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HomeMy WebLinkAbout2004-02-25 e-packetAGENDA REDEVELOPMENT AGENCY CITY OF SOUTH SAN FRANCISCO REGULAR MEETING MUNICIPAL SERVICE BUILDING COMMUNITY ROOM FEBRUARY 25, 2004 7:00 P.M. PEOPLE OF SOUTH SAN FRANCISCO You are invited to offer your suggestions. In order that you may know our method of conducting Agency business, we proceed as follows: The regular meetings of the Redevelopment Agency are held on the second and fourth Wednesday of each month at 7:00 p.m. in the Municipal Services Building, Community' Room, 33 Arroyo Drive, South San Francisco, California. Public Comment: For those wishing to address the Board on any Agenda or non-Agendized item, please complete a Speaker Card located at the entrance to the Community Room and submit it to the Clerk. Please be sure to indicate the Agenda Item # you wish to address or the topic of your public comment. California law prevents Redevelopment Agency from taking action on any item not on the Agenda (except in emergency circumstances). Your question or problem may be referred to staff for investigation and/or action where appropriate or the matter may be placed on a future Agenda for more comprehensive action or a report. When your name is called, please come to the podium, state your name and address for the Minutes. COMMENTS ARE GENERALLY LIMITED TO THREE (3) MINUTES PER SPEAKER. Thank you for your cooperation. The Clerk will read successively the items of business appearing on the Agenda. As she completes reading an item, it will be ready for Board action. RAYMOND L. GREEN Vice Chair RICHARD A. GARBARINO, SR. Boardmember RICHARD BATTAGLIA Investment Officer MICHAEL A. WILSON Executive Director KARYL MATSUMOTO Chair JOSEPH A. FERNEKES Boardmember PEDRO GONZALEZ Boardmember SYLVIA M. PAYNE Clerk STEVEN T. MATTAS Counsel PLEASE TURN OFF CELL PHONES AND PAGERS HEARING ASSISTANCE EQUIPMENT IS AVAILABLE FOR USE BY THE HEARING-IMPAIRED AT REDEVELOPMENT AGENCY MEETINGS CALL TO ORDER ROLL CALL AGENDA REVIEW PUBLIC COMMENTS CONSENT CALENDAR 1. Motion to approve the minutes of February 11, 2004 2. Motion to confirm expense claims of February 25, 2004 ADMINISTRATIVE BUSINESS 3. Resolution authorizing the execution of a purchase and sale agreement for property located at 310 Miller Avenue ADJOURNMENT REGULAR REDEVELOPMENT AGENCY MEETiNG FEBRUARY 25, 2004 AGENDA PAGE 2 Redevelopment genc' Staff Report RDAYAGENDA ITEM #3 DATE: February 25, 2004 TO: Redevelopment Agency Board FROM: Marty Van Duyn, Assistant Executive Director SUBJECT: Resolution authorizing Executive Director to execute Purchase and Sale Agreement for property located at 310 Miller Avenue. RECOMMENDATION: It is recommended that the Redevelopment Agency Board adopt the attached Resolution authorizing the Executive Director to execute a Purchase and Sale Agreement for property located at 310 Miller Avenue. BACKGROUND/DISCUSSION: The owner of the property located at 310 and 312 Miller Avenue informed staff of his plans to put the property on the market during recent discussions regarding a city rehabilitation loan re-payment. The property consists of two parcels, one with three residential units and the other with four residential units, for a total of seven units. The parcels have the main house facing Miller Avenue and other units facing Tamarack Lane. Each of the units is a one bedroom, with a kitchen, breakfast area, living room and bathroom. The owner had secured a rental rehabilitation loan from the City twenty years ago to undertake repairs to the units. That loan in the amount of $43,592 was paid in full last year. The owner had considered undertaking additional repairs to the units but discussions with staff led him to consider selling the property to the Agency. An appraisal of the property was completed in December and estimated the market value of the parcels to be as follows: 310 Miller Avenue - consists of three, one bedroom units. That is, the main house with an attached unit at the rear, and a separate unit facing Tamarack Lane, above the garage. The appraised value is $589,000. Staff Report To: Subject: Date: Redevelopment Agency Board Purchase and Sale Agreement 310 February 25, 2004 Miller Avenue Page 2 312 Miller Avenue - consists of four, one bedroom units. That is, the main house with an attached unit at the rear, and a separate duplex facing Tamarack Lane. The appraised value is $715,000. All of the units, although small, are in relatively good condition and without significant code deficiencies. The grounds are well maintained and the units need minimal rehabilitation to repair kitchen cabinets and replacement of a couple of bedroom windows to meet new building codes. All of the units are currently occupied by low and moderate income families, many of whom have lived there for up to twenty years. The owner has maintained the rents relatively affordable, ranging from $800 to $1,000 per month. Therefore, these units qualify as historically affordable. Staff is concerned that if the property were to be sold on the market, the continued affordability of these units would be in jeopardy. Whereas, if the Agency acquires the units, they would be permanently affordable and the Agency could count seven units of production credit, toward its ABAG housing obligations, because they would be deed restricted in perpetuity. The units, located close to the comer of Miller and Linden Avenues, are close to shopping, transportation lines, and major city services. The Agency could retain the units and continue renting to the existing tenants or in the future, if additional land is acquired, new housing units could be developed in conjunction with a new parking lot and/or commercial development at the comer of Miller and Linden Avenues. CONCLUSION: The combined price for both parcels is $1,304,000. The average cost per unit is $186,285 which is considered to be a very reasonable price per unit. The new development sponsored by the Agency at Chestnut Creek cost $185,000 per unit (2001 dollars) and the proposed units for the County-owned site are estimated to cost $314,000 per unit (2006 dollars). The latter includes the cost for structure parking undemeath the units which raises the per unit cost significantly. Funds are currently available in the Agency housing fund and it is believed that the Agency would not be able to build seven units at this cost today, given market conditions. With minimal rehabilitation costs, the Miller Avenue units could be maintained as safe and well cared for family housing, that would be permanently affordable. Taking this property off the speculative market is an important factor in considering this acquisition. The owner would like to sell one of the parcels immediately and would like to make the second parcel a 1031 exchange, under the internal revenue code, to facilitate his investment in another property. The Agency has a standard Purchase and Sale Agreement prepared by legal counsel Staff Report To: Subject: Date: Redevelopment Agency Board Purchase and Sale Agreement 310 Miller Avenue February 25, 2004 Page 3 and that document is attached for Agency Board Member review. The City Council Housing Subcommittee reviewed this item at their meeting of February 10, 2004, and recommend to the Agency Board that staff be directed to pursue these acquisitions. It is proposed that the Agency Board adopt the attached Resolution authorizing the Executive Director to execute the Purchase and Sale Agreement and open a short term escrow for the first acquisition, 310 Miller Avenue, and a longer term escrow for the 1031 exchange of 312 Miller Avenue. The attached resolution authorizes the Purchase and Sale Agreement for 310 Miller Avenue at a purchase price not to exceed Five Hundred and Eighty-Nine Thousand Dollars ($589,000). The acquisition for 312 Miller Avenue will be brought back to the Agency Board for formal authorization once the owner has secured his exchange property for a separate purchase and sale agreement. Marty Van Duyn. U. Assistant Executive Director Michael A. Wilson Executive Director Attachments: Resolution Purchase and Sale Agreement Metro Scan Parcel Map Property Photograph RESOLUTION NO. REDEVELOPMENT AGENCY, CITY OF SOUTH SAN FRANCISCO, STATE OF CALI:FORNIA A RESOLUTION APPROVING THE PURCHASE AND SALE AGREEMENT FOR PROPERTY LOCATED AT 310 MILLER AVENUE IN THE AMOUNT OF $589,000 WHEREAS, staffrecommends that the Redevelopment Agency approves the Purchase and Sale Agreement for acquisition of the property located at 310 Miller Avenue in the amount of $589,000. NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of South San Francisco that the Redevelopment Agency hereby approves the Purchase and Sale Agreement for property located at 310 Miller Avenue in the amount of $589,000 BE IT, FURTHER RESOLVED that the Executive Director is hereby authorized to execute the agreement and the certificate of acceptance on behalf of the Redevelopment Agency of the City of South San Francisco. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the Redevelopment Agency of the City of South San Francisco at a regular meeting held on the day of 2004 by the following vote: AYES: NOES: ABSTAIN: ABSENT: S :\Current Reso'sX2-25Purchase.sale.agr.310miller.res.doc ATTEST: Clerk 000001 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into effective as of February ,2004, (the date upon which this Agreement was approved by Buyer's Board, and hereinafter referred to as the "Effective Date") by and between William R. Comejo (hereinafter collectively referred to as "Seller") and the South San Francisco Redevelopment Agency, a public body, corporate and politic ("Buyer"). Seller and Buyer are hereinafter referred to as the "Parties." WHEREAS, Seller is the owner of that certain real property in San Mateo County, California, known as APN 012-311-230, located at 310 Miller Avenue in the City of South San Francisco, and more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"); WHEREAS, in accordance with the terms and conditions contained herein, Buyer desires to purchase, and Seller desires to sell, the Property together with all improvements located thereon and all easements, hereditaments, and appurtenances belonging to or inuring to the benefit of Seller and pertaining to the Property (all of the foregoing collectively hereinafter, the "Property"); WHEREAS, Buyer is a redevelopment agency existing pursuant to the Community Redevelopment Law, California Health and Safety Code Section 33000, et seq., and pursuant to the authority granted thereunder, Buyer has the responsibility to carry out the Redevelopment Plan for the Downtown Central Redevelopment Project Area ("Redevelopment Plan"); and WHEREAS, the Property is located in an area govemed by the Redevelopment Plan, and the purchase of the Property as provided for in this Agreement is consistent with and furthers the goals and objectives of the Redevelopment Plan. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows. 1. Agreement to Sell and Purchase. Seller agrees to sell and Buyer agrees to purchase the Property subject to the terms and conditions of this Agreement. 2. Purchase Price. The purchase price for the Property shall be Five Hundred Eighty- Nine Thousand Dollars ($589,000) ("Purchase Price"). 3. Conveyance of Title. At the close of escrow, Seller shall convey by grant deed to Buyer marketable fee simple title to the Property, free and clear of all recorded and unrecorded liens, encumbrances, assessments, leases and taxes except: (a) the provisions and effect of the Redevelopment Plan; 6O28884 1 000002 (b) taxes for the fiscal year in which the escrow for this transaction closes, which shall be prorated as of the close of escrow and handled in accordance with Section 4986 of the California Revenue and Taxation Code; and (c) such other conditions, liens, encumbrances, restrictions and exceptions as may be approved in writing by Buyer ("Permitted Exceptions"). 4. Escrow; Escrow Instructions. Within five (5) business days following the Effective Date, the Parties shall open an escrow to consummate the purchase and sale of the Property pursuant to this Agreement at the office of Chicago Title Company located at 1200 Bayhill Drive, Suite 101, San Bruno, California ("Title Company" or "Escrow Agent") or such other title company as may be mutually agreed upon by the Parties. Upon the opening of escrow, the Parties shall deposit with the Escrow Agent an executed copy of this Agreement, which shall serve as the joint escrow instructions of Buyer and Seller for this transaction, together with such additional instructions as may be executed by the Parties and delivered to the Escrow Agent. 5. Earnest Money Deposit. Upon the opening of escrow and in no event later than seven (7) business days after the Effective Date, Buyer shall deposit the sum of Five Thousand Dollars ($5,000) "Earnest Money Deposit") into escrow in an interest bearing account for the benefit of Buyer. The Eamest Money Deposit, and all interest earned thereon, shall be applied to the Purchase Price at the close of escrow. All amounts deposited by the Parties with the Escrow Agent, including the Earnest Money Deposit, shall be held in escrow in an interest-bearing account. 6. Title Documents. Within seven (7) days following the opening of escrow, Seller shall deliver or cause to be delivered to Buyer a preliminary title report ("Preliminary Report") on the Property issued by the Title Company, setting forth all liens, encumbrances, easements, restrictions, conditions, pending litigation, judgments, administrative proceedings, and other matters of record affecting Seller's title to the Property, together with copies of all documents relating to exceptions listed in the Preliminary Report ("Title Exceptions") and complete and legible copies of all instruments referred to therein, as requested by Buyer. Buyer shall approve or disapprove each Title Exception within fourteen (14 days following Buyer's receipt of the Preliminary Report. Buyer's failure to object within such period shall be deemed to be a disapproval of the Title Exceptions. If Buyer objects or is deemed to have disapproved any Title Exception, Seller shall use its best efforts at Seller's sole expense to remove from title or otherwise satisfy each such exception no later than fourteen (14) days prior to the close of escrow and in a form that is reasonably satisfactory to Buyer. If Seller fails to remove or satisfy any Title Exception to the satisfaction of Buyer, Buyer shall have the option, in its sole discretion, to terminate this Agreement or to accept title subject to such exception. In the event Buyer elects to terminate this Agreement, the Earnest Money Deposit, including interest thereon, and all other funds and documents deposited into escrow by or on behalf of Buyer shall be returned to Buyer, and all rights and obligations hereunder shall terminate. 602888-4 2 O00003 It shall be a condition to the close of escrow that Title Company shall deliver to Buyer, within five (5) days after Buyer has approved the Preliminary Report pursuant to this Section, and in no event later than seven (7) days prior to the close of escrow, a title commitment for an ALTA Owner's Title Insurance Policy ("Title Policy") to be issued by Title Company in the amount of the Purchase Price for the benefit and protection of Buyer, showing title to the Property vested in Buyer, subject only to the Permitted Exceptions, including such endorsements as may reasonably be requested by Buyer, and committing Title Company to issue the Title Policy to Buyer upon the close of escrow. 7. Closin~ Documents and Funds. (a) Seller. (A) Within twenty-five (25) days following the opening of escrow, Seller shall deposit into escrow all of the following: (i) a Grant Deed, substantially in the form attached hereto as Exhibit B ("Grant Deed"), duly executed and acknowledged, conveying to Buyer good and marketable fee simple title to the Property, subject only to exceptions approved pursuant to this Agreement, (ii) Seller's affidavit of non-foreign status and Seller's certification that Seller is a resident of California, each executed by Seller under penalty of perjury as required by state and federal law; and (iii) Such additional duly executed instruments and documents as the Escrow Agent may reasonably require to consummate the transaction contemplated hereby. (B) Unless Seller elects to have the following charges deducted from the funds to be distributed to Seller at close of escrow, no later than one (1) business day pr/or to close of escrow, Seller shall deposit into escrow immediately available funds in the amount necessary to pay: (i) all governmental conveyance fees and transfer taxes; (ii) one-half (1/2) of all title insurance and title report costs; and (iii) one-half of all escrow fees and recording :fees. (b) Buyer. (A) Within twenty-five (25) days following the opening of escrow, Buyer shall deposit into escrow all of the following: 602888.-4 000004 (i) a duly executed Certificate of Acceptance in the form shown in Exhibit C_, as required by California Government Code Section 27281; and (ii) such additional duly executed instruments and documents as the Escrow Agent may reasonably require to consummate the transaction contemplated hereby. (B) No less than one (1) business day prior to the close of escrow, Buyer shall deposit into escrow immediately available funds in the amount, which together with the Earnest Money Deposit plus interest thereon, if any, is equal to: (i) the Purchase Price as adjusted by any prorations between the Parties; and (ii) one-half (1/2) of all title insurance and title report costs, escrow fees, and recording fees. 8. Close of Escrow. The Parties intend to close escrow within thirty-five (35) days following the date upon which escrow is opened, unless this Agreement is terminated pursuant to the terms hereof. The Escrow Agent shall close escrow by: (i) causing the Grant Deed to be recorded in the official records of San Mateo County, California; (ii) issuing the Title Policy and delivering same to Buyer; (iii) delivering to Seller the monies constituting the Purchase Price less prorated amounts and charges to be paid by or on behalf of Seller; and (iv) delivering to Buyer the original Grant Deed, together with a conformed copy thereof indicating recording information thereon. Possession of the Property shall be delivered to Buyer at the close of escrow. 9. Closin~ Costs. Each Party shall pay one-half (1/2) of all title insurance and title report costs, escrow fees (including the costs of preparing documents and instruments), and recording fees. Seller shall pay all governmental conveyance fees and all transfer taxes. 10. Prorations. At the close of escrow, the Escrow Agent shall make the following prorations: (i) property taxes shall be prorated as of the close of escrow based upon the most recent tax bill available, including any property taxes which may be assessed after the close of escrow but which pertain to the period prior to the transfer of title to the Property to Buyer, regardless of when or to whom notice thereof is delivered; and (ii) any bond or assessment that constitutes a lien on the Property at the close of escrow shall be assumed by Buyer. 11. Buyer's Conditions to Closing. The close of escrow and Buyer's obligation to purchase the Property are conditioned upon: (i) the performance by Seller of each obligation to be performed by Seller under this Agreement within the applicable time period, or the waiver by Buyer of such obligation; (ii) Seller's representations and warranties contained in this Agreement being true and correct as of the Effective Date and the close of escrow; (iii) the commitment by Title Company to issue and deliver the Title Policy, subject only to the Permitted Exceptions; and (iv) Buyer's approval of the condition of the Property pursuant to Section 12. 6028884 4 000005 Should any condition to closing fail to occur, excepting any such conditions that have been waived by Buyer, Buyer shall have the fight, exercisable by giving written notice to Seller, to cancel the escrow, terminate this Agreement, and recover any and all amounts paid by Buyer to Seller or deposited with the Escrow Agent by or on behalf of Buyer, including the Earnest Money Deposit and interest thereon. The exercise of this right by Buyer shall not constitute a waiver by Buyer of any other fights Buyer may have at law or in equity. 12. Buyer's Additional Conditions to Closing. Buyer's obligation to purchase the Property is also conditioned upon Buyer's review and approval of the condition of the Property pursuant to this Section. (a) Feasibility Studies. During the period commencing on the Effective Date and ending on the twentieth (20th) day after the opening of escrow ("Due Diligence Period") Buyer may, at Buyer's expense, undertake an inspection and review of the Property, including without limitation (i) a review of the physical condition of the Property, including but not limited to, inspection and examination of soils, environmental factors, Hazardous Materials (as defined in Exhibit D attached hereto), and archeological information relating to the Property; (ii) a review and investigation of the effect of any zoning, maps, permits, reports, engineering data, regulations, ordinances, and laws affecting the Property, and (iii) an evaluation of the Property to determine its feasibility for Buyer's intended use. Buyer may consult with or retain civil engineers, contractors, soils and geologic engineers, architects and other specialists in its investigation, and may consult with or retain other consultants to determine if the Property is suitable for Buyer's intended use. If Buyer's environmental consultants require additional time to determine the existence and extent of any Hazardous Materials on the Property, Buyer shall have the right, exercisable by delivering written notice to Seller prior to the expiration of the Due Diligence Period, to extend the Due Diligence Period for up to fifteen (15) additional days to complete the testing. (b) Other matters. During the Due Diligence Period, Buyer may inspect, examine, survey and review any other matters concerning the Property, including without limitation, any and all studies or reports provided by Seller, all contracts, leases, rental agreements and other obligations relating to the Property, and the Property's conformity with all applicable laws and regulations. During the Due Diligence Period, Buyer shall have the right to perform due diligence regarding the investigation, assessment, and monitoring of the environmental condition of the Property, and upon completion of the Due Diligence Period, unless Buyer elects to terminate this Agreement pursuant to the terms hereof, Buyer will purchase the Property in its "AS IS" condition as such condition exists at the end of the Due Diligence Period. 602888-4 5 000008 (c) Disal)~rovai of Property Condition. Should Buyer fail to approve the condition of the Property or its feasibility for Buyer's intended use in writing within five (5) days following the end of the Due Diligence Period, Buyer shall have the right, exercisable by giving written notice to Seller, to cancel the escrow, terminate this Agreement, and recover any and all amounts paid by Buyer to Seller or deposited with the Escrow Agent by or on behalf of Buyer, including the Earnest Money Deposit and interest thereon. The exercise of this right by Buyer shall not constitute a waiver by Buyer of any other rights Buyer may have at law or in equity. 13. Studies, Rel)orts and Investieations. Seller agrees to make available to Buyer within five (5) business days following the Effective Date, any and all information, studies, reports, investigations, contracts, leases, rental agreements and other obligations concerning or relating to the Property which are in Seller's possession or which are reasonably available to Seller, including without limitation surveys, studies, reports and investigations concerning the Property's physical, environmental or geological condition, habitability, or the presence or absence of Hazardous Materials in, on or under the Property and the compliance by the Property with Environmental Laws (as defined in Exhibit D). 14. Right of Entry. Prior to close of escrow, Buyer and Buyer's agents shall have the right, upon reasonable notice to Seller, to enter upon the Property for the purpose of inspecting, examining, surveying and reviewing the Property in accordance with Section 12. Buyer's inspection, examination, survey and review of the Property shall be at Buyer's sole expense. Buyer shall obtain Seller's advance consent in writing to any proposed physical testing of the Property by Buyer or Buyer's agents, which consent shall not be unreasonably conditioned, withheld or delayed. Buyer shall repair, restore and return the Property to its original condition after such physical testing, at Buyer's sole expense. Buyer shall schedule any such physical tests during normal business hours unless otherwise approved by Seller. Buyer agrees to indemnify Seller and hold Seller harmless from and against all liability, loss, cost, damage and expense (including, without limitation, reasonable attorney's fees and costs of litigation) resulting from Buyer's or Buyer's agents entry upon the Property, except to the extent that such liability, loss, cost, damage and expense arises as a result of the negligence or other wrongful conduct of Seller or its agents. 15. Seller's Conditions to Closing. The close of escrow and Seller's obligation to sell the Property pursuant to this Agreement are conditioned upon: (i) the performance by Buyer of each obligation to be performed by Buyer under this Agreement within the applicable time period, or waiver by Seller of such obligation; (ii) Buyer's representations and warranties contained in this Agreement being tree and correct as of the Effective Date and the close of escrow; and (iii) close of escrow to occur and consummation of the transfer of the Property from Seller to Buyer no later than April 30, 2004. 16. Seller's Re~}resentations and Warranties. Seller hereby represents and warrants that except as disclosed in writing to Buyer, as of the Effective Date and as of the close of escrow, to the best knowledge of Seller: (i) the Property is free and has always been free of Hazardous Materials and is not and has never been in violation of any Environmental Law; (ii) there are no 602888-.4 6 000007 buried or partially buried storage tanks located on the Property; (iii) Seller has received no notice, warning, notice of violation, administrative complaint, judicial complaint, or other formal or informal notice alleging that conditions on the Property are or have ever been in violation of any Environmental Law or informing Seller that the Property is subject to investigation or inquiry regarding Hazardous Materials on the Property or the potential violation of any Environmental Law; (iv) there is no monitoring program required by the Environmental Protection Agency or any other governmental agency concerning the Property; (v) no toxic or hazardous chemicals, waste, or substances of any kind have ever been spilled, disposed of, or stored on, under or at the Property, whether by accident, burying, drainage, or storage in containers, tanks, holding areas, or any other means; (vi) the Property has never been used as a dump or landfill; (vii) Seller has disclosed to Buyer all information, records, and studies in Seller's possession or reasonably available to Seller relating to the Property concerning Hazardous Materials; (viii) Seller has not received any notice from any governmental authority of any threatened or pending zoning, building, fire, or health code violation or violation of other governmental regulations concerning the Property that have not previously been corrected, and no condition on the Property violates any health, safety, fire, enviromnental, sewage, building, or other federal, state or local law, ordinance or regulation; (ix) no contracts, licenses, leases or commitments regarding the maintenance or use of the Property or allowing any third party rights to use the Property are in force; (x) there are no threatened or pending actions, suits, or administrative proceedings against or affecting the Property or any portion thereof or the interest of Seller in the Property; (xi) there are no threatened or pending condemnation, eminent domain, or similar proceedings affecting the Property or any portion thereof; (xii) Seller has not received any notice from any insurer of defects of the Property which have not been corrected; (xiii) there are no natural or artificial conditions upon the Property or any part thereof that could result in a material and adverse change in the condition of the Property; (xiv) all information that Seller has delivered to Buyer, either directly or through Seller's agents, is accurate and complete; and (xv) Seller has disclosed all material facts concerning the Property. Seller further represents and warrants that this Agreement and all other documents delivered or to be delivered in connection herewith prior to or at the close of escrow: (a) have been duly authorized, executed, and delivered by Seller; (b) are binding obligations of Seller; (c) are collectively sufficient to transfer all of Seller's right, title and interest in and to the Property; and (d) do not violate the provisions of any agreement to which Seller is a party or which affects the Property. Seller further represents and warrants that the persons who have executed this Agreement on behalf of Seller are authorized to do, that Seller has the legal right to enter into this Agreement and to perform all of its terms and conditions, and that this Agreement is enforceable against Seller in accordance with its terms. Seller shall notify Buyer of any facts that would cause any of the representations contained in this Agreement to be untrue as of the close of escrow. If Buyer reasonably believes that a fact materially and adversely affects the Property, Buyer shall have the option to terminate this Agreement by delivering written notice thereof to Seller. In the event Buyer elects to terminate this Agreement, the Earnest Money Deposit, including interest thereon, and all other funds and documents deposited into escrow by or on behalf of Buyer shall be returned to Buyer, and all rights and obligations hereunder shall terminate. 6028884 7 000008 Seller shall indemnify, defend and hold harmless Buyer from all loss, cost, liability, expense, damage or other injury, including without limitation, attorneys' fees and all other costs and expenses incurred by reason of, or in any manner resulting from the breach of any representation or warranty contained in this Section. 17. Seller's Covenants. Seller covenants that from the Effective Date and through the close of escrow, Seller: (i) shall not permit any liens, encumbrances, or easements to be placed on the Property, other than Permitted Exceptions; (ii) shall not enter into any agreement regarding the use, sale, rental, management, repair, improvement, or any other matter affecting the Property that would be binding on Buyer or the Property after the close of escrow without the prior written consent of Buyer; (iii) shall not permit any act of waste or act that would tend to diminish the value of the Property for any reason, except that caused by ordinary wear and tear; and (iv) shall maintain the Property in its condition as of the Effective Date, ordinary wear and tear excepted, and shall manage the Property substantially in accordance with Seller's established practices. 18. Buyer's Rel~resentations, Warranties and Covenants. Buyer represents, warrants and covenants that this Agreement and all other documents delivered in connection herewith, prior to or at the close of escrow: (i) have been duly authorized, executed, and delivered by Buyer; (ii) are binding obligations of Buyer; and (iii) do not violate the provisions of any agreement to which Buyer is a party. Buyer further represents and warrants that the persons who have executed this Agreement on behalf of Buyer have are duly authorized to do, that Buyer has the legal right to enter into this Agreement and to perform all of its terms and conditions, and that Agreement is enforceable against Buyer in accordance with its terms. 19. Reserved. 20. Damage and Destruction. In the event of any damage or other loss to the Property, or any portion thereof, caused by fire or other casualty prior to the close of escrow in an amount not exceeding $50,000, Buyer shall not be entitled to terminate this Agreement, but shall be obligated to close the escrow and purchase the Property as provided in this Agreement, without abatement in the Purchase Price, provided that Seller shall: (i) assign and transfer to Buyer all of Seller's rights under any insurance policy coveting the damage or loss, and all claims for monies payable from Seller's insurer(s) in connection with the damage or loss, and (ii) pay to Buyer at the close of escrow the amount of Seller's deductible under the insurance policy or policies covering the damage or loss. In the event of damage or destruction of the Property or any portion thereof prior to the close of escrow in an amount in excess of $50,000, Buyer may elect either to terminate this Agreement upon written notice to Seller, or to consummate the purchase of the Property, in which case Seller shall (i) assign and transfer to Buyer all of Seller's rights under any insurance policy covering the damage or loss, and all claims for monies payable from Seller's insurer(s) in connection with the damage or loss, and (ii) pay to Buyer at the close of escrow the amount of Seller's deductible under the insurance policy or policies covering the damage or loss. In the event Buyer elects to terminate this Agreement, the Earnest Money 602888-4 8 00000 Deposit, including interest thereon, and all other funds and documents deposited into escrow by or on behalf of Buyer shall be returned to Buyer, and all rights and obligations hereunder shall terminate. 21. 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, fmder's fee, or other compensation with respect to the transaction 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 expiration or earlier termination of this Agreement. 22. Assienment. Buyer shall have the right to assign all rights and obligations under this Agreement to any party, provided Seller consents to such assignment which consent shall not be um'easonably withheld, conditioned, or delayed. 23. 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 delivered on receipt if delivery is confirmed by a return receipt; (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; (iv) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first- class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on a nonbusiness day. Buyer: South San Francisco Redevelopment Agency City Hall, 400 Grand Avenue South San Francisco, CA 94083 Attention: Executive Director Telephone: (650) 829-6620 Facsimile: (650) 829-6623 602888-4 0000i0- with a copy to: Seller: Meyers, Nave, Riback, Silver & Wilson 555 12th Street, Suite 1500 Oakland, CA 94607 Attention: Steven T. Mattas, Agency Counsel William R. Comejo 1516 Alturas Drive Burlingame, CA 94010 Telephone: (650) 347-8423 24. Litiflation Costs. If any legal action or any other proceeding, including arbitration or action for declaratory relief, is brought for the enforcement of this Agreement or because of an alleged breach or default in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees and other costs, in addition to any other relief to which such Party may be entitled. 25. 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 waiving party. This Agreement may be amended or modified only by a written instrument executed by the Parties. 26. Successors. The obligation of Seller to sell the Property and the obligation of Buyer to purchase the Property pursuant to this Agreement shall bind and inure to the benefit of the respective heirs, personal representatives, successors and assignees of the Parties. 27. Provisions Not Mereed With Deeds. None of the provisions, terms, representations, warranties and covenants of this Agreement are intended to or shall be merged by the Grant Deed, and neither the Grant Deed nor any other document shall affect or impair the provisions, terms, representations, warranties and covenants contained herein. Without limiting the generality of the foregoing, Seller's representations, warranties and covenants contained herein shall survive the close of escrow. 28. Construction. The section headings used herein are solely for convenience and shall not be used to interpret this Agreement. 29. Action or Ai~l~roval. Where action and/or approval by Buyer is required under this Agreement, Buyer's Executive Director may act on and/or approve such matter unless the Executive Director determines in his or her discretion that such action or approval requires referral to Buyer's Board for consideration. The time periods afforded Buyer for any event, 602888-4 10 000011. inspection, feasibility, due diligence, escrow closing or otherwise shall not be extended by any such referral to Buyer's Board. 30. Entire Aereement. This Agreement, including Exhibits A to D attached hereto and incorporated herein by this 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 thereto. 31. Counterl~arts. 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 and the same instrument. 32. Severabilitv. 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 the rights and obligations of the Parties have been materially altered or abridged thereby. 33. No Third Party Beneficiaries. Nothing in this Agreement is intended to or shall confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies hereunder. 34. Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall establish the Parties as parmers, co-venturers, or principal and agent with one another. 35. Non-Liability of Officials, Emolovees and Apents. No member, official, employee or agent of Buyer shall be personally liable to Seller or its successors in interest in the event of any default or breach by Buyer or for any amount which may become due to Seller or its successors in interest pursuant to this Agreement. 36. Time of the Essence. Time is of the essence for each condition, term, obligation and provision of this Agreement. 37. 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. 38. Time for Performance. When the time for performance of any obligation under this Agreement is to be measured from another event, such time period shall include the day of the other event. If the day of the time for performance is not a regular business day, then the time for such performance shall be by the regular business day following such day. 602888-4 1 1 0000.12 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. BUYER: SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY By: Executive Director ATTEST: By: Agency Secretary APPROVED AS TO FORM: By: Agency Counsel SELLER: By: William R. Comejo 602888.-4 12 000013 Exhibit A LEGAL DESCRIPTION (Attach legal description.) 602888-.4 13 000014 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY P.O. Box 711 South San Francisco, CA 94083 Atto: Executive Director MAIL TAX STATEMENTS TO: Same as Above Exhibit B GRANT DEED (Space Above This Line Reserved For Recorder's Use) GRANT DEED For valuable consideration, receipt of which is hereby acknowledged, Wiliam R. Comejo (individually "Grantor") hereby grants to the City of South San Francisco Redevelopment Agency, a public body, corporate and politic ("Grantee") all that real property located in the City of South San Francisco, County of San Mateo, State of Califomia described in Exhibit A attached hereto and incorporated herein. IN WITNESS WHEREOF, Grantors each have executed this Grant Deed as of ,2004. GRANTOR William R. Cornejo 602888..4 14 000015 EXHIBIT "C" CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the Grant Deed dated ,2004, William R. Comejo, to the City of South San Francisco Redevelopment Agency, a public body, corporate and politic ("Agency"), is hereby accepted on behalf of the Agency by its Executive Director pursuant to authority conferred by Resolution No. __, adopted by the Agency on February 25, 2004, and that the Grantee consents to recordation of the Grant Deed by its duly authorized officer. Dated ,2004 By: , Executive Director Print Name: ATTEST: By: Agency Secretary APPROVED AS TO FORM: By: Agency Counsel 602888-4 15 000016 ACKNOWLEDGMENT State of Califomia ) ) SS. County of San Mateo ) On before me, a Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. NOTARY PUBLIC 602888-3 16 000017 ACKNOWLEDGMENT State of California ) ) SS. County of Sonoma ) On before me, a Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. NOTARY PUBLIC 602888-3 17 000018 Exhibit D HAZARDOUS MATERIALS; ENVIRONMENTAL LAW "Hazardous Materials" means any substance, material or waste which is or becomes regulated by any federal, state or local governmental authority, and includes without limitation (i) petroleum or oil or gas or any direct or indirect product or by-product thereof; (ii) asbestos and any material containing asbestos; (iii) any substance, material or waste regulated by or listed (directly or by reference) as a "hazardous substance", "hazardous material", "hazardous waste", "toxic waste", "toxic pollutant", "toxic substance", "solid waste" or "pollutant or contaminant" in or pursuant to, or similarly identified as hazardous to human health or the environment in or pursuant to, the Toxic Substances Control Act [15 U.S.C. 2601, et seq.]; the Comprehensive Environmental Response, Compensation and Liability Act [42 U.S.C. Section 9601, et seq.], the Hazardous Materials Transportation Authorization Act [49 U.S.C. Section 5101, 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. Section 1251], the Clean Air Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of Hazardous Substances Act [California Health and Safety Code Section 25280, et seq.], the Califomia Hazardous Substances Account Act [California Health and Safety Code Section 25300, et seq.], the California Hazardous Waste Act [California Health and Safety Code Section 25100, et seq.], the California Safe Drinking Water and Toxic Enforcement Act [California Health and Safety Code Section 25249.5, et seq.], and the Porter-Cologne Water Quality Control Act [California Water Code Section 13000, et seq.], as they now exist or are hereafter amended, together with any regulations promulgated thereunder; (iv) any substance, material or waste which is defined as such or regulated by any "Superfund" or "Superlien" law, or any Environmental Law; or (v) any other substance, material, chemical, waste or pollutant identified as hazardous or toxic and regulated under any other federal, state or local environmental law, including without limitation, asbestos, polychlorinated biphenyls, petroleum, natural gas and synthetic fuel products and by-products. "Environmental Law" means all federal, state or local statutes, ordinances, rules, regulations, orders, decrees, judgments or common law doctrines, and provisions and conditions of permits, licenses and other operating authorizations regulating, or relating to, or imposing liability or standards of conduct concerning (i) pollution or protection of the environment, including natural resources; (ii) exposure of persons, including employees and agents, to Hazardous Materials (as defined above) or other products, raw materials, chemicals or other substances; (iii) protection of the public health or welfare from the effects of by-products, wastes, emissions, discharges or releases of chemical substances from industrial or commercial activities; (iv) the manufacture, use or introduction into commerce of chemical substances, including without limitation, their manufacture, formulation, labeling, distribution, transportation, handling, storage and disposal; or (iv) the use, release or disposal of toxic or hazardous substances or Hazardous Materials or the remediation of air, surface waters, groundwaters or soil, as now or may at any later time be in effect, including but not limited to the Toxic Substances Control Act [ 15 U.S.C. 2601, et seq.]; the Comprehensive Environmental Response, Compensation and Liability Act [42 U.S.C. Section 9601, et seq.], the Hazardous Materials Transportation Authorization Act [49 U.S.C. Section 5101, 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. Section 1251 ], the Clean Air Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of Hazardous Substances Act [California Health and Safety Code Section 25280, et seq.], the California Hazardous Substances Account Act [California Health and Safety Code Section 25300, et seq.], the California Hazardous Waste Act [California Health and Safety Code Section 25100, et seq.], the California Safe Drinking Water and Toxic Enforcement Act 602888-3 18 [California Health and Safety Code Section 25249.5, et seq.], and the Porter-Cologne Water Quality Control Act [California Water Code Section 13000, et seq.], as they now exist or are hereafter amended, together with any regulations promulgated thereunder. 602868-3 19 OOOO2O 000021 LOCATED AT: 310 MILLER AVENUE SOUTH SAN FRANCISCO, CA 94080-3723 FOR: CITY OF SOUTH SAN FRANCISCO 400 GRAND AVENUE SOUTH SAN FRANCISCO, CA 94083 BORROWER: N/A AS OF: December 19, 2003 000J22 AGENDA CITY COUNCIL CITY OF SOUTH SAN FRANCISCO REGULAR MEETING MUNICIPAL SERVICE BUILDING COMMUNITY ROOM FEBRUARY 25, 2004 7:30 P.M. PEOPLE OF SOUTH SAN FRANCISCO You are invited to offer your suggestions. In order that you may know our method of conducting Council business, we proceed as follows: The regular meetings of the City Council are held on the second and fourth Wednesday of each month at 7:30 p.m. in the Municipal Services Building, Community Room, 33 Arroyo Drive, South San Francisco, California. Public Comment: For those wishing to address the City Council on any Agenda or non-Agendized item, please complete a Speaker Card located at the entrance to the Council Chamber's and submit it to the City Clerk. Please be sure to indicate the Agenda Item # you wish to address or the topic of your public comment. California law prevents the City Council from taking action on any item no~t on the Agenda (except in emergency circumstances). Your question or problem may be referred to staff for investigation and/or action where appropriate or the matter may be placed on a future Agenda for more comprehensive action or a report. When your name is called, please come to the podium, state your name and address (optional) for the Minutes. COMMENTS ARE GENERALLY LIMITED TO THREE (3) MINUTES PER SPEAKER. Thank you for your cooperation. The City Clerk will read successively the items of business appearing on the Agenda. As she completes reading an item, it will be ready for Council action. RAYMOND L. GREEN Vice Mayor RICHARD A GARBARINO, SR. Councilman RICHARD BATTAGLIA City Treasurer MICHAEL A. WILSON City Manager KARYL MATSUMOTO Mayor JOSEPH A. FERNEKES Councilman PEDRO GONZALEZ Councilman SYLVIA M. PAYNE City Clerk STEVEN T. MATTAS City Attorney PLEASE TURN OFF CELL PHONES AND PAGERS HEARING ASSISTANCE EQUIPMENT AVAILABLE FOR USE BY THE HEARING IMPAIRED AT CITY COUNCIL MEETINGS CALL TO ORDER ROLL CALL PLEDGE OF ALLEGIANCE INVOCATION PRESENTATIONS Peninsula Baby Bullet Service - SamTrans Senior Planner Michelle Bouchard Measure A Expenditure Plan Policies and Programs - Mr. Howard Goode, San Mateo County Transportation Authority AGENDA REVIEW PUBLIC COMMENTS ITEMS FROM COUNCIL · Announcements · Committee Reports CONSENT CALENDAR 1. Motion to approve the minutes of February 11, 2004 2. Motion to confirm expense claims of February 25, 2004 o Motion to adopt ordinances repealing SSFMC Chapter 15.08 and adding Chapter 15.08, adopting and amending the California Building Code, 2001 edition; repealing SSFMC Chapter 15.12 and adding Chapter 15.12, adopting and amending the California Plumbing Code, 2001 edition; repealing S SFMC Chapter 15.16 and adding Chapter 15.16, adopting and amending the California Mechanical Code, 2001 edition; repealing SSFMC Chapter 15.20 and adding Chapter 15.20, adopting and amending the California Electrical Code, 2001 edition; amending SSFMC Chapter 15.10, "Uniform Housing Code"; amending SSFMC Chapter 15.06, "Uniform Administrative Code"; and repealing SSFMC Chapters 15.24, 15.32 and 15.44 and adopting Chapter 15.24, adopting and amending the California Fire Code, 2001 Edition 4. Resolution approving the Disadvantaged Business Enterprise Program for FY 2004 o Motion to accept the Colma Creek Bank Protection project as complete in accordance with plans and specifications o Motion to accept the FY 2002-03 Street Slurry Seal Project as complete in accordance with plans and specifications o Motion to accept the Westborough Boulevard Resurfacing Project as complete in accordance with plans and specifications REGULAR CITY COUNCIL MEETING AGENDA FEBRUARY 25, 2004 PAGE 2 o Resolution approving a service agreement to provide part-time dispatch service to the Town of Colma, and an agreement with Hitech Systems, Inc. for the installation of communication center workstations in the amount of $14,193 9. A resolution in support of the Regional Measure 2, traffic congestion relief plan ADMINISTRATIVE BUSINESS 10. Resolution supporting a statewide ballot initiative to require voter approval before State government may take local tax funds. 11. Resolution amending the FY 2003-04 operating budget to include the various changes to revenues and expenditures contained in the Mid-Year Financial Report 12. Resolution of necessity and authorizing the filing of eminent domain proceedings for the acquisition of certain land for the Wet Weather Program Phase I (Assessor Parcel Numbers: 015-113-180, 015-113-290, 015-113-330, 015-113-410, 015-113-450 and 015-115-540) COUNCIL COMMUNITY FORUM ADJOURNMENT REGULAR CITY COUNCIL MEETING AGENDA FEBRUARY 25, 2004 PAGE 3 StaffReport AGENDA ITEM #3 DATE: February 25, 2004 TO: The Honorable Mayor and City Council FROM: Steven T. Mattas, City Attorney SUBJECT: Adoption of an Ordinances Repealing Chapters 15.08, 15.12, 15.16 and 15.20 of the South San Francisco Municipal Code, adopting Chapters 15.08, 15.12, 15.16 and 15.20, adopting and amending the 2001 Editions of the California Building, Plumbing, Mechanical and Electrical Codes; Adopting Ordinances amending Chapters 15.10 and 15.06 of the South San Francisco Municipal Code. RECOMMENDATION: Adopt an Ordinance Repealing Chapters 15.08, 15.12, 15.16 and 15.20 of the South San Francisco Municipal Code, adopting Chapters 15.08, 15.12, 15.16 and 15.20, adopting and amending the 2001 Editions of the California Building, Plumbing, Mechanical and Electrical Codes; Adopting Ordinances amending Chapters 15.10 and 15.06 of the South San Francisco Code. BACKGROUND/DISCUSSION: Council has previously waived reading and introduced the following ordinance. The Ordinance is now ready for adoption. ADOPTION OF AN ORDINANCE REPEALING CHAPTERS 15.08, 15.12, 15.16 and 15.20 OF THE SOUTH SAN FRANCISCO MUNICI:PAL CODE, ADOPTING CHAPTERS 15.08, 15.12, 15.16 AND 15.20, ADOPTING AND AMENDING THE 2001 EDITIONS OF THE CALIFORNIA BUILDING, PLUMBING, MECHANICAL AND ELECTRICAL CODES; ADOPTING ORDINANCES AMENDING CHAPTERS 15.10 AND 15.06 OF THE SOUTH SAN FRANCISCO CODE. (Introduced 02-11-04 - Vote 5-0) By: Steven T. Mattas, City Attorney Michael A. Wilson, CitYManager ORDINANCE NO. AN ORDINANCE REPEALING CHAPTER 15.08 AND ADDING CHAPTER 15.08 OF THE SOUTH SAN FRANCISCO MUNICIPAL CODE, ADOPTING AND AMENDING THE CALIFORNIA BUll.DING CODE, 2001 EDITION THE CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO DOES ORDAIN AS FOLLOW S: SECTION 1. Chapter 15.08 "Uniform Building Code," Repealed. Chapter 15.08 of the South San Francisco Municipal Code is hereby repealed. This repeal shall not affect or prevent the prosecution or punishment of any person for any act done or omitted in violation of this chapter prior to the effective date of this ordinance. SECTION 2. Chapter 15.08 "California Building Code," Adopted. Chapter 15.08 of the South San Francisco Municipal Code is hereby added to the South San Francisco Municipal Code to read as follows: "California Building Code Sections: Section 15.08.010 California Building Code vol. 1 and 2 and California Building Standards, 2001 Edition, adopted by reference. Section 15.08.020 Section 15.08.030 Section 15.08.040 Section 15.08.050 Section 15.08.060 Section 15.08.070 Section 15.08.080 Section 15.08.090 Section 15.08.100 Section 15.08.110 Section 15.08.120 Section 15.08.130 Section 15.08.140 Section 15.08.150 Section 15.08.160 Amendments, General. Violations. Penalties. Smoke Detectors and Fire-Extinguishing Systems. Weather Protection. Foundations. Concrete Slab Design. Moved Buildings. Spark Arresters. Excavation and Grading. Permits Required. Hazards. Grading Permit Requirements. Grading Fees. Performance Bonds, Nuisance and Hazardous Conditions. Section 15.08.170 Section 15.08.180 Section 15.08.190 Section 15.08.010 Restriction of Work During Rainy Season. Liability. California Building Code Appendices Adopted. California Building Code vol. 1 and 2 and California Building Standards, 2001 Edition, adopted by reference. The California Building Code vol. 1 and 2 2001 Edition, including the California Building Standards, 2001 Edition, published by the International Conference of Building Officials, and as modified by the amendments, additions and deletions set forth hereinafter, is hereby adopted by reference as the Building Code of the City of South San Francisco, and may be cited as such. Section 15.08.020 Amendments, General. Set forth below are the amendments, additions and deletions to the 2001 California Building Code, volume 1 & 2, 2001 Edition. Chapter, section and table numbers used herein are those of the California Building Code and Uniform Building Code Standards. Section 15.08.030 Violations. Section 103 Violations. It shall be unlawful for any person, firm or corporation to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use, occupy or maintain any building or structure or cause or permit the same to be done in violation of this code. Each day during any portion of which any violation is committed or continued by any person, firm or corporation shall constitute a separate offense and shall be punishable as herein provided. Section 15.08.040 Penalties. Section 103.3 Penalties. Any person, firm or corporation violating any of the provisions of this code shall be punished as provided for in Section 15.06.040 of this code. Section 15.08.050 Smoke Detectors and Fire-Extinguishing Systems. Section 310.16.3 (a) On or after January 1, 1986, every single-family dwelling and factory-built housing, as defined in section 19971 of the Health and Safety Code, which is sold shall have an operable smoke detector. The detector shall be approved and listed by the state fire marshal and installed in accordance with section 310.9.1.4. A battery-operated smoke detector shall be deemed to satisfy the requirements of this section. Section 904.2.1 Where Required. Except for the occupancies listed in subsections 904.2.2 through 904.2.10.1, an automatic fire-extinguishing system shall be installed in the occupancies and locations as set forth in this section. For those occupancies set forth in subsections 904.2.2 through 904.2.10.1, see Section 1003.2 of the Fire Code for the applicable installation standards. For special provisions on hazardous chemicals and magnesium, and calcium carbide, see the Fire Code. For provisions on special hazards and hazardous materials, see the Fire Code. Section 15.08.060 Weather Protection. Section 1402.6 Exterior Metal Hardware, Galvanizing Required. Metal railings, cabinets, bolts, nails, hinges, locks and any similar parts exposed to weather on residential buildings located west of Interstate Highway 280 shall be galvanized. Galvanizing of products fabricated from rolled, pressed and forged steel shapes, plates, bars and strip 1/8-inch thick or thicker, shall confo~Tn to the specifications of ASTM Designation: A123. Except for pregalvanized standard pipe, galvanizing of material 1/8-inch thick or thicker shall be performed after fabrication into the largest practical sections. Material thinner than 1/8-inch shall either be galvanized before fabrication in conformance with the requirements of ASTM Designation; A525, Coating Designation: G210 or after fabrication, in conformance with the requirements of ASTM Designation: A123, whichever results in the greatest resistance to rust, except that the weight of zinc coating shall average not less than 1.2 ounces per square foot of actual surface.area with no individual specimen having a weight of less than 1.0 ounce. Galvanized surfaces that are abraded or damaged at any time after the application of the zinc coating shall be repaired by thoroughly wire brushing the damaged areas and removing all loose and cracked coating, after which the cleaned areas shall be painted with 2 applications of Zinc-Rich Primer without thinner. Galvanizing is not required for stainless steel, non-ferrous metals and similar equally corrosion resistant metals. Section 15.08.070 Foundations. Section 1804.7 Drainage Provisions shall be made for the control and drainage of surface water around buildings. The exterior grade around every building shall be sloped away from the building by a minimum grade of one-quarter inch per foot (1/4" per 1') for a distance of at least thirty inches (30"). Grading for drainage shall be mTanged so as to drain toward the public sidewalk or street gutter, and not onto adjoining properties, except where alternate methods are approved by the Chief Building Official. Section 1804.7.1 Underfloor Drainage The underfloor grade beneath the floor system of a building shall be graded to a low point so as to provide positive drainage to the exterior in the event of water intrusion. If the exterior grade is higher than the grade beneath the floor system, a positive drainage system or sump shall be installed subject to approval of the Chief Building Official. Section 15.08.080 Concrete Slab Design. Section 1900.4.4 Minimum Slab Thickness. The minimum thickness of concrete floor slabs supported directly on the ground shall be not less than three and one-half inches (3-1/2") and shall be reinforced as stipulated in (b) 4 of this Section. Section 1900.4.4.1 Slab on Grade in Habitable Areas. Concrete slabs supported directly on the ground and used as a finished floor or as a base for other floor finishes in habitable rooms shall meet the following requirements: The minimum thickness of reinforced concrete shall be three and one-half inches (3- 1/2"). 9 A waterproof membrane of polyethylene film of 10 mil minimum thickness or alternate material, approved by the building official shall extend to the exterior walls or beyond the limits of habitable rooms and be turned up to top of slab. A granular material, such as sand, approved by the building official, a minimum of 2" in depth shall be placed between the concrete and waterproof membrane to retard capillary action. Steel reinforcement equivalent to 6" x 6" x 10 ga. welded wire mesh over granular material placed approximately mid-depth within the 3 1/2" thick concrete. Blocks or chairs shall be provided in order to maintain the reinfoi-cement in the center of the slab. Section 15.08.090 Moved Buildings. Section 3404.1 Moved Buildings and Temporary Buildings Buildings or structures moved into or within the jurisdiction shall comply with the provisions of this code for new buildings or structures. In addition to all other requirements of the building code relative to the moving of buildings and structures, no permit for the moving of a building or structure shall be granted until the applicant has filed with the Chief Building Official: A performance bond in favor of the city, of not less than one thousand dollars ($1,000.00) nor more than one hundred thousand dollars ($100,000.00), as the Chief Building Official may determine, shall be conditioned to require the applicant to strictly comply with all conditions and provisions of this chapter, and of any provision of the municipal code relating to the moving of buildings or structures, and of any order, rule or regulation which may be hereafter passed or adopted by the City Council. The applicant also shall be required to pay any and all damages to any fence, hedge, tree, pavement, sidewalk, street, curb, gas, sewer or water pipe, electric wire or pole supporting the same, or to any public or private property which may result from moving the building or structure; and An undertaking to indemnify, defend and hold hmwnless the city and its elective officers, agents and employees against all liabilities, claims, actions, judgments, cost or any expense which may for any reason arise out of the issuance of said permit or moving of such buildings or structures. All removals made under any permit granted for such moving shall be done over and along only the street 03' streets designated in such permit, and at the times therein specified, and shall be done in a careful manner to the satisfaction of the Chief Building Official, Superintendent of Public Works and the City Engineer. No person owning or having charge of the removal of any building or structure being moved over any street, shall permit such building or structure to be, or stand, on any street within the limits of any one block for a period of more than twenty-four (24) hours. No person owning or having charge of the removal of any building.or structure being moved over any street, shall allow 03' cause injury to any fence, hedge, tree, pavement, street, sidewalk, curb, gas pipe, water pipe, sewer pipe, electric wire or pole supporting same, or any other public or private property by reason of such removal. Temporary structures such as reviewing stands and other miscellaneous structures, sheds, construction trailers, canopies or fences used for the protection of the public and/or in conjunction with construction work may be erected by special permit from the Fire Marshal/Chief Building Official for a limited period of time. Such buildings or structures need not comply with the type of construction or fire- resistive time periods required by this code. Temporary buildings or structures shall be completely removed upon the expiration of the time limit stated in the permit. Section 15.08.100 Spark Arresters. Appendix Section 1521 Spark Arresters Required Chimneys attached to any appliance or fireplace that_bums solid fuel shall be equipped with an approved spark arrester. The net free area of the spark arrester shall not be less than 4 times the net free area of the outlet of the chimney. The spark arrester screen shall be heat and corrosion resistant equivalent to 19- gauge galvanized or 24-gauge stainless steel. Openings shall not permit the passage of spheres having a diameter larger than 1/2 inch and shall not block the passage of spheres having a diameter of less than 3/8 inch. Section 15.08.110 Excavation and Grading. Appendix Section 3305.1 Excavation and Grading- City Engineer. For the purposes of grading and excavation permits and related requirements, all references in the Uniform Building Code to Building Official shall be considered as references to the City Engineer. Section 15.08.120 Permits Required. Appendix Section 3306.2 Exempted Work 10. Grading for the purpose of agricultural imgation or cultivation. Section 15.08.130 Hazards. Appendix Section 3307 Hazards. The owner of any property on which an excavation or fill has been made, shall maintain in good condition and repair all retaining walls, cribbing, drainage structures, planted slopes, natural water courses and surface drainage. Whenever the city engineer determines that any existing excavation or embankment or fill on private property has become a hazard to life and limb, or endangers property or adversely affects the safety, use or stability of a public way or drainage channel, the owner of the property upon which the excavation or fill is located, or other person or agent in control of said property, upon receipt of notice in writing from the city engineer shall within the period specified therein repair or eliminate such excavation or embankment so as to eliminate the hazard to be in conforrnance with the requirements of this code. Section 15.08.140 Grading Permit Requirements. Appendix Section 3309 Grading Permit Requirements. 3309.5 Soils Engineerino-, Report. The soil engineering report shall include data regarding the nature, distribution and strength of existing soils, conclusions and recommendations for grading procedures and design criteria for corrective measures, including buttress fills, when necessary, and opinions and recommendations covering adequacy of sites to be developed by the proposed grading, including the stabilities of slopes. The soil engineering report on engineering grading shall include results of at least one triaxial compression test or a direct shear test, where applicable; sieve analysis of coarse and fine aggregates; indicate the location of water tables, and the location of test bore holes and compaction tests. Where public improvements involve streets, the soils report shall include results of R value tests, taken for the native material over which the improvement is to be made. R-values at both 300 psi exudation pressure and the expansive pressure shall be included. A thorough analysis fol' slope stability for all slope areas shall be provided which contains calculated slope stability factors of safety. Where clay strata exist, the soil engineering report shall include the thickness of clay strata, its depth below surface and its effect with regard to settlement of foundations or improvements and shall be supported by consolidation test results. The city engineer may require additional tests, as necessary, and the costs of these tests shall be borne by the developer. The result of these tests will be included in the soil engineering report. Recommendations included in the report and approved by the City Engineer shall be incorporated in the grading plans or specifications. 3309.6 Engineering Geology Report. The engineering geology report shall include an adequate description of the geology of the site, and conclusions and recommendations regarding the effect of geologic conditions on the proposed grading. When springs and ground water are encountered upon excavation, the engineering geology report shall describe, in detail, measures for the permanent drainage of water from the proposed construction site. Where borings show extensively thick soft strata or clay, a map showing the boundaries of such strata and its thickness also shall be a part of engineering geology report. Recommendations included in the report and approved by the City Engineer shall be incorporated in the grading plans or specifications. 3309.10 Transportation Routes. The city engineer shall designate the routes along which fill and grading material will be transported. 3309.12 Further Subdivision Grading. In subdivision work where grading is completed in accordance with the plans and specifications, and further grading is proposed, a new grading permit may be required and all such grading shall be in conformance with this chapter and other related provisions of the California Building Code. 3309.13 Hours. No grading or any work in connection therewith, including, but not limited to, the import and export of earth or other materials and the delivery, servicing or operation of grading equipment, shall be conducted between the hours of 6:00 p.m. and 8:00 a.m. within or adjacent to residential zones, or between the hours of 6:00 p.m. and 7:00 a.m. within all other areas of the City, of any day, nor on Saturday, Sunday or Municipal holidays at any time without prior written approval of the Director of Public Works. 3309.14 Grading in Public Right-of-Way. No person shall do any grading in the public right-of-way or in a public easement without first obtaining an encroachment permit from the City Engineer as set forth in Chapter 13.04. Section 15.08.150 Grading Fees. Appendix Tables A33-A and A33-B from the California Building Code, 2001 Edition, are deleted and are replaced with the following: GeneraL. Fees shall be as set forth in the master fee schedule, as amended from time to time by resolution of the City Council. Plan Review Fee. For excavation and fill on the same site, the fee shall be based on the volume of the excavation or fill, whichever is greater. Before accepting a set of plans and specifications for checking, the City Engineer shall collect a plan-checking fee. Separate permits and fees shall apply to retaining walls or major drainage structures as indicated elsewhere in this code. There shall be no separate charge for standard terrace drains and similar facilities. Grading Permit Fees. Grading permit fees shall be paid prior to the issuance of the permit. Separate permits and fees shall apply to retaining walls or major drainage structures as required elsewhere in this code. There shall be no separate charge for standard ten'ace repairs and similar facilities. Section 15.08.160 Performance Bonds, Nuisance and Hazardous Conditions. Appendix Section 3311 Bonds and Insurance. (a) The applicant shall conduct the grading work in such'a manner as not to create a present public nuisance or immediate public hazard and shall file a perfolTnance bond with the city engineer in a sum not less than $50,000 to assm'e remedial work required to abate any present public nuisance or immediate public hazard so created, if such a bond is required by the City Engineer. The City Engineer may reasonably reduce the amount of the performance bond based on the discretionary determination as to the scope of any anticipated remedial work, but in no case to a sum of less than $10,000. (b) In lieu of a bond the applicant may deposit cash or other acceptable instrument of credit as security with the city engineer in an amount equal to that which would be required in the bond. (c) The City Engineer may, before issuing the permit, require that the applicant for a permit file a certificate showing that he is insured against claims for damages for personal injury as well as claims for property damage, including damage to the city roi' deposit or washing of material into city streets or other public improvements, which may arise from or out of the performance of the work, whether such performance be by himself, his subcontractor or any person directly or indirectly employed by him and the amount of such insurance shall be at least $1,000,000.00 public liability and an additional $500,000.00 property damage. Any such insurance shall include protection against liability arising from completed operations provided the cause of action therefore existed at the time of project completion. Any such insurance shall be subject to the approval of the City Attorney as to form, amount and cmTier and shall insure the city, its elected and appointed officers, agents and employees against any loss or liability which may arise from any occun'ence during the performance of or which may result from any work required to be done. Section 15.08.170 Restriction of Work During Rainy Season. Appendix Section 3319 Restriction of Work During Rainy Season. The period between November 1 and May 1 is hereby determined to be the period in which heavy rainfall normally occurs in the city. During this period no grading work in excess of 200 cubic yards will be authorized on any single grading site under permit where the City Engineer determines that such work will adversely impact the public health, safety or welfare. Previously authorized grading work, which extends into the rainy season, shall be protected by incorporating temporary erosion control devices. Plans of erosion control devices shall be submitted to the City Engineer no later than September 1, and design approval obtained not later than October 1, prior to the rainy season. The design of desilting basins which discharge into city streets or natural water courses shall be under the control of the city engineer. Temporary erosion controls and devices including desilting basins shall be installed no later than November 1. The City Engineer, in the performance of his duties, may add: 1. Regulations as to the use of public streets and places in the course of the work. 9 Requirements roi- safe and adequate drainage of the site. o A requirement that approval of the city engineer be secured before any work, which has been commenced, may be discontinued. A requirement that men and equipment be provided at the site during storms to prevent incomplete work from endangering life or property. Requirements fol' fencing of excavation or fills which would be hazardous without such fencing. Section 15.08.180 Liability. Appendix Section 3320 Liability The City of South San Francisco relies upon Section 17956 of the Health and Safety Code in enacting Appendix Chapter 33, as amended herein of the California Building Code, 2001 edition, which provides that the city shall not be liable for any injury which arises out of any act or omission of the city or other enforcement agency or a public employee or any other person under Sections 17953, 17954 or 17955 of the Health and Safety Code. Section 15.08.190 California Building Code Appendices Adopted. The following Appendix chapters are hereby adopted: Chapter 3, Division II Chapter 12, Division I2 Chapter 15 Chapter 29 Chapter 31, Division III Chapter 33" SECTION 3. SEVERABILITY. In the event any section or portion of this ordinance shall be determined invalid or unconstitutional, such section or portion shall be deemed severable and all other sections or po~xions hereof shall remain in full force and effect. SECTION 4. PUBLICATION & EFFECTIVE DATE Pursuant to the provisions of Government Code Section 36933, a sammary 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. Introduced at a regular meeting of the City Council of the City of South San Francisco, held the day of ,2004. Adopted as an Ordinance of the City of South San Francisco at a Council of the City of South San Francisco held on the day of following vote: meeting of the City ,2004, by the AYES' NOES' ABSENT: ABSTAIN: ATTEST: City Clerk As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this day of ,2004. Mayor S:\Current Oral's\2001 California BuildingCode (ord) FINAL. DOC ORDINANCE NO. AN ORDINANCE REPEALING CHAPTER 15.12 AND ADDING CHAPTER 15.12 OF THE SOUTH SAN FRANCISCO MUNICIPAL CODE AND ADOPTING AND AMENDING THE CALIFORNIA PLUMBING CODE, 2001 EDITION THE CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO DOES ORDAIN AS FOLLOWS: SECTION 1. Chapter 15.12 "Uniform Plumbing Code," Repealed. Chapter 15.12 of the South San Francisco Municipal Code is hereby repealed. This repeal shall not affect or prevent the prosecution or punishment of any person for any act done or omitted in violation of this chapter prior to the effective date of this ordinance. SECTION 2. Chapter 15.12 "California Plumbing Code," Adopted. Chapter 15.20 of the South San Francisco Municipal Code is hereby added to the South San Francisco Municipal Code to read as follows: Sections: Section 15.12.010 Section 15.12.020 Section 15.12.030 Section 15.12.040 Section 15.12.050 Section 15.12.060 "California Plumbing Code California Plumbing Code, 2001 Edition, adopted by reference. Amendments, General. Violations and Penalties. Cost of Permit and Plan Review. Materials. California Plumbing Code appendices adopted. Section 15.12.010 California Plumbing Code, 2001 Edition, adopted by reference. Tine California Plumbing Code, 2001 Edition, published by the International Association of Plumbing and Mechanical Officials, as modified by the amendments, additions and deletions set forth hereinafter, is hereby adopted by reference as the Plumbing Code of the City of South San Francisco, and may be cited as such. Section 15.12.020 Amendments, General. Set forth below are the amendments, additions and deletions to the California Plumbing Code, 2001 Edition. Section numbers used herein are those of the California Plumbing Code. Section 15.12.030 Violations and Penalties. Section 102.3.1. Violations. It shall be unlawful for any person, firm or corporation to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use or maintain any plumbing systems or equipment or cause or permit the same to be done in violation of this code. Each day dm'lng any portion of which any violation of this code is committed or continued by person, firm or corporation shall constitute a separate offense and shall be punishable as herein provided. Section 102.3.2 Penalties. Any person, firm or corporation violating any of the provisions of this code shall be punished as provided for in Section 15.06.040 of this code. Section 15.12.040 Cost of Permit and Plan Review. The schedule of fees referenced in Table 1-1 of the California Plumbing Code, 2001 Edition, is hereby deleted and replaced by the City's master fee schedule. Section 15.12.050 Materials. Section 701.1.2 The use of ABS and PVC piping materials for drainage and sewer installations shall be limited to residential structures not exceeding two (2) stories in height, as defined in Section 220 of the California Building Code, 2001 edition. EXCEPTION: Upon approval of the Chief Building Official, ABS and PVC piping may be used for underground drainage and sewer applications, in other than residential structures, when it can be shown that unusual soil conditions would cause corrosion of metal piping materials. Section 604.1 Water pipe and fittings shall be of brass, copper, cast iron, galvanized malleable iron, galvanized wrought iron, galvanized steel, or other approved materials. Asbestos-cement, CPVC, PE, or PVC water pipe manufactured to recognized standards may be used for cold water distribution systems outside a building. All materials used in the water supply system, except valves and similar devices shall be of a like material, except where otherwise approved by the Administrative Authority. Section 903.1.2 The use of ABS and PVC piping for venting shall be limited to residential structures not exceeding two (2) stories in height, as defined in Section 220 of the California Building Code, 2001 edition. Section 1211.3 No gas piping shall be allowed in or on the ground under any building or structure and all exposed piping shall be kept at least six (6) inches above grade or structure. The term "building or structure shall include structures such as porches and steps, whether covered or uncovered, breezeways, roofed porte-cocheres, roofed patios, carports, covered walks, covered driveways, and similar structures or appurtenances. Concealed unprotected gas piping may be installed above grade in approved recesses or channels. Exception: When necessary due to structural conditions, approved type gas piping may be installed in other locations, when permission has first been obtained from the Admi n i strati ve A uth ori ty. Section 15.12.060 California Plumbing Code appendices adopted. Appendix D, "Sizing Stormwater Drainage Systems", and Appendix H, "Recommended Procedures for Design, Construction and Installation of Commercial Kitchen Grease Interceptors" are adopted." SECTION 3. SEVERABILITY. In the event any section or portion of this ordinance shall be determined invalid or unconstitutional, such section or portion shall be deemed severable and all other sections or portions hereof shall remain in full force and effect. SECTION 4. 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 whictn this Ordinance is scheduled to be adopted, the City Clerk shall (a) 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 after its adoption. Introduced at a regular meeting of the City Council of the City of South San Francisco, held the day of ,2004. Adopted as an Ordinance of the City of South San Francisco at a meeting of the City Council of the City of South San Francisco, held on the day of ,2004, by the following vote: A YES: NOES: ABSENT: ATTEST: City Clerk As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this __ day of ,2004. Mayor S:\Current Reso's\2001 California Plumbing Code (ord) FINAL.DOC 4 ORDINANCE NO. AN ORDINANCE REPEALING CHAPTER 15.16 AND ADDING CHAPTER 15.16 OF THE SOUTH SAN FRANCISCO MUNICIPAL CODE AND ADOPTING AND AMENDING THE CALIFORNIA MECHANICAL CODE, 2001 EDITION THE CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO DOES ORDAIN AS FOLLOWS: SECTION 1. Chapter 15.16 "Uniform Mechanical Code," Repealed. Chapter 15.16 of the South San Francisco Municipal Code is hereby repealed. This repeal shall not affect or prevent the prosecution or punishment of any person for any act done or omitted in violation of this chapter prior to the effective date of this ordinance. SECTION 2. Chapter 15.16 "California Mechanical Code," Adopted. Chapter 15.16 of the South San Francisco Municipal Code is hereby added to the South San Francisco Municipal Code to read as follows: "California Mechanical Code Sections: Section 15.16.010 California Mechanical Code, 2001 Edition, adopted by reference. Section 15.16.020 Amendments, General. Section 15.16.030 Violations. Section 15.16.035 Fee Schedule. Section 15.16.040 Penalties. Section 15.16.010 California Mechanical Code, 2001 Edition, adopted by reference. The California Mechanical Code, 2001 Edition, published by the International Association of Plumbing and Mechanical Officials, as modified by the amendments, additions and deletions set forth hereinafter, is hereby adopted by reference as the Mechanical Code of the City of South San Francisco, and may be cited as such. Section 15.16.020 Amendments, General. Set forth below are the amendments, additions and deletions to the California Mechanical Code, 2001 Edition. Section numbers used herein are those of the California Mechanical Code. Section 15.16.030 Violations. Section 111.1 It shall be unlawful for any person, firm or corporation to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use or maintain any mechanical systems or equipment or cause or permit the same to be done in violation of this code. Each day during any portion of which any violation of this code is committed or continued by any person, firm or corporation shall constitute a separate offense and shall be punishable as herein provided. Section 15.16.035 Fee Schedule. The schedule of fees referenced in Table 1-1 of the California Mechanical Code, 2001 Edition, is hereby deleted and replaced by the City's master fee schedule. Section 15.16.040 Penalties. Section 111.2. Any person, firm or corporation violating any of the provisions of this code shall be punished as provided for in Section 15.06.040 of this code." SECTION 3. SEVERABILITY. In the event any section or portion of this ordinance shall be determined invalid or unconstitutional, such section or portion shall be deemed severable and all other sections or portions hereof shall remain in full force and effect. SECTION 4. 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 after its adoption. Introduced at a regular meeting of the City Council of the City of South San Francisco, held the day of ,2004. Adopted as an Ordinance of the City of South San Francisco at a meeting of the City Council of the City of South San Francisco, held on the day of ,2004, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this __ day of ,2004. Mayor S:\Cun'¢nt Ord's\2001 California Mechanical Code (ord) FINAL. DOC ORDINANCE NO. AN ORDINANCE REPEALING CHAPTER t5.20 AND ADDING CHAPTER 15.20 OF THE SOUTH SAN FRANCISCO MUNICIPAL CODE AND ADOPTING AND AMENDING THE CALIFORNIA ELECTRICAL CODE, 2001 EDITION THE CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO DOES ORDAIN AS FOLLOWS: SECTION 1. Chapter 15.20 "California Electrical Code," Repealed. Chapter 15.20 of the South San Francisco Municipal Code is hereby repealed. This repeal shall not affect or prevent the prosecution or punishment of any person for any act done or omitted in violation of this chapter prior to the effective date of this ordinance. SECTION 2. Chapter 15.20 "California Electrical Code," Adopted. Chapter 15.20 of the South San Francisco Municipal Code is hereby added to the South San Francisco Municipal Code to read as follows: "California Electrical Code Sections: Section 15.20.010 Section 15.20.020 Section 15.20.030 Section 15.20.040 Section 15.20.050 Section 15.20.060 Section 15.20.070 California Electrical Code, 2001 Edition, adopted by reference. Amendments, General. Administration. Fee Schedule. Violations. Penalties. Nonmetallic-Sheathed Cable. Section 15.20.010 California Electrical Code, 2001 Edition, adopted by reference. The California Electrical Code, 2001 Edition, as published in Title 24 of the California Code of Regulations, and as modified by the amendments, additions and deletions set forth hereinafter, is hereby adopted by reference as the California Electrical Code of the City of South San Francisco, and may be cited as such. Section 15.20.020 Amendments, General. Set forth below are the amendments, additions and deletions to the California Electrical Code, 2001 Edition. Article and section numbers used herein are those of the California Electrical Code. Section 15.20.030 Administration The administration, organization, and enforcement rules and regulations for this technical code shall be as set forth in the Uniform Administrative Code, 1997 edition. Tables 3-A, and 3-C through 3-H are hereby deleted. Section 15.20.040 Fee Schedule The fee schedule applicable to Chapter 15.20 of this Code shall be that set forth in the City' s Master Fee Schedule. Section 15.20.050 Violations. It shall be unlawful for any person, firm or corporation to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use or maintain any electrical systems or equipment or cause or permit the same to be done in violation of this code. Each day during any portion of which any violation of this code is committed or continued by any person, firm or corporation shall constitute a separate offense and shall be punishable as herein provided. Section 15.20.060 Penalties. Any person, firm or corporation violating any of the provisions of this ordinance shall be punished as provided for in Section 15.06.040 of this code. Section 15.20.070 Nonmetallic-Sheathed Cable. Article 336-4 Uses Permitted. Type NM, Type NMC, and Type NMS cables shall be permitted to be used in one and two-family dwellings, and multi-family dwellings and U occupancies accessory to residential occupancies not exceeding 3 stories above grade, excepted as prohibited by section 336-5. Where installed in cable trays, cables shall be identified for this use. (a) Unchanged (b) Unchanged (c) Unchanged Article 336-5 Uses not Permitted. (a) Types NM, NMC, and NMS cables shall not be used: (1) In any dwelling or structure exceeding three stories above grade. For the purpose of this section story shall be defined per section 220 in the California Building Code. (2) Unchanged (3) In any commercial or industrial building. (4) Unchanged (3) Unchanged (6) Unchanged (7) Unchanged (8) Unchanged (9) Unchanged (b) ul~changed' SECTION 3. SEVERABILITY. In the event any section or portion of this ordinance shall be determined invalid or unconstitutional, such section or portion shall be deemed severabl¢ and all other sections or portions hereof shall remain in full force and effect. SECTION 4. 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 (a) 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 after its adoption. Introduced at a regular meeting of the City Council of the City of South San Francisco, held the day of ,2004. Adopted as an Ordinance of the City of South San Francisco at a meeting of the City Council of the City of South San Francisco, held on the day of ,2004, by the following vote: AYES' NOES: ABSENT: ATTEST: City Clerk As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this __ day of ,2004. Mayor S:\Cun-ent Ord's\2001 California Electrical Code (ord) FINAL. DOC ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 15.10, "UNIFORM HOUSING CODE," OF THE SOUTH SAN FRANCISCO MUNIC'1P M, C'nDF RECITALS WH:EREAS, in accordance with the provisions of the California Health and Safety Code, the City of South San Francisco has amended the provisions of California Code of Regulations Title 24, the California Building Standards Code, 2001 Edition; and WHEREAS, these amendments have been set forth in Municipal Code Chapters 15.08, "California Building Code," 15.12, "California Plumbing Code," 15.16, "California Mechanical Code," 15.20, "California Electrical Code," and 15.24, "Fire Code"; and WHEREAS, as a result of these amendments, the City Council finds it necessary to update other building standards adopted by the City, including the Uniform Housing Code, in order to ensure consistent, uniform enforcement of all the City's adopted building standards. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO DOES ORDAIN AS FOLLOWS: SECTION 1. Chapter 15.10 "Uniform Housing Code," Amended. Chapter 15.10 of the South San Francisco Municipal Code is hereby amended to read as follows: "Uniform Housing Code Sections Section 15.10.010 Section 15.10.020 Section 15.10.030 Section 15.10.040 Section 15.10.050 Uniform Housing Code, 1997 Edition, adopted by reference. Amendments, General. Authority. Violations. Penalties. Section 15.10.010 Uniform Housing Code, 1997 Edition, adopted by reference. The Uniform Housing Code, 1997 Edition, published by the'international Conference of Building Officials, and as modified by the amendments, additions and deletions set forth hereinafter, is hereby adopted by reference as the Uniform Housing Code of the City of South San Francisco, and may be cited as such. Section 15.10.020 Amendments, General. Set forth below are the amendments, additions and deletions to the Uniform Housing Code. Chapter, section and table numbers used herein are those of the Uniform Housing Code. Section 15.10.030 Authority. Section 201.1 Authority. The building official and the fire chief are hereby authorized and directed to enforce all provisions of this code. For such purposes the building official shall have the powers of a law enforcement officer. In conflicts of interpretation on technical issues the building official shall govern. Section 15.10.040 Violations. Section 204 Violations. It shall be unlawful for any person, firm or corporation to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use, occupy or maintain any building, structure or service equipment or cause or permit the same to be done in violation of provisions of this code. Each day during any portion of which any violation is committed or continued by any person, firm or corporation shall constitute a separate offense and shall be punishable as herein provided. Section 15.10.050 Penalties. Section 205 Penalties. Any person, firm or corporation violating any of the provisions of this code shall be punished as provided for in Section 15.06.40 of this code." SECTION 2. SEVERABILITY. In the event any section or portion of this ordinance shall be dete~xnined invalid or unconstitutional, such section or portion shall be deemed severable and all other sections or portions hereof shall remain in full force and effect. SECTION 3. PUBLICATION & 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 (a) publish the summary, and (2) post in the City Clerk's office a certified copy of this ordinance. Within fifteen (15) days after tine 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 after its adoption. Introduced at a regular meeting of the City Council of the City of S~uth San Francisco, held the day of ,2004. Adopted as an Ordinance of the City of South San Francisco at a meeting of the City Council of the City of South San Francisco this ,2004, by the following vote: day of AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this day of ,2004. Mayor S:\Current Ord's\Housing Code amendment (ord) FINAL.DOC ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 15.06, "UNIFORM ADMINISTRATIVE CODE," OF THE SOUTH SAN FI~ ANC'IRC(3 M!'fNIC'IPAI CC}DF RECITALS WHEREAS, in accordance with the provisions of the California Health and Safety Code, the City of South San Francisco has amended the provisions of California Code of Regulations Title 24, tine California Building Standards Code, 2001 Edition; and WHEREAS, these amendments have been set forth in Municipal Code Chapters 15.08, "California Building Code," 15.12, "California Plumbing Code," 15.16, "California Mechanical Code," 15.20, "California Electri.cal Code," and 15.24, "Fire Code"; and WHEREAS, as a result of these amendments, the City Council finds it necessary to update other building standards adopted by the City, including the Uniform Administrative Code, in order to ensure consistent, uniform enforcement of all tine City's adopted building standards. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO DOES ORDAIN AS FOLLOWS: SECTION 1. Chapter 15.06 "Uniform Administrative Code," Amended. Chapter 15.06 of the South San Francisco Municipal Code is hereby amended to read as follows: "Uniform Administrative Code Section Section 15.06.010 Section 15.06.020 Section 15.06.030 Section 15.06.040 Section 15.06.050 Section 15.06.070 Section 15.06.010 Uniform Administrative Code, 1997 Edition, adopted by reference. Amendments, General. Violations. Penalties. Powers and Duties. Uniform Administrative Code provisions deleted and City's Master Fee Schedules adopted. Uniform Administrative Code, 1997 Edition, adopted by reference. The Uniform Administrative Code, 1997 Edition, published by the International Conference of Building Officials, and as modified by the amendments, additions and deletions set forth hereinafter, is hereby adopted by reference as the Administrative Code for uniform codes of the City of South San Francisco, and may be cited as such. Section 15.06.020 Amendments, General. Set forth below are the amendments, additions and deletions to the Uniform Administrative Code. Chapter, section and table numbers used herein are those of the Uniform Admini strati ve Code. Section 15.06.030 Violations. Section 205 Violations. It shall be unlawful for any person, firm or corporation to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use, occupy or maintain any building, structure or service equipment or cause or permit the same to be done in violation of provisions of this Chapter or of Chapters 15.08 through 15.24. Each day during any portion of which any violation is committed or continued by any person, firm or corporation shall constitute a separate offense and shall be punishable as herein provided. The issuance or granting of a permit or approval of plans and specifications shall not be deemed or construed to be a permit for, or an approval of, any violation of any of the provisions of this chapter or of Chapters 15.08 through 15.24. No permit presuming to give authority to violate or cancel any applicable provisions shall be valid, except insofar as the work or use which is authorized is lawful. The issuance or granting of a permit or approval of plans shall not prevent requiring the correction of eh'ors in the plans and specifications or from preventing construction operations being carried on thereunder in violation of any applicable provisions or from revoking any certificate or approval issued in error. Section 15.06.040 Penalties. Section 206 Penalties. Any person, firm or corporation violating any of the provisions of this Chapter or of Chapter 15.08 through 15.24 shall be deemed guilty of an infraction. Each such violator shall be deemed guilty of a separate offense for each and every day or portion thereof during which any violation of any of the provisions of this Chapter or of Chapter 15.08 through 15.24 is committed, continued, or permitted; and upon conviction of any such violation such person shall be punished as provided in Section 36900 of the Government Code, as that section or its successor reads at the time of the offense. The City Attorney may determine that any violation shall be cited as a misdemeanor, conviction for which shall be punished as provided in Sectioh 36901 of the Government Code. In addition to the remedies provided above, any violation shall be and is hereby declared to be a nuisance and may be abated as such through appropriate civil proceedings. The remedies provided for herein shall be cumulative and not exclusive. Section 15.06.050 Powers and Duties. Section 201.1 General. The building official, fire chief and the county health officer shall have concurrent jurisdiction relating to or involving protection against fire or maintenance of public health. The building official is hereby authorized and directed to enforce all the provisions of this code and the referenced technical codes. For such purposes, the building official shall have the powers of a law enforcement officer. The building official shall have tine power to render interpretations of this code and the referenced technical codes, and to adopt and enforce rules and regulations supplemental to this code as may be deemed necessary to clarify the application of the provisions of this code. Such interpretation, rules and regulations shall be in conformity with the intent and pm-pose of this code. Section 15.06.070 Uniform Administrative Code provisions deleted and City's Master Fee Schedules adopted. Tables 3-A through 3-H, inclusive, from the Uniform Administrative Code, 1997 Edition, are deleted. The City's Master Fee Schedules are hereby adopted." SECTION 2. SEVERABI:LITY. In the event any section or portion of this ordinance shall be determined invalid or unconstitutional, such section or portion shall be deemed severable and all other sections or portions hereof shall remain in full force and effect. SECTION 3. PUBLICATION & 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 (a) 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 after its adoption. Introduced at a regular meeting of the City Council of the City of South San Francisco, held the day of ,2004. Adopted as an Ordinance of the City of South San Francisco at a meeting of the City Council of the City of South San Francisco ,2004, by the following vote: this day of AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this day of ,2004. Mayor S:\Current 0rd's\Administrative Code amendment (ord) FINAL.DOC Staff Report DATE: February 25,2004 ~TO: The Honorable Mayor and City Council FROM: Steven T. Mattas, City Attorney SUBJECT: Adoption of an Ordinance Repealing Chapters 15.24, 15.32 and 15.44 of the South San Francisco Municipal Code, adopting Chapter 15.24, and adopting and amending the 2001 Edition of the California Fire Code RECOMMENDATION: Adopt an Ordinance Repealing Chapters 15.24, 15.32 and 15.44 of the South San Francisco Municipal Code, adopting Chapter 15.24, and adopting and amending the 2001 Edition of the California Fire Code. BACKGROUND/DISCUSSION: Council has previously waived reading and introduced the following ordinance. The Ordinance is now ready for adoption. ADOPTION OF AN ORDINANCE REPEALING CHAPTERS 15.24, 15.32 AND 15.44 OF THE SOUTH SAN FRANCISCO MUNICIPAL CODE, ADOPTING CHAPTER 15.24, AND ADOPTING AND AMENDING THE 2001 EDITION OF CALIFORNIA FIRE CODE (Introduced 02-11-04 - Vote 5-0) By: ,,~ ~~~ Steven T~Mattas, City Attorney Michael A. Wilson, City Manager Enclosure: Ordinance RESOLUTION NO. CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RES()LIrI'I()N FINDING AND DETERMINING THE NEI';D F( )R CHAN(;I';S ()R M()DIFICATI()NS T()THE CAI.IF( )RNIA I:IRE C()DE, 2001 EDITI()N WHEREAS, Section 17958 of the California Health & Safety Code authorizes the adoption and amendment by the City of South San Francisco of regulations published by the State in the California Building Standards Code; and WHEREAS, Health & Safety Code §17958.5 permits a city to make such changes or modifications to the California Building Standards Code as deemed reasonable because of local climatic, geological, or topographical conditions; and WHEREAS, Section 17958.7 requires that a copy of the City's findings, together with the modification or change expressly marked and identified to which each finding refers, be filed with the California Building Standards Commission; WHEREAS, the City has adopted local amendments to the California Fire Code, 2001 Edition, which have been evaluated and recognized by the City of South San Francisco as tools for addressing the fire problem in the City of South San Francisco, and the concerns and future direction by which the City will establish and maintain an environment which will afford a higln level of fire and life safety to all those who work and live within the City's boundaries. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San Francisco does hereby declare and find the following: 1. In connection with the adoption of Chapter 15.24 of the South San Francisco Municipal Code, whereas said Chapter adopts and amends the California Fire Code, 2001 Edition, and its Appenclices, changes to the California Fire Code, 2001 Edition, are reasonably necessary because of following local climatic, geological or topographical conditions: a. CLIMATIC: South San Francisco receives an annual average rainfall of approximately 12.1 inches between October and April. During the summer months from June to September, the City experiences a great deal of fog and wind. Winds generally prevail from the west at velocities ranging from approximately 5 to 50 mph. Average velocities are approximately 15 to 25 mph. Temperatures range fi'om approximately 32 to 90 degrees Fahrenheit. In summary, due to these climatic conditions, driving is extremely hazardous and visibility very poor. Therefore arriving on scene at an emergency may require a long response time. Winds can have an impact on structure fires of buildings in close proximity to one another, common to South San Francisco. In building fires, winds can literally force fires back into the building and create a blow-torch effect, in addition to preventing "natural" ventilation and cross-ventilation efforts. b. GEOGRAPHICAL: South San Francisco resides on the San Andreas Fault and is subject to seismic activity. An earthquake can occur at any time, causing severe stress on the fire department's ability to provide emergency response, e.g. water mains and natural gas lines may rupture contributing to the rapid spread of fire. Streets may become blocked by debris which will cause traffic congestion and a delayed response of firefighting personnel and equipment. Non-native vegetation in and near open spaces such as French Bloom, Eucalyptus, Monterey Pine, and grasses combined with steep sloped terrain pose a significant threat of wildfire. The City responds to wildland fires on San Bruno Mountain on an annual basis. The City is bordered to the north by Daly City, Colma and Brisbane. The City of Pacifica is to the west and San Bruno to the south. To the east is San Francisco Bay. To the southeast is San Francisco International Airport that subjects the City to frequen{ over flights of large commercial aircraft. As a result the City is the potential site for a significant off- airport incident involving a large loss of life and widespread property damage due to fire. Consequently, automatic or mutual aid fi'om other cities may be overwhelmed or unavailable, since Colma, Brisbane, Pacifica and San Bruno fire departments are staffed by volunteers or consist of one and two stations respectively. c. TOPOGRAPHICAL: South San Francisco is built on portions of land ranging from Bay fill, lowland flood plain to gently sloping areas and steep hillsides. Many alleys and streets are nmTow and winding with congested vehicle parking. New construction is inevitably built on steep hillsides or in areas where access is difficult. Narrow roads make response times longer and make it difficult to place fire apparatus and equipment close to a fire scene. Additionally, some areas have structm'es built on zero lot lines creating difficulty in controlling fire spread and exposure. Delays in response may also be attributed to traffic patterns where major thoroughfares are often congested with traffic. In order to mitigate the problems that prevent a quick and efficient response to a fire regardless of its cause, use of emergency plans and procedures, fire permits, built-in automatic fire-extinguishing systems, standpipes systems, fire alarm systems, fire apparatus access roads and gas meter markings are required over and above state code requirements. Emergency plans and procedures will assist employees who are responsible for the elderly or infirm to notify the fire department in the event of an emergency, isolate the fire and evacuate the building occupants. Fire permits will insure proper design, installation of fire protection and life safety systems or the proper use or storage of materials to minimize the incidence or severity of fire. The requirement for installation of fire protection and life safety systems will allow faster notification to occupants to evacuate and allow the fire to be controlled before tine firefighters arrive. Fire apparatus access roads and maximum spacing between fire hydrants will ensure that fire apparatus and equipment can place close to a fire scene. Labeling of gas and utility services in multi-tenant buildings will ensure that they can be easily located and shut-off to prevent the likelihood of fire and/or explosion. Additional standpipe outlets will allow firefighters access to a water supply once inside a structure. 2. In addition to the general findings above, the following specific findings are made with respect to the following individual sections contained in Chapter 15.24 of the South San Francisco Municipal Code, adopting and amending the California Fire Code, 2001 Edition: 15.24.010 Fire Code. Findings of Fact: Every three years the Western Fire Chiefs Association publishes a new edition of the Uniform Fire Code. The City of South San Francisco is presently using the 1997 edition. Tine State of California also uses the Uniform Fire Code as a reference and by adding its own amendments, has adopted it as the California Fire Code. Title 24 of the California Code of Regulations, contains all of the Building Standards of tine State of California and is divided into ten parts including Part 2, California Building Code (References Uniform Building Code) and Part 9, California, Fire Code (References Uniform Fire Code). The City of South San Francisco is presently using the 1998 edition. To maintain consistent current practices in the field of fire safety and building technology, changes in materials, processes, and construction, we recommend adoption of the 2001 edition of the California Fire Code and appendices as indicated. 15.24.020 Amendments, General. Findings of Fact: This section remains unchanged from the prior code adopted by the City. 15.24.030 Division of Fire Prevention-Established Enforcement Duties. Findino_s of Fact: Tlnis section establishes tine formation of a local fire prevention division and appointment of a Fire Marshal under tine supervision of the Fire Chief. The function of this division shall be to assist the Chief in the administration'and enforcement of the provisions of the Fire Code and the South San Francisco Municipal Codes. 15.24.040 Authority To Cite. Findings of Fact: This section is amended to include the use of administrative citation in addition to other legal remedies, criminal or civil, which may be pursued by the City to address any violation of this code 15.24.050 Violation and Penalties. Findings of Fact: Government Code Section 50022.4 provides that when a code is adopted by reference, penalty clauses are not deemed adopted by reference but may be enacted only if set forth in full in the adopting ordinance. Such is the action taken with these two sections, and such is the intent of the City Council. 15.24.060 Appeals. 15.24.070 Permit and Service Fees. Findings of Fact: These sections are directly related to administrative and permit processes only. These changes confirm permits, appeals, processes, imposition of costs and fees, and are administrative rather than technical in nature. 15.24.080 Permits Required. Findings of Fact: The above stated climatic, geographical and topographical conditions wan'ant more stringent requirements for additional listing of renewable permits (annually renewed) to those ah-eady described in Section 105 of the California Fire Code which provides permission to maintain, store, use or handle materials, or to conduct processes which produce conditions hazardous to life or property, or to install equipment used in conjunction with such activities. Properly constructed and maintained Christmas tree lots will insure the safety of patrons as well as decrease the incidence and severity of fire. A properly functioning fire alarm system gives early warning to building occupants to leave the affected area promptly. When fire occurs in institutions and large family day care facilities multiple fatalities can occur. Proper exiting and otlner related fire safety issues can only be addressed through a fire inspection. Permit-required confined spaces contain oxygen deficient and flammable atmospheres or other hazardous conditions. Over 50% of fatalities that occur in these locations involve would be rescuers. The fire department is mandated to be knowledgeable of their location and special' problems they present during a rescue. Portable tar kettles used to heat tar during roof surfacing, sealing and/or repair may overheat and cause a fire or boil over if safety controls are not in place and operating. Inspection and the issuance of a permit will help prevent these types of incidents. 15.24.090 Fire Apparatus Access Roads. Findings of Fact: This section is amended to include the use of signage, curb color and markings to insure emergency vehicle access. This section will assist in faster response for emergency response personnel due to topographical conditions (narrow and winding streets with congested parking) 15.24.100 Premises Identification. Findings of Fact: This section is amended to include address number or letter requirements on all occupancies as well as within a building, e.g. apartment numbers. It also defines stroke and height requirement for the number or letter designation. This section will assist in faster response for emergency response personnel due to climatic conditions (fog) which inhibit visibility as well as locating a victim within a building. 15.24.110 Fire Extinguishing Systems. Findings of Fact: Climatic, geographical and topographical conditions warrant more stringent requirements for automatic fire extinguishing systems in the City of South San Francisco than those standards as set forth in the uniforrn code. In particular, Climafic: During the summer months fi'om June to September, the City experiences a great deal of fog and wind. As a result dhving is extremely hazardous and visibility very poor. Therefore alTiving on scene at an emergency may require a long response time. Winds can have an impact on how fast and intense a fire will bum and spread to other buildings that are in close proximity to one another common to South San Francisco. In building fires, winds can also literally force fires back into the building and create a blow torch effect, in addition to preventing "natural" ventilation and cross ventilation. Geology: South San Francisco sets over 2 miles of the San Andreas earthquake fault. This fault can create major ground shaking resulting in multiple fires throughout our community. With only five Engine Companies and no mutual-aid immediately available after an earthquake, we must rely on built-in fire protection to quickly extinguish a large number of incipient fires. Topography: The remaining area of South San Francisco to be built on is largely limited to steep slopes and hillsides. Many streets are narrow and winding with congested parking. This makes is more difficult to place fire apparatus and equipment close to a fire scene. Slopes also make it difficult to place ladders for rescue and to advance hose lines. Response time is increased due to steep grades, narrow streets, and congested traffic. In addition, many buildings are built upon zero lot lines and have no direct rear yard access. Initial fire attack is possible from the front side of the building only. The time it may take for firefighter to reach the seat of the fire is greatly increased. The opportunity for occupants to safely exit the building is limited as well. The time delay decreases the survival chances of victims in the building and increases the potential for property damage. Fire spread between buildings is more probable. An automatic fire sprinkler system will either extinguish the fire or control it until firefighters can an'ive and extinguish it. Automatic fire sprinklers are the proven most effective method of saving lives and property. In order to ensure uniform standards, these changes shall also apply to the fire- extinguishing system requirements set forth in California Building Code Sections 904.2 - 904.2.10.1. 15.24.120 Requirements for Buildings Two or More Stories in Height, but less than State-Mandated High-Rise Buildings (seventy-five feet). 15.24.130 Requirements for Buildings Four or More Stories in Height, but less than State-Mandated High-Rise Buildings (seventy-five feet). Findings of Fact: The above stated climatic, geographical and t6pographical conditions wan'ant more stringent requirements for multi-storied buildings in the City of South San Francisco than those standards as set forth in the uniform code. These sections deal with the special problems associated with fires in multi-storied buildings. Due to the vertical nature of multi-story building fires, they require significantly more resources than other types of fires. 15.24.140 Sprinkler Systems and Monitoring and Alarms. 15.24.150 Fire Alarm Systems. Findings of Fact: Frequent problems with malfunctioning alarm systems, often caused by climatic conditions in the City of South San Francisco; require the fire department to secure information needed to restore a fire alarm system to normal service, to ensure that instructions on such systems are accessible, and to ensure that such systems are well maintained and inspected. 15.24.160 Gas Meters and Piping. Findin~os of Fact: This section deals with the difficulty associated with quickly controlling gas and utility services in multi-tenant buildings following an earthquake to prevent the occun'ence or severity of fire and other hazards. 15.24.170 Prohibition. Findings of Fact: The more particular ordinance, found within Chapter 10.50 of the Municipal Code, controls and these amendments are made to make the uniform code consistent with the remaining codes of the City. 15.24.180 Emergency Procedures. Findines of Fact: The above stated climatic, geographical and topographical conditions warrant more stringent requirements for persons who are responsible to care for the aged and infirm to be knowledgeable of emergency plans and procedures to ensure a prompt and efficient response of firefighting personnel and equipment. 15.24.190 Number and Distribution of Fire Hydrants. Findings of Fact: This section remains unchanged from prior code adopted by the City. These changes describe the maximum spacing between fire hydrants. 15.24.200 Standpipe Requirements. Findings of Fact: Table 1004-A has been amended to delete requirements based on unsprinkled buildings. Due to Section 15.24.120, Fire Extinguishing Systems (fire sprinklers) of this code, all new construction requires a fire sprinkler system; consequently, the requirements based on unsprinkled buildings do not apply. Additionally, the classes of standpipes and fire hose requirements have been changed in occupancies to reflect the need fol' better water supply and versatility during fire suppression. Slow response times in South San Francisco due to sloped terrain, fog, nan-ow streets and multi-storied buildings with large floor space require more versatile standpipe outlets be installed as necessary to mitigate the situation. This amendment is also reflected in an ordinance proposed in the Uniform Building Code, Table 9-A. 3. The aforesaid local amendments are reasonably necessary in order to lessen the threat to life, safety and property represented by certain local climatic, geographical and topographical conditions existing in the City of South San Francisco. BE IT FURTHER RESOLVED that the City Clerk is hereby directed to cause a copy of this resolution, together with the ordinance making the changes or modifications to the California Fire Code, 2001 Edition, to be filed with the California State Building Standards Commission. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a meeting held on the day of ,2004 by the following vote: A YES: NOES: ABSTAIN: ABSENT: ATTEST: City Clerk S:\Cun'ent Oral's\2001 California Fire Code (reso) FINAL1.DOC StaffReport AGENDA ITEM #4 DATE: TO: FROM: SUBJECT: February 25, 2004 The Honorable Mayor and City Council John Gibbs, Director of Public Works THE CITY OF SOUTH SAN FRANCISCO'S DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM FOR FISCAL YEAR 2004 RECOMMENDATION: It is recommended that the City Council adopt a resolution approving the Disadvantaged Business Enterprise (DBE) which is to utilize disadvantaged businesses to the maximum extent feasible as outlined in the program for federally assisted construction projects funded from October 1, 2003 to September 30, 2004. BACKGROUND/DISCUS SION: The City Council, by Resolutions Nos. 104-81,160-84, 112-95,121-98, 126-99, 154-2000,24-2001 119-2001 and 103-2002, had previously adopted the City of South S an Francisco' s Disadvantaged Business Enterprise Program. The Surface Transportation and Uniform Relocation Assistance Act of 1987 requires that goals be reviewed and updated each year in order to receive federal funds for necessary street improvements. The Federal Government requires that these goals be stated in the contract documents for projects receiving Federal funds. New Federal guidelines have been developed regarding the establishment of DBE goals. The City's plan has been reviewed by CALTRAN's and they had minor comments on the plan. This resolution will establish the City of South San Francisco's goal for the Disadvantaged Business Enterprise that utilizes disadvantaged businesses to the maximum extent feasible, but not less than the percentage for the contract cost established in the City's DBE program for federally assisted construction projects funded between October 1, 2003 and September 30, 2004. The Director of Public Works has advertised these goals in the San Mateo County Times, Nuevo Mundo and Philippine News and allowed for comments on the goals. No comments were received on the goals. ro~ Re: Date: Page: The Honorable Mayor and City Council The City of South San Francisco's Disadvantaged Business Enterprise (DBE) Program for Fiscal Year 2004 February 25, 2004 2 The cost for the program is included in the individual Capital Improvement Projects. John Gibbs~ Director of Public Works Approved: Michael A. Wilson City Manager ATTACHMENTS' Resolution Overall Annual DBE Goal FY 2004 RESOLUTION NO. CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION APPROVING THE DISADVANTAGED BUSINESS ENTERPRISE PROGRAM WHEREAS, this resolution will establish the City of South San Francisco's goal for the Disadvantaged Business Enterprise that utilizes disadvantaged businesses to the maximum extent feasible but not less than the percentage of the contract cost established in the City's DBE program for federally assisted construction projects funded between October 1, 2003 to September 30, 2004; and WHEREAS, the cost for the program is included in the individual Capital Improvement Projects. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council hereby approves the Disadvantaged Business Enterprise Program as outlined in the program for federally assisted construction projects funded between October 1, 2003 to September 30, 2004 and instructing the Director of Public Works to advertise these goals in the San Mateo County Times to allow for comments on the goals. * * * * * * I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a meeting held on the _ day of ,2004 by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: City Clerk S:\Current Reso'sL2-25disadvantaged.business.res.doc CITY OF SOUTH SAN FRANCISCO OVERALL ANNUAL DBE GOAL FOR FEDERAL FISCAL YEAR 2004 Submitted in conformance with Title 49 Code of the code of Federal Regulations Part 26 Caltrans Local Assistance Procedures Manual And Caltrans Local Programs Procedures EXHIBIT 9-A Model DBE Program for Local Agencies Local Assistance Procedures Manual MODEL DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM City of South San Francisco I Definitions of Terms The terms used in this program have the meanings defined in 49 CFR {}26.5. II Objectives/Policy Statement ({}{}26.1, 26.23) The City of South San Francisco has established a Disadvantaged Business Enterprise (DBE) program in accordance with regulations of the U,S. Department of Transportation (DOT), 49 CFR Part 26. The City of South San Francisco has received federal financial assistance from the DOT, and as a condition of receiving this assistance, the City of South San Francisco will sign an assurance that it will comply with 49 CFR Part 26. It is the policy of the City of South San Francisco to ensure that DBEs, as defined in part 26, have an eqUal opportunity to receive and participate in DOT-assisted contracts. It is also our policy: To ensure nondiscrimination in the award and administration of DOT-assisted contract~; To create a level playing field on which DBEs can compete fairly for DOT-assisted contracts; To ensure that the DBE Program is narrowly tailored in accordance with applicable law; To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted to participate as DBEs; To help remove barriers to the participation of DBEs in DOT-assisted contracts; and To assist the development of firms that can compete successfully in the market place outside the DBE Program. A Senior Civil Engineer has been delegated as the DBE Liaison Officer. In that capacity, the Senior Civil Engineer is responsible for implementing all aspects of the DBE program. Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by the City of South San Francisco in its financial assistance agreements with the California Department of Transportation (Caltrans). The City of South San Francisco has disseminated this policy statement to the City of South San Francisco Council and all the components of our organization. We have distributed this statement to DBE and non-DBE business communities that perform work for us on DOT-assisted contracts by publishing this statement in general circulation, minority - focused and trade association publications. III Nondiscrimination ({}26.7) The City of South San Francisco will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR Part 26 on the basis of race, color, sex, or national origin. Page 9-28 March 15, 2001 LPP 01-04 Local Assistance Procedures Manual EXHIBIT 9-A Model DBE Program for Local Agencies In adrn/nister/ng its DBE program, the City of South San Francisco will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE program with respect to individuals of a particular race, color, sex, or national origin. IV DBE Program Updates (§26.21) The City of South San Francisco will continue to carry out this program until the City of South San Francisco has established a new goal setting methodology or until significant changes to this DBE Program are adopted. The City of South San Francisco will provide to Caltrans a proposed overall goal and goal setting methodology and other program updates by June 1 of every year. V Quotas (§26.43) The City of South San Francisco will not use quotas or set asides in any way in the administration of this DBE program. VI DBE Liaison Officer (DBELO) (§26.25) The City of South San Francisco has designated the following individual as the DBE Liaison Officer: Robert T. Hahn, Senior Civil Engineer, 315 Maple Ave., South San Francisco, CA 94080, (650) 829- 6668, E-mail: Robert.Hahn@ssf. net. In that capacity, the Senior Civil Engineer is responsible for implementing all aspects of the DBE program and ensuring that the City of South San Francisco complies with all provisions of 49 CFR Part 26. This is available on the Intemet at osdbuweb.dot.gov/main.cfm. The City of South San Francisco has direct, independent access to the City Manager concerning DBE program matters. The DBELO has a staff of 1 professional employees and 1 support employee assigned to the DBE program who devote a portion of their time to the program. An organization chart displaying the DBELO's position in the organization is found in Attachment A to this program. The DBELO is responsible for developing, implementing and monitoring the DBE program, in coordination other appropriate officials. Duties and responsibilities include the following (suggested): 1. Gathers and reports statistical data and other information as required. 2. Reviews third party contracts and purchase requisitions for comphance with this program. 3. Works with all departments to set overall annual goals. 4. Ensures that bid notices and requests for proposals are available to DBEs in a timely manner. 5. Identifies contracts and procurements so that DBE goals are included in solicitations (both race- neutral methods and contract specific goals) and monitors results. 6. Analyzes the City of South San Francisco's progress toward goal attainment and identifies ways to improve progress. 7. Participates in pre-bid meetings. 8. Advises the City Manager/governing body on DBE matters and achievement. 9. Participate with the legal counsel and project director to determine contractor compliance with good faith effort. 10. Provides DBEs with information and assistance in preparing bids, obtaining bonding and insurance. Page 9-29 LPP 01-04 March 15, 2001 EXHIBIT 9-A Model DBE Program for Local Agencies Local Assistance Procedures Manual 11. Plans and participates in DBE training seminars. 12. Provides outreach to DBEs and community organizations to advise them of opportunities. VII Federal Financial Assistance Agreement Assurance (§26.13) The City of South San Francisco will sign the following assurance, applicable to all DOT-assisted contracts and their administration as part of the program supplement agreement for each project: The recipient shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE Program or the requirements of 49 CFR part 26. The recipient shall take all necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. The recipient's DBE Program, as required by 49 CFR part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for under part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.). VIII DBE Financial Institutions It is the policy of the City of South San Francisco to investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in the community, to make reasonable efforts to use these institutions, and to encourage prime contractors on DOT-assisted contracts to make use of these institutions. Information on the availability of such institutions can be obtained from the DBE Liaison Officer. The Caltrans Disadvantaged Business Enterprise Program may offer assistance to the DBE Liaison Officer. IX Directory (§26.31) The City of South San Francisco will refer interested persons to the DBE directory available from the Caltrans Disadvantaged Business Enterprise Program website at www.dot.ca.gov/hq/bep. X Overconcentration (§26.33) The City of South San Francisco has not identified any types of work in DOT-assisted contracts that have a overconcentration of DBE participation. If in the future the City of South San Francisco identifies the need to address overconcentration, measures for addressing overconcentration will be submitted to the DLAE for approval. XI Business Development Programs (§26.35) The City of South San Francisco does not have a business development or mentor-protdg6 program. If the City of South San Francisco identifies the need for such a program in the future, the rationale for Page 9-30 March 15, 2001 LPP 01-04 Local Assistance Procedures Manual EXHIBIT Model DBE Program for Local Agencies adopting such a program and a comprehensive description of it will be submitted to the DLAE for approval. XII Required Contract Clauses (§§26.13, 26.29) Contract Assurance The City of South San Francisco ensures that the following clause is placed in every DOT-assisted contract and subcontract: The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as recipient deems appropriate. Prompt Payment The City of South San Francisco ensures that the following clauses or equivalent will be included in each DOT-assisted prime contract: Satisfactory Performance The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than 10 days from the receipt of each payment the prime contractor receives from the City of South San Francisco. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the City of South San Francisco. This clause applies to both DBE and non-DBE subcontractors Release of Retainage The prime contractor agrees further to release retainage payments to each subcontractor within 30 days after the subcontractor's work is satisfactorily completed. Any delay or postponement of payment from the above referenced t/me frame may occur only for good cause following written approval of the City of South San Francisco. This clause applies to both DBE and non-DBE subcontractors. XIII Monitoring and Enforcement Mechanisms (§26.37) The City of South San Francisco will assign a Resident Engineer (RE) or Contract Manager to monitor and track actual DBE participation through contractor and subcontractor reports of payments in accordance with the following: After Contract Award After the contract award the City of South San Francisco will review the award documents for the portion of items each DBE and first tier subcontractor will be performing and the dollar value of that work. With these documents the RE/Contract Manager will be able to determine the work to be performed by the DBEs or subcontractors listed. Page 9-31 LPP 01-04 March 15, 2001 EXHIBIT 9-A Model DBE Program for Local Agencies Local Assistance Procedures Manual Preconstruction Conference A preconstruction conference will be scheduled between the RE and the contractor or their representative to discuss the work each DBE subcontractor will perform. Before work can begin on a subcontract, the local agency will require the contractor to submit a completed "Subcontracting Request," Exhibit 16~B of the LAPM or equivalent. When the RE receives the completed form it will be checked for agreement of the first tier subcontractors and DBEs. The RE will not approve the request when it identifies someone other than the DBE or first tier subcontractor listed in the previously completed "Local Agency Bidder DBE Information," Exhibit. 15-G. The "Subcontracting Request" will not be approved until any discrepancies are resolved. If an issue cannot be resolved at that time, or there is some other concern, the RE will require the contractor to eliminate the subcontractor in question before signing the subcontracting request. A change in the DBE or first tier subcontractor may be addressed during a substitution process at a later date. Suppliers, vendors, or manufacturers listed on the "Local Agency Bidder DBE Information" will be compared to those listed in the completed Exhibit 16-1 of the LAPM or equivalent. Differences must be resolved by either making corrections or requesting a substitution. Substitutions will be subject to the Subletting and Subcontracting Fair Practices Act (FPA). Local agencies will require contractors to adhere to the provisions within Subletting and Subcontracting Fair Practices Act (State Law) Sections 4100-4144. FPA requires the. contractor to list all subcontractors in excess of one half of one percent (0.5%) of the contractor's total bid or $10,000, whichever is greater. The statute is designed to prevent bid shopping by contractors. The FPA explains that a contractor may not substitute a subcontractor listed in the original bid except with the approval of the awarding authority. The RE will give the contractor a blank Exhibit 17-F, "Final Report Utilization of Disadvantaged Business Enterp_rises, First Tier Subcontractors" and will explain to them that the document will be required at the end of the project, for which payment can be withheld, in conformance with the contract. Construction Contract Monitoring The RE will ensure that the RE's staff (inspectors) know what items of work each DBE is responsible for performing. Inspectors will notify the RE immediately of apparent violations. When a firm other than the listed DBE subcontractor is found performing the work, the RE will notify the contractor of the apparent discrepancy and potential loss of payment. Based on the contractor's response, the RE will take appropriate action: The DBE Liaison Officer will perform a preliminary investigation to identify any potential issues related to the DBE subcontractor performing a commercially useful function. Any substantive issues will be forwarded to the Caltrans Disadvantaged Business Enterprise Program. If the contractor fails to adequately explain why there is a discrepancy, payment for the work will be withheld and a letter will be sent to the contractor referencing the applicable specification violation and the required withholding of payment. Page 9-32 March 15, 2001 LPP 01-04 Local Assistance Procedures Manual EXHIBIT 9-A Model DBE Program for Local Agencies If the contract requires the submittal of a monthly truck document, the contractor will be required to submit documentation to the RE showing the owner's name; California Highway Patrol CA number; and the DBE certification number of the owner of the truck for each truck used during that month for which DBE participation will be claimed. The trucks will be listed by California Highway Patrol CA number in the daily diary or on a separate piece of paper for documentation. The numbers are checked by inspectors regularly to confirm compliance. Providing evidence of DBE payment is the responsibility of the contractor. Substitution When ~i DBE substitution is requested, the RE/Contract Manager will request a letter from the contractor explaining why substitution is needed. The RE/Contract Manager must review the letter to be sure names and addresses are shown, dollar values are included, and reason for the request is explained. If the RE/Contract Manager agrees to the substitution, the RE/Contract Manager will notify, in writing, the DBE subcontractor regarding the proposed substitution and procedure for written objection from the DBE subcontractor in accordance with the Subletting and Subcontracting Fair Practices Act. If the contractor is not meeting the contract goal with this substitution, the contractor must provide the required good faith effort to the RE/Contract Manager for local agency consideration. If there is any doubt in the RE/Contract Manager's mind regarding the requested substitution, the RE/Contract Manager may contact the DLAE for assistance and direction. Record Keeping and Final Report Utilization of Disadvantaged Business Enterprises The contractor shall maintain records showing the name and address of each first-tier subcontractor. The records shall also show: 1. The name and business address, regardless of tier, of every DBE subcontractor, DBE vendor of materials and DBE trucking company. 2. The date of payment and the total dollar figure paid to each of the firms. 3. The DBE prime contractor shall also show the date of work performed by their own forces along with the corresponding dollar value of the work claimed toward DBE goals. When a contract has been completed, the contractor will provide a summary of the records stated above. The DBE utilization information will be documented on the form "Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors" (Exhibit 17-F) and will be submitted to the DLAE attached to the Report of Expenditures. The RE will compare the completed "Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors" form to the contractor's completed "Local Agency Bidder-DBE-Information" (Exhibit 15-G) and, if applicable, to the completed "Subcontracting Request" (Exhibit 16-B). The DBEs shown on the completed "Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors" form should be the same as those originally listed unless an authorized substitution was allowed, or the contractor used more DBEs and they were added. The dollar amount should reflect any changes made in planned work done by the DBE. The contractor will be required to explain in writing why the names of the subcontractors, the work items or dollar figures are different from what was originally shown on the completed "Local Agency Bidder-DBE-Information" form when: Page 9~33 LPP 01-04 March 15, 2001 EXHIBIT 9-A Model DBE Program for Local Agencies Local Assistance Procedures Manual There have been no changes made by the RE. The contractor has not provided a sufficient explanation in the comments section of the completed "Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors" form. The explanation will be attached to the completed "Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors" form for subrnittal. The RE will file this in the project records. The local agency's Liaison Officer will keep track of the DBE certification status on the Internet at www.dot.ca, gov/hq/bep and keep the RE informed of changes that affect the contract. The RE will require the contractor to act in accordance with existing contractual commitments regardless of decertification. The DLAE will use the PS&E checklist to monitor the City of San Francisco's commitment to require bidders list information to be submitted to City of South San Francisco from the awarded prime and subcontractors as a means to develop a bidders list. This monitoring will only take plaCe if the bidders list information is required to be submitted as stipulated in the special provisions. The City of South San Francisco will bring to the attention of the DOT through the DLAE any false, fraudulent, or dishonest conduct in connection with the program, so that DOT can take the steps (e.g., referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules) provided in §26.109. The City of South San Francisco also will consider similar action under our own legal authorities, including responsibility determinations in future contracts. XIV Overall Goals (§26.45) ^ ..... * ~ Goal The City of South San Francisco's overall goal for the federal fiscal year 2004 is the following: 6.5% of the federal financial assistance in DOT-assisted contracts. This overall goal is broken down into 4% race-conscious and 2.5% race-neutral components. Methodology See Attachment "B". Breakout of Estimated Race-Neutral and Race-Conscious Participation See Attachment "B". Page 9-34 March 15, 2001 LPP 01-04 Local Assistance Procedures Manual EXHIBIT 9-A Model DBE Program for Local Agencies Process Starting with the federal fiscal year 2004, the amount of overall goal, the method to calculate the goal, and the breakout of estimated race-neutral and race-conscious participation will be required annually by June 1 in advance of the federal fiscal year beginning October 1 for DOT-assisted contracts. Submittals will be to the Caltrans' DLAE. An exception to this will be if FI'A or FAA recipients are required by FTA or FAA to submit the annual information to them or a designee by another date. FHWA recipients will follow this process: Once the DLAE has responded with preliminary comments and the comments have been incorporated into the draft overall goal information, the City of South San Francisco will publish a notice of the proposed overall goal, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at the City of South San Francisco's principal office for 30 days following the date of the notice, and informing the public that comments will be accepted on the goals for 45 days following the date of the notice. The notice must be published in general circulation media and available minority-focused media and trade association publications. The notice will include addresses to which comments may be sent and addresses (including offices and websites) where the proposal may be reviewed. The overall goal resubmission to the Caltrans DLAE, will include a summary of information and comments received during this public participation process and the City of South San Francisco's responses. This will be due by September 1 to the Caltrans DLAE. The DLAE will have a month to make a final review so the City of South San Francisco may begin using the overall goal on October 1 of each year. If them is a design build please refer to Appendix B of this Model DBE Program. XV Contract Goals (§26.51) The City of South San Francisco will use contract goals to meet any portion of the overall goal the City of South San Francisco does not project being able to meet by the use of race-neutral means. Contract goals are established so that, over the period to which the overall goal applies, they will cumulatively result in meeting any portion of the overall goal that is not projected to be met through the use of race- neutral means. Contract goals will be established only on those DOT-assisted contracts that have subcontracting possibilities. Contract goals need not be established on every such contract, and the size of contract goals will be adapted to the circumstances of each such contract (e.g., type and location of work, availability of DBEs to perform the particular type of work). The contract work items will be compared with eligible DBE contractors willing to work on the project. A determination will also be made to decide which items are likely to be performed by the prime contractor and which ones are likely to be performed by the subcontractor(s). The goal will then be incorporated into the contract documents. Contract goals will be expressed as a percentage of the total amount of a DOT-assisted contract. Page 9-35 LPP 01-04 March 15, 2001 EXHIBIT 9-A Model DBE Program for Local Agencies Local Assistance Procedures Manual XVI Transit Vehicle Manufacturers (§26.49) If DOT-assisted contracts will include transit vehicle procurements, the City of South San Francisco will require each transit vehicle manufacturer, as a condition of being authorized to bid or propose on transit vehicle procurements, to certify that it has complied with the requirements of 49 CFR Part 26, Section 49. The City of South San Francisco will direct the transit vehicle manufacturer to the subject requirements located on the Intemet at http://osdbuweb.dot.gov/programs/dbe/dbe.htm. XVII Good Faith Efforts (§26.53) Information to be Submitted The City of South San Francisco treats bidders'/offerors' compliance with good faith effort requirements as a matter of responsiveness. A responsive proposal is meeting all the requirements of the advertisement and solicitation. Each solicitation for which a contract goal has been established will require the bidders/offerors to submit the following information to the City of South San Francisco no later than 4:00 p.m. on or before the fourth day, not including Saturdays, Sundays and legal holidays, following bid opening: 1. The names and addresses of known DBE firms that will participate in the contract; 2. A description of the work that each DBE will perform; 3, The dollar amount of the participation of each DBE firm participation; 4. Written and signed documentation of commitment to use a DBE subcontractor whose participation it submits to meet a contract goal; 5. Written and signed confirmation from the DBE that it is participating in the contract as provided in the prime contractor's commitment; and 6. If the contract goal is not met, evidence of good faith efforts. Demonstration of Good Faith Efforts The obligation of the bidder/offeror is to make good faith efforts. The bidder/offeror can demonstrate that it has done so either by meeting the contract goal or documenting good faith efforts. Examples of good faith efforts are found in Appendix A to Part 26 which is attached. The following personnel are responsible for determining whether a bidder/offeror who has not met the contract goal has documented sufficient good faith efforts to be regarded as responsive: The Senior Civil Engineer. The City of South San Francisco will ensure that all information is complete and accurate and adequately documents the bidder/offeror's good faith efforts before a commitment to the performance of the contract by the bidder/offeror is made. Administrative Reconsideration Page 9-36 March 15, 2001 LPP 01-04 Local Assistance Procedures Manual EXHIBIT 9-A Model DBE Program for Local Agencies Within 10 days of being informed by the City of South San Francisco that it is not responsive because it has not documented sufficient good faith efforts, a bidder/offeror may request administrative reconsideration. Bidder/offerors should make this request in writing to the following reconsideration official: Mr. John Gibbs, Director of Public Works, 400 Grand Ave., South San Francisco, CA 94080, (650) 877-8538, E-mail: John. Gibbs@ssf. net. The reconsideration official will not have played any role in the original determination that the bidder/offeror did not make document sufficient good faith efforts. As part of this reconsideration, the bidder/offeror will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good fa/th efforts to do so. The bidder/offeror will have the opportunity to meet in person with the reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do so. The City of South San Francisco will send the bidder/offeror a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so. The result of the reconsideration process is not administratively appealable to Caltrans, FHWA or the DOT. Good Faith Efforts when a DBE is Replaced on a Contract The City of South San Francisco will require a contractor to make good faith efforts to replace a DBE that is terminated or has otherwise failed to complete its work on a contract with another certified DBE, to the extent needed to meet the contract goal. The prime contractor is required to notify the RE immediately of the DBE's inability or unwillingness to perform and provide reasonable documentation. In this situation, the prime contractor will be required to obtain the City of South San Francisco prior approval of the substitute DBE and to provide copies of new or amended subcontracts, or documentation of good faith efforts. If the contractor fails or refuses to comply in the time specified, The City of South San Francisco contracting office will issue an order stopping all or part of payment/work until satisfactory action has been taken. If the contractor still fails to comply, the contracting officer may issue a termination for default proceeding. XVIII Counting DBE Participation (§26.55) The City of South San Francisco will count DBE participation toward overall and contract goals as provided in the contract specifications for the prime contractor, subcontractor, joint venture partner with prime or subcontractor, or vendor of material or supplies. See the Caltrans' Sample Boiler Plate Contract Documents. Also, refer to XIII. "After Contract Award." XIX Certification (§26.83(a)) The City of South San Francisco ensures that only DBE firms currently certified on the Caltrans' directory will participate as DBEs in our program. XX Information Collection and Reporting Page 9-37 LPP 01-04 March 15, 2001 EXHIBIT 9-A Model DBE Program for Local Agencies Local Assistance Procedures Manual Bidders List The City of South San Francisco will create and maintain a bidders list, consisting of information about all DBE and non-DBE firms that bid or quote on its DOT-assisted contracts. The bidders list will include the name, address, DBE/non-DBE status, age, and annual gross receipts of firms. Monitoring Payments to DBEs Prime contractors are required to maintain records and documents of payments to DBEs for three years following the performance of the contract. These records will be made available for inspection upon request by any authorized representative of the City of South San Francisco, Caltrans, FHWA, or DOT. This reporting requirement also extends to any certified DBE subcontractor. Payments to DBE subcontractors will be reviewed by the City of South San Francisco to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule of DBE participation. Reporting to Caltrans The City of South San Francisco - Final utilization of DBE participation will be reported to the DLAE using Exhibit 17-F of the Caltrans' LAPM. Confidentiality The City of South San Francisco will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with federal, state, and local laws. City Manager Date: This Disadvantaged Business Enterprises Program is accepted by: [Signature of DLAE] Date: 'Page 9-38 March 15, 2001 LPP 01-04 Local Assistance Procedures Manual EXHIBIT 9-A Model DBE Program for Local Agencies APPENDIX A TO PART 26 -- GUIDANCE CONCERNING GOOD FAITH EFFORTS I. When, as a recipient, you establish a contract goal on a DOT-assisted contract, a bidder must, in order to be responsible and/or responsive, make good faith efforts to meet the goal. The bidder can meet this requirement in either of two ways. First, the bidder can meet the goal, documenting commitments for participation by DBE firms sufficient for this purpose. Second, even if it doesn't meet the goal, the bidder can document adequate good faith efforts. This means that the bidder must show that it took all necessary and reasonable steps to achieve a DBE goal or other requirement of this part which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation, even if they were not fully successful. II. In any situation in which you have established a' contract goal, part 26 requires you to use the good faith efforts mechanism of this part. As a recipient, it is up to you to make a fair and reasonable judgment whether a bidder that did not meet the goal made adequate good faith efforts. It is important · for you to consider the quality, quantity, and intensity of the different kinds of efforts that the bidder has made. The efforts employed by the bidder should be those that one could reasonably expect a bidder to take if the bidder were actively and aggressively trying to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are not good faith efforts to meet the DBE contract requirements. We emphasize, however, that your determination concerning the sufficiency of the firm' s good faith efforts is a judgment call: meeting quantitative formulas is not required. 15I. The Department also strongly cautions you against requiring that a bidder meet a contract goal (i.e., obtain a specified amount of DBE participation) in order to be awarded a contract, even though the bidder makes an adequate good hith efforts showing. This rule specifically prohibits you from ignoring bona fide good faith efforts. IV. The following is a list of types of actions which you should consider as part of the bidder's good faith efforts to obtain DBE participation. It is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in appropriate cases. A. Soliciting through ail reasonable and available means (e.g. attendance at pre-bid meetings, advertising and/or written notices) the interest of all certified DBEs who have the capability to perform the work of the contract. The bidder must solicit this interest within sufficient time to allow the DBEs to respond to the solicitation. The bidder must determine with certainty if the DBEs are interested by taking appropriate steps to follow up initial solicitations. B. Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate DBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces. C. Providing interested DBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation. LPP 01-04 Page 9-39 March 15, 2001 EXHIBIT 9-A Model DBE Program for Local Agencies Local Assistance Procedures Manual D. (1) Negotiating in good faith with interested DBEs. It is the bidder's responsibility to make a portion of the work available to DBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available DBE subcontractors and suppliers, so as to facilitate DBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of DBEs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for DBEs to perform the work. (2) A bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including DBE subcontractors, and would take a firm's pr/ce and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a bidder's failure to meet the contract DBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts. Prime contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable. E. Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The contractor's standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for the rejection or non- solicitation of bids in the contractor's efforts to meet the project goal. F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor. G. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services. H. Effectively using the services of available minority/women community organizations; minority/women contractors' groups; local, state, and federal minority/women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of DBEs. V. In determining whether a bidder has made good faith efforts, you may take into account the performance of other bidders in meeting the contract. For example, when the apparent successful bidder fails to meet the contract goal, but others meet it, you may reasonably raise the question of whether, w/th additional reasonable efforts, the apparent successful bidder could have met the goal. If the apparent successful bidder fails to meet the goal, but meets or exceeds the average DBE participation obtained by other bidders, you may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made good faith efforts. Page 9-40 March 15, 2001 LPP 01-04 Local Assistance Procedures Manual EXHIBIT 9-A Model DBE Program for Local Agencies APPENDIX B TO BE USED FOR DESIGN-BUILD CONTRACTS The following are hereby incorporated into the Agency's Disadvantaged Business Enterprise (DBE) Program: II Objectives/Policy Statement (§§26.1, 26.23) At the end of the first paragraph, add the following: The Agency recognizes that certain modifications are necessary to adapt the program for use in connection with design-build contracts, and has therefore established certain procedures applicable to design-build DBE contracts under the DBE Program. Public Contract Code Section 4109 requires subcontractors to be identified by the prime contractor for the subletting or subcontracting of any portion of the work in excess of one-half of 1 percent of the prime contractor's total bid. Exceptions are only in the cases of public emergency or necessity, and then only after a finding reduced to writing as a public record of the awarding authority setting forth the facts constituting the emergency or necessity. The written public record of the awarding authority/Agency as to either emergency or necessity is attached hereto (See Appendix C for sample). XIII Monitoring and Enforcement Mechanisms (§26.37) At the end of the first paragraph below "After Contract Award", add the following paragraph: After Design-Build Contract Award As described in the Section entitled "GOOD FAITH EFFORTS" below, each proposer for an Agency design-build contract will be required to submit a DBE Performance Plan as part of a responsive proposal. Following award of a design-build contract and during both the design and construction portions of the project, the design-build contractor will be required to submit documentation, in the form of progress reports described below, to show that the design-build contractor is meeting the contract goal for the project, or if the goal is not being met, the design-build contractor must submit satisfactory evidence that it has made good faith efforts, in accordance with Section XVII, to meet the goal. Evidence of good faith efforts, as described in 49 CFR Part 26 Section 26.53 and Appendix A, will be monitored by the Agency throughout the duration of the design-build project. At the end of the first paragraph below "Preconstruction Conference", add the following sentence: The contractor will promptly provide the Agency with the information required by the form entitled "Local Agency DBE Information" upon selection of any DBE or other subcontractor not previously identified by the design-build contractor. During the course of the contract, differences must be explained and resolved by either making corrections or requesting a substitution. Page 9-41 LPP 01-04 March 15, 2001 EXHIBIT 9-A Model DBE Program for Local Agencies Local Assistance Procedures Manual At the end of the fourth paragraph below "Construction Contract Monitoring", add the following paragraph: The contractor will provide DBE Progress Reports to the Agency with each invoice and will provide an annual report on or before August I of each year of the design-build contract. Each report must also include a narrative summary stating whether the contractor is on target with respect to the DBE goal set forth in the design-build contract, whether the goal has been exceeded (stating the amount of the excess), or whether the contractor is behind target (stating the amount of the deficiO. XVII Good Faith Efforts (§26.53) At the end of the third paragraph below "Information to be Submitted", add the following items: 7. A DBE Performance Plan containing a detailed description of the design-build contractor's planned methodology for achieving the DBE goal stated in the contract, including a description of the good faith efforts the design-build contractor intends to undertake to achieve that goal. 8. A design-build proposal must also include an affidavit that the proposer will either attain the DBE goals for the design-build contract or will exercise good faith efforts to do so. At the end of the first paragraph below "Demonstration of Good Faith Efforts", add the following sentence: If it is a design-build contract, each contractor proposing will be required to submit a DBE Performance Plan as part ora responsive proposal and good faith efforts. City Manager Date: This Disadvantaged Business Enterprise Program for design-build contracts is accepted by: [Signature of DLAE] Date: Page 9-42 March 15, 2001 LPP 01-04 Local Assistance Procedures Manual EXltIBIT 9-A Model DBE Program for Local Agencies APPENDIX C RESOLUTION OF THE (Agency Name) REGARDING NECESSITY OR EMERGENCY FOR SUBSEQUENT SUBCONTRACTOR IDENTIFICATION AND SELECTION FOR DESIGN-BUILD CONTRACTS (REQUIRED BY PUBLIC CONTRACT CODE SECTION 4109 ENTITLED "Public Emergency Grounds For Change") A. EXPLANATION OF PUBLIC NECESSITY OR EMERGENCY B. FACTS CONSTITUTING THE PUBLIC NECESSITY OR EMERGENCY C. FINDINGS D. RESOLUTION FOR SUBSEQUENT IDENTIFICATION OF SUBCONTRACTORS E. ADOPTION OF PROCEDURE TO BE USED BY DESIGN-BUILD CONTRACTOR FOR SUBSEQUENT IDENTIFICATION OF SUBCONTRACTORS F. CERTIFICATE OF SECRETARY 1. MOTION MADE AND DATE 2. VOTING RESULTS 3. SIGNATURES (a) Secretary (b) Chairperson LPP 01-04 Page 9-43 March 15, 2001 CITY OF SOUTH SAN FRANCISCO ORGA'NIZATION CHART City Manager I ! Director of Public Works ,~ ~-. 6, v:') Engineer/DBE Liaison Officer I I ~,.Senior Civil Engineer' t-L~. 1 Admin. Assistant ATTACHMENT B CITY OF SOUTH SAN FRANCISCO OVERALL ANNUAL DBE GOAL FOR FISCAL · ~at~ 2004 Submitted in conformance with Title 49 Code of the code of Federal Regulations Part 26 CaItrans Local Assistance Procedures Manual And Caltrans Local Programs Procedures CITY OF SOUTH SAN FRANCISCO DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM OVERALL ANNUAL DBE GOAL AND METHODOLOGY FOR FEDERAL FISCAL YEAR (FFY) 2004 I. DOT-ASSISTED CONTRACTING PROGRAM FOR FFY 2004 Table 1 below represents five DOT-assisted projects the City of South San Francisco considered in the overall goal-setting process for FY 2004. All projects have subcontracting opportunities and are anticipated to be awarded and/or expanded within the next two fiscal years: Table 1 Westborough Street Resurfacing $444,000.00 So. Airport Blvd Street Resurfacing (Completed last FY 2003) Table 2 below provides a summary of the corresponding subspecialty work grouped into two primary categories and identifies the Estimated Federal Dollar Share and the Percentage of Federal; Funding of each primary work category utilizing Caltrans' Work Category Codes (WCC) and comparable 2000 Census Business Patterns database North American Industries Classification System (NAICS) Work Codes. Highway & Street Construction Concrete Work 23411 Table 2 $416,000.00 93.7% 23571 $ 28,000.00 6.3% II. GOAL-SETTING PROCESS Step I: Determination of a Base Figure for the Overall Annual Goal (26.45) To begin the goal-setting process, the City of South San Francisco determined the Base Figure for the relative availability of DBEs, by following on e of the five examples of approaches set forth in §26.45 of the regulations. The following data sources were immediately available to the City of South San Francisco. For the numerator: The City of South San Francisco utilizes the Caltrans Bulletin Board System (BBS) Directory of Certified DBE Firms to determine the number of ready, willing and able DBEs in the City of South San Francisco' market area (further defined as San Mateo, Alameda, San Francisco and Contra Costa Counties). For the denominator: The City of South San Francisco utilized the 2001 U.S. Census Bureau County Business Patterns(CBP) Database to determine the number of ready, wiIIing and able businesses in the City of South San Francisco' market area (further defined as San Mateo, Alameda, San Francisco and Contra Costa Counties). The City of South San Francisco made a concerted effort to ensure that: The scope of businesses included in the numerator is as close as possible to the scope included in the denominator. b) The NAICs codes included in the denominator is as close as possible to the Caltrans Work Category Codes (WCC) included in the numerator. This was accomplished by utilizing the conversion table between WCC and NAICs work codes provided by Caltrans. c) The geographicbase included in the numerator is as close as possible to the U.S. Census Bureau County Business Patterns Database. This was accomplished by determining the corresponding zip codes for each county, within the City of South San Francisco' market area. The Base Figure was further adjusted by weighting the relative availability of DBEs within each primary work category, giving more weight to the work category the City is projected to spend more DOT-assisted dollars. The Base Figure resulting from this weighted calculation is a follows: Base Figure = 93.7% (DBE's in C1601, C1901' + 6.3% (DBE's in C5110, C7301 CBP's in NAICS 23411'* CBP's in NAICS 23571 Base Figure - .937 121 + .063 15 1975 249 Base Figure = .937(.0612658) + .063(.060241) Base Figure = .0574 + .0038 = .0612 Base Figure = .0612X 100 = 6.~2= 6.12%*** * For detailed listing of all Caltrans Work Categories grouped in each major category, refer to Exhibit A. ** For detail listing of all NAICS Work Codes grouped in each major category, refer to Exhibit B. *** Rounded to the nearest hundreth. Step 2: Adjusting the Base Figure Upon establishing the Base Figure, the City of South San Francisco reviewed and assessed other known relevant evidence potentially impacting the relative availability of DBE within the City of San Francisco's market area in accordance with prescribed narrow tailoring provisions set forth under 49 CFR part 26. Evidence considered in making an adjustment to the Base Figure included the City of South San Franciscots past DBE Participation Goals and Actual Attainments on Similar Projects and Bidders Lists. A summary of these considerations follows: A. Proven Capaci~ of DBE Measured By Actual Attainment The following tables reflects the City of South San Francisco's DBE attainments on similar DOT- assisted projects, utilizing the 6.5% adopted goal: COMPLETED AND ON-GOING PROJECTS Pedestrian Bridge Seismic Retrofit Completed $ 179,019.00 10.5 Junipero Serra Blvd.'Slope Repair Completed $2,670,949.67 13.84 1999-2000 Street Resurfacing Completed $1,129,342.11 8.59 2001-2002 Street Resurfacing Completed $ 687,942.00 9.1 B. City's Bidders List While a Bidders List would serve as a quantifiable evidence of DBE's demonstrated interest and capacity, the City has not established a tailored Bidders List. However, the City of South San Francisco will in accordance with Caltrans procedures institute program requirements to capture such information form all bidders and will utilize all relevant information in future goal -setting analysis. Resultant Base Figure After careful consideration of the above-mentioned evidence, particularly in the City of South San Francisco's DBE participation and attainments in the similar contracting program, the Base Figure of 6.12% was further adjusted upward by 0.38% to 6.5%. Although there were only two evidence/factors considered, the goal-setting process in a new procedure undertaken by the City of South San Francisco. For future goal-setting analysis, the City of South San Francisco will have the opportunity to fine tune the process each year as the City's experience grows and relevant data will be available, as well as current data will improve. In conclusion, after careful consideration of the above-named evidence/factors, including completed and on-going projects, the Overall Annual DBE Goal for the City of South San Francisco for FFY 2004 is 6.5%. HI. OVERALL ANNUAL GOAL AND PROJECTION OF RACE-NEUTRAL AND RACE-CONCIOUS PARTICIPATION The Overall Annual (FFY 2004) DBE Goal for the City of South San Francisco' DOT assisted contracts is 6.5%. The overall goal is expressed as percentage of all DOT-assisted funds that the City of South San Francisco will expend in FHWA-assisted contracts in the forthcoming fiscal year. This goal further serves to identify the relative availability of DBEs based on the evidence of ready, willing and able DBE's to all comparable firms, which are known to be available to compete for and perform on the City of South San Francisco' DOT-assisted contracts. The Overall Annual Goal reflects a determination of the level of DBE participation, which would be expected absent the effects of discrimination. The City of South San Francisco projects meet 4% of the goal utilizing race-neutral methods, including making efforts to assure that bidding and contract requirements facilitate participation by DBEs and other small businesses in conformance with new regulatory requirements. The City of South San Francisco projects to meet the remainder of the goal 2.5% utilizing race-conscious measures, including utilizing contract-specific numeric goals, as necessary to achieve the overall goal. IV. PUBLIC PARTICPATION AND FACILATION In conformance with Public Participation Regulatory Requirements of 49 CFR part 26 and Caltrans Local Assistance Procedures Manual (LAPM), this goal analysis will be reviewed with minority, women, local busine.ss chambers, and community organizations within the City of South San Francisco' geographic market area. Additionally, the City of South San Francisco will publish a Public Notice in general circulation media announcing the City of South San Francisco's proposed Overall Annual Goal for the FFY 2003 DOT-assisted contracts. Such Notice will inform the public that the proposed goal and its rationale is available for inspection at the City of South San Francisco' principal office during normal business hours for 30 days following the date of the Public Notice and that the City of South San Francisco will accept comments on the goal analysis for 45 days from the date of the Public Notice. The required public participation provisions will be fully satisfied prior to submitting the City of South San Francisco DBE Program and Overall Annual DBE Goal to Caltrans for final review and approval. CITY OF SOUTH SAN FRANCISCO EXHIBIT A DBE GOAL ANALYSIS FOR FFY 2004 # OF ESTABLISHED DBE FIRMS IN SAN MATEO, ALAMEDA, CONTRA COSTA AND SAN FRANCISCO COUNTIES 1 COUNTY ZiP CODES CONSTRUCTION: C1201 23531 Traffic Control System 2 I 5 1 1 9 C5620 23411 Roadside Sign 2 2 2 1 7 C1601 23411,23499 Clearing and Grubbing I 4 4 2 1 12 C1901 23593 Roadway Excavation 2 6 1 1 11 3 24 C1910 23411 Grading 5 4 2 11 C1930 23412,23593 Structure Backfill 1 5 1 5 2 14 C2201 23411 Fininshing Roadway 2 1 1 1 5 C3901 23411 Asphalt Concrete 1 2 1 3 7 C3910 23411 Paving Asphalt 2 3 1 4 2 12 C8406 23411,23521 Painted Traffic Stripe and Marking 5 3 2 10 C8602 23411 Signal and Lighting 1 2 3 3 1 10 HIGHWAY & STREET CONSTRUCTION 121 COUNTY ZIP CODES CONSTRUCTION; p~l ~ ii ."'~,, ,'i ii a {~ ~ "[I ~'" m.m~L~ ~, ~ ~ ~ ' q~ ~4~ ~{~ ,":,~m~%4~` ,.B.i,. 05110 23571 Concrete Sudace Finish 1 C7301 23571 Concrete Curb and Sidewalk 2 4 CONCRETE CONSTRAOTORS 15 L~:/torms lefters/dbe goal analogs/exhibit a CITY OF SOUTH SAN FRANCISCO DBE GOAL ANALYSIS FOR FFY 2( 2OO4 EXHIBIT B # OF ESTABLISHED FIRMS IN SAN MATEO, ALAMEDA, CONTRA COSTA & SAN FRANCISCO COUNTIES 1' CONSTRUCTION: NAICS CODE NAICS DESCRIPTION 23411 Highway & Street Construction 13 33 32 11 23412 Bridge & Tunnel Construction I 3 3 23499 All Other Heavy Construction 14 29 49 11 23521 Painting & Wall Covering Contractors 167 234 210 154 23531 Electrical Contractors "178 312 197 173 23593 Excavation Contractors 30 48 61 12 TOTAL ESTABLISHED FIRMS: 403 659 552 361 89 7 103 765 86O 151 1975 23571 23571 23571' Concrete Contractors Concrete Contractors TOTAL ESTABLISHED FIRMS: 63 80 91 15 I 63 I 80 I 91 } 15 249 249 G:/forms letters/exhibit b StaffReport AGENDA ITEM #5 DATE: February 25, 2004 TO: The Honorable Mayor and City Council FROM: John Gibbs, Director of Public Works SUBJECT: COLMA CREEK BANK PROTECTION PROJECT ENGINEERING FII JE SS-02-07, PROJECT NO. 71-13234-0241 RECOMMENDATION: It is recommended that the City Council, by motion, accept the Colma Creek Bank Protection Project as complete in accordance with the plans and specifications. BACKGROUND/DISCUS SION: This project provided concrete mats along approximately 800 feet of the Colma Creek bank adjacent to the Water Quality Control Plant (WQCP). The concrete mats will prevent future erosion of the bank in this area. In the past, this portion of the bank has experienced severe erosion. The project has been inspected by City staff and is complete in accordance with the plans and specifications. Acceptance of the project will provide authorization for staff to file a Notice of Completion and to release the payment performance bond and ten percent retention at the end of the thirty-day lien period. FUNDING: The construction was completed at a cost of $498,515.75 (bid amount of $406,027.00 plus $92,488.75 for 2 change orders). Change orders were mainly for field soil conditions being different than design input conditions. Construction costs are budgeted in the 2002-2003 Capital Improvement Program (CIP/71-13234-0241). Staff Report ro~ Re: Date: The Honorable Mayor and City Council Colma Creek Bank Protection Project February 25, 2004 Page: 2 See Table below: BUDGET AND COST Construction Bid Amount Contingencies used Final Construction Cost Construction Inspection/Administration Cost (Approx.) Total Project Cost: TOTAL BUDGET AMOUNT (2002-03 CIP): $ 406,027.00 $ 92,488.75 $ 498,515.75 $ 27,000.00 $ 525,515.75 $1,032,000.00 John Gibl~s Director o'f Public Works Approved: Michael A. Wilson City Manager ATTACHMENT: Project Area Location Photo RH/JG/ed Source: State of Californa Department of Transportation Innevative Technical Solutions, Inc. Colma Creek Bank Protection Project South San Francisco/San Bruno Water Quality Control Plant San Mateo County, California N NOT TO SCALE FIGURE 2 Project Area Locations Staff Report AGENDA ITEM #6 DATE: TO: FROM: SUBJECT: February 25, 2004 The Honorable Mayor and City Council John Gibbs, Director of Public Works 2002 - 2003 STREET SLURRY SEAL PROJECT, ENGINEERING FILE NO. 51-13231-0202, PROJECT NO. ST-02-5, BID NO. 2331 RECOMMENDATION: It is recommended that the City Council, by motion, accept the 2002 - 2003 Street Slurry Seal Project as complete in accordance with the plans and specifications. BACKGROUND/DISCUSSION: This project involved the installation of asphalt concrete slurry seal and related pavement striping on the following streets: Item No Street Name Beginning End Treatment 1 Derry Way Gellert Blvd. Gellert Blvd. Slurry Seal 2 Devlin Way Gellert Blvd. Gellert Blvd. Slurry Seal 3 Tara Lane Oakmont Avenue Galway Place Slurry Seal 4 Duval Drive Arlington Drive Arlington Drive Slurry Seal 5 Lamonte Drive Newman Drive Keoncrest Drive Slurry Seal 6 Theresa Drive Romney Avenue Lacrosse Avenue Slurry Seal 7 Zita Drive Romney Avenue Lacrosse Avenue Slurry Seal 8 Delbrook Avenue Crestwood Drive Momingside Avenue Slurry Seal 9 Sequoia Avenue Baywood Avenue Miller Avenue Slurry Seal 10 Aspen Avenue Maple Avenue Cypress Avenue Slurry Seal 11 Pine Avenue Maple Avenue Airport Blvd. Slurry Seal 12 Lux Avenue Maple Avenue Spruce Avenue Slurry Seal 13 Grand Avenue Airport Boulevard Maple Avenue Slurry Seal 14 Grand Avenue Maple Avenue Spruce Avenue Slurry Seal 15 Hill Avenue Fairway Drive Southwood Drive Slurry Seal Staft Report To: Re: Date: The Honorable Mayor and City Council 2002 - 2003 Street Slurry Seal Project Project No. ST-02-5, Bid No. 2331 February 25, 2004 Page: 2 of 3 Item No Street Name Beginning End Treatment 16 Haven Avenue Fairway Drive End Slurry Seal 17 Bryce Avenue Haven Avenue End Slurry Seal 18 Lassen Street Ponderosa Road Bryce Avenue Slurry Seal 19 Wildwood Drive Rosewood Drive Briarwood Drive Slurry Seal 20 Springwood Drive Wildwood Drive Rockwood Drive Slurry Seal 21 Sherwood Drive Wildwood Drive Rockwood Drive Slurry Seal 22 Mosswood Drive Brentwood Drive End Slurry Seal 23 RavenwoodWay Rockwood Drive End Slurry Seal 24 Pine Terrace Lux Avenue Maple Avenue Slurry Seal After consultation with the Public Works Maintenance Division and the favorable bid received by the City, staff added the following streets to the contract: Item No Street Name Beginning End Treatment 25 Lux Avenue Spruce Avenue Cypress Avenue Slurry Seal 17 Wexford Avenue Shannon Drive Gellert Blvd. Slurry Seal 18 Huntington Avenue South Spruce Ave City Limits Slurry Seal The project has been inspected by City staff and completed in accordance with the plans and specifications. The project has a one-year warranty period, which takes effect upon acceptance by the City Council. Staff will file a Notice of Completion and release the payment performance bond and retention at the end of the thirty-day lien period. FUNDING: The following is the actual construction cost breakdown: Original Contract Add Change Orders for additional streets and additional striping $ 94,133.21 $ 23,447.15 Actual Construction Cost $117,580.36 Staff Report To: Re: Date: The Honorable Mayor and City Council 2002 - 2003 Street Slurry Seal Project Project No. ST-02-5, Bid No. 2331 February 25, 2004 Page: 3 of 3 Total funding for this project is $131,384.00 and is reflected in the City of South San Francisco's Capital Improvement Program 2002-03 (CIP/51-13231-0202). Sufficient funds are available for this project. John Gib~s Director of Public Works Approved: Michael A. Wilson City Manager RD/JG/ed StaffReport AGENDA ITEM #7 DATE: TO: FROM: SUBJECT: February 25, 2004 The Honorable Mayor and City Council John Gibbs, Director of Public Works WESTBOROUGH BOULEVARD RESURFACING PROJECT, FEDERAL PROJECT NO. STPL-5177(016) - ENGINEERING FILE NO. 51-13231-0202, PROJECT NO. ST-03-2, BID NO. 2336 RECOMMENDATION: It is recommended that the City Council, by motion, accept the Westborough Boulevard Resurfacing Project as complete in accordance with the plans and specifications. BACKGROUND/DISCUSSION: This project constructed new asphalt pavement overlay, asphalt base failure repairs, new traffic loop detectors, and all new related striping on Westborough Boulevard (between Junipero Serra Boulevard and Skyline Boulevard). The project has been inspected by City staff and completed in accordance with the plans and specifications. The project has a one-year warranty period that takes effect upon acceptance by the City Council. Staff will file a Notice of Completion and release the payment performance bond and retention at the end of the thirty-day lien period. FUNDING: The following is the actual construction cost breakdown: Original Contract Add Change Orders for new root barriers, pavement grinding & off-hauls, & additional striping Actual Construction Cost $ 571,675.00 $ 13,492.71 $ 585,167.71 Staff Report ro~ Re: Date: The Honorable Mayor and City Council Westborough Boulevard Resurfacing Project February 25, 2004 Page: 2 of 2 The following is the cost breakdown of the project budget: STIP TEA-21 Grant Fund: $ 444,000.00 TDA Article 3 Grant Fund $ 16,250.00 Westborough Water & Sanitary District $ 9,840.00 Gas Tax Fund $ 115,077.71 Total Available $ 585,167.71 After project acceptance, staff will invoice the State Local Assistance Office for the STIP TEA-21 grant fund in the amount of 444,000.00, the State TDA Article 3 grant fund in the amount of $16,250.00, and Westborough Water and Sanitary District in the amount of $9,840.00. Total funding for this project is $657,425.00 and is reflected in the City of South San Francisco's Capital Improvement Program (CIP). Sufficient funds are available for this project. By: ~ Joh Director df Public Works Approved: Michael A. Wilson City Manager ATTACHMENT: Location Map RD/JG/ed WESTi]DRI]UGH ]BDULEVAR[ LDCATII1N MAP i LBCATIflN WESTiBBRBUGH t}nULEVAR]i) StaffXeport AGENDA ITEM #8 DATE: TO: FROM: SUBJECT: February 25, 2004 Honorable Mayor and City Council Mark Raffaelli, Chief of Police AGREEMENTS BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND THE TOWN OF COLMA AND HITECH SYSTEMS RECOMMENDATION It is recommended that City Council approve the attached Resolutions accepting the Agreements with the Town of Colma to renew the agreement for providing part-time police dispatch service to them at a cost of $83,460 and with Hitech Systems, Inc. for software that will enable us to dispatch for the Colma Police Department in the amount of $14,193, BACKGROUND/DISCUS SION Item One We have been providing dispatch service to the Town of Colma for the last twenty years, and this resolution is a renewal of their service agreement with us for the next four years. The annual cost for this upcoming year is $83,460, with a maximum yearly increase of 2.5%. Item Two We are also asking for the acceptance of a resolution accepting an agreement with Hitech Systems, Inc. The Town of Colma has contracted with this company to provide Computer Aided Dispatch (CAD) and a Records Management System (RMS) for their Police Department. In order for us to continue to provide dispatch service for the Town of Colma, we have to install Hitech workstations in our Communications Center. The initial cost is $14,193, with an annual maintenance contract of $1,291. The Town of Colma has agreed to cover half of the yearly maintenance cost, and these figures are reflective of that agreement. The Town of Colma has also agreed to cover all training costs and future upgrades of the system. FUND1NG The fun?g ~project will be absorbed in our existing budget. By: Approved: (departmeM-'~ead signature) Michael A. Wilson City Manager Attachments: Resolutions Agreements RESOLUTION NO. CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND THE TOWN OF COLMA AND HITECH SYSTEMS WHEREAS, the City desires to renew an agreement with the Town of Colma which provides part-time police dispatch services to them at a cost of $83,460 and with Hitech Systems, Inc. for software that will enable the City to dispatch for the Colma Police Department in the amount of $14,193; and WHEREAS, funding for this project will be absorbed in our existing budget. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council approves the renewal of an agreement with the Town of Colma which provides part-time police dispatch services to them at a cost of $83,460 and with Hitech Systems, Inc. for software that will enable the City to dispatch for the Colma Police Department in the amount of $14,193. BE IT, FURTHER RESOLVED that the City Manager is hereby authorized to execute the agreements on behalf of the City of South San Francisco. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a meeting held on the _ day of ,2004 by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: City Clerk S :\Current Reso's\2-25agreement.colma.hitch.sys.res.doc AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND THE TOWN OF COLMA RELATING TO POLICE DISPATCH SERVICES 2003 - 2007 This agreement is entered into between the CITY OF SOUTH SAN FRANCISCO ("SOUTH SAN FRANCISCO"), a municipal corporation, and the TOWN OF COLMA ("COLMA"). A. COLMA desires to use SOUTH SAN FRANCISCO Police Dispatch Services, and SOUTH SAN FRANCISCO is willing to provide the needed service through its Police Dispatch Services. B. COLMA and SOUTH SAN FRANCISCO desire to set forth their agreement regarding the provision of Police Dispatch Services to COLMA and the process under which SOUTH SAN FRANCISCO will receive payment from COLMA for such services. 1. Recitals. AGREEMENT The foregoing recitals are true and correct and are made a part hereof. Provision of Police Department Dispatch Services by SOUTH SAN FRANCISCO. a. SOUTH SAN FRANCISCO will provide Police Dispatch Services identified in paragraph 2(b) and 2(c), herein, for property within COLMA. b. SOUTH SAN FRANCISCO will provide to COLMA basic police dispatch services on a daily basis from 2400 hours to 0800 hours and for two one-hour breaks during the time of 0800 hours to 2400 hours, and provide basic police dispatch services under extenuating emergency situations after all other means of filling the position have been exhausted, and at other times as agreed upon by the Communications Services Manager. Dispatch services will include answering emergency telephone calls, dispatching police units by radio, telephone notification of key personnel, providing record keeping activities associated with police dispatch and participating in a quality control and incident critique. c. SOUTH SAN FRANCISCO will have a High Tech CAD workstation installed in the Communications Center in order to dispatch and track COLMA police units. 3. Payments. a. Maximum Amount. In consideration of SOUTH SAN FRANCISCO's performance of the services described in paragraph 2, the maximum monthly amount that COLMA shall be obligated to pay for the services rendered under this Agreement is $6,955. This contract is valid for fiscal years 2004 - 2007. This amount shall include a yearly adjustment effective January 1 of each year, based upon the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index entitled "Consumers Price Index of All Urban Consumers, San Jose-Oakland-San Francisco Area, 1982-84=100" for the previous year or 2.5%, whichever is lesser. b. Rate of Payment. Any rate increase other than that described in paragraph 3(a) is subject to the approval of COLMA and shall not be binding on COLMA unless so approved in writing. Each payment shall be conditioned on the performance of the services described in paragraph 2 to the reasonable satisfaction of the Police Chief of COLMA or his representative. Said satisfaction shall not be unreasonably withheld. If COLMA intends to deny payment, it shall notify SOUTH SAN FRANCISCO in writing of said intent. Notice shall be provided within ten (10) days from COLMA receiving a request for payment from SOUTH SAN FRANCISCO. COLMA shall make payments on a monthly basis. c. The initial cost of purchasing and installing the High Tech CAD workstation and software licenses shall be the responsibility of SOUTH SAN FRANCISCO. The annual maintenance fee shall be split equally between SOUTH SAN FRANCISCO and COLMA. If any upgrades or replacements to SOUTH SAN FRANCISCO's CAD hardware or software are required to support COLMA's CAD hardware or software, the cost for upgrades or replacement of such hardware and software for SOUTH SAN FRANCISCO and the initial/future training associated with it shall be the responsibility of COLMA. d. Should either party terminate the Agreement, the software rights purchased by SOUTH SAN FRANCISCO shall remain as its property. 4. Records. a. SOUTH SAN FRANCISCO agrees to provide COLMA, any federal or state department having monitoring or review authority or COLMA's authorized representative and/or their appropriate audit agencies upon reasonable notice, access to and the right to examine and audit all records and documents necessary to determine compliance with relevant federal, state and local statutes, rules and regulations, and this Agreement, and to evaluate the quality, appropriateness and timeliness of services performed. b. SOUTH SAN FRANCISCO shall maintain and preserve in its possession all of SOUTH SAN FRANCISCO's records relating to this Agreement, which are not stored at COLMA and shall assure the maintenance of such records in the possession of any third party performing work related to this Agreement for a period of four (4) years from the termination date of this Agreement, or until audit findings are resolved, whichever is later. 5. Compliance with Applicable Laws. All services to be performed by SOUTH SAN FRANCISCO pursuant to this Agreement shall be performed in accordance with all applicable federal, state, county and municipal laws, ordinances, regulations, including but not limited to appropriate licensure and certification regulations, provisions pertaining to confidentiality of records, and applicable quality assurance regulations. 6. Relationship of Parties. It is expressly understood that this is an agreement between two independent contractors and that no agency, employee, partnership, joint venture or other relationship is established by the Agreement. 7. Status of SOUTH SAN FRANCISCO Employees. a. For the purpose of performing the services and functions provided for in this Agreement, SOUTH SAN FRANCISCO shall furnish and supply all necessary personnel, labor, supervision, equipment and supplies necessary to maintain the level of service to be rendered hereunder. Provided, however, that COLMA shall furnish all equipment, supervision and supplies necessary to obtain the services provided hereunder to the extent the items are located within COLMA. SOUTH SAN FRANCISCO shall not be responsible for any loss or damage that occurs as a result of the failure of equipment purchased or maintained by COLMA or the use of said equipment by COLMA employees. b. All persons employed by SOUTH SAN FRANCISCO to perform services and functions pursuant to this Agreement shall be and remain SOUTH SAN FRANCISCO 2 employees. All persons employed by SOUTH SAN FRANCISCO to perform services and functions pursuant to this Agreement shall at all times be under the direction and control of SOUTH SAN FRANCISCO. All persons employed by SOUTH SAN FRANCISCO to perform the services pursuant to this Agreement shall be entitled solely to the rights and privileges given to SOUTH SAN FRANCISCO employees and shall not be entitled, as a result of providing services pursuant to this Agreement, to any additional rights and privileges given to COLMA employees. c. For the purposes of performing the services and functions under this Agreement, and for the purpose of giving official status to the performance thereof where necessary, every SOUTH SAN FRANCISCO officer and employee engaged in the performance of any service hereunder shall be deemed to be an agent of COLMA while performing services for COLMA, which services are within the scope of this Agreement and are purely municipal functions. Notwithstanding the agency relationship created by this subparagraph, COLMA shall not be liable for any act or omission of any SOUTH SAN FRANCISCO officer or employee unless otherwise specifically provided elsewhere in this Agreement. d. COLMA shall not be liable for the direct payment of any salaries, wages or other compensation to any SOUTH SAN FRANCISCO personnel performing services hereunder for SOUTH SAN FRANCISCO or any liability other than that provided for in this Agreement. e. Except as herein otherwise specified, COLMA shall not be liable for compensation or indemnity to any SOUTH SAN FRANCISCO employee for injury or illness or other claims arising out of his or her employment by SOUTH SAN FRANCISCO. 8. Indemnification. a. SOUTH SAN FRANCISCO shall defend, indemnify, protect and hold COLMA and its agents, officers and employees harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property, including injury to SOUTH SAN FRANCISCO's employees, agents or officers which arise from or are connected with or are caused or claimed to be caused by the negligence or willful misconduct of SOUTH SAN FRANCISCO, and its agents, officers or employees, in performing the Agreement or services herein; provided, however, that SOUTH SAN FRANCISCO's duty to indemnify and hold harmless shall not include any claims or liability arising from the misconduct of COLMA, its agents, officers or employees. b. COLMA shall defend, indemnify, protect and hold SOUTH SAN FRANCISCO and its agents, officers and employees harmless from and against any and ail claims asserted or liability established for damages or injuries to any person or property, including injury to COLMA's employees, agents or officers which arise from or are connected with or are caused or claimed to be caused by the negligence or willful misconduct of COLMA, and its agents, officers or employees, in performing the Agreement or services herein; provided, however, that COLMA's duty to indemnify and hold harmless shall not include any claims or liability arising from the misconduct of SOUTH SAN FRANCISCO employees, its agents, officers or employees. c. SOUTH SAN FRANCISCO employees performing services pursuant to this Agreement shall not be COLMA agents for the mutual indemnification purposes of this Agreement. 9. COLMA Powers. It is agreed that in performing the services pursuant to this Agreement, SOUTH SAN FRANCISCO shall have all the powers of COLMA and shall receive all cooperation possible from COLMA to enable efficient enforcement of such rules, regulations, resolutions and/or ordinances of COLMA required to be enforced by SOUTH SAN FRANCISCO pursuant to this Agreement. 10. Additional Documents and A.~reements. The parties agree to cooperate in the execution of any additional documents or agreements that may be required to carry out the terms of this Agreement. 11. Successors. This Agreement shall bind and inure to the benefit of all successors and assigns of the parties and any associates in interest, and their respective directors, officers, agents, servants and employees, and the successors and assigns of each of them, separately and collectively. 12. Construction of A.qreement. This Agreement shall be construed and enforced pursuant to the laws of the State of California. 13. Time of the Essence. In entering into this Agreement, the parties recognize and agree that time is of the essence. 14. Disputes. Except as otherwise provided herein, any dispute regarding the interpretation of this Agreement shall be resolved by a court of competent jurisdiction located in San Mateo County, California. Each party agrees to waive its right to jury trial and submit any dispute for resolution by bench trial. The prevailing party shall be entitled to its reasonable costs and attorneys' fees. 15. Notices. Whenever notice is required hereunder, it shall be given to the parties as follows: To: Police Chief City of South San Francisco 33 Arroyo Drive, Suite "C" South San Francisco, CA 94080 To: Police Chief Town of COLMA 1198 El Camino Real Colma, CA 94014 16. Warranty of Le.qal Authority. Each party warrants and covenants that it has the present legal authority to enter into this Agreement and to do the acts required of it hereunder. If any party is found to lack the authority to do the acts required of it hereunder or is prevented from performing the acts by a court of competent jurisdiction, this Agreement shall be void. 17. Entire A.qreement. This document embodies the entire terms and conditions of the Agreement described herein. This Agreement may be executed in two (2) counterparts, each of which shall constitute an original. 4 18. Effective Date and Term of Aqreement. Subject to compliance with the terms and conditions of this Agreement, the term of the Agreement shall be from March 1,2004 through June 30, 2007. 19. Termination: Upon 180 days written notice, COLMA or SOUTH SAN FRANCISCO may terminate the provision of any or all of the services to be provided hereunder, provided that COLMA shall pay SOUTH SAN FRANCISCO for all costs for services provided up to the date of termination as provided herein. The provisions of paragraph 3 shall survive termination of this Agreement, whether by notice or by automatic expiration. 20. Amendment. This Agreement may only be amended in writing by an amendment signed by both SOUTH SAN FRANCISCO and COLMA. COLMA Dated: Approved as to form: City Manager City Attorney SOUTH SAN FRANCISCO Dated: Approved as to form: City Manager City Attorney 681758 1 Hitech Systems, Inc Non-Exclusive Software License Agreement Master License Agreement Number: 2004021001 This Non-Exclusive Software License Agreement (hereinafter "Agreement") made as of this __. day of __., 2004, is entered h~to by and between Hitech Systems, (hereinafter "Hitech") a Califomia Corporation, and City of South San Francisco, (hereinafter "Customer") at 33 Arroyo Drive, Suite C, South San Francisco, CA 94080. WHEREAS, Customer desires to license from Hitech for non-exclusive and non-transferrable use the software, documentation, manuals, utilities and related items and information (hereinafter collectively referred to as "Program Product") listed in Exhibit A attached hereto and incorporated by reference; and WHEREAS, Hitech desires to license Program Product to Customer for a good and valuable consideration; NOW, THEREFORE, the parties agree that the following terms and conditions will govern the licensing of the Program Product: 1 LICENSE 1.1 Hitech hereby grants to Customer and Customer hereby accepts the non-exclusive non- transfen'able license to use Program Product specified in Exhibit A, attached hereto and incorporated by reference, according to the terms and conditions specified in this Agreement. Customer expressly agrees to and accepts these terms and conditions and agrees to abide by the limitations of this Agreement. 1.2 Customer represents that Workstations on which the Program Product is installed shall remain located at the following address (hereinafter "Location"): Location: Customer agrees to notify Hitech in writing in the event that Location is changed. Notice shall be made as soon as possible but at least ten (10) business days prior to the date on which the change of Location is expected to occur. Notice shall be provided in the manner specified in paragraph 10.1 of this agreement. 1.3 Customer acknowledges and agrees that it is a licensee of Hitech and that the license shall be non-exclusive and non-transferrable. All rights, title and ownership, including intellectual property rights, shall remain with Hitech. Customer acknowledges that Program Product contains valuable trade secret information proprietary to Hitech and that all rights thereto shall remain with Hitech 1.4 Source Code. No license to source code is provided, expressly or otherwise, by this license except as provided for in Paragraph 1.7. Customer has no rights to any and all human- readable programs, data, know-how, techniques, methods, programming practices, structures, utilities, and other materials and information which are used to create or are essential to the creation of the executable versions of Program Product. Customer recognizes and ac'knowledges that source code represents a valuable trade secret of Hitech and is a copyrighted work of Hitech. Customer fm'ther represents and acknowledges that all Rev. 2004-02-04 - Page 1 of 9 2 1.5 1.6 Non-Exclusive Software License Agreement methods, lmow-how, programming practices, structures, techniques and other information, procedures or methodologies embodied in source code are proprietary to and represent valuable trade secrets of Hitech. Should Hitech for any reason become insolvent, cease to exist, or for any reason be unable to perform necessary maintenance of the Program Product, Hitech shall provide that the source code to Program Product be made immediately available to Customer by transmitting a copy of all source code for the Program Product as installed on Customer's system(s) to Customer. In this event, Hitech grants Customer a limited license to source code for the sole purpose of maintaining Customer's systems(s). Derivative Works. Derivative works shall include, but shall not be limited to: features; bug fixes; workarounds; new or additional functionality, systems, modules or programs; interface programs; utilities; documentation; methods; procedures; etc., that are for use with Program Product provided to Customer as part of this License Agreement. 1.6.1 In the event that derivative works are developed by Customer, Customer acknowledges and agrees that all derivative works shall be the exclusive property of Hitech. Customer shall have no rights in derivative works save that Customer shall be granted a perpetual non-transferrable non-exclusive license to use for its own benefit said derivative works subject to the terms and conditions of this Agreement. 1.6.2 Customer shall notify Hitech immediately upon commencement of development of any derivative work. Customer shall provide Hitech with source code, technical assistance, documentation and all other materials related to said derivative works. 1.6.3 Hitech makes no representation or warranty that future versions o fProgram Product shall be consistent with or compatible with derivative works developed by Customer. LICENSE FEE 2.1 In consideration of the rights granted to Customer pursuant to this Agreement, Customer shall pay Hitech a License Fee (hereinafter "Fee") specified for each product in Exhibit A. 2.2 Payment Terms. Payment of Fee is due upon receipt of invoice, unless other arrangements are agreed to in writing by the parties hereto. In the event that payment is not received within thirty (30) days, interest on the outstanding amount shall accrue at the rate of 1.5% per month. CUSTOMER'S REPRESENTATIONS AND WARRANTIES 3.1 Customer represents and warrants that it will not modify or permit anyone else to modify the Program Product without Hitech's prior written consent. 3.2 Customer shall give Hitech notice as to any defects in the Program Product within thirty (30) days of receipt of the Program Product. Rev. 2004-02-04 - Page 2 of 9 Non-Exclusive Software License Agreement 3.3 Customer shall establish a mailing address to which Hitech may send all correspondence and materials. Unless otherwise notified in writing, Hitech may assume that such mailing address is that address specified on page 1 of this Agreement. UNAUTHORIZED USE 4.1 Customer agrees to notify Hitech, within twenty-four (24) hours of the discovery of unauthorized use, of the circumstances surrounding any unauthorized possession, use or knowledge of the whole or any part of the Program Product or physical embodiment thereof, or other information made available pursuant to this license, by anyone other than persons authorized by this license to have such possession, use or knowledge. 4.2 The Program Product is serialized. Each copy of the Program Product is identified by a serial number and the Customer's name, which will appear when the Program Product is run. In the event it is discovered that unauthorized use of the Customer's copy has been made, Customer agrees to pay liquidated damages to Hitech in an amount equal to the then current license fee for Program Product for each separate CPU on which the unauthorized use has been made. WARRANTIES AND LIABILITIES. The following warranties are in lieu of all other warranties, express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. 5.1 Hitech warrants that the ProgramProduct, when properly installed and used, will be in good working order and reasonably conform to current specifications as published in the then-current manual that describes the facilities of the Program Product. Hitech shall only be obligated to correct a defect in the Program Product if given reasonable notice within 30 days after the date of receipt of the Program Product by customer. Should Hitech be unable to correct a defect then Hitech's sole obligation shall be to refund any license fees paid by Customer upon return of the Program Product and related materials to Hitech. Hitech's sole liability for the failure of the Program Product is to make all necessary corrections in accordance with current specifications. Hitech makes no warranty that the operation of the Program Product will be uninterrupted or error free. Program Product is not warranted for incompatible environments. 5.2 Magnetic Media and Documentation. Hitech warrants that if the magnetic media or documentation is in a damaged or physically defective condition at the time that the license is purchased and if they are returned (postage prepaid) to Hitech within thirty (30) days of purchase, Hitech will provide the licensee with replacements at no charge. 5.3 Hitech warrants that if a Program Product fails to substantially conforrn to the specifications in the documentation and if the nonconformity is reported to Hitech in writing within thirty (30) days from the date that the license is purchased, then Hitech will, at its sole discretion, remedy the nonconformity or offer to refund the License Fee to the licensee upon return of all copies of the software and documentation to Hitech. In the event of a refund, the licensee's right to use the software shall automatically expire. 5.4 Modification to the Program Product or any pm~ thereof by Customer without Hitech's written consent shall void any and all warranties contained herein. Rev. 2004-02-04 - Page 3 of 9 Non-Exclusive Software License Agreement 5.5 DISCLAIMER. HITECH MAKES NO WARRANTY, REPRESENTATION OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. H1TECH DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. H1TECH DOES NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION WILL SATISFY PARTICULAR REQUIREMENTS OR THAT THE SOFTWARE AND DOCUMENTATION ARE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION OF PROGRAM PRODUCT WILL BE UNINTERRUPTED. HITECH SHALL IN NO WAY BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES EVEN IF HITECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUES AND LOSS OF PROFITS. CUSTOMER AGREES THAT HITECH'S OBLIGATIONS AND WARRANTIES SHALL BE LIMITED TO THOSE EXPRESSED ABOVE. HITECH ASSUMES NO RESPONSIBILITY FOR THE REPAIR OR REPLACEMENT OF DATA WHICH MAY BE DAMAGED OR LOST THROUGH THE FAILUI~ OF PROGRAM PRODUCT. 5.6 Hitech's aggregate liability arising from or relating to this Agreement is limited to the total of all payments made by the licensee for the license. Hitech's liability hereunder for damages, including but not limited to, liability for patent or copyright infringements, regardless of the form of action, shall not exceed the fees paid by Customer to Hitech. No action, regardless of form, arising out of the transaction under this Agreement, may be brought by Customer more than one (1) year after the cause of action has occurred. PROPRIETARY INFORMATION AND NON-DISCLOSURE 6.1 Customer agrees not to remove any product identification or notices of any proprietary restrictions from the Program Product or accompanying materials. Hitech has exclusive ownership of the Program Product, derivative works, patents, copyright, trademarks, trade secrets and proprietary information. Customer acknowledges that all such items are confidential and trade secret information belonging solely to Hitech. Customer shall keep all such items strictly confidential and shall not use such items except pursuant to this Agreement. After termination of this Agreement, Customer shall not utilize or disclose such items. 6.2 Customer agrees to reproduce Hitech's copyright notice on copies of Program Product and on all copies of materials relating to Program Product. 6.3 Customer shall ensure that Program Product, or any portion thereof, whether residing on magnetic media or in any other form, are not distributed or otherwise made available by Customer or agents or employees of Customer to individuals or organizations not specifically authorized to make use of Program Product by this License Agreement. 6.4 Customer shall instruct its employees and agents having access to Program Product not to copy or otherwise duplicate or attempt to duplicate ProgramProduct. Customer shall instruct employees and agents as to the proprietary and trade secret nature of Program Product. 6.5 Customer shall ensure that reasonable security measures are in place to safeguard Program Product from access by unauthorized personnel and from theft. Rev. 2004-02-04 - Page 4 of 9 6.6 Non-Exclusive Software License Agreement Customer recognizes the proprietary nature of Program Product, and shall not, for the duration of this Agreement or at any time thereafter, perform any of the following acts: 6.6.1 Make any unauthorized copies or duplicates or permit anyone else to copy or duplicate any physical embodiments of the Program Product; 6.6.2 Create or recreate, or attempt to create or to recreate, or permit anyone else to create or recreate, or attempt to create or to recreate, the source programs, object programs or any other aspect of the Program Product; 6.6.3 Use program product at Location or on System not specifically designated in this Agreement; 6.6.4 Use Program Product in any manner inconsistent with this Agreement. 6.7 Upon termination of this Agreement and thereafter, Customer shall not utilize or divulge any confidential information or trade secrets provided by Hitech. 6.8 Customer recognizes and acknowledges that failure on the part of Customer to protect Program Product can cause irreparable harm to Hitech and that Customer shall be liable for damages to Hitech in an amount not to exceed one hundred thousand dollars ($100,000) which result from Customer's failure to protect Program Product. Customer agrees that because of the special nature of Program Product, monetary damages will be inadequate to compensate for such irreparable harm caused by Customer's breach of this Agreement and that injunctive relief will be an appropriate remedy to enforce the provisions of this Agreement. In the event that damages due to Hitech resulting from Customer's failure to protect source code must be adjudicated in a court of law, the prevailing party shall be entitled to reasonable Attorney's fees and other costs and expenses incurred in resolving such dispute. 6.9 Customer's obligations under this paragraph 6 shall survive and continue beyond the term of this Agreement. TERM 7.1 This Agreement shall become effective upon the execution hereof by Customer and Hitech and shall remain in full force and effect until terminated pursuant to the applicable paragraph(s) of this Agreement. TERMINATION 8.1 Hitech shall give Customer thirty (30) days written notice of its intent to terminate this Agreement. Customer aclmowledges and agrees that Hitech shall be entitled to give such notice and terminate this Agreement with cause, as defined herein. Upon termination of this Agreement by Hitech, Hitech shall have no obligation to refund fees previously paid by Customer and Customer shall be liable for all fees then due to Hitech. Rev. 2004-02-04 - Page 5 of 9 8.2 8.3 Non-Exclusive Software License Agreement Hitech shall have the right to terminate this Agreement by written notice to Customer in the event that Customer shall file, or have filed against it, a petition to declare it insolvent or bamkrupt, or file a petition for reorganization under the provisions of Federal bankruptcy law, or make an assignment or other arrangement for the benefit of its creditors; have all or any substantial portion of its capital stock or assets expropriated by any government, be dissolved or liquidated; be a party to a merger, consolidation or other corporate reorganization in which it is not the survivor; have a majority of its stock acquired by another party; or have all or substantially all of its assets acquired by another party. IfHitech terminates this Agreement for any of the above reasons, Customer shall not be entitled to any refund of the Fee. In the event of breach of any provision of this Agreement by either party, the non-breaching party shall provide breaching party with a thirty (30) day written notice of its intent to terminate this Agreement for breach. Both parties agree that the thirty (30) day notification period shall be used by both parties for the purposes of seeking a mutually satisfactory solution to the dispute precipitating the breach. In the event that the parties are unable to resolve this dispute within the thirty (30) day notification period, the non-breaching party shall have the right to immediately terminate this Agreement. In the event of termination by Hitech due to breach on the part of Customer, Customer shall not be entitled to any refund of the Fee. 8.4 Upon termination of this Agreement, Customer shall immediately cease using the Program Product. Within thirty (30) days of termination of this Agreement, Customer shall deliver to Hitech all materials furnished by Hitech and shall destroy all copies and render unusable all information placed in any storage facility. Customer shall also warrant in writing that all materials and copies have been returned or destroyed, that all use of the Program Product or any portion thereof has been discontinued, and that the provisions of this Agreement relating to proprietary information and non-disclosure shall remain in full force and effect. 8.5 Customer shall make immediate payment in full to Hitech for all amounts due and owing as of the date of termination. DEFAULT 9.1 If Customer defaults with regard to any provision concerning proprietary information and non-disclosure referred to in Paragraph 6 above, or in the payment of any sum of monies due, or in the performance of any other of its obligations under this Agreement, Hitech may at its option, tmminate this Agreement with written notice to Customer. Hitech may pursue any legal and equitable remedies which may be available to it. Upon termination of this Agreement by Hitech pursuant to this subparagraph, Hitech shall have no obligation to return fees previously paid by Customer and Customer shall remain liable for all fees then due Hitech. 9.2 Customer's failure to pay the Fee provided for in Exhibit A shall constitute a default pursuant to the terms of this Agreement. Rev. 2004-02-04 - Page 6 0£9 10 Non-Exclusive Software License Agreement 9.3 In the event of the breach of this Agreement by Customer, Hitech shall have, in addition to all other rights and remedies at law or in equity, the right and remedy to have the provisions of this Agreement specifically enforced or enjoined, as the case may be, by any court having equity jurisdiction--it being acknowledged by Customer and Hitech that any such breach will cause irreparable injury and that money damages alone will not provide an adequate remedy. MISCELLANEOUS PROVISIONS 10.1 Notices: Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be deemed to be properly given when deposited in the United States mail, postage prepaid or when deposited with a public telegraph company for transmittal, charges prepaid. Notice to Customer or Hitech shall be addressed to the appropriate address on the first page of this Agreement. Any of the parties may change their address by notice given to the other of the parties hereto in the manner set forth above. Notices given as herein provided shall be considered to have been given five (5) days after the mailing thereof. 10.2 Interpretation: The validity, construction and performance of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. In construing this Agreement, none of the parties hereto shall have any term or provision construed against such party solely by reason of such party having drafted the same. 10.3 Assignment: The rights and obligations of Customer under this Agreement shall not be assigned without the prior written consent of Hitech. For purposes of this clause, the sale of more than 50% of the voting capital stock of Customer and the sale by Customer of all or substantially all of its assets, or the merger or consolidation of Customer with any other entity whereby the currently controlling interests of the Customer are not in control of the surviving entity shall be deemed to be an assignment. Customer is not entitled to license the use of the Program Product nor may Customer authorize any other individual or entity to license the use of the Program Product. 10.4 Entire Agreement: This instrument contains all of the agreements, understandings, representations, conditions, warranties, and covenants made between the parties hereto. Unless set forth herein, neither party shall be liable for any representations made whether orally or in writing, and all modifications and amendments made hereto must be in writing and executed by both parties. 10.5 Severability: In the event that any provision herein is determined to be illegal or unenforceable, such determination shall not affect the validity or enforceability of the remaining provisions hereof, all of which shall remain in full force and effect. 10.6 Taxes: Customer shall be liable for all federal, state, municipal or other govern_mental taxes, duties charges or costs, however designated, now or hereinafter imposed, upon the storage, licensing, transportation, distribution or use of the Program Product including, but not limited to any sales or use tax, privilege or excise tax, exclusive, however, of taxes based upon net income. Rev. 2004-02-04 - Page 7 of 9 11 Non-Exclusive Software License Agreement 10.7 Waiver: Hitech's failure to exercise any right under this Agreement shall not constitute a waiver of any other term or condition of this Agreement with respect to any other or subsequent breach, nor a waiver by Hitech of its right at any time thereafter to require exact and strict compliance with the terms of this Agreement. The rights or remedies set forth in this Agreement are in addition to any other rights or remedies which may be granted by law. 10.8 Survival: Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the terms or expiration of this Agreement and be binding on the parties. 10.9 Limited Disclosure: Customer agrees that it will not actively circulate or distribute copies of this Agreement except as needed by Customer in the conduct of normal operations. Hitech understands that this Agreement shall become a public document and shall be subject to access and disclosure consistent with applicable Federal, State or local statutes. 10.10 Effective Date: This Agreement shall become effective as of the date set forth on Page One of this Agreement upon being signed by Customer and Hitech. ATTESTATION. By the siglaatures below, the parties accept and agree to the terms of this License Agreement. City of South San Francisco Hitech Systems, Inc. Signature Date Signature Date Mark Rafaelli Printed Name Henry Unger Printed Name Chief of Police Title President Title Rev. 2004-02-04- Page 8 of 9 Non-Exclusive Software License Agreement Exhibit A Program Product 1 2 3 3 Product Description SaftetyNet CAD Client SafetyNet CAD Client (Backup) SafetyNet Windows Client IBM PI/Open quad Unit Price License Fee $10,000 $8,000 10,000 2,000 110 264 890 $2,136 Rev. 2004-02-04 - Page 9 of 9 Hitech Systems, Inc. Software Maintenance and Support Services Agreement Master License Agreement Number: 2004021001 THIS AGREEMENT made this ~ day of ,2004 by and between Hitech Systems, Inc., a California Corporation, (hereinafter "Hitech") and City of South San Francisco, (hereinafter "Customer") at 33 Arroyo Drive, Suite C, South San Francisco, CA 94080. WHEREAS, Hitech is making available software maintenance and support services for certain of Customer's software; and WHEREAS, Customer has license to use said software on a perpetual basis; and WHEREAS, Customer has selected Hitech to provide such software maintenance and support services; NOW, THEREFORE, it is hereby agreed as follows: 1 COVERED SOFTWARE Hitech provides maintenance services under this Agreement for such software as described in Exhibit A. Hitech will only maintain such software pursuant to this Agreement for which Customer is duly licensed (hereinafter "Covered Software"). In the event that additional software listed in Exhibit A is licensed for use by Customer, such software will be included in the Covered Software upon payment of the appropriate prorated maintenance fee listed in Exhibit B. Covered Software must not have been modified by anyone other than Hitech without prior written permission from Hitech. 2 DESCRIPTION OF SERVICES 2.1 Customer may contact Hitech twenty-four (24) hours a day, seven (7) days a week for software support service. Customer may contact Hitech via telephone to Hitech's office during normal business hours (9:00 am to 6:00 pm Pacific Time, Monday through Friday) or through a paging service outside of office hours or on holidays, or when the office is otherwise unattended. Hitech will respond to such requests as soon as practical, within two (2) hours during normal business hours or within four (4) hours outside of normal business hours or on holidays. Holidays include New Year's Day, Martin Luther King Jr. Day, President's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, Day after Thanksgiving, and Christmas. 2.2 Hitech will investigate and remedy, without additional cost to Customer, except as described below, all program errors or documentation errors reported by Customer regarding the Covered Software. An error is defined as the behavior of the Covered Software at variance with the documented functionality and operation of the Covered Software. Rev 2004-02-10 - Page 1 of 14 Software Maintenance And Support Services Agreement 2.3 Hitech will periodically publish and distribute to Customer a notice (hereinafter "Notice") of the enhancements, modifications, and corrections (collectively referred to as "Enhancements") that have been made to the Covered Software by Hitech. Hitech will, upon written request, make available one machine-readable copy of these Enhancements, and one copy of the supporting documentation (hereinafter "Release"). The Release will be provided to Customer "as is", for installation and use by Customer. 2.4 Hitech will provide assistance for procedural questions relating to the Covered Software. Such assistance will be limited to two hours per month. Any such assistance in excess of two hours per month will be billed to Customer at Hitech's billing rates for such services. 2.5 Hitech will be reimbursed by Customer for all reasonable non-labor expenses relating to services rendered, including but not limited to, air fare (coach when available), meals not to exceed federal per diem, lodging, local transportation and telephone charges. Customer has the right of first refusal in engaging or selecting travel-related services to be prepaid by Customer. 2.6 Hitech will be available to assist Customer on a time and materials basis at Hitech's then-current billing rates for any additional Customer-requested enhancements, modifications, or customized work relating to the Covered Software (hereinafter "Additional Services"), including: · Analysis · Project Management · System Design · Technical Reviews · Programming · Training · Testing · Documentation · Implementation Support 2.7 Hitech will be available to provide Customer with assistance to correct damage caused to Customer's system by Customer's operator error or negligence. Such determination will be mutually agreed to by the parties. 2.8 Hitech will provide Customer with a cost estimate for approval before the commencement of effort relating to the Additional Services. 2.9 The following services provided to Customer will be billed to Customer on a time and materials basis: · Functional enhancements to the Covered Software. · Diagnosis and correction of hardware errors. · Diagnosis and repair of Covered Software modified by anyone other than Hiteeh. · Diagnosis, repair or correction of software other than the Covered Software, including, but not limited to, operating system software and other third party software. · Hardware installation. · Software installation. · Training, except procedural questions as described above. Rev 2004-02-10 - Page 2 of 14 2.10 Software Maintenance And Support Services Agreement In the event that Hitech determines that a reported problem is the result of user error, hardware error, operating system software error, or software error caused by other than the Covered Software, Customer will reimburse Hitech for its efforts expended relating to the reported problem to the extent that such efforts exceed the two hours per month limit for procedural questions as described above. 3 TERMS AND CONDITIONS 3.1 The Annual Maintenance Fee for Covered Software is based on the Maintenance Price List for such services, the current schedule for which is shown in Exhibit B. Customer agrees to pay Hitech the appropriate annual fee based on this price list for the number and type of users of the Covered Software. Based on information supplied by Customer, and that Customer warrants to be complete and correct, Hitech has calculated the Annual Maintenance Fee for the Covered Software on Customer's Systems to be that as shown in Exhibit C. The initial period of coverage for this Agreement is for the twelve (12) months commencing (hereinafter "Commencement Date"), for which Customer agrees to pay to Hitech the Annual Maintenance Fee as shown in Exhibit C within thirty (30) days of either Commencement Date or the date of this Agreement, whichever is later. This Agreement may be renewed by Customer from year to year by payment in advance of each anniversary of the Commencement Date for the succeeding year. Hitech reserves the right to increase the annual maintenance fees each year and will provide written notice to Customer no less than sixty (60) days prior to the end of the annual period of its intention to do so. Any increase in the number of users of the Covered Software will result in an increase in the amount of the Annual Maintenance Fee. No credit or refund will be given Customer for any decrease in the number of users of the Covered Software for an annual period. In the event of an increase in the number of users of the Covered Software, Customer will remit to Hitech the prorated increase in the Annual Maintenance Fee for the annual period within thirty (30) days of such an increase. 3.2 Hitech hereby grants Customer during the term of this Agreement the non-exclusive and non- transferrable license to use any Release(s) provided to Customer subject to the terms and conditions of the Master License Agreement referenced on the first page of this Software Maintenance and Support Services Agreement. 3.3 Any Release(s) provided by Hitech shall only be installed at the designated location and on the designated CPU(s) specified in the Master License Agreement referenced on the fh:st page of this Software Maintenance and Support Services Agreement. 3.4 Customer represents and warrants that it will not modify or permit anyone else to modify a Release or the Covered Software without the written consent of Hitech. 3.5 Customer agrees to notify Hitech promptly of the circumstances surrounding any unauthorized possession, use, or knowledge of the whole or any part of the Covered Software, a Release, or physical embodiment thereof, or other information made available pursuant to this license, by anyone other than persons authorized by this license to have such possession, use, or knowledge. 3.6 The Covered Software is serialized. Each copy of the Covered Software is identified by serial number and the Customer's name, which will appear when the Covered Software is run. In the Rev 2004-02-10 - Page 3 of 14 Software Maintenance And Support Services Agreement event that it is discovered that unauthorized use of the Customer's copy has been made, Customer agrees to pay to Hitech liquidated damages in an amount equal to the then current license fee for the Covered Software for each separate CPU on which the unauthorized use has been made. 3.7 Customer shall provide an IP connection between Customer's network and Hitech, preferably at a speed of 1,500,000 bits per second or more, but no less than 250,000 bits per second. This shall be provided via a 3DES encrypted VPN connection over the Internet to a Cisco 1OS router managed by Customer with a route to Customer's network As a backup, to be used in the event of failure of the facilities described above, Customer shall provide a PSTN dial-up connection to the Customer's network via ISDN BRI using a Cisco IOS router, or via POTS and a CCITT V.34+ (33,600 bps) compatible modem connected to a Cisco IOS router. Customer shall also provide a CCITT V.34+ (33,600 bps) compatible modem connected directly to each server, which shall either be installed within the server or connected to the server via EIA-232 serial port. These facilities shall be provided by Customer at Customer's expense. Customer agrees to provide phone numbers, login ids, passwords, and access codes to each employee of Hitech requiring access to Customer's system upon request. Customer shall provide to Hitech a list of the host names and IP addresses of the servers and workstations on which Products have been installed and for which Maintenance and Support Services are to be provided. Customer further agrees to provide access to programs and files on Customer's system necessary for the performance of the services described herein. 4 PROPRIETARY INFORMATION 4.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto, related parties in interest, their respective successors and, to the extent permissible in any assignment hereunder, assignees. Customer agrees not to make or to permit any loan, lease sale, assignment or other disposal of this Agreement without the prior written consent of Hitech. It is agreed that any such loan, lease, sale, assignment or other such disposal made without the prior written consent of Hitech shall be null and void. 4.2 Customer agrees not to remove any product identification or notices of any proprietary restrictions from the Covered Software, Release(s) or accompanying materials. Hitech has exclusive ownership of portions of the Covered Software, Release(s), patents, copyright, trademarks, trade secrets and proprietary information; and Customer acknowledges that all such is confidential information belonging solely to Hitech. Customer agrees to keep all such items strictly confidential and shall not use such items except pursuant to this Agreement. After termination of this Agreement, Customer shall not utilize or disclose such items. Hitech agrees that it has no right to or interest in the data processed by Customer while using the Covered Software. 4.3 Customer shall not, for the duration of this Agreement or at any time thereafter: 4.3.1 Make any unauthorized copies or duplicate or permit anyone else to copy or duplicate any physical embodiments of the Covered Software or any Release(s), except as required for backup purposes. 4.3.2 Create or recreate, or attempt to create or to recreate, or permit anyone else to create or Rev 2004-02-10 - Page 4 of 14 Software Maintenance And Support Services Agreement attempt to recreate, the source programs, object programs or any other aspect of the Covered Software and any Release(s). 4.4 After termination of this Agreement, Customer shall not utilize or divulge any confidential information or trade secrets provided by Hitech. Customer's obligation under this Paragraph shall continue beyond the termination of this Agreement. 5 TERMINATION This Agreement may be terminated due to the impossibility of performance caused by acts of God, floods, fires, storms, strikes, lockouts, disputes with employees, riot, insurrection, acts of public enemy, war, federal, state, county, municipal, and local restrictions, prohibitions, regulations, and requisitions, or other interferences beyond the control of the parties to the extent that the same prevent or delay the performance of the obligations herein contained. This Agreement may be terminated by either party in the event of breach by the other party by written notice in accordance with section 12 below. In the event of termination due to breach, the non-breaching party shall be entitled to all other remedies available at law, and the election to terminate shall not constitute a waiver of any other rights the non-breaching party may have. This Agreement may be terminated by either party without cause upon thirty days written notice in accordance with section 12 below. In the event Customer chooses to terminate this Agreement without cause, Customer shall not be entitled to a refund or credit of any of the maintenance fees previously paid or owing to Hitech. In the event of termination by Hitech without cause, or by Customer for breach, Customer shall be entitled to a pro rata refund of the annual maintenance fee effective the first of the month following the thirty days written notice. 6 COMPLIANCE WITH LAWS This Agreement shall be governed by the laws of the State of California. If any term or provision of this Agreement shall be found to be illegal or unenforceable then, not withstanding, this Agreement shall remain in full force and effect and such term or provision shall be deemed stricken. 7 ATTORNEY'S FEES In the event of any dispute with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and other costs and expenses incurred in resolving such dispute. Any attorneys' fees or collection expenses incurred by Hitech in order to effect collection of any payment due pursuant to the terms of this Agreement shall be paid by Customer. TAXES Customer shall be liable for all federal, state, municipal or other governmental taxes, duties, charges or costs, however designated, now or hereinafter imposed, upon the storage, licensing, transportation, distribution or use of the Covered Software including, but not limited to any sales or use tax, privilege or excise tax, exclusive, however, of taxes based upon net income. SURViVAL Rev 2004-02-10 - Page 5 of 14 Software Maintenance And Support Services Agreement Any provision °fthis Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the terms or expiration of this Agreement and be binding on the parties. 10 PROPRIETARY RIGHTS All Enhancements provided to Customer under this Agreement shall become and remain the property of Hitech. 11 CONTRACT MODIFICATION The terms, scope, and conditions of this contract may be modified only by a formal, written modification signed by duly authorized representatives of both Customer and Hitech. 12 NOTICES All correspondence pertaining to the content of this Agreement will be made via certified mail to the person and address below: To Customer: To Hitech: Mark Rafaelli Chief of Police City of South San Francisco Municipal Services Building 33 Arroyo Drive, Suite C South San Francisco, CA 94080 Henry P. Unger President Hitech Systems, Inc. 1925 Century Park East, Suite 1650 Los Angeles, California 90067 13 AUTHORITY 14 Each individual signing this Agreement on behalf of any corporation or other legal entity represents and warrants that he has the right, power, legal capacity, and authority to enter into and perform this Agreement and no further approval or consent of any persons or entities is necessary for him to enter into and perform this Agreement. WAIVER In the event either party elects not to exercise any of its rights hereunder, such election shall not constitute a waiver of that party's rights at that time or at any time in the future, and that party shall be entitled to exercise all ri~ts it has hereunder at any time. 15 RATIFICATION Acts taken in conformity with this Agreement prior to its execution are hereby ratified and affirmed. Rev 2004-02-10 -Page 6 of 14 Software Maintenance And Support Services Agreement i6 ATTESTATION. 13I wITNEsS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officials on the date first written above. City of South San Francisco Hitech Systems, Inc. Signature Date Signature Date Mark Raffaelli Printed Name Henry. P. Unger Printed Name Chief of Police President Title Title Rev 2004-02-10 - Page 7 of 14 Software Maintenance And Support Services Agreement Exhibit A Covered Software 1. SafetyNet CAD Client 2. SafetyNet CAD Client (Backup) 3. SafetyNet Windows Client 4. IBM PI/Open quad Rev 2004-02-10 -Page 8 of 14 Software Maintenance And Support Services Agreement Exhibit B Maintenance Price List SafetyNet CAD Software SafetyNet CAD Server SafetyNet CAD Client Product Maintenance Price $8,335 1,650 SafetyNet CAD E911 Interface Server SafetyNet CAD E911 Interface Client SafetyNet CAD E911 Interface Voice Recorder Option - Server SafetyNet CAD E911 Interface Voice Recorder Option - Channels 1,350 135 1,350 15 SafetyNet CAD Message Switch Interface Server SafetyNet CAD Message Switch Interface Client 2,700 135 SafetyNet CAD Zetron Model 25 Tone Encoder Interface Server SafetyNet CAD Zetron Model 25 Tone Encoder Interface Client 1,350 135 SafetyNet CAD Zetron Model 26 Station Status Interface Server SafetyNet CAD Zetron Model 26 Station Status Interface Client 1,350 135 SafetyNet CAD Westnet® First-ha Interface Server SafetyNet CAD Westnet® First-ha Fire Station Alerting System Interface Client 1,350 135 SafetyNet CAD Alphanumeric Paging Interface Server SafetyNet CAD Alphanumeric Paging Interface Client 1,350 135 Rev 2004-02-10 - Page 9 of 14 Software Maintenance And Support Services Agreement Product SafetyNet CAD Radio Interface Server SafetyNet CAD Radio Interface Cliem Maintenance Price 1,350 135 SafetyNet CAD Mapping Interface Server SafetyNet CAD Mapping Interface Client* *Requires third party mapping engine option. 1,350 I35, SafetyNet CAD AVL Interface Server SafetyNet CAD AVL Interface Client 825 15 SafetyNet CAD Drivetime Interface Server SafetyNet CAD Drivetime Interface Client* *Requires third party drivetime engine option. 60O 6O SafetyNet CAD Priority Dispatch ProQATM Interface Server SafetyNet CAD Priority Dispatch ProQATM Interface Cliem 1,350 135 SafetyNet CAD Aether FireRMSTM Interface 1,650 SafetyNet Mobile Software SafetyNet Mobile Server SafetyNet Mobile Client SafetyNet Mobile PDA Client 4,950 105 9O Rev 2004-02-10 - Page 10 of 14 Software Maintenance And Support Services Agreement Product SafetyNet Mobile Mapping Interface Server SafetyNet Mobile Mapping Interface Client* SafetyNet Mobile Mapping Interface PDA Client* *Requires third party mapping engine option. Maintenance Price 675 60 60 SafetyNet Mobile Citation Server SafetyNet Mobile Citation Client SafetyNet Mobile Citation PDA Client 825 15 15 SafetyNet Mobile AVL Interface Server SafetyNet Mobile AVL Interface Client SafetyNet Mobile AVL Interface PDA Client 825 15 15 SafetyNet Mobile Drivetime Interface Server SafetyNet Mobile Drivetime Interface Client* SafetyNet Mobile Drivetime Interface PDA Client* *Requires third party drivetime engine option. 6OO 10 I0 SafetyNet eReporting Server SafetyNet eReporting Client* *Requires third party Adobe eforms client. 1,650 85 SafetyNet RMS Software SafetyNet P,2~IS Server SafetyNet RMS Client 6,750 825 SafetyNet RMS Message Switch Interface Server 2,700 Rev 2004-02-10- Page 11 of 14 Software Maintenance And Support Services Agreement Product SafetyNet RMS Message Switch Interface Client Maintenance Price 70 SafetyNet Digital Mugshot Interface Server SafetyNet Digital Mugshot Interface Client 1,650 35 SafetyNet Bar Coding Interface (BCI) 25O SafetyNet Document Imaging Interface Server SafetyNet Document Imaging Interface Client 415 35 SafetyNet Live Scan Import Interface Server SafetyNet Live Scan Interface NIST Formatter Server SafetyNet Live Scan Export Interface Server 1,350 30O 1,350 Fire Software SafetyNet FMS Server SafetyNet FMS Client SafetyNet NFIRS Module 6,750 165 1,500 Jail Software SafetyNet JMS Server SafetyNet JMS Client 6,750 165 Web Service SafetyNet Web Services* *Includes three data servers. SafetyNet CAD Website (unlimited users) 1,650 1,650 Rev 2004-02-10 - Page 12 of 14 Software Maintenance And Support Services Agreement Product SafetyNet RMS Website (unlimited users) SafetyNet FMS Website (unlimited users) Maintenance Price 1,650 1,650 SafetyNet SNARE SafetyNet SNARE Share SafetyNet SNARE TotalView Other SafetyNet Software SafetyNet Windows Client SafetyNet CAD Remote Data Server SafetyNet Realtime Data Replication Server SafetyNet Reporting Server 1,200 1,200 5O 1,650 1,350 1,350 Third Party Software IBM PI/Open - Renewal IBM PI/Open - Reinstatement 72 334 Rev 2004-02-10 - Page 13 of 14 Software Maintenance And Support Services Agreement Exhibit C Annual Maintenance Fee Qty. Product Description 1 SafetyNet CAD Client 2 SafetyNet CAD Client (Backup) 3 SafetyNet Windows Client 3 IBM PI/Open quad Unit Price $1,500 1,500 5O 144 Extended Price $1,500 300 150 432 Total $2,382 Rev 2004-02-10 - Page 14 of 14 QUOTATION Chief Mark Raffaelli City of South San Francisco mark.raffaelli~ssf, net Hitech Systems, Inc 1925 Century Park East, Suite 1650 Los Angeles, CA 90067 Tel: (310) 282-9919 Fax: (310) 282-9929 :Q u ere,Generate=d,,, B ~, ~ Christa Nelson (310) 691-8121 cnelson~,hitech .corn 2/10/2003 3/13/2004 Q060-01-04-0172 1 SafetyNet CAD Client (supports Colma night $ dispatch) 2 SafetyNet CAD Client (Backup) $ 3 SafetyNet Windows Client 10,000.00 20% $ 8,000.00 10,000.00 90% 2,000.00 110.00 20% 264.00 3 IBM PI/Open quad license (3rd Party) 890.00 20% 2,136.00 1 SafetyNet CAD Client 2 SafetyNet CAD Client (Backup) 3 SafetyNet Windows Client 1,500.00 1,500.00 1,500.00 90% 300.00 50.00 150.00 3 IBM uad 144.00 432.00 4 Installation Support (4 hours) $ 187.50 750.00 Customer Approval: Travel Costs are not included in this quote. All Prices and Fees are in U.S. Dollars 15,532.00 8.50% 1,054.00 $16,586.00 CONFIDENTIAL I of 1 Q060-01-04-0172.xls International Program License Agreement Part 1 - General Terms BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE PROGRAM YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, - DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND - PROMPTLY RETURN THE PROGRAM AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU ACQUIRED IT TO OBTAIN A REFUND OF THE AMOUNT YOU PAID. IF YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT. "IBM" is International Business Machines Corporation or one of its subsidiaries. "License Information" ("LI") is a document that provides information specific to a Program. The Program's LI is available at 1. http://,v** *v.lbm.cUln/Suft*~.a~ e/~la/. The LI may also be found in a file in the Program's directory, by the use of a system command, or as a booklet which accompanies the Program. "Program" is the following, including the original and all whole or partial copies: 1) machine-readable instructions and data, 2) components, 3) audio-visual content (such as images, text, recordings, or pictures), 4) related licensed materials, and 5) license use documents or keys, and documentation. A "Proof of Entitlement" ("POE") is evidence of Your authorization to use a Program at a specified level. That level may be measured, for example, by the number of processors or users. The PoE is also evidence of Your eligibility for warranty, future upgrade prices, if any, and potential special or promotional opportunities. If IBM does not provide You with a PoE, then IBM may accept the original paid sales receipt or other sales record from the party (either IBM or its reseller) from whom You acquired the Program, provided that it specifies the name of the Program and the usage level acquired. "You" and "Your" refer either to an individual person or to a single legal entity. This Agreement includes Part 1 - General Terms, Part 2 - Country-unique Terms (if any), License Information, and Proof of Entitlement and is the complete agreement between You and IBM regarding the use of the Program. It replaces any prior oral or written communications between You and IBM concerning Your use of the Program. The terms of Part 2 and License Information may replace or modify those of Part 1. To the extent there is a conflict between the terms of this Agreement and those of the IBM International Passport Advantage Agreement, the terms of the latter agreement prevail. 1. Entitlement License The Program is owned by IBM or an IBM supplier, and is copyrighted and licensed, not sold. IBM grants You a nonexclusive license to use the Program when You lawfully acquire it. You may I) use the Program up to the level of use specified in the PoE and 2) make and install copies, including a backup copy, to support such use. The terms of this license apply to each copy You make. You will reproduce all copyright notices and all other legends of ownership on each copy, or partial copy, of the Program. If You acquire the Program as a program upgrade, after You install the upgrade You may not use the Program from which You upgraded or transfer it to another party. You will ensure that anyone who uses the Program (accessed either locally or remotely) does so only for Your authorized use and complies with the terms of this Agreement. You may not 1) use, copy, modify, or distribute the Program except as provided in this Agreement; 2) reverse assemble, reverse compile, or otherwise translate the Program except as specifically permitted by law without the possibility of contractual waiver; or 3) sublicense, rent, or lease the Program. IBM may terminate Your license if You fail to comply with the terms of this Agreement. If IBM does so, You must destroy all copies of the Program and its PoE. Money-back Guarantee If for any reason You are dissatisfied with the Program and You are the original licensee, You may obtain a refund of the amount You paid for it, if within 30 days of Your invoice date You return the Program and its PoE to the party from whom You obtained it. If You downloaded the Program, You may contact the party from whom You acquired it for instructions on how to obtain the refund. Program Transfer You may transfer a Program and all of Your license rights and obligations to another party only if that party agrees to the terms o f this Agreement. When You transfer the Program, You must also transfer a copy o f this Agreement, including the Program's PoE. After the transfer, You may not use the Program. 2. Charges The amount payable for a Program license is a one-time charge. One-time charges are based on the level of use acquired which is specified in the PoE. IBM does not give credits or refunds for charges already due or paid, except as specified elsewhere in this Agreement. If You wish to increase the level of use, notify IBM or the party from whom You acquired it and pay any applicable charges. If any authority imposes a duty, tax, levy or fee, excluding those based on IBM's net income, upon the Program, then You agree to pay the amount specified or supply exemption documentation. You are responsible for any personal property taxes for the Program from the date that You acquire it. 3. Limited Warranty IBM warrants that when the Program is used in the specified operating environment it will conform to its specifications. The warranty applies only to the unmodified portion of the Program. IBM does not warrant uninterrupted or error-free operation of the Program or that IBM will correct all Program defects. You are responsible for the results obtained from the use of the Program. IBM provides You with access to IBM databases containing information on known Program defects, defect corrections, restrictions, and bypasses at no additional charge. Consult the IBM Software Support Guide for further information at http://www.ibm~com/software/support. IBM will maintain this information for at least one year after the original licensee acquires the Program ("Warranty Period"). If the Program does not function as warranted during the Warranty Period and the problem cannot be resolved with information available in the IBM databases, You may return the Program and its PoE to the party (either IBM or its reseller) from whom You acquired it and receive a refund in the amount You paid. If You downloaded the Program, You may contact the party from whom You acquired it for instructions on how to obtain the refund. THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THESE WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION. 4. Limitation of Liability Circumstances may arise where, because of a default on IBM's part or other liability, You are entitled to recover damages from IBM. In each such instance, regardless of the basis on which You may be entitled to claim damages from IBM, (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), IBM is liable for no more than 1) damages for bodily injury (including death) and damage to real property and tangible personal property and 2) the amount of any other actual direct damages up to the charges for the Program that is the subject of the claim. This limitation of liability also applies to IBM's Program developers and suppliers. It is the maximum for which they and IBM are collectively responsible. UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1. LOSS OF, OR DAMAGE TO, DATA; 2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR 3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. 5. General 1. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract. 2. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect. 3. You agree to comply with all applicable export and import laws and regulations. 4. You agree to allow IBM to store and use Your contact information, including names, phone numbers, and e-mail addresses, anywhere they do business. Such information will be processed and used in connection with our business relationship, and may be provided to contractors, Business Partners, and assignees of IBM for uses consistent with their collective business activities, including communicating with You (for example, for processing orders, for promotions, and for market research). 5. Neither You nor IBM will bring a legal action under this Agreement more than two years after the cause of action arose unless otherwise provided by local law without the possibility of contractual waiver or limitation. 6. Neither You nor IBM is responsible for failure to fulfill any obligations due to causes beyond its control. 7. This Agreement will not create any right or cause of action for any third party, nor will IBM be responsible for any third party claims against You except, as permitted by the Limitation of Liability section above, for bodily injury (including death) or damage to real or tangible personal property for which IBM is legally liable. 6. Governing Law, Jurisdiction, and Arbitration Governing Law Both You and IBM consent to the application of the laws of the country in which You acquired the Program license to govern, interpret, and enforce all of Your and IBM's rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Jurisdiction All of our rights, duties, and obligations are subject to the courts of the country in which You acquired the Program license. Part 2 - Country-unique Terms AMERICAS ARGENTINA: Governing Law, Jurisdiction, and Arbitration (Section 6): The following exception is added to this section: Any litigation arising from this Agreement will be settled exclusively by the Ordinary Commercial Court of the city of Buenos Aires. BRAZIL: Governing Law, Jurisdiction, and Arbitration (Section 6): The following exception is added to this section: Any litigation arising fi.om this Agreement will be settled exclusively by the court of Rio de Janeiro, RJ. CANADA: General (Section 5): The following replaces item 7: 7. This Agreement will not create any right or cause of action for any third party, nor will IBM be responsible for any third party claims against You except as permitted by the Limitation of Liability section above for bodily injury (including death) or physical harm to real or tangible personal property caused by IBM's negligence for which IBM is legally liable. Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws of the country in which You acquired the Program license" in the Governing Law subsection is replaced by the following: the laws in the Province of Ontario PERU: Limitation of Liability (Section 4): The following is added at the end of this section: In accordance with Article 1328 of the Peruvian Civil Code, the limitations and exclusions specified in this section will not apply to damages caused by IBM's willfi~l misconduct ("dolo") or gross negligence ("culpa inexcusable"). UNITED STATES OF AMERICA: General (Section 5): The following is added to this section: U.S. Government Users Restricted Rights - Use, duplication or disclosure restricted by the GSA ADP Schedule Contract with the IBM Corporation. Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws of the country in which You acquired the Program license" in the Governing Law subsection is replaced by the following: the laws of the State of New York, United States of America ASIA PACIFIC AUSTRALIA: Limited Warranty (Section 3): The following is added: The warranties specified in this Section are in addition to any rights You may have under the Trade Practices Act 1974 or other legislation and are only limited to the extent permitted by the applicable legislation. Limitation of Liability (Section 4): The following is added: Where IBM is in breach of a condition or warranty implied by the Trade Practices Act 1974, IBM's liability is limited to the repair or replacement of the goods, or the supply of equivalent goods. Where that condition or warranty relates to right to sell, quiet possession or clear title, or the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption, then none of the limitations in this paragraph apply. Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws of the country in which You acquired the Program license" in the Governing Law subsection is replaced by the following: the laws of the State or Territory in which You acquired the Program license CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws of the country in which You acquired the Program license" in the Governing Law subsection is replaced by the following: the laws of the State of New York, United States of America The following is added to this section: Arbitration Disputes arising out of or in connection with this Agreement shall be finally settled by arbitration which shall be held in Singapore in accordance with the Arbitration Rules of Singapore International Arbitration Center ("SIAC Rules") then in effect. The arbitration award shall be final and binding for the parties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law. The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. Vacancies in the post of chairman shall be filled by the president of the SIAC. Other vacancies shall be filled by the respective nominating party. Proceedings shall continue from the stage they were at when the vacancy occurred. If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator shall be the sole arbitrator, provided that the arbitrator was validly and properly appointed. All proceedings shall be conducted, including all documents presented in such proceedings, in the English language. The English language version of this Agreement prevails over any other language version. HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws of the country in which You acquired the Program license" in the Governing Law subsection is replaced by the following: the laws of Hong Kong Special Administrative Region of China INDIA: Limitation of Liability (Section 4): The following replaces the terms of items 1 and 2 of the first paragraph: 1) liability for bodily injury (including death) or damage to real property and tangible personal property will be limited to that caused by IBM's negligence; and 2) as to any other actual damage arising in any situation involving nonperformance by IBM pursuant to, or in any way related to the subject of this Agreement, IBM's liability will be limited to the charge paid by You for the individual Program that is the subject of the claim. General (Section 5): The following replaces the terms of item 5: If no suit or other legal action is brought, within three years after the cause of action arose, in respect of any claim that either party may have against the other, the rights of the concerned party in respect of such claim will be forfeited and the other party will stand released from its obligations in respect of such claim. Governing Law, Jurisdiction, and Arbitration (Section 6): The following is added to this section: Arbitration Disputes arising out of or in connection with this Agreement shall be finally settled by arbitration which shall be held in Bangalore, India in accordance with the laws of India then in effect. The arbitration award shall be final and binding for the parties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law. The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. Vacancies in the post of chairman shall be filled by the pre sident of the B ar Council o f India. Other vacancies shall be filled by the respective nominating party. Proceedings shall continue from the stage they were at when the vacancy occurred. If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator shall be the sole arbitrator, provided that the arbitrator was validly and properly appointed. All proceedings shall be conducted, including all documents presented in such proceedings, in the English language. The English language version of this Agreement prevails over any other language version. JAPAN: General (Section 5): The following is inserted after item 5: Any doubts concerning this Agreement will be initially resolved between us in good faith and in accordance with the principle of mutual trust. MALAYSIA: Limitation of Liability (Section 4): The word "SPECIAL" in item 2 of the third paragraph is deleted: NEW ZEALAND: Limited Warranty (Section 3): The following is added: Thc warranties specified in this Section are in addition to any rights You rnay have under the Consumer Guarantees Act 1993 or other legislation which cannot be excluded or limited. The Consumer Guarantees Act 1993 will not apply in respect of any goods which IBM provides, if You require the goods for the purposes of a business as defined in that Act. Limitation of Liability (Section 4): The following is added: Where Programs are not acquired for the purposes of a business as defined in the Consumer Guarantees Act 1993, the limitations in this Section are subject to the limitations in that Act. PEOPLE'S REPUBLIC OF CHINA: Charges (Section 2): The following is added: All banking charges incurred in the People's Republic of China will be borne by You and those incurred outside the People's Republic of China will be borne by IBM. Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws of the country in which You acquired the Program license" in the Governing Law subsection is replaced by the following: the laws of the State of New York, United States of America (except when local law requires otherwise) PHILIPPINES: Limitation of Liability (Section 4): The following replaces the terms of item 2 of the third paragraph: 2. special (including nominal and exemplary damages), moral, incidental, or indirect damages or for any economic consequential damages; or Governing Law, Jurisdiction, and Arbitration (Section 6): The following is added to this section: Arbitration Disputes arising out of or in connection with this Agreement shall be finally settled by arbitration which shall be held in Metro Manila, Philippines in accordance with the laws of the Philippines then in effect. The arbitration award shall be final and binding for the parties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law. The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. Vacancies in the post of chairman shall be filled by the president of the Philippine Dispute Resolution Center, Inc. Other vacancies shall be filled by the respective nominating party. Proceedings shall continue from the stage they were at when the vacancy occurred. If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator shall be the sole arbitrator, provided that the arbitrator was validly and properly appointed. All proceedings shall be conducted, including all documents presented in such proceedings, in the English language. The English language version of this Agreement prevails over any other language version. SINGAPORE: Limitation of Liability (Section 4): The words "SPECIAL" and "ECONOMIC" are deleted from item 2 of the third paragraph. General (Section 5): The following replaces the terms of item 7: Subject to the rights provided to IBM's suppliers and Program developers as provided in Section 4 above (Limitation of Liability), a person who is not a party to this Agreement shall have no right under the Contracts (Right of Third Parties) Act to enforce any of its terms. TAIWAN: Limited Warranty (Section 3): The last paragraph is deleted. EUROPE, MIDDLE EAST, AFRICA (EMEA) Limited Warranty (Section 3): In the European Union, the following is added: In the European Union, consumers have legal rights under applicable national legislation goveming the sale of consumer goods. Such rights are not affected by the Limited Warranty provision set out above at section 3 of this Agreement. The territorial scope of the Limited Warranty is worldwide. Limitation of Liability (Section 4): In Austria, Denmark, Finland, Greece, Italy, Netherlands, Norway, Portugal, Spain, Sweden and Switzerland, the following replaces the terms of this section in its entirety: Except as otherwise provided by mandatory law: 1. IBM's liability for any damages and losses that may arise as a consequence of the fulfillment of its obligations under or in connection with this agreement or due to any other cause related to this agreement is limited to the compensation of only those damages and losses proved and actually arising as an immediate and direct consequence of the non-fulfillment of such obligations (if IBM is at fault) or of such cause, for a maximum amount equal to the charges You paid for the Program. The above limitation shall not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which IBM is legally liable. 2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS, LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS. 3. The limitation and exclusion of liability herein agreed applies not only to the activities performed by IBM but also to the activities performed by its suppliers and Program developers, and represents the maximum amount for which IBM as well as its suppliers and Program developers, are collectively responsible. Limitation of Liability (Section 4): In France and Belgium, the following replaces the terms of this section in its entirety: Except as otherwise provided by mandatory law: 1. IBM's liability for any damages and losses that may arise as a consequence of the fulfillment of its obligations under or in connection with this agreement is limited to the compensation of only those damages and losses proved and actually arising as an immediate and direct consequence of the non-fulfillment of such obligations (if IBM is at fault), for a maximum amount equal to the charges You paid for the Program that has caused the damages. The above limitation shall not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which IBM is legally liable. 2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS, LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS. 3. The limitation and exclusion of liability herein agreed applies not only to the activities performed by IBM but also to the activities performed by its suppliers and Program developers, and represents the maximum amount for which IBM as well as its suppliers and Program developers, are collectively responsible Governing Law, Jurisdiction, and Arbitration (Section 6) Governing Law The phrase "the laws of the country in which You acquired the Program license" is replaced by: 1) "the laws of Austria" in Albania, Armenia, Azerbeijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia; 2) "the laws of France" in Algeria, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis & Futuna; 3) "the laws of Finland" in Estonia, Latvia, and Lithuania; 4) "the laws of England" in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe; and 5) "the laws of South Africa" in South Africa, Namibia, Lesotho and Swaziland. Jurisdiction The following exceptions are added to this section: 1) In Austria the choice of jurisdiction for all disputes arising out of this Agreement and relating thereto, including its existence, will be the competent court o f law in Vienna, Austria (Inner-City); 2) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, West Bank/Gaza, Yemen, Zambia, and Zimbabwe all disputes arising out of this Agreement or related to its execution, including summary proceedings, will be submitted to the exclusive jurisdiction of the English courts; 3) in Belgium and Luxembourg, all disputes arising out of this Agreement or related to its interpretation or its execution, the law, and the courts of the capital city, of the country of Your registered office and/or commercial site location only are competent; 4) in France, Algeria, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis & Futuna all disputes arising out of this Agreement or related to its violation or execution, including summary proceedings, will be settled exclusively by the Commercial Court of Paris; 5) in Russia, all disputes arising out of or in relation to the interpretation, the violation, the termination, the nullity of the execution of this Agreement shall be settled by Arbitration Court of Moscow; 6) in South Africa, Namibia, Lesotho and Swaziland, both of us agree to submit all disputes relating to this Agreement to the jurisdiction of the High Court in Johannesburg; 7) in Turkey all disputes arising out of or in connection with this Agreement shall be resolved by the Istanbul Central (Sultan ahmet) Courts and Execution Directorates of Istanbul, the Republic of Turkey; 8) in each of the following specified countries, any legal claim arising out of this Agreement will be brought before, and settled exclusively by, the competent court of a) Athens for Greece, b) Tel Aviv-Jaffa for Israel, c) Milan for Italy, d) Lisbon for Portugal, and e) Madrid for Spain; and 9) in the United Kingdom, both of us agree to submit all disputes relating to this Agreement to the jurisdiction of the English courts. Arbitration In Albania, Armenia, Azerbeijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia all disputes arising out of this Agreement or related to its violation, termination or nullity will be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Center of the Federal Economic Chamber in Vienna (Vienna Rules) by three arbitrators appointed in accordance with these rules. The arbitration will be held in Vienna, Austria, and the official language of the proceedings will be English. The decision of the arbitrators will be final and binding upon both parties. Therefore, pursuant to paragraph 598 (2) of the Austrian Code of Civil Procedure, the parties expressly waive the application of paragraph 595 (1) figure 7 of the Code. IBM may, however, institute proceedings in a competent court in the country of installation. In Estonia, Latvia and Lithuania all disputes arising in connection with this Agreement will be finally settled in arbitration that will be held in Helsinki, Finland in accordance with the arbitration laws of Finland then in effect. Each party will appoint one arbitrator. The arbitrators will then jointly appoint the chairman. If arbitrators cannot agree on the chairman, then the Central Chamber of Commerce in Helsinki will appoint the chairman. AUSTRIA: Limited Warranty (Section 3): The following is inserted at the beginning of this Section: The Warranty Period is twelve months fi.om the date of delivery. The limitation period for consumers in action for breach of warranty is the statutory period as a minimum. The warranty for a Program covers the functionality of the Program for its normal use and the Program's conformity to its specifications. The final two paragraphs are replaced with the following: This is our sole obligation to You, except as otherwise required by applicable statutory law. General (Section 5): The following is added to item 4: For purposes of this clause, contact information will also include information about You as a legal entity, for example revenue data and other transactional information. GERMANY: Limited Warranty (Section 3): The same changes apply as those in Limited Warranty (Section 3) under Austria above. Limitation of Liability (Section 4): The following paragraph is added to this Section: The limitations and exclusions specified in this Section will not apply to damages caused by IBM intentionally or by gross negligence. General (Section 5): The following replace the terms of item 5: Any claims resulting from this Agreement are subject to a statute of limitation of three years, except as stated in Section 3 (Limited Warranty) of this Agreement. HUNGARY: Limitation of Liability (Section 4): The following is added at the end of this section: The limitation and exclusion specified herein shall not apply to liability for a breach of contract damaging life, physical well-being, or health that has been caused intentionally, by gross negligence, or by a criminal act. The parties accept the limitations of liability as valid provisions and state that the Section 314.(2) of the Hungarian Civil Code applies as the acquisition price as well as other advantages arising out of the present Agreement balance this limitation of liability. IRELAND: Limited Warranty (Section 3): The following is added to this section: Except as expressly provided in these terms and conditions, all statutory conditions, including all warranties implied, but without prejudice to the generality of the foregoing, all warranties implied by the Sale of Goods Act 1893 or the Sale of Goods and Supply of Services Act 1980 are hereby excluded. Limitation of Liability (Section 4): The following replaces the terms o f this section in its entirety: For the purposes of this section, a "Default" means any act, statement, omission, or negligence on the part of IBM in connection with, or in relation to, the subject matter of an Agreement in respect of which IBM is legally liable to You whether in contract or tort. A number of Defaults which together result in, or contribute to, substantially the same loss or damage will be treated as one Default occurring on the date of occurrence of the last such Default. Circumstances may arise where, because of a Default, You are entitled to recover damages from IBM. This section sets out the extent of IBM's liability and Your sole remedy. 1. IBM will accept unlimited liability for (a) death or personal injury caused by the negligence of IBM, and (b) subject always to the Items for Which IBM is Not Liable below, for physical damage to Your tangible property resulting from the negligence of IBM. 2. Except as provided in item 1 above, IBM's entire liability for actual damages for any one Default will not in any event exceed the greater of 1) EUR 125,000, or 2) 125% of the amount You paid for the Program directly relating to the Default. These limits also apply to any oflBM's suppliers and Program developers. They state the maximum for which IBM and such suppliers and Program developers are collectively responsible. Items for Which IBM is Not Liable Save with respect to any liability referred to in item 1 above, under no circumstances is IBM or any of its suppliers or Program developers liable for any of the following, even if IBM or they were informed of the possibility of such losses: 1. loss of, or damage to, data; 2. special, indirect, or consequential loss; or 3. loss of profits, business, revenue, goodwill, or anticipated savings. ITALY: General (Section 5): The following is added to this section: IBM and Customer (hereinafter, individually, "Party") shall comply with all the obligations of the applicable provisions of law and/or regulation on personal data protection. Each of the Parties will indemnify and keep the other Party harmless from any damage, claim, cost or expense incurred by the latter, directly and or indirectly, as a consequence of an infringement of the other P arty of the mentioned provisions o f law and/or regulations. SLOVAKIA: Limitation of Liability (Section 4): The follo~ving is added to the end of the last paragraph: The limitations apply to the extent they are not prohibited under §§ 373-386 of the Slovak Commercial Code. General (Section 5): The terms of item 5 are replaced with the following: THE PARTIES AGREE THAT ANY LEGAL OR OTHER ACTION RELATED TO A BREACH OF THIS AGREEMENT MUST BE COMMENCED NO LATER AS DEFINED BY THE LOCAL LAW (4 YEARS) FROM THE DATE ON WHICH THE CAUSE OF ACTION AROSE. SOUTH AFRICA, NAMIBIA, LESOTHO, SWAZILAND: Limited Warranty (Section 3): The following is added at the end of the first paragraph: notwithstanding any advice or assistance that IBM may have given to You prior to the selection of such Programs. SWITZERLAND: General (Section 5): The following is added to item 4: For purposes of this clause, contact information will also include information about You as a legal entity, for example revenue data and other transactional information. UNITED KINGDOM: Limited Warranty (Section 3): The following replaces the first sentence in the fourth paragraph of this section: THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Limitation of Liability (Section 4): The following replaces the terms of this section in its entirety: For the purposes of this section, a "Default" means any act, statement, omission, or negligence on the part of IBM in connection with, or in relation to, the subject matter of an Agreement in respect of which IBM is legally liable to You, whether in contract or tort. A number of Defaults which together result in, or contribute to, substantially the same loss or damage will be treated as one Default. Circumstances may arise where, because of a Default, You are entitled to recover damages from IBM. This section sets out the extent of IBM's liability and Your sole remedy. 1. IBM will accept unlimited liability for: (a) death or personal injury caused by the negligence of IBM; (b) any breach of its obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982, or any statutory modification or re-enactment of either such Section; and (c) subject always to the Items for Which IBM is Not Liable below, for physical damage to Your tangible property resulting from the negligence of IBM. 2. IBM's entire liability for actual damages for any one Default will not in any event, except as provided in item 1 above, exceed the greater of 1) £75,000, or 2) 125% of the amount You paid for the Program directly relating to the Default. These limits also apply to IBM's suppliers and Program developers. They state the maximum for which IBM and such suppliers and Program developers are collectively responsible. Items for Which IBM is Not Liable Save with respect to any liability referred to in item 1 above, under no circumstances is IBM or any of its suppliers or Program developers liable for any of the following, even if IBM or they were informed of the possibility of such losses: 1. loss of, or damage to, data; 2. special, indirect, or consequential loss; or 3. loss of profits, business, revenue, goodwill, or anticipated savings. Z125-3301-12 (11/2002) LICENSE INFORMATION The Programs listed below are licensed under the following terms and conditions in addition to those of the International Program License Agreement. Program Name: UniVerse RDBM S Workgroup Edition Program Number: 5724-F03 Authorization for Use on Home/Portable Computer: 2 Program Name: UniVerse RDBM S Server Edition Program Number: 5724-F03 Authorization for Use on Home/Portable Computer: 2 Program Name: UniVerse RDBMS Enterprise Edition Program Number: 5724-F03 Authorization for Use on Home/Portable Computer: 2 Program Name: UniVerse Server Edition UV/NET Program Number: 5724-F03 Authorization for Use on Home/Portable Computer: 2 Program Name: UniVerse Enterprise Edition UV/NET Program Number: 5724-F03 Authorization for Use on Home/Portable Computer: 2 Program Name: PI/Open Authorization for Use on Home/Portable Computer: 2 EXPLANATIONS OF TERMS: Authorization for Use on Home/Portable Computer: "1" means that the Program may be stored on the primary machine and another machine, provided that the Program is not in active use on both machines at the same time. "2" means that you may not copy and use this Program on another computer without paying additional license fees. Specified Operating Environment The Program's specifications and specified operating environment information may be found in documentation accompanying the Program, if available, such as a read-me file, or other information published by IBM, such as an announcement letter. Third Party Code The Program and future updates and fixpacks to the Program may contain certain third party components which are provided to you under terms and conditions which are different from this Agreement, or which require IBM to provide you with certain notices and/or information. For each such third party component, either IBM will identify such third party component in a "README" file (or in an updated "README" file accompanying the fixpack or update), or in a file or files referenced in such "README" files (and shall include any associated license agreement, notices and other related information therein), or the third party component will contain or be accompanied by its own license agreement (for example, provided when installing or starting such component, or accompanying such component in a file entitled "README", "COPYING", "LICENSE" or a substantially similar title, or included among the Program's paper documentation, if any). Your use of each third party component which contains or is accompanied by its own license agreement, or for which IBM has identified a license agreement in one of the above "README" files (or in a file or files referenced therein), will be subject to the terms and conditions of such other license agreement, and not this Agreement. By using or not uninstalling such third party components after the initial installation of such third party components (thereby giving you access to the applicable license agreements, notices and information), you acknowledge and agree to all such license agreements, notices and information, including those provided only in the English language. You agree to review any updated "README" files which accompany updates and fixpacks to the Program. The Program contains the following third party components: 1. OpenSSL 2. Apache Xerces Program-unique Terms You are accepting two separate license agreements as a matter of convenience - one for evaluating the program and one that applies only if you acquire the program after your evaluation is completed. The complete text of each of these two license agreements are included with this Program. At no time is it permissible to utilize an evaluation license for commercial development. During the evaluation period, you may acquire a fully functional license, and you will be supplied with a authorization code to activate the product. In the event you do notacquire and activate a license, you agree to uninstall the program and destroy the distribution files and/or media. Additional Definitions "U2" Refers to the IBM UniVerse and UniData database products collectively. "UV/NET" UV/Net is an optional UniVerse feature that provides file access concurrency across multiple physical UniVerse servers. Level of Use Your use of a Program may not exceed the level defined by the number of user authorization you have acquired. The level of use of this Program is specified by one of the following: - Concurrent Session - At any given point in time, each logical connection, existing between the Program and an end- user interface device. Each such existing connection is counted as a Concurrent Session whether or not it is actually in use. If an individual end user establishes multiple connections, each one is counted as a separate Concurrent Session, even if they share a common physical pathway. The number of connections is not reduced by any program or machine, such as a front-end server or multiplexer, which may be used to concentrate the connections. Each batch process being executed at the same time is also considered to be a Concurrent Session. This applies to the Server edition of the U2 databases. - Concurrent User - Those U2 database editions that support Device Licensing allow multiple connections from a single Microsoft Windows client device using U2 middleware and telnet clients while consuming a single database license. This applies to U2 database Workgroup and Enterprise editions. - Server Install - "Server Install" means a machine or server on which the Program is installed or executed. This applies to the UV/NET optional product only. UV/NET is an optional feature of the UniVerse database, and is licensed atop the required base database license. UniVerse contains the following third party software components, which are subject to the terms specified in the sections below: - OpenSSL libraries and documentation - Apache Xerces XML parser libraries OpenSSL Copyright (C) 1995-1998 Eric Young (eay~cryptsoft.com) All rights reserved. This package is an SSL implementation written by Eric Young (eay~cryptsoft.com). The implementation was written so as to conform with Netscapes SSL. This library is free for commercial and non-commercial use as long as the following conditions are adhered to. The following conditions apply to all code found in this distribution, be it the RC4, RSA, lhash, DES, etc., code; not just the SSL code. The SSL documentation included with this distribution is covered by the same copyright terms except that the holder is Tim Hudson (tjh~cryptsoft.com). Copyright remains Eric Young's, and as such any Copyright notices in the code are not to be removed. If this package is used in a product, Eric Young should be given attribution as the author of the parts of the library used. This can be in the form of a textual message at program startup or in documentation (online or textual) provided with the package. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: 1. Redistributions of source code must retain the copyright notice, this list of conditions and the following disclaimer. 2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. 3. All advertising materials mentioning features or use of this software must display the following acknowledgement: "This product includes eryptographic software written by Eric Young (eay~cryptsoft.com)" The word 'cryptographic' can be left out if the routines from the library being used are not cryptographic related :-). 4. If you include any Windows specific code (or a derivative thereof) from the apps directory (application code) you must include an acknowledgement: "This product includes software written by Tim Hudson (tjh~cryptsoft.com)" THIS SOFTWARE IS PROVIDED BY ERIC YOUNG "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE AUTHOR OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The licence and distribution terms for any publicly available version or derivative of this code cannot be changed. i.e. this code cannot simply be copied and put under another distribution licence [including the GNU Public Licence.] Apache Xerces The Apache Software License, Version 1.I Copyright (c) 1999-2000 The Apache Software Foundation. All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: I. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. 2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. 3. The end-user documentation included with the redistribution, if any, must include the following acknowledgment: "This product includes software developed by the Apache Software Foundation ( l. hltl.~;//~w~'v*.apache.o~g/).' Alternately, this acknowledgment may appear in the software itself, if and wherever such third-party acknowledgments normally appear. 4. The names "Xerces" and "Apache Software Foundation" must not be used to endorse or promote products derived from this software without prior written permission. For written permission, please contact apache~apache.org. 5. Products derived from this software may not be called "Apache", nor may "Apache" appear in their name, without prior written permission of the Apache Software Foundation. THIS SOFTWARE IS PROVIDED "AS IS" AND ANY EXPRESSED OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE APACHE SOFTWARE FOUNDATION OR ITS CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. This software consists of voluntary contributions made by many individuals on behalf of the Apache Software Foundation and was originally based on software copyright (c) 1999, International Business Machines, Inc., http://www.ibm.com. For more information on the Apache Software Foundation, please see http ://www.apache.o rg/. D/N: SCT2-2QML-00 P/N: CT22QML Staff Xeport AGENDA ITEM #9 DATE: TO: FROM: SUBJECT: February 25, 2004 Honorable Mayor and City Council Barry Nagel, Assistant City Manager RESOLUTION OF SUPPORT FOR THE REGIONAL MEASURE 2 TRAFFIC CONGESTION RELIEF PLAN RECOMMENDATION: It is recommended that the City Council adopt a resolution of support for the Regional Measure 2 Traffic Congestion Relief Plan, which will appear on the March 2, 2004 ballot. BACKGROUND/DI S CUS SI ON: It is anticipated that regional traffic will increase 250% by 2020. The Regional Measure 2 Traffic Congestion Relief Plan on the March 2, 2004 ballot was created to help reduce traffic congestion on Bay Area bridges and their freeway connectors; develop a regional transit system for the Bay Area by investing in mass transit programs that have a demonstrated ability to get people out of their cars; and create seamless connections between BART, commuter rail, ferries, and express buses to make using mass transit convenient and reliable. Regional Measure 2 would reduce traffic in San Mateo County by expanding CalTrain service between San Jose and San Francisco, and extending new service to the East Bay across a renovated Dumbarton Rail Bridge. In addition, the Measure would increase express bus and ferry service, improve connections between BART, buses, ferries and rail, as well as help create a new "TransLink" universal monthly ticket to access all major transit systems. The Regional Measure 2 Traffic Congestion Relief Plan would be funded through an additional $1.00 toll on the region's state-owned bridges (not including the Golden Gate). It should be noted that all new bridge toll revenue generated by Regional Measure 2 may only be used for the benefit of the projects detailed in the Expenditure Plan. Assistant City M~er Attachment: Resolution Expenditure Plan Approved: City Manager RESOLUTION NO. CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION IN SUPPORT OF THE REGIONAL MEASURE 2 TRAFFIC CONGESTION RELIEF PLAN WHEREAS, the Regional Measure 2 Traffic Congestion Relief Plan, which appears on the March 2, 2004 ballot was created to help reduce traffic congestion on Bay Area bridges and their freeway connectors, and make using mass transit convenient and reliable; and WHEREAS, The Regional Measure 2 Traffic Congestion Relief Plan would be funded through an additional $1.00 toll on the region's state-owned bridges (not including the Golden Gate). NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council hereby supports the Regional Measure 2 Traffic Congestion Relief Plan, which will appear on the March 2, 2004 ballot. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a meeting held on the _ day of ,2004 by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: City Clerk S:\Current Reso'sk2-25regional.measure.2.res.doc Regional Measure 2:$1 Toll Increase Expenditure Plan Capital Projects Project Title Central Bay BART Tube Seismic Retrofit Transbay Terminal'Downtown Extension Oakland Airport Connector AC Transit Enhanced Bus - Phase 1 (international Blvd/'relegraph Ave. Corridor) Commute Ferry Service for Alameda/Oakland/Harbor Bay Commute Ferry Service for Berkeley/Albany Commute Ferry Service for South San Francisco Water Transit Facility Improvements, Spare Vessels and Environmental Review Regional Express Bus for San Mateo, Dumbarton and Bay Bridge Corridors BART/MUNI Connection @ Embarcadero & Civic Center MUNI Metro East/3rd Street (Phase I - lOS) Project Description Add seismic capacity to existing BART tube connecting the East Bay with San Francisco. Funding for a new Transbay Terminal at First and Mission Streets in San Francisco providing added capacity for transbay, regional, local, and intercity bus services, the extension of Caltrain rail services into the terminal, and accommodation of a future high- speed rail line to the terminal and eventual rail connection to the east bay. New transit connection to link BART, Capitol Corridor and AC Transit with Oakland Airport. The Port of Oakland shall provide a full funding plan for the Connector. Develop enhanced bus on these corridors; including bus bulbs, signal pdoritization, new buses and other improvements. Priority of investment shall improve the AC connection to BART on these corridors. Purchase two vessels for ferry services between Alameda and Oakland areas and San Francisco. Second vessel funds to be released upon demonstration of appropriate terminal locations, new transit oriented development, adequate parking, and sufficient landside feeder connections to support ridership projections. Purchase two vessels for ferry services between Berkeley/Albany terminal and San Francisco. The Water Transit Authority shall study four potential terminal locations, two in Berkeley and two in Albany, in the environmental, waterfront, and water transit planning documents to fully assess environmental impacts prior to the selection of a terminal location. Parking access and landside feeder connections must be sufficient to support ridership projections. Purchase two vessels for ferry services to the Peninsula. Parking access and landside feeder connections must be sufficient to support ridership projections. Provide two backup vessels for WTA services, expand berthing capacity at the Port of San Francisco, and expand environmental studies and design for eligible locations. Expand park and ride lots. improve HOV access, construct ramp improvements and pumhase rolling stock. Provide direct access from the BART platform to the MUNI platform at the above stations and equip new fare gates that are Translink ready. Provide funding for the surface and light rail transit and maintenance facility to support MUNI service from Hunter's Point and connecting to Caltrain stations and the E line waterfront line. Year 2005 2005~009 2016-2020 2OO5 2OO5 2007 2009 2007 2007 2006 2005 2OO5 Toll Funding Project Sponsor(s) (in millions) $143.0 BART Transbay Joint Powers $150.0 Authority Port of Oakland and $30.0 BART $65.0 AC Transit $12.0 Water Transit Authority $30.0 Muni $12.0 Water Transit Authority $12.0 Water Transit Authority $48.0 Water Transit Authority AC Transit and Alameda Congestion $22.0 Management Agency $3.0 BART Caldecott Tunnel Improvements Provide funding for a fourth bom at the Caldecott tunnel, between Alameda and Contra Costa Counties. The fourth bore will be a two- lane bore with a shoulder or shoulders north of the current three bores. Provides up to $500,000 for the County Connection to study all feasible alternatives to increase transit capacity in the westbound corridor of State Route 24, including the study of an express lane, high occupancy vehicle lane and an auxiliary lane. MUNI Historic Streetcar Expansion (E-Line) Provide funding to rehabilitate historic street cars and construct a terminal loop to support service from the Transbay Terminal and Ferry Building, and connecting the Fisherman's wharf watedront South Bay Provide funding for the necessary track and station improvements and rolling stock to interconnect the BART and Capitol Corridor at Union City with Caltrain service over the Dumbarton rail bridge, and interconnect and provide track improvements for the ACE line with East to West Bay Commuter Rail Service over the same Caltrain service at Centerville. Provide a new station at Dumbarton Rail Bridge Sun Microsystems in Palo Alto. 1-880 North Safety Improvements BART Warm Springs Extension 1-580 (Tri Valley) Rapid Transit Corridor Improvements North Bay Vallejo Station Solano County Express Bus Intermodal Facilities Solano County Corridor Improvements near Interstate480/Interstate 680 Interchange Interstate-80: Eastbound High Occupancy Vehicle (HOV) Lane Extension from Route 4 to Carquinez Bridge Richmond Parkway Park & Ride Sonoma Marin Area Rail Transit District (SMART) Extension to Larkspur Graenbrae Interchange Improvement Reconfigure various ramps on I - 880 and provide appropriate mitigations between 29th Avenue and 16th Avenue. 2005/2010 2005 2006 2OO5 Extension of the existing BART system 5.4 -miles by aerial structures and subway from Fremont to Warm Springs in southern Alameda County. Up to $10 million shall be used for grade separation work in the City of Fremont necessary to extend BART. 2005 Provide rail or High Occupancy Vehicle lane direct connector to Dublin BART and other improvements from 1-580 in Alameda County for use by express buses. 2010 Construct intermodal transportation hub for bus and ferry service, including parking structure at site of Vallejo's current ferry terminal. Provide competitive grant fund source, to be administered by BATA. Eligible projects are Curtola Park and Ride, Benicia Intermodal Facility, Fairfield Transportation Center and Vacaville Intermodal Station. Priority to be given to projects that are fully funded, ready for construction, and serving transit service that operates primarily on existing or fully funded high-occupancy vehicle lanes. Funds for specific projects recommended in the STA-Caltrans MIS for the 1-80/680/12 interchange Construct HOV I~ne extension Caltrans proposal to double transit capacity at existing facility from 200 to 400 buses per day and expand parking by 808 new spaces Extend rail line from San Rafael to a ferry terminal at Larkspur or San Quentin. Up to $5 million may be used to study the potential use of San Quentin property as an intermodal water transit terminal. Construct local street bridge (Wornum) over Corte Madera Creek to improve Larkspur ferry access and bicycle access and reduce congestion on Richmond-San Rafael bridge approach. 2O06 2007 2010 2007 2007 2009 2009 $50.5 $10.0 $135.0 $10.0 Contra Costa Transportation Authority Muni Caltrain, Capitol Corridor, and the Alameda County Congestion Management Agency Alameda County Congestion Management Agency, City of Oakland, and the Department of Transportation. $95.0 BART Alameda County Congestion $65.0 Management Agency $28.0 City of Vallejo $20.0 $100.0 $50.0 $16.0 $35.0 $65.0 Solano Transportation Authority Solano Transportation Authority Department of Transportation Solano Transportation Authority Sonoma Marin Area Rail Transit District (SMART) Marin Congestion Management Agency Direct High-Occupancy Vehicle (HOV) lane connector from Interstate 680 to the Pleasant Dedicated express bus connector exit with local street connection Hill BART to Pleasant Hill BART. Rail Extension to East Contra Costa/E-BART Extend BART from Pittsburg/Bay Point to Byron in East Contra Costa County. Project funds may only be used if the project is in compliance with adopted BART policies with respect to appropriate land use zoning in vicinity of proposed stations. Capitol Corridor Improvements in Interstate- 80/Interstate 680 Corridor Central Contra Costa Bay Area Rapid Transit (BART) Crossover Benicia-Martinez Bridge: New Span Regional Express Bus North Regional TransLink~ Real-time transit information Safe Routes to Transit Regional Rail Master Plan Integrated Fare Structure Program Transit Commute Benefits Promotion TOTAL 2007 2011 Fund track and station improvements, including the Suisun Third Main Track and Fairfield New Station. 2010 Add new track before Pleasant Hill BART station to permit BART trains to make a quick turn, freeing up a lO-car train and permitting closer weekend headways into San Francisco. 2009 Provide partial funding for completion of new five-lane span between Benicia and Martinez to significantly increase capacity in the 1-680 corridor. 2005 Competitive grant program for bus service in Richmond-San Rafael Bridge, Carquinez, Benicia-Martinez and Antioch Bridge corridors. Provide funding for park and ride lots, infrastructure improvements, and rolling stock. Eligible recipients include Golden Gate Bridge Highways and Transit District, Vallejo Transit, Napa VINE, and Fairfield-Suisun Transit. The Golden Gate Bridge and Highways District shall receive a minimum of $1.6 million. Napa VINE shall receive a minimum of $2.4 million. Integrate TransLink~ system with operators fare collection equipment, Phase 2 enhancements, and system expansion to new transit services such as ferries and express bus. 2006 2006 Provide a competitive grant program for transit operators for assistance with implementation of high-technology systems to provide real-time transit information to riders at transit stops and/or via telephone, wireless or internet communication. Priority shall be given to projects identified in the commission's connectivity plan adopted pursuant to Government Code Section 30914(d). 2006 Construct bicycle and pedestrian access improvements in close proximity to transit facilities. Priority shall be given to those projects that best provide access to regional transit services. Authorizes $2.5 million to be spent for City Carshare to expand its program near transbay transit terminals. 2006 Provide planning funds for integrated regional rail study pursuant to Section 30914.5 (f). Includes up to $2.5 million for Caltrain and/or BART to study ways to improve Bay Area access to the high-speed rail system. Up to $0.5 million for Caltrain and/or BART to study the feasibility and construction of an intermodal transfer hub at Niles Junction. 2006 Provide planning funds for the development of zonal monthly transit passes pursuant to Section 30914.5 (e). 2006 Marketing program to promote tax~saving opportunities for employers and employees as specified in the federal Internal Revenue Code Section 132 (f)(3). Goal is to increase the participation rate of employers offering employees a tax-free benefit to commute to work by transit. 2006 $15.0 $96.0 $25.0 $25.0 $50.0 $20.0 $22.0 $20.0 $22.5 $6.5 $1.5 $1,515.00 Contra Costa Transportation Authority Contra Costa Transportation Authority and BART Capital Corddor Joint Powers Authority and the Solano Transportation Authority BART Bay Area Toll Authority Metropolitan Transportation Commission Metropolitan Transportation Commission Metropolitan Transportation Commission East Bay Bicycle Coalition and Transportation and Land Use Coalition BART TransLink~ Consortium Metropolitan Transportation Commission Regional Measure 2:$1 Toll Increase Expenditure Plan Transit Operations Funding Key Features: $1.63 billion total cost (2005-2040) $48.3 million annual (2016-40) Projects Annual Amount Year Escalation ($ in millions) Funding Rate Annual Amount FY 2016~2040 Cumulative Total 1st year of funding Trunkline Dumbarton Rail $5.5 WTA: Alameda/Oakland/Harbor Bay * $6.4 WTA: Albany/Berkeley - S.F.* $3.2 WTA: South S.F. - S.F. * $3.0 Vallejo Ferry $2.7 Golden Gate Express Bus Service over the Richmond Bridge (Route 40) $2.1 Napa Vine service terminating at Vallejo Intermodal terminal $0.39 Regional Express Bus South Pool (Bay Bridge, San Mateo, and Dumbarton) $6.5 Regional Express Bus North Pool (Carquinez, and Benicia Bridge) $3.4 Owl Bus Service on BART Corridor $1.8 Non Trunkline WTA System $3.0 MUNI Metro East (Phase 1 - lOS) $2.5 TransLink® ** -- AC Transit Enhanced Bus Service: International Blvd and Telegraph Ave. $3.0 Total $43.4 Begins 1.5% 2008 1.5% 2008 1.5% 2009 1.5% 2007 1.5% 2006 1.5% 2007 1.5% 2007 1.5% 2007 1.5% 2007 1.5% 2006 1.5% 2005 0% 2OO6 0% 2005-2007 0% 2007 0% Bill Provisions: Operating funds shall constitute not more than 38% of the annual revenues generated from the 2004 toll increase (constantS) 6,195,709 7,209,553 3,551,504 3,430,170 3,133,460 2,401,119 445,922 7,432,035 3,887,526 2,O88,973 3,000,000 2,5O0,00O 0 3,000,000 $48,275,971 FY 2005-2040 $201,273,346 $234,208,984 $112,221,174 $114,432,243 $107,233,854 $80,102,570 $14,876,192 $248,936,527 $129,689,876 $71,489,236 $108,000,000 $87,500,OO0 $2O,0O0,000 $102,000,000 $1,631,964,002 Escalated Total Notes: * A portion of the funds may be dedicated to landside transit operations. ** TransLink® shall receive a total of $20 million in operating funds between 2005 and 2007 StaffReport AGENDA ITEM #10 DATE: February 25, 2004 TO: The Honorable Mayor and City Council FROM: Jim Steele, Finance Director SUBJECT: Local Taxpayers and Public Safety Protection Act RECOMMENDATION: It is recommended that the City Council consider a resolution in support of the Local Taxpayers and Public Safety Protection Act, sponsored by the League of California Cities' political action committee, CITIPAC. BACKGROUND/DISCUSSION: Tt~e State of California, like the City of South San Francisco, has struggled over the past two years with growing expenditures and declining revenues as it puts together its budget. The State has, since the early 1990' s, had a pattern of taking revenues from local governments at those times when it has not wanted to cut its own expenditures further, or alternatively, when it has not wanted to consider raising taxes. Beginning in 1992-93, when the state economy was in a major recession, the State government began shifting roughly 18% of the City of South San Francisco's property taxes to its own budget in order to make its constitutionally guaranteed funding requirement for public schools. (All other cities and counties in the State had similar property tax shifts imposed on them). This is known as the Educational Revenue Augmentation Fund shift (ERAF). Since 1992-93, the City's General Fund has lost a total of $19 million in these ERAF shifts to the State, while the City as a whole, including the Redevelopment Funds and special maintenance district funds, has lost $21 million in total. (The General Fund is the part of the City budget that funds basic city services such as fire, police, library, and parks and recreation). Summaries of these shifts for South San Francisco are attached at the end of the attachments following this staff report. The trend of taking local government dollars during hard budget times is continuing, with the current Governor proposing to shift an additional $533,000 in property taxes from the City's General Fund, representing a 22% increase in the General Fund ERAF shift. In addition, the Governor has proposed shifting an additional $975,000 from the City's Redevelopment Funds, reducing the dollars that the City could otherwise spend on infrastructure and affordable housing. Both of these new shifts would be in addition to the existing shifts, and would be permanent. The League of California Cities, through its political action committee, CITIPAC, is seeking to prevent the State government from taking additional local government dollars through a proposed constitutional amendment for the November, 2004 ballot. The initiative would require majority voter approval before STAFF REPORT TO: Honorable Mayor and City Council SUBJECT: Local Taxpayers and Public Safety Protection Act DATE: February 25, 2004 Page 2 the State could further reduce those State revenues allocated to cities and counties (sales taxes, property taxes, and Vehicle License Fees). Furthermore, the initiative would require the State to go back to the revenue base in place with the 2002-03 budget year, which was prior to the new ERAF shift and prior to the Vehicle License Fee reductions, and use that year as the base on which local governments would be funded on a go-forward basis. While the staff is presenting the attached Resolution for Council's review and consideration, it is not permissible for staff to advocate on behalf of the initiative using public funds or on work time. In order to consider this initiative from a neutral standpoint, it is therefore important for the City Council to keep in mind that if the League' s initiative passes, the State' s budget will be further constrained in the future, with fewer options available to legislators to balance the State budget in times of economic downturn. That could result in the State further reducing State budget expenditures, or raising taxes to make up the difference. Prepared by: Jim Steele Finance Director pp ~. )~ '--~ ~" Michael A. Wilson City Manager Attachments: Resolution, Information Sheets from CITIPAC, ERAF Summaries RESOLUTION NO. CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION SUPPORTING A STATEWIDE BALLOT INITIATIVE TO REQUIRE VOTER APPROVAL BEFORE STATE GOVERNMENT MAY TAKE LOCAL TAX FUNDS WHEREAS, state government annually seizes over $800 million in city property tax funds (ERAF) statewide, costing cities over $6.9 billion in lost revenues over the past 12 years and seriously reducing resources available for local public safety and other services; and WHEREAS, in adopting the state budget this year the Legislature and Governor appropriated local vehicle license fee backfill and redevelopment property tax funds that are needed to finance critical city services such as public safety, parks, street maintenance, housing and economic development; and WHEREAS, the deficit financing plan in the state budget depends on a local property and sales tax swap that leaves city services vulnerable if the state's economic condition fails to improve; and WHEREAS, the adopted state budget assumes an ongoing structural budget deficit of at least $8 billion, putting city resources and services at risk in future years to additional state revenue raids; and WHEREAS, it is abundantly clear that state leaders will continue to use local tax funds to balance the state budget unless the voters limit the power of the Legislature and Governor to do so; and WHEREAS, the voters of California are the best judges of whether local tax funds should be diverted, confiscated, shifted or otherwise taken to finance an ever-expanding state government; and WHEREAS, the General Assembly of Voting Delegates of the League of California Cities at its September 10, 2003 meeting voted to sponsor a statewide ballot initiative to empower the voters to limit the ability of state government to confiscate local tax funds to fund state government; and WHEREAS, the League has requested that cities offer support for a November 2004 ballot initiative that will allow voters to decide whether state government may appropriate local tax funds to fund state government operations and responsibilities. NOW, THEREFORE, BE IT RESOLVED by City Council of South San Francisco that the City hereby expresses its strong support for a statewide ballot initiative to allow voters to decide whether local tax funds may be taken, confiscated, shifted, diverted or otherwise used to fund state government operations and responsibilities; and RESOLVED FURTHER, that the City Council and staff are authorized to provide impartial informational materials on the initiative as may be lawfully provided by the city's representatives. No public funds shall be used to campaign for or against the initiative; and RESOLVED FURTHER, that the residents of the City are encouraged to become well informed on the initiative and its possible impacts on the critical local services on which they rely; and RESOLVED FURTHER, that the City Manager (or Clerk) is hereby directed to send a copy to the Executive Director of the League of California Cities. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a meeting held on the day of ,2004 by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: City Clerk S:\Current Reso's\ballot.initiative.res.doc _LEAGUE OF CALIFORNIA CITIES 1400 K Street, Suite 400 · Sacramento, California 95814 Phone: 916.658.8200 Fax: 916.658.8240 www.cacities.org LOCAL TAXPAYERS AND PUBLIC SAFETY PROTECTION ACT--AN OVERVIEW November 2004 Election State-Local Fiscal System Broken. There is widespread agreement that the state-local fiscal relationship is broken. One of the reasons is because state leaders no longer respect the difference between state and local tax revenues. In recent years, the state legislature and governor have approved laws that divert, use or delay the payment of local tax revenues to local governments that finance public safety, public health, park, library, street maintenance and other vital community services. This has caused pressure for higher local fees that can increase the cost of housing. Local Funds Drained for Higher State Spending. Since 1991 more than $30 billion of local property taxes have been drained from cities, counties and special districts--costing cities alone $800 million in FY 2003-04 and $6.9 billion the last 12 years. Even in years of state budget surpluses, the state has used these funds to finance its constitutional funding obligation to public education, allowing it to increase state general fund spending for other state programs. This has come at the expense of vital local public safety and other services. State Shifts Costs to Local Governments. In recent years the state also has shifted costs for state-sponsored programs and delayed constitutionally required reimbursements to local governments for state mandated programs and services. In the last two fiscal years, the state has "deferred" over $1 billion in constitutionally required reimbursements to local governments for mandated services and programs. This cost burden is then paid with local taxes that should be used for important local services Constitutional Protection Needed Now. The League has joined forces with the California State Association of Counties (CSAC) and the California Special Districts Association (CSDA) to sponsor a ballot inilJative in November 2004, entitled the Local Taxpayers and Public Safety Protection Act, to put the voters in charge of whether local tax dollars should be used to fund state services. It will no___t raise taxes. It will no__t repeal laws the state has already passed. It will no.__t require the return of property taxes already taken nor affect funding of schools. It will no.__t prevent structural reform of the fiscal system--simply require that structural changes be planned collaboratively by state and local leaders and approved by the voters. The initiative will do two simple things: · Public Vote Required. Require approval by a majority of the electorate before a proposed state law may take effect that reduces the sales, property and VLF funds of cities, counties and ~ecial districts. Flexibility is provided to reduce the VLF and replace it with substitute revenues (i.e., a "backfill") without voter approval; and · Reimburse for Mandated Costs. Clarify the state's duty to reimburse in a timely way for a new mandated program or higher level of service, protecting local governments from hidden cost shifts. Allows local governments to opt-out of certain non-workplace safety and employee procedural rights mandates if the state fails to pay in a timely way. For More Information. Contact Chris McKenzie, Executive Director (916-658-8275); Mike Madrid, Public Affairs Director (916-658-8272); or Dwight Stenbakken, Deputy Executive Director (916-658-8213). How to Make A Contribution. The League has established a political action committee (CITIPAC--ID # 1254399) for contributions to this initiative. For more information, contact 916-658-8273, email info@citipac.or.q or go to www.citipac.or.cl Revised October 30, 2003 C I T I P A C www.citipac.org The Local Taxpayers and Public Safety Protection Act Ensuring Voter Control Over Local Tax Dollars for Public Health, Safety and Other Essential Local Services The Problem: For more than a decade, the California State Legislature has been taking away increasing amounts of local tax dollars that local governments use to provide essential services like police and fire protection, emergency and public health care, roads, parks, libraries and water delivery. In fact, through good times and bad, the State has been taking away billions in local tax dollars each year - forcing local governments to either raise local fees or taxes to maintain services, or cut back on critically needed services. The system is broken. Voters must act now to protect local services by protecting local revenues from being taken by the State. The Solution: The 2004 Local Taxpayers and Public Safety Protection Act would increase local control over our local tax dollars. This measure would let the voters have the final say on proposed actions by the State Legislature that would further reduce local government funding. It would protect the vital local services that California residents rely on each and every day- such as public safety and emergency care, roads, libraries, parks and transportation - by requiring voter approval before the State could reduce funding for local services or shift more costs to local governments. What this measure does: o Requires voter approval before the Legislature can reduce local government revenues or take them for state, rather than local, purposes. O Ensures that local tax dollars are available to fund local services like police and fire, emergency and trauma care, parks, roads, libraries and water delivery. © Makes it absolutely clear that if the State Legislature mandates that local governments provide new or expanded programs or services, then the State would have to reimburse local governments for the cost of those programs. O Provides flexibility for state budgeting decisions, but requires voter-approval on any future State Legislative actions that would reduce funding for essential local services. What this measure DOES NOT do: o Does not raise taxes. In fact, this measure will help decrease pressures for local fees and taxes by protecting local revenue sources from State raids. O Does not increase funding to local governments. Simply prevents the State Legislature from raiding future local government funding. O Does not reduce funding that schools receive from local property taxes or funding that schools receive from the State. O Does not reduce funding for other state programs like schools or highways. THE LOCAL TAXPAYERS AND PUBLIC SAFETY PROTECTION ACT SECTION ONE. Short Title. These amendments to the California Constitution shall be known and may be cited as the LOCAL TAXPAYERS AND PUBLIC SAFETY PROTECTION ACT. SECTION TWO. Findings and Purposes (a) The People of the State of California fred that restoring local control over local tax dollars is vital to insure that local tax dollars are used to provide critical local services including, but not limited to, police, fire, emergency and trauma care, public health, libraries, criminal justice, and road and street maintenance. Reliable funding for these services is essential for the security, well-being and quality of life of all Californians. (b) For many years, the Legislature has taken away local tax dollars used by local governments so that the State could control those local tax dollars. In fact, the Legislature has been taking away billions of local tax dollars each year, forcing local governments to either raise local fees or taxes to maintain services, or cut back on critically needed local services. (c) The Legislature's diversion of local tax dollars from local governments harms local governments' ability to provide such specific services as police, fire, emergency and trauma care, public health, libraries, criminal justice, and road and street maintenance. (d) In recognition of the harm caused by diversion of local tax dollars and the importance placed on voter control of major decisions concerning government finance, and consistent with existing provisions of the California Constitution that give the people the right to vote on fiscal changes, the People of the State of California want the right to vote upon actions by the State government that take local tax dollars from local governments. (e) The Local Taxpayers and Public Safety Protection Act is designed to insure that the People of the State of California shall have the right to approve or reject the actions of state government to take away local revenues that fund vitally needed local services. (f) The Local Taxpayers and Public Safety Protection Act strengthens the requirement that if the State mandates local governments to implement new or expanded programs, then the State shall reimburse local governments for the cost of those programs. (g) The Local Taxpayers and Public Safety Protection Act does not amend or modify the School Funding Initiative, Proposition 98 (Article XVI, section 8 o£the California Constitution). (h) Therefore, the People declare that the purposes of this Act are to: (1) require voter approval before the Legislature removes local tax dollars from the control of Local Government, as described in this measure; (2) insure that local tax dollars are dedicated to local governments to fund local public services; (3) insure that the Legislature reimburses local governments when the State mandates local governments to assume more financial responsibility for new or existing programs; and (4) prohibit the Legislature from deferring or delaying annual reimbursement to local governments for state-mandated programs. SECTION THREE. Article XIIIE is hereby added to the California Constitution to read as follows: ARTICLE XIIIE Local Taxpayers and Public Safety Protection Act Section 1. State-wide Voter Approval Required. (a) Approval by a majority vote of the electorate, as provided for in this section, shall be required before any act of the Legislature takes effect that removes the following funding sources, or portions thereof, from the control of any Local Government as follows: (1) Reduces, or suspends or delays the receipt of, any Local Government's proportionate share of the Local Property Tax when the Legislature exercises its power to apportion the Local Property Tax; or requires any Local Government to remit Local Property Taxes to the State, a state-created fund, or, without the consent of the affected Local Governments, to another Local Government; (2) Reduces, or delays or suspends the receipt of, the Local Government Base Year Fund to any Local Government, without appropriating funds to offset the reduction, delay or suspension in an equal amount; (3) Restricts the authority to impose, or changes the method of distributing, the Local Sales Tax; (4) Reduces, or suspends or delays the receipt of, the 2003 Local Government Payment Deferral; or (5) Fails to reinstate the suspended Bradley-Bums Uniform Sales Tax Rate in accordance with Section 97.68 of the Revenue and Taxation Code added by Chapter 162 of 2003 Statutes; or reduces any Local Government's allocation of the Property Tax required by Section 97.68 while the Sales Tax Rate is suspended. (b) Prior to its submission to the electorate, an act subject to voter approval under this section must be approved by the same vote of the Legislature as is required to enact a budget bill and shall not take effect until approved by a majority of those voting on the measure at the next statewide election in accordance with subdivision (c). (c) When an election is required by this section, the Secretary of State shall present the following question to the electorate: "Shall that action taken by the Legislature in [Chapter of the Statutes of__.], which affects local revenues, be approved? Section 2. Definitions (a) "Local Government" means any city, county, city and county, or special district. (b) "Local Government Base Year Fund" means the amount of revenue appropriated in the 2002-2003 fiscal year in accordance with Chapters 1 through 5, commencing with section 10701 of Part 5 of Division 2 of the Revenue and Taxation Code, adjusted annually based upon the change in assessed valuation of vehicles that are subject to those provisions of law. In the event that the fees imposed by those provisions of law are repealed, then the Fund shall be adjusted annually on July 1 by an amount not less than the percentage change in per capita personal income and the change in population, as calculated pursuant to Article XIIIB. (c) "2003 Local Government Payment Deferral" means the amount of revenues required to be transferred to Local Government from the General Fund specified in subparagraph D of paragraph 3 of subdivision (a) of section 10754 of the Revenue and Taxation Code in effect on August 11, 2003. (d) "Local Property Tax" means any Local Government's January 1, 2003 proportionate share of ad valorem taxes on real property and tangible personal property apportioned pursuant to the Legislature's exercise of its power to apportion property taxes as specified in Article XIIIA, section 1. "Local Property Tax" also means any Local Government's allocation of the ad valorem tax on real property and tangible personal property pursuant to Article XVI, section 16. (e) "Local Sales Tax" means any sales and use tax imposed by any city, county, or city and county pursuant to the terms of the Bradley-Bums Uniform Sales and Use Tax (Chapter 1 of Part 1.5 of Division 2 of the Revenue and Taxation Code) in accordance with the law in effect on January 1, 2003. (f) "Special District" means an agency of the State, formed pursuant to general law or special act, for the local performance of governmental or proprietary functions with limited geographic boundaries, including redevelopment agencies, but not including school districts, community college districts, or county offices of education. (g) "State" means the State of California. Section 3. Interim Measures (a) The operation and effect of any statute, or portion thereof, enacted between November 1, 2003 and the effective date of this Act, that would have required voter approval pursuant to Section 1 if enacted on or after the effective date of this Act (the "Interim Statute"), shall be suspended on that date and shall have no further force and effect until the date the Interim Statute is approved by the voters at the first statewide election following the effective date of this Act in the manner specified in Section 1. If the Interim Statute is not approved by the voters, it shall have no further force and effect. (b) If the Interim Statute is approved by the voters, it shall nonetheless have no further force and effect during the period of suspension; provided, however, that the statute shall have force and effect during the period of suspension if the Interim Statute or separate act of the Legislature appropriates funds to affected local governments in an amount which is not less than the revenues affected by the Interim Statute. (c) A statute or other measure that is enacted by the Legislature and approved by the voters between November 1, 2003 and the effective date of this Act is not an Interim Statute within the meaning of this section. SECTION FOUR. Article XIIIB Section Six (6) is hereby amended as follows: SEC. 6. (a) Whenever the Legislature or any state agency mandates a new program or higher level of service on any local government, the State shall annually provide a subvention of funds to reimburse such local government for the costs of such program or increased level of service, except that the Legislature may, but need not, provide such subvention of funds for the following mandates: (-a-) (1) Legislative mandates requested by the local agency affected; (Jo-) (2) Legislation defining a new crime or changing an existing definition of a crime; or (c-) (3) Legislative mandates enacted prior to January 1, 1975, or executive orders or regulations initially implementing legislation enacted prior to January 1, 1975. (b) The annual subvention of funds required by this section shall be transmitted to the local government within 180 days of the effective date of the statute or regulation or order by a State officer or agency that mandates a new program or higher level of service, or within 180 days of a final adjudication that a subvention of funds is required pursuant to this section. For purposes of this section, the Legislature or any State agency or officer mandates a new program or higher level of service when it creates a new program, requires services not previously required to be provided, increases the frequency or duration of required services, increases the number of persons eligible for services, or transfers to local government complete or partial financial responsibility for a program for which the State previously had complete or partialfinancial responsibility. (c) If during the fiscal year in which a claim for reimbursement is filed for a subvention of funds, the Legislature does not appropriate a subvention of funds that provides full reimbursement as required by subdivision (a), or does not appropriate a subvention of funds that provides full reimbursement as part of the state budget act in the fiscal year immediately following the filing of that claim for reimbursement, then a local government may elect one of the following options: (J) Continue to perform the mandate. The local government shall receive reimbursement for its costs to perform the mandate through a subsequent appropriation and subvention of funds; or (2) Suspend performance of the mandate during all or a portion of the fiscal year in which the election permitted by this subdivision is made. The local government may continue to suspend performance of the mandate during all or a portion of subsequent fiscal years until the fiscal year in which the Legislature appropriates the subvention of funds to provide full reimbursement as required by subdivision (a). A local government shall receive reimbursement for its costs for that portion of the fiscal year during which it performed the mandate through a subsequent ap2vropriation and subvention of funds. The terms of this subdivision do not apply to, and a local government may not make the election provided for in this subdivision, for a mandate that either requires a local government to provide or modify any form of protection, right, benefit or employment status for any local government employee or retiree, or provides or modifies any procedural or substantive right for any local government employee or employee organization, arising from, affecting, or directly relating to future, current, or past local government employment. (d) For purposes of this section, "mandate" means a statute, or action or order of any state agency, which has been determined by the Legislature, any court, or the Commission on State Mandates or its designated successor, to require reimbursement pursuant to this section. SECTION FIVE. Construction. (a) This measure shall be liberally construed to effectuate its purposes, which include providing adequate funds to Local Government for local services including, but not limited to, such services as police, fire, emergency and trauma care, public health, libraries, criminal justice, and road and street maintenance. (b) This measure shall not be construed either to alter the apportionment of the ad valorem tax on real property pursuant to Section 1 of Article XIIIA by any statute in effect prior to January 1, 2003 or to prevent the Legislature from altering that apportionment in compliance with the terms of this measure. (c) Except as provided in Section 3 of Article XIIIE added by Section Three of this Act, the provisions of Section 1 of Article XIIIE added by Section Three of this Act apply to all statutes adopted on or after the effective date of this Act. SECTION SIX. If any part of this measure or its application to any person or circumstance is held invalid by a court of competent jurisdiction, the invalidity shall not affect other provisions or applications that reasonably can be given effect without the invalid provision or application. Dollars in O00's $4,000 $3,500 Property Taxes Taken by the State of California Property Taxes taken since 92-93:$20,700,000 $3,000 $2,500 $2,000 $1 500J¢ $1,000 J~' $500 $0 92-93 94-95 96-97 98-99 00-01 02-03 04-05 (proposed) DATE: TO: FROM: SUBJECT: Staff Report February 25, 2004 Honorable Mayor and City Council Jim Steele, Director of Finance Mid-year Financial Review AGENDA ITEM #11 RECOMMENDATION It is recommended that the City Council approve the attached budget amendment resolution adjusting the various revenues and expenditure items as discussed in this report. BACKGROUND/DISCUSSION The purpose of this memo is to recap the budget situation this year and take a preliminary look at next year's budget. This report also recommends adoption of a resolution incorporating certain mid-year budget amendments needed at this time. Recai~ of the Budget Situation in the Current Year In June 2003, the City Council adopted a fiscal 2003-04 budget that was balanced after taking $3.2 million in cuts and increasing revenues by $3.1 million. The cuts froze 21.75 positions without any layoff of incumbent permanent employees. Based on projections made at the time, the revenue increase anticipated a 5.5% property tax increase, a 2% sales tax improvement, and modest $200,000 transient occupancy tax (TOT) growth over the fiscal 2002-03 budget. Even with the cuts, the adopted budget planned for a 7.1% ($2.9 million) General Fund expenditure increase due to projected wage increases, the budgeted 2.7 at 55 PERS enhancement for miscellaneous employees, as well as continued double digit increases in health plan costs. However, the budget was passed with two major unknown factors: the ultimate result of the wage increase based on salary surveys and the magnitude and target of State takeaways resulting from the pending passage of the 2003-04 State budget. Since the time of budget adoption, the City's financial situation deteriorated because of on actions in Sacramento, higher than budgeted wage costs, a continued lowering of hotel room rates, and the ultimate relocation of a major sales tax provider. Staff Report To: City Council Subject: Mid-year Financial Review Date: February 25, 2004 Page 2 In the first quarter of 2003-04, the State budget was passed and the City was hit with a net $1.1 million reduction in motor vehicle license fee (VLF) revenues (including a shift of cities' revenues to counties for a mandated State backfill for health programs funding). Somewhat offsetting this large loss, and after the budget was adopted, the County gave the City a refund of $537,000 in excess Educational Revenue Augmentation Fund (ERAF) property tax funds for the General Fund, with $21,000 for the Redevelopment Agency. This refund covered the previous two fiscal years (2001-02 and 2002-03). News from the County indicates that the refund will be ongoing, however it will be at a lower annual level, since the $537,000 covered two years. Staff is estimating the General Fund 2004-05 refund to be $270,000 or approximately one-half of the $537,000, unless school enrollment figures or assessed valuation numbers change dramatically. After the budget was adopted, staff also became aware of a large gasoline fleet sales provider that was in the final stages of lease discussions to relocate out of the City, which will reduce sales tax revenues by approximately $500,000 on an annual basis. Assistant City Manager Van Duyn and the Finance Director both worked to facilitate arrangements by which that company would stay in South San Francisco, but the company desired physical amenities (a small, modem office complex near restaurants and services) they did not believe were available in our city. Based on this sales tax hit and the initial projection of the VLF loss, in November 2003 Council approved in concept $820,000 in further General Fund expenditure cuts for 2003-04, freezing an additional 15.03 positions through attrition, existing vacancies, and resorting to the first layoff of a permanent full time staff member. Except for one position that did not retire as expected, all of the cuts proposed are still expected to follow through as planned this fiscal year. The attached budget amendment formally incorporates these cuts into the 2003-04 budget. In January 2004 the results of salary surveys for several bargaining units became finalized. As is the City's practice, salary surveys are used to compensate employee groups at the 60th percentile of compensation in comparison to our other survey cities. The impact of these surveys hit harder than had been budgeted for. Staff budgeted for wage increases assuming the enhanced PERS retirement benefits would hold down those wages. However, the surveys resulted in AFSCME, Police, and Fire wages that totaled $755,000 more than budgeted. Staff Report To: City Council Subject: Mid-year Financial Review Date: February 25, 2004 Page 3 Below is a summary of all General Fund changes since the budget was adopted last June. In 'O00's Adopted 2003-04 General Fund Budget, net surplus Plus favorable changes since budget adoption: Stronger assessed values for Property Taxes: $ New, County ERAF Refund: $ Recommended change: charge Conference Center Debt to RDA: $ Budget reductions approved in concept by Council, Fall 2003 (See Attachment D-1 for detail): $ Normal department savings at year end: $ Additional savings from vacancies from large number of retirement: $ Net increase in several smaller revenue categories: $ Subtotal, favorable changes since budget adoption: Less unfavorable changes since budget adoption: State gap in Vehicle License Fee Backfill/shift of cities' funds to counties for mandated health costs: Wage increases higher than budgeted: Sales Tax generator moves out of town and business to business sales lag: Sales Tax reporting error by consultant (one time revenue counted as on-going) Continued decline in hotel room rates impacts TOT Revenue: Building Permits: Construction slowdown: Dollars needed to augment Fire Inspection Budget to facilitate fee collection: Subtotal, unfavorable changes since budget adoption: Net changes since budget adoption: [Net projected ending draw on General Fund Reserves: 630 537 420 642 750 100 25 $ 3,104 $ (1,119) $ (755) $ (500) $ (600) $ (400) $ (250) $ (182) $ (3,806) $ $ 201 (702) ($01)l Staff Report To: City Council Subject: Mid-year Financial Review Date: February 25, 2004 Page 4 Economy/Revenue The weak Bay Area economy has continued to take its toll on City revenues. From January 2001 through September 2003, the Bay Area lost 281,000 jobs or about 8% of the workforce from 2000 peak levels. Santa Clara County led with a decline of 181,000 jobs, or 17%, with San Mateo County/San Francisco suffering 103,000 job losses, or 10%. The information technology sector is leading the decline, the major factor for the Bay Area lag against the rest of the State. However, there are indications that the economy is showing some signs of life although the upswing, if it has indeed begun, will be far from dramatic. The strength in the housing market sales and prices so far, fueled by low interest rates and low housing inventories has provided a healthy property tax assessment. In addition, local economic indicators point to rising semiconductor sales, which would predict a turnaround in Silicon Valley, which may be the beginning of a gradual recovery spreading to the rest of the Bay Area. As businesses expand in the Silicon Valley, it should have a positive ripple effect on the construction wholesale sector in South San Francisco, as well as the business-to-business sector. Staff is projecting a net General Fund revenue decline overall of $1.3 million from the amended budget. (The amended budget includes the original Council adopted budget from June 2003, plus all budget amendments passed since that time, primarily in grants that pay for grant supported programs, plus carryover encumbrances, that is incomplete purchase orders carried forward from the prior fiscal year). Operating expenses, incorporating larger than budgeted wage increases, the budget cuts approved in concept by Council last Fall, and annual ongoing budget savings at year end are all projected to result in a $.5 million net savings to expenditures by year end. The net General Fund operating budget, that is the difference between forecasted revenues and expenditures, is expected to end the year with a net draw on reserves of $.5 million. The General Fund Undesignated Reserve is still projected to end the year at $3.9 million, with all General Fund Discretionary Reserves projected at $12 million. A complete General Fund projection is included as Attachment B, following the budget amendment resolution. Areas of significant change since budget adoption are discussed below: Property Tax Amended Budget $10.1 million Revised Estimate 10.7 million Increase $.6 million Final tax roll numbers came in after the adopted budget was settled. Property taxes continue to be the General Fund's most stable revenue source, and the revenue with the highest annual persistent percentage increase. The revised estimate and increase excludes the special $537,000 ERAF refund, which is shown separately on the attached spreadsheet (Attachment B). Staff Report To: City Council Subject: Mid-year Financial Review Date: February 25, 2004 Page 5 Sales Tax Amended Budget $13.3 million Revised Estimate $12.2 million Decrease -$1.1 million This revised estimate shows a loss comprised of three factors. First, the City has lost a bulk fuel sales provider previously discussed, as of January 1, 2004. Second, the City's business-to-business sales continue to lag, indicating the City has not yet begun to climb out of the economic downturn. Third, we have uncovered an error in our sales tax consultant' s numbers going back to last year, which incorrectly factored in some one-time sales tax receipts as ongoing revenue. These revenues were for several years of backpayments for a correction the consultant worked on with the State Board of Equalization, and totaled $600,000. We have since communicated with our consultant how extremely displeased we are with this, and they have agreed to put a more senior member of their staff back on our account. Transient Occupancy Tax (TOT) Amended Budget $4.4 million Revised Estimate $4.0 million Decrease -$ .4 million Occupancy rates have been continuing to rise modestly, but room rates remain lower than anticipated. Staff is now projecting TOT revenue of only $4.0 million for the year, a decline of $400,000 from budget, but $100,000 higher than actual receipts last fiscal year. As of 12/31/03, average hotel occupancy in South San Francisco for the first 6 months of 2003-04 was 64.4%, compared to 61.3% in 2002-03. However, average room rates have declined from $77.50 in 2002-03 to $70.40 this fiscal year to date through 12/31/03. The Conference Center Director has reported that advance bookings for Conference Center events for 2004 have picked up, one positive sign for next fiscal year. Motor Vehicle License Fees (VLF) Amended Budget $3.7 million Revised Estimate $2.6 million Decrease -$1.1 million The State budget for 2003-04, passed after the City's budget was adopted, froze the backfill payments for vehicle license fees (VLF) to local governments for 3 months. As Council may recall, the VLF was reduced by 2/3 in the late 1990's. At that time, the State, in the midst of a strong economy, promised to backfill payments to local governments out of the State General Fund to make up the difference. In this year's State budget, the backfill was frozen or postponed for 3 months. In addition, the State took additional VLF funds from cities to make its obligations to counties for health funding. At the time of this writing, it appears that this reduction is one-time. The Governor's budget for next year proposes to restore the full VLF backfill, but reduces property taxes to local governments in an additional, on-going shift to the Educational Revenue Augmentation Fund (ERAF). Staff Report To: City Council Subject: Mid-year Financial Review Date: February 25, 2004 Page 6 Building Permits Amended Budget Revised EstimateI Decrease $3.2 million $2.9 million -$.3 million Based on revenues received so far, and permit applications in the review process pending approval, staff is forecasting a $250,000 result below budget. Although fiscal 2002-03's fee increases are taking effect for the full fiscal year in 2003-04, the extended length of the Bay Area economic slowdown, especially in the office building market, has likely been a heavy factor in this decrease. General Fund Expenditures The largest contributor to the deficit this year has been rising employee costs. The City Council has remained firm in its goal to compensate City employees at the 60t~ percentile of surveyed cities, with the goal of attracting and retaining an excellent work force. Staff had budgeted salary increases for this year assuming the enhanced PERS benefits would begin to rein in the wage growth we have seen over the past several years. Staff had budgeted a 5% increase in Police, 6% increase in Fire, and 4% overall increase for AFSCME. Actual negotiated increases were 12.5% for Police, 7.6% for Fire, and 8.9% for AFSCME. (Mid-management came in at budget, and the Executive Unit came in well below budget). Staff is now projecting the General Fund to have salaries be $755,000 higher than budget this fiscal year by: - $324,000 for Police for the second half of 2003-04; - $284,000 for AFSCME for all of 2003-04; - $157,000 for Fire for all of 2003-04. It seems prudent to expect, based on department spending patterns year to date, that an additional $750,000 in budget savings will be realized by year end over and above the budget reductions taken this fiscal year. Taking all expenditure items together, that is, higher wages, budget reductions initiated last Fall, unanticipated staff retirements and attrition, and normal year-end savings, staff anticipates a net of $.5 million in expenditure savings by year-end compared to the amended budget, due to Council's quick action last Fall in dealing with the budget situation, and due to departments' continued diligence in managing their costs. Preview of the 2004-05 Budget Preliminary numbers indicate that a status quo budget for next year, that is, one without additional cuts, will result in a $3 - 3.2 million budget shortfall in 2004-05. Key contributors are: State actions: $.7 million The Governor's 2004-05 State budget proposal takes $533,000 in new ERAF property tax dollars Staff Report To: City Council Subject: Mid-year Financial Review Date: February 25, 2004 Page 7 away from the General Fund on top of what's been annually taken since 1992 plus eliminates $150,000 in booking fee reimbursements from the State to the City. It is possible the final budget will take additional city revenues. Wages and Health Increases: $1.5 million A full year implementation of the wage increases that were higher than budget this year, plus another expected double-digit increase in health benefits are projected to add $1.5 million to the shortfall next year. Retirement Increases: $3.3 million. Finally, while planned for, the increase in PERS retirement rates are projected to add $3.3 million to next year's General Fund budget. Council will recall from previous discussions that PERS ramps up new benefit rates over a 3 year time period. Staff is currently working on options to propose to the budget subcommittee, and a meeting will be scheduled shortly. Other Budget Items Citywide Computer Routers, Switches, and Servers Staff had intended to bring to the Council in the Adopted Budget a planned draw on the equipment replacement fund balance to begin replacing citywide computer routers, switches, and servers that had previously not been budgeted in any one department because they are citywide in nature. The attached budget amendment resolution includes drawing down on the Equipment Replacement Fund by $110,000, which is outside the General Fund, for this purpose. There are adequate funds set aside in the Replacement Fund to absorb these expenditures. Fire Inspection Staffing The Fire Department froze four vacant safety inspector positions in 2003-04 and committed $492,400 in fire permit and new inspection fee revenues to help the City achieve its balanced budget. The vacant positions would normally be used to help in generating these revenues. This leaves only two safety inspectors to do the plan checks, construction permits, fire inspections, and annual fire permits needed to generate and collect the revenues. If kept at their current pace, revenues by year-end would fall about $210,000 short of target. The Department has hired one full-time and two part-time contract employees to do these plan checks, permit issuances, and inspections and plans on hiring one additional full-time contractor. The revenues brought in by these contractors pay for their costs. However, the 2003-04 adopted budget did not appropriate for these positions. Therefore, staff recommends a $182,000 budget amendment, included in the attached resolution, for these four positions. They will generate approximately $500,000 in gross revenues and, taking out their cost, garner approximately $320,000 in net revenues to the City. Staff Report To: City Council Subject: Mid-year Financial Review Date: February 25, 2004 Page 8 Charging of Conference Center Debt Service to Downtown Redevelopment Fund As part of the solution to the budget deficit, staff is recommending that the debt service on the current Conference Center site, which is currently paid by the General Fund, be paid by the Redevelopment Agency. This is an appropriate expense for the Agency, as the Conference Center benefits the redevelopment project areas. If the Council approves this change as part of the attached budget amendment, staff will return to both the Council and the Agency Board in several weeks with the necessary legal documents to implement this change. Parking District Correction During the year staff noticed that the operating supplies budget in the City's Parking District fund had been erroneously reduced from $19,000 to $10,000 for fiscal 2003-04. Since this reduction was not intended and anticipated parking revenues were budgeted to be fairly consistent with the previous year, staff recommends restoring their budget to $19,000. Midyear Reductions Finally, the November 2003 budget reductions approved in concept by Council were never formally adopted by resolution. Staff recommends that the attached resolution now formally include these reductions. By: Dii/ector of Finance Approved: Michael A. Wilson City Manager Attachments: Attachment A: Attachment B: Attachment C: Attachment D: Attachment Budget Amendment Resolution General Fund Operating Budget General Fund Reserves Non-General Fund Changes Recommended D-1: Recommended Departmental Reductions Approved in Concept in Pall 2003 RESOLUTION NO. CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION A_MENDING THE 2003-2004 OPERATING BUDGET (04-16) TO INCLUDE THE VARIOUS CHANGES TO REVENUES AND EXPENDITURES CONTAINED IN THE MIDYEAR FINANCIAL REVIEW REPORT WHEREAS, staff recommends approval of the various changes to revenues and expenditures contain in the Midyear Financial Review Report. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council amends the 2003-2004 Operating Budget (04-16) to include the various changes to revenues and expenditures contained in the Midyear Financial Review Report as shown in the attachments hereto. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a meeting held on the _ day of ,2004 by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: City Clerk S:\Current Reso's\2-25midyear.finance.review.res.doc Attachment B Revenues and Other Financing Sources Property Taxes County ERAF Refund Sales Tax Transient Occupancy Tax Motor Vehicle ~n Lieu Fees Revenue from Other Agencies Franchise Fees Business License Building Permits Charges for Services Fines Interest Rent Administrative Charges Other Transfers In Total Revenues: Plus Prior Year Carryovers Total Revenues and Other Financing Sources City of South San Francisco General Fund Operating Budget Actual Actual Actual 2000-01 2001-02 2002-03 Adopted Amended Midyear Budget Budget Budget 2003-04 2003-04 2003-04 Variance Favorable (Unfavorable) $ 7,389,022 $ 9,243,158 13,793,074 $ 13,115,870 6,057,060 $ 3,977,627 3,287,214 $ 3,400,536 1,863,995 $ 1,555,950 1,682,028 $ 1,880,341 1,056,662 $ 1,326,404 2,362,459 $ 2,705,520 4,312,183 $ 4,537,498 932,545 $ 915,270 861,095 $ 909,447 1,002,188 $ 1,240,068 1,472,695 $ 1,602,195 1,963,871 $ 386,169 1,479,098 $ 1,297,538 9,622,976 $ 10,084,000 $ 10,084,000 $ 10,714,000 $ 537,000 12,194,963 13,275,949 $ 13,275,949 12,152,000 3,917,243 4,400,000 $ 4,400,000 4,000,000 3,622,146 3,748,200 $ 3,748,200 2,629,000 1,286,721 1,123,785 $ 1,123,785 1,147,000 1,873,804 2,869,000 $ 2,869,000 2,869,000 1,878,853 1,479,700 $ 1,479,700 1,479,700 2,054,709 3,181,900 $ 3,181,900 2,932,000 4,554,519 4,771,300 $ 4,771,300 4,743,000 907,768 1,048,500 $ 1,048,500 1,068,000 1,053,492 888,000 $ 888,000 923,000 1,832,252 2,064,100 $ 2,064,100 2,484,100 1,651,311 1,848,868 $ 1,848,868 1,848,868 468,139 435,000 $ 435,000 435,000 1,168,236 1,095,400 $ 1,095,400 1,095,400 $ 49,535,189 $ 48,093,591 $ 48,087,132 $ 52,313,702 $ 52,313,702 $ 51,057,068 283,290 283,290 630,000 537,000 (1,123,949) (400,000) (1,119,200) 23,215 (249,9OO) (28,300) 19,500 35,000 420,000 (1,256,634) $ 49,535,189 $ 48,093,591 $ 48,087,132 $ 52,313,702 $ 52,596,992 $ 51,340,358 $ (1,256,634) Expenditures Administration 5,312,986 6,080,430 6,387,828 5,258,510 5,403,783 5,403,783 0 Economic & Comm. Dev. 1,978,026 1,808,866 2,623,375 2,689,613 2,795,821 2,795,821 0 Fire 11,845,565 12,426,011 11,387,186 13,762,296 13,768,146 13,950,146 -182,000 Library 3,480,492 3,849,648 3,953,664 4,101,498 4,106,957 4,106,957 0 Police 11,842,894 12,132,348 12,471,829 14,264,946 14,273,039 14,273,039 0 Maintenance Services 5,942,148 5,947,137 5,947,137 0 0 Parks, Rec & Maint. Svcs. 10,388,107 10,691,657 10,696,566 0 Public Works 1,133,467 1,123,054 1,170,689 990,784 991,016 991.016 0 Recreation and Community Services 5,102,893 Ongoing, regular dept savings Cuts approved in October (80% of cuts approved in Oct) Early retirements, vacancies AFSCME, Fire, Police salary plans over budget Subtotal, Operating Budget Expenditures $ 45,981,537 $ 48,112,014 $ 48,691,137 $ 52,112,688 $ 5,110,079 5,110,079 0 ~50,000) 750,000 (641,500) 641,500 (100,000) 100,000 755,000 ~55,000 52,395,978 $ 51,841,478 554,500 Net Operating Budget Impact $ 3,553,652 $ (18,423) $ (604,005) $ 201,014 $ 201,014 $ (501,120) - Total General Fund Operating and Capital Budget, & Changes to General Fund Reserves Net Operating Budget Impact (from Attachment B) Less Transfers to Capital Projects: Less Transfers to Debt Service Plus (Minus) One-Time Transactions: Plus Favorable Resolution of Genentech Property Tax Settlement: Plus Favorable (Unfavorable) change in funds set aside for legal settlements: Less Unfavorable Increase in Projected Workers' Compensation Liability: Net Impact on General Fund Reserves IGeneral Fund Reserves Projection I. Discretionary Reserves/ Liquid Reserves Available Emergencies Economic Contingencies Designaged for future Economic Development Projects Undesignated Reserve I1. Non-Discretionary Reserves/ Reserves Already Committed Encumbrances Advances to Other Funds inventory Appropriated Capital Projects Subtotal, Non Discretionary Reserves Total General Fund Reserves Attachment C Year End Actual 2002-03 $ (604,005) (733,000) (452,000) 1,122,000 700,000 (1,200,000) (1,167,005) 1,000,000 3,500,000 3,600,000 4,323,O0O 283,000 845,O0O 51,000 391,000 Adopted Budget 2003-04 201,014 $ (87,ooo) (130,000) (15,986) 1,000,000 3,500,000 3,600,000 5,508,014 318,000 51,000 Midyear Budget 2003-04 (501,120) (478,OOO) (I 30,000) (230,000) (1,339,12O) 1,000,000 3,500,000 3,600,000 3,932,880 S 12,032,880 0 570,000 51,000 0 $ 1,570,000 $ 369,000 $ 621,000 $ 13,993,000 $ 14,209,804 $ 12,653,880 Attachment D Non-General Fund Budget Amendment Changes: All of the budget amendment changes are summarized on Attachment B for the General Fund. Non-General Fund changes recommended are: 1. Citywide computer routers, switches, and servers $ Funds will come from the Equipment Replacment Fund Reserve, and will not impact General Fund reserves. 110,000 2. Adjustment of Parking District Fund budget for supplies $ Funds will come from the Parking District Fund reserves, and will not impact General Fund reserves. 9,000 3. Conference Center Debt $ (Shifts Debt Service to the Downtown RDA Project Area Debt Service Fund from the General City Debt Service Fund. Shifts Rent Revenue from Conference Center from Debt Service Fund to the General Fund. 420,000 Attachment D-1 Recommended Reductions Approved in Concept by Council in Fall 2003: Dept Reductions: City Clerk City Council City Manager Finance HR IT Non-Departmental ECD Fire Library Maintenance Services: Building Fleet Parks Streets Recreation and Community Services Police (one-time) Public Works Equipment & Vehicle Replacement Total Dept. Reductions: Assume 80% savings to be conservative: 2003-04 Part-Year* $ 4,000 1,000 29,0OO 22,607 31,000 20,000 27,730 43,084 133,875 2,800 53,200 77,000 66,000 58,000 39,550 135,892 0 57,137 $ 801,875 641,500 - 1 - 2/20/2oo4 DATE: TO: FROM: SUBJECT: A GEND/t ITEM Staff Xeport February 25, 2004 The Honorable Mayor and City Council John Gibbs, Director of Public Works EMINENT DOMAIN FOR WET WEATHER PROGRAM - PHASE 1 PROJECT ENGINEERING FIIJE SS-02-1, PROJECT NO. 71-13235-0351, BID NO. 2323 ti/2 RECOMMENDATION: It is recommended that City Council adopt a Resolution of Necessity and directing the filing of Eminent Domain proceedings for the acquisition of certain real property interests in connection with the Wet Weather Program Phase 1 Project. BACKGROUND/DISCUSSION: The Wet Weather Program consists of improvements to the wastewater collection system and pump stations to control sewer system overflows. This project is required to comply with the Cease and Desist Order (CDO) issued by the Regional Water Quality Control Board. Compliance is required by November 1, 2007. The City will use State Revolving Funds to finance the project. This project consists of the following: · Upgrade to San Mateo Pump Station. · Construction of new Shaw Road Pump Station. · Construction of new 36-inch Lowrie Avenue Force Main. · Construction of new 42-inch Shaw Road Force Main. · Construction of new Effluent Storage Pond and Pump Station. · Construction of new Vactor Truck Unloading Station. · Installation of new Influent Pumps and Effluent Pumps at WQCP. · Construction of new Gravity Sewer Mains in Lowrie Avenue and San Mateo Avenue. The matter to be considered at this hearing is whether or not the Council should adopt a Resolution of Necessity, the common term for a resolution authorizing the filing of Eminent Domain lawsuits to acquire the real property interests that will allow the City to construct the improvements contemplated by the Wet Weather Program Phase I Project. California Eminent Domain Law requires a public agency to do the following prior to adopting a Resolution of Necessity: Staff Report ro~ Re: Date: The Honorable Mayor and City Council Eminent Domain For Wet Weather Program - Phase 1 Project February 25, 2004 Page: 2 of 4 ao Appraise the property interests that need to be acquired by the City for the public improvements. b. Offer the owners of the property interest the appraised value of those interests. The City has contracted with Appraisal Research Corporation to appraise the property interests that are required for the project and has offered the appraised value to the property owners. In particular, offers to purchase the required property interests were mailed to the following property owners on the following dates: NAME DATE EASEMENT/AREA SQ/FT Penske Truck Leasing Company, L.P. 015-115-540 Public Storage Properties XIV, Inc. 015-113-180 Elias S. Hanna, Trustee of Elias S. Hanna Trust 015-113-290/330 Lands of Parking Co. of America Airports 015-113-410 Lands of Bourque and Patterson February ll, 2004 February09,2004 February 09,2004 AMOUNT/OFFER Permanent easement / $76,000 20,294 Permanent easement / 130 Temporary construction easement / 1,177 $5,000 $700 January 28, 2004 Temporary construction $1,000 easement / 1,650 Temporary construction easement / 2,800 February09,2004 $1,680 015-113-450 Staff Report ro~ Re: Date: The Honorable Mayor and City Council Eminent Domain For Wet Weather Program - Phase 1 Project February 25, 2004 Page: 3 of 4 As of the date of this report, no offer has been accepted. In order to construct Phase I of the project in a timely fashion, the Public Works Department must commence construction in the next several months. California Eminent Domain Law provides that the City may obtain an Order of Prejudgment Possession immediately after it files an Eminent Domain lawsuit and deposits the appraised value of each property interest to be acquired into the State Treasury Condemnation Fund. In the event a property is being used for business, residential or agricultural purposes, the law requires that the possession order be operative not earlier than 90 days following the date that the possession order is served on the property owner. This period may be shortened upon a showing of urgent necessity. If the Resolution of Necessity is adopted by the Council, the City Attorney intends to request 90-day possession orders. Such orders would allow the City to award a contract that requires construction to begin not earlier than 90 days following service of the order on each owner. The only issues to be discussed at the heating on the Resolution of Necessity are as follows: 1. Whether the public interest and necessity require the project; 2. Whether the project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; 3. Whether the interests sought to be acquired are necessary for the project; and 4. Whether the offer to purchase required by Government Code Section 7267.2 has been made to the owners of record. Notices of the heating have been mailed to each of the property owners in question. In the event that any property owner appears and desires to speak to any of the above issues, the Council should permit the owner to state his or her objections or observations. The Council should not permit any discussion of the amount of compensation to be paid for the property interests to be acquired. Compensation is not a proper issue or matter for discussion. In order to adopt the Resolution of Necessity, a 2/3 majority vote is required or 4 affirmative votes on a five member Council. Staff Report To~ Re: Date: The Honorable Mayor and City Council Eminent Domain For Wet Weather Program - Phase 1 Project February 25, 2004 Page: 4 of 4 The project was originally analyzed in the Mitigated Negative Declaration under California Environmental Quality Act (CEQA). The City Council adopted a resolution for a Mitigated Negative Declaration and a Mitigation Monitoring Program for the Sewer Improvements on October 23, 2002. The Mitigated Negative Declaration included an assessment of potential environmental impacts as set forth in the California Environmental Quality Act (CEQA) guidelines and recommends a number of mitigation measures to reduce impacts to less-than-significant levels. FUNDING: This project is included in the City of South San Francisco's 2003-2004 and 2004-2005 Capital Improvement Program (CIP/71-13235-0351) in the amount of $23,505,904.00. The City has received an approved preliminary funding commitment of $45,000,000 for Phases I through V from the State Water Resources Control Board for the Wet Weather Program, Approved: Michael A. Wilsoff. City Manager ATTACHMENTS: Resolution of Necessity Exhibit A - Easement Descriptions BB/SMJJG/ed RESOLUTION NO. A RESOLUTION DETERMINING THAT THE PUBLIC INTEREST AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN LAND AND DIRECTING THE FILING OF EMINENT DOMAIN PROCEEDINGS WET ~rEATHER PROJECT Parcel Nos: APN 015-113-330 - San Mateo Blvd, South San Francisco APN 015-113-290 - San Mateo Blvd, South San Francisco APN 015-113-410 - San Mateo Blvd, South San Francisco APN 015-113-180 - Airport Blvd & San Mateo Blvd, South San Francisco APN 015-115-540 - Lowrie Avenue, South San Francisco APN 015-113-450 San Mateo Avenue, South San Francisco IT IS RESOLVED by the City Council of the City of South San Francisco, California, as follows: WHEREAS, it is desirable and necessary for the City Council of the City of South San Francisco to acquire the fee simple title, permanent easements, and temporary construction easements in and to real property more particularly described in Exhibit "A," attached hereto and made a part hereof by reference, to construct the Wet Weather Program and related facilities and appurtenances in connection with the above-captioned Project; and WHEREAS, the City Council of the City of South San Francisco is vested with the power of eminent domain to acquire said real property interests by virtue of Article 1, Section 19, of the Constitution of the State of California, Health and Safety Code Section 5001 and Sections 1240.010, 1240.020, 1240.030, 1240.040, 1240.050, 1240.110, 1240.120, 1250.110 of the Code of Civil Procedure of the State of California; and WHEREAS, pursuant to the provisions of Section 1245.235 of the Code of Civil Procedure of the State of California, notice has been duly given to the owners of the subject property and whose names and addresses appear on the most recent San Mateo County's equalized assessment roll, all of whom have been given a reasonable opportunity to appear and be heard before the City Council of the City of South San Francisco on the following matters: (a) Whether the public interest and necessity require the Project; and (b) Whether the Project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; and (c) Whether the interests sought to be acquired are necessary for the Project; and (d) Whether the offer to purchase required by Government Code section 7267.2 has been submitted to the owners of the real property interests. WHEREAS, pursuant to the provisions of Section 7267.2 of the Government Code of the State of California, the City Council of the City of South San Francisco has made an offer to the owners of subject property for just compensation. NOW, THEREFORE, IT IS FOUND, DETERMINED, AND ORDERED as follows: 1. The public interest and necessity require the Project; 2. The Project is planned and located in the manner which will be most compatible with the greatest public good and the least private injury; 3. The property interests sought to be acquired are necessary for the project; 4. The offer required by section 7267.2 of the Government Code of the State of California has been made to the owners of subject property; The City Attorney of the City of South San Francisco or his duly authorized designee be, and he is hereby authorized and directed to institute and conduct to conclusion an action in eminent domain for the acquisition of the estates and interests aforesaid and to take such action as he may deem advisable or necessary in connection therewith; o An order for prejudgment possession may be obtained in said action and a warrant issued to the State Treasury Condemnation Fund, in the amount determined by the Court to be do deposited, as a condition to the right of immediate possession. 2 [Remainder of Page Intentionally Left Blank.] I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a meeting held on the day of ,2004 by the following vote: AYES: NOES: ABSTAIN: ABSENT: S :\Current Reso's\2-25 Wet Weather Proj ect2.DOC ATTEST: City Clerk Exhibit A Legal Description for Proposed Easement The land referred to herein is situate in the State of California, County of San Mateo, City of South San Francisco, described as follows; A portion of the parcel of land conveyed to Parking Company of America Airports, LLC as described in the deed recorded on December 20, 2002 as Series No.2002-273068, Records of San Mateo County, more particularly described as follows; BEGINNING at the most southeasterly comer of Lot 21, in Block 2, as shown on that certain map entitled "PERSON AND SWANSON INDUSTRIAL TRACT, SOUTH SAN FRANCISCO, SAN MATEO COUNTY, CALIFORNIA", filed on September 5, 1961 in Book 55 of Maps at pages 12 and 13, Records of said San Mateo County; thence along the easterly line of said Lot 21, North 1 l°39'00'' East, distance of 25.00 feet; thence leaving last said line, South 78021'00" East, a distance of 33.00 feet; thence South 11°39'00'' West, a distance of 50.00 feet; thence North 78°21 '00" West, a distance of 33.00 feet to a point on the easterly line of Lot 20 in said Block 2 of said map; thence along last said easterly line, North 1 l°39'00'' East, a distance of 25.00 feet to the POINT OF BEGINNING Containing an area of 1,650 square feet, more or less. ,, / / 7---------______ i / ~~ / ~_ ~~ / Beginning ~/~ ~ e po ary uons~ruc~lon / ~/ Easement ~.~ / / ~,~o s~. n. +/-  i / LANDS OF PARKING CO. co 19 ,~ OF AMERICA AIRPORTS ..... . , j SERIES NO. 2002-273068 ' '"' '-'"-~ ...... ',~ APN: 015-113-410 ; 18 ' / --"-"'4 ' \ / 16 , F .... / ,' \ ~ ...... ~ ~ ~ 11'39'00" [ 25.00' ~ S 78'21'00" ~ S ~'39'00" W 50.00' ~ ~ 78'2~'00" W 33.00' ~ ~ ~'3~'00" [ 25.00' 0 c~ c © PLAT TO ACCOMPANY LEGAL DESCRIPTION IT............ DATE OF SURVEY: 2/07/2004 '"~"~"~ll~l]/[surveyino, Mappino SCALE: 1"= 100' [ V~'~I' IL-~,, land fils Services 5099 Commerc~a~ Circle ~;uite i00 JOB NO: 8838 Cot ,:;ord~ C;A ~)4 52(.:A~5:~i ! DWO NAME: 8inch sewer ocoo DFT: ML PM: RS SHEET OF Exhibit A Legal Description for Proposed Easement The land referred to herein is situate in the State of California, County of San Mateo, City of South San Francisco, described as follows; A portion of the parcel of land conveyed to Paul and Laura Bourque and Douglas and Valerie Patterson as described in the deed recorded on January 22, 2002 as Series No. 2002-010980, Records of San Mateo County, more particularly described as follows; COMMENCING at the most westerly comer of Lot 21, in Block 2, as shown on that certain map entitled "PERSON AND SWANSON INDUSTRIAL TRACT, SOUTH SAN FRANCISCO; SAN MATEO COUNTY, CALIFORNIA", filed on September 5, 1961 in Book 55 of Maps at pages 12 and 13, Records of said San Mateo County, said comer also being on the easterly right of way line of San Mateo Avenue, as shown on said map; thence along the southerly line of said Lot 21, South 78°21'00" East, a distance of 10.00 feet; thence leaving said southerly line, North 11°39'00'' East, a distance of 5.00 feet to a point on an existing 5 foot wide public utility easement line as shown on said map, said point being the POINT OF BEGINNING of this description; thence North 11°39'00" East, a distance of 20.00 feet; thence South 78°21'00'' East, a distance of 140.00 feet; thence South 11039'00" West, a distance of 20.00 feet to the said existing public utility easement line; thence along last said easement line, North 78°21'00'' West, a distance of 140.00 feet to the POINT OF BEGINNING. Containing an area of 2,800 square feet, more or less. Temporary Access Easemen 2.aaa sq. Ft. +/-. ~A,DS o~ eOU,eUE% (PARCEL THREE) Beginning Q) S 78'21'00" E 10.00' (~ N 11'59'00" E 5.00' (~) N 11',39'00" E 20.00' (~) $ 78'21'00" E 140.00' (~ S 11"39'00" W 20.00' (~) N 78'21'00" W 140.00' PLAT TO ACCOMPANY LEGAL DESCRIPTION DATE OF SURVEY: 2/07/2004 SCALE: I"= 100' JOB NO: 8838 DWO NAME: 8inch_20x140,,,,,,Bourc~ue dwc~ DFT: ML PM: RS SHEET 1 OF 1 Exhibit A Legal Description for Proposed Easement The land referred to herein is situate in the State of California, County of San Mateo, City of South San Francisco, described as follows; A portion of the parcel of land conveyed to Elias Hanna, Trustee of the Elias S. Hanna Trust dated June 10, 1996 as described in the deed recorded on September 9, 1996 as Series No. 96111424, Records of San Mateo County, more particularly described as follows; COMMENCING at the most southeasterly comer of Lot 21, in Block 2, as shown on that certain map entitled "PERSON AND SWANSON INDUSTRIAL TRACT, SOUTH SAN FRANCISCO, SAN MATEO COUNTY, CALIFORNIA", filed on September 5, 1961 in Book 55 of Maps at pages 12 and 13, Records of said San Mateo County; thence along the easterly prolongation of the southerly line of said Lot 21, South 78°21'00" East, a distance of 33.00 feet to a point on the westerly line of said parcel conveyed to Hanna, said point being the POINT OF BEGINNING of this description; thence along said westerly line, North 11°39'00'' East, distance of 25.00 feet; thence leaving last said line, South 78°21'00'' East, a distance of 23.54 feet; thence South 11°39'00'' West, a distance of 50.00 feet; thence North 78°21'00'' West, a distance of 23.54 feet to a point on said westerly line; thence along said westerly line, North 11°39'00'' East, a distance of 25.00 feet to the POINT OF BEGINNING. Containing an area of 1,177 square feet, more or less. LANDS OF HANNA SERIES NO. 96111424 (PARCEL TWO) APN: 015-113-.3.30 78'21'00" E 33.00' / Temporory Construction Eosement 1,177 Sq, Ft. +/- LANDS OF HANNA SERIES NO. 96111424 (PARCEL ONE) APN: 015-113-290 (~) N 11'39'00" E 25.00' (~) S 78'21'00" E 25.54' ® s 11'`39'00" w 50.00' p,q (~) N 78'21'00" W 23.54' (~) N 11'59'00" E 25.00' PLAT TO ACCOMPANY LEGAL DESCRIPTION "'~'~t~ll'~r~'lll ~/[ Survsyino, Mapping ~1 V~' a~land GIS Services 5C~g,,,~, .............. ,.~ ~. ~ C~c ~ Su~t~- i00 DATE OF SURVEY: 2/07/2004 DFT: ML SCALE: 1" = 100' PM: RS JoB No: 88s8 SHEET DWC; NAME: 8inch sewer Honno 1 OF 1 Exhibit A Legal Description for Proposed Easement The land referred to herein is situate in the State of California, County of San Mateo, City of South San Francisco, described as follows; A portion of the parcel of land conveyed to Public Storage Properties XIV, Inc. as described in the deed recorded on August 2, 1991 as Series No. 91101050, Records of San Mateo County, more particularly described as follows; COMMENCING at the most southerly comer of said land conveyed to Pubhc Storage Properties XIV, Inc., said comer also being on the general easterly right of way line of the Southern Pacific Company, as recorded November 20, 1930 in Book 506 of Official Records at page 00, Records of San Mateo County; thence along said general easterly right of way line, also being the westerly line of said lands of Pubhc Storage Properties XIV, Inc., the following two courses: 1) North 52°43'55" West, a distance of 7.44 feet; 2) along a tangent curve to the right having a radius of 270.34 feet, through a central angle of 46°53'52", for an arc length of 221.28 feet to the POINT OF BEGINNING of this description, from which point a radial line bears North 84o09, 15" East; thence continuing along said right of way line and westerly line and curve, through a central angle of 4°20'47'', for an arc length of 20.51 feet; thence leaving last said lines, North 88042'46" East, a distance of 6.22 feet; thence South 2°43'35" East, a distance of 21.10 feet; thence South 84°09'15" West, a distance of 5.91 feet to the POINT OF BEGINNING. Containing an area of 130 square feet, more or less. No. LS 7198 [xp. 1'2./ /~~ 6.22' __N88'42'___4.6"E . R=270.54' ~ L=20.51' 'o? T=10.26 ,.- ,4- A=4-'20'47" ~ [-,4 Point of~'''~O~ 5.91' p egin, ning OB) DETAIL 1" = 20' .SAN MATEO PUMP STATION FACILITY SEE DETAIL ~ Point of ~, Commencement PLAT TO ACCOMPANY LEGAL DESCRIPTION Mapping by: TOWILL Surveying, Mapping and G S Serv ces 5099 Commercial Circle Suite 100 Concord, CA 94520-8531 DATE OF SURVEY: 02-07-2004 SCALE: 1"= 80' JOB NO: 8388-101-022 DWG NAME: 8858RTK DFT: RBY PM: RSS SHEET 1 OF 1 Exhibit A Legal Description for Proposed Easement The land referred to herein is situate in the State of California, County of San Mateo, City of South San Francisco, described as follows; A portion of that certain parcel of land described in the Quitclaim Deed from Geico Corporation to Penske Track Leasing Co., L.P., recorded on January 5, 1989 under Recorder's Serial No. 89001251, Official Records of San Mateo County, more particularly described as follows; BEGINNING at the southwesterly comer of said lands of Penske Track Leasing Co., said comer also being the southeasterly comer of Lot 25, Block 1, as shown on that certain map entitled "BOTHIN SUBDIVISION NO. 2, SOUTH SAN FRANCISCO, SAN MATEO COUNTY, CALIFORNIA", fried on February 27, 1968 in Book 67 of Maps at pages 17 and 18, Office of the County Recorder of San Mateo County; thence along the westerly line of said lands of Penske Track Leasing Co., North 13°20'16'' East, a distance of 308.01 feet to the southeasterly comer of Parcel One, as said parcel is described in the Deed to San Mateo Flood Control District, recorded on January 17, 1983 under Recorder's Serial No. 83004769, Official Records; thence along the southerly line of last said Deed, South 54033'45" East, a distance of 71.23 feet to a point on the easterly line of said lands of Penske Track Leasing Co., said line also being the westerly line of Lot 28, in Block 1, as shown on said map; thence along the said easterly line of the lands of Penske Truck Leasing Co., South 13°20'16" West, a distance of 309.03 feet to the southwesterly comer of last said lands, said comer being the beginning of a non-tangent curve, having a radius of 40.00 feet, from which point a radial line bears North 15°28'22" East; thence along the southerly line of last said lands and curve the following two courses: 1) northwesterly along said curve to the right, through a central angle of 41°42'35", for an arc length of 29.12 feet to the beginniug of a reverse curve to the left having a radius of 60.00 feet; thence along said reverse curve through a central angle of 42°08'40'', for an arc length of 44.13 feet to the POINT OF BEGINNING. Containing an area of 20,294 square feet, more or less. Exp. ,'Vo '/,/ Plat To Accompany Legal Description 21 22 LOWRIE AVE. 23 BLO 24 ..... '"'~------.. 33' San MateD Co. .......... _Flood Control District CK 1 ....... .............. -... Ingress/Egress Ease. ........ ~-- Doc. No. 83004769, '"Parc.el Two 67 MAF S 17.-18 25 ............. "~"7 kX,/~/\/P°fnt of Beg,nn,ng / ....... ~ N13 ..... 16 / ............ ~ 20 E ,.308.01 O/ APN: 015-115-540 -/ 20,294 Sq. Ft. +/- ~ Flood Control District ~ ~a~d~ ~f~~uZk~n~ bo.~ ~ Parcel One ~~ Serial No. 89001251 l/ Doc. No. 83004769 '% S13'20~18"W 309.05' // % N15'28'22"E / (R: /~/ re~k / BLO 55 MA~ 27 K 1 / / S 12-15 / / 28 O~ S54'33'45"E 71.23' O R=40.00' A=41 '42'35" L=29.12' O R=60.00' A= 42'08'40" L=44.13' TMapping by: '"[~~l Il I Surveying, Mapping I V~'V IS--L-land (IlS Services 5075F Commercial Circle Concord, CA 94520-8531 PERMANENT EASEMENT Scale: t"=to0' Portion between Lowrie Ave & Colma Creek Date: 2/07/2004 City of South San Francisco By: ML/RS PENSKE LEASING PUBLIC STORAGE PROPERTIES ELIAS S. HANNA / LANDS OF PARKING CO. OF AMERICA AIRPORTS LANDS OF BOURQUE AND PATTERSON