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2017-09-06 e-packet@6:00
Wednesday, September 6, 2017 6:00 PM City of South San Francisco P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA Municipal Services Building, Council Chambers 33 Arroyo Drive, South San Francisco, CA Special City Council Special Meeting Agenda September 6, 2017Special City Council Special Meeting Agenda NOTICE IS HEREBY GIVEN, pursuant to Section 54956 of the Government Code of the State of California, the City Council of the City of South San Francisco will hold a Special Meeting on Wednesday, September 6, 2017, at 6:00 p.m., in the City Council Chambers, Municipal Services Building, 33 Arroyo Drive, South San Francisco, California. Purpose of the meeting: Call to Order. Roll Call. Agenda Review. Public Comments - comments are limited to items on the Special Meeting Agenda. LEGISLATIVE BUSINESS Report regarding an Ordinance adding Chapter 15.64 to the South San Francisco Municipal Code to comply with AB1236 regarding electric vehicle charging stations review processes and expedited permitting procedures. (Phillip Perry, Chief Building Official) 1. An Ordinance adding Chapter 15.64 to the South San Francisco Municipal Code to comply with AB1236 regarding electric vehicle charging stations review processes and expedited permitting procedures. 1a. ADMINISTRATIVE BUSINESS Report regarding a resolution approving a Disposition and Development Agreement with Hisense Real Estate (USA) for the development of the properties located at 200 Linden, 212 Baden, and 216 Baden Avenue (APNs 012334130, 012334160, 012334030 and 012334040) for $3,500,000 and authorizing the City Manager to execute the Agreement. (Julie Barnard, Economic Development Coordinator) 2. Resolution approving a Disposition and Development Agreement with Hisense REUS, LLC for the sale development of the properties located at 200 Linden, 212 Baden, and 216 Baden Avenue (APNs 012334130, 012334160, 012334030 and 012334040) for $3,500,000 and authorizing the City Manager to execute the Agreement. 2a. Report regarding a resolution approving a first amendment to the services agreement with Barrango MFG for the installation and maintenance of holiday decorations to amend the scope of services and increase the not to exceed amount from $22,880 to $78,880. (Julie Barnard, Economic and Community Development Coordinator) 3. Page 2 City of South San Francisco Printed on 9/20/2017 September 6, 2017Special City Council Special Meeting Agenda Resolution approving a first amendment to the services agreement with Barrango MFG for the installation and maintenance of holiday decorations to amend the scope of services and increase the not to exceed amount from $22,880 to $78,880 3a. Report regarding a resolution approving the second amendment to a consulting services agreement with Personnel Data Systems Inc, for the installation of a new human resources, payroll, and timekeeping software system, increasing the contract amount by $250,000 for a total amount not to exceed $500,000 and authorizing the City Manager to execute the amendment. (Mich Mercado, Human Resources Manager and Richard Lee, Finance Director) 4. Resolution approving the second amendment to a consulting services agreement with Personnel Data Systems Inc, extending the term and increasing the contract amount by $250,000 for a total amount not to exceed of $500,000 and authorizing the City Manager to execute the amendment. 4a. CONSENT CALENDAR Report regarding a resolution determining and declaring a prima facie speed limit of 15 miles per hour when children are present on Miller Avenue, between Holly Avenue and Gardenside Avenue, fronting Sunshine Gardens Elementary School. (Richard Cho, Senior Civil Engineer) 5. Resolution determining and declaring a prima facie speed limit of 15 miles per hour when children are present on Miller Avenue, between Holly Avenue and Gardenside Avenue, fronting Sunshine Gardens Elementary School. 5a. Report regarding resolution approving the Debt Management Policy of the City of South San Francisco. (Richard Lee, Director of Finance) 6. Resolution approving the Debt Management Policy of the City of South San Francisco6a. Report regarding a resolution approving the City Council’s response to the San Mateo County Civil Grand Jury Report, dated July 12, 2017, entitled “A Delicate Balance: Privacy vs. Protection”, and authorizing the City Manager to send the response letter on behalf of the City Council. (Jeff Azzopardi, Police Chief) 7. Resolution approving the City Council’s response to the San Mateo County Civil Grand Jury Report, dated July 12, 2017, entitled “A Delicate Balance: Privacy vs. Protection”, and authorizing the City Manager to send the response letter on behalf of the City Council. 7a. Report regarding a resolution approving the salary schedule effective September 8, 2017, to reflect a three percent increase for non-union hourly job classifications. (LaTanya Bellow, Human Resources Director) 8. Page 3 City of South San Francisco Printed on 9/20/2017 September 6, 2017Special City Council Special Meeting Agenda Resolution approving the salary schedule effective September 8, 2017 to reflect a three percent wage increase for non-union hourly job classifications. 8a. Report regarding a resolution awarding a construction contract to VSS International, Inc. of West Sacramento, California for the 2017 Scrub Seal & Rapid Setting Slurry Seal Project in an amount not to exceed $754,120 and authorizing a total construction budget of $1,080,356. (Sam Bautista, Principal Engineer) 9. Resolution awarding the construction contract to VSS International, Inc. of West Sacramento, California for the 2017 Scrub Seal & Rapid Setting Slurry Seal Project in an amount not to exceed $754,120 and authorizing a total construction budget of $1,080,356. 9a. Report regarding a resolution awarding a construction contract to Interstate Grading & Paving, Inc. of South San Francisco, California for the 2016 Street Rehabilitation Project in an amount not to exceed $2,574,469 and authorizing a total construction budget of $3,240,851. (Sam Bautista, Principal Engineer) 10. Resolution awarding a construction contract to Interstate Grading & Paving, Inc. of South San Francisco, California for the 2016 Street Rehabilitation Project in an amount not to exceed $2,574,469 and authorizing a total construction budget of $3,240,851. 10a. Report regarding a resolution awarding a construction contract to K.J. Woods Construction Inc. of San Francisco, California for the 2016 Sanitary Sewer and Manhole Replacement Project in an amount not to exceed $1,548,000 and authorizing a total construction budget of $2,055,960. (Sam Bautista, Principal Engineer) 11. Resolution awarding the construction contract to K.J. Woods Construction Inc. of San Francisco, California for the 2016 Sanitary Sewer and Manhole Replacement Project in an amount not to exceed $1,548,000 and authorizing a total construction budget of $2,055,960. 11a. Report regarding a resolution approving the first amendment to a consulting services agreement with Du-All Safety extending the term for a second year , increasing the contract amount by $125,000 for a total amount not to exceed $250,000, and authorizing the City Manager to execute the amendment. (LaTanya Bellow, Human Resources Director) 12. Resolution approving the first amendment to a consulting services agreement with Du-All Safety extending the term for a second year and increasing the contract amount by $125,000 for a total amount not to exceed of $250,000, and authorizing the City Manager to execute the agreement. 12a. Page 4 City of South San Francisco Printed on 9/20/2017 September 6, 2017Special City Council Special Meeting Agenda Report regarding a resolution accepting the receipt and allocation of $30,174 in grant funds from the California Board of State and Community Corrections to the LifeMoves Outreach Program for the enhancement of homeless outreach efforts. (Jeff Azzopardi, Police Chief) 13. Resolution accepting the receipt and allocation of $30,174 in grant funds from the California Board of State and Community Corrections to the LifeMoves Outreach Program for the enhancement of homeless outreach efforts. 13a. Report regarding a motion to accept the HVAC Improvement at Main Library and Magnolia Center Rebid Project as complete in accordance with plans and specifications (total construction cost $153,759). (Sam Bautista, Principal Engineer) 14. CLOSED SESSION Closed Session: Conference with Legal Counsel Existing Litigation (paragraph (1) of subdivision (d) of Section 54956.9); One Case; Name of Case: San Mateo County Unfunded Mandate Test Claim Regarding NPDES Permit Compliance Costs 15. ADJOURNMENT Page 5 City of South San Francisco Printed on 9/20/2017 City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-815 Agenda Date:9/6/2017 Version:1 Item #:1. Report regarding an Ordinance adding Chapter 15.64 to the South San Francisco Municipal Code to comply with AB1236 regarding electric vehicle charging stations review processes and expedited permitting procedures.(Phillip Perry, Chief Building Official) RECOMMENDATION Staff recommends that the City Council introduce by title and waive the first reading of an Ordinance adding Chapter 15.64 to Title 15 of the South San Francisco Municipal Code to comply with AB 1236 regarding electric vehicle charging stations review processes and expedited permitting procedures. BACKGROUND/DISCUSSION Assembly Bill 1236 (AB 1236)was approved on October 8,2015,and adds Section 65850.7 of the California Government Code related to electric vehicle charging stations. Subsection (a)of Section 65850.7 of the California Government Code provides that it is the policy of the State to promote and encourage the installation and use of electric vehicle charging stations by limiting obstacles to their use,and by minimizing the permitting costs of such systems.Section 65850.7 also provides that a city shall administratively approve applications to install electric vehicle charging stations through the issuance of a building permit or similar nondiscretionary permit. AB 1236 requires every local jurisdiction with a population of 200,000 or less to adopt an ordinance that creates an expedited, streamlined permitting process for "electric vehicle charging stations." The City already has a process in place to review and issue these permits within a maximum of five days,or over the counter by appointment.Under the current process,the City can accept and approve applications either at the building counter or electronically,and the City substantially expedites the review of such applications. Consequently,the primary ramification of the State-mandated ordinance is that the City may not deny applications for electric vehicle charging stations unless the City makes specified written findings demonstrating that the proposed stations would have “a specific,adverse impact upon public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific,adverse impact.”Staff anticipates such occurrences would be very rare because the City seldom encounters issues or concerns with electric vehicle charging stations that cannot be resolved through the design and permitting process. The associated ordinance complies with the requirements of AB 1236 and thereby protects public health and safety by prescribing minimum standards for the use,design and installation of electric vehicle charging stations while simultaneously establishing an expedited,streamlined permitting and inspection process for installation, alteration and replacement of such equipment. CONCLUSION Staff recommends City Council introduce by title an ordinance adding Chapter 15.64 to Title 15 of the City of South San Francisco Municipal Code relating to the expedited permitting process for electric vehicle charging stations and waive the first reading of the ordinance. City of South San Francisco Printed on 8/31/2017Page 1 of 2 powered by Legistar™ File #:17-815 Agenda Date:9/6/2017 Version:1 Item #:1. City of South San Francisco Printed on 8/31/2017Page 2 of 2 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-816 Agenda Date:9/6/2017 Version:1 Item #:1a. An Ordinance adding Chapter 15.64 to the South San Francisco Municipal Code to comply with AB1236 regarding electric vehicle charging stations review processes and expedited permitting procedures . WHEREAS,Assembly Bill 1236 (AB 1236)was adopted on October 8,2015,and adds Section 65850.7 of the California Government Code related to electric vehicle charging stations; and, WHEREAS,Section 65850.7 of the California Government Code states that it is the policy of the State to promote and encourage the installation and use of electric vehicle charging stations by limiting obstacles to their use, and by minimizing the permitting costs of such systems; and, WHEREAS,Section 65850.7 also provides that a city shall administratively approve applications to install electric vehicle charging stations through the issuance of a building permit or similar nondiscretionary permit; and, WHEREAS,Section 65850.7 also required that every local jurisdiction with a population of 200,000 or less to adopt an ordinance that creates an expedited,streamlined permitting process for electric vehicle charging stations; and, WHEREAS,the City of South San Francisco seeks to adopt this ordinance to comply with the requirements of AB 1236. NOW, THEREFORE the City Council of the City of South San Francisco does ordain as follows: Section 1.Amendments Title 15,“Buildings and Construction,”of the South San Francisco Municipal Code is hereby amended by adding Chapter 15.46, “Permit Process for Electric Vehicle Charging Stations,” to read as follows: Chapter 15.64 PERMIT PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Sections: 15.64.010 Purpose. 15.64.020 Definitions. 15.64.030 Applicability. 15.64.040 Electric vehicle charging station requirements. 15.64.050 Submittal requirements. 15.64.060 Plan review and permit issuance. City of South San Francisco Printed on 8/31/2017Page 1 of 5 powered by Legistar™ File #:17-816 Agenda Date:9/6/2017 Version:1 Item #:1a. 15.64.010 Purpose The purpose of this chapter is to adopt an expedited,streamlined permitting process for electric vehicle charging stations that complies with AB 1236 (Chapter 598,Statutes 2015,Cal.Gov’t Code §65850.7,as may be amended from time to time)to achieve timely and cost-effective installations of electric vehicle charging stations.This chapter encourages the use of electric vehicle charging stations by removing unreasonable barriers,minimizing costs to property owners and the City of South San Francisco,and expanding the ability of property owners to install electric vehicle charging stations.This chapter allows the City of South San Francisco to achieve these goals while protecting the public health and safety. 15.64.020 Definitions. (a)“Electric vehicle charging station(s)”or “charging station(s)”means any level of electric vehicle supply equipment station that is designed and built in compliance with California Code of Regulations,Title 24, Part 3 California Electrical Code,Article 625,as it reads on the effective date of this chapter or as it may be amended, and delivers electricity from a source outside an electric vehicle into a plug-in electric vehicle. (b)“Specific,adverse impact”means a significant,quantifiable,direct,and unavoidable impact,based on objective,identified,and written public health or safety standards,policies,or conditions as they existed on the date the application was deemed complete. (c) “Electronic submittal” means the utilization of one or more of the following: (1) E-mail; (2) The Internet; or (3) Facsimile. (d) “Building Official” means the City’s Chief Building Official or his or her designee. 15.64.030 Applicability. This Ordinance applies to the permitting of all electric vehicle charging stations in the City of South San Francisco.Electric vehicle charging stations legally established or permitted prior to the effective date of this Ordinance are not subject to the permitting requirements of this Ordinance unless physical modifications or alterations are undertaken that materially change the size,type,or components of the electric vehicle charging station in such a way as to require new permitting.Routine operation and maintenance shall not require a permit. 15.64.040 Electric vehicle charging stations requirements. (a)All electric vehicle charging stations shall meet all applicable health and safety standards and City of South San Francisco Printed on 8/31/2017Page 2 of 5 powered by Legistar™ File #:17-816 Agenda Date:9/6/2017 Version:1 Item #:1a. requirements imposed by the State and the City. (b)Electric vehicle charging stations shall meet all applicable safety and performance standards established by the California Electrical Code,the Society of Automotive Engineers,the National Electrical Manufacturers Association,and accredited testing laboratories such as Underwriters Laboratories and where applicable, rules of the Public Utilities Commission regarding safety and reliability. 15.64.050 Submittal requirements. (a)All documents required for the submission of an electric vehicle charging station application shall be made available on the City’s website. (b)Electronic submittal of the required permit application and documents shall be made available to all electric vehicle charging station permit applicants.An applicant’s electronic signature shall be accepted on all forms, applications, and other documents in lieu of a wet signature. (c)The City’s Building and Safety Division shall adopt a checklist of all requirements with which the electric vehicle charging stations shall comply to be eligible for expedited review.The electric vehicle permit process,standard(s)and checklist(s)may substantially conform to recommendations for permitting,including the checklist and standards contained in the “Plug-In Electric Vehicle Infrastructure Permitting Checklist”of the “Zero-Emission Vehicles in California:Community Readiness Guidebook”published by the Governor’s Office of Planning and Research. (d)All fees prescribed for the permitting of electric vehicle charging stations must comply with, Government Code Section 66016,and State Health and Safety Code Section 17951 as set forth in the fee schedule adopted by resolution of the City Council. (e)The determination of value or valuation under any of the provisions of this code shall be made by the Building Official.The value to be used in computing the electric vehicle charging station permit and plan review shall be the total value of all construction work for which the permit is issued as well as any other equipment. 15.64.060 Plan review and permit issuance. (a)The Building Official shall implement an administrative review process to expedite approval of electric vehicle charging stations.Where the application meets the requirements of the approved checklist and there are no specific,adverse impacts upon public health or safety,the Building and Safety Division shall complete the permit approval process,which is nondiscretionary,and issue the permit.Review of theCity of South San Francisco Printed on 8/31/2017Page 3 of 5 powered by Legistar™ File #:17-816 Agenda Date:9/6/2017 Version:1 Item #:1a. complete the permit approval process,which is nondiscretionary,and issue the permit.Review of the application for electric vehicle charging stations shall be limited to the Building Official’s review of whether the application meets local, state, and federal health and safety requirements. (b)The Building Official may require an applicant to apply for an “electric vehicle charging station use permit”if the building official finds,based on the initial application submittal,that the electric vehicle charging stations could have a specific,adverse impact upon the public health and safety.The Building Official’s decision may be appealed to the South San Francisco Planning Commission in accordance with the appeal procedures set forth in Chapter 20.570. (1)If an electric vehicle charging station use permit is required,the Building Official may only deny an application for the electric vehicle charging station use permit if the Building Official makes written findings based upon substantial evidence in the record that the proposed installation would have a specific, adverse impact upon public health or safety and there is no feasible method to satisfactorily mitigate or avoid the adverse impact.Such findings shall include the basis for the rejection of the potential feasible alternative for preventing the adverse impact.The Building Official’s decision may be appealed to the South San Francisco Planning Commission. (i)If the Building Official issues an electric vehicle charging station use permit,the permit may include conditions designed to mitigate the specific,adverse impact upon health and safety at the lowest possible cost. (ii)A feasible method to satisfactorily mitigate or avoid the specific,adverse impact includes,but is not limited to,any cost-effective method,condition,or mitigation imposed by the City on another similarly situated application in a prior successful application for an electric vehicle charging station use permit. (c)If an application is deemed incomplete,a written correction notice detailing all deficiencies in the application and any additional information or documentation required to be eligible for permit issuance shall be sent to the applicant for resubmission.A separate fire inspection may be performed by the City of South San Francisco Fire Department, if required. SECTION 2.Severability If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid or unconstitutional,the remainder of this Ordinance,including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect.To City of South San Francisco Printed on 8/31/2017Page 4 of 5 powered by Legistar™ File #:17-816 Agenda Date:9/6/2017 Version:1 Item #:1a. to other persons or circumstances shall not be affected thereby and shall continue in full force and effect.To this end,provisions of this Ordinance are severable.The City Council of the City of South San Francisco hereby declares that it would have passed each section,subsection,subdivision,paragraph,sentence,clause,or phrase hereof irrespective of the fact that any one or more sections,subsections,subdivisions,paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable. SECTION 3.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 become effective thirty (30) days from and after its adoption. ***** City of South San Francisco Printed on 8/31/2017Page 5 of 5 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-707 Agenda Date:9/6/2017 Version:1 Item #:2. Report regarding a resolution approving a Disposition and Development Agreement with Hisense Real Estate (USA)for the development of the properties located at 200 Linden,212 Baden,and 216 Baden Avenue (APNs 012334130,012334160,012334030 and 012334040)for $3,500,000 and authorizing the City Manager to execute the Agreement.(Julie Barnard, Economic Development Coordinator) RECOMMENDATION Staff recommends that the City Council adopt a resolution approving a Disposition and Development Agreement between the City of South San Francisco and Hisense Real Estate for the sale of 200 Linden,212 Baden,and 216 Baden Avenue for $3,500,000,and authorizing the City Manager to execute Agreement on behalf of the City. BACKGROUND/DISCUSSION The properties subject to this proposed Disposition and Development Agreement were originally acquired by the South San Francisco Redevelopment Agency (Redevelopment Agency),and include 200 Linden Avenue, 212 Baden Avenue,and 216 Baden Avenue (collectively the “Properties”or “200 Linden”).Upon the dissolution of redevelopment agencies by the State of California,the California Department of Finance (DOF) authorized the transfer of the former Redevelopment Agency’s property assets to the South San Francisco Successor Agency (Successor Agency).The Successor Agency was then required to develop a Long Range Property Management Plan (LRPMP)that governs the disposition and use of all former redevelopment agency properties.The LRPMP calls for the subject sites to be retained by the City for future development.Following approval of the LRPMP by both the Oversight Board and the DOF,the properties have been transferred to the City for disposition consistent with the LRPMP.The properties are now owned by the Successor Agency to the City. Through a competitive bid process,the City Council selected Hisense REUS,LLC (Hisense)as the developer for the Properties.Hisense (Developer)was selected because their proposal presented the highest purchase price ($3,500,000),for-sale housing,and a proposal to provide ground floor retail of either a drug store or a grocery store. On November 7,2016,the City Council and Successor Agency approved an Exclusive Negotiating Rights Agreement (ENRA)between the South San Francisco Successor Agency,the City of South San Francisco,and Hisense for the site.Later that month,the Oversight Board confirmed their approval of the sale price.The ENRA established procedures and standards over a set period for the negotiation between the City and Hisense in order to reach a Disposition and Development Agreement (DDA). The ENRA was effective on November 30,2016,with an initial term of seven months and an option to extend by an additional 60 days upon the payment of $25,000.On June 5,2017,Hisense opted to extend the ENRA term to August 29,2017 and paid the $25,000 fee.The City and developer are currently working in good faith until the DDA is executed. As per the ENRA,Hisense paid a $300,000 deposit.Costs associated with staff and City attorney costs are deducted from this deposit,with the remainder being applicable to the purchase price.Staff has been workingCity of South San Francisco Printed on 8/31/2017Page 1 of 4 powered by Legistar™ File #:17-707 Agenda Date:9/6/2017 Version:1 Item #:2. deducted from this deposit,with the remainder being applicable to the purchase price.Staff has been working closely with Hisense to assist in refining their concept,to ensure that the objectives set forth in the ENRA are met, and to negotiate a DDA for the final sale of the properties. On May 29,2017,Hisense submitted their initial planning application.This was reviewed by the Design Review Board and the Technical Advisory Group on June 20,2017.Additionally,a community meeting was held on July 31,2017 to gather community input.Hisense has revised their planning application based on comments from the aforementioned meetings and from staff.The revised plan set was submitted on August 1, 2017 and their application is currently under review by Planning staff.The Project’s entitlements will be scheduled for consideration by the Planning Commission once the Project’s plans are deemed to be complete. The proposed project outlined in the planning application includes the following features: ·97 for-sale units (comprised of 24 one-bedroom, 68 two-bedroom, and five three-bedroom units). ·Approximately 6,500 sq. ft. of ground floor retail. ·85 foot building height. ·Development amenities including a 7,000 sq.ft.courtyard,1,200 sq.ft.common room and an eighth floor lounge and deck. ·Of the 97 for-sale units,20 will be sold Below Market Rate (BMR).As per the City’s Inclusionary Housing Regulations,20 percent of the units are required to be below market rate for for-sale housing. In addition,Hisense is seeking to utilize the State density bonus,which allows them to increase their total number of units by 35 percent if certain affordability requirements are met.The State Density Bonus regulations,however,require lower affordability levels than the City’s Inclusionary Housing Regulations.Accordingly,as set forth in the California Government Code,all units will need to be at 80 percent Area Median Income (AMI)and below.A term of the DDA states that the final Affordable Housing Agreement will be approved by the City as a condition of approval to the planning entitlements. Disposition and Development Agreement (DDA) The purpose of a DDA is to establish the terms and procedures for conveying and developing the property.The full DDA is found as Exhibit A in the associated resolution.The DDA between the City of South San Francisco and Hisense reflects the business terms of the sale and project development.The major business terms that were negotiated are summarized below. Purchase Price: Hisense's initial offer remains unchanged, with a purchase price of $3,500,000. Open of Escrow:Escrow will open only when the following have been satisfied:1)Developer submits a financing plan to the City;2)Developer has obtained all necessary permits and approvals from the City;and 3) Developer has submitted its demolition and grading permit package to the Building Division. Close of Escrow:Escrow on the property will close 10 days following all conditions precedent in the DDA has been met.In order for the developer to begin demolition and grading the property must first be conveyed to the developer,escrow will close and the property conveyed when construction documents are 90%complete.In addition,the developer will pay half of all permit and impact fees with their building permit submission,rather than upon building permit issuance.The total permit and impact fees are estimated to be $2,900,000.The paid fees to the City upon building permit submittal will be forfeited if Hisense fails to satisfy the timing of the obligations that are set forth in the schedule of performance in the DDA. City of South San Francisco Printed on 8/31/2017Page 2 of 4 powered by Legistar™ File #:17-707 Agenda Date:9/6/2017 Version:1 Item #:2. In addition, the following documents will be deposited into escrow five days before Close of Escrow: ·Final Financing Plan,which includes a proforma which details all costs associated with the development, ·Evidence of availability of funds, which should align with the costs outlined in the proforma, ·Evidence of the construction loan or source of funding for construction, and ·Executed contract with construction contractor(s). Retail component:During the ENRA period the developer engaged a commercial broker for the leasing of the ground floor retail.The ENRA outlined the developer’s commitment to securing a desirable tenant of preferably a drug store or grocery store.The developer executed a listing agreement with their retail brokers, Cushman and Wakefield,on April 27,2017.Cushman and Wakefield provided input related to the design and configuration of the ground floor retail space.The broker attended the International Council of Shopping Centers (ICSC)Conference in Las Vegas in May 2017 to connect with potential tenants and garner feedback on the ground floor retail layout.There were no meetings scheduled with potential tenants at ICSC.In late May, Hisense provided a Letter of Interest from a tea shop, Tea Bar and Fusion Café. The terms of the DDA continue these good faith efforts outlined in the ENRA,which should culminate in a signed lease or Letter of Intent (LOI)from a tenant.Should the developer be unsuccessful in securing a tenant, the developer will be required to provide basic warm shell improvements to the ground floor retail space. Further, no residential Certificate of Occupancies will be issued until a LOI or lease has been executed. Prevailing Wage: The DDA requires the Developer to pay prevailing wage. Right of Reverter:If,after conveyance of the property,the developer:fails to begin construction of the project as outlined in the schedule of performance,abandons,or suspends construction work for 30 days;fails to complete the construction as outlined in the schedule of performance,and/or;transfers the property in violation of the terms of the DDA,the City make take back possession of the property after reimbursing Hisense the payment made to the City and any fair market improvements. Development Schedule 60 days from DDA execution:City Council approves all entitlements for the Project 60 days from entitlements:Open Escrow Demo and grading permit submitted to City First draft of Financing Plan submitted to City 180 days from entitlements:Building permit submittal 5 days before Close of Escrow:Final Financing Plan (final proforma and funding sources) Final Construction Contract Executed Insurance, performance/payment/permit bonds, guarantees Payment of one-half of permit and impact fees Close of Escrow:10 days after CDs are 90 percent complete City of South San Francisco Printed on 8/31/2017Page 3 of 4 powered by Legistar™ File #:17-707 Agenda Date:9/6/2017 Version:1 Item #:2. 60 days following COE:Developer to commence Project construction Construction Period:18 months Next Steps If City Council approves the price and terms of the DDA,the Oversight Board will need to approve the final sale price prior to DDA execution.This will be presented to the Oversight Board on September 19,2017.Under the current projected timeline,the project would begin demolition and site work in December 2017,and construction would be completed in mid-2020.Staff estimates this project will represent a $63 million investment that will bring for-sale housing with an attractive architectural design to the downtown. FISCAL IMPACT The proposed DDA would have the following direct fiscal impacts: a)Cash payment of $3,500,000 to the taxing entities (less any credits due from the original deposit),with the City’s share estimated to be approximately $595,000 (i.e., 17%); and b)City fees (including fees for building permits,in lieu park,sewer capacity,childcare,public safety,etc.) totaling approximately $2.9 million. In addition,by enabling a $63 million mixed-use housing project,the proposed DDA would have indirect, ongoing fiscal benefits in the form of increased property tax revenues (city share of approximately $107,100 per year) and sales tax revenue (undetermined, depending on the ultimate use of the retail space). CONCLUSION Staff recommends that the City Council adopt a resolution authorizing the City Manager to execute a Disposition and Development Agreement between the City of South San Francisco and Hisense Real Estate for the sale of 200 Linden for $3,500,000. City of South San Francisco Printed on 8/31/2017Page 4 of 4 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-708 Agenda Date:9/6/2017 Version:1 Item #:2a. Resolution approving a Disposition and Development Agreement with Hisense REUS,LLC for the sale development of the properties located at 200 Linden,212 Baden,and 216 Baden Avenue (APNs 012334130, 012334160,012334030 and 012334040)for $3,500,000 and authorizing the City Manager to execute the Agreement. WHEREAS,on June 29,2011,the Legislature of the State of California (the “State”)adopted Assembly Bill x1 26 (“AB 26”),which amended provisions of the State’s Community Redevelopment Law (Health and Safety Code sections 33000 et seq)(the “Dissolution Law”),pursuant to which the former Redevelopment Agency of the City of South San Francisco was dissolved on February 1,2012.The City became the Successor Agency to the Redevelopment Agency of the City of South San Francisco (“Successor Agency”),and in accordance with the Dissolution Law,the Successor Agency prepared a Long Range Property Management Plan (“LRPMP”), which was approved by a resolution of the Oversight Board for the Successor Agency to the Redevelopment Agency of the City of South San Francisco (“Oversight Board”)on May 21,2015,and was approved by the Department of Finance (“DOF”) on October 1, 2015; and WHEREAS,consistent with the Dissolution Law and the LRPMP,certain real properties located in the City of South San Francisco,that were previously owned by the former Redevelopment Agency was transferred to the Successor Agency (“Agency Properties”); and WHEREAS,on October 18,2016,the City entered into an Amended and Restated Master Agreement for Taxing Entity Compensation (“Compensation Agreement”)with the various local agencies who receive shares of property tax revenues from the former redevelopment project area (“Taxing Entities”),which provides that upon approval by the Oversight Board of the sale price,and consistent with the LRPMP,the proceeds from the sale of any of the Agency Properties will be distributed to the Taxing Entities in accordance with their proportionate contributions to the Real Property Tax Trust Fund for the former Redevelopment Agency; and WHEREAS,on February 8,2017,the City adopted Resolution 16-2017 approving the transfer of the Agency Properties from the Successor Agency to the City and in accordance with the requirements set forth in the LRPMP,and on February 21,2017,the Oversight Board adopted a resolution approving the transfer of the Redevelopment Properties from the Successor Agency to the City; and WHEREAS,consistent with the LRPMP and the Oversight Board resolution,the Successor Agency and City executed and recorded grant deeds transferring the Agency Properties to the City; and WHEREAS,the real property located at 200 Linden Avenue,212 Baden Avenue,and 216 Baden Avenue (“200 Linden”)located in the City of South San Francisco,California,known as Area Parcel Numbers (“APNs”) 012334130,012334160,012334030 and 012334040 are Agency Properties and are subject to the provisions of the LRPMP and the Compensation Agreement; and WHEREAS,City Council selected Hisense REUS,LLC (“Developer”)to develop the properties located at 200City of South San Francisco Printed on 9/7/2017Page 1 of 3 powered by Legistar™ File #:17-708 Agenda Date:9/6/2017 Version:1 Item #:2a. WHEREAS,City Council selected Hisense REUS,LLC (“Developer”)to develop the properties located at 200 Linden in a manner consistent with the LRPMP; and WHEREAS,the City Council the Successor Agency approved an Exclusive Negotiating Rights Agreement (“ENRA”)between the Successor Agency,the City of South San Francisco (“City”),and Developer in order to negotiate a disposition agreement consistent with the LRPMP; and WHEREAS,the City has been working closely with Developer to negotiate a Disposition and Development Agreement (“DDA”) for the sale and disposition of the properties; and WHEREAS,Developer have submitted their planning application which includes 97 for-sale units, approximately 6,500 square feet of ground floor retail,85 feet building height,development amenities and approximately twenty Below Market Rate (“BMR”) units; and WHEREAS,the City and the Developer now wish to enter into a DDA for the disposition and development of 200 Linden, attached hereto and incorporated herein as Exhibit A; and WHEREAS,final approval of the sale price must be confirmed by the Oversight Board to the Successor Agency of South San Francisco; and WHEREAS,because the City is obligated to dispose of the Agency Properties in accordance with the LRPMP and to satisfy goals,objectives and purposes of the Redevelopment Plan and the Redevelopment Dissolution Statutes,the Agency Properties are not "surplus"property of the City and are not subject to the disposition requirements and procedures of the Surplus Lands Act (Government Code Section 54220 et seq.); and WHEREAS,the disposition of the Properties in accordance with the LRPMP and to satisfy goals,objectives and purposes of the Redevelopment Plan and the Redevelopment Dissolution Statutes constitutes a "common benefit"that may take place under authority of California Government Code Section 37350 and/or other disposition authority deemed appropriate by the City; and WHEREAS,approval of the DDA is considered a “project”for purposes of the California Environmental Quality Act, Pub. Resources Code § 21000, et seq. (“CEQA”); 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 within the Downtown Station Area Specific Plan (“DSASP”); 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 City of South San Francisco Printed on 9/7/2017Page 2 of 3 powered by Legistar™ File #:17-708 Agenda Date:9/6/2017 Version:1 Item #:2a. analyzed under a program EIR and would not require any new mitigation measures; and WHEREAS,the development of the Property was contemplated in the DSAP EIR,and the execution of a Disposition and Development Agreement 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,therefore,no subsequent or supplemental environmental review is required pursuant to CEQA Guidelines § 15162. NOW THEREFORE IT BE 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.Approves a Disposition and Development Agreement between the City of South San Francisco and Hisense REUS,LLC for the sale and development of the properties located at 200 Linden Avenue,212 Baden Avenue,and 216 Baden Avenue for $3,500,000 in substantially the same form attached hereto as Exhibit A; and 3.Subject to approval by the Oversight Board of the final sale price,authorizes the City Manager,or his designee,to enter into and execute on behalf of the City Council the Disposition and Development Agreement attached hereto as Exhibit A,and any necessary documents related to the Disposition and Development Agreement; and 4.Authorizes the City Manager,or his designee,to make any revisions,amendments or modifications to the Disposition and Development Agreement or related documents deemed necessary to carry out the intent of this Resolution and which do not materially or substantially increase the City’s obligations thereunder. ***** City of South San Francisco Printed on 9/7/2017Page 3 of 3 powered by Legistar™ Exhibit A: Disposition and Development Agreement 1 DISPOSITION AND DEVELOPMENT AGREEMENT by and between THE CITY OF SOUTH SAN FRANCISCO and HISENSE REUS,LLC Dated ________, 2017 2 THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this “Agreement”) is entered into effective as of ____________, 2017 (“Effective Date”) by and between the City of South San Francisco, a municipal corporation (“City”) and Hisense REUS, LLC, a California limited liability company (“Developer”). City and Developer are hereinafter collectively referred to as the “Parties.” RECITALS A. The City of South San Francisco is the owner of certain real property located in the City of South San Francisco, California, known as County Assessor’s Parcel Numbers (“APN”) 012-334-130 (200 Linden Avenue), 012-334-160 (216 Baden Avenue), 012-334-040 and 012-334-030 (212 Baden Avenue), as more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the “Property”). B. On June 29, 2011, the Legislature of the State of California (the “State”) adopted Assembly Bill x1 26 (“AB 26”), which amended provisions of the State’s Community Redevelopment Law (Health and Safety Code sections 33000 et seq)(the “Dissolution Law”), pursuant to which the former Redevelopment Agency of the City of South San Francisco was dissolved on February 1, 2012. The City became the Successor Agency to the Redevelopment Agency of the City of South San Francisco (“Successor Agency”), and in accordance with the Dissolution Law, the Successor Agency prepared a Long Range Property Management Plan (“LRPMP”), which was approved by a resolution of the Oversight Board for the Successor Agency to the Redevelopment Agency of the City of South San Francisco (“Oversight Board”) on May 21, 2015, and was approved by the Department of Finance (“DOF”) on October 1, 2015. C. Consistent with the Dissolution Law and the LRPMP, certain real properties located in the City of South San Francisco, that were previously owned by the former Redevelopment Agency were transferred to the Successor Agency (“Agency Properties”). On October 18, 2016, the City entered into an Amended and Restated Master Agreement for Taxing Entity Compensation (“Compensation Agreement”) with the various local agencies who receive shares of property tax revenues from the former redevelopment project area (“Taxing Entities”), which provides that upon approval by the Oversight Board of the sale price, and consistent with the LRPMP, the proceeds from the sale of any of the Agency Properties will be distributed to the Taxing Entities in accordance with their proportionate contributions to the Real Property Tax Trust Fund for the former Redevelopment Agency. D. On February 8, 2017, the City adopted Resolution 16-2017 approving the transfer of the Agency Properties from the Successor Agency to the City and in accordance with the requirements set forth in the LRPMP, and on February 21, 2017, the Oversight Board adopted a resolution approving the transfer of the Agency Properties from the Successor Agency to the City. E. Consistent with the LRPMP and the Oversight Board resolution, the Successor Agency and City executed and recorded grant deeds transferring the Agency Properties to the City. The Property is one of the Agency Properties and is subject to the provisions of the LRPMP and the Compensation Agreement. 3 F. The City is interested in selling the Property to Developer for the construction of a 97 residential condominium units and approximately 6,,200 square feet of commercial retail space on the Property (“Project”). G. On November 30, 2016, City of South San Francisco and Agency and Developer entered into an Exclusive Negotiation Rights Agreement (“ENRA”) that provided the Developer the exclusive right to collaborate and negotiate with the Agency and the City for the purpose of reaching agreement on a project description, appropriate land uses, economic feasibility, and a definitive agreement whose terms and conditions would govern any conveyance of the Property and the development of the Property. H. This Agreement sets forth the understanding of the Parties with respect to the conveyance and development the Property. The City Council has determined that the disposition and development of the Property pursuant to this Agreement will be of benefit to the community and to the taxing entities that will share in the property taxes assessed against the Property I. City seeks development of the Property in a manner consistent with: (i) the LRPMP, (ii) the Downtown Station Area Specific Plan, and (iii) the Redevelopment Plan adopted by the former Redevelopment Agency. J. Upon satisfaction of the conditions precedent set forth in this Agreement and subject to the terms and conditions set forth in this Agreement the City will convey the Property to Developer. K. A material inducement to City to enter into this Agreement is the agreement by Developer to develop the Project within the time periods specified herein and in accordance with the provisions hereof, and the City would be unwilling to enter into this Agreement in the absence of an enforceable commitment by Developer to take such actions and complete such work in accordance with such provisions and within such time periods. L. Concurrent with City Council approval of the ENRA, Developer delivered to the City Three Hundred Thousand Dollars ($300,000) (the “Deposit”) as a deposit towards the Purchase Price (as defined in Section 3.2 below). NOW, THEREFORE, in consideration of the mutual covenants contained herein and good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows. ARTICLE I DEFINITIONS 1.1. Definitions. The following terms shall have the meanings set forth in the Sections referenced below whenever used in this Agreement and the Exhibits attached hereto. Additional terms are defined in the Recitals and text of this Agreement. “Approved Partnership Agreement” is defined in Section 7.3. “Certificate of Completion” is defined in Section 5.11. 4 “City Council” means the City Council of the City of South San Francisco. “City Manager” means the City Manager of the City of South San Francisco. “Claims” is defined in Section 5.13. “Closing Date” or “Close of Escrow” shall be the date that escrow closes for conveyance of the Property to Developer. “Conditions of Approval” is defined in Section 5.4. “Construction Plans” is defined in Section 5.6. “Deposit” is defined in Recital L. “Environmental Laws” is defined in Section 4.9.2. “Financing Plan” is defined in Section 3.4.1. “Grant Deed” is defined in Section 3.1. “Hazardous Material” is defined in Section 4.9.l. “Improvements” is defined in Section 2.3. “lndemnitees” is defined in Section 5.13. “Memorandum” is defined in Section 2.2. “Official Records” means the Official Records of San Mateo County. “Project” is defined in Recital F. “Property” is defined in Recital A. “Repurchase Option” is defined in Section 9.9. “Successor Agency” is defined in Recital B. “Transfer” is defined in Section 7.2. 1.2. Exhibits. The following exhibits are attached hereto and incorporated into this Agreement by this reference: A Legal Description of Property B Form of Memorandum C Form of Affordable Housing Agreement D Development Schedule E Form of Grant Deed 5 F Building Permit Submittal Requirements G Form of Certificate of Completion H Form of Subordination Agreement ARTICLE II REPRESENTATIONS; EFFECTIVE DATE; PROJECT SCOPE 2.1. Developer’s Representations. Developer represents and warrants to City as follows, and Developer covenants that until the expiration or earlier termination of this Agreement, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 2.1 not to be true, Developer shall immediately give written notice of such fact or condition to City. Developer acknowledges that City shall rely upon Developer’s representations made herein notwithstanding any investigation made by or on behalf of City. 2.1.1. Authority. Developer is a limited liability company, duly organized and in good standing under the laws of the State of California. Developer has the full right, power and authority to undertake all obligations of Developer under this Agreement and all other documents and instruments to be executed and delivered by Developer pursuant to this Agreement. The execution, performance and delivery of this Agreement and all other documents and instruments to be executed and delivered by Developer pursuant to this Agreement have been duly authorized by all requisite actions. The persons acting on behalf of Developer to execute this Agreement and all other documents and instruments to be executed by Developer pursuant to this Agreement have been duly authorized to do so. This Agreement constitutes, and when executed, all other documents and instruments to be executed by Developer pursuant to this Agreement will constitute, valid and binding obligations of Developer, enforceable in accordance with their respective terms. 2.1.2. No Conflict. Developer’s execution, delivery and performance of its obligations under this Agreement and the documents and instruments to be executed by Developer pursuant to this Agreement, will not constitute a default or a breach under any contract, agreement or order to which Developer is a party or by which it is bound. 2.1.3. No Litigation or Other Proceeding. No litigation or other proceeding (whether administrative or otherwise) is outstanding or has been threatened which would prevent, hinder or delay the ability of Developer to perform its obligations under this Agreement. 2.1.4. No Developer Bankruptcy. Developer is not the subject of a bankruptcy or insolvency proceeding. 2.2. Effective Date: Memorandum. The obligations of Developer and City hereunder shall be effective as of the Effective Date which date is set forth in the preamble to this Agreement. A Memorandum of this Agreement substantially in the form attached hereto as Exhibit B (the “Memorandum”) will be recorded against the Property on the Closing Date. 6 2.3. Scope of Development. The Project will include the construction of: (i) approximately 97 residential condominium units which may be subject to change during the entitlement process; (ii) subject to Section 2.4 below, at least one on-site parking space for each residential unit; and (iii) approximately 6,200_ square feet of commercial retail space (all of the foregoing are collectively referred to herein as the “Improvements”). 2.3.1. Retail Space. The commercial retail space shall be constructed in a manner that is consistent with all applicable zoning regulations. Further, Developer shall employ Good Faith Efforts to occupy ground floor retail space with a pharmacy or small market. If a pharmacy or small market is not feasible, Developer shall employ Good Faith Efforts to occupy ground floor retail space with restaurants or other active retail tenant s. Personal and financial services, offices, medical clinics and other similar uses are not permitted. For the purposes of this section, Good Faith Efforts shall constitute detailed progress reports from Developer’s broker that outline the companies contacted, contact name, dates and times of meetings, and any follow-up outreach. These reports are required every 60 days beginning with the execution date of this Agreement. If, after Good Faith Efforts by Developer, securing one of the foregoing preferred uses with a signed lease or Letter of Intent for the ground floor retail space is shown to be infeasible, Developer and City agree to meet and confer regarding the additional permissible uses for the ground floor retail space. The City shall not issue Certificates of Occupancy for the Project’s residential units until Developer provides executed retail leases for the foregoing preferred uses of ground floor retail space, or until Developer provides Basic Improvements to ground floor retail space. For the purposes of this section, Basic Improvements shall be defined as acc ess to mechanical, electrical and plumbing connections, which must include access to drain and waste; to heating, ventilation and air conditioning (HVAC); to electrical subpanels; and to floor slabs, at four locations throughout the retail space for future use. 2.4. Conditions of Approval. Developer has submitted a formal planning application to City for entitlements required for the Project. Developer agrees that it will develop the Project in accordance with the requirements resulting from the City’s review and approval of the planning application, including but not limited to all applicable Conditions of Approval adopted by the City for the Project. 2.5. Inclusionary Housing Requirements. Developer shall be subject to the City’s inclusionary affordable housing requirement as set forth under City Municipal Code Chapter 20.380. The Parties shall negotiate and execute an Affordable Housing Agreement, in a form similar to the Form of Affordable Housing Agreement, attached hereto as Exhibit C, which will also be a condition of approval of Developer’s entitlements. The Affordable Housing Agreement shall satisfy the requirements set forth under Chapter 20.380 of the South San Francisco Municipal Code , and the State Density Bonus Law, as applicable , and will include, among other terms, the selection method for qualifying prospective homeowners for affordable units will include a local preference to individuals who work and/or reside within City. 7 2.6. Residential Unit and Bedroom Count. The Parties agree that the number of residential units and the mix of bedroom count will be determined during the entitlement period. ARTICLE III DISPOSITION OF THE PROPERTY; CONDITIONS PRECEDENT TO CLOSING 3.1. Purchase and Sale of Property. The City represents that as of the Effective Date, the City holds fee simple absolute title to the Property, and is authorized to convey the Property for development consistent with this Agreement pursuant to the LRPMP. Provided that all conditions precedent set forth in this Agreement have been satisfied or waived, City shall sell to Developer, and Developer shall purchase, the fee simple absolute interest in the Property in accordance with and subject to the terms, covenants and conditions of this Agreement, free and clear of all exceptions to title except: (a) applicable building and zoning laws and regulations, (b) taxes and assessments accruing subsequent to recordation of the Grant Deed, (c) exceptions as shown on the preliminary title report for the Property (“Title Report”) as reasonably approved by Developer, and (d) such other conditions, liens, encumbrances, restrictions, easements and exceptions as Developer may approve in writing, which approval shall not be unreasonably withheld. All of the foregoing are collectively hereinafter referred to as “Developer’s Permitted Exceptions.” Conveyance of the Property shall be effectuated by grant deed substantially in the form attached hereto as Exhibit E (the “Grant Deed”). 3.2. Purchase Price. City agrees to sell the Property to Developer for the sum of Three Million, Five Hundred Thousand Dollars ($3,500,000) (the “Purchase Price”). 3.3. Deposit. Developer has submitted a $300,000 Deposit directly to the City in connection with the execution of the ENRA. This Deposit will be retained by the City and shall not be deposited into escrow. Pursuant to the ENRA, $15,000 of the Deposit was applied for Successor Agency staff costs. Additionally, twenty thousand dollars ($20,000) from the Deposit will be applied toward payment for Economic Development & Housing Division (“EDH”) staff and City Attorney time. The remainder amount of the Deposit ($265,000) will be applied toward the Purchase Price upon conveyance of the Property from City to Developer at Closing. Within five days of the opening of escrow, Developer shall place escrow the remaining balance of the Purchase Price, in available U.S. funds. 3.3.1. Forfeiture of Deposit. In the event that Developer does not meet the requirements, conditions, and/or timelines set forth in this Agreement, or that Developer opts not to proceed with Closing, the Deposit will be retained by the City in its entirety. In the event that City’s non-performance results in the termination of the Project, the Deposit shall be refunded to Developer in its entirety less any fees associated with the ENRA and with this Agreement. 3.4. Conditions Precedent. City’s obligation to sell the Property to Developer is conditioned upon the satisfaction of all of the requirements set forth in each subsection of this Section 3.4, unless any such condition is waived by City acting in the discretion of its City Manager. Prior to the opening of escrow and the conveyance of the Property: 8 3.4.1. Financing Plan. Developer shall submit for City’s review and approval an updated financing plan detailing Developer’s plans for financing the acquisition of the Property and the construction and permanent financing of the Project (hereinafter the “Financing Plan”). The City acknowledges and agrees that the Financing Plan may change depending on, among other things, available financing sources and terms. The Financing Plan shall indicate all sources of funds necessary to pay, when due, the estimated costs of Project development, including without limitation acquisition costs and hard and soft construction costs, and shall be accompanied by evidence that all such funds have been firmly committed by Developer, equity investors or lending institutions, subject only to commercially reasonable conditions. The Financing Plan shall include development and operating pro formas which set out in detail Developer’s plan for financing the costs of acquisition, construction and operation of the Project. City staff shall promptly review the proposed Financing Plan (and proposed modifications thereto), and acting through the City Manager, the City shall approve such plan in writing within fifteen (15) business days following receipt provided that the plan conforms to the requirements of this Article. If the City does not approve the Financing Plan (or any modification), the City shall set forth its objections in writing and notify Developer of the reasons for its disapproval. Developer shall thereafter submit a revised Financing Plan that addresses the reasons for disapproval, and the City shall grant Developer a reasonable extension of the time deadlines set forth in this Agreement as required to restructure the Financing Plan, subject to the outside time limit for completion set forth the Project Development Schedule, attached as Exhibit D. The City’s review of the Financing Plan (and modifications thereto) shall be limited to determining if the contemplated financing will be available, if the financing contemplated in the Financing Plan would provide sufficient funds to undertake and complete the development and construction of the Improvements, and determining if it is consistent with the terms of this Agreement. City approval of the Financing Plan shall be a condition precedent to City’s obligation to convey the Property to Developer. However, the City’s approval of the Financing Plan shall not be unreasonably withheld. 3.4.2. Permits and Approvals; Cooperation. Unless specifically stated otherwise in this Agreement, Developer shall have obtained all local and state entitlements, permits, licenses and approvals required for the construction of the Project on the Property, including without limitation, design review and use permit approval. City staff shall work cooperatively with Developer to assist in coordinating the expeditious processing and consideration of all permits, entitlements and approvals necessary for construction of the Project on the Property as contemplated by this Agreement. 3.4.3. Demolition and Grading Permit Submittal. Developer shall have submitted complete applications for both a demolition permit and a grading permit to the City’s Building Division. 3.5. Escrow. Escrow shall not open until Developer has satisfied all conditions precedent set forth in Section 3.4 of this Agreement. City and Developer shall open escrow at the office of Chicago Title Company (“Title Company” or “Escrow Agent”) in order to consummate the conveyance of the Property to Developer and the closing of escrow for the transactions contemplated hereby. 9 3.5.1. Costs of Closing and Escrow. Developer shall pay all title insurance premiums, cost and expenses for policies Developer elects to purchase in connection with the acquisition of the Property and the financing of the Project If Developer elects to purchase title insurance policy, City will provide the standard owner affidavits regarding tenants, work on site, and other standard terms to permit the Title Company’s issuance of an ALTA policy. Developer shall pay all applicable conveyance and recording fees, transfer taxes, city and county taxes, escrow fees and closing costs incurred in connection with the conveyance of the Property and the Closing. 3.6. Escrow Instructions; Deposit of Funds; Recordation of Documents. City shall provide Escrow Agent with a copy of this Agreement, which together with such supplemental instructions as City or Developer may provide and which are consistent with the intent of this Agreement or which are otherwise mutually agreed upon by City and Developer, shall serve as escrow instructions for the conveyance of the Property. 3.7. Closing. Unless the Parties agree otherwise, subject to force majeure, escrow shall not close, and the Property shall not transfer from City to Developer, until Developer has satisfied all conditions precedent outlined in this Agreement. Close of Escrow shall occur within ten (10) business days following the Developer’s satisfaction or City’s written waiver of all conditions precedent to conveyance of the Property as set forth in Section 3.9. Provided that all conditions precedent to conveyance of the Property have been satisfied or waived in writing, City shall deposit into escrow the executed Grant Deed and executed copies of all documents to which each is a party. On the Closing Date the Escrow Agent shall cause the Grant Deed, the Memorandum, and the Deed of Trust to be recorded in the Official Records. 3.8. Review of Title. Developer shall obtain a preliminary title report for the Property within sixty (60) days following the Effective Date and shall provide a copy of the Title Report to City. Developer shall notify City of any objections Developer has to exceptions to title (“Title Exceptions”) within ten (10) business days following Developer’s receipt of the Title Report. Developer’s failure to object within such period shall be deemed to be approval of the condition of title to the Property. If Developer objects to any Title Exception, City shall use reasonable efforts at City expense to remove from title or otherwise satisfy each such exception in a form that is reasonably satisfactory to Developer no later than fourteen (14) days prior to the Closing Date. 3.9. City’s Conditions to Closing. City’s obligation to convey the Property to Developer and close of escrow is conditioned upon Developer’s satisfaction, or City’s written waiver, of the following conditions: 3.9.1. No Default. There shall exist no condition, event or act which would constitute a material breach or default under this Agreement, or which, upon the giving of notice or the passage of time, or both, would constitute such a material breach or default. 3.9.2. Representations. All representations and warranties of Developer contained herein or in any certificate delivered in connection with the transactions 10 contemplated by this Agreement shall be true and correct in all material respects as of the Close of Escrow. 3.9.3. Due Authorization and Good Standing. Developer shall have delivered to City of each of the following: (i) certificate of good standing, certified by the Secretary of State indicating that Developer is properly organized and authorized to do business in the State of California, (ii) a certified resolution indicating that Developer’s manager or managing member, as applicable, has authorized the transactions contemplated by this Agreement and that the persons executing this Agreement have been duly authorized to do so, and (iii) certified copies of Developer’s LLC-1 and operating agreement, certified as accurate and complete by Developer’s manager or managing member, as applicable. 3.9.4. Execution. Delivery and Recordation of Documents. Developer shall have executed, acknowledged as applicable, and delivered to City this Agreement and all other documents required in connection with the transactions contemplated hereby, including without limitation a counter-signed original of the Grant Deed. Concurrently with the Closing, the Grant Deed, the Memorandum, and the Deed of Trust shall be recorded in the Official Records. 3.9.5. Final Pro Forma. Developer shall deposit into Escrow the final Pro Forma acceptable to City at least five (5) days prior to Closing. 3.9.6. Evidence of Availability of Funds. At least five (5) days p rior to Closing, Developer shall submit to City evidence reasonably satisfactory to City that (i) all conditions to the release and expenditure of funds described in the approved Financing Plan as the source of construction financing for the Project have been met and that such funds will be available upon conveyance of the Property, (ii) all approvals, permits, and authorizations which are conditioned upon conveyance will be received promptly after conveyance, and (iii) all construction financing (including draws subsequent to the initial draw of funds) will be available upon conveyance of the Property to Developer. 3.9.7. Construction Loan. Developer must provide evidence that any construction loan secured for the Project has cleared at least five (5) days prior to Closing. 3.9.8. Construction Contract, Plans. Budget and Schedule. City shall approve the general contractor, the construction budget and schedule, and the construction contract for the Project, and City shall approve the final Construction Plans and specifications for the Project. Such approvals shall not b e unreasonably withheld, provided that Developer demonstrates the general contractor is licensed by the State of California as a general contractor and has reputable experience with developments comparable to the Project . Developer shall have executed and deposited into Escrow, at least five (5) days prior to Closing, the full Construction Contract for the Project as approved and accepted by City. 3.9.9. Building Permit Submittal. Developer shall have submitted to City and a building permit application which shall contain ninety percent (90%) complete construction drawings. For purposes of satisfaction of this Section 3.9.9, the building permit application shall meet the standards set forth in Exhibit F, Building Permit Submittal 11 Requirements. Upon submittal of the building permit application, Developer shall also deposit with the City an amount equal to one-half (½) of the estimated amount of all fees applicable to the Project otherwise due at the time of building permit issuance. Such fees shall be forfeited to City if Developer fails to satisfy any timing obligations as required under this Agreement or Development Schedule set forth in Exhibit D. Developer shall also have delivered evidence satisfactory to City that Developer has obtained any other permits required to construct the Project, or that the receipt of such permits is subject only to such conditions as City shall reasonably approve. 3.9.10. Insurance: Payment and Performance Bonds. Developer shall have provided evidence reasonably satisfactory to City that Developer has obtained insurance coverage meeting the requirements set forth in Article XI and shall have provided to City performance bonds or other assurance of completion reasonably satisfactory to City pursuant to the requirements set forth in Section 5.17. 3.10. Developer’s Conditions to Closing. Developer’s obligation to proceed with the acquisition of the Property is subject to the City’s satisfaction or Developer’s waiver of the following conditions: (a) No Default. City shall not be in default under the terms of this Agreement, and all representations and warranties of City contained herein shall be true and correct in all material respects. (b) Execution of Documents. City shall have executed and acknowledged the Grant Deed, the Memorandum, and all other documents required hereunder, and shall have delivered such documents into escrow. ARTICLE IV CONDITION OF THE SITE; ENVIRONMENTAL MATTERS 4.1. Access to Site: Inspections. Prior to the Close of Escrow, Developer and Developer’s authorized representatives may enter upon and conduct further reviews and assessments of the physical and environmental condition of the Property and the condition of the existing improvements. Developer shall provide proof of liability insurance acceptable to City. Developer’s inspection, examination, survey and review of the Property shall be at Developer’s sole expense. Developer shall provide City with copies of all reports and test results promptly following completion of such reports and testing. Developer hereby agrees to notify the City twenty four (24) hours in advance of its intention to enter the Property and will provide workplans, drawings, and descriptions of any intrusive sampling it intends to do. Developer must keep the Property in a safe condition during its entry. Developer shall repair, restore and return the Property to its condition immediately preceding Developer’s entry thereon at Developer’s sole expense Developer will not permit any mechanics liens, stop notices or other liens or encumbrances to be placed against the Property prior to Close of Escrow. Without limiting any other indemnity provisions set forth in this Agreement, Developer shall indemnify, defend (with counsel approved by City) and hold the Indemnitees harmless from and against all Claims resulting from or arising in connection with entry upon the Property by Developer or Developer’s agents, employees, 12 consultants, contractors or subcontractors pursuant to this Section 4.1; provided, however, that Developer will have no indemnification obligation with respect to gross negligence or willful misconduct of any City Indemnitees Developer’s indemnification obligations set forth in this Section 4.1 shall survive the Close of Escrow and the termination of this Agreement. 4.2. Environmental Disclosure. To the extent the City has copies of environmental investigation reports, City will provide copies to Developer upon request; but the Parties acknowledge that City will not be conducting a public records search of any regulatory agency files-although the City urges Developer to do so to satisfy itself regarding the environmental condition of the Property. By execution of this Agreement, Developer: (i) acknowledges that it will have an opportunity to conduct its own independent review and investigation of the Property prior to the Close of Escrow; (ii) agrees to rely solely on its own experts in assessing the environmental condition of the Property and its sufficiency for its intended use; and (iii) waives any and all rights Developer may have to assert that the City failed to disclose information about the environmental condition of the Property. 4.3. Property Sold “AS IS.” Developer specifically acknowledges that the City is selling and Developer is purchasing the Property on an “AS IS”, “WHERE IS” and “WITH ALL FAULTS” basis and that Developer is not relying on any representations or warranties of any kind whatsoever, express or implied, from City, or its employees, board members, agents, or brokers as to any matters concerning the Property. City 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, including, but not limited to, appurtenances, access, landscaping, parking facilities, (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, merchantability, or fitness, suitability, value or adequacy of the Property for any particular purpose, (v) 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 Material, 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, or (ix) the condition of title to the Property. 4.4. Developer to Rely on Own Experts. Developer understands that, notwithstanding the delivery by City to Developer of any materials, including, without limitation, third party reports, Developer will rely entirely on Developer’s own experts and consultants and its own independent investigation in proceeding with the acquisition of the Property. 4.5. Release by Developer. Effective upon the Close of Escrow, Developer WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES the Indemnitees and any person acting on behalf of the City, from any and all Claims, direct or 13 indirect, known or unknown, foreseen or unforeseen, which Developer now has or which may arise in the future on account of or in any way arising out of or in connection with the physical condition of the Property, the presence of Hazardous Material in, on, under or about the Property, or any law or regulation applicable thereto including, without limiting the generality of the foregoing, all Environmental Laws. DEVELOPER ACKNOWLEDGES THAT DEVELOPER IS FAMILIAR WITH SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. BY INITIALING BELOW, DEVELOPER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE FOREGOING RELEASE : Developer’s initials: __________ 4.6. Developer’s Post-Closing Obligations. Developer hereby covenants and agrees that: 4.6.1. Developer shall not knowingly permit the Property or any portion thereof to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous Material or otherwise knowingly permit the presence or release of Hazardous Material in, on, under, about or from the Property with the exception of limited amounts of cleaning supplies and other materials customarily used in construction, rehabilitation, use or maintenance of residential properties similar in nature to the Property and any commercial uses developed as part of the Project, and used, stored and disposed of in compliance with Environmental Laws. 4.6.2. Developer shall keep and maintain the Property and each portion thereof in compliance with, and shall not cause or permit the Project or the Property or any portion of either to be in violation of, any Environmental Laws. 4.6.3. Upon receiving actual knowledge of the same, Developer shall immediately advise City in writing of: (i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Developer, or the Property pursuant to any applicable Environmental Laws; (ii) any and all claims made or threatened by any third party against the Developer or the Property relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Material; (iii) the presence or release of any Hazardous Material in, on, under, about or from the Property; or (iv) Developer’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Project classified as “Border Zone Property” under the 14 provisions of California Health and Safety Code, Sections 25220 et seq., or any regulation adopted in connection therewith, that may in any way affect the Property pursuant to any Environmental Laws or cause it or any part thereof to be designated as Border Zone Property. The matters set forth in the foregoing clauses (i) through (iv) are hereinafter referred to as “Hazardous Materials Claims”). The City shall have the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claim. 4.6.4. Without the City’s prior written consent, which shall not be unreasonably withheld or delayed, Developer shall not take any remedial action in response to the presence of any Hazardous Material in, on, under, or about the Property (other than in emergency situations or as required by governmental agencies having jurisdiction in which case the City agrees to provide its consent), nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Materials Claim. 4.7. Environmental Indemnity. To the greatest extent allowed by law, Developer shall indemnify, defend (with counsel approved by City with input from Developer) and hold Indemnitees harmless from and against all Claims resulting, arising, or based directly or indirectly in whole or in part, upon (i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous Material on, under, in or about the Property, or the transportation of any such Hazardous Material to or from, the Property, or (ii) the failure of Developer, Developer’s employees, agents, contractors, subcontractors, or any person acting on behalf of or as the invitee of any of the foregoing to comply with Environmental Laws, unless caused by the City’s active or passive negligence. The foregoing indemnity shall further apply to any residual contamination in, on, under or about the Property or affecting any natural resources, and to any contamination of any property or natural resources arising in connection with the generation, use, handling, treatment, storage, transport or disposal of any such Hazardous Material, and irrespective of whether any of such activities were or will be undertaken in accordance with Environmental Laws. City shall use reasonable efforts to assign to Developer any indemnities relating to the presence of Hazardous Materials that City has received from Pacific Steel, Pacific Gas & Electric and any other prior owner of the Property. 4.8. No Limitation. Developer hereby acknowledges and agrees that Developer’s duties, obligations and liabilities under this Agreement are in no way limited or otherwise affected by any information the City may have concerning the Property and/or the presence in, on, under or about the Property of any Hazardous Material, whether the City obtained such information from the Developer or from its own investigations, unless such information was known to the City at the time of execution of this Agreement and/or the time of the close of escrow for the conveyance of the Property to the Developer but not disclosed to Developer. 4.9. Definitions. 4.9.1. “Hazardous Material” 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’’, 15 “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 material” 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, or synthetic gas usable as fuel, perchlorate, and methy tert-butyl ether, whether or not defined as a hazardous waste or hazardous substance in the Environmental Laws. 4.9.2. “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 Material, 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.), 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.). ARTICLE V DEVELOPMENT OF THE PROPERTY 5.1. Development Schedule. Subject to Section 11.2, Developer shall commence construction of the Project within sixty (60) days following conveyance of the Property to Developer, and in no event later than June 3 0 , 20 18, and shall diligently prosecute to completion the construction of the Project. Each party shall use diligent and commercially reasonable efforts to perform the obligations to be performed by such party pursuant to this Agreement within the times periods set forth herein, and if no such time is provided, within a reasonable time, designed to permit issuance of a final certificate of occupancy for the Project by the date specified in Exhibit D. Subject to Section 11.2 and the City’s issuance of permits and approvals, Developer’s failure to commence or complete the Project in accordance with the time periods specified in this Section 5.1 shall be an Event of Default hereunder. 16 5.2. Cost of Acquisition and Construction. Except as expressly set forth herein, Developer shall be solely responsible for all direct and indirect costs and expenses incurred in connection with the acquisition of the Property, including without limitation appraisal fees, title reports and any environmental assessments Developer elects to undertake. Except as expressly set forth herein, all costs of designing, developing and constructing the Improvements and the Project and compliance with the Project approvals, including without limitation all off-site and on-site improvements required by City in connection therewith, shall be borne solely by Developer and shall not be an obligation of the City 5.3. Project Approvals. Developer acknowledges that the execution of this Agreement by City does not relieve Developer from the obligation to apply for and to obtain from City and all other agencies with jurisdiction over the Property, all necessary approvals, entitlements, and permits for the development of the Project (including without limitation approval of the Project in compliance with CEQA), nor does it limit in any manner the discretion of the City or any other agency in the approval process. Developer shall pay the actual cost of contract consultants that will be used by the City for all necessary planning and processing activities of the Project, which have been reasonably approved by Developer, including, but not limited to, permits, entitlements, and City staff time and legal fees pursuant to a reimbursement agreement to be entered into by and between City and Developer, which shall provide for Developer the right to audit all contrac ts and invoices. Prior to the Closing, Developer shall have submitted a building permit application package that is at least ninety percent (90%) complete complying with standards set forth in Exhibit F, Building Permit Submittal Requirements, and shall have obtained all other entitlements, permits, licenses and approvals required for the development and operation of the Project. 5.4. Conditions of Approval. Developer shall develop the Property in accordance with the terms and conditions of this Agreement and in compliance with the terms and conditions of all approvals, entitlements and permits that the City or any other governmental body or agency with jurisdiction over the Project or the Property has granted or issued as of the date hereof or may hereafter grant or issue in connection with development of the Project, including without limitation, all mitigation measures imposed in connection with environmental review of the Project and all conditions of approval imposed in connection with any entitlements, approvals or permits (all of the foregoing approvals, entitlements, permits, mitigation measures and conditions of approval are hereafter collectively referred to as the “Conditions of Approval”). 5.5. Fees. Developer shall be solely responsible for, and shall promptly pay when due, all customary and usual fees and charges of City and all other agencies with jurisdiction over development of the Property in connection with obtaining building permits and other approvals for the Project, including without limitation, those related to the processing and consideration of amendments, if any, to the current entitlements, any related approvals and permits, environmental review, architectural review, and any subsequent approvals for the Project. 5.6. Construction Pursuant to Plans. Developer shall develop the Project in accordance with the approved Construction Plans, the Conditions of Approval, and all other 17 permits and approvals granted by the City pertaining to the Project. Developer shall comply with all directions, rules and regulations of any fire marshal, health officer, building inspector or other officer of every governmental agency having jurisdiction over the Property or the Project. Each element of the work shall proceed only after procurement of each permit, license or other authorization that may be required for such element by any governmental agency having jurisdiction. All design and construction work on the Project shall be performed by licensed contractors, engineers or architects, as applicable. 5.7. Change in Construction Plans. If Developer desires to make any material change in the approved Construction Plans, Developer shall submit the proposed change in writing to City for its written approval, which approval shall not be unreasonably withheld or delayed if the Construction Plans, as modified by any proposed change, conform to the requirements of this Agreement and any approvals issued by City after the Effective Date. Unless a proposed change is approved by City within thirty (30) days, it shall be deemed rejected. If rejected, the previously approved Construction Plans shall continue to remain in full force and effect. Any change in the Construction Plans required in order to comply with applicable codes shall be deemed approved, so long as such change does not substantially nor materially change the architecture, design, function, use, or amenities of the Project as shown on the latest approved Construction Plans. Nothing in this Section is intended to or shall be deemed to modify the City’s standard plan review procedures. 5.8. Rights of Access. For the purpose of ensuring that the construction of the Project is completed in compliance with this Agreement, Developer shall permit representatives of the City to enter upon the Property following 24 hours written notice (except in the case of emergency in which case such notice as may be practical under the circumstances shall be provided). 5.9. Disclaimer. Developer acknowledges that the City is under no obligation, and City neither undertakes nor assumes responsibility or duty to Developer or to any third party, to in any manner review, supervise, or inspect the progress of construction or the operation of the Project. Developer and all third parties shall rely entirely upon its or their own supervision and inspection in determining the quality and suitability of the materials and work, the performance of architects, subcontractors, and material suppliers, and all other matters relating to the construction and operation of the Project. Any review or inspection undertaken by the City is solely for the purpose of determining whether Developer is properly discharging its obligations under this Agreement, and shall not be relied upon by Developer or any third party as a warranty or representation by the City as to the quality of the design or construction of the improvements or otherwise. 5.10. Defects in Plans. City shall not be responsible to Developer or to any third party for any defect in the Construction Plans or for any structural or other defect in any work done pursuant to the Construction Plans. Developer shall indemnify, defend (with counsel approved by City) and hold harmless the Indemnitees from and against all Claims arising out of, or relating to, or alleged to arise from or relate to defects in the Construction Plans or defects in any work done pursuant to the Construction Plans whether or not any insurance policies shall 18 have been determined to be applicable to any such Claims. Developer’s indemnification obligations set forth in this Section shall survive the expiration or earlier termination of this Agreement and the recordation of a Certificate of Completion. It is further agreed that City does not, and shall not, waive any rights against Developer which they may have by reason of this indemnity and hold harmless agreement because of City’s acceptance, or Developer’s deposit with City of any of the insurance policies described in this Agreement. Developer’s indemnification obligations pursuant to this Section shall not extend to Claims arising due to the gross negligence or willful misconduct of the Indemnitees. 5.11. Certificate of Completion for Project. Promptly after completion of construction of the Project, issuance of a final Certificate of Occupancy or equivalent by the City and the written request of Developer, the City will provide an instrument (“Certificate of Completion”) so certifying, provided that at the time such certificate is requested all applicable work has been completed. The Certificate of Completion shall be substantially in the form attached hereto as Exhibit G and shall constitute conclusive evidence that Developer has satisfied its obligations regarding the construction of the Project and development of the Property. At Developer’s option the Certificate of Completion shall be recorded in the Official Records. The Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of a deed of trust or mortgage securing money loaned to finance the Project or any part thereof and shall not be deemed a notice of completion under the California Civil Code, nor shall such Certificate provide evidence that Developer has satisfied any obligation that survives the expiration of this Agreement. 5.12. Equal Opportunity. There shall be no discrimination on the basis of race, color, religion, creed, sex, sexual orientation, marital status, ancestry or national origin in the hiring, firing, promoting or demoting of any person engaged in construction work on the Property, and Developer shall direct its contractors and subcontractors to refrain from discrimination on such basis. 5.13. Prevailing Wage Requirements. To the full extent required by applicable federal and state law, Developer and its contractors and agents shall comply with California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto (“Prevailing Wage Laws”), and shall be responsible for carrying out the requirements of such provisions. If applicable, Developer shall submit to City a plan for monitoring payment of prevailing wages and shall implement such plan at Developer’s expense. The Developer shall reimburse the City for any costs incurred by the City in ensuring compliance with this Section 5.13. Developer shall indemnify, defend (with counsel approved by City) and hold the City, and its elected and appointed officers, officials, employees, agents, consultants, and contractors (collectively, the “lndemnitees”) harmless from and against all liability, loss, cost, expense (including without limitation attorneys’ fees and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (all of the foregoing collectively “Claims”) which directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection 19 with, or relate to, the payment or requirement of payment of prevailing wages (including without limitation, all claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and 1781) in connection with the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to the Prevailing Wage Laws, or any act or omission of Developer related to this Agreement with respect to the payment or requirement of payment of prevailing wages, whether or not any insurance policies shall have been determined to be applicable to any such Claims. It is further agreed that City does not and shall not waive any rights against Developer which they may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or Developer’s deposit with City of any of the insurance policies described in this Agreement. The provisions of this Section 5.13 shall survive the expiration or earlier termination of this Agreement and the issuance of a Certificate of Completion for the Project. Developer’s indemnification obligations set forth in this Section shall not apply to Claims arising solely from the gross negligence or willful misconduct of the Indemnitees. 5.14. Compliance with Laws. Developer shall carry out and shall cause its contractors to carry out the construction of the Project in conformity with all applicable federal, state and local laws, rules, ordinances and regulations, including without limitation, all applicable federal and state labor laws and standards, applicable provisions of the California Public Contracts Code (if any), the City zoning and development standards, building, plumbing, mechanical and electrical codes, all other provisions of the City’s Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation, the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.. Developer shall indemnify, defend (with counsel approved by City) and hold harmless the Indemnitees from and against any and all Claims arising in connection with the breach of Developer’s obligations set forth in this Section whether or not any insurance policies shall have been determined to be applicable to any such Claims. It is further agreed that City does not and shall not waive any rights against Developer which they may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or Developer’s deposit with City of any of the insurance policies described in this Agreement. Developer’s indemnification obligations set forth in this Section shall not apply to Claims arising solely from the gross negligence or willful misconduct of the Indemnitees. Developer’s defense and indemnification obligations set forth in this Section 5.14 shall survive the expiration or earlier termination of this Agreement and the issuance of a Certificate of Completion for the Project. 5.15. Liens and Stop Notices. Until the issuance of a Certificate of Completion, Developer shall not allow to be placed on the Property or any part thereof any lien or stop notice on account of materials supplied to or labor performed on behalf of Developer. If a claim of a lien or stop notice is given or recorded affecting the Project or the Property, Developer shall within twenty (20) days of such recording or service: (a) pay and discharge (or cause to be paid and discharged) the same; or (b) effect the release thereof by recording and delivering (or causing to be recorded and delivered) to the party entitled thereto a surety 20 bond in sufficient form and amount; or (c) provide other assurance satisfactory to City that the claim of lien or stop notice will be paid or discharged. 5.16. Right of City to Satisfy Liens on the Property. If Developer fails to satisfy or discharge any lien or stop notice on the Property pursuant to and within the time period set forth in Section 5.15 above, the City shall have the right, but not the obligation, to satisfy any such liens or stop notices at Developer’s expense and without further notice to Developer and all sums advanced by City for such purpose shall be part of the indebtedness secured by the Deed of Trust. In such event Developer shall be liable for and shall immediately reimburse City for such paid lien or stop notice. Alternatively, the City may require Developer to immediately deposit with City the amount necessary to satisfy such lien or claim pending resolution thereof. The City may use such deposit to satisfy any claim or lien that is adversely determined against Developer. Developer shall file a valid notice of cessation or notice of completion upon cessation of construction work on the Property for a continuous period of thirty (30) days or more, and shall take all other reasonable steps to forestall the assertion of claims or liens against the Property. The City may (but has no obligation to) record any notices of completion or cessation of labor, or any other notice that the City deems necessary or desirable to protect its interest in the Property. 5.17. Performance and Payment Bonds. Prior to commencement of construction work on the Project, Developer shall provide, or cause its general contractor to deliver, to the City copies of payment bond(s) and performance bond(s) issued by a reputable insurance company licensed to do business in California, each in a penal sum of not less than one hundred percent (100%) of the scheduled cost of construction of the Project pursuant to the Construction Contract to be executed by Developer. The bonds shall name the City as co- obligee. In lieu of such performance and payment bonds, subject to City’s approval of the form and substance thereof, Developer may submit evidence satisfactory to the City one of the following: 5.17.1. Developer shall cause its general contractor to provide evidence of Subcontractor Default Insurance covering one hundred percent (100%) of the Project subcontract value. Contractor shall require those Subcontractors that do not enroll in the Subcontractor Default Insurance Policy to furnish payment bond(s) and performance bond(s) in forms acceptable to and approved by the City. General Contractor shall schedule the City and Developer to the Subcontractor Default Insurance policy via a Scheduled Entity Endorsement; or 5.17.2. the contractor’s ability to commence and complete construction of the Project in the form of an irrevocable letter of credit, pledge of cash deposit, certificate of deposit, or other marketable securities held by a broker or other financial institution, with signature authority of the City required for any withdrawal, or a completion guaranty in a form and from a guarantor acceptable to City. Such evidence must be submitted to City in approvable form in sufficient time to allow for review and approval prior to the scheduled construction start date. 5.18. Insurance Requirements. Developer shall maintain and shall cause its contractors to maintain all applicable insurance coverage specified in Article X. 21 ARTICLE VI USE OF THE PROPERTY 6.1. Maintenance. Following conveyance of the Property to Developer, Developer shall at its own expense, maintain the Property, landscaping and common areas in good physical condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with all applicable state, federal, and local laws, ordinances, codes, and regulations. Without limiting the foregoing, Developer agrees to maintain the Property (including without limitation, the landscaping, driveways, parking areas, and walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent the same from occurring on the Property. Developer shall prevent and/or rectify any physical deterioration of the Property and shall make all repairs, renewals and replacements necessary to keep the Property and the improvements located thereon in good condition and repair. 6.2. Taxes and Assessments. Following conveyance of the Property to Developer, Developer shall pay all real and personal property taxes, assessments and charges and all franchise, income, payroll, withholding, sales, and other taxes assessed against the Property and payable by Developer, at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Property; provided, however, that Developer shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event the Developer exercises its right to contest any tax, assessment, or charge, the Developer, on Final Determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest. “Final Determination” for purposes of this Section means and includes the Developer’s having exercised all appeal rights that it is entitled to exercise and chooses to do so. 6.3. Obligation to Refrain from Discrimination. Developer shall not restrict the rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability, marital status, ancestry, or national origin of any person. Developer covenants for itself and all persons claiming under or through it, and this Agreement is made and accepted upon and subject to the condition that there shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part thereof, nor shall Developer or any person claiming under or through Developer establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in, of, or for the Property or part thereof. Developer shall include such provision in all deeds, leases, contracts and other instruments executed by Developer, and shall enforce the same diligently and in good faith. 22 ARTICLE VII LIMITATIONS ON CHANGE IN OWNERSHIP, MANAGEMENT AND CONTROL OF DEVELOPER 7.1. Identity of Developer; Changes Only Pursuant to this Agreement. Developer and its principals have represented that they possess the necessary expertise, skill and ability to carry out the development of the Property pursuant to this Agreement. The qualifications, experience, financial capacity and expertise of Developer and its principals are of particular concern to the City. It is because of these qualifications, experience, financial capacity and expertise that the City has entered into this Agreement with Developer. No voluntary or involuntary successor, assignee or transferee of Developer shall acquire any rights or powers under this Agreement, except as expressly provided herein. 7.2. Prohibition on Transfer. Prior to the issuance of a Certificate of Completion, Developer shall not, except as expressly permitted by this Agreement, directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial sale, transfer, conveyance, assignment or lease (collectively, “Transfer”) of the whole or any part of the Property, the Project, the Improvements, or this Agreement, without the prior written approval of City, which approval shall not be unreasonably withheld. Any such attempt to assign this Agreement without the City’s consent shall be null and void and shall confer no rights or privileges upon the purported assignee. In addition to the foregoing, prior to the issuance of a Certificate of Completion, except as expressly permitted by this Agreement, Developer shall not undergo any significant change of ownership without the prior written approval of City. For purposes of this Agreement, a “significant change of ownership” shall mean a transfer of the beneficial interest of more than fifty percent (50%) in aggregate of the voting control of Developer, taking all transfers into account on a cumulative basis; provided however, neither the admission of investor limited partners, nor the transfer of beneficial or ownership interests by an investor limited partner to subsequent limited partners shall be restricted by this provision, nor shall the admission of a Passive Investor Member nor the transfer of a beneficial or ownership interest by a Passive Investor Member to another Passive Investor Member be restricted by this provision. “Passive Investor Member” means a member who pursuant to Developer’s operating agreement is not authorized to actively manage or otherwise operate the business of the company. 7.3. Permitted Transfers. Notwithstanding any contrary provision hereof, the prohibitions set forth in this Article shall not be deemed to prevent: (i) the granting of temporary easements or permits to facilitate development of the Property; (ii) the dedication of any property required pursuant to this Agreement; (iii) the lease or sale of individual residences to tenants or homebuyers for occupancy as their principal residence or the lease of any commercial space to individual tenants; (iv) assignments creating security interests for the purpose of financing the acquisition, construction or permanent financing of the Project or the Property in accordance with the approved Financing Plan as it may be updated with City approval, and subject to the requirements of Article VIII, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest; (v) a Transfer to a limited partnership or limited liability company in which the managing general partner or manager or managing member is under the direct or 23 indirect voting control of, or under common control, with Developer (“Approved Partnership”); (vi) the admission of limited partners or Passive Investor Members and any transfer of limited partnership interests or Passive Investor Member interests, as applicable, in accordance with Developer’s agreement of limited partnership or operating agreement, as applicable, provided that the partnership agreement or operating agreement, as applicable, and/or the instrument of Transfer provides for development and operation of the Property and Project in a manner consistent with this Agreement; (vii) the removal of the general partner by the investor limited partner for a default under the Partnership Agreement, provided the replacement general partner is reasonably satisfactory to City; (viii) the transfer of the general partner’s interest to a nonprofit entity that is tax-exempt under Section 501(c)(3) of the Internal Revenue Code of 1986 as amended, provided such replacement general partner is reasonably satisfactory to City; or (ix) the transfer of any partnership or membership interest to a trust controlled by the transferor for estate planning interests. 7.4. Requirements for Proposed Transfers. The City may consent, which consent shall not be unreasonably withheld, to a proposed Transfer of this Agreement which is not a Permitted Transfer, the Property or portion thereof if all of the following requirements are met (provided however, the requirements of this Section 7.4 shall not apply to Transfers described in Section 7.3): 7.4.1. The proposed transferee demonstrates to the City’s satisfaction that it has the qualifications, experience and financial resources necessary and adequate as may be reasonably determined by the City to competently complete the Project and to otherwise fulfill the obligations undertaken by the Developer under this Agreement. 7.4.2. The Developer and the proposed transferee shall submit for City review and approval all instruments and other legal documents proposed to effect any Transfer of this Agreement, the Property or interest therein together with such documentation of the proposed transferee’s qualifications and development capacity as the City may reasonably request. 7.4.3. The proposed transferee shall expressly assume all of the rights and obligations of the Developer under this Agreement arising after the effective date of the Transfer and all obligations of Developer arising prior to the effective date of the Transfer (unless Developer expressly remains responsible for such obligations) and shall agree to be subject to and assume all of Developer’s obligations pursuant to the Conditions of Approval and all other conditions, and restrictions set forth in this Agreement. 7.4.4. The Transfer shall be effectuated pursuant to a written instrument satisfactory to the City in form recordable in the Official Records. Consent to any proposed Transfer may be given by the City Manager unless the City Manager in his discretion, refers the matter of approval to the City Council. If a proposed Transfer has not been approved in writing within thirty (30) days following City’s receipt of written request by Developer, it shall be deemed rejected. 24 7.5. Effect of Transfer without Consent. 7.5.1. In the absence of specific written agreement by the City, no Transfer by Developer shall be deemed to relieve the Developer or any other party from any obligation under this Agreement. 7.5.2. If, in violation of this Agreement, the Developer Transfers all or any part of the Property or the Improvements prior to the recordation of the Certificate of Completion for the Project, the City shall be entitled to receive from Developer the amount by which the consideration payable for such Transfer exceeds the sum of (a) the Purchase Price for the Property, and (b) the costs incurred by Developer in connection with the improvement and development of the Property, including carrying charges, interest, fees, taxes, assessments and escrow fees. Such excess consideration shall belong to and be paid to the City by the Developer and until so paid, the City shall have a lien on the Property for such amount. The provisions of this Section 7.5.2 have been agreed upon so as to discourage land speculation by Developer; accordingly, these provisions shall be given a liberal interpretation to accomplish that end. Following the recordation of the Certificate of Completion, the provisions of this Section 7.5.2 shall have no further force and effect. 7.5.3. Without limiting any other remedy City may have under this Agreement, or under law or equity, it shall be an Event of Developer Default hereunder entitling City to terminate this Agreement if without the prior written approval of the City, Developer assigns or Transfers this Agreement, the Improvements, or the Property prior to the issuance of a Certificate of Completion. This Section 7.5.3 shall not apply to Transfers described in clauses (i), (ii), (iii), (iv) and (vi) of Section 7.3). 7.6. Recovery of Costs. Developer shall reimburse City for all City costs, including but not limited to reasonable attorneys’ fees, incurred in reviewing instruments and other legal documents proposed to effect a Transfer under this Agreement and in reviewing the qualifications and financial resources of a proposed successor, assignee, or transferee within ten days following City’s delivery to Developer of an invoice detailing such costs. ARTICLE VIII SECURITY FINANCING AND RIGHTS OF MORTGAGEES 8.1. Mortgages and Deeds of Trust for Development. Prior to issuance of the Certificate of Completion, mortgages and deeds of trust, or any other reasonable security instrument are permitted to be placed upon the Property or the Improvements only for the purpose of securing loans for the purpose of financing the acquisition of the Property, the design and construction of the Improvements, and other expenditures reasonably necessary for development of the Property pursuant to this Agreement. Developer shall not enter into any conveyance for such financing that is not contemplated in the Financing Plan as it may be updated with City approval, without the prior written approval of the City Manager or his designee. As used herein, the terms “mortgage” and “deed of trust” shall mean any security instrument used in financing real estate acquisition, construction and land development. 25 8.2. Holder Not Obligated to Construct. The holder of any mortgage, deed of trust authorized by this Agreement shall not be obligated to complete construction of the Improvements or to guarantee such completion. Nothing in this Agreement shall be deemed to permit or authorize any such holder to devote the Property or any portion thereof to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. 8.3. Notice of Default and Right to Cure. Whenever City delivers any notice of default hereunder, City shall concurrently deliver a copy of such notice to each holder of record of any mortgage or deed of trust secured by the Property or the Improvements, provided that City has been provided with the address for delivery of such notice. City shall have no liability to any such holder for any failure by the City to provide such notice to such holder. Each such holder shall have the right, but not the obligation, at its option, to cure or remedy any such default or breach within the cure period provided to Developer extended by and additional sixty (60) days. In the event that possession of the Property or the Improvements (or any portion thereof) is required to effectuate such cure or remedy, the holder shall be deemed to have timely cured or remedied the default if it commences the proceedings necessary to obtain possession of the Property or Improvements, as applicable, within sixty (60) days after receipt of the City’s notice, diligently pursues such proceedings to completion, and after obtaining possession, diligently completes such cure or remedy. A holder who chooses to exercise its right to cure or remedy a default or breach shall first notify City of its intent to exercise such right prior to commencing to cure or remedy such default or breach. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction of the Project (beyond the extent necessary to conserve or protect the same) without first having expressly assumed in writing Developer’s obligations to City under this Agreement. The holder in that event must agree to complete, in the manner provided in this Agreement, the Project and the Improvements and submit evidence reasonably satisfactory to City that it has the development capability on staff or retainer and the financial capacity necessary to perform such obligations. Any such holder properly completing the Project pursuant to this Section shall assume all rights and obligations of Developer under this Agreement and shall be entitled to a Certificate of Completion upon compliance with the requirements of this Agreement. 8.4. Failure of Holder to Complete Improvements. In any case where, six (6) months after default by Developer in completion of construction of the Improvements, the holder of record of any mortgage or deed of trust has exercised its option to construct, but then has not proceeded diligently with construction, City shall be afforded those rights against such holder that it would otherwise have against Developer under this Agreement. 8.5. City Right to Cure Defaults. In the event of a breach or default by Developer under a mortgage or deed of trust secured by the Property or the Improvements, City may cure the default, without acceleration of the subject loan, following prior notice thereof to the holder of such instrument and Developer. In such event, Developer shall be liable for, and City shall be entitled to reimbursement from Developer for all costs and expenses incurred by City associated with and attributable to the curing of the default or breach. 26 8.6. Holder to be Notified. Developer agrees to use best efforts to ensure that each term contained herein dealing with security financing and rights of holders shall be either inserted into the relevant deed of trust or mortgage or acknowledged by the holder prior to its creating any security right or interest in the Property or the Improvements. 8.7. Modifications to Agreement. City shall not unreasonably withhold consent to modifications of this Agreement requested by Project lenders or investors provided such modifications do not alter City’s substantive rights and obligations under this Agreement. 8.8. Estoppel Certificates. Either Party shall, at any time, and from time to time, within fifteen (15) days after receipt of written request from the other Party, execute and deliver to such Party a written statement certifying that, to the knowledge of the certifying Party: (i) this Agreement is in full force and effect and a binding obligation of the Parties (if such be the case), (ii) this Agreement has not been amended or modified, or if so amended, identifying the amendments, and (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, describing the nature of any such defaults. ARTICLE IX DEFAULTS, REMEDIES AND TERMINATION 9.1. Event of Developer Default. The following events shall constitute an event of default on the part of Developer (“Event of Developer Default”): 9.1.1. Developer fails to commence or complete construction of the Project within the times set forth in Section 5 .1 and Exhibit D, or subject to force majeure, abandons or suspends construction of the Project prior to completion for a period of sixty (60) days or more; 9.1.2. A Transfer occurs, either voluntarily or involuntarily, in violation of Article VII; 9.1.3. Developer fails to maintain insurance as required pursuant to this Agreement, and Developer fails to cure such default within ten (10) days; 9.1.4. Subject to Developer’s right to contest the following charges pursuant to Section 6.2, if Developer fails to pay prior to delinquency taxes or assessments due on the Property or the Project or fails to pay when due any other charge that may result in a lien on the Property or the Project, and Developer fails to cure such default within thirty (30) days of date of delinquency 9.1.5. Upon the imposition of any lien as a result of failure to pay taxes or assessments due on the Property or Project; 9.1.6. A default arises under any loan secured by a mortgage, deed of trust or other security instrument recorded against the Property and remains uncured beyond any applicable cure period such that the holder of such security instrument has the right to accelerate repayment of such loan; 27 9.1.7. Any representation or warranty contained in this Agreement or in any application, financial statement, certificate or report submitted to the City in connection with this Agreement proves to have been incorrect in any material and adverse respect when made and continues to be materially adverse to the City; 9.1.8. If, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors (“Bankruptcy Law”), Developer or any manager, managing member or general partner thereof (i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against Developer or any general partner, managing member, or manager thereof in an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Developer or any manager, managing member or general partner thereof; (iv) makes an assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its debts as they become due; 9.1.9. A court of competent jurisdiction shall have made or entered any decree or order (1) adjudging the Developer to be bankrupt or insolvent, (2) approving as properly filed a petition seeking reorganization of the Developer or seeking any arrangement for Developer under bankruptcy law or any other applicable debtor’s relief law or statute of the United States or any state or other jurisdiction, (3) appointing a receiver, trustee, liquidator, or assignee of the Developer in bankruptcy or insolvency or for any of its properties, or (4) directing the winding up or liquidation of the Developer; 9.1.10. Developer shall have assigned its assets for the benefit of its creditors (other than pursuant to a mortgage loan) or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within sixty (60) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period shall apply under this subsection as well) or prior to any sooner sale pursuant to such sequestration, attachment, or execution; 9.1.11. The Developer shall have voluntarily suspended its business or Developer shall have been dissolved or terminated; 9.1.12. A default arises under a Note or Deed of Trust that Developer obtains after close of es crow, but prior to a certificate of occupancy is issued and remains uncured beyond any applicable cure period; or 9.1.13. Developer defaults in the performance of any term, provision, covenant or agreement contained in this Agreement other than an obligation enumerated in this Section 9.1 and unless a shorter cure period is specified for such default, the default continues for ten (10) days in the event of a monetary default or thirty (30) days in the event of a nonmonetary default after the date upon which City shall have given written notice of the default to Developer; provided however, if the default is of a nature that it cannot be cured within thirty (30) days, a Developer Event of Default shall not arise hereunder if Developer commences to cure the default within thirty (30) days and thereafter prosecutes 28 the curing of such default with due diligence and in good faith to completion and in no event later than ninety (90) days after receipt of notice of the default. 9.2. City Default. An event of default on the part of City (“Event of City Default”) shall arise hereunder if City fails to keep, observe, or perform any of its covenants, duties, or obligations under this Agreement, and the default continues for a period of thirty (30) days after written notice thereof from Developer to City, or in the case of a default which cannot with due diligence be cured within thirty (30) days, City fails to commence to cure the default within thirty (30) days of such notice and thereafter fails to prosecute the curing of such default with due diligence and in good faith to completion. 9.3. City Right to Terminate Agreement. If an Event of Developer Default shall occur and be continuing beyond any applicable cure period, then City shall, in addition to other rights available under law or this Agreement, have the right to terminate this Agreement. However, if a nonmonetary breach is of a nature that it cannot be cured within the applicable cure period, Developer shall commence to cure within said cure period and diligently complete such cure within a reasonable time thereafter but in no event later than one hundred twenty ( 120) days. If, after the expiration of the applicable cure period, City elects to terminate this Agreement, City shall give written notice to Developer and to any mortgagee entitled to such notice specifying the nature of the default and stating that this Agreement shall expire and terminate on the date specified in such notice, and upon the date specified in the notice, this Agreement and all rights of Developer under this Agreement, shall expire and terminate. 9.4. City Remedies and Rights Upon an Event of Developer Default. Upon the occurrence of an Event of Developer Default and the expiration of any applicable cure period, City shall have all remedies available under this Agreement or under law or equity, including, but not limited to the right to bring an action for equitable relief seeking the specific performance of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking to obtain any other remedy consistent with the purpose of this Agreement. 9.5. Developer’s Remedies Upon an Event of City Default. Upon the occurrence of an Event of City Default, in addition to pursuing any other remedy allowed at law or in equity or otherwise provided in this Agreement, Developer may bring an action for equitable relief seeking the specific performance of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking to obtain any other remedy consistent with the purpose of this Agreement, and may pursue any and all other remedies available under this Agreement or under law or equity to enforce hereunder. 9.6. Remedies Cumulative; No Consequential Damages. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different time, of any other rights or remedies for the same or any other default by the other Party. Notwithstanding anything to the contrary set forth 29 herein, a Party’s right to recover damages in the event of a default shall be limited to actual damages and shall exclude consequential damages. 9.7. Inaction Not a Waiver of Default. No failure or delay by either Party in asserting any of its rights and remedies as to any default shall operate as a waiver of such default or of any such rights or remedies, nor deprive either Party of its rights to institute and maintain any action or proceeding which it may deem necessary to protect, assert or enforce any such rights or remedies in the same or any subsequent default. 9.8. Right of Reverter. If following conveyance of the Property to Developer, Developer (i) fails to begin construction of the Project within the time specified in Section 5.1 as such date may be extended pursuant to the terms hereof, (ii) abandons or suspends construction work for a period of thirty (30) days after written notice from City, (iii) fails to complete construction of the Project by the time specified in Section 5.1 and Exhibit D as such date may be extended pursuant to the terms hereof, or (iv) directly or indirectly, voluntarily or involuntarily Transfers the Property or this Agreement in violation of Article VII, the City may re-enter and take possession of the Property or any portion thereof with all improvements thereon without payment or compensation to Developer, and revest in the City the estate theretofore conveyed to the Developer. The interest created pursuant to this Section 9.8 shall be a “power of termination” as defined in California Civil Code Section 885.010, and shall be separate and distinct from the City’s option to purchase the Property under the same or similar conditions specified in Section 9.9. City’s rights pursuant to this Section 9.8 shall not defeat, render invalid or limit any mortgage or deed of trust permitted by this Agreement or any rights or interests provided in this Agreement for the protection of the holders of such mortgages or deeds of trust. Upon revesting in the City of title to the Property or any portion thereof as provided in this Section 9.8, the City shall use best efforts to resell the Property or applicable portion thereof and as soon as possible, in a commercially reasonable manner to a qualified and responsible party or parties (as determined by the City) who will assume the obligation of making or completing the Project in accordance with the uses specified for such property in this Agreement and in a manner satisfactory to the City. Upon such resale of the Property or any portion thereof the sale proceeds shall be applied as follows: (a) First, to reimburse the City for all costs and expenses incurred by City, including but not limited to salaries of personnel and legal fees incurred in connection with the recapture and resale of the Property; all taxes and assessments payable prior to resale, and all applicable water and sewer charges; any payments necessary to discharge any encumbrances or liens on the Property at the time of revesting of title thereto in the City or to discharge or prevent from attaching any subsequent encumbrances or liens due to obligations, defaults, or acts of the Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the completion of the Project or any part thereof on the Property; and any other amounts owed to the City by Developer and its successors or transferee. (b) Second, to reimburse the City for damages to which each is entitled under this Agreement by reason of the Developer’s default. 30 (c) Third, to reimburse the Developer, its successor or transferee, up to the amount equal to: (1) The payment made to the City for the Property; plus (2) The fair market value of the improvements Developer has placed on the Property or applicable portion thereof; less (3) Any gains or income withdrawn or made by the Developer from the Property or applicable portion thereof or the improvements thereon. Notwithstanding the foregoing, the amount calculated pursuant to this subsection (c) shall not exceed the fair market value of the Property or applicable portion thereof, together with the improvements thereon as of the date of the default or failure which gave rise to the City’s exercise of the right of reverter. (4) Any balance remaining after such reimbursements shall be retained by the City. The rights established in this Section 9.8 are to be interpreted in light of the fact that the City will convey the Property to the Developer for completion of the Project as specified herein and not for speculation. 9.9. Option to Purchase. Enter and Possess. The City shall have the additional right at its option to purchase, enter and take possession of the Property with all improvements thereon (the “Repurchase Option”), if after conveyance of the Property, Developer (i) fails to begin construction of the Project within the time specified in Section 5.1 and Exhibit D as such date may be extended pursuant to the terms hereof, (ii) abandons or suspends construction of the Project for a period of thirty (30) days after written notice from City, (iii) fails to complete construction of the Project by the time specified in Section 5.1 and Exhibit D as such date may be extended pursuant to the terms hereof, or (iv) directly or indirectly, voluntarily or involuntarily Transfers the Property or this Agreement in violation of Article VII. To exercise the Repurchase Option, the City shall pay to the Developer cash in an amount equal to: 1. The City’s distribution of the net proceeds of the Purchase Price in accordance with their proportionate contributions to the Real Property Tax Trust Fund for the former Redevelopment Agency pursuant to the Compensation Agreement; plus 2. The fair market value of any new improvements constructed by Developer and existing on the Property at the time of exercise of the Option; plus 3. Any gains or income withdrawn or made by the Developer from the applicable portion of the Property or the improvements thereon; less 31 4. The value of any liens or encumbrances on the applicable portion of the Property which the City assumes or takes subject to; less 5. Any damages to which the City is entitled under this Agreement by reason of Developer’s default. In order to exercise the Repurchase Option, City shall give Developer notice of such exercise, and Developer shall, within thirty (30) days after receipt of such notice, provide City with a summary of all of Developer’s costs incurred as described in this Section. Within thirty (30) days of City’s receipt of such summary, City shall pay into an escrow established for such purpose cash in the amount of all sums owing pursuant to this Section 9.9, and Developer shall execute and deposit into such escrow a grant deed transferring to City all of Developer’s interest in the Property, or portion thereof and the improvements located thereon. 9.10. Future Sale of Property. If the City exercises the Repurchase Option pursuant to Section 9.9, the City will make reasonable efforts to remarket the property for development consistent with the LRPMP. In the event that the City sells the property following exercise of the Repurchase Option, the City shall pay to the Developer cash in an amount equal to: 1. Sale proceeds from the sale of the Property, or Three Million, Five Hundred Thousand Dollars ($3,500,000), whichever is lower; minus 2. The amount paid to the Developer pursuant to Section 9.9; minus 3. The City’s costs incurred in selling the property, including but not limited to staff time, attorney’s fees and any third party consultants. 9.11. Memorandum of Right of Reverter/Option to Purchase. The parties shall cause a memorandum or memoranda of the rights granted the City in Sections 9.8 and 9.9 of this Agreement to be recorded in the Official Records at the time of the Close of Escrow for conveyance of the Property to Developer. In lieu of such memorandum, in City’s and City’s discretion, the rights afforded City pursuant to Sections 9.8 and 9.9 may be described in the Grant Deed. The City will not withhold consent to reasonable requests for subordination of the Repurchase Option to deeds of trust provided for the benefit of construction lenders identified in the Financing Plan provided that the instruments effecting such subordination include reasonable protections to the City in the event of default, including without limitation, extended notice and cure rights. A subordination agreement substantially in the form of Exhibit H shall be deemed reasonable. 9.12. Construction Plans. If this Agreement is terminated pursuant to Section 9.3, or otherwise, the Developer, at no cost to the City, shall be entitled to take possession of all construction plans and studies in the Developer’s possession or in the possession of the Developer’s consultants related to development of the Project on the Property, including without limitation, the Construction Plans, subject only to the rights of senior construction lenders identified in the Financing Plan as it may be updated with City approval, which shall 32 not be unreasonably withheld. The Developer shall deliver to the City electronic and hard copies of such plans, including but not limited to the CAD files, and have the full right to use them as the City deems appropriate. In the event the City utilizes the construction plans or studies, the City shall indemnify the Developer for any claims arising from the use of construction plans or studies by the City pursuant to this Section 9.11. 9.13. Rights of Mortgagees. Any rights of the City under this Article I X shall not defeat, limit or render invalid any mortgage or deed of trust permitted by this Agreement or any rights provided for in this Agreement for the protection of holders of such instruments. Any conveyance or reverter of the Property to the City pursuant to this Article I X shall be subject to mortgages and deeds of trust permitted by this Agreement. 9.14. Assignment. The City shall have the right to assign the Repurchase Option to any other governmental entity. ARTICLE X INDEMNITY AND INSURANCE 10.1. Indemnity. Developer shall indemnify, defend (with counsel approved by City) and hold Indemnitees harmless from and against any and all Claims, including without limitation, Claims arising directly or indirectly, in whole or in part, as a result of or in connection with Developer’s or Developer’s contractors, subcontractors, agents or employees development, construction, improvement, operation, ownership or maintenance of the Project or the Property, or any part thereof or otherwise arising out of or in connection with Developer’s performance under this Agreement. Developer’s indemnification obligations under this Section 11.1 shall not extend to Claims resulting from the gross negligence or willful misconduct of Indemnitees. The provisions of this Section 11.1 shall survive the issuance of a Certificate of Completion for the Project and the expiration or earlier termination of this Agreement. It is further agreed that City does not and shall not waive any rights against Developer that they may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or the deposit with City by Developer, of any of the insurance policies described in this Agreement. 10.2. Liability and Workers Compensation Insurance. (a) Prior to initiating work on the Project and continuing through the issuance of the Certificate of Completion, Developer and all contractors working on behalf of Developer on the Project shall maintain a commercial general liability policy in the amount of Five Million Dollars ($5,000,000) each occurrence, Ten Million Dollars ($10,000,000) annual aggregate, together with Five Million Dollars ($5,000,000) excess liability coverage including coverage for bodily injury, property damage, products, completed operations and contractual liability coverage. Such policy or policies shall be written on an occurrence basis and shall name the Indemnitees as additional insureds. (b) Until issuance of the Certificate of Completion, Developer and all contractors working on behalf of Developer shall maintain a comprehensive automobile liability coverage in the amount of Five Million Dollars ($5,000,000), combined single limit 33 including coverage for owned and non-owned vehicles and shall furnish or cause to be furnished to City evidence satisfactory to City that Developer and any contractor with whom Developer has contracted for the performance of work on the Property or otherwise pursuant to this Agreement carries workers’ compensation insurance as required by law. Automobile liability policies shall name the Indemnitees as additional insureds. (c) Upon commencement of construction work and continuing until issuance of a Certificate of Completion, Developer and all contractors working on behalf of Developer shall maintain a policy of builder’s all-risk insurance in an amount not less than the full insurable cost of the Project on a replacement cost basis naming City as loss payee. (d) Developer shall maintain property insurance covering all risks of loss (other than earthquake), including flood (if required) for 100% of the replacement value of the Project with deductible, if any, in an amount acceptable to City, naming City as loss payee. (e) Companies writing the insurance required hereunder shall be approved to do business in the State of California. Insurance shall be placed with insurers with a current A.M. Best’s rating of no less than A: VII. The Commercial General Liability and comprehensive automobile policies required hereunder shall name the Indemnitees as additional insureds. Builder’s Risk and property insurance shall name City as loss payee. (f) Prior to commencement of construction work, Developer shall furnish City with certificates of insurance in form acceptable to City evidencing the required insurance coverage and duly executed endorsements evidencing such additional insured status. The certificates shall contain a statement of obligation on the part of the carrier to notify City of any material adverse change, cancellation, termination or non-renewal of the coverage at least thirty days in advance of the effective date of any such material adverse change, cancellation, termination or non-renewal. (g) If any insurance policy or coverage required hereunder is canceled or reduced, Developer shall, within ten (10) days after receipt of notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation or reduction, file with City a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, City may, without further notice and at its option, procure such insurance coverage at Developer’s expense, and Developer shall promptly reimburse City for such expense upon receipt of billing from City. (h) Coverage provided by Developer shall be primary insurance and shall not be contributing with any insurance, or self-insurance maintained by City, and the policies shall so provide. The insurance policies shall contain a waiver of subrogation for the benefit of the City. Developer shall furnish the required certificates and endorsements to City prior to the commencement of construction of the Project, and shall provide City with certified copies of the required insurance policies upon request. If Developer maintains broader coverage and/or higher limits than the minimum shown above, the City shall be entitled to the broader coverage and/or higher limits maintained. Any available insurance 34 proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. ARTICLE XI MISCELLANEOUS PROVISIONS 11.1. No Brokers. Each Party warrants and represents to the other that no person or entity can properly claim a right to a real estate commission, brokerage fee, finder’s fee, or other compensation with respect to the transactions contemplated by this Agreement. Each Party agrees to defend, indemnify and hold harmless the other Party from any claims, expenses, costs or liabilities arising in connection with a breach of this warranty and representation. The terms of this Section shall survive the close of escrow and the expiration or earlier termination of this Agreement. 11.2. Enforced Delay: Extension of Times of Performance. Subject to the limitations set forth below, performance by either Party shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended where delays are due to: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, , epidemics, quarantine restrictions, freight embargoes, governmental restrictions or priority, litigation, including court delays, unusually severe weather, acts or omissions of the other Party, acts or failures to act of any public or governmental agency or entity (provided that the acts or failures to act of City shall not excuse performance by City), or any other cause beyond the affected Party’s reasonable control. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent to the other Party within thirty (30) days of the commencement of the cause and such extension is not rejected in writing by the other Party within ten (10) days of receipt of the notice. Neither Party shall unreasonably withhold consent to an extension of time pursuant to this Section. Times of performance under this Agreement may also be extended in writing by the mutual agreement of Developer, City (acting in the discretion of the City Manager unless he or she determines in his or her discretion to refer such matter to the City Council). City and Developer acknowledge that adverse changes in economic conditions, either of the affected Party specifically or the economy generally, changes in market conditions or demand, and/or inability to obtain financing to complete the Project shall not constitute grounds of enforced delay pursuant to this Section. Each Party expressly assumes the risk of such adverse economic or market changes and/or financial inability, whether or not foreseeable as of the Effective Date. 11.3. Notices. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Parties in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed 35 delivered on receipt if delivery is confirmed by a return receipt; or (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender’s account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or (iv) email transmission to the email addresses noted below, in which case notice will be deemed delivered upon transmittal, provided that a duplicate hard copy of the email is promptly delivered by first-class or certified mail or by overnight delivery. City: City of South San Francisco 400 Grand Ave. South San Francisco, CA 94080 Attn: City Manager Email: mike.futrell@ssf.net cc: julie.barnard@ssf.net with a copy to: Meyers Nave 555 12th Street, Suite 1500 Oakland, CA 94607 Attn: Jason Rosenberg Email: jrosenberg@meyersnave.com Developer: Hisense Real Estate (USA), LLC 235 Grand Ave. # 203 South San Francisco, CA 94080 Attn: Kenneth Cui Email: kencui@yahoo.com with a copy to: James Braden Law Offices 44 Montgomery Street, Suite 1210 San Francisco, CA 94104 Attention: James M. Braden Telephone: (415) 398-6865 Email: braden@sf-lawyer.com 11.4. Attorneys’ Fees. If any Party fails to perform any of its obligations under this Agreement, or if any dispute arises among the Parties concerning the meaning or interpretation of any provision hereof, then the prevailing Party in any proceeding in connection with such dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys’ fees and disbursements. 36 11.5. Waivers: Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no waiver shall be valid unless in writing and executed by the waiving Party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the Party granting the extension. This Agreement may be amended or modified only by a written instrument executed by the Parties. 11.6. Binding on Successors. Subject to the restrictions on Transfers set forth in Article VI, this Agreement shall bind and inure to the benefit of the Parties and their respective permitted successors and assigns. Any reference in this Agreement to a specifically named Party shall be deemed to apply to any permitted successor and assign of such Party who has acquired an interest in compliance with this Agreement or under law. 11.7. Survival. All representations made by Developer hereunder and Developer’s obligations pursuant to Sections 4.1. 4.5. 4.7, 5.10. 5.13, 5.14, 9.12. 10.1. 11.1 and 11.18 shall survive the expiration or termination of this Agreement and the issuance and recordation of a Certificate of Completion. None of the provisions, terms, representations, warranties and covenants of this Agreement are intended to or shall be merged by any grant deed conveying the Property to Developer or any successor in interest, and neither such grant deed nor any other document shall affect or impair the provisions, terms, representations, warranties and covenants contained herein. 11.8. Construction. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of all Parties, and the Parties agree, that since all Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if all Parties had prepared it. 11.9. Action or Approval. Whenever action and/or approval by City is required under this Agreement, the City Manager of the City of South San Francisco or his designee may act on and/or approve such matter unless specifically provided otherwise, or unless the City Manager determines in his discretion that such action or approval requires referral to City Council for consideration. 11.10. Entire Agreement. This Agreement, including Exhibits A through H, attached hereto and incorporated herein by reference, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior written or oral agreements, understandings, representations or statements between the Parties with respect to the subject matter hereof. 11.11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which taken together shall constitute one instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto having additional signature pages 37 executed by the other Party. Any executed counterpart of this Agreement may be delivered to the other Party by facsimile or by email with PDF format attachment, and shall be deemed as binding as if an originally signed counterpart was delivered. 11.12. Severability. If any term, provision, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect unless an essential purpose of this Agreement is defeated by such invalidity or unenforceability. 11.13. No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies hereunder. 11.14. Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another. 11.15. Non-Liability of Officials, Employees and Agents. No officer, official, employee or agent of City shall be personally liable to Developer or its successors in interest in the event of any default or breach by City or for any amount which may become due to Developer or its successors in interest pursuant to this Agreement. 11.16. Time of the Essence: Calculation of Time Periods. Time is of the essence for each condition, term, obligation and provision of this Agreement. Unless otherwise specified, in computing any period of time described in this Agreement, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a business day, in which event the period shall run until the next business day. The final day of any such period shall be deemed to end at 5:00 p.m., local time at the Property. For purposes of this Agreement, a “business day” means a day that is not a Saturday, a Sunday, a federal holiday or a state holiday under the laws of California. 11.17. Dispute Resolution. Any controversy, dispute or claim related to or arising from this Agreement or in any way arising from the dealings of the parties with one another, shall be resolved by the following steps in the following sequence: (A) By non-binding Mediation before, and in accordance with the rules of, the Judicial Arbitration and Mediation Services ("JAMS"), conducted by a mutually agreed to retired Judge, who has experience either as a Court Judge or as a private Mediator or Arbitrator in the fields of both Land Use and Municipal Law, with exclusive venue in San Francisco, California and in no other place. (B) If that Mediation fails to resolve the dispute, then by binding Arbitration before, and in accordance with the rules of, JAMS, conducted by a mutually agreed to retired Judge, who has experience either as a Court Judge or as a private Mediator or Arbitrator in the fields of both Land Use and Municipal Law, with exclusive venue in San Francisco, California and in no other place. In any such arbitration, the prevailing party shall be entitled to an award of reasonable attorney's fees and costs. 38 11.18. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. 11.19. General Indemnification. Developer shall indemnify, defend (with counsel approved by City) and hold harmless the Indemnitees from all Claims (including without limitation, attorneys’ fees) arising in connection with any claim, action or proceeding to attack, set aside, void, or annul any approval by the City or any of its agencies, departments, commissions, agents, officers, employees or legislative body concerning the Project or this Agreement. The City will promptly notify Developer of any such claim, action or proceeding, and will cooperate fully in the defense. The City may, within its unlimited discretion, participate in the defense of any such claim, action or proceeding, and if the City chooses to do so, Developer shall reimburse City for reasonable attorneys’ fees and expenses incurred. 11.20. Inspection of Books and Records. Upon request, Developer shall permit the City to inspect at reasonable times and on a confidential basis those books, records and all other documents of Developer necessary to determine Developer’s compliance with the terms of this Agreement. SIGNATURES ON FOLLOWING PAGE(S ). 39 IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date first written above. CITY By: _________________________ City Manager ATTEST: By: ___________________________ City Clerk APPROVED AS TO FORM: By: _______________________________ City Attorney DEVELOPER: Hisense Real Estate (USA), LLC, a California limited liability company By: __________________________ Its: Managing Member EXHIBIT A LEGAL DESCRIPTION PROPERTY The land referred to is situated in the County of San Mateo, City of South San Francisco, State of California, and is described as follows: PARCEL ONE: Lot 8, Block 140, as delineated upon that certain Map entitled "South San Francisco, San Mateo County, California", filed for record in the office of the Recorder of the County of San Mateo, State of California, on March 1st, 1892 in Book "B" of Maps, at Page 6, and a copy entered in Book 2 of Maps at Page 52. APN: 012-334-030 JPN: 012-033-334-03 PARCEL TWO: Lots 6 and 7, Block 140, as delineated upon that certain Map entitled "South San Francisco, San Mateo County, California", filed for record in the office of the Recorder of the County of San Mateo, State of California, on March 1st, 1892 in Book "B" of Maps, at Page 6, and a copy entered in Book 2 of Maps at Page 52. APN: 012-334-040 JPN: 012-033-334-04 PARCEL THREE: Lots 11, 12, 13 and 14 in Block 140, as shown on that certain Map entitled "South San Francisco, San Mateo Co. Cal., Plat No. 1", filed for record in the office of the Recorder of the County of San Mateo on March 1, 1892 in Book "B" of Maps, at Page 6, and copied into Book 2 of Maps at Page 52. APN: 012-334-130 JPN: 012-033-334-13 PARCEL FOUR: Lots 9 and 10 in Block 140, as shown on that certain Map entitled "South San Francisco San Mateo Co. Cal. Plat No. 1", filed in the office of the County Recorder of San Mateo County, State of California, on March 1, 1892, in Book "B" of Maps, at Page 6 and copied into Book 2 of Maps, at Page 52. APN: 012-334-160 JPN: 012-033-334-16 EXHIBIT B FORM OF MEMORANDUM [to be provided upon execution] EXHIBIT C FORM OF AFFORDABLE HOUSING AGREEMENT RECORDING REQUESTED BY: COMMUNITY DEVELOPMENT DEPARTMENT CITY OF SOUTH SAN FRANCISCO 400 GRAND AVENUE SOUTH SAN FRANCISCO, CA 94080 WHEN RECORDED MAIL TO: ECONOMIC AND COMMUNITY DEVELOPMENT CITY OF SOUTH SAN FRANCISCO 400 GRAND AVENUE SOUTH SAN FRANCISCO, CA 94080 Documentary Transfer Tax $ EXEMPT County of San Mateo City of South San Francisco _____________________________ Right of Way Agent AFFORDABLE HOUSING AGREEMENT FOR BELOW MARKET RATE PROPERTY This Affordable Housing Agreement for Below Market Rate Property (“Agreement”) is entered into as of this _____ day of _____________, 2017, by and between the City of South San Francisco (“City”) and Hisense REUS LLC (“Developer”). City and Developer are hereinafter collectively referred to as the “Parties.” RECITALS WHEREAS, Chapter 20.380 of the South San Francisco Municipal Code sets forth the requirements for Inclusionary Housing (“Inclusionary Housing Ordinance”); and WHEREAS, the Developer is, or will become, the fee simple owner of that certain real property (“Property”) located in the City of South San Francisco, State of California, and more particularly described in Exhibit A attached hereto. WHEREAS, the Developer intends to construct ninety-seven (97) for-sale housing units and approximately 6,200 square feet of commercial retail space on the Property (the “Project”) and has submitted site development plans for the Project; and WHEREAS, as a condition of development of the Project, Developer must comply with the City of South San Francisco’s housing policies and programs as set forth in the City’s Inclusionary Housing Ordinance first adopted by the City Council on December 12, 2001, as it applies to the provision of affordable housing. WHEREAS, the Developer proposes meeting these requirements by selling the required number of Below Market Rate Units (defined below); and NOW THEREFORE, the City and the Developer agree as follows: AGREEMENT 1. As a condition of developing and constructing ninety-seven (97) condominiums on the Property, Developer shall designate twenty (20) units as Below Market Rate Units and shall make these units available for sale as Below Market Rate Units (the “Below Market Rate Units”). The number of Below Market Rate Units shall be equal to twenty percent (20%) of the total number of condominiums to be built upon the Property and identified in Exhibit B. The Below Market Rate Units shall be affordable to low- and moderate- income households guaranteed by deed restrictions or other enforceable covenants running with the land. Developer shall sell: (i) ___ (_) two -bedroom housing unit(s) and ___ (_) one-bedroom unit(s) in the Project to a household whose annual gross income does not exceed sixty percent (60%) of the unadjusted median income (“Low-Income Household”) for a San Mateo County household in the San Francisco Primary Metropolitan Statistical Area, published annually by the Department of Housing and Urban Development (as adjusted annually, the “Base Median Income”); (ii) ___ (_) two-bedroom unit and ______ (_) one-bedroom unit(s) to a household whose annual gross income does not exceed seventy percent (70%) of the unadjusted median income; (iii) ___ (_) three-bedroom unit, ____ (_) two-bedroom unit(s) and _____ (_) one-bedroom unit(s) to a household whose annual gross income does not exceed eighty percent (80%) of the unadjusted median income; (iv) ____ (_) two-bedroom unit(s) and _____ (_) one-bedroom unit(s) to a household whose annual gross income does not exceed ninety percent (90%) of the unadjusted median income; (v) ____ (_) two-bedroom unit(s) and _____ (_) one-bedroom unit(s) to a household whose annual gross income does not exceed one hundred percent (100%) of the unadjusted median income; and (vi) ____ (_) three-bedroom unit, ____ (_) two-bedroom unit(s) and ____(_) one-bedroom unitsto a household whose annual gross income does not exceed one hundred ten percent (110%) of the unadjusted median income, (jointly “Low and Moderate-Income Households”). 2. Developer shall sell the Below Market Rate Units at a price that will result in an allowable housing expense for a for-sale unit (as defined in Section 20.380.002 of the Inclusionary Housing Ordinance) that does not exceed thirty percent (30%) of the gross monthly income for Low- and Moderate-Income Households, adjusted for household size. 3. The Below Market Rate Units shall be located within the Downtown Station Area Specific Plan area. The Developer and the City acknowledge this is an ideal area for such Below Market Rate Units as it is in close proximity to and has access to employment opportunities, urban services and transportation facilities. 4. Occupancy of the Below Market Rate Units shall be established concurrently with occupancy of the market rate units located on the Property. This requirement shall be effective as of the date the first unit is occupied on the Property. This requirement for the Below Market Rate Units shall remain in effect even in the event all market rate units on the Property become unoccupied. 5. Developer shall require the buyer of the Below Market Rate Units to execute a Resale Restriction and Option to Purchase Agreement substantially in the form attached hereto as Exhibit C (“Resale Restriction Agreement”). The Resale Restriction Agreement shall be recorded against the parcel containing the Below Market Rate Units upon close of escrow of sale for such Below Market Rate Units. The Below Market Rate Units shall remain restricted and affordable to Low- and Moderate Income Households for a term of fifty-five (55) years, commencing on the date each Below Market Rate Unit is sold. The restrictions shall apply to all subsequent buyers. 6. Developer shall sell the Below Market Rate Units to eligible Low- and Moderate- Income Household pursuant to Section 2. Developer shall work with the City and/or the City’s First Time Homebuyer Administrator to identify and qualify eligible buyers for said units. At the time of sale, Developer shall pay an administrative fee to reimburse the City for all administrative and processing costs and fees incurred in processing the sale of the Below Market Rate Units, which may include the First Time Homebuyer Administrator fees. 7. The Below Market Rate Units shall remain owner-occupied units. 8. Developer shall indemnify, defend with counsel selected by the City in consultation with Developer, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising or allegedly arising out of or relating in any manner to Developer’s performance or nonperformance under this Agreement, except to the extent arising from the gross negligence or willful misconduct of the City. The provisions of this section shall survive the expiration or other termination of this Agreement or any release of part or all of the Property from the burdens of this Agreement. 9. Developer shall reimburse the City for all administrative/processing costs and fees incurred in processing the Agreement, which may include reasonable attorney’s fees and cost, and implementing the requirements of the Inclusionary Housing Ordinance. 10. Developer hereby subjects the Property to the covenants, conditions and restrictions set forth in this Agreement. The Parties hereby declare their express intent that all such covenants, conditions and restrictions shall be deemed covenants running with the land and shall pass to and be binding upon Developer’s successors in title to the Property. All covenants without regard to technical classification or designation shall be binding for the benefit of the City, and such covenants shall run in favor of the City. Each and every contract, deed or other instrument hereafter executed applicable to or conveying the Property or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, conditions and restrictions, regardless of whether such covenants, conditions and restrictions are set forth in such contract, deed or other instrument. This Agreement shall be recorded on the Property upon final map recordation or, if a map is not being processed, prior to the issuance of building permits for the Property. 11. Prior to the sale of the Below Market Rate Units to eligible Low- and Moderate- Income Households, the Developer may not transfer the whole or any part of the Property, the Project or this Agreement unless (i) such transfer is to a limited liability company or limited partnership or corporation formed for purposes of carrying out the Project and which takes title to the Property, (ii) the Developer first notifies the City of the proposed transfer or assignment and delivers to the City the organizational documents of the transferee or assignee (the "Transferee"), and (iii) the Developer causes the Transferee to execute an agreement, in form and substance approved in writing by the City, accepting and assuming (and releasing Developer from) the obligations of the Developer under this Agreement. Developer shall reimburse City for all City costs, including but not limited to reasonable attorneys’ fees, incurred in reviewing instruments and other legal documents proposed to effect a permitted transfer or assignment under this Agreement within ten (10) days following City’s delivery of an invoice detailing such costs. 12. Provided that Developer has complied with all of the terms and conditions set forth herein, upon the sale by Developer of the Below Market Rate Units, Developer shall be released from, and shall have no further obligations under this Agreement. Such release shall be effective upon the sale and shall not require any further action or documentation by any party to this Agreement. 13. Any amendments to this Agreement shall be processed in the same manner as an original application for approval pursuant to Section 20.380.014 of the South San Francisco Municipal Code. Nothing, however, shall prevent the body granting final approval of the project development, from modifying the location and phasing of the Below Market Rate Units as a condition of approval for the Project. 14. The laws of the State of California shall govern this Agreement without regard to principles of conflicts of laws. 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 of San Mateo or in the United States District Court for the Northern District of California. 15. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 16. 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. 17. Any notice or demand shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below: Developer: ______________________________ ______________________________ ______________________________ City: City of South San Francisco - City Clerk 400 Grand Avenue South San Francisco, CA 94080 18. Notwithstanding any previous provision of this Agreement, the terms of this Agreement shall be interpreted in accordance with the provisions of Chapter 20.380 of the South San Francisco Municipal Code. IN WITNESS THEREOF, the parties have executed this Agreement as of the date first written above. DEVELOPER : By: ________________________________ Name Printed: _______________________ Its: _________________________________ CITY: CITY OF SOUTH SAN FRANCISCO By: ___________________________ Mike Futrell City Manager APPROVED AS TO FORM: ______________________________ Jason Rosenberg, City Attorney SIGNATURES MUST BE NOTARIZED EXHIBIT D DEVELOPMENT SCHEDULE Deadline Obligation 60 days from DDA execution City Council approves all entitlements for the Project 60 days from entitlements Open Escrow 60 days from entitlements Demo and grading permit submitted to City 60 days from entitlements First draft of Financing Plan submitted to City 180 days from entitlements Building permit submittal 5 days before Close of Escrow Final Financing Plan (includes final proforma and funding sources Final Construction Contract Executed Developer to provide construction contract, evidence of insurance, performance and payment bonds, permits Bonds, guarantees etc payment of ½ permit and impact fees Close of Escrow 10 days after City determines that CDs are 90% complete Within 60 days following Closing Date Developer to commence Project construction Within 18 months following project construction commencement Developer to Complete Project Construction EXHIBIT E FORM OF GRANT DEED [to be provided upon execution] EXHIBIT F BUILDING PERMIT SUBMITTAL REQUIREMENTS To determine the completeness of a plan submittal, the City will vet the construction drawings through the plan review process for the following purposes: Identify non code compliant issues with the project. Determine whether the non-code compliant issues are major or minor issues. o Example of Major Issues - Footings are too small. Stairs are not wide enough. The building is too tall for the type of construction, egress, etc. o Example of Minor Issues - Millwork isn't the proper height, contrasting stripes are not provided at stairs, door handle height is too tall, etc. Repeat process until all major issues are resolved with a limited number of minor issues remaining. This should be the milestone the City accepts as "90% CD" Items that need to be included in the submittal package: General items o Conditions of approval o Compliance Memorandum Architectural Plans o Accessibility Structural o Calculations o Soil Reports Electrical Mechanical Plumbing Calgreen Energy Documentation EXHIBIT G FORM OF CERTIFICATE OF COMPLETION [to be provided upon execution] EXHIBIT H FORM OF SUBORDINATION AGREEMENT [to be provided upon execution] 2840779.4 City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-861 Agenda Date:9/6/2017 Version:1 Item #:3. Report regarding a resolution approving a first amendment to the services agreement with Barrango MFG for the installation and maintenance of holiday decorations to amend the scope of services and increase the not to exceed amount from $22,880 to $78,880.(Julie Barnard, Economic and Community Development Coordinator) RECOMMENDATION It is recommended that the City Council adopt a resolution approving a first amendment to the services agreement with Barrango MFG for the installation and maintenance of holiday decorations to amend the scope of services and increase the not to exceed amount from $22,880 to $78,880. BACKGROUND/DISCUSSION In 2015,the City Council Holiday Decorations Subcommittee provided staff with direction to expand the Downtown holiday decorations program year over year.Pursuant to that direction,staff issued a Request for Proposals (RFP)for the purchase,installation and maintenance of holiday decorations.As a result of that RFP, Barrango MFG was selected as the vendor and on September 23,2016,the City Council approved a contract for the purchase of 105 holiday wreaths for the street lamps Downtown and the installation,storage and maintenance of those decorations until the end of the 2019 holiday season.The City executed a contract for $155,025 for these services;the contract is set to expire at the end of 2019.To date,the City has spent $124,665. In 2016,per the Holiday Decorations Subcommittee’s direction,staff decided to create a larger holiday decorations display on the grounds of City Hall and reached out to five vendors for the provision of giant gift boxes to place on the City Hall lawn.In response to the City’s solicitation,the City received one quote from Barrango MFG.The City executed a contract with Barrango MFG for the purchase,storage and installation of the gift boxes for $22,880; this contract is also set to expire in 2019. After installation of the gift boxes last year,staff determined that the boxes were not sufficiently uplit. Consequently,staff intended to amend Barrango’s 2016 contract to install additional lighting to better illuminate the gift boxes for the 2017 holiday season.The one-time installation of the lights to highlight the bows and outline the boxes will cost $5,000.The power source for the lights will be drawn from the wall washers near the City Hall building. In addition to the lighting improvements mentioned above,staff also worked to develop a 2017 expansion to the holiday decorations program at City Hall to include a giant 46’manzanita sign for the lawn between City Hall and the Grand Avenue Library (See Attachment 1 for depiction of the sign).Staff reached out to three qualified vendors and received one quote from Barrango MFG.For the provision of the sign,storage, City of South San Francisco Printed on 8/31/2017Page 1 of 2 powered by Legistar™ File #:17-861 Agenda Date:9/6/2017 Version:1 Item #:3. maintenance and installation for two years, Barrango’s quote was $51,000. Staff recommends consolidating the additional gift box lighting project with the additional manzanita sign and amending Barrango MFG’s 2016 contract to account for the additional services and increase the contract amount by $56,000 ($5,000 for additional lighting and $51,000 for the new sign). CONCLUSION It is recommended that the City Council adopt a resolution approving a contract amendment with Barrango MFG to expand the scope of services and increase the contract amount by $56,000 to provide additional lighting and a new manzanita sign for display during the holiday season. Attachment 1: Manzanita signage City of South San Francisco Printed on 8/31/2017Page 2 of 2 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-862 Agenda Date:9/6/2017 Version:1 Item #:3a. Resolution approving a first amendment to the services agreement with Barrango MFG for the installation and maintenance of holiday decorations to amend the scope of services and increase the not to exceed amount from $22,880 to $78,880 WHEREAS,the City executed an agreement with Barrango MFG in 2016 for the purchase,installation and storage of giant gift boxes for outside City Hall in the amount of $22,880 (“Agreement”); and WHEREAS,the City now wishes to amend the Agreement to include the purchase of a giant manzanita sign and to provide lighting for the gift boxes (“First Amendment”),attached hereto and incorporated herein as Exhibit A; and WHEREAS, the increase in services for the manzanita sign and lighting will cost an additional $56,000; and WHEREAS,staff recommends that the City Council authorize the Budget Amendment 18.002 to appropriate the funds for the increased contract amount. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby takes the following actions: 1.Approves the First Amendment to the Agreement expanding the scope of services and increasing the not to exceed amount to $73,740, attached hereto and incorporated herein as Exhibit A. 2.Authorizes the City Manager to execute the First Amendment 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. 3.Authorizes Budget Amendment 18.002 to appropriate the funds for the increased not to exceed amount under the First Amendment. ***** City of South San Francisco Printed on 8/31/2017Page 1 of 1 powered by Legistar™ FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND BARRANGO MFG THIS FIRST AMENDMENT TO THE SERVICES AGREEMENT is made at South San Francisco, California, as of September 7, 2017 by and between THE CITY OF SOUTH SAN FRANCISCO (“City”), a municipal corporation, and Barrango MFG (“Contractor”), (sometimes referred together as the “Parties”) who agree as follows: RECITALS A. On November 1, 2016, City and Contractor entered that certain Services Agreement (“Agreement”) whereby Contractor agreed to provide the following services and/or materials (“the Work”): supply holiday decorations, install and maintain the decorations during the display period, and rotate, store and preserve the decorations during the non-display period. A true and correct copy of the Agreement and its exhibits is attached as Exhibit A. B. City and Contractor 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 Contractor 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 2. Section 2 of the Agreement shall be amended such that the City agrees to pay Contractor a sum not to exceed $78,880, with the understanding that up to $14,630 has already been paid to Contractor. Contractor 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. 3. Scope of Services. The Scope of services is amended to include an additional task whereby the Contractor will supply and install lighting on the four decorative gift boxes, will supply a frame to angle the boxes, as shown in the revised Scope of Services attached as Exhibit B to this Amendment. The Scope of Services is amended to also include the supply of a 46’ manzanita sign, and includes the installation and maintenance during the display period and storage of the decorations during the non-display period 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] Dated: CITY OF SOUTH SAN FRANCISCO CONTRACTOR By: By: City Manager John Barrango Approved as to Form: By: City Attorney Exhibit A Consulting Services Agreement EXHIBIT B Revised Scope of Services Added service Amount LED lights on gift boxes and stand $5,000 Manzanita Sign $29,000 Installation & removal for 2 years ($6,000 per year) $12,000 Storage for 2 years ($5,000 per year) $10,000 TOTAL $56,000 2839737.1 City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-875 Agenda Date:9/6/2017 Version:1 Item #:4. Report regarding a resolution approving the second amendment to a consulting services agreement with Personnel Data Systems Inc,for the installation of a new human resources,payroll,and timekeeping software system,increasing the contract amount by $250,000 for a total amount not to exceed $500,000 and authorizing the City Manager to execute the amendment.(Mich Mercado,Human Resources Manager and Richard Lee, Finance Director) RECOMMENDATION It is recommended that the City Council adopt a resolution approving a second amendment to the consulting services agreement with Personnel Data Systems Inc.for the installation of a new human resources,payroll and timekeeping software system,and authorizing the City Manager to execute the amendment. BACKGROUND/DISCUSSION After discovering the City spends over $573,000/year in staff hours to process payroll and resolve errors,City Council approved an agreement on August 10,2016 to purchase,install and implement a new human resources, payroll and timekeeping software (HCM)system with Personnel Data Systems Inc.(PDS)for an amount not to exceed $250,000.Council later approved a consulting services agreement with Wise Consulting,Inc.to provide support services for implementing the proposed HCM system for an amount not to exceed $155,000.PDS provides developer configuration and Wise Consulting provides broad-based functional knowledge and systems implementation support.Training began November 28,2016,and the project team became fully staffed beginning May 4,2017.Staff requests a second amendment to the contract with PDS,which currently expires December 31, 2017. Current Project Status The previous system embedded a number of manual processes and customized “scripts”which required decoding,researching,analyzing and reconfiguring.The team that implemented the previous payroll system 15 years ago have largely departed, which necessitates extensive research. Staff has completed transferring data from the old system to the new system.Staff has also identified current manual processes ripe for automation,and unearthed layers of other manual processes and other inefficiencies that could be resolved by customizing automation features into the standard HCM system.During this process staff also discovered discrepancies with labor MOU language and city rules,resulting in inaccuracies in the past.During the conversion process staff also verified pay codes,employee benefits,dependents and organizational data, which uncovered additional inaccuracies in the present system. On the positive side,these discoveries presented opportunities for staff to correct past errors and create a more efficient,accurate system when the HCM project goes live.The new system will eliminate the manual processes which led to many of the errors discovered,leaving the city with a vastly improved system. Unfortunately,removing the inefficiencies and correcting past errors will delay the project by several months. The revised implementation schedule is as follows: • Phase One (April, 2018):Go-Live for Pay City of South San Francisco Printed on 8/31/2017Page 1 of 2 powered by Legistar™ File #:17-875 Agenda Date:9/6/2017 Version:1 Item #:4. • Phase Two (May, 2018):Affordable Care Act and Benefits Open Enrollment • Phase Three (July, 2018):Work Flow and Manager Self-Service Project Costs To correct past errors,validate data and remove manual processes will require more time,and more money, specifically an additional $250,000.This includes 1354 hours of anticipated developer time,including 468 hours for the interface files (includes 200 hours for PERS interface needs alone.)The project customizations estimate chart illustrated in Attachment 1 provides the total hours and estimated costs per project area. The project customizations will bring the implementation project total cost to $655,000 ($250,000 PDS + $155,000 Wise Implementation Support +$250,000 PDS.)While a significant investment up-front,the new system will reduce inefficiencies,duplicate entries,manual entries,paper,and staff time,thereby reducing ongoing costs each year. FISCAL IMPACT An additional $250,000 is needed to extend the PDS contract.Of this amount,$200,000 can come from identified savings from the FY 2016-2017 budget, with the remaining $50,000 coming from the general fund. CONCLUSION The PDS’Vista HRMS and Vista Time system allows the City the opportunity to automate processes today and in the future.Staff recommends that the City Council adopt a resolution approving a second amendment to the consulting services agreement with Personnel Data Systems Inc.for the human resources,payroll and timekeeping software system, and authorizing the City Manager to execute the agreement. Attachments: Project Customizations Estimate Chart City of South San Francisco Printed on 8/31/2017Page 2 of 2 powered by Legistar™ Project Customizations Estimate Chart PROJECT CUSTOMIZATIONS ESTIMATE PROJECT AREA HOURS LABOR Customization of Manual Process to Automation 364 $67K Interface Assistance - Benefits/CALPERS 344 $64K Interface Assistance - General Ledger/Budget Controls 126 $23K Additional Implementation Support 520 $96K Total Customizations 1354 $250K City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-876 Agenda Date:9/6/2017 Version:1 Item #:4a. Resolution approving the second amendment to a consulting services agreement with Personnel Data Systems Inc,extending the term and increasing the contract amount by $250,000 for a total amount not to exceed of $500,000 and authorizing the City Manager to execute the amendment. WHEREAS,on July 1,2016,the City of South San Francisco (“City”)and Personnel Data Systems,Inc (PDS or “Consultant”)entered into that certain consultant services agreement (“Agreement”)whereby Consultant agreed to implement a human capital management software package to promote efficient timekeeping and payroll processes and analyze succession and performance data on City personnel; and WHEREAS,on June 12,2017,City and Consultant entered into a First Amendment to extend the termination date of the Agreement; and WHEREAS,staff has determined that the project will need to be further extended in order to continue verifying and creating accurate pay codes,employee benefits,and organizational data to implement an efficient and verified system; and WHEREAS,staff has negotiated and prepared a second amendment to the Agreement (“Second Amendment”) to increase the contract amount by $250,000,for a total amount not to exceed amount of $500,000 and to extend the term to September 30,2018;such Second Amendment is attached hereto and incorporated herein as Exhibit A; and WHEREAS,$200,000 in salary savings have been encumbered and rolled to current the fiscal year to serve as a funding source for the HCM project; and WHEREAS,staff recommends that City Council authorize Budget Amendment 18.001 to transfer budget in the amount of $50,000 from salary savings at the end of Fiscal Year 2017-18 to fund the Second Amendment. NOW,THEREFORE,BE IT RESOLVED that the City Council of the City of South San Francisco hereby takes the following actions: 1.Approves the Second Amendment to the Agreement with Personnel Data Systems,Inc.,to extend the term to September 30,2018 and increase the contract amount to an amount not to exceed $500,000, attached hereto and incorporated herein as Exhibit A. 2.Authorizes the City Manager to execute said Second Amendment 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. City of South San Francisco Printed on 9/7/2017Page 1 of 2 powered by Legistar™ File #:17-876 Agenda Date:9/6/2017 Version:1 Item #:4a. 3.Authorizes the City Manager to take any other related action necessary to further the intent of this Resolution. 4.Approves Budget Amendment 18.001 in the amount of $50,000,which will be entered at the end of Fiscal Year 2017-18 when salary budget savings can be identified. ***** City of South San Francisco Printed on 9/7/2017Page 2 of 2 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-863 Agenda Date:9/6/2017 Version:1 Item #:5. Report regarding a resolution determining and declaring a prima facie speed limit of 15 miles per hour when children are present on Miller Avenue,between Holly Avenue and Gardenside Avenue,fronting Sunshine Gardens Elementary School. (Richard Cho, Senior Civil Engineer) RECOMMENDATION It is recommended that the City Council adopt a resolution determining and declaring a prima facie speed limit of 15 miles per hour when children are present on Miller Avenue,between Holly Avenue and Gardenside Avenue, fronting Sunshine Gardens Elementary School. BACKGROUND/DISCUSSION The City has received complaints from residents in the Sunshine Gardens neighborhood that vehicles have been speeding in front of Sunshine Gardens Elementary School.City staff has investigated the vehicular traffic in this area and recommends establishing a school zone by lowering the current speed limit to 15 miles per hour (mph). The California Vehicle Code (CVC)Section 22358.4(b)(1)(A)allows for the establishment of a school zone allowing for 15 mph in the street passing a school building or school grounds while children are present. Engineering staff completed a speed survey (please see Attachment 1)in August of 2017,per the California Vehicle Code (CVC)Section 627,and in accordance with the revised California Manual on Uniform Traffic Control Devices (CA MUTCD),to determine that the 85th percentile speed on Miller Avenue between Holly Avenue and Gardenside Avenue was recorded at 30 MPH.Therefore,the California Vehicle Code (CVC)under Section 22358.4(b)(1)(A)allows the lowering of the speed limit to 15 mph in front of a school when children are present.Staff recommends establishing a 15 mph school zone on Miller Avenue,between Holly Avenue and Gardenside Avenue,fronting Sunshine Elementary School when children are present.Please see Attachment 2 for a map of the area. Proper signage and markings will be installed once City Council adopts this resolution. FUNDING Any signage and markings are funded in Fiscal Year 2017-18 through the Miscellaneous Traffic Improvements Project (Project No. tr1704). CONCLUSION Adoption of this resolution will establish a school zone in front of Sunshine Gardens Elementary School.This will make it safer for students entering and leaving the school. City of South San Francisco Printed on 8/31/2017Page 1 of 2 powered by Legistar™ File #:17-863 Agenda Date:9/6/2017 Version:1 Item #:5. Attachments: 1.Speed Survey 2.Location Map of New School Zone City of South San Francisco Printed on 8/31/2017Page 2 of 2 powered by Legistar™ ATTACHMENT 1 City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-864 Agenda Date:9/6/2017 Version:1 Item #:5a. Resolution determining and declaring a prima facie speed limit of 15 miles per hour when children are present on Miller Avenue,between Holly Avenue and Gardenside Avenue,fronting Sunshine Gardens Elementary School. WHEREAS,the City has received complaints from residents in the Sunshine Gardens neighborhood that vehicles have been speeding in front of Sunshine Gardens Elementary School; and WHEREAS,City staff has investigated the complaints and recommend establishing a school zone speed limit by lowering the current speed limit to 15 miles per hour (mph); and WHEREAS,The California Vehicle Code (CVC)Section 22358.4(b)(1)(A)allows for the establishment of a school zone and a 15 mph speed limit; and WHEREAS,Engineering staff completed a speed survey in August of 2017,per the California Vehicle Code (CVC)Section 627,and in accordance with the revised California Manual on Uniform Traffic Control Devices (CA MUTCD)to determine the 85th percentile speed on Miller Avenue between Holly Avenue and Gardenside Avenue was recorded at 30 mph; and WHEREAS,the California Vehicle Code (CVC)under Section 22358.4(b)(1)(A)allows the lowering of the speed limit to 15 mph in front of a school when children are present. NOW,THEREFORE,BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council hereby resolution determines and declares a prima facie speed limit of 15 miles per hour when children are present on Miller Avenue,between Holly Avenue and Gardenside Avenue,fronting Sunshine Gardens Elementary School. ***** City of South San Francisco Printed on 9/7/2017Page 1 of 1 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-886 Agenda Date:9/6/2017 Version:1 Item #:6. Report regarding resolution approving the Debt Management Policy of the City of South San Francisco. (Richard Lee, Director of Finance) RECOMMENDATION It is recommended that the City Council adopt a resolution approving the Debt Management Policy of the City of South San Francisco. BACKGROUND/DISCUSSION Adoption of the Debt Management Policy represents the City’s efforts to adhere to best recommended practices and compliance with Government Code Section 8855(i),which became effective January 1,2017.Government Code section 8855 requires debt issuers to submit a report of the proposed issuance to the California Debt and Investment Advisory Commission (CDIAC).Within the report,the state or local government is required to certify that it has adopted a local debt policy concerning the use of debt,and that the proposed debt issuance is consistent with said policy. The provisions of the Debt Policy include the purposes for which debt may be issued,the types of debt that are allowable, continuing disclosure compliance, The Debt Management Policy also proactively positions the City in preparation for future debt issuances, including those contemplated for the wet weather capacity capital improvements at the Water Quality Control Plant, the Community Civic Campus and any related to Community Facility Districts. FISCAL IMPACT Adoption of the Debt Management Policy has no fiscal impact on the City. CONCLUSION Adoption of the Debt Management Policy aligns the City with best recommended practices,ensures compliance with state law, and proactively positions the City for future debt issuances. City of South San Francisco Printed on 8/31/2017Page 1 of 1 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-887 Agenda Date:9/6/2017 Version:1 Item #:6a. Resolution approving the Debt Management Policy of the City of South San Francisco WHEREAS,the City of South San Francisco (City)continues to promote and align with best recommended accounting practices; and WHEREAS,the state legislature recently adopted SB 1029 amending Government Code section 8855,to require local government agencies to submit reports to the California Debt and Investment Advisory Commission (CDIAC)no later than 30 days prior to the sale of any debt issuance,which would include certification that the local agency has adopted a local debt policy; and WHEREAS,the City requires debt issuance in the near term to finance the proposed Community Civic Campus, as well as any future Community Facilities Districts or other land secured financing tools; and WHEREAS,City staff recommends that the City Council adopt the Debt Management Policy,attached to this resolution as Exhibit A. NOW,THEREFORE,BE IT RESOLVED that the City Council of the City of South San Francisco does here by approve the Debt Management Policy for the City of South San Francisco, attached hereto as Exhibit A. BE IT FURTHER RESOLVED,that the City Council authorizes the City Manager,or his designee to make minor revisions,amendments,or modifications to the Debt Policy,consistent with the intent of California Government Code section 8855 and 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 authorizes the City Manager to take any other related action necessary to further the intent of this Resolution. ***** City of South San Francisco Printed on 9/7/2017Page 1 of 1 powered by Legistar™ 1 DEBT MANAGEMENT POLICY This Debt Management Policy (the “Debt Policy”) of the City of South San Francisco (the “Issuer”) was approved by the Issuer’s City Council on ________, 2017. The Debt Policy may be amended by the City Council as it deems appropriate from time to time in the prudent management of the debt of the Issuer. This Debt Policy applies to the Issuer and all subordinate entities of the Issuer for which the City Council serves as the governing board. 1.Findings This Debt Policy is intended to comply with Government Code Section 8855(i), effective on January 1, 2017, and shall govern all debt undertaken by the Issuer. The Issuer hereby recognizes that a fiscally prudent debt policy is required in order to: •Maintain the Issuer’s sound financial position. •Ensure the Issuer has the flexibility to respond to changes in future service priorities, revenue levels, and operating expenses. •Protect the Issuer’s credit-worthiness. •Ensure that all debt is structured in order to protect both current and future taxpayers, ratepayers and constituents of the Issuer. •Ensure that the Issuer’s debt is consistent with the Issuer’s planning goals and objectives and capital improvement program or budget, as applicable. 2.Policies A. Purposes For Which Debt May Be Issued (i) Long-Term Debt. Long-term debt may be issued to finance the construction, acquisition, and rehabilitation of capital improvements and facilities, equipment and land to be owned and operated by the Issuer. (a) Long-term debt financings are appropriate when the following conditions exist: •When the project to be financed is necessary to provide basic services. •When the project to be financed will provide benefit to constituents over multiple years. •W hen total debt does not constitute an unreasonable burden to the Issuer and its taxpayers and ratepayers. •W hen the debt is used to refinance outstanding debt in order to produce debt service savings or to realize the benefits of a debt restructuring. EXHIBIT A 2 (b) Long-term debt financings will not generally be considered appropriate for current operating expenses and routine maintenance expenses. (c) The Issuer may use long-term debt financings subject to the following conditions: • The project to be financed must be approved by the City Council. • The weighted average maturity of the debt (or the portion of the debt allocated to the project) will not exceed the average useful life of the project to be financed by more than 20%. • The Issuer estimates that sufficient revenues will be available to service the debt through its maturity. • The Issuer determines that the issuance of the debt will comply with the applicable state and federal law. (ii) Short-term debt. Short-term debt may be issued to provide financing for the Issuer’s operational cash flows in order to maintain a steady and even cash flow balance. Short-term debt may also be used to finance short-lived capital projects; for example, the Issuer may undertake lease-purchase financing for equipment. (iii) Financings on Behalf of Other Entities. The Issuer may also find it beneficial to issue debt on behalf of other governmental agencies or private third parties in order to further the public purposes of Issuer. In such cases, the Issuer shall take reasonable steps to confirm the financial feasibility of the project to be financed and the financial solvency of any borrower and that the issuance of such debt is consistent with the policies set forth herein. B. Types of Debt The following types of debt are allowable under this Debt Policy: • general obligation bonds • bond or grant anticipation notes • lease revenue bonds, certificates of participation and lease-purchase transactions • other revenue bonds and certificates of participation • tax and revenue anticipation notes • land-secured financings, such as special tax revenue bonds issued under the Mello-Roos Community Facilities Act of 1982, as amended, and limited obligation bonds issued under applicable assessment statutes • tax increment financing to the extent permitted under state law • conduit financings, such as financings for affordable rental housing and qualified 501c3 organizations 3 The Issuer may from time to time find that other forms of debt would be beneficial to further its public purposes and may approve such debt without an amendment of this Debt Policy. Debt shall be issued as fixed rate debt unless the Issuer makes a specific determination as to why a variable rate issue would be beneficial to the Issuer in a specific circumstance. C. Relationship of Debt to Capital Improvement Program and Budget The Issuer is committed to long-term capital planning. The Issuer intends to issue debt for the purposes stated in this Debt Policy and to implement policy decisions incorporated in the Issuer’s capital budget and the capital improvement plan. The Issuer shall strive to fund the upkeep and maintenance of its infrastructure and facilities due to normal wear and tear through the expenditure of available operating revenues. The Issuer shall seek to avoid the use of debt to fund infrastructure and facilities improvements that are the result of normal wear and tear. The Issuer shall integrate its debt issuances with the goals of its capital improvement program by timing the issuance of debt to ensure that projects are available when needed in furtherance of the Issuer’s public purposes. The Issuer shall seek to avoid the use of debt to fund infrastructure and facilities improvements in circumstances when the sole purpose of such debt financing is to reduce annual budgetary expenditures. The Issuer shall seek to issue debt in a timely manner to avoid having to make unplanned expenditures for capital improvements or equipment from its general fund. D. Policy Goals Related to Planning Goals and Objectives The Issuer is committed to long-term financial planning, maintaining appropriate reserves levels and employing prudent practices in governance, management and budget administration. The Issuer intends to issue debt for the purposes stated in this Policy and to implement policy decisions incorporated in the Issuer’s annual operations budget. It is a policy goal of the Issuer to protect taxpayers, ratepayers and constituents by utilizing conservative financing methods and techniques so as to obtain the highest practical credit ratings (if applicable) and the lowest practical borrowing costs. The Issuer will comply with applicable state and federal law as it pertains to the maximum term of debt and the procedures for levying and imposing any related taxes, assessments, rates and charges. When refinancing debt, it shall be the policy goal of the Issuer to realize, whenever possible, and subject to any overriding non-financial policy considerations, (i) minimum net present value debt service savings equal to or greater than 3.0% of the refunded principal amount, and (ii) present value debt service savings equal to or greater than 100% of any escrow fund negative arbitrage. 4 E. Internal Control Procedures When issuing debt, in addition to complying with the terms of this Debt Policy, the Issuer shall comply with any other applicable policies regarding initial bond disclosure, continuing disclosure, post-issuance compliance, and investment of bond proceeds. The Issuer will periodically review the requirements of and will remain in compliance with the following: • any continuing disclosure undertakings under SEC Rule 15c2-12, • any federal tax compliance requirements, including without limitation arbitrage and rebate compliance, related to any prior bond issues, and • the Issuer’s investment policies as they relate to the investment of bond proceeds. Proceeds of debt will be held either (a) by a third-party trustee, which will disburse such proceeds to the Issuer upon the submission of one or more written requisitions, or (b) by the Issuer, to be held and accounted for in a separate fund or account, the expenditure of which will be carefully documented by the Issuer. City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-869 Agenda Date:9/6/2017 Version:1 Item #:7. Report regarding a resolution approving the City Council’s response to the San Mateo County Civil Grand Jury Report,dated July 12,2017,entitled “A Delicate Balance:Privacy vs.Protection”,and authorizing the City Manager to send the response letter on behalf of the City Council.(Jeff Azzopardi, Police Chief) RECOMMENDATION It is recommended that the City Council approve the responses and authorize the City Manager to send the response letter to the Presiding Judge of the Superior Court of San Mateo County on behalf of the City. BACKGROUND/DISCUSSION The 2016-17 San Mateo County Civil Grand Jury (“Grand Jury”)issued a report titled,“A Delicate Balance: Privacy vs.Protection”(please see Attachment 1).The Grand Jury report deals with the issue of how local law enforcement agencies in San Mateo County balance constituents’desire for privacy with the agencies’use of surveillance tools in their efforts to protect the public.In issuing the report,the Grand Jury issued five findings and three recommendations.The report requires the South San Francisco City Council to respond to each finding and recommendation. The Grand Jury’s findings are as follows: F1.The County of Santa Clara passed an ordinance in 2016 requiring agencies to adopt policies related to any surveillance technology before such technology is acquired or activated.The ordinance also requires agencies to issue annual reports explaining how the technologies are used and what they discovered. F2.The County and cities in San Mateo County have not enacted any ordinances governing their acquisition and use of surveillance technology,or the accessibility,management,or retention of the information acquired. F3.The County and cities in San Mateo County do inform residents about the use of some surveillance tools (Automated License Plate Readers and Body Worn Cameras)at public forums and city council meetings: ·City or Town Council meeting or staff reports posted on website:Atherton,Burlingame,Daly City,East Palo Alto,Hillsborough,Menlo Park,Pacifica,Redwood City,San Bruno,San Carlos, San Mateo, South San Francisco City of South San Francisco Printed on 8/31/2017Page 1 of 3 powered by Legistar™ File #:17-869 Agenda Date:9/6/2017 Version:1 Item #:7. ·Public meeting or Town Halls:East Palo Alto,Hillsborough,Menlo Park,Redwood City,San Carlos, Sheriff’s Office ·The City of Menlo Park mentioned also having used social media for this purpose. F4.With the exception of Burlingame,which borrowed ALPR technology,the cities and the San Mateo County Sheriff’s Office have complied with the law requiring ALPR users to “conspicuously” post a link to the ALPR usage and privacy policy on their websites. F5.With the exception of the City of San Mateo,the generic ALPR policies posted by cities and the Sheriff’s Office do not provide specific information that helpful to residents. The Grand Jury’s Recommendations include: R1.In addition to providing a conspicuous link to usage and privacy policies on operator websites (as required by law for ALPRs),all law enforcement agencies in the County should create an easily accessible and simply written information webpage by December 31,2017,which lists the types of surveillance tools (such as ALPRs)and investigative tools (such as ShotSpotter and body worn cameras)utilized by the agency.At a minimum,such a webpage shall include these details about each tool: o What is the use and purpose of the technology,such as assisting in ongoing criminal investigations, locating missing children, or locating stolen vehicles o Who is authorized to collect or access the data collected o How the system is monitored to ensure that the data are secure o Who owns the surveillance technology o What measures were taken to ensure the accuracy of the data o How long the data will be retained R2.All law enforcement agencies in the County shall increase the number and types of opportunities for community members to voice support for or opposition to any proposed addition of new surveillance technologies including, but not limited to: o Surveying residents to better understand their concerns about law enforcement’s use of surveillance tools and address those concerns in public meetings,Town Halls, Neighborhood Watch sessions and other local gatherings. o Using social media platforms such as Nextdoor©to keep residents engaged and informed about surveillance technologies and its uses in your community. R3.Staff shall bring to the city or town council (in the case of a police department or police bureau)or City of South San Francisco Printed on 8/31/2017Page 2 of 3 powered by Legistar™ File #:17-869 Agenda Date:9/6/2017 Version:1 Item #:7. R3.Staff shall bring to the city or town council (in the case of a police department or police bureau)or the Board of Supervisors (in the case of the Sheriff’s Office)a policy or ordinance for consideration at a public meeting by December 31,2017.Such ordinances or policies should require, at a minimum: o Plans to acquire new surveillance technology be announced at public meetings and other forums to ensure that the community is aware and engaged when new technology is under consideration. o Any “use policies”related to surveillance technology be readily available and easy to access on the city or County websites. o Oversight and accountability be supported by posting periodic reports on the effectiveness of the surveillance tools used in the community Staff has reviewed the findings and recommendations and has prepared a draft response letter for City Council approval;please see Exhibit A attached to the associated resolution.In summary,staff agrees with findings two, three,and four of the Grand Jury report.Staff determined that they did not have enough information to opine on the first recommendation and are reevaluating the information contained in finding five. Furthermore,staff has determined that partial implementation of the first two recommendations within the report are feasible.However,portions of recommendations one and two,and all of recommendation three,are already addressed by statute.Staff recommends that existing processes that adhere to existing legislative requirements remain in place. FISCAL IMPACT There is no fiscal impact associated with this action. CONCLUSION It is recommended that the City Council approve the responses contained in the response letter and authorize the City Manager to send letter to the Presiding Judge of the Superior Court of San Mateo County on behalf of the City Council. Attachment: San Mateo County Civil Grand Jury report “A Delicate Balance: Privacy vs. Protection” City of South San Francisco Printed on 8/31/2017Page 3 of 3 powered by Legistar™ 2016-2017 San Mateo County Civil Grand Jury 1 A DELICATE BALANCE: PRIVACY VS. PROTECTION Issue | Summary | Methodology | Glossary | Background | Discussion | Findings Recommendations | Requests for Responses | Bibliography | Appendixes | Responses ISSUE How do local law enforcement agencies in San Mateo County balance their constituents’ desire for privacy with the agencies’ use of surveillance tools in their efforts to protect the public? SUMMARY Finding that delicate balance between a community’s desire for privacy and the ability of police and the Sheriff to protect that same community is both a challenge and a necessity. The American Civil Liberties Union (ACLU) states: “Communities must be equal partners in any decision about the use of surveillance technology. They need to know when and why surveillance is being considered, what it is intended to do, and what it will really cost — both in dollars and in individual rights.”1 Many local police departments and the San Mateo County Sheriff’s Office (Sheriff’s Office) have purchased or borrowed surveillance tools, such as Automated License Plate Readers (ALPRs). They also use tools, such as in-dash video cameras for patrol cars, body-worn cameras, and ShotSpotter2 to help them protect residents. These devices can provide evidence to identify and prosecute individuals who commit crimes. To understand the spread of these new technologies and their impact on communities, the 2016- 2017 San Mateo County Civil Grand Jury (Grand Jury) sent a survey to the Sheriff’s Office, the Broadmoor Police Protection District, and 17 other law enforcement agencies throughout the County.3 Survey questions probed for information and details concerning the types of surveillance technology used; policies for collecting, managing, and storing data; and steps taken to ensure public awareness. The Grand Jury also checked whether law enforcement websites posted easily accessible policies for these tools online. Based on the results of its survey, and its review of policies enacted by various local jurisdictions, the Grand Jury recommends that local law enforcement agencies take additional steps to inform and notify residents when considering plans to purchase and install surveillance technology. Additionally, local law enforcement agencies, and their city councils, should adopt policies and ordinances, with community input, which reflect the communities’ desire to balance their safety and privacy. These policies should be posted in a conspicuous place on the agencies’ websites. 1 ACLU of Northern California, “Making Smart Decisions about Surveillance: A Guide for community Transparency, Accountability and Oversight,” April 2016. https://www.aclunc.org/docs/20160325- making_smart_decisions_about_surveillance.pdf. 2 Shotspotter is a system that detects and sends the location of gunfire or other weapons using acoustic, optical, or other types of sensors. 3 Recipients of survey: Sheriff’s Office, the Broadmoor Police Protection District, and the law enforcement agencies of the cities and towns of Atherton, Belmont, Brisbane, Burlingame, Colma, Daly City, East Palo Alto, Foster City, Hillsborough, Menlo Park, Millbrae, Pacifica, Redwood City, San Bruno, San Carlos, San Mateo (city), and South San Francisco. 2016-2017 San Mateo County Civil Grand Jury 2 METHODOLOGY The Grand Jury conducted an extensive survey of police agencies in San Mateo County to determine: • The types of surveillance technology used in the jurisdiction • The agency’s policies for collecting, managing, and storing surveillance data • The precautions taken by the agency to ensure public awareness • Any forthcoming plans by cities or the County for ordinances related to the purchase and deployment of new or borrowed surveillance technology The Grand Jury also consulted local, state, and federal government websites for background information, and reviewed relevant publications. GLOSSARY Automated License Plate Readers (ALPRs): These computer-controlled, high-speed camera systems—generally mounted on police cars or on fixed objects such as light poles— automatically capture an image of every license plate that comes into its view. ALPRs record data on each plate they scan, including not only the plate number but also the precise time, date and place it was encountered.4 Body-worn cameras (BWCs): These small cameras worn by law enforcement officers record audio and video. Some types of cameras are always on; other types can be turned on and off by the wearer. Cell-site simulators: These devices, commonly known as International Mobile Subscriber Identity (IMSI) catchers or “Stingrays,” mimic cellphone towers, forcing nearby cellphones into connecting to the device. The cell-site simulator logs the IMSI numbers of cellphones in the area or captures the content of communications.5 International Mobile Subscriber Identity (IMSI) catchers: These devices are used in the United States and other countries by law enforcement and intelligence agencies to intercept cellphone traffic and track the movements of cellphone users. ShotSpotter: These systems detect and send the location of gunfire or other weapons using acoustic, optical, or other types of sensors. Video surveillance: These camera systems are used to observe and record activities, with or without audio, in public spaces. Live camera feeds can spot crimes in real time, and video recordings can be used in investigations and at trial. 4 “Street-Level Surveillance: Automated License Plate Readers,” Electronic Frontier Foundation, accessed May 23, 2017. https://www.eff.org/sls/tech/automated-license-plate-readers. 5 “Street-Level Surveillance: Cell-site Simulators,” Electronic Frontier Foundation, accessed May 23, 2017. https://www.eff.org/sls/tech/cell-site-simulators. 2016-2017 San Mateo County Civil Grand Jury 3 BACKGROUND Surveillance tools are everywhere: Video cameras are in stores, public buildings, even at a neighbor’s front door. Advances in surveillance technology have assisted law enforcement in investigating mass shootings, tracking terrorists, and finding lost children. As valued as these new surveillance tools are to law enforcement, privacy experts say that innocent people may be targeted.6 “You have very powerful systems being purchased, most often in secret, with little-to-no public debate and no process in place to make sure that there are policies in place to safeguard community members,” said Nicole Ozer, technology and civil liberties policy director for the American Civil Liberties Union (ACLU) of California.7 Recent studies show8 that the public believes it should have a say in how surveillance technology is used. With the issues of privacy and surveillance prominent in the news in recent years, Tulchin Research conducted a California statewide survey9 in 2015 for the ACLU of California Center for Advocacy and Policy. Tulchin was charged with assessing how likely voters think and feel about criminal justice and law enforcement, including how police use surveillance technology to track Internet, text, email, and other digital activity using handheld devices and computers. Tulchin found that two-thirds of voters would prefer to see local elected officials, such as city council members or county supervisors, approve new surveillance technologies before the devices are deployed (67% support). Similarly, voters want to see policies which set limits on surveillance use both locally (65%) and statewide (64%). The survey also indicated that voters want accountability from law enforcement agencies regarding the frequency of use of surveillance technologies (62%). The public also wants public notification before the purchase of new surveillance technologies (58%).10 Public opinion in the Bay Area on surveillance Although the Grand Jury did not find any surveys of public opinion in San Mateo County on surveillance issues, the balancing of protection vs. privacy has been a subject of interest in the Bay Area. In 2015, The Center for Investigative Reporting11 and three local artists12 collaborated on the arts and journalism project “Eyes on Oakland.”13 The reporters and the artists visited neighborhoods across the city of Oakland informing residents about surveillance technology. Hundreds of residents participated by completing questionnaires. Participants were asked to respond to the prompt: “Surveillance is…” 6 Marisa Kendall, “Surveillance in Silicon Valley is hard to avoid,” San Jose Mercury News, February 9, 2017. http://www.mercurynews.com/2017/02/09/surveillance-in-silicon-valley-whos-watching-you/. 7 Ibid. 8 For information about Tulchin Research, go to http://www.tulchinresearch.com. 9 See Appendix B. 10 Tulchin Research, “California Statewide Survey Finds Voters Concerned about Privacy and Want to See Reforms Made to Surveillance Technology Use by Law Enforcement,” August 21, 2015, http://www.aclunc.org/docs/20150821- aclu_surveillance_privacy_polling.pdf. 11 For information about The Center for Investigative Reporting, go to https://www.revealnews.org/, accessed May 23, 2017. 12Aaron McKenzie, Chris Treggiari and Peter Foucault 13 For information on the “Eyes on Oakland” project, go to http://eyesonoakland.tumblr.com/, assessed June 8, 2017. 2016-2017 San Mateo County Civil Grand Jury 4 Here is a sampling of the responses: • Surveillance is: questionable • Surveillance is: important • Surveillance can be used against a peaceful public • Surveillance is: Technology run amok. Just because we can do it, should we do it? • Surveillance is: Everywhere. Privacy is a myth in the digital era • Surveillance is: State violence • Surveillance is: Not a solution to the systemic problems that create crime and violence. Surveillance No! Education, Equity and Respect, Yes! • Surveillance is: Great!!! Bring it on. It’s for my safety, your safety. Nothing to hide14 Privacy advocates have pointed out the impact that surveillance technology may have on residents: “Our concerns stem from the fact that license plate readers can scan and collect the information of innocent people, innocent drivers,” said Chris Conley, a policy attorney with the ACLU of Northern California. “Location information can reveal very sensitive information about people. If they’re visiting a church, or a clinic or even open-mic night at a bar, all of these things reveal information about a person that shouldn’t be sitting in a database somewhere.”15 Case in point: One San Leandro resident’s eye-opening experience After learning that the city of San Leandro had purchased an ALPR for its Police Department in 2008, computer security consultant Michael Katz-Lacabe asked city officials to send him a record of every instance the scanners photographed his car. An article on sfgate.com describes what Mr. Katz-Lacabe learned: The results shocked him. The paperback-size device, installed on the outside of police cars, can log thousands of license plates in an eight-hour patrol shift. Katz-Lacabe said it had photographed his two cars on 112 occasions, including one image from 2009 that shows him and his daughters stepping out of his Toyota Prius in their driveway. That photograph, Katz-Lacabe said, made him "frightened and concerned about the magnitude of police surveillance and data collection." The single patrol car in San Leandro equipped with a plate reader had logged his car once a week on average, photographing his license plate and documenting the time and location.16 14 Cole Goins, “What Oakland, California, residents think about police surveillance,” Reveal from the Center for Investigative Reporting, August 18, 2015. https://www.revealnews.org/article/what-oakland-california-residents-think-about-police- surveillance/. 15 Samantha Weigel, “Who’s watching who?: License plate readers used throughout San Mateo County,” The Daily Journal, April 8, 2015. http://www.smdailyjournal.com/articles/lnews/2015-04-08/whos-watching-who-license-plate-readers-used- throughout-san-mateo-county/1776425141346.html 16 Ali Winston, “License plate readers tracking cars,” SFGate, June 25, 2013. http://www.sfgate.com/bayarea/article/License- plate-readers-tracking-cars-4622476.php. 2016-2017 San Mateo County Civil Grand Jury 5 Legislation The California Constitution provides for a citizen’s right to privacy.17 State lawmakers are addressing this right as it relates to surveillance systems. In 2015, California lawmakers passed two laws concerning surveillance.18 • SB 741 (2015) Mobile Communications: Privacy19 “Cell-site simulators,” sometimes called International Mobile Subscriber Identity (IMSI) catchers or Stingrays, trick cellphones into connecting to them as they would to a local cellphone tower. This connection enables the simulator to capture an IMSI number (a unique number used to identify a user on the cellular network), the current location, and perhaps the content of the conversation. In general, law enforcement uses cell-site simulators to locate known suspects. A cell-site simulator casts a wide net, collecting all the IMSI numbers in an area until it locates the IMSI number that law enforcement is searching for. Also swept up are the location and IMSI numbers of all cellphones that happen to be nearby.20 Effective January 1, 2016, SB 741, written by Senator Jerry Hill, D – San Mateo, imposes restrictions and requirements on data collected by cell-site simulators and how those data are managed and shared. According to the Electronic Frontier Foundation,21 any public agency using a cell-site simulator must: • Secure and protect the collected data from “unauthorized access, destruction, use, modification, or disclosure.”22 • Adopt a usage and privacy policy that is “consistent with respect for any individual’s privacy and civil liberties.”23 • Obtain approval of the legislative body (for example, the City Council) to acquire such systems and alert the community about the device through a public process. This requirement does not apply to Sheriff’s Offices, which must instead provide public notice online that they have acquired such devices.24 Note: None of the respondents to the Grand Jury’s survey currently use or have plans to acquire a cell-site simulator. 17 California Constitution, Section 1. https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CONS&division=&title=&part=&chapter=&article=I. 18 ACLU of Northern California Making Smart Decisions about Surveillance: A Guide for community Transparency, Accountability and Oversight. April, 2016, 8-9. https://www.aclunc.org/docs/20160325- making_smart_decisions_about_surveillance.pdf 19 California Government Code Section 53166. 20 Stephanie LaCambra, “Congressional Oversight Committee Wants to Rein in Police Abuse of Cell-Site Simulators,” Electronic Frontier Foundation DeepLinks (blog). https://www.eff.org/deeplinks/2017/02/bipartisan-congressional-oversight- committee-wants-probable-cause-warrants-0. 21 David Maass, “Success in Sacramento: Four New Laws, One Veto—All Victories for Privacy and Transparency,” accessed June 2, 2017. https://www.eff.org/deeplinks/2015/10/success-sacramento-four-new-laws-one-veto-all-victories-privacy-and- transparency. 22 Ibid. 23 Ibid. 24 Ibid. 2016-2017 San Mateo County Civil Grand Jury 6 • SB 34 (2015) Automated License Plate Recognition Systems: Use of Data25 Effective January 2, 2016, SB 34, also authored by Senator Jerry Hill, D – San Mateo, requires agencies that collect data using ALPRs or access ALPR data to publish their privacy and usage policies. Specifically, such policies shall be available to the public in writing, and, if the ALPR operator has an Internet Web site, the usage and privacy policy shall be posted conspicuously on that Internet Web site.26 In a 2015 San Jose Mercury News article,27 Senator Hill told reporters that approximately 60 law enforcement and public safety agencies in California were using ALPRs. At that time, however, only 8 of the agencies asked for public comment and only 16 published their ALPR policies for review by the public. Hill said agencies must “…have a policy in place on how they’re going to use it, what they’re going do with the info and how secure it will be. Today there is none of that.”28 According to an analysis of the law by the Electronic Frontier Foundation, cities and counties using ALPRs are now required to provide this information:29 • The authorized purposes for using the ALPR system and collecting ALPR information. • A description of the job title or other designation of the employees and independent contractors who are authorized to use or access the ALPR system, or to collect ALPR information. The policy shall identify the training requirements necessary for those authorized employees and independent contractors. • A description of how the ALPR system will be monitored to ensure the security of the information and compliance with applicable privacy laws. • The purposes of, process for, and restrictions on the sale, sharing, or transfer of ALPR information to other persons. • The title of the official custodian, or owner, of the ALPR system responsible for implementing this section. • A description of the reasonable measures that will be used to ensure the accuracy of ALPR information and correct data errors. • The length of time ALPR information will be retained and the process the ALPR operator will utilize to determine if and when to destroy retained ALPR information.30 25 California Civil Code sections 1798.29, 1798.82, and 1798.90 26 California Civil Code section 1798.90.51 27 Tracy Seipel and Eric Kurhi, “California Digital Privacy Laws Boosted Protecting Consumers from Big Brother, Big Business.” 28 Ibid. 29 “California Automatic License Plate Reader Policies,” Electronic Frontier Foundation, accessed March 30, 2017. https://www.eff.org/pages/california-automated-license-plate-reader-policies. 30 California Civil Code, sec. 1798.90.51 2016-2017 San Mateo County Civil Grand Jury 7 Note: Nine of the respondents to the Grand Jury’s survey currently use or have borrowed ALPRs. DISCUSSION The 2016-2017 San Mateo County Civil Grand Jury (Grand Jury) surveyed 19 local law enforcement agencies31 regarding their surveillance technology. The survey questions addressed these topics: • Types of surveillance technology used in the jurisdiction • Policies for collecting, managing, and storing surveillance data • Precautions taken to ensure public trust • Proposals made for a local ordinance related to the purchase and deployment of new or borrowed surveillance technology With the exception of Broadmoor,32 Colma, and Millbrae, every city and town responding to the Grand Jury survey uses some form of surveillance technology. The devices range from video cameras in police stations to more sophisticated tools, such as ALPRs. The San Mateo County Sheriff’s Office uses ALPRs and ShotSpotter. A closer look: Policies for BWCs and ALPRs The 2015-16 Grand Jury investigated and reported on body camera usage in the County.33 At the time that report was written, five police departments used body worn cameras (BWCs): Atherton, Belmont, Foster City, Hillsborough and Menlo Park. Today, 14 police departments and the Sheriff’s Office use BWCs, have purchased, or plan to implement them. Currently, Menlo Park is the only law enforcement agency in this group with a policy statement relating to the use of BWC available online. 31Recipients of survey: Sheriff’s Office, the Broadmoor Police Protection District, and the police departments of the cities and towns of Atherton, Belmont, Brisbane, Burlingame, Colma, Daly City, East Palo Alto, Foster City, Hillsborough, Menlo Park, Millbrae, Pacifica, Redwood City, San Bruno, San Carlos, San Mateo (city), and South San Francisco. 32Broadmoor Police Protection District used BWCs for a six-month period (with voluntary participation by officers). 33 San Mateo County Civil Grand Jury 2015-16, “Body Cameras—The Reel Issue,” https://www.sanmateocourt.org/documents/grand_jury/2015/body_camera.pdf. 2016-2017 San Mateo County Civil Grand Jury 8 City/Jurisdiction When Implemented Expected Implementation Policy Available Online? Foster City 2012 Contact Police Department for policy* Atherton Prior to 2016 Contact Police Department for policy* Belmont Prior to 2016 Contact Police Department for policy* Hillsborough Prior to 2016 Contact Police Department for policy* Menlo Park Prior to 2016 Policy available online, in Menlo Park Police Department Policy Manual† Implementation Coming This Year‡ San Bruno 6/17¶ Not applicable South San Francisco 7/17¶ Not applicable Sheriff 10/17‡ Not applicable Brisbane 10/17‡ Not applicable Burlingame 10/17¶ Not applicable Colma 10/17¶ Not applicable Pacifica 10/17‡ Not applicable San Mateo 10/17‡ Not applicable Redwood City 12/17¶ Not applicable East Palo Alto Fiscal Year 2017-2018‡ Not applicable No Plans to Purchase BWCs Broadmoor Daly City *San Mateo County Grand Jury 2015-2016, “Body Cameras—The Reel Truth,”. https://www.sanmateocourt.org/documents/grand_jury/2015/body_camera.pdf. †Menlo Park Police Department Policy Manual Policy 450, accessed May 31, 2017. https://www.menlopark.org/950/Department-policies. ‡San Mateo County Grand Jury 2016-2017, “Summary of Responses to the 2015-2016 San Mateo County Civil Grand Jury Final Reports.” https://www.sanmateocourt.org/documents/grand_jury/2016/2015-2016Summary.pdf ¶San Mateo County Grand Jury 2016-2017, “Summary of Responses to the 2015-2016 San Mateo County Civil Grand Jury Final Reports, (Second Summary).” As of June 6, 2017, this report is not yet available online. 2016-2017 San Mateo County Civil Grand Jury 9 Survey results revealed that 9 of 19 law enforcement agencies queried in San Mateo County either own or have temporarily borrowed ALPRs. The Grand Jury reviewed the websites of those nine agencies to determine whether they were in compliance with California Civil Code, sec. 1798.90.51, which was added pursuant to SB 34. Section 1798.90.51 requires that “The usage and privacy policy shall be available to the public in writing, and, if the ALPR operator has an Internet Web site, the usage and privacy policy shall be posted conspicuously on that Internet Web site.”34 The Grand Jury found as follows: Law Enforcement Agency ALPR Policy Conspicuously Placed? Sheriff Yes. However, the link to the policy is labeled “ALPR Policy.” County residents may not be familiar with the acronym. Burlingame No. Policy is not available on website. Burlingame does not own ALPRs, but has used the equipment on an ad hoc basis in connection with specific investigations. If an agency temporarily borrows an ALPR, it is still required to provide a link on its website to a policy statement. No such policy statement is available on the Burlingame police department website. Daly City Yes. Hillsborough No. Policy is available on the website but not located in a conspicuous place. To find the policy requires searching the website or reading through a long list of FAQs. Menlo Park No. Policy is available on the website but not located in a conspicuous place. To find the policy requires searching through the online Police Department Policy Manual. San Bruno Yes. San Carlos No. Policy is not available on the website.35 San Mateo Yes. South San Francisco Yes. 34 California Civil Code, sec. 1798.90.51 35 The City of San Carlos purchased the ALPRs but the Sheriff’s Office provides police services to the city and operates the vehicle with the ALPR equipment. No link to an ALPR policy is on the San Carlos Police Bureau webpage, nor does that page direct the public to the Sheriff’s Office website for the ALPR policy. 2016-2017 San Mateo County Civil Grand Jury 10 In San Mateo County, all law enforcement agencies send the data they collect from ALPRs to the Northern California Regional Intelligence Center (NCRIC).36 Congress established the NCRIC in 2007, after the Bay Area was designated a high intensity drug trafficking region.37 NCRIC’s reach extends from Monterey County to Del Norte County,38 covering 15 counties in California.39 NCRIC is known as an “intelligence fusion center” which, according to the Department of Homeland Security, “…operate[s] as state and major urban area focal points for the receipt, analysis, gathering, and sharing of threat-related information between federal, state, local, tribal, territorial (SLTT), and private sector partners.”40 Access to the NCRIC41 data is strictly regulated insofar as only law enforcement personnel who meet these criteria may use the database: • Have agreed to the NCRIC privacy policy and non-disclosure agreement • Can provide a criminal case or incident name/number • Have a lawful purpose with a “need to know”42 and a “right to know”43 the information. One common use of APLRs is to compare the license plate numbers collected against a “hot list.” This list contains the license plate information of vehicles associated with active investigations, such as Amber Alerts, missing persons, stolen vehicles, or stolen license plates.44 36 Samantha Weigel, “Who’s watching who?: License plate readers used throughout San Mateo County,” The Daily Journal, April 8, 2015. http://www.smdailyjournal.com/articles/lnews/2015-04-08/whos-watching-who-license-plate-readers-used- throughout-san-mateo-county/1776425141346.html 37 “How the NCRIC was Established,” NCRIC Northern California Regional Intelligence Center, accessed April 19, 2017..https://ncric.org/default.aspx?MenuItemID=122&MenuGroup=NCRIC+Public+Home&AspxAutoDetectCookieSupport=1 38 Ibid. 39 Del Norte, Humboldt, Mendocino, Lake, Napa, Sonoma, Marin, San Francisco, Contra Costa, San Mateo, Alameda, Santa Cruz, Santa Clara, San Benito, Monterey Counties. See a map here of the area here: https://ncric.org/default.aspx?menuitemid=633&menugroup=NCRIC+Public+Home, accessed May 18, 2017. 40 “State and Major Urban Area Fusion Centers,” U.S. Department of Homeland Security, accessed March 30, 2017. https://www.dhs.gov/state-and-major-urban-area-fusion-centers. 41 NCRIC Northern California Regional Intelligence Center. “Frequently Asked Questions,” https://ncric.org/html/ALPR-FAQ- Feb-2015.pdf, accessed May 17, 2017. 42 According to the NCRIC “Frequently Asked Questions,” Need to know “…is established when the requested information is pertinent and necessary to the requesting agency in initiating, furthering, or completing the performance of a law enforcement activity. https://ncric.org/html/ALPR-FAQ-Feb-2015.pdf, accessed May 18, 2017. 43 According to the NCRIC “Frequently Asked Questions, Right to know “…is established when the requester is acting in an official capacity and has statutory authority to obtain the information being sought.” https://ncric.org/html/ALPR-FAQ-Feb-2015.pdf, accessed May 18, 2017. 44 “NCRIC ALPR FAQs,” https://ncric.org/html/ALPR-FAQ-Feb-2015.pdf, accessed May 18, 2017. 2016-2017 San Mateo County Civil Grand Jury 11 According to The Daily Journal, ALPRs in San Mateo County, and Northern California generally, collect massive amounts of data:45 • In a 12-hour shift, one of the City of San Mateo’s two ALPR-equipped patrol cars accumulated nearly 10,000 images from four cameras mounted on the roof of the cars (even in the dark).46 • In one year, NCRIC amassed around 46.5 million images from its partner agencies.47 The data are purged every 12 months, except for those records connected to a crime, which can be held for up to five years. Law enforcement places a high value on the amount and quality of the data they collect from the ALPRs. For example, San Mateo Police Chief Susan Manheimer informed the Daily Journal: “I can’t overestimate how important it really is. They’re not looking at them for collecting data to know where our neighbors travel, we’re specifically looking for cars involved in specific crimes.”48 As the Grand Jury discovered, seven of the nine County law enforcement agencies using ALPRs have a link on their websites to a policy statement. This policy, in all cases, with the exception of Menlo Park, is a boilerplate statement provided by NCRIC.49 The information in this generic document does not really provide the level of detail that would be helpful to someone looking for specific information. For instance, the law states that the policy shall include: (E) The title of the official custodian, or owner, of the ALPR system responsible for implementing this section.”50 The NCRIC policy provides the following information regarding “custodians”:51 Custodian of Records and Records Requests Each agency operating ALPR technology retains control and ownership as the official custodian of its records, and must independently verify all external information obtained via NCRIC Information Systems. To the extent permitted by law, requests for information under the California Public Records Act or similar applicable laws will be directed back to the owner of the requested data. The City of San Mateo Police Department’s website provides an example of a well-executed and well-publicized policy in this regard. The police department currently uses ALPRs and, in addition to a link to the NCRIC policy statement, its website provides helpful information for 45 Samantha Weigel, “Who’s watching who?: License plate readers used throughout San Mateo County,” The Daily Journal, April 8, 2015. http://www.smdailyjournal.com/articles/lnews/2015-04-08/whos-watching-who-license-plate-readers-used- throughout-san-mateo-county/1776425141346.html 46 Ibid. 47 Ibid. 48 Ibid. 49 See Appendix A for text of “NCRIC Automated License Plate Reader Policy.” 50 California Civil Code, sec. 1798.90.51 51 NCRIC, “NCRIC Automated License Plate Reader Policy. “https://ncric.org//html/NCRIC%20ALPR%20POLICY.pdf. 2016-2017 San Mateo County Civil Grand Jury 12 residents wanting to learn about how ALPRs are used in the city.52 The explanation of the City of San Mateo’s use of ALPRs and links to background information, such as the answers to frequently asked questions help those not in law enforcement to better understand the purpose of ALPRs. Interacting with the Community and Building Trust According to the Grand Jury survey results, the only opportunity that residents may have to comment on the desirability of surveillance technology is at city council meetings. This table shows the responses to the question: “Before purchasing the technology, did you inform residents of your intention to acquire surveillance tools?”53 Respondents listed the types of interactions they used to connect with community members. City Response† Atherton Burlingame Daly City East Palo Alto Hillsborough Menlo Park Pacifica Redwood City San Bruno San Carlos San Mateo South San Francisco City or Town Council meetings, staff reports posted on city website 52 “Vehicle License Plate Readers,” San Mateo Police Department, accessed May 6, 2017. http://www.cityofsanmateo.org/index.aspx?nid=3211. 53 For the actual survey responses to the question “Before purchasing the technology, did you inform residents of your intention to acquire surveillance tools?” see Appendix C. 2016-2017 San Mateo County Civil Grand Jury 13 City Response† East Palo Alto Hillsborough Menlo Park Redwood City San Carlos Sheriff’s Office Public meetings, Town Halls Menlo Park* Social media Brisbane Foster City Did not reach out to residents * Colma, Pacifica, and South San Francisco stated in the survey that in the future they would use social media to inform residents. †Some cities stated they did not reach out to residents (Brisbane and Foster City). Belmont responded that the city did reach out, but did not provide any examples. Broadmoor Police Protection District, Colma, and Millbrae currently use surveillance tools, so this question did not apply to them. Planning by cities or the County to introduce ordinances to manage surveillance technology According to the Grand Jury survey, neither the County nor any cities in San Mateo County are currently considering an ordinance that outlines processes and procedures for deploying and managing surveillance tools. Other Bay Area responses to community concerns about surveillance Oakland Domain Awareness Center (DAC) In 2013, the City of Oakland was building the DAC system, a large surveillance system comprising 700 cameras placed in schools and public housing, with facial recognition software, ALPRs, and 300 terabytes of storage.54 In response, a coalition of activists alerted the community to the potential harm widespread surveillance could do to privacy and civil liberties. At city council meetings, speaker after speaker voiced concerns about surveillance technology and requested participation in the decision-making process.55 As a result, in 2014, the Oakland City Council voted to confine the DAC surveillance to the Port of Oakland. The council also prohibited use of facial recognition software, ALPRs, and eliminated data retention. The council also created an ad hoc citizen’s committee, which later became Oakland’s Privacy Advisory Commission.56 Recently, this commission has proposed a “Surveillance and Community Safety Ordinance,”57 which would require the city’s departments to disclose any new surveillance technologies they plan to acquire. Agencies would need approval from the City Council before purchasing the tool or technology. The law would require open public hearings, to allow the public to evaluate the costs and benefits of technologies before 54 Brian Hofer, “How the fight to stop Oakland’s Domain Awareness Center Laid the Groundwork for the Oakland Privacy Commission,” ACLU of Northern California (blog), accessed Sept. 21, 2016. https://www.aclunc.org/blog/how-fight-stop- oaklands-domain-awareness-center-laid-groundwork-oakland-privacy-commission. 55 Ibid. 56 Ibid. 57 Text of proposed ordinance, accessed May 6, 2017: https://www.documentcloud.org/documents/3253520-oak061975.html. 2016-2017 San Mateo County Civil Grand Jury 14 they are deployed. Unanimously approved by the commission, the ordinance was pending before the Oakland City Council as of June 6, 2017.58 Santa Clara County’s surveillance technology and community safety ordinance In September 2016, Santa Clara County passed an ordinance to protect residents’ right to privacy from intrusive and invasive technologies.59 This ordinance also addresses emerging surveillance tools not yet created. According to the San Jose Mercury News: The ordinance is aimed at protecting the public’s right to privacy from existing and emerging technologies, such as drones, license plate readers, cell phone trackers or things that haven’t yet been realized outside of science fiction. The new rules require that agencies put in place public policies regarding the use of any surveillance technology before it is acquired or activated, and issue annual reports on how the technologies have been used and what they discovered.60 Santa Clara County Supervisor Joe Simitian began advocating for an ordinance in 2014, in response to local law enforcement purchasing surveillance technology without informing the public. He became more concerned about the lack of transparency when he learned that San Jose police had purchased a drone and of Oakland’s plan to extend the powers of the DAC beyond the Port of Oakland.61 When the Santa Clara County Sheriff’s Office received a grant to buy a $500,000 “Stingray” cell-site simulator, Simitian, backed by many County residents, requested more information about this technology. A press release issued by Simitian’s office stated: Under the new law, officials who want to purchase and use surveillance technology in Santa Clara County will have to: • Provide analysis of the privacy and due process implications of the technology they wish to acquire, • Submit, for approval, a set of “use policies” governing the use of the technology, before the technology is acquired or used; and, • Report back annually on the use of the technology, in order to provide some measure of accountability. Simitian noted, “for years and years we’ve made budget allocations without asking the most basic of questions: What information are we collecting? About whom? Why? How 58 Darwin BondGraham, “Oakland Privacy Commission Approves Surveillance Transparency Oversight Law,” East Bay Express, Jan 6, 2017. http://www.eastbayexpress.com/SevenDays/archives/2017/01/06/oakland-privacy-commission-approves-surveillance- transparency-and-oversight-law. Link to proposed ordinance, accessed May 6, 2017: https://www.documentcloud.org/documents/3253520-oak061975.html. https://occupyoakland.org/wp-content/uploads/2017/01/OPAC-Surveillance-Ordinance-Adopted.pdf. 59 Ordinance no. NS-300.897 “An Ordinance of the Board of Supervisors of the County of Supervisors of the County of Santa Clara Adding Division A40 of the County of Santa Clara Ordinance code Relating to Surveillance-Technology and Community Safety,” accessed May 6, 2017. https://assets.documentcloud.org/documents/2854213/Attachment-149330.pdf. 60 Eric Kurhi “Pioneering spy-tech law adopted by Santa Clara County,” The Mercury News, June 7, 2016. http://www.mercurynews.com/2016/06/07/pioneering-spy-tech-law-adopted-by-santa-clara-county/. 61 Ibid. 2016-2017 San Mateo County Civil Grand Jury 15 long will we have the information? Who’ll have access? How will we know if there’s misuse or abuse? I think we ought to know those answers before we spend millions of dollars in public funds.” The ordinance also provides that the Board of Supervisors, “…shall assess whether the benefits to the impacted County departments and the community of the surveillance technology outweigh the costs – including both the financial costs and reasonable concerns about the impact on and safeguards for privacy, civil liberties and civil rights.” “I firmly believe we can both protect the public, and respect the public’s privacy and due process rights,” Simitian said. “In fact, I believe we’re obligated to do both.” The new measure is noteworthy, in part, because it both addresses specific existing technologies (like surveillance cameras, automated license plate readers, and cell-site simulators), but also attempts to be “future-proof,” by describing the kinds of surveillance covered.62 Bay Area Rapid Transit’s (BART’s) proposed Surveillance Policy According to representatives at BART, the BART Board of Directors will be considering a proposal that would require board approval of any surveillance tools used by BART police or other BART entity. The ACLU of Northern California, the Oakland Privacy Working Group, and the Electronic Frontier Foundation (EFF) all have indicated support for such the surveillance policy, which has been presented to BART’s technology committee in December 2016. A senior attorney at EFF stated: “BART could take a big step forward toward accountability and transparency by passing the ordinance, which will ensure public and collective board oversight of whether to acquire dangerous and invasive spying tools.”63 Proposed California State Senate Bill SB 21 (2017), the Police Surveillance Transparency bill64 sponsored by Senator Jerry Hill, D– San Mateo, would extend existing privacy standards for ALPRs and cell-intercept devices to all surveillance technology used by law enforcement agencies. “SB 21 ensures that the same privacy protocols and standards that currently apply to license plate readers and cell site simulators apply to all other surveillance technology, including those developed in the future,” Senator Hill said.65 This bill was passed by the California State Senate on May 31, 2017 and was then sent to the California Assembly.66 62 Press Release: “Joe Simitian: Cutting-edge surveillance ordinance approved for Santa Clara County,” accessed May 6, 2017. https://www.sccgov.org/sites/d5/newsmedia/press-releases/Pages/SurveillanceOrdinance.aspx. 63 Joe Kukura “BART Considers Measure to Limit Surveillance,” SF Weekly, January 26, 2017. http://www.sfweekly.com/news/bart-considers-measure-to-limit-surveillance/. 64 Text of bill is available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB21. 65 “New Legislation,” Senator Jerry Hill, accessed April 3, 2017. https://lcmspubcontact.lc.ca.gov/PublicLCMS/imgs/SD13/2017/jan/Hill_eNews_010317_Full.htm#article1. 66 “CA SB21|2017-2018|Regular Session,” Legiscan, accessed June 1, 2017. https://legiscan.com/CA/bill/SB21/2017ncric. 2016-2017 San Mateo County Civil Grand Jury 16 FINDINGS F1. The County of Santa Clara passed an ordinance in 2016 requiring agencies to adopt policies related to any surveillance technology before such technology is acquired or activated. The ordinance also requires agencies to issue annual reports explaining how the technologies are used and what they discovered. F2. The County and cities in San Mateo County have not enacted any ordinances governing their acquisition and use of surveillance technology, or the accessibility, management, or retention of the information acquired. F3. The County and cities in San Mateo County do inform residents about the use of some surveillance tools (Automated License Plate Readers and Body Worn Cameras) at public forums and city council meetings: • City or Town Council meeting or staff reports posted on website: Atherton, Burlingame, Daly City, East Palo Alto, Hillsborough, Menlo Park, Pacifica, Redwood City, San Bruno, San Carlos, San Mateo, South San Francisco • Public meeting or Town Halls: East Palo Alto, Hillsborough, Menlo Park, Redwood City, San Carlos, Sheriff’s Office • The City of Menlo Park mentioned also having used social media for this purpose. F4. With the exception of Burlingame, which borrowed ALPR technology, the cities and the San Mateo County Sheriff’s Office have complied with the law requiring ALPR users to “conspicuously” post a link to the ALPR usage and privacy policy on their websites. F5. With the exception of the City of San Mateo, the generic ALPR policies posted by cities and the Sheriff’s Office do not provide specific information that helpful to residents. RECOMMENDATIONS R1. In addition to providing a conspicuous link to usage and privacy policies on operator websites (as required by law for ALPRs), all law enforcement agencies in the County should create an easily accessible and simply written information webpage by December 31, 2017, which lists the types of surveillance tools (such as ALPRs) and investigative tools (such as ShotSpotter and body worn cameras) utilized by the agency. At a minimum, such a webpage shall include these details about each tool: • What is the use and purpose of the technology, such as assisting in ongoing criminal investigations, locating missing children, or locating stolen vehicles • Who is authorized to collect or access the data collected • How the system is monitored to ensure that the data are secure • Who owns the surveillance technology • What measures were taken to ensure the accuracy of the data • How long the data will be retained 2016-2017 San Mateo County Civil Grand Jury 17 R2. All law enforcement agencies in the County shall increase the number and types of opportunities for community members to voice support for or opposition to any proposed addition of new surveillance technologies including, but not limited to: • Surveying residents to better understand their concerns about law enforcement’s use of surveillance tools and address those concerns in public meetings, Town Halls, Neighborhood Watch sessions and other local gatherings. • Using social media platforms such as Nextdoor© to keep residents engaged and informed about surveillance technologies and its uses in your community. R3. Staff shall bring to the city or town council (in the case of a police department or police bureau) or the Board of Supervisors (in the case of the Sheriff’s Office) a policy or ordinance for consideration at a public meeting by December 31, 2017. Such ordinances or policies should require, at a minimum: • Plans to acquire new surveillance technology be announced at public meetings and other forums to ensure that the community is aware and engaged when new technology is under consideration. • Any “use policies” related to surveillance technology be readily available and easy to access on the city or County websites. • Oversight and accountability be supported by posting periodic reports on the effectiveness of the surveillance tools used in the community. REQUEST FOR RESPONSES Pursuant to Penal code section 933.05, the Grand Jury requests responses to Recommendations 1-3 from the following: • San Mateo County Board of Supervisors • San Mateo County Sheriff’s Office • Broadmoor Police Protection District • Atherton Town Council • Belmont City Council • Brisbane City Council • Burlingame City Council • Colma City Council • Daly City City Council • East Palo Alto City Council • Foster City City Council • Half Moon Bay City Council 2016-2017 San Mateo County Civil Grand Jury 18 • Hillsborough Town Council • Menlo Park City Council • Millbrae City Council • Pacifica City Council • Portola Valley Town Council • Redwood City City Council • San Bruno City Council • San Carlos City Council • San Mateo City Council • South San Francisco City Council • Woodside Town Council The governing bodies indicated above should be aware that the comment or response of the governing body must be conducted subject to the notice, agenda and open meeting requirements of the Brown Act. 2016-2017 San Mateo County Civil Grand Jury 19 BIBLIOGRAPHY ACLU of Northern California Making Smart Decisions about Surveillance: A Guide for community Transparency, Accountability and Oversight, April 2016. https://www.aclunc.org/docs/20160325-making_smart_decisions_about_surveillance.pdf. Bartley, Kaitlyn. “Dashboard cameras rolled out before policy.” Half Moon Bay Review, February 23, 2017. http://www.hmbreview.com/news/dashboard-cameras-rolled-out-before- policy/article_b2329fe6-f9f8-11e6-9172-3fb3fe109222.html. BondGraham, Darwin. “Oakland Privacy Commission Approves Surveillance Transparency Oversight Law.” East Bay Express, January 6, 2017. http://www.eastbayexpress.com/SevenDays/archives/2017/01/06/oakland-privacy-commission- approves-surveillance-transparency-and-oversight-law. Electronic Frontier Foundation. “California Automatic License Plate Reader Policies,” Electronic Frontier Foundation. Accessed March 30, 2017. https://www.eff.org/pages/california-automated-license-plate-reader-policies. Electronic Frontier Foundation. “Street-Level Surveillance: Automated License Plate Readers.” Accessed May 23, 2017. https://www.eff.org/sls/tech/automated-license-plate-readers. Electronic Frontier Foundation. “Street-Level Surveillance: Cell-site Simulators.” Accessed May 23, 2017. https://www.eff.org/sls/tech/cell-site-simulators. Goins, Cole. “What Oakland, California, residents think about police surveillance.” Reveal from the Center for Investigative Reporting, August 18, 2015. https://www.revealnews.org/article/what-oakland-california-residents-think-about-police- surveillance/. Hofer, Brian. “How the fight to stop Oakland’s Domain Awareness Center Laid the Groundwork for the Oakland Privacy Commission.” ACLU of Northern California (blog), Sept. 21, 2016. https://www.aclunc.org/blog/how-fight-stop-oaklands-domain-awareness-center-laid- groundwork-oakland-privacy-commission. Kukura, Joe. “BART Considers Measure to Limit Surveillance.” SF Weekly, January 26, 2017. http://www.sfweekly.com/news/bart-considers-measure-to-limit-surveillance/. Kurhi, Eric. “Pioneering spy-tech law adopted by Santa Clara County,” The Mercury News, June 7, 2016. http://www.mercurynews.com/2016/06/07/pioneering-spy-tech-law-adopted-by-santa-clara- county/. Kendall, Marisa. “Surveillance in Silicon Valley is hard to avoid.” The Mercury News, February 9, 2017. http://www.mercurynews.com/2017/02/09/surveillance-in-silicon-valley-whos- watching-you/. 2016-2017 San Mateo County Civil Grand Jury 20 LaCambra, Stephanie. “Congressional Oversight Committee Wants to Rein in Police Abuse of Cell-Site Simulators,” Electronic Frontier Foundation DeepLinks (blog) https://www.eff.org/deeplinks/2017/02/bipartisan-congressional-oversight-committee-wants- probable-cause-warrants-0. Maass, David. “Success in Sacramento: Four New Laws, One Veto—All Victories for Privacy and Transparency.” Accessed June 2, 2017. https://www.eff.org/deeplinks/2015/10/success- sacramento-four-new-laws-one-veto-all-victories-privacy-and-transparency. McLeod, Saul. “Maslow’s Hierarchy of Needs.” Simply Psychology. Accessed May 23,2017. https://www.simplypsychology.org/maslow.html. NCRIC Northern California Regional Intelligence Center. “How the NCRIC was Established.” Accessed April 19, 2017. https://ncric.org/default.aspx?MenuItemID=122&MenuGroup=NCRIC+Public+Home&AspxAu toDetectCookieSupport=1. NCRIC Northern California Regional Intelligence Center. “Frequently Asked Questions.” Accessed May 18, 2017. https://ncric.org/html/ALPR-FAQ-Feb-2015.pdf. Police Executive Research Forum. “How Are Innovations in Technology Transforming Policing.” http://www.policeforum.org/assets/docs/Critical_Issues_Series/how%20are%20innovations%20i n%20technology%20transforming%20policing%202012.pdf. Seipel, Tracy and Eric Kurhi. “California Digital Privacy Laws Boosted Protecting Consumers from Big Brother, Big Business,” San Jose Mercury News, October 9, 2015. http://www.mercurynews.com/2015/10/09/california-digital-privacy-laws-boosted-protecting- consumers-from-big-brother-big-business/. San Mateo County Grand Jury 2015-16. Body Cameras—The Reel Issue. https://www.sanmateocourt.org/documents/grand_jury/2015/body_camera.pdf. San Mateo County Grand Jury 2016-2017. Summary of Responses to the 2015-2016 San Mateo County Civil Grand Jury Final Reports, (Second Summary). As of June 6, 2017, this report is not yet available online. Tulchin Research.“California Statewide Survey Finds Voters Concerned about Privacy and Want to See Reforms Made to Surveillance Technology Use by Law Enforcement.” August 21, 2015. http://www.aclunc.org/docs/20150821-aclu_surveillance_privacy_polling.pdf. U.S. Department of Homeland Security. “State and Major Urban Area Fusion Centers.” Accessed March 30, 2017. https://www.dhs.gov/state-and-major-urban-area-fusion-centers. 2016-2017 San Mateo County Civil Grand Jury 21 Weigel, Samantha. “Who’s watching who?: License plate readers used throughout San Mateo County.” The Daily Journal, April 8, 2015. http://www.smdailyjournal.com/articles/lnews/2015- 04-08/whos-watching-who-license-plate-readers-used-throughout-san-mateo- county/1776425141346.html. Winston, Ali. “License plate readers tracking cars.” SFGate, June 25, 2013. http://www.sfgate.com/bayarea/article/License-plate-readers-tracking-cars-4622476.php. 2016-2017 San Mateo County Civil Grand Jury 22 APPENDIX A NCRIC Automated License Plate Reader Policy NCRIC MISSION The Northern California Regional Intelligence Center (NCRIC) is a multi-jurisdiction public safety program created to assist local, state, federal, and tribal public safety agencies and critical infrastructure locations with the collection, analysis, and dissemination of criminal threat information. It is the mission of the NCRIC to protect the citizens within its area of responsibility from the threat of narcotics trafficking, organized crime, as well as international, domestic, and street terrorism-related activities through information sharing and technical operations support to public safety personnel. AUTOMATED LICENSE PLATE READER (ALPR) TECHNOLOGIES To support authorized law enforcement and public safety purposes of local, state, federal, and tribal public safety agencies, the NCRIC utilizes Automated License Plate Reader (ALPR) technology, and supporting software, to gather and analyze ALPR data to enable the rapid identification and location of vehicles of legitimate interest to law enforcement. ALPR units are attached to law enforcement vehicles or deployed at fixed locations, where they collect license plate information from vehicles on public roadways and public property. In one common use of ALPR technology, license plate encounters are compared against law enforcement “hotlists” – lists of vehicles associated with active investigations, for example, related to Amber Alerts or other missing children, stolen vehicles, or stolen license plates. The information is also retained for a fixed retention period, though it is only reaccessible by law enforcement given a legitimate law enforcement purpose as listed below. PURPOSE This NCRIC Automated License Plate Reader Policy (ALPR Policy) defines a minimum set of binding guidelines to govern the use of Automated License Plate Reader Data (ALPR Data), in order to enable the collection and use of such data in a manner consistent with respect for individuals’ privacy and civil liberties. The NCRIC also completed a NCRIC ALPR Privacy Impact Assessment (PIA) to address in further detail common privacy and civil liberties concerns regarding Automated License Plate Reader technology. The current version of this document is available on the NCRIC web site at www.ncric.org. AUTHORIZED PURPOSES, COLLECTION, AND USE OF ALPR DATA To support the mission of the NCRIC, Law enforcement personnel with a need and right to know will utilize ALPR technology to: • Locate stolen, wanted, and subject of investigation vehicles; • Locate and apprehend individuals subject to arrest warrants or otherwise lawfully sought by law enforcement; • Locate witnesses and victims of violent crime; • Locate missing children and elderly individuals, including responding to Amber and Silver Alerts; • Support local, state, federal, and tribal public safety departments in the identification of vehicles associated with targets of criminal investigations, including investigations of serial crimes; • Protect participants at special events; and • Protect critical infrastructure sites. 2016-2017 San Mateo County Civil Grand Jury 23 RESTRICTIONS ON COLLECTION OF ALPR DATA AND USE OF ALPR SYSTEMS NCRIC ALPR units may be used to collect data that is within public view, but may not be used for the sole purpose of monitoring individual activities protected by the First Amendment to the United States Constitution. ALPR operators may not contact occupants of stolen, wanted, or subject-of-investigation vehicles unless the ALPR operators are sworn law enforcement officers. ALPR operators must rely on their parent agency rules and regulations regarding equipment, protection, self-identification, and use of force when stopping vehicles or making contact. ALPR operators must recognize that the data collected from the ALPR device, and the content of referenced hotlists, consists of data that may or may not be accurate, despite ongoing efforts to maximize the currency and accuracy of such data. To the greatest extent possible, vehicle and subject information will be verified from separate Law enforcement information sources to confirm the vehicle or subject’s identity and justification for contact. Users of ALPR Data must, to the fullest extent possible, visually confirm the plate characters generated by the ALPR readers correspond with the digital image of the license plate in question. All users of NCRIC ALPR equipment or accessing NCRIC ALPR Data are required to acknowledge that they have read and understood the NCRIC ALPR Policy prior to use of the ALPR System. In no case shall the NCRIC ALPR system be used for any purpose other than a legitimate law enforcement or public safety purpose. TRAINING Only persons trained in the use of the NCRIC ALPR system, including its privacy and civil liberties protections, shall be allowed access to NCRIC ALPR Data. Training shall consist of: • Legal authorities, developments, and issues involving the use of ALPR Data and technology • Current NCRIC Policy regarding appropriate use of NCRIC ALPR systems; • Evolution of ALPR and related technologies, including new capabilities and associated risks; • Technical, physical, administrative, and procedural measures to protect the security of ALPR Data against unauthorized access or use; and • Practical exercises in the use of the NCRIC ALPR system Training shall be updated as technological, legal, and other changes that affect the use of the NCRIC ALPR system occur. AUDIT Access to, and use of, ALPR Data is logged for audit purposes. Audit reports will be structured in a format that is understandable and useful and will contain, at a minimum: • The name of the law enforcement user; • The name of the agency employing the user; • The date and time of access; • The activities executed, including any license plates searched for; • The supplied authorized law enforcement or public safety justification for access; and • A case number associated with the investigative effort generating the ALPR data query. Audit reports will be provided periodically and on request to supervisory personnel at t the NCRIC and partner agencies. In addition, no less frequently than every 12 months, the NCRIC will audit a sampling of ALPR system utilization from the prior 12 month period to verify proper use in accordance with the above authorized 2016-2017 San Mateo County Civil Grand Jury 24 uses. Any discovered intentional misconduct will lead to further investigation, termination of system access, and notification of the user’s parent agency for appropriate recourse. In addition, the auditing data will be used to identify systemic issues, inadvertent misuse, and requirements for policy changes, training enhancements, or additional oversight mechanisms. These ALPR audits shall be conducted by a senior NCRIC official other than the person assigned to manage the NCRIC ALPR function. Audit results shall then be reported to the Director of the NCRIC. DATA QUALITY AND ACCURACY The NCRIC will take reasonable measures to ensure the accuracy of ALPR Data collected by NCRIC ALPR units and partner agency ALPR systems. Errors discovered in ALPR Data collected by NCRIC ALPR units are marked, corrected, or deleted in accordance with the type and severity of the error in question. Errors discovered in ALPR Data collected from partner agencies’ ALPR systems are communicated back to the controlling agency to be addressed as deemed appropriate by that agency or in accordance with the agency’s own ALPR data policies. As the downstream custodian of “hotlists”, the NCRIC will provide the most recent versions of these lists available and ensure the lists are refreshed from state or federal sources on a daily basis. The NCRIC acknowledges that, in rare instances ALPR units may inadvertently capture information contrary to the collection guidelines set forth in this policy. Such records will be purged upon identification. Any discovered notable increase in frequency of these incidents from specific ALPR units or agencies will be followed up with for equipment repairs, camera realignment, or personnel training as necessary. PHYSICAL AND ELECTRONIC SECURITY OF ALPR DATA: Data collected by ALPR systems is stored in a secured law enforcement facility with multiple layers of physical security and 24/7 security protections. Physical access is limited to law enforcement staff in good standing who have completed background investigations and possess an active security clearance at the “SECRET” or higher level. NCRIC will utilize strong multi-factor authentication, encrypted communications, firewalls, and other reasonable physical, technological, administrative, procedural, and personnel security measures to mitigate the risks of unauthorized access to the system. RETENTION OF ALPR DATA: ALPR Data collected by NCRIC ALPR units or shared from partner agencies’ ALPR units shall not be retained longer than 12 months, or the length of time required by the partner agency who is custodian of the record – whichever is shorter. Once the retention period has expired, the record will be purged entirely from all active and backup systems unless a reasonable suspicion has been established that the vehicle identified by the ALPR read is connected to criminal activities. ALPR records matching an entry in a current law enforcement hotlist will trigger an immediate notification to the officer operating the ALPR unit, the active dispatch officer at the agency owning the ALPR unit, the NCRIC, and the custodial agency of the hotlist. Such notifications are also subject to a maximum retention of 12 months. ALPR Data obtained with license plate information not appearing on hotlists, and with no immediate reasonable connection to criminal activity, will be retained in secure systems so as to only be made accessible to authorized personnel for a maximum period of twelve months, then purged entirely from all systems. If during the specified retention period there is information which supports a legitimate law enforcement purpose (see above section enumerating AUTHORIZED PURPOSES, COLLECTION, AND USE OF ALPR DATA) as to a license plate or partial license plate which was recorded and is retained in these systems, then limited access will be permitted for predicate-based querying for potential matches 2016-2017 San Mateo County Civil Grand Jury 25 against the parameters specific to the legitimate law enforcement purpose. Such events shall be recorded in an access log showing date, time, name of person seeking access, agency of employment, reason for access, and tracking identifiers such as an agency case number. NCRIC Automated License Plate Reader Policy 5 ALPR records of vehicles having been identified and linked to criminal investigation will be entered into the relevant NCRIC database(s) and retained for a period of no more than five years. If during the fiveyear period NCRIC personnel become aware that the vehicle license plate information is no longer associated with a criminal investigation, it will be purged from the NCRIC’s databases. CUSTODIAN OF RECORDS AND RECORDS REQUESTS Each agency operating ALPR technology retains control and ownership as the official custodian of its records, and must independently verify all external information obtained via NCRIC Information Systems. To the extent permitted by law, requests for information under the California Public Records Act or Freedom of Information Act or similar applicable laws will be directed back to the owner of the requested data. SYSTEM MANAGEMENT AND ACCOUNTABILITY The NCRIC shall assign a senior officer who will have responsibility, and be accountable, for managing the ALPR Data collected and ensuring that the privacy and civil liberties protection and other provisions of this ALPR Policy are carried out. This individual shall also be responsible for managing a process for maintaining the most current and accurate hotlists available from NCRIC law enforcement sources. This individual shall also have the responsibility for the security of the hotlist information and any ALPR Data which is maintained by the NCRIC. It remains, however, the personal responsibility of all officers with access to ALPR Data to take reasonable measures to protect the privacy and civil liberties of individuals, as well as the security and confidentiality of ALPR Data. COMMERCIALLY CREATED ALPR DATA Except as explicitly authorized below with regard to critical infrastructure, the NCRIC will not share NCRIC or partner agency ALPR Data with commercial or other private entities or individuals. DISSEMINATION The NCRIC may disseminate ALPR data to any governmental entity with an authorized law enforcement or public safety purpose for access to such data. The NCRIC assumes no responsibility or liability for the acts or omissions of other agencies in making use of the ALPR data properly disseminated. Though the NCRIC will make every reasonable effort to ensure the quality of shared ALPR Data and hotlists, it cannot make absolute guarantees of the accuracy of information provided. ALPR Information may be disseminated to owners and operators of critical infrastructure in circumstances where such infrastructure is reasonably believed to be the target of surveillance for the purpose of a terrorist attack or other criminal activity. In these situations, the NCRIC also will make notification to appropriate local, state, and federal law enforcement agencies. Information collected by the ALPR system shall not be disseminated to private parties, other than critical infrastructure owners or operators, as limited above, unless authorized, in writing, by the Director of the NCRIC or his designee. ALPR information shall not be disseminated for personal gain or for any other non-law enforcement purposes. 2016-2017 San Mateo County Civil Grand Jury 26 POLICY REVISIONS NCRIC ALPR Policies will be reviewed, and updated as necessary, no less frequently than every 12 months, or more frequently based on changes in data sources, technology, data use and/or sharing agreements, and other relevant considerations. The most current version of the ALPR Policy may be obtained from the NCRIC website at http://www.ncric.org/ 2016-2017 San Mateo County Civil Grand Jury 27 APPENDIX B 2016-2017 San Mateo County Civil Grand Jury 28 2016-2017 San Mateo County Civil Grand Jury 29 2016-2017 San Mateo County Civil Grand Jury 30 2016-2017 San Mateo County Civil Grand Jury 31 APPENDIX C This table shows the verbatim responses to this question from the Grand Jury’s survey of police departments and the Sheriff’s Office: “Before purchasing the technology, did you inform residents of your intention to acquire surveillance tools?” City How Cities Responded Atherton The projects and expenses were approved by the Town Council and divulged as part of the public agenda in staff reports. Belmont Belmont did respond “Yes” to the question but did not provide details. Broadmoor N/A (no surveillance technology in use). Brisbane Law enforcement did not reach out to the community Burlingame Body Worn Cameras we responded to the Grand Jury’s recommendation to implement and went before our City Council for approval. GPS we did not notify our community Police Department Cameras we did not notify our community Colma N/A (no surveillance technology in use). Note: The Police Department will reach out to residents at council meetings and social media if the Department does plan to acquire surveillance technology. Daly City Staff report to City Council for approval East Palo Alto ShotSpotter: This was installed during Chief Ronald Davis tenure and I believe there was involvement with community and the matter was approved by the City Council. Additionally, each year that I renew the contract, it goes before the City Council and the community has the opportunity to comment on the use of the system. Foster City Law enforcement did not reach out to the community Hillsborough The ALPR mobile unit purchase was introduced over the course of several council meetings and approved by City Council. We also hosted a number of community forums on the topic of crime prevention and discussed the ALPR technology prior to and after it was approved. Additionally, we regularly update our council with details and statistics from our ALPR program. 2016-2017 San Mateo County Civil Grand Jury 32 City How Cities Responded Menlo Park City council meetings, social media, community meetings Millbrae N/A (no surveillance technology in use) Pacifica Regarding the implementation of patrol vehicle cameras in the mid 1990’s, it is unknown what methods were used to inform residents. The police department’s body camera implementation plan was announced at a City Council meeting. When body cameras are deployed, the department plans to announce this vial social media and press release. Redwood City We did community outreach and held a community meeting regarding the placing of surveillance cameras on a pedestrian footbridge. Redwood City Police Department began using the ALPR technology in 2012. On October 6, 2015, Governor Edmund G. Brown Jr. signed SB 34, which added provisions to the California Civil Code regarding the use of ALPR systems, including requiring government agencies using ALPRs to maintain reasonable security procedures and practices, to implement a privacy policy, to keep records of access to records created through use of ALPR system, and to prevent unauthorized access to the system. In addition, the agency must disclose any security breaches and cannot sell, share, or transfer ALPR information, except to another public agency and only as permitted by law. Under Section 1798.90.55 (a), the new law requires: A public agency that operates or intends to operate an ALPR system shall provide an opportunity for public comment at a regularly scheduled public meeting of the governing body of the public agency before implementing the program. The Police Department has updated its Policy Manual to comply with the new provisions of the law. The updated policy regarding Automated License Plate Readers has been posted to the City Website as required by California Civil Code Section 1798.90.51 (b)(1). Because the department began using ALPR technology prior to the passage of SB 34, compliance with the requirement that an opportunity for public comment at a regularly scheduled public meeting of the governing body of the public agency before 2016-2017 San Mateo County Civil Grand Jury 33 City How Cities Responded implementing the program was not possible. The Department is in compliance with SB34 and is now providing an opportunity for public comment at a regularly scheduled public meeting of the governing body of the public agency before implementing new ALPR technology. San Bruno A staff report regarding the ALPR was made available on the city's web page. The project was also presented in a televised public forum at a city council meeting. San Carlos The decision to deploy ALPR technology was made by the City Council; not by the Police Bureau. An open, “noticed” public meeting was held to discuss the item and take public comment on the issue. At the conclusion of that very public process, the city Council voted and directed the Police Bureau to deploy the ALPRs We also discussed the issue during Police Town Hall Meetings and Neighborhood Watch events. San Mateo (city) Depends—ALPRs are required by law to be noticed to our city council and we posted the privacy policy on our internet San Mateo County Sheriff Open, noticed public meetings were held to discuss the items and take public comment on the issue. The meetings were held to help educate and inform the community. During the community meetings, we provided facts and also discussed the benefits during Town Hall Meetings and Neighborhood Watch events. South San Francisco Our intention to acquire body cameras was addressed at a public City Council meeting. Once the body cameras are implemented, we will make a public announcement by means of a press release and social media Issued: July 12, 2017 City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-870 Agenda Date:9/6/2017 Version:1 Item #:7a. Resolution approving the City Council’s response to the San Mateo County Civil Grand Jury Report,dated July 12,2017,entitled “A Delicate Balance:Privacy vs.Protection”,and authorizing the City Manager to send the response letter on behalf of the City Council. WHEREAS,pursuant to California Penal Code section 933,a public agency which receives a Grand Jury Report addressing aspects of the public agency’s operations,must respond to the Report’s findings and recommendations contained in the Report in writing within ninety days to the Presiding Judge of the San Mateo County Superior Court; and WHEREAS,the City Council has received and reviewed the San Mateo County Civil Grand Jury Report,dated July 12, 2017, entitled “A Delicate Balance: Privacy vs. Protection;” and WHEREAS,the City Council has reviewed the findings and recommendations of the Civil Grand Jury Report; and WHEREAS, the South San Francisco Police Department will implement in part R1; and WHEREAS, the South San Francisco Police Department will not implement R2 or R3; and WHEREAS,the City Council has reviewed and considered the response to the Civil Grand Jury,which is attached hereto as Exhibit A. NOW,THEREFORE,BE IT RESOLVED,THAT THE CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO hereby approves the City Council’s response to the San Mateo County Civil Grand Jury Report, dated July 12,2017,entitled,“A Delicate Balance:Privacy vs.Protection”as set forth in Exhibit A attached to this Resolution. BE IT FURTHER RESOLVED,that the City Council of the City of South San Francisco hereby authorizes the City Manager to send the response letter to the Presiding Judge of the Superior Court of San Mateo County on behalf of the City Council. ***** City of South San Francisco Printed on 9/20/2017Page 1 of 2 powered by Legistar™ File #:17-870 Agenda Date:9/6/2017 Version:1 Item #:7a. City of South San Francisco Printed on 9/20/2017Page 2 of 2 powered by Legistar™ September 6, 2017 The Honorable Leland Davis, III Judge of the Superior Court c/o Charlene Kresevich Hall of Justice 400 County Center, 2nd Floor Redwood City, CA 94063-1655 Subject: Response of the City of South San Francisco to the Grand Jury Report “A Delicate Balance: Privacy vs. Protection.” Dear Judge Davis, Thank you for the opportunity to respond to the Grand Jury report entitled “A Delicate Balance: Privacy vs. Protection.” The City of South San Francisco’s response to both the findings and recommendations are listed below. Responses to Grand Jury Findings: F1. The County of Santa Clara passed an ordinance in 2016 requiring agencies to adopt policies related to any surveillance technology before such technology is acquired or activated. The ordinance also requires agencies to issue annual reports explaining how the technologies are used and what they discovered. Response: The City of South San Francisco understands what is represented in the Grand Jury Report. The City is not intimately familiar with local ordinances in other jurisdictions regarding surveillance technology, and therefore takes no position on this Finding. F2. The County and cities in San Mateo County have not enacted any ordinances governing their acquisition and use of surveillance technology, or the accessibility, management, or retention of the information acquired. Response: The City of South San Francisco agrees that it has not enacted any ordinances specifically governing the acquisition and use of surveillance technology, or the accessibility, management, or retention of the information acquired. The City does not have enough information regarding other local ordinances within San Mateo County regarding surveillance technology to state a position. F3. The County and cities in San Mateo County do inform residents about the use of some surveillance tools (Automated License Plate Readers and Body Worn Cameras) at public forums and city council meetings: • City or Town Council meeting or staff reports posted on website: Atherton, Burlingame, Daly City, East Palo Alto, Hillsborough, Menlo Park, Pacifica, Redwood City, San Bruno, San Carlos, San Mateo, South San Francisco • Public meeting or Town Halls: East Palo Alto, Hillsborough, Menlo Park, Redwood City, San Carlos, Sheriff’s Office • The City of Menlo Park mentioned also having used social media for this purpose. Response: The City of South San Francisco agrees that it informs residents about the use of surveillance tools at public forums and city council meetings. The City is not familiar with the practices in other jurisdictions regarding surveillance technology. F4. With the exception of Burlingame, which borrowed ALPR technology, the cities and the San Mateo County Sheriff’s Office have complied with the law requiring ALPR users to “conspicuously” post a link to the ALPR usage and privacy policy on their websites. Response: The City of South San Francisco agrees that it complies with applicable state law requiring ALPR users to “conspicuously” post a link to the ALPR usage and privacy policy on their websites. The City is not familiar with the practices in other jurisdictions regarding surveillance technology. F5. With the exception of the City of San Mateo, the generic ALPR policies posted by cities and the Sheriff’s Office do not provide specific information that helpful to residents. Response: The City of South San Francisco believes that the policy posted on the South San Francisco Police Department web page is both specific and helpful to residents. However, the South San Francisco Police Department will evaluate the provided information to determine if amendments are necessary. The City is not familiar with the practices in other jurisdictions regarding surveillance technology. Responses to Grand Jury Recommendations: R1. In addition to providing a conspicuous link to usage and privacy policies on operator websites (as required by law for ALPRs), all law enforcement agencies in the County should create an easily accessible and simply written information webpage by December 31, 2017, which lists the types of surveillance tools (such as ALPRs) and investigative tools (such as ShotSpotter and body worn cameras) utilized by the agency. At a minimum, such a webpage shall include these details about each tool: • What is the use and purpose of the technology, such as assisting in ongoing criminal investigations, locating missing children, or locating stolen vehicles • Who is authorized to collect or access the data collected • How the system is monitored to ensure that the data are secure • Who owns the surveillance technology • What measures were taken to ensure the accuracy of the data • How long the data will be retained Response: This recommendation will be implemented in part. San Mateo County Law Enforcement Agencies have already, by law, posted privacy policy information on their websites as related to ALPRs. The City of South San Francisco will expand its ALPR privacy and usage policy to include additional electronic equipment where the release of such information does not unnecessarily jeopardize public safety and criminal investigations, and will place that information in a conspicuous location on its website by December 31, 2017. R2. All law enforcement agencies in the County shall increase the number and types of opportunities for community members to voice support for or opposition to any proposed addition of new surveillance technologies including, but not limited to: • Surveying residents to better understand their concerns about law enforcement’s use of surveillance tools and address those concerns in public meetings, Town Halls, Neighborhood Watch sessions and other local gatherings. • Using social media platforms such as Nextdoor© to keep residents engaged and informed about surveillance technologies and its uses in your community. Response: The City of South San Francisco believes this request to be reasonable for tools used in the conduct of basic police business such as Body Worn Cameras and ALPRs. Furthermore, the City of South San Francisco recognizes that not all community members utilize internet and social media, and will seek opportunities at public meetings, including neighborhood association meetings, neighborhood watch gatherings, and publicly noticed city meetings to share this information. However, this recommendation will not be implemented for law enforcement investigative tools and techniques primarily used for complex criminal investigative purposes. It is neither appropriate nor reasonable for law enforcement agencies to publicly explain and expose certain critical investigative techniques or technology in any type of public forum. Nor would law enforcement agencies seek public input or conduct feedback surveys from the public on the specialized tactics and techniques employed within the criminal justice system designed to detect criminal activity. Checks and balances already exist through the legal system regarding the use of these techniques. Certain specialized electronic tools are precisely aimed at members of criminal organizations, career criminals, and those under investigation for violent crimes, with minimal to no impact to the law-abiding public. Public discussion of all law enforcement technologies and investigative techniques would be detrimental to ongoing criminal investigations, compromise capabilities to protect communities, and allow individuals involved in criminal activity to more easily avoid detection. All agencies in San Mateo County have signed a data and records sharing agreement with the Northern California Regional Intelligence Center (NCRIC) that places data in a secure repository located in a federal facility subject to federal and state statutes and policies addressing access, storage, and disclosure. R3. Staff shall bring to the city or town council (in the case of a police department or police bureau) or the Board of Supervisors (in the case of the Sheriff’s Office) a policy or ordinance for consideration at a public meeting by December 31, 2017. Such ordinances or policies should require, at a minimum: • Plans to acquire new surveillance technology be announced at public meetings and other forums to ensure that the community is aware and engaged when new technology is under consideration. • Any “use policies” related to surveillance technology be readily available and easy to access on the city or County websites. • Oversight and accountability be supported by posting periodic reports on the effectiveness of the surveillance tools used in the community Response: Existing law requires that law enforcement agencies provide information to local governing bodies when acquiring certain new technologies. Law enforcement agencies also make policies that govern the use of our basic police surveillance tools and technologies publicly available. However, this recommendation will not be implemented because it is not warranted or reasonable for law enforcement agencies to disclose reports on the effectiveness of surveillance tools. To do so would create obstacles that would limit law enforcement’s ability to adapt and respond to criminal activity and would compromise the safety and security of residents. Furthermore, existing state law protects law enforcement agencies from having to disclose investigative, intelligence and security records under the California Public Records Act. Government Code 6254 (f) recognizes the need for discretion and protects law enforcement agencies from disclosing investigative and tactical information that would compromise its law enforcement capabilities. Existing laws also prohibit the release of information derived from, or related to the security of law enforcement technology systems specifically to ensure those protecting the public are not compromised. Under California Penal Code Sections through 1546 through 1546.4, known as the Electronic Communications Privacy Act, law enforcement is required to obtain court orders related to electronic communications intercept surveillance. Furthermore, California Penal Code Sections 1524 and 1534 require court orders for the use of electronic tracking devices. Sincerely, Mike Futrell City Manager City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-839 Agenda Date:9/6/2017 Version:1 Item #:8. Report regarding a resolution approving the salary schedule effective September 8,2017,to reflect a three percent increase for non-union hourly job classifications. (LaTanya Bellow, Human Resources Director) RECOMMENDATION It is recommended that the City Council adopt a resolution amending the salary schedule effective September 8, 2017, to reflect a three percent increase for non-union hourly job classifications. BACKGROUND/DISCUSSION On July 1,2017 new contracts for employees represented by a bargaining unit went into effect,and these included an across the board wage increase of three percent.In the interest of keeping non-union hourly job classification wages competitive with other agencies,and normalizing their wages with union wages,it is recommended that the salary schedule be adjusted by three percent as reflected in Exhibit A attached to the associated resolution. FISCAL IMPACT The total fiscal impact of the adjusted salary schedule for non-union hourly job classifications linked to FTE job classifications is $116,012. Funds are included within the Fiscal Year 2017-18 operating budget. CONCLUSION It is the recommendation of Human Resources to adjust the salary schedule for hourly job classifications by three percent for those positions linked to a full-time equivalent classification.The impact is especially beneficial for the Library and Parks and Recreation Departments,and to continue keeping the City of South San Francisco competitive in recruitment and retention efforts. City of South San Francisco Printed on 8/31/2017Page 1 of 1 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-840 Agenda Date:9/6/2017 Version:1 Item #:8a. Resolution approving the salary schedule effective September 8,2017 to reflect a three percent wage increase for non-union hourly job classifications. WHEREAS,on July 1,2017 new contracts for employees represented by a bargaining unit went into effect,and these included an across the board wage increase of three percent; and, WHEREAS,in the interest of keeping non-union hourly job classification wages competitive with other agencies,staff recommends that the salary schedule be adjusted by three percent as reflected in Exhibit A attached hereto; and WHEREAS,sufficient funds are included within the Fiscal Year 2017-18 operating budget to accommodate this wage increase; and WHEREAS,Pursuant to Municipal Code 3.04.020,City Council must approve any revisions to the City’s compensation plan,and this resolution would approve the salary schedule for impacted positions of non-union hourly job classifications. NOW,THEREFORE,BE IT RESOLVED that the City Council of the City of South San Francisco hereby approves the amended salary schedule for non-union hourly job classifications,as set forth in Exhibit A, effective September 8, 2017. ***** City of South San Francisco Printed on 9/20/2017Page 1 of 1 powered by Legistar™ JOB TITLE JOB CODES EFFECTIVE DATE UNIT PAY RATE STEP 1 STEP 2 STEP 3 STEP 4 STEP 5 ACCOUNTING ASSISTANT II - HOURLY X100 08-SEP-2017 HOURLY Hourly Rate 25.07 26.32 27.63 29.02 30.46 ACCOUNTING ASSISTANT II - HOURLY X100 08-SEP-2017 HOURLY Bi-Weekly Rate 2005.60 2105.60 2210.40 2321.60 2436.80 ACCOUNTING ASSISTANT II - HOURLY X100 08-SEP-2017 HOURLY Monthly 4345.47 4562.13 4789.20 5030.13 5279.73 ACCOUNTING ASSISTANT II - HOURLY X100 08-SEP-2017 HOURLY ADMINISTRATIVE ASSISTANT I - HOURLY X110 08-SEP-2017 HOURLY Hourly Rate 27.84 29.23 30.69 32.24 33.85 ADMINISTRATIVE ASSISTANT I - HOURLY X110 08-SEP-2017 HOURLY Bi-Weekly Rate 2227.20 2338.40 2455.20 2579.20 2708.00 ADMINISTRATIVE ASSISTANT I - HOURLY X110 08-SEP-2017 HOURLY Monthly 4825.60 5066.53 5319.60 5588.27 5867.33 ADMINISTRATIVE ASSISTANT I - HOURLY X110 08-SEP-2017 HOURLY ADMINISTRATIVE ASSISTANT II - HOURLY X130 08-SEP-2017 HOURLY Hourly Rate 29.33 30.79 32.33 33.95 35.66 ADMINISTRATIVE ASSISTANT II - HOURLY X130 08-SEP-2017 HOURLY Bi-Weekly Rate 2346.40 2463.20 2586.40 2716.00 2852.80 ADMINISTRATIVE ASSISTANT II - HOURLY X130 08-SEP-2017 HOURLY Monthly 5083.87 5336.93 5603.87 5884.67 6181.07 ADMINISTRATIVE ASSISTANT II - HOURLY X130 08-SEP-2017 HOURLY BUILDING INSPECTOR - HOURLY X595 08-SEP-2017 HOURLY Hourly Rate 39.06 41.01 43.07 45.23 47.48 BUILDING INSPECTOR - HOURLY X595 08-SEP-2017 HOURLY Bi-Weekly Rate 3124.80 3280.80 3445.60 3618.40 3798.40 BUILDING INSPECTOR - HOURLY X595 08-SEP-2017 HOURLY Monthly 6770.40 7108.40 7465.47 7839.87 8229.87 BUILDING INSPECTOR - HOURLY X595 08-SEP-2017 HOURLY BUILDING MAINTENANCE CUSTODIAN - HOURLY X185 08-SEP-2017 HOURLY Hourly Rate 22.17 23.27 24.43 25.66 26.93 BUILDING MAINTENANCE CUSTODIAN - HOURLY X185 08-SEP-2017 HOURLY Bi-Weekly Rate 1773.60 1861.60 1954.40 2052.80 2154.40 BUILDING MAINTENANCE CUSTODIAN - HOURLY X185 08-SEP-2017 HOURLY Monthly 3842.80 4033.47 4234.53 4447.73 4667.87 BUILDING MAINTENANCE CUSTODIAN - HOURLY X185 08-SEP-2017 HOURLY COMMUNICATIONS DISPATCHER - HOURLY X445 08-SEP-2017 HOURLY Hourly Rate 42.32 COMMUNICATIONS DISPATCHER - HOURLY X445 08-SEP-2017 HOURLY Bi-Weekly Rate 3385.60 COMMUNICATIONS DISPATCHER - HOURLY X445 08-SEP-2017 HOURLY Monthly 7335.47 COMMUNICATIONS DISPATCHER - HOURLY X445 08-SEP-2017 HOURLY COMMUNITY SERVICES SITE COORDINATOR - HOURLY X660 08-SEP-2017 HOURLY Hourly Rate 22.18 23.29 24.46 25.69 26.98 COMMUNITY SERVICES SITE COORDINATOR - HOURLY X660 08-SEP-2017 HOURLY Bi-Weekly Rate 1774.40 1863.20 1956.80 2055.20 2158.40 COMMUNITY SERVICES SITE COORDINATOR - HOURLY X660 08-SEP-2017 HOURLY Monthly 3844.53 4036.93 4239.73 4452.93 4676.53 COMMUNITY SERVICES SITE COORDINATOR - HOURLY X660 08-SEP-2017 HOURLY CONSULTANT - HOURLY X570 08-SEP-2017 HOURLY Hourly Rate 10.82 128.75 CONSULTANT - HOURLY X570 08-SEP-2017 HOURLY Bi-Weekly Rate 865.60 10300.00 CONSULTANT - HOURLY X570 08-SEP-2017 HOURLY Monthly 1875.47 22316.67 CONSULTANT - HOURLY X570 08-SEP-2017 HOURLY CULTURAL ARTS SPECIALIST - HOURLY X650 08-SEP-2017 HOURLY Hourly Rate 30.26 31.78 33.35 35.03 36.78 CULTURAL ARTS SPECIALIST - HOURLY X650 08-SEP-2017 HOURLY Bi-Weekly Rate 2420.80 2542.40 2668.00 2802.40 2942.40 CULTURAL ARTS SPECIALIST - HOURLY X650 08-SEP-2017 HOURLY Monthly 5245.07 5508.53 5780.67 6071.87 6375.20 CULTURAL ARTS SPECIALIST - HOURLY X650 08-SEP-2017 HOURLY JOB TITLE JOB CODES EFFECTIVE DATE UNIT PAY RATE STEP 1 STEP 2 STEP 3 STEP 4 STEP 5 EMERGENCY MEDICAL TECHNICIAN - HOURLY X281 08-SEP-2017 HOURLY Hourly Rate 16.94 17.80 18.68 19.62 20.60 EMERGENCY MEDICAL TECHNICIAN - HOURLY X281 08-SEP-2017 HOURLY Bi-Weekly Rate 1355.20 1424.00 1494.40 1569.60 1648.00 EMERGENCY MEDICAL TECHNICIAN - HOURLY X281 08-SEP-2017 HOURLY Monthly 2936.27 3085.33 3237.87 3400.80 3570.67 EMERGENCY MEDICAL TECHNICIAN - HOURLY X281 08-SEP-2017 HOURLY EQUIPMENT MECHANIC - HOURLY X510 08-SEP-2017 HOURLY Hourly Rate 31.38 32.94 34.59 36.33 38.14 EQUIPMENT MECHANIC - HOURLY X510 08-SEP-2017 HOURLY Bi-Weekly Rate 2510.40 2635.20 2767.20 2906.40 3051.20 EQUIPMENT MECHANIC - HOURLY X510 08-SEP-2017 HOURLY Monthly 5439.20 5709.60 5995.60 6297.20 6610.93 EQUIPMENT MECHANIC - HOURLY X510 08-SEP-2017 HOURLY FIRE COURIER - HOURLY X540 08-SEP-2017 HOURLY Hourly Rate 18.39 19.31 20.26 21.27 22.34 FIRE COURIER - HOURLY X540 08-SEP-2017 HOURLY Bi-Weekly Rate 1471.20 1544.80 1620.80 1701.60 1787.20 FIRE COURIER - HOURLY X540 08-SEP-2017 HOURLY Monthly 3187.60 3347.07 3511.73 3686.80 3872.27 FIRE COURIER - HOURLY X540 08-SEP-2017 HOURLY HUMAN RESOURCES CLERK - HOURLY X310 08-SEP-2017 HOURLY Hourly Rate 27.84 29.23 30.69 32.24 33.85 HUMAN RESOURCES CLERK - HOURLY X310 08-SEP-2017 HOURLY Bi-Weekly Rate 2227.20 2338.40 2455.20 2579.20 2708.00 HUMAN RESOURCES CLERK - HOURLY X310 08-SEP-2017 HOURLY Monthly 4825.60 5066.53 5319.60 5588.27 5867.33 HUMAN RESOURCES CLERK - HOURLY X310 08-SEP-2017 HOURLY HUMAN RESOURCES TECHNICIAN - HOURLY X265 08-SEP-2017 HOURLY Hourly Rate 29.33 30.79 32.33 33.95 35.66 HUMAN RESOURCES TECHNICIAN - HOURLY X265 08-SEP-2017 HOURLY Bi-Weekly Rate 2346.40 2463.20 2586.40 2716.00 2852.80 HUMAN RESOURCES TECHNICIAN - HOURLY X265 08-SEP-2017 HOURLY Monthly 5083.87 5336.93 5603.87 5884.67 6181.07 HUMAN RESOURCES TECHNICIAN - HOURLY X265 08-SEP-2017 HOURLY LIBRARIAN I - HOURLY X210 08-SEP-2017 HOURLY Hourly Rate 29.15 30.62 32.15 33.74 35.44 LIBRARIAN I - HOURLY X210 08-SEP-2017 HOURLY Bi-Weekly Rate 2332.00 2449.60 2572.00 2699.20 2835.20 LIBRARIAN I - HOURLY X210 08-SEP-2017 HOURLY Monthly 5052.67 5307.47 5572.67 5848.27 6142.93 LIBRARIAN I - HOURLY X210 08-SEP-2017 HOURLY LIBRARIAN II - HOURLY X670 08-SEP-2017 HOURLY Hourly Rate 32.08 33.68 35.37 37.14 39.00 LIBRARIAN II - HOURLY X670 08-SEP-2017 HOURLY Bi-Weekly Rate 2566.40 2694.40 2829.60 2971.20 3120.00 LIBRARIAN II - HOURLY X670 08-SEP-2017 HOURLY Monthly 5560.53 5837.87 6130.80 6437.60 6760.00 LIBRARIAN II - HOURLY X670 08-SEP-2017 HOURLY LIBRARY ASSISTANT I - HOURLY X220 08-SEP-2017 HOURLY Hourly Rate 22.90 24.04 25.25 26.51 27.83 LIBRARY ASSISTANT I - HOURLY X220 08-SEP-2017 HOURLY Bi-Weekly Rate 1832.00 1923.20 2020.00 2120.80 2226.40 LIBRARY ASSISTANT I - HOURLY X220 08-SEP-2017 HOURLY Monthly 3969.33 4166.93 4376.67 4595.07 4823.87 LIBRARY ASSISTANT I - HOURLY X220 08-SEP-2017 HOURLY LIBRARY ASSISTANT II - HOURLY X225 08-SEP-2017 HOURLY Hourly Rate 25.28 26.54 27.88 29.27 30.74 LIBRARY ASSISTANT II - HOURLY X225 08-SEP-2017 HOURLY Bi-Weekly Rate 2022.40 2123.20 2230.40 2341.60 2459.20 LIBRARY ASSISTANT II - HOURLY X225 08-SEP-2017 HOURLY Monthly 4381.87 4600.27 4832.53 5073.47 5328.27 LIBRARY ASSISTANT II - HOURLY X225 08-SEP-2017 HOURLY JOB TITLE JOB CODES EFFECTIVE DATE UNIT PAY RATE STEP 1 STEP 2 STEP 3 STEP 4 STEP 5 LIBRARY CLERK - HOURLY X235 08-SEP-2017 HOURLY Hourly Rate 14.19 14.90 15.65 16.43 17.25 LIBRARY CLERK - HOURLY X235 08-SEP-2017 HOURLY Bi-Weekly Rate 1135.20 1192.00 1252.00 1314.40 1380.00 LIBRARY CLERK - HOURLY X235 08-SEP-2017 HOURLY Monthly 2459.60 2582.67 2712.67 2847.87 2990.00 LIBRARY CLERK - HOURLY X235 08-SEP-2017 HOURLY LIBRARY PAGE - HOURLY X250 08-SEP-2017 HOURLY Hourly Rate 10.82 11.36 11.93 12.52 13.14 LIBRARY PAGE - HOURLY X250 08-SEP-2017 HOURLY Bi-Weekly Rate 865.60 908.80 954.40 1001.60 1051.20 LIBRARY PAGE - HOURLY X250 08-SEP-2017 HOURLY Monthly 1875.47 1969.07 2067.87 2170.13 2277.60 LIBRARY PAGE - HOURLY X250 08-SEP-2017 HOURLY LITERACY SERVICES ASSISTANT COORDINATOR - HOURLY X655 08-SEP-2017 HOURLY Hourly Rate 25.28 26.54 27.88 29.27 30.74 LITERACY SERVICES ASSISTANT COORDINATOR - HOURLY X655 08-SEP-2017 HOURLY Bi-Weekly Rate 2022.40 2123.20 2230.40 2341.60 2459.20 LITERACY SERVICES ASSISTANT COORDINATOR - HOURLY X655 08-SEP-2017 HOURLY Monthly 4381.87 4600.27 4832.53 5073.47 5328.27 LITERACY SERVICES ASSISTANT COORDINATOR - HOURLY X655 08-SEP-2017 HOURLY LITERACY SERVICES ASSISTANT I - HOURLY X665 08-SEP-2017 HOURLY Hourly Rate 22.90 24.04 25.25 26.51 27.83 LITERACY SERVICES ASSISTANT I - HOURLY X665 08-SEP-2017 HOURLY Bi-Weekly Rate 1832.00 1923.20 2020.00 2120.80 2226.40 LITERACY SERVICES ASSISTANT I - HOURLY X665 08-SEP-2017 HOURLY Monthly 3969.33 4166.93 4376.67 4595.07 4823.87 LITERACY SERVICES ASSISTANT I - HOURLY X665 08-SEP-2017 HOURLY MISCELLANEOUS HOURLY X280 08-SEP-2017 HOURLY Hourly Rate 10.82 82.40 MISCELLANEOUS HOURLY X280 08-SEP-2017 HOURLY Bi-Weekly Rate 865.60 6592.00 MISCELLANEOUS HOURLY X280 08-SEP-2017 HOURLY Monthly 1875.47 14282.67 MISCELLANEOUS HOURLY X280 08-SEP-2017 HOURLY OFFICE ASSISTANT - HOURLY X440 08-SEP-2017 HOURLY Hourly Rate 21.48 22.55 23.68 24.86 26.11 OFFICE ASSISTANT - HOURLY X440 08-SEP-2017 HOURLY Bi-Weekly Rate 1718.40 1804.00 1894.40 1988.80 2088.80 OFFICE ASSISTANT - HOURLY X440 08-SEP-2017 HOURLY Monthly 3723.20 3908.67 4104.53 4309.07 4525.73 OFFICE ASSISTANT - HOURLY X440 08-SEP-2017 HOURLY OFFICE SPECIALIST - HOURLY X415 08-SEP-2017 HOURLY Hourly Rate 23.62 24.80 26.05 27.35 28.72 OFFICE SPECIALIST - HOURLY X415 08-SEP-2017 HOURLY Bi-Weekly Rate 1889.60 1984.00 2084.00 2188.00 2297.60 OFFICE SPECIALIST - HOURLY X415 08-SEP-2017 HOURLY Monthly 4094.13 4298.67 4515.33 4740.67 4978.13 OFFICE SPECIALIST - HOURLY X415 08-SEP-2017 HOURLY PARK MAINTENANCE WORKER - HOURLY X300 08-SEP-2017 HOURLY Hourly Rate 25.50 26.78 28.12 29.51 31.00 PARK MAINTENANCE WORKER - HOURLY X300 08-SEP-2017 HOURLY Bi-Weekly Rate 2040.00 2142.40 2249.60 2360.80 2480.00 PARK MAINTENANCE WORKER - HOURLY X300 08-SEP-2017 HOURLY Monthly 4420.00 4641.87 4874.13 5115.07 5373.33 PARK MAINTENANCE WORKER - HOURLY X300 08-SEP-2017 HOURLY PARKING ENFORCEMENT OFFICER - HOURLY X180 08-SEP-2017 HOURLY Hourly Rate 23.43 24.61 25.84 27.14 28.49 PARKING ENFORCEMENT OFFICER - HOURLY X180 08-SEP-2017 HOURLY Bi-Weekly Rate 1874.40 1968.80 2067.20 2171.20 2279.20 PARKING ENFORCEMENT OFFICER - HOURLY X180 08-SEP-2017 HOURLY Monthly 4061.20 4265.73 4478.93 4704.27 4938.27 PARKING ENFORCEMENT OFFICER - HOURLY X180 08-SEP-2017 HOURLY JOB TITLE JOB CODES EFFECTIVE DATE UNIT PAY RATE STEP 1 STEP 2 STEP 3 STEP 4 STEP 5 PLANNER, ASSOCIATE - HOURLY X125 08-SEP-2017 HOURLY Hourly Rate 38.43 40.33 42.36 44.49 46.71 PLANNER, ASSOCIATE - HOURLY X125 08-SEP-2017 HOURLY Bi-Weekly Rate 3074.40 3226.40 3388.80 3559.20 3736.80 PLANNER, ASSOCIATE - HOURLY X125 08-SEP-2017 HOURLY Monthly 6661.20 6990.53 7342.40 7711.60 8096.40 PLANNER, ASSOCIATE - HOURLY X125 08-SEP-2017 HOURLY PLANNER, SENIOR - HOURLY X335 08-SEP-2017 HOURLY Hourly Rate 47.61 49.98 52.46 55.09 57.84 PLANNER, SENIOR - HOURLY X335 08-SEP-2017 HOURLY Bi-Weekly Rate 3808.80 3998.40 4196.80 4407.20 4627.20 PLANNER, SENIOR - HOURLY X335 08-SEP-2017 HOURLY Monthly 8252.40 8663.20 9093.07 9548.93 10025.60 PLANNER, SENIOR - HOURLY X335 08-SEP-2017 HOURLY POLICE COURT LIAISON - HOURLY X193 08-SEP-2017 HOURLY Hourly Rate 25.13 26.40 27.71 29.09 30.54 POLICE COURT LIAISON - HOURLY X193 08-SEP-2017 HOURLY Bi-Weekly Rate 2010.40 2112.00 2216.80 2327.20 2443.20 POLICE COURT LIAISON - HOURLY X193 08-SEP-2017 HOURLY Monthly 4355.87 4576.00 4803.07 5042.27 5293.60 POLICE COURT LIAISON - HOURLY X193 08-SEP-2017 HOURLY POLICE PROPERTY/EVIDENCE ASSISTANT - HOURLY X190 08-SEP-2017 HOURLY Hourly Rate 25.13 26.40 27.71 29.09 30.54 POLICE PROPERTY/EVIDENCE ASSISTANT - HOURLY X190 08-SEP-2017 HOURLY Bi-Weekly Rate 2010.40 2112.00 2216.80 2327.20 2443.20 POLICE PROPERTY/EVIDENCE ASSISTANT - HOURLY X190 08-SEP-2017 HOURLY Monthly 4355.87 4576.00 4803.07 5042.27 5293.60 POLICE PROPERTY/EVIDENCE ASSISTANT - HOURLY X190 08-SEP-2017 HOURLY POLICE RECORDS SPECIALIST - HOURLY X191 08-SEP-2017 HOURLY Hourly Rate 25.13 26.40 27.71 29.09 30.54 POLICE RECORDS SPECIALIST - HOURLY X191 08-SEP-2017 HOURLY Bi-Weekly Rate 2010.40 2112.00 2216.80 2327.20 2443.20 POLICE RECORDS SPECIALIST - HOURLY X191 08-SEP-2017 HOURLY Monthly 4355.87 4576.00 4803.07 5042.27 5293.60 POLICE RECORDS SPECIALIST - HOURLY X191 08-SEP-2017 HOURLY POLICE RESERVE OFFICER - HOURLY X325 08-SEP-2017 HOURLY Hourly Rate 43.01 POLICE RESERVE OFFICER - HOURLY X325 08-SEP-2017 HOURLY Bi-Weekly Rate 3440.80 POLICE RESERVE OFFICER - HOURLY X325 08-SEP-2017 HOURLY 7455.07 POLICE RESERVE OFFICER - HOURLY X325 08-SEP-2017 HOURLY POLICE SERVICE TECHNICIAN - HOURLY X192 08-SEP-2017 HOURLY Hourly Rate 25.85 27.15 28.51 29.94 31.44 POLICE SERVICE TECHNICIAN - HOURLY X192 08-SEP-2017 HOURLY Bi-Weekly Rate 2068.00 2172.00 2280.80 2395.20 2515.20 POLICE SERVICE TECHNICIAN - HOURLY X192 08-SEP-2017 HOURLY Monthly 4480.67 4706.00 4941.73 5189.60 5449.60 POLICE SERVICE TECHNICIAN - HOURLY X192 08-SEP-2017 HOURLY PRESCHOOL TEACHER I - HOURLY X690 08-SEP-2017 HOURLY Hourly Rate 20.21 21.23 22.29 23.40 24.57 PRESCHOOL TEACHER I - HOURLY X690 08-SEP-2017 HOURLY Bi-Weekly Rate 1616.80 1698.40 1783.20 1872.00 1965.60 PRESCHOOL TEACHER I - HOURLY X690 08-SEP-2017 HOURLY Monthly 3503.07 3679.87 3863.60 4056.00 4258.80 PRESCHOOL TEACHER I - HOURLY X690 08-SEP-2017 HOURLY PRESCHOOL TEACHER II - HOURLY X680 08-SEP-2017 HOURLY Hourly Rate 22.24 23.35 24.51 25.75 27.03 PRESCHOOL TEACHER II - HOURLY X680 08-SEP-2017 HOURLY Bi-Weekly Rate 1779.20 1868.00 1960.80 2060.00 2162.40 PRESCHOOL TEACHER II - HOURLY X680 08-SEP-2017 HOURLY Monthly 3854.93 4047.33 4248.40 4463.33 4685.20 PRESCHOOL TEACHER II - HOURLY X680 08-SEP-2017 HOURLY JOB TITLE JOB CODES EFFECTIVE DATE UNIT PAY RATE STEP 1 STEP 2 STEP 3 STEP 4 STEP 5 PUBLIC WORKS MAINTENANCE WORKER - HOURLY X345 08-SEP-2017 HOURLY Hourly Rate 25.50 26.78 28.12 29.51 31.00 PUBLIC WORKS MAINTENANCE WORKER - HOURLY X345 08-SEP-2017 HOURLY Bi-Weekly Rate 2040.00 2142.40 2249.60 2360.80 2480.00 PUBLIC WORKS MAINTENANCE WORKER - HOURLY X345 08-SEP-2017 HOURLY Monthly 4420.00 4641.87 4874.13 5115.07 5373.33 PUBLIC WORKS MAINTENANCE WORKER - HOURLY X345 08-SEP-2017 HOURLY RECREATION & COMMUNITY SERVICES PROG COOR - HOURLY X700 08-SEP-2017 HOURLY Hourly Rate 28.02 29.41 30.87 32.43 34.05 RECREATION & COMMUNITY SERVICES PROG COOR - HOURLY X700 08-SEP-2017 HOURLY Bi-Weekly Rate 2241.60 2352.80 2469.60 2594.40 2724.00 RECREATION & COMMUNITY SERVICES PROG COOR - HOURLY X700 08-SEP-2017 HOURLY Monthly 4856.80 5097.73 5350.80 5621.20 5902.00 RECREATION & COMMUNITY SERVICES PROG COOR - HOURLY X700 08-SEP-2017 HOURLY RECREATION INSTRUCTOR - HOURLY X350 08-SEP-2017 HOURLY Hourly Rate 10.82 36.05 RECREATION INSTRUCTOR - HOURLY X350 08-SEP-2017 HOURLY Bi-Weekly Rate 865.60 2884.00 RECREATION INSTRUCTOR - HOURLY X350 08-SEP-2017 HOURLY Monthly 1875.47 6248.67 RECREATION INSTRUCTOR - HOURLY X350 08-SEP-2017 HOURLY RECREATION LEADER I - HOURLY X360 08-SEP-2017 HOURLY Hourly Rate 10.82 11.36 11.93 12.52 13.14 RECREATION LEADER I - HOURLY X360 08-SEP-2017 HOURLY Bi-Weekly Rate 865.60 908.80 954.40 1001.60 1051.20 RECREATION LEADER I - HOURLY X360 08-SEP-2017 HOURLY Monthly 1875.47 1969.07 2067.87 2170.13 2277.60 RECREATION LEADER I - HOURLY X360 08-SEP-2017 HOURLY RECREATION LEADER II - HOURLY X365 08-SEP-2017 HOURLY Hourly Rate 12.09 12.70 13.34 14.01 14.71 RECREATION LEADER II - HOURLY X365 08-SEP-2017 HOURLY Bi-Weekly Rate 967.20 1016.00 1067.20 1120.80 1176.80 RECREATION LEADER II - HOURLY X365 08-SEP-2017 HOURLY Monthly 2095.60 2201.33 2312.27 2428.40 2549.73 RECREATION LEADER II - HOURLY X365 08-SEP-2017 HOURLY RECREATION LEADER III - HOURLY X370 08-SEP-2017 HOURLY Hourly Rate 14.13 14.84 15.58 16.36 17.19 RECREATION LEADER III - HOURLY X370 08-SEP-2017 HOURLY Bi-Weekly Rate 1130.40 1187.20 1246.40 1308.80 1375.20 RECREATION LEADER III - HOURLY X370 08-SEP-2017 HOURLY Monthly 2449.20 2572.27 2700.53 2835.73 2979.60 RECREATION LEADER III - HOURLY X370 08-SEP-2017 HOURLY RECREATION LEADER IV - HOURLY X375 08-SEP-2017 HOURLY Hourly Rate 18.39 19.31 20.26 21.27 22.34 RECREATION LEADER IV - HOURLY X375 08-SEP-2017 HOURLY Bi-Weekly Rate 1471.20 1544.80 1620.80 1701.60 1787.20 RECREATION LEADER IV - HOURLY X375 08-SEP-2017 HOURLY Monthly 3187.60 3347.07 3511.73 3686.80 3872.27 RECREATION LEADER IV - HOURLY X375 08-SEP-2017 HOURLY SAFETY INSPECTOR - HOURLY X181 08-SEP-2017 HOURLY Hourly Rate 27.80 29.19 30.65 32.19 33.79 SAFETY INSPECTOR - HOURLY X181 08-SEP-2017 HOURLY Bi-Weekly Rate 2224.00 2335.20 2452.00 2575.20 2703.20 SAFETY INSPECTOR - HOURLY X181 08-SEP-2017 HOURLY Monthly 4818.67 5059.60 5312.67 5579.60 5856.93 SAFETY INSPECTOR - HOURLY X181 08-SEP-2017 HOURLY VAN DRIVER - HOURLY X555 08-SEP-2017 HOURLY Hourly Rate 15.61 16.39 17.22 18.08 18.98 VAN DRIVER - HOURLY X555 08-SEP-2017 HOURLY Bi-Weekly Rate 1248.80 1311.20 1377.60 1446.40 1518.40 VAN DRIVER - HOURLY X555 08-SEP-2017 HOURLY Monthly 2705.73 2840.93 2984.80 3133.87 3289.87 VAN DRIVER - HOURLY X555 08-SEP-2017 HOURLY City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-746 Agenda Date:9/6/2017 Version:1 Item #:9. Report regarding a resolution awarding a construction contract to VSS International,Inc.of West Sacramento, California for the 2017 Scrub Seal &Rapid Setting Slurry Seal Project in an amount not to exceed $754,120 and authorizing a total construction budget of $1,080,356.(Sam Bautista, Principal Engineer) RECOMMENDATION It is recommended that the City Council adopt a resolution awarding a construction contract to VSS International,Inc.of West Sacramento,California for the 2017 Scrub Seal &Rapid Setting Slurry Seal Project (Project No.st1705)in an amount not to exceed $754,120 and authorizing a total construction budget of $1,080,356. BACKGROUND/DISCUSSION The 2017 Scrub Seal &Rapid Setting Slurry Seal Project will rehabilitate approximately 974,000 square feet of City streets with the application of modified rejuvenating emulsion and scrubbing,followed with a mixture of polymer modified asphalt emulsion, mineral aggregate, mineral filler, water, concrete, and other additives. The work includes removal of vegetation,debris and pavement striping and marking on streets,repairs of structural pavement failures,applying scrub seal and the slurry seal mixture,and the reinstallation of striping and pavement markings. Staff advertised a notice inviting new bids for the project on July 6,2017 and July 13,2017.On August 10, 2017,staff received four bids in response.The lowest responsible bidder was VSS International,Inc.of West Sacramento,California.Staff has verified the low bidder’s current contractor’s license with the California State Licensing Board and found it to be in good standing. The following is a summary of all bids received: Base Bid VSS International, Inc. of West Sacramento, CA $754,120 Intermountain Slurry Seal of Elk Grove, CA $889,988 Graham Contractors, Inc. of San Jose, CA $890,909 Telfer Pavement Technologies, LLC, of McClellan, CA $916,763 The Engineer’s estimate is $840,000. Shown below is the project budget: City of South San Francisco Printed on 8/31/2017Page 1 of 2 powered by Legistar™ File #:17-746 Agenda Date:9/6/2017 Version:1 Item #:9. VSS International, Inc. Construction Contract $ 754,120 Construction Contingency (25 percent)$ 188,530 Contract Construction Management $ 100,000 Construction Administration (5 percent)$ 37,706 Total Project Budget $1,080,356 The construction contingency will be used for any additional costs related to design changes during the construction operations.There are no Disadvantaged Business Enterprise (DBE)requirements since no federal funds are being utilized on the project. FUNDING This project is funded by the Measure W funds,and the project is included in the City of South San Francisco’s Fiscal Year 2017-18 Capital Improvement Program (Project No.st1705)with sufficient funds allocated to cover the project cost. CONCLUSION Awarding the construction contract to VSS International,Inc.of West Sacramento,California,for the 2017 Street Surface Seal Project will prolong the useful life of the existing asphalt surface until the asphalt pavement will need to be replaced. Attachment: 2017 Street Surface Seal Project Map City of South San Francisco Printed on 8/31/2017Page 2 of 2 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-747 Agenda Date:9/6/2017 Version:1 Item #:9a. Resolution awarding the construction contract to VSS International,Inc.of West Sacramento,California for the 2017 Scrub Seal &Rapid Setting Slurry Seal Project in an amount not to exceed $754,120 and authorizing a total construction budget of $1,080,356. WHEREAS,the 2017 Scrub Seal &Rapid Setting Slurry Seal Street Project will rehabilitate 974,000 square feet of City streets; and WHEREAS,City of South San Francisco (“City”)staff issued a Notice Inviting new Bids for the 2017 Scrub Seal &Rapid Setting Slurry Seal Project (“Project”)and on August 10,2017,received four (4)bids in response; and WHEREAS,VSS International,Inc.of West Sacramento,California was the lowest responsible bidder and provided competitive unit prices; and WHEREAS,staff recommends awarding the construction contract to VSS International,Inc.of West Sacramento, California in an amount not to exceed $754,120, which is the total for the base bid; and WHEREAS,the Project is included in the City of South San Francisco’s Fiscal Year 2017-18 Capital Improvement Program (CIP) and sufficient funds have been allocated to cover the Project cost; and NOW,THEREFORE,BE IT RESOLVED,by the City Council of the City of South San Francisco that the City Council hereby awards the construction contract for the 2017 Scrub Seal &Rapid Setting Slurry Seal Project to VSS International,Inc.of West Sacramento,California in an amount not to exceed $754,120,conditioned on VSS International,Inc.’s timely execution of the Project contract and submission of all required documents, including but not limited to,certificates of insurance and endorsements,in accordance with the Project documents. BE IT FURTHER RESOLVED that the City Council authorizes a total project construction budget of $1,080,356 and authorizes the City Manager to utilize any unspent amount of the total project budget,if necessary, towards additional construction contingency budget. BE IT FURTHER RESOLVED that the City Council authorizes the Finance Department to establish the Project Budget consistent with the information contained in the staff report. City of South San Francisco Printed on 9/20/2017Page 1 of 2 powered by Legistar™ File #:17-747 Agenda Date:9/6/2017 Version:1 Item #:9a. BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to execute the documents on behalf of the City upon timely submission by VSS International,Inc.’s signed contract and all other documents, subject to approval as to form by the City Attorney. BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to take any other related actions consistent with the intention of this Resolution. ***** City of South San Francisco Printed on 9/20/2017Page 2 of 2 powered by Legistar™ NON-FED-AID AGREEMENT TEMPLATE MAY 2017 CITY OF SOUTH SAN FRANCISCO 2017 STREET SURFACE SEAL PROJECT ENGINEERING FILE NO. ST-16-3 PROJECT NO. 510-99999-ST1705, BID NO. 2603 NOTICE INVITING BIDS PART I - PROPOSAL PROPOSAL FORMS FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS PART II – GENERAL CONDITIONS PART III – SPECIAL PROVISIONS SPECIAL CONDITIONS TECHNICAL SPECIFICATIONS PART IV – PROJECT PLANS EXHIBIT A CITY OF SOUTH SAN FRANCISCO ENGINEERING DIVISION FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS TABLE OF CONTENTS Page No. 1. Scope of Work A-1 2. The Contract Documents A-1 3. Equipment - Performance of Work A-2 4. Contract Price A-2 5. Rights of City to Increase Working Days A-2 6. Option of City to Terminate Agreement in Event of Failure to Complete Work A-2 7. Termination of Contract for Convenience A-3 8. Performance by Sureties A-5 9. Hold-Harmless Agreement and Contractor's Insurance A-6 10. Insurance A-6 11. Proof of Carriage of Insurance A-7 12. Provisions Cumulative A-8 13. Notices A-8 14. Interpretation A-8 Attachment A – Escrow Agreement for Security Deposits in Lieu of Retention EXHIBIT A NON-FED-AID AGREEMENT TEMPLATE MAY 2017 Page A-1 of 12 FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS THIS AGREEMENT made and entered into this ____, day of ______, _____, between the CITY OF SOUTH SAN FRANCISCO, a municipal corporation and political subdivision of the State of California, hereinafter called “CITY”, and VSS International, Inc., hereinafter called “CONTRACTOR”1. W I T N E S S E T H: WHEREAS, City has taken appropriate proceedings to authorize construction of the public work and improvements herein provided and execution of this contract. WHEREAS, a notice was duly published for bids for the contract for the improvements hereinafter described. WHEREAS, on September 6, 2017, notice duly given, the City Council (“Council”) of said City awarded the contract for the construction of the improvements hereinafter described to the Contractor, which Contractor said Council found to be the lowest responsible bidder for said improvements. WHEREAS, City and Contractor desire to enter into this agreement for the construction of said improvements pursuant to the terms, definitions, and conditions set forth in the General Provisions and other Contract Documents. IT IS AGREED as follows: 1. Scope of Work. Contractor shall perform the Work described briefly as follows: The Work consists of the furnishing of all labor, materials, tools, equipment, and services necessary for the construction of the 2017 STREET SURFACE SEAL PROJECT; in accordance with the Contract Documents. Also included are any such other items or details not mentioned above that are required by the Contract Documents, which are to be constructed or furnished and installed as shown on the plans, as specified herein and as directed by the Engineer. The aforementioned improvements are further described in the "Contract Documents" hereinafter referred to. 2. The Contract Documents. The complete Contract consists of the following documents: (A) Notice Inviting Bids (B) Part I – Submitted Proposal (as accepted) (C) This Agreement, including Contractor’s Payment Bond, Faithful Performance Bond and Guaranty Bond. 1. 1The term "Contractor" as used herein is employed without distinction as to either number or gender and shall include whenever the context shall permit all agents, representatives, employees, servants, subcontractors and business or social invitees. EXHIBIT A Page A-2 of 9 (D) Part II – General Conditions (E) Part III – Special Provisions: Special Conditions and Technical Specifications, including State Standard Specifications dated 2015, sections 10-99, as revised in Revised Standard Specifications (RSS) dated 6/28/2017 (F) Part IV – Project Plans, approved 6/28/2017 (G) Administrative subsections of the State Standard Specifications dated 2015, as specifically referenced in contract Parts I-IV and as revised in RSS dated 6/28/2017 All rights and obligations of City and Contractor are fully set forth and described in the contract documents. All of the above-named documents are intended to cooperate, so that any work called for in one and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents. The documents comprising the complete contract will hereinafter be referred to as “the Contract Documents.” 3. Equipment - Performance of Work. Contractor shall furnish all tools, equipment, apparatus, facilities, labor, and materials necessary to perform and complete in a good and workmanlike manner the Work of general construction as called for, and for the manner designated in, and in strict conformity with, the plans and specifications for said Work entitled: 2017 STREET SURFACE SEAL PROJECT The equipment, apparatus, facilities, labor, and materials shall be furnished and said Work performed and completed as required in said plans and specifications under the direction and supervision and subject to the approval of the Engineer of said City or the Engineer’s designated assistant. 4. Contract Price. City shall pay, and Contractor shall accept, in full payment for the Work agreed to be done the sum of Seven Hundred Fifty Four Thousand, One Hundred Twenty Dollars ($754,120.00). Said price is determined by the lump sum price contained in Contractor's bid proposal (“Bid”). The lump sum price and unit prices are set forth in the completed Bid forms attached hereto and made a part hereof as if set forth herein verbatim. In the event work is performed or materials furnished in addition to those set forth in Contractor's bid and the specifications herein, such work and materials will be paid for at the unit prices therein contained. Said amount shall be paid in installments as hereinafter provided. 5. Rights of City to Increase Working Days. If such Work is not completed within the time specified, the Engineer shall have the right to increase the number of working days in the amount it may determine will best serve the interest of the City. If it desires to increase said number of working days, it shall have the further right to charge to Contractor and deduct from the final payment for the Work the actual cost of engineering, inspection, superintendence, and other overhead expenses which are directly chargeable to Contractor and which accrue during the period of such extension, except that the cost of the final service and preparation of the final estimates shall not be included in such charges, provided, however, that no extension of time for the completion of such Work shall be allowed unless at least twenty (20) calendar days prior to the time herein fixed for the completion thereof or the time fixed by the EXHIBIT A Page A-3 of 9 Engineer for such completion as extended, Contractor shall have filed application for extension thereof, in writing with the Engineer. 6. Option of City to Terminate Agreement in Event of Failure to Complete Work. If at any time in the opinion of the Engineer, the Contractor has refused or failed to prosecute the Work or any severable part thereof, with such diligence as will insure its work, or any completion within the time specified, or any extensions thereof, or shall have failed to complete said work within such time, or if Contractor should be adjudged a bankrupt, or if Contractor should make a general assignment for the benefit of Contractor's creditors, or if a receiver should be appointed in the event of Contractor's insolvency, or if Contractor, or any Subcontractor, should violate any of the provisions of this Agreement, the Engineer may give written notice to Contractor, and Contractor's sureties of its intention to terminate this Agreement, such notice to contain the reasons for such intention to terminate this Agreement, and unless within five calendar (5) days after the serving of such notice, such violation shall cease and satisfactory arrangements for the correction thereof be made, this Agreement may, at the option of City, upon expiration of said time, cease and terminate. Any excess of cost arising therefrom over and above the contract price will be charged against the Contractor and the Contractor’s sureties who will be liable therefore. In the event of such termination, all money due the Contractor or retained under the terms of this contract shall be forfeited to the City; but such forfeiture will not release the Contractor or the Contractor’s sureties from liability or failure to fulfill the contract. The Contractor and the Contractor’s sureties will be credited with the amount of money so forfeited toward any excess of cost over and above the contract price, arising from the suspension termination of the operations of the contract and the completion of the Work by the City as above provided, and the Contractor will be so credited with any surplus remaining after all just claims for such completion have been paid. In the determination of the question whether there has been any such noncompliance with the contract as to warrant the suspension termination or annulment thereof, the decision of the Engineer shall be binding on all parties to the contract. 7. Termination of Contract for Convenience. The City also reserves the right to terminate the contract at any time upon a determination by the Engineer in the Engineer's sole discretion that termination of the contract is in the best interest of the City. If the City elects to terminate the contract for convenience, the termination of the contract and the total compensation payable to the Contractor shall be governed by the following: (A) The City will issue the Contractor a written notice signed by the Engineer, specifying that the contract is terminated. Upon receipt of said written notice, the Contractor will be relieved of further responsibility for damage to the Work (excluding materials) as specified in Section VII-17, "Contractor's Responsibility for the Work," of the General Conditions and, except as otherwise directed in writing by the Engineer, the Contractor shall: (1) Stop all work under the contract except that specifically directed to be completed prior to acceptance. (2) Perform work the Engineer deems necessary to secure the project for termination. (3) Remove equipment and plant from the site of the Work. (4) Take such action as is necessary to protect materials from damage. EXHIBIT A Page A-4 of 9 (5) Notify all subcontractors and suppliers that the contract is being terminated and that their contracts or orders are not to be further performed unless otherwise authorized in writing by the Engineer. (6) Provide the Engineer with an inventory list of all materials previously produced, purchased or ordered from suppliers for use in the Work and not yet used in the Work, including its storage location, and such other information as the Engineer may request. (7) Dispose of materials not yet used in the Work as directed by the Engineer. It shall be the Contractor's responsibility to provide the City with good title to all materials purchased by the City hereunder, including materials for which partial payment has been made as provided in Section IX-2, “Progress Payments,” of the General Conditions and with bills of sale or other documents of title for such materials. (8) Subject to the prior written approval of the Engineer, settle all outstanding liabilities and all claims arising out of subcontracts or orders for materials terminated hereunder. To the extent directed by the Engineer, the Contractor shall assign to the City all the right, title, and interest of the Contractor under subcontracts or orders for materials terminated hereunder. (9) Furnish the Engineer with the documentation required to be furnished by the Contractor under the provisions of the contract, including, on projects as to which Federal and State funds are involved, all documentation required under the Federal and State requirements included in the contract. (10) Take such other actions as the Engineer may direct. (B) Acceptance of the contract as hereinafter specified shall not relieve the Contractor of responsibility for damage to materials. The Contractor shall continue to be responsible for damage to materials after issuance of the Notice of Termination, except as follows: (1) The Contractor’s responsibility for damage to materials for which partial payment has been made as provided in Section IX-2, “Progress Payments,” of the General Conditions and for materials furnished by the City for use in the Work and unused shall terminate when the Engineer certifies that such materials have been stored in the manner and at the locations the Engineer has directed. (2) The Contractor’s responsibility for damage to materials purchased by the City subsequent to the issuance of the notice that the contract is to be terminated shall terminate when title and delivery of such materials has been taken by the City. (3) When the Engineer determines that the Contractor has completed the Work under the contract directed to be completed prior to termination and such other work as may have been ordered to secure the project for termination, the Contractor will recommend that the Engineer formally accept the contract to the extent performed, and immediately upon and after such acceptance by the Engineer, the Contractor will not be required to perform any further Work thereon and shall be relieved of the Contractor's contractual responsibilities for injury to persons or property which occurs after the formal acceptance of the project by the Engineer. (C) Termination of the contract shall not relieve the surety of its obligation for any just claims arising out of the work performed. EXHIBIT A Page A-5 of 9 (D) The total compensation to be paid to the Contractor shall be determined by the Engineer on the basis of the following: (1) The reasonable cost to the Contractor, without profit, for all work performed under the contract, including mobilization, demobilization and work done to secure the project for termination. In determining the reasonable cost, deductions will be made for the cost of materials to be retained by the Contractor, amounts realized by the sale of materials, and for other appropriate credits against the cost of the work. When, in the opinion of the Engineer, the cost of a contract item of work is excessively high due to costs incurred to remedy or replace defective or rejected work, the reasonable cost to be allowed will be the estimated reasonable cost of performing such work in compliance with the requirements of the plans and specifications and the excessive actual cost shall be disallowed. (2) A reasonable allowance for profit on the cost of the work performed as determined under Subsection (1), provided the Contractor establishes to the satisfaction of the Engineer that it is reasonably probable that the Contractor would have made a profit had the contract been completed and provided further, that the profit allowed shall in no event exceed four (4) percent of said cost. (3) The reasonable cost to the Contractor of handling material returned to the vendor, delivered to the City, or otherwise disposed of as directed by the Engineer. (4) A reasonable allowance for the Contractor’s administrative costs in determining the amount payable due to termination of the contract. (5) A reasonable credit to the City for defective or incomplete work not corrected. All records of the Contractor and subcontractors necessary to determine compensation in accordance with the provisions of this Section 5 shall be open to inspection or audit by representatives of the City at all times after issuance of the Notice of Termination and for a period of three (3) years, thereafter, and such records shall be retained for that period. After acceptance of the Work by the Engineer, the Engineer may make payments on the basis of interim estimates pending issuance of the Final Estimate in accordance with Section IX-7, “Final Payment,” of the General Conditions when, in the Engineer's opinion, the amount thus paid, together with all amounts previously paid or allowed, will not result in total compensation in excess of that to which the Contractor will be entitled. All payments, including payment upon the Final Estimate shall be subject to deduction for prior payments and amounts, if any, to be kept or retained under the provisions of the contract. If this contract is terminated by the City for cause, and it is later determined that the proper basis for a termination for cause did not exist, the termination shall be deemed to have been a termination for convenience and governed by the terms of this contract dealing with such termination. If the contract is terminated by the City for cause or convenience, such termination shall neither act as a waiver by the City of its right to require the Contractor to correct defects in the Work performed by the Contractor nor void any warranties applicable to the Work performed under the contract. The provisions of this Section 5 shall be included in all subcontracts. EXHIBIT A Page A-6 of 9 In the event of conflict between the termination provisions of this Section 8 and any other provision or the contract, this Section 5 shall prevail. 8. Performance by Sureties. In the event of any termination as herein before provided, City shall immediately give written notice thereof to Contractor and Contractor's sureties and the sureties shall have the right to take over and perform the Agreement, provided, however, that if the sureties, within five (5) working days after giving them said notice of termination, do not give the City written notice of their intention to take over the performance of the Agreement and do not commence performance thereof within five (5) working days after notice to the City of such election, City may take over the Work and prosecute the same to completion by contract or by any other method it may deem advisable, for the account, and at the expense, of Contractor, and the sureties shall be liable to City for any excess cost or damages occasioned City thereby; and, in such event, City may, without liability for so doing, take possession of and utilize in completing the Work such materials, appliances, plant, and other property belonging to Contractor as may be on the site of the Work and necessary therefore. Should Contractor contract in an individual capacity, the surety bond shall contain the following provision: “Should Contractor contract in the Contractor’s individual capacity, the death of the Contractor shall not relieve the surety of its obligations.” 9. Hold-Harmless Agreement and Contractor's Insurance. Contractor agrees to, and shall, hold City, its elective and appointive boards, officers, agents, and employees harmless from any liability for damage or claims for damage for personal injury, including death, as well as from claims for property damage which may arise from Contractor's or any of Subcontractor's operations under this Agreement, whether such operations be by Contractor or by any Subcontractor or Subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for, Contractor or any Subcontractor or Subcontractors. Contractor agrees to, and shall, defend City and its elective and appointive boards, officers, agents, and employees from any suits or actions at law or in equity for damages caused, or alleged to have been caused, by reason of any of the aforesaid operations, provided as follows: (A) The City does not, and shall not, waive any rights against Contractor which it may have by reason of the aforesaid hold-harmless agreement, because of the acceptance by City, or the deposit with City by Contractor, of any of the insurance policies hereinafter described in Paragraph 15, “Insurance” hereof. (B) That the aforesaid hold-harmless agreement by Contractor shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations of Contractor or any Subcontractor, regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 10. Insurance. The Contractor shall take out and maintain during the life of this Agreement the following policies of insurance: (A) Workers' Compensation and Employers' Liability Insurance providing full statutory coverage. In signing this Agreement, the Contractor makes the following certification, required by Section 1861 of the California Labor Code: "I am 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 that Code, and EXHIBIT A Page A-7 of 9 I will comply with such provisions before commencing the performance of the work of this contract". (B) Comprehensive General Liability Insurance. Public Liability Insurance (includes premises, elevator - if applicable, products, completed operations, personal injury and contractual): (1) Bodily Injury Liability: $ 500,000 each person $1,000,000 each occurrence (2) Property Damage Liability [includes XCU (explosion, collapse, and underground damage); water damage and broad form property damage or third party liability]: $ 500,000 per occurrence (C) Comprehensive Automobile Liability Insurance (includes owned, non-owned, and hired vehicles): (1) Bodily Injury Liability: $ 500,000 per person $1,000,000 each occurrence (2) Property Damage Liability: $ 500,000 each occurrence (D) It is agreed that the insurance required by Subsections B and C, in an aggregate amount of not less than ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000), shall be extended to include as additional insured the City of South San Francisco, its elective and appointive boards, commissions, officers, agents, employees, with respect to operations performed by the Contractor, as described herein. Evidence of this insurance described above shall be provided to City upon execution of this Agreement and shall be subject to approval of the City Attorney as to form, amount, and carrier. The policy of insurance shall also contain a provision indicating that such insurance shall not be reduced or cancelled except upon thirty (30) calendar days written notice to City. In addition, the following endorsement shall be made on said policy of insurance: "The following are named as additional insured on the above policies: The City of South San Francisco, its elective and appointive boards, officers, agents, and employees." "Notwithstanding any other provision in this policy, the insurance afforded hereunder to the City of South San Francisco shall be primary as to any other insurance or re-insurance covering or available to the City of South San Francisco, and such other insurance or reinsurance shall not be required to contribute to any liability or loss until and unless the approximate limit of liability afforded hereunder is exhausted." The above requirements that the City be named as additional insured, that the insurance shall be primary to any other, and that the insurance not be cancelled without notice, shall be provided in the form of an endorsement signed by an authorized representative of the insurance company providing coverage, who shall declare his or her authority to sign on behalf of the insurer. EXHIBIT A Page A-8 of 9 11. Proof of Carriage of Insurance. Contractor shall furnish City through the Engineer, concurrently with the execution hereof, with satisfactory proof of carriage of the insurance required and that each carrier shall give City at least thirty (30) calendar days prior notice of the cancellation or change of any policy during the effective period of this contract. Further, if the Contractor’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. 12. Provisions Cumulative. The provisions of this Agreement are cumulative, and in addition to and not in limitation of, any other rights or remedies available to City. 13. Notices. All notices shall be in writing and delivered in person or transmitted by certified mail, postage prepaid. Notices required to be given to City shall be addressed as follows: City Clerk City Hall, 400 Grand Avenue South San Francisco, California 94080 Notices required to be given to Contractor shall be addressed as follows: _________________________________________________________________________ _________________________________________________________________________ Notices required to be given sureties of Contractor shall be addressed as follows: _________________________________________________________________________ Notices required to be given to the Escrow Agent of Contractor, if any, shall be addressed as follows: _________________________________________________________________________ 14. Interpretation. As used herein, any gender includes each other gender, the singular includes the plural, and vice versa. IN WITNESS WHEREOF, two (2) identical counterparts of this Agreement, consisting of twelve (12) pages (being pages A-1 through A-12), each of which counterparts shall for all purposes be deemed an original of said Agreement, have been duly executed by the parties hereinabove named, on the day and year first hereinabove written. ATTEST: CITY: City of South San Francisco, EXHIBIT A Page A-9 of 9 a municipal corporation _______________________________ By: _____________________________ City Clerk Mike Futrell, City Manager CONTRACTOR:_______________________ __________________________________ ATTEST: By:_______________________________ (If Contractor is an individual, so state. _____________________________ If Contractor is a Corporation, a corporate seal or signatures of the President or Vice President and the Secretary Treasurer are required). EXHIBIT A ATTACHMENT A ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION THIS ESCROW AGREEMENT is made and entered into by and between the City of South San Francisco whose address is 400 Grand Ave., P.O. Box 711, South San Francisco, CA 94083, hereinafter referred to as "City," and ________________________________________,whose address is ___________________________________________________________, hereinafter called “Contractor” and ______________________________________________________________,whose address is ___________________________________________________________, hereinafter called “Escrow Agent.” For the consideration hereinafter set forth, the Owner, Contractor, and Escrow Agent agree as follows: 1. Pursuant to Section 22300 of the Public Contract Code of the State of California, Contractor has the option to deposit securities with Escrow Agent as a substitute for retention earnings required to be withheld by Owner pursuant to the Construction Contract entered into between the Owner and Contractor for __________________ in the amount of _______________dollars ($_____) dated ___________ (hereinafter referred to as the “Contract”). Alternately, on written request of the Contractor, the Owner shall make payments of the retention earnings directly to the Escrow Agent. When the Contractor deposits the securities as a substitute for Contract earnings, the Escrow Agent shall notify the Owner within 10 working days of the deposit. The market value of the securities at the time of the substitution shall be at least equal to the cash amount then required to be withheld as retention under the terms of the Contract between the Owner and Contractor. Securities shall be held in the name of _______________, and shall designate the Contractor as the beneficial owner. 2. The Owner shall make progress payments to the Contractor for those funds which otherwise would be withheld from progress payments pursuant to the Contract provisions, provided that the Escrow Agent holds securities in the form and amount specified above. 3. When the Owner makes payment of retentions earned directly to the Escrow Agent, the Escrow Agent shall hold them for the benefit of the Contractor until the time that the escrow created under this contract is terminated. The Contractor may direct the investment of the payments into securities. All terms and conditions of this agreement and the rights and responsibilities of the parties shall be equally applicable and binding when the Owner pays the Escrow Agent directly. 4. Contractor shall be responsible for paying all fees for the expenses incurred by Escrow Agent in administering the Escrow Account and all expenses of the Owner. These expenses and payment terms shall be determined by the Owner, Contractor, and Escrow Agent. 5. The interest earned on the securities or the money market accounts held in escrow and all interest earned on that interest shall be for the sole account of Contractor and shall be subject to withdrawal by Contractor at any time and from time to time without notice to the Owner. 6. Contractor shall have the right to withdraw all or any part of the principal in the Escrow Account only by written notice to Escrow Agent accompanied by written authorization from the Owner to the Escrow Agent that Owner consents to the withdrawal of the amount sought to be withdrawn by Contractor. 7. The Owner shall have a right to draw upon the securities in the event of default by the Contractor. Upon seven day’s written notice to the Escrow Agent from the Owner of the default, the Escrow Agent shall immediately convert the securities to cash and shall distribute the cash as instructed by the Owner. EXHIBIT A 8. Upon receipt of written notification from the Owner certifying that the Contract is final and complete, and that the Contractor has complied with all requirements and procedures applicable to the Contract, Escrow Agent shall release to Contractor all securities and interest on deposit less escrow fees and charges of the Escrow Account. The escrow shall be closed immediately upon disbursement of all moneys and securities on deposit and payments of fees and charges. 9. Escrow Agent shall rely on the written notifications from the Owner and the Contractor pursuant to Sections (5) to (8), inclusive, of this Agreement, and the Owner and Contractor shall hold Escrow Agent harmless from Escrow Agent’s release and disbursement of the securities and interest as set forth above. 10. The names of the persons who are authorized to give written notice or to receive written notice on behalf of the Owner and on behalf of Contractor in connection with the foregoing, and exemplars of their respective signatures are as follows: On behalf of Owner: On behalf of Contractor: __________________________________ __________________________________ Title Title __________________________________ __________________________________ Name Name __________________________________ __________________________________ Signature Signature __________________________________ __________________________________ Address Address On behalf of Escrow Agent: __________________________________ Title __________________________________ Name __________________________________ Signature __________________________________ Address At the time the Escrow Account is opened, the Owner and Contractor shall deliver to the Escrow Agent a fully executed counterpart of this Agreement. EXHIBIT A IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the date first set forth above. Owner: Contractor: __________________________________ __________________________________ Title Title __________________________________ __________________________________ Name Name __________________________________ __________________________________ Signature Signature Approved as to form: Attest: _____________________________________ __________________________________ City Attorney Date City Clerk EXHIBIT A City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-748 Agenda Date:9/6/2017 Version:1 Item #:10. Report regarding a resolution awarding a construction contract to Interstate Grading &Paving,Inc.of South San Francisco,California for the 2016 Street Rehabilitation Project in an amount not to exceed $2,574,469 and authorizing a total construction budget of $3,240,851.(Sam Bautista, Principal Engineer) RECOMMENDATION It is recommended that the City Council adopt a resolution awarding a construction contract to Interstate Grading &Paving,Inc.of South San Francisco,California for 2016 Street Rehabilitation Project (Project No.st1705)in an amount not to exceed $2,574,469 and authorizing a total construction budget of 3,240,851. BACKGROUND/DISCUSSION The 2016 Street Rehabilitation Project will rehabilitate approximately 14,330 linear feet of City streets.The vast majority of these streets will have their existing asphalt enhanced by the Cold In-Place Recycling (CIR) method,which will treat in place the existing asphalt by adding oil.The CIR method is considered to be a “greener”form of repaving and involves less truck trips,less total oil,and all around less energy consumption. After the CIR asphalt has cured for several days, a new 2-inch asphalt layer will be placed on top. Tanforan Avenue will have a different treatment method;fifteen inches of the existing roadway will be removed due to the very poor sub-base conditions.A geo-synthetic fabric will be placed on roadway to strengthen the remaining sub base,and then ten inches of new aggregate base will be installed on top of fabric. Afterwards, a new 5-inch asphalt layer will be installed. Staff advertised the project in the San Mateo County Times on June 28,2017,and July 6,2017.On August 3, 2017,staff received two bids in response.The lowest responsible bidder was Interstate Grading &Paving,Inc. of South San Francisco,California.Staff has verified the low bidder’s current contractor’s license with the California State Licensing Board and found it to be in good standing. A summary of all bid prices and the engineer's estimate is as follows: Interstate Grading & Paving, Inc. of South San Francisco, CA $ 2,201,659 Graniterock of San Jose, CA $ 2,497,228 The Engineer’s Estimate for the Base Bid is $2,300.000. Staff also prepared bid documents for Alternate Bid Item #1,which will rehabilitate Romney Avenue and San Felipe Avenue.The contractor’s cost for doing these two streets is $372,810,which is below the engineer’s City of South San Francisco Printed on 8/31/2017Page 1 of 2 powered by Legistar™ File #:17-748 Agenda Date:9/6/2017 Version:1 Item #:10. Felipe Avenue.The contractor’s cost for doing these two streets is $372,810,which is below the engineer’s estimate of $440,000.Staff recommends awarding the Alternate Bid Item #1 since sufficient funds are available to cover this Alternate Bid Item. Shown below is the project budget: Interstate Grading & Paving, Inc. Construction Contract $ 2,574,469 Construction Contingency (20 percent)$ 514,893 Contract Construction Inspection $ 100,000 Construction Administration (2 percent)$ 51,489 Total Project Budget $ 3,240,851 The construction contingency will be used for additional costs related to design changes during the construction operations or unforeseen conditions in the field.This contract does not require Disadvantaged Business Enterprise (DBE) for the project since no Federal funds are being utilized. FUNDING This project is funded by the Measure W funds and the project is included in the City of South San Francisco’s Fiscal Year 2017-18 Capital Improvement Program (Project No.st1705)with sufficient funds allocated to cover the project cost. CONCLUSION Awarding the construction contract to Interstate Grading &Paving,Inc.of South San Francisco,California,for the 2016 Street Rehabilitation Project will improve the drive ability,aesthetics of these streets and also reduce Public Works maintenance costs for these streets. Attachment: 2016 Street Rehabilitation Project - Overall Streets City of South San Francisco Printed on 8/31/2017Page 2 of 2 powered by Legistar™ South San Francisco 2016 street rehabilitation project streets Se q u o i a A v e Du n d e e D r Lac r o s s e A v e . San F e l i p e A v e . South San Francisco 2016 street rehabilitation project streets Tanfo r a n A v e City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-749 Agenda Date:9/6/2017 Version:1 Item #:10a. Resolution awarding a construction contract to Interstate Grading &Paving,Inc.of South San Francisco, California for the 2016 Street Rehabilitation Project in an amount not to exceed $2,574,469 and authorizing a total construction budget of $3,240,851. WHEREAS, the 2016 Street Rehabilitation Project will rehabilitate 14,330 feet of City streets; and WHEREAS,City of South San Francisco (“City”)staff issued a Notice Inviting new Bids for the 2016 Street Rehabilitation Project (“Project”) and on August 3, 2017, received two (2) bids in response; and WHEREAS,the base bid will rehabilitate approximately 14,330 feet of City streets,along with Alternate Bid Item # 1, which will rehabilitate Romney Avenue and San Felipe Avenue; and WHEREAS,Interstate Grading &Paving,Inc.of South San Francisco,California was the lowest responsible bidder and provided competitive unit prices; and WHEREAS,staff recommends awarding the construction contract to Interstate Grading &Paving,Inc.of South San Francisco,California in an amount not to exceed $2,574,469,which is the total for the base bid of 2,201,659 and Alternate Bid Item #1 of 372,810; and WHEREAS,the Project is included in the City of South San Francisco’s Fiscal Year 2017-18 Capital Improvement Program (CIP) and sufficient funds have been allocated to cover the Project cost; and NOW,THEREFORE,BE IT RESOLVED,by the City Council of the City of South San Francisco that the City Council hereby awards a construction contract,a draft of which is attached hereto as Exhibit A,for the 2016 Street Rehabilitation Project to Interstate Grading &Paving,Inc.of South San Francisco,California for the base bid of 2,201,659 and Alternate Bid Item #1 of 372,810,in an amount not to exceed $2,574,469, conditioned on Interstate Grading &Paving,Inc.’s timely execution of the Project contract and submission of all required documents,including but not limited to,certificates of insurance and endorsements,in accordance with the Project documents. BE IT FURTHER RESOLVED that the City Council authorizes a total project construction budget of $3,240,851 and authorizes the City Manager to utilize any unspent amount of the total project budget,if necessary, towards additional construction contingency budget. City of South San Francisco Printed on 9/20/2017Page 1 of 2 powered by Legistar™ File #:17-749 Agenda Date:9/6/2017 Version:1 Item #:10a. BE IT FURTHER RESOLVED that the City Council 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 Council authorizes the City Manager to execute the documents on behalf of the City upon timely submission by Interstate Grading &Paving,Inc.signed contract and all other documents, subject to approval as to form by the City Attorney. BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to take any other related actions consistent with the intention of this Resolution. ***** City of South San Francisco Printed on 9/20/2017Page 2 of 2 powered by Legistar™ NON-FED-AID AGREEMENT TEMPLATE MAY 2017 CITY OF SOUTH SAN FRANCISCO 2016 Street Rehabilitation Project ENGINEERING FILE NO. ST-16-1 PROJECT NO. ST1705, BID NO. 2604 NOTICE INVITING BIDS PART I - PROPOSAL PROPOSAL FORMS FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS PART II – GENERAL CONDITIONS PART III – SPECIAL PROVISIONS SPECIAL CONDITIONS TECHNICAL SPECIFICATIONS PART IV – PROJECT PLANS EXHIBIT A Page 1 of 14 CITY OF SOUTH SAN FRANCISCO ENGINEERING DIVISION FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS TABLE OF CONTENTS Page No. 1. Scope of Work A-1 2. The Contract Documents A-1 3. Equipment - Performance of Work A-2 4. Contract Price A-2 5. Rights of City to Increase Working Days A-2 6. Option of City to Terminate Agreement in Event of Failure to Complete Work A-2 7. Termination of Contract for Convenience A-3 8. Performance by Sureties A-5 9. Hold-Harmless Agreement and Contractor's Insurance A-6 10. Insurance A-6 11. Proof of Carriage of Insurance A-7 12. Provisions Cumulative A-8 13. Notices A-8 14. Interpretation A-8 Attachment A – Escrow Agreement for Security Deposits in Lieu of Retention EXHIBIT A Page 2 of 14 NON-FED-AID AGREEMENT TEMPLATE MAY 2017 Page A-1 of 12 FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS THIS AGREEMENT made and entered into this 6th, day of September, 2017, between the CITY OF SOUTH SAN FRANCISCO, a municipal corporation and political subdivision of the State of California, hereinafter called “CITY”, and Interstate Grading and Paving, Inc., hereinafter called “CONTRACTOR”1. W I T N E S S E T H: WHEREAS, City has taken appropriate proceedings to authorize construction of the public work and improvements herein provided and execution of this contract. WHEREAS, a notice was duly published for bids for the contract for the improvements hereinafter described. WHEREAS, on September 6, 2017, notice duly given, the City Council (“Council”) of said City awarded the contract for the construction of the improvements hereinafter described to the Contractor, which Contractor said Council found to be the lowest responsible bidder for said improvements. WHEREAS, City and Contractor desire to enter into this agreement for the construction of said improvements pursuant to the terms, definitions, and conditions set forth in the General Provisions and other Contract Documents. IT IS AGREED as follows: 1. Scope of Work. Contractor shall perform the Work described briefly as follows: The Work consists of the furnishing of all labor, materials, tools, equipment, and services necessary for the construction of the 2016 Street Rehabilitation Project; in accordance with the Contract Documents. Also included are any such other items or details not mentioned above that are required by the Contract Documents, which are to be constructed or furnished and installed as shown on the plans, as specified herein and as directed by the Engineer. The aforementioned improvements are further described in the "Contract Documents" hereinafter referred to. 2. The Contract Documents. The complete Contract consists of the following documents: (A) Notice Inviting Bids (B) Part I – Submitted Proposal (as accepted) (C) This Agreement, including Contractor’s Payment Bond, Faithful Performance Bond and Guaranty Bond. (D) Part II – General Conditions 1. 1The term "Contractor" as used herein is employed without distinction as to either number or gender and shall include whenever the context shall permit all agents, representatives, employees, servants, subcontractors and business or social invitees. EXHIBIT A Page 3 of 14 Page A-2 of 9 (E) Part III – Special Provisions: Special Conditions and Technical Specifications, including State Standard Specifications dated 2015, sections 10-99, as revised in Revised Standard Specifications (RSS) dated 6/28/17 (F) Part IV – Project Plans, approved 6/28/17 (G) Administrative subsections of the State Standard Specifications dated 2015, as specifically referenced in contract Parts I-IV and as revised in RSS dated 6/28/17 All rights and obligations of City and Contractor are fully set forth and described in the contract documents. All of the above-named documents are intended to cooperate, so that any work called for in one and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents. The documents comprising the complete contract will hereinafter be referred to as “the Contract Documents.” 3. Equipment - Performance of Work. Contractor shall furnish all tools, equipment, apparatus, facilities, labor, and materials necessary to perform and complete in a good and workmanlike manner the Work of general construction as called for, and for the manner designated in, and in strict conformity with, the plans and specifications for said Work entitled: 2016 Street Rehabilitation Project The equipment, apparatus, facilities, labor, and materials shall be furnished and said Work performed and completed as required in said plans and specifications under the direction and supervision and subject to the approval of the Engineer of said City or the Engineer’s designated assistant. 4. Contract Price. City shall pay, and Contractor shall accept, in full payment for the Work agreed to be done the sum of Two million, Five hundred Seventy Four thousand, Four hundred Sixty Nine dollars ($2,574,469.00). Said price is determined by the lump sum price contained in Contractor's bid proposal (“Bid”). The lump sum price and unit prices are set forth in the completed Bid forms attached hereto and made a part hereof as if set forth herein verbatim. In the event work is performed or materials furnished in addition to those set forth in Contractor's bid and the specifications herein, such work and materials will be paid for at the unit prices therein contained. Said amount shall be paid in installments as hereinafter provided. 5. Rights of City to Increase Working Days. If such Work is not completed within the time specified, the Engineer shall have the right to increase the number of working days in the amount it may determine will best serve the interest of the City. If it desires to increase said number of working days, it shall have the further right to charge to Contractor and deduct from the final payment for the Work the actual cost of engineering, inspection, superintendence, and other overhead expenses which are directly chargeable to Contractor and which accrue during the period of such extension, except that the cost of the final service and preparation of the final estimates shall not be included in such charges, provided, however, that no extension of time for the completion of such Work shall be allowed unless at least twenty (20) calendar days prior to the time herein fixed for the completion thereof or the time fixed by the Engineer for such completion as extended, Contractor shall have filed application for extension thereof, in writing with the Engineer. EXHIBIT A Page 4 of 14 Page A-3 of 9 6. Option of City to Terminate Agreement in Event of Failure to Complete Work. If at any time in the opinion of the Engineer, the Contractor has refused or failed to prosecute the Work or any severable part thereof, with such diligence as will insure its work, or any completion within the time specified, or any extensions thereof, or shall have failed to complete said work within such time, or if Contractor should be adjudged a bankrupt, or if Contractor should make a general assignment for the benefit of Contractor's creditors, or if a receiver should be appointed in the event of Contractor's insolvency, or if Contractor, or any Subcontractor, should violate any of the provisions of this Agreement, the Engineer may give written notice to Contractor, and Contractor's sureties of its intention to terminate this Agreement, such notice to contain the reasons for such intention to terminate this Agreement, and unless within five calendar (5) days after the serving of such notice, such violation shall cease and satisfactory arrangements for the correction thereof be made, this Agreement may, at the option of City, upon expiration of said time, cease and terminate. Any excess of cost arising therefrom over and above the contract price will be charged against the Contractor and the Contractor’s sureties who will be liable therefore. In the event of such termination, all money due the Contractor or retained under the terms of this contract shall be forfeited to the City; but such forfeiture will not release the Contractor or the Contractor’s sureties from liability or failure to fulfill the contract. The Contractor and the Contractor’s sureties will be credited with the amount of money so forfeited toward any excess of cost over and above the contract price, arising from the suspension termination of the operations of the contract and the completion of the Work by the City as above provided, and the Contractor will be so credited with any surplus remaining after all just claims for such completion have been paid. In the determination of the question whether there has been any such noncompliance with the contract as to warrant the suspension termination or annulment thereof, the decision of the Engineer shall be binding on all parties to the contract. 7. Termination of Contract for Convenience. The City also reserves the right to terminate the contract at any time upon a determination by the Engineer in the Engineer's sole discretion that termination of the contract is in the best interest of the City. If the City elects to terminate the contract for convenience, the termination of the contract and the total compensation payable to the Contractor shall be governed by the following: (A) The City will issue the Contractor a written notice signed by the Engineer, specifying that the contract is terminated. Upon receipt of said written notice, the Contractor will be relieved of further responsibility for damage to the Work (excluding materials) as specified in Section VII-17, "Contractor's Responsibility for the Work," of the General Conditions and, except as otherwise directed in writing by the Engineer, the Contractor shall: (1) Stop all work under the contract except that specifically directed to be completed prior to acceptance. (2) Perform work the Engineer deems necessary to secure the project for termination. (3) Remove equipment and plant from the site of the Work. (4) Take such action as is necessary to protect materials from damage. (5) Notify all subcontractors and suppliers that the contract is being terminated and that their contracts or orders are not to be further performed unless otherwise authorized in writing by the Engineer. EXHIBIT A Page 5 of 14 Page A-4 of 9 (6) Provide the Engineer with an inventory list of all materials previously produced, purchased or ordered from suppliers for use in the Work and not yet used in the Work, including its storage location, and such other information as the Engineer may request. (7) Dispose of materials not yet used in the Work as directed by the Engineer. It shall be the Contractor's responsibility to provide the City with good title to all materials purchased by the City hereunder, including materials for which partial payment has been made as provided in Section IX-2, “Progress Payments,” of the General Conditions and with bills of sale or other documents of title for such materials. (8) Subject to the prior written approval of the Engineer, settle all outstanding liabilities and all claims arising out of subcontracts or orders for materials terminated hereunder. To the extent directed by the Engineer, the Contractor shall assign to the City all the right, title, and interest of the Contractor under subcontracts or orders for materials terminated hereunder. (9) Furnish the Engineer with the documentation required to be furnished by the Contractor under the provisions of the contract, including, on projects as to which Federal and State funds are involved, all documentation required under the Federal and State requirements included in the contract. (10) Take such other actions as the Engineer may direct. (B) Acceptance of the contract as hereinafter specified shall not relieve the Contractor of responsibility for damage to materials. The Contractor shall continue to be responsible for damage to materials after issuance of the Notice of Termination, except as follows: (1) The Contractor’s responsibility for damage to materials for which partial payment has been made as provided in Section IX-2, “Progress Payments,” of the General Conditions and for materials furnished by the City for use in the Work and unused shall terminate when the Engineer certifies that such materials have been stored in the manner and at the locations the Engineer has directed. (2) The Contractor’s responsibility for damage to materials purchased by the City subsequent to the issuance of the notice that the contract is to be terminated shall terminate when title and delivery of such materials has been taken by the City. (3) When the Engineer determines that the Contractor has completed the Work under the contract directed to be completed prior to termination and such other work as may have been ordered to secure the project for termination, the Contractor will recommend that the Engineer formally accept the contract to the extent performed, and immediately upon and after such acceptance by the Engineer, the Contractor will not be required to perform any further Work thereon and shall be relieved of the Contractor's contractual responsibilities for injury to persons or property which occurs after the formal acceptance of the project by the Engineer. (C) Termination of the contract shall not relieve the surety of its obligation for any just claims arising out of the work performed. (D) The total compensation to be paid to the Contractor shall be determined by the Engineer on the basis of the following: EXHIBIT A Page 6 of 14 Page A-5 of 9 (1) The reasonable cost to the Contractor, without profit, for all work performed under the contract, including mobilization, demobilization and work done to secure the project for termination. In determining the reasonable cost, deductions will be made for the cost of materials to be retained by the Contractor, amounts realized by the sale of materials, and for other appropriate credits against the cost of the work. When, in the opinion of the Engineer, the cost of a contract item of work is excessively high due to costs incurred to remedy or replace defective or rejected work, the reasonable cost to be allowed will be the estimated reasonable cost of performing such work in compliance with the requirements of the plans and specifications and the excessive actual cost shall be disallowed. (2) A reasonable allowance for profit on the cost of the work performed as determined under Subsection (1), provided the Contractor establishes to the satisfaction of the Engineer that it is reasonably probable that the Contractor would have made a profit had the contract been completed and provided further, that the profit allowed shall in no event exceed four (4) percent of said cost. (3) The reasonable cost to the Contractor of handling material returned to the vendor, delivered to the City, or otherwise disposed of as directed by the Engineer. (4) A reasonable allowance for the Contractor’s administrative costs in determining the amount payable due to termination of the contract. (5) A reasonable credit to the City for defective or incomplete work not corrected. All records of the Contractor and subcontractors necessary to determine compensation in accordance with the provisions of this Section 5 shall be open to inspection or audit by representatives of the City at all times after issuance of the Notice of Termination and for a period of three (3) years, thereafter, and such records shall be retained for that period. After acceptance of the Work by the Engineer, the Engineer may make payments on the basis of interim estimates pending issuance of the Final Estimate in accordance with Section IX-7, “Final Payment,” of the General Conditions when, in the Engineer's opinion, the amount thus paid, together with all amounts previously paid or allowed, will not result in total compensation in excess of that to which the Contractor will be entitled. All payments, including payment upon the Final Estimate shall be subject to deduction for prior payments and amounts, if any, to be kept or retained under the provisions of the contract. If this contract is terminated by the City for cause, and it is later determined that the proper basis for a termination for cause did not exist, the termination shall be deemed to have been a termination for convenience and governed by the terms of this contract dealing with such termination. If the contract is terminated by the City for cause or convenience, such termination shall neither act as a waiver by the City of its right to require the Contractor to correct defects in the Work performed by the Contractor nor void any warranties applicable to the Work performed under the contract. The provisions of this Section 5 shall be included in all subcontracts. In the event of conflict between the termination provisions of this Section 8 and any other provision or the contract, this Section 5 shall prevail. EXHIBIT A Page 7 of 14 Page A-6 of 9 8. Performance by Sureties. In the event of any termination as herein before provided, City shall immediately give written notice thereof to Contractor and Contractor's sureties and the sureties shall have the right to take over and perform the Agreement, provided, however, that if the sureties, within five (5) working days after giving them said notice of termination, do not give the City written notice of their intention to take over the performance of the Agreement and do not commence performance thereof within five (5) working days after notice to the City of such election, City may take over the Work and prosecute the same to completion by contract or by any other method it may deem advisable, for the account, and at the expense, of Contractor, and the sureties shall be liable to City for any excess cost or damages occasioned City thereby; and, in such event, City may, without liability for so doing, take possession of and utilize in completing the Work such materials, appliances, plant, and other property belonging to Contractor as may be on the site of the Work and necessary therefore. Should Contractor contract in an individual capacity, the surety bond shall contain the following provision: “Should Contractor contract in the Contractor’s individual capacity, the death of the Contractor shall not relieve the surety of its obligations.” 9. Hold-Harmless Agreement and Contractor's Insurance. Contractor agrees to, and shall, hold City, its elective and appointive boards, officers, agents, and employees harmless from any liability for damage or claims for damage for personal injury, including death, as well as from claims for property damage which may arise from Contractor's or any of Subcontractor's operations under this Agreement, whether such operations be by Contractor or by any Subcontractor or Subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for, Contractor or any Subcontractor or Subcontractors. Contractor agrees to, and shall, defend City and its elective and appointive boards, officers, agents, and employees from any suits or actions at law or in equity for damages caused, or alleged to have been caused, by reason of any of the aforesaid operations, provided as follows: (A) The City does not, and shall not, waive any rights against Contractor which it may have by reason of the aforesaid hold-harmless agreement, because of the acceptance by City, or the deposit with City by Contractor, of any of the insurance policies hereinafter described in Paragraph 15, “Insurance” hereof. (B) That the aforesaid hold-harmless agreement by Contractor shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations of Contractor or any Subcontractor, regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 10. Insurance. The Contractor shall take out and maintain during the life of this Agreement the following policies of insurance: (A) Workers' Compensation and Employers' Liability Insurance providing full statutory coverage. In signing this Agreement, the Contractor makes the following certification, required by Section 1861 of the California Labor Code: "I am 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 that Code, and I will comply with such provisions before commencing the performance of the work of this contract". EXHIBIT A Page 8 of 14 Page A-7 of 9 (B) Comprehensive General Liability Insurance. Public Liability Insurance (includes premises, elevator - if applicable, products, completed operations, personal injury and contractual): (1) Bodily Injury Liability: $ 500,000 each person $1,000,000 each occurrence (2) Property Damage Liability [includes XCU (explosion, collapse, and underground damage); water damage and broad form property damage or third party liability]: $ 500,000 per occurrence (C) Comprehensive Automobile Liability Insurance (includes owned, non-owned, and hired vehicles): (1) Bodily Injury Liability: $ 500,000 per person $1,000,000 each occurrence (2) Property Damage Liability: $ 500,000 each occurrence (D) It is agreed that the insurance required by Subsections B and C, in an aggregate amount of not less than ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000), shall be extended to include as additional insured the City of South San Francisco, its elective and appointive boards, commissions, officers, agents, employees, with respect to operations performed by the Contractor, as described herein. Evidence of this insurance described above shall be provided to City upon execution of this Agreement and shall be subject to approval of the City Attorney as to form, amount, and carrier. The policy of insurance shall also contain a provision indicating that such insurance shall not be reduced or cancelled except upon thirty (30) calendar days written notice to City. In addition, the following endorsement shall be made on said policy of insurance: "The following are named as additional insured on the above policies: The City of South San Francisco, its elective and appointive boards, officers, agents, and employees." "Notwithstanding any other provision in this policy, the insurance afforded hereunder to the City of South San Francisco shall be primary as to any other insurance or re-insurance covering or available to the City of South San Francisco, and such other insurance or reinsurance shall not be required to contribute to any liability or loss until and unless the approximate limit of liability afforded hereunder is exhausted." The above requirements that the City be named as additional insured, that the insurance shall be primary to any other, and that the insurance not be cancelled without notice, shall be provided in the form of an endorsement signed by an authorized representative of the insurance company providing coverage, who shall declare his or her authority to sign on behalf of the insurer. 11. Proof of Carriage of Insurance. Contractor shall furnish City through the Engineer, concurrently with the execution hereof, with satisfactory proof of carriage of the insurance required and EXHIBIT A Page 9 of 14 Page A-8 of 9 that each carrier shall give City at least thirty (30) calendar days prior notice of the cancellation or change of any policy during the effective period of this contract. Further, if the Contractor’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. 12. Provisions Cumulative. The provisions of this Agreement are cumulative, and in addition to and not in limitation of, any other rights or remedies available to City. 13. Notices. All notices shall be in writing and delivered in person or transmitted by certified mail, postage prepaid. Notices required to be given to City shall be addressed as follows: City Clerk City Hall, 400 Grand Avenue South San Francisco, California 94080 Notices required to be given to Contractor shall be addressed as follows: _________________________________________________________________________ _________________________________________________________________________ Notices required to be given sureties of Contractor shall be addressed as follows: _________________________________________________________________________ Notices required to be given to the Escrow Agent of Contractor, if any, shall be addressed as follows: _________________________________________________________________________ 14. Interpretation. As used herein, any gender includes each other gender, the singular includes the plural, and vice versa. IN WITNESS WHEREOF, two (2) identical counterparts of this Agreement, consisting of twelve (12) pages (being pages A-1 through A-12), each of which counterparts shall for all purposes be deemed an original of said Agreement, have been duly executed by the parties hereinabove named, on the day and year first hereinabove written. ATTEST: CITY: City of South San Francisco, a municipal corporation EXHIBIT A Page 10 of 14 Page A-9 of 9 _______________________________ By: _____________________________ City Clerk Mike Futrell, City Manager CONTRACTOR:_______________________ __________________________________ ATTEST: By:_______________________________ (If Contractor is an individual, so state. _____________________________ If Contractor is a Corporation, a corporate seal or signatures of the President or Vice President and the Secretary Treasurer are required). EXHIBIT A Page 11 of 14 ATTACHMENT A ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION THIS ESCROW AGREEMENT is made and entered into by and between the City of South San Francisco whose address is 400 Grand Ave., P.O. Box 711, South San Francisco, CA 94083, hereinafter referred to as "City," and ________________________________________,whose address is ___________________________________________________________, hereinafter called “Contractor” and ______________________________________________________________,whose address is ___________________________________________________________, hereinafter called “Escrow Agent.” For the consideration hereinafter set forth, the Owner, Contractor, and Escrow Agent agree as follows: 1. Pursuant to Section 22300 of the Public Contract Code of the State of California, Contractor has the option to deposit securities with Escrow Agent as a substitute for retention earnings required to be withheld by Owner pursuant to the Construction Contract entered into between the Owner and Contractor for __________________ in the amount of _______________dollars ($_____) dated ___________ (hereinafter referred to as the “Contract”). Alternately, on written request of the Contractor, the Owner shall make payments of the retention earnings directly to the Escrow Agent. When the Contractor deposits the securities as a substitute for Contract earnings, the Escrow Agent shall notify the Owner within 10 working days of the deposit. The market value of the securities at the time of the substitution shall be at least equal to the cash amount then required to be withheld as retention under the terms of the Contract between the Owner and Contractor. Securities shall be held in the name of _______________, and shall designate the Contractor as the beneficial owner. 2. The Owner shall make progress payments to the Contractor for those funds which otherwise would be withheld from progress payments pursuant to the Contract provisions, provided that the Escrow Agent holds securities in the form and amount specified above. 3. When the Owner makes payment of retentions earned directly to the Escrow Agent, the Escrow Agent shall hold them for the benefit of the Contractor until the time that the escrow created under this contract is terminated. The Contractor may direct the investment of the payments into securities. All terms and conditions of this agreement and the rights and responsibilities of the parties shall be equally applicable and binding when the Owner pays the Escrow Agent directly. 4. Contractor shall be responsible for paying all fees for the expenses incurred by Escrow Agent in administering the Escrow Account and all expenses of the Owner. These expenses and payment terms shall be determined by the Owner, Contractor, and Escrow Agent. 5. The interest earned on the securities or the money market accounts held in escrow and all interest earned on that interest shall be for the sole account of Contractor and shall be subject to withdrawal by Contractor at any time and from time to time without notice to the Owner. 6. Contractor shall have the right to withdraw all or any part of the principal in the Escrow Account only by written notice to Escrow Agent accompanied by written authorization from the Owner to the Escrow Agent that Owner consents to the withdrawal of the amount sought to be withdrawn by Contractor. 7. The Owner shall have a right to draw upon the securities in the event of default by the Contractor. Upon seven day’s written notice to the Escrow Agent from the Owner of the default, the Escrow Agent shall immediately convert the securities to cash and shall distribute the cash as instructed by the Owner. EXHIBIT A Page 12 of 14 8. Upon receipt of written notification from the Owner certifying that the Contract is final and complete, and that the Contractor has complied with all requirements and procedures applicable to the Contract, Escrow Agent shall release to Contractor all securities and interest on deposit less escrow fees and charges of the Escrow Account. The escrow shall be closed immediately upon disbursement of all moneys and securities on deposit and payments of fees and charges. 9. Escrow Agent shall rely on the written notifications from the Owner and the Contractor pursuant to Sections (5) to (8), inclusive, of this Agreement, and the Owner and Contractor shall hold Escrow Agent harmless from Escrow Agent’s release and disbursement of the securities and interest as set forth above. 10. The names of the persons who are authorized to give written notice or to receive written notice on behalf of the Owner and on behalf of Contractor in connection with the foregoing, and exemplars of their respective signatures are as follows: On behalf of Owner: On behalf of Contractor: __________________________________ __________________________________ Title Title __________________________________ __________________________________ Name Name __________________________________ __________________________________ Signature Signature __________________________________ __________________________________ Address Address On behalf of Escrow Agent: __________________________________ Title __________________________________ Name __________________________________ Signature __________________________________ Address At the time the Escrow Account is opened, the Owner and Contractor shall deliver to the Escrow Agent a fully executed counterpart of this Agreement. EXHIBIT A Page 13 of 14 IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the date first set forth above. Owner: Contractor: __________________________________ __________________________________ Title Title __________________________________ __________________________________ Name Name __________________________________ __________________________________ Signature Signature Approved as to form: Attest: _____________________________________ __________________________________ City Attorney Date City Clerk EXHIBIT A Page 14 of 14 City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-750 Agenda Date:9/6/2017 Version:2 Item #:11. Report regarding a resolution awarding a construction contract to K.J.Woods Construction Inc.of San Francisco,California for the 2016 Sanitary Sewer and Manhole Replacement Project in an amount not to exceed $1,548,000 and authorizing a total construction budget of $2,055,960.(Sam Bautista,Principal Engineer) RECOMMENDATION It is recommended that the City Council adopt a resolution awarding a construction contract to K.J. Woods Construction Inc.of San Francisco,California for the 2016 Sanitary Sewer and Manhole Replacement Project (Project No.ss1009)in an amount not to exceed $1,548,000 and authorizing a total construction budget of $2,055,960. BACKGROUND/DISCUSSION The 2016 Sanitary Sewer and Manhole Replacement Project (“Project”)is the second phase of recent sewer upgrades in the City.In 2014,approximately 19,400 feet of sewer pipe was rehabilitated by installing a structural liner inside the existing pipe.This year’s project will replace approximately 800 feet with new pipe utilizing an open trench method,and approximately 6000 feet utilizing the pipe bursting method.The pipe bursting method utilizes a projectile to break the existing pipe and at the same time pulls a new pipe into place. The majority of the pipe bursting will be for the sewer trunk line that runs along Sister Cities Boulevard.Also, the project will install two new manholes and rehabilitate five manholes by coating the inside of the manhole. Staff advertised a Notice Inviting new Bids for the Project on July 6,2017,and July 13,2017.On August 17, 2017,staff received four bids in response.The lowest responsible bidder was K.J.Woods Construction Inc.of San Francisco,California.Staff has verified the low bidder’s current contractor’s license with the California State Licensing Board and found it to be in good standing. The following is a summary of all bids received: Base Bid K.J. Woods Construction Inc. of San Francisco, CA $1,548,000 Bay Pacific Pipelines Inc., of Novato, CA $1,706,571 JMB Construction Inc. of South San Francisco, CA $2,114,032 Cratus, Inc. of San Francisco, CA $2,183,020 The Engineer’s Estimate for the Base Bid is $1,500,000. Shown below is the project budget: City of South San Francisco Printed on 8/31/2017Page 1 of 2 powered by Legistar™ File #:17-750 Agenda Date:9/6/2017 Version:2 Item #:11. K.J. Woods Construction Inc. Construction Contract $1,548,000 Construction Contingency (25 percent)$ 387,000 Construction Management $ 90,000 Construction Administration (2 percent)$ 30,960 Total Project Budget $2,055,960 The Construction Contingency will be used for any additional costs related to design changes or unforeseen field conditions encountered during construction.No Disadvantaged Business Enterprise (DBE)goal is required for this project since no federal funds are being utilized. FUNDING This project is funded by the Sewer Enterprise Fund and the project is included in the City of South San Francisco’s Fiscal Year 2017-18 Capital Improvement Program (Project No.ss1009)with sufficient funds allocated to cover the project cost. CONCLUSION Awarding the construction contract to K.J.Woods Construction Inc.of San Francisco,California,for the 2016 Sanitary Sewer and Manhole Replacement Project will allow for more efficient waste water flow in the sanitary sewer system. City of South San Francisco Printed on 8/31/2017Page 2 of 2 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-751 Agenda Date:9/6/2017 Version:1 Item #:11a. Resolution awarding the construction contract to K.J.Woods Construction Inc.of San Francisco,California for the 2016 Sanitary Sewer and Manhole Replacement Project in an amount not to exceed $1,548,000 and authorizing a total construction budget of $2,055,960. WHEREAS,the 2016 Sanitary Sewer and Manhole Replacement Project will replace 800 feet of sewer pipe, pipe burst approximately 6000 feet of sewer pipe,install 2 new manholes and rehabilitate 5 existing manholes; and WHEREAS,City of South San Francisco (“City”)staff issued a Notice Inviting new Bids for the 2016 Sanitary Sewer and Manhole Replacement Project (“Project”)and on August 17,2017,received four (4)bids in response; and WHEREAS,K.J.Woods Construction Inc.of San Francisco,California was the lowest responsible bidder and provided competitive unit prices; and WHEREAS,staff recommends awarding the construction contract to K.J.Woods Construction Inc.of San Francisco, California in an amount not to exceed $1,548,000, which is the total for the base bid; and WHEREAS,the Project is included in the City of South San Francisco’s Fiscal Year 2017-18 Capital Improvement Program (CIP) and sufficient funds have been allocated to cover the Project cost; and NOW,THEREFORE,BE IT RESOLVED,by the City Council of the City of South San Francisco that the City Council hereby awards the construction contract for the 2016 Sanitary Sewer and Manhole Replacement Project to K.J.Woods Construction Inc.of San Francisco,California in an amount not to exceed $1,548,000, attached herewith as Exhibit A,conditioned on K.J.Woods Construction Inc.’s timely execution of the Project contract and submission of all required documents,including but not limited to,certificates of insurance and endorsements, in accordance with the Project documents. BE IT FURTHER RESOLVED that the City Council authorizes a total project construction budget of $2,055,960 and authorizes the City Manager to utilize any unspent amount of the total project budget,if necessary, towards additional construction contingency budget. BE IT FURTHER RESOLVED that the City Council authorizes the Finance Department to establish the Project Budget consistent with the information contained in the staff report. City of South San Francisco Printed on 9/20/2017Page 1 of 2 powered by Legistar™ File #:17-751 Agenda Date:9/6/2017 Version:1 Item #:11a. BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to execute the documents on behalf of the City upon timely submission by K.J.Woods Construction Inc.signed contract and all other documents, subject to approval as to form by the City Attorney. BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to take any other related actions consistent with the intention of this resolution. ***** City of South San Francisco Printed on 9/20/2017Page 2 of 2 powered by Legistar™ NON-FED-AID AGREEMENT TEMPLATE MAY 2017 CITY OF SOUTH SAN FRANCISCO SANITARY SEWER AND MANHOLE REPLACEMENT PROJECT ENGINEERING FILE NO. SS-16-2 PROJECT NO. SS1009, BID NO. 2601 NOTICE INVITING BIDS PART I - PROPOSAL PROPOSAL FORMS FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS PART II – GENERAL CONDITIONS PART III – SPECIAL PROVISIONS SPECIAL CONDITIONS TECHNICAL SPECIFICATIONS PART IV – PROJECT PLANS EXHIBIT A Page 1 of 14 CITY OF SOUTH SAN FRANCISCO ENGINEERING DIVISION FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS TABLE OF CONTENTS Page No. 1. Scope of Work A-1 2. The Contract Documents A-1 3. Equipment - Performance of Work A-2 4. Contract Price A-2 5. Rights of City to Increase Working Days A-2 6. Option of City to Terminate Agreement in Event of Failure to Complete Work A-2 7. Termination of Contract for Convenience A-3 8. Performance by Sureties A-5 9. Hold-Harmless Agreement and Contractor's Insurance A-6 10. Insurance A-6 11. Proof of Carriage of Insurance A-7 12. Provisions Cumulative A-8 13. Notices A-8 14. Interpretation A-8 Attachment A – Escrow Agreement for Security Deposits in Lieu of Retention EXHIBIT A Page 2 of 14 NON-FED-AID AGREEMENT TEMPLATE MAY 2017 Page A-1 of 12 FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS THIS AGREEMENT made and entered into this ____, day of ______, _____, between the CITY OF SOUTH SAN FRANCISCO, a municipal corporation and political subdivision of the State of California, hereinafter called “CITY”, and K.J. Woods Construction Inc., hereinafter called “CONTRACTOR”1. W I T N E S S E T H: WHEREAS, City has taken appropriate proceedings to authorize construction of the public work and improvements herein provided and execution of this contract. WHEREAS, a notice was duly published for bids for the contract for the improvements hereinafter described. WHEREAS, on September 6, 2017, notice duly given, the City Council (“Council”) of said City awarded the contract for the construction of the improvements hereinafter described to the Contractor, which Contractor said Council found to be the lowest responsible bidder for said improvements. WHEREAS, City and Contractor desire to enter into this agreement for the construction of said improvements pursuant to the terms, definitions, and conditions set forth in the General Provisions and other Contract Documents. IT IS AGREED as follows: 1. Scope of Work. Contractor shall perform the Work described briefly as follows: The Work consists of the furnishing of all labor, materials, tools, equipment, and services necessary for the construction of the SANITARY SEWER AND MANHOLE REPLACEMENT PROJECT; in accordance with the Contract Documents. Also included are any such other items or details not mentioned above that are required by the Contract Documents, which are to be constructed or furnished and installed as shown on the plans, as specified herein and as directed by the Engineer. The aforementioned improvements are further described in the "Contract Documents" hereinafter referred to. 2. The Contract Documents. The complete Contract consists of the following documents: (A) Notice Inviting Bids (B) Part I – Submitted Proposal (as accepted) (C) This Agreement, including Contractor’s Payment Bond, Faithful Performance Bond and Guaranty Bond. 1. 1The term "Contractor" as used herein is employed without distinction as to either number or gender and shall include whenever the context shall permit all agents, representatives, employees, servants, subcontractors and business or social invitees. EXHIBIT A Page 3 of 14 Page A-2 of 9 (D) Part II – General Conditions (E) Part III – Special Provisions: Special Conditions and Technical Specifications, including State Standard Specifications dated 2015, sections 10-99, as revised in Revised Standard Specifications (RSS) dated June 23, 2017. (F) Part IV – Project Plans, approved June 23, 2017. All rights and obligations of City and Contractor are fully set forth and described in the contract documents. All of the above-named documents are intended to cooperate, so that any work called for in one and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents. The documents comprising the complete contract will hereinafter be referred to as “the Contract Documents.” 3. Equipment - Performance of Work. Contractor shall furnish all tools, equipment, apparatus, facilities, labor, and materials necessary to perform and complete in a good and workmanlike manner the Work of general construction as called for, and for the manner designated in, and in strict conformity with, the plans and specifications for said Work entitled: SANITARY SEWER AND MANHOLE REPLACEMENT PROJECT The equipment, apparatus, facilities, labor, and materials shall be furnished and said Work performed and completed as required in said plans and specifications under the direction and supervision and subject to the approval of the Engineer of said City or the Engineer’s designated assistant. 4. Contract Price. City shall pay, and Contractor shall accept, in full payment for the Work agreed to be done the sum of One Million Five Hundred Forty Eight Thousand Dollars ($1,548,000.00). Said price is determined by the lump sum price contained in Contractor's bid proposal (“Bid”). The lump sum price and unit prices are set forth in the completed Bid forms attached hereto and made a part hereof as if set forth herein verbatim. In the event work is performed or materials furnished in addition to those set forth in Contractor's bid and the specifications herein, such work and materials will be paid for at the unit prices therein contained. Said amount shall be paid in installments as hereinafter provided. 5. Rights of City to Increase Working Days. If such Work is not completed within the time specified, the Engineer shall have the right to increase the number of working days in the amount it may determine will best serve the interest of the City. If it desires to increase said number of working days, it shall have the further right to charge to Contractor and deduct from the final payment for the Work the actual cost of engineering, inspection, superintendence, and other overhead expenses which are directly chargeable to Contractor and which accrue during the period of such extension, except that the cost of the final service and preparation of the final estimates shall not be included in such charges, provided, however, that no extension of time for the completion of such Work shall be allowed unless at least twenty (20) calendar days prior to the time herein fixed for the completion thereof or the time fixed by the Engineer for such completion as extended, Contractor shall have filed application for extension thereof, in writing with the Engineer. 6. Option of City to Terminate Agreement in Event of Failure to Complete Work. If at any time in the opinion of the Engineer, the Contractor has refused or failed to prosecute the Work or any EXHIBIT A Page 4 of 14 Page A-3 of 9 severable part thereof, with such diligence as will insure its work, or any completion within the time specified, or any extensions thereof, or shall have failed to complete said work within such time, or if Contractor should be adjudged a bankrupt, or if Contractor should make a general assignment for the benefit of Contractor's creditors, or if a receiver should be appointed in the event of Contractor's insolvency, or if Contractor, or any Subcontractor, should violate any of the provisions of this Agreement, the Engineer may give written notice to Contractor, and Contractor's sureties of its intention to terminate this Agreement, such notice to contain the reasons for such intention to terminate this Agreement, and unless within five calendar (5) days after the serving of such notice, such violation shall cease and satisfactory arrangements for the correction thereof be made, this Agreement may, at the option of City, upon expiration of said time, cease and terminate. Any excess of cost arising therefrom over and above the contract price will be charged against the Contractor and the Contractor’s sureties who will be liable therefore. In the event of such termination, all money due the Contractor or retained under the terms of this contract shall be forfeited to the City; but such forfeiture will not release the Contractor or the Contractor’s sureties from liability or failure to fulfill the contract. The Contractor and the Contractor’s sureties will be credited with the amount of money so forfeited toward any excess of cost over and above the contract price, arising from the suspension termination of the operations of the contract and the completion of the Work by the City as above provided, and the Contractor will be so credited with any surplus remaining after all just claims for such completion have been paid. In the determination of the question whether there has been any such noncompliance with the contract as to warrant the suspension termination or annulment thereof, the decision of the Engineer shall be binding on all parties to the contract. 7. Termination of Contract for Convenience. The City also reserves the right to terminate the contract at any time upon a determination by the Engineer in the Engineer's sole discretion that termination of the contract is in the best interest of the City. If the City elects to terminate the contract for convenience, the termination of the contract and the total compensation payable to the Contractor shall be governed by the following: (A) The City will issue the Contractor a written notice signed by the Engineer, specifying that the contract is terminated. Upon receipt of said written notice, the Contractor will be relieved of further responsibility for damage to the Work (excluding materials) as specified in Section VII-17, "Contractor's Responsibility for the Work," of the General Conditions and, except as otherwise directed in writing by the Engineer, the Contractor shall: (1) Stop all work under the contract except that specifically directed to be completed prior to acceptance. (2) Perform work the Engineer deems necessary to secure the project for termination. (3) Remove equipment and plant from the site of the Work. (4) Take such action as is necessary to protect materials from damage. (5) Notify all subcontractors and suppliers that the contract is being terminated and that their contracts or orders are not to be further performed unless otherwise authorized in writing by the Engineer. (6) Provide the Engineer with an inventory list of all materials previously produced, purchased or ordered from suppliers for use in the Work and not yet used in the Work, including its storage location, and such other information as the Engineer may request. EXHIBIT A Page 5 of 14 Page A-4 of 9 (7) Dispose of materials not yet used in the Work as directed by the Engineer. It shall be the Contractor's responsibility to provide the City with good title to all materials purchased by the City hereunder, including materials for which partial payment has been made as provided in Section IX-2, “Progress Payments,” of the General Conditions and with bills of sale or other documents of title for such materials. (8) Subject to the prior written approval of the Engineer, settle all outstanding liabilities and all claims arising out of subcontracts or orders for materials terminated hereunder. To the extent directed by the Engineer, the Contractor shall assign to the City all the right, title, and interest of the Contractor under subcontracts or orders for materials terminated hereunder. (9) Furnish the Engineer with the documentation required to be furnished by the Contractor under the provisions of the contract, including, on projects as to which Federal and State funds are involved, all documentation required under the Federal and State requirements included in the contract. (10) Take such other actions as the Engineer may direct. (B) Acceptance of the contract as hereinafter specified shall not relieve the Contractor of responsibility for damage to materials. The Contractor shall continue to be responsible for damage to materials after issuance of the Notice of Termination, except as follows: (1) The Contractor’s responsibility for damage to materials for which partial payment has been made as provided in Section IX-2, “Progress Payments,” of the General Conditions and for materials furnished by the City for use in the Work and unused shall terminate when the Engineer certifies that such materials have been stored in the manner and at the locations the Engineer has directed. (2) The Contractor’s responsibility for damage to materials purchased by the City subsequent to the issuance of the notice that the contract is to be terminated shall terminate when title and delivery of such materials has been taken by the City. (3) When the Engineer determines that the Contractor has completed the Work under the contract directed to be completed prior to termination and such other work as may have been ordered to secure the project for termination, the Contractor will recommend that the Engineer formally accept the contract to the extent performed, and immediately upon and after such acceptance by the Engineer, the Contractor will not be required to perform any further Work thereon and shall be relieved of the Contractor's contractual responsibilities for injury to persons or property which occurs after the formal acceptance of the project by the Engineer. (C) Termination of the contract shall not relieve the surety of its obligation for any just claims arising out of the work performed. (D) The total compensation to be paid to the Contractor shall be determined by the Engineer on the basis of the following: (1) The reasonable cost to the Contractor, without profit, for all work performed under the contract, including mobilization, demobilization and work done to secure the project for termination. In determining the reasonable cost, deductions will be made for the cost of materials EXHIBIT A Page 6 of 14 Page A-5 of 9 to be retained by the Contractor, amounts realized by the sale of materials, and for other appropriate credits against the cost of the work. When, in the opinion of the Engineer, the cost of a contract item of work is excessively high due to costs incurred to remedy or replace defective or rejected work, the reasonable cost to be allowed will be the estimated reasonable cost of performing such work in compliance with the requirements of the plans and specifications and the excessive actual cost shall be disallowed. (2) A reasonable allowance for profit on the cost of the work performed as determined under Subsection (1), provided the Contractor establishes to the satisfaction of the Engineer that it is reasonably probable that the Contractor would have made a profit had the contract been completed and provided further, that the profit allowed shall in no event exceed four (4) percent of said cost. (3) The reasonable cost to the Contractor of handling material returned to the vendor, delivered to the City, or otherwise disposed of as directed by the Engineer. (4) A reasonable allowance for the Contractor’s administrative costs in determining the amount payable due to termination of the contract. (5) A reasonable credit to the City for defective or incomplete work not corrected. All records of the Contractor and subcontractors necessary to determine compensation in accordance with the provisions of this Section 5 shall be open to inspection or audit by representatives of the City at all times after issuance of the Notice of Termination and for a period of three (3) years, thereafter, and such records shall be retained for that period. After acceptance of the Work by the Engineer, the Engineer may make payments on the basis of interim estimates pending issuance of the Final Estimate in accordance with Section IX-7, “Final Payment,” of the General Conditions when, in the Engineer's opinion, the amount thus paid, together with all amounts previously paid or allowed, will not result in total compensation in excess of that to which the Contractor will be entitled. All payments, including payment upon the Final Estimate shall be subject to deduction for prior payments and amounts, if any, to be kept or retained under the provisions of the contract. If this contract is terminated by the City for cause, and it is later determined that the proper basis for a termination for cause did not exist, the termination shall be deemed to have been a termination for convenience and governed by the terms of this contract dealing with such termination. If the contract is terminated by the City for cause or convenience, such termination shall neither act as a waiver by the City of its right to require the Contractor to correct defects in the Work performed by the Contractor nor void any warranties applicable to the Work performed under the contract. The provisions of this Section 5 shall be included in all subcontracts. In the event of conflict between the termination provisions of this Section 8 and any other provision or the contract, this Section 5 shall prevail. 8. Performance by Sureties. In the event of any termination as herein before provided, City shall immediately give written notice thereof to Contractor and Contractor's sureties and the sureties shall have the right to take over and perform the Agreement, provided, however, that if the sureties, within five (5) working days after giving them said notice of termination, do not give the City written notice of their EXHIBIT A Page 7 of 14 Page A-6 of 9 intention to take over the performance of the Agreement and do not commence performance thereof within five (5) working days after notice to the City of such election, City may take over the Work and prosecute the same to completion by contract or by any other method it may deem advisable, for the account, and at the expense, of Contractor, and the sureties shall be liable to City for any excess cost or damages occasioned City thereby; and, in such event, City may, without liability for so doing, take possession of and utilize in completing the Work such materials, appliances, plant, and other property belonging to Contractor as may be on the site of the Work and necessary therefore. Should Contractor contract in an individual capacity, the surety bond shall contain the following provision: “Should Contractor contract in the Contractor’s individual capacity, the death of the Contractor shall not relieve the surety of its obligations.” 9. Hold-Harmless Agreement and Contractor's Insurance. Contractor agrees to, and shall, hold City, its elective and appointive boards, officers, agents, and employees harmless from any liability for damage or claims for damage for personal injury, including death, as well as from claims for property damage which may arise from Contractor's or any of Subcontractor's operations under this Agreement, whether such operations be by Contractor or by any Subcontractor or Subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for, Contractor or any Subcontractor or Subcontractors. Contractor agrees to, and shall, defend City and its elective and appointive boards, officers, agents, and employees from any suits or actions at law or in equity for damages caused, or alleged to have been caused, by reason of any of the aforesaid operations, provided as follows: (A) The City does not, and shall not, waive any rights against Contractor which it may have by reason of the aforesaid hold-harmless agreement, because of the acceptance by City, or the deposit with City by Contractor, of any of the insurance policies hereinafter described in Paragraph 15, “Insurance” hereof. (B) That the aforesaid hold-harmless agreement by Contractor shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations of Contractor or any Subcontractor, regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 10. Insurance. The Contractor shall take out and maintain during the life of this Agreement the following policies of insurance: (A) Workers' Compensation and Employers' Liability Insurance providing full statutory coverage. In signing this Agreement, the Contractor makes the following certification, required by Section 1861 of the California Labor Code: "I am 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 that Code, and I will comply with such provisions before commencing the performance of the work of this contract". (B) Comprehensive General Liability Insurance. Public Liability Insurance (includes premises, elevator - if applicable, products, completed operations, personal injury and contractual): EXHIBIT A Page 8 of 14 Page A-7 of 9 (1) Bodily Injury Liability: $ 500,000 each person $1,000,000 each occurrence (2) Property Damage Liability [includes XCU (explosion, collapse, and underground damage); water damage and broad form property damage or third party liability]: $ 500,000 per occurrence (C) Comprehensive Automobile Liability Insurance (includes owned, non-owned, and hired vehicles): (1) Bodily Injury Liability: $ 500,000 per person $1,000,000 each occurrence (2) Property Damage Liability: $ 500,000 each occurrence (D) It is agreed that the insurance required by Subsections B and C, in an aggregate amount of not less than ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000), shall be extended to include as additional insured the City of South San Francisco, its elective and appointive boards, commissions, officers, agents, employees, with respect to operations performed by the Contractor, as described herein. Evidence of this insurance described above shall be provided to City upon execution of this Agreement and shall be subject to approval of the City Attorney as to form, amount, and carrier. The policy of insurance shall also contain a provision indicating that such insurance shall not be reduced or cancelled except upon thirty (30) calendar days written notice to City. In addition, the following endorsement shall be made on said policy of insurance: "The following are named as additional insured on the above policies: The City of South San Francisco, its elective and appointive boards, officers, agents, and employees." "Notwithstanding any other provision in this policy, the insurance afforded hereunder to the City of South San Francisco shall be primary as to any other insurance or re-insurance covering or available to the City of South San Francisco, and such other insurance or reinsurance shall not be required to contribute to any liability or loss until and unless the approximate limit of liability afforded hereunder is exhausted." The above requirements that the City be named as additional insured, that the insurance shall be primary to any other, and that the insurance not be cancelled without notice, shall be provided in the form of an endorsement signed by an authorized representative of the insurance company providing coverage, who shall declare his or her authority to sign on behalf of the insurer. 11. Proof of Carriage of Insurance. Contractor shall furnish City through the Engineer, concurrently with the execution hereof, with satisfactory proof of carriage of the insurance required and that each carrier shall give City at least thirty (30) calendar days prior notice of the cancellation or change of any policy during the effective period of this contract. Further, if the Contractor’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 EXHIBIT A Page 9 of 14 Page A-8 of 9 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. 12. Provisions Cumulative. The provisions of this Agreement are cumulative, and in addition to and not in limitation of, any other rights or remedies available to City. 13. Notices. All notices shall be in writing and delivered in person or transmitted by certified mail, postage prepaid. Notices required to be given to City shall be addressed as follows: City Clerk City Hall, 400 Grand Avenue South San Francisco, California 94080 Notices required to be given to Contractor shall be addressed as follows: K.J. Woods Construction Inc. 1485 Bayshore Blvd, #149 San Francisco, CA 94124 Notices required to be given sureties of Contractor shall be addressed as follows: _________________________________________________________________________ Notices required to be given to the Escrow Agent of Contractor, if any, shall be addressed as follows: _________________________________________________________________________ 14. Interpretation. As used herein, any gender includes each other gender, the singular includes the plural, and vice versa. IN WITNESS WHEREOF, two (2) identical counterparts of this Agreement, consisting of twelve (12) pages (being pages A-1 through A-12), each of which counterparts shall for all purposes be deemed an original of said Agreement, have been duly executed by the parties hereinabove named, on the day and year first hereinabove written. ATTEST: CITY: City of South San Francisco, a municipal corporation _______________________________ By: _____________________________ EXHIBIT A Page 10 of 14 Page A-9 of 9 City Clerk Mike Futrell, City Manager CONTRACTOR:_______________________ __________________________________ ATTEST: By:_______________________________ (If Contractor is an individual, so state. _____________________________ If Contractor is a Corporation, a corporate seal or signatures of the President or Vice President and the Secretary Treasurer are required). EXHIBIT A Page 11 of 14 ATTACHMENT A ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION THIS ESCROW AGREEMENT is made and entered into by and between the City of South San Francisco whose address is 400 Grand Ave., P.O. Box 711, South San Francisco, CA 94083, hereinafter referred to as "City," and K.J. Woods Construction, Inc. ,whose address is 1485 Bay Shore Blvd, Suite 149, San Francisco, CA 94124, hereinafter called “Contractor” and ______________________________________________________________,whose address is ___________________________________________________________, hereinafter called “Escrow Agent.” For the consideration hereinafter set forth, the Owner, Contractor, and Escrow Agent agree as follows: 1. Pursuant to Section 22300 of the Public Contract Code of the State of California, Contractor has the option to deposit securities with Escrow Agent as a substitute for retention earnings required to be withheld by Owner pursuant to the Construction Contract entered into between the Owner and Contractor for __________________ in the amount of _______________dollars ($_____) dated ___________ (hereinafter referred to as the “Contract”). Alternately, on written request of the Contractor, the Owner shall make payments of the retention earnings directly to the Escrow Agent. When the Contractor deposits the securities as a substitute for Contract earnings, the Escrow Agent shall notify the Owner within 10 working days of the deposit. The market value of the securities at the time of the substitution shall be at least equal to the cash amount then required to be withheld as retention under the terms of the Contract between the Owner and Contractor. Securities shall be held in the name of _______________, and shall designate the Contractor as the beneficial owner. 2. The Owner shall make progress payments to the Contractor for those funds which otherwise would be withheld from progress payments pursuant to the Contract provisions, provided that the Escrow Agent holds securities in the form and amount specified above. 3. When the Owner makes payment of retentions earned directly to the Escrow Agent, the Escrow Agent shall hold them for the benefit of the Contractor until the time that the escrow created under this contract is terminated. The Contractor may direct the investment of the payments into securities. All terms and conditions of this agreement and the rights and responsibilities of the parties shall be equally applicable and binding when the Owner pays the Escrow Agent directly. 4. Contractor shall be responsible for paying all fees for the expenses incurred by Escrow Agent in administering the Escrow Account and all expenses of the Owner. These expenses and payment terms shall be determined by the Owner, Contractor, and Escrow Agent. 5. The interest earned on the securities or the money market accounts held in escrow and all interest earned on that interest shall be for the sole account of Contractor and shall be subject to withdrawal by Contractor at any time and from time to time without notice to the Owner. 6. Contractor shall have the right to withdraw all or any part of the principal in the Escrow Account only by written notice to Escrow Agent accompanied by written authorization from the Owner to the Escrow Agent that Owner consents to the withdrawal of the amount sought to be withdrawn by Contractor. 7. The Owner shall have a right to draw upon the securities in the event of default by the Contractor. Upon seven day’s written notice to the Escrow Agent from the Owner of the default, the Escrow Agent shall immediately convert the securities to cash and shall distribute the cash as instructed by the Owner. EXHIBIT A Page 12 of 14 8. Upon receipt of written notification from the Owner certifying that the Contract is final and complete, and that the Contractor has complied with all requirements and procedures applicable to the Contract, Escrow Agent shall release to Contractor all securities and interest on deposit less escrow fees and charges of the Escrow Account. The escrow shall be closed immediately upon disbursement of all moneys and securities on deposit and payments of fees and charges. 9. Escrow Agent shall rely on the written notifications from the Owner and the Contractor pursuant to Sections (5) to (8), inclusive, of this Agreement, and the Owner and Contractor shall hold Escrow Agent harmless from Escrow Agent’s release and disbursement of the securities and interest as set forth above. 10. The names of the persons who are authorized to give written notice or to receive written notice on behalf of the Owner and on behalf of Contractor in connection with the foregoing, and exemplars of their respective signatures are as follows: On behalf of Owner: On behalf of Contractor: __________________________________ __________________________________ Title Title __________________________________ __________________________________ Name Name __________________________________ __________________________________ Signature Signature __________________________________ __________________________________ Address Address On behalf of Escrow Agent: __________________________________ Title __________________________________ Name __________________________________ Signature __________________________________ Address At the time the Escrow Account is opened, the Owner and Contractor shall deliver to the Escrow Agent a fully executed counterpart of this Agreement. EXHIBIT A Page 13 of 14 IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the date first set forth above. Owner: Contractor: __________________________________ __________________________________ Title Title __________________________________ __________________________________ Name Name __________________________________ __________________________________ Signature Signature Approved as to form: Attest: _____________________________________ __________________________________ City Attorney Date City Clerk EXHIBIT A Page 14 of 14 City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-752 Agenda Date:9/6/2017 Version:1 Item #:12. Report regarding a resolution approving the first amendment to a consulting services agreement with Du-All Safety extending the term for a second year ,increasing the contract amount by $125,000 for a total amount not to exceed $250,000,and authorizing the City Manager to execute the amendment.(LaTanya Bellow,Human Resources Director) RECOMMENDATION It is recommended that the City Council adopt a resolution approving the first amendment to a consulting services agreement with Du-All Safety extending the term for a second year,increasing the contract amount by $125,000 for a total amount not to exceed $250,000,and authorizing the City Manager to execute the amendment. BACKGROUND/DISCUSSION On February 24,2016,the City Council approved the acquisition and funding for a Safety Program Consultant, to be managed by the Human Resources Department,as part of the FY 2015-16 financial report and budget.On July 13,2016,the City Council approved a consulting services agreement with Du-All for a safety program consultant,in an amount not to exceed $125,000,and authorized the City Manager to execute the agreement. As part of the consultant selection process,staff requested quotes from Du-All Safety,EORM and Safety Compliance for an onsite consultant.Du-All Safety provided a program proposal that aligned with the City’s needs and budget,and was selected.The contract provided for a limited-term consultant to create,promote,and manage safe working conditions,implement injury prevention programs,educate the workforce,and enforce safety as a priority in order to reduce workers’compensation injuries’fiscal impact,and increase employee safety for the City. During the first year of the contract,Du-All established the top departments where their focus will be for the upcoming year:Fire,Police,Parks and Public Works.Through targeted efforts and focused training,the City has significantly decreased the amount of vehicle incidents,workers’compensation claims,and increased employee safety consciousness.Staff has been pleased with Du-All’s performance and is requesting the extension of the Agreement and the additional funds in order to further develop and strengthen the safety program that was implemented in the first year. Du-All Safety provided the following services to the City during Fiscal Year (FY)2016-17 in line with the contract scope of work: 1.Safety plan per department 2.Ergonomic training and evaluations 3.Creation of an Injury and Illness Prevention Program City of South San Francisco Printed on 8/31/2017Page 1 of 2 powered by Legistar™ File #:17-752 Agenda Date:9/6/2017 Version:1 Item #:12. 4.Loss History Metrics Project 5.Aerosol Transmissible Diseases Program 6.Fall Protection Program 7.Hazard assessments 8.Traffic control/ flagger safety 9.Forklift classes 10.Bloodborne pathogens classes 11.Fall protection classes 12.April 12, 2017 presentation to Council regarding highlights and focus areas The safety goals for FY2017-18 are listed below: ·Reduce Auto claims ·Implement the Injury Illness Prevention Program ·Develop Exposure Control Plan ·Conduct confined space assessments and develop a program ·Implement Inspection Program ·Develop Heat Illness Prevention Program FISCAL IMPACT The fiscal impact for FY2017-18 is $125,000 for the additional services performed during the one-year extension of the contract term. Funds are included the FY2017-18 operating budget. CONCLUSION It is recommended that the City Council adopt a resolution approving the first amendment to the consulting services agreement with Du-All Safety to extend the term by one year and increase the contract amount by $125,000 to allow the City to continue efforts in progress to manage safety accidents and protect employees from injury while reducing costs to the City. City of South San Francisco Printed on 8/31/2017Page 2 of 2 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-847 Agenda Date:9/6/2017 Version:1 Item #:12a. Resolution approving the first amendment to a consulting services agreement with Du-All Safety extending the term for a second year and increasing the contract amount by $125,000 for a total amount not to exceed of $250,000, and authorizing the City Manager to execute the agreement. WHEREAS, on February 24, 2016, the City Council approved a consulting services agreement (“Agreement”) with Du-All to provide safety program consulting services in an amount not to exceed $125,000; and WHEREAS, in order to assist with staff’s efforts to provide on-site safety services, including assessment, development and updates to safety programs, policies and procedures, performance of risk assessments and inspections, and provision of on-site safety training, staff has prepared an amendment (“First Amendment”) to the Agreement to extend the term for a second year and to increase the contract amount by $125,000 for a total not to exceed amount of $250,000, attached hereto and incorporated herein as Exhibit A; and WHEREAS, staff recommends that the City Council approve the First Amendment. NOW THEREFORE BE IT RESOLVED, that the City Council of the City of South San Francisco hereby takes the following actions: 1.Approves the First Amendment to the Agreement extending the term for a second year and increasing the not to exceed amount to $250,000, attached hereto and incorporated herein as Exhibit A. 2.Authorizes the City Manager to execute the First Amendment 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. ***** City of South San Francisco Printed on 9/7/2017Page 1 of 1 powered by Legistar™ EXHIBIT A EXHIBIT B 2017 Du-All Safety, LLC (510) 651-8289 www.du-all.com City of South San Francisco Safety Plan of Action July 2017-June 2018 Rev. 7.13.2017 Month Topic July 2017 Finalize Bloodborne Pathogens Programs Finalize Aerosol Transmissible Diseases Program Finalize Heat Illness Program Safety Committee Meeting Conduct Field Crew Assessments August 2017 Conduct Confined Space Assessments Conduct Confined Space training Finalize Fall Protection Program Conduct Accident Investigation training Conduct IIPP training Conduct Field Crew Assessments September 2017 Develop Emergency Action Plans Develop Confined Space Program Develop Hazard Communication Program Conduct ATD training Safety Committee Meeting Conduct Field Crew Assessments October 2017 Conduct Noise Measurements Develop Emergency Action Plans Develop Hearing Conservation Program Conduct Field Crew Assessments November 2017 Conduct Hazard Communication training Conduct Hearing Conservation training Conduct Hearing Tests Develop Personal Protective Equipment Program Safety Committee Meeting 2017 Du-All Safety, LLC (510) 651-8289 www.du-all.com Conduct Field Crew Assessments December 2017 Conduct Emergency Action Plan training Start Respiratory Protection Program Conduct Field Crew Assessments January 2018 Finalize Respiratory Protection Program Conduct Personal Protective Equipment training Safety Committee Meeting Facility Inspections Conduct Field Crew Assessments February 2018 Conduct Respiratory Protection training Conduct FIT tests Develop Equipment Specific Lockout/Tagout Procedures Facility Inspections Conduct Field Crew Assessments March 2018 Develop Hotwork Program Develop Code of Safe Practices Develop Equipment Specific Lockout/Tagout Procedures Safety Committee Meeting Conduct Field Crew Assessments April 2018 Conduct Evacuation Drills Conduct Hotwork training Develop Code of Safe Practices Develop Equipment Specific Lockout/Tagout Procedures Conduct Field Crew Assessments May 2018 Conduct Hazardous Waste Management classes Conduct Hazardous Waste Operations Emergency Response (HazWoper) Safety Committee Meeting Conduct Field Crew Assessments June 2018 Develop Code of Safe Practices Develop Equipment Specific Lockout/Tagout Procedures Conduct Field Crew Assessments City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-757 Agenda Date:9/6/2017 Version:1 Item #:13. Report regarding a resolution accepting the receipt and allocation of $30,174 in grant funds from the California Board of State and Community Corrections to the LifeMoves Outreach Program for the enhancement of homeless outreach efforts.(Jeff Azzopardi, Police Chief) RECOMMENDATION It is recommended that the City Council adopt a resolution authorizing the receipt and allocation of $30,174 in grant funds from the California Board of State and Community Corrections to the LifeMoves Outreach Program for the enhancement of homeless outreach efforts. BACKGROUND/DISCUSSION The California Board of State and Community Corrections (CBSCC)was established in 2012 as an independent statutory agency that provides leadership to the adult and juvenile criminal justice systems.The CBSCC has expertise on public safety realignment issues,is a data and information clearinghouse,and provides technical assistance on a wide range of community corrections issues.In addition,the CBSCC promulgates regulations for adult and juvenile detention facilities,conducts regular inspections of those facilities,develops standards for the selection and training of local corrections and probation officers,and administers significant public safety-related grant funding. The CBSCC’s work involves extensive collaboration with stakeholders,including local probation departments, county administrative offices,justice system partners,community-based organizations,and others.It administers a host of federal and state public safety grants,including evidence-based practices to fight gangs and works to address the overrepresentation of youth of color in the juvenile justice system.Policy for the agency is set by the thirteen member CBSCC,whose members are prescribed by statute,appointed by the Governor and the Legislature,and subject to approval by the State Senate.The Board Chair reports directly to the Governor. The CBSCC’s City Law Enforcement Grant of the Budget Act of 2016 allocated $512,971 to law enforcement agencies within San Mateo County.The associated mandate of this grant is to increase positive outcomes between municipal law enforcement and high-risk populations.Local law enforcement agencies may use the funds to supplement, not supplant, the following: a)Homeless outreach teams. b)Crisis Intervention Training for officers. c)Gang Resistance Education and Training (GREAT). d)Resources for drug endangered children. e)Outreach to high-risk youth. City of South San Francisco Printed on 8/31/2017Page 1 of 3 powered by Legistar™ File #:17-757 Agenda Date:9/6/2017 Version:1 Item #:13. f)Youth diversion programs. g)Gang and violence prevention programs. Rather than spend the aforementioned funds as a county,the San Mateo County Police Chiefs &Sheriff Association (SMCPCSA)decided to disperse these funds equally in the amount of $30,174 to each law enforcement agency within the county.While the decision regarding the manner in which these funds are to be dispersed has been made by the SMCPCSA,each city is tasked with determining how these funds shall be allocated.The South San Francisco,San Bruno,Burlingame,Colma,Hillsborough,Brisbane,and Broadmoor Police Departments have expressed a desire to allocate this funding in a manner that would enhance homeless outreach efforts. The listed law enforcement agencies have met with LifeMoves to develop a plan to expand the Homeless Outreach Teams (HOT)impact on homelessness through dedicated efforts in the aforementioned cities. LifeMoves is a nonprofit organization that provides housing related resources to vulnerable,unsheltered homeless population in San Mateo County including single adults,families and veterans.Its ultimate goal is to help these individuals return to stable housing and long-term self-sufficiency.This proposed funding will allow LifeMoves to increase its capacity to provide these services by dedicating additional staff resources to serve unsheltered homeless individuals and families in the participating cities. The LifeMoves outreach program takes a regional approach to serving unsheltered homeless individuals and families in our community.The HOT Case Managers conduct outreach to unsheltered homeless individuals in five currently identified regions in San Mateo County.Each city named in this funding plan is served by HOT in one of the five regions where LifeMoves currently provides outreach services.This service remains uninterrupted.With this additional funding,LifeMoves plans to name a sixth region that will dedicate HOT efforts specifically to participating cities.LifeMoves and police department representatives communicate weekly regarding homeless individuals and to discuss any issues that may arise.This includes discussing areas that might draw inhabitants or concerns from local merchants that homeless individuals are affecting their business. This one-time funding will expand LifeMoves’impact and increase its capacity to more effectively serve the homeless families and individuals living in the community.This additional funding will allow LifeMoves to implement the following: ·Increase capacity and provide additional outreach services.LifeMoves will dedicate a member of the outreach team to serve South San Francisco,San Bruno,Burlingame,Brisbane,Broadmoor,Pacifica, Hillsborough,and Colma.The dedicated LifeMoves staff will continue to develop a relationship with identified law enforcement to conduct outreach in these cities. ·The outreach workers will meet with law enforcement regularly to identify where homeless individuals and families reside,work to develop a rapport with the homeless citizens,make referrals to primary and behavioral health care,connect unsheltered homeless people to housing resources,and provide access to City of South San Francisco Printed on 8/31/2017Page 2 of 3 powered by Legistar™ File #:17-757 Agenda Date:9/6/2017 Version:1 Item #:13. basic needs such as meals, showers, toiletries, and emergency shelter. ·To continue to enrich the relationship and collaborative efforts between LifeMoves and key law enforcement agencies,LifeMoves outreach staff will work remotely in available office space within the police departments.LifeMoves outreach staff and key members of each city’s police department will serve the community’s homeless population through concerted efforts. LifeMoves is an experienced user of Clarity,San Mateo County’s homeless management system,with quality assurance plans and procedures in place to ensure timely and accurate input of client demographic information, program output,and client outcome data review.A quality assurance team meets regularly to perform file reviews.Program staff,senior staff,and CBSCC leadership routinely analyze and review data and reports for accuracy, completeness, program and contract compliance, and effectiveness. FUNDING There is no fiscal impact associated with the receipt and allocation for these funds. CONCLUSION It is recommended that the City Council adopt a resolution authorizing the receipt and allocation of $30,174 in grant funds from the California Board of State and Community Corrections to the LifeMoves Outreach Program for the enhancement of homeless outreach efforts. City of South San Francisco Printed on 8/31/2017Page 3 of 3 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-779 Agenda Date:9/6/2017 Version:1 Item #:13a. Resolution accepting the receipt and allocation of $30,174 in grant funds from the California Board of State and Community Corrections to the LifeMoves Outreach Program for the enhancement of homeless outreach efforts. WHEREAS, the California Board of State and Community Corrections (CBSCC) is an independent statutory agency that provides leadership to the adult and juvenile criminal justice systems; and WHEREAS, the CBSCC’s work involves extensive collaboration with stakeholders, including local probation departments, county administrative offices, justice system partners, community-based organizations, and others; and WHEREAS, incorporated in the CBSCC’s mission is to provide grants to local law enforcement for programs and initiatives intended to strengthen the relationship between law enforcement and the communities they serve; and WHEREAS, the CBSCC’s City Law Enforcement Grant of the Budget Act of 2016 allocated $512,971 to law enforcement agencies within San Mateo County; and WHEREAS,the San Mateo County Police Chiefs & Sheriff Association (SMCPCSA) has decided to disperse these funds equally in the amount of $30,174 to each law enforcement agency within the county; and WHEREAS,the South San Francisco, San Bruno, Burlingame, Brisbane, Broadmoor, Pacifica, Hillsborough, and Colma Police Departments have expressed a desire to allocate this funding in a manner that would enhance homeless outreach efforts; and WHEREAS,this funding will allow LifeMoves to increase its capacity to serve the vulnerable, unsheltered homeless populations in the participating cities; and WHEREAS,LifeMoves will dedicate additional staff resources to serve unsheltered homeless individuals and families in the above identified cities. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council accepts the receipt and approves the allocation of $30,174 in grant funds from the California Board of State and Community Corrections to the LifeMoves Outreach Program for the enhancement of homeless outreach efforts. ***** City of South San Francisco Printed on 9/7/2017Page 1 of 1 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-753 Agenda Date:10/11/2017 Version:1 Item #:14. Report regarding a motion to accept the HVAC Improvement at Main Library and Magnolia Center Rebid Project as complete in accordance with plans and specifications (total construction cost $153,759).(Sam Bautista, Principal Engineer) RECOMMENDATION It is recommended that the City Council,by motion,accept the HVAC Improvement at Main Library and Magnolia Center Rebid Project (Project No.pf1602)as complete in accordance with plans and specifications. (total construction cost $153,759) BACKGROUND/DISCUSSION The project replaced four heat pumps in the attic area of the Magnolia Center,replaced the air handling unit in the basement of the Main Library, and the condensing unit near the rear entrance of the Main Library. On April 12,2017,City Council awarded the HVAC Improvements at the Main Library and Magnolia Center Rebid Project to Certified Heating &Air Conditioning of Fresno,California.The improvements were completed on August 18, 2017. The total construction cost incurred to date for the project is summarized as follows: Projected Actual Certified Heating Contract $143,650 $143,650 Construction Contingency $ 35,913 $ 4,420 Construction Administration $ 14,365 $ 5,689 Total Project Budget $193,928 $153,759 The construction contingency costs were associated with installing a new electrical raceway to the condenser unit because the existing raceway was corroded and could not be used for installing new cables. FUNDING Funding for this project was included in the City of South San Francisco’s Fiscal Year 2016-17 Capital Improvement Program budget (Project No. pf1602). CONCLUSION Staff recommends acceptance of the project as complete.Upon acceptance,a Notice of Completion will be filed with the County of San Mateo Recorder’s Office.At the end of the thirty day lien period,the retention City of South San Francisco Printed on 9/6/2017Page 1 of 2 powered by Legistar™ File #:17-753 Agenda Date:10/11/2017 Version:1 Item #:14. funds will be released to the contractor after the City receives one year warranty bond. City of South San Francisco Printed on 9/6/2017Page 2 of 2 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-854 Agenda Date:9/6/2017 Version:1 Item #:15. Closed Session: Conference with Legal Counsel Existing Litigation (paragraph (1) of subdivision (d) of Section 54956.9); One Case; Name of Case: San Mateo County Unfunded Mandate Test Claim Regarding NPDES Permit Compliance Costs City of South San Francisco Printed on 8/31/2017Page 1 of 1 powered by Legistar™