division advertised the construction project and obtained sealed bids on April 26, 2005. The bid results were as follows: CONTRACTOR BID AMOUNT JMB Construction, h1C. South San Francisco, CA $2,520,000.00 Mitchell Engineering, Inc. San Francisco, CA. $2,819,000.00 O.C. Jones and Sons, h1C. Berkeley, CA. $3,316,000.00 Staff has reviewed the qualifications and references of the low bidder, JMB Construction, Inc. and found them to be satisfactory. The time allotted for this project is 140 working days. Following the bid opening, staffhas received two letters from the attorney representing the second lowest bidder, Mitchell Engineering, protesting the low bid submitted by JMB Construction. Staffhas also received two response letters from the attorney representing the low bidder, JMB Construction. (See Exhibits A through D). This protest alleged that JMB' s bid was non-responsive because JMB did not list a subcontractor for the roofing work. Under state law, if a bidder does not list a subcontractor for a particular piece of work, the bidder is either representing that they are qualified to perform the work, or representing that the work's value is less than Yz of 1 % ofthe bid, and therefore, by law, they are not required to list a subcontractor for that work. The bid protest provides no specific information to demonstrate that JMB's bid is non-responsive with respect to the roofing work. Therefore, staff recommends that the bid protest be rejected. Staff recommends that the bid protest be rejected and this project be awarded to JMB Construction, Inc. in the amount of$2,520,000.00. The following is a cost breakdown and the project budget: Construction Cost Construction Contingency (10%) Construction Management & Inspection (CM finn is being determined through an RFP process) Project Design & Construction Support (Design Firm, Wilsey Ham was selected through an RFP process) $2,520,000.00 $ 250,000.00 $ 200,000.00 $ 85.000.00 Total $3,055,000.00 Staff Report Subj ect: SWIFT AVENUE PUMP STATION NO. 3 UPGRADE AND SWIFT AVENUE SANITARY SEWER REPLACEMENT Page 3 of3 FUNDING: This project has a current budget of$I,500,000.00 using the Redevelopment Agency (RDA) fimdsin the City's 2004 - 2005 Capital Improvement Program. The RDA funds were to be utilized until other funding mechanism was identified for this project. The new project funding is now available as follows: Slough SSF, LLC (Letter of Credit has been provided) City Contribution (Assessment Bond Proceeds) $2,800,000.00 $ 255,000.00 Total Project Budget $3,055,000.00 The 2004 - 2005 Capital Improvement Program (CIP) will be amended to reflect this budget and funding change. B~ Marty Van Du Assistant City ager Approved: Attachment: Resolution Location Map Exhibits A, Band C (Bid Protest Letters) RESOLUTION NO. CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AWARDING THE CONSTRUCTION CONTRACT FOR THE SWIFT AVENUE PUMP STATION NO.3 UPGRADE AND SANITARY SEWER REPLACEMENT TO JMB CONSTRUCTION INC. IN THE AMOUNT OF $2,520,000 AND AMENDING THE 2004-05 CAPITAL IMPROVEMENT PROGRAM BUDGET TO INCREASE THE PROJECT BUDGET AND CHANGE THE PROJECT FUNDING, AND REJECT THE BID PROTEST FILED BY MITCHELL ENGINEERING WHEREAS, staff recommends approval of the award of construction contract for the Swift A venue Pump Station No.3 Upgrade and Sanitary Sewer Replacement to the lowest responsible bidder, JMB Construction, Inc. in the amount of $2,520,000; and amends the 2004-05 Capital Improvement Program budget to increase the project budget and change the project funding, and reject the bid protest filed by Mitchell Engineering; and WHEREAS, this project has current budget of $1 ,500,000 using the Redevelopment Agency funds in the City's 2004-05 Capital Improvement Program; and WHEREAS, the Redevelopment Agency funds were to be utilized until other funding mechanism where identified for this project; and WHEREAS, the new project funding is now available as follows: Slough SSF, LLC (Letter of Credit has been provided) City Contribution (Assessment Bond Proceeds) $2,800,000.00 $ 255,000.00 Total Project Budget $3,055,000.00 The 2004 - 2005 Capital Improvement Program (CIP) will be amended to reflect this budget and funding change. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council hereby awards the construction contract for the Swift A venue Pump Station No.3 Upgrade and Sanitary Sewer Replacement to JMB Construction Inc. in the amount of $2,520,000 and amends the 2004-05 Capital Improvement Program budget to increase the project budget and change the project funding, and reject the bid protest filed by Mitchell Engineering. BE IT FUR THER RESOLVED that the City Manager is hereby authorized to execute the contract on behalf of the City of South San Francisco. * * * * * * I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a meeting held on the day of , 2005 by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: City Clerk s: \Current Reso's\5- 25-05 swift. ave. pump. station. no. 3 .res .doc o (.) z:~>- :i:z~ [f' a. --- ~ & :2; c:>>~ - oc( IC~ Q..... Ot- ~~ J!!Ie- mvl~~lli~~XIVlLLU~ ~ UUlIUU'l U~/IO/kUUD l~:~O ~a~ ~lUqODOODO "'<;.j~. . \\ ~.~+\t:~:){T. AU (4 PJ\&~ LAW OFFICES MCINERNEY & DIU.ON, P .c. ONE KAISER PlAZA. 18TH FLOOR OAXLAND, CA:uFOBNIA. 94612 TELEPHONE (510)465-7100 FAX (510)465-8556 FACSIMILE TRANSMISSION TO: Robert L. Leslie' Fax: '. . MESSAGE: RAY R4zA VI FROM: (650) '~89 DATE: May 18, 2005 PAGES: ~Cluding r~ cover p~e) . - - If you do not receiveafl p~ .indlcated or there !sa prob!em with the quality of the .facsimile transmission which follows, please' caD .00Jye Roblf.lSOll at (510) 465-7100; ,-' IMPORTANTICONFIIJENT1AL: This message is intended only for 1he indMduaJ or entity 10 which It Is addressed. It .contains Infonnatioil from Mcinerney & Dlllon~ P.C. which may be privileged, confidential and exemptfrOnl diSClosure . undor law. If the reader of this meSsage is not the Intended recipient, or IhEl employee or ~ responsible for . deliVering the mesSage to lhe intended' recipient, please be aware that any dissemination, dIStribution, or copying of this communlcaUoh Is strldly prohibited. If you ~ rec6iwd ChIs communlcatlon in EIfTOr, pleaSe notify us immediately at our telephone number set forth above. We will be happy to arrange for the return of this message at no cost to you. . ~ .-.- Vuf~U..VU~ ~,.,. rna u~U~UUOuuU JIlvUU!.N'IJ:H:/ JJJ:LLU1'l If&J UU;:I UUlt LAW OFFICES McINERNEY & DILLON PROF'ESSIONAL CO~PORATION ONE K^ISER PLAZA. SUITE: 1850 OAKLAND. CALIfORNIA 94612-361O Robert L. Leslie TELEPHONE (510) 465-7100 FAX (510) 465-13556 [email protected] May 18, 2005 City of South San Francisco Attention: Ray Razavi, City Engineer City Hall 400 Grand Avenue South San Francisco, California 94080 Facsimile (650) 829-6689 Re: Bid Protest: Swift Avenue Pump Station No.3 upgrade and Swift Avenue Sanitary Sewer Replacement Dear Mr. Razavi: I represent Mitchell Engineering, who protests award of the above contract to 1MB Constnlction, Inc. because 1MB Construction, mc.'s bid is not responsive. "A basic role of competitive bidding is that bids must conform to specifications, and that if a bid does not-so conform, it may not be accepted. Ghilotti Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897, 904. The City's bid documents, Specification Section 07510 ''Built-up Bituminous Roofing", .paragraph 1.05, "Quality Assurance" specified that the installer of the roof must have the following qualifications: . 1. Manufacturer approved applicator of products similar to specified products on minimum of 5 projects similar scope as Project with satisfactory performance record. 2. Committed to complying with manufacturer's specifications and NRCE recommendations. 3. Committed to assuming undivided responsibility for roof insulation, roofing membrane, and sheet metal flashing and trim associated with roofing. un/xo/~uun L~;~I r.~ QLU~OUOQaO Jlll..ol.!"In.l\l"ln.l:/.u .lLLUJ"I l!!:J UU,)/UV'i City of South San Francisco Attention: Ray Razavi, City Engineer May 18,2005 Page 2 1MB failed to list a roofing subcontnlctor in its bid List of Subcontractors. The law requires the contractor either to list the subcontractor who will perform more than Y2 of 1 % of the contract work or to perform the work itself.! California Public Contract Code ~ 4106. This listing must be done before the bid is submitted to prevent bid shopping after the bid. Since 1MB failed to list a roofing subcontractor in its. bid List of Subcontractors, 1MB represented that 1MB would perfOnD. the roofing work itself. California Public Contract Code ~ 4106. This makes JMB's bid non-responsive because Mitchell believes. that 1MB does not meet the Installer Qualifications of Specification Section 07510, paragraph 1.0SH. Mitchell believes that 1MB is not a "[m]anufacturer approved . applicator of products similar to specified products on minimum 5 projects of similar scope as Project". Hence, Mitchell believes that 1MB is not a responsive. or a responsible bidder. IMB's submission of a non-responsive bid suggests thatJMB will perform work without the necessary qualifications. This type of non-responsiveness can not be waived .because, among other reasons, it allows 1MB to avoid hiring a qualified subcontractor and so r~ce its bid price by failing perform part of its contract duties. Such . nonresponsiveness gives 1MB a competitive advantage over those bidders who promised to perform the contract pursuant to the bid solicitation. 1MB 's no~esponsiveness can not be waived. Ghilotti Construction CO.I supra, 45 Cal. App.4th at 904. A contract award cannot be made to 1MB. J When a contract is awarded in violation of the public contracting laws, such as by awarding the contract to 1MB, the contract is illegal and void Miller v. McKinnon (1942) 20 Cal.2d 83, 87-88~ Under some circumstances, public officials who pay money out of The amount of the Built-up Bituminous Roofing on this project is in excess of one-half of 1 percent of 1MB's bid. 1MB's bid was $2,520,000, so if the roofing work was greater than $12,600 (one-half of 1 percent oflMB's bid price of $2,520,000 is $~2,600). Mitchell's roofing subcontractor, Western Roofing, quoted the work for $31,197, which is more than one-half of 1 percent of.Th1B's bid. O. C. Jones, the third bidder, listed its roofing subcontractor as 1% of its bid. This further shows that the roofing work was in excess of one-half of 1 percent. U;)/.~o/ ZUU;) .1Z: i! (l'liA ;).1U,*OOOLl:lO mvl~~W~~Y/VlLLU~ City of South San Francisco Attention: Ray Razavi, City Engineer May 13, 2005 Page 3 I@UU4/UU4 the public trust for an illegal contract are personally liable to repay to the public all funds paid to the contractor under the void contract, even.ifthe public official acts in good faith. Ibid. See also Sa!, Diego County v. Milotz (1953) 119 Cal.App.2d Supp. 871. For all of these reasons, Mitchell asks the City to reject JMB's bid as non- responsive. Thank. you for your time ~d consideration of this request. . ~ Robert L. Leslie cc: 1MB Construction, Inc. (fax 415.468.1183) \ "( , t:~.~l\?\T B I 31 J California Street San Francisco CA 94104 ROGERS JOSEPH OJDONNELL~ PHILLIPS 415.956.2828 415.956.6457 fax www.rjop.com May 19, 2005 By Facsimile and U.S. Mail Mr. Ray Razavi, City Engineer City of South San Francisco City Hall 400 Grand Avenue South San Francisco, CA 94080 Re: Swift Avenue Pump Station REPLY TO BID PROTEST FILED BY MITCHELL ENGINEERING Dear Mr. Razavi: We represent 1MB Construction, Inc. ("J.MB"), the intended awardee on the above-referenced project. 1MB is aware of its obligation to list subcontractors under California Public Contract Code Section 4106 if the work that will be performed represents more than ~ of 1 % of the contract value. Here, 1MB's winning bid is $2,520,000. 1MB was not required to list a subcontractor where the value of its work is not greater than $12,600. The roofing work that is to be accomplished for this proj ect includes two new exhaust openings and a new ventilation opemng. 1MB determined at the time of bidding that the value of performing this roofing work will not exceed ~ of 1 % of its bid price. Accordingly, no subcontractor was required to be listed by 1MB. . Mitchell Engi.:he~ring"s proteSt; wbjch-.Th1B notes waS ;tlle:d nearly. one ~qnth after bid openirig,' should be rejected as' wholly Without merit. '. .' .. .' .. '. Very truly yours, ~d17l.P</~ Patricia A. Meagne! P AM:fyh cc: Mr. Stewart Mitchell, Th1B Construction Robert 1. Leslie, Esq., McInerney & Dillon 234714.1 OS/24/2005 16:29 F~X 5104658556 MCINERNEY/DILLON LAW OFFICES MCINERNEY& DILLON, P.C. ONEKAlSERPLAZA,18TI{FLOOR OAKLAND, CALIFoiooA 94612 TelephOne (510)465-71.00 . Fax (510) 465-8556 @OOll003 ,,\ -E)( r\1{~:1 Q, If (:> \' ~fS) FACSIMaE TRANSIViISSION Date: May 2~, 2005 To: cc: From: . , City of South San Ftan,cisco Attention: Ray Razavi, City .Engineer .L' Patricia A. Meagher Alexander Bannon Fax. 650-829-6689 Fax 415~956-6457 OS/2.4/2005 16:30 FAX 5104658556 MCINERNEY/DILLON 141 002/003 LAW OfFlCES McINERNEY & DlLLON PROFESSIONAL CORl'ORATION 0RDWA Y BlJlU)lNG ONE KAJSi:x PLAzA OAKLAND. CALIFORNIA 9<1612-)610 TELEPHONE (51,0) 465-7100 FACSIMIl.E (510) 465-8556 .. [email protected] Robert L. Leslie May 24, 2005 City of South San Francisco Attention: Ray Razavi, City Engineer City Hall . 400, Grand Avenue South San Francisco, California 94080 Facsimile (650) 829-6689 Re: Bid Protest~ Swift Avenu~ Pump station No.3 upgrade and Swift Avenue SanitaIy S~er~~~emem ' Dear Mr. Razavi: I briefly reply to Ms. Pa1!icia A. Meagher's May 19; 2005 letter in regard to .Mitchell Engineering's protests .award of the above contract to 1MB Construction, Inc. Ms. Meagher asserts that "JMB determined at the time of bidding that the value of performing this roofing 'York will not exceed ~ of 1 % of its bid price.'" But Ms. Meagher did not sub~t any evidence to support that claim. . To determine the value of perfo:r:miO.g roofing work, contractOJ;s solicit bids from subcontractors, particularly wliere'the bidding documents require the subcontractor to possess specific qualifications. If Ms. Meagher's assertions were true, her letter would have been accompanied by subcontractor bids evidencing JMB' s claim that this work was less than- ~ of 1% ofJMB's bid.' . .' Her letter did not include any such evidence, so JMB's claim should not be believed. 'It is a well settled rule that where a'party has evidence within its control, yet fails to produce that evidence, it is presumed tha~ such evidence was adverse to its cause and would support the case o{his adversary- Tieman v. Red Top Cab Co. (1931) 117 Cal.App. 40, 46; see also Thorv. Baska (1974) 38 Cal.App.3d 558,565; California Eviden'ce Code'section 412. . Under this legal presumption, you.should presume that.thepjds JMB received from subcontractors were more than ~ of 1 % of the contract price. The reason you should make this presumption is that the failure to produce these OS/24/2005 16:30 FAX 5104658556 MCINERNEY/DILLON @ 003/003 City of South San Francisco Attention: Ray Razavi, City Engineer May 24, 2005 Page 2 documents "serves to indicate, as the most natural inference, that th~ party fears to do so, and this fear is some evidence th8:t the circumstance or document or witness, if brought, would have exposed factS unfavorable to the party." Shapiro v. Equitable Life Assur. Soc. (1946) 76 CaLApp.2d 75, 93-94. 1MB failed to produce any bids from any roofing subcontractors (or any other documents, for that matter) because if it had, this presumably would show that the work was over $12,600, that the subco:otr~ctor had to be listed, and that 1MB's bid was not responsive_ The City was strict in its roofing subcontractor requirements because roof leaks can be . very damaging. Mitchell's bid listed a qualifi~ roofing subcontractor in accordance with the specifications. The City knows what it is getting with Mitchell's bid. The same can not be said for 1MB's bid. For all of these reasons, Mitchell aslcs the City to reject'JMB's bid as non-responsive. Thank you for your time and, consideration ofthis request. Sincerely, ~~ ---- cc: Patricia -A. Meagher, attorney for .lMB Construction, Inc. (fax 415.956.6457) lIOO5S2!l lJO/3.1/UO -rut!; J.3:0l:l l'-/u' 4.10 l:l::io 040.' HUG~HS.JOSEPH.O'DONNELL& ~002 "J; ~Bl\ :D 1I 311 California. Street San Francisco CA 94 104 ROGERS JOSEPH O'DON~ELL ~ PHILLIPS 415.956.2828 415.956.6457 fax www.rjop.com May 31,2005 By Facsimile and U.S. Mail Mr. Ray Razavi, City Engineer City of South San Francisco City Hall 400 Grand Avenue South San Francisco, CA 94080 Re: Swift Avenue Pump Station REPLY TO BID PROTEST FILED BY MITCHELL ENGlNEERING Dear Mr. Razavi: We are in receipt of Mitchell's Engineering's letter of May 24, 2005, and provide the following response. Mitchell Engineering is asking JMB Construction to disclose information concerning its competitive bidding strategy for this project. Such information is confidential information and/or trade secret under Civil Code Section 3426.1 (d), and JMB Construction will not provide this information to a competitor. Should the City of South San Francisco wish 1MB Construction to provide additional information concerning its bid, please contact Mr. Stewart Mitchell, who prepared 1MB Construction's bid for this project, directly. nvm Construction again requests that this unsupported protest by its competitor, Mitchell Engineering, be dismissed. Very truly yours, 'i d'l . k.--v Patricia A. M:::J P AM:fyh cc: Mr. Stewart Mitchell, 1MB Construction Robert L. Leslie, Esq., McInerney & Dillon 235062.1 I LawyCI'5 I A Professional Corporation ~'t\l.~i ...................~..............;..........~.........i~...........'.'I.'.:.'._"--..........~...~...........................i.iX....................................... l~....... ........ ... . ...~}! .~~ . c.. .i'ht1FO~eiStaff Report AGENDA ITEM #5 DATE: TO: FROM: SUBJECT: June 8, 2005 Honorable Mayor and City Council Marty Van Duyn, Assistant City Manager HOME COOPERATION AGREEMENT WITH SAN MATEO COUNTY RECOMMENDATION It is recommended that City Council adopt the attached resolution authorizing the City Manager to execute the Cooperation Agreement with San Mateo County to secure and award HOME Partnership Funds through the County HOME Consortium for the City of South San Francisco. BACKGROUND/DISCDSSION The County HOME Consortium was established to receive HOME funds and promote affordable housing opportunities. The City has been a member of the Consortium for approximately ten years, enabling the City to secure and award HOME funds for City and Redevelopment Agency sponsored housing developments. The County, as lead agency is required to execute agreements with entitlement jurisdiction members of the Consortium. The Agreements are in effect for a period of three years with automatic renewal for an additional three years, until all HOME funding has been expended. FUNDING HOME funds are competitive and allocated on a yearly basis. The City must apply each year and compete with other projects in the County for a pool offunds which can only be used for affordable housing developments. In prior years the City has secured and allocated HOME funds for acquisition of buildings at Willow Gardens, Miller Avenue, the Grand Hotel and Bronsteins Apartments on Grand Avenue. HOME funds are a loan to be repaid by a project's residual receipts and require a match of at least twenty-five percent by the Redevelopment Agency. Staff typically returns to City Councilor the Agency to authorize application for and the use of any HOME funds received at the time a project is being sponsored by the City. Staff Report Subject: HOME Cooperation Agreement Page 2 CONCLUSION It is recommended that City Council authorize adoption of the attached resolution for the Cooperation Agreement between the County of San Mateo and the City of South San Francisco and authorize the City Manager to execute documents necessary to effectuate the Cooperation Agreement for the HOME Partnership program funds. By: - Marty VanDuyn ! Assistant City Mana Approved: Attachment: Resolution HOME Cooperation Agreement RESOLUTION NO. CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AUTHORIZING A COOPERATION AGREEMENT WITH SAN MATEO COUNTY TO SECURE AND AWARD HOME PARTNERSHIP FUNDS THROUGH THE COUNTY HOME CONSORTIUM FOR THE CITY OF SOUTH SAN FRANCISCO WHEREAS, staff recommends authorizing a Cooperation Agreement with San Mateo County to secure and award HOME Partnership Funds through the County HOME Consortium for the City of South San Francisco. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council hereby authorizes a Cooperation Agreement with San Mateo County to secure and award HOME Partnership Funds through the County HOME Consortium for the City of South San Francisco. BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute documents necessary to effectuate the Cooperation Agreement for the HOME Partnership program funds. * * * * * * I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a meeting held on the _ day of , 2004 by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: City Clerk S :\Current Reso's\6-8-05 coorporation .agree .res. doc 5/25/2005 COOPERATION AGREEMENT BETWEEN THE COUNTY OF SAN MATEO AND THE CITY OF SOUTH SAN FRANCISCO Agency Contact Person: Jack D. Marquis HCD Specialist III 802-5035 Page 1 of8 COOPERATION AGREEMENT BETWEEN THE COUNTY OF SAN MATEO AND THE CITY OF SOUTH SAN FRANCISCO THIS AGREEMENT entered into this day of , 2005, by and between the COUNTY OF SAN MATEO, a political subdivision of the State of California, hereinafter referred to as "County", and the CITY OF SOUTH SAN FRANCISCO, a duly incorporated City within the County of San Mateo, hereinafter referred to as "City". . WITNESSETH WHEREAS, in 1996, San Mateo County entered into a Cooperation Agreement (the "CDBG Cooperation Agreement") with 16 non-entitlement cities ("the cities"), herein jointly referred to as the "Urban County", whereby public entities not eligible to receive Community Development Block Grant (CDBG) funds on its own, could cooperate and participate in the San Mateo County Urban County Program in order to access CDBG funding; and WHEREAS, the CDBG Cooperation Agreement, providing for automatic renewals every three years between the County of San Mateo and the cities, was renewed in 1999, 2002, and will renew again on July 30, 2005, unless action is taken by any of the cities to terminate; and WHEREAS, in addition to being eligible to apply for CDBG funds through the Urban County's annual CDBG funding cycle, the cities are also eligible to participate in the County's HOME funding cycle since the Urban County is a member of the San Mateo County HOME Consortium; and WHEREAS, the National Affordable Housing Act of 1990, Public Law 101-625, enacted November 28, 1990, provides for the distribution of federal funds through the HOME Investment Partnerships Act to eligible public entities; and WHEREAS, those public entities which are eligible to receive said funds are metropolitan cities, urban counties, or consortia whose formula allocation for distribution of HOME funds is equal to or greater than $500,000; and WHEREAS, public entities that do not otherwise come within the definition of an eligible public agency may cooperate and participate with an eligible public entity to form a HOME Consortium for purposes of receiving HOME funds; and WHEREAS, the County of San Mateo along with 16 participating cities, has heretofore qualified as an Urban County under the Housing and Community Development Act of 1974 and is eligible under the formula allocation to receive HOME funds; and WHEREAS, the County has solicited the cooperation and co-participation of public entities, eligible to receive HOME funding on its own, such as South San Francisco to establish a San Mateo HOME Consortium for purposes of receiving HOME funds under the National Affordable Housing Act and promoting affordable housing; and WHEREAS, City desires to cooperate and co-participate with County in a Consortium for purposes of receiving HOME funds and promoting affordable housing; and WHEREAS, County as the Lead Entity for the HOME Consortium is authorized to amend the Consortium Agreement, apply for funding, or add new members to the Consortium on behalf I of the HOME Consortium; and WHEREAS, a Cooperation Agreement by and between City and County establishes the formal relationship to cooperate and co-participate as a Consortium and is specifically authorized under the provisions of Government Code Section 26227; and WHEREAS, Federal regulations 24 CFR Part 92 governing the Home Investment Partnership Act state that the Cooperation Agreement must be completed and submitted by June 30, 2005; and WHEREAS, City now desires to enter into the instant Cooperation Agreement with the County of San Mateo so that they may qualify, under applicable provisions of the National Affordable Housing Act and HUD regulations, as co-participant with County in eligible activities under the National Affordable Housing Act. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, the parties hereto agree as follows: 1. Purpose: This Agreement is for the purpose of enabling the County and City to continue to cooperate in undertaking, or assisting in undertaking, public-private partnerships to provide more affordable housing within San Mateo County through the use of HOME funds to carry out multi-year housing strategies through acquisition, rehabilitation, new construction of housing, tenant-based rental assistance and financing of rental housing and first-time homeowners programs, primarily to benefit low and very low income households. Accordingly, they agree and declare that they are a Consortium (the "Consortium") as herein described. 2. Term: The term of this agreement shall be for the Federal fiscal years 2006, 2007 and 2008, unless HUD earlier revokes the Consortium's designation as a participating jurisdiction. This agreement shall remain in effect until the HOME funds from each of the Federal fiscal years are closed out pursuant to Federal regulation 24 CFR 92.507. This Agreement shall renew automatically every three years for a new three year period on the same terms and conditions contained herein unless the Consortium membership has changed or a consortium member (e.g., the City) expressly chooses not to participate and submits a written request to that effect. No later than June 1, of the fiscal year prior to the beginning of the next successive three-year renewal (or such other date that may be specified in HUD's consortia designation notices), the County as lead entity of the Consortium, shall notify each consortium member in writing of its right to not participate for the up-coming three-year period. A member who chooses not to participate must notify the County in writing no later than June 15, of that year. If the County fails to give the required notice, this Agreement shall not automatically renew for the up-coming three year period. 3. Consortium Representative: The County of San Mateo is authorized to act ina representative capacity for all Consortium member units of general local government (including City) for the purposes of the HOME program. 4. Consortium Responsibility: a. Consortium Representative's Responsibility: County, as designated representative of the Consortium, has the ultimate and overall responsibility, under the Act, and in the view of HUD, for ensuring that the Consortium's HOME program is carried out in compliance with the requirements of 24 CFR Part 92, including the submission of a Program Description for the use of HOME funds which has been mutually agreed upon by City and County, and for providing all assurances or certifications required under 24 CFR Part 92. The Program Description sets forth the Consortium's estimated use of HOME funds (consistent with needs identified in its approved consolidated housing strategy) within each of the eligible activity categories. Therefore, County requires City, and City agrees to, strict adherence to the Program Description as approved, and to all assurances and certifications provided, including agreeing to take all actions necessary to assure compliance with the County's certifications under the Fair Housing Act; Executive Order 11063 (Equal Opportunity in Housing) and Title VI of the Civil Rights Act of 1964; and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. County shall not provide HOME funds for activities in, or in support of, any cooperating city that does not affirmatively further fair housing within its own jurisdiction or for activities that impede the County's actions to comply with its fair housing certification. In addition, the County and City are responsible for taking all required actions to comply with the provisions of the National Environmental Policy Act of 1969. b. City Subiect to Same Reauirements as Subrecipients: Pursuant to 24 CFR 92.504(a), City is subject to the same requirements applicable to subrecipients, including the requirement of a written agreement set forth in 24 CFR 92.504(b). County, as Consortium representative, has the responsibility for ensuring that HOME funds are used in accordance with all program requirements, for determining the adequacy of performance under agreements and procurement contracts, and for taking appropriate action when performance problems arise. Therefore, before disbursing any HOME funds to City or projects in City, County will require City, and City agrees to, enter into a written agreement for each individual project. 5. Membership: The County of San Mateo is authorized to amend the Consortium Agreement on behalf of the entire consortium to add new members to the Consortium. The City and all other Consortium members agree to be bound by any such amendments. 6. Eaual Employment Opportunities: Under County's ultimate supervision and responsibility as Consortium representative, City covenants and agrees that they will abide by and enforce all applicable equal employment requirements including, but not limited to, Executive Order 11246 (Equal Employment Opportunities Act). 7. County's Responsibility to City: In additionto the foregoing obligations, County agrees: 8. As Consortium representative, County shall, in preparing future plans under the National Affordable Housing Act, solicit to the extent allowed by the Act and all HUD regulations, City's participation in the development of such future plans which refer to City's activities under the Act. b. As Consortium representative, County agrees to distribute funding it receives from the Consortium's current plan application and in future plans, in accordance with the terms and provisions therein contained, or in accordance with such terms and conditions as required of HUD by the National Affordable Housing Act. As Consortium representative, the County recognizes that City has specific geographical housing needs that are described in the Consolidated Housing & Community Development Plan, representing approximately 14-16% of the Consortium's needs as defined by HUD allocation formulas. Accordingly, the County will consider these needs in the distribution of the annual HOME funds. c. As Consortium representative, County agrees to allocate one percent (1 %) of the Consortium's total annual allocation to City for general administration activities. 8. City's Responsibilities to County: In addition to the foregoing obligations: a. City agrees to expend any funds received by virtue of any of the Consortium's plans only in accordance with the terms and conditions stated therein, or as amended by HUD. b. City agrees to cooperate with County as Consortium representative in the development of future plan applications for HOME funds under the Act, with regard to affordable housing development activities to be continued or undertaken by City within its boundaries. c. City agrees, in return for the distribution of general administration funds, to participate in the preparation of the Consolidated Housing & Community Development Plan, prepare annual reports as they relate to City, and to perform other activities pertinent for Entitlement Cities participating in the HOME program. 9. Local HOME Investment Trust Fund: a. As Consortium representative, County must establish a local HOME Investment Trust Fund account. b. Any repayments of HOME funds and matching, contributions and any payment of interest or other return on the investment of HOME funds and matching contributions must be placed in the local HOME Investment Trust Fund account. c. County has the responsibility for monitoring and reporting to HUD on the use of any such local HOME Investment Trust Fund monies and County shall require appropriate record keeping and reporting by City as may be needed for this purpose. d. In the event of close-out or change in status of City, any HOME program income that is on hand or received subsequent to the close-out or change in status shall be paid into the local HOME Investment Trust Fund administered by the County as ! Consortium representative. 10. Fair Housing: The parties hereto agree to affirmatively further fair housing, which means they will conduct an analysis of impediments to fair housing choice within their jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting that analysis and actions in this regard. 11. Headings: The headings in this document are merely for the convenience of the parties, and do not form a material part of this document. Headings shall not be considered in the construction of this document. 12. Minor Amendments to the Agreement: Should it become necessary to change the language of this agreement to meet HUD approval, without making major changes and without altering the intent of this Agreement, such changes may be made administratively with the written consent of the City Manager of City and the County Manager. All remaining provisions of said agreement shall remain in full force and effect for the term provided herein. 13. Signature in Counterpart: This Agreement may be executed in counterparts, each part of which is deemed an original but all of which shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written and have affixed their hands to this Cooperation . Agreement. COUNTY OF SAN MATEO Rich Gordon, President Board of Supervisors, San Mateo County ATTEST: Clerk of Said Board CITY OF SOUTH SAN FRANCISCO City Manager ATTEST: City Clerk ~~\\ 5:44 iI ~ - ~~\ (~ ~l ~ ~ v c ~~~ Staff Report AGENDA ITEM #6 DATE: TO: FROM: SUBJECT: June 8, 2005 Honorable Mayor and City Council Marty VanDuyn, Assistant City Manager RESOLUTION AUTHORIZING EXECUTION OF RELEASE AGREEMENT WITH THE COUNTY OF SAN MATEO RECOMMENDATION It is recommended that the City Council adopt the attached resolution approving a Release Agreement with the County of San Mateo. BACKGROUND/DISCUSSION On April 27, 2005, the Redevelopment Agency and City Council held a joint public hearing to consider the proposed Plan Amendments, Fiscal Merger and Five Year Implementation Plan. The County of San Mateo submitted written objections to the proposed Plan Amendments and Fiscal Merger. On May 11, 2005, the City Council adopted written findings ("Findings") in response to such objections. Agency and County staffhave proposed "Mitigation Measures" to mitigate the fiscal impact of the proposed Plan Amendments and Fiscal Merger including the construction and installation of public access improvements to the San Bruno Mountain recreational area, improvements to the Safe Harbor facility, housing rehabilitation funds for Safe Harbor, improvements including cost waivers for the County-operated Health Clinic in South San Francisco, a rental waiver for the Health Clinic in South San Francisco, and financial assistance for the installation of the guardrail along Westborough Boulevard The Redevelopment Agency may pay for cost of construction and installation of facilities and other improvements which are publicly owned if the City Council and the Agency determine all of the following: 1. The improvements are of benefit to the project area or the immediate neighborhood in which the project is located; 2. No other reasonable means of financing the improvements is available to the community; and 3. The payment of funds for the cost ofthe improvements will assist in the elimination of one or more blighting conditions inside the project areas, and will be consistent with the implementation plan adopted by the redevelopment agency. Staff Report Subj ect: San Mateo County Release Agreement Page 2 With regards to the first determination, the improvements to public access to San Bruno Mountain will benefit the residents and employees of the Downtown Central, Shearwater and Gateway redevelopment areas by providing access to recreational facilities on property adj acent or very near to these three redevelopment areas. The housing and health clinic improvements serve and will continue to serve the residents of the Downtown Central redevelopment area where the clinic is located and the residents in El Camino area as well as employees in all ofthe redevelopment areas by providing temporary and permanent housing assistance and local medical facilities. Finally, reimbursement for the guardrail installation along Westborough Boulevard will serve residents and employees in the El Camino and Downtown Central redevelopment areas by providing an improved street system. With regards to the second determination, there is not available funding. Agency and City staff are aware of no other source of funds to finance the proposed improvements as the only other source available for such purpose would be the City general fund revenues which are committed for the provision of essential public services. The only available funds are those that will be made available as a result of the Plan Amendments and Fiscal Merger. With regards to the third determination, as indicated above the improvements will assist in removing blighting conditions within the project areas by providing additional housing services for the redevelopment areas, by ensuring the availability of medical services for the residents and employees within the redevelopment areas, by providing additional recreational services for residents and employees ofthe Downtown Central, Gateway and Shearwater redevelopment areas and by ensuring improved traffic conditions for residents and employees of the Downtown Central and El Camino Corridor redevelopment areas who are likely to use Westborough Boulevard. CONCLUSION It is recommended that City Council adopt the attached Resolution authorizing the Release Agreement with the County of San Mateo. It is anticipated that the County Board of Supervisors will consider and act upon the Agreement on June 22. Marty VanDuyn Assistant City Manage /""--_.,'\ Q ~d / . Approve<i.: \t.t . ~' , ' ---- / arry . N agel ~ ' ----- City Manager Attachment: Resolution Settlement and Release Agreement RESOLUTION NO. CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AUTHORIZING THE USE OF TAX INCREMENT REVENUES FOR PUBLIC IMPROVEMENTS AND THE EXECUTION OF A SETTLEMENT AND RELEASE AGREEMENT WITH THE COUNTY OF SAN MATEO WHEREAS, pursuant to California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) ("CRL"), the City of South San Francisco ("City") and the Redevelopment Agency of the City of South San Francisco ("Agency") have proposed to amend the redevelopment plans for the El Camino Corridor, Downtown/Central, Gateway, and U.S. Steel/Shearwater project areas (hereafter, the foregoing are referred to individually as a "Project Area" and collectively as the "Project Areas") in order to extend the time limit within which the Agency may exercise eminent domain to acquire nonresidential property in the Downtown/Central Project Area and the original El Camino Corridor Project Area, add territory to the Downtown/Central Project Area, and fiscally merge the four Project Areas (the amendments to effectuate all of the foregoing are hereinafter collectively referred to as the "Plan Amendments and Fiscal Merger"); WHEREAS, on April 27, 2005, the Agency Board and the City Council held a joint public hearing to consider the proposed Plan Amendments and Fiscal Merger and the proposed implementation plan (the "Implementation Plan") which was included as Appendix H of the Report to Council prepared in connection with the proposed Plan Amendments and Fiscal Merger; WHEREAS, in letters dated April 27, 2005, the County of San Mateo ("County") submitted written objections to the proposed Plan Amendments and Fiscal Merger; WHEREAS, on May 11, 2005, the South San Francisco City Council ("City Council") adopted written findings ("Findings") in response to such objections, introduced ordinances to adopt the Plan Amendments and Fiscal Merger, and directed Agency staff to continue negotiations with the County regarding the County's objections; WHEREAS, Agency and County staff have proposed measures ("Mitigation Measures") to mitigate the fiscal impact of the proposed Plan Amendments and Fiscal Merger which Mitigation Measure are consistent with the Findings and are set forth in the 757843-1 1 Settlement and Release Agreement ("Settlement Agreement") attached hereto as Exhibit A. WHEREAS, the proposed Mitigation Measures include the construction and installation of certain public improvements as more particularly described in the Settlement Agreement (the "Public Improvements"), and CRL Section 33445 provides that a redevelopment agency may, with the consent of the legislative body, pay for the cost of construction and installation of facilities and other improvements which are publicly owned if the legislative body and the agency determine all of the following: 1. The improvements are of benefit to the project area or the immediate neighborhood in which the project is located; 2. No other reasonable means of financing the improvements is available to the community; and 3. The payment of funds for the cost of the improvements will assist in the elimination of one or more blighting conditions inside the project area, and will be consistent with the implementation plan adopted by the redevelopment agency; WHEREAS, the construction and installation of public access and other improvements to the San Bruno Mountain recreational area in the area immediately adjacent to the Downtown/Central, Gateway and U.S. Steel/Shearwater project areas will be of benefit to such project areas and will assist in the elimination of blighting conditions therein because such proj ect areas are characterized by a lack of adequate open space and recreational facilities; WHEREAS, the construction and installation of the other Public Improvements will be of benefit to the project areas and will assist in the elimination of blighting conditions therein because WHEREAS, the County Board of Supervisors has determined that no other source of funds is reasonably available to the County to finance the projects identified in the Settlement Agreement as revenue that might otherwise be available for such purposes is committed for other purposes; WHEREAS, Agency and City staff are aware of no other source of funds reasonably available to the City or the Agency to finance the projects identified in the Settlement Agreement as the only other source available for such purpose would be City general fund revenues which are committed for the provision of essential public services such as police and fire services; WHEREAS, CRL Section 33490 (a)(1)(A) provides that a redevelopment agency may amend an implementation plan after conducting a public hearing on the proposed amendment following publication of notice once per week for three successive weeks in accordance with Government Code Section 6063; and 757843-1 2 WHEREAS, the Settlement Agreement provides that compliance with all requirements oflaw, including without limitation the completion of any required environmental review and the adoption by the County, the City and the Agency of all applicable required fmdings is required prior to the funding of the projects identified in the Settlement Agreement. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San Francisco hereby: 1. Finds, based upon the foregoing Recitals, that (i) the expenditure of tax. increment funds to undertake the projects set forth in the Settlement Agreement will be of benefit to the Project Areas, (ii) no other reasonable means of financing such projects is reasonably available, and (iii) the expenditure of tax. increment funds to install and construct the public improvements identified in the Settlement Agreement will eliminate blighting conditions in the Project Areas; 2. Directs Agency staff to schedule and publish notice for a public hearing to consider amendments to the Implementation Plan consistent with the intent of this Resolution; 3. Authorizes the Mayor, the City Manager, or the designee of either to execute and deliver the Settlement and Release Agreement, substantially in the form attached hereto. 4. Authorizes the Mayor, the City Manager or the designee of either to execute and deliver such other instruments and to take such other action as necessary to carry out the intent of this Resolution. * * * * * * I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a meeting held on the _ day of , 2005 by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: City Clerk 757843-1 3 SETTLEMENT AND RELEASE AGREEMENT THIS SETTLEMENT AND RELEASE AGREEMENT ("Agreement") is entered into as of , 2005, by and between the County of San Mateo, a public body corporate and politic ("County"), the City of South San Francisco, a municipal corporation ("City") and the Redevelopment Agency of the City of South San Francisco, a public agency ("Agency"). County, City and Agency are hereinafter referred to collectively as the "Parties." WHEREAS, pursuant to California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) ("CRL"), the City and the Agency have proposed to amend the redevelopment plans for the City's El Camino Corridor, Downtown/Central, Gateway, and U.S. Steel/Shearwater project areas (hereafter, the foregoing are referred to individually as a "Project Area" and collectively as the "Project Areas") in order to extend the time limit within which the Agency may exercise eminent domain to acquire nonresidential property in the Downtown/Central Project Area and the original El Camino Corridor Project Area, add territory to the Downtown/Central Project Area, and fiscally merge the four Project Areas (the amendments to effectuate all of the foregoing are hereinafter collectively referred to as the "Plan Amendments and Fiscal Merger"); WHEREAS, in connection with the proposed Plan Amendments and Fiscal Merger, the Agency and the City have prepared and undertaken a series of studies, analyses, consultations, and public hearings, all in accordance with the requirements of the CRL; WHEREAS, on April 27, 2005, the Agency and the City held a joint public hearing on the proposed Plan Amendments and Fiscal Merger; WHEREAS, in letters dated Apri127, 2005, the County submitted written objections to the proposed Plan Amendments and Fiscal Merger; WHEREAS, on May 11,2005, the South San Francisco City Council ("City Council") adopted written findings in response to such objections, introduced ordinances to adopt the Plan Amendments and Fiscal Merger, and directed Agency staff to continue negotiations with the County regarding the County's objections; WHEREAS, Agency and County staff have proposed measures ("Mitigation Measures") which would mitigate the fiscal impact on the County of the proposed Plan Amendments and Fiscal Merger; WHEREAS, CRL Section 33352(n) provides that in response to objections raised by aD affected taxing entity, a redevelopment agency may adopt mitigation measures including redevelopment plan amendments which limit the duration of the redevelopment plan or the total amount of tax increment to be received by the agency, or which address the proposed use, size, density, or location of development to be assisted by the agency; and WHEREAS, the City Council, the governing board of the Agency ("Agency Board") and the County Board of Supervisors ("County Board") have reviewed and approved the -1- adoption of the Mitigation Measures and have reviewed and approved the execution of this Agreement. NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows. 1. Limitation on Receipt of Tax Increment. The Agency will not receive taxes allocated to the Agency pursuant to Health and Safety Code Section 33670(b) from the Gateway Project Area after the earlier of (i) June 30, 2020, or (ii) the date upon which the combined tax increment allocation limit for the merged Project Areas is reached. The Agency and the City agree to include the foregoing limitation in the redevelopment plan amendment for the Gateway Project Area. 2. Assistance to County Projects. Following compliance with all requirements of law, including without limitation, the completion of any required environmental review and the adoption by the County Board, the Agency Board, and the City Council of all applicable findings required under CRL Section 33445, as a settlement of any and all threatened litigation and asserted or unasserted claims by the County against the Agency or City in connection with the Plan Amendments and Fiscal Merger, the Agency agrees that in order to avoid litigation and (without admitting any liability or wrongdoing), it will fund some or all of the public improvements identified in Exhibit A hereto, or such other projects as may be mutually agreed upon by the Agency and the County, by making payments in an aggregate amount not to exceed five million dollars ($5,000,000). At the sole discretion of County, such payments by the Agency shall be in the form of (1) reimbursement to the County for completed work on projects approved pursuant to this Agreement, (2) rent payment waivers by the Agency, or (3) direct payment to third parties when such payments are for work completed on projects approved pursuant to this Agreement and approved in writing by the County. The allocation of the five million dollars ($5,000,000) among the projects shall be as recommended by the County and approved by the Agency Executive Director which approval shall not be unreasonably withheld. The parties agree that payments or cost waivers provided by Agency pursuant to this Agreement shall not exceed a total aggregate sum of $2,000,000 during fiscal years 2005-06 through 2006- 07 and a total aggregate sum of $3,000,000 during the period commencing with fiscal year 2007- 08. Notwithstanding the prior sentence, the parties agree that if the County elects to receive the rent waiver identified in Exhibit A, the time period for such waiver shall continue for 6.33 years and the value of those rent waivers shall deducted from and considered a part of the total obligation of $5,000,000. With regard to each of the public improvements identified in Exhibit A hereto, the parties have each determined that: i) the buildings, facilities, structures, or other improvements are of benefit to one or more of the Project Areas or the immediate neighborhood in which the public improvement is located; ii) other than as described in this Agreement, the County/Agency has no other reasonable means of financing the public improvements; and iii) the payment of funds for the acquisition of land or the cost the other improvements will assist in the elimination of one or more blighting conditions inside the Project Area or help provide housing for low- or moderate- income persons, and is consistent with the implementation plan adopted by the Agency pursuant to CRL Section 33490. The parties further agree that to the extent the Agency is required to 760691-1 amend the implementation plans for any of the redevelopment projects within South San Francisco in order to provide payments or cost waivers for a particular project pursuant to this Agreement, the Agency shall commence and complete the necessary amendment process within six months of execution of this Agreement. 3. Release of Claims; Covenant Not to Sue. The County hereby releases and forever discharges City and Agency from any and all claims, demands, proceedings, causes of action, orders, obligations, and liabilities directly or indirectly relating to or arising from or in connection with any challenge relating to the validity of the Plan Amendments and Fiscal Merger, the adoption or approval of the Plan Amendments and Fiscal Merger, or any of the findings or determinations of the Agency Board or the City Council made in connection with the Plan Amendments and Fiscal Merger, whether known or unknown, suspected or unsuspected, both at law and in equity, which County now has, has ever had, or may hereafter have, and whether or not relating to claims pending on, or asserted after, the date hereof. Without limiting the generality of the foregoing, it is understood that this Agreement is a full and final release of any and all claims relating to the validity of the Plan Amendments and Fiscal Merger, the adoption or approval of the Plan Amendments and Fiscal Merger, or any of the findings or determinations of the Agency Board or the City Council made in connection with the Plan Amendments and Fiscal Merger. The County hereby irrevocably covenants to refrain from directly or indirectly asserting any claim or demand, or commencing, instituting, supporting or causing to be commenced, instituted or supported, any action or proceeding of any kind, including without limitation any action or proceeding brought pursuant to Chapter 5 (commencing with Section 33500) of the CRL, by the County or any third party to question the validity of the Plan Amendments and Fiscal Merger, the adoption or approval the Plan Amendments and Fiscal Merger, or any of the findings or determinations of the Agency Board or the City Council made in connection with the Plan Amendments and Fiscal Merger. 4. Indemnity. Without in any way limiting any of the rights and remedies otherwise available to City and Agency, County shall indemnify, defend (with counsel approved by City and Agency) and hold City and Agency harmless from and against all loss, liability, claim, damage (including incidental and consequential damages) and expense (including costs of investigation and defense and reasonable consultants' and attorneys' fees) directly or indirectly relating to or arising from or in connection with (i) the assertion by or on behalf of County of any claim or County's initiation or support of any claim, demand, action or proceeding concerning any matter purported to be released pursuant to this Agreement, or (ii) any other violation of this Agreement by County, including without limitation, County's support of any third party claim, demand, action or proceeding which claim, demand, action or proceeding directly or indirectly relates to or arises from, or in connection with, any claim or other matter purported to be released pursuant to this Agreement. 5. Waiver. County acknowledges and agrees that County hereby waives all rights under Section 1542 of the Civil Code of California, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, 760691-1 which if known by him must have materially affected his settlement with the debtor." 6. Settlement. The Parties acknowledge and agree that this Agreement is the compromise of a disputed claim, and that none of the agreements set forth herein are intended to be or shall be construed as an admission of liability on the part of any Party with respect to any claim or other matter purported to be released pursuant to this Agreement. 7. Representations and Warranties. 7.1 County. County hereby represents and warrants that (i) County has full power and authority to enter into this Agreement; (ii) all actions necessary on the part of County to authorize the execution hereof have been undertaken; and (iii) the persons executing this Agreement on County's behalf are duly authorized to do so. 7.2 City. City hereby represents and warrants that (i) City has full power and authority to enter into this Agreement; (ii) all actions necessary on the part of City to authorize the execution hereof have been undertaken; and (iii) the persons executing this Agreement on City's behalf are duly authorized to do so. 7.3 Agency. Agency hereby represents and warrants that (i) Agency has full power and authority to enter into this Agreement; (ii) all actions necessary on the part of Agency to authorize the execution hereof have been undertaken; and (iii) the persons executing this Agreement on Agency's behalf are duly authorized to do so. 8. Severability; Construction; Entire Agreement. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect unless the intent of the Parties would thereby be defeated. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable. All words used in this Agreement will be construed to be of such gender or number, as the circumstances require. Each Party participated in the negotiation and drafting of this Agreement with the benefit of counsel. This Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it. This Agreement contains the final, complete and exclusive statement of the agreement between the Parties pertaining to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings or agreements pertaining thereto. 9. Amendment, Governing Law; Attorneys' Fees; Counterparts. This Agreement (i) may not be modified except in a writing signed by the Parties, and (ii) shall be governed by and construed under the laws of the State of California without regard to principles of conflicts of law. In any action at law or in equity, arbitration or other proceeding arising in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees and other costs, including but not limited to court costs and expert and consultants' fees incurred in connection with such action, in addition to any other relief awarded. This Agreement may be 760691-1 executed in multiple counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. 10. Effective Date of the Agreement. This Agreement shall be effective upon completion of the following items: (1) approval and execution by the County, Agency, and City and (2) the expiration of any applicable statute of limitations related to approval of the Plan Amendments and Fiscal Merger and the absence of any legal challenge to the approval of the Plan Amendments and Fiscal Merger filed within the appropriate statute of limitations. The parties agree that in the event that an individual or entity other than a party hereto files a legal challenge to the Plan Amendments and Fiscal Merger, the City and Agency shall not assert a statute of limitations defense to any claim or action instituted by the County (provided that the any legal action instituted by the County is filed with 14 days after the expiration of the appropriate statute of limitations). To confirm the effectiveness of the foregoing sentence the parties agree to a 14 day tolling of the limitations period with regard to any legal action by the County challenging the Plan Amendments and Fiscal Merger. IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first written above. COUNTY OF SAN MATEO By: Its: Attest: County Clerk Approved by: County Counsel CITY OF SOUTH SAN FRANCISCO By: Its: Attest: City Clerk Approved by: City Attorney 760691-1 REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO By: Its: Attest: Agency Secretary Approved by: Agency Counsel 760691-1 EXHIBIT A COUNTY PROJECTS Subject to the terms and conditions of the Agreement, the parties agree that the following projects may be funded from the five million ($5,000,000) total amount set forth in the Agreement. 1. Safe Harbor Improvements 2. Safe Harbor Client Housing Rehabilitation 3. South San Francisco Health Clinic Improvements Cost Waiver 4. South San Francisco Health Clinic Building Improvements 5. South San Francisco Health Clinic Rent Waiver (through end of current term of lease, which is 6.33 years) 6. Reimbursement of costs for Westborough Guard Rail 7. Construction and installation of access and other improvements, including a Habitat Conservation Plan Amendment as necessary to implement the foregoing, to the San Bruno Mountain recreational area in the area immediately adjacent to the Project Areas. 760691-1 - :\)~\l S:44 lR ~ C) v 0 '4l~l";\~ Staff Report AGENDA ITEM #8 DATE: TO: FROM: SUBJECT: June 8, 2005 Honorable Mayor and City Council Marty Van Duyn, Assistant City Manager ARCHITECTURAUENGINEERING DESIGN AND CONSTRUCTION MANAGEMENT SERVICES FOR THE NEW SOUTH SAN FRANCISCO COMMUNITY CENTER RECOMMENDA TION It is recommended that the City Council adopt a resolution awarding the ArchitecturallEngineering Design Services to Marcy Wong & Donn Logan Architects in the amount of $462,000.00, and the Construction Management Services to RGM and Associates in the amount of $490,780.00 for the construction of the new South San Francisco Community Center located along Tennis Drive at Orange Memorial Park. BACKGROUNDIDISCUSSION The existing Orange Park Community Center was completed in 1949. While many of the original features of the building had been updated, the structure remains as its original design. On-going maintenance of the building has preserved its functionality for some limited programming, however, the building is very outdated and inadequate for the full range of community services that is offered at other community centers. Many groups within the community are reluctant to use the building in its current condition. In 1990, the City prepared a citywide Parks, Recreation and Open Space Master Plan, as well as an Orange Park Master Plan to create a vision for our parks and identify the needs for future development. The approved plan shows the demolition of the existing community center structure at Orange Park. This proposal was the result of a feasibility study of building renovation versus its replacement. The existing 2,300 square feet single activity room structure is proposed to be replaced with a larger, approximately 6,000 square feet structure. The new structure will conform to ADA standards and will have two (2) activity rooms, restroom facilities, ample storage, kitchen, and office spaces. Site components are a major portion of the project and enhance the functionality of the area. The new community center building will be complimented with outdoor patio spaces, and new basketball courts. Mature eucalyptus and magnolia groves in the area will be retained and landscape improvements will enhance the aesthetics of the area. A separate restroom building is planned to serve the-new basketball courts and soccer field. The area will also include new benches, area lighting, and /other site furniture and improvements. ./ Staff Report Subject: ARCHITECTURAIJENGINEERING DESIGN AND CONSTRUCTION MANAGEMENT SERVICES FOR THE NEW SOUTH SAN FRANCISCO COMMUNITY CENTER Page 2 of 3 On January 15,2004, the City Council authorized the City Manager to submit an application for the 2001 Urban Park Act Grant Program (CA Department of Parks and Recreation) for the construction of the new community center and related site improvements. The City was granted approval, and the 2001 Urban Park Act Grant Program Contract, in the amount of $2,340,000.00, was signed and approved by the State of California Department of Parks and Recreation on December 2004. On February 14, 2005, staff circulated a Request for Proposal (RFP) for the Jomt architectural/engineering design services, and construction management services for the proposed community center. The RFP was published in the San Mateo Times, circulated and posted at various Builders Exchanges and the City's internet website. Proposals were due to the City on March 23, 2005. The City received eight (8) proposals from Architectural/Engineering and Construction Management firms of which five (5) were selected for the interviews: BSA Architects/Cambridge CM, Inc. (Selected for interview) Noll & Tam Architects/Turner Construction (Selected for interview) Group 4 Architects/Swinnerton Group CM (Selected for interview) Pinnacle DB, Inc./Pinnacle DB, Inc. (Selected for interview) Marcy Wong and Donn Logan Architects/RGM & Associates (Selected for interview) The Zahn Group Construction Management Services MocklWallace Architects and Construction Managers DLM Architecture The interview panel consisted offour (4) City Staff (Sharon Ranals, Terry White, John Wong and Ray Razavi) and Planning Commissioner (Eugene Sim). The interviews were conducted on April 19, 2005 and the panel selected the team of "Marcv Wong & Donn Logan Architects and RGM & Associates" for the architectural/engineering and construction management services for the new Community Center. The Project Architect, Marcy Wong and Donn Logan of Berkley, CA has extensive experience in the design of new community and recreation buildings ranging from 3,000 sf to 30,000 sf throughout California including the Cities of Fremont, Emeryville, Santa Cruz, Pleasanton and San Luis Obispo. The new Community Center will be designed and constructed to incorporate Green Building standards in order to obtain LEED certification as a Green Building. The LEED (Leadership in Energy and Environmental Design) Green Building Rating System@ is a voluntary, consensus-based national standard for developing high-performance, sustainable buildings. Members of the U.S. Green Building Council representing all segments of the building industry are responsible for the development of the LEED criteria for certification. The Project Architect has been certified as a LEED Professional and is capable of obtaining LEED certification for the City's new Community Center. The Project Construction Manager, RGM and Associates of Concord, CA has extensive experience with small through large-scale public works projects including "Multiple Prime" construction contracts. They will be working as a team with the project architect to deliver the project on schedule and within budget. "Multiple Prime" contracting means the City will contract directly with all the Staff Report Subject: Page 3 of 3 ARCHITECTURAlJENGINEERING DESIGN AND CONSTRUCTION MANAGEMENT SERVICES FOR THE NEW SOUTH SAN FRANCISCO COMMUNITY CENTER sub-contractors. The Construction Manager will then manage each of the approximately 30 contractors separately. This form of construction contracting provides more flexibility for the construction schedule and change orders with the intent of a lower total construction cost and faster completion. The additional cost of Construction Manager (approximately $180K for this project) to manage the multiple-primes is usually part of a general contractor fee plus its profit margin to manage the subcontractors. Traditionally, the City would hire an AlE firm to complete the design and prepare the construction documents. The City would then advertise and award the contract to one General Contractor who in turn has multiple sub-contractors. For any changes to the construction, the City would negotiate only with the general contractor. The Construction Manager would only manage the cost and schedule of the General Contractor. For Multiple-Prime contracts (similar to the new Central Fire Station project), the AlE and the Construction Manager would divide construction documents into multiple packages for bidding by contractor from different trades. The Construction Manager would plan and manage the activities of all multiple contractors. This provides the City with more control over the schedule and cost of construction changes. If one construction activity has to be modified, it would not impact other contractors working on the project. The proposed fee for the AlE firm is $462,000 and for the Construction Management of Multiple- Primes is $490,780 for a total of $952,780. This amount is within the range of other proposed fees for the AlE services and Construction Management of Multiple-Prime project ($845,000 to $1,176,811). FUNDING: Funding for the project budget is included as part of the 2004-2005 Capital Improvement Program. Below is the breakdown of the project budget: $2,340,000 268,000 165,000 357,000 750,000 $3,880,000 Urban Park Act Grant Fund - Competitive Per Capita Park Bond Grant Funds, encumbered by State - Non-competitive Roberti-Z'Berg Park Bond Block Bonds - Non-competitive, encumbered by State Zone IV Developer Fees, on hand Fairfield Development Park-in-Lieu Fees, anticipated to be received in 2006 Total By Approved' Marty Van Duyn Assistant City Mana Attachment: Resolution Consultant Agreement Marcy Wong & Donn Logan Architects Consultant Agreement RGM & Associates RESOLUTION NO. CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AWARDING THE ARCHITECTURAl)ENGINEERING DESIGN SERVICES TO MARCY WONG & DONN LOGAN ARCHITEcrS IN THE AMOUNT OF $462,000 AND THE CONSTRUCTION MANAGEMENT SERVICES TO RGM AND ASSOCIKfES IN THE AMOUNT OF $490,780 FOR THE CONSTRUCTION OF THE NEW SOUTH SAN FRANCISCO COMMUNITY CENTER LOCATED ALONG TENNIS DRIVE AT ORANGE MEMORIAL PARK WHEREAS, staff recommends awarding the Architectural/Engineering Design Services to Marcy Wong & Donn Logan Architects in the amount of $462,000 and the Construction Management Services to ROM and Associates in the amount of $490,780 for the construction ofthe New South San Francisco Community Center located along Tennis Drive at Orange Memorial Park; and WHEREAS, funding for the project budget is included as part of the 2004-2005 Capital Improvement Program. Below is the breakdown of the project budget: $2,340,000 268,000 165,000 357,000 750,000 $3,880,000 Urban Park Act Grant Fund - Competitive Capita Park Bond Grant Funds, encumbered by State - Non-competitive Roberti-Z'Berg Park Bond Block Bonds - Non-competitive, encumbered by State Zone IV Developer Fees, on hand Fairfield Development Park-in-Lieu Fees, anticipated to be received in 2006 Total NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council hereby awards the Architectural/Engineering Design Services to Marcy Wong & Donn Logan Architects in the amount of $462,000 and the Construction Management Services to RGM and Associates in the amount of $490,780 for the construction of the New South San Francisco Community Center located along Tennis Drive at Orange Memorial Park. BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute the contracts on behalf of the City of South San Francisco. * * * * * * I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a meeting held on the _ day of , 2004 by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: City Clerk S:\Current Reso's\6-8-05new .community .center.res.doc ORANGE PARK COMMUNITY CENTER CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND MARCY WONG AND DONN LOGAN, ARCHITECTS THIS AGREEMENT for consulting services is made by and between the City of South San Francisco ("City") and Marcy Wonq and Donn Loqan Architects ("Consultanf') (together sometimes referred to as the "Parties") as of June 8, 2005 (the "Effective Date"). Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A, attached hereto and incorporated herein, at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on December 1,2007, the date of completion specified in Exhibit A, and Consultant shall complete the work described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8. Consultant shall not be responsible for delays beyond its reasonable control. 1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession. Consultant shall prepare all work products required by this Agreement in a substantial, first-class manner and shall conform to the standards of quality normally observed by a person practicing in Consultant's profession. 1.3 Assi~nment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.1 above and to satisfy Consultant's obligations hereunder. Consultant shall not be responsible for delays beyond its reasonable control. Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed Four Hundred Sixty Two Thousand ($462,000.00), notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal, attached as Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 1 of 14 Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. rNOTE TO STAFF: THE FOllOWING PROVISIONS OF THIS SECTION MAY BE ALTERED AS NECESSARY TO FIT THE CIRCUMSTANCES OF A PARTICULAR AGREEMENT.] 2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information: · Serial identifications of progress bills; i.e., Progress Bill No.1 for the first invoice, etc.; · The beginning and ending dates of the billing period; · A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; · The Consultant's signature. 2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. 2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within sixty (60) days after substantial completion or beneficial occupancy of the project and submittal to City of a final invoice, if all services required have been satisfactorily performed. 2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 2 of 14 In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the following fee schedule: 2.6 Reimbursable Expenses. Reimbursable expenses are specified below, and shall not exceed Ten Thousand Dollars ($10,000.00). The City may adjust the said amount as required to meet the need for seNices. 2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 2.9 Authorization to Perform Services. The Consultant is not authorized to perform any seNices or incur any costs whatsoever under the terms of this Agreement until receipt of written authorization from the Contract Administrator. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the seNices required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall provide Certificates of Insurance, attached hereto and incorporated herein as Exhibit B, indicating that Consultant has obtained or currently maintains insurance that meets the requirements of this section and under forms of insurance satisfactory, in all respects, to the City. Consultant shall maintain the insurance Consulting SeNices Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 3 of 14 policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. 4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 General reauirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non- owned automobiles. 4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 or GL 0002 (most recent editions) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. Automobile coverage shall be at least as broad as Insurance Services . Office Automobile Liability form CA 0001 (ed. 12/90) Code 8 and 9. No endorsement shall be attached limiting the coverage. 4.2.3 Additional reauirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy: Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 4 of 14 a. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. b. Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. 4.3 Professional Liability Insurance. 4.3.1 General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions. Any deductible or self-insured retention shall not exceed $150,000 per claim. 4.3.2 Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise, at the Consultant's sole cost and expense, any extended reporting provisions of the policy, if the Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement. 4.4 All Policies Requirements. 4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. 4.4.2 Verification of coveraQe. Prior to beginning any work under this Agreement, Consultant shall furnish City with complete certified copies of all policies, including Consulting SeNices Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 5 of 14 complete certified copies of all endorsements. All copies of policies and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. 4.4.3 Notice of Reduction in or Cancellation of CoveraQe. A certified endorsement shall be attached to all insurance obtained pursuant to this Agreement stating that coverage shall not be suspended, voided, canceled by either party, or reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. In the event that any coverage required by this section is reduced, limited, cancelled, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than ten (10) working days after Consultant is notified of the change in coverage. 4.4.4 Additional insured; primary insurance. City and its officers, employees, agents, and volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant in the course of providing services pursuant to this Agreement. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. A certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. 4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. During the period covered by this Agreement, only upon the prior express written authorization of Contract Administrator, Consultant may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Consultant procure a bond, guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. 4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 6 of 14 subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 4.4.7 Variation. The City may approve a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that the City's interests are otherwise fully protected. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: · Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; · Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or · Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the gross negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 7 of 14 indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Section 6. STATUS OF CONSULTANT. 6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. 6.2 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another govemmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 8 of 14 Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon 30 days' written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assiqnment and Subcontractinq. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 9 of 14 determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach bv Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall include, but not be limited to, the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties unless required by law. 9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 10 of 14 evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. City shall indemnify and hold harmless the Consultant for any use of these documents for any project except the one covered under this agreement. 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. Section 10 MISCELLANEOUS PROVISIONS. 10.1 Attornevs' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County San Mateo or in the United States District Court for the First District of California. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and Assiqns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 10.6 Use of Recvcled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 11 of 14 10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code ~ 1090 et.seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code ~ 1090 and, if applicable, will be disqualified from holding public office in the State of California. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: Any written notice to City shall be sent to: City Clerk City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 12 of 14 Seal and Signature of Registered Professional with report/design responsibility. 10.12 Inteqration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. 10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 13 of 14 The Parties have executed this Agreement as of the Effective Date. CITY OF SOUTH SAN FRANCISCO CONSULTANT Barry M. Nagel, City Manager Name: Title: Attest: Sylvia Payne, City Clerk Approved as to Form: Steven T. Mattas, City Attorney 207532_1 Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects June 8, 2005 Page 14 of 14 EXHIBIT A SCOPE OF SERVICES I. . GENERAL DESCRIPTION The architectural and engineering services are for the preparation of plans and specifications for construction observation services for a new South San Francisco Community Center, located at the Orange Memorial Park, along Tennis Drive, South San Francisco, California. The Community Center shall be a single story building of approximately 6,000 square feet plus exterior amenities. The New Community Center Building and the Amenities shall be documented as one package through each phase up to and including Construction Documents. Elements of the Community Center Building and the Amenities may be identified as additive alternates. The Building and Amenities include the following components: A. THE NEW COMMUNITY CENTER BUllJ)ING 1. One Activity Room with an occupancy load of at least 100 2. One Activity Room with an occupancy load of at least 130 3. Two Staff Offices 4. One Computer Learning Room (for 8 workstations) 5. One Full Service Kitchen (also suited for cooking classes) 6. Storage Room/s (To accommodate all storage requirements for the activity rooms, full service kitchen and office & janitorial supplies) 7. Separate Male & Female Restrooms 8. Common Hallway & Lobby Area 9. Lighting, Planting, Landscaping & Irrigation 10. Perimeter Walkway and Seating Area 11. Center Plaza Area a. Interior and Space Planning concept that will include furnishings, appliances, equipment and other needed items for the functional needs of the facility. B. THE NEW COMMUNITY CENTER AMENITIES 1. Two Complete Full-Court Basketball Courts (Outdoor) 2. Separate Male & Female Restrooms 3. Large Storage Room (Connected to the Restroom Building, and can be used as an additional storage area for the new community center building, and other items associated with these amenities) 4. Perimeter Walkway and Seating Area 5. Lighting, Planting, Landscaping & Irrigation plans Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects--Exhibit A June 8, 2005] Page 1 of 6 II. ARCHITECTURAL AND ENGINEERING SERVICES 1. CONCEPTUAL DESIGN This phase shall involve detailed input from the City to the Architect for program refinement. 1. Prepare and submit at least three (3) conceptual design options shown in site and floor plans, and exterior elevations for each option. 2. Attend up to three (3) meetings with City staff and City Commissions to discuss various elevations and floor layout plans. 3. Coordinate as needed with the project's Construction Manager (RGM) which will prepare and submit detailed asbestos or other hazardous materials abatement plan and projected cost. 4. Prepare a final report outlining the various options and make a recommendation based on input by City staff and the Parks and Recreation Commission. 5. Revise and finalize the conceptual plans per City requirements. 6. Beyond the Conceptual Design Phase, the basic services shall be delivered in Schematic Design, Design Development, Construction Documents, Construction Bidding, and Construction Administration phases. These phases shall include services by the Consultant (Architect) and Sub-consultants (Structural, Mechanical, Plumbing, Electrical, Civil, and Landscape Architect). 2. SCHEMATIC DESIGN DOCUMENTS Consultant shall provide Schematic Design Documents based on the selected concept. The documents shall establish the schematic design of the project illustrating the scale and relationship of the project components. The Schematic Design Documents shall include a site plan and preliminary building plans, sections and elevations. Preliminary selections of major building systems and construction materials shall be noted on the drawings or described in writing. This phase includes up to three meetings with the staff. 3. DESIGN DEVELOPMENT DOCUMENTS Consultant shall provide Design Development Documents based on the approved Schematic Design Documents. The Design Development Documents shall illustrate and describe the refinement of the design of the Project, establishing the scope, relationships, forms, size and appearance of the project by means of plans, sections and elevations, typical construction details, and equipment layouts. The Design Development Documents shall include outline specifications that identify major materials and systems and establish in general their quality levels. This phase includes up to three meetings with City staff. 4. CONSTRUCTION DOCUMENTS Consultant shall provide Construction Documents based on the approved Design Development Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects--Exhibit A June 8, 2005] Page 2 of 6 Documents. The Construction Documents shall set forth in detail, the requirements for construction of the project. The Construction Documents shall include Drawings and Specifications that establish in detail the quality levels of materials and systems required for the project. This phase includes up to three meetings with City staff. 5. CONSTRUCTION BIDDING The City shall pay directly for the cost of Bidding Documents reproduction or shall reimburse the Construction Manager for such expenses. The Architect shall assist the Construction Manager in the preparation of written responses to questions from prospective bidders and provide clarifications and interpretations of the Bidding Documents in the form of addenda. The responses will be distributed to all prospective bidders by the Construction Manager. 6. CONSTRUCTION ADMINISTRATION SERVICES Architect shall review properly prepared, timely requests relayed through the Construction Manager for additional information about the Construction Documents. A properly prepared request for additional information about the Construction Documents shall be in a form prepared or approved by the Architect and Construction Manager and shall include a detailed written statement that indicates the specific Drawings or Specifications in need of clarification and the nature of clarification requested. Interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Construction Documents and shall be in writing or in the form of drawings. When making such interpretations and initial decisions, the Architect shall endeavor to secure faithful performance by both City and Contractors, shall not show partiality to either, and shall not be liable for the results of interpretations or decisions so rendered in good faith. The Architect, as representative of the City, shall visit the site at intervals appropriate to the stage of the construction operations (1) to become generally familiar with and to keep the City informed about the progress and quality of the portion of the Work completed, and (2) to determine in general if the Work is being performed in a manner indicating that the Work when fully completed will be in accordance with the Construction Documents. However, the Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect shall neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work. The Architect shall report to the City and Construction Manager known deviations from the Construction Documents and from the most recent construction schedule submitted by the Construction Manager. However, the Architect shall not be responsible for the Contractors' failure to perform the Work in accordance with the requirements of the Construction Documents. The Architect shall not have control over or charge of and shall not be responsible for acts or omissions of the Construction Manager, Contractors, Sub-Contractors, or their agents, or employees or of any Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects--Exhibit A June 8, 2005] Page 3 of 6 other persons or entities performing portions of the Work. The Architect shall at all times have access to the Work wherever it is in preparation or progress. Communications by and with the Architect's Sub-consultants shall be through the Architect. The Architect shall have authority to make recommendations to the Construction Manager and the City to reject work that does not conform to the Construction Documents. Whenever the Architect considers it necessary or advisable, the Architect will have authority to make recommendations to the City and Construction Manager, to require inspection or testing of the Work in accordance with the provisions of the Construction Documents, whether or not such work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Construction Manager, Contractor, Sub-contractors, material and equipment suppliers, their agents or employees or other persons or entities performing portions of the work. The Architect shall review and approve or take other appropriate action upon the Contractor's submittal such as shop drawings, product data and samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Construction Documents. The Architect's action shall be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the City, Contractor or separate contractors while allowing sufficient time in the Consultant's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instruction for installation or performance of equipment or systems. The Architect's review shall not constitute approval of safety precautions or unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of the specific item shall not indicate approval of an assembly of which the item is a component. The Architect shall assist the Construction Manager in the determination of the date or dates of substantial completion and the date of final completion. The Construction Manager shall receive from the Contractor and forward to the City for the City's and Architect's review and records, written warranties, as-built documents and related documents required by the Construction Documents and assembled by the Contractors. The Architect's inspection shall be conducted with the Construction Manager and the City's designated representative to check conformance of the Work with the requirements of the Construction Documents and to verify the accuracy and completeness of the list submitted by the Contractor of Work to be completed or corrected. 7. ADDITIONAL SERVICES Any services not specifically provided for above shall be additional services. Only if mutually agreed to in writing by the City and Architect, shall Architect perform such additional services, and these services shall be in accordance with the firm's standard hourly rates. Additional services that may be requested or required by the City include the following: Consulting SeNices Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects--Exhibit A June 8, 2005] Page 4 of 6 1) Cost estimates by a construction cost estimating consulting firm (Saylor Consulting Group). 2) Specialty consulting such as acoustical engineering, telecommunications and a/v consulting, exhibit and other specialty lighting design. 3) Additional meetings with City Council, Planning Commission, or other bodies, or additional meetings with staff or the community. 4) Presentation level models and 3D renderings 5) Reviews beyond two reviews of each Shop Drawing, Product Data item, sample and similar submittal of the Contractor, unless caused by errors or omissions in the construction documents. 6) Site visits beyond sixteen site visits by the Consultant over the duration of the project during construction, including punch list and final inspection visits. 7) Inspections beyond three inspections for any portion of the Work to determine whether such portion of the Work is substantially complete in accordance with the requirements of the Construction Documents, unless caused by errors or omissions in the Construction Documents. 8) Inspections beyond two inspections for any portion of the Work to determine final completion, unless caused by errors or omissions in the Construction Documents. 9) Change Orders and Construction Change Directives requiring evaluation of proposals, including the preparation or revision of Construction Documents unless they were caused by errors and omissions in the Construction Documents. 10) Providing consultation concerning replacement of Work resulting from fire or other cause during construction. 11) Evaluation of an extensive number of claims submitted by the City's consultants, the Contractor or others in connection with the Work. 12) Preparation of design and documentation for alternate bid or proposal requests proposed by the City for items that are not included within the original building program. 13) Contract Administration Services provided 60 days after the date of Substantial Completion of the Work. 14) Preparation of design changes to work previously approved or directed by the City. 15) Site utility or infrastructure upgrade design beyond the project boundary. 8. PROJECT SUSPENSION If the project is suspended or abandoned for more than two consecutive months, Consultant shall be compensated for all authorized services performed prior to the receipt of written notice from the City of such suspension or abandonment, together with reimbursable expenses then due. If the project is resumed after being suspended for more than two consecutive months, Consultant's compensation shall be adjusted as mutually agreed to compensate Consultant for any additional costs reasonable incurred as the result of the suspension. 9. BASIC SERVICES COMPENSATION The City agrees to compensate the Architect for providing the services noted above, as follows: Consulting SeNices Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects--Exhibit A June 8, 2005] Page 5 of 6 For services rendered in accordance with this Agreement, the basis for compensation shall be a lump sum fee in the amount of $ 411,000 payable on a monthly basis, based on the percentage of completion for the respective phase for the service rendered. Invoices will be submitted monthly and are due immediately and no later than thirty days after the invoice date. The portion of the lump sum fee applicable for each phase is listed below: Concept Design Phase Schematic Design Phase Design Development Phase Construction Documents Phase Bidding Phase Construction Phase Basic Services $ 25,000 $ 60,000 $ 75,000 $ 155,000 $ 16,000 $ 80,000 $ 411,000 10. ADDITIONAL SERVICES ALLOWANCE This allowance is available for additional services that the City may elect such as renderings, additional reimbursable expenses, additional meetings, additional analysis, cost estimating and LEED (Leadership in Energy and Environmental Design) certification. Additional Services Allowance $ 41,000 11. REIMBURSABLE EXPENSES Reimbursable expenses shall be reimbursed at cost plus a 10% handling fee, and shall include actual expenditures made by the Consultant and the Consultant's Sub-Consultants in the interest of the Project in the following categories: 1. Reproduction, plotting and photography 2. Postage, shipping and delivery 3. Long distance communications and facsimiles 4. Fees paid for securing approval of authorities 6. Mileage and other travel expenses out of the Bay Area The reimbursable expenses budget shall be initially set at $ 10,000, but may be augmented by the City as needed. Initial Reimbursable Expenses Allowance $ 10,000 Consulting Services Agreement between City of South San Francisco and Marcy Wong & Donn Logan Architects--Exhibit A June 8, 2005] Page 6 of 6 EXHIBIT B INSURANCE CERTIFICATES See Attached 207532_1 Consulting Services Agreement between City of City of South San Francisco and Marcy Wong & Donn Logan Architects --Exhibit B June 8, 2005 Page 1 of 1 SOUTH SAN FRANCISCO COMMUNITY CENTER CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND RGM and ASSOCIATES THIS AGREEMENT for consulting services is made by and between the City of South San Francisco ("City") and RGM and Associates ("Consultant") (together sometimes referred to as the "Parties") as of June 8, 2005 (the "Effective Date"). Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A, attached hereto and incorporated herein, at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on December 1, 2007, the date of completion specified in Exhibit A, and Consultant shall complete the work described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8. 1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession. Consultant shall prepare all work products required by this Agreement in a substantial, first-class manner and shall conform to the standards of quality normally observed by a person practicing in Consultant's profession. 1.3 Assi~nment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.1 above and to satisfy Consultant's obligations hereunder. Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed Four Hundred Ninety Thousand Seven Hundred Eiqhty Dollars ($490,780.00), notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal, attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services Consulting Services Agreement between City of South San Francisco and RGM and Associates DATE: May 25, 2005 Page 1 of 14 rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. fNOTE TO STAFF: THE FOllOWING PROVISIONS OF THIS SECTION MAY BE ALTERED AS NECESSARY TO FIT THE CIRCUMSTANCES OF A PARTICULAR AGREEMENT.] 2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information: · Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; · The beginning and ending dates of the billing period; · A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; · At City's option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense; · The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder, as well as a separate notice when the total number of hours of work by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours, which shall include an estimate of the time necessary to complete the work described in Exhibit A; · The Consultant's signature. 2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. 2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within sixty (50) days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed. Consulting Services Agreement between City of South San Francisco and RGM and Associates DATE: May 25, 2005 Page 2 of 14 2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the following fee schedule: 2.6 Reimbursable Expenses. Reimbursable expenses are specified below, and shall not exceed Eiqht Thousand Dollars ($8.000.00). Expenses not listed below are not chargeable to City. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded. 2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and Consulting Services Agreement between City of South San Francisco and RGM and Associates DATE: May 25, 2005 Page 3 of 14 amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall provide Certificates of Insurance, attached hereto and incorporated herein as Exhibit B, indicating that Consultant has obtained or currently maintains insurance that meets the requirements of this section and under forms of insurance satisfactory, in all respects, to the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. 4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 General reauirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non- owned automobiles. 4.2.2 Minimum scope of coveraae. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 or GL 0002 (most recent editions) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Consulting Services Agreement between City of South San Francisco and RGM and Associates DATE: May 25, 2005 Page 4 of 14 Form Comprehensive General Liability. Automobile coverage shall be at least as broad as Insurance SeNices Office Automobile Liability form CA 0001 (ed.12/90) Code 8 and 9. No endorsement shall be attached limiting the coverage. 4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy: a. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. b. Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. 4.3 Professional Liabilitv Insurance. 4.3.1 General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions. Any deductible or self-insured retention shall not exceed $150,000 per claim. 4.3.2 Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise, at the Consultant's sole cost and expense, any extended reporting provisions of the policy, if the Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement. Consulting SeNices Agreement between City of South San Francisco and RGM and Associates DATE: May 25, 2005 Page 5 of 14 4.4 All Policies Requirements. 4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. 4.4.2 Verification of covera~e. Prior to beginning any work under this Agreement, Consultant shall furnish City with complete certified copies of all policies, including complete certified copies of all endorsements. All copies of policies and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. 4.4.3 Notice of Reduction in or Cancellation of Covera~e. A certified endorsement shall be attached to all insurance obtained pursuant to this Agreement stating that coverage shall not be suspended, voided, canceled by either party, or reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. In the event that any coverage required by this section is reduced, limited, cancelled, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than ten (10) working days after Consultant is notified of the change in coverage. 4.4.4 Additional insured; primary insurance. City and its officers, employees, agents, and volunteers shall be covered as additional insureds with respeot. to each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant in the course of providing services pursuant to this Agreement. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. A certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. 4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. During the period covered by this Agreement, only upon the prior express written authorization of Contract Administrator, Consultant may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Consultant Consulting Services Agreement between City of South San Francisco and RGM and Associates DATE: May 25,2005 Page 6 of 14 procure a bond, guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. 4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 4.4.7 Variation. The City may approve a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that the City's interests are otherwise fully protected. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: · Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; · Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or · Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the gross negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been Consulting Services Agreement between City of South San Francisco and RGM and Associates DATE: May 25, 2005 Page 7 of 14 determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Section 6. STATUS OF CONSULTANT. 6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. 6.2 Consultant No Aaent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Section 7. LEGAL REQUIREMENTS. 7.1 GoverninCl Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 7.3 Other Governmental Reaulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. Consulting Services Agreement between City of South San Francisco and RGM and Associates DATE: May 25, 2005 Page 8 of 14 7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon 30 days' written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no Consulting Services Agreement between City of South San Francisco and RGM and Associates DATE: May 25, 2005 Page 9 of 14 obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach bv Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall include, but not be limited to, the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described Consulting Services Agreement between City of South San Francisco and RGM and Associates DATE: May 25, 2005 Page 10 of 14 above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties unless required by law. 9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. Section 10 MISCELLANEOUS PROVISIONS. 10.1 Attornevs' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County San Mateo or in the United States District Court for the First District of California. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. Consulting Services Agreement between City of South San Francisco and RGM and Associates DATE: May 25, 2005 Page 11 of 14 10.5 Successors and AssiQns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 10.6 Use of Recvcled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Govemment Code Section 81000 et seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code 91090 et.seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code 9 1090 and, if applicable, will be disqualified from holding public office in the State of California. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by Rav Razavi, City Enqineer ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: RGM and Associates 3230 Monument Way, Concord, CA 94518 Attention: Jon Novero/Donald Chew Any written notice to City shall be sent to: City Clerk City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Consulting Services Agreement between City of South San Francisco and RGM and Associates DATE: May 25, 2005 Page 12 of 14 10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. Not Applicable/ CM Contract Only Seal and Signature of Registered Professional with report/design responsibility. 10.12 Inte~ration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. 10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. Consulting Services Agreement between City of South San Francisco and RGM and Associates DATE: May 25, 2005 Page 13 of 14 The Parties have executed this Agreement as of the Effective Date. CITY OF SOUTH SAN FRANCISCO Barry M. Nagel, City Manager Attest: Sylvia Payne, City Clerk Approved as to Form: Steven T. Mattas, City Attomey 207532_1 CONSULTANT Name: Title: Consulting Services Agreement between City of South San Francisco and RGM and Associates DATE: May 25, 2005 Page 14 of 14 EXHIBIT A NEW SOUTH SAN FRANCISCO COMMUNITY CENTER SCOPE OF SERVICES 1. Assist the Project Architects in the Design, Planning and preparation of Construction Documents on the project. 2. Perform the plans constructability reviews. 3. Work with the project NE designers on the final plans and specifications. 4. Assist and coordinate the project construction estimates. Performs the final construction estimates for the project. 5. Responsible for the packaging of bids for multiple prime contracts. Coordinate with the Contract Administrator on the packaging of bids for multiple prime contracts to insure that all the bid packages are clear for the bidders. 6. Address all the clarification of bid items during the bidding period. 7. Assist in the evaluation and recommendation of the submitted bids. 8. Assist the city in the advertisement of the various aspects of the project for multiple prime contracts. 9. Attend the pre-bid meeting. 10. Attend the City Council Study session regarding the bid results, and to assist City staff in recommending the award to the City Council. 11. Perform all construction administration and inspection services during the construction period. Construction Administration shall include all incidentals and all associated work in performing the construction administration and construction inspection such as project monitoring, change orders evaluation and recommendation, maintain cost account records, maintain daily reports, review and approve contractor's payment schedule, preparation of punch-list work, coordinate utility connections, and other work to complete the project. Inspections consist of coordination and code required inspections with the City of South San Francisco's Building Division and Fire Department, County of San Mateo Health Department (as needed), Special Inspectors, Material Testing Laboratories, and other individual or firms working for the City. 12. Prepare the CPM construction schedule for the project. Responsible in updating the said construction schedule on a bi-weekly basis to insure timely completion of the project. 13. Manage and performs the superintendence and inspection of the construction project. 14. Responsible in coordinating all the construction work as stated in the multiple prime contracts. 15. Track, update and prepare the final as-built drawings, and coordinate the final project close-out for acceptance by the City. 16. Performs other incidental work to insure proper and timely completion of the project. Consulting Services Agreement between City of South San Francisco and RGM and Associates - Exhibit A May 25, 2005 Page 1 of 2 SCOPE OF SERVICES FEE SCHEDULE 1. Planning and Construction Documents (Item 1) 2. Constructibility and Coordination (Items 2-3) 3. Estimating and Final Project PS&E (Items 4-5) 4. Bidding and Award Process (Items 6-10) 5. Construction Administration & Inspection (Items 11-14) - 6. Occupancy & Final Close-out (Item 15) 7. Project Reimbursable Contract Total $ 38,920.00 $ 11,850.00 $ 8,850.00 $ 37,200.00 $365,560.00 $ 20,400.00 $ 8,000.00 $490,780.00 Note: Item 16 of the Scope of Services is evenly distributed to the various items stated above and part of the fee schedule. Also, the submitted proposal and fee schedule reflected in the proposal shall be included and is part of this agreement. 207532_1 Consulting Services Agreement between City of South San Francisco and RGM and Associates - Exhibit A May 25, 2005 Page 2 of 2 EXHIBIT B INSURANCE CERTIFICATES See Attached Certificates 207532_1 Consulting Services Agreement between City of City of South San Francisco and RGM and Associates - Exhibit B May 25, 2005 Page 1 of 1