HomeMy WebLinkAbout2021-11-10 e-packet@6:00Wednesday, November 10, 2021
6:00 PM
City of South San Francisco
P.O. Box 711
South San Francisco, CA
Municipal Services Building, Council Chambers
33 Arroyo Drive, South San Francisco, CA
City Council
Regular Meeting Agenda
HYBRID IN-PERSON/VIRTUAL MEETING
1
November 10, 2021City Council Regular Meeting Agenda
HYBRID IN-PERSON/VIRTUAL MEETING NOTICE
The purpose of conducting the meeting as described in this notice is to provide the safest environment for staff
and the public while allowing for public participation.
Councilmembers Coleman, Flores and Nicolas, Vice Mayor Nagales and Mayor Addiego and essential City
staff may participate via Teleconference.
Pursuant to Ralph M. Brown Act, Government Code Section 54953, all votes shall be by roll call due to
council members participating by teleconference.
This meeting will be conducted pursuant to the provisions of the Governor ’s Executive Orders N-29-20,
N-63-20 and N-08-21 allowing for deviation of Teleconference Rules required by the Brown Act & pursuant
to the order of San Mateo County Department of Public Health regarding gatherings during the coronavirus
(COVID-19) outbreak, and recommendations to follow social distancing procedures, the City of South San
Francisco will hold the meeting through a hybrid of in -person attendance with the City Council, designated staff,
and limited members of the public at the City Council Chambers and through the virtual platform, Zoom .
In-person attendance by members of the public will be subject to maximum capacity and current health and
safety protocols.
American Disability Act:
The City Clerk will provide materials in appropriate alternative formats to comply with the Americans with
Disabilities Act. Please send a written request to City Clerk Rosa Govea Acosta at 400 Grand Avenue, South
San Francisco, CA 94080, or email at all-cc@ssf.net. Include your name, address, phone number, a brief
description of the requested materials, and preferred alternative format service at least 72-hours before the
meeting.
Accommodations: Individuals who require special assistance of a disability -related modification or
accommodation to participate in the meeting, including Interpretation Services, should contact the Office of the
City Clerk by email at all-cc@ssf.net, 72-hours before the meeting.
Notification in advance of the meeting will enable the City of South San Francisco to make reasonable
arrangements to ensure accessibility to the meeting.
Page 2 City of South San Francisco Printed on 1/26/2022
2
November 10, 2021City Council Regular Meeting Agenda
ZOOM LINK BELOW -NO REGISTRATION REQUIRED
Join Zoom meeting
https://ssf-net.zoom.us/j/85964022083
(Enter your email and name)
Join by One Tap Mobile :
US: +16699006833,,85964022083# or +13462487799,,85964022083#
Join by Telephone:
Dial (for higher quality, dial a number based on your current location):
US: +1 346 248 7799 or +1 669 900 6833 or 833 548 0276 (Toll Free)
Webinar ID: 859 6402 2083
How to observe the Meeting (no public comment):
1) Local cable channel: Astound, Channel 26 or Comcast, Channel 27
2) https://www.ssf.net/government/city-council/video-streaming-city-and-council-meetings/city-council
How to submit written Public Comment before the City Council Meeting:
Use the eComment portal by clicking on the following link: https://ci-ssf-ca.granicusideas.com/meetings or by
visiting the City Council meeting's agenda page. eComments are also directly sent to the iLegislate application
used by City Council and staff.
How to provide Public Comment during the City Council Meeting:
1) By Phone: (669) 900-6833. Webinar ID is 859 6402 2083. Click *9 to raise a hand to speak. Click *6 to
unmute when called.
By One tap mobile: US: +16699006833,,85964022083# or +13462487799,,85964022083#
2) Online at: https://ssf-net.zoom.us/j/85964022083
a. Enter an email address and name. The name will be visible online and will be used to notify you that it is your
turn to speak.
b. When the Clerk calls for the item on which you wish to speak, click on "raise hand." Speakers will be notified
shortly before they are called to speak.
c. When called, please limit your remarks to the time limit allotted.
IN-PERSON: Please complete a Digital Speaker Card located at the entrance to the Council Chamber ’s. Be
sure to indicate the Agenda Item # you wish to address or the topic of your public comment. 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.
Page 3 City of South San Francisco Printed on 1/26/2022
3
November 10, 2021City Council Regular Meeting Agenda
PEOPLE OF SOUTH SAN FRANCISCO
The City Council's regular meetings are held on the second and fourth Wednesday of each month at 6:00 p.m.
MARK ADDIEGO, Mayor (At-Large)
MARK NAGALES, Vice Mayor (District 2)
BUENAFLOR NICOLAS, Councilmember (At-Large)
JAMES COLEMAN, Councilmember (District 4)
EDDIE FLORES, Councilmember (At-Large)
ROSA GOVEA ACOSTA, City Clerk
FRANK RISSO, City Treasurer
MIKE FUTRELL, City Manager
SKY WOODRUFF, City Attorney
In accordance with California Government Code Section 54957.5, any writing or document that is a public
record, relates to an open session agenda item, and is distributed less than 72 hours prior to a regular
meeting will be made available for public inspection in the City Clerk’s Office located at City Hall. If,
however, the document or writing is not distributed until the regular meeting to which it relates, then the
document or writing will be made available to the public at the location of the meeting, as listed on this
agenda. The address of City Hall is 400 Grand Avenue, South San Francisco, California 94080.
Page 4 City of South San Francisco Printed on 1/26/2022
4
November 10, 2021City Council Regular Meeting Agenda
CALL TO ORDER
ROLL CALL
PLEDGE OF ALLEGIANCE
AGENDA REVIEW
ANNOUNCEMENTS FROM STAFF
PRESENTATIONS
Proclamation Honoring Ruby Bridges Day on November 14, 2021. (Mark Addiego,
Mayor)
1.
PUBLIC COMMENTS
Comments received by the deadline will be included as part of the meeting record but will not be read aloud
during the meeting.
The Public Comment portion of the meeting is reserved for persons wishing to address the Council on any
matter NOT on the agenda. Comments on agenda items will be taken when that item is called. If joining the
conference by phone you may raise your hand by dialing *9 and *6 to unmute.
State law prevents Council from responding to public comments or taking action on matters not on the agenda .
The Council may refer comments to staff for follow -up. Speakers are limited to three minutes. If there appears
to be a large number of speakers, the Mayor may reduce speaking time to limit the total amount of time for
public comments (Gov. Code sec. 54954.3.(b)(1).). Speakers that are not in compliance with the City
Council's rules of decorum will be muted.
COUNCIL COMMENTS/REQUESTS
CONSENT CALENDAR
Motion to approve the Minutes for the meetings of September 15, 2021, September
21, 2021, and September 29, 2021.
2.
Motion to cancel the Regular City Council meetings of November 24, 2021, and
December 22, 2021. (Rosa Govea Acosta, City Clerk)
3.
Report regarding the summary vacation of public sewer easement for 375 & 377
Oyster Point Boulevard. (Jason Hallare, Senior Civil Engineer)
4.
Page 5 City of South San Francisco Printed on 1/26/2022
5
November 10, 2021City Council Regular Meeting Agenda
A resolution approving the summary vacation of public sewer easement for a sewer
main on the property APN 015-010-910 (375 & 377 Oyster Point Boulevard) due to
sewer main abandonment.
4a.
Report regarding the summary vacation of public utility easements on the following
properties: 405 Cypress Avenue, 204 Miller Avenue, 208 Miller Avenue, 214 Miller
Avenue, and 216 Miller Avenue to allow for development of the properties. (Jason
Hallare, Senior Civil Engineer)
5.
A resolution approving the summary vacation of public utility easements on the
following properties: APNs 012-314-100 (405 Cypress Avenue), 012-314-110 (204
Miller Avenue), 012-314-180 (208 Miller Avenue), 012-314-190 (214 Miller Avenue),
and 012-314-220 (216 Miller Avenue) to allow for development of the properties.
5a.
Report regarding a resolution authorizing the acceptance of $40,000 in grant funding
from the Woodlawn Foundation to support Project Read’s Learning Wheels Family
Literacy Program and amending the Library Department’s Fiscal Year 2021 - 2022
Operating Budget via Budget Amendment 22.025. (Valerie Sommer, Library Director)
6.
Resolution authorizing the acceptance of $40,000 in grant funding from the Woodlawn
Foundation to support Project Read’s Learning Wheels Family Literacy Program and
amending the Library Department’s Fiscal Year 2021- 2022 Operating Budget via
Budget Amendment 22.025.
6a.
Report regarding a resolution authorizing the acceptance of donations, grants, and
stipends from various funders totaling $48,900 for Fiscal Year 2021-22 to support
Parks and Recreation Department programs and events, and amending the Parks and
Recreation Department’s Fiscal Year 2021-22 Operating Budget pursuant to budget
amendment #22.026. (Greg Mediati, Deputy Director of Parks and Recreation)
7.
Resolution authorizing the acceptance of donations, grants, and stipends from various
funders totaling $48,900 for Fiscal Year 2021-22 to support Parks and Recreation
Department programs and events, and amending the Parks and Recreation
Department’s Fiscal Year 2021-22 Operating Budget pursuant to budget amendment
#22.026.
7a.
Report regarding a resolution authorizing the acceptance of two grants for the South
San Francisco Guaranteed Income Pilot Program, 1) a grant of $100,000 from San
Mateo County Measure K Funds and 2) a grant of $100,000 from the Silicon Valley
Community Foundation, and approving Budget Amendment Number 22.027
appropriating $200,000 for the Pilot Program. (Nell Selander, Interim Director,
Economic & Community Development Department)
8.
Page 6 City of South San Francisco Printed on 1/26/2022
6
November 10, 2021City Council Regular Meeting Agenda
Resolution authorizing the acceptance of two grants for the South San Francisco
Guaranteed Income Pilot Program, 1) a grant of $100,000 from San Mateo County
Measure K Funds and 2) a grant of $100,000 from the Silicon Valley Community
Foundation, and approving Budget Amendment Number 22.027 appropriating
$200,000 for the Pilot Program.
8a.
Report regarding an ordinance amending Chapters 8.16 and 8.28, and adding Chapter
8.27 Mandatory Organic Waste Disposal Reduction, to the South San Francisco
Municipal Code relating to organic waste disposal and related regulations pursuant to
Senate Bill 1383. (Marissa Garren, Management Analyst I)
9.
Ordinance amending Chapters 8.16 and 8.28, and adding Chapter 8.27 Mandatory
Organic Waste Disposal Reduction, of Title 8 of the South San Francisco Municipal
Code relating to organic waste disposal and related regulations pursuant to Senate Bill
1383.
9a.
ADMINISTRATIVE BUSINESS
Report regarding a resolution approving the South San Francisco Fire Department’s
annual inspections performance pursuant to the California Health and Safety Code
Section 13146.4. (Ian Hardage, Fire Marshal)
10.
A Resolution approving the South San Francisco Fire Department’s annual inspections
performance pursuant to California Health and Safety Code Section 13146.4.
10a.
Report regarding the acceptance of $2,120,000 in grant funding and executing a
consulting services contract amendment with Mark Thomas & Company of Oakland,
California, for an additional $66,777, and to execute a consulting services agreement
with TRC Engineers, Inc. of Concord, California for construction management and
inspection services in an amount not to exceed $432,959.67 for the Grand Boulevard
Initiative Phase III. (Jeffrey Chou, Associate Engineer)
11.
Resolution authorizing the acceptance of $2,120,000 in grant funding from the
Metropolitan Transportation Commission Safe and Seamless Mobility Quick Strike
Program and approving Budget Amendment #22.024 and authorizing the City
Manager to execute a consulting services contract amendment with Mark Thomas &
Company of Oakland, California, for an additional $66,777, for an amount not to
exceed $246,532, and authorizing a total contract budget of $271,185, and to execute
a consulting services agreement with TRC Engineers, Inc. of Concord, California for
construction management and inspection services in an amount not to exceed
$432,959.67 and authorizing a total contract budget of $476,255 for the Grand
Boulevard Initiative Phase III from Arroyo Drive to Kaiser Way (Project No. st1807).
11a.
Page 7 City of South San Francisco Printed on 1/26/2022
7
November 10, 2021City Council Regular Meeting Agenda
Report regarding a resolution approving a Purchase and Sale Agreement with
Firehouse Work LLC for the sale of 201a Baden Avenue for $1,025,000 and a
resolution approving a Purchase and Sale Agreement with Eden Housing for the sale
of 201b Baden Avenue for $1, as well as associated resolutions making conformity
findings (Julie Barnard, Acting Deputy Director of Economic and Community
Development).
12.
Resolution making findings and approving a Purchase and Sale Agreement with
Firehouse Work LLC for the disposition of the City of South San Francisco-owned
property located at 201a Baden Avenue (APNs 012-335-100, and 012-335-110) for
$1,025,000 and authorizing the City Manager to execute the agreement.
12a.
Resolution making findings and approving a Purchase and Sale Agreement with Eden
Housing for the disposition of the City of South San Francisco-owned property located
at 201a Baden Avenue (APNs 012-335-100, and 012-335-110) for a nominal price of
$1.00 and authorizing the City Manager to execute the agreement.
12b.
ITEMS FROM COUNCIL – COMMITTEE REPORTS AND ANNOUNCEMENTS
ADJOURNMENT
Page 8 City of South San Francisco Printed on 1/26/2022
8
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-776 Agenda Date:11/10/2021
Version:1 Item #:1.
Proclamation Honoring Ruby Bridges Day on November 14, 2021.(Mark Addiego, Mayor)
City of South San Francisco Printed on 11/5/2021Page 1 of 1
powered by Legistar™9
10
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-838 Agenda Date:11/10/2021
Version:1 Item #:2.
Motion to approve the Minutes for the meetings of September 15, 2021, September 21, 2021, and September
29, 2021.
City of South San Francisco Printed on 12/14/2021Page 1 of 1
powered by Legistar™11
CALL TO ORDER Mayor Addiego called the meeting to order at 6:00 p.m.
ROLL CALL Councilmember Coleman, present in Council Chambers
Councilmember Flores, present in Council Chambers
Councilmember Nicolas, present in Council Chambers
Vice Mayor Nagales, present in Council Chambers
Mayor Addiego, present in Council Chambers
AGENDA REVIEW
The City Council reordered the agenda to hear Items 3, 2, 1, and 4.
PUBLIC COMMENTS - Comments are limited to items on the Special Meeting Agenda.
ADMINISTRATIVE BUSINESS
3. Report regarding a Study Session on assessing a new Business License Tax fee structure.
(Heather Enders, Management Analyst II)
Management Analyst II Enders introduced Alan Pennington, Matrix Consulting Group. Mr.
Pennington, Matrix Consulting Group, presented the business license tax program, including
study scope summary; the current number of South San Francisco businesses; revenue by
classification and size; fee distribution; the number of unregistered businesses;
recommendations; alternatives evaluated; and projected revenue. City Manager Futrell explained
the purpose of the analysis and noted that the item was last reviewed 13 years ago.
In response to Councilmember Coleman's inquiry of current practices and gross receipts, Finance
Director Salisbury noted that the current system is antiquated, making it challenging to track
non-filers, and provided an overview of gross receipt tax calculation with a discussion of a
hybrid model.
MINUTES
SPECIAL MEETING
CITY COUNCIL
CITY OF SOUTH SAN FRANCISCO
WEDNESDAY, SEPTEMBER 15, 2021
6:00 p.m.
Hybrid In-Person/Virtual Meeting
City Council conducted this meeting in-person and remotely via the
ZOOM virtual meeting platform in accordance with California
Governor Newsom’s Executive Orders N-29-20, N-63-20 and
N-08-21 and COVID-19 pandemic protocols.
12
SPECIAL CITY COUNCIL MEETING SEPTEMBER 15, 2021
MINUTES PAGE 2
In response to Councilmember Flores's inquiry about businesses within and outside of the city
and outreach to the South San Francisco Chamber of Commerce, Mr. Pennington explained the
requirement for any business operating in the city to have a business license. He stated the
reported unregistered businesses were in the city. City Manager Futrell explained why staff had
not yet involved the Chamber of Commerce and business community.
Councilmember Nicolas supported revamping the system consistent with NAICS codes to
modernize the program and inquired about the CPI rate. In response to Councilmember Nicolas,
Mr. Pennington explained the recommendation to increase rates annually to maintain the revenue
stream. Finance Director Salisbury indicated that further evaluation of the administrative process
would be done and brought back to Council.
Vice Mayor Nagales stressed the need to recognize the fiscal impact of COVID-19 on small
businesses and the importance of partnering with the South San Francisco Chamber of
Commerce. He discussed the need to capture the different business types, particularly biotech.
Mayor Addiego discussed the need to consider gross receipts and compare them with
neighboring cities. Mr. Pennington pointed out the rate sheet in the appendix. Finance Director
Salisbury explained that the current process was a hybrid model and noted staff's work to refine
the process.
City Manager Futrell requested Council direction on whether to proceed with the plan to take the
matter to the voters in June 2022. Councilmember Flores suggested significant community
outreach before deciding. Councilmember Nicolas requested additional data on the impact on
small businesses. Finance Director Salisbury and Mr. Pennington explained that most of the
revenue came from larger firms. The Council discussed Options 1 – 5 and determined to exclude
Options 1 and 2, favoring Options 4 and 5. City Manager Futrell indicated staff would continue
outreach to the community and noted that the measure would be placed in the State Primary June
2022 election if approved by the City Council.
The following individuals provided virtual (Zoom) public comments:
• Russell Lee
• Liliana Rivera
• Eddie
2. Study Session regarding proposed Community Equity and Safety Advisory Board. (Amy
Ferguson, Management Fellow)
Management Fellow Ferguson, Assistant City Attorney Lai, and Human Resources Director
Lockhart discussed the proposed Equity Board, SSF Voices (Vision of Inclusive, Community,
Equity and Safety), the context of the commission on racial and social equity, main
recommendation, California laws on forming police oversight bodies, limitations imposed on
public employee labor relations, an overview of existing models, review of advisory board model
and recommendations.
Councilmember Nicolas indicated support for the recommendations and suggested staggered
terms.
13
SPECIAL CITY COUNCIL MEETING SEPTEMBER 15, 2021
MINUTES PAGE 3
Vice Mayor Nagales recognized the success of the Racial and Social Commission and expressed
his support. He requested examples from other cities on how they addressed the bargaining
process. Human Resources Director Lockhart explained the process for working with bargaining
units and Police Chief participation. Assistant City Attorney Lai discussed the Council's
authority to remove commissioners.
In response to Councilmember Flores's inquiry about members' hybrid and advisory roles,
Human Resources Director Lockhart discussed the difference between the proposed board and
Personnel Board. Management Fellow Ferguson stated the proposed board would serve as an
advisory body to consider complaints. She explained the complaint review process.
Councilmember Flores stated he would like the process more clearly defined and referenced
Redwood City as a model to follow. He concurred with Councilmember Nicolas that members
should be appointed to staggered terms, with seven members and two-year terms. He suggested
members receive significant training.
In response to Councilmember Coleman's inquiry about the complaint process, Human
Resources Director Lockhart provided an overview of the process and noted that complaints
would be forwarded to the City Attorney, Human Resources Director, who would retain a 3rd
party investigator. Councilmember Coleman discussed the importance of the body having a
purpose and authority, considering the limitations under State law and the limited investigatory
role. He inquired about the budget process for the Police Department and Fire Department.
Management Fellow Ferguson explained that the City Council had final authority over budget
but could solicit recommendations from the board.
Mayor Addiego concurred that seven members were sufficient. He encouraged narrow
responsibilities and conducting training. He suggested each Councilmember select a member
with two at-large appointees.
The following individuals provided virtual (Zoom) public comments:
• Rusell Lee
• Liliana Rivera
• Rich Garbarino
1. Study session regarding renter protection measures for residential tenants in South San
Francisco. (Nell Selander, Deputy Director, Economic & Community Development
Department)
Deputy Director of Economic and Community Development Selander presented an overview of
the renter protection measures, including past discussions and legislation, resident and rent
profile, State eviction moratorium and rental assistance, recommendations including rental
registry, and mediation.
In response to Vice Mayor Nagales inquiries, Deputy Director of Economic and Community
Development Selander discussed the registry and fees charged by El Cerrito. She discussed
commercial services providing rental information and potential use of a rental database and the
necessary staff.
14
SPECIAL CITY COUNCIL MEETING SEPTEMBER 15, 2021
MINUTES PAGE 4
Councilmember Flores requested clarification about the 95 applications still in progress. Deputy
Director of Economic and Community Development Selander provided an overview of the
application and noted that the applicants might have been started but did not have the necessary
paperwork to complete the process.
In response to Councilmember Coleman's inquiries, Deputy Director of Economic and
Community Development Selander stated the city had data on renters and landlords that could be
used for information on rental assistance. Vice Mayor Nagales discussed tenant protections
under AB1482. Councilmember Nicolas suggested consideration of cost to landlords and
utilizing experiences from other cities.
The following individuals provided virtual (Zoom) public comments:
• Erin Chazer
• Ethan Mizzi
• Arlene (OMarshall Inc.)
• Russell Lee
• Paul Beaudreau
• Kris Romasanta
• Alex Melendrez
• Denton Murphy
• Liliana Rivera
• Kelsey Banes (Peninsula for Everyone)
• Eddy
• Gina Zari
• Ken Chan (Housing Leadership Council of San Mateo County)
• Rhovy Lyn Antonio (California Apartment Association)
• Jordan Grimes (Peninsula Young Democrats)
• Rita Fontana
• Mike Dunham (Peninsula for Everyone)
4. Study session regarding Article 34 of the California Constitution’s voter approval
requirement for the City to develop, construct, or acquire certain types of “low rent
housing projects.” (Sky Woodruff, City Attorney)
Item not heard.
ADJOURNMENT
Mayor Addiego adjourned the meeting at 9:14 p.m.
Submitted by: Approved by:
Rosa Govea Acosta, CMC, CPMC Mark Addiego
City Clerk Mayor
Approved by the City Council: / /
15
CALL TO ORDER Mayor Addiego called the meeting to order at 6:00 p.m.
ROLL CALL Councilmember Coleman, present in Council Chambers
Councilmember Flores, present in Council Chambers
Councilmember Nicolas, present in Council Chambers
Vice Mayor Nagales, present in Council Chambers
Mayor Addiego, present in Council Chambers
AGENDA REVIEW
No changes.
ANNOUNCEMENTS FROM STAFF
Assistant City Manager Fernandez announced the free Drive-Through Flu Shot Clinic event at City
Hall on October 9, 2021. No appointment needed.
Communications Director Arroyo announced the celebration of City Hall’s 101st Birthday at City
Hall on Saturday, September 25, 2021.
PRESENTATIONS
1. Presentation acknowledging City Hall’s 101st Birthday. (Josh Becker, California State Senator)
State Senator Josh Becker and Assemblymember Kevin Mullin recognized the city on it its 101st
Birthday.
2. Proclamation recognizing October as Fire Prevention Month. (Mark Addiego, Mayor)
Councilmember Coleman read the proclamation recognizing October as Fire Prevention Month.
Fire Chief Magallanes thanked Council for its recognition; discussed deployment of firefighters and
recent fires; and acknowledged the firefighters.
MINUTES
SPECIAL MEETING
CITY COUNCIL
CITY OF SOUTH SAN FRANCISCO
TUESDAY, SEPTEMBER 21, 2021
6:00 p.m.
Hybrid In-Person/Virtual Meeting
City Council conducted this meeting in-person and remotely via the
ZOOM virtual meeting platform in accordance with California
Governor Newsom’s Executive Orders N-29-20, N-63-20, and N-08-21
and COVID-19 pandemic protocols.
16
SPECIAL CITY COUNCIL MEETING SEPTEMBER 21, 2021
MINUTES PAGE 2
3. Proclamation recognizing October as National Filipino American History Month. (Mark
Nagales, Vice Mayor)
Vice Mayor Nagales and Councilmember Nicolas read the proclamation recognizing October as
National Filipino American History Month. They presented the proclamation to Jamil Najar Rey,
owner of Fort McKinley Restaurant, Bar & Banquet. Mr. Rey thanked the Council for recognizing
the community and his business.
4. Proclamation recognizing October 11th, 2021, as Indigenous People’s Day. (Buenaflor Nicolas,
Council Member)
Councilmember Nicolas read the proclamation recognizing October 11, 2021, as Indigenous
People's Day and presented the proclamation to Elizabeth “Betty” Parent, South San Francisco
resident and retired professor at San Francisco State University. Ms. Parent provided an overview
of the history of Native Americans in South San Francisco and thanked the Council for their
recognition.
PUBLIC COMMENTS
None.
COUNCIL COMMENTS/REQUESTS
Councilmember Flores requested adjourning in memory of James “Jim” Cresta, former teacher at El
Camino High School.
Councilmember Nicolas commended the Economic and Community Development Department on
obtaining a $1.1 million grant for the community resource center.
Councilmember Coleman discussed the statewide eviction moratorium, noted the availability of
rental assistance funds, and encouraged those who needed assistance to apply. He suggested that the
council consider protections for residents of the city during the holiday season.
Vice Mayor Nagales discussed the ribbon cutting at 200 Linden Avenue and the success story of a
homeowner.
Mayor Addiego remembered Jim Cresta and Renato Achiro and requested to adjourn in their
memories. He thanked the volunteers of the local high school clubs for their work during the
weekend cleanup.
CONSENT CALENDAR
The City Clerk duly read the Consent Calendar, after which Council voted and engaged in
discussion of specific item as follows. Item 5 was pulled for further discussion.
5. Report regarding Resolution No. 163-2021 authorizing acceptance of $1,000,000 from the
South San Francisco Friends of the Library, to support the New Main Library as part of the
Community Civic Campus project. (Valerie Sommer, Library Director)
17
SPECIAL CITY COUNCIL MEETING SEPTEMBER 21, 2021
MINUTES PAGE 3
6. Report regarding Resolution No. 164-2021 authorizing acceptance of $16,664.35 in donations
for the Community Learning Center in memory of former Assembly member, Mayor and
Council member Gene Mullin, and approving Budget Amendment 22.019 increasing the Library
Department’s Fiscal Year 2021-2022 Operating Budget. (Valerie Sommer, Library Director)
7. Report regarding Resolution No. 165-2021 amending previous resolutions for the Community
Civic Campus Phases I and II to authorize reallocation of previously authorized funds and
increase the Phase I construction and project budgets as a result of the reallocations. (Jacob
Gilchrist, Director of Capital Projects)
8. Report regarding adoption of Resolution No. 166-2021 to continue conducting City Council and
advisory body meetings remotely due to health and safety concerns for the public and making
related findings (Rosa Govea Acosta, City Clerk and Sky Woodruff, City Attorney)
Item No. 5 – Mayor Addiego requested Library Director Sommer present the report. Library
Director Sommers presented the report and introduced members of the South San Francisco Friends
of the Library. Councilmember Flores noted he is a member of the Friends of the Library but would
not be recusing himself from the vote.
Motion — Councilmember Flores/Second – Councilmember Nicolas: To approve Consent Calendar
Items 5, 6, 7, and 8, by roll call vote: AYES: Councilmembers Coleman, Flores, and Nicolas, Vice
Mayor Nagales and Mayor Addiego; NAYS: None; ABSENT: None; ABSTAIN: None.
PUBLIC HEARING
9. Report regarding holding a public hearing on the Program Year (PY) 2020-21 Consolidated
Annual Performance and Evaluation Report (CAPER) for the Community Development Block
Grant Program and adopting Resolution No. 167-2021 approving the PY 2020-21 CAPER and
authorizing its submittal to the U.S. Department of Housing and Urban Development. (Heather
Ruiz, Management Analyst)
At 6:52 p.m. Vice Mayor Nagales recused himself from the Council Chambers due to his employer
being a recipient of the grant and left the dais.
Public Hearing opened: 6:52p.m.
Public Hearing closed: 6:59 p.m.
Management Analyst Ruiz presented the report and indicated that CDBG recipients must submit a
year-end CAPER to the US Department of Housing and Urban Development. The CAPER explains
how the City of South San Francisco (City) used CDBG money to address housing and community
development issues. It also compares the City's achievements to the targets outlined in the PY 2020-
21 Annual Action Plan (AAP).
Before submitting the CAPER to HUD, the city must provide a 15-day public comment period and
hold a public hearing, as required by CDBG standards. On September 3, 2021, the San Mateo Daily
Journal published a public notice announcing the availability of the draft CAPER, which was also
posted on the City's Facebook page and website. The study is accessible at the City's Economic and
Community Development Department offices, public libraries, and on the City's website. Any
comments received during the comment period or at the public hearing will be considered in the
CAPER.
18
SPECIAL CITY COUNCIL MEETING SEPTEMBER 21, 2021
MINUTES PAGE 4
Motion — Councilmember Nicolas/Second – Councilmember Coleman: To adopt Resolution No.
167-2021 approving the PY 2020-21 CAPER and authorizing its submittal to the U.S. Department
of Housing and Urban Development, by roll call vote: AYES: Councilmembers Coleman, Flores,
and Nicolas, and Mayor Addiego; NAYS: None; ABSENT: Vice Mayor Nagales; ABSTAIN:
None.
At 7:00 p.m. Vice Mayor Nagales rejointed the meeting.
ADMINISTRATIVE BUSINESS
10. Report regarding a motion to conceptually approve the five-year sewer rate plan and directing
staff to prepare sewer rate plan notices under Proposition 218. (Mike Futrell, City Manager,
Janet Salisbury, Finance Director, Eunejune Kim, Public Works Director/City Engineer, and
Brian Schumacker, Plant Superintendent)
Plant Superintendent Schumacker presented the report and indicated that the sewage rate in the City
of South San Francisco is around 37% lower than the average in San Mateo County. Sewer fees
help to pay for ongoing operations and maintenance and capital upgrade projects that help collect
and treat wastewater. While satisfying obligations and infrastructure repair needs, South San
Francisco has only raised fees by 3.5 percent each year (on average) since the Fiscal Year 2011-12.
In two of the last five years, the city has reduced or eliminated previously enacted yearly rate
increases, and some of these costs are shared with partner agencies. In 2021, Bartle Wells
Associates undertook a comprehensive Sewer Rate Plan Study and published five-year rate
predictions.
Councilmember Nicolas thanked staff for the report and indicated the need to increase rates.
Councilmember Flores informed the community of the low-income assistance program via the
Sewer Rebate program. City Manager Futrell indicated that the bill would include an insert
available to low-income families. Vice Mayor Nagales recognized that the City Council had done
excellent work keeping rates low. He discussed rates in comparison to other cities and encouraged
staff to provide information to residents. Councilmember Coleman commended staff for keeping the
rates as low as possible while maintaining the system.
Mayor Addiego commended staff and Superintendent Schumaker for his efforts. City Manager
Futrell recognized the team and noted that the South San Francisco – San Bruno Water Quality
Control Plant was awarded the "Plant of the Year Award" in 2019-2020. The award acknowledges
accomplishments in compliance, innovative techniques, cost-effectiveness, and exceptional plant
performance in the medium category.
Motion- Vice Mayor Nagales/Second – Councilmember Coleman: To conceptually approve the
five-year sewer rate plan and direct staff to prepare sewer rate plan notices under Proposition 218,
by roll call vote: AYES: Councilmembers Coleman, Flores, and Nicolas, Vice Mayor Nagales and
Mayor Addiego; NAYS: None; ABSENT: None; ABSTAIN: None.
11. Report regarding Resolution No. 168-2021 authorizing the City Council to approve budget
amendment 22.017 appropriating $1 million of American Relief Plan Act (ARPA) funding for
broadband expansion and to reimburse the city for the community outreach program. (Tony
Barrera, Director of Information Technology)
19
SPECIAL CITY COUNCIL MEETING SEPTEMBER 21, 2021
MINUTES PAGE 5
Director of Information Technology Barrera presented the staff report and indicated that in 2020,
the country was compelled to use internet services for remote learning, telework, and telemedicine
due to the COVID-19 pandemic shelter in place directives. On the other hand, this public health
emergency underscored the significance of universally available, high-speed, dependable, and
inexpensive broadband coverage for virtual activities. Hundreds of millions of people in the United
States live in locations where broadband infrastructure is either unavailable or inadequate, with
download speeds of less than 25 Mbps and upload rates of less than 3 Mbps. He indicated that
ARPA funds would be used to pay consultants to develop and implement the fiber network in the
proposed project. The broadband infrastructure would connect the carriers to the "last mile" in
Westborough.
The following individuals provided virtual (Zoom) public comments:
• Karyl Matsumoto
Vice Mayor Nagales thanked IT Director Barrera for moving the project forward and concurred
with Ms. Matsumoto on the need to improve the Westborough area. In response to Vice Mayor
Nagales's inquiry about the proposed project, Director of Information Technology Barrera discussed
consolidating projects to reduce open trenches and traffic impacts.
Councilmember Nicolas inquired about when other parts of the city would receive a broadband
expansion. IT Director Barrera indicated that the report would identify the needs of priorities.
Council expressed support of the project.
Motion- Vice Mayor Nagales/Second – Councilmember Flores: To approve Resolution No. 168-
2021 authorizing the City Council to approve budget amendment 22.017 appropriating $1 million of
American Relief Plan Act (ARPA) funding for broadband expansion and to reimburse the city for
the community outreach program, by roll call vote: AYES: Councilmembers Coleman, Flores, and
Nicolas, Vice Mayor Nagales and Mayor Addiego; NAYS: None; ABSENT: None; ABSTAIN:
None.
Meeting recessed: 7:36 p.m.
Meeting resumed: 7:41 p.m.
Mayor Addiego reported that Item 12 included consideration of extending a previously approved
home loan program for city employees to executive managers.
CLOSED SESSION
Entered Closed Session: 7:42 p.m.
Resumed from Closed Session: 9:14 p.m.
12. Conference with Labor Negotiators
(Pursuant to Government Code Section 54957.6)
Agency designated representatives: Mike Futrell, City Manager; Sharon Ranals, Assistant City
Manager; Leah Lockhart, Director of Human Resources
Employee organizations: AFSCME Local 829, IUOE Local 39, IAFF Local 1507, Police
Association, Public Safety Managers, Teamsters Local 856 - Confidential, Teamsters Local 856
- Mid-management
Unrepresented employees: Executive Management
20
SPECIAL CITY COUNCIL MEETING SEPTEMBER 21, 2021
MINUTES PAGE 6
13. Closed Session: Conference with Real Property Negotiators
(Pursuant to Government Code Section 54956.8)
Property: City property at Oyster Point (APN 015-010-970)
City Negotiators: Nell Selander, Interim Director of Economic and Community Development;
Ernesto Lucero, Economic Development Coordinator Negotiating Party: Ensemble Investments
Under Negotiations: Price and terms
Report out of Closed Session by Mayor Addiego: No reportable action.
ADJOURNMENT
Being no further business Mayor Addiego adjourned the meeting at 9:14 p.m. in memory of James
“Jim” Cresta and Renato Achiro.
Submitted by: Approved by:
Rosa Govea Acosta, CMC, CPMC Mark Addiego
City Clerk Mayor
Approved by the City Council: / /
21
CALL TO ORDER Vice Mayor Nagales called the meeting to order at 6:00 p.m.
ROLL CALL Councilmember Coleman, participating via Zoom
Councilmember Flores, present in the Community Room
Councilmember Nicolas, present in the Community Room
Vice Mayor Nagales, present in the Community Room
Mayor Addiego, absent
AGENDA REVIEW
No changes.
Vice Mayor Nagales stated that the Council understands the importance of reaching out to the old
town community and noted that the meeting would be held in English with a Spanish translator
available to the public.
COMMUNITY INFORMATION SESSION
1. Community Town Hall Meeting – Police Chief Recruitment (Mike Futrell, City Manager,
Leah Lockhart, Human Resources Director, Teri Black and Suzanne Mason, Teri Black, and
Company)
Human Resources Director Lockhart welcomed the community to the Community Town Hall to
discuss the Police Chief Recruitment. She thanked Police Chief Azzopardi for his years of service
and noted the importance of his position and community input. She introduced Teri Black, Lead
Recruiter at Teri Black & Company, and Suzanne Mason, Senior Recruiter, and provided an
overview of the firm's experience in executive recruitment.
MINUTES
SPECIAL MEETING
CITY COUNCIL
CITY OF SOUTH SAN FRANCISCO
Rotary Terrace, Community Room
312 Miller Avenue, SSF
WEDNESDAY, SEPTEMBER 29, 2021
6:00 p.m.
Hybrid In-Person/Virtual Meeting
City Council conducted this meeting in-person and remotely via the
ZOOM virtual meeting platform in accordance with California Governor
Newsom’s Executive Orders N-29-20, N-63-20, and N-08-21 and
COVID-19 pandemic protocols.
22
SPECIAL CITY COUNCIL MEETING SEPTEMBER 29, 2021
MINUTES PAGE 2
Senior Recruiter Suzanne Mason provided an overview of the recruitment process and discussed the
challenges in the recruitment, such as fewer candidates for leadership roles, quality of life
considerations, and Bay Area cost of living. She indicated that recruitment was scheduled to begin
October 2021. She thanked the participants for attending the event and encouraged the community
to participate in an online survey at www.surveymonkey.com/r/693J788 and noted that paper
surveys were also available.
Human Resources Director Lockhart reminded attendees that Spanish translation services were
available.
PUBLIC COMMENTS
Members of the public were encouraged to participate by submitting a request via the Digital
Comment card if attending in person or by raising their hand via Zoom. Speakers were asked to be
respectful, focus on qualities and attributes rather than specific individuals, and focus on priorities
and important issues for the next Police Chief.
The following individuals provided in-person public comments:
• Annie – South San Francisco resident
• Tom Greger –South San Francisco business owner
• Al Banfield – South San Francisco resident
• Alfredo De Avila – South San Francisco resident
• Sam Shihadeh – South San Francisco resident
The following individuals provided virtual (Zoom) public comments:
• Christina Bonite– South San Francisco resident
• Luis De Paz – South San Francisco resident
• Liliana Rivera – South San Francisco resident
• Toni Allen – South San Francisco resident
• Dolores Piper – South San Francisco resident
• Brian – Graduate of South San Francisco Unified School District
• Leslie Fong – South San Francisco resident
• Olga Perez – South San Francisco resident
The following individual provided virtual (Zoom) public comment via Francisco, Spanish
translator:
• Chano Ibarra, South San Francisco resident
ADJOURNMENT
Being no further business Vice Mayor Nagales adjourned the meeting at 7:02 p.m.
Submitted by: Approved by:
Rosa Govea Acosta, CMC, CPMC Mark Addiego
City Clerk Mayor
Approved by the City Council: / /
23
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-820 Agenda Date:11/10/2021
Version:1 Item #:3.
Motion to cancel the Regular City Council meetings of November 24,2021,and December 22,2021.(Rosa
Govea Acosta, City Clerk)
RECOMMENDATION
It is recommended that the City Council,by motion,cancel the Regular City Council meetings of
November 24, 2021, and December 22, 2021 due to holidays.
CONCLUSION
Cancellation of the aforementioned Regular City Council meetings will not result in an adverse effect on City
business.
City of South San Francisco Printed on 11/5/2021Page 1 of 1
powered by Legistar™24
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-778 Agenda Date:11/10/2021
Version:1 Item #:4.
Report regarding the summary vacation of public sewer easement for 375 &377 Oyster Point Boulevard.
(Jason Hallare, Senior Civil Engineer)
RECOMMENDATION
It is recommended that the City Council adopt a resolution approving the summary vacation of public
sewer easement for a sewer main on the property APN 015-010-910 (375 &377 Oyster Point Boulevard)
due to sewer main abandonment.
BACKGROUND/DISCUSSION
The Kilroy Oyster Point (“KOP”)development being constructed by Kilroy Realty Corporation (“Developer”)
has proposed redevelopment of the existing building at 375 &377 Oyster Point Boulevard (“Property”)as part
of the KOP Phase 2 scope.There is an existing sewer main and easement on the Property that impedes the
mapping and construction of KOP Phase 2.The Developer has requested the City vacate the easement to allow
development to continue.
The existing sewer main was installed in 1982 over private land to service 345,347,349,375,377,and 379
Oyster Point Boulevard and connects to Oyster Point Boulevard north of Marina Boulevard.Since then,sewer
service for 345,347,and 349 Oyster Point Boulevard was reconnected to Oyster Point Boulevard between
Eccles Avenue and Gull Drive.The remaining 375,377,and 399 Oyster Point Boulevard buildings are
proposed to be demolished by the Developer.The existing sewer main will no longer provide service to any
buildings and the KOP development does not propose to use this sewer main as part of their project.The sewer
will be considered abandoned.
The existing sewer main lies within a 10-foot to 12-foot-wide public sanitary sewer easement (via DOC
84099998).Other than the abandoned sewer main mentioned above,there are no remaining public sewer
facilities within this easement.The sewer easement is shown in relation to the KOP development on
Attachment 1.
Pursuant to California Streets and Highways Code section 8333,cities may summarily vacate public service
easements in any of the following circumstances:(1)the easement has not been used for the purpose for which
it was dedicated or acquired for five consecutive years immediately preceding the proposed vacation,(2)the
date of dedication or acquisition is less than five years and more than one year immediately preceding the
proposed vacation and the easement has not been used continuously since that date,(3)the easement has been
superseded by relocation,or determined to be excess by the easement holder,and there are no other public
facilities located within the easement.
As the easement has been determined to be excess and no other public facilities are located within the
easement,the easement may be summarily vacated.Pursuant to California Streets and Highways Code section
City of South San Francisco Printed on 11/5/2021Page 1 of 2
powered by Legistar™25
File #:21-778 Agenda Date:11/10/2021
Version:1 Item #:4.
8335, in order to summarily vacate the easement, the City Council must adopt a resolution of vacation.
As staff has concluded that this easement is no longer necessary and no other public facilities and utilities are
located within the easement,staff recommends that the City Council adopt a resolution to summarily vacate the
easement.
FISCAL IMPACT
Approving the summary vacation will have no fiscal impact on the City.
RELATIONSHIP TO STRATEGIC PLAN
Approval of this easement vacation will promote SSF Priority Area 2, Initiative 2.4.
CONCLUSION
Staff recommends that the City Council adopt a resolution approving the summary vacation of public sewer
easement for a sewer main on the property APN 015-010-910 (375 &377 Oyster Point Boulevard)due to sewer
main abandonment.
Attachment:
1.Vicinity Map
City of South San Francisco Printed on 11/5/2021Page 2 of 2
powered by Legistar™26
27
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-779 Agenda Date:11/10/2021
Version:1 Item #:4a.
A resolution approving the summary vacation of public sewer easement for a sewer main on the property APN
015-010-910 (375 & 377 Oyster Point Boulevard) due to sewer main abandonment.
WHEREAS,Kilroy Oyster Point (“KOP”)development being constructed by Kilroy Realty Corporation
(“Developer”)has proposed redevelopment of the existing building at 375 &377 Oyster Point Boulevard
(APN: 015-010-910) as part of the KOP Phase 2 scope; and
WHEREAS,a public sanitary sewer easement (“Easement”)was granted by the previous property owners to
the City of South San Francisco (“City”)in 1982 for the purposes of the sanitary sewer main via DOC
84099998 described in Exhibit A; and
WHEREAS,the existing sewer main was installed to service 345,347,349,375,377,and 379 Oyster Point
Boulevard and connects to Oyster Point Boulevard north of Marina Boulevard; and
WHEREAS,sewer service for 345,347,and 349 Oyster Point Boulevard has been reconnected to Oyster Point
Boulevard between Eccles Avenue and Gull Drive; and
WHEREAS,the 375,377,and 399 Oyster Point Boulevard buildings are proposed to be demolished by the
Developer; and
WHEREAS,the existing sewer main no longer provides service to any buildings,is not part of the proposed
KOP development, and now considered to be abandoned; and
WHEREAS,as City staff have determined the Easement to be excess and no other public facilities are located
within the Easement,the Easement may be summarily vacated pursuant to Streets and Highways Code section
8333, to facilitate development of the KOP development project; and
WHEREAS, the Easement to be vacated is described by plat and legal descriptions in Exhibit B.
THEREFORE,BE IT RESOLVED that the City Council of the City of South San Francisco hereby takes the
following actions:
1.Approves of the summary vacation of the Public Sanitary Sewer Easement located within the
property APN 015-015-9100 (375 &375 Oyster Point Boulevard)and as described in Exhibits
A and B.
2.Authorizes the City Manager to execute the necessary documents to effectuate the summary
vacation of the Public Sanitary Sewer Easement,subject to review and approval as to form by
the City Attorney,and take any other action necessary to accomplish the intent of thisCity of South San Francisco Printed on 12/14/2021Page 1 of 2
powered by Legistar™28
File #:21-779 Agenda Date:11/10/2021
Version:1 Item #:4a.
the City Attorney,and take any other action necessary to accomplish the intent of this
resolution.
*****
City of South San Francisco Printed on 12/14/2021Page 2 of 2
powered by Legistar™29
30
31
32
33
34
35
36
37
38
39
4836-0603-4168.1
377904.00001/8-25-21/lab/rch
Order No.
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
Allen Matkins Leck Gamble & Natsis LLP
Three Embarcadero Center, 12th Floor
San Francisco, CA 94111-4074
Attention: David H. Blackwell, Esq.
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DOCUMENTARY TRANSFER TAX $
___Computed on the consideration of value of property conveyed; OR
___Computed on the consideration or value less liens or encumbrances Signature of Declarant or Agent determining tax – Firm Name
remaining at time of sale
QUITCLAIM DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the City of South San
Francisco, a municipal corporation of the State of California ("City") hereby remises, releases and forever
quitclaims to KR Oyster Point III, LLC, a Delaware limited liability company ("Grantor") all of its right, title
and interest in the real property in the City of South San Francisco, County of San Mateo, State of
California, described in Exhibit "A" attached hereto and incorporated herein by this reference.
The purpose of this Quitclaim Deed is to terminate all of City's right, title and interest in the easement
granted in that certain Grant of Sanitary Sewer Easement recorded on November 16, 1982 as Instrument
No. 82099998 in the Official Records of San Mateo County, California.
Dated: ______________________________ City of South San Francisco, a municipal corporation of the
State of California
By:
Name:
Title:
40
4836-0603-4168.1
377904.00001/8-25-21/lab/rch -2-
ACKNOWLEDGMENT
State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
41
4836-0603-4168.1
377904.00001/8-25-21/lab/rch
EXHIBIT "A"
-1-
EXHIBIT "A"
LEGAL DESCRIPTION
42
4836-0603-4168.1
377904.00001/8-25-21/lab/rch
EXHIBIT "A"
-2-
43
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:20-297 Agenda Date:11/10/2021
Version:1 Item #:5.
Report regarding the summary vacation of public utility easements on the following properties:405 Cypress
Avenue,204 Miller Avenue,208 Miller Avenue,214 Miller Avenue,and 216 Miller Avenue to allow for
development of the properties.(Jason Hallare, Senior Civil Engineer)
RECOMMENDATION
It is recommended that the City Council adopt a resolution approving the summary vacation of public
utility easements on the following properties:APNs 012-314-100 (405 Cypress Avenue),012-314-110 (204
Miller Avenue),012-314-180 (208 Miller Avenue),012-314-190 (214 Miller Avenue),and 012-314-220 (216
Miller Avenue) to allow for development of the properties.
BACKGROUND/DISCUSSION
The Successor Agency to the Redevelopment Agency to the City of South San Francisco (“Successor Agency”)
owns 216 Miller Avenue (APN 012-314-220),and Sares Regis (“Developer”)owns four of the five parcels
located at 405 Cypress Avenue,204 Miller Avenue,208 Miller Avenue,214 Miller Avenue (APNs 012-314-
100,012-314-110,012-314-180,and 012-314-190),collectively known as the “Cadence 2 Properties”.In
November 2018,Sares Regis obtained entitlements to develop the properties with a project containing 195 for-
rent residential units (Cadence Phase 2).
The Successor Agency and Sares Regis (“Developer”)have approved a deal for the conveyance of the
Successor Agency-owned property from the Successor Agency to Sares Regis pursuant to a purchase and sale
agreement.Currently,these properties include blanket public utility easements covering the entire parcels,
which are shared between the City of South San Francisco (“City”)and private utility companies:Pacific Gas
& Electric (“PG&E”), AT&T, Comcast, and California Water Service (“CalWater”), which need to be vacated.
The Developer obtained approval from all the private utility companies for vacation of the easements.Attached
are the approval letters from PG&E,AT&T,Comcast,and CalWater agreeing to the vacation obtained by the
Developer.AT&T provided approval on the condition that the AT&T overhead along the property frontage be
undergrounded.
City-owned utility facilities,such as for sewer and storm drain,are not found to be within the properties.As a
result,there is no requirement to relocate utilities from the Properties to the public right-of-way.Additionally,
vacation of the easements does not eliminate the ability of the City,nor the private utility companies,from
providing service to existing and future uses.
Pursuant to California Streets and Highways Code section 8333,cities may summarily vacate public service
easements in any of the following circumstances:(1)the easement has not been used for the purpose for which
it was dedicated or acquired for five consecutive years immediately preceding the proposed vacation,(2)the
date of dedication or acquisition is less than five years and more than one year immediately preceding the
proposed vacation and the easement has not been used continuously since that date,(3)the easement has been
superseded by relocation,or determined to be excess by the easement holder,and there are no other public
City of South San Francisco Printed on 11/5/2021Page 1 of 2
powered by Legistar™44
File #:20-297 Agenda Date:11/10/2021
Version:1 Item #:5.
superseded by relocation,or determined to be excess by the easement holder,and there are no other public
facilities located within the easement.
As the easements located on the properties have not been used for the purpose for which they were dedicated or
acquired for five consecutive years immediately preceding the proposed vacation,they may be summarily
vacated.Pursuant to California Streets and Highways Code section 8335,in order to summarily vacate the
easements, the City Council must adopt a resolution of vacation.
As staff has concluded that these easements are not necessary for the provision of utility services and the
private utility companies have also approved of the easement vacation,staff recommends that the City Council
adopt a resolution to summarily vacate the easements.
FISCAL IMPACT
Approving the summary vacation will have no fiscal impact on the City.
RELATIONSHIP TO STRATEGIC PLAN
Approval of this final map will promote a balanced mix of housing options in SSF Priority Area 2,Initiative
2.3.
CONCLUSION
Staff recommends that the City Council adopt a resolution approving the summary vacation of public utility
easements on the following properties:APNs 012-314-100 (405 Cypress Avenue),012-314-110 (204 Miller
Avenue),012-314-180 (208 Miller Avenue),012-314-190 (214 Miller Avenue),and 012-314-220 (216 Miller
Avenue). This will allow Sares Regis to develop the properties.
Attachments:
1)Vicinity Map
2)Utility Letters
City of South San Francisco Printed on 11/5/2021Page 2 of 2
powered by Legistar™45
46
840 West San Bruno Ave
San Bruno, CA 94066
UTLITY REVIEW AND FUTURE ENDORSEMENT
August 28, 2020
City of South San Francisco
Department of Public Works/Engineering Division
315 Maple Ave
South San Francisco, CA 94080
To Mr. Hallare,
Subject: Request for Utility Approval of Proposed Vacation of Public Easements Cadence 2
204, 208,214, and 216 Miller Avenue & 405 Cypress Avenue
AT&T has reviewed the easement vacation request:
No objection to the proposed vacation of the Public Utility Easements.
No objection to the Parcel/Tract Map, but with the following reservation.
Objects to the proposed Parcel/Tract Map for the following reason.
X After payment resolution and physically relocated its existing plant into the new easements,
at&t will vacate these requested easements shown on the attached drawing.
X Attached Drawing is included.
Roosevelt T George, III
Roosevelt T George, III
Manager/ Design Engineer with at&t
Ph: 650-872-6062
Email:rg5272@att.com
AT&T
47
48
49
Comcast Cable Corporation
2055 Folsom Street
San Francisco, CA 94110
September 3, 2020
RE: Authorization Letter for ROW Abandonment
204, 208, 214, 216 Miller Avenue & 405 Cypress Avenue South San Francisco, CA - Cadence II
Dear Mr. Stewart:
Comcast has reviewed the public utility easement (PUE) vacation documents for the proposed
redevelopment of this property located at 204, 208, 214, 216 Miller Avenue & 405 Cypress Avenue
South San Francisco, CA - Cadence II and has the following response:
X No objection to the vacation, but with the following reservations: (See comments below)
X A copy of our system map is attached for your information:
RE: Please be informed that there are portions of this project limit that involve extension of our
Comcast Cable Corporation plant and the undergrounding of our facilities currently attached aerially
to poles. The affected facilities and plan to relocate and underground our facilities have been
communicated to you and your team. The cost responsibility will be solely born by you for the total
cost of this project.
Sincerely,
Jeffrey Castaneda
Area Construction Manager
California Construction and Engineering
Comcast Cable Corporation
2055 Folsom Street | San Francisco, CA | 94110
Email: jeff_castaneda@comcast.com
Mobile: 415.377.1921 Office: 415.252.6315
50
Land Surveying & Engineering Support
111 Almaden Boulevard,
Room 814
San Jose, CA 95113
July 20, 2020
ENDORSEMENT APPROVAL
Jason Hallare
City of South San Francisco – Engineering Division
315 Maple Avenue
South San Francisco, CA 94080
RE: REQUEST FOR UTILITY APPROVAL OF THE PROPOSED VACATION OF PUBLIC
UTILITY EASEMENTS – CADENCE 2
Location: 204, 208, 214 and 216 Miller Avenue and 405 Cypress Avenue, South San Francisco
PG&E File No. Y20-AB-04; APN: 012-314-100, 110, 180, 190, 220
Dear Mr. Hallare:
PG&E has reviewed the 204, 208, 214 and 216 Miller Avenue and 405 Cypress Avenue project for the
proposed vacation of Public Utility Easements and has the following response:
No objection to the proposed vacation of the Public Utility Easements.
___ No objection to the proposed vacation of the Public Utility Easements but require the additional
easements shown on the attached plat map.
___ Object for the following reasons:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
If you have any questions concerning this matter, please contact me at (408) 282-7347, or
dan9@pge.com.
Sincerely,
David Neal
David Neal
Lead Land Technician
51
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:20-298 Agenda Date:11/10/2021
Version:1 Item #:5a.
A resolution approving the summary vacation of public utility easements on the following properties:APNs
012-314-100 (405 Cypress Avenue),012-314-110 (204 Miller Avenue),012-314-180 (208 Miller Avenue),012-
314-190 (214 Miller Avenue),and 012-314-220 (216 Miller Avenue)to allow for development of the
properties.
WHEREAS,in order to facilitate a proposed development project,it is recommended that the City Council
adopt a resolution approving the summary vacation of public utility easements (“Public Utility Easements”)on
the following properties,APNs 012-314-100 (405 Cypress Avenue),012-314-110 (204 Miller Avenue),012-
314-180 (208 Miller Avenue),012-314-190 (214 Miller Avenue),and 012-314-220 (216 Miller Avenue)
(“Cadence 2 Properties”); and,
WHEREAS,the Public Utility Easements are shared between the City of South San Francisco (“City”)and
private utility companies,such as Pacific Gas &Electric (“PG&E”),AT&T,Comcast,and California Water
Service (“CalWater); and,
WHEREAS,the Public Utility Easements to be vacated are described by plot and legal descriptions in Exhibit
A; and,
WHEREAS,the approval has been obtained from PG&E,AT&T,Comcast,and CalWater for vacation of the
easements; and,
WHEREAS,City-owned utility facilities,such as for sewer and storm drain,are not found to be within the
Cadence 2 Properties and as a result,there is no requirement to relocate utilities from the Cadence 2 Properties
to the public right-of-way; and,
WHEREAS,vacation of the Public Utility Easements does not eliminate the ability of the City,nor the private
utility companies, from providing service to existing and future uses; and
WHEREAS,as the Public Utility Easements located on the Cadence 2 Properties have not been used for the
purpose for which they were dedicated or acquired for five consecutive years immediately preceding the
proposed vacation,and thus,they may be summarily vacated pursuant to Streets and Highways Code section
8333; and,
WHEREAS,as staff has concluded that these Public Utility Easements are not necessary for the provision of
utility services and the private utility companies have also approved of the vacation,staff recommends that the
City Council adopt a resolution to summarily vacate the easements within the Cadence 2 Properties.
THEREFORE,BE IT RESOLVED that the City Council of the City of South San Francisco hereby takes theCity of South San Francisco Printed on 12/14/2021Page 1 of 2
powered by Legistar™52
File #:20-298 Agenda Date:11/10/2021
Version:1 Item #:5a.
THEREFORE,BE IT RESOLVED that the City Council of the City of South San Francisco hereby takes the
following actions:
1.Approves of the summary vacation of the Public Utility Easements located within the properties:
APNs 012-314-100 (405 Cypress Avenue),012-314-110 (204 Miller Avenue),012-314-180
(208 Miller Avenue), 012-314-190 (214 Miller Avenue), and 012-314-220 (216 Miller Avenue).
2.Authorizes the City Manager to execute the necessary documents to effectuate the summary
vacation of the Public Utility Easements,subject to review and approval as to form by the City
Attorney, and take any other action necessary to accomplish the intent of this resolution.
*****
City of South San Francisco Printed on 12/14/2021Page 2 of 2
powered by Legistar™53
September 2, 2020
Project No. A19674
Page 1 of 2
Z:\2019\A19674\DOCS\SURVEY\LEGAL DESCRIPTION\A19674-EX-PUE VACATION.docx
EXHIBIT “A”
LEGAL DESCRIPTION
FOR: PUBLIC UTILITY EASEMENT VACATION
ALL THAT CERTAIN PROPERTY SITUATE IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN
MATEO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEING ALL OF THE PUBLIC UTILITY EASEMENTS AS DESCRIBED IN THE DOCUMENTS BELOW, LYING
WITHIN PARCEL A, AS DESCRIBED IN THE CERTIFICATE OF COMPLIANCE RECORDED ON
____________________, AS INSTRUMENT NO. ____________________, OFFICIAL RECORDS OF SAN
MATEO COUNTY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
PUBLIC UTILITY EASEMENT #1
ALL THAT CERTAIN EASEMENT SITUATE IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN
MATEO, STATE OF CALIFORNIA, AS DESCRIBED IN THAT CERTAIN DOCUMENT RECORDED AUGUST
09, 1894 IN BOOK 62 OF DEEDS, AT PAGE 157, SAN MATEO COUNTY RECORDS.
EXCEPTING THEREFROM ANY PORTION OF SAID EASEMENT LYING WITHIN THE PUBLIC RIGHT OF
WAY.
PUBLIC UTILITY EASEMENT #2
ALL THAT CERTAIN EASEMENT SITUATE IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN
MATEO, STATE OF CALIFORNIA, AS DESCRIBED IN THAT CERTAIN DOCUMENT RECORDED APRIL 12,
1929 IN BOOK 406, AT PAGE 491, SAN MATEO COUNTY RECORDS.
EXCEPTING THEREFROM ANY PORTION OF SAID EASEMENT LYING WITHIN THE PUBLIC RIGHT OF
WAY.
PUBLIC UTILITY EASEMENT #3
ALL THAT CERTAIN EASEMENT SITUATE IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN
MATEO, STATE OF CALIFORNIA, AS DESCRIBED IN THAT CERTAIN DOCUMENT RECORDED APRIL 12,
1929 IN BOOK 412, AT PAGE 26, SAN MATEO COUNTY RECORDS.
EXCEPTING THEREFROM ANY PORTION OF SAID EASEMENT LYING WITHIN THE PUBLIC RIGHT OF
WAY.
PUBLIC UTILITY EASEMENT #4
ALL THAT CERTAIN EASEMENT SITUATE IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN
MATEO, STATE OF CALIFORNIA, AS DESCRIBED IN THAT CERTAIN DOCUMENT RECORDED APRIL 12,
1929 IN BOOK 412, AT PAGE 26, SAN MATEO COUNTY RECORDS.
54
September 2, 2020
Project No. A19674
Page 2 of 2
Z:\2019\A19674\DOCS\SURVEY\LEGAL DESCRIPTION\A19674-EX-PUE VACATION.docx
EXCEPTING THEREFROM ANY PORTION OF SAID EASEMENT LYING WITHIN THE PUBLIC RIGHT OF
WAY.
PUBLIC UTILITY EASEMENT #5
ALL THAT CERTAIN EASEMENT SITUATE IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN
MATEO, STATE OF CALIFORNIA, AS DESCRIBED IN THAT CERTAIN DOCUMENT RECORDED
NOVEMBER 19, 1932 IN BOOK 577, AT PAGE 295, SAN MATEO COUNTY RECORDS.
EXCEPTING THEREFROM ANY PORTION OF SAID EASEMENT LYING WITHIN THE PUBLIC RIGHT OF
WAY.
PUBLIC UTILITY EASEMENT #6
ALL THAT CERTAIN EASEMENT SITUATE IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN
MATEO, STATE OF CALIFORNIA, AS DESCRIBED IN THAT CERTAIN DOCUMENT RECORDED
NOVEMBER 23, 1932 IN BOOK 583, AT PAGE 131, SAN MATEO COUNTY RECORDS.
EXCEPTING THEREFROM ANY PORTION OF SAID EASEMENT LYING WITHIN THE PUBLIC RIGHT OF
WAY.
PUBLIC UTILITY EASEMENT #7
ALL THAT CERTAIN EASEMENT SITUATE IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN
MATEO, STATE OF CALIFORNIA, AS DESCRIBED IN THAT CERTAIN DOCUMENT RECORDED APRIL 20,
1937 IN BOOK 734, AT PAGE 463, SAN MATEO COUNTY RECORDS.
EXCEPTING THEREFROM ANY PORTION OF SAID EASEMENT LYING WITHIN THE PUBLIC RIGHT OF
WAY.
AS SHOWN ON EXHIBIT “B” ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF.
LEGAL DESCRIPTION PREPARED BY KIER & WRIGHT CIVIL ENGINEERS AND SURVEYORS, INC.
09/02/2020
DATE RODNEY A. STEWART II, P.L.S. 9225
55
56
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-824 Agenda Date:11/10/2021
Version:1 Item #:6.
Report regarding a resolution authorizing the acceptance of $40,000 in grant funding from the Woodlawn
Foundation to support Project Read’s Learning Wheels Family Literacy Program and amending the Library
Department’s Fiscal Year 2021 -2022 Operating Budget via Budget Amendment 22.025.(Valerie Sommer,
Library Director)
RECOMMENDATION
It is recommended that the City Council adopt a resolution authorizing the acceptance of $40,000 in
grant funding from the Woodlawn Foundation to support Project Read’s Family Literacy Program
delivered by Learning Wheels and amending the Library Department’s Fiscal Year 2021-2022 (FY21-22)
Operating Budget via Budget Amendment 22.025.
BACKGROUND/DISCUSSION
In September 2021,Project Read applied for a grant from the Woodlawn Foundation to support our family
literacy services offered through Learning Wheels for low income,low literacy families in North San Mateo
County.On October 28,2021,Project Read was awarded funding for Learning Wheels,the Library’s mobile
literacy program,to bring story times,literacy activities,and free books to hard-to-reach neighborhoods and
service points.Each month,Learning Wheels visits over 350 families at preschools,transitional housing
locations,social service agencies,health clinics,and community events in South San Francisco,Daly City,San
Bruno,and Town of Colma.In typical years,the Learning Wheels Family Literacy Services program distributes
approximately 5,000 books during 150 visits to families throughout the community.In addition,Learning
Wheels staff provides information and referral services to underserved families.This year,virtual programming
may continue to be available and social distancing and other health and safety protocols instituted in outreach
services,programs and events.Funding from The Woodlawn Foundation allows Project Read’s Learning
Wheels to continue providing vital services to residents of South San Francisco and partner cities.
FISCAL IMPACT
Grant funds will be used to amend the Library Department’s current FY 21-22 Operating Budget per Budget
Amendment 22.025. Receipt of these funds does not commit the City to ongoing funding.
RELATIONSHIP TO STRATEGIC PLAN
Grant funding to support Learning Wheels services will provide additional family literacy programming for low
income,low literacy families in South San Francisco and neighboring cities.The strengthening of learning
programs is an action item in the City’s Strategic Plan under Priority #3: Quality of Life.
CONCLUSION
Receipt of these funds will support Learning Wheels Family Literacy Program for low income,low literacy
families.It is recommended that the City Council accept $40,000 in grant funding to support family literacy
programming and amend the Library Department’s FY 21-22 Operating Budget via Budget Amendment
22.025.
City of South San Francisco Printed on 11/5/2021Page 1 of 1
powered by Legistar™57
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-826 Agenda Date:11/10/2021
Version:1 Item #:6a.
Resolution authorizing the acceptance of $40,000 in grant funding from the Woodlawn Foundation to
support Project Read’s Learning Wheels Family Literacy Program and amending the Library
Department’s Fiscal Year 2021- 2022 Operating Budget via Budget Amendment 22.025.
WHEREAS,the City of South San Francisco (“City”)Library Department established Project Read to
assist adults and their families in reaching literacy goals; and
WHEREAS,Learning Wheels,a program of Project Read,provides literary services to low income,
low literate families in South San Francisco and surrounding cities through site visits; and
WHEREAS,the Woodlawn Foundation has awarded the City $40,000 in grant funding to support
Learning Wheels; and
WHEREAS,staff recommends the acceptance of the grant funding in the amount of $40,000 from the
Woodlawn Foundation to support Learning Wheels, a program of Project Read; and
WHEREAS,the grant funds will be used to amend Fiscal Year (FY)2021-2022 Operating Budget of
the Library Department via Budget Amendment 22.025.
NOW,THEREFORE,BE IT RESOLVED that the City Council of the City of South San Francisco
does hereby accept $40,000 in grant funding from the Woodlawn Foundation and approve Budget
Amendment 22.025 to amend the Library Department’s FY 2021-2022 Operating Budget in order to
reflect an increase of $40,000.
*****
City of South San Francisco Printed on 12/14/2021Page 1 of 1
powered by Legistar™58
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-836 Agenda Date:11/10/2021
Version:1 Item #:7.
Report regarding a resolution authorizing the acceptance of donations,grants,and stipends from various
funders totaling $48,900 for Fiscal Year 2021-22 to support Parks and Recreation Department programs and
events,and amending the Parks and Recreation Department’s Fiscal Year 2021-22 Operating Budget pursuant
to budget amendment #22.026.(Greg Mediati, Deputy Director of Parks and Recreation)
RECOMMENDATION
It is recommended that the City Council adopt a resolution authorizing the acceptance of donations,
grants,and stipends from various funders totaling $48,900 for Fiscal Year 2021-22 to support Parks and
Recreation Department programs and events,and amending the Parks and Recreation Department’s
Fiscal Year 2021-22 Operating Budget pursuant to budget amendment #22.026.(Greg Mediati,Deputy
Director of Parks and Recreation)
BACKGROUND/DISCUSSION
The purpose of this staff report is to recommend that City Council authorize the acceptance of:
1.$200 from Michael DeNatale for the Jack Drago Cultural Arts Commission Youth Art Scholarship
Program; and
2.$1,500 from the South San Francisco Rotary Club for the Parks and Recreation Department’s “It’s the
Great Pumpkin, South City!” Halloween event at Orange Memorial Park on October 23, 2021; and
3.$7,200 from the Child Care Coordinating Council of San Mateo and $40,000 in stipends from the
California Department of Social Services for the Childcare Program.
$200 from Michael DeNatale for the Jack Drago Cultural Arts Commission Youth Art Scholarship Program
The Jack Drago Cultural Arts Commission Youth Art Scholarship was established for the purpose of providing
eligible graduating seniors from the South San Francisco Unified School District continued education in the
arts.The scholarship is financed exclusively by community donations such as this $200 donation from Cultural
Arts Commission Chair Michael DeNatale.In 2021,the Cultural Arts Commission granted two $1,500
scholarships to aspiring artists from El Camino High School and South San Francisco High School.
$1,500 from the South San Francisco Rotary Club for the Parks and Recreation Department’s “It’s the
Great Pumpkin, South City!” Halloween event at Orange Memorial Park
On Saturday,October 23,the Parks and Recreation Department hosted a Halloween event titled “It’s the Great
Pumpkin,South City!”at Orange Memorial Park.This event was a COVID-friendly spinoff from the always
popular Halloween Extravaganza,which typically is held indoors at the Municipal Services Building.
Throughout the day,2,000 individuals joined the festivities,which included a pumpkin patch,petting zoo,
zombie zone,character walk,games,crafts,and a costume contest.Attendees were delighted by the various
activities, décor, and overall festive spirit of the day.
Funding for the annual Halloween Extravaganza was among the Department’s budget cuts during the initial
COVID outbreak and was not restored in the 2021-2022 budget.The Department was fortunate to be able to
supplement some of the funding for this year’s Halloween event through the generous donations of community
partners.One particular community partner to highlight is the South San Francisco Rotary Club.The Rotary
City of South San Francisco Printed on 11/5/2021Page 1 of 3
powered by Legistar™59
File #:21-836 Agenda Date:11/10/2021
Version:1 Item #:7.
partners.One particular community partner to highlight is the South San Francisco Rotary Club.The Rotary
Club sponsored the popular petting zoo with a donation of $1,500.Over 600 attendees enjoyed the farm
animals thanks to the Rotary Club.The South San Francisco Rotary Club not only contributed monetarily,but
also gathered volunteers to assist with the event.Rotarians and Interact Club members assisted with setup,
event games, and cleanup; their volunteer contribution even helped alleviate some staff hours.
$7,200 from the Child Care Coordinating Council of San Mateo and $40,000 in stipends from the California
Department of Social Services for the Childcare Program
The Parks and Recreation Department’s Childcare Program received $7,200 from the Child Care Coordinating
Council of San Mateo (4Cs)and $40,000 in stipends from the California Department of Social Services
(CDSS) for the seven licensed preschool and before and after school programs operated by the Department.
Pursuant to an agreement between the State of California and Child Care Providers United -California
(CCPU),the Governor and the Legislature directed a portion of the American Rescue Plan Act (ARPA)
childcare stabilization funding to childcare providers in the form of benefits such as stipends or rate increases.
4Cs and CDSS are responsible for issuing the ARPA funding to childcare providers and childcare development
contractors,and for collecting data about how the funds were used,to comply with federal reporting
requirements.
The funds may only be used for one or more of the purposes below:
1.Personnel costs, benefits, premium pay, or recruitment and retention
2.Rent or mortgage payments, utilities, facilities maintenance and improvements, or insurance
3.Personal protective equipment, cleaning and sanitization supplies and services
4.Training and professional development related to health and safety practices
5.Purchases of or updates to equipment and supplies to respond to COVID-19
6.Goods and services necessary to maintain or resume childcare services
7.Mental health supports for children and employees
The Childcare Program intends to spend most of the funds received for items numbered three through six
above.
The grant period has an open-ended deadline as it is defined as the amount of time it takes to spend the funds.
Staff expects to spend the funds by the end of the fiscal year and has already identified furniture for
replacement to allow for improved social distancing and use of space,trainings for staff,and purchase of
personal protective equipment and room dividers.The Department is thankful to have the additional funds to
help support the Childcare Program.
FISCAL IMPACT
The donation of $200 for the Cultural Arts Program and $1,500 for the Halloween event has no impact to the
City’s general fund.
Grants in the amount of $7,200 from 4Cs and $40,000 from CDSS will be amended into the Parks and
Recreation Department’s 2021-2022 operating budget pursuant to budget amendment number #22.026 to cover
additional expenses that are allowed by the subgrant.
RELATIONSHIP TO STRATEGIC PLAN
Acceptance of this funding will contribute to the City’s Strategic Plan under Priority #2 by helping to build
City of South San Francisco Printed on 11/5/2021Page 2 of 3
powered by Legistar™60
File #:21-836 Agenda Date:11/10/2021
Version:1 Item #:7.
robust recreation programs.
CONCLUSION
Staff recommends that City Council adopt a resolution authorizing the acceptance of donations,grants,and
stipends from various funders totaling $48,900 for Fiscal Year 2021-22 to support Parks and Recreation
Department programs and events,and amending the Parks and Recreation Department’s Fiscal Year 2021-22
Operating Budget pursuant to budget amendment #22.026.
The Parks and Recreation Department appreciates contributions from individual community members,local
organizations,and State and Federal partners that help continue and enhance the Department’s mission to
provide opportunities for physical,cultural and social well-being;protect and enhance the physical
environment; and ensure the effective and efficient use of public facilities and open space.
City of South San Francisco Printed on 11/5/2021Page 3 of 3
powered by Legistar™61
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-837 Agenda Date:11/10/2021
Version:1 Item #:7a.
Resolution authorizing the acceptance of donations,grants,and stipends from various funders totaling $48,900
for Fiscal Year 2021-22 to support Parks and Recreation Department programs and events,and amending the
Parks and Recreation Department’s Fiscal Year 2021-22 Operating Budget pursuant to budget amendment
#22.026.
WHEREAS,the Parks and Recreation Department (Department)received $200 from Michael DeNatale for the
Jack Drago Cultural Arts Commission Youth Art Scholarship Program; and
WHEREAS,the Department received $1,500 from the South San Francisco Rotary Club for the Parks and
Recreation Department’s “It’s the Great Pumpkin,South City!”Halloween event at Orange Memorial Park on
October 23, 2021; and
WHEREAS,the Department received $7,200 from the Child Care Coordinating Council of San Mateo and
$40,000 in stipends from the California Department of Social Services for the Childcare Program; and
WHEREAS, the donations, grants, and stipends listed here are itemized herewith in Exhibit A; and
WHEREAS,the Parks and Recreation Department appreciates contributions from individual community
members,local organizations,and State and Federal partners that help continue and enhance the Department’s
mission to provide opportunities for physical,cultural and social well-being;protect and enhance the physical
environment; and ensure the effective and efficient use of public facilities and open space.
NOW,THEREFORE,BE IT RESOLVED that the City Council of the City of South San Francisco hereby
accepts the donations,grants,and stipends from various funders totaling $48,900,all of which are itemized in
Exhibit A, for Fiscal Year 2021-22 to support Parks and Recreation Department programs and events.
****
City of South San Francisco Printed on 12/14/2021Page 1 of 1
powered by Legistar™62
Exhibit A
Parks and Recreation Department
Grants/Stipends for City Council Approval
Fiscal Year 2021-2022
Donor/Grantee Program/Activity Amount
Michael DeNatale Cultural Arts Program $200
South San Francisco Rotary Club Halloween Event $1,500
Child Care Coordinating Council of
San Mateo County (4Cs)
Separate checks issued for each eligible
school site:
• Siebecker $600
• Monte Verde $600
• Buri Buri $1,800
• Ponderosa $4,200
Childcare Program $7,200
California Department of Social
Services
Separate checks issued for each eligible
school site:
• Spruce $5,000
• Buri Buri $6,500
• Monte Verde $6,500
• Ponderosa $6,500
• Westborough $6,500
• Little Steps $4,000
• Siebecker $5,000
Childcare Program $40,000
TOTAL $48,900
63
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-842 Agenda Date:11/10/2021
Version:1 Item #:8.
Report regarding a resolution authorizing the acceptance of two grants for the South San Francisco Guaranteed Income
Pilot Program,1)a grant of $100,000 from San Mateo County Measure K Funds and 2)a grant of $100,000 from the
Silicon Valley Community Foundation,and approving Budget Amendment Number 22.027 appropriating $200,000 for
the Pilot Program. (Nell Selander, Interim Director, Economic & Community Development Department)
RECOMMENDATION
Staff recommends that the City Council adopt a resolution authorizing the acceptance of two grants for the South
San Francisco Guaranteed Income Pilot Program -1)a grant of $100,000 from San Mateo County Measure K
Funds and 2)a grant of $100,000 from the Silicon Valley Community Foundation -and approving Budget
Amendment Number 22.027 appropriating $200,000 for the Pilot Program.
BACKGROUND/DISCUSSION
On July 14,2021,City Council adopted Resolution 140-2021 approving the South San Francisco Guaranteed Income
Pilot Program and appropriating $1 million in American Rescue Plan Act funds for the Program.On July 28,2021,City
Council adopted Resolution 148-2021 approving a contract with the YMCA Community Resource Center to administer
the Program and appropriating an additional $200,000 in funds that would be offset by anticipated grants.
Since Council took these actions, the City has been awarded two grants, as anticipated:
1)A $100,000 grant from the Silicon Valley Community Foundation via the South San Francisco Public Library
Foundation and
2)A $100,000 grant from San Mateo County District-Discretionary Measure K Funds through District 1,
represented by Supervisor Dave Pine.
The associated resolution accepts these funds,authorizes the City Manager to execute any grant agreements and
documents associated with the grants, and appropriates the grants via Budget
Amendment Number 22.027.
FISCAL IMPACT
Acceptance of these grant funds directly offsets the $200,000 appropriated in Council’s previously adopted Resolution on
July 28th,reducing the City’s investment in the South San Francisco Guaranteed Income Pilot Program from $1.2 million
to $1 million (funded through the American Rescue Plan Act).
CONCLUSION
Staff recommends that the City Council adopt a resolution authorizing the acceptance of two grants for the South San
Francisco Guaranteed Income Pilot Program -1)a grant of $100,000 from San Mateo County Measure K Funds and 2)a
grant of $100,000 from the Silicon Valley Community Foundation -and approving Budget Amendment Number 22.027
appropriating $200,000 for the Pilot Program.
City of South San Francisco Printed on 11/5/2021Page 1 of 1
powered by Legistar™64
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-843 Agenda Date:11/10/2021
Version:1 Item #:8a.
Resolution authorizing the acceptance of two grants for the South San Francisco Guaranteed Income Pilot
Program,1)a grant of $100,000 from San Mateo County Measure K Funds and 2)a grant of $100,000 from the
Silicon Valley Community Foundation,and approving Budget Amendment Number 22.027 appropriating
$200,000 for the Pilot Program.
WHEREAS,on July 14,2021,City Council adopted Resolution 140-2021 approving the South San Francisco
Guaranteed Income Pilot Program and appropriating $1 million in American Rescue Plan Act funds for the
Program; and
WHEREAS,on July 28,2021,City Council adopted Resolution 148-2021 approving a contract with the
YMCA Community Resource Center to administer the Program and appropriating an additional $200,000 in
funds that would be offset by anticipated grants; and
WHEREAS,since Council took these actions,the City has been awarded a $100,000 grant from the Silicon
Valley Community Foundation via the South San Francisco Public Library Foundation; and
WHEREAS,the City has also been awarded a $100,000 grant from San Mateo County District-Discretionary
Measure K Funds through District 1, represented by Supervisor Dave Pine; and
WHEREAS,these funds will directly offset the $200,000 previously appropriated by Council by Resolution
148-2021.
NOW,THEREFORE,BE IT RESOLVED by the City Council of the City of South San Francisco that the City
Council hereby accepts the $100,000 Silicon Valley Community Foundation grant via the South San Francisco
Public Library Foundation and the $100,000 San Mateo County Measure K grant;authorizes the City Manager
to enter into any necessary agreements to fulfill the intent of this Resolution,subject to approval as to form by
the City Attorney,and to take other necessary actions to effectuate the purpose of this resolution;and approves
Budget Amendment 22.027 appropriating $200,000 for the South San Francisco Guaranteed Income Pilot
Program.
Exhibit A: Silicon Valley Community Foundation Grant Award Letter
Exhibit B: San Mateo County Measure K Grant Agreement
*****
City of South San Francisco Printed on 12/14/2021Page 1 of 2
powered by Legistar™65
File #:21-843 Agenda Date:11/10/2021
Version:1 Item #:8a.
City of South San Francisco Printed on 12/14/2021Page 2 of 2
powered by Legistar™66
67
Agreement No. __________ Board Resolution No. ________
Page 1
MEASURE K GRANT AGREEMENT
BETWEEN THE COUNTY OF SAN MATEO AND CITY OF SOUTH SAN FRANCISCO
This Agreement is entered into this 9th day of November, 2021 by and between the County of San
Mateo, a political subdivision of the state of California, hereinafter called “County,” and the City of South
San Francisco (”Grantee”).
* * *
WHEREAS, the Grantee has applied to the County seeking a grant for the purpose of funding the
matters set forth in its Project described in Exhibit A (the “Grant”);
WHEREAS, the County has approved the grant of certain funds to Grantee pursuant the terms
set forth in this Agreement;
NOW, THEREFORE, it is agreed by the parties to this Agreement as follows:
1. Exhibits and Attachments
The following exhibits and attachments are attached to this Agreement and incorporated into this
Agreement by this reference:
Exhibit A—Project Description
Exhibit B—Reporting
2. Grant
County hereby grants to Grantee a sum not to exceed ONE HUNDRED THOUSAND DOLLARS
($100,000) in consideration of and on the condition that the sum be expended for the sole purpose of
carrying out the objectives of Grantee’s Project as identified in Exhibit A, and in no event shall the
County’s total fiscal obligation under this Agreement exceed this amount. Grantee agrees to assume any
obligation to secure and furnish any additional funds that may be necessary to carry out its Project.
Funds granted under this Agreement shall not be disbursed until execution of this Agreement by County
and Grantee.
County shall disburse grant funds to Grantee upon receipt of invoices. Invoices should be accompanied
by back up documentation (e.g., receipts for professional services rendered, salary and benefits back up,
etc.) and submittal of any required summary reports outlined in Exhibits A or B. The County reserves the
right to change the disbursement method during the term of this Agreement.
The disbursement schedule is as follows:
• Payment 1- Invoice for up to 50% of the grant ($50,000), upon submission of
receipts/invoices shoring expenditures on items funded by the grant.
• Payment 2 - Invoice for remainder of the grant ($50,000), upon submission of
receipts/invoices showing expenditures on items funded by the grant, including photographs
and use of Measure K logo as approved by the County.
INVOICES: Requests for grant disbursement should be (1) on the organization’s official letterhead, (2)
include date of invoice, amount requested, and Agreement number, and (3) submitted to the attention of:
Molly Villagomez, Accountant for Measure K
455 County Center, 4th Floor
Redwood City, CA 94063
Email: mevillagomez@smcgov.org
68
Agreement No. __________ Board Resolution No. ________
Page 2
3. Term & Termination
Subject to compliance with all terms and conditions, the term of this Agreement shall begin on the date of
execution by the Parties and continue through December 31, 2022. This Agreement will not automatically
renew, nor shall it create any reliance on the possibility of future grants.
County may terminate this Agreement based upon the unavailability of Federal, State, or County funds by
providing written notice to Grantee within a reasonable time after County learns of said unavailability of
funding. Grantee acknowledges that this Agreement may be subject to approval of the Board of
Supervisors, and assumes all risk of possible non-appropriation and non-approval of funds.
County may suspend and/or terminate this Agreement if Grantee fails to comply with the terms of this
Agreement and may, in its sole discretion, withhold or cancel pending and future disbursements of grant
funds and/or require Grantee to return some or all funds disbursed under this Agreement.
4. Relationship of Parties
Notwithstanding any publicity or other references to the County required to be made in connection with
the Project as set forth in Exhibit A, Grantee understands and agrees that the Project performed under
this Agreement is not performed by Grantee as an independent contractor of the County or as an
employee of County and that neither Grantee nor its employees acquire any of the rights, privileges,
powers, or advantages of County contractors or County employees. Grantee acknowledges and agrees
that it is not, and will not hold itself out as, an agent, partner, or co-venturer of the County, and that this
Agreement is not intended to and does not create an agency, partnership, joint venture between the
Parties.
5. Project Administration
The Parties agree that the Project as described in Exhibit A shall not be altered without a written
amendment to this Agreement, signed by both the County and the Grantee. Grantee shall provide written
reports to the County’s authorized representative in accordance with Exhibit B.
6. Hold Harmless
Grantee shall indemnify and save harmless County and its officers, agents, employees, and servants
from all claims, suits, or actions of every name, kind, and description resulting from this Agreement, the
performance of any work or services performed of Grantee in furtherance of the Project under this
Agreement, or payments made pursuant to this Agreement brought for, or on account of, any of the
following:
(A) injuries to or death of any person, including Grantee or its
employees/officers/agents/volunteers;
(B) damage to any property of any kind whatsoever and to whomsoever belonging;
(C) any sanctions, penalties, or claims of damages resulting from Grantee’s failure to comply with
any applicable federal, state, or local laws or regulations; or
(D) any other loss or cost, including but not limited to that caused by the concurrent active or
passive negligence of County and/or its officers, agents, employees, or servants. However,
Grantee’s duty to indemnify and save harmless under this Section shall not apply to injuries or
damage for which County has been found in a court of competent jurisdiction to be solely liable
by reason of its own negligence or willful misconduct.
The duty of Grantee to indemnify and save harmless as set forth by this Section shall include the duty to
defend as set forth in Section 2778 of the California Civil Code.
69
Agreement No. __________ Board Resolution No. ________
Page 3
7. Insurance
a. General Requirements
Prior to its receipt of any funds pursuant to this Grant Agreement, Grantee shall obtain all insurance
required under this Section and such insurance shall be subject to the approval by County’s Risk
Management, and Grantee shall use diligence to obtain such insurance and to obtain such approval.
Grantee shall furnish County with certificates of insurance evidencing the required coverage, and there
shall be a specific contractual liability endorsement extending Grantee’s coverage to include the
contractual liability assumed by Grantee pursuant to this Agreement. These certificates shall specify or be
endorsed to provide that thirty (30) days’ notice must be given, in writing, to County of any pending
change in the limits of liability or of any cancellation or modification of the policy.
b. Workers’ Compensation and Employer’s Liability Insurance
Grantee shall have in effect during the entire term of this Agreement workers’ compensation and
employer’s liability insurance providing full statutory coverage. In signing this Agreement, Grantee
certifies, as required by Section 1861 of the California Labor Code, that (a) it is aware of the provisions of
Section 3700 of the California Labor Code, which require every employer to be insured against liability for
workers’ compensation or to undertake self-insurance in accordance with the provisions of the Labor
Code, and (b) it will comply with such provisions before commencing or continuing the performance of
Project work for which it would receive grant funds.
c. Liability Insurance
Grantee shall take out and maintain during the term of this Agreement such bodily injury liability and
property damage liability insurance as shall protect Grantee and all of its employees/officers/agents while
performing work covered by this Agreement from any and all claims for damages for bodily injury,
including accidental death, as well as any and all claims for property damage which may arise from
Grantee’s operations under this Agreement, whether such operations be by Grantee, any subcontractor,
anyone directly or indirectly employed by either of them, or an agent of either of them. Such insurance
shall be combined single limit bodily injury and property damage for each occurrence and shall not be
less than the amounts specified below:
X Comprehensive General Liability… $1,000,000
(Applies to all agreements)
☐ Motor Vehicle Liability Insurance… $1,000,000
(To be checked if motor vehicle used in performing services)
☐ Professional Liability………………. $1,000,000
(To be checked if Grantee is a licensed professional)
County and its officers, agents, employees, and servants shall be named as additional insured on any
such policies of insurance, which shall also contain a provision that (a) the insurance afforded thereby to
County and its officers, agents, employees, and servants shall be primary insurance to the full limits of
liability of the policy and (b) if the County or its officers, agents, employees, and servants have other
insurance against the loss covered by such a policy, such other insurance shall be excess insurance only.
In the event of the breach of any provision of this Section, or in the event any notice is received which
indicates any required insurance coverage will be diminished or canceled, County, at its option, may,
notwithstanding any other provision of this Agreement to the contrary, immediately declare a material
breach of this Agreement and suspend any further payment pursuant to this Agreement.
70
Agreement No. __________ Board Resolution No. ________
Page 4
8. Assignability and Subcontracting
Grantee shall not assign this Agreement or any portion of it to a third party. Except as set forth in Exhibit
A, Grantee shall not subcontract with a third party to perform the Project. Any such assignment or
subcontract without County’s prior written consent shall give County the right to automatically and
immediately terminate this Agreement without penalty or advance notice and the County shall have the
right to a refund of all funds disbursed under this Agreement.
9. Compliance With Laws
All services to be performed by Grantee in connection with the Project shall be performed in accordance
with all applicable Federal, State, County, and municipal laws, ordinances, and regulations, including, but
not limited to, any laws related to payment of prevailing wages pursuant to the California Labor Code. In
connection with the Project, Grantee bears responsibility to obtain, at Grantee’s expense, any license,
permit, or approval required from any agency.
10. Merger Clause; Amendments
This Agreement, including Exhibits, constitutes the sole Agreement of the parties regarding the Grant,
and correctly states the rights, duties, and obligations of each party as of this document’s date. In the
event that any term, condition, provision, requirement, or specification set forth in the body of this
Agreement conflicts with or is inconsistent with any term, condition, provision, requirement, or
specification in any Exhibit and/or Attachment to this Agreement, the provisions of the body of the
Agreement shall prevail. Any prior agreement, promises, negotiations, or representations between the
parties concerning the Grant that are not expressly stated in this document are not binding. All
subsequent modifications or amendments shall be in writing and signed by the parties.
11. Controlling Law; Venue
The validity of this Agreement and of its terms, the rights and duties of the parties under this Agreement,
the interpretation of this Agreement, the performance of this Agreement, and any other dispute of any
nature arising out of this Agreement shall be governed by the laws of the State of California without
regard to its choice of law or conflict of law rules. Any dispute arising out of this Agreement shall be
venued either in the San Mateo County Superior Court or in the United States District Court for the
Northern District of California.
12. Notices
Any notice, request, demand, or other communication required or permitted under this Agreement shall
be deemed to be properly given when both: (1) transmitted via email to the email address listed below;
and (2) sent to the physical address listed below by either being deposited in the United States mail,
postage prepaid, or deposited for overnight delivery, charges prepaid, with an established overnight
courier that provides a tracking number showing confirmation of receipt.
In the case of County, to: In the case of Grantee, to:
Rosalinda Jen, Measure K Administrator
455 County Center, 4th Floor
Redwood City, CA 94063
(650) 363-4122
Email: rjen@smcgov.org
Nell Selander, Interim Director
Economic & Community Development Department
City of South San Francisco
650-829-6613
Nell.selander@ssf.net
71
Agreement No. __________ Board Resolution No. ________
Page 5
13.Electronic Signature
Both County and Contractor wish to permit this Agreement and future documents relating to this
Agreement to be digitally signed in accordance with California law and County’s Electronic Signature
Administrative Memo. Any party to this Agreement may revoke such agreement to permit electronic
signatures at any time in relation to all future documents by providing notice pursuant to this Agreement.
* * *
THIS AGREEMENT IS NOT VALID UNTIL SIGNED BY ALL PARTIES. NO FUNDS WILL BE
DISTRIBUTED UNTIL THIS DOCUMENT HAS BEEN SIGNED BY THE COUNTY’S AUTHORIZED
DESIGNEE.
For Grantee:
City of South San Francisco
_____________________________
(signature)
Authorized Representative
Grantee
Mike Futrell, City Manager
(please print name)
Authorized Representative
Grantee
_______________
Date
_____________________________
Name of Grantee
For County:
______________________________
(Signature)
Authorized Designee
County of San Mateo
ILIANA RODRIGUEZ
____________________________
(please print name)
Authorized Designee
County of San Mateo
______________
Date
DEPUTY COUNTY MANAGER
______________________________
Job Title (please print)
80125-6265
______________________________
Budget Unit
BOSD1
______________________________
Measure K JL Code
72
Agreement No. __________ Board Resolution No. ________
Page 6
Exhibit A
The County and Grantee agree that the grant funds shall only be used to further the goals of the following
Project, described below and in the November 9, 2021 Board transmittal and resolution, attached hereto:
Grantee will Measure K funds to for the City of South San Francisco’s Guaranteed Income Pilot Program,
which will provide eligible City residents with $500 per month for 12 months, beginning in November 2021
and concluding in October 2022, with the intent of mitigating or ameliorating negative consequences
associated with persistent poverty. Grantee will partner with YMCA Community Resource Center to
administer the program.
Application priority will be based on need and risk factors for remaining in poverty, as follows: Tier I
applicants are households at or below 30% Area Median Income (AMI) that do not qualify for other public
benefits. Tier II requires that households be at or below 30% AMI. Tier III are households at or below 50%
AMI and do not qualify for other public benefits. Tier IV are households that are at or below 50% AMI.
Under no circumstances will the County’s fiscal obligation exceed $100,000.
73
Agreement No. __________ Board Resolution No. ________
Page 7
Exhibit B
In accordance with the terms of this Grant Agreement, Grantee will provide as allowed by budget, or
cause to be provided the services for the Project detailed in Exhibit A and will report back to the County
regarding various performance measures including, but not limited to, those noted below. Such reporting
data shall be delivered to the County no later than December 31, 2022. In addition, Grantee agrees to
provide descriptive information about the Project funded by the Measure K grant upon reasonable request
of the County, including, but not limited to, the County Manager’s Office, the County Communications
Officer, or the Supervisorial District Office.
Measure Target
Scoring of financial, educational, and employment improvements of
participants after receiving a guaranteed income for one year.
160 Participants
74
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-831 Agenda Date:11/10/2021
Version:1 Item #:9.
Report regarding an ordinance amending Chapters 8.16 and 8.28,and adding Chapter 8.27 Mandatory Organic
Waste Disposal Reduction,to the South San Francisco Municipal Code relating to organic waste disposal and
related regulations pursuant to Senate Bill 1383.(Marissa Garren, Management Analyst I)
RECOMMENDATION
It is recommended that the City Council waive a second reading and adopt an ordinance amending
Chapters 8.16 and 8.28,and adding Chapter 8.27 Mandatory Organic Waste Disposal Reduction,to the
South San Francisco Municipal Code relating to organic waste disposal and related regulations pursuant
to Senate Bill 1383.
BACKGROUND/DISCUSSION
On October 27,2021,City Council introduced an ordinance amending Chapters 8.16 and 8.28,and adding
Chapter 8.27 Mandatory Organic Waste Disposal Reduction,to the South San Francisco Municipal Code
relating to organic waste disposal and related regulations pursuant to Senate Bill 1383.
The City Council voted to introduce this ordinance, as amended, which now requires a second reading.
(Introduced 10/27/21; Vote 5-0)
The ordinance is now ready for adoption.
CONCLUSION
The ordinance is now ready for adoption.
City of South San Francisco Printed on 11/5/2021Page 1 of 1
powered by Legistar™75
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-832 Agenda Date:11/10/2021
Version:1 Item #:9a.
Ordinance amending Chapters 8.16 and 8.28,and adding Chapter 8.27 Mandatory Organic Waste Disposal
Reduction,of Title 8 of the South San Francisco Municipal Code relating to organic waste disposal and related
regulations pursuant to Senate Bill 1383.
WHEREAS,the City of South San Francisco,California (“City”)is a municipality,duly organized under the
constitution and laws of the State of California; and
WHEREAS,in September 2016,Senate Bill 1383 (“SB 1383”)established statewide methane emissions
reduction targets in an effort to reduce emissions of short-lived climate pollutants in various sectors of
California’s economy; and
WHEREAS,SB 1383 includes statewide goals to reduce the disposal of organic waste (food scraps,yard
debris, paper products, etc.) and recover edible food for human consumption; and
WHEREAS,to meet the SB 1383 regulations,jurisdictions throughout the State are required to adopt an
ordinance or other similarly enforceable mechanism by January 1, 2022; and
WHEREAS,this ordinance will mandate that organic waste generators,haulers,and other entities subject to the
requirements of SB 1383 regulations and subject to the City of South San Francisco’s authority,comply with
SB 1383 regulatory requirements; and
WHEREAS,through adoption of this ordinance,the City Council desires to amend Chapters 8.16 Solid Waste -
Scavenger Services and 8.28 Recyclable Materials;and adding Chapter 8.27 Mandatory Organic Waste
Disposal Reduction,of Title 8 of the South San Francisco Municipal Code relating to organic waste disposal
and related regulations pursuant to Senate Bill 1383.
NOW,THEREFORE,THE CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO,DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1.Findings
The City Council of South San Francisco,finds that all Recitals are true and correct and are incorporated herein
by reference.
SECTION 2.Amendments to the Municipal Code
Title 8 of the South San Francisco Municipal Code shall be amended as shown on Exhibit A to this Ordinance,
attached hereto and incorporated herein.
City of South San Francisco Printed on 12/14/2021Page 1 of 2
powered by Legistar™76
File #:21-832 Agenda Date:11/10/2021
Version:1 Item #:9a.
SECTION 3. California Environmental Quality Act (CEQA)
This Ordinance is adopted pursuant to CalRecycle’s SB 1383 Regulations.The SB 1383 Regulations were the
subject of a program environmental impact report (EIR)prepared by CalRecycle,and the activities to be carried
out under this Ordinance are entirely within the scope of the SB 1383 Regulations and that EIR.No mitigation
measures identified in the EIR are applicable to the City’s enactment of this Ordinance.Moreover,none of the
conditions requiring a subsequent or supplemental EIR,as described in Public Resources Code Section 21166
and California Environmental Quality Act (CEQA)Guidelines Sections 15162 and 15163,have occurred.The
EIR therefore adequately analyzes any potential environmental effects of the Ordinance and no additional
environmental review is required.On a separate and independent basis,the Ordinance is exempt from CEQA
pursuant to Section 15308,Class 8 of the CEQA Guidelines of as an action that will not have a significant
impact on the environment and as an action taken by a regulatory agency for the protection of the environment,
specifically,for the protection of the climate.There are no unusual circumstances that would cause this
Ordinance to have a significant effect on the environment.
SECTION 4. Severability
If any provision of this ordinance or the application thereof to any person or circumstance is held invalid,the
remainder of the ordinance and the application of such provision to other persons or circumstances shall not be
affected thereby.
SECTION 5.Publication and Effective Date
Pursuant to the provisions of Government Code Section 36933,a summary of this Ordinance shall be prepared
by the City Attorney.At least five (5)days prior to the Council meeting at which this Ordinance is scheduled to
be adopted,the City Clerk shall (1)publish the Summary,and (2)post in the City Clerk’s Office a certified
copy of this Ordinance.Within fifteen (15)days after the adoption of this Ordinance,the City Clerk shall (1)
publish the summary,and (2)post in the City Clerk’s Office a certified copy of the full text of this Ordinance
along with the names of those City Council members voting for and against this Ordinance or otherwise voting.
This Ordinance shall be effective on January 1, 2022.
Introduced at a regular meeting of the City Council of the City of South San Francisco held
the 27th day of October 2021.
*****
City of South San Francisco Printed on 12/14/2021Page 2 of 2
powered by Legistar™77
-1-
EXHIBIT A - Second Reading & Adoption
AMENDMENTS AND ADDITIONS
TO THE SOUTH SAN FRANCISCO MUNICIPAL CODE
SECTION A. Amending Chapter 8.16, “Solid Waste”, of Title 8 of the South San Francisco
Municipal Code.
Title 8, Chapter 8.16 of the South San Francisco Municipal Code is hereby amended with additions
in double-underline and deletions in strikethrough. Sections, subsections and texts that are not
amended by this Ordinance are not included below, and shall remain in full force and effect.
Chapter 8.16
8.16.010 Establishment of health regulations—Intent.
. . .
“Solid waste” means all putrescible and nonputrescible residential refuse, commercial solid waste,
institutional solid waste, garbage, yard waste and rubbish as defined in Public Resources Code
Section 40191, including, without limitation, for the purposes of this chapter (except where
specifically excluded) construction debris, demolition debris, recyclable materials and salvageable
materials, but excluding hazardous waste and household hazardous waste. means, as defined in
Public Resources Code Section 40191, all putrescible and nonputrescible solid, semisolid, and
liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, demolition
and construction wastes, abandoned vehicles and parts thereof, discarded home and industrial
appliances, dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste,
manure, vegetable or animal solid and semi-solid wastes, and other discarded solid and semisolid
wastes, with the exception that Solid Waste does not include any of the following wastes:
(1) Hazardous waste, as defined in the State Public Resources Code Section 40141.
(2) Radioactive waste regulated pursuant to the State Radiation Control Law (Chapter 8
(commencing with Section 114960) of Part 9 of Division 104 of the State Health and Safety Code).
(3) Medical waste regulated pursuant to the State Medical Waste Management Act (Part 14
(commencing with Section 117600) of Division 104 of the State Health and Safety Code).
Untreated medical waste shall not be disposed of in a Solid Waste landfill, as defined in State
Public Resources Code Section 40195.1. Medical waste that has been treated and deemed to be
Solid Waste shall be regulated pursuant to Division 30 of the State Public Resources Code.
“Source separated” means, as to recyclable materials, materials that have been separated from solid
waste that is not recyclable material and from all other types of recyclable materials by the person
generating such solid waste or recyclable materials at the residential, commercial and industrial or
institutional property where such solid waste or recyclable materials are generated to form one
readily identifiable category of recyclable material as set forth in the definition for “Recyclable
materials” above that are saleable without further sorting; and, as to salvageable materials,
materials that have been separated from solid waste that is not salvageable material by the person
78
-2-
generating such solid waste or salvageable materials at the residential, commercial and industrial
or institutional property where such solid waste or salvageable materials are generated. For
example, cardboard that has been separated by a business from glass, PET plastic and wet garbage
is source separated so long as the separation is accomplished by the generator at the commercial
and industrial property where all of such items are generated and all of such items are generated
by such business.
8.16.080 Solid waste—Collection.
Collections of solid waste shall be made at least once a week; provided, however, that such
collections may be made at other intervals within such areas as may from time to time be
designated in any agreement between the city and the scavenger, or as provided for in Chapter
8.27 of this Code. The contents of all containers shall be transferred by the scavenger into a vehicle
provided by the scavenger and approved by the health officer as being a satisfactory vehicle for
such purpose by having a watertight portion in which the refuse is to be deposited and an adequate
cover to prevent refuse and/or offensive or noxious fumes or odors escaping therefrom. The
scavenger shall remove any solid waste spilled by it on stairs, yards, streets, alleyways or other
private or public places, except dump sites, and clean those places.
8.16.090 Segregation of waste matter.
The producer or owner of solid waste, recyclable materials and salvageable materials may elect to
source separate recyclable materials and salvageable materials for collection by the city’s
authorized recycling agent, a junk collector or for other disposition in accordance with Chapters
6.56 and 8.28, except that self-haulers as defined under Chapter 8.27 of this Code shall comply
with the source separation requirements of that chapter.
. . .
SECTION B. Amending Chapter 8.28, “Recyclable Materials”, of Title 8 of the South San
Francisco Municipal Code.
Title 8, Chapter 8.28 of the South San Francisco Municipal Code is hereby amended with additions
in double-underline and deletions in strikethrough. Sections, subsections, and texts that are not
amended by this Ordinance are not included below, and shall remain in full force and effect.
Chapter 8.28
. . .
8.28.020 Definitions.
“Solid waste” means all putrescible and nonputrescible residential refuse, commercial solid waste,
institutional solid waste, garbage, yard waste and rubbish as defined in Public Resources Code
Section 40191, including, without limitation, for the purposes of this chapter (except where
specifically excluded) construction debris, demolition debris, recyclable materials and salvageable
materials, but excluding hazardous waste and household hazardous waste. means, as defined in
Public Resources Code Section 40191, all putrescible and nonputrescible solid, semisolid, and
79
-3-
liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, demolition
and construction wastes, abandoned vehicles and parts thereof, discarded home and industrial
appliances, dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste,
manure, vegetable or animal solid and semi-solid wastes, and other discarded solid and semisolid
wastes, with the exception that Solid Waste does not include any of the following wastes:
(1) Hazardous waste, as defined in the State Public Resources Code Section 40141.
(2) Radioactive waste regulated pursuant to the State Radiation Control Law (Chapter 8
(commencing with Section 114960) of Part 9 of Division 104 of the State Health and Safety Code).
(3) Medical waste regulated pursuant to the State Medical Waste Management Act (Part 14
(commencing with Section 117600) of Division 104 of the State Health and Safety Code).
Untreated medical waste shall not be disposed of in a Solid Waste landfill, as defined in State
Public Resources Code Section 40195.1. Medical waste that has been treated and deemed to be
Solid Waste shall be regulated pursuant to Division 30 of the State Public Resources Code.
“Source separated” means, as to recyclable materials, materials that have been separated from solid
waste that is not recyclable material and from all other types of recyclable materials by the person
generating such solid waste or recyclable materials at the residential, commercial and industrial or
institutional property where such solid waste or recyclable materials are generated to form one
readily identifiable category of recyclable material as set forth in the definition for “Recyclable
materials” above that are saleable without further sorting; and, as to salvageable materials,
materials that have been separated from solid waste that is not salvageable material by the person
generating such solid waste or salvageable materials at the residential, commercial and industrial
or institutional property where such solid waste or salvageable materials are generated. For
example, cardboard that has been separated by a business from glass, PET plastic and wet garbage
is source separated so long as the separation is accomplished by the generator at the commercial
and industrial property where all of such items are generated and all of such items are generated
by such business.
. . .
SECTION C. Adding Chapter 8.27, “Mandatory Organic Waste Disposal Reduction
Ordinance”, to Title 8 of the South San Francisco Municipal Code.
Title 8, Chapter 8.27 is hereby added to the South San Francisco Municipal Code to read as
follows. Sections and subsections that are not amended by this Ordinance are not included below,
and shall remain in full force and effect.
8.27.010 Purpose and Findings
8.27.020 Title of Chapter
8.27.030 Definitions
8.27.040 Requirements for Single-Family Generators
8.27.050 Requirements for Commercial Businesses
8.27.060 Waivers for Generators
8.27.070 Requirements for Tier One and Tier Two Commercial Edible Food
Generators
8.27.080 Requirements for Food Recovery Organizations and Services
80
-4-
8.27.090 Haulers and Facility Operators
8.27.100 Self-Hauler Requirements
8.27.110 Compliance with CALGreen Recycling Requirements
8.27.120 Procurement Requirements for City Departments, Direct Service Providers,
and Vendors
8.27.130 Inspections and Investigations by City
8.27.140 Enforcement
8.27.010 Purpose and Findings
The City of South San Francisco finds and declares:
(a) State recycling law, Assembly Bill 939 of 1989, the California Integrated Waste
Management Act of 1989 (California Public Resources Code Section 40000, et seq., as
amended, supplemented, superseded, and replaced from time to time), requires cities and
counties to reduce, reuse, and recycle (including composting) Solid Waste generated in
their Jurisdictions to the maximum extent feasible before any incineration or landfill
disposal of waste, to conserve water, energy, and other natural resources, and to protect the
environment.
(b) State recycling law, Assembly Bill 341 of 2011 (approved by the Governor of the State of
California on October 5, 2011, which amended Sections 41730, 41731, 41734, 41735,
41736, 41800, 42926, 44004, and 50001 of, and added Sections 40004, 41734.5, and
41780.01 and Chapter 12.8 (commencing with Section 42649) to Part 3 of Division 30 of,
and added and repealed Section 41780.02 of, the Public Resources Code, as amended,
supplemented, superseded and replaced from time to time), places requirements on
businesses and Multi-Family property owners that generate a specified threshold amount
of Solid Waste to arrange for recycling services and requires jurisdictions to implement a
Mandatory Commercial Recycling program.
(c) State organics recycling law, Assembly Bill 1826 of 2014 (approved by the Governor of
the State of California on September 28, 2014, which added Chapter 12.9 (commencing
with Section 42649.8) to Part 3 of Division 30 of the Public Resources Code, relating to
Solid Waste, as amended, supplemented, superseded, and replaced from time to time),
requires businesses and Multi-Family property owners that generate a specified threshold
amount of Solid Waste, Recycling, and Organic Waste per week to arrange for recycling
services for that waste, requires jurisdictions to implement a recycling program to divert
Organic Waste from businesses subject to the law, and requires jurisdictions to implement
a Mandatory Commercial Organics Recycling program.
(d) SB 1383, the Short-lived Climate Pollutant Reduction Act of 2016, requires CalRecycle to
develop regulations to reduce organics in landfills as a source of methane. The regulations
place requirements on multiple entities including jurisdictions, residential households,
Commercial Businesses and business owners, Commercial Edible Food Generators,
haulers, Self-Haulers, Food Recovery Organizations, and Food Recovery Services to
support achievement of Statewide Organic Waste disposal reduction targets.
(e) SB 1383, the Short-lived Climate Pollutant Reduction Act of 2016, requires jurisdictions
to adopt and enforce a Chapter or enforceable mechanism to implement relevant provisions
81
-5-
of SB 1383 Regulations. This Chapter will also help reduce food insecurity by requiring
Commercial Edible Food Generators to arrange to have the maximum amount of their
Edible Food, that would otherwise be disposed, recovered for human consumption.
(f) Requirements in this Chapter are consistent with other adopted goals and policies of the
City including: the City’s General Plan, purchasing procedures, Municipal Code provisions
including but not limited to those relating to Water Efficient Landscape (Section
20.300.007) and Construction and Demolition (Chapter 15.60), and greenhouse gas
reduction and local climate action goals.
8.27.020 Title of Chapter
This chapter shall be entitled “Mandatory Organic Waste Disposal Reduction”.
8.27.030 Definitions
The following terms and definitions shall apply for the purposes of this Chapter. Where applicable,
the terms and definitions described below shall have the same meaning as set forth under the
corresponding provisions of California Code of Regulations, Title 14, §18982.2 (14 CCR
§18982.2) and as respectively restated here. If any definition under 14 CCR §18982.2 contradicts
a definition set forth in this Chapter, the definition under 14 CCR §18982.2 shall govern. If a
definition under 14 CCR §18982.2 is subsequently modified or replaced after the effective date of
the enabling ordinance of this Chapter, the definition under 14 CCR §18982.2 shall govern.
(a) “Blue Container” shall be used for the purpose of storage and collection of Source
Separated Recyclable Materials or Source Separated Blue Container Organic Waste, and
means a container where either:
(i) The lid of the container is blue in color; or
(ii) The body of the container is blue in color and the lid is either blue, gray, or black in
color. Hardware such as hinges and wheels on a blue container may be any color.
(b) “CalRecycle” means California's Department of Resources Recycling and Recovery,
which is the Department designated with responsibility for developing, implementing, and
enforcing SB 1383 Regulations on jurisdictions (and others).
(c) “California Code of Regulations” or “CCR” means the State of California Code of
Regulations. CCR references in this Chapter are preceded with a number that refers to the
relevant Title of the CCR (e.g., “14 CCR” refers to Title 14 of CCR).
(d) “City” means the City of South San Francisco.
(e) “City Enforcement Official” means the City Manager or his or her designee, the City
Attorney, or the individual or entity duly authorized by the City, as applicable, who is/are
partially or wholly responsible for enforcing the requirements of this Chapter.
(f) “Code” means, unless otherwise specified, the South San Francisco Municipal Code.
(g) “Commercial Business” or “Commercial” means a firm, partnership, proprietorship, joint-
stock company, corporation, or association, whether for-profit or nonprofit, strip mall,
industrial facility, or a multifamily residential dwelling. A Multi-Family Residential
82
-6-
Dwelling that consists of fewer than five (5) units is not a Commercial Business for
purposes of this Chapter.
(h) “Commercial Edible Food Generator” includes a Tier One or a Tier Two Commercial
Edible Food Generator as defined in subsections 3(uuu) and 3(vvv) of this Section. For the
purposes of this definition, Food Recovery Organizations and Food Recovery Services are
not Commercial Edible Food Generators.
(i) “Compliance Review” means a review of records by the City or its Designee to determine
compliance with this Chapter.
(j) “Community Composting” means any activity that composts green material, agricultural
material, food material, and vegetative food material, alone or in combination, and the total
amount of feedstock and Compost on-site at any one time does not exceed 100 cubic yards
and 750 square feet.
(k) “Compost” means the product resulting from the controlled biological decomposition of
organic Solid Wastes that are Source Separated from the municipal Solid Waste stream, or
which are separated at a centralized facility.
(l) “Compostable Plastics” or “Compostable Plastic” means plastic materials that meet the
ASTM D6400 standard for compostability.
(m) “Container” means either a Blue, Gray, or Green Container described in this Chapter.
(n) “Container Contamination” or “Contaminated Container” means a container, regardless of
color, that contains Prohibited Container Contaminants.
(o) “C&D” means construction and demolition debris.
(p) “Designated Source Separated Organic Waste Facility”, as defined in 14 CCR Section
18982(14.5), means a Solid Waste facility that accepts a Source Separated Organic Waste
collection stream as defined in 14 CCR Section 17402(a)(26.6) and complies with one of
the following:
(1) The facility is a “transfer/processor,” as defined in 14 CCR Section 18815.2(a)(62),
that is in compliance with the reporting requirements of 14 CCR Section
18815.5(d), and meets or exceeds an annual average Source Separated organic
content Recovery rate of 50 percent between January 1, 2022 and December 31,
2024 and 75 percent on and after January 1, 2025 as calculated pursuant to 14 CCR
Section 18815.5(f) for Organic Waste received from the Source Separated Organic
Waste collection stream.
(A) If a transfer/processor has an annual average Source Separated organic
content Recovery rate lower than the rate required in Paragraph 1 of this
definition for two (2) consecutive reporting periods, or three (3) reporting
periods within three (3) years, the facility shall not qualify as a “Designated
Source Separated Organic Waste Facility”.
(2) The facility is a “composting operation” or “composting facility” as defined in 14
CCR Section 18815.2(a)(13), that pursuant to the reports submitted under 14 CCR
Section 18815.7 demonstrates that the percent of the material removed for landfill
disposal that is Organic Waste is less than the percent specified in 14 CCR Section
83
-7-
17409.5.8(c)(2) or 17409.5.8(c)(3), whichever is applicable, and, if applicable,
complies with the digestate handling requirements specified in 14 CCR Section
17896.5.
(A) If the percent of the material removed for landfill disposal that is Organic
Waste is more than the percent specified in 14 CCR Section 17409.5.8(c)(2)
or 17409.5.8(c)(3), for two (2) consecutive reporting periods, or three (3)
reporting periods within three (3) years, the facility shall not qualify as a
“Designated Source Separated Organic Waste Facility.” For the purposes
of this ordinance, the reporting periods shall be consistent with those
defined in 14 CCR Section 18815.2(a)(49).
(q) “Designee” means the person or entity with whom the City has contracted or otherwise
arranges to carry out any of the City’s responsibilities of this Chapter For the purpose of
Edible Food Recovery administration pursuant to this Chapter only, Designee means the
County of San Mateo and its Office of Sustainability.
(r) “Donation Dumping” means the actions of a Tier One or Tier Two Commercial Edible
Food Generator in supplying food for recovery that the Food Recovery Organization or
Food Recovery Service is unable to accept, supplying large amounts of food unfit for
human consumption, and /or the self-hauling and dropping off of Edible Food to any Food
Recovery Organization or Food Recovery Service without a contract to do so, or in
violation of the terms of an existing contract regarding the type of Edible Food accepted,
the hours of acceptance of self-haul, or the preparation and packaging requirements.
(s) “Edible Food” means food intended for and fit for human consumption and collected or
received from a Tier One or Tier Two Commercial Edible Food Generator. For the
purposes of this Chapter, “Edible Food” is not Solid Waste if it is recovered and not
discarded. Nothing in this Chapter requires or authorizes the Edible Food Recovery that
does not meet the food safety requirements of the California Retail Food Code.
(t) “Edible Food Recovery” means actions to collect, receive, and/or re-distribute Edible Food
for human consumption from Tier One and Tier Two Commercial Edible Food Generators
that otherwise would be disposed.
(u) “Enforcement Action" means an action of the City taken to address non-compliance with
this Chapter including, but not limited to, issuing administrative citations, fines, penalties,
or using other remedies.
(v) “Excluded Waste” means hazardous substance, hazardous waste, infectious waste,
designated waste, volatile, corrosive, medical waste, infectious, regulated radioactive
waste, and toxic substances or material that facility operator(s), which receive materials
from the City and its generators, reasonably believe(s) would, as a result of or upon
acceptance, transfer, processing, or disposal, be a violation of local, State, or Federal law,
regulation, or ordinance, including: land use restrictions or conditions, waste that cannot
be disposed of in Class III landfills or accepted at the facility by permit conditions, waste
that in the City or its Designee’s reasonable opinion would present a significant risk to
human health or the environment, cause a nuisance or otherwise create or expose the City,
or its Designee, to potential liability; but not including de minimis volumes or
concentrations of waste of a type and amount normally found in Single-Family or Multi-
84
-8-
Family Solid Waste after implementation of programs for the safe collection, processing,
recycling, treatment, and disposal of batteries and paint in compliance with Sections 41500
and 41802 of the California Public Resources Code.
(w) “Exclusive Franchise” means the franchise agreement between the city and the Exclusive
Franchised Hauler.
(x) “Exclusive Franchised Hauler” means the person or entity with whom the City has
contracted, as set forth under Chapter 8.16 of this Code, to collect, receive, carry and/or
transport solid waste in accordance with the provisions of Chapter 8.16.
(y) “Food Distributor” means a company that distributes food to entities including, but not
limited to, Supermarkets and Grocery Stores.
(z) “Food Facility” means an operation that stores, prepares, packages, serves, vends, or
otherwise provides food for human consumption at the retail level, as set forth in Section
113789 of the Health and Safety Code.
(aa) “Food Recovery Organization” means an entity that engages in the collection or receipt of
Edible Food from Tier One or Tier Two Commercial Edible Food Generators and
distributes that Edible Food either directly or through other entities, including, but not
limited to:
(1) A food bank as defined in Section 113783 of the Health and Safety Code;
(2) A nonprofit charitable organization as defined in Section 113841 of the Health and
Safety code; and,
(3) A nonprofit charitable temporary food facility as defined in Section 113842 of the
Health and Safety Code.
A Food Recovery Organization is not a Commercial Edible Food Generator for the
purposes of this Chapter.
(bb) “Food Recovery Service” means a person or entity that collects and transports Edible Food
from a Tier One or Commercial Edible Food Generator to a Food Recovery Organization
or other entities for Food Recovery. A Food Recovery Service is not a Commercial Edible
Food Generator for the purposes of this Chapter.
(cc) “Food Scraps” means all food, such as, but not limited to, fruits, vegetables, meat, poultry,
seafood, shellfish, bones, rice, beans, pasta, bread, cheese, and eggshells. Food Scraps
excludes fats, oils, and grease when such materials are Source Separated from other Food
Scraps.
(dd) “Food Service Provider” means an entity primarily engaged in providing food services to
institutional, governmental, commercial, or industrial locations of others based on
contractual arrangements with these types of organizations.
(ee) “Food-Soiled Paper” is compostable paper material that has come in contact with food or
liquid, such as, but not limited to, compostable paper plates, paper coffee cups, napkins,
pizza boxes, and milk cartons, but excluding paper containers that are lined with, or
otherwise include, non-compostable materials.
(ff) “Food Waste” means Food Scraps, Food-Soiled Paper, and Compostable Plastics.
85
-9-
(gg) “Gray Container” shall be used for the purpose of storage and collection of Gray Container
Waste and means a container where either:
(i) The lid of the container is gray or black in color; or
(ii) The body of the container is entirely gray or black in color and the lid is gray or black
in color. Hardware such as hinges and wheels on a gray container may be any color.
(hh) “Gray Container Waste” means Solid Waste that is collected in a Gray Container that is
part of a three-container Organic Waste collection service that prohibits the placement of
Organic Waste in the Gray Container as specified in 14 CCR Sections 18984.1(a) and (b),
or as otherwise defined in 14 CCR Section 17402(a)(6.5).
(ii) “Green Container” shall be used for the purpose of storage and collection of Source
Separated Green Container Organic Waste and means a container where either:
(i) The lid of the container is green in color.
(ii) The body of the container is green in color and the lid is green, gray, or black in color.
Hardware such as hinges and wheels on a green container may be any color.
(jj) “Greenhouse gas (GHG)” means carbon dioxide (CO2), methane (CH4), nitrous oxide
(N2O), sulfur hexafluoride (SF6), hydrofluorocarbons (HFC), perfluorocarbons (PFC), and
other fluorinated greenhouse gases defined in 14 CCR § 18982.
(kk) “Greenhouse gas emission reduction” or “greenhouse gas reduction” means actions
designed to achieve a calculated decrease in greenhouse gas emissions over time.
(ll) “Grocery Store” means a store primarily engaged in the retail sale of canned food; dry
goods; fresh fruits and vegetables; fresh meats, fish, and poultry; and any area that is not
separately owned within the store where the food is prepared and served, including a
bakery, deli, and meat and seafood departments.
(mm) “Hauler Route” means the designated itinerary or sequence of stops for each segment of
the City’s collection service area.
(nn) “High Diversion Organic Waste Processing Facility” means a facility that is in compliance
with the reporting requirements of 14 CCR Section 18815.5(d) and meets or exceeds an
annual average Mixed Waste organic content Recovery rate of 50 percent between January
1, 2022 and December 31, 2024, and 75 percent after January 1, 2025, as calculated
pursuant to 14 CCR Section 18815.5(e) for Organic Waste received from the “Mixed waste
organic collection stream” as defined in 14 CCR Section 17402(a)(11.5).
(oo) “Inspection” means a site visit where the City or its Designee reviews records, containers,
and an entity’s collection, handling, recycling, or landfill disposal of Organic Waste or
Edible Food handling to determine if the entity is complying with requirements set forth in
this Chapter, or as otherwise defined in 14 CCR Section 18982(a)(35). For the purposes of
Edible Food Recovery in this Chapter, “Inspection” includes actions to review contracts
and other records related to the recovery of Edible Food, and may occur off-site via email
and other forms of electronic communication, as well as the on-site review of an entity’s
records and collection, handling, and other procedures for the recovery of Edible Food to
determine if the entity is complying with the requirements of this Chapter.
86
-10-
(pp) “Large Event” means an event, including, but not limited to, a sporting event or a flea
market, that charges an admission price, or is operated by a local agency, and serves an
average of more than 2,000 individuals per day of operation of the event, at a location that
includes, but is not limited to, a public, nonprofit, or privately owned park, parking lot, golf
course, street system, or other open space when being used for an event.
(qq) “Large Venue” means a permanent venue facility that annually seats or serves an average
of more than 2,000 individuals within the grounds of the facility per day of operation of
the venue facility. For purposes of this Chapter, a venue facility includes, but is not limited
to, a public, nonprofit, or privately owned or operated stadium, amphitheater, arena, hall,
amusement park, conference or civic center, zoo, aquarium, airport, racetrack, horse track,
performing arts center, fairground, museum, theater, or other public attraction facility. For
purposes of this Chapter, a site under common ownership or control that includes more
than one Large Venue that is contiguous with other Large Venues in the site, is a single
Large Venue.
(rr) “Local Education Agency” means a school district, charter school, or county office of
education that is not subject to the control of city or county regulations related to Solid
Waste.
(ss) “Multi-Family Residential Dwelling” or “Multi-Family” means, for the purposes of this
Chapter, of, from, or pertaining to residential premises with five (5) or more dwelling units.
Multi-Family premises do not include hotels, motels, or other transient occupancy
facilities, which are considered Commercial Businesses.
(tt) “Non-Compostable Paper” includes, but is not limited to, paper that is coated in a plastic
material that will not breakdown in the composting process.
(uu) “Non-Organic Recyclables” means non-putrescible and non-hazardous recyclable wastes,
including but not limited to bottles, cans, metals, plastics and glass, or as otherwise defined
in 14 CCR Section 18982(a)(43).
(vv) “Notice of Violation (NOV)” means a notice that a violation has occurred that includes a
compliance date to avoid an action to seek penalties.
(ww) “Organic Waste” means Solid Wastes containing material originated from living organisms
and their metabolic waste products, including but not limited to food, green material,
landscape and pruning waste, organic textiles and carpets, lumber, wood, Paper Products,
Printing and Writing Paper, manure, biosolids, digestate, and sludges or as otherwise
defined in 14 CCR Section 18982(a)(46). Biosolids and digestate are as defined by 14 CCR
Section 18982(a).
(xx) “Organic Waste Generator” means a person or entity that is responsible for the initial
creation of Organic Waste.
(yy) “Paper Products” include, but are not limited to, paper janitorial supplies, cartons,
wrapping, packaging, file folders, hanging files, corrugated boxes, tissue, and toweling.
(zz) “Printing and Writing Papers” include, but are not limited to, copy, xerographic,
watermark, cotton fiber, offset, forms, computer printout paper, white wove envelopes,
manila envelopes, book paper, note pads, writing tablets, newsprint, and other uncoated
87
-11-
writing papers, posters, index cards, calendars, brochures, reports, magazines, and
publications.
(aaa) “Prohibited Container Contaminants” means the following: (i) discarded materials placed
in the Blue Container that are not identified as acceptable Source Separated Recyclable
Materials for the City or Designee’s Blue Container; (ii) discarded materials placed in the
Green Container that are not identified as acceptable Source Separated Green Container
Organic Waste for the City or Designee’s Green Container; (iii) discarded materials placed
in the Gray Container that are acceptable Source Separated Recyclable Materials and/or
Source Separated Green Container Organic Wastes to be placed in the City or Designee’s
Green Container and/or Blue Container; and, (iv) Excluded Waste placed in any container.
(bbb) “Recovered Organic Waste Products” means products made from California, landfill-
diverted recovered Organic Waste processed in a permitted or otherwise authorized
facility, or as otherwise defined in 14 CCR Section 18982(a)(60).
(ccc) “Recovery” means any activity or process described in 14 CCR Section 18983.1(b), or as
otherwise defined in 14 CCR Section 18982(a)(49).
(ddd) “Recycled-Content Paper” means Paper Products and Printing and Writing Paper that
consists of at least 30 percent, by fiber weight, postconsumer fiber, or as otherwise defined
in 14 CCR Section 18982(a)(61).
(eee) “Regional Agency” means regional agency as defined in Public Resources Code Section
40181.
(fff) “Regional or County Agency Enforcement Official” means a regional or county agency
enforcement official, designated by the City with responsibility for enforcing this Chapter.
(ggg) “Renewable Gas” means gas derived from Organic Waste that has been diverted from a
California landfill and processed at an in-vessel digestion facility that is permitted or
otherwise authorized by 14 CCR to recycle Organic Waste, or as otherwise defined in 14
CCR Section 18982(a)(62).
(hhh) “Restaurant” means an establishment primarily engaged in the retail sale of food and drinks
for on-premises or immediate consumption, or as otherwise defined in 14 CCR Section
18982(a)(64).
(iii) “Route Review” means a visual Inspection of containers along a Hauler Route for the
purpose of determining Container Contamination, and may include mechanical Inspection
methods such as the use of cameras, or as otherwise defined in 14 CCR Section
18982(a)(65).
(jjj) “SB 1383” means Senate Bill 1383 of 2016 approved by the Governor on September 19,
2016, which added Sections 39730.5, 39730.6, 39730.7, and 39730.8 to the Health and
Safety Code, and added Chapter 13.1 (commencing with Section 42652) to Part 3 of
Division 30 of the Public Resources Code, establishing methane emissions reduction
targets in a Statewide effort to reduce emissions of short-lived climate pollutants as
amended, supplemented, superseded, and replaced from time to time.
(kkk) “SB 1383 Regulations” or “SB 1383 Regulatory” means or refers to, for the purposes of
this Chapter, the Short-Lived Climate Pollutants: Organic Waste Reduction regulations
88
-12-
developed by CalRecycle and adopted in 2020 that created 14 CCR, Division 7, Chapter
12 and amended portions of regulations of 14 CCR and 27 CCR.
(lll) “Self-Hauler” means a person, who hauls Solid Waste, Organic Waste or recyclable
material he or she has generated to another person, to the extent permitted by Chapter 8.16
of this Code and the Exclusive Franchise. Self-hauler also includes a person who back-
hauls waste, or as otherwise defined in 14 CCR Section 18982(a)(66). Back-haul means
generating and transporting Organic Waste to a destination owned and operated by the
generator using the generator’s own employees and equipment, or as otherwise defined in
14 CCR Section 18982(a)(66)(A). For the purposes of Edible Food Recovery, “Self-
Hauler” means a Commercial Edible Food Generator which holds a contract with and hauls
Edible Food to a Food Recovery Organization or other site for redistribution according to
the requirements of this Chapter.
(mmm)“Single-Family” means, for the purpose of this Chapter, of, from, or pertaining to any
residential premises with fewer than five (5) units.
(nnn) “Solid Waste” has the same meaning as defined in State Public Resources Code Section
40191, which defines Solid Waste as all putrescible and nonputrescible solid, semisolid,
and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes,
demolition and construction wastes, abandoned vehicles and parts thereof, discarded home
and industrial appliances, dewatered, treated, or chemically fixed sewage sludge which is
not hazardous waste, manure, vegetable or animal solid and semi-solid wastes, and other
discarded solid and semisolid wastes, with the exception that Solid Waste does not include
any of the following wastes:
(1) Hazardous waste, as defined in the State Public Resources Code Section 40141.
(2) Radioactive waste regulated pursuant to the State Radiation Control Law (Chapter
8 (commencing with Section 114960) of Part 9 of Division 104 of the State Health
and Safety Code).
(3) Medical waste regulated pursuant to the State Medical Waste Management Act
(Part 14 (commencing with Section 117600) of Division 104 of the State Health
and Safety Code). Untreated medical waste shall not be disposed of in a Solid Waste
landfill, as defined in State Public Resources Code Section 40195.1. Medical waste
that has been treated and deemed to be Solid Waste shall be regulated pursuant to
Division 30 of the State Public Resources Code.
(ooo) “Source Separated” means materials, including commingled recyclable materials, that have
been separated or kept separate from the Solid Waste stream, at the point of generation, for
the purpose of additional sorting or processing those materials for recycling or reuse in
order to return them to the economic mainstream in the form of raw material for new,
reused, or reconstituted products, which meet the quality standards necessary to be used in
the marketplace, or as otherwise defined in 14 CCR Section 17402.5(b)(4). For the
purposes of this Chapter, Source Separated shall include separation of materials by the
generator, property owner, property owner’s employee, property manager, or property
manager’s employee into different containers for the purpose of collection such that Source
Separated materials are separated from Gray Container Waste/Mixed Waste or other Solid
Waste for the purposes of collection and processing.
89
-13-
(ppp) “Source Separated Blue Container Organic Waste” means Source Separated Organic
Wastes that can be placed in a Blue Container that is limited to the collection of those
Organic Wastes and Non-Organic Recyclables.
(qqq) “Source Separated Green Container Organic Waste” means Source Separated Organic
Waste that can be placed in a Green Container that is specifically intended for the separate
collection of Organic Waste by the generator, excluding Source Separated Blue Container
Organic Waste, carpets, Non-Compostable Paper, and textiles.
(rrr) “Source Separated Recyclable Materials” means Source Separated Non-Organic
Recyclables and Source Separated Blue Container Organic Waste.
(sss) “State” means the State of California.
(ttt) “Supermarket” means a full-line, self-service retail store with gross annual sales of two
million dollars ($2,000,000), or more, and which sells a line of dry grocery, canned goods,
or nonfood items and some perishable items.
(uuu) “Tier One Commercial Edible Food Generator” means a Commercial Edible Food
Generator that is one of the following:
(1) Supermarket.
(2) Grocery Store with a total facility size equal to or greater than 10,000 square feet.
(3) Food Service Provider.
(4) Food Distributor.
(5) Wholesale Food Vendor.
(vvv) “Tier Two Commercial Edible Food Generator” means a Commercial Edible Food
Generator that is one of the following:
(1) Restaurant with 250 or more seats, or a total facility size equal to or greater than
5,000 square feet.
(2) Hotel with an on-site Food Facility and 200 or more rooms.
(3) Health facility with an on-site Food Facility and 100 or more beds.
(4) Large Venue.
(5) Large Event.
(6) A State agency with a cafeteria with 250 or more seats or total cafeteria facility size
equal to or greater than 5,000 square feet.
(7) A Local Education Agency facility with an on-site Food Facility.
(www) “Uncontainerized Green Waste and Yard Waste Collection Service” or “Uncontainerized
Service” means a collection service that collects green waste and yard waste that is placed
in a pile or bagged for collection on the street in front of a generator’s house or place of
business for collection and transport to a facility that recovers Source Separated Organic
Waste.
(xxx) “Wholesale Food Vendor” means a business or establishment engaged in the merchant
wholesale distribution of food, where food (including fruits and vegetables) is received,
90
-14-
shipped, stored, prepared for distribution to a retailer, warehouse, distributor, or other
destination.
8.27.040 Requirements for Single-Family Generators
Single-Family Organic Waste Generators shall:
(a) Be automatically enrolled in the City’s three-container Organic Waste collection services
with a minimum Source Separated Recyclable Materials service level of 64 gallons per
week, and with a minimum Source Separated Green Container Organic Waste service level
of 32 gallons per week. The City or its Designee shall have the authority to change these
minimum required levels of service over time. The City or its Designee shall have the right
to review the number, size, and location of a generator’s containers to evaluate adequacy
of capacity provided for each type of collection service for proper separation of materials
and containment of materials; and, generator shall adjust its service level for its collection
services as requested by the City or its Designee.
(b) Participate in the City’s three-container system for Source Separated Recyclable Materials,
Source Separated Green Container organic materials, and Gray Container Waste collection
services. Generator participation in the collection programs requires that generators place
Source Separated Green Container Organic Waste, including Food Waste, in the Green
Container; Source Separated Recyclable Materials in the Blue Container; and Gray
Container Waste in the Gray Container. Generators shall not place materials designated for
the Gray Container into the Green Container or Blue Container.
(c) Nothing in this Section prohibits a generator from preventing or reducing waste generation,
managing Organic Waste on site, and/or using a Community Composting site pursuant to
14 CCR Section 18984.9(c).
8.27.050 Requirements for Commercial Businesses
Commercial Businesses shall:
(a) Be automatically enrolled in the City’s three-container Organic Waste collection services
with a Source Separated Recyclable Materials service level of 96-gallons, and with a
Source Separated Green Container Organic Waste service level of 32-gallons, as approved
by the City or its Designee. The City or its Designee shall have the authority to change the
minimum required service levels over time. The Commercial Business’ Source Separated
Recyclable Materials service level and Source Separated Green Container Organic Waste
service level must be sufficient for the amount of Source Separated Recyclable Materials
and Source Separated Green Container Organic Waste generated by the Commercial
Business. The City or its Designee shall have the right to review the number, size, and
location of a generator’s containers and frequency of collection to evaluate adequacy of
capacity provided for each type of collection service for proper separation of materials and
containment of materials; and, Commercial Business shall adjust its service level for its
collection services as requested by the City or its Designee.
(b) Participate in and comply with the City’s three-container (Blue Container, Green
Container, and Gray Container) collection service by placing designated materials in
91
-15-
designated containers as described below. Generator shall place Source Separated Green
Container Organic Waste, including Food Waste, in the Green Container; Source Separated
Recyclable Materials in the Blue Container; and Gray Container Waste in the Gray
Container. Generators shall not place materials designated for the Gray Container into the
Green Container or Blue Container.
(c) Supply and allow access to adequate number, size, and location of collection containers
with sufficient labels or colors (conforming with Sections (d)(1) and (d)(2) below), for
employees, contractors, tenants and customers, consistent with the City’s Blue Container,
Green Container, and Gray Container collection service.
(d) Excluding Multi-Family Residential Dwellings, provide containers for the collection of
Source Separated Green Container Organic Waste, and Source Separated Recyclable
Materials in all indoor and outdoor areas where disposal containers are provided for
customers, for materials generated by that business. Such containers do not need to be
provided in restrooms. If a Commercial Business does not generate any of the materials
that would be collected in one type of container, then the business does not have to provide
that particular type of container in all areas where disposal containers are provided for
customers. Pursuant to 14 CCR Section 18984.9(b), the containers provided by the business
shall have either:
(1) A body or lid that conforms with the container colors provided through the
collection service provided by the City, with either lids conforming to the color
requirements or bodies conforming to the color requirements or both lids and
bodies conforming to the color requirements. A Commercial Business is not
required to replace functional containers, including containers purchased prior to
January 1, 2022, that do not comply with the requirements of the subsection prior
to the end of the useful life of those containers, or prior to January 1, 2036,
whichever comes first.
(2) Container labels that include language or graphic images or both indicating the
primary material accepted and the primary materials prohibited in that container or
containers with imprinted text or graphic images that indicate the primary materials
accepted and primary materials prohibited in the container. Pursuant 14 CCR
Section 18984.8, the container labels are required on new containers commencing
January 1, 2022.
(e) Excluding Multi-Family Residential Dwellings, prohibit employees from placing materials
in a container not designated for those materials in accordance with the City’s Organic
Waste, Non-Organic Recyclables, and non-Organic Waste collection service to the extent
practical through education, training, Inspection, and/or other measures.
(f) Excluding Multi-Family Residential Dwellings, weekly inspect Blue Container, Green
Container, and Gray Containers for contamination and inform employees if containers are
contaminated and of the requirements to keep contaminants out of those containers
pursuant to 14 CCR Section 18984.9(b)(3).
(g) Annually provide information to employees, contractors, tenants, and customers about
Organic Waste Recovery requirements and about proper sorting of Source Separated Green
Container Organic Waste and Source Separated Recyclable Materials.
92
-16-
(h) Provide education information before or within fourteen (14) days of occupation of the
premises to new tenants that describes requirements to keep Source Separated Green
Container Organic Waste and Source Separated Recyclable Materials separate from Gray
Container Waste (when applicable) and the location of containers and the rules governing
their use at each property.
(i) Provide or arrange access for the City or its Designee, or their respective agents. to their
properties during all Inspections conducted in accordance with Section 8.27.130 of this
Chapter to confirm compliance with the requirements of this Chapter.
(j) Nothing in this Section prohibits a generator from preventing or reducing waste generation,
managing Organic Waste on site, or using a Community Composting site pursuant to 14
CCR Section 18984.9(c).
(k) Commercial Businesses that are Tier One or Tier Two Commercial Edible Food Generators
shall comply with Food Recovery requirements under Section 8.27.070.
8.27.060 Waivers for Generators
(a) De Minimis Waivers. The City may grant a de minimis waiver to a Commercial Business
for complying with the Organic Waste requirements of this Chapter, if the Commercial
Business provides documentation that the business generates below a certain amount of
Organic Waste material as described in subsection (a)(2) below. The number of
requirements that may be waived pursuant to a waiver granted by the City shall be
determined by the City based on the particular operational circumstances of each
Commercial Business as demonstrated by the submittals described below. Commercial
Businesses requesting a de minimis waiver shall:
(1) Submit an application specifying the services that they are requesting a waiver from
and provide documentation as noted in subsection (a)(2) below.
(2) Provide documentation that either:
(A) The Commercial Business’ total Solid Waste collection service is two cubic
yards or more per week and Organic Waste subject to collection in a Blue
Container or Green Container comprises less than 20 gallons per week per
applicable container of the business’ total waste; or,
(B) The Commercial Business’ total Solid Waste collection service is less than
two cubic yards per week and Organic Waste subject to collection in a Blue
Container or Green Container comprises less than 10 gallons per week per
applicable container of the business’ total waste.
(3) Notify the City if circumstances change such that Commercial Business’s Organic
Waste exceeds threshold required for waiver, in which case waiver will be
rescinded.
(4) Provide written verification of eligibility for de minimis waiver every five years, if
the City has approved de minimis waiver.
(b) Physical Space Waivers. The City may grant a physical space waiver to a Commercial
Business for complying with the recyclable materials and/or Organic Waste collection
93
-17-
service requirements of this Chapter, if the City receives evidence from its own staff, its
Designee, the Commercial Business requesting a waiver, a licensed architect, or a licensed
engineer demonstrating that the premises lacks adequate space for the collection containers
required for compliance with the Organic Waste collection requirements of Section
8.27.050. The number of requirements that may be waived pursuant to a waiver granted by
the City shall be determined by the City based on the particular operational circumstances
of each Commercial Business as demonstrated by the foregoing evidence or the submittals
described below.
A Commercial Business may request a physical space waiver through the following
process:
(1) Submit an application form specifying the type(s) of collection services for which
they are requesting a compliance waiver.
(2) Provide documentation that the premises lacks adequate space for Blue Containers
and/or Green Containers including documentation from its hauler, licensed
architect, or licensed engineer.
(3) Provide written verification to City that it is still eligible for physical space waiver
every five years, if City has approved application for a physical space waiver.
(c) Collection Frequency Waiver. The City, at its discretion and in accordance with 14 CCR
Section 18984.11(a)(3), may allow the owner or tenant of any residence, premises, business
establishment or industry that subscribes to the City’s three-container Organic Waste
collection service to arrange for the collection of their Blue Container, Gray Container, or
both once every fourteen days, rather than once per week. Notwithstanding the grant of an
exception under this subsection, however, containers containing putrescible materials must
be collected once every seven days.
(d) Review and Approval of Waivers. The City Manager or his or her designee shall have the
authority to review and approve waivers described in the foregoing sections.
8.27.070 Requirements for Tier One and Tier Two Commercial Edible Food Generators
(a) Tier One Commercial Edible Food Generators must comply with the requirements of this
Section commencing January 1, 2022, and Tier Two Commercial Edible Food Generators
must comply commencing January 1, 2024, pursuant to 14 CCR Section 18991.3.
(b) Large Venue or Large Event operators not providing food services, but allowing for food
to be provided by others, shall require Food Facilities operating at the Large Venue or
Large Event to comply with the requirements of this Section, commencing January 1, 2024.
(c) Tier One and Tier Two Commercial Edible Food Generators shall comply with the
following requirements:
(1) Arrange to recover the maximum amount of Edible Food that would otherwise be
disposed.
(2) Use the CalRecycle Model Food Recovery Agreement or the contractual elements
contained in Section 8.27.080 of this Chapter to contract with, or otherwise enter
94
-18-
into a written agreement with Food Recovery Organizations or Food Recovery
Services for:
(A) the collection of Edible Food for Food Recovery; or,
(B) the acceptance of the Edible Food that the Commercial Edible Food Generator
self-hauls to the Food Recovery Organization for Food Recovery.
(3) Contract with Food Recovery Organizations and Food Recovery Services able to
demonstrate a positive reduction in greenhouse gas emissions from their Edible
Food Recovery activity.
(4) Shall not intentionally spoil Edible Food that is capable of being recovered by a
Food Recovery Organization or a Food Recovery Service.
(5) Allow the City or its Designee access to the premises and to inspect procedures and
review records and provide such records electronically if requested by the City or
its Designee.
(6) Keep records that include the following information:
(A) A list of each Food Recovery Organization or a Food Recovery Service that
collects or receives Edible Food from the Tier One or Tier Two Commercial
Edible Food Generator pursuant to a contract or written agreement as
required by this Chapter.
(B) A copy of all contracts or written agreements established under the
provisions of this Chapter.
(C) A record of the following information for each of those Food Recovery
Services or Food Recovery Organizations:
(i) The name, address and contact information of the Food Recovery
Service or Food Recovery Organization.
(ii) The types of food that will be collected by or self-hauled to the Food
Recovery Service or Food Recovery Organization.
(iii) The established schedule or frequency that food will be collected or
self-hauled.
(iv) The quantity of food, measured in pounds recovered per month,
collected or self-hauled to a Food Recovery Service or Food
Recovery Organization for Food Recovery.
(7) No later than June 30th of each year commencing no later than July 1, 2022 for Tier
One Commercial Edible Food Generators and July 1, 2024 for Tier Two
Commercial Edible Food Generators, provide an annual Food Recovery report to
the City that includes the following information: a list of all contracts with Food
Recovery Organizations and Food Recovery Services, the amount and type of
Edible Food donated to Food Recovery Organizations and Food Recovery Services,
the schedule of Edible Food pickup by Food Recovery Organizations and Food
Recovery Services, a list of all types of Edible Food categories they generate, such
as “baked goods,” that are not accepted by the Food Recovery Organizations and
95
-19-
Food Recovery Services with whom they contract, the contact information for the
manager and all staff responsible for Edible Food Recovery, and certification that
all staff responsible for Edible Food Recovery have obtained a food handler card
through an American National Standards Institute (ANSI) accredited training
provider that meets ASTM International E2659-09 Standard Practice for Certificate
Programs, such as ServSafe. With the exception of the food safety and handling
training certification, Tier One and Teir Two Commercial Edible Food Generators
may coordinate with their Edible Food Recovery contractors to supply this
information.
(8) Require all Edible Food Recovery staff to comply with applicable donation
guidelines or other similar regulations established by and that are most currently in
effect for each Food Recovery Organization or Food Recovery Service with which
the Generator contracts, and to attend trainings conducted by regarding best
practices and requirements for the timely identification, selection, preparation, and
storage of Edible Food to ensure the maximum amount of Edible Food is recovered
and to avoid supplying food for collection that is moldy, has been improperly
stored, or is otherwise unfit for human consumption.
(9) For Tier One and Tier Two Commercial Edible Food Generators who self-haul
Edible Food, require all staff transporting Edible Food for recovery to obtain a food
handler card through an American National Standards Institute (ANSI) accredited
training provider that meets ASTM International E2659-09 Standard Practice for
Certificate Programs, such as ServSafe and follow the best practices and standards
for proper temperature control, methods, and procedures for the safe handling and
transport of food.
(d) Nothing in this Chapter shall be construed to limit or conflict with the protections provided
by the California Good Samaritan Food Donation Act of 2017, the Federal Good Samaritan
Act, or share table and school food donation guidance pursuant to Senate Bill 557 of 2017
(approved by the Governor of the State of California on September 25, 2017, which added
Article 13 [commencing with Section 49580] to Chapter 9 of Part 27 of Division 4 of Title
2 of the Education Code, and to amend Section 114079 of the Health and Safety Code,
relating to food safety, as amended, supplemented, superseded and replaced from time to
time).
8.27.080 Requirements for Food Recovery Organizations and Services
(a) Food Recovery Services operating in the City collecting or receiving Edible Food directly
from Tier One and/or Tier Two Commercial Edible Food Generators, via a contract or
written agreement established under the requirements of this Chapter, shall maintain the
following records:
(1) The name, address, and contact information for each Tier One and Tier Two
Commercial Edible Food Generator from which the service collects Edible Food.
(2) The quantity in pounds of Edible Food by type collected from each Tier One and
Tier Two Commercial Edible Food Generator per month.
96
-20-
(3) The quantity in pounds of Edible Food by type transported to each Food Recovery
Organization or redistribution site per month.
(4) The name, address, and contact information for each Food Recovery Organization
or redistribution site that the Food Recovery Service transports Edible Food to for
Edible Food Recovery.
(b) Food Recovery Organizations operating in the City collecting or receiving Edible Food
directly from Tier One and/or Tier Two Commercial Edible Food Generators, via a contract
or written agreement established under the requirements of this Chapter, or receiving
Edible Food from Food Recovery Services or from other Food Recovery Organizations,
shall maintain the following records:
(1) The name, address, and contact information for each Tier One and Tier Two
Commercial Edible Food Generator, Food Recovery Service, or other Food
Recovery Organization from which the organization collects or receives Edible
Food.
(2) The quantity in pounds of Edible Food by type collected or received from each Tier
One or Tier Two Commercial Edible Food Generator, Food Recovery Service, or
other Food Recovery Organization per month.
(3) The name, address, and contact information for each Food Recovery Organizations
or redistribution sites that the Food Recovery Organization transports Edible Food
to for Edible Food Recovery.
(c) Food Recovery Organizations and Food Recovery Services operating in the City shall
inform Tier One and Tier Two Commercial Edible Food Generators from which they
collect or receive Edible Food about California and Federal Good Samaritan Food
Donation Act protection in written communications, such as in their contract or agreement
established as required by this Chapter.
(d) Commencing no later than July 1, 2022, Food Recovery Organizations and Food Recovery
Services operating in the City and collecting or receiving Edible Food from Tier One and
Tier Two Commercial Edible Food Generators or any other source shall report to the City
or its Designee the following: a detailed Edible Food activity report of the information
collected as required under this Chapter, including weight in pounds by type and source of
Edible Food, the schedule/frequency of pickups/drop-offs of Edible Food from/to each
Edible Food source or redistribution site, brief analysis of any necessary process
improvements or additional infrastructure needed to support Edible Food Recovery efforts,
such as training, staffing, refrigeration, vehicles, etc., and an up to date list of Tier One and
Tier Two Commercial Edible Food Generators with whom they have contracts or
agreements established as required under this Chapter. This Edible Food activity report
shall be submitted quarterly, or at the discretion of the City or its Designee, less frequently,
and shall cover the activity that occurred since the period of the last submission.
(e) Prior to executing new agreements or contracts with Tier One or Tier Two Commercial
Edible Food Generators, Food Recovery Organizations and Food Recovery Services
operating in the City shall consult and review with the City or its Designee the requirements
of this Chapter in or to ensure compliance with the requirements described herein. In
addition, it shall be the responsibilities of Food Recovery Organizations and Food
97
-21-
Recovery Services operating in the City to ensure that any existing agreements with Tier
One or Tier Two Commercial Edible Food Generators comply with the requirements of
this Chapter after the effective date of the enabling ordinance, including consulting with
the City or its Designee the necessary steps to be taken for compliance.
(f) In order to provide the required records to the State, the City or its Designee, and Tier One
or Tier Two Commercial Edible Food Generators, contracts between Food Recovery
Organizations and Food Recovery Services operating in the City and Tier One and Tier
Two Commercial Edible Food Generators shall either:
(1) Use the Model Food Recovery Agreement developed by CalRecycle and include
provisions requiring the Food Recovery Organization or Food Recovery Service to
report to the Tier One and Tier Two Commercial Edible Food Generators with
whom they have contracts the annual amount of Edible Food recovered and to
inform them of the tax benefits available to those who donate Edible Food to non-
profits.
(2) Or, if the CalRecycle Model is not utilized, include in their contracts the following
elements:
(A) List/description of allowable foods the Food Recovery
Organization/Food Recovery Service will receive.
(B) List/description of foods not accepted by the Food Recovery
Organization/Food Recovery Service.
(C) Conditions for refusal of food.
(D) Food safety requirements, training, and protocols.
(E) Transportation and storage requirements and training.
(F) A protocol for informing the Tier One or Tier Two Commercial
Edible Food Generators of a missed or delayed pickup.
(G) Notice that donation dumping is prohibited.
(H) Provisions to collect sufficient information to meet the record-
keeping requirements of this Chapter.
(I) Fees/financial contributions/acknowledgement of terms for the
pickup and redistribution of Edible Food.
(J) Terms and conditions consistent with the CalRecycle Model Food
Recovery Agreement.
(K) Information supplying the Tier One or Tier Two Commercial Edible
Food Generators with the annual amount of Edible Food recovered
and informing them of the tax benefits that may be available to those
who donate Edible Food to non-profits.
(L) Contact name, address, phone number, and email for both
responsible parties, including the current on-site staff responsible
for Edible Food Recovery.
98
-22-
(M) Food Recovery Organizations accepting self-hauling of Edible Food
from Tier One and Tier Two Commercial Edible Food Generators
must provide a schedule, including days of the week and acceptable
times for drop-offs, and information about any limitation on the
amount of food accepted, and/or the packaging requirements or
other conditions of transport, such as, but not limited to, maintaining
proper temperature control, and other requirements for the safe
handling and transport of food, the self-hauler must follow for the
Edible Food to be accepted.
(g) Food Recovery Organizations and Food Recovery Services operating in the City shall
demonstrate that all persons, including volunteers and contracted workers using their own
vehicle, involved in the handling or transport of Edible Food, have obtained a food handler
card through an American National Standards Institute (ANSI) accredited training provider
that meets ASTM International E2659-09 Standard Practice for Certificate Programs, such
as ServSafe.
(h) Food Recovery Organizations and Food Recovery Services operating in the City shall use
the appropriate temperature control equipment and methods and maintain the required
temperatures for the safe handling of Edible Food recovered from Tier One and Tier Two
Commercial Edible Food Generators for the duration of the transportation of the Edible
Food for redistribution, including Edible Food transported by private vehicles.
(i) In order to ensure recovered Edible Food is eaten and to prevent donation dumping, Food
Recovery Organizations and Food Recovery Services operating in the City shall provide
documentation that all redistribution sites which are not themselves Food Recovery
Organizations to which they deliver Edible Food have a feeding or redistribution program
in place to distribute, within a reasonable time, all the Edible Food they receive. Such
documentation may include a website address which explains the program or
pamphlets/brochures prepared by the redistribution site.
(j) Food Recovery Organizations and Food Recovery Services operating in the City unable
to demonstrate a positive reduction in GHG emissions for their Edible Food Recovery
operational model cannot contract with Tier One and Tier Two Commercial Edible Food
Generators in the City for the purpose of recovering Edible Food as defined in this Chapter.
Food Recovery Organizations and Food Recovery Services contracting to recover Edible
Food from a Tier One and Tier Two Commercial Edible Food Generator for redistribution
shall consult with the City or its Designee to document that their overall operational model
will achieve a greenhouse gas emissions reduction. Such review may analyze route review,
miles traveled for pick-up and redistribution, amount of food rescued, and the likelihood
of consumption after redistribution.
(k) Food Recovery Organizations and Food Recovery Services operating in the City shall
inspect all Edible Food recovered or received from a Tier One and Tier Two Commercial
Edible Food Generator. If significant spoilage is found, or if the food is otherwise found to
be unfit for redistribution for human consumption, Food Recovery Organizations and Food
Recovery Services shall immediately notify the City or its Designee using a notification
process to be set by the City or its Designee. Such notice shall include:
99
-23-
(1) The type and amount, in pounds, of spoiled food or food unfit for redistribution for
human consumption, or provide a photographic record of the food, or both.
(2) The date and time such food was identified.
(3) The name, address and contact information for the Tier One or Tier Two
Commercial Edible Food Generator which provided the food.
(4) The date and time the food was picked up or received.
(5) A brief explanation of why the food was rejected or refused.
(l) Contracts between Tier One or Tier Two Commercial Edible Food Generators and Food
Recovery Organizations or Food Recovery Services shall not include any language
prohibiting Tier One or Tier Two Commercial Edible Food Generators from contracting or
holding agreements with multiple Food Recovery Organizations or Food Recovery
Services.
(m) Food Recovery Organizations and Food Recovery Services operating in the City shall
conduct trainings and develop educational material such as donation guidelines and
handouts to provide instruction and direction to Tier One and Tier Two Commercial Edible
Food Generators with whom they contract regarding best practices and requirements for
the timely identification, selection, preparation, and storage of Edible Food to ensure the
maximum amount of Edible Food is recovered and to avoid the collection of food that is
moldy, has been improperly stored, or is otherwise unfit for human consumption.
(n) Edible Food Recovery Capacity Planning
(1) Food Recovery Services and Food Recovery Organizations. In order to support
Edible Food Recovery capacity planning assessments or other such studies, Food
Recovery Services and Food Recovery Organizations operating in the City shall
provide information and consultation to the City or its Designee upon request,
regarding existing, or proposed new or expanded, Edible Food Recovery capacity
that could be accessed by the City and its Tier One and Tier Two Commercial
Edible Food Generators. A Food Recovery Service or Food Recovery Organization
contacted by the City or its Designee shall respond to such requests for information
within 60 days.
(o) Allow the City or its Designee to access the premises and inspect procedures and review
records related to Edible Food Recovery and/or provide them electronically if requested by
the City or its Designee.
8.27.090 Requirements for Haulers and Facility Operators
(a) Requirements for Haulers
(1) Exclusive Franchised Hauler and permitted haulers as authorized by the Exclusive
Franchise and Chapter 8.16 of this Code, providing residential, Commercial, or
industrial Organic Waste collection services to generators within the City’s
boundaries shall meet the following requirements and standards as a condition of
approval of a contract, agreement, or other authorization with the City to collect
Organic Waste:
100
-24-
(A) Through written notice to the City annually on or before December 31 of
each year identify the facilities to which they will transport Organic Waste
including facilities for Source Separated Recyclable Materials, Source
Separated Green Container Organic Waste, and Mixed Waste.
(B) Transport Source Separated Recyclable Materials, Source Separated Green
Container Organic Waste, and Mixed Waste to a facility, operation, activity,
or property that recovers Organic Waste as defined in 14 CCR, Division 7,
Chapter 12, Article 2.
(C) Obtain approval from the City or its Designee to haul Organic Waste, unless
it is transporting Source Separated Organic Waste to a Community
Composting site or lawfully transporting C&D in a manner that complies
with 14 CCR Section 18989.1, Section 8.27.110 of this Chapter, and
applicable City C&D requirements under this Code.
(2) Exclusive Franchised Hauler, and permitted haulers as authorized by the Exclusive
Franchise and Chapter 8.16 of this Code, authorized to collect Organic Waste in
the City shall comply with education, equipment, signage, container labeling,
container color, contamination monitoring, reporting, and other requirements
contained within its franchise agreement, this Code or other regulations, or other
agreement entered into with City.
(b) Requirements for Facility Operators and Community Composting Operations
(1) Owners of facilities, operations, and activities that recover Organic Waste,
including, but not limited to, Compost facilities, in-vessel digestion facilities, and
publicly-owned treatment works shall, upon the City or its Designee’s request,
provide information regarding available and potential new or expanded capacity at
their facilities, operations, and activities, including information about throughput
and permitted capacity necessary for planning purposes. Entities contacted by the
City or its Designee shall respond within 60 days.
(2) Community Composting operators, upon the City or its Designee’s request, shall
provide information to the City or its Designee to support Organic Waste capacity
planning, including, but not limited to, an estimate of the amount of Organic Waste
anticipated to be handled at the Community Composting operation. Entities
contacted by the City or its Designee shall respond within 60 days.
8.27.100 Self-Hauler Requirements
(a) Self-Haulers shall source separate all recyclable materials and Organic Waste generated
on-site from Solid Waste in a manner consistent with 14 CCR Sections 18984.1 and
18984.2, or shall haul Organic Waste to a High Diversion Organic Waste Processing
Facility as specified in 14 CCR Section 18984.3.(b) Self-Haulers shall haul their Source
Separated Recyclable Materials to a facility that recovers those materials; and haul their
Source Separated Green Container Organic Waste to a Solid Waste facility, operation,
activity, or property that processes or recovers Source Separated Organic Waste.
Alternatively, Self-Haulers may haul Organic Waste to a High Diversion Organic Waste
Processing Facility.
101
-25-
(c) Commercial Business Self-Haulers shall keep a record of the amount of Organic Waste
delivered to each Solid Waste facility, operation, activity, or property that processes or
recovers Organic Waste; this record shall be subject to Inspection by the City or its
Designee. If requested in writing, the Commercial Business Self-Hauler shall provide the
record to City or its Designee. The records shall include the following information:
(1) Delivery receipts and weight tickets from the entity accepting the waste.
(2) The amount of material in cubic yards or tons transported by the generator to each
entity.
(3) If the material is transported to an entity that does not have scales on-site, or
employs scales incapable of weighing the Self-Hauler’s vehicle in a manner that
allows it to determine the weight of materials received, the Self-Hauler is not
required to record the weight of material but shall keep a record of the entities that
received the Organic Waste.
8.27.110 Compliance with CALGreen Recycling Requirements
(a) Any individual or entity submitting an application for a building permit from the City shall
comply with the requirements of this Section and all applicable requirements of the
California Green Building Standards Code, 24 CCR, Part 11, known as CALGreen, as
amended and adopted by reference under Title 15 of this Code. If the requirements of
CALGreen are more stringent than the requirements of this Section, the CALGreen
requirements shall apply.
(b) Applicants with projects subject to CALGreen requirements must, as a condition of
building permit issuance, comply with the following:
(1) Where five (5) or more Multi-Family dwelling units are constructed on a building
site, provide readily accessible areas that serve occupants of all buildings on the
site and are identified for the storage and collection of Blue Container and Green
Container materials, consistent with the three-container collection program offered
by the City, or comply with provision of adequate space for recycling for Multi-
Family and Commercial premises pursuant to applicable CALGreen requirements
most recently in effect as adopted by reference under Title 15 of this Code.
(2) Where new Commercial construction or additions result in more than 30% of the
floor area, provide readily accessible areas identified for the storage and collection
of Blue Container and Green Container materials, consistent with the three-
container collection program offered by the City, or comply with provision of
adequate space for recycling for Multi-Family and Commercial premises pursuant
to applicable CALGreen requirements most recently in effect as adopted by
reference under Title 15 of this Code.
(3) For all projects, comply with CALGreen requirements and applicable state, federal
and local law related to management of C&D, including diversion of Organic Waste
in C&D from disposal, and all City ordinances, regulations and guidelines
regarding the collection, recycling, diversion, tracking, and/or reporting of C&D,
including Chapter 8.16 of this Code.
102
-26-
8.27.120 Procurement Requirements for City Departments, Direct Service Providers, and
Vendors
(a) The City’s departments, and direct service providers to the City, as applicable, must
comply with the City’s Recovered Organic Waste Product procurement policy most
recently in effect and as may be amended from time to time, and Recycled-Content Paper
procurement policy most recently in effect and as may be amended from time to time. The
City Manager shall have the authority to adopt as necessary administrative instructions to
implement the procurement policies described herein.
(b) All vendors providing Paper Products and Printing and Writing Paper shall:
(1) If fitness and quality are equal, provide Recycled-Content Paper Products and
Recycled-Content Printing and Writing Paper that consists of at least 30 percent,
by fiber weight, postconsumer fiber instead of non-recycled products whenever
recycled Paper Products and Printing and Writing Paper are available at the same
or lesser total cost than non-recycled items.
(2) Provide Paper Products and Printing and Writing Paper that meet Federal Trade
Commission recyclability standard as defined in 16 Code of Federal Regulations
(CFR) Section 260.12.
(3) Certify in writing, under penalty of perjury, the minimum percentage of
postconsumer material in the Paper Products and Printing and Writing Paper
offered or sold to the City. This certification requirement may be waived if the
percentage of postconsumer material in the Paper Products, Printing and Writing
Paper, or both can be verified by a product label, catalog, invoice, or a manufacturer
or vendor internet website.
(4) Certify in writing, on invoices or receipts provided, that the Paper Products and
Printing and Writing Paper offered or sold to the City is eligible to be labeled with
an unqualified recyclable label as defined in 16 Code of Federal Regulations (CFR)
Section 260.12 (2013).
(5) Provide records to the City or its Designee in accordance with the City’s Recycled-
Content Paper procurement policy(ies) of all Paper Products and Printing and
Writing Paper purchases within thirty (30) days of the purchase (both recycled-
content and non-recycled content, if any is purchased) made by any division or
department or employee of the City. Records shall include a copy (electronic or
paper) of the invoice or other documentation of purchase, written certifications as
required in Sections (b)(3) and (b)(4) of this Section for recycled-content purchases,
purchaser name, quantity purchased, date purchased, and recycled content
(including products that contain none), and if non-recycled content Paper Products
or Printing and Writing Papers are provided, include a description of why Recycled-
Content Paper Products or Printing and Writing Papers were not provided.
8.27.130 Inspections and Investigations by City
(a) The City or its Designee are authorized to conduct Inspections and investigations, at
random or otherwise, of any collection container, collection vehicle loads, or transfer,
103
-27-
processing, or disposal facility for materials collected from generators, or Source Separated
materials to confirm compliance with this Chapter by Organic Waste Generators,
Commercial Businesses (including Multi-Family Residential Dwellings), property owners,
Tier One and Tier Two Commercial Edible Food Generators, haulers, Self-Haulers, Food
Recovery Services, and Food Recovery Organizations, subject to applicable laws. This
Section shall not be construed to allow the City or its Designee to enter the interior of a
private residential property for Inspection.
(b) Regulated entities shall provide or arrange for access during all Inspections (with the
exception of residential property interiors) and shall cooperate with the City or its Designee
during such Inspections and investigations. Such Inspections and investigations may
include confirmation of proper placement of materials in containers, Edible Food Recovery
activities, records, or any other requirement of this Chapter. Failure to provide or arrange
for: (i) access to an entity’s premises; or (ii) access to records for any Inspection or
investigation is a violation of this Chapter and may result in penalties described.
(c) Any records obtained by the City or its Designee during its Inspections, and other reviews
shall be subject to the requirements and applicable disclosure exemptions of the Public
Records Act as set forth in Government Code Section 6250 et seq.
(d) The City and its Designee, and their respective representatives, are authorized to conduct
any Inspections, or other investigations as reasonably necessary to further the goals of this
Chapter, subject to applicable laws.
(e) The City or its Designee shall receive written complaints from persons regarding an entity
that may be potentially non-compliant with SB 1383 Regulations, including receipt of
anonymous complaints. Complaints shall be received and processed as follows:
(1) Complaints shall be submitted in writing and shall include the following
information:
A. If the complaint is not anonymous, the name and contact information of
the complainant.
B. The identity of the alleged violator, if known.
C. A description of the alleged violation including location(s) and all other
relevant facts known to the complainant.
D. Any relevant photographic or documentary evidence to support the
allegations in the complaint.
E. The identity of any witnesses, if known.
(2) The City or its Designee shall review the complaint for compliance with the
foregoing requirements of subsection (e)(1) and determine whether the
allegations, if proven true, would constitute a violation of this Chapter. If so,
the City or its Designee shall commence an investigation within 90 days of
receiving the complaint. The City or its Designee may decline to investigate a
complaint if, in its judgment, investigation is unwarranted because the
allegations are contrary to facts known to it.
104
-28-
(3) If the identity and contact information of the complainant are known, the City
or its Designee shall provide notice to the complainant upon conclusion of the
investigation the status or results of their complaint.
(4) The City shall maintain records of all complaints and responses pursuant to this
section as required by 14 CCR Section 18995.2, as may be amended. The
records shall include the complaint as received and the City's determination of
compliance or notice of violations issued.
(5) The City Manager is authorized to adopt administrative regulations to further
implement or effectuate the requirements of this subsection.
8.27.140 Enforcement
(a) Violation of any provision of this Chapter shall be subject to the administrative citation
process and abatement procedure set forth under Chapter 8.54 of this Code by a City
Enforcement Official or Regional or County Agency Enforcement Official, except that the
lien procedure described under Articles V and VI of Chapter 8.54 shall not apply to
violations under this Chapter.
(b) In addition, a violation of this chapter may be remedied by any means available to the City
to remedy a violation of this Code. The City or its Designee may pursue civil actions in the
California courts to seek recovery of unpaid administrative citations, or may choose to
delay court action until such time as a sufficiently large number of violations, or cumulative
size of violations exist such that court action is a reasonable use of City or Designee staff
and resources.
(c) Responsible Entity for Enforcement.
(1) Enforcement pursuant to this Chapter may be undertaken by a City Enforcement
Official.
(2) Enforcement may also be undertaken by a Regional or County Agency
Enforcement Official in consultation with the City Enforcement Official.
(3) City Enforcement Official(s) and Regional or County Enforcement Official(s) will
interpret the provisions of this Chapter; determine the applicability of waivers, if
violation(s) have occurred; implement Enforcement Actions; and, determine if
compliance standards are met.
(4) City Enforcement Official(s) and Regional or County Agency Enforcement
Official(s) may issue Notices of Violation(s) as provided in this Chapter.
(d) Process for Enforcement.
(1) The City Enforcement Official or the Regional or County Enforcement Official
undertaking enforcement responsibilities pursuant to this Chapter shall monitor
compliance with this Chapter through random means by utilizing Compliance
Reviews, Route Reviews, investigation of complaints, and an Inspection program.
Section 8.27.130 establishes City’s right to conduct Inspections and investigations.
105
-29-
(2) The City or its Designee shall have the authority to issue an official notification to
notify regulated entities of its obligations under this Chapter.
(3) Issuance of a Notice of Violation.
(A) For incidences of Prohibited Container Contaminants found in containers,
except those incidences relating to Edible Food Recovery, the City Enforcement
Official or the Regional or County Enforcement Official shall issue a Notice of
Violation to any generator found to have Prohibited Container Contaminants in a
container.
(B) Such notice will be provided via a cart tag or other communication immediately
upon identification of the Prohibited Container Contaminants or within twenty-four
(24) hours after determining that a violation has occurred.
(C)If the City Enforcement Official or the Regional or County Enforcement Official
observes Prohibited Container Contaminants in a generator’s containers on more
than two (2) consecutive occasion(s) or more than three (3) times in any twelve (12)
month period, the City Enforcement Official or the Regional or County
Enforcement Official may assess contamination processing fees or contamination
penalties on the generator.
(ii)(A) For incidences of Prohibited Container Contaminants found in containers
relating to Edible Food Recovery, the City Enforcement Official or the Regional or
County Enforcement Official shall issue a Notice of Violation to any Tier One or
Tier Two Commercial Edible Food Generator found to have Edible Food in any
container or to any Food Recovery Organization or Food Recovery Service found
to have Edible Food recovered from a Tier One or Tier Two Edible Food Generator
in a container which has not been documented by a notice of significant spoilage as
required by Section 8.27.080.
(B) Such notice will be provided by electronic mail or other means of
communication immediately upon identification of the Prohibited Container
Contaminants or within three (3) days after determining that a violation has
occurred.
(C) If the City Enforcement Official or the Regional or County Enforcement
Official observes Prohibited Container Contaminants, such as Edible Food, in a
Tier One or Tier Two Commercial Edible Food Generator, or Food Recovery
Organization, or Food Recovery Service container on more than two (2)
consecutive occasion(s), the City Enforcement Official or the Regional or County
Enforcement Official may assess an administrative citation and fine, pursuant to
the penalties provisions contained in this Chapter, on the Tier One or Tier Two
Commercial Edible Food Generator, Food Recovery Organization, or Food
Recovery Service.
(4) With the exception of Prohibited Container Contaminants violations addressed
under Section 8.27.140(d)(3) and violations related to Edible Food Recovery, the
City Enforcement Official or the Regional or County Enforcement Official shall
issue a Notice of Violation requiring compliance within 60 days of issuance of the
notice. For violations related to Edible Food Recovery, the City Enforcement
106
-30-
Official or the Regional or County Enforcement Official may issue a Notice of
Violation requiring compliance within 7 days of issuance of the Notice.
(5) Absent compliance by the respondent within the deadline set forth in the Notice of
Violation as described above, the City shall commence an action to impose
penalties, via an administrative citation and fine, pursuant to Chapter 8.54 of this
Code or any other remedy available to the City.
Notices shall be sent to the property owner at the official address of the owner
maintained by the tax collector for the City or if no such address is available, to the
owner at the address of the dwelling or Commercial property or to the party
responsible for paying for the collection services, depending upon available
information.
(e) Penalty Amounts for Types of Violations.
Violations of this Chapter shall be subject to the following fines:
(A) For a first violation, the amount of the base penalty shall be $100 per violation.
(B) For a second violation, the amount of the base penalty shall be $200 per violation.
(C) For a third or subsequent violation, the amount of the base penalty shall be $500
per violation.
(f) Factors Considered in Determining Penalty Amount.
The following factors shall be used to determine the amount of the penalty for each
violation within the appropriate penalty amount range:
(1) The nature, circumstances, and severity of the violation(s).
(2) The violator’s ability to pay.
(3) The willfulness of the violator's misconduct.
(4) Whether the violator took measures to avoid or mitigate violations of this chapter.
(5) Evidence of any economic benefit resulting from the violation(s).
(6) The deterrent effect of the penalty on the violator.
(7) Whether the violation(s) were due to conditions outside the control of the violator.
(g) Compliance Deadline Extension Considerations.
The City may extend the compliance deadlines set forth in a Notice of Violation issued in
accordance with Section 8.27.140 if it finds that there are extenuating circumstances based
on evidence presented in the record before it that are beyond the control of the respondent
that make compliance within the deadlines impracticable, including but not limited to the
following:
(1) Acts of God such as earthquakes, wildfires, flooding, and other emergencies or
natural disasters;
(2) Delays in obtaining discretionary permits or other government agency approvals;
or,
107
-31-
(3) Deficiencies in Organic Waste recycling infrastructure or Edible Food Recovery
capacity and the City is under a corrective action plan with CalRecycle pursuant to
14 CCR Section 18996.2 due to those deficiencies.
(h) Appeals Process. Persons receiving an administrative citation containing a penalty for an
uncorrected violation may request a hearing to appeal the citation pursuant to Chapter 8.54
of this Code.
(i) Education Period for Non-Compliance. Beginning January 1, 2022 and through December
31, 2023, the City or its Designee will conduct Inspections, Route Reviews or waste
evaluations, and Compliance Reviews, depending upon the type of regulated entity, to
determine compliance, and if City or its Designee determines that an Organic Waste
Generator, hauler, Tier One Commercial Edible Food Generator, Food Recovery
Organization, Food Recovery Service, or other entity is not in compliance, it shall provide
educational materials and/or, for the purposes of Edible Food Recovery, training to the
entity describing its obligations under this Chapter and a notice that compliance is required
by January 1, 2022, and that violations may be subject to administrative civil penalties
starting on January 1, 2024.
(j) Civil Penalties for Non-Compliance. Beginning January 1, 2024, if the City or its Designee
determines that an Organic Waste Generator, Self-Hauler, hauler, Tier One or Tier Two
Commercial Edible Food Generator, Food Recovery Organization, Food Recovery
Service, or other entity is not in compliance with this Chapter, it shall document the
noncompliance or violation, issue a Notice of Violation, and take Enforcement Action
pursuant to this Section 8.27.140, as needed.
108
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-792 Agenda Date:11/10/2021
Version:1 Item #:10.
Report regarding a resolution approving the South San Francisco Fire Department’s annual inspections
performance pursuant to the California Health and Safety Code Section 13146.4. (Ian Hardage, Fire Marshal)
RECOMMENDATION
It is recommended that City Council adopt a resolution approving the South San Francisco Fire Department’s
annual inspections performance pursuant to the California Health and Safety Code Section 13146.4.
BACKGROUND/DISCUSSION
The California Health and Safety Code Section 13146.4 requires fire departments or districts that are providing
fire protection services to annually inspect buildings that are being used as public or private schools,hotels,
motels,lodging houses,and apartment houses.Additionally,fire departments are required to report to their
City Council annually,demonstrating their compliance with the mandatory annual inspections and that they
acknowledge receipt of the information by resolution.
The South San Francisco Fire Department maintains a comprehensive inspection program,working to ensure
that all occupancies within the City be inspected for fire and life safety code compliance on an annual or
biennial basis.The frequency of inspections is dependent upon the risks within a building.This allows staff to
provide enhanced fire safety behaviors throughout the community through interactive,risk-based inspections
and fire safety education to every business within the City.
While California state law requires only the reporting of public or private schools,hotels,motels,lodging
houses,and apartment houses,the South San Francisco Fire Department has elected to include data on
additional occupancies within the City that pose a risk.These occupancies include the following:places of
assembly,gas stations,auto repair facilities,laboratories,care facilities,hospitals and fire protection systems.
The report details occupancy types, number of occupancies, inspections conducted, and percentage completed.
With the COVID-19 pandemic occurring,2020 was an exceptionally challenging year for businesses,schools
and our overall community.Some facilities were forced to close or go dormant,while others took the
opportunity to renovate or adjust their business models.These changes coupled with imposed health mandates
made inspections difficult and some impractical.However,construction was deemed essential,and our City
continues to develop at a rapid pace placing a large demand on the fire prevention division.Despite these
challenges and having a frozen Deputy Fire Marshal position,the Fire Department nearly completed all
mandated inspections.By the end of the 2020 calendar year 21 of the 522 mandated inspections were not
completed. These remaining 21 inspections were prioritized and completed within the first 60 days of 2021.
FISCAL IMPACT
There is no additional fiscal impact associated with adoption of this resolution.The resolution seeks to
communicate and acknowledge compliance with inspections previously mandated by state law.
City of South San Francisco Printed on 11/5/2021Page 1 of 2
powered by Legistar™109
File #:21-792 Agenda Date:11/10/2021
Version:1 Item #:10.
RELATIONSHIP TO STRATEGIC PLAN
This action supports priority area four regarding Public Safety.
CONCLUSION
California state law requires fire departments to review and report on annual state mandated occupancy
inspections within their jurisdictions.This allows the City Council an opportunity to evaluate Fire Prevention
performance.Adoption of the resolution ensures compliance with California Health and Safety Code Section
13146.4 and demonstrates the City’s commitment to improving public safety.
Attachment:
1.Annual Inspection Report
City of South San Francisco Printed on 11/5/2021Page 2 of 2
powered by Legistar™110
EXHIBIT A
DATE: November 2021
SUBJECT: Annual Inspection Compliance Report to Fulfill California Health and Safety Code Section 13146.4.
Occupancy Type Total # of Occupancies Completed in 2020 % Complete
Group E (Schools, public & private)19 18 95%
Group R‐1 (Hotels & Motels)35 35 100%
Group R‐2 (Apartment & Condominiums)468 446 95%
Total E & R Occ. (Reportable)522 499 96%
Group A (Restaurants, Places of Warship)175 62 35%
Group B (Office, Professional Services)515 454 88%
Group F (Industrial, Factory)131 58 44%
Group H (_______________)2 2 100%
Group I (Hospitals, Day Care Facilities)27 10 37%
Group L ( Labs, Bio‐Tech, R&D)165 43 26%
Group M (Stores, Markets)78 59 76%
Group R‐3.1 (Residential Care Facilities)69 3 4%
Group R‐3 (Large Family Daycare)23 2 9%
Group S‐1 ( Auto Repair, Gas Stations)119 119 100%
Group S‐2 ( Warehouses)322 29 9%
Total Occupancy Inspections 1626 841 52%
Re‐inspection Varies 1038
Fire Protection Systems Inspections Varies 1353
Misc Varies 157
Total Inspections
SOUTH SAN FRANCISCO FIRE DEPARTMENT
Inspection Compliance Report
South San Francisco Fire Department Annual Inspection Compliance Report
3888
111
Senate Bill 1205 Fire Protection Services
Inspection Compliance Reporting
City Council Meeting
November 10, 2021
Ian Hardage
Fire Marshal
Government Code Section 54957.5
SB 343
Agenda: 11/10/2021 Reg CC
Item #10
112
Senate Bill 1205 Fire Protection Services
Inspection Compliance Reporting
On December 2, 2016, a fire broke out in a warehouse, known as
Ghost Ship, that had been converted into an artist collective,
including dwelling units, in the Fruitvale neighborhood of Oakland,
California. A total of 36 people lost their lives in the fire, and it
became the deadliest in the history of the city. It was also the
deadliest building fire in the United States since The Station nightclub
fire in 2003, and the deadliest in California since the 1906 San
Francisco earthquake. The tragedy at Ghost Ship brought national
attention and put a spotlight on fire safety laws and inspection in
California.
BACKGROUND
113
On September 27, 2018, SB 1205 became effective, and
added a new section to the California Health and Safety
Code which affects every fire department or fire district
in the State.Existing state law requires every fire
department or district providing fire protection services
to inspect every building used as a public or private
school annually. This same annual inspection
requirement is applicable to hotels, motels, lodging
houses, and apartment houses.
Senate Bill 1205 Fire Protection Services
Inspection Compliance Reporting
114
Educational Group E Occupancies are generally those public and private schools, used
by more than six persons at any one time for educational purposes Kindergarten
through the 12th grade.
Residential Group R Occupancies, for the purpose of this resolution, are generally
those occupancies containing sleeping units, and including hotels, motels, apartments
(three units or more), etc. as well as other residential occupancies (including a number
of residential care facilities). These residential care facilities have a number of different
sub-classifications, and they may contain residents or clients that have a range of
needs, including those related to custodial care, mobility impairments, cognitive
impairments, etc. The residents may also be non-ambulatory or bedridden.
Senate Bill 1205 Fire Protection Services
Inspection Compliance Reporting
115
Within the City of South San Francisco, there are 19 known Group E Occupancies,
buildings, structures and/or facilities. During the 2020/2021 fiscal year, the South San
Francisco Fire Department completed 18 Group E Occupancies, buildings, structures
and/or facilities inspections. This is a compliance rate of 95% for this reporting period.
Within the City of South San Francisco, there are 503 known Group R-1 & R-2
Occupancies buildings, structures and/or facilities. During the 2020/2021 fiscal year, the
South San Francisco Fire Department completed 481 Group R Occupancies, buildings,
structures and/or facilities. This is a compliance rate of 96% for this reporting period.
South San Francisco Fire Department includes all existing inspection activity information
completed not just the required mandates.
Senate Bill 1205 Fire Protection Services
Inspection Compliance Reporting
116
Senate Bill 1205 Fire Protection Services
Inspection Compliance Reporting
South San Francisco Fire Department Annual Inspection Compliance Report
Occupancy Type Total # of Occupancies Completed % Complete
Group E (Schools, public & private)19 18 95%
Group R-1 (Hotels & Motels)35 35 100%
Group R-2 (Apartment & Condominiums)468 446 95%
Total E & R Occ. (Reportable Mandates)522 499 96%
Group A (Restaurants, Places of Warship)175 62 35%
Group B (Office, Professional Services)515 454 88%
Group F (Industrial, Factory)131 58 44%
Group H (Hazardous facilities)2 2 100%
Group I (Hospitals, Day Care Facilities)27 10 37%
Group L (Labs, Bio-Tech, R&D)165 43 26%
Group M (Stores, Markets)78 59 76%
Group R-3 (Daycare, Care Facilities)92 5 5%
Group S-1 (Auto Repair, Gas Stations)119 119 100%
Group S-2 (Warehouses)322 29 9%
Total Occupancy Inspections 1626 841 52%
Re-inspection Varies 1038
Fire Protection Systems Inspections Varies 1353
Misc.Varies 157
Total Inspections 4696 3888 83%
117
The 23 mandated inspections that were not competed in the reporting period were completed within 60 days of the
close of the report.
During the past year, the South San Francisco Fire Department completed approximately 1,700 additional inspection
than the previous year. This is mainly due to the addition of two hourly Safety Inspectors and the continued increase
in new development throughout the city.
For quarter 1 of the next reporting period 852 safety inspections and 437 new development inspections have been
completed. We are trending at an approximately 10% higher completion rate for safety inspections and 6% higher in
new development related inspections. As new development continues to increase, we estimated up to a 20%
increase in workload in the upcoming quarters 3 and 4 over the past year.
118
QUESTIONS?
119
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-793 Agenda Date:11/10/2021
Version:1 Item #:10a.
A Resolution approving the South San Francisco Fire Department’s annual inspections performance
pursuant to California Health and Safety Code Section 13146.4.
Whereas,California Health and Safety Code Section 13146.4 requires Fire Departments providing fire
protection services to annually inspect and report to City Council inspection status of buildings that are being
used as public or private schools, hotels, motels, lodging houses, and apartment houses; and
Whereas,the South San Francisco Fire Department maintains a comprehensive inspection program,working to
ensure that all occupancies within the City are inspected for fire and life safety on an annual or biennial basis;
and
Whereas,California Health and Safety Code Section 13146.4 requires only the reporting of public or private
schools,hotels,motels,lodging houses,and apartment houses,the South San Francisco Fire Department has
elected to include data on additional occupancies within the City that pose a risk,including places of assembly,
gas stations, auto repair facilities, laboratories, care facilities, hospitals and fire protection systems; and
Whereas,the purpose of state law requires fire departments to review and report on annual state mandated
occupancy inspections within their jurisdictions,which allows the City Council an opportunity to evaluate Fire
Prevention performance; and
Whereas,the Fire Department Inspection Compliance Report,hereto attached as Exhibit A,ensures compliance
with California Health and Safety Code Section 13146.4 and demonstrates the City’s commitment to improving
public safety.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San
Francisco does hereby approve the South San Francisco Fire Department’s annual inspections performance
pursuant to California Health and Safety Code Section 13146.4.
*****
City of South San Francisco Printed on 12/14/2021Page 1 of 1
powered by Legistar™120
EXHIBIT A
DATE: November 2021
SUBJECT: Annual Inspection Compliance Report to Fulfill California Health and Safety Code Section 13146.4.
Occupancy Type Total # of Occupancies Completed in 2020 % Complete
Group E (Schools, public & private)19 18 95%
Group R‐1 (Hotels & Motels)35 35 100%
Group R‐2 (Apartment & Condominiums)468 446 95%
Total E & R Occ. (Reportable)522 499 96%
Group A (Restaurants, Places of Warship)175 62 35%
Group B (Office, Professional Services)515 454 88%
Group F (Industrial, Factory)131 58 44%
Group H (_______________)2 2 100%
Group I (Hospitals, Day Care Facilities)27 10 37%
Group L ( Labs, Bio‐Tech, R&D)165 43 26%
Group M (Stores, Markets)78 59 76%
Group R‐3.1 (Residential Care Facilities)69 3 4%
Group R‐3 (Large Family Daycare)23 2 9%
Group S‐1 ( Auto Repair, Gas Stations)119 119 100%
Group S‐2 ( Warehouses)322 29 9%
Total Occupancy Inspections 1626 841 52%
Re‐inspection Varies 1038
Fire Protection Systems Inspections Varies 1353
Misc Varies 157
Total Inspections
SOUTH SAN FRANCISCO FIRE DEPARTMENT
Inspection Compliance Report
South San Francisco Fire Department Annual Inspection Compliance Report
3888
121
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-744 Agenda Date:11/10/2021
Version:1 Item #:11.
Report regarding the acceptance of $2,120,000 in grant funding and executing a consulting services contract
amendment with Mark Thomas &Company of Oakland,California,for an additional $66,777,and to execute a
consulting services agreement with TRC Engineers,Inc.of Concord,California for construction management
and inspection services in an amount not to exceed $432,959.67 for the Grand Boulevard Initiative Phase III.
(Jeffrey Chou, Associate Engineer)
RECOMMENDATION
It is recommended that the City Council adopt a resolution accepting of $2,120,000 in grant funding
from the Metropolitan Transportation Commission Safe and Seamless Mobility Quick Strike Program
and approving Budget Amendment #22.024 and authorizing the City Manager to execute a consulting
services contract amendment with Mark Thomas &Company of Oakland,California,for an additional
$66,777,for an amount not to exceed $246,532 and authorizing a total contract budget of $271,205,and
to execute a consulting services agreement with TRC Engineers,Inc.of Concord,California for
construction management and inspection services in an amount not to exceed $432,959.67 and
authorizing a total contract budget of $476,255 for the Grand Boulevard Initiative Phase III from Arroyo
Drive to Kaiser Way (Project No. st1807).
BACKGROUND/DISCUSSION
The Complete Streets Improvements on El Camino Real (SR82)Project (between Arroyo Drive and Kaiser
Way)(the “Project”)is part of the Grand Boulevard Initiative Project,a collaboration of 19 cities,counties,
local and regional agencies united to improve the performance,safety,and aesthetics of El Camino Real.
Starting at the northern Daly City city limit (where it is named Mission Street)and ending near the Diridon
Caltrain Station in central San Jose (where it is named The Alameda).The initiative brings together local
agencies focused on improving the condition, use and performance of the street.
The South San Francisco portion of the Grand Boulevard Initiative Project starts at McClellan Drive and ends
at Chestnut Avenue,which is approximately one mile,where Phase I from Arroyo Drive to Chestnut Avenue
and Phase II from McClellan Drive to Kaiser Way have been recently constructed.The Project (Attachment 1
-Project Location Map)will construct the improvements between Arroyo Drive and Kaiser Way (Phase III of
the Grand Boulevard Initiative Project).
Grant Funding from the Metropolitan Transportation Commission Safe and Seamless Mobility Quick
Strike Program
In February 2021,Metropolitan Transportation Commission (MTC)staff notified City staff of an informal call
to projects for the MTC Safe and Seamless Mobility Quick Strike program.The program emphasizes
bicycle/pedestrian safety and mobility, connections to transit, and projects that advance equitable mobility.
In March 2021,because of the Quick Strike program’s eligibility and requirements,City staff nominated and
City of South San Francisco Printed on 11/5/2021Page 1 of 5
powered by Legistar™122
File #:21-744 Agenda Date:11/10/2021
Version:1 Item #:11.
In March 2021,because of the Quick Strike program’s eligibility and requirements,City staff nominated and
applied for two projects (this Project and the “East of 101 Transit Expansion Project”) to this program.
MTC staff evaluated all applications against the evaluation criteria established in the program guidelines and on
June 9,2021,MTC approved two City projects for their full requested amount (including this Project for a
request of $2,120,000).
The program funds received will help offset funding needs for construction of this Project.As part of the
approval,the City is also required to commit any necessary matching funds.The local match is 11.47%of the
grant funding amount.
City staff will continue to coordinate with MTC staff and follow the requirements outlined in the Safe and
Seamless Mobility Quick-Strick guidelines.
First Amendment with Mark Thomas & Company
On July 22,2020,the City Council approved a resolution authorizing the City Manager to enter into an
Agreement with Mark Thomas &Company for consultant services,in an amount not to exceed $179,775.The
scope of work for civil engineering,landscape architecture,environmental and other design services for the
Project was anticipated to be completed in June 2021.
Due to extended coordination time with Caltrans on a state highway (El Camino Real)and additional out-of-
scope design items,City staff is recommending amending the contract to extend the term of Agreement and to
include budget for the following scope and described below:
·Del Paso Path and Lighting -design path with stairs and ramps connect the new sidewalk on the west
side of El Camino Real with the exiting sidewalk on the east side of Del Paso Drive
·MTC Quick Strike Grant Application -coordination with the City to provide support in this grant
application
·Additional Revision to Caltrans Permit -coordination with Caltrans on additional and unforeseen
comments compared to the previous phases
·Design Support During Construction -provide the necessary design support thought the construction of
the project
The Project is anticipated to start construction in early 2022 with an estimated duration of six months of
construction.Mark Thomas &Company will provide design support during construction and City staff
recommends extending the term of Agreement to December 31, 2022.
Consulting Services Agreement with TRC Engineers, Inc.
On August 9,2021,City Staff issued a Request for Proposals (RFP)for consulting services for construction
management and inspection services.The RFP was posted on the City’s website and procurement website.The
City’s Standard Consulting Services Agreement was included in the RFP and the proposing consultants were
requested to include in their proposals any desired amendment or exception requested by their legal review or
insurance broker.
On September 3, 2021, City Staff received four (4) proposals.
City of South San Francisco Printed on 11/5/2021Page 2 of 5
powered by Legistar™123
File #:21-744 Agenda Date:11/10/2021
Version:1 Item #:11.
Members of the Engineering Division rated the proposals in the following areas:
1.Knowledge and Understanding -Demonstrated understanding of the RFP objectives and work
requirements.Identification of key issues,methods of approach,work plan,and experience with similar
projects related to type of services.
2.Management Approach and Staffing Plan -Qualifications of project staff (particularly key personnel
such as the Construction Manager and Resident Engineer),key personnel’s level of involvement in
performing related work,the team’s experience with local procedures and City outreach and the team’s
experience in maintaining schedule.
3.Qualifications of the Proposer Firm -Experience with similar projects.Technical experience in
performing work related to type of services;capabilities of developing innovative or advanced
techniques;strength and stability of the firm;technical experience and strength and stability of
proposed subconsultants; and demonstrated communications quality and success.
4.Manpower Hours Approach and Cost Effectiveness -Effective and efficient delivery of quality services
are demonstrated in relation to the manpower hours allocation.The allocation is reasonable and
appropriate.
The consultant team ratings are summarized below:
Consultant Rater-
1
Total
Score
Rater-
1 Firm
Rank
Rater-
2
Total
Score
Rater-
2 Firm
Rank
Rater-
3
Total
Score
Rater-
3 Firm
Rank
Average
Raters'
Firm
Ranking
Final
Proposal
Rankings
TRC Engineers, Inc. of
Concord, CA
89 1 95 1 97 1 1.00 1
Mark Thomas &
Company & Company of
San Jose, CA
89 1 90 2 89 3 2.00 2
Zoon Engineering, Inc.
of Emeryville, CA
88 3 87 3 94 2 2.67 3
Cumming Construction
Management Inc. of San
Francisco, CA
79 4 80 4 72 4 4.00 4
The evaluators determined that TRC Engineers,Inc.(Attachment 2 -TRC’s Company Profile)presented the
most responsive and qualified proposal for the Project.The TRC Engineers,Inc.team’s extensive relevant
qualifications include:
·Similar project experience on the City of South San Francisco’s El Camino Real Improvement Phase 1
& 2 and Sunshine Gardens Safety and Connectivity Improvements Projects; and
·Highly experienced in consulting,engineering,and construction management throughout the Bay Area;
City of South San Francisco Printed on 11/5/2021Page 3 of 5
powered by Legistar™124
File #:21-744 Agenda Date:11/10/2021
Version:1 Item #:11.
and
·Understanding of the challenges working along the state highway and Caltrans right-of-way and other
key challenges;
·Certified and trained inspector and materials tester (Summit Associates).
The TRC Engineers,Inc.team will provide the Project’s required construction management and inspections;
and pre and post construction services.TRC Engineers,Inc.had minor exemptions to the terms of the standard
agreement that was reviewed and agreed upon by the City Attorney’s office.
The Project is anticipated to start construction in early 2022 with an estimated duration of six months of
construction.TRC Engineers,Inc.will provide construction management and inspection services and city staff
recommends an agreement end date of December 31,2022,which should last through the Project’s final
acceptance.
FISCAL IMPACT
This project is already included in the City of South San Francisco’s fiscal year 2021-22 Capital Improvement
Program (projects st1807).
Budget Amendment #22.024 accepts $2,120,0000 in grant funding for the purpose of constructing the project.
The funding source is the STP-MTC Quick Strike Program.Sufficient local funds are available to match the
required 11.47% or $243,164 of the grant funding amount.
The following details the project budget for Mark Thomas & Company through design and construction:
Original Consultant Services Budget $ 179,775
+ Additional Out-of-Scope Design Items $ 34,371
+ Additional Design Support During Construction $ 32,406
+ Additional Contingency (10%)$ 24,653
Total Project Design Amended Budget $ 271,205
The contingency for Mark Thomas &Company be utilized for any unforeseen condition during construction,
City initiated change orders if the construction period is lengthened due to weather or differing site conditions.
The following details the project budget for TRC Engineers,Inc.for construction management and
inspections services:
Consultant Services Budget $ 432,959.67
+ Additional Contingency (10%)$ 43,295.33
Total Project Construction Management Budget $ 476,255.00
The contingency for TRC Engineers,Inc.will be utilized for any unforeseen conditions,such as additional
testing,City initiated change orders if the construction period is lengthened due to weather or differing site
conditions.Disadvantaged Business Enterprise (DBE)is required since federal funds are being utilized on this
project. The City has established a DBE contract goal to 9.0 percent.
There are sufficient funds allocated for both consultants proposed fees for the project required services
including One Bay Area Grant 2 and STP-MTC Quick Strike Program.
City of South San Francisco Printed on 11/5/2021Page 4 of 5
powered by Legistar™125
File #:21-744 Agenda Date:11/10/2021
Version:1 Item #:11.
The City will also be reimbursed for its project related expenditures after Caltrans approves its periodic
invoices with copies of its payments.The eligible project cost for Caltrans’reimbursement includes the
consultant fees and the City’s expenditures for the project administration,CEQA publications,public
notifications, permits and other direct costs.
RELATIONSHIP TO STRATEGIC PLAN
The Grand Boulevard Initiative Phase III from Arroyo Drive to Kaiser Way supports the City’s Strategic Plan to
improve Quality of Life;by accommodating more pedestrians and bicyclists making transit more viable;
providing mobility to those who cannot or choose not to drive;and improving safety by installing enhanced
pedestrian crossings, with corner curb bulbouts and median refuges.
CONCLUSION
Staff recommends approving the budget amendment to accept grant funding from the MTC Safe and Seamless
Mobility Quick Strike Program,amendment to the consulting services agreement with Mark Thomas &
Company to complete the Project through the end of construction and approving the consulting services
agreement with TRC Engineers,Inc.for construction management and inspections services for the Grand
Boulevard Initiative Phase III Project (Project No. st1807).
Attachments:
1.Project Location Map
2.TRC’s Company Profile
City of South San Francisco Printed on 11/5/2021Page 5 of 5
powered by Legistar™126
ATTACHMENT 1 – PROJECT LOCATION MAP 127
Attachment-2 Pg 1
ATTACHMENT 2 – TRC’s COMPANY PROFILE
Founded in 1969, TRC Engineers, Inc. (TRC) is a global consulting,
engineering, and construction management firm that provides technology-
enabled solutions to the infrastructure, power, oil and gas, and environmental markets. TRC serves
a broad range of public and private clients, steering complex projects from concept to completion
to help solve the toughest challenges. With a team of more than 6,000 employees in 150 offices
worldwide, TRC provides services throughout the project life cycle—planning, designing, and
building infrastructure for the communities in which we live and work.
TRC’s value to the City stems from our ability to bring the best people, practices, and lessons
learned from 52 years of experience providing engineering, construction management, source
inspection, environmental review and compliance, community engagement and outreach, and
funding administration and grant writing services for a wide range of infrastructure improvements.
Our professional staff has been responsible for some of the largest public works improvement
projects in California. We bring the right resources to provide the services and qualified staff to
meet the City’s needs and offer value-added services to be a true partner to the agency.
Additionally, our proposed staff are availability throughout the duration of this contract.
TRC has played a major role in the building of critical infrastructure, providing turnkey services
for highways and roadways, bridges, power, water and stormwater projects that meet stringent
contract requirements and tight timetables. From pre-construction through construction closeout,
TRC has the expertise to address your most critical infrastructure needs.
We focus on flexibility and appropriate response to changing circumstances over the life of a
contract. We have provided exemplary construction management services to public works
agencies through hundreds of contracts. Through this experience, we have gained an in-depth
understanding of how to manage and schedule resources to ensure that our clients are provided
with the right people, at the right time, with the right tools. TRC provides full services throughout
the project life cycle–the expertise to plan, design, and build the infrastructure for the communities
in which we live and work.
Experience with the City
For several years, TRC has had the opportunity to partner with the City on a variety of projects.
Through our previous on-call contracts, TRC has supported the City with construction management
services including resident engineering, inspection, office engineering, traffic signalization, and
utility coordination. TRC has delivered services for similar improvement projects with the City
such as:
• El Camino Real Grand Boulevard Phases 1 & 2.
• Sunshine Gardens Safety and Connectivity.
• Grand Avenue/Magnolia Avenue Intersection.
• Mission Road/Evergreen Road Intersection.
• Magnolia Senior Center/Siebecker Pre-School Parking Lot Project.
Our past work history with the City has allowed the TRC team to become familiar with City
128
Attachment-2 Pg 2
policies and procedures. Many of our proposed team members have worked directly with the City
on similar improvement projects.
Collectively, our proposed team has unparalleled experience and expertise in delivering a project
of this nature. We understand how to complete projects in compliance with the City’s objectives
and requirements. There is no learning curve with our team.
SUBCONSULTANT
To better meet your needs, we have supplemented our team with technical
experts from Summit Associates (Summit), a California-certified DBE firm
that has provided program, construction management and materials testing services on
infrastructure projects for over 20 years to agencies including Caltrans, San Francisco Bay Area
Transit District, Bay Area Toll Authority (BATA), Contra Costa County Public Works
Department, Contra Costa Transportation Authority, San Francisco Municipal Railway, San
Francisco Bay Area Transit District, San Francisco International Airport, Cities of San Francisco,
Concord, and San Mateo.
Summit is comprised of experienced specialists including material testers, QA inspectors, and
specialty inspectors, construction claims specialist, and construction schedulers. Their local
professionals and certified lab facilities are valuable resources to support the TRC Team in
delivering to successfully complete the third phase of the El Camino Real project.
129
GRAND BOULEVARD INITIATIVE
PHASE III (GBI 3)
NOVEMBER 10, 2021
1 130
Grand Boulevard Initiative Phase III
2
GRAND BOULEVARD INITIATIVE
131
Grand Boulevard Initiative Phase III
3
GBI 1 & 2 CONSTRUCTION
132
Grand Boulevard Initiative Phase III
4
GBI 3 (DESIGN SERVICES)
FIRST AMENDMENT
•Additional budget to cover items outside of the
original scope of work and to add design support
during construction
•Extend agreement date thru construction
133
Grand Boulevard Initiative Phase III
MTC SAFE AND SEAMLESS MOBILITY
QUICK-STRIKE PROGRAM
SSF Project Award Amount Required Local
Match (11.47%)
GBI 3 $2,212,000 $253,716
5 134
Grand Boulevard Initiative Phase III
6
1. TRC Engineers, Inc.
2. Mark Thomas & Company
3. Zoom Engineering, Inc.
4. Cumming Construction Management Inc.
GBI 3 (CONSTRUCTION SERVICES)
✓Project experience of the previous phases
✓Understanding the challenges of working
along Caltrans ROW
✓Certified and trained inspectors and
materials tester
135
Grand Boulevard Initiative Phase III
7
OBAG2
Grant
$1,000,000
SB1
Road Maintenance
& Rehab Fund
Grant Funding Government Funding
FUNDING
Quick Strike
Grant
$2,120,000
136
Grand Boulevard Initiative Phase III
8
✓Approve the Budget Amendment to accept the grant
funding from the MTC Safe and Seamless Mobility Quick
Strike Program
✓Approve the First Amendment with Mark Thomas &
Company
✓Approve the Consulting Services Agreement with TRC
Engineers, Inc.
RECOMMENDATION
137
MTC Safe and Seamless Mobility Quick-Strike program
QUESTIONS?
9 138
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-745 Agenda Date:11/10/2021
Version:1 Item #:11a.
Resolution authorizing the acceptance of $2,120,000 in grant funding from the Metropolitan Transportation
Commission Safe and Seamless Mobility Quick Strike Program and approving Budget Amendment #22.024
and authorizing the City Manager to execute a consulting services contract amendment with Mark Thomas &
Company of Oakland,California,for an additional $66,777,for an amount not to exceed $246,532 and
authorizing a total contract budget of $271,185,and to execute a consulting services agreement with TRC
Engineers,Inc.of Concord,California for construction management and inspection services in an amount not
to exceed $432,959.67 and authorizing a total contract budget of $476,255 for the Grand Boulevard Initiative
Phase III from Arroyo Drive to Kaiser Way (Project No. st1807).
WHEREAS,the City of South San Francisco (“City”)adopted 2021-22 Capital Improvement Program (“CIP”)
which includes Project No.st1807 for the Grand Boulevard Initiative Phase III from Arroyo Drive to Kaiser
Way (“Project”); and
WHEREAS,the Project proposes improvements including enhanced pedestrian crossings with corner curb bulb
-outs and median refuges,enhanced stop bars,expanded bus stop/waiting areas,and a new landscaped median;
and
WHEREAS,in March 2021,City staff submitted a grant application to the Metropolitan Transportation
Commission (“MTC”)Safe and Seamless Mobility Quick Strike Program for construction funding towards the
Project; and
WHEREAS,the grant application was reviewed and approved by MTC staff on June 9,2021 and the City of
South San Francisco was awarded a grant for $2,120,000 for the Project; and
WHEREAS, the grant funding will be used to augment the funding needs for construction of the Project; and
WHEREAS,sufficient local funds are available to match the required 11.47%or $243,164 of the grant funding
amount; and
City of South San Francisco Printed on 12/14/2021Page 1 of 3
powered by Legistar™139
File #:21-745 Agenda Date:11/10/2021
Version:1 Item #:11a.
WHEREAS,staff recommends acceptance of a grant in the amount of $2,120,000 for construction from the
MTC Safe and Seamless Mobility Quick Strike Program; and
WHEREAS,on July 22,2020,the City Council of the City of South San Francisco approved a consulting
services agreement (“Agreement”)with Mark Thomas &Company to provide consulting services in an amount
not to exceed $179,755, attached hereto and incorporated herein as part of Exhibit A; and
WHEREAS, the design of the Project was originally anticipated to be complete in June 2021; and
WHEREAS,due to extended coordination time with Caltrans and added scope of work to provide design
support during construction, the anticipated completion date is now December 2022; and
WHEREAS,the City will require additional out-of-scope design items and design support during construction;
and
WHEREAS,staff proposes the City execute a First Amendment to the Agreement with Mark Thomas &
Company for an additional amount of $66,777, for an amount not to exceed $246,532; and
WHEREAS,staff invited and received proposals on September 3,2021,from four (4)well-qualified and
success oriented professional consulting teams offering comprehensive construction management and
inspection services required for the Project; and
WHEREAS,the evaluators consisted of members from the City’s Public Works Principal Civil Engineer,City’s
Public Works Senior Civil Engineer, and City’s Public Works Associate Civil Engineer; and
WHEREAS,the selection of consulting services is not based on the lowest bidder,but on the firm’s expertise,
experience and references; and
WHEREAS,the evaluators have determined that TRC Engineers,Inc.and its team of sub-consultants have
presented the most responsive and qualified proposal for the City’s project; and
WHEREAS,TRC Engineers,Inc.and its team of consultants have extensive relevant experience,including
construction management of similar streetscape projects for the City; and
WHEREAS,the City’s standard consulting services agreement,attached hereto and incorporated herein as
Exhibit B,has been reviewed and accepted by TRC Engineers,Inc.with regards to the terms and conditions
therein; and
WHEREAS,there are sufficient funds allocated in the City’s FY 2021-22 CIP for both consultants’proposed
fees for the Project’s required services.
NOW THEREFORE BE IT RESOLVED,that the City Council of South San Francisco hereby takes the
following actions:
1.Accepts the $2,120,000 grant from the MTC Safe and Seamless Mobility Quick Strike Program and
approves Budget Amendment #22.024.
City of South San Francisco Printed on 12/14/2021Page 2 of 3
powered by Legistar™140
File #:21-745 Agenda Date:11/10/2021
Version:1 Item #:11a.
2.Approves the First Amendment to the Agreement with Mark Thomas &Company,attached hereto and
incorporated herein as Exhibit A,extending the term to December 31,2022 and increasing the not to
exceed amount by $66,777,for an amount not to exceed $246,532 and authorizing a total contract
budget of $271,185.
3.Authorizes the City Manager to execute the First Amendment with Mark Thomas &Company and to
make any revisions,amendments,or modifications deemed necessary to carry out the intent of this
resolution,which do not materially alter or increase the City’s obligations thereunder,subject to
approval as to form by the City Attorney.
4.Approves the consulting service agreement with TRC Engineers,Inc.attached herewith as Exhibit B,
for construction management and inspection consulting services to in an amount not to exceed
$432,959.67 and authorizing a total contract budget of $476,255 conditioned on TRC Engineers,Inc.
timely execution of the consultant services agreement and submission of all required documents,
including but not limited to,certificates of insurance and endorsements in accordance with the Project
documents.
5.Authorizes the City Manager to execute the consulting services agreement with TRC Engineers,Inc.,
and to make any revisions,amendments,or modifications deemed necessary to carry out the intent of
this resolution,which do not materially alter or increase the City’s obligations thereunder,subject to
approval as to form by the City Attorney.
BE IT FURTHER RESOLVED that the City Council of the City of South San Francisco authorizes the Finance
Department to establish the Project Budget consistent with the information contained in the staff report.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute the agreements and any
other related documents on behalf of the City upon timely execution by Mark Thomas &Company and TRC
Engineers, Inc. signed contracts and all other documents, subject to approval by the City Attorney.
BE IT FURTHER RESOLVED that the City Council of the City of South San Francisco authorizes the City
Manager to take any other related actions consistent with the intention of the Staff Report and Resolution.
*****
City of South San Francisco Printed on 12/14/2021Page 3 of 3
powered by Legistar™141
FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF SOUTH
SAN FRANCISCO AND MARK THOMAS & COMPANY
THIS FIRST AMENDMENT TO THE CONSULTING SERVICES AGREEMENT is made at
South San Francisco, California, as of November 10, 2021 by and between THE CITY OF
SOUTH SAN FRANCISCO (“City”), a municipal corporation, and MARK THOMAS &
COMPANY (“Consultant”), (sometimes referred together as the “Parties”) who agree as follows:
RECITALS
A. On July 22nd, 2020, City and Consultant entered that certain Consulting Services
Agreement (“Agreement”) whereby Consultant agreed to provide preliminary engineering,
environmental and final design for the Grand Boulevard Initiative Phase III project. A true and
correct copy of the Agreement and its exhibits is attached as Exhibit A.
B. City and Consultant now desire to amend the Agreement.
NOW, THEREFORE, for and in consideration of the promises and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and
Consultant hereby agree as follows:
1. All terms which are defined in the Agreement shall have the same meaning when used in this
Amendment, unless specifically provided herein to the contrary.
2. Section 1: Term. The June 30th, 2021 end date for the term of services identified in
Section 1 of the Agreement is hereby replaced with December 31st, 2022.
3. Section 2: Compensation. Section 2 of the Agreement shall be amended such that the
City agrees to pay Consultant an additional sum not to exceed $246,532, with the
understanding that up to $171,697.85 has already been paid to Consultant.
Consultant agrees this is the City’s total contribution for payment of costs under the
Agreement unless additional payments are authorized in accordance with the terms of the
Agreement and said terms of payment are mutually agreed to by and between the parties in
writing.
4. Scope of Services. The additional Scope of services is attached as Exhibit B to this
Amendment.
All other terms, conditions and provisions in the Agreement remain in full force and effect. If
there is a conflict between the terms of this Amendment and the Agreement, the terms of the
Agreement will control unless specifically modified by this Amendment.
[SIGNATURES ON THE FOLLOWING PAGE]
142
Dated:
CITY OF SOUTH SAN FRANCISCO CONSULTANT
By: By:
Mike Futrell, City Manager Sasha Danksy
Principal, Vice President
Mark Thomas & Company
Approved as to Form:
By:
City Attorney
143
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 1 of 29
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF SOUTH SAN FRANCISCO AND
TRC ENGINEERS, INC.
THIS AGREEMENT for consulting services (“Agreement”) is made by and between the City of
South San Francisco (“City”) and TRC Engineers, Inc. (“Consultant”) (together sometimes referred to as the
“Parties”) as of _____________, 2021 (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. The approved
Consultant’s Cost Proposal is attached as Exhibit B and incorporated herein. In the event of a conflict in
or inconsistency between the terms of this Agreement and Exhibit A, or Exhibit B, the Agreement shall
prevail.
1.1 Performance Period. The term of this Agreement shall begin on the Effective Date and
shall end on December 30th, 2022, 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.
Any recommendation for an agreement award is not binding on the City until the
Agreement is fully executed and approved by the City. 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 manner consistent with the standards of quality and care
normally observed by a person practicing in Consultant's profession.
1.3 Assignment 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 Sections 1.1 and 1.2 above and to satisfy Consultant’s obligations hereunder.
Section 2. COMPENSATION. The method of payment for this Agreement will be based on actual
cost plus a fixed fee. The total amount payable by the City including the fixed fee identified in Section 2.2
shall not exceed $432,959.67.
The payments specified herein 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.
144
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 2 of 29
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.
2.1 Actual Costs. The City will reimburse Consultant for actual costs (including labor costs,
employee benefits, travel, equipment rental costs, overhead and other direct costs)
incurred by Consultant in performance of the work. Consultant will not be reimbursed for
actual costs that exceed the estimated wage rates, employee benefits, travel, equipment
rental, overhead, and other estimated costs set forth in the approved Consultant’s Cost
Proposal (Exhibit B), unless additional reimbursement is provided for by Agreement
amendment pursuant to Section 8.3. In no event, will Consultant be reimbursed for
overhead costs at a rate that exceeds the City’s approved overhead rate set forth in the
Cost Proposal (Exhibit B). Reimbursement for transportation and subsistence costs shall
not exceed the rates specified in the approved Cost Proposal (Exhibit B). In the event,
that the City determines that a change to the work from that specified in the Cost Proposal
(Exhibit B) and Agreement is required, the Agreement time or actual costs reimbursable
by the City shall be adjusted by Agreement amendment, pursuant to Section 8.3 to
accommodate the changed work. When milestone cost estimates are included in the
approved Cost Proposal (Exhibit B), Consultant shall obtain prior written approval for a
revised milestone cost estimate from the Contract Administrator before exceeding such
cost estimate.
2.2 Fixed Fee. In addition to the allowable incurred costs, the City hereby agrees to pay
Consultant a fixed fee not to exceed $35,255.79. The fixed fee is nonadjustable for the
term of the Agreement, except in the event of a significant change in the scope of work
and such adjustment is made by Agreement amendment pursuant to Section 8.3.
2.3 Invoices. Invoices shall be submitted, in duplicate, no later than thirty (30) calendar days
after the performance of work for which Consultant is billing. Invoices shall detail the work
performed on each milestone and each project as applicable. Invoices shall follow the
format stipulated for the Cost Proposal (Exhibit B) and shall reference this Agreement
number and project title. Invoices shall be mailed to the City’s Contract Administrator at
the following address:
Engineering
City of South San Francisco
315 Maple Ave
South San Francisco, CA 94080
2.4 Payment. Consultant will be reimbursed promptly according to California Regulations
upon receipt by the City’s Contract Administrator of itemized invoices in duplicate. City
145
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 3 of 29
shall make payments, based on invoices received, for services satisfactorily performed,
and for authorized reimbursable costs incurred. Progress payments will be made monthly
in arrears based on services provided and allowable incurred costs. A pro rata portion of
Consultant’s fixed fee will be included in the monthly progress payments. If Consultant
fails to submit the required deliverable items according to the schedule set forth in Scope
of Work (Exhibit A), the City shall have the right to delay payment or terminate this
Agreement.
2.5 Final Payment. Final invoice must contain the final cost and all credits due to the City,
including any equipment purchased under Section 10.21. The final invoice should be
submitted within sixty (60) calendar days after completion of Consultant’s work.
2.6 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 amendment pursuant to Section 8.3.
2.7 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the compensation schedule attached hereto and incorporated
herein as Exhibit B. Salary increases will be reimbursable if the new salary is within the
salary range identified in the approved Cost Proposal and is approved by the City’s
Contract Administrator. For personnel subject to prevailing wage rates as described in the
California Labor Code, all salary increases, which are the direct result of changes in the
prevailing wage rates are reimbursable.
2.8 Payment of Taxes, Tax Withholding. Consultant is solely responsible for the payment of
employment taxes incurred under this Agreement and any similar federal or state taxes.
To be exempt from tax withholding, Consultant must provide City with a valid California
Franchise Tax Board form 590 (“Form 590”), as may be amended and such Form 590
shall be attached hereto and incorporated herein as Exhibit D. Unless Consultant
provides City with a valid Form 590 or other valid, written evidence of an exemption or
waiver from withholding, City may withhold California taxes from payments to Consultant
as required by law. Consultant shall obtain and maintain on file for three (3) years after the
termination of this Agreement, Form 590s (or other written evidence of exemptions or
waivers) from all subcontractors. Consultant accepts sole responsibility for withholding
taxes from any non-California resident subcontractor and shall submit written
documentation of compliance with Consultant’s withholding duty to City upon request.
2.9 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
146
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 4 of 29
of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets in order to verify costs incurred to that date.
2.10 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. No payment will be made prior to approval
of any work, nor for any work performed prior to approval of this Agreement.
2.11 Prevailing Wage. No Consultant or Subconsultant may be awarded an Agreement
containing public work elements unless registered with the Department of Industrial
Relations (DIR) pursuant to Labor Code Section 1725.5. Registration with DIR must be
maintained throughout the entire term of this Agreement, including any subsequent
amendments. The Consultant shall comply with all of the applicable provisions of the
California Labor Code requiring the payment of prevailing wages. The General Prevailing
Wage Rate Determinations applicable to work under this Agreement are available and on
file with the Department of Transportation's Regional/District Labor Compliance Officer.
These wage rates are made a specific part of this Agreement by reference pursuant to
Labor Code Section 1773.2 and will be applicable to work performed at a construction
project site. Prevailing wages will be applicable to all inspection work performed at City
construction sites, at City facilities and at off-site locations that are set up by the
construction contractor or one of its subcontractors solely and specifically to serve City
projects. Prevailing wage requirements do not apply to inspection work performed at the
facilities of vendors and commercial materials suppliers that provide goods and services to
the general public.
Where applicable, the wages to be paid for a day's work to all classes of laborers,
workmen, or mechanics on the work contemplated by this Agreement, shall be not less
than the prevailing rate for a day’s work in the same trade or occupation in the locality
within the state where the work hereby contemplates to be performed as determined by
the Director of Industrial Relations pursuant to the Director’s authority under Labor Code
Section 1770, et seq. Each laborer, worker or mechanic employed by Consultant or by
any subcontractor shall receive the wages herein provided for. The Consultant shall pay
two hundred dollars ($200), or whatever amount may be set by Labor Code Section 1775,
as may be amended, per day penalty for each worker paid less than prevailing rate of per
diem wages. The difference between the prevailing rate of per diem wages and the wage
paid to each worker shall be paid by the Consultant to each worker.
An error on the part of an awarding body does not relieve the Consultant from
responsibility for payment of the prevailing rate of per diem wages and penalties pursuant
to Labor Code Sections 1770-1775. The City will not recognize any claim for additional
compensation because of the payment by the Consultant for any wage rate in excess of
prevailing wage rate set forth. The possibility of wage increases is one of the elements to
be considered by the Consultant.
2.11.1 Posting of Schedule of Prevailing Wage Rates and Deductions. If the
schedule of prevailing wage rates is not attached hereto pursuant to Labor Code Section
1773.2, the Consultant shall post at appropriate conspicuous points at the site of the
147
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 5 of 29
project a schedule showing all determined prevailing wage rates for the various classes of
laborers and mechanics to be engaged in work on the project under this contract and all
deductions, if any, required by law to be made from unpaid wages actually earned by the
laborers and mechanics so engaged.
2.11.2 Payroll Records. Each Consultant and subcontractor shall keep an accurate
payroll records and supporting documents as mandated by Labor Code Section 1776 and
as defined in 8 CCR Section 16000, showing the name, address, social security number,
work classification, straight time and overtime hours worked each day and week, and the
actual per diem wages paid to each journeyman, apprentice, worker, or other employee
employed by the Consultant or Subconsultant in connection with the public work. Such
records shall be certified and submitted weekly as required by Labor Code Section 1776.
Each payroll record shall contain or be verified by a written declaration that it is made
under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct.
b. The employer has complied with the requirements of Labor Code Sections
1771, 1811, and 1815 for any work performed by his or her employees on
the public works project.
The payroll records shall be certified as correct by the Consultant under penalty of perjury.
The payroll records and all supporting documents shall be made available for inspection
and copying by City representatives at all reasonable hours at the principal office of the
Consultant. The Consultant shall provide copies of certified payrolls or permit inspection of
its records as follows:
1. A certified copy of an employee's payroll record shall be made available
for inspection or furnished to the employee or the employee's authorized
representative on request.
2. A certified copy of all payroll records enumerated in paragraph (1) above,
shall be made available for inspection or furnished upon request to a
representative of City, the Division of Labor Standards Enforcement and
the Division of Apprenticeship Standards of the Department of Industrial
Relations. Certified payrolls submitted to City, the Division of Labor
Standards Enforcement and the Division of Apprenticeship Standards
shall not be altered or obliterated by the Consultant.
3. The public shall not be given access to certified payroll records by the
Consultant. The Consultant is required to forward any requests for
certified payrolls to the City Contract Administrator by both email and
regular mail on the business day following receipt of the request.
. Each Consultant shall submit a certified copy of the records enumerated in paragraph (1)
above, to the entity that requested the records within ten (10) calendar days after receipt of
a written request.
148
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 6 of 29
Any copy of records made available for inspection as copies and furnished upon request to
the public or any public agency by City shall be marked or obliterated in such a manner as
to prevent disclosure of each individual's name, address, and social security number. The
name and address of the Consultant or Subconsultant performing the work shall not be
marked or obliterated.
The Consultant shall inform City of the location of the records enumerated under
paragraph (1) above, including the street address, city and county, and shall, within five (5)
working days, provide a notice of a change of location and address.
The Consultant or Subconsultant shall have ten (10) calendar days in which to comply
subsequent to receipt of written notice requesting the records enumerated in paragraph (1)
above. In the event the Consultant or Subconsultant fails to comply within the ten (10) day
period, he or she shall, as a penalty to City, forfeit one hundred dollars ($100) for each
calendar day, or portion thereof, for each worker, until strict compliance is effectuated.
Such penalties shall be withheld by City from payments then due. Consultant is not
subject to a penalty assessment pursuant to this section due to the failure of a
Subconsultant to comply with this section.
When prevailing wage rates apply, the Consultant is responsible for verifying compliance
with certified payroll requirements. Invoice payment will not be made until the invoice is
approved by the City Contract Administrator.
2.11.3 Penalty. The Consultant and any of its Subconsultants shall comply with Labor
Code Sections 1774 and 1775. Pursuant to Labor Code Section 1775, the Consultant and
any Subconsultant shall forfeit to the City a penalty of not more than two hundred dollars
($200) for each calendar day, or portion thereof, for each worker paid less than the
prevailing rates as determined by the Director of DIR for the work or craft in which the
worker is employed for any public work done under the Agreement by the Consultant or by
its Subconsultant in violation of the requirements of the Labor Code and in particular,
Labor Code Sections 1770 to 1780, inclusive.
The amount of this forfeiture shall be determined by the Labor Commissioner and shall be
based on consideration of mistake, inadvertence, or neglect of the Consultant or
Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record
of the Consultant or Subconsultant in meeting their respective prevailing wage obligations,
or the willful failure by the Consultant or Subconsultant to pay the correct rates of
prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of
prevailing wages is not excusable if the Consultant or Subconsultant had knowledge of the
obligations under the Labor Code. The Consultant is responsible for paying the appropriate
rate, including any escalations that take place during the term of the Agreement.
In addition to the penalty and pursuant to Labor Code Section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar
day or portion thereof for which each worker was paid less than the prevailing wage rate
shall be paid to each worker by the Consultant or Subconsultant.
149
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 7 of 29
If a worker employed by a Subconsultant on a public works project is not paid the general
prevailing per diem wages by the Subconsultant, the prime Consultant of the project is not
liable for the penalties described above unless the prime Consultant had knowledge of that
failure of the Subconsultant to pay the specified prevailing rate of wages to those workers
or unless the prime Consultant fails to comply with all of the following requirements:
a. The Agreement executed between the Consultant and the Subconsultant
for the performance of work on public works projects shall include a copy
of the requirements in Labor Code Sections 1771, 1775, 1776, 1777.5,
1813, and 1815.
b. The Consultant shall monitor the payment of the specified general
prevailing rate of per diem wages by the Subconsultant to the employees
by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified
prevailing rate of wages to the Subconsultant’s workers, the Consultant
shall diligently take corrective action to halt or rectify the failure, including
but not limited to, retaining sufficient funds due the Subconsultant for work
performed on the public works project.
d. Prior to making final payment to the Subconsultant for work performed on
the public works project, the Consultant shall obtain an affidavit signed
under penalty of perjury from the Subconsultant that the Subconsultant
had paid the specified general prevailing rate of per diem wages to the
Subconsultant’s employees on the public works project and any amounts
due pursuant to Labor Code §1813.
Pursuant to Labor Code Section 1775, City shall notify the Consultant on a public works
project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has
failed to pay workers the general prevailing rate of per diem wages.
If City determines that employees of a Subconsultant were not paid the general prevailing
rate of per diem wages and if City did not retain sufficient money under the Agreement to
pay those employees the balance of wages owed under the general prevailing rate of per
diem wages, the Consultant shall withhold an amount of moneys due the Subconsultant
sufficient to pay those employees the general prevailing rate of per diem wages if
requested by City.
2.11.4 Hours of Labor. Eight (8) hours labor constitutes a legal day's work. The
Consultant shall forfeit, as a penalty to the City, twenty-five dollars ($25) for each worker
employed in the execution of the Agreement by the Consultant or any of its Subconsultants
for each calendar day during which such worker is required or permitted to work more than
eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in
violation of the provisions of the Labor Code, and in particular sections 1810 to 1815
thereof, inclusive, except that work performed by employees in excess of eight (8) hours
150
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 8 of 29
per day, and forty (40) hours during any one week, shall be permitted upon compensation
for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week,
at not less than one and one half (1.5) times the basic rate of pay, as provided in section
1815.
2.11.5 Employment of Apprentices. Where either the prime Agreement or the
subagreement exceeds thirty thousand dollars ($30,000), the Consultant and any
subconsultants under him or her shall comply with all applicable requirements of Labor
Code Sections 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
Consultants and subconsultants are required to comply with all Labor Code requirements
regarding the employment of apprentices, including mandatory ratios of journey level to
apprentice workers. The Consultant is responsible for all subconsultants’ compliance with
these requirements. Penalties are specified in Labor Code Section 1777.7.
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
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 C, 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).
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) 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
151
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 9 of 29
Labor Code shall be solely in the discretion of the Contract Administrator (as defined in
Section 10.9). 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 requirements. 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 there from, 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 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 City-designated 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’ negligent errors and omissions. Any deductible or self-insured
152
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 10 of 29
retention shall not exceed ONE HUNDRED FIFTY THOUSAND DOLLARS
$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 (5) 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 (5) 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 insurance certificate 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 coverage. Prior to beginning any work under this Agreement,
Consultant shall furnish City with certificates of insurance and copies of all
endorsements attached to those policies. All certificates of insurance shall show
the signature of a person authorized by that insurer to bind coverage on its behalf.
If the City does not receive the required insurance documents prior to the
Consultant beginning work, it shall not waive the Consultant’s obligation to provide
them. The City reserves the right to require complete copies of redacted
Declaration Pages of the insurance policies at any time.
4.4.3 Notice of Reduction in or Cancellation of Coverage. 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, 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.
153
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 11 of 29
4.4.4 Additional insured; primary insurance. With the exception of Workers
Compensation and Professional Liability policies, City and its officers, employees,
and 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.
Further, if the Consultant’s insurance policy includes a self-insured retention that
must be paid by a named insured as a precondition of the insurer’s liability, or
which has the effect of providing that payments of the self-insured retention by
others, including additional insureds or insurers do not serve to satisfy the self-
insured retention, such provisions must be modified by special endorsement so as
to not apply to the additional insured coverage required by this agreement so as to
not prevent any of the parties to this agreement from satisfying or paying the self-
insured retention required to be paid as a precondition to the insurer’s liability.
Additionally, the certificates of insurance must note whether the policy does or
does not include any self-insured retention and also must disclose the deductible.
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
subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
4.4.7 Wasting Policy. No insurance policy required by Section 4 shall include a
“wasting” policy limit.
154
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 12 of 29
4.4.8 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:
a. 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
b. Terminate this Agreement.
Section 5. Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES.
5.1 Separate Professional Liability (PL) Indemnity. As respect to the performance of
professional services, Consultant agrees to indemnify and hold harmless City, its officers,
employees, authorized agents/volunteers (collectively, the “City Indemnitees”), from and
against any damages, losses, liabilities, judgments, settlements, expenses, and costs
(including reasonable and necessary attorneys' fees, costs and expenses) to the extent
caused by Consultant's negligent acts, errors or omissions or willful misconduct in the
performance of services under this Agreement and anyone for whom Consultant is legally
liable. Consultant has no obligation to pay for any of City Indemnitees defense related cost
prior to a final determination of liability, or to pay any amount that exceeds Consultant’s
finally determined percentage of liability based upon the comparative fault of Consultant.
5.2 Separate Other than Professional Liability (OPL) Indemnity. As respect to its
operations, other than the performance of professional services, Consultant agrees to
indemnify, hold harmless and defend City with counsel reasonably approved by City, the
City Indemnitees, from and against any damages, liabilities, judgments, settlements, costs,
claims, demands, actions, suits, losses, and expenses (including reasonable and
necessary attorneys' fees, costs and expenses) arising out of the death or bodily injury to
any person or destruction or damage to any property, to the extent caused by Consultant's
negligent acts, errors or omissions or willful misconduct in the performance of services
under this Agreement and anyone for whom Consultant is legally liable.
5.3 Common PL & OPL Indemnity Provisions. Consultant’s obligations under this Section 5
shall not apply when (1) the injury, loss of life, damage to property, or violation of law
arises from the 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
155
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 13 of 29
of law. It is understood that the duty of Consultant to indemnify and hold harmless under
Section 5.2 includes the duty to defend as set forth in Section 2778 of the California Civil
Code; however, in no event shall the cost to defend charged to Consultant exceed
Consultant’s proportionate percentage of fault. 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.
5.4 Insurance Not in Place of Indemnity. 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.
5.5 PERS Liability. 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.
5.6 Third Party Claims. With respect to third party claims against the Consultant, the
Consultant waives any and all rights of any type of express or implied indemnity against
the Indemnitees.
5.7 To the fullest extent permitted under applicable law and without relieving Consultant of
the foregoing indemnification obligations, neither Party shall be liable to the other for
special, indirect, consequential, punitive, or exemplary damages. This waiver includes,
but is not limited to, loss of profit, loss of business, loss of income, loss of reputation or
any other consequential damage that either Party may incur from any cause of action
including negligence, strict liability, contract breach, and strict or implied breach of
warranty.
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
156
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 14 of 29
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 or 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 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.
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, including from City, of what-so-ever 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.
157
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 15 of 29
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 not
less than thirty (30) calendar days written notification to Consultant(delivered by certified
mail, return receipt requested). Upon termination, City shall be entitled to all work,
including but not limited to, reports, investigations, appraisals, inventories, studies,
analyses, drawings and data estimates performed to that date, whether completed or not,
and in accordance with Section 9.1.
Consultant may cancel this Agreement for cause 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 date of notice of termination as provided for in this Agreement; City,
however, may condition payment of such compensation upon Consultant delivering to City
all materials described in Section 9.1.
City may temporarily suspend this Agreement, at no additional cost to City, provided that
Consultant is given written notice (delivered by certified mail, return receipt requested) of
temporary suspension. If City gives such notice of temporary suspension, Consultant shall
immediately suspend its activities under this Agreement. A temporary suspension may be
issued concurrent with the notice of termination provided for in this section.
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 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 assign or subcontract any
portion of the performance contemplated and provided for herein, other than to the
158
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 16 of 29
subcontractors noted in the proposal, without prior written approval of the Contract
Administrator.
8.4.1 Subcontracting
a. Nothing contained in this Agreement or otherwise, shall create any
contractual relationship between City and any subconsultant(s), and no
subcontract shall relieve Consultant of its responsibilities and obligations
hereunder. Consultant agrees to be as fully responsible to City for the acts and
omissions of its subconsultant(s) and of persons either directly or indirectly
employed by any of them as it is for the acts and omissions of persons directly
employed by Consultant. Consultant’s obligation to pay its subconsultant(s) is
an independent obligation from City’s obligation to make payments to the
Consultant.
b. Consultant shall perform the work contemplated with resources available
within its organization and no portion of the work pertinent to this contract shall
be subcontracted without written authorization by City’s Contract Administrator,
except that, which is expressly identified in the approved Scope of Work.
c. Consultant shall pay its subconsultants within fifteen (15) calendar days
from receipt of each payment made to Consultant by City.
d. Any subcontract entered into as a result of this contract shall contain all
the provisions in this contract to be applicable to subconsultants unless
otherwise noted.
e. Any substitution of subconsultant(s) must be approved in writing by City’s
Contract Administrator in advance of assigning work to the substitute
subconsultant(s).
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 by Consultant. Notwithstanding any provisions of this Agreement,
Consultant shall not be relieved of liability to City for damages sustained by City by virtue
of any breach of this Agreement by Consultant, and City may withhold any payments due
to Consultant until such time as the exact amount of damages, if any, due City from
Consultant is determined. If Consultant materially breaches any of the terms of this
Agreement and Consultant has not initiated services to cure the breach or submitted a
cure plan reasonably approved by City within five (5) business days of receipt of written
notice from City, City’s remedies shall include, but not be limited to, the following:
8.6.1 Immediately terminate the Agreement;
159
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 17 of 29
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. Notwithstanding the above, the
documents and other materials are not intended nor shall they be construed to include
Consultant’s pre-existing intellectual property secured, developed, written, or produced by
Consultant prior to the execution of this Agreement or developed concurrently with this
Agreement but not specifically for this Agreement; Consultant shall retain all right, title and
interest in any such pre-existing intellectual property. 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.
160
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 18 of 29
9.3.1 Retention of Records/Audit For the purpose of determining compliance with
Public Contract Code 10115, et seq. and Title 21, California Code of Regulations,
Chapter 21, Section 2500 et seq., when applicable and other matters connected
with the performance of the contract pursuant to Government Code 8546.7;
Consultant, subconsultants, and City shall maintain and make available for
inspection all books, documents, papers, accounting records, Independent CPA
Audited Indirect Cost Rate workpapers and other evidence pertaining to the
performance of the Agreement, including but not limited to, the costs of
administering the Agreement. All parties, including the Consultant’s Independent
CPA, shall make such materials available at their respective offices at all
reasonable times during the term of the Agreement and for three years from the
date of final payment under the Agreement. The state, State Auditor, Caltrans
Auditor, City, FHWA, or any duly authorized representative of the Federal
Government having jurisdiction under Federal laws or regulations (including the
basis of Federal funding in whole or in part) shall have access to any books,
records, and documents of Consultant, Subconsultants, and the Consultant’s
Independent certified public accountants (CPA) work papers that are pertinent to
the Agreement and indirect cost rates (ICR) for audit, examinations, workpaper
review, excerpts, and transactions, and copies thereof shall be furnished if
requested without limitation. Subcontracts in excess of $25,000 shall contain the
provision.
9.3.2 Audit Review Procedures.
a. Any dispute concerning a question of fact arising under an interim or post audit
of this Agreement that is not disposed of by agreement, shall be reviewed by
City’s Finance Director.
b. Not later than 30 days after issuance of the final audit report, Consultant may
request a review by City’s Finance Director of unresolved audit issues. The
request for review will be submitted in writing.
c. Excepting for City’s non-payment of undisputed invoices, Neither the pendency
of a dispute nor its consideration by City will excuse Consultant from full and
timely performance, in accordance with the terms of this contract.
d. Consultant and subconsultant Agreements, including cost proposals and Indirect
Cost Rates (ICR), may be subject to audits or reviews such as, but not limited
to, an Agreement audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit
work paper review. If selected for audit or review, the Agreement, cost proposal
and ICR and related work papers, if applicable, will be reviewed to verify
compliance with 48 CFR Part 31 and other related laws and regulations. In the
instances of a CPA ICR audit work paper review it is Consultant’s responsibility
to ensure federal, City, or local government officials are allowed full access to
the CPA’s work papers including making copies as necessary. The Agreement,
cost proposal, and ICR shall be adjusted by Consultant and approved by City
Contract Administrator to conform to the audit or review recommendations.
Consultant agrees that individual terms of costs identified in the audit report
161
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 19 of 29
shall be incorporated into the Agreement by this reference if directed by City at
its sole discretion. Refusal by Consultant to incorporate audit or review
recommendations, or to ensure that the federal, City or local governments have
access to CPA work papers, will be considered a breach of Agreement terms
and cause for termination of the Agreement and disallowance of prior
reimbursed costs.
e. Consultant’s cost proposal may be subject to a CPA ICR Audit Work Paper
Review and/or audit by Caltrans Audits and Investigation (A&I). Caltrans A&I, at
its sole discretion, may review and/or audit and approve the CPA ICR
documentation. The compensation schedule shall be adjusted by the
Consultant and approved by the City Contract Administrator to conform to the
Work Paper Review recommendations included in the management letter or
audit recommendations included in the audit report. Refusal by the Consultant to
incorporate the Work Paper Review recommendations included in the
management letter or audit recommendations included in the audit report will be
considered a breach of the Agreement terms and cause for termination of the
Agreement and disallowance of prior reimbursed costs.
1. During Caltrans A&I’s review of the ICR audit work papers created by the
Consultant’s independent CPA, Caltrans A&I will work with the CPA and/or
Consultant toward a resolution of issues that arise during the review. Each party
agrees to use its best efforts to resolve any audit disputes in a timely manner. If
Caltrans A&I identifies significant issues during the review and is unable to issue
a cognizant approval letter, City will reimburse the Consultant at an accepted
ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR
Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost
Accounting Standards), if applicable; in accordance with procedures and
guidelines of the American Association of State Highways and Transportation
Officials (AASHTO) Audit Guide; and other applicable procedures and
guidelines}is received and approved by A&I.
Accepted rates will be as follows:
i. If the proposed rate is less than one hundred fifty percent
(150%) - the accepted rate reimbursed will be ninety percent
(90%) of the proposed rate.
ii. If the proposed rate is between one hundred fifty percent
(150%) and two hundred percent (200%) - the accepted rate
will be eighty-five percent (85%) of the proposed rate.
iii. If the proposed rate is greater than two hundred percent
(200%) - the accepted rate will be seventy-five percent (75%)
of the proposed rate.
162
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 20 of 29
2. If Caltrans A&I is unable to issue a cognizant letter per paragraph E.1.
above, Caltrans A&I may require Consultant to submit a revised independent
CPA-audited ICR and audit report within three (3) months of the effective date of
the management letter. Caltrans A&I will then have up to six (6) months to
review the Consultant’s and/or the independent CPA’s revisions.
3. If the Consultant fails to comply with the provisions of this paragraph E, or
if Caltrans A&I is still unable to issue a cognizant approval letter after the revised
independent CPA audited ICR is submitted, overhead cost reimbursement will
be limited to the accepted ICR that was established upon initial rejection of the
ICR and set forth in paragraph E.1. above for all rendered services. In this
event, this accepted ICR will become the actual and final ICR for reimbursement
purposes under this Agreement.
4. Consultant may submit to City final invoice only when all of the following
items have occurred: (1) Caltrans A&I accepts or adjusts the original or revised
independent CPA audited ICR; (2) all work under this Agreement has been
completed to the satisfaction of City; and, (3) Caltrans A&I has issued its final
ICR review letter. The Consultant must submit its final invoice to City no later
than sixty (60) calendar days after occurrence of the last of these items. The
accepted ICR will apply to this Agreement and all other agreements executed
between City and the Consultant, either as a prime or subconsultant, with the
same fiscal period ICR.
9.4 Records Submitted in Response to an Invitation to Bid or Request for Proposals. All
responses to a Request for Proposals (RFP) or invitation to bid issued by the City become
the exclusive property of the City. At such time as the City selects a bid, all proposals
received become a matter of public record, and shall be regarded as public records, with
the exception of those elements in each proposal that are defined by Consultant and
plainly marked as “Confidential,” "Business Secret" or “Trade Secret."
The City shall not be liable or in any way responsible for the disclosure of any such
proposal or portions thereof, if Consultant has not plainly marked it as a "Trade Secret" or
"Business Secret," or if disclosure is required under the Public Records Act.
Although the California Public Records Act recognizes that certain confidential trade secret
information may be protected from disclosure, the City may not be in a position to establish
that the information that a prospective bidder submits is a trade secret. If a request is
made for information marked "Trade Secret" or "Business Secret," and the requester takes
legal action seeking release of the materials it believes does not constitute trade secret
information, by submitting a proposal, Consultant agrees to indemnify, defend and hold
harmless the City, its agents and employees, from any judgment, fines, penalties, and
award of attorneys fees awarded against the City in favor of the party requesting the
information, and any and all costs connected with that defense. This obligation to
indemnify survives the City's award of the contract. Consultant agrees that this
indemnification survives as long as the trade secret information is in the City's possession,
which includes a minimum retention period for such documents.
163
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 21 of 29
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including arbitration or
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 Northern 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 Assigns. 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 Recycled 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. During the term of this Agreement, the Consultant shall disclose any
financial, business, or other relationship with City that may have an impact upon the
outcome of this Agreement or any ensuing City construction project. The Consultant shall
also list current clients who may have a financial interest in the outcome of this Agreement
or any ensuing City construction project which will follow. Consultant certifies that it has
disclosed to City any actual, apparent, or potential conflicts of interest that may exist
relative to the services to be provided pursuant to this Agreement. Consultant agrees to
advise City of any actual, apparent or potential conflicts of interest that may develop
subsequent to the date of execution of this Agreement. Consultant further agrees to
complete any statements of economic interest if required by either City ordinance or State
law. The Consultant hereby certifies that it does not now have nor shall it acquire any
financial or business interest that would conflict with the performance of services under this
Agreement. The Consultant hereby certifies that the Consultant or subconsultant and any
firm affiliated with the Consultant or subconsultant that bids on any construction contract or
on any Agreement to provide construction inspection for any construction project resulting
from this Agreement, has established necessary controls to ensure a conflict of interest
164
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 22 of 29
does not exist. An affiliated firm is one, which is subject to the control of the same persons,
through joint ownership or otherwise.
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 (12) 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 Eunejune Kim, City
Engineer/Public Works Director ("Contract Administrator"). All correspondence shall be
directed to or through the Contract Administrator or his or her designee.
10.10 Notices. All notices and other communications which are required or may be given under
this Agreement shall be in writing and shall be deemed to have been duly given (i) when
received if personally delivered; (ii) when received if transmitted by telecopy, if received
during normal business hours on a business day (or if not, the next business day after
delivery) provided that such facsimile is legible and that at the time such facsimile is sent
the sending Party receives written confirmation of receipt; (iii) if sent for next day delivery
to a domestic address by recognized overnight delivery service (e.g., Federal Express);
and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. In
each case notice shall be sent to the respective Parties as follows:
Consultant:
TRC Engineers, Inc.
1850 Gateway Blvd, Suite 1000
Concord, CA 94520
City:
165
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 23 of 29
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.
Seal and Signature of Registered Professional with
report/design responsibility.
10.12 Integration. This Agreement, including all Exhibits attached hereto, and incorporated
herein, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations, or agreements, either written or oral
pertaining to the matters herein.
10.13 Counterparts. This Agreement may be executed in counterparts and/or by facsimile or
other electronic means, and when each Party has signed and delivered at least one such
counterpart, each counterpart shall be deemed an original, and, when taken together with
other signed counterpart, shall constitute one Agreement, which shall be binding upon and
effective as to all Parties..
10.14 Construction. The headings in this Agreement are for the purpose of reference only and
shall not limit or otherwise affect any of the terms of this Agreement. The parties have had
an equal opportunity to participate in the drafting of this Agreement; therefore any
construction as against the drafting party shall not apply to this Agreement.
10.15 No Third Party Beneficiaries. This Agreement is made solely for the benefit of the
Parties hereto with no intent to benefit any non-signatory third parties.
10.16 Cost Principles and Administrative Requirements.
a. Consultant agreed that the Contract Cost Principles and Procedures, 48 CFR, Federal
Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to
determine the cost allowability of individual items not otherwise identified in the Scope of
Work.
b. Consultant also agrees to comply with federal procedures in accordance with 2 CFR,
Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards.
166
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 24 of 29
c. Any costs for which payment has been made to Consultant that are determined by
subsequent audit to be unallowable under 49 CFR, Part 31 or 2 CFR Part 200 are subject
to repayment by Consultant to City.
d. When a Consultant or Subconsultant is a Non-Profit Organization or an Institution of
Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
10.17 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this
Agreement was not obtained or secured through rebates, kickbacks or other unlawful
consideration, either promised or paid to any City employee. For breach or violation of this
warranty, City shall have the right in its discretion; to terminate the Agreement without
liability; to pay only for the value of the work actually performed; or to deduct from the total
compensation stated in this Agreement; or otherwise recover the full amount of such
rebate, kickback or other unlawful consideration.
10.18 Non-Discrimination Clause and Statement of Compliance.
a. Consultant’s signature affixed herein, and dated, shall constitute a certification
under penalty of perjury under the laws of the State of California that Consultant has,
unless exempt, complied with the nondiscrimination program requirements of
Government Code Section 12990 and Title 2, California Administrative Code, Section
8103.
b. During the performance of this Agreement, Consultant and its subconsultants shall
not deny the Agreement’s benefits to any person on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression,
age, sexual orientation, or military and veteran status, nor shall they unlawfully
discriminate, harass, or allow harassment against any employee or applicant for
employment because of race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic information, marital status, sex,
gender, gender identity, gender expression, age, sexual orientation, or military and
veteran status. Consultant and subconsultants shall insure that the evaluation and
treatment of their employees and applicants for employment are free from such
discrimination and harassment.
c. Consultants and subconsultants shall comply with the provisions of the Fair
Employment and Housing Act (Gov. Code §12990 et seq.) and the applicable
regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov.
Code §§11135-11139.5, and the regulations or standards adopted by the City to
implement such article. The applicable regulations of the Fair Employment and
Housing Commission implementing Government Code §12990 (a-f), set forth 2 CCR
§§8100-8504, are incorporated into this Agreement by reference and made a part
hereof as if set forth in full.
167
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 25 of 29
d. Consultant shall permit access by representatives of the Department of Fair
Employment and Housing and the City upon reasonable notice at any time during the
normal business hours, but in no case less than twenty-four (24) hours’ notice, to such
of its books, records, accounts, and all other sources of information and its facilities as
said Department or the City shall require to ascertain compliance with this clause.
e. Consultant and its subconsultants shall give written notice of their obligations
under this clause to labor organizations with which they have a collective bargaining or
other Agreement.
f. Consultant shall include the nondiscrimination and compliance provisions of this
clause in all subcontracts to perform work under this Agreement.
g. The Consultant shall comply with regulations relative to Title VI (nondiscrimination
in federally-assisted programs of the Department of Transportation – Title 49 Code of
Federal Regulations, Part 21 – Effectuation of Title VI of the 1964 Civil Rights Act).
Title VI provides that the recipients of federal assistance will implement and maintain a
policy of nondiscrimination in which no person in the State of California shall, on the
basis of race, color, national origin, religion, sex, age, disability, be excluded from
participation in, denied the benefits of or subject to discrimination under any program or
activity by the recipients of federal assistance of their assignees and successors in
interest.
h. The Consultant, with regard to the work, performed by it during the Agreement
shall act in accordance with Title VI. Specifically, the Consultant shall not discriminate
on the basis of race, color, national origin, religion, sex, age, or disability in selection
and retention of Subconsultants, including procurement of materials and leases of
equipment. The Consultant shall not participate either directly or indirectly in the
discrimination prohibited by Section 21.5 of the U.S. DOT’s Regulations, including
employment practices when the Agreement covers a program whose goal is
employment.
10.19 Debarment and Suspension Certification.
a. Consultant’s signature affixed herein, shall constitute a certification under penalty
of perjury under the laws of the State of California, that Consultant or any person
associated therewith in the capacity of owner, partner, director, officer or manager:
1. Is not currently under suspension, debarment, voluntary exclusion, or
determination of ineligibility by any federal agency;
2. Has not been suspended, debarred, voluntarily excluded, or
determined ineligible by any federal agency within the past three (3)
years;
3. Does not have a proposed debarment pending; and
168
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 26 of 29
4. Has not been indicted, convicted, or had a civil judgment rendered
against it by a court of competent jurisdiction in any matter involving
fraud or official misconduct within the past three (3) years.
b. Any exceptions to this certification must be disclosed to City. Exceptions will not
necessarily result in denial of recommendation for award, but will be considered in
determining Consultant responsibility. Disclosures must indicate to whom exceptions
apply, initiating agency, and dates of action.
c. Exceptions to the Federal Government Excluded Parties List System maintained
by the General Services Administration are to be determined by the Federal Highway
Administration.
10.20 Disadvantaged Business Enterprises (DBE) Participation.
a. This Agreement is subject to 49 CFR, Part 26 entitled “Participation by
Disadvantaged Business Enterprises in Department of Transportation Financial
Assistance Programs”. Consultants who obtain DBE participation on this Agreement
will assist Caltrans in meeting its federally mandated statewide overall DBE goal.
b. The goal for DBE participation for this Agreement is 9%. Participation by DBE
consultant or subconsultants shall be in accordance with information contained in the
Consultant Proposal DBE Commitment (Exhibit 10-O1), or in the Consultant Contract
DBE Information (Exhibit 10-O2) attached hereto and incorporated as part of the
Contract. If a DBE subconsultant is unable to perform, Consultant must make a good
faith effort to replace him/her with another DBE subconsultant, if the goal is not
otherwise met.
c. DBEs and other small businesses, as defined in 49 CFR, Part 26 are encouraged
to participate in the performance of Agreements financed in whole or in part with
deferral funds. Consultant or subconsultant shall not discriminate on the basis of race,
color, national origin, or sex in the performance of this Agreement. Consultant shall
carry out applicable requirements of 49 CFR, Part 26 in the award and administration of
US DOT-assisted agreements. Failure by Consultant to carry out these requirements is
a material breach of this Agreement, which may result in the termination of this
Agreement or such other remedy as City deems appropriate.
d. Any subcontract entered into as a result of this Agreement shall contain all of the
provisions of this section.
e. A DBE firm may be terminated only with prior written approval from LOCAL
AGNECY and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting
City consent for the termination, Consultant must meet the procedural requirements
specified in 49 CFR 26.53(f).
f. A DBE performs a Commercially Useful Function (CUF) when it is responsible for
execution of the work of the Agreement and is carrying out its responsibilities by
actually performing, managing, and supervising the work involved. To perform a CUF,
169
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 27 of 29
the DBE must also be responsible with respect to materials and supplies used on the
Agreement, for negotiating price, determining quality and quantity, ordering the
material, and installing (where applicable) and paying for the material itself. To
determine whether a DBE is performing a CUF, evaluate the amount of work
subcontracted, industry practices, whether the amount the firm is to be paid under the
Agreement is commensurate with the work it is actually performing, and other relevant
factors.
g. A DBE does not perform a CUF if its role is limited to that of an extra participant in
a transaction, Agreement or project through which funds are passed in order to obtain
the appearance of DBE participation. In determining whether a DBE is such an extra
participant, examine similar transactions, particularly those in which DBEs do not
participate.
h. If a DBE does not perform or exercise responsibility for at least thirty percent
(30%) of the total cost of its Agreement with its own work force or the DBE subcontracts
a greater portion of the work of the Agreement than would be expected on the basis of
normal industry practice for the type of work involved, it will be presumed that it is not
performing a CUF.
i. Consultant shall maintain records of materials purchased or supplied from all
subcontracts entered into with certified DBEs. The records shall show the name and
business address of each DBE or vendor and the total dollar amount actually paid each
DBE or vendor, regardless of tier. The records shall show the date of payment and the
total dollar figure paid to all firms. DBE prime consultants shall also show the date of
work performed by their own forces along with the corresponding dollar value of the
work.
j. Upon completion of the Agreement, a summary of these records shall be prepared
and submitted on the form entitled, “Final Report-Utilization of Disadvantaged Business
Enterprise (DBE), First-Tier Subconsultants” CEM-2402F [Exhibit 17-F of the LAPM],
certified correct by Consultant or Consultant’s authorized representative and shall be
furnished to the Contract Administrator with the final invoice. Failure to provide the
summary of DBE payments with the final invoice will result in twenty-five percent (25%)
of the dollar value of the invoice being withheld from payment until the form is
submitted. The amount will be returned to Consultant when a satisfactory ‘Final Report-
Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subconsultants” is
submitted to the Contract Administrator.
k. If a DBE subconsultant is decertified during the life of the Agreement, the
decertified subconsultant shall notify Consultant in writing with the date of
decertification. If a subconsultant becomes a certified DBE during the life of the
Contract, the subconsultant shall notify Consultant in writing with the date of
certification. Any changes should be reported to City’s Contract Administrator within 30
days.
10.21 Equipment Purchase and Other Capital Expenditures.
170
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 28 of 29
a. Prior authorization in writing by City’s Contract Administrator shall be required
before Consultant enters into any unbudgeted purchase order, or subcontract
exceeding five thousand dollars ($5,000) for supplies, equipment, or Consultant
services. Consultant shall provide an evaluation of the necessity or desirability of
incurring such costs.
b. For purchase of any item, service, or consulting work not covered in Consultant’s
approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior
authorization by City’s Contract Administrator, three competitive quotations must be
submitted with the request, or the absence of bidding must be adequately justified.
c. Any equipment purchased with funds provided under the terms of this Agreement
is subject to the following:
1. Consultant shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years
and an acquisition cost of five thousand dollars ($5,000) or more. If the
purchased equipment needs replacement and is sold or traded in, City shall
receive a proper refund or credit at the conclusion of the Agreement, or if the
Agreement is terminated, Consultant may either keep the equipment and credit
City in an amount equal to its fair market value, or sell such equipment at the
best price obtainable at a public or private sale, in accordance with established
City procedures; and credit City in an amount equal to the sales price. If
Consultant elects to keep the equipment, fair market value shall be determined
at Consultant’s expense, on the basis of a competent independent appraisal of
such equipment. Appraisals shall be obtained from an appraiser mutually
agreeable to by City and Consultant, if it is determined to sell the equipment,
the terms and conditions of such sale must be approved in advance by City.
2. Regulation 2 CFR Part 200 requires a credit to Federal funds when
participating equipment with a fair market value greater than five thousand
dollars ($5,000) is credited to the project.
10.22 Prohibitions of Expending Local Agency, State, or Federal Funds for Lobbying.
10.22.1 The Consultant certifies, to the best of his or her knowledge and belief, that:
a. No State, Federal, or City appropriated funds have been paid or will be
paid, by or on behalf of the Consultant, to any person for influencing or
attempting to influence an officer or employee of any local, State, or
Federal agency, a Member of the State Legislature or United States
Congress, an officer or employee of the Legislature or Congress, or any
employee of a Member of the Legislature or Congress in connection with
the awarding or making of this Agreement, or with the extension,
continuation, renewal, amendment, or modification of this Agreement.
b. If any funds other than Federal appropriated funds have been paid or will
be paid to any person for influencing or attempting to influence an officer
171
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. Page 29 of 29
or employee of any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a member of Congress in
connection with this Agreement, the Consultant shall complete and submit
Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance
with its instructions.
10.22.2 This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this certification is a
prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any
person who fails to file the required certification shall be subject to a civil penalty of not
less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars
($100,000) for each such failure.
10.22.3 The Consultant also agrees by signing this document that he or she shall require
that the language of this certification be included in all lower tier subagreements, which
exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall
certify and disclose accordingly.
The Parties have executed this Agreement as of the Effective Date.
CITY OF SOUTH SAN FRANCISCO Consultant
____________________________ _____________________________________
Mike Futrell, City Manager Rany Chek
Vice President
TRC Engineers, Inc.
Attest:
_____________________________
Rosa Acosta, City Clerk
Approved as to Form:
____________________________
City Attorney
172
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. -Exhibit A- Page 1 of 7
EXHIBIT A
SCOPE OF WORK
The following scope of work (SOW) outlines the tasks required to provide consulting services for
construction management, inspection and material testing for the Grand Boulevard Project (Arroyo Drive to
Kaiser Way) Phase III.
Task 1 – Pre-Construction Services
TRC will review the project, reports, and permits in order to provide a list of potential conflicts,
constructability, and value engineering opportunities. During this review process, TRC will also provide
input on consistency between plans, specifications, and estimates, formally presenting TRC’s findings in
the CSI format. Finally, after the contractor has been selected, TRC will review and evaluate their proposed
schedule, comparing it to the contract documents, specifications, plans, permits, and agreements. Any
suggested changes from TRC’s valuation to improve the schedule will be provided to the City.
TRC’s Resident Engineer, Cecilia Zamora, PE, will work with the contractor and City to establish a time and
date that work within allowable schedules, to coordinate a weekly project construction meeting. TRC will
share weekly meeting minutes and agendas with all parties including stakeholders. Prior to each meeting,
TRC will review available material related to open dispute resolutions with methodologies, policies or
procedures outlined in the contract. TRC’s weekly project meetings will begin with a safety moment,
presented by a different participating project partner each week. TRC will include a review of the project
schedule and ongoing comparison to both the baseline and contract documents. Potential schedule
modifications or suggestions will be discussed weekly.
SERVICE FUNCTION & BENEFIT DELIVERABLES
PRE-BID REVIEW
PROCESS & PRE-BID
CONFERENCE
Personnel Assigned
• Resident Engineer
• Inspector
• Conduct constructability review of plans and
specifications.
• Verify cost estimates and schedule.
• Identify potential change order and claims issues.
Benefit
• Resident Engineer develops relationship with the City
and designer.
• Construction management team has good
understanding of the project and develops effective
strategies for managing the project.
• Constructability review
comments.
• Draft construction schedule.
• Conduct pre-bid conference
(optional) with agenda
and meeting minutes, bid
documents, and Q&A to bidder
comments.
PRE-CONSTRUCTION
CONFERENCE
Personnel Assigned
• Resident Engineer
• Outline project specifics, inform contractor of project
administration procedures and contract requirements.
Benefit
• Establish protocol and roles and responsibilities.
• Meeting agenda.
• Meeting minutes.
173
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. -Exhibit A- Page 2 of 7
MANAGEMENT
INFORMATION SYSTEM
(MIS) DOCUMENT
CONTROL
Personnel Assigned
• Resident Engineer
• Implement systems for tracking, filing, and managing
paper/electronic correspondence including letters,
RFI’s, submittals, materials test results, contracts,
reports, O&M manuals, progress payments, and
change orders, etc.
Benefit
• Better record keeping.
• Improved claim resolution capabilities.
• Federal reimbursement of funds.
• Paper files.
• Digital files.
• Correspondence logs.
Task 2 – Construction Management Services During Construction
TRC will provide a full-time Resident Engineer, along with one Lead Inspector to provide construction
management services for the project, using the “e-builder” program to manage the project, maintain
construction documents, and update the City with project status. This electronic system will also be used to
process invoices, CCOs, RFIs, and contractor progress payments. TRC will directly coordinate and
establish working relationships with the City and its various departments as the project progresses, both at
field and office levels to keep the project moving forward. TRC’s Resident Engineer will provide a weekly
update/status memo via email for easy redistribution as necessary to the City, summarizing ongoing
construction, project, or progress issues that are not discussed or outstanding from the weekly meeting.
Should additional contract meetings between the City and contractor be required, such as during change
negotiations, TRC will lead, coordinate, and administer these meetings.
Using the City’s Quality Assurance Plan (QAP) procedures, the project special provisions, City and State
referenced standards, TRC will continue to seamlessly integrate quality into every aspect of the project
work. TRC will ensure construction activities are properly coordinated with all public and private
stakeholders, maintaining awareness through proper and timely notifications, while also maintaining safe
access routes around construction activities, for the public. Should the rare occasion for a complaint be
received during construction by the City or TRC’s team, TRC will immediately investigate, make contact
with the complainant, and seek mutual best solutions, while keeping potential risk, cost, and schedule in
mind.
TRC will facilitate necessary permits to implement the project and work with the City and contractor to
establish an escalation tree from the field up through management right from the start.
When the contractor’s baseline schedule is submitted for review, TRC’s Resident Engineer will review the
schedule for project conformance and manage the ongoing construction schedule milestones, controlling
and critical path activities. Work activities and actual contractor progress will be monitored and discussed
weekly, with any supplemental discussions necessary, coordinated with the City and/or contractor
individually, to discuss potential slippages or delays, and their respective causes (such as weather).
TRC’s Resident Engineer will prepare and present a written monthly summary report to the City Project
Manager, summarizing project progress, cost, and schedule status, as well as providing photographs of
construction activities being performed. TRC’s Resident Engineer will also review the contractor’s pay
applications, compare with quantities measured in the field by TRC’s inspector, and provide pay
recommendation. The contractor’s schedule of values will be used to monitor and estimate impacts of
potential changes and differences in pay application amounts.
174
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. -Exhibit A- Page 3 of 7
TRC’s team will track, review, respond to, and monitor submittal and RFI status and provide updates on
both during each weekly meeting. Construction materials and process submittals will be responded to
directly by TRC. Design related RFI will be returned to the designer for their input, along with any
suggestions from the field, to assist in finding the best solutions.
With assistance from TRC, through provision of recommendations and suggestions, construction issue
related notices of potential change orders will be reviewed, based on plans, specifications, and any other
designer information and input, and TRC’s recommendations will be forwarded to the City Project Manager
for discussion. Should a notice of potential change or claim appear to and/ or have merit, and has been
submitted within the timeline in the contract documents, TRC will manage the claim/ change from notice,
through initial analysis and detailed review of change supporting documentation, estimated costs; potential
impacts of schedule, and impacts to other aspects of the work. TRC will work with the City to process final
negotiated change orders for signature, tracking associated costs against field inspector documentation of
activities, and the change order amount, in TRC’s review of the monthly pay estimate request from the
contractor. Any additional claims for compensation will be responded to, formally, in writing.
Task 2.1 – Construction Observation/Inspection Services
TRC’s Lead Inspector, Mohammad Alazzah, PE, will provide boots and eyes on-the-ground monitoring and
observing of the contractor’s day to day work activities, documenting: means and quality of efforts, methods
used, materials; workforce and equipment; project related issues, public concerns, and above all,
conformance to the project contract documents and references. TRC’s Lead Inspector can attend the
contractors tailgate safety meetings and actively participate with suggestions and/ or concerns. Each day’s
activities will be memorialized for the project records and inspectors’ daily report that will be submitted to
TRC’s Resident Engineer. All interim questions, discrepancies, deviations, or concerns between the field
activity observations and the contract documents are immediately brought to the contractor’s attention for
resolution at the lowest possible level. Unresolved non- conformances and ongoing resistance will be
documented via email and immediately elevated to TRC’s Resident Engineer, who will determine if written
action is necessary for the project records.
TRC’s Lead Inspector will also review monthly progress payment applications with recorded monthly
quantities and assist the Resident Engineer in making the recommendation for payment to the City Project
Manager. Should there be discrepancies in the pay request, they will be discussed with the contractor and
requested revisions made, prior to final submittal, and ultimately, payment.
Summit Associates (Summit) will assist TRC with construction materials testing aspects of the project.
TRC’s Lead Inspector and/or Resident Engineer will coordinate with Summit at established key stages of
the project’s construction, to verify project QA conformance.
175
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. -Exhibit A- Page 4 of 7
SERVICE FUNCTION & BENEFIT DELIVERABLES
RESIDENT
ENGINEERING
Personnel Assigned
• Resident Engineer
• Manage the project and enforce in accordance with
the Contract Plans, Special Provisions, Caltrans
Standards, Construction Manual, and Local Assistance
Procedures Manual.
Benefit
• Project is administered and constructed properly.
• Minimizes the City’s exposure and cost.
• Ensures that the City is reimbursed for Federal Funds.
• Successful project.
• Federal reimbursement.
• Project files.
WEEKLY MEETINGS
Personnel Assigned
• Resident Engineer
• Conduct weekly meetings to discuss safety,
construction progress schedule, status of submittals,
RFIs, CCO’s, and current and past issues.
Benefit
• Maintains dialogue between team members and
manage project progress.
• Meeting agenda.
• Meeting minutes.
ENVIRONMENTAL
COORDINATION
MEETINGS AND
COMPLIANCE
Personnel Assigned
• Resident Engineer
• Maintain communication.
• Compliance with permits.
Benefit
• Ensure compliance and prevent violations and fines.
• Successful project without
violations and fines.
CONSTRUCTION
STAKING
Personnel Assigned
• Contractor
• Provide staking for construction.
Benefit
• Compliance with plans and specifications.
• Resident Engineer to review
construction survey notes.
• Inspector to verify staking if
requested.
MATERIALS TESTING
Personnel Assigned
• Inspector
• Schedule and manage sub-consultant materials lab.
• Coordinate timely testing and reporting.
Benefit
• Provides timely testing and daily coordination with
Contractor’s progress to prevent delays.
• Testing reports.
• Verify materials are provided
and placed in accordance to the
contract.
ISSUES RESOLUTION/
MANAGEMENT
Personnel Assigned
• Resident Engineer
• Analyze issues, coordinate and identify resolution
options, and give recommendations.
Benefit
• Provides timely resolution.
• Maintains progress and minimize delays.
• Design clarifications.
• Contract change orders.
• Resolve constructability
issues.
SCHEDULE
Personnel Assigned
• Resident Engineer
• Monitors overall progress of the project through
schedule (CPM).
• Track critical path activities and requires a recovery
schedule from the Contractor whenever schedule
slippage occurs.
Benefit
• Better project coordination.
• Fewer delays.
• Fewer time related disputes.
• Monthly status/progress reports.
• 3-week look ahead schedule
176
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. -Exhibit A- Page 5 of 7
COST CONTROL
Personnel Assigned
• Resident Engineer
• Monitor project funding.
• Monitor project budgets.
• Review contract item payments, material quantities,
and change order payments.
Benefit
• Eliminates contract item overrun.
• Effective use of funds.
• Early warning of potential funding problems.
• Budget reports.
• Cost estimate reviews.
CHANGE ORDERS
Personnel Assigned
• Resident Engineer
• Structural Engineer
• Review potential change orders for contractual and
technical merit.
• Prepare independent cost estimate and schedule
analysis of work.
• Negotiate and prepare change orders for execution.
• Keep the City apprised of impact of cumulative
change orders.
Benefit
• Change orders reflect fair price for added or deleted
work.
• Independent cost estimates.
• Change order ready for
execution.
• Change order summary reports.
REQUEST FOR
INFORMATION
Personnel Assigned
• Resident Engineer
• Structural Engineer
• Evaluate Requests for Information to resolve
contractor questions.
Benefit
• Keep contractors moving forward.
• Early dispute resolution.
• Request for Information log.
SUBMITTALS
Personnel Assigned
• Resident Engineer
• Structural Engineer
• Evaluate submittals for timely approval or return to
contract.
Benefit
• Keep contractor on schedule.
• Submittal log.
POTENTIAL CLAIMS/
DISPUTE RESOLUTION
Personnel Assigned
• Resident Engineer
• Structural Engineer
• Identify potential claims issues.
• Validates claims, document and make
recommendations.
• Implement procedures for reducing the disputes and
claims.
• Assist in the resolution of disputes.
Benefit
• Disputes are avoided or resolved quickly reducing
cost.
• Dispute avoidance procedures
recommendation.
• Execute contract change order
as-needed.
SOURCE INSPECTION
Personnel Assigned
• Inspector
• Schedule and coordinate source inspection of
materials with TRC source inspection staff.
Benefit
• Ensures materials being provided are in compliance
with specifications and contract plans.
• Inspection reports.
• Materials are provided and
placed in accordance to Contract
Specifications.
COORDINATION WITH
UTILITY COMPANIES
Personnel Assigned
• Resident Engineer
• Inspector
• Make contact with utility company representatives and
coordinate timing and work associated with utility
coordination and interferences.
Benefit
• Smooth relocation of utilities.
• Protect existing utilities from damage.
• Utility relocation without delays
to the project.
177
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. -Exhibit A- Page 6 of 7
QUALITY ASSURANCE/
INSPECTION
Personnel Assigned
• Resident Engineer
• Inspector
• Observe and monitor all aspects of project.
• Notify contractor when work is not in compliance.
• Prepare daily inspection reports.
• Provide photographic and video documentation of
construction process.
• Encourage and stress quality in the constructed
product.
Benefit
• Completed project meets expectations for quality and
functionality.
• Photography and video tapes.
• Project files.
• Daily inspection reports.
TRAFFIC CONTROL
PLAN
IMPLEMENTATION
Personnel Assigned
• Resident Engineer
• Inspector
• Coordinate review and monitor implementation of
contractor’s traffic control plan.
• Assist with online lane closure procedures.
Benefit
• Verify compliance with approved traffic control plan to
minimize traffic.
• Approved traffic control plan.
• Daily inspection diaries.
PUBLIC RELATIONS
Personnel Assigned
• Resident Engineer
• Inspector
• Communicate with local residents and business
community regarding temporary construction impacts
(i.e. traffic change & closures, noise, limited access and
construction schedule).
Benefit
• Minimizes public complaints.
• Resident Engineer will be point of contact.
• Attend community meetings
SWPPP WATER BROAD
PERMIT COMPLIANCE
Personnel Assigned
• Resident Engineer
• Inspector
• Review and enforce requirements stipulated in permits
issued by regional and state water
agencies.
Benefit
• Minimize/eliminate violations of permit requirements.
• Daily inspection reports/ weekly
SWPPP report.
• Correspondence.
PROGRESS PAYMENTS
Personnel Assigned
• Resident Engineer
• Inspector
• Review contractor’s payment requests.
• Verify Contractor pay items.
• Prepare payment documentation for execution.
Benefit
• Ensures accuracy of quantities and payment.
• Controls project cost.
• Progress payment vouchers.
• Daily inspection reports.
• Quantity calculation sheets.
MONTHLY STATUS
REPORTS
Personnel Assigned
• Resident Engineer
• Prepare monthly reports highlighting project progress,
CCOs, cost issues, and schedule.
Benefit
• Keeps parties informed on project status.
• Monthly project status report
DBE/SBE COMPLIANCE
Personnel Assigned
• Resident Engineer
• Ensure DBE/SBE requirements are met when
required by project.
Benefit
• Compliance targets are met.
• Reports to the City’s Project
Manager.
178
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. -Exhibit A- Page 7 of 7
LABOR COMPLIANCE
Personnel Assigned
• Resident Engineer
• Inspector
• Monitor prevailing wage rates and conduct worker
interviews.
Benefit
• Compliance with federal requirements.
• Reduce/eliminate labor claims.
• Proper payment on T&M work.
• Certified payroll reports and
interviews in projects records.
SITE SAFETY
Personnel Assigned
• Entire TRC Team
• Review and monitor contractor’s safety program for
compliance with Cal/OSHA.
• Notify Contractor if unsafe condition is observed.
• Notify the City if Contractor refuses to rectify.
• Investigate accidents.
Benefit
• Jobsite is safer.
• Avoids litigation.
• Accident reports.
• Monthly reports.
• Safety meeting.
• Sign-in sheet.
Task 3 – Post Construction Services (Close Out/Claims)
Following receipt of notice of substantial completion from the contractor, TRC will prepare and present
TRC’s punch list of remaining unresolved issues/items to the contractor, City and Caltrans. Project closeout
will be performed in accordance with requirements of Chapter 17 of Caltrans Local Assistance Project
Manual (LAPM). As part of this process, TRC will review remaining punch list items, address any
settlement observed resulting in the work, record drawings, and TRC will work with the City and the
contractor during any dispute resolutions, contract change orders, and final payments. If needed, TRC will
work with the City to prepare their report of final expenditures.
SERVICE FUNCTION & BENEFIT DELIVERABLES
“AS-BUILT” DRAWINGS
Personnel Assigned
• Resident Engineer
• Inspector
• Collect, review, and transmit contractor’s data to
engineer.
Benefit
• Changes are incorporated into record drawings.
• Data for record drawings.
• Red-lined field drawings.
FINAL WALK THROUGH
Personnel Assigned
• Resident Engineer
• Inspector
• Make final inspections.
• Prepare punchlist.
• Verify that required certificates of compliance and as-
built drawings have been delivered.
Benefit
• Project is completed according to contract documents.
• Punchlist.
PROJECT COMPLETION
REPORT/FINAL
PAYMENT
Personnel Assigned
• Resident Engineer
• Process final progress payment to contractor.
• File Notice of Completion.
• Prepare final report.
• Deliver project records to the City.
• Prepare reports according to Local Assistance
Manual.
Benefit
• Paperwork is completed.
• Audit trail is completed.
• Ensures Federal reimbursement.
• Final Progress Payment.
• Notice of Completion.
• Final Report..
179
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. -Exhibit B- Page 1 of 2
EXHIBIT B
COST PROPOSAL
180
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. -Exhibit B- Page 2 of 2
181
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. -Exhibit C- Page 1 of 1
EXHIBIT C
INSURANCE CERTIFICATES
PROVIDED AFTER COUNCIL ACCEPTANCE
182
Consulting Services Agreement between November 10, 2021
City of South San Francisco and TRC Engineers, Inc. -Exhibit D- Page 1 of 1
EXHIBIT D
FORM 590
PROVIDED AFTER COUNCIL ACCEPTANCE
183
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-663 Agenda Date:11/10/2021
Version:1 Item #:12.
Report regarding a resolution approving a Purchase and Sale Agreement with Firehouse Work LLC for the sale
of 201a Baden Avenue for $1,025,000 and a resolution approving a Purchase and Sale Agreement with Eden
Housing for the sale of 201b Baden Avenue for $1,as well as associated resolutions making conformity
findings (Julie Barnard, Acting Deputy Director of Economic and Community Development).
RECOMMENDATION
Staff recommends adopting resolutions making certain findings and approving:
1.A Purchase and Sale Agreement with Firehouse Work for the sale of 201a Baden Avenue for
$1,025,000; and
2.A Purchase and Sale Agreement with Eden Housing for the sale of 201b Baden Avenue for $1.
BACKGROUND
The City-owned,retired firehouse at 201 Baden (the “Property”)fronts Baden Avenue to the north and Second
Lane to the south.It is located mid-block between Linden Avenue and Airport Boulevard.The Property is
approximately 22,460 square feet (0.51 acres)and consists of three parcels (APNs 012-335-100,012-335-110
with the third not possessing an APN).The Property presents a significant Transit-Oriented Development
(“TOD”) opportunity in the downtown.
In September 2017,the City of South San Francisco (“City”)issued a Request for Qualifications (“RFQ”)to
create a high quality,mixed-use,transit-oriented development on the Property.Ultimately,Council selected a
developer team that proposed to retain the historic firehouse for commercial purposes on one half of the site
(201a Baden Ave),and develop housing on the vacant second half of the site (201b Baden Ave).For the
commercial component of the project,the City executed an Exclusive Negotiating Rights Agreement
(“ENRA”)and has been in exclusive negotiations with Firehouse Work since the developer team selection in
2017.
For the residential component of the project,the City initially executed an ENRA with a residential developer
but there have been several subsequent changes and amendments to that ENRA to replace the residential
component developer.At the May 25,2021 City Council meeting,Council approved a resolution adopting an
amendment to the Second Exclusive Negotiating Rights Agreement for the residential project,to engage in
negotiations with Eden Housing as the residential component developer.Eden Housing have secured
negotiations to acquire 199 Airport Boulevard,which is the adjacent site (owned by Harman and occupied by
KFC/Taco Bell).This site assemblage will deliver 82 Below Market Rate (BMR)units to the City and increase
housing opportunities for the public’s benefit and welfare.
Pursuant to the extensive negotiation process,the developers and City have negotiated separate Purchase and
City of South San Francisco Printed on 11/5/2021Page 1 of 5
powered by Legistar™184
File #:21-663 Agenda Date:11/10/2021
Version:1 Item #:12.
Pursuant to the extensive negotiation process,the developers and City have negotiated separate Purchase and
Sale Agreements (PSA)and are now ready to enter into those agreements which determines the terms for sale
and conveyance of the 201 Baden Avenue site.
Specifically,the 201 Baden Avenue parcel will be bifurcated and adjusted into two separate parcels,temporarily
identified as “201a”and “201b”Baden Avenue (and subsequently to be identified as APNs 012-335-100 and
012-335-110 after bifurcation).The 201a parcel (upon which the old firehouse is located)will be sold to
Firehouse Work,the commercial component developer,and the 201b parcel will be sold to Eden Housing,the
residential component developer.The bifurcation process would be completed prior to the close of escrow in
order to transfer the properties respectively.
DISCUSSION
Purchase and Sale Agreements
Eden Housing
The following business points are proposed for Council’s consideration:
·A $1 purchase price for 201b Baden Ave,
·Eden Housing to secure a PSA with Harman for the acquisition of 199 Airport before Close of Escrow
(COE),
·City approval of a drive-through for KFC/Taco bell,
·A loan of up to $4,500,000 from the City (roughly $55,000 per unit)to Eden,see further discussion
below,
·COE prior to December 31, 2022 to comply with the Surplus Land Act, and
·City and Eden Housing to enter into a license agreement that will allow the City to continue to operate
201b Baden as a public parking until construction begins.
The City applied for the State Local Housing Trust Fund (LHTF)grant program in July 2021.If successful,the
City contribution would be reduced from $4,500,000 to $1,890,000.The results of this program have not yet
been announced.If unsuccessful,Eden will make best efforts to secure funding from additional sources,but the
City may be required to commit $4,500,000 in financing to ensure the project moves forward.That said,the
trend in South San Francisco is such that we provide approximately $55,000 per door in funding to affordable
housing developers,which would amount to $4,510,000 for 82 units.This amount is typically in keeping with
other cities in San Mateo County.
Eden Housing applied for San Mateo County Measure K funds and were tentatively awarded $1,200,000 in
predevelopment funding in September 2021.The developer intends to also pursue the following financing
sources:
·County of San Mateo Measure K Funding
·State of California:Local Housing Trust Fund (LHTF),Multifamily Housing Program (MHP)and No
City of South San Francisco Printed on 11/5/2021Page 2 of 5
powered by Legistar™185
File #:21-663 Agenda Date:11/10/2021
Version:1 Item #:12.
Place Like Home (NPLH)
·FHL Bank - Affordable Housing Program (AHP)
·Tax Credits
·Permanent Financing
Following the announcement of the LHTF awards,staff will have a better understanding of the financial
commitment required from the City.At that time staff will return to Council with a loan agreement with Eden
Housing.
Although not specifically outlined in their Schedule of Performance,see Attachment 1,the developer intends to
complete construction in October 2025.Should Eden Housing not secure financing and are not able to proceed,
the PSA provides a reversion option which would allow the City to recover the property and determine what the
best use for 201b Baden Avenue may be at that time.
Firehouse Work
The following business points are proposed for Council’s consideration:
·Price offer of $1,025,000,
·COE prior to December 31, 2022 to comply with the Surplus Land Act, and
·Obtain a listing for the California Register of Historical Resources,and as a local historic listing
under the South San Francisco Municipal Code.
The proceeds from the sale of the old firehouse are unencumbered and would ordinarily be deposited into the
General Fund.Staff recommends investing the proceeds from the sale into housing programs and policies not
explicitly allowed by our housing trust fund.Some examples include rental or utility assistance programs,rent
mediation board,rental registry,or affordable housing health and safety rehabilitation programs,etc.Housing
trust fund dollars are more specifically allocated for housing production and preservation,and associated
administration.
Firehouse Work is prepared to move forward with their entitlement application immediately and the approval of
PSA will allow them to do so.Their Schedule of Performance,outlining their project milestones and timing of
the conveyance of the property is outlined in Attachment 2.
General Plan Consistency
In accordance with provisions of State Planning Law (Govt.Code Section 65402),prior to disposition of real
property owned by the City,the Planning Commission as the planning agency for the City is required to find
such disposition is in conformity with the adopted General Plan.
The General Plan Land Use Designation for the 201 Baden Avenue property is Downtown Transit Core,which
includes specific policies related to development within the Downtown in an effort to “promote infill
development,intensification,and reuse of currently underutilized sites”and to “encourage retention of existing
City of South San Francisco Printed on 11/5/2021Page 3 of 5
powered by Legistar™186
File #:21-663 Agenda Date:11/10/2021
Version:1 Item #:12.
development,intensification,and reuse of currently underutilized sites”and to “encourage retention of existing
and local businesses to the Downtown and protect historic building fabric”.
The proposed sale of the property and the entitlements that will ensure this project will provide for higher
density residential than what is currently allowed but will still be compatible in scale with the remaining
Downtown residential districts.The proposed project will provide a mix of housing opportunities and continue
to conform to the General Plan Land Use Policies.The commercial portion will achieve two goals as outlined
in the Downtown Station Area Specific Plan,including encouraging retention of existing and local businesses
to the Downtown and protect historic building fabric and to promote Downtown’s vitality and economic well-
being and its presence as the City’s center.
On September 15,2021,at its regular meeting,the Planning Commission adopted a resolution that made
findings that determined that the disposition of the City of South San Francisco-owned property located at 201
Baden Avenue,in the Downtown Transit Core is in conformity with the South San Francisco adopted General
Plan in accordance with provisions of State Planning Law (Govt. Code Section 65402)
Environmental Review
The 201 Baden Avenue site is within the Downtown Transit Core (DTC)zoning district,which is within the
Downtown Station Area Specific Plan (DSASP).This district permits the most intense development to support
the Caltrain station.It is intended to provide sites for mixed-use development at high intensities in proximity to
the Caltrain Station.It encourages active ground floor uses (but does not require them)and high intensity
developments that will generate pedestrian traffic in the area.
On January 28,2015,a program EIR was certified by the City Council for the DSASP.(Final Environmental
Impact Report for the South San Francisco Downtown Station Area Specific Plan (DSASP),State
Clearinghouse #2013102001).The program EIR assessed the potential environmental impacts resulting from
implementation of the DSASP.The DSASP established new land use,development,and urban design
regulations for the area for a 20-year planning period.The City Council also adopted a Statement of Overriding
Considerations (“SOC”)on January 28,2015,which carefully considered each significant and unavoidable
impact identified in the EIR and found that the significant environmental impacts were acceptable in light of
the economic, legal, social, technological and other benefits associated with implementation of the DSASP.
The type and density of the proposed development of the 201 Baden Avenue property was contemplated in the
DSAP EIR,and the execution of a PSA for the disposition of the property in order to undertake the anticipated
development is consistent with the DSAP and would not result in any new significant environmental effects or
a substantial increase in the severity of any previously identified effects beyond those disclosed and analyzed in
the Downtown Station Area Specific Plan Program EIR certified by the City Council,nor would any new
mitigation measures be required.
In addition,the proposed rehabilitation of the Firehouse at 201a Baden Avenue and the construction of 82
residential units at 201b Baden Avenue will be subject to further environmental review and determination
pursuant the California Environmental Quality Act,Pub.Resources Code §21000,et seq.(“CEQA”)as a part of
City of South San Francisco Printed on 11/5/2021Page 4 of 5
powered by Legistar™187
File #:21-663 Agenda Date:11/10/2021
Version:1 Item #:12.
pursuant the California Environmental Quality Act,Pub.Resources Code §21000,et seq.(“CEQA”)as a part of
the projects’respective planning entitlements approval processes.Thus,no additional environmental analysis
would be required at this time.
FISCAL IMPACT
The City will receive $1.025m in funding for the sale of the Firehouse portion of the property.These funds have
no restrictions on how they are spent, but staff recommend investing the funds in housing programs.
Firehouse Work provided a cost recovery deposit that covers staff and City Attorney costs for the firehouse
portion of the project.The City has no past practice of collecting cost recovery deposits from developers that
offer a fully-affordable housing product.
RELATIONSHIP TO STRATEGIC PLAN
The development meets the City’s Strategic Plan Objective #2 -Quality of Life by providing a full range of
housing options.
CONCLUSION
Staff recommends adopting two resolutions making certain findings and approving:
1.A Purchase and Sale Agreement with Firehouse Work for the sale of 201a Baden Avenue for
$1,025,000; and
2.A Purchase and Sale Agreement with Eden Housing for the sale of 201b Baden Avenue for $1.
When LHTF awards are announced and staff return to Council with a loan agreement for Eden Housing,staff
will request direction from Council on how to allocate the $1,025,000 proceeds from the sale of the old
firehouse.As previously mentioned,staff currently recommends investing these proceeds in housing programs
not fundable through the City’s housing trust fund.
Attachments:
1.San Mateo County Area Median Income Levels (2021)
2.Eden Housing’s Schedule of Performance
3.Firehouse Work’s Schedule of Performance
4.Presentation
City of South San Francisco Printed on 11/5/2021Page 5 of 5
powered by Legistar™188
revised 04/30/2021
For HUD-funded programs, use the Federal Income Schedule. For State or locally-funded programs, you may use
the State Income Schedule. For programs funded with both federal and state funds, use the more stringent income levels.
Please verify the income and rent figures in use for specific programs.
San Mateo County Income Limits (based on Federal Income Limits for SMC)
Effective 4/30/2021 - Area median Income $149,600 (based on household of 4)
Income Category 1 2 3 4 5 6 7 8
Extremely Low (30% AMI) *38,400$ 43,850$ 49,350$ 54,800$ 59,200$ 63,600$ 68,000$ 72,350$
Very Low (50% AMI) *63,950$ 73,100$ 82,250$ 91,350$ 98,700$ 106,000$ 113,300$ 120,600$
Low (80% AMI) *102,450$ 117,100$ 131,750$ 146,350$ 158,100$ 169,800$ 181,500$ 193,200$
Median (100% AMI)104,700$ 119,700$ 134,650$ 149,600$ 161,550$ 173,550$ 185,500$ 197,450$
Moderate (120% AMI)125,650$ 143,600$ 161,550$ 179,500$ 193,850$ 208,200$ 222,600$ 236,950$
NOTES
*2021 State Income limits provided by State of California Department of Housing and Community Development
2021 San Mateo County Income Limits
as determined by HUD - effective June 28, 2021
Income Limits by Family Size ($)
189
Attachment 2 – Eden Housing’s Schedule of Performance
1 Purchase & Sale Agreements executed and
become effective Within 30 days of Council approval
2 Entitlement and Planning Application Submittal Within 120 days of PSA agreement
executed and effective
3 Receive Entitlement Approvals from City 9 months following entitlement
application
4 Submit Construction Drawings and Permitting
Application
4 months following entitlement
approvals
5 Eden and Harman to enter into PSA for KFC
Site Prior to December 31, 2022
Close of Escrow December 31, 2022
6 Apply for all other soft funding sources 18 months following entitlement
approvals
7 Apply for tax credit funding
First and all subsequent rounds
following securement of all soft
funding sources – assuming that these
funding sources are still adequate to
complete the project along with the
tax credit award.
8 Start Construction 6 months following securing all
funding
9 Certificate of Occupancy for residential units 30 months following construction
commencement
10 Lease Up/ Move-In 3 months following issuance of final
certificate of occupancy
190
Attachment 3 – Firehouse Work’s Schedule of Performance
1 Submit Planning Application and Street
Vacation Application Submittals
Within 30 calendar days of the
Effective Date of the Purchase
Agreement
2 Provide Draft Financing Plan
No later than 45 calendar days prior to
Planning Commission Hearing on
Entitlement Approvals
3 Submit Application for Building Permit
No later than 30 business days
following date all Entitlement
Approvals are final
4 Escrow Open 1 day following Building Permit
submittal
5 Submit Final Financing Plan Prior to Closing
6 Close of Escrow No later than December 31, 2022
7 Pull Building Permit and Pay Required Fees Within 20 business days after Closing
8 Deliver Construction Contract Within 20 business days after City
issues building permit
9 Commence Construction Within 3 months after City issues
building permit
10 Substantial Completion of Construction Within 9 months after commencing
construction
191
DISPOSITION OF THE
OLD FIREHOUSE AT 201 BADEN AVE.
PURCHASE AND SALE AGREEMENTS WITH EDEN HOUSING AND FIREHOUSE WORK LLC
NOVEMBER 10, 2021
192
2
Site Context
City Hall
Caltrain
Station
193
Background
•City issued an RFP in 2017, selected a team to:
•Restore the historic firehouse building for
commercial use
•Build housing on the remaining vacant lot
•City has been negotiating exclusively with
Firehouse Work since 2017 for the commercial use
•Housing developer has changed 4 times
•Eden Housing was selected in May 2021
•City and Eden now ready to enter into a PSA
3 194
4
Firehouse Work Business Terms
•Will retain a local business (Group 4)and restore the
historic firehouse
•A $1,025,000 purchase price for 201a Baden Ave (old
firehouse site)
•Obtain listing on CA Register of Historical Resources,
and as a local historic building
•COE prior to December 31,2022 to comply with the
Surplus Land Act
•Proceed immediately to entitlements,building permits,
and construction
195
Eden Housing Business Terms
•82 below market rate housing units
•A $1 purchase price for 201b Baden Ave (remnant City site)
•Combine remnant City site with adjacent property;PSA with Harmon
secured prior to close of escrow (COE)
•City approval of a drive-through for new KFC/Taco bell ground floor
condominium
•A loan of up to $4,500,000 from the City (roughly $55,000 per unit)
•COE prior to December 31,2022 to comply with the Surplus Land Act
•City to continue to operating remnant site as public parking
5 196
As required for all dispositions and acquisitions,on Sept.15,2021:
The Planning Commission adopted a resolution making findings that the
disposition of the City-owned property,in the Downtown Transit Core,is in
conformity with the adopted South San Francisco General Plan in
accordance with provisions of State Planning Law (Govt.Code Section
65402).
6
General Plan Consistency
197
7
Staff Recommendation
1.Adopt a resolution making conformity findings and approving a
Purchase &Sale Agreement with Firehouse Work for the restoration of
201a Baden,the old firehouse,and
2.Adopt a resolution making conformity findings and approving a
Purchase &Sale Agreement with Eden Housing for the development of
201b Baden,the remnant City site,for affordable housing.
198
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-666 Agenda Date:11/10/2021
Version:1 Item #:12a.
Resolution making findings and approving a Purchase and Sale Agreement with Firehouse Work LLC for the
disposition of the City of South San Francisco-owned property located at 201a Baden Avenue (APNs 012-335-
100, and 012-335-110) for $1,025,000 and authorizing the City Manager to execute the agreement.
WHEREAS, the City of South San Francisco (“City”) is the owner of certain real property located at 201
Baden Avenue, South San Francisco, which contains an old firehouse structure that has been decommissioned,
and known as County Assessor’s Parcel Numbers (“APN”) 012-335-100, 012-335-110, and the portion of
Cypress Street that is to be vacated, with a combined lot size of 22,500 square feet; and
WHEREAS, on March 4, 2019, pursuant to a solicitation process, the City entered into an Exclusive
Negotiating Rights Agreement (“ENRA”) with Firehouse Work, LLC (“Developer”) and a separate residential
project developer, which authorized the parties to commence negotiating the terms of purchase agreements
relating to the rehabilitation of the Old Firehouse and construction of a mixed-use residential and commercial
development at 201 Baden Avenue; and
WHEREAS, on July 14, 2021 the City Council reviewed the proposed purchase offer presented by Developer
and directed City staff to negotiate a Purchase and Sale Agreement (“PSA”); and
WHEREAS, specifically, the 201 Baden Avenue parcel will be bifurcated and adjusted into two separate
parcels, temporarily identified as “201a” and “201b” Baden Avenue (and subsequently to be identified as APNs
012-335-100 and 012-335-110 after bifurcation), with the proposed development consisting of Developer
rehabilitating the existing old firehouse structure on the 201a Baden Avenue parcel into a 9,200 square foot
commercial space, preserving its historical significance, and the residential component developer constructing a
separate affordable housing and commercial condo project on the 201b Baden Avenue parcel; and
WHEREAS, the bifurcation process and related actions will be separately considered and approved by the City
Council; and
WHEREAS, the 201a Baden Avenue parcel will be sold to Developer, and the 201b Baden Avenue parcel to the
residential component developer, in separate transactions for their respective projects and each developer would
be responsible for entitling and developing their respective projects; and
WHEREAS, City and Developer have negotiated a PSA, attached hereto at Exhibit A, where its terms and
provisions are agreed upon by both parties and both parties are prepared to enter into the agreement; and
WHEREAS, prior to disposition of real property owned by the City, the Planning Commission as the planning
City of South San Francisco Printed on 12/14/2021Page 1 of 3
powered by Legistar™199
File #:21-666 Agenda Date:11/10/2021
Version:1 Item #:12a.
agency for the City is required to find such disposition is in conformity with the adopted general plan in
accordance with Government Code section 65402; and
WHEREAS, on September 15, 2021 the Planning Commission held a public meeting and determined by
resolution that the disposition of 201a Baden Avenue as described in the foregoing paragraphs is in
conformance with the South San Francisco adopted General Plan; and
WHEREAS, the General Plan Land Use Designation for the 201 Baden property is Downtown Transit Core,
which includes specific policies related to development within the Downtown in an effort to “encourage
retention of existing and local businesses to the Downtown and to protect historic building fabric”, and to
“promote Downtown’s vitality and economic well-being and its presence as the City’s center”; and
WHEREAS, the proposed sale of the property and the entitlements that will ensue for this project will provide
for the rehabilitation of a historic building, the retention of an existing business and the growth of the
Downtown’s commercial activities; and
WHEREAS, these activities with continue to conform to the General Plan Land Use Policies; and
WHEREAS,on January 28,2015,the City Council certified an Environmental Impact Report (“EIR”),State
Clearinghouse number 2013102001,in accordance with the provisions of the California Environmental Quality
Act (Public Resources Code,§§21000,et seq.,“CEQA”)and CEQA Guidelines,which analyzed the potential
environmental impacts of the development of the Downtown Station Area Specific Plan (“DSAP”),including
the Downtown Transit Core area where the 201 Baden Avenue site is located; and
WHEREAS,on January 28,2015,the City Council also adopted a Statement of Overriding Considerations
(“SOC”)in accordance with the provisions of the California Environmental Quality Act (Public Resources
Code,§§21000,et seq.,“CEQA”)and CEQA Guidelines,which carefully considered each significant and
unavoidable impact identified in the EIR and found that the significant environmental impacts are acceptable in
light of the Downtown Station Area Specific Plan’s economic,legal,social,technological and other benefits;
and
WHEREAS,CEQA allows for limited environmental review of subsequent projects under a program EIR when
an agency finds that a project would not create any new environmental effects beyond those previously
analyzed under a program EIR and would not require any new mitigation measures (CEQA Guidelines §15168
(c)(2)); and
WHEREAS, the development of the 201 Baden Avenue property was contemplated in the DSAP EIR, and the
execution of a PSA for development consistent with the DSAP would not result in any new significant
environmental effects or a substantial increase in the severity of any previously identified effects beyond those
disclosed and analyzed in the Downtown Station Area Specific Plan Program EIR certified by the City Council,
nor would any new mitigation measures be required; and
WHEREAS, in addition, the proposed development projects at this site will also be subject to further
environmental review and determination pursuant to CEQA as a part of their respective planning entitlements
approval processes.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San Francisco does hereby
City of South San Francisco Printed on 12/14/2021Page 2 of 3
powered by Legistar™200
File #:21-666 Agenda Date:11/10/2021
Version:1 Item #:12a.
resolve as follows:
1.The foregoing recitals are true and correct and made a part of this Resolution.
2.The disposition of the 201 Baden Avenue property is consistent with the General Plan which
“encourages the retention of existing and local businesses to the Downtown and protects historic buildings’
fabric”, and “promotes Downtown’s vitality and economic well-being and its presence as the City’s center”.
Thus, in accordance with California Government Code section 65402, the City Council hereby finds that the
location, purpose and extent of the proposed disposition of 201 Baden Avenue (APN 012-321-160 and 012-335
-110), is in conformity with the City’s adopted General Plan. The documents and other material constituting the
record for these proceedings are located at the Planning Division for the City of South San Francisco, 315
Maple Avenue, South San Francisco, CA 94080, and in the custody of the Chief Planner, Tony Rozzi.
3.A Purchase and Sale Agreement with Firehouse Work, LLC in substantially the same form attached
hereto as Exhibit A, for the disposition of the 201a Baden Avenue parcel as described in the foregoing recitals
and in the PSA, for $1,025,000, is hereby approved.
4.The City Manager is hereby authorized to enter into and execute on behalf of the City Council the
Purchase and Sale Agreement, in substantially the same form attached hereto as Exhibit A; and to make any
non-material revisions, amendments or modifications that do not increase the City’s obligations and deemed
necessary to carry out the intent of this Resolution.
5.The City Manager is hereby authorized to execute any other necessary documents related to the sale of
the Property, and to take any and all other actions necessary to implement this intent of this Resolution, subject
to approval as to form by the City Attorney.
*****
City of South San Francisco Printed on 12/14/2021Page 3 of 3
powered by Legistar™201
- 1 -
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (“this Agreement”) is entered into as of _________________ (the “Effective
Date”), by and between the City of South San Francisco, a municipal corporation, (“Seller” or
(“City”)) and Firehouse Work, LLC, a California limited liability company (“Buyer”). Seller and
Buyer are collectively referred to herein as the “Parties.”
RECITALS
A. Seller is the owner of certain real property located at 201 Baden Avenue, South San
Francisco, which contains an old firehouse structure that has been decommissioned (“Old
Firehouse”) and known as County Assessor’s Parcel Numbers (“APN”) 012-335-100, 012-
335-110, and the portion of Cypress Street that is to be vacated, with a combined lot size of
22,500 square feet, collectively and commonly known as the “Old Firehouse Parcel”.
B. On March 4, 2019, pursuant to a solicitation process, Seller entered into an Exclusive
Negotiating Rights Agreement (“ENRA”) with Buyer and a separate residential project
developer, which authorized the parties to commence negotiating the terms of purchase
agreements relating to the rehabilitation of the Old Firehouse and construction of a mixed-
use residential and commercial development on the Old Firehouse Parcel.
C. Specifically, the proposed development will consist of Buyer rehabilitating the existing Old
Firehouse structure into a 9,200 square foot commercial space, preserving its historical
significance (the “Commercial Project”), and the residential component developer
constructing approximately eighty-two (82) deed-restricted affordable housing residential
units along with a commercial condo on the ground floor.
D. To facilitate this proposal, the Old Firehouse Parcel is to be bifurcated into two separate
parcels (to be identified as APNs 012-335-100 and 012-335-110), which are to be
effectuated through a lot line adjustment to be completed by Buyer after the execution of
this Agreement and the vacation of Cypress Street to be prepared by Buyer and approved
by Seller prior to opening escrow as described in further detail below, with APN 012-335-
100 containing the Old Firehouse (“Property”). These parcels will be sold to each
developer in separate transactions for their respective projects and each developer would be
responsible for entitling and developing their respective projects.
E. Between 2019 and 2021 and most recently in May 2021, the ENRA was administratively
extended and amended several times to extend its terms and, among other things, to replace
the developer for the residential component of the proposed development on the Old
Firehouse Parcel. In consideration for the right to exclusively negotiate under the ENRA,
Buyer has previously remitted to Seller a deposit in the amount of Fifty Thousand Dollars
($50,000), which is to be deposited into escrow and credited towards Buyer’s ultimate
purchase price for the Property as provided herein.
202
- 2 -
F. In addition to the Deposit, Buyer also remitted to Seller an initial payment in the amount of
Thirty Thousand Dollars ($30,000) in immediately available funds (“Payment”) in
connection with the ENRA, which was subsequently drawn upon to reimburse Seller for
work performed in connection with the ENRA. Seller has deposited the Payment in an
interest bearing account of Seller and any interest, when received by Seller, will become
part of the Payment. The Payment may be drawn upon by Seller to reimburse staff, City
Attorney, and City consultant costs as provided herein but is not to be applied towards the
ultimate purchase price for the Property.
G. The ENRA contemplates the Seller, Buyer and the residential component developer to
negotiate two (2) separate purchase agreements in order for Buyer and the residential
component developer to pursue land use entitlements for the Commercial Project and the
proposed residential development, respectively, and to acquire the bifurcated parcels
respectively for such purposes.
H. Buyer agrees to purchase the Property to construct the Commercial Project, and Seller
agrees to sell the Property to Buyer, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained in this Agreement, and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged by the parties, Seller and Buyer hereby agree as follows:
1. INCORPORATION OF RECITALS AND EXHIBITS. The Recitals set forth above
and the Exhibits attached to this Agreement are each incorporated into the body of this Agreement
as if set forth in full.
2. PURCHASE AND SALE.
2.1 Agreement to Buy and Sell. Subject to the terms and conditions set forth
herein, Seller agrees to sell the Property to Buyer, and Buyer hereby agrees to acquire the Property
from Seller.
2.2 Purchase Price. The purchase price for the Property to be paid by Buyer to
Seller (the “Purchase Price”) is one million twenty five thousand dollars ($1,025,000.00). The
Purchase Price shall be paid in cash at the Close of Escrow (“Closing”) to Seller.
2.3 Approval; CEQA Compliance. The Parties acknowledge and agree that the
execution of this Agreement does not constitute Seller’s approval or issuance of any entitlements
or permits for the development of the Property or construction of the Commercial Project and does
not relieve Buyer from its obligations to apply for and obtain all such approvals, entitlements and
permits. Further, the execution of this Agreement is subject to compliance with the California
Environmental Quality Act (“CEQA”) and does not constitute any approval or determination by
Seller thereunder. Buyer acknowledges that Seller is responsible as the lead agency as defined by
CEQA to complete all environmental analysis and determination required by CEQA. Seller agrees
to consider all applicable exemptions under CEQA in good faith.
2.4 Schedule of Performance. The Parties have collaborated on an anticipated
project milestone schedule attached hereto and incorporated herein as Exhibit D (“Schedule of
203
- 3 -
Performance”). The Parties agree this Schedule of Performance constitutes the reasonable
estimates of the timing of performance for actions associated with this Agreement and development
of the Property, and agree to adhere to the Schedule of Performance as much as reasonably possible.
Any extension of time from the dates set forth in the Schedule of Performance shall require approval
as provided in Section 13.18 below. However, in no event shall a failure by either Party to meet any
timeline under the Schedule of Performance constitute a default under this Agreement as long as
diligent efforts were made towards meeting such timelines.
3. ESCROW.
3.1 Escrow Account. Buyer has opened an interest-bearing escrow account
(the “Escrow”) maintained by Ticor Title Company in Newport Beach, California (the “Escrow
Holder”), with interest accruing to the benefit of Buyer. Buyer shall be responsible for all Escrow
fees and costs. Escrow Holder shall perform all escrow and title services in connection with this
Agreement.
3.2 Opening of Escrow. Within seven (7) business days after the Effective
Date, the Parties will deposit into Escrow the fully executed Agreement, or executed counterparts
thereto. Escrow shall not open until Seller and Buyer have satisfied all of their respective
obligations as set forth below. The date that is the later of the following to occur shall be deemed
the “Opening of Escrow”:
(a) Buyer shall have obtained all required Planning entitlements from the
Seller for the development of the Property.
(b) Buyer shall have submitted a draft Developer’s Financing Plan (as
defined in Section 5.2(e) below) to Seller for review not later than forty-five (45) days prior to
Seller’s consideration of entitlements for the development of the Property.
(c) Buyer shall have submitted an application for building permits to
develop the Property to Seller for review.
(d) Buyer shall have, with reasonable cooperation from Seller, submitted
all documents, material and maps and undertaken all actions applicable and necessary for Seller to
approve, and Seller shall have approved the vacation of Cypress Avenue.
(e) Buyer shall have, with reasonable cooperation from Seller, prepared all
documents, materials and maps and undertaken all actions necessary to complete a lot line
adjustment bifurcating the Old Firehouse Parcel into two parcels as contemplated in the ENRA.
3.3 Buyer’s Reimbursement for City Administrative Costs. During the term of
this Agreement, Buyer shall reimburse Seller for all staff and City consultant time incurred in
completing the obligations that relate to the purchase and conveyance of the Property. The Parties
acknowledge that Buyer has previously remitted to Seller an initial payment in the amount of Thirty
Thousand Dollars ($30,000) in immediately available funds (“Payment”) in connection with the
ENRA as most recently amended on May 28, 2021, which Payment was subsequently drawn upon
to reimburse Seller for work performed in connection with the ENRA and subsequent amendments.
Seller has deposited the Payment in an interest bearing account of Seller and any interest, when
204
- 4 -
received by Seller, will become part of the Payment. The Payment shall be drawn down by Seller
to reimburse staff, City Attorney, and City consultant costs for completing the obligations that relate
to the purchase and conveyance of the Property to Buyer, at the rates most recently approved by
City Council in the City’s master fee schedule or under contract. Should the full amount of the
Payment be exhausted prior to Closing, Buyer shall replenish the Payment amount with additional
funds necessary to reimburse such staff, City Attorney and consultant costs. Documentation of
City’s rate schedule for staff, staff time spent, and consultant costs shall be retained by Seller and
provided to Buyer upon request. The Payment shall not be applied towards the Purchase Price at
Closing and any unused portion of the Payment shall be refunded to Buyer within thirty (30) days
after the completion of all Closing or post-Closing obligations, as applicable.
3.4. Buyers Deposit. The Parties acknowledge that Buyer, in consideration for
the right to exclusively negotiate under the ENRA, previously remitted to Seller a deposit in the
amount of Fifty Thousand Dollars ($50,000) (the “Deposit”) pursuant to section 5(a) of the ENRA
as most recently amended. Within three (3) business days after the Opening of Escrow, Seller shall
deliver the Deposit into Escrow with Escrow Holder on behalf of Buyer. If Buyer does not issue a
Disapproval Notice (as defined in Section 3.5 below), Buyer shall deposit an additional fifty
thousand dollars ($50,000.00) in Escrow (the “Additional Deposit”). The Deposit and Additional
Deposit are sometimes collectively referred to herein as the “Deposits.” The Deposits shall become
non-refundable regardless of whether Buyer has issued a Disapproval Notice except in the event of
Seller’s default under this Agreement. The Deposits shall be applied towards the Purchase Price at
Closing if Buyer does not terminate this Agreement pursuant to Section 3.5.
3.5. Satisfaction of Due Diligence Contingency. Buyer shall have the right, in its
sole discretion, to terminate this Agreement for any reason at any time prior to the expiration of the
Due Diligence Contingency Period (as defined in Section 5.2 (a) below) by providing written notice
thereof. Without limiting the generality of the foregoing, Buyer’s reasons for terminating this
Agreement may include: (i) Seller approves entitlements for the development of the Property that
are not satisfactory to Buyer in Buyer’s sole discretion; (ii) Seller requires any portion of the
Property be committed to retail uses; (iii) Seller does not approve a parking reduction for the
Commercial Project based on the project’s proposed Transportation Demand Management (TDM)
Plan, or Seller requires shared parking; or (iv) Seller rejects the proposed parking layout, and
elimination of existing on-street parking and vehicle ingress and egress routes to the parking spaces
from Second Lane, South San Francisco as depicted on the submitted plans during the pre-
application process attached hereto as Exhibit C . Buyer hereby agrees to provide written notice to
Seller prior to the expiration of the Due Diligence Contingency Period if Buyer elects to terminate
this Agreement pursuant to this Section 3.5 (“Disapproval Notice”). If Buyer provides a
Disapproval Notice to Seller before 11:59 p.m. on the last day of the Due Diligence Contingency
Period, this Agreement shall terminate, and Seller shall retain the Deposit, and neither party shall
have any further rights or obligations hereunder except those which expressly survive the
termination hereof. If Buyer fails to deliver the Disapproval Notice to Seller prior to 11:59 p.m. on
the last day of the Due Diligence Contingency Period, it will be conclusively presumed that Buyer
has approved all such items, matters or documents, and this Agreement shall not terminate.
4. PROPERTY DISCLOSURE REQUIREMENTS.
4.1 Condition of Title/Preliminary Title Report. Escrow Holder shall deliver
a Preliminary Title Report for the Old Firehouse Parcel (the “First Preliminary Report”) to Buyer
205
- 5 -
within three (3) days after the Effective Date. After Buyer and Seller have undertaken all actions
necessary for the vacation of Cypress Avenue and completion of the lot line adjustment bifurcating
the Old Firehouse Parcel into two parcels as described in Section 3.3, Buyer shall deliver to Escrow
Holder and Escrow Holder shall furnish Seller with evidence that the lot line adjustment has been
completed and, if elected by Buyer at Buyer’s own expense, Escrow Holder shall delivery a second
Preliminary Title Report for the Property as a separate parcel (“Second Preliminary Report”).
Buyer shall have until the end of the Due Diligence Contingency Period to approve the condition
of title to the Property. If Buyer does not deliver the Disapproval Notice, Buyer agrees to take title
to the Property subject to the following “Permitted Exceptions”: (a) standard printed exceptions
in the First and Second Preliminary Reports (if Second Preliminary Report is provided); and
(b) general and special real property taxes and assessments constituting a lien not yet due and
payable. In no event shall any monetary liens be deemed a Permitted Exception. Buyer shall
provide any objections to the condition of title to Seller in writing prior to the Due Diligence
Contingency Period.
4.2 Environmental Condition of Property. Seller has provided Buyer with all
documents reasonably known to Seller pertaining to the environmental condition of the Property.
At Closing, the Buyer agrees to take title of the Property in AS- IS WHERE-IS condition with no
environmental remediation work required by or indemnities from Seller. Seller, at Buyer’s expense,
agrees to reasonably cooperate with Buyer to obtain regulatory approval of any necessary
environmental work for the Property. Buyer explicitly acknowledges that Buyer will be responsible
to manage and complete any remediation work for the Property after Closing. After Closing, Seller
shall have no further obligations with respect to environmental and/or natural hazards remediation
costs.
4.3 Environmental and Natural Hazards Disclosure. California Health & Safety
Code section 25359.7 requires owners of non-residential real property who know, or have
reasonable cause to believe, that any release of hazardous substances are located on or beneath the
real property to provide written notice of same to the buyer of real property. Other applicable laws
require Seller to provide certain disclosures regarding natural hazards affecting the Property.
Pursuant to Section 4.2, Seller agrees to make any necessary disclosures required by law.
5. CLOSING AND PAYMENT OF PURCHASE PRICE.
5.1 Closing. The closing (the “Closing” or “Close of Escrow”) shall occur
within ten (10) business days after Buyer has satisfied all conditions to closing as described below
(“Closing Date”) or such other date that the Parties agree in writing. Notwithstanding the foregoing,
the Closing Date shall not occur later than December 31, 2022.
5.2 Buyer’s Conditions to Closing. Buyer's obligation to purchase the Property
is subject to the satisfaction of all of the following conditions or Buyer's written waiver thereof (in
Buyer’s sole discretion) on or before the Closing Date:
(a) Buyer has approved the condition of the Property. Buyer will have
sixty (60) calendar days from the Opening of Escrow (the “Due Diligence Contingency Period”)
to complete physical inspections of the Property and due diligence related to the purchase of the
Property. Seller shall provide to Buyer copies of all reasonably available and known documents
relating to the ownership and operation of the Property, including but not limited to plans, permits
206
- 6 -
and reports (environmental, structural, mechanical, engineering and land surveys) that Seller has in
its possession not later than two (2) business days following the execution and delivery of this
Agreement. All physical inspections must be coordinated with Seller’s representative. Buyer hereby
agrees to indemnify and hold Seller harmless for any damage to the Property caused (but not merely
revealed) by Buyer’s inspections.
(b) Seller has performed all obligations to be performed by Seller
pursuant to this Agreement.
(c) Seller’s representations and warranties herein are true and correct in
all material respects as of the Closing Date.
(d) The Title Company is irrevocably committed to issue an ALTA
standard coverage title insurance policy to Buyer, effective as of the Closing Date, insuring title to
Buyer in the full amount of the Purchase Price.
(e) Buyer shall have obtained all necessary entitlements and have
submitted all necessary documents and resolved all Seller edits and comments thereto, that are
necessary for Seller to issue a building permit for the development of the Property.
(f) Buyer shall have negotiated and executed any agreements for the
shared maintenance, construction or access between Buyer and the residential component developer
that are reasonably determined by Buyer to be necessary.
(g) Seller shall have approved the vacation of Cypress Avenue and the
lot line adjustment bifurcating the Property into two parcels.
5.3 Seller’s Conditions to Closing. The Close of Escrow and Seller’s obligation
to sell and convey the Property to Buyer are subject to the satisfaction of the following conditions
or Seller’s written waiver (in Seller’s sole discretion) of such conditions on or before the Closing
Date:
(a) Buyer shall have submitted the final insurance, business and
financing plan for the development of the Property, which shall include a pro forma and
substantially final financing terms contained in a financing commitment letter that confirms to the
Seller’s reasonable satisfaction the financial feasibility of Buyer’s development of the Project
(“Developer’s Financing Plan”) to Seller for approval.
(b) Buyer shall have submitted all necessary documents and resolved all
Seller edits and comments thereto, that are necessary for Seller to issue a building permit for the
development of the Property.
(c) Buyer has performed all obligations to be performed by Buyer
pursuant to this Agreement before Closing Date.
(d) Buyer's representations and warranties set forth herein are true and
correct in all material respects as of the Closing Date.
207
- 7 -
(e) Seller shall have approved the vacation of Cypress Avenue and the
lot line adjustment bifurcating the Property into two parcels.
5.4 Conveyance of Title. Seller will deliver marketable fee simple title to Buyer
at the Closing, subject only to the Permitted Exceptions. The Property will be conveyed by Seller
to Buyer in an “as is”, “where is,” and “with all faults” condition, with no warranty, express or
implied, by Seller as to the physical condition including, but not limited to, the soil, its geology, or
the presence of known or unknown faults or Hazardous Materials or hazardous waste (as defined
by Section 12); provided, however, that the foregoing shall not relieve Seller from disclosure of any
such conditions of which Seller has actual knowledge.
5.5 Deliveries at Closing.
(a) Deliveries by Seller. Seller shall deposit into the Escrow for delivery
to Buyer at Closing: (i) a grant deed, substantially in the form attached hereto as Exhibit B (“Grant
Deed”); (ii) an affidavit or qualifying statement which satisfies the requirements of paragraph 1445
of the Internal Revenue Code of 1986, as amended, any regulations thereunder (the “Non-Foreign
Affidavit”); (iii) a California Franchise Tax Board form 590 (the “California Certificate”) to
satisfy the requirements of California Revenue and Taxation Code Section 18805(b) and 26131.
(b) Deliveries by Buyer. No less than one (1) business day prior to the
Close of Escrow, Buyer shall deposit into escrow immediately available funds in the amount, which
together with the Deposits is equal to: (i) the Purchase Price as adjusted by any prorations between
the Parties; (ii) the escrow fees and recording fees; and (iii) the cost of the Title Policy.
(c) Closing. Upon Closing, Escrow Holder shall: (i) record the Grant
Deed; (ii) disburse to Seller the Purchase Price, less Seller’s share of any escrow fees, costs and
expenses; (iii) deliver to Buyer the Non-Foreign Affidavit, the California Certificate and the
original recorded Grant Deed; (iv) pay any commissions and other expenses payable through
escrow; and (vi) distribute to itself the payment of escrow fees and expenses required hereunder.
(d) Closing Costs. Buyer will pay all escrow fees (including the costs of
preparing documents and instruments), and recording fees. Buyer will also pay title insurance and
title report costs and all expenses associated with obtaining title insurance and report, except that
Seller agrees to furnish a property owner’s affidavit necessary for Buyer to acquire title insurance
coverage. Buyer shall also pay all other Closing costs including but not limited to any applicable
transfer taxes and governmental conveyance fees.
(e) Pro-Rations. At the close of escrow, the Escrow Agent shall make
the following prorations: (i) property taxes will be prorated as of the close of escrow based upon
the most recent tax bill available, including any property taxes which may be assessed after the
close of escrow but which pertain to the period prior to the transfer of title to the Property to Buyer,
regardless of when or to whom notice thereof is delivered; and (ii) any bond or assessment that
constitutes a lien on the Property at the close of escrow will be assumed by Buyer. Seller does not
pay ad valorem taxes.
208
- 8 -
5.6 Post-Closing Obligations. The following obligations shall survive the Close
of Escrow:
(a) Permits. Buyer shall take all necessary actions for building permits
to be issued to Buyer for the development of the Property within twenty (20) business days
following the Close of Escrow. Buyer shall pay all applicable permit fees, development fees,
planning and engineering department fees, and administrative fees and costs associated with
obtaining permits and entitlements in accordance with the most recent City Master Fee Schedule
adopted by the City Council.
(b) Developer’s Financing Plan. Seller shall have approved (which
approval shall not be unreasonably withheld, conditioned or delayed) the Developer’s Financing
Plan submitted by Buyer pursuant to Section 5.3 above.
(c) Seller shall have received for its review the construction contract for
Buyer’s development of the Property (the “Construction Contract”).
(c) Commence Work. Buyer shall commence work to develop the
Property in accordance with the Schedule of Performance under Exhibit D.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1 Seller’s Representations, Warranties and Covenants. In addition to the
representations, warranties and covenants of Seller contained in other sections of this Agreement,
Seller hereby represents, warrants and covenants to Buyer that the statements below in this Section
6.1 are each true and correct as of the Effective Date and the Closing Date provided however, if to
Seller’s actual knowledge any such statement becomes untrue prior to Closing, Seller will notify
Buyer in writing and Buyer will have three (3) business days thereafter to determine if Buyer wishes
to proceed with Closing or terminate this Agreement. If Buyer determines it does not wish to
proceed, then the terms of Section 3.4 will apply.
(a) Authority. Seller is a municipal corporation, lawfully formed, in
existence and in good standing under the laws of the State of California. Seller has the full right,
capacity, power and authority to enter into and carry out the terms of this Agreement. This
Agreement has been duly executed by Seller, and upon delivery to and execution by Buyer is a
valid and binding agreement of Seller.
(b) Encumbrances. Seller has not alienated, encumbered, transferred,
mortgaged, assigned, pledged, or otherwise conveyed its interest in the Property or any portion
thereof, nor entered into any Agreement to do so, and there are no liens, encumbrances, mortgages,
covenants, conditions, reservations, restrictions, easements or other matters affecting the Property,
except as disclosed in the First and Second Preliminary Reports (if Second Preliminary Report is
provided). Seller will not, directly or indirectly, alienate, encumber, transfer, mortgage, assign,
pledge, or otherwise convey its interest prior to the Close of Escrow, as long as this Agreement is
in force.
(c) Agreements. There are no agreements affecting the Property except
those which have been disclosed by Seller. There are no agreements which will be binding on the
209
- 9 -
Buyer or the Property after the Close of Escrow, which cannot be terminated on thirty (30) days
prior written notice.
(d) Conflicts and Pending Actions. There is no agreement to which
Seller is a party or, to Seller’s knowledge, binding on Seller, which is in conflict with this
Agreement. There is no action, suit, arbitration, unsatisfied order or judgment, governmental
investigation or proceeding pending or, to Seller’s knowledge, threatened against the Property or
the transaction contemplated by this Agreement.
(f) Lease. There are no leases of space in the Property, subleases,
licenses, franchise agreements or other agreements to occupy or utilize all or any portion of the
Property that will be in force after the Closing. At Closing, Seller shall deliver the Property to
Buyer vacant of any occupants.
(g) Condemnation. No condemnation proceedings relating to the
Property are pending or, to Seller’s knowledge, threatened.
(h) Foreign Person; OFAC. Seller is not a “foreign person” within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended. Seller represents
and warrants that (a) Seller and, to Seller’s actual knowledge, each person or entity owning an
interest in Seller is (i) not currently identified on the Specially Designated Nationals and Blocked
Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury
(“OFAC”) and/or on any other similar list maintained by OFAC pursuant to any authorizing statute,
executive order or regulation (collectively, the “List”), and (ii) not a person or entity with whom a
citizen of the United States is prohibited to engage in transactions by any trade embargo, economic
sanction, or other prohibition of United States law, regulation, or Executive Order of the President
of the United States, and (iii) not an Embargoed Person (as hereinafter defined), (b) to Seller’s
actual knowledge, none of the funds or other assets of Seller constitute property of, or are
beneficially owned, directly or indirectly, by any Embargoed Person, and (c) to Seller’s actual
knowledge, no Embargoed Person has any interest of any nature whatsoever in Seller (whether
directly or indirectly). The term “Embargoed Person” means any person, entity or government
subject to trade restrictions under U.S. law, including but not limited to, the International
Emergency Economic Powers Act, 50 U.S.C. §1701 et seq., The Trading with the Enemy Act, 50
U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder.
(i) Compliance. Seller has not received any written notice from any
governmental authority that the Property is not in material compliance with all applicable laws and
regulations (including environmental and zoning laws and regulations), other than such violations
as have been fully cured. To Seller’s knowledge, neither Seller nor the Property are in default or
breach of any material obligation under any encumbrances, covenants or easement agreements
recorded against the Property.
(j) Hazardous Materials. Except as otherwise disclosed to Buyer by
Seller (including in any materials delivered or made available to Buyer), Seller has received no
written notice from any local, state or national governmental entity or agency of any asbestos, lead
or other Hazardous Materials existing or potentially existing with respect to the Property. As used
herein, “Hazardous Material” means any hazardous, toxic or dangerous waste, substance or
material, pollutant or contaminant, as defined for purposes of the Comprehensive Environmental
210
- 10 -
Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as amended,
or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, or
any other laws, or any substance which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous, or any substance which contains
gasoline, diesel fuel or other petroleum hydrocarbons, polychlorinated biphenyls (PCBs), or radon
gas, urea formaldehyde, asbestos or lead.
(k) Purchase Options. There are no outstanding rights of first refusal,
rights of first offer, purchase options or similar purchase rights with respect to the Property.
(l) Management Agreements. There are no management agreements,
leasing agreements, brokerage agreements or similar agreements which affect the Property and will
survive Closing.
(m) Taxes. To Seller’s knowledge, there are no impositions of new
special assessments with respect to the Property.
The truth and accuracy of each of the representations and warranties, and the
performance of all covenants of Seller contained in this Agreement are conditions precedent to
Buyer’s obligation to proceed with the Closing hereunder. The foregoing representations and
warranties shall survive the expiration, termination, or Close of Escrow of this Agreement and shall
not be deemed merged into the deed upon Closing.
6.2 Buyer’s Representations and Warranties. In addition to the representations,
warranties and covenants of Buyer contained in other sections of this Agreement, Buyer hereby
represents, warrants and covenants to Seller that the statements below in this Section 6.2 are each
true as of the Effective Date, and, if to Buyer’s actual knowledge any such statement becomes
untrue prior to Closing, Buyer shall so notify Seller in writing and Seller shall have at least three
(3) business days thereafter to determine if Seller wishes to proceed with Closing.
(a) Buyer is a California limited liability company. Buyer has the full
right, capacity, power and authority to enter into and carry out the terms of this Agreement. This
Agreement has been duly executed by Buyer, and upon delivery to and execution by Seller shall be
a valid and binding agreement of Buyer.
(b) Buyer is not bankrupt or insolvent under any applicable federal or
state standard, has not filed for protection or relief under any applicable bankruptcy or creditor
protection statute, and has not been threatened by creditors with an involuntary application of any
applicable bankruptcy or creditor protection statute.
(c) Pending Actions. There is no action, suit, arbitration, unsatisfied
order or judgment, government investigation or proceeding pending against Buyer which, if
adversely determined, could individually or in the aggregate materially interfere with the
consummation of the transaction contemplated by this Agreement.
(d) ERISA. Buyer is not acquiring the Property with the assets of an
employee benefit plan as defined in Section 3(3) of ERISA.
211
- 11 -
(e) Foreign Person; OFAC. Buyer is not a “foreign person” within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended. Buyer and, to
Buyer’s actual knowledge, each person or entity owning an interest in Buyer is (i) not currently
identified on the Specially Designated Nationals and Blocked Persons List maintained by the OFAC
and/or on any other similar List, (ii) not a person or entity with whom a citizen of the United States
is prohibited to engage in transactions by any trade embargo, economic sanction, or other
prohibition of United States law, regulation, or Executive Order of the President of the United
States, and (iii) not an “Embargoed Person,” to Buyer’s actual knowledge, none of the funds or
other assets of Buyer constitute property of, or are beneficially owned, directly or indirectly, by any
Embargoed Person, and to Buyer’s actual knowledge, no Embargoed Person has any interest of any
nature whatsoever in Buyer (whether directly or indirectly).
The truth and accuracy of each of the representations and warranties, and the
performance of all covenants of Buyer contained in this Agreement are conditions precedent to
Seller’s obligation to proceed with the Closing hereunder.
6.3 Property Sold, “AS IS”. Buyer specifically acknowledges that the Seller is
selling the Property on an “AS IS”, “WHERE IS” and “WITH ALL FAULTS” basis and that,
subject to Seller's representations, warranties, covenants and obligations set forth in this Agreement,
and all exhibits attached hereto and incorporated herein, and any obligations arising under
applicable law, and any document or instrument executed and delivered in connection with Closing,
Buyer is not relying on any representations or warranties of any kind whatsoever, express or
implied, from Seller, or its employees, appointed or elected officials, agents, or brokers as to any
matters concerning the Property. Subject to Seller's representations, warranties, covenants and
obligations set forth in this Agreement, and all exhibits attached hereto and incorporated herein,
and any obligations arising under applicable law, and any document or instrument executed and
delivered in connection with Closing, Seller makes no representations or warranties as to any
matters concerning the Property, including without limitation: (i) the quality, nature, adequacy and
physical condition of the Property, (ii) the quality, nature, adequacy, and physical condition of soils,
geology and any groundwater, (iii) the existence, quality, nature, adequacy and physical condition
of utilities serving the Property, (iv) the development potential of the Property, and the Property's
use, habitability, merchantability, or fitness, suitability, value or adequacy of the property for any
particular purpose, (v) except as otherwise provided in this Agreement, the zoning or other legal
status of the Property or any other public or private restrictions on use of the Property, (vi) the
compliance of the Property or its operation with any Environmental Laws, covenants, conditions
and restrictions of any governmental or quasi-governmental entity or of any other person or entity,
(vii) the presence or removal of Hazardous Materials, substances or wastes on, under or about the
Property or the adjoining or neighboring property; (viii) the quality of any labor and materials used
in any improvements on the Property, (ix) the condition of title to the Property, (x) the leases,
service contracts, or other agreements affecting the Property, or (xi) the economics of the operation
of the Property.
7. REMEDIES In the event of a breach or default under this Agreement by Seller, if
such breach or default occurs prior to Close of Escrow, Buyer reserves the right to either (a) seek
specific performance from Seller or (b) to do any of the following: (i) to waive the breach or default
and proceed to close as provided herein; (ii) to extend the time for performance and the Closing
Date until Seller is able to perform; or (iii) to terminate this Agreement upon written notice to Seller,
whereupon Seller shall cause Escrow Holder to return to Buyer any and all sums placed into the
212
- 12 -
Escrow by Buyer, and except for the rights and obligations expressly provided to survive
termination of this Agreement, neither party shall have any further obligations or liabilities
hereunder. IN THE EVENT OF A BREACH OR DEFAULT HEREUNDER BY BUYER AND
THE CLOSING DOES NOT OCCUR DUE TO SUCH DEFAULT, SELLER’S SOLE REMEDY
SHALL BE TO RETAIN THE DEPOSITS AS LIQUIDATED DAMAGES. THE PARTIES
AGREE THAT IN SUCH INSTANCE, THE DEPOSITS REPRESENT A REASONABLE
APPROXIMATION OF SELLER’S DAMAGES AND ARE NOT INTENDED AS A
FORFEITURE OR PENALTY BUT RATHER AN ENFORCEABLE LIQUIDATED DAMAGES
PROVISION PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671, ET SEQ. IN NO
EVENT SHALL EITHER PARTY BE ENTITLED TO LOST PROFITS OR CONSEQUENTIAL
DAMAGES AS A RESULT OF THE OTHER PARTY’S BREACH OF THIS AGREEMENT.
Buyer’s Initials Seller’s Initials
8. BROKERS. Seller represents that no real estate broker has been retained by Seller
in the sale of the Property or the negotiation of this Agreement. Buyer represents that no real estate
broker has been retained by Buyer in the procurement of the Property or negotiation of this
Agreement. Each Party shall indemnify, hold harmless and defend the other Party from any and all
Claims and Losses for any breach of the preceding sentence, and any commission, finder’s fee, or
similar charges arising out of the same.
9. ASSIGNMENT. Absent an express signed written agreement between the Parties
to the contrary, neither Seller nor Buyer may assign its rights or delegate its duties under this
Agreement without the express written consent of the other. No permitted assignment of any of the
rights or obligations under this Agreement shall result in a novation or in any other way release the
assignor from its obligations under this Agreement. Buyer may not assign its rights under this
Agreement without first obtaining Seller’s written consent, which approval may be given or
withheld in Seller’s reasonable discretion. Seller’s approval of any assignment pursuant to this
Section 9 shall be contingent on the review and approval by the City Council of such proposed
assignment. Any transfer, directly or indirectly, of any stock, partnership interest or other ownership
interest in Buyer, for the sole purpose of transferring Buyer’s interest in this Agreement, without
Seller’s written approval, which approval may be given or withheld in Seller’s reasonable
discretion, shall constitute a default by Buyer under this Agreement. Without limitation of the
foregoing, no assignment by Buyer shall relieve Buyer of any of its obligations or liabilities
pursuant to this Agreement. Notwithstanding the foregoing, without having to obtain Seller’s
approval, Buyer may assign its interest in this Agreement on or before the Closing Date to an entity
(a “Buyer Assignee”) that is (a) an entity of which Buyer has day-to-day managerial control or (b)
any joint venture entity in which Buyer maintains a majority economic interest, or may (c) partially
assign this Agreement for the purposes of enabling closing as tenant-in-common with an otherwise
joint venture partner of Buyer for the purposes of consummating a tax deferred exchange, so long
as Buyer and Buyer Assignee execute and deliver an assignment and assumption agreement in form
reasonably satisfactory to Seller, pursuant to which Buyer Assignee remakes all of Buyer’s
representation and warranties set forth in this Agreement and the transferor shall not be released
from the obligations of “Buyer” hereunder.
213
- 13 -
10. INDEMNIFICATION; ENVIRONMENTAL INDEMNITY.
10.1 Indemnification. To the fullest extent allowed by law, Buyer agrees to
unconditionally and fully indemnify, protect, defend (with counsel satisfactory to Seller), and hold
Seller, and its respective elected and appointed officers, officials, employees, agents, consultants,
contractors (collectively “Seller Indemnitees”), harmless from any and all third party claims,
liabilities, damages and costs (including reasonable attorney’s fees) arising out of or in connection
with Buyer’s performance under this Agreement, except to the extent that such claims, liabilities,
damages and costs are attributable to Seller’s negligence or willful misconduct or to a condition of
the Property in existence prior to Closing.
10.2 Environmental Indemnity. In addition to Section 10.1 above, to the fullest
extent allowed by law, Buyer agrees to unconditionally and fully indemnify, protect and defend
(with counsel satisfactory to Seller) the Seller Indemnitees harmless from and against any and all
claims (including without limitation third party claims for personal injury, real or personal property
damage, or damages to natural resources), actions, administrative proceedings (including without
limitation both formal and informal proceedings), judgments, damages, punitive damages,
penalties, fines, costs (including without limitation any and all costs relating to investigation,
assessment, analysis or clean-up of the Property), liabilities (including without limitation sums paid
in settlements of claims), interest, or losses, including reasonable attorneys’ and paralegals’ fees
and expenses (including without limitation any such fees and expenses incurred in enforcing this
Agreement or collecting any sums due hereunder), together with all other costs and expenses of any
kind or nature (collectively, the “Costs”) that arise directly or indirectly from or in connection with
the presence, suspected presence, release, or suspected release, of any Hazardous Materials in, on
or under the Property or in or into the air, soil, soil gas, groundwater, or surface water at, on, about,
around, above, under or within the Property, or any portion thereof, except those Costs that arise
solely as a result of actions by Seller, or Seller’s agents, employees, or contractors. The
indemnification provided pursuant to this Section shall specifically apply to and include claims or
actions brought by or on behalf of employees of Buyer or any of its predecessors in interest and
Buyer hereby expressly waives any immunity to which Buyer may otherwise be entitled under any
industrial or worker’s compensation laws. In the event the Seller suffers or incurs any Costs, Buyer
shall pay to Seller the total of all such Costs suffered or incurred by the Seller upon demand
therefore by Seller. The indemnification provided pursuant to this Section shall include, without
limitation, all loss or damage sustained by the Seller due to any Hazardous Materials: (a) that are
present or suspected by a governmental agency having jurisdiction to be present in the Property or
in the air, soil, soil gas, groundwater, or surface water at, on, about, above, under, or within the
Property (or any portion thereof) or to have emanated from the Property, or (b) that migrate, flow,
percolate, diffuse, or in any way move onto, into, or under the air, soil, soil gas, groundwater, or
surface water at, on, about, around, above, under, or within the Property (or any portion thereof)
after the date of this Agreement as a result of Seller’s or its predecessors’ activities on the Property,
or those of Seller’s agents, employees, or contractors. The provisions of this Section 10 shall
survive the termination of this Agreement and the Close of Escrow.
11. RELEASE BY BUYER. Effective upon the Close of Escrow, except with respect
to the representations and warranties of Seller under Section 6.1 of this Agreement, Buyer waives
releases, remises, acquits and forever discharges Seller, and its officers, directors, board members,
managers, employees and agents, and any other person acting on behalf of Seller, from any and all
claims, actions, causes of action, demands, rights, damages, costs, expenses and compensation
214
- 14 -
whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Buyer now has
or which may arise in the future on account of or in any way arising from or in connection with the
physical condition of the Property or any law or regulation applicable thereto including, without
limiting the generality of the foregoing, any federal, state or local law, ordinance or regulation
pertaining to Hazardous Materials. This Section 11 shall survive the termination of this Agreement
and the Close of Escrow.
BUYER ACKNOWLEDGES THAT BUYER IS FAMILIAR WITH SECTION 1542 OF THE
CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT
THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR
HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
BY INITIALING BELOW, BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF
THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE FOREGOING RELEASE:
Buyer’s initials: _____________
12. HAZARDOUS MATERIALS; DEFINITIONS.
12.1 Hazardous Materials. As used in this Agreement, “Hazardous Materials”
means any chemical, compound, material, mixture, or substance that is now or may in the future be
defined or listed in, or otherwise classified pursuant to any Environmental Laws (defined below) as
a “hazardous substance”, “hazardous material”, “hazardous waste”, “extremely hazardous waste”,
infectious waste”, toxic substance”, toxic pollutant”, or any other formulation intended to define,
list or classify substances by reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, or toxicity. The term “Hazardous Materials” shall also include asbestos
or asbestos-containing materials, radon, chrome and/or chromium, polychlorinated biphenyls,
petroleum, petroleum products or by-products, petroleum components, oil, mineral spirits, natural
gas, natural gas liquids, liquefied natural gas, and synthetic gas usable as fuel, perchlorate, and
methyl tert butyl ether, whether or not defined as a hazardous waste or hazardous substance in the
Environmental Laws.
12.2 Environmental Laws. As used in this Agreement, “Environmental Laws”
means any and all federal, state and local statutes, ordinances, orders, rules, regulations, guidance
documents, judgments, governmental authorizations or directives, or any other requirements of
governmental authorities, as may presently exist, or as may be amended or supplemented, or
hereafter enacted, relating to the presence, release, generation, use, handling, treatment, storage,
transportation or disposal of Hazardous Materials, or the protection of the environment or human,
plant or animal health, including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49
U.S.C. § 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.),
215
- 15 -
the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C.
§ 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act
(33 U.S.C. § 2701 et seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C.
§ 11001 et seq.), the Porter-Cologne Water Quality Control Act (Cal. Water Code § 13000 et seq.),
the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et seq.), the Safe Drinking
Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et seq.), the
Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et seq.), the Hazardous Materials
Release Response Plans & Inventory Act (Cal. Health & Safety Code § 25500 et seq.), and the
Carpenter-Presley-Tanner Hazardous Substances Account Act (Cal. Health and Safety Code,
Section 25300 et seq.).
13. MISCELLANEOUS.
13.1 Attorneys’ Fees. If any party employs counsel to enforce or interpret this
Agreement, including the commencement of any legal proceeding whatsoever (including
insolvency, bankruptcy, arbitration, mediation, declaratory relief or other litigation), the prevailing
party shall be entitled to recover its reasonable attorneys’ fees and court costs (including the service
of process, filing fees, court and court reporter costs, investigative fees, expert witness fees, and the
costs of any bonds, whether taxable or not) and shall include the right to recover such fees and costs
incurred in any appeal or efforts to collect or otherwise enforce any judgment in its favor in addition
to any other remedy it may obtain or be awarded. Any judgment or final order issued in any legal
proceeding shall include reimbursement for all such attorneys’ fees and costs. In any legal
proceeding, the “prevailing party” shall mean the party determined by the court to most nearly
prevail and not necessarily the party in whose favor a judgment is rendered.
13.2 Interpretation. This Agreement has been negotiated at arm’s length and each
party has been represented by independent legal counsel in this transaction and this Agreement has
been reviewed and revised by counsel to each of the Parties. Accordingly, each party hereby waives
any benefit under any rule of law (including Section 1654 of the California Civil Code) or legal
decision that would require interpretation of any ambiguities in this Agreement against the drafting
party.
13.3 Survival. All indemnities, covenants, representations and warranties
contained in this Agreement shall survive Close of Escrow.
13.4 Successors. Except as provided to the contrary in this Agreement, this
Agreement shall be binding on and inure to the benefit of the Parties and their successors and
assigns.
13.5 Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California.
13.6 Integrated Agreement; Modifications. This Agreement contains all the
agreements of the Parties concerning the subject hereof any cannot be amended or modified except
by a written instrument executed and delivered by the parties. There are no representations,
agreements, arrangements or understandings, either oral or written, between or among the parties
hereto relating to the subject matter of this Agreement that are not fully expressed herein. In
addition there are no representations, agreements, arrangements or understandings, either oral or
216
- 16 -
written, between or among the Parties upon which any party is relying upon in entering this
Agreement that are not fully expressed herein.
13.7 Severability. If any term or provision of this Agreement is determined to be
illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or
invalid provisions or part thereof shall be stricken from this Agreement, any such provision shall
not be affected by the legality, enforceability, or validity of the remainder of this Agreement. If
any provision or part thereof of this Agreement is stricken in accordance with the provisions of this
Section, then the stricken provision shall be replaced, to the extent possible, with a legal,
enforceable and valid provision this is in keeping with the intent of the Parties as expressed herein.
13.8 Notices. Any delivery of this Agreement, notice, modification of this
Agreement, collateral or additional agreement, demand, disclosure, request, consent, approval,
waiver, declaration or other communication that either party desires or is required to give to the
other party or any other person shall be in writing. Any such communication may be served
personally, or by nationally recognized overnight delivery service (i.e., Federal Express) which
provides a receipt of delivery, or sent by prepaid, first class mail, return receipt requested to the
party’s address as set forth below, or by fax or electronic mail, in each case, sent to the intended
addressee at the address set forth below, or to such other address or to the attention of such other
person as the addressee shall have designated by written notice sent in accordance herewith, and
shall be deemed to have been given either at the time of first attempted delivery at the address and
in the manner provided herein, or, in the case of electronic mail for fax, as of the date of the
electronic mail or fax:
To Buyer: Firehouse Work LLC
211 Linden Ave
South San Francisco, CA 94080
Attn: Dawn Merkes
Email: dmerkes@g4arch.com
Telephone No.: (650) 871-0709
With a Copy to: Coblentz Patch Duffy & Bass LLP
One Montgomery Street, Suite 3000
San Francisco, CA 94104
Attn: Frank Petrilli
Email: fpetrilli@coblentzlaw.com
Telephone No.: (415) 268-0503
To Seller: City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: City Manager, Mike Futrell
Email: mike.futrell@ssf.net
Telephone No.: (650) 829 6620
Fax (650) 829-6609
With Copy To: City of South San Francisco
400 Grand Avenue
217
- 17 -
South San Francisco, CA 94080
Attn: Project Manager, Julie Barnard
Email: Julie.barnard@ssf.net
Telephone No.: (650) 829 6629
With Copy To: Meyers Nave
1999 Harrison St., 9th Floor
Oakland, CA 94612
Attn: Sky Woodruff
Email: sky@meyersnave.com
To Escrow Holder: Ticor Title Company of California
1500 Quail Street, 3rd Floor
Newport Beach, CA 92660
Escrow Officer: Dawn Niehaus
Email: dawn.niehaus@ticortitle.com
Title Officer: David Noble
Title Officer Phone: (714) 289-3379
Title Officer Fax: (949) 809-0676
Title Officer Email: David.Noble@ticortitle.com
Any party may change its address by notice to the other party. Each party shall make
an ordinary, good faith effort to ensure that it will accept or receive notices that are given in
accordance with this section and that any person to be given notice actually receives such notice.
13.9 Time. Time is of the essence to the performance of each and every
obligation under this Agreement.
13.10 Days of Week. If any date for exercise of any right, giving of any
notice, or performance of any provision of this Agreement falls on a Saturday, Sunday or holiday,
the time for performance will be extended to 11:59 p.m. on the next business day.
13.11 Reasonable Consent and Approval. Except as otherwise provided in
this Agreement, whenever a party is required or permitted to give its consent or approval under this
Agreement, such consent or approval shall not be unreasonably withheld or delayed. If a party is
required or permitted to give its consent or approval in its sole and absolute discretion or if such
consent or approval may be unreasonably withheld, such consent or approval may be unreasonably
withheld but shall not be unreasonably delayed.
13.12 Further Assurances. The Parties shall at their own cost and expense
execute and deliver such further documents and instruments and shall take such other actions as
may be reasonably required or appropriate to carry out the intent and purposes of this Agreement.
13.13 Waivers. Any waiver by any party shall be in writing and shall not
be construed as a continuing waiver. No waiver will be implied from any delay or failure to take
action on account of any default by any party. Consent by any party to any act or omission by
218
- 18 -
another party shall not be construed to be consent to any other subsequent act or omission or to
waive the requirement for consent to be obtained in any future or other instance.
13.14 Signatures/Counterparts. This Agreement may be executed by
electronic or facsimile signature. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument. Any one of such completely executed counterparts shall be sufficient proof of
this Agreement.
13.15 Date and Delivery of Agreement. Notwithstanding anything to the
contrary contained in this Agreement, the parties intend that this Agreement shall be deemed
effective, and delivered for all purposes under this Agreement, and for the calculation of any
statutory time periods based on the date an agreement between parties is effective, executed, or
delivered, as of the Effective Date.
13.16 Representation on Authority of Parties. Each person signing this
Agreement represents and warrants that he or she is duly authorized and has legal capacity to
execute and deliver this Agreement. Each party represents and warrants to the other that the
execution and delivery of the Agreement and the performance of such party’s obligations hereunder
have been duly authorized and that the Agreement is a valid and legal agreement binding on such
party and enforceable in accordance with its terms.
13.17 Possession. At Closing, Seller shall deliver sole and exclusive
possession of the Property to Buyer.
13.18 Approvals. Except with respect to entitlements, permits, regulatory
and governmental approvals, including but not limited to street vacations contemplated in this
Agreement, whenever this Agreement calls for Seller approval, consent, extension or waiver, the
written approval, consent, or waiver of the Seller’s City Manager or his or her designee(s) shall
constitute the approval, consent, extension or waiver of the Seller, without further authorization
required from the Seller’s Council, provided, however, that the anticipated Schedule of
Performance may be administratively extended for two (2) six (6) month periods and any
subsequent extensions shall require approval by the City Council. Prior to Seller granting any
extensions, Buyer shall pay Five Thousand Dollar ($5,000) per administrative extension and
Fifteen Thousand Dollar ($15,000) per extension requiring Council approval, unless otherwise
agreed to by the Parties in writing. The Seller hereby authorizes the City Manager and his or her
designee(s) to deliver any such approvals, consents, or extensions or waivers as are required by this
Agreement, or that do not otherwise reduce Seller’s rights under this Agreement, and to waive
requirements under this Agreement, on behalf of the Seller.
13.19 Merger, Survival. The provisions of this Agreement shall not merge
with the delivery of the Deed or any other instrument delivered at Closing, but shall, except as
otherwise provided in this Agreement, survive the Closing.
SIGNATURES ON FOLLOWING PAGE
219
- 19 -
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
SELLER:
CITY OF SOUTH SAN FRANCISCO
By: _______________________________
Mike Futrell
City Manager
ATTEST:
By: _______________________________
Rosa Govea Acosta
City Clerk
APPROVED AS TO FORM:
By: _______________________________
Sky Woodruff
City Attorney
BUYER:
Firehouse Work, LLC
By: _______________________________
Andrea Gifford
Title: Member
By: _______________________________
Jonathan Hartman
Title: Member
By: _______________________________
Dawn Merkes
Title: Member
By: _______________________________
David Schnee
Title: Member
220
LIST OF EXHIBITS
Exhibit A Description of the Property
Exhibit B Grant Deed
Exhibit C Preliminary Plans
Exhibit D Schedule of Performance
221
Exhibit A
DESCRIPTION OF THE PROPERTY
222
Exhibit B
GRANT DEED
Recording Requested By and
When Recorded Return To:
Attention:
APN: ___________________
(Space above this line for Recorder’s use)
GRANT DEED
THE UNDERSIGNED GRANTOR(s) DECLARE(s):
DOCUMENTARY TRANSFER TAX IS $__________________ computed on full value of
property conveyed, or computed on full value less value of liens or encumbrances remaining at
time of sale.
_______________________________
Signature of Declarant
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
_______________________ _____________________________, a ____________________
(“Grantor”) hereby grants to _____________________________, a _________________
(“Grantee”), the real property located in the City of __________, County of __________, State
of __________, described on Exhibit A attached hereto and made a part hereof.
GRANTOR:
_______________________________, a _______________________________
By: _______________________________
Its: _______________________________
Date: _______________________________
223
[Exhibit A and notarial acknowledgement to be attached]
224
Exhibit C
PRELIMINARY PLANS
225
Exhibit D
SCHEDULE OF PERFORMANCE
1 Submit Planning Application and Street
Vacation Application Submittals
Within 30 calendar days of the Effective Date of
the Purchase Agreement
2
Provide Draft Financing Plan
No later than 45 calendar days prior to Planning
Commission Hearing on Entitlement Approvals
3 Submit Application for Building Permit No later than 30 business days following date all
Entitlement Approvals are final
4 Escrow Open 1 day following Building Permit submittal
5 Submit Final Financing Plan
Prior to Closing
6 Close of Escrow No later than December 31, 2022
7 Pull Building Permit and Pay Required Fees Within 20 business days after Closing
8 Deliver Construction Contract
Within 20 business days after City issues building
permit
9 Commence Construction
Within 3 months after City issues building permit
10
Substantial Completion of Construction Within 9 months after commencing construction
5010901.2
226
City of South San Francisco
Legislation Text
P.O. Box 711 (City Hall, 400
Grand Avenue)
South San Francisco, CA
File #:21-667 Agenda Date:11/10/2021
Version:1 Item #:12b.
Resolution making findings and approving a Purchase and Sale Agreement with Eden Housing for the
disposition of the City of South San Francisco-owned property located at 201a Baden Avenue (APNs 012-335-
100, and 012-335-110) for a nominal price of $1.00 and authorizing the City Manager to execute the
agreement.
WHEREAS, the City of South San Francisco (“City”) is the owner of certain real property located at 201
Baden Avenue, South San Francisco, which contains an old firehouse structure that has been decommissioned,
and known as County Assessor’s Parcel Numbers (“APN”) 012-335-100, 012-335-110, and the portion of
Cypress Street that is to be vacated, with a combined lot size of 22,500 square feet; and
WHEREAS, on March 4, 2019, pursuant to a solicitation process, the City entered into an Exclusive
Negotiating Rights Agreement (“ENRA”) with Firehouse Work, LLC (“FHW”) and a separate residential
project developer, which authorized the parties to commence negotiating the terms of purchase agreements
relating to the rehabilitation of the Old Firehouse and construction of a mixed-use residential and commercial
development at 201 Baden Avenue; and
WHEREAS, between 2019 and 2021 and most recently in May 2021, the ENRA was administratively extended
and amended several times to extend its terms and, among other things, to replace Eden Housing (“Developer”)
as the developer for the residential component of the proposed development at the 201 Baden Avenue site; and
WHEREAS, on July 14, 2021 the City Council reviewed the proposed purchase offer presented by Developer
and directed City staff to negotiate a Purchase and Sale Agreement (“PSA”); and
WHEREAS, specifically, the 201 Baden Avenue parcel will be bifurcated into two separate parcels, temporarily
identified as “201a” and “201b” Baden Avenue (and subsequently to be identified as APNs 012-335-100 and
012-335-110 after bifurcation), with the proposed development consisting of FHW rehabilitating the existing
old firehouse structure on the 201a Baden Avenue parcel into a 9,200 square foot commercial space, preserving
its historical significance, and of Developer constructing a separate affordable housing and commercial condo
project on the 201b Baden Avenue parcel; and
WHEREAS, the bifurcation process and related actions will be separately considered and approved by the City
Council; and
WHEREAS, the 201a Baden Avenue parcel will be sold to FHW, and the 201b Baden Avenue parcel to
Developer, in separate transactions for their respective projects and each developer would be responsible for
entitling and developing their respective projects; and
City of South San Francisco Printed on 12/14/2021Page 1 of 3
powered by Legistar™227
File #:21-667 Agenda Date:11/10/2021
Version:1 Item #:12b.
WHEREAS, City and Developer have negotiated a PSA, attached hereto at Exhibit A, where its terms and
provisions are agreed upon by both parties and both parties are prepared to enter into the agreement; and
WHEREAS, pursuant to the PSA, the 201b Baden Avenue parcel would be sold to Developer at the nominal
price of $1.00, which will provide the opportunity for the construction of 82 Below Market Rate (BMR) units
in the City and increase much needed housing opportunities to the public’s benefit and welfare; and
WHEREAS, prior to disposition of real property owned by the City, the Planning Commission as the planning
agency for the City is required to find such disposition is in conformity with the adopted general plan in
accordance with Government Code section 65402; and
WHEREAS, on September 15, 2021 the Planning Commission held a public meeting and determined by
resolution that the disposition of 201b Baden Avenue for the development of 82 Below Market Rate (BMR)
units is in conformance with the South San Francisco adopted General Plan; and,
WHEREAS, the General Plan Land Use Designation for the 201 Baden property is Downtown Transit Core,
which includes specific policies related to development within the Downtown in an effort to “promote infill
development, intensification, and reuse of currently underutilized sites”; and,
WHEREAS, the proposed sale of the property and the entitlements that will ensue for this project will provide
for the development of 82 BMR units promoting infill development and the intensification of an underutilized
site for higher density residential; and,
WHEREAS, these activities with continue to conform to the General Plan Land Use Policies; and
WHEREAS,on January 28,2015,the City Council certified an Environmental Impact Report (“EIR”),State
Clearinghouse number 2013102001,in accordance with the provisions of the California Environmental Quality
Act (Public Resources Code,§§21000,et seq.,“CEQA”)and CEQA Guidelines,which analyzed the potential
environmental impacts of the development of the Downtown Station Area Specific Plan (DSAP),including the
Downtown Transit Core area where the 201 Baden Avenue site is located; and
WHEREAS,on January 28,2015,the City Council also adopted a Statement of Overriding Considerations
(“SOC”)in accordance with the provisions of the California Environmental Quality Act (Public Resources
Code,§§21000,et seq.,“CEQA”)and CEQA Guidelines,which carefully considered each significant and
unavoidable impact identified in the EIR and found that the significant environmental impacts are acceptable in
light of the Downtown Station Area Specific Plan’s economic,legal,social,technological and other benefits;
and
WHEREAS,CEQA allows for limited environmental review of subsequent projects under a program EIR when
an agency finds that a project would not create any new environmental effects beyond those previously
analyzed under a program EIR and would not require any new mitigation measures (CEQA Guidelines §15168
(c)(2)); and
WHEREAS, the development of the 201 Baden Avenue property was contemplated in the DSAP EIR, and the
execution of a PSA for development consistent with the DSAP would not result in any new significant
environmental effects or a substantial increase in the severity of any previously identified effects beyond those
City of South San Francisco Printed on 12/14/2021Page 2 of 3
powered by Legistar™228
File #:21-667 Agenda Date:11/10/2021
Version:1 Item #:12b.
disclosed and analyzed in the Downtown Station Area Specific Plan Program EIR certified by the City Council,
nor would any new mitigation measures be required; and
WHEREAS, in addition, the proposed development projects at this site will also be subject to further
environmental review and determination pursuant to CEQA as a part of their respective planning entitlements
approval processes.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San Francisco does hereby
resolve as follows:
1.The foregoing recitals are true and correct and made a part of this Resolution.
2.The disposition of the 201 Baden Avenue property is consistent with the General Plan which includes
specific policies related to development within the Downtown in an effort to “promote infill development,
intensification, and reuse of currently underutilized sites” in the Downtown Transit Core area. Thus, in
accordance with California Government Code section 65402, the City Council hereby finds that the location,
purpose and extent of the proposed disposition of 201 Baden Avenue (APN 012-321-160 and 012-335-110), is
in conformity with the City’s adopted General Plan. The documents and other material constituting the record
for these proceedings are located at the Planning Division for the City of South San Francisco, 315 Maple
Avenue, South San Francisco, CA 94080, and in the custody of the Chief Planner, Tony Rozzi.
3.A Purchase and Sale Agreement with Eden Housing in substantially the same form attached hereto as
Exhibit A, for the disposition of the 201b Baden Avenue parcel as described in the foregoing recitals and in the
PSA, for a nominal price of $1.00, is hereby approved.
4.The City Manager is hereby authorized to enter into and execute on behalf of the City Council the
Purchase and Sale Agreement, in substantially the same form attached hereto as Exhibit A; and to make any
non-material revisions, amendments or modifications that do not increase the City’s obligations and deemed
necessary to carry out the intent of this Resolution.
5.The City Manager is hereby authorized to execute any other necessary documents related to the sale of
the Property, and to take any and all other actions necessary to implement this intent of this Resolution, subject
to approval as to form by the City Attorney.
*****
City of South San Francisco Printed on 12/14/2021Page 3 of 3
powered by Legistar™229
1
AGREEMENT OF PURCHASE AND SALE AND JOINT
ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW
INSTRUCTIONS (this “Agreement”) is made effective as of ___________, 2021, by and between
CITY OF SOUTH SAN FRANCISCO, a municipal corporation (“Seller”) and EDEN HOUSING,
INC., a California nonprofit public benefit corporation (“Buyer”).
RECITALS
A. Seller is the owner of certain real property located at 201 Baden Avenue,
South San Francisco, San Mateo County (“County”) which contains an old firehouse structure
that has been decommissioned (“Old Firehouse”) and known as County Assessor’s Parcel
Numbers (“APN”) 012-335-100, 012-335-110, and the portion of Cypress Street that is to be
vacated, with a combined lot size of 22,500 square feet, collectively and commonly known as the
“Old Firehouse Parcel”.
B. On March 4, 2019, pursuant to a solicitation process, Seller entered into an
Exclusive Negotiating Rights Agreement (“ENRA”) with a prior residential project developer and
a separate commercial project developer (“Commercial Component Developer”), which
authorized the parties to commence negotiating the terms of purchase agreements relating to the
rehabilitation of the Old Firehouse and construction of a mixed-use residential and commercial
development on the Old Firehouse Parcel.
C. To facilitate this proposal, the Old Firehouse Parcel is to be bifurcated into
two separate parcels (to be identified as APNs 012-335-100 and 012-335-110), which are to be
effectuated through a lot line adjustment and street vacation at Cypress Avenue to be completed
by the Commercial Component Developer and Buyer, and approved by Seller as necessary, with
one of the parcel being APN 012-335-110 containing an approximately 0.3-acre parcel as
described more particularly on Exhibit A-1 attached hereto (“Property”). These parcels will be
sold to each developer in separate transactions for their respective projects, where the Property
would be sold to the residential project developer. Each developer would be responsible for
entitling and developing their respective projects.
D. Between 2019 and 2021 and most recently in May 2021, the ENRA was
administratively extended and amended several times to extend its terms and, among other things,
to replace Buyer as the developer for the residential component of the proposed development on
the Old Firehouse Parcel.
E. Specifically, the proposed residential development will consist of
approximately eighty-two (82) residential units that will all be deed restricted as Below Market
Rate on the Property (the “Residential Project”). In addition, Buyer plans to acquire the adjoining
property located at 199 Airport Boulevard, South San Francisco, where a KFC/Taco Bell business
currently operates, in order to consolidate the two parcels for constructing the Residential Project.
G. The ENRA contemplates the Seller, Buyer and the Commercial Component
Developer to negotiate two (2) separate purchase agreements in order for Buyer and the
230
2
Commercial Component Developer to pursue land use entitlements for the Residential Project and
the proposed commercial development, respectively, and to acquire the bifurcated parcels
respectively for such purposes.
H. Buyer agrees to purchase the Property to construct the Residential Project,
and Seller agrees to sell the Property to Buyer, subject to the terms and conditions of this
Agreement.
AGREEMENT
NOW, THEREFORE, or and in consideration of the mutual covenants and agreements
contained in this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:
1. Purchase and Sale of Real Property. Seller hereby agrees to sell, and Buyer hereby
agrees to purchase, upon the terms and conditions contained herein, the Property from Seller.
2. Purchase Price. The purchase price for the Property (the “Purchase Price”) shall be
One Dollar ($1.00) subject to Section 7.
(a) Approval; CEQA Compliance. The Parties acknowledge and agree that the
execution of this Agreement does not constitute Seller’s approval or issuance of any entitlements
or permits for the development of the Property or construction of the Residential Project and does
not relieve Buyer from its obligations to apply for and obtain all such approvals, entitlements and
permits. Further, the execution of this Agreement is subject to compliance with the California
Environmental Quality Act (“CEQA”) and does not constitute any approval or determination by
Seller thereunder. Buyer acknowledges that Seller is responsible as the lead agency as defined by
CEQA to complete all environmental analysis and determination required by CEQA.
(i) Schedule of Performance. The Parties have collaborated on an
anticipated project milestone schedule attached hereto and incorporated herein as Exhibit D
(“Schedule of Performance”). The Parties agree this Schedule of Performance constitutes the
reasonable estimates of the timing of performance for actions associated with this Agreement and
development of the Property, and agree to adhere to the Schedule of Performance as much as
reasonably possible. Any extension of time from the dates set forth in the Schedule of Performance
shall require the approval of the City Council except as otherwise provided in Section 6(f)(iv) and
Section 18(p). However, in no event shall a failure by either Party to meet any timeline under the
Schedule of Performance constitute a default under this Agreement as long as diligent efforts were
made towards meeting such timelines.
3. Escrow.
(a) Escrow Account. Buyer has opened an interest-bearing escrow account (the
“Escrow”), at North American Title Company 21060 Redwood Road, Suite 110, Castro Valley,
CA 94546, Attn: Suzanne Smith (the “Escrow Holder”), with interest accruing to the benefit of
Buyer. Buyer shall be responsible for all Escrow fees and costs. Escrow Holder shall perform all
escrow and title services in connection with this Agreement.
231
3
(b) Opening of Escrow. Within seven (7) business days after the Effective
Date, the Parties will deposit into Escrow the fully executed Agreement, or executed counterparts
thereto. Escrow shall not open until Seller and Buyer have satisfied all of their respective
obligations as set forth below. The date that is the later of the following to occur shall be deemed
the “Opening of Escrow”:
(i) Buyer shall have cooperated with the Commercial Component
Developer to submit all documents, material and maps and undertaken all actions applicable and
necessary for Seller to approve, and Seller shall have approved the vacation of Cypress Avenue.
(ii) Buyer shall have cooperated with the Commercial Component
Developer to submit all documents, materials and maps and undertaken all actions necessary to
complete a lot line adjustment bifurcating the Property into two parcels as contemplated in the
ENRA.
(c) Buyer’s Reimbursement for City Assistance Costs. During the term of this
Agreement, Buyer shall reimburse Seller for all City Attorney and consultant time incurred in
providing assistance relating to securing financing through obtaining or otherwise receiving a
federal or state tax credit(s) for the development of the Property. If Buyer pursues such tax-credit
financing, Buyer shall remit to Seller an initial payment in the amount of thirty-thousand dollars
($30,000) in immediately available funds (“Cost Recovery Deposit”). The Cost Recovery Deposit
shall be drawn down by Seller to reimburse City Attorney. staff and City consultant costs for
completing the obligations that relate to securing tax credit financing for the Property, at the rates
most recently approved by City Council in the City’s master fee schedule or under contract. Should
the full amount of the Cost Recovery Deposit be exhausted prior to Closing or post-Closing
obligations, Buyer shall replenish the Cost Recovery Deposit amount with additional funds
necessary to reimburse such City Attorney and consultant costs. Documentation of City’s rate
schedule for City Attorney and consultant costs shall be retained by Seller and provided to Buyer
upon request. The Cost Recovery Deposit shall not be applied towards the Purchase Price at
Closing and any unused portion of the Cost Recovery Deposit shall be refunded to Buyer within
thirty (30) days after the completion of all Closing or post-Closing obligations, as applicable.
(i) The Purchase Price plus any additional amounts as hereinafter
calculated shall be payable to Seller as follows: on or before the “Closing Date” (as defined below),
Buyer shall deposit into Escrow cash or other immediately available funds in an amount equal to
the balance of the Purchase Price as adjusted for closing costs and proration charges (the “Closing
Amount”). If the Closing does not occur for any reason other than a default by Buyer, then Escrow
Holder shall forthwith the Closing Amount and all interest earned thereon to Buyer (less any
chargeable fees or costs of Escrow Holder and Title Company, as hereinafter set forth) and, neither
party shall have any further rights or obligations with respect to the other Party in connection with
this Agreement, except as otherwise expressly provided in this Agreement.
(ii) If (1) Buyer timely exercises a right to terminate this Agreement in
accordance with this Agreement or as a result of a default by Seller, or (2) the Closing does not
occur for any reason other than Buyer’s default, neither party shall have any further rights or
obligations with respect to the other party in connection with this Agreement.
232
4
4. Title to the Property. At the Closing, Seller shall convey to Buyer marketable and
insurable fee simple title to the Property by duly executed and acknowledged grant deed in the
form attached hereto as Exhibit “C” (the “Deed”). As a condition to Buyer’s obligations
hereunder, North American Title Company (the “Title Company”) will issue an ALTA extended
coverage owner’s policy of title insurance insuring fee simple title to the Property in an amount
equal to the Purchase Price and subject only to such exceptions as Buyer shall have approved (or
been deemed to have approved) pursuant to Section 5(a) (the “Title Policy”). The Title Policy
shall provide full coverage against mechanics’ and materialmen’s liens and shall not contain an
exception for any matters that would be disclosed by a survey of the Property. In any event, Seller
covenants to cause to be released and reconveyed from the Property, and to remove as exceptions
to title prior to the Closing the following (the “Pre-Disapproved Exceptions”): any exceptions
regarding tenants or other possessory interests, mortgages, deeds of trust, or other monetary
encumbrances, liens, assessments and/or indebtedness, other than those caused by Buyer, except
for the current installment of non-delinquent real property taxes and assessments payable as a part
of the real property tax bill. Seller’s failure to deliver the Property in a condition free and clear of
all of the Pre-Disapproved Exceptions shall be deemed a material default of Seller hereunder.
Seller shall provide to Title Company an owner’s affidavit in form and substance reasonably
satisfactory to Title Company in order to allow the Title Company to issue the Title Policy at
Closing, including any affidavits or indemnities allowing for a “gap” Closing.
5. Feasibility Review.
(a) Preliminary Title Report. If not previously delivered to Buyer by Seller,
Buyer shall obtain within ten (10) business days of the Opening of Escrow a preliminary title
report with respect to the Property containing such exceptions as the Title Company would specify
in the Title Policy, legible copies of all documents of record identified as exceptions in such
preliminary title report along with a plotting of all easements specified as exceptions in such
Preliminary Report (collectively, the “Preliminary Report”). Buyer may, at its sole discretion and
at its sole cost, obtain a new ALTA survey of the Property. On or before the date which is ten (10)
days prior to the expiration of the Feasibility Review Period (defined in Section 5(d) below) (or
within ten (10) days after Buyer’s receipt of any supplemental preliminary title report or survey
that is delivered to Buyer later than the date which is twenty (20) days prior to the expiration of
the Feasibility Review Period containing exceptions or items not contained on the original
Preliminary Report or survey), Buyer may give written notice to Seller disapproving any items
identified as exceptions or items in such Preliminary Report or survey (or supplemental
preliminary title report or survey), and identifying the items, exceptions and/or survey items
disapproved (a “Title Disapproval”). If Buyer does not timely give a Title Disapproval, then Buyer
shall be deemed to have approved the Preliminary Report and survey (or supplemental preliminary
title report or survey, as applicable) other than (i) any title exceptions or survey items which Buyer
has previously disapproved in writing, and (ii) the Pre-Disapproved Exceptions. Upon Buyer’s
delivery of a Title Disapproval (which disapproval may be given in its sole and absolute
discretion), Seller may elect to remove said disapproved item or items at or prior to the Closing;
by delivering written notice of such election to Buyer not later than five (5) days following the
date Seller receives a Title Disapproval. If Seller does not notify Buyer in writing that Seller will
eliminate such disapproved exceptions or items within such five (5) day period, Buyer shall have
ten (10) days following the date Seller received the Title Disapproval to terminate this Agreement.
Notwithstanding the foregoing, any Pre-Disapproved Exceptions shall be removed by Seller
233
5
through Escrow on or prior to the Closing. If Buyer does not timely terminate this Agreement
following Seller’s failure to elect to remove, modify or cure any disapproved item or items, as
aforesaid, Buyer shall be deemed to have approved such item or items.
(b) Examination of Documentation. Seller shall deliver to Buyer all materials
in Seller’s possession or control relating to the Property, including but not limited to (i) copies of
the most recent property tax bills and assessments for the Property; (ii) a copy of any and all leases,
service contracts, easements, licenses, development approvals and/or other agreements related to
the Property; (iii) any and all existing surveys of the Property; (iv) any and all soils reports, reports
pertaining to hazardous materials or other environmental conditions or other reports relating to the
physical condition of the Property; (v) any and all architectural or engineering documents relating
to the Property; (vi) any entitlements, permits, approvals, consents or waivers from any
governmental or quasi-governmental agency or authority relating to the Property, including,
without limitation, general plan approvals, zoning approvals, planned development permits, use
permits, variances, tentative maps or final maps; and (vii) any and all other correspondence,
reports, studies, permits, approvals, or documents relating to the Property (collectively, the
“Documents”). In addition, Seller shall promptly deliver to Buyer such other information relating
to the Property that is reasonably requested by Buyer of Seller in writing, to the extent such
information is in the possession or control of Seller, and notify Buyer in writing of any material
changes to any existing Documents of which Seller becomes aware during the term of this
Agreement.
(c) Investigations. At any time prior to the end of the Feasibility Review
Period, Buyer may conduct, review and analyze any such feasibility studies, inspections,
environmental audits, soils and geological studies, engineering reports, topographic surveys,
grading plans, environmental impact reports, right of way and easement agreements, zoning and
master plan issues, bond feasibility, acoustics, hazardous materials studies, land plans, market
studies, and other investigations (collectively, the “Investigations”) as Buyer deems appropriate,
including, without limitation, contacting all governmental authorities and persons having
jurisdiction over or an interest in the planned development. Upon twenty-four (24) hours advance
oral or written notice to Seller, Seller shall permit Buyer, its engineers, contractors, consultants,
employees and agents, to enter onto the Property and conduct, at Buyer’s expense, any such
Investigations. In conducting such Investigations, Buyer shall repair any material damage to the
Property caused by Buyer’s Investigations, but excluding any latent defects or hazardous materials
discovered by Buyer during its investigation of the Property. Buyer shall be insured for One
Million Dollars ($1,000,000) per occurrence. Buyer agrees to indemnify and hold harmless Seller
from any claims, damages, liabilities, losses, costs or expenses (including, without limitation,
reasonable attorneys’ fees) (collectively, “Claims”) which result from any damage to persons or
property caused by Buyer’s Investigations; provided, however, that Buyer shall have no obligation
to indemnify, defend and hold Seller harmless from and against any Claims resulting from
(A) Seller’s acts or omissions, or (B) Buyer’s mere discovery of adverse physical conditions
affecting the Property, including, without limitation, any “Hazardous Materials” (as defined
below). Notwithstanding any contrary provision of this Agreement, the foregoing indemnity shall
survive any termination of this Agreement and the Closing.
(d) Feasibility Review Period. The “Feasibility Review Period” shall terminate
at 5:00 p.m. on the date that is one hundred twenty (120) days after the Opening of Escrow. On
234
6
or before the expiration of the Feasibility Review Period, Buyer may disapprove of its review of
its Investigations and the Documents by giving written notice to Seller of its election (the
“Disapproval Election”) to proceed with the transaction in its sole and absolute discretion. If Buyer
does not timely give the Disapproval Election, then Buyer shall be deemed to have waived such
election to terminate this Agreement pursuant to this Section 5(d).
6. The Closing
(a) The Closing Date. The recordation of the Deed and the delivery of the other
documents and funds contemplated hereby (the “Closing”) shall occur through Escrow and shall
occur no later than December 31, 2022. The date on which the Closing occurs is herein referred
to as the “Closing Date”. Buyer shall give Seller fifteen (15) days prior notice of Buyer’s intended
Closing Date.
(b) Buyer’s Conditions to Closing. Buyer’s obligation to consummate the
purchase of the Property is subject to and conditioned upon the satisfaction of each of the following
conditions (unless otherwise waived in writing by Buyer) on or before the Closing Date which
conditions are for the sole benefit of Buyer:
(i) The Title Company shall have given Buyer its unconditional and
irrevocable commitment to issue the Title Policy in favor of Buyer insuring Buyer as the fee owner
of the Property with liability in the amount of the Purchase Price, subject only to those title
exceptions as have been approved by Buyer pursuant to Section 5(a) and including the
Endorsements requested by Buyer pursuant to Section 4 hereof; and
(ii) Seller shall have fully performed all of its obligations in this
Agreement which Seller has agreed to perform on or prior to the Closing Date, Seller shall not be
in material breach or default under this Agreement on the Closing Date, and each representation
and warranty made by Seller contained herein shall be true and correct as of the Closing Date.
(iii) Seller shall have approved the vacation of Cypress Avenue and the
lot line adjustment bifurcating the Property into two parcels.
(iv) Seller and Buyer shall have negotiated and executed a license
agreement in form reasonably satisfactory to Buyer and Seller to permit public parking on the
Property until not less than thirty (30) days prior to the date Buyer is ready to close its construction
financing.
(v) Buyer shall have negotiated and executed a Purchase and Sale
Agreement with the owner of the KFC/Taco Bell site at 199 Airport Blvd., South San Francisco
for the acquisition of such property.
(vi) There shall be no moratoria or other governmental action that would
prevent Buyer from developing the Property as an affordable multifamily apartment complex.
If the conditions to Buyer’s obligation to consummate the transaction contemplated in this
Agreement are not satisfied (or waived by Buyer) on the Closing Date, then, provided this
235
7
Agreement was not previously terminated pursuant to the terms of this Agreement, Buyer may
(A) terminate this Agreement, or (B) if a Seller default has occurred, exercise its rights and
remedies under Section 14. The conditions set forth in this Section 6(b) are for the sole benefit of
Buyer.
(c) Seller’s Conditions To Closing. Seller’s obligation to consummate the sale
of the Property is subject to and conditioned upon the satisfaction of the following condition
(unless otherwise waived in writing by Seller) on or before the Closing Date:
(i) Buyer shall have fully performed all of its obligations in this
Agreement which Buyer has agreed to perform on or prior to the Closing Date, and Buyer shall
not be in material breach or default under this Agreement on the Closing Date.
(ii) Buyer shall have negotiated and executed any agreements for the
shared maintenance, construction or access between Buyer and the Commercial Component
Developer that are reasonably determined by Buyer to be necessary.
(iii) Buyer shall have submitted to Seller for review a proposed
insurance, business and financing plan for the development of the Property, which shall include a
pro forma reasonably acceptable to Seller and anticipated source and/or proof of construction loan
necessary to reasonably complete the development of the Property. Such proof of construction
loan may be a letter of interest from a bank referencing interest in the project and verifying interest
rates for the project (“Developer’s Financing Plan”).
(iv) Buyer shall have negotiated and executed a Purchase and Sale
Agreement with the owner of the of the KFC/Taco Bell site at 199 Airport Blvd., South San
Francisco for the acquisition of such property
(v) Seller and Buyer shall have negotiated and executed a license
agreement in form reasonably satisfactory to Buyer and Seller to permit public parking on the
Property until not less than thirty (30) days prior to the date Buyer is ready to close its construction
financing.
(vi) Seller shall have approved the vacation of Cypress Avenue and the
lot line adjustment bifurcating the Property into two parcels.
If the conditions to Seller’s obligation to consummate the transaction contemplated in this
Agreement are not satisfied (or waived in writing by Seller) on the Closing Date, then, provided
Seller is not in default hereunder and this Agreement was not previously terminated pursuant to
the terms of this Agreement, Seller may terminate this Agreement. The conditions set forth in this
Section 6(c) are for the sole benefit of Seller.
(d) Deliveries at Closing. At least one (1) business day prior to the Closing
Date, Seller and Buyer shall each deliver to the Escrow Holder such instruments and funds as are
necessary to consummate the purchase and sale of the Property, including the following:
(i) Buyer shall deliver:
(1) The Closing Amount;
236
8
(2) Such other items, documents, and instruments as may be
reasonably required by Title Company, Escrow Holder, or otherwise to fulfill the covenants and
obligations to be performed by Buyer at the Closing pursuant to this Agreement.
(ii) Seller shall deliver:
(1) an original of the Deed executed and acknowledged by
Seller, as grantor;
(2) the originals of all Documents pertaining to the Property and
all files pertaining to the Property;
(3) an affidavit directed to Buyer giving Seller’s taxpayer
identification number and confirming that Seller is not a “foreign person,” which affidavit shall
be, in form and substance, sufficient to relieve Buyer of any withholding obligation under §1445
of the Internal Revenue Code (“Seller’s Foreign Person Affidavit”), together with a duly executed
California Franchise Tax Board Form 593-C (the “Cal FIRPTA”);
(4) a closing statement in form and content satisfactory to Buyer
and Seller duly executed by Seller;
(5) a release, reconveyance and termination of all monetary
encumbrances affecting the Property including any mechanics’ liens;
(6) any other items necessary to consummate the transaction
contemplated hereby, including, without limitation, a customary owner’s affidavit sufficient to
delete the exceptions for parties in possession and mechanics’ liens on the Title Policy.
(iii) After the Escrow Holder has confirmed that all conditions and
closing requirements set forth herein have been satisfied, the Escrow Holder shall: (A) cause the
Deed to be recorded in the Official Records; (B) pay from Buyer’s funds Buyer’s share of any
closing costs and prorations; (C) pay from funds held for Seller’s account Seller’s share of any
closing costs and prorations and any deeds of trust, mortgages or other monetary liens; (D) remit
to Seller the remaining funds held for Seller’s account; (E) deliver an original of the General
Assignment, Seller’s Foreign Person Affidavit, the Cal FIRPTA and the Title Policy to Buyer; and
(F) deliver copies of all documents to both Buyer and Seller.
(e) Concurrent Deliveries. All requirements with respect to the Closing shall
be considered as having taken place simultaneously, and no delivery or payment with respect to
the Closing shall be considered as having been made until all deliveries, payments and closing
transactions have been accomplished with respect to the Closing.
(f) Post-Closing Obligations. The following obligations shall survive the Close
of Escrow:
(i) Seller shall have the right to approve (which approval shall not be
unreasonably withheld, conditioned or delayed) Developer’s Financing Plan submitted by Buyer
pursuant to Section 6(c)(iii) above.
237
9
(ii) Seller shall have the right to approve (which approval shall not be
unreasonably withheld, conditioned or delayed) the construction contract for Buyer’s development
of the Property (the “Construction Contract”).
(iii) Buyer shall have secured all financing for the development of the
Property prior to issuance of building permits for the Residential Project.
(iv) Buyer shall apply for any additional financing (including grant
funds) for the development of the Property within eighteen (18) months after obtaining
entitlements for the Residential Project. Such timeline may be extended for four (4) six (6) month
administrative extensions. Any additional extension of time shall require the approval Seller’s
City Council pursuant to Section 18(p).
(g) In the event that Buyer is unable to construct the Residential Project,
including but not limited unable to secure sufficient financing beyond the timeline set forth in this
Agreement, unable to secure entitlements, or unable to commence construction, the Property shall
revert to the City and the City may re-enter and take possession of the Property or any portion
thereof with all improvements thereon without payment or compensation to Buyer, and revest in
the City the estate theretofore conveyed to the Buyer. The interest created pursuant to this
subsection (g) shall be a “power of termination” as defined in California Civil Code Section
885.010. Upon reversion occurring, the City may require Buyer to complete a lot split for the
Property, if the Property has been merged at the time of the reversion, at City’s sole discretion and
at Buyer’s sole expense.
7. Costs and Prorations.
(a) Costs. Costs of the Closing and Escrow shall be allocated as follows:
(i) Buyer shall pay the costs of recording the Deed; (ii) Buyer shall pay all documentary and other
transfer taxes imposed in connection with recording the Deed including, without limitation, any
applicable City and County transfer taxes; (iii) Buyer shall pay the premium for the “standard”
Title Policy, the mechanics’ lien endorsement and curative endorsements, if applicable, and Buyer
shall pay the additional premium related to the “extended coverage” Title Policy and any
endorsements which Buyer requires, (iv) Buyer shall pay the cost of any endorsements and survey
costs, if any; (v) Buyer shall each pay the fees of the Escrow Holder, including any cancellation
costs, and the costs of the Escrow; and (vi) Buyer and Seller shall each pay their respective
attorneys’ fees.
(b) Prorations. At the close of escrow, the Escrow Agent shall make the
following prorations: (i) property taxes will be prorated as of the close of escrow based upon the
most recent tax bill available, including any property taxes which may be assessed after the close
of escrow but which pertain to the period prior to the transfer of title to the Property to Buyer,
regardless of when or to whom notice thereof is delivered; and (ii) any bond or assessment that
constitutes a lien on the Property at the close of escrow will be assumed by Buyer. Seller does not
pay ad valorem taxes.
8. Escrow Holder. The Escrow Holder shall comply with the terms of this Agreement
and any additional instructions jointly executed by Buyer and Seller. The Escrow Holder is
238
10
designated the “real estate reporting person” for purposes of section 6045 of title 26 of the United
States Code and Treasury Regulation 1.6045-4 and any instructions or settlement statement
prepared by the Escrow Holder shall so provide. Upon the consummation of the transaction
contemplated by this Agreement, Escrow Holder shall file Form 1099 information return and send
the statement to Seller as required under the aforementioned statute and regulation. The Escrow
Holder’s rights and obligations may be further specified by supplemental escrow instructions;
provided, however, that if any conflict shall arise between this Agreement and such additional
escrow instructions, the terms and provisions of this Agreement shall prevail. The Escrow Holder
and the parties shall comply with any and all Federal and State of California withholding
requirements.
9. Interim Period Covenants and Agreements.
(a) Seller shall act with respect to the Property in accordance with its
preexisting practices as if the Property were not to be sold, including, without limitation, by
maintaining at least the same levels of insurance in effect as of the Effective Date, and shall not
enter into or modify any lease, agreement or contract relating to the Property without the prior
written consent of Buyer, which consent shall not be unreasonably withheld.
(b) Seller shall not take any action which would adversely affect the zoning,
entitlements, tentative or final tract maps affecting the Property or the processing by Buyer of any
plans or necessary approvals for the contemplated development of the Property.
(c) Seller shall not place or permit any lien, deed of trust or other monetary
encumbrance on the Property nor take any action to impose any other title exceptions on the
Property (other than those reflected in the Preliminary Report). Seller shall not convey, assign or
otherwise transfer any of its right, title or interest in and to the Property, except to Buyer in the
manner provided in this Agreement.
(d) Seller shall cause to be released and reconveyed from the Property, and to
remove as exceptions to title prior to the Closing all mortgages, deeds of trust or other monetary
encumbrances, liens, assessments and/or indebtedness, other than those caused by Buyer.
10. Conveyance AS IS. Buyer specifically acknowledges that the Seller is selling the
Property on an “AS IS”, “WHERE IS” and “WITH ALL FAULTS” basis and that, subject to
Seller's representations, warranties, covenants and obligations set forth in this Agreement, and all
exhibits attached hereto and incorporated herein, and any obligations arising under applicable law,
and any document or instrument executed and delivered in connection with Closing, Buyer is not
relying on any representations or warranties of any kind whatsoever, express or implied, from
Seller, or its employees, appointed or elected officials, agents, or brokers as to any matters
concerning the Property. Subject to Seller's representations, warranties, covenants and obligations
set forth in this Agreement, and all exhibits attached hereto and incorporated herein, and any
obligations arising under applicable law, and any document or instrument executed and delivered
in connection with Closing, Seller makes no representations or warranties as to any matters
concerning the Property, including without limitation: (i) the quality, nature, adequacy and
physical condition of the Property, (ii) the quality, nature, adequacy, and physical condition of
soils, geology and any groundwater, (iii) the existence, quality, nature, adequacy and physical
239
11
condition of utilities serving the Property, (iv) the development potential of the Property, and the
Property's use, habitability, merchantability, or fitness, suitability, value or adequacy of the
property for any particular purpose, (v) except as otherwise provided in this Agreement, the zoning
or other legal status of the Property or any other public or private restrictions on use of the Property,
(vi) the compliance of the Property or its operation with any Environmental Laws, covenants,
conditions and restrictions of any governmental or quasi-governmental entity or of any other
person or entity, (vii) the presence or removal of Hazardous Materials, substances or wastes on,
under or about the Property or the adjoining or neighboring property; (viii) the quality of any labor
and materials used in any improvements on the Property, (ix) the condition of title to the Property,
(x) the leases, service contracts, or other agreements affecting the Property, or (xi) the economics
of the operation of the Property.
11. Representations, Warranties and Covenants.
(a) Seller represents, warrants and covenants as of the date of this Agreement
and as of the Closing Date, and such representations, warranties and covenants shall survive the
Closing:
(i) Seller is a municipal corporation, lawfully formed, in existence and
in good standing under the laws of the State of California. Seller has the full right, capacity, power
and authority to enter into and carry out the terms of this Agreement. This Agreement has been
duly executed by Seller, and upon delivery to and execution by Buyer is a valid and binding
agreement of Seller.
(ii) Seller has not alienated, encumbered, transferred, mortgaged,
assigned, pledged, or otherwise conveyed its interest in the Property or any portion thereof, nor
entered into any Agreement to do so, and there are no liens, encumbrances, mortgages, covenants,
conditions, reservations, restrictions, easements or other matters affecting the Property, except as
disclosed in the Preliminary Report. Seller will not, directly or indirectly, alienate, encumber,
transfer, mortgage, assign, pledge, or otherwise convey its interest prior to the Close of Escrow,
as long as this Agreement is in force.
(iii) There are no agreements affecting the Property except those which
have been disclosed by Seller. There are no agreements which will be binding on the Buyer or the
Property after the Close of Escrow, which cannot be terminated on thirty (30) days prior written
notice.
(iv) There is no agreement to which Seller is a party or, to Seller’s
knowledge, binding on Seller, which is in conflict with this Agreement. There is no action, suit,
arbitration, unsatisfied order or judgment, governmental investigation or proceeding pending or,
to Seller’s knowledge, threatened against the Property or the transaction contemplated by this
Agreement.
(v) There are no leases of space in the Property, subleases, licenses,
franchise agreements or other agreements to occupy or utilize all or any portion of the Property
that will be in force after the Closing. At Closing, Seller shall deliver the Property to Buyer vacant
of any occupants.
240
12
(vi) Seller has not received any written notice from any governmental
authority that the Property is not in material compliance with all applicable laws and regulations
(including environmental and zoning laws and regulations), other than such violations as have
been fully cured. To Seller’s knowledge, neither Seller nor the Property are in default or breach
of any material obligation under any encumbrances, covenants or easement agreements recorded
against the Property.
(vii) Except as otherwise disclosed by the Documents, neither Seller nor,
to the actual knowledge of Seller, any prior owner or occupant of the Property, has engaged in or
permitted any activity on the Property involving the handling, manufacture, treatment, storage,
use, release, or disposal of any toxic or hazardous waste, material or substance, including, without
limitation, asbestos, petroleum, petroleum products, underground storage tanks now or previously
containing any other hazardous materials or substances defined as “hazardous substances”,
“hazardous waste” or “toxic substances” in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601, et seq.; Hazardous
Materials Transportation Act, 49 U.S.C. Sec. 1801; and Resource Conservation and Recovery Act,
42 U.S.C. Sec. 6901 et seq.; and other substances defined as hazardous waste and hazardous
substances in applicable laws and/or in any regulations and publications promulgated pursuant to
said laws (collectively, “Hazardous Materials”). To Seller’s knowledge, removal or other remedial
action with respect to Hazardous Materials in, on, under or about the Property is not required by
any governmental authority having jurisdiction over the Property.
(viii) There are no outstanding rights of first refusal, rights of first offer,
purchase options or similar purchase rights with respect to the Property.
(ix) There are no management agreements, leasing agreements,
brokerage agreements or similar agreements which affect the Property and will survive Closing.
(x) To Seller’s knowledge, there are no impositions of new special
assessments with respect to the Property.
(xi) The Property does not contain any wetlands, endangered species or
protected habitat, flora or fauna.
(xii) Seller is in compliance with all laws, statutes, rules and regulations
and any federal, state or local governmental authority in the United States of America applicable
to Seller and all beneficial owners of Seller, with respect Executive Order No. 133224, 66 Fed
Reg. 49079 (September 25, 2001) (the “Order”) and other similar requirements contained in the
rules and regulations of the Office of Foreign Asset Control of the Department of the Treasury
(“OFAC”) and in any enabling legislation or other Executive Orders in respect thereof (the Order
and such other rules, regulations, legislation, or orders are collectively called the “Orders”). Seller
agrees to make its policies, procedures and practices regarding compliance with the Orders
available to Buyer for its review and inspection during normal business hours and upon reasonable
prior notice. Neither Seller nor any beneficial owner of Seller: (1) is listed on the Specially
Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Orders
and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the
rules and regulations of OFAC or pursuant to any other applicable Orders (such lists are
241
13
collectively referred to as the “Lists”); (2) has been determined by competent authority to be
subject to the prohibitions contained in the Orders; (3) is owned or controlled by, nor acts for or
on behalf of, any person or entity on the Lists or any other person or entity who has been
determined by competent authority to be subject to the prohibitions contained in the Orders; or (4)
shall transfer or permit the transfer of any interest in Seller or any beneficial owner in Seller to any
person who is or whose beneficial owners are listed on the Lists.
(xiii) Seller is not a “foreign person” within the meaning of Section
1445(e)(3) of the Internal Revenue Code of 1986, as amended.
Each of the representations and warranties of Seller contained in this Section 11 (i) is true in all
material respects as of the date hereof, (ii) shall be deemed remade by Seller, and shall be true in
all material respects, as of the date of Closing, and (iii) shall survive the Closing. The truth and
accuracy of each of the representations and warranties, and the performance of all covenants of
Seller contained in this Agreement are conditions precedent to the Close of Escrow. Seller shall
immediately notify Buyer of any fact or circumstance that becomes known to Seller, which would
make any of the foregoing representations or warranties untrue. If Seller becomes aware of any
fact or circumstance after the date hereof which results in any representation, warranty or covenant
set forth in Section 11 becoming inaccurate in any material respect, Seller will give prompt notice
to Buyer. If such change arises through the actions of Seller, the change shall constitute a default
by Seller if Seller fails to cure the default within fifteen (15) days after receipt of written notice of
default. If, however, such change does not arise through the actions of Seller, then the change
shall constitute only the failure of a condition to Closing but shall not constitute a default by Seller;
provided, however, that Buyer must elect to terminate the Agreement as a result of such failed
condition within fifteen (15) days following delivery of written notice to Buyer describing such
change. Buyer’s failure to elect to terminate this Agreement within such fifteen (15) day period
shall be deemed Buyer’s election to waive the failed condition and proceed with the transaction
contemplated herein.
(b) Buyer hereby represents and warrants to Seller that as of the date of this
Agreement and as of the Closing Date and such representations, warranties and covenants shall
survive the Closing:
(i) Buyer is a nonprofit public benefit corporation duly organized,
validly existing and in good standing under the laws of the State of California; this Agreement is,
and all documents executed by Buyer which are to be delivered to Seller at the Closing will be
duly authorized, executed and delivered by Buyer; this Agreement is, and all documents executed
by Buyer which are to be delivered to Seller at the Closing will be, legal, valid and binding
obligations of Buyer, and do not, and at the time of Closing will not, violate any provisions of any
agreement or judicial order to which Buyer is subject.
(ii) Buyer has not, and as of the Closing Buyer shall not have, (i) made
a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or
suffered the filing of any involuntary petition by Buyer’s creditors, (iii) suffered the appointment
of a receiver to take possession of all, or substantially all, of Buyer’s assets, which remains pending
as of such time, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of
Buyer’s assets, which remains pending as of such time, (v) admitted in writing its inability to pay
242
14
its debts as they come due, or (vi) made an offer of settlement, extension or composition to its
creditors generally.
12. INDEMNIFICATION; ENVIRONMENTAL INDEMNITY.
(a) Indemnification. To the fullest extent allowed by law, Buyer agrees to
unconditionally and fully indemnify, protect, defend (with counsel satisfactory to Seller), and hold
Seller, and its respective elected and appointed officers, officials, employees, agents, consultants,
contractors (collectively “Seller Indemnitees”), harmless from any and all third party claims,
liabilities, damages and costs (including reasonable attorney’s fees) arising out of or in connection
with Buyer’s performance under this Agreement, except to the extent that such claims, liabilities,
damages and costs are attributable to Seller’s negligence or willful misconduct or to a condition
of the Property in existence prior to Closing.
(b) Environmental Indemnity. In addition, to the fullest extent allowed by law,
Buyer agrees to unconditionally and fully indemnify, protect and defend (with counsel satisfactory
to Seller) the Seller Indemnitees harmless from and against any and all claims (including without
limitation third party claims for personal injury, real or personal property damage, or damages to
natural resources), actions, administrative proceedings (including without limitation both formal
and informal proceedings), judgments, damages, punitive damages, penalties, fines, costs
(including without limitation any and all costs relating to investigation, assessment, analysis or
clean-up of the Property), liabilities (including without limitation sums paid in settlements of
claims), interest, or losses, including reasonable attorneys’ and paralegals’ fees and expenses
(including without limitation any such fees and expenses incurred in enforcing this Agreement or
collecting any sums due hereunder), together with all other costs and expenses of any kind or
nature (collectively, the “Costs”) that arise directly or indirectly from or in connection with the
presence, suspected presence, release, or suspected release, of any Hazardous Materials in, on or
under the Property or in or into the air, soil, soil gas, groundwater, or surface water at, on, about,
around, above, under or within the Property, or any portion thereof, except those Costs that arise
solely as a result of actions by Seller, or Seller’s agents, employees, or contractors. The
indemnification provided pursuant to this Section shall specifically apply to and include claims or
actions brought by or on behalf of employees of Buyer or any of its predecessors in interest and
Buyer hereby expressly waives any immunity to which Buyer may otherwise be entitled under any
industrial or worker’s compensation laws. In the event the Seller suffers or incurs any Costs, Buyer
shall pay to Seller the total of all such Costs suffered or incurred by the Seller upon demand
therefore by Seller. The indemnification provided pursuant to this Section shall include, without
limitation, all loss or damage sustained by the Seller due to any Hazardous Materials (a) present
or suspected by a governmental agency having jurisdiction to be present in the Property or in the
air, soil, soil gas, groundwater, or surface water at, on, about, above, under, or within the Property
(or any portion thereof) or to have emanated from the Property, or (b) that migrate, flow, percolate,
diffuse, or in any way move onto, into, or under the air, soil, soil gas, groundwater, or surface
water at, on, about, around, above, under, or within the Property (or any portion thereof), after the
date of this Agreement, as a result of Seller’s or its predecessors’ activities on the Property, or
those of Seller’s agents, employees, or contractors. The provisions of this Section 10 shall survive
the termination of this Agreement and the Close of Escrow.
243
15
13. RELEASE BY BUYER. Effective upon the Close of Escrow, except with respect
to the representations and warranties of Seller under Section 6 of this Agreement, Buyer waives
releases, remises, acquits and forever discharges Seller, and its officers, directors, board members,
managers, employees and agents, and any other person acting on behalf of Seller, from any and all
claims, actions, causes of action, demands, rights, damages, costs, expenses and compensation
whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Buyer now has
or which may arise in the future on account of or in any way arising from or in connection with
the physical condition of the Property or any law or regulation applicable thereto including,
without limiting the generality of the foregoing, any federal, state or local law, ordinance or
regulation pertaining to Hazardous Materials. This Section 13 shall survive the termination of this
Agreement and the Close of Escrow.
Buyer acknowledges that Buyer is familiar with Section 1542 of the California Civil Code, which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR
OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
BY INITIALING BELOW, BUYER EXPRESSLY WAIVES THE BENEFITS OF
SECTION 1542 OF THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE
FOREGOING RELEASE:
Buyer’s initials: _____________
14. HAZARDOUS MATERIALS; DEFINITION.
(a) Hazardous Materials. As used in this Agreement, “Hazardous Materials”
means any chemical, compound, material, mixture, or substance that is now or may in the future
be defined or listed in, or otherwise classified pursuant to any Environmental Laws (defined below)
as a “hazardous substance”, “hazardous material”, “hazardous waste”, “extremely hazardous
waste”, infectious waste”, toxic substance”, toxic pollutant”, or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, or toxicity. The term “Hazardous Materials” shall also
include asbestos or asbestos-containing materials, radon, chrome and/or chromium,
polychlorinated biphenyls, petroleum, petroleum products or by-products, petroleum components,
oil, mineral spirits, natural gas, natural gas liquids, liquefied natural gas, and synthetic gas usable
as fuel, perchlorate, and methyl tert butyl ether, whether or not defined as a hazardous waste or
hazardous substance in the Environmental Laws.
(b) “Environmental Laws” means any and all federal, state and local statutes,
ordinances, orders, rules, regulations, guidance documents, judgments, governmental
authorizations or directives, or any other requirements of governmental authorities, as may
presently exist, or as may be amended or supplemented, or hereafter enacted, relating to the
presence, release, generation, use, handling, treatment, storage, transportation or disposal of
Hazardous Materials, or the protection of the environment or human, plant or animal health,
244
16
including, without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986
(42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic
Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33 U.S.C. § 2701 et
seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq.),
the Porter-Cologne Water Quality Control Act (Cal. Water Code § 13000 et seq.), the Toxic Mold
Protection Act (Cal. Health & Safety Code § 26100, et seq.), the Safe Drinking Water and Toxic
Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et seq.), the Hazardous Waste
Control Act (Cal. Health & Safety Code § 25100 et seq.), the Hazardous Materials Release
Response Plans & Inventory Act (Cal. Health & Safety Code § 25500 et seq.), and the Carpenter-
Presley-Tanner Hazardous Substances Account Act (Cal. Health and Safety Code, Section 25300
et seq.).
15. Condemnation; Casualty.
(a) In the event a governmental entity commences or threatens eminent domain
proceedings to take any part of the Property or any adjacent or neighboring real property which
would affect access to the Property after the date hereof and prior to the Closing Date then Buyer
shall have the right to either (i) terminate this Agreement and receive a return of the Deposit, or
(ii) proceed with the Closing as scheduled notwithstanding such proceeding; provided, however,
that Seller’s interest in all awards arising out of such proceedings shall be assigned to Buyer as of
the date of Closing or credited to Buyer if previously received by Seller, and Seller hereby agrees
to execute any separate assignment agreement, as Buyer may reasonably request, to evidence or
effectuate the assignment of such awards. Seller’s obligations pursuant to the immediately
preceding sentence shall survive the Closing. In the event Buyer elects to proceed with Closing
despite such proceeding, Seller and Buyer shall cooperate with each other in agreeing upon the
award amount with the applicable governmental agency.
(b) Risk of loss or damage to the Property from fire or other casualty until the
Deed is recorded is assumed by Seller. If any portion of the Property or any adjacent or
neighboring real property which would affect access to the Property is damaged or destroyed by
fire or other casualty prior to the Closing Date, Buyer shall have the right, upon written notice to
Seller to either (i) terminate this Agreement and receive a return of the Deposit, or (ii) proceed
with the Closing as scheduled notwithstanding such damage or destruction; provided, however,
that Buyer shall have the right to receive on the Closing Date (and on the Closing Date Seller shall
assign to Buyer its right to receive) the insurance proceeds payable as a result of such loss, damage
or other casualty to the extent that such proceeds have not been applied to any repair work
performed prior to the Closing Date, which was approved by Buyer, and otherwise Seller shall
reimburse Buyer for any policy deductibles or self-insured retentions to the extent the same remain
unpaid as of Closing. Seller’s obligations pursuant to the immediately preceding sentence shall
survive the Closing.
16. Possession. Possession of the Property shall be delivered to Buyer as of Closing
free of any and all tenancies and/or occupancy rights.
245
17
17. Remedies. In the event of a breach or default under this Agreement by Seller, if
such breach or default occurs prior to Close of Escrow, Buyer reserves the right to either (a) seek
specific performance from Seller or (b) to do any of the following: (i) to waive the breach or
default and proceed to close as provided herein; (ii) to extend the time for performance and the
Closing Date until Seller is able to perform; or (iii) to terminate this Agreement upon written notice
to Seller, whereupon Seller shall cause Escrow Holder to return to Buyer any and all sums placed
into the Escrow by Buyer, and except for the rights and obligations expressly provided to survive
termination of this Agreement, neither party shall have any further obligations or liabilities
hereunder. IN THE EVENT OF A BREACH OR DEFAULT HEREUNDER BY BUYER AND
THE CLOSING DOES NOT OCCUR DUE TO SUCH DEFAULT, SELLER’S SOLE REMEDY
SHALL BE TWENTY-FIVE THOUSAND DOLLARS ($25,000) AS LIQUIDATED
DAMAGES. THE PARTIES AGREE THAT IN SUCH INSTANCE, THE AMOUNT OF
TWENTY-FIVE THOUSAND DOLLARS ($25,000) REPRESENT A REASONABLE
APPROXIMATION OF SELLER’S DAMAGES AND ARE NOT INTENDED AS A
FORFEITURE OR PENALTY BUT RATHER AN ENFORCEABLE LIQUIDATED
DAMAGES PROVISION PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671, ET
SEQ. IN NO EVENT SHALL EITHER PARTY BE ENTITLED TO LOST PROFITS OR
CONSEQUENTIAL DAMAGES AS A RESULT OF THE OTHER PARTY’S BREACH OF
THIS AGREEMENT. SELLER HEREBY WAIVES ANY AND ALL REMEDIES OF
SPECIFIC PERFORMANCE IT MAY HAVE AGAINST BUYER TO PURCHASE THE
PROPERTY.
Buyer’s Initials_______ Seller’s Initials______
18. Miscellaneous.
(a) Successors and Assigns. This Agreement shall be binding upon, and inure
to the benefit of, Buyer and Seller and their respective successors, heirs, administrators and
permitted assigns. Neither Buyer nor Seller shall assign its rights and interests under this
Agreement to any party without the other party’s prior written consent; provided, however, that
Buyer shall be permitted to transfer its rights and interests under this Agreement without obtaining
Seller’s consent, to an to an affiliate of Buyer, limited partnership or limited liability company in
which Buyer, or affiliates of Buyer is a partner or member.
(b) Notices. All notices or other communications required or permitted
hereunder shall be in writing, and shall be personally delivered or sent by registered or certified
mail, postage prepaid, return receipt requested, telegraphed, delivered or sent by same day or
overnight courier, telex, telecopy, cable, or email, and shall be deemed received upon the earlier
of (i) if personally delivered or delivered by same day or overnight courier, the date of delivery to
the address of the person to receive such notice, (ii) if mailed, three business days after the date of
postage by the United States post office, (iii) upon facsimile transmission or e-mail transmission
(except that if the date of such transmission is not a business day, then such notice shall be deemed
to be given on the first business day following such transmission), addressed as follows:.
If to Seller: City of South San Francisco
246
18
400 Grand Avenue
South San Francisco, CA 94080
Attn: City Manager, Mike Futrell
Email: mike.futrell@ssf.net
Telephone No.: (650) 829 6620
Fax (650) 829-6609
With Copy To: City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: Project Manager, Julie Barnard
Email: Julie.barnard@ssf.net
Fax No.: (650) 829 6623
With Copy To: Meyers Nave
1999 Harrison St. 9th Fl.
Oakland, CA 94612
Attn: Sky Woodruff
Email: sky@meyersnave.com
Fax No.: (510) 444-1108
If to Buyer: Eden Housing, Inc.
22645 Grand Street
Hayward, CA 94541
Attn: Chris Arthur
Fax: (510) 582-0122
With a copy to: Cox, Castle & Nicholson LLP
50 California Street, Suite 3200
San Francisco, California 94111
Attention: Lisa Weil
lweil@coxcastle.com
Fax: (415) 262-5199
If to Escrow Holder: North American Title Company
21060 Redwood Road, Suite 110
Castro Valley, CA 94546
Attn: Suzanne Smith
ssmith@natco.com
Fax: (510) 537-0928
(c) Brokers. Seller and Buyer each represents to the other that it has employed
no broker or finder in connection with the transaction contemplated hereby. Buyer agrees to
indemnify, defend and hold harmless Seller and its successors and assigns from all claims and
liabilities, including attorneys’ fees and costs incurred by Seller and its successors and assigns as
a result of anyone’s claiming by or through Buyer any fee, commission or compensation on
247
19
account of this Agreement, its negotiation or the sale hereby contemplated. Seller agrees to
indemnify, defend and hold harmless Buyer and its successors and assigns from all claims and
liabilities, including attorneys’ fees and costs incurred by Buyer and its successors and assigns as
a result of anyone’s claiming by or through Seller any fee, commission or compensation on account
of this Agreement, its negotiation or the sale hereby contemplated. The provisions of this Section
15(c) shall survive the Closing or termination of this Agreement.
(d) California Law. This Agreement shall be construed under and in
accordance with the laws of the State of California without reference to choice of law principles
which might indicate that the law of some other jurisdiction should apply.
(e) Severability; Waiver. In case any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provision hereto, and the
remainder of the provisions of this Agreement shall continue in full force and effect without
impairment. The waiver by either party of a breach of any provision of this Agreement shall not
be deemed a waiver of any subsequent breach whether of the same or another provision of this
Agreement.
(f) No Obligation to Third Parties. The execution and delivery of this
Agreement shall not be deemed to confer any rights upon, nor obligate either of the parties hereto
to, any person or entity not a party to this Agreement.
(g) Further Acts. Buyer and Seller shall execute such other and further
documents and do such further acts as may be reasonably required to effectuate the intent of the
parties and carry out the terms of this Agreement.
(h) Time of Essence; Business Days. Time is of the essence of each provision
of this Agreement of which time is an element. Any reference in this Agreement to time for
performance of obligations or to elapsed time means consecutive calendar days, months or years,
as applicable, unless otherwise indicated. Wherever the time for performance of any obligation
hereunder falls upon a day other than a business day, the time for the performance of such
obligation or the doing or effectiveness of such act shall be extended to the next succeeding
business day.
(i) Entire Agreement. This Agreement and the exhibits attached hereto
constitute the entire agreement between Seller and Buyer pertaining to the subject matter hereof
and all prior and contemporaneous agreements, representations, negotiations and understandings
of Seller and Buyer, oral or written, including without limitation the letter of intent previously
executed, are hereby superseded and merged herein. The provisions of this Agreement may not
be amended or altered except by a written instrument duly executed by Seller and Buyer.
(j) Rights Unique to Buyer. The rights of Buyer to acquire the Property are
unique to the Property and may be specifically enforced without posting bond in the event of any
breach by Seller in conveying the Property.
(k) Attorneys’ Fees. If legal action is commenced to enforce or to declare the
effect of any provision of this Agreement or in connection with the Property or any matters related
248
20
to the transactions contemplated in this Agreement, the prevailing party shall be entitled to recover
from the non-prevailing party reasonable attorneys’ fees and other litigation costs. In addition to
the foregoing award of attorneys’ fees and other litigation costs to the prevailing party, the
prevailing party in any lawsuit on this Agreement shall be entitled to its attorneys’ fees and other
litigation costs incurred in any post-judgment proceedings to collect or enforce the judgment. This
provision is separate and several and shall survive the merger of this Agreement into any judgment
on this Agreement. This provision shall survive Closing or termination of this Agreement.
(l) Exclusivity. Until the Closing or the date that this Agreement is terminated,
Seller shall not enter into any contract, or enter into or continue any negotiations, to sell the
Property to any person or entity other than Buyer.
(m) No Offer or Binding Contract. The parties hereto agree that the submission
of an unexecuted copy of this Agreement by one party to another is not intended by either party to
be, or be deemed to be a legally binding contract or an offer to enter into a legally binding contract.
The parties shall be legally bound pursuant to the terms of this Agreement only if and when the
parties have been able to negotiate all of the terms and provisions of this Agreement in a manner
acceptable to each of the parties in their respective sole discretion, and both Seller and Buyer have
fully executed and delivered this Agreement.
(n) Counterparts. This Agreement may be signed in counterparts and taken
together the counterparts when fully executed will constitute a single agreement. Facsimile or
PDF signatures submitted by Seller or Buyer will be accepted as originals on behalf of that party.
(o) Incorporation of Recitals and Exhibits. The Recitals set forth in this
Agreement and the Exhibits attached to this Agreement are each incorporated into the body of this
Agreement as if set forth in full.
(p) Approvals. Except with respect to entitlements, permits, regulatory and
governmental approvals, including but not limited to street vacations contemplated in this
Agreement, whenever this Agreement calls for Seller approval, consent, extension or waiver, the
written approval, consent, or waiver of the City Manager or his or her designee(s) shall constitute
the approval, consent, extension or waiver of the Seller, without further authorization required
from the City Council. However, except for the time extensions set forth in Section 6(f)(iv) above,
the Schedule of Performance may be administratively extended for two (2) six (6) month periods
and any subsequent extensions shall require approval by the City Council. The Seller hereby
authorizes the City Manager and his or her designee(s) to deliver any such approvals, consents, or
extensions or waivers as are required by this Agreement, or that do not otherwise reduce Seller’s
rights under this Agreement, and to waive requirements under this Agreement, on behalf of the
Seller.
(q) Merger, Survival. The provisions of this Agreement shall not merge with
the delivery of the Deed or any other instrument delivered at Closing, but shall, except as otherwise
provided in this Agreement, survive the Closing.
[Remainder of page intentionally left blank]
249
S-1
IN WITNESS WHEREOF, Seller and Buyer have set their hands on the day and
year first above written.
SELLER:
CITY OF SOUTH SAN FRANCISCO
By: _______________________________
Mike Futrell
City Manager
ATTEST:
By: _______________________________
Rosa Govea Acosta
City Clerk
APPROVED AS TO FORM:
By: _______________________________
Sky Woodruff
City Attorney
BUYER:
EDEN HOUSING, INC.,
a California nonprofit public benefit
corporation
By: ______________________________
Name: __________________________
Title: __________________________
250
S-2
Acceptance by Escrow Holder:
North American Title Company hereby acknowledges that it has received a fully executed original
(which may be via facsimile or email) of the foregoing Agreement and agrees to act as Escrow
Holder thereunder and to be bound by and perform the terms thereof as such terms apply to Escrow
Holder.
Dated: ____, 2021
NORTH AMERICAN TITLE COMPANY
By______________________________
Name: __________________________
Title: __________________________
251
A-1
EXHIBIT “A”
LEGAL DESCRIPTION OF LARGER PARCEL
[INSERT]
252
B-1
EXHIBIT A-2
PROPERTY
253
B-1
EXHIBIT B
SCHEDULE OF PERFORMANCE
1 Purchase & Sale Agreements executed and
become effective Within 30 days of Council approval
2 Entitlement and Planning Application Submittal Within 120 days of PSA agreement
executed and effective
3 Receive Entitlement Approvals from City 9 months following entitlement
application
4 Submit Construction Drawings and Permitting
Application
4 months following entitlement
approvals
5 Eden and Harman to enter into PSA for KFC
Site Prior to December 31, 2022
Close of Escrow December 31, 2022
6 Apply for all other soft funding sources 18 months following entitlement
approvals
7 Apply for tax credit funding
First and all subsequent rounds
following securement of all soft
funding sources – assuming that these
funding sources are still adequate to
complete the project along with the
tax credit award.
8 Start Construction 6 months following securing all
funding
9 Certificate of Occupancy for residential units 30 months following construction
commencement
10 Lease Up/ Move-In 3 months following issuance of final
certificate of occupancy
254
C-1
EXHIBIT “C”
GRANT DEED
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
(see below)
MAIL TAX STATEMENTS TO:
_______________________
_______________________
_______________________
(Space Above Line for Recorder’s Use Only)
THE UNDERSIGNED GRANTOR(s) DECLARE(s):
DOCUMENTARY TRANSFER TAX is $ __________________. CITY TAX $ __________________.
¨ Computed on full value of property conveyed, or ¨ Computed on full value less value of liens or encumbrances remaining at
time of sale,
¨ Unincorporated area: ¨ City of ________,
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
___________________________ (“Grantor”), does hereby grant to _____________________, a
___________________, the real property in the County of ___________, State of California,
described on Exhibit “A” attached hereto and by this reference incorporated herein (the
“Property”).
IN WITNESS WHEREOF, the undersigned has executed this Grant Deed as of
_______________, 20__.
By:
Name:
Title:
255
C-2
STATE OF CALIFORNIA )
) ss:
County of )
On ______________________________, 20__ before me, ______________________(here insert
name of the officer), Notary Public, personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
[Seal]
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
256
C-3
EXHIBIT “A” TO GRANT DEED
LEGAL DESCRIPTION
[INSERT]
5011539.2
257