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HomeMy WebLinkAboutAgenda Packet - CC - 2018.01.02City Council City of Burlingame Meeting Agenda - Final BURLINGAME CITY HALL 501 PRIMROSE ROAD BURLINGAME, CA 94010 Council Chambers7:00 PMTuesday, January 2, 2018 STUDY SESSION - 6:00 p.m. - Council Chambers Solid Waste Ratesa. Note: Public comment is permitted on all action items as noted on the agenda below and in the non-agenda public comment provided for in item 7. Speakers are asked to fill out a "request to speak" card located on the table by the door and hand it to staff, although the provision of a name, address or other identifying information is optional. Speakers are limited to three minutes each; the Mayor may adjust the time limit in light of the number of anticipated speakers. All votes are unanimous unless separately noted for the record. 1. CALL TO ORDER - 7:00 p.m. - Council Chambers 2. PLEDGE OF ALLEGIANCE TO THE FLAG 3. ROLL CALL 4. REPORT OUT FROM CLOSED SESSION 5. UPCOMING EVENTS 6. PRESENTATIONS 7. PUBLIC COMMENTS, NON-AGENDA Members of the public may speak about any item not on the agenda. Members of the public wishing to suggest an item for a future Council agenda may do so during this public comment period. The Ralph M . Brown Act (the State local agency open meeting law) prohibits the City Council from acting on any matter that is not on the agenda. 8. APPROVAL OF CONSENT CALENDAR Consent calendar items are usually approved in a single motion, unless pulled for separate discussion . Any member of the public wishing to comment on an item listed here may do so by submitting a speaker slip for that item in advance of the Council’s consideration of the consent calendar. Page 1 City of Burlingame Printed on 12/28/2017 January 2, 2018City Council Meeting Agenda - Final Adoption of City Council Meeting Minutes December 18, 2017a. Meeting MinutesAttachments: Confirmation of the Mayor's Council Assignments for 2018b. Staff Report Council Assignments Attachments: Adoption of Resolutions Awarding a Construction Contract to EPS Inc ., dba Express Plumbing, for the Easton Addition, Ray Park, and Neighborhood Sewer Rehabilitation Project Phase 3, City Project No. 84192, and Approving a Professional Services Agreement with Bellecci & Associates for the Construction Management Services Related to the Project c. Staff Report Resolution Awarding the Construction Contract Resolution Approving Professional Services Agreement Bid Summary Construction Contract Professional Services Agreement Project Location Map Attachments: Adoption of a Resolution Authorizing the City Manager to Execute Agreements with the California Department of Tax and Fee Administration (CDTFA) for Implementation and Administration of Burlingame ’s Local Transactions and Use Tax; and Adoption of a Resolution Identifying Individuals Authorized to Examine Confidential Records of the CDTFA Pertaining to the Transactions and Use Taxes Collected Pursuant to Those Agreements d. Staff Report Resolution to Authorize Agreements Resolution Authorizing Access Attachments: Authorization to Contract with Hinderliter, de Lamas and Associates for Transaction Tax Audit and Information Services; and Adoption of a Resolution Authorizing Examination of the State Department of Tax and Fee Administration ’s Sales, Use and Transactions Tax Records e. Staff Report Resolution Agreement Attachments: 9. PUBLIC HEARINGS (Public Comment) 10. STAFF REPORTS AND COMMUNICATIONS (Public Comment) Page 2 City of Burlingame Printed on 12/28/2017 January 2, 2018City Council Meeting Agenda - Final Adoption of a Resolution Authorizing the City Manager to Execute an Amendment to the Agreement with Fung Collaboratives and Approve an Additional General Fund Appropriation in the Amount of $13,833 a. Staff Report Resolution Amendment to the Agreement Attachments: Update Regarding Home for All Community Engagement Pilot Programb. Staff ReportAttachments: Consideration of Appointments to the Traffic, Safety & Parking Commissionc. Staff ReportAttachments: Consideration of an Appointment to the Storm Drain Measure Oversight Committeed. Staff ReportAttachments: Discussion of the Composition and Scope of Responsibilities for the Measure I Oversight Committee and Determination of a Preferred Selection Process e. Staff Report South San Francisco Oversight Committee Bylaws Santa Rosa Measure O Citizen Oversight Committee Attachments: Adoption of a Resolution Authorizing the City Manager to Execute an Agreement for Professional Services with MIG for the Development of a Parks Master Plan f. Staff Report Resolution Agreement for Professional Services with MIG Attachments: Adoption of a Resolution Authorizing the City Manager to Execute an Agreement with Burlingame Youth Baseball Association for Use of City -Owned Fields For Recreational Baseball Use, Concession Sales, and Storage g. Staff Report Resolution Draft Agreement Attachments: 11. COUNCIL COMMITTEE AND ACTIVITIES REPORTS AND ANNOUNCEMENTS Councilmembers report on committees and activities and make announcements. 12. FUTURE AGENDA ITEMS Page 3 City of Burlingame Printed on 12/28/2017 January 2, 2018City Council Meeting Agenda - Final 13. ACKNOWLEDGMENTS The agendas, packets, and meeting minutes for the Planning Commission, Traffic, Safety & Parking Commission, Beautification Commission, Parks & Recreation Commission and Library Board of Trustees are available online at www.burlingame.org. 14. ADJOURNMENT Notice: Any attendees wishing accommodations for disabilities please contact the City Clerk at (650)558-7203 at least 24 hours before the meeting. A copy of the Agenda Packet is available for public review at the City Clerk's office, City Hall, 501 Primrose Road, from 8:00 a.m. to 5:00 p.m. before the meeting and at the meeting. Visit the City's website at www.burlingame.org. Agendas and minutes are available at this site. NEXT CITY COUNCIL MEETING - Next regular City Council Meeting - Tuesday, January 16, 2018 VIEW REGULAR COUNCIL MEETING ONLINE AT WWW.BURLINGAME.ORG - GO TO "CITY COUNCIL VIDEOS" Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection at the Water Office counter at City Hall at 501 Primrose Road during normal business hours. Page 4 City of Burlingame Printed on 12/28/2017 Agenda Item 8a Meeting Date: 1/2/18 Burlingame City Council December 18, 2017 Unapproved Minutes 1 BURLINGAME CITY COUNCIL Unapproved Minutes Regular Meeting on December 18, 2017 1. CALL TO ORDER A duly noticed regular meeting of the Burlingame City Council was held on the above date in the City Hall Council Chambers. 2. PLEDGE OF ALLEGIANCE TO THE FLAG The pledge of allegiance was led by Farris Horak. 3. ROLL CALL MEMBERS PRESENT: Beach, Brownrigg, Colson, Keighran, Ortiz MEMBERS ABSENT: None 4. REPORT OUT FROM CLOSED SESSION There was no closed session. 5. UPCOMING EVENTS Mayor Ortiz reviewed the upcoming events taking place in the City. 6. PRESENTATIONS a. PUBLIC SAFETY AND EMERGENCY PREPAREDNESS VOLUNTEERS APPRECIATION Central County Fire Department (“CCFD”) Chief Kammeyer discussed the work that his crews did during the North Bay fires. He thanked his team for their hardwork and dedication to the community and thanked the City Council for recognizing CCFD’s efforts. Mayor Ortiz recognized the following firefighters for their tireless efforts fighting the North Bay fires: Fire Marshal Rocque Yballa, Battalion Chief Craig Latham, Captain Pat Murphy, Captain John Tsivikas, Captain Dave Turchet, Captain Gus Rueb, Firefighter Herman Barahona, Firefighter Ron Novelli, Firefighter Lukas Agenda Item 8a Meeting Date: 1/2/18 Burlingame City Council December 18, 2017 Unapproved Minutes 2 Kirby, Firefighter Jon Hutchison, Firefighter Scott Stacey, Firefighter Fernando Nunez, Firefighter Chris Wettstein, and Firefighter Ron Hunt. Many of the firefighters were not able to attend the meeting as they were in Southern California assisting with the fires. Next, Police Chief Wollman discussed his officers’ work during the North Bay fires and talked about the camaraderie between law enforcement and fire departments during times of need. Mayor Ortiz recognized the following police officers for their efforts to keep people and property safe during the North Bay fires: Officer Robert Cissna, Officer Ben Filice, Inspector Michael Bolanos, and Officer Cheyanne Green. Mayor Ortiz also recognized the following residents from the Burlingame Neighborhood Network for hosting a successful Citywide Emergency Drill and partnering with the City to build community resilience; Kathy Schmidt, Suzanne Tateosian, Holly Daley, Rik Kasuga, Erika James, Anne Hinkle, and Terry Nagel. Police Chief Wollman presented the Burlingame Neighborhood Network with some of the Police Department older, still-working radios to further assist their program. Thank you to CCFD, BPD, and the Burlingame Neighborhood Network for your hardwork and dedication to the community. 7. PUBLIC COMMENT Burlingame resident Jennifer Pfaff thanked Mayor Ortiz for his leadership and service as Mayor over the past year. 8. CONSENT CALENDAR Mayor Ortiz asked the Councilmembers and the public if they wished to remove any item from the Consent Calendar. Councilmember Beach pulled item 8c. Councilmember Keighran made a motion to adopt 8a, 8b, 8d, 8e and 8f; seconded by Vice Mayor Brownrigg. The motion passed unanimously by voice vote, 5-0. a. ADOPTION OF CITY COUNCIL MEETING MINUTES DECEMBER 4, 2017 City Clerk Hassel-Shearer requested Council adopt the City Council Meeting Minutes of December 4, 2017. b. ADOPTION OF A RESOLUTION AWARDING A CONTRACT TO DUKE’S ROOT CONTROL, INC., FOR THE SANITARY SEWER ROOT CONTROL PROGRAM DPW Murtuza requested Council adopt Resolution Number 133-2017. Agenda Item 8a Meeting Date: 1/2/18 Burlingame City Council December 18, 2017 Unapproved Minutes 3 c. ADOPTION OF A RESOLUTION APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH ALTA PLANNING + DESIGN, INC., FOR THE ENGINEERING DESIGN OF THE 2018 STREET RESURFACING PROJECT, CITY PROJECT NO. 84810; AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT DPW Murtuza requested Council adopt Resolution Number 134-2017. Councilmember Beach explained that 8c concerned awarding an agreement to Alta Planning + design, Inc. for street resurfacing in 2018. She asked if members of the public, TSP Commission, and BPAC would have a meaningful opportunity to provide input on the design before it gets too far along in the process. DPW Murtuza replied in the affirmative stating that staff always seeks public input. Mayor Ortiz opened the item up for public comment. No one spoke. Councilmember Beach made a motion to adopt Resolution Number 134-2017; seconded by Councilmember Keighran. The motion passed unanimously by voice vote. d. ADOPTION OF A RESOLUTION ACKNOWLEDGING THE RECENT REORGANIZATION OF SALES AND USE TAX ADMINISTRATION SERVICES FOR PURPOSES OF CONTRACTING WITH THE NEW CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION Finance Director Augustine requested Council adopt Resolution Number 135-2017. e. ADOPTION OF A RESOLUTION DECLARING THE RESULTS OF THE MUNICIPAL ELECTION HELD ON NOVEMBER 7, 2017 City Clerk Hassel-Shearer requested Council adopt Resolution Number 136-2017. f. ADOPTION OF THE 2018 CITY COUNCIL CALENDAR City Clerk Hassel-Shearer requested Council adopt the 2018 City Council Calendar. 9. PUBLIC HEARINGS There were no public hearings. 10. STAFF REPORTS AND COMMUNICATIONS There were no staff reports. 11. COUNCIL COMMITTEE AND ACTIVITIES REPORTS AND ANNOUNCEMENTS Agenda Item 8a Meeting Date: 1/2/18 Burlingame City Council December 18, 2017 Unapproved Minutes 4 Mayor Ortiz asked Council if they would forgo reviewing their committee and activities report in order to proceed with the installation and rotation of Councilmembers. The Council agreed. 12. FUTURE AGENDA ITEMS No items were suggested. 13. ACKNOWLEDGEMENTS The agendas, packets, and meeting minutes for the Planning Commission, Traffic, Parking & Safety Commission, Beautification Commission, Parks and Recreation Commission and Library Board of Trustees are available online at www.burlingame.org. 14. CEREMONIAL a. INSTALLATION AND ROTATION OF COUNCILMEMBERS Mayor Ortiz began by recognizing State Senator Jerry Hill, Supervisor Dave Pine, SMUHSD trustee member Greg Land, Hillsborough Mayor Marie Chuang, Hillsborough Councilmember Jay. Benton, former Burlingame Mayors Terry Nagel, Cathy Baylock, and Jerry Deal, former Councilmember John Root, and many of the Burlingame Commissioners that were in attendance. Next, Vice Mayor Brownrigg, Councilmember Keighran, and Mayor Ortiz were sworn in to each serve five- year terms. Vice Mayor Brownrigg was sworn in by his daughter Grace, son Peter, and wife Marty. Councilmember Keighran was sworn in by her daughter Kate Rose. Mayor Ortiz was sworn in by State Senator Jerry Hill. Mayor Ortiz reviewed the Council’s past year including their successful negotiations with TopGolf. He thanked staff for their hard work and recognized their accomplishments. He also thanked his colleagues, Burlingame commissioners, and community members. Lastly, he discussed challenges that the City faces and that the Council needs to work on in the coming years including: the Broadway grade separation and creating affordable housing. Mayor Ortiz explained how the Council’s rotation worked. He stated that in 1999, the Council adopted a formal rotation procedure to ensure that each councilmember will become mayor in a routine, pre-established order. With that, he introduced Donna Colson as the new Vice Mayor and Michael Brownrigg as the new Mayor. Mayor Brownrigg presented Mayor Ortiz with a plaque to thank him for his year of work as Mayor. Mayor Brownrigg began by thanking staff for their hard work. He discussed the issues that the City is facing in the coming years including: how the City will use Measure I tax funds; addressing El Camino Real’s Agenda Item 8a Meeting Date: 1/2/18 Burlingame City Council December 18, 2017 Unapproved Minutes 5 infrastructure needs; addressing State housing legislation; focusing on density and traffic issues in the Lyon Hoag neighborhood; and providing affordable housing in the community. 15. ADJOURNMENT Mayor Brownrigg adjourned the meeting at 8:02 p.m. in memory of San Francisco Mayor Ed Lee, former Belmont Mayor Eric Reed, and Fr. Flavian Welstead. Respectfully submitted, Meaghan Hassel-Shearer City Clerk 1 STAFF REPORT AGENDA NO: 8b MEETING DATE: January 2, 2018 To: Honorable Mayor and City Council Date: January 2, 2018 From: Meaghan Hassel-Shearer, City Clerk – (650) 558-7203 Subject: Confirmation of the Mayor’s Council Assignments for 2018 RECOMMENDATION Staff recommends the City Council review, make changes if necessary, and approve the Mayor’s Council assignments for 2018. Exhibit: • 2018 Council Assignments CITY OF BURLINGAME 2018 COUNCIL ASSIGNMENTS – Revised 1/02/18 Committee Schedule Bold names are members, alternates in parentheses. 1 ABAG – City Delegate Annually Ortiz (Colson) 2 Airport Land Use Commission (NB: C/CAG subcomm.) Quarterly meetings held at Burlingame City Hall Ortiz (Brownrigg) 3 Airport Round Table Meets quarterly on 1st Wednesday each month, 7 p.m. Ortiz (Brownrigg) 4 Audit Committee Meets 2-3 times per year, including once in December Ortiz & Colson 5 Anson Burlingame Art Committee Meets as needed Brownrigg & Beach 6 Bay Area Water Supply and Conservation Agency (BAWSCA) Meets 3rd Thursday of every other month, starting January O'Mahony 7 Caltrain Modernization Policymaker Group Monthly Beach (Ortiz) 8 Central County Fire Board 6 times a year (NOTE: Minimum 2-year terms. Brownrigg joined Dec. 2011, Ortiz appointed January 2018) Brownrigg & Ortiz 9 Chamber of Commerce Liaison 2nd Tuesday of each month, noon-1:30 p.m. Brownrigg & Colson 10 City/County Association of Governments (C/CAG) 2nd Thursday of each month, 6:30 p.m. Ortiz (Beach) 11 City/Schools Liaison Committee 3 times a year, usually midweek at 9 a.m. Colson & Ortiz 12 Commute.org (formerly called Peninsula Congestion Relief Alliance) Every other month on Tuesday or Thursday at 8 a.m. Beach (Keighran) 13 Dog Park Advisory Group As needed Keighran & Colson 14 Post Office / Town Square Advisory Group As needed Brownrigg & Colson 15 Economic Development Subcommittee 2nd Wednesday of the month, 8:30 a.m. Beach & Colson 16 El Camino Subcommittee As needed Brownrigg & Beach 17 Emergency Services Council (quarterly) 3rd Thursday in January, April, June and September, 5:30 p.m. at Hall of Justice in Redwood City Beach (Keighran) 18 Advanced Life Services (Ambulance) JPA On the 3rd Wednesday of January, May and September, at 6 p.m. Beach (Ortiz) 19 Grand Boulevard Task Force Quarterly, 10 a.m.-noon, location varies Beach (Brownrigg) 20 Housing Endowment and Regional Trust (HEART) Quarterly on Wednesdays at 3 p.m. Colson (Ortiz) 21 Parks Master Plan Committee Ortiz & Beach 22 Peninsula Cities Consortium Quarterly, 8:15 a.m. (location rotates among 6 cities) Ortiz (Keighran) 23 Peninsula Clean Energy (PCE) 4th Thursday of every month , 7 p.m. at 400 Harbor Boulevard, Belmont Colson (Brownrigg) 24 Home For All Monthly Colson & Keighran 25 South Bay Waste Management Authority Quarterly, 2 pm, Thursdays Brownrigg (Keighran) MEMBERS ELECTED/APPOINTED NOT BY THE MAYOR 26 Peninsula Health Care District Long Term Planning Committee 6 times a year, generally Tuesday evenings Brownrigg & Ortiz ALL COUNCILMEMBERS MAY ATTEND THE FOLLOWING MEETINGS 27 Peninsula Division League of California Cities 4 dinner meetings per year, plus January reception for newly elected council members All 28 Council of Cities Usually 4th Friday of month, rotating city All 1 STAFF REPORT AGENDA NO: 8c MEETING DATE: January 2, 2018 To: Honorable Mayor and City Council Date: January 2, 2018 From: Syed Murtuza, Director of Public Works – (650) 558-7230 Subject: Adoption of Resolutions Awarding a Construction Contract to EPS Inc., dba Express Plumbing, for the Easton Addition, Ray Park, and Neighborhood Sewer Rehabilitation Project Phase 3, City Project No. 84192, and Approving a Professional Services Agreement with Bellecci & Associates for the Construction Management Services Related to the Project RECOMMENDATION Staff recommends that the City Council adopt the attached resolutions as follows: (1) Award a construction contract to EPS Inc., dba Express Plumbing, for the Easton Addition, Ray Park, and Neighborhood Sewer Rehabilitation Project, Phase 3, in the amount of $1,374,729, and authorize the City Manager to execute the same; and (2) Approve a professional services agreement with Bellecci & Associates in the amount of $163,727 for construction management services related to the project, and authorize the City Manager to execute the same. BACKGROUND The Easton Addition, Ray Park, and Neighborhood Sewer Rehabilitation Project is part of overall sanitary sewer improvements in high-priority neighborhood areas identified in the 2010 Wastewater Collection System Master Plan. These areas are known to have high infiltration and inflow of groundwater and storm water into the system due to the age and dilapidated conditions of the pipelines. Phase 1 was successfully completed in June 2017, while Phase 2 is anticipated to be completed in January 2018. Easton Addition, Ray Park, and Neighborhood Sewer Rehabilitation Project Phase 3 consists of rehabilitation of approximately 2,800 linear feet of sewer mains within the Easton Addition No. 7 Subdivision. The project also includes replacement and rehabilitation of 20 sewer manholes, and reconstruction of approximately 1,500 linear feet of sanitary sewer laterals. DISCUSSION Construction Contract The project was advertised for bids on November 28, 2017. The sealed bids were opened on December 19, 2017, and two bid proposals were received, with base bids ranging from Construction Contract and Professional Services for the Easton Addition, January 2, 2018 Ray Park, and Neighborhood Sewer Rehabilitation Project Phase 3, City Project No. 84192 2 $1,220,089 to $1,538,000. EPS Inc. is the lowest responsible bidder with its base bid amount of $1,220,089, which is approximately 27.8% ($468,901) below the engineer’s estimate of $1,688,990. Staff has reviewed the contractor’s proposal, and the contractor has met all the project requirements. The contractor has a track record of successfully performing similar work for neighboring public agencies. Additionally, due to the favorable bid, staff recommends including Alternate Bid A in the award of the contract, for a total contract award amount of $1,374,729. Professional Services Contract In February 2017, staff issued a Request for Proposals (RFP) for construction management and inspection services. The City received eight proposals, and interviewed four of the top qualified consultant firms. Based on the results of the interviews, Bellecci & Associates was selected as the most qualified firm based on their experience with and knowledge of trenchless construction methods; construction within narrow easements; and having successfully completed similar projects. Staff has negotiated the following scope of professional services with Bellecci & Associates for construction management and inspection services in the amount of $163,727: • Review, process, and approve pre-construction project drawings and submittals; • Attend and manage pre-construction meetings between the City and Contractor; • Review and advise the City on Contractor’s overall and weekly construction schedule; • Perform daily construction inspection and provide construction management services for 110 construction working days; • Prepare daily written construction reports and photographic records of the project; • Attend weekly construction progress meetings, perform necessary field engineering work, and perform independent quality assurance assessments; • Perform project close out inspections and develop final punch list; • Review and respond to requests for information and requests for contract change orders; and process construction progress payments; • Negotiate claims, liquidated damages, and final payment; and • Prepare final project recording drawings. The professional services fee amount represents approximately 11.9% of the estimated construction cost. The fee amount is consistent with industry standards for construction management and inspection services based on the scope and complexity of the project involving various methods of pipeline installation. The project construction is anticipated to begin in March 2018 and is expected to be completed by September 2018 barring no construction delays. FISCAL IMPACT Estimated Project Expenditures The following are the estimated project construction expenditures: Construction Contract and Professional Services for the Easton Addition, January 2, 2018 Ray Park, and Neighborhood Sewer Rehabilitation Project Phase 3, City Project No. 84192 3 Construction Contract $1,374,729 Construction Management and Inspection $163,727 Construction Contingency 15% $230,770 Contract Administration $140,774 Total $1,910,000 Funding Availability There are adequate funds available in the Sewer Capital Improvement Program to complete the project. Exhibits: • Resolution Awarding the Construction Contract • Resolution Approving the Professional Services Agreement • Bid Summary • Construction Contract • Professional Services Agreement • Project Location Map RESOLUTION NO. _______ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING THE CITY MANAGER TO EXECUTE A CONSTRUCTION CONTRACT FOR THE EASTON ADDITION, RAY PARK AND NEIGHBORHOOD SEWER REHABILITATION PROJECT PHASE 3 TO EPS Inc. CITY PROJECT NO. 84192 WHEREAS, on November 28, 2017, the City issued notice inviting bid proposals for the Easton Addition, Ray Park, and Neighborhood Sewer Rehabilitation Project Phase 3, City Project No. 84192; and WHEREAS, on December 19, 2017 all proposals were received and opened before the City Clerk and representatives of the Public Works Department; and WHEREAS, EPS Inc., submitted the lowest responsible bid for the job in the amount of $1,374,729. NOW, THEREFORE, be it RESOLVED, and ORDERED, that the Plans and Specifications, including all addenda, are approved and adopted; and BE IT FURTHER RESOLVED that the bid of EPS Inc., for said project in the amount of $1,374,729 is accepted; and BE IT FURTHER RESOLVED that a contract be entered into between the successful bidder and the City of Burlingame for the performance of said work, and that the City Manager is authorized on behalf of the City of Burlingame to execute the contract and to approve the faithful performance bond and the labor materials bond required to be furnished by the contractor. ________________________ Mayor I, Meaghan Hassel-Shearer, City Clerk of the City of Burlingame, certify that the foregoing Resolution was introduced at a regular meeting of the City Council held on the 2nd day of January, 2018, and was adopted by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: _________________________ City Clerk RESOLUTION NO. _______ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH BELLECCI & ASSOCIATES FOR THE CONSTRUCTION MANAGEMENT SERVICES RELATED TO THE EASTON ADDITION, RAY PARK AND NEIGHBORHOOD SEWER REHABILITATION PROJECT PHASE 3 CITY PROJECT NO. 84192 RESOLVED, by the CITY COUNCIL of the City of Burlingame, California which FINDS, ORDERS and DETERMINES AS FOLLOWS: 1. The public interest and convenience require execution of the agreement cited in the title above. 2. The City Manager is authorized to sign said agreement on behalf of the City of Burlingame. 3. The City Clerk is instructed to attest such signature. _____________________________ Mayor I, Meaghan Hassel Shearer, City Clerk of the City of Burlingame, certify that the foregoing Resolution was introduced at a regular meeting of the City Council held on the 2ND day of January, 2018 and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: _____________________________ City Clerk BID DATE: DEC. 19, 2017CITY OF BURLINGAMEBID SUMMARYEASTON ADDITION, RAY PARK AND NEIGHBORHOOD SEWER REHABILITATION PROJECT PHASE 3City Project No. 84192Page 1 of 2ITEM NO.DESCRIPTION OF ITEMESTIMATED QUANTITYUNIT UNIT PRICE TOTAL COST UNIT PRICE TOTAL COST UNIT PRICE TOTAL COST General Common Items (1-8)1 Remove and Replace Sidewalk 200 SF 30$ 6,000$ 30$ 6,000$ 12$ 2,400$ 2 Remove and Replace Curb and Gutter 100 LF 50$ 5,000$ 100$ 10,000$ 45$ 4,500$ 3 Remove and Replace Driveway 300 SF 40$ 12,000$ 40$ 12,000$ 25$ 7,500$ 4 Point Repair 4 EA 5,000$ 20,000$ 200$ 800$ 3,500$ 14,000$ 5 Additional Asphalt Surface Restoration 50 TON 250$ 12,500$ 250$ 12,500$ 100$ 5,000$ 6Final AC Patching (at Existing Pothole and Geotechnical Boring Locations)30 SF 20$ 600$ 20$ 600$ 15$ 450$ 7 Preconstruction Potholing 5 EA 1,000$ 5,000$ 1,000$ 5,000$ 500$ 2,500$ 8 Install Concrete Cap 8 LF 100$ 800$ 200$ 1,600$ 55$ 440$ 61,900$ 48,500$ 36,790$ 9 NPDES Compliance (not to exceed 1% of Base Bid) 1 LS 1.0% 15,066$ 12,000$ 12,000$ 15,000$ 15,000$ 10Mobilization and Demobilization (not to exceed 3.5% of Base Bid)1 LS 3.5% 52,730$ 40,000$ 40,000$ 53,000$ 53,000$ 11Construction Survey and Site Investigation (not to exceed 3.5% of Base Bid)1 LS 3.5% 52,730$ 35,000$ 35,000$ 15,000$ 15,000$ 12 Traffic Control 1 LS 2,000$ 2,000$ 5,000$ 5,000$ 14,972$ 14,972$ 13Remove and Replace Existing 6" or 8" Sanitary Sewer with 8" HDPE Sanitary Sewer (Pipe Burst)668 LF 275$ 183,700$ 195$ 130,260$ 320$ 213,760$ 14Remove and Replace Existing 6" Sanitary Sewer with 8" HDPE Sanitary Sewer or 8" SDR 26 PVC Sanitary Sewer (Open Cut)264 LF 325$ 85,800$ 300$ 79,200$ 480$ 126,720$ 15Remove and Replace Existing 6" Sanitary Sewer with 8" HDPE Sanitary Sewer (Pipe Ream) or 8" SDR 26 PVC Sanitary Sewer (Open Cut)1731 LF 325$ 562,575$ 240$ 415,440$ 388$ 671,628$ 16 Post Television Inspection 2663 LF 3$ 7,989$ 3$ 7,989$ 10$ 26,630$ 17 Remove Existing Lamphole 6 EA 2,000$ 12,000$ 750$ 4,500$ 1,000$ 6,000$ 18 Rehabilitate Existing Manhole and Replace Frame and Cover 18 EA 4,000$ 72,000$ 3,400$ 61,200$ 4,000$ 72,000$ 19 Replace Connection to Existing Outside Drop 1 EA 2,000$ 2,000$ 4,500$ 4,500$ 6,000$ 6,000$ 20 New 36" Type 1 Manhole 3 EA 7,000$ 21,000$ 9,500$ 28,500$ 10,000$ 30,000$ 21Remove Existing Lamphole or Vertical Cleanout and Replace with New 36" Type 1 Manhole3 EA 7,500$ 22,500$ 10,000$ 30,000$ 10,000$ 30,000$ 22Remove Existing Lamphole or Vertical Cleanout and Replace with New 36" Type 2 Manhole4 EA 7,000$ 28,000$ 8,000$ 32,000$ 8,000$ 32,000$ 23Remove Existing Manhole aand Replace with New 36" Type 2 Manhole1 EA 7,500$ 7,500$ 8,500$ 8,500$ 8,000$ 8,000$ 24 Replace Existing Sewer Lateral to New Sewer Main 91 EA 4,000$ 364,000$ 1,700$ 154,700$ 1,200$ 109,200$ 25 Connect Existing Sewer Lateral to New Sewer Main 10 EA 500$ 5,000$ 1,000$ 10,000$ 800$ 8,000$ 26 New or Replace Existing 4" Sewer Cleanout 111 EA 1,000$ 111,000$ 800$ 88,800$ 300$ 33,300$ 27 Localized Repair 3 EA 6,500$ 19,500$ 8,000$ 24,000$ 10,000$ 30,000$ 1,627,090$ 1,171,589$ 1,501,210$ 1,688,990$ 1,220,089$ 1,538,000$ Express Plumbing K J Woods Construction San Mateo, CA San Francisco, CA Engineer's Estimate BASE BID SCHEDULE: EASTON ADDITION, RAY PARK PHASE 3General Common Items (1-8) Subtotal:EASTON ADDITION PHASE 3 - TOTAL BASE BID(Bid Item 9-27) Subtotal: BID DATE: DEC. 19, 2017CITY OF BURLINGAMEBID SUMMARYEASTON ADDITION, RAY PARK AND NEIGHBORHOOD SEWER REHABILITATION PROJECT PHASE 3City Project No. 84192Page 2 of 2Alternate Bid AITEM NO.DESCRIPTION OF ITEMESTIMATED QUANTITYUNIT UNIT PRICE TOTAL COST UNIT PRICE TOTAL COST UNIT PRICE TOTAL COST A1 NPDES Compliance (not to exceed 1% of Base Bid) 1 LS 1.0% 870$ 1,400$ 1,400$ 500$ 500$ A2Mobilization and Demobilization (not to exceed 3.5% of Base Bid)1 LS 3.5% 3,045$ 5,000$ 5,000$ 3,000$ 3,000$ A3Construction Survey and Site Investigation (not to exceed 3.5% of Base Bid)1 LS 3.5% 3,045$ 4,500$ 4,500$ 710$ 710$ A4 Traffic Control 1 LS 500$ 500$ 5,000$ 5,000$ 2,560$ 2,560$ A5Remove and Replace Existing 6" Sanitary Sewer with 8" HDPE Sanitary Sewer or 8" SDR 26 PVC Sanitary Sewer (Open Cut)157 LF 325$ 51,025$ 600$ 94,200$ 385$ 60,445$ A6 Post Television Inspection 157 LF 3$ 471$ 20$ 3,140$ 5$ 785$ A7 New 36" Type 1 Manhole 1 EA 7,000$ 7,000$ 11,000$ 11,000$ 7,500$ 7,500$ A8Remove Existing Manhole and Replace with New 48" Type 2 Manhole1 EA 8,000$ 8,000$ 10,000$ 10,000$ 6,500$ 6,500$ A9Replace Existing Manhole and Replace with New 48" Type 2 Manhole4 EA 4,000$ 16,000$ 4,100$ 16,400$ 1,200$ 4,800$ A10 New or Replace Existing 4" Sewer Cleanout 4 EA 1,000$ 4,000$ 1,000$ 4,000$ 300$ 1,200$ 93,956$ 154,640$ 88,000$ 1,782,946$ 1,374,729$ 1,626,000$ Alternate Bid BITEM NO.DESCRIPTION OF ITEMESTIMATED QUANTITYUNIT UNIT PRICE TOTAL COST UNIT PRICE TOTAL COST UNIT PRICE TOTAL COST B1 NPDES Compliance (not to exceed 1% of Base Bid) 1 LS 1.0% 1,718$ 2,000$ 2,000$ 920$ 920$ B2Mobilization and Demobilization (not to exceed 3.5% of Base Bid)1 LS 3.5% 6,012$ 9,000$ 9,000$ 6,500$ 6,500$ B3Construction Survey and Site Investigation (not to exceed 3.5% of Base Bid)1 LS 3.5% 6,012$ 8,500$ 8,500$ 1,500$ 1,500$ B4 Traffic Control 1 LS 5,000$ 5,000$ 5,000$ 5,000$ 2,560$ 2,560$ B5Remove and Replace Existing 6" Sanitary Sewer with 8" SDR 26 PVC Sanitary Sewer (Pipe Burst)356 LF 325$ 115,700$ 500$ 178,000$ 390$ 138,840$ B6 Post Television Inspection 356 LF 3$ 1,068$ 15$ 5,340$ 5$ 1,780$ B7 Remove Existing Lamphole 1 EA 2,000$ 2,000$ 650$ 650$ 1,000$ 1,000$ B8 Remove Existing Manhole 1 EA 3,000$ 3,000$ 2,500$ 2,500$ 1,500$ 1,500$ B9 Rehabilitate Existing Manhole and Replace Frame and Cover 1 EA 4,000$ 4,000$ 5,000$ 5,000$ 4,000$ 4,000$ B10 New 48" Type 1 Manhole 1 EA 8,000$ 8,000$ 12,000.00$ 12,000$ 7,000$ 7,000$ B11Remove Existing Lamphole and Replace with New 48" Type 1 Manhole1 EA 8,000$ 8,000$ 13,000$ 13,000$ 7,000$ 7,000$ B12Remove Existing Manhole and Replace with New 48" Type 2 Manhole1 EA 8,500$ 8,500$ 10,000$ 10,000$ 7,000$ 7,000$ B13 Replace Existing 4" Sewer Lateral 3 EA 4,000$ 12,000$ 5,000$ 15,000$ 2,000$ 6,000$ B14 Connect Existing Sewer Lateral to New Sewer Main 3 EA 500$ 1,500$ 3,800$ 11,400$ 500$ 1,500$ B15 New or Replace Existing 4" Sewer Cleanout 3 1,000$ 3,000$ 1,600$ 4,800$ 300$ 900$ 185,510$ 282,190$ 188,000$ TOTAL BASE BID + ALTERNATE BID AALTERNATE BID B SUBTOTALALTERNATE BID A SUBTOTAL AGREEMENT - 1 AGREEMENT FOR PUBLIC IMPROVEMENT EASTON ADDITION, RAY PARK AND NEIGHBORHOOD SEWER REHABILITATION PROJECT PHASE 3 CITY PROJECT NO. 84192 THIS AGREEMENT, made in duplicate and entered into in the City of Burlingame, County of San Mateo, State of California on , 20___ by and between the CITY OF BURLINGAME, a Municipal Corporation, hereinafter called "City", and ______________, a [State of incorporation] [Corporation or other form of business], hereinafter called "Contractor." WITNESSETH : WHEREAS, City has taken appropriate proceedings to authorize construction of the public work and improvements herein provided for and to authorize execution of this Contract; and WHEREAS, pursuant to State law and City requirements, a notice was duly published for bids for the contract for the improvement hereinafter described; and WHEREAS, on _______________, after notice duly given, the City Council of Burlingame awarded the contract for the construction of the improvements hereinafter described to Contractor, which the Council found to be the lowest responsive, responsible bidder for these improvements; and WHEREAS, City and Contractor desire to enter into this Agreement for the construction of said improvements. NOW, THEREFORE, IT IS AGREED by the parties hereto as follows: 1. Scope of work. Contractor shall perform the work described in those Contract Documents entitled: EASTON ADDITION, RAY PARK AND NEIGHBORHOOD SEWER REHABILITATION PROJECT PHASE 3, CITY PROJECT NO. 84192. 2. The Contract Documents. The complete contract between City and Contractor consists of the following documents: this Agreement; Notice Inviting Sealed Bids, attached hereto as Exhibit A; the accepted Bid Proposal, attached hereto as Exhibit B; the specifications, provisions, AGREEMENT - 2 addenda, complete plans, profiles, and detailed drawings contained in the bid documents titled “Easton Addition, Ray Park and Neighborhood Sewer Rehabilitation Project Phase 3, City Project No. 84192” attached as Exhibit C; the State of California Standard Specifications 2010, as promulgated by the California Department of Transportation; prevailing wage rates of the State of California applicable to this project by State law; and all bonds; which are collectively hereinafter referred to as the Contract Documents. All rights and obligations of City and Contractor are fully set forth and described in the Contract Documents, which are hereby incorporated as if fully set forth herein. All of the above described documents are intended to cooperate so that any work called for in one, and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents. 3. Contract Price. The City shall pay, and the Contractor shall accept, in full, payment of the work above agreed to be done, the sum of _________________________________ dollars ($_______________), called the “Contract Price”. This price is determined by the lump sum and unit prices contained in Contr actor's Bid. In the event authorized work is performed or materials furnished in addition to those set forth in Contractor's Bid and the Specifications, such work and materials will be paid for at the unit prices therein contained. Said amount shall be paid in progress payments as provided in the Contract Documents. 4. Termination At any time and with or without cause, the City may suspend the work or any portion of the work for a period of not more than 90 consecutive calendar days by notice in writing to Contractor that will fix the date on which work will be resumed. Contractor will be granted an adjustment to the Contract Price or an extension of the Time for Completion, or both, directly attributable to any such suspension if Contractor makes a claim therefor was provided in the Contract Documents. The occurrence of any one or more of the following events will justify termination of the contract by the City for cause: (1) Contracto r’s persistent failure to perform the work in accordance with the Contract Documents; (2) Contractor’s disregard of Laws or Regulations of any public body having jurisdiction; (3) Contractor’s disregard of the authority of the Engineer; or (4) Contractor’s violation in any substantial way of any provision of the Contract Documents. In the case of any one or more of these events, the City, after giving Contractor and Contractor’s sureties seven calendar days written notice of the intent to terminate Contractor’s services, may initiate termination procedures under AGREEMENT - 3 the provisions of the Performance Bond. Such termination will not affect any rights or remedies of City against Contractor then existing or that accrue thereafter. Any retention or payment of moneys due Contractor will not release Contractor from liability. At the City’s sole discretion, Contractor’s services may not be terminated if Contractor begins, within seven calendar days of receipt of such notice of intent to terminate, to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 calendar days of such notice. Upon seven calendar days written notice to Contractor, City may, without cause and without prejudice to any other right or remedy of City, terminate the Contract for City’s convenience. In such case, Contractor will be paid for (1) work satisfactorily completed prior the effective date of such termination, (2) furnishing of labor, equipment, and materials in accordance with the Contract Documents in connection with uncompleted work, (3) reasonable expenses directly attributable to termination, and (4) fair and reasonable compensation for associated overhead and profit. No payment will be made on account of loss of anticipated profits or revenue or other economic loss arising out of or resulting from such termination. 5. Provisions Cumulative. The provisions of this Agreement are cumulative and in addition to and not in limitation of any other rights or remedies available to the City. 6. Notices. All notices shall be in writing and delivered in person or transmitted by certified mail, postage prepaid. Notices required to be given to the City shall be addressed as follows: Mr. Donald Chang, PE Senior Engineer City of Burlingame 501 Primrose Road Burlingame, California 94010 Notices required to be given to Contractor shall be addressed as follows: Name Company Name Address 7. Interpretation AGREEMENT - 4 As used herein, any gender includes the other gender and the singular includes the plural and vice versa. 8. Waiver or Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the City and the Contractor. One or more waivers of any term, condition, or other provision of this Agreement by either party shall not be construed as a waiver of a subsequent breach of the same or any other provision. 9. Controlling Law. This Agreement is to be governed by and interpreted in accordance with the laws of the State of California. 10. Successors and Assignees. This Agreement is to be binding on the heirs, successors, and assigns of the parties hereto but may not be assigned by either party without first obtaining the written consent of the other party. 11. Severability. If any term or provision of this Agreement is deemed invalid, void, or unenforceable by any court of lawful jurisdiction, the remaining terms and provisions of the Agreement shall not be affected thereby and shall remain in full force and effect. 12. Contractor shall indemnify, defend, and hold the City, its directors, officers, employees, agents, and volunteers harmless from and against any and all liability, claims, suits, actions, damages, and causes of action arising out of, pertaining or relating to the actual or alleged negligence, recklessness or willful misconduct of Contractor, its employees, subcontractors, or agents, or on account of the performance or character of the services, except for any such claim arising out of the sole negligence or willful misconduct of the City, its officers, employees, agents, or volunteers. It is understood that the duty of Contractor to indemnify and hold harmless includes the duty to defend as set forth in section 2778 of the California Civil Code. Notwithstanding the foregoing, for any design professional services, the duty to defend and indemnify City shall be limited to that allowed by state law. Acceptance of insurance certificates and endorsements required under this Agreement does not relieve Contractor from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply whether or not such insurance policies shall have been determined to be AGREEMENT - 5 applicable to any of such damages or claims for damages. IN WITNESS WHEREOF, two identical counterparts of this Agreement, consisting of five pages, including this page, each of which counterparts shall for all purposes be deemed an original of this Agreement, have been duly executed by the parties hereinabove named on the day and year first hereinabove written. CITY OF BURLINGAME, a Municipal Corporation By Lisa K. Goldman, City Manager Approved as to form: Kathleen Kane, City Attorney ATTEST: Meaghan Hassel-Shearer, City Clerk "CONTRACTOR" By Print Name: Company Name: 1 STAFF REPORT AGENDA NO: 8d MEETING DATE: January 2, 2018 To: Honorable Mayor and City Council Date: January 2, 2018 From: Carol Augustine, Finance Director – (650) 558-7222 Subject: Adoption of a Resolution Authorizing the City Manager to Execute Agreements with the California Department of Tax and Fee Administration (CDTFA) for Implementation and Administration of Burlingame’s Local Transactions and Use Tax; and Adoption of a Resolution Identifying Individuals Authorized to Examine Confidential Records of the CDTFA Pertaining to the Transactions and Use Taxes Collected Pursuant to Those Agreements RECOMMENDATION Staff recommends that City Council adopt a resolution authorizing the City Manager to execute agreements with the California Department of Tax and Fee Administration necessary for the implementation and ongoing administration of Burlingame’s local transactions and use tax. In addition, staff recommends that the City Council adopt a resolution identifying those individuals who are authorized to examine confidential records of the CDTFA pertaining to taxes collected for the City of Burlingame. BACKGROUND In November, voters in the City of Burlingame approved a local revenue tax measure (Measure I) to provide funding for infrastructure improvements and other services in the city. The resulting ordinance #1944 imposes a retail transactions and use tax of ¼ percent, which effectively increases the sales tax rate in the City from 8.75 percent to 9 percent. However, the state considers the transactions tax to be a separate data base from the Bradley-Burns tax, which is the 1% local portion of the uniform statewide rate. Where the Bradley-Burns Sales and Use Tax is generally allocated to the jurisdiction where the sale is negotiated or the order is taken, the transactions and use tax is allocated to the district where the goods are delivered or placed into use. DISCUSSION Cities and counties are required to contract with the California Department of Tax and Fee Administration (CDTFA) for administration of the ordinance imposing the transactions and use tax. There are two contracts: one for setting up the tax, and a second one for ongoing administration. Copies of the form of the contracts with the CDTFA are attached to the resolution approving the authority of the City Manager to execute the contracts. Additionally, as the Agreements with CDTFA for Administration of Transactions Tax January 2, 2018 2 transactions and use tax is separate and distinct from the local sales and use tax, a separate Resolution of Confidentiality for access to the allocation data is required. It should be noted that the individuals provided the authority to examine the City’s detailed tax records must adhere to the Board’s confidentiality requirements. In summary, those who are allowed access to confidential records must use such information only for the governmental purposes set forth in the resolution, and those records are not subject to release in public meetings or other such forums. Confidential records may not be shared with other local officials who have not been authorized by resolution to receive them. FISCAL IMPACT Execution of the contracts with the CDTFA will ensure the timely collection and allocation of the tax. The costs of the preparatory activities will be based on the actual costs of the CDTFA, to be billed to and paid by the City within a reasonable time after the operative date of the tax (April 1, 2018). The agreement does not allow for costs to exceed $175,000; however, actual costs are expected to be in the realm of $10,000. Ongoing administrative fees will be deducted from the taxes collected by the CDTFA for the City. These deductions are not anticipated to exceed $20,000 annually. Exhibits: • Resolution Authorizing the City Manager to Execute “Preparatory Agreement” and “Administrative Agreement” • Resolution Authorizing the Examination of Tax Records RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING THE CITY MANAGERTO EXECUTE AGREEMENTS WITH THE CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION FOR IMPLEMENTATION OF A LOCAL TRANSACTIONS AND USE TAX. WHEREAS, on July 3, 2017, the City Council approved Ordinance No. 1944 to place a local revenue measure on the November 2017 ballot to maintain quality of life programs; and WHEREAS, the voters approved said revenue measure (Measure I) in the Municipal Election held on November 7, 2017, amending the City Municipal Code and providing for a one-quarter cent rate local transactions and use tax; and WHEREAS, on December 18, 2017, the City Council approved a resolution declaring the results of the municipal election as certified by the County of San Mateo, with Measure I approved by the voters with 63.2% of the vote; and WHEREAS, the California Department of Tax and Fee Administration (Department) administers and collects the transactions and use taxes for all applicable jurisdictions within the state; and WHEREAS, the Department will be responsible to administer and collect the transactions and use tax for the City; and WHEREAS, the Department requires that the City enter into a “Preparatory Agreement” and an “Administration Agreement” prior to implementation of said taxes, and WHEREAS, the Department requires that the City Council authorize the agreements; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME DOES HEREBY RESOLVE, DETERMINE, AND FIND AS FOLLOWS: The “Preparatory Agreement” attached as Exhibit A and the “Administrative Agreement” attached as Exhibit B are hereby approved and the City Manager is hereby authorized to execute each agreement. _______________________ Mayor I, Meaghan Hassel-Shearer, City clerk of the City of Burlingame do hereby certify that the foregoing Resolution was introduced at a regular meeting of the City Council on the 2nd day of January, 2018, and was adopted thereafter by the following vote: AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers: _______________________ Clerk 1 AGREEMENT FOR PREPARATION TO ADMINISTER AND OPERATE CITY'S TRANSACTIONS AND USE TAX ORDINANCE In order to prepare to administer a transactions and use tax ordinance adopted in accordance with the provision of Part 1.6 (commencing with Section 7251) of Division 2 of the Revenue and Taxation Code, the City of Burlingame, hereinafter called City, and the CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION, hereinafter called Department, do agree as follows: 1.The Department agrees to enter into work to prepare to administer and operate a transactions and use tax in conformity with Part 1.6 of Division 2 of the Revenue and Taxation Code which has been approved by a majority of the electors of the City and whose ordinance has been adopted by the City. 2.City agrees to pay to the Department at the times and in the amounts hereinafter specified all of the Department's costs for preparatory work necessary to administer the City's transactions and use tax ordinance. The Department's costs for preparatory work include costs of developing procedures, programming for data processing, developing and adopting appropriate regulations, designing and printing forms, developing instructions for the Department's staff and for taxpayers, and other appropriate and necessary preparatory costs to administer a transactions and use tax ordinance. These costs shall include both direct and indirect costs as specified in Section 11256 of the Government Code. 3.Preparatory costs may be accounted for in a manner which conforms to the internal accounting and personnel records currently maintained by the Department. The billings for costs may be presented in summary form. Detailed records of preparatory costs will be retained for audit and verification by the City. 4.Any dispute as to the amount of preparatory costs incurred by the Department shall be referred to the State Director of Finance for resolution, and the Director's decision shall be final. 5.Preparatory costs incurred by the Department shall be billed by the Department periodically, with the final billing within a reasonable time after the operative date of the ordinance. City shall pay to the Department the amount of such costs on or before the last day of the next succeeding month following the month when the billing is received. EXHIBIT A 2 6.The amount to be paid by City for the Department's preparatory costs shall not exceed one hundred seventy-five thousand dollars ($175,000) (Revenue and Taxation Code Section 7272.) 7.Communications and notices may be sent by first class United States mail. Communications and notices to be sent to the Department shall be addressed to: California Department of Tax and Fee Administration P.O. Box 942879 MIC: 27 Sacramento, California 94279-0027 Attention: Supervisor Local Revenue Branch Communications and notices to be sent to City shall be addressed to: City of Burlingame – Finance Director 501 Primrose Road Burlingame, CA 94010 8.The date of this agreement is the date on which it is approved by the Department of General Services. This agreement shall continue in effect until the preparatory work necessary to administer City's transactions and use tax ordinance has been completed and the Department has received all payments due from City under the terms of this agreement. CITY OF Burlingame CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION By By (Signature) Administrator Local Revenue Branch Lisa K. Goldman (Typed Name) City Manager (Title) (Rev. 11/17) EXHIBIT A AGREEMENT FOR STATE ADMINISTRATION OF CITY TRANSACTIONS AND USE TAXES The City Council of the City of Burlingame has adopted, and the voters of the City of Burlingame (hereafter called “City” or “District”) have approved by the required majority vote, the City of Burlingame Transactions and Use Tax Ordinance (hereafter called “Ordinance”), a copy of which is attached hereto. To carry out the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code and the Ordinance, the California State Department of Tax and Fee Administration, (hereinafter called the “Department”) and the City do agree as follows: ARTICLE I DEFINITIONS Unless the context requires otherwise, wherever the following terms appear in the Agreement, they shall be interpreted to mean the following: 1."District taxes" shall mean the transactions and use taxes, penalties, and interest imposed under an ordinance specifically authorized by Revenue and Taxation code Section 7285.9, and in compliance with Part 1.6, Division 2 of the Revenue and Taxation Code. 2."City Ordinance" shall mean the City's Transactions and Use Tax Ordinance referred to above and attached hereto, Ordinance No.1944, as amended from time to time, or as deemed to be amended from time to time pursuant to Revenue and Taxation Code Section 7262.2. ARTICLE II ADMINISTRATION AND COLLECTION OF CITY TAXES A.Administration. The Department and City agree that the Department shall perform exclusively all functions incident to the administration and operation of the City Ordinance. EXHIBIT BEXHIBIT B (Rev. 10/17) 2 B.Other Applicable Laws. City agrees that all provisions of law applicable to the administration and operation of the Department Sales and Use Tax Law which are not inconsistent with Part 1.6 of Division 2 of the Revenue and Taxation Code shall be applicable to the administration and operation of the City Ordinance. City agrees that money collected pursuant to the City Ordinance may be deposited into the State Treasury to the credit of the Retail Sales Tax Fund and may be drawn from that Fund for any authorized purpose, including making refunds, compensating and reimbursing the Department pursuant to Article IV of this Agreement, and transmitting to City the amount to which City is entitled. C.Transmittal of money. 1.For the period during which the tax is in effect, and except as otherwise provided herein, all district taxes collected under the provisions of the City Ordinance shall be transmitted to City periodically as promptly as feasible, but not less often than twice in each calendar quarter. 2.For periods subsequent to the expiration date of the tax whether by City’s self-imposed limits or by final judgment of any court of the State of California holding that City’s ordinance is invalid or void, all district taxes collected under the provisions of the City Ordinance shall be transmitted to City not less than once in each calendar quarter. 3.Transmittals may be made by mail or electronic funds transfer to an account of the City designated and authorized by the City. A statement shall be furnished at least quarterly indicating the amounts withheld pursuant to Article IV of this Agreement. D.Rules. The Department shall prescribe and adopt such rules and regulations as in its judgment are necessary or desirable for the administration and operation of the City Ordinance and the distribution of the district taxes collected thereunder. E.Preference. Unless the payor instructs otherwise, and except as otherwise provided in this Agreement, the Department shall give no preference in applying money received for state sales and use taxes, state-administered local sales and use taxes, and district transactions and use taxes owed by a taxpayer, but shall apply moneys collected to the satisfaction of the claims of the State, cities, counties, cities and counties, redevelopment agencies, other districts, and City as their interests appear. EXHIBIT B (Rev. 10/17) 3 F.Security. The Department agrees that any security which it hereafter requires to be furnished by taxpayers under the State Sales and Use Tax Law will be upon such terms that it also will be available for the payment of the claims of City for district taxes owing to it as its interest appears. The Department shall not be required to change the terms of any security now held by it, and City shall not participate in any security now held by the Department. G.Records of the Department. When requested by resolution of the legislative body of the City under section 7056 of the Revenue and Taxation Code, the Department agrees to permit authorized personnel of the City to examine the records of the Department, including the name, address, and account number of each seller holding a seller’s permit with a registered business location in the City, pertaining to the ascertainment of transactions and use taxes collected for the City. Information obtained by the City from examination of the Department's records shall be used by the City only for purposes related to the collection of transactions and use taxes by the Department pursuant to this Agreement. H.Annexation. City agrees that the Department shall not be required to give effect to an annexation, for the purpose of collecting, allocating, and distributing District transactions and use taxes, earlier than the first day of the calendar quarter which commences not less than two months after notice to the Department. The notice shall include the name of the county or counties annexed to the extended City boundary. In the event the City shall annex an area, the boundaries of which are not coterminous with a county or counties, the notice shall include a description of the area annexed and two maps of the City showing the area annexed and the location address of the property nearest to the extended City boundary on each side of every street or road crossing the boundary. ARTICLE III ALLOCATION OF TAX A.Allocation. In the administration of the Department's contracts with all districts that impose transactions and use taxes imposed under ordinances, which comply with Part 1.6 of Division 2 of the Revenue and Taxation Code: EXHIBIT B (Rev. 10/17) 4 1.Any payment not identified as being in payment of liability owing to a designated district or districts may be apportioned among the districts as their interest appear, or, in the discretion of the Department, to all districts with which the Department has contracted using ratios reflected by the distribution of district taxes collected from all taxpayers. 2.All district taxes collected as a result of determinations or billings made by the Department, and all amounts refunded or credited may be distributed or charged to the respective districts in the same ratio as the taxpayer's self-declared district taxes for the period for which the determination, billing, refund or credit applies. B.Vehicles, Vessels, and Aircraft. For the purpose of allocating use tax with respect to vehicles, vessels, or aircraft, the address of the registered owner appearing on the application for registration or on the certificate of ownership may be used by the Department in determining the place of use. ARTICLE IV COMPENSATION The City agrees to pay to the Department as the State's cost of administering the City Ordinance such amount as is provided for by law. Such amounts shall be deducted from the taxes collected by the Department for the City. ARTICLE V MISCELLANEOUS PROVISIONS A.Communications. Communications and notices may be sent by first class United States mail to the addresses listed below, or to such other addresses as the parties may from time to time designate. A notification is complete when deposited in the mail. EXHIBIT B (Rev. 10/17) 5 Communications and notices to be sent to the Department shall be addressed to: California State Department of Tax and Fee Administration P.O. Box 942879 Sacramento, California 94279-0027 Attention: Administrator Local Revenue Branch Communications and notices to be sent to the City shall be addressed to: City of Burlingame, Finance Director 501 Primrose Road Burlingame, CA 94010 Unless otherwise directed, transmittals of payment of District transactions and use taxes will be sent to the address above. B.Term. The date of this Agreement is the date on which it is approved by the Department of General Services. The Agreement shall take effect on April 1, 2018. This Agreement shall continue until December 31 next following the expiration date of the City Ordinance, and shall thereafter be renewed automatically from year to year until the Department completes all work necessary to the administration of the City Ordinance and has received and disbursed all payments due under that Ordinance. C.Notice of Repeal of Ordinance. City shall give the Department written notice of the repeal of the City Ordinance not less than 110 days prior to the operative date of the repeal. EXHIBIT B (Rev. 10/17) 6 ARTICLE VI ADMINISTRATION OF TAXES IF THE ORDINANCE IS CHALLENGED AS BEING INVALID A.Impoundment of funds. 1.When a legal action is begun challenging the validity of the imposition of the tax, the City shall deposit in an interest-bearing escrow account, any proceeds transmitted to it under Article II. C., until a court of competent jurisdiction renders a final and non-appealable judgment that the tax is valid. 2.If the tax is determined to be unconstitutional or otherwise invalid, the City shall transmit to the Department the moneys retained in escrow, including any accumulated interest, within ten days of the judgment of the trial court in the litigation awarding costs and fees becoming final and non-appealable. B. Costs of administration. Should a final judgment be entered in any court of the State of California, holding that City's Ordinance is invalid or void, and requiring a rebate or refund to taxpayers of any taxes collected under the terms of this Agreement, the parties mutually agree that: 1.Department may retain all payments made by City to Department to prepare to administer the City Ordinance. 2.City will pay to Department and allow Department to retain Department's cost of administering the City Ordinance in the amounts set forth in Article IV of this Agreement. 3.City will pay to Department or to the State of California the amount of any taxes plus interest and penalties, if any, that Department or the State of California may be required to rebate or refund to taxpayers. EXHIBIT B (Rev. 10/17) 7 4.City will pay to Department its costs for rebating or refunding such taxes, interest, or penalties. Department's costs shall include its additional cost for developing procedures for processing the rebates or refunds, its costs of actually making these refunds, designing and printing forms, and developing instructions for Department's staff for use in making these rebates or refunds and any other costs incurred by Department which are reasonably appropriate or necessary to make those rebates or refunds. These costs shall include Department's direct and indirect costs as specified by Section 11256 of the Government Code. 5. Costs may be accounted for in a manner, which conforms to the internal accounting, and personnel records currently maintained by the Department. The billings for such costs may be presented in summary form. Detailed records will be retained for audit and verification by City. 6.Any dispute as to the amount of costs incurred by Department in refunding taxes shall be referred to the State Director of Finance for resolution and the Director's decision shall be final. 7.Costs incurred by Department in connection with such refunds shall be billed by Department on or before the 25th day of the second month following the month in which the judgment of a court of the State of California holding City's Ordinance invalid or void becomes final. Thereafter Department shall bill City on or before the 25th of each month for all costs incurred by Department for the preceding calendar month. City shall pay to Department the amount of such costs on or before the last day of the succeeding month and shall pay to Department the total amount of taxes, interest, and penalties refunded or paid to taxpayers, together with Department costs incurred in making those refunds. CITY OF BURLINGAME CALIFORNIA STATE DEPARTMENT OF TAX AND FEE ADMINISTRATION By By (Signature) Administrator Local Revenue Branch Lisa K. Goldman (Typed Name) City Manager (Title) EXHIBIT B -1- RESOLUTION NO.__________ A RESOLUTION AUTHORIZING THE EXAMINATION OF TRANSACTIONS (SALES) AND USE TAX RECORDS WHEREAS, pursuant to Ordinance No. 1944 of the City of Burlingame hereinafter called City and Section 7270 of the Revenue and Taxation Code, the City entered into a contract with the California Department of Tax and Fee Administration to perform all functions incident to the administration and operation of the Transactions and Use Tax Ordinance; and WHEREAS, the City deems it desirable and necessary for authorized representatives of the City to examine confidential transactions and use tax records of the California Department of Tax and Fee Administration (CDFTA) pertaining to transactions and use taxes collected by the CDFTA for the City pursuant to that contract; and WHEREAS, Section 7056 of the Revenue and Taxation Code sets forth certain requirements and conditions for the disclosure of California Department of Tax and Fee Administration records and establishes criminal penalties for the unlawful disclosure of information contained in or derived from, the transactions and use tax records of the CDTFA; NOW, THEREFORE IT IS RESOLVED AND ORDERED AS FOLLOWS: Section 1. That the Finance Director or other officer or employee of the City designated in writing by the City Manager to the California Department of Tax and Fee Administration (hereafter referred to as CDTFA) is hereby appointed to represent the City with authority to examine transactions and use tax records of the CDTFA pertaining to transactions and use taxes collected for the City by the CDTFA pursuant to the contract between the City and the CDTFA. The information obtained by examination of CDTFA records shall be used only for purposes related to the collection of the City’s transactions and use taxes by the CDTFA pursuant to the contract. The information obtained by examination of CDTFA records shall be used only for those governmental functions of the City listed above. BE IT FURTHER RESOLVED that the information obtained by examination of CDTFA records shall be used only for purposes related to the collection of City’s transactions and use taxes by the CDTFA pursuant to the contracts between the City and CDTFA. *Section 2. That this resolution supersedes all prior transactions and use tax resolutions of the City of Burlingame adopted pursuant to subdivision (b) of Revenue and Taxation Section 7056. Introduced, approved and adopted this 2nd day of January, 2018. ___________________________ Mayor -2- I, Meaghan Hassel-Shearer, City Clerk of the City of Burlingame, do hereby certify that the foregoing resolution was adopted at a regular meeting of the City Council held on the 2nd day of January, 2018 by the following vote: AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers: ____________________________ City Clerk 1 STAFF REPORT AGENDA NO: 8e MEETING DATE: January 2, 2018 To: Honorable Mayor and City Council Date: January 2, 2018 From: Carol Augustine, Finance Director – (650) 558-7222 Subject: Authorization to Contract with Hinderliter, de Lamas and Associates for Transaction Tax Audit and Information Services; and Adoption of a Resolution Authorizing Examination of the State Department of Tax and Fee Administration’s Sales, Use and Transactions Tax Records RECOMMENDATION Staff recommends that City Council authorize the City Manager to execute a contract with Hinderliter, de Llamas and Associates (HdL) for transactions tax audit and information services; and adopt a resolution that will enable HdL to access records of the California Department of Tax and Fee Administration (CDTFA) pertaining to sales, use and transaction taxes collected by the Department for the City. BACKGROUND In November, voters in the City of Burlingame approved a local revenue tax measure (Measure I) to provide funding for infrastructure improvements and other services in the city. The resulting ordinance #1944 imposes a retail transactions and use tax of ¼ percent, which effectively increases the sales tax rate in the City from 8.75 percent to 9 percent. However, the state considers the transactions tax to be a separate data base from the Bradley-Burns tax; the Bradley-Burns tax is the 1% local portion of the uniform statewide rate. DISCUSSION For many years the City has contracted with HdL to provide both review and correction services related to misallocations of (the local portion of) sales tax receipts, as well as budget projection information based on historical receipts. HdL also provides services to jurisdictions with separate transaction taxes, although these collections do not lend themselves to the same audit procedures as the local sales tax. A majority of the discrepancies noted in monitoring transaction taxes involve non-payment, as opposed to misallocation of the tax. Because the recording and reporting processes associated with transaction taxes are unique and separate from other sales tax revenues, a separate contract (with a different fee structure) is needed for the monitoring of transaction taxes. HdL will charge $100/month for the transaction tax reports, and a flat 25% audit fee on all “recoveries”. Recoveries are based on the submission of findings/discrepancies to the CDTFA (formerly part of the State Board of Equalization). After Transactions Tax Audit & Information Services January 2, 2018 2 an initial period, the amount of recoveries should go down as more local businesses adjust to the new transaction tax. In addition, because the State considers the transactions tax to be a separate data base from the local sales tax, HdL’s ability to access transaction tax data from the CDTFA requires a separate resolution and agreement. It should be noted that the individuals provided the authority to examine the City’s detailed tax records must adhere to the CDTFA’s confidentiality requirements. In summary, those who are allowed access to confidential records must use such information only for the governmental purposes set forth in the resolution, and those records are not subject to release in public meetings or other such forums. Confidential records may not be shared with other local officials who have not been authorized by resolution to receive them. FISCAL IMPACT The City contracts with HdL to enhance the City’s sales and use tax revenues through audit and timey reporting processes. As the City wishes to ensure correct collection and reporting of the new transactions tax, a separate contract is required. Funding for HdL’s services related to these new revenues, estimated to be approximately $2,000 annually, will be paid out of the transactions tax proceeds. The new contract requires City Council authorization, by way of the attached resolution, for HdL to access CDTFA data (related to the transactions tax) on behalf of the City. Exhibits: • Resolution Authorizing the Examination of Sales, Use, and Transaction Tax Records by HdL • Agreement for Transaction Tax Audit and Information Services RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING EXAMINATION OF SALES, USE AND TRANSACTIONS TAX RECORDS WHEREAS, pursuant to Ordinance 1944, the City of Burlingame entered into a contract with the Department of Tax and Fee Administration to perform all functions incident to the administration and collection of local sales, use and transactions taxes; and WHEREAS, the City Council of the City of Burlingame deems it desirable and necessary for authorized representatives of the City to examine confidential sales, use and transactions tax records of the Department of Tax and Fee Administration pertaining to sales, use and transactions taxes collected by the Department for the City pursuant to that contract; and WHEREAS, Section 7056 of the California Revenue and Taxation Code sets forth certain requirements and conditions for the disclosure of Department of Tax and Fee Administration records, and establishes criminal penalties for the unlawful disclosure of information contained in, or derived from, the sales, use and transactions tax records of the Department. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME HEREBY RESOLVES AS FOLLOWS: Section 1. That the City Manager, or other officer or employee of the City designated in writing by the City Manager to the Department of Tax and Ffee Administration (hereafter referred to as Department), is hereby appointed to represent the City of Burlingame with authority to examine sales, use and transactions tax records of the Department pertaining to sales, use and transactions taxes collected for the City by the Department pursuant to the contract between the City and the Department. The information obtained by examination of Department records shall be used only for purposes related to the collection of City sales, use and transactions taxes by the Department pursuant to that contract. Section 2. That the City Manager, or other officer or employee of the City designated in writing by the City Manager to the Department, is hereby appointed to represent the City with authority to examine those sales, use and transactions tax records of the Department, for purposes related to the following governmental functions of the City: (a) City administration (b) Revenue management and budgeting (c) Community and economic development (d) Business license tax administration The information obtained by examination of Department records shall be used only for those governmental functions of the City listed above. Section 3. That Hinderliter, de Llamas & Associates is hereby designated to examine the sales, use and transactions tax records of the Department pertaining to sales, use and transactions taxes collected for the City by the Department. The person or entity designated by this section meets all of the following conditions: (a) has an existing contract with the City to examine those sales, use and transactions tax records; (b) is required by that contract to disclose information contained in, or derived from, those sales, use and transactions tax records only to the officer or employee authorized under Sections 1 or 2 of this resolution to examine the information. (c) is prohibited by that contract from performing consulting services for a retailer during the term of that contract; and (d) is prohibited by that contract from retaining the information contained in, or derived from those sales, use and transactions tax records, after that contract has expired. The information obtained by examination of Department records shall be used only for purposes related to the collection of City sales, use and transactions taxes by the Department pursuant to the contract between the City and the Department and for purposes relating to the governmental functions of the City listed in section 2 of this resolution. ______________________________ Mayor I, Meaghan Hassel-Shearer, City Clerk of the City of Burlingame, do hereby certify that the foregoing resolution was introduced, approved, and adopted at a regular meeting of the City Council held on the 2nd day of January 2018, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ______________________________ City Clerk 12/28/2017 1 AGREEMENT FOR TRANSACTIONS TAX AUDIT & INFORMATION SERVICES This Agreement is made and entered into as of the ____ day of _______________, 2018 by and between the CITY OF BURLINGAME, hereinafter referred to as “CITY,” and HINDERLITER, DE LLAMAS AND ASSOCIATES a California Corporation, hereinafter referred to as “CONTRACTOR”. I. RECITALS WHEREAS, transactions tax revenues can be increased through a system of continuous monitoring, identification and correction of allocation errors and reporting deficiencies, and WHEREAS, an effective program of transactions and use tax management can provide for more accurate budget forecasting and financial planning; and WHEREAS, CITY desires the combination of data entry, report preparation, and data analysis necessary to effectively manage its Measure “I” transactions and use tax base the recovery of revenues either unreported or erroneously allocated to other jurisdictions; and WHEREAS, CONTRACTOR has the programs, equipment and personnel required to deliver the transactions and use tax related services referenced herein; THEREFORE, CITY and CONTRACTOR, for the consideration hereinafter described, mutually agree as follows: 12/28/2017 2 II. SERVICES The CONTRACTOR shall perform the following services: A. DEFICIENCY/ALLOCATION REVIEWS AND RECOVERY 1. CONTRACTOR shall conduct on-going reviews to identify and correct unreported transactions and use tax payments and distribution errors thereby generating previously unrealized revenue for the CITY. Said reviews shall include: (i) Comparison of county-wide local tax allocations to transactions tax for brick and mortar stores and other cash register-based businesses, where clearly all transactions are conducted on-site within the Measure “I” CITY boundaries, and therefore subject to transactions tax. (ii) Review of any significant one-time use tax allocations to ensure that there is corresponding transaction tax payments for taxpayers with nexus within the CITY boundaries. (iii) Review of state-wide transactions tax allocations and patterns to identify any obvious errors and omissions. (iv) Identification and follow-up with any potentially large purchasers of supplies and equipment (e.g. hospitals, universities, manufacturing plants, agricultural operations, refineries) to ensure that their major vendors are properly reporting corresponding transactions tax payments to the Measure “I” Transactions Tax District. 2. CONTRACTOR will initiate, where the probability of an error exists, contacts with the appropriate taxpayer management and accounting officials to verify 12/28/2017 3 whether current tax receipts accurately reflect the local sales activity. Such contacts will be conducted in a professional and courteous manner so as to enhance CITY’s relations with the business community. 3. CONTRACTOR shall prepare and submit to the Department of Tax and Fee Administration all information necessary to correct any allocation errors and deficiencies that are identified, and shall follow-up with the individual businesses and the California Department of Tax and Fee Administration to ensure that all back-quarter payments due the CITY are recovered. B. DATA BASE MANAGEMENT, REPORTS AND STAFF SUPPORT 1. CONTRACTOR shall establish a database containing all applicable Department of Tax and Fee Administration (CDTFA) registration data for each business within the Measure “I” District boundaries holding a seller’s permit account. Said database shall also identify the quarterly transactions and use tax allocations under each account for the most current and previous quarters where available. 2. CONTRACTOR shall provide updated reports each quarter identifying changes in allocation totals by individual businesses, business groups and by categories. Quarterly aberrations due to State audits, fund transfers, and receivables, along with late or double payments, will also be identified. Quarterly reconciliation worksheets to assist finance officer with budget forecasting will be included. 3. CONTRACTOR shall advise and work with CITY Staff on planning and economic questions related to maximizing revenues, preparation of revenue projections and general information on sales, transactions and use tax questions. 12/28/2017 4 4. CONTRACTOR shall make available to CITY the HdL proprietary software program and Measure “I” database containing all applicable registration and quarterly allocation information for CIT Y business outlets registered with the Department of Tax and Fee Administration. The database will be updated quarterly. III. CONFIDENTIALITY Section 7056 of the State of California Revenue and Taxation code specifically limits the disclosure of confidential taxpayer information contained in the records of the California Department of Tax and Fee Administration. This section specifies the conditions under which CITY may authorize persons other than CITY officers and employees to examine State Sales, Use and Transactions Tax records. The following conditions specified in Section 7056 (b), (1) of the State of California Revenue and Taxation Code are hereby made part of this agreement. A. CONTRACTOR is authorized by this Agreement to examine sales, use or transactions and use tax records of the Department of Tax and Fee Administration provided to CITY pursuant to contract under the conditions established by the California Revenue and Taxation law. B. CONTRACTOR is required to disclose information contained in, or derived from, those sales, use or transactions and use tax records only to an officer or employee of the CITY who is authorized by resolution to examine the information. 12/28/2017 5 C. CONTRACTOR is prohibited from performing consulting services for a retailer, as defined in California Revenue & Taxation Code Section 6015, during the term of this Agreement. D. CONTRACTOR is prohibited from retaining the information contained in, or derived from those sales or transactions and use tax records, after this Agreement has expired. Information obtained by examination of Department of Tax and Fee Administration records shall be used only for purposes related to collection of local sales and use tax or for other governmental functions of the CITY as set forth by resolution adopted pursuant to Section 7056 (b) of the Revenue and Taxation Code. The resolution shall designate the CONTRACTOR as a person, authorized to examine sales and use tax records and certify that this Agreement meets the requirements set forth above and in Section 7056 (b), (1) of the Revenue and Taxation Code. IV. CONSIDERATION A. CONTRACTOR shall be paid $100 monthly billed quarterly for the transaction district tax reports that we include with the quarterly sales tax analyses. CONTRACTOR shall be paid 25% of the initial amount of new transactions or use tax revenue received by the CITY as a result of audit and recovery work performed by CONTRACTOR (hereafter referred to as "audit fees"). New revenue shall not include any amounts determined and verified by CITY or CONTRACTOR to be increment attributable to causes other than CONTRACTOR'S work pursuant to this agreement. In the event that CONTRACTOR is responsible for an increase in the tax reported by businesses already properly making tax payments to the CITY, it shall be CONTRACTOR'S responsibility to separate and support the incremental amount attributable to its efforts prior to the application of the audit fee. Said audit 12/28/2017 6 fees will apply to state fund transfers received for those specific quarters identified as being missing and/or deficient following completion of the audit by CONTRACTOR and confirmation of corrections by the California Department of Tax and Fee Administration but shall not apply prospectively to any future quarter. CONTRACTOR shall provide CITY with an itemized quarterly invoice showing all formula calculations and amounts due for audit fees. CONTRACTOR shall obtain prior approval from CITY for each specific business for which payment of audit fees will be expected. Said approval shall be deemed given when the City Manager or his/her designated representative, signs a Work Authorization form, a copy of which is attached as "Exhibit A." CITY shall pay audit fees upon CONTRACTOR'S submittal of evidence of State fund transfers and payments to CITY from businesses identified in the audit and approved by the CITY . B. Above sum shall constitute full reimbursement to CONTRACTOR for all direct and indirect expenses incurred by CONTRACTOR in performing audits including the salaries of CONTRACTOR'S employees, and travel expenses connected with contacting local and out-of-state businesses and the Department of Tax and Fee Administration Staff. C. Extra work beyond the Scope of Services set forth in this agreement shall not be performed by CONTRACTOR or reimbursed or paid for by CITY unless such extra work is specifically authorized in writing by City Manager or his/her designated representative. CONTRACTOR shall be compensated for any additional services in the amounts and in the manner as agreed to by the CITY and CONTRACTOR at the time the CITY ’s written authorization is given to CONTRACTOR for the performance of said services. 12/28/2017 7 D. Any invoices not paid in accordance with the Thirty (30) day payment terms, shall accrue monthly interest at a rate equivalent to ten percent (10%) per annum until paid. E. CONTRACTOR unilaterally retains the right to divide any recovery bills in excess of $25,000 over a one (1) year period (Four (4) quarterly billings). F. CONTRACTOR shall provide CITY with an itemized quarterly invoice showing all formula calculations and amounts due for the audit fee (including, without limitation, a detailed listing of any corrected misallocations), which shall be paid by CITY no later than 30 days following the invoice date. VI. CITY MATERIALS AND SUPPORT CITY shall adopt a resolution in a form acceptable to the California Department of Tax and Fee Administration and in compliance with Section 7056 of the Revenue and Taxation Code, authorizing CONTRACTOR to examine the confidential sales, use, and transactions tax records of CITY. CITY further agrees to continue CONTRACTOR’S authorization to examine the confidential records of the CITY by maintaining CITY’s name on the CITY Resolution until such time as all audit adjustments have been completed by the California Department of Tax and Fee Administration and audit fees due the CONTRACTOR have been paid. VII. LICENSE, PERMITS, FEES AND ASSESSENTS CONTRACTOR shall obtain such licenses, permits and approvals (collectively the “Permits”) as may be required by law for the performance of the services required by 12/28/2017 8 this Agreement. CITY shall assist CONTRACTOR in obtaining such Permits, and CITY shall absorb all fees, assessments and taxes which are necessary for any Permits required to be issued by CITY. VIII. TERMINATION This Agreement may be terminated for convenience by either party by giving 30 days written notice to the other of such termination and specifying the effective date thereof. Upon the presentation of such notice, CONTRACTOR shall continue to work through the date of termination. Upon termination as provided herein, CONTRACTOR shall be paid the value of all tax analysis and reporting work performed less payments previously made by CITY. In ascertaining the value of the work performed up to the date of termination, consideration shall be given to amounts due for any unpaid invoices, and to businesses identified by CONTRACTOR which make tax payments after termination of this Agreement as a result of CONTRACTOR'S work. After CITY receives said tax payments for such businesses, CONTRACTOR shall be paid the audit fees resulting from tax payments made by the business for back quarter reallocations. Compensation for any audit work previously authorized and satisfactorily performed shall be made at the times provided in the preceding section entitled "Consideration." All documents, data, surveys and reports prepared by CONTRACTOR pursuant to this Agreement shall be considered the property of the CITY and upon payment for services performed by CONTRACTOR, such documents and other identified materials shall be delivered to CITY by CONTRACTOR. IX. INDEPENDENT CONTRACTOR CONTRACTOR shall perform the services hereunder as an independent contractor and shall furnish such services in his own manner and method, and under no circumstances 12/28/2017 9 or conditions shall any agent, servant, or employee of CONTRACTOR be considered as an employee of CITY. X. COOPERATIVE AGREEMENT It is intended any other public agency (e.g., city, county, district, public authority, public agency, municipality, or other political subdivision of California) located in the state of California shall have an option to procure identical services as set forth in this Agreement. The City of Burlingame shall incur no responsibility, financial or otherwise, in connection with orders for services issued by another public agency. The participating public agency shall accept sole responsibility for securing services or making payments to the vendor. XI. NON-ASSIGNMENT This Agreement is not assignable either in whole or in part by CONTRACTOR without the written consent of CITY. XII. ATTORNEY'S FEES In the event a legal action is commenced to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees. XIII. GOVERNING LAW The laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and shall also govern the interpretation of this Agreement. 12/28/2017 10 XIV. INDEMNIFICATION CONTRACTOR hereby agrees to, and shall hold CITY, its elective and appointive boards, officers, agents and employees, harmless from any liability for damage or claims for damage for personal injury, including death, as well as from claims for breach of confidentiality or property damage which may arise from CONTRACTOR'S willful or negligent acts, errors or omissions or those of its employees or agents. CONTRACTOR agrees to and shall defend CITY and its elective and appointive boards, officers, agents and employees from any suits or actions at law or in equity for damages caused, or alleged to have been caused, by reason of any of the aforesaid willful or negligent acts, errors or omissions. CITY hereby agrees to, and shall hold CONTRACTOR, its officers, agents and employees, harmless from any liability for damage or claims for damage for personal injury, including death, as well as from claims for breach of confidentiality or property damage which may arise from CITY'S negligent acts, errors or omissions including misuse or improper disclosure of confidential information contained in reports submitted by contractor under this Agreement. CITY agrees to and shall defend CONTRACTOR and its officers, agents and employees from any suits or actions at law or in equity for damage caused, or alleged to have been caused, by reason of any of the aforesaid negligent acts, errors or omissions and/or misuse or improper disclosure of confidential information. XV. NOTICE All notices sent by a party under this Agreement shall be in writing and shall be deemed properly delivered to the other party as of the date of receipt, if received on a business day prior to 3:00 PM local time, or otherwise on the next business day after receipt, provided delivery occurs personally, by courier service, or by U.S. mail to the other 12/28/2017 11 party at its address set forth below, or to such other address as either party may, by written notice, designate to the other party. Notices to CONTRACTOR shall be sent to HINDERLITER, de LLAMAS and ASSOCIATES, 1340 Valley Vista Drive, Suite 200, Diamond Bar, CA 91765; and notices to CITY shall be sent to CITY OF BURLINGAME, 501 Primrose Road, 1st Floor, Burlingame, CA 94010. XVI. ENTIRE AGREEMENT; ETC. This Agreement expresses the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous proposals, agreements, representations and understandings, whether written or oral, with respect to the subject matter. This Agreement may not be amended or modified except in writing signed by each of the parties hereto. This Agreement shall be construed as to its fair meaning and not strictly for or against either party. The headings hereof are descriptive only and not to be construed in interpreting the provisions hereof. XVII. COUNTERPARTS; AUTHORITY TO SIGN This Agreement may be executed in any number of counterparts, each of which will constitute an original and all of which, when taken together, will constitute one agreement. Any signature pages of this Agreement transmitted by facsimile or sent by email in portable document format (PDF) will have the same legal effect as an original executed signature page. Each of the persons signing on behalf of a party hereto represents that he or she has the right and power to execute this Agreement on such party’s behalf. 12/28/2017 12 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first above written by their respective officers duly authorized in that behalf. CITY: CITY OF BURLINGAME Lisa K. Goldman, City Manager CONTRACTOR: HINDERLITER, DE LLAMAS & ASSOCIATES A California Corporation Andrew Nickerson, President APPROVED AS TO FORM: CITY COUNSEL: SAMPLE SAMPLE EXHIBIT A Transactions Tax Audit Work Authorization No. ______ The following business or businesses, located in the City of Burlingame, have been identified as having the potential for generating additional tax revenues to the City of Burlingame. Contractor is hereby authorized to contact the given business(s) and the California Department of Tax and Fee Administration to verify the accuracy of the current reporting methodology and obtain the necessary documentation for the Department of Tax and Fee Administration, to bill for uncollected transactions and use tax payments or modify misallocated payments and to return revenues that may be due to the District. Contractor's compensation shall be $100 monthly billed quarterly and 25% of the new transactions tax revenue received by the District as a result of audit and recovery work performed by Contractor, as set forth in the Agreement between Contractor and City. CITY : CITY OF BURLINGAME By:___________________________ Date: HINDERLITER, DE LLAMAS AND ASSOCIATES By: Date 1 STAFF REPORT AGENDA NO: 10a MEETING DATE: January 2, 2018 To: Honorable Mayor and City Council Date: January 2, 2018 From: Margaret Glomstad, Parks and Recreation Director – (650) 558-7307 Subject: Adoption of a Resolution Authorizing the City Manager to Execute an Amendment to the Agreement with Fung Collaboratives and Approve an Additional General Fund Appropriation in the Amount of $13,833 RECOMMENDATION Staff recommends that the City Council adopt the attached resolution authorizing the City Manager to execute an amendment to the Agreement for Professional Services with Fung Collaboratives and approve an additional General Fund appropriation in the amount of $13,833. BACKGROUND On February 21, 2017, the Council held a study session to discuss a public art display to honor Anson Burlingame. The Council agreed that further work on this matter should be done by an ad hoc Subcommittee, and Mayor Ortiz appointed Vice Mayor Brownrigg and Councilmember Beach to this group. DISCUSSION The members of the Subcommittee and staff held a preliminary discussion, and then staff conducted research to learn how other local cities have addressed the commissioning of public art. In addition, staff met with representatives from the Cities of Redwood City and South San Francisco, who have public art programs, and talked with Ruth Waters from the Peninsula Art Museum and Cindy Abbott from the Sanchez Art Center in Pacifica. Based on the information gathered, the Subcommittee agreed to meet with Lance Fung and John Tally with Fung Collaboratives. Fung Collaboratives is an arts organization founded in 1999 by Lance Fung. Their mission is to explore and develop interesting conversations between and through the arts. Through the development of curatorial, commercial, and educational events under a single organizational umbrella, Fung Collaboratives fosters the collaboration of both emerging and established artists in intimate and ambitious projects with domestic and international settings. Recently, they have been working with Redwood City to develop their Public Art Master Vision. The Subcommittee met with Lance Fung and John Tally on Tuesday, June 6, 2017. The Subcommittee was very impressed with the knowledge and background experience of Fung Amendment to the Agreement with Fung Collaboratives January 2, 2018 2 Collaboratives and felt that they would be a valuable resource to educate the Burlingame community about public art and to help guide the commissioning of a public art piece. The Subcommittee reviewed Fung Collaboratives’ proposed process, which included three phases. Phase 1: 1. Plan and facilitate two educational workshops, for the Councilmembers and community members, about what public art is, the benefits of public art, national and local views on public art, best practices, how the public can get involved, and what art can mean in Burlingame. 2. Hold one meeting of the Subcommittee and community working group to begin the conversation, talk about ideas and locations, and create a list of potential artists and/or ways to advertise the project. Phase 2: 1. Research possible grant opportunities to help fund the art. 2. Meet with potential local funders, such as businesses or patrons. 3. Create the Call for Artists. 4. Present to Council to update the status of the project. 5. If appropriate, request Council approval to commission an art piece. Phase 3: 1. Advertise and promote the Call for Artists. 2. Select the final location and artist to commission the new site-specific artwork. 3. If on The Bay Trail, coordinate with ABAG and BCDC for site planning. 4. With the City Attorney, develop and execute a contract between the City and the artist. 5. Work directly with the artist to create the final proposal. 6. Present the proposal to the Council and get approval for a detailed proposal, timeline, budget, artist statement, renderings, etc. 7. Schedule meetings with City stakeholders to provide information about the work. 8. Work on installation details such as engineering, safety, ADA compliance, and signage. 9. Schedule and complete a ribbon-cutting event. At the July 3, 2017 Council meeting, the Council was given an update on the Subcommittee’s progress and approved completing Phases 1 and 2. In order to ensure that there is adequate input from the community, the Subcommittee is supported by the Anson Burlingame Art Committee (AB Committee) comprised of Ruth Waters from the Peninsula Art Museum; Russ Cohen from the Burlingame Historical Society; David Chai, who has extensively researched Anson Burlingame; and community members Janet Martin and Leslie Holzman. The AB Committee met on August 15, September 20, and December 14, 2017. During the meetings, the Committee established goals and a process, developed workshop formats, and discussed public outreach, fundraising, possible locations for the art work, and next steps. Amendment to the Agreement with Fung Collaboratives January 2, 2018 3 The first Public Art W orkshop was held on September 26, 2017; discussion items included art in the public realm and what it could mean in Burlingame. The second workshop, which was held on October 24, 2017, included an overview of the history of Anson Burlingame and the qualities the community members would like to see in an art piece in honor of Anson Burlingame. To date, Phases 1 and 2 have been completed. In order to continue to Phase 3, all of the funding needs to be secured prior to advertising the Call for Artists. To solicit funds from potential donors without a more concrete concept of the proposed art piece is challenging. The Subcommittee is therefore requesting $13,333 in additional funds in order to publicize the Call for Artists and provide for preliminary renderings from two artists to aid the fundraising effort. FISCAL IMPACT Based on a project budget of $125,000, the Fung Collaboratives fee is $25,000 (20%) for Phase 3. The additional funding of $8,333 (1/3 of the 20% Phase 3 fee) would allow for the development of the concept; this amount would be subtracted from the total Phase 3 costs. An additional $4,500 is needed for artist renderings, and $1,000 is needed for web postings and promotion of the Call for Artists. Staff therefore requests an additional General Fund appropriation in the amount of $13,833. Exhibits: • Resolution • Amendment to the Agreement RESOLUTION NO.________ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING THE CITY MANAGER TO AMEND THE AGREEMENT BETWEEN THE CITY AND FUNG COLLABORATIVES IN THE AMOUNT OF $13,333 WHEREAS, on July 3, 2017, the City Council approved working with Fung Collaboratives to educate the Burlingame community about public art and to help guide the commissioning of a public art piece to honor Anson Burlingame as Phases 1 and 2 of the Scope of Services for the original agreement; and WHEREAS, the City has determined the need for additional funding between Phases 2 and 3 in order to advertise the Call for Artists, provide funding for preliminary renderings from two artists, and provide for web posting and promotion of the Call for Artists; and WHEREAS, the Consultant’s fee is $8,333; the artists’ renderings will cost up to $4,500; and advertising will cost up to $1,000; for a total of $13,833. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME RESOLVES AND ORDERS: 1. The facts in the recitals above and in the staff report are true and correct. 2. The City Manager is authorized to sign the amendment to the agreement on behalf of the City of Burlingame. 3. The City of Burlingame and Consultant amend the payment provision of the agreement dated August 8, 2017 to include an additional $13,833 for expanded work. 4. Other than as modified by the Amendment No. 1, all existing terms and conditions of the original agreement shall remain in full force and effect. ___________________________ Michael Brownrigg, Mayor I, Meaghan Hassel-Shearer, City Clerk of the City of Burlingame, certify that the foregoing resolution was introduced at a regular meeting of the City Council held on the 2nd day of January, 2018, and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ______________________________ Meaghan Hassel-Shearer, City Clerk FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF BURLINGAME AND FUNG COLLABORATIVES THIS AMENDMENT NO. 1, made and entered into this ______day of________________, 2018, by and between the CITY OF BURLINGAME, a municipal corporation [hereinafter “City”], and Fung Collaboratives, [hereinafter “Consultant”], amends the Agreement between the parties dated August 8, 2017 [hereinafter “Agreement”]. WHEREAS, on July 3, 2017, the City Council approved working with Fung Collaboratives to educate the citizens of Burlingame about public art and to help guide the commission of a public art piece to honor Anson Burlingame as Phases 1 and 2 of the Scope of Services in the original agreement; and WHEREAS, the City has determined the need for additional funding between Phases 2 and 3 in order to advertise the Call for Artists, provide funding for preliminary renderings from two artists, and provide for web posting and promotion of the Call for Artists; and WHEREAS, the additional funding will cover the following work: the Consultant’s fee is $8,333, the artists’ renderings will cost up to $4,500, and advertising will cost up to $1,000, for a maximum total of $13,833. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. The City of Burlingame and the Consultant amend their agreement dated August 8, 2017 to include funding for the Call for Artists, preliminary renderings from two artists, and web posting and promotion. 2. The City of Burlingame and Consultant amend the payment provision of the agreement dated August 8, 2017 to include an additional $13,833.00 for expanded work as described herein. 3. Other than as modified by the Amendment No. 1, all existing terms and conditions of the original agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties have executed this Amendment to Agreement on the day and year as written above. CITY OF BURLINGAME Fung Collaboratives A municipal corporation By: By: Lisa K. Goldman, City Manager ATTEST: Approved as to Form: Meaghan Hassel-Shearer, City Clerk Kathleen Kane, City Attorney 1 STAFF REPORT AGENDA NO: MEETING DATE: January 2, 2018 To: Honorable Mayor and City Council Date: January 2, 2018 From: William Meeker, Community Development Director – (650) 558-7255 Subject: Update Regarding Home for All Community Engagement Pilot Program RECOMMENDATION The City Council should receive the update on the City’s Home for All Community Engagement Program provided with this item. The Council may wish to give additional suggestions for engagement of the community in the discussion of the need for a wider range of housing opportunities. BACKGROUND Two years ago, San Mateo County convened a task force to address the gap between the large number of new jobs being created in the County and the relatively few new housing units being built in the region. The action plan developed by this task force led to the creation of the Home for All Initiative. The initiative is intended is to inspire community support for a variety of housing options so that San Mateo County can continue to be a culturally, generationally and economically diverse region with housing options available to all who desire them. The City of Burlingame has been supportive of and highly involved in the Home for All initiative. On January 17, 2017 the City Council adopted a resolution committing the City to working with other jurisdictions in the County to address the housing crisis through ongoing support of the Home for All Initiative. Vice-Mayor Colson serves on the Steering Council and the Funding Committee, while Councilmember Keighran serves on the Outreach and Education Committee and the Legislative Subcommittee. In September the City of Burlingame was selected to participate in the “Community Engagement Pilot Program” initiated by Home for All. A key focus of Home for All has been to understand how community perspectives about housing affect decisions made by local governments, and the Community Engagement Pilot Program is designed to work with local jurisdictions to jointly develop customized community engagement strategies. Home for All has partnered with Common Knowledge Plus, a community engagement consulting firm, to facilitate the initiative, with the objective of having housing conversations and decision-making be as inclusive as possible. Home For All Community Engagement Pilot Program January 2, 2018 2 DISCUSSION Home for All and Common Knowledge Plus have been working with City staff, Councilmember Keighran, and Vice-Mayor Colson to develop a work plan for Burlingame’s Community Engagement Pilot Program. The work plan focuses on the affordable housing proposal at Downtown Parking Lots F and N (“The Village at Burlingame”) together with a larger discussion of affordable housing in the community. The hope is to have a constructive and productive dialog with the community to discuss what options are available to address housing needs, how resources should be invested, and how to prioritize objectives. The intent is to engage a broad cross-section of the community, including those who may not be familiar with how to participate in the public process. Engagement to date has included “pop-up” intercept interviews held in nontraditional locations to reach individuals not ordinarily engaged in civic affairs, as well as outreach to a wide range of community organizations. The project team has also been developing materials to provide information on frequently asked questions regarding specifics of the Village at Burlingame, as well as local housing issues more generally. Particularly significant is an upcoming community engagement meeting scheduled for the morning of Saturday, February 10th from 9:00 am to 12 noon. This will be the first of two community meetings being planned for the Community Engagement Pilot Program. On January 2, 2018 City staff and Home for All/Common Knowledge Plus will provide the City Council with an overview of the meeting format and content, as well as receive input on the outreach strategy to the community. FISCAL IMPACT None. 1 STAFF REPORT AGENDA NO: 10c MEETING DATE: January 2, 2018 To: Honorable Mayor and City Council Date: January 2, 2018 From: Ana Maria Silva, Executive Assistant – (650) 558-7204 Subject: Consideration of Appointments to the Traffic, Safety & Parking Commission RECOMMENDATION Staff recommends that the City Council make appointments to fill two impending vacancies on the Traffic, Safety & Parking Commission or take other action. BACKGROUND The vacancy is due to the expired terms of Commissioners Nick Akers and Jeff Londer. Commissioner Akers elected not to re-apply. The vacancies were publicized, and notification letters were sent to past Commission applicants. The City received seven applications as of the extended deadline of November 20, 2017. The following seven applicants were interviewed by then-Mayor Ortiz, Vice Mayor Brownrigg, Councilmember Colson, and Councilmember Keighran on December 5, 2017: Jeff Londer, Daniel Devoy, Irving Agard, Andrew Ahlers, Greg Mand, Lynn Israelit, and Sean Pitonak. The appointees terms will be for three years, ending on November 6, 2020. 1 STAFF REPORT AGENDA NO: 10d MEETING DATE: January 2, 2018 To: Honorable Mayor and City Council Date: January 2, 2018 From: Syed Murtuza, Director of Public Works – (650) 558-7230 Subject: Consideration of Appointments to the Storm Drain Measure Oversight Committee RECOMMENDATION Staff recommends that the City Council make an appointment to fill a vacancy on the Storm Drain Measure Oversight Committee or take other action. BACKGROUND The vacancy is due to the passing of Storm Drain Measure Oversight Committee member Rudy Horak. The vacancy was publicized in the eNews, and the City received two applications by the deadline of November 3, 2017. The City Council interviewed the applicants, Susanna Chen and Matt Feemster, on December 5, 2017. The appointee term will be for four years, ending on January 2, 2022. FISCAL IMPACT None. 1 STAFF REPORT AGENDA NO: 10e MEETING DATE: January 2, 2018 To: Honorable Mayor and City Council Date: January 2, 2018 From: Lisa K. Goldman, City Manager – (650) 558-7243 Carol Augustine, Finance Director – (650) 558-7222 Subject: Discussion of the Composition and Scope of Responsibilities for the Measure I Oversight Committee and Determination of a Preferred Selection Process RECOMMENDATION Staff recommends that the City Council discuss the desired composition and scope of responsibilities for the city’s Measure I oversight committee. BACKGROUND In November, Burlingame’s voters approved Measure I, a retail transactions and use tax of ¼ percent, which effectively increases the sales tax rate in Burlingame from 8.75 percent to 9 percent. In addition to requiring a separate external audit of the collections and expenditures of the new transactions tax, the Measure also provides for the establishment of a Citizens’ Oversight Committee. The Measure requires the following: A. There shall be a committee consisting of no fewer than three persons appointed by the City Council to review and report on the receipt of revenue and expenditure of funds from the tax authorized by this Chapter (“revenues and expenditures”).” Members of the Committee shall be residents of the City or representatives of businesses located in the City. B. Beginning with the fiscal year that ends June 30, 2018, the City’s independent auditors shall, as part of their annual audit of the City’s financial statements, review the collection and expenditure of revenue from the tax authorized by this Chapter. The auditors’ review shall be a public document, the committee shall annually review the auditors’ findings regarding the revenues and expenditures. The committee’s statement shall be transmitted to the City Council for consideration at a public meeting. C. By January 31, 2018, the City Council shall adopt a resolution establishing the composition of the committee and defining the scope of its responsibilities consistent with Direction for Establishment of Measure I Oversight Committee. January 2, 2018 2 this section. Provisions defining the scope of committee responsibilities and reporting requirements shall address bond oversight in the event that a decision is made at a later time to sell bonds that are in part backed by the revenues referenced in this section. The City Council shall appoint the initial members of the committee not later than March 1, 2018. The operative date of the tax is April 1, 2018. DISCUSSION To assist in the discussion of the composition and scope of the Oversight Committee, staff examined the bylaws, mission statements, guidelines, and policies of transaction and use tax oversight committees in other cities. In San Mateo County, there are four cities with a transactions and use tax similar to that created by Measure I. East Palo Alto does not have an oversight committee specific to the added tax. The City of San Mateo does not have an oversight committee for their current transactions and use tax that expires March 31, 2018, but they are in the process of forming one for their recent Measure S tax that will take its place. Belmont’s Measure I was passed just one year ago. Applications were taken prior to the determination of the number of members (currently five) and specific scope. The City of South San Francisco’s successful Measure W (for a half cent transactions and use tax) was approved two years ago. The Measure W Oversight Committee consists of five members appointed by the City Council with staggered four year terms. The bylaws for the City of South San Francisco’s Measure W Citizen’s Oversight Committee are attached to this report. In addition, staff reviewed the structure of other transaction and use tax oversight committees in the state (Arcata, Moraga, San Leandro, and San Rafael, to name a few). Generally, the committees consist of five or seven members, with the larger committees having one or two Councilmembers in addition to citizens, and they meet one or two times a year to review the audited annual reports prepared by staff. The details of committee operations range from detailed bylaws to simple mission statements such as that offered by the City of Santa Rosa (attached). When specifying duties of the committee, most cities relied on the language of the approved ballot measure; many noted that the committee had no budgetary decision or contractual authority. Composition and Scope of the Committee In discussing the composition and scope of the committee, the Council should determine how many members it would like to appoint. For comparison purposes, the City’s Storm Drain Oversight Committee contains three members. Since the measure allows for non-resident representatives of Burlingame businesses to serve, the Council should determine whether it wishes to set aside a certain number of seats for the business community. The Council should also discuss the length of the term of service, whether or not there are term limits, and whether it wishes to stagger terms in order to provide continuity on the committee as terms come to an end. Direction for Establishment of Measure I Oversight Committee. January 2, 2018 3 In terms of the scope of the committee’s work, the ballot measure itself provides guidance. At a minimum, the committee shall annually review the auditors’ findings regarding the revenues and expenditures and transmit a statement regarding that review to the City Council. In addition, the committee shall provide oversight of any bonds that are backed in whole or in part by the Measure I revenues. Next Steps After the Council has discussed and given direction on the committee, staff will return with a draft resolution that establishes the composition and scope of the City of Burlingame’s Citizens’ Oversight Committee for Measure I revenues and expenses. During tonight’s discussion, the Council should also provide direction as to whether it would like to use the same selection process it uses for the City’s other Boards and Commissions and the Storm Drain Oversight Committee (written application followed by in-person interviews) or whether it wishes to follow some other process. As noted above, the Measure requires that the committee be in place by March 1, 2018. At the January 16th meeting, the Council can make changes to the language of the resolution as deemed necessary for adoption. Again, the resolution needs to be adopted by January 31st to comply with Measure I. FISCAL IMPACT Although there is no direct fiscal impact resulting from the creation of the Measure I Citizens’ Oversight Committee, this action will foster an objective and transparent review of the use of the new revenue generated from the additional ¼ percent transactions and use tax. Exhibits: • City of South San Francisco Measure W Citizens’ Oversight Committee Bylaws • City of Santa Rosa Measure O Citizen Oversight Committee CITY OF SOUTH SAN FRANCISCO MEASURE W CITIZENS’ OVERSIGHT COMMITTEE BYLAWS A. Committee Established. There is hereby established in the City of South San Francisco, pursuant to Ordinance No. 1503-2015, a Measure W Citizens’ Oversight Committee (hereinafter, “Committee”). Measure W, identified as the South San Francisco Fiscal Stability and Essential Services Ordinance, adopted a one-half cent retail transactions and use tax. The Committee shall report periodically to the City Council regarding the collection and expenditure of Measure W revenue. B. Selection of Members. 1. Members of the Committee shall be appointed by majority vote of the City Council. 2. The Committee shall consist of five members. a. Three members shall serve an initial term of four years. b. Two members shall serve an initial term of three years. c. Following service by the Committee members of the foregoing initial terms, all members will subsequently serve four-year terms. 3. Any South San Francisco resident or representative of a business located in South San Francisco, who is 18 years of age or older, is eligible to be appointed to the Committee. The City Council may give preference to applicants with financial management experience. 4. The City Council, by majority vote, may appoint an ex-oficio, non-voting alternate member to the Committee (“Alternate”). In the event that the City Council appoints an Alternate, the Alternate may attend Committee meetings, but will not count towards a quorum and shall not vote on items before the Committee. C. Committee Actions. 1. The Committee shall meet with the City’s independent auditor at the initiation of each annual financial audit process to outline issues of particular interest to the Committee, and to be briefed on the independent auditor’s plan for the audit scope and schedule. 2. The Committee shall review the annual audit prepared by the City’s independent auditor related to the prior fiscal year’s collection and expenditure of revenue from the tax authorized by Measure W. The Committee shall meet with the City’s independent auditor to receive the audit findings in advance of the presentation of the final audit report to the City Council. The Committee shall report in writing to the City Council regarding the accuracy of the auditors’ findings regarding the Measure W revenues and expenditures. 3. The Committee’s annual report shall offer independent verification regarding the independent auditor’s findings related to whether the funds collected are being spent in accordance with the terms of Measure W. The Committee’s report shall be transmitted through the City Manager’s Office to the City Council for consideration at a City Council meeting. The Committee shall serve in an advisory role to the City Council. 4. In order to preserve the integrity and independence of the oversight process, Committee members shall not have a formal role in contracting, project management, or any other aspect related to the use of revenue generated pursuant to Measure W. 5. The City Manager or his or her designee shall provide any reasonable administrative or technical assistance so that the Committee shall be able to fulfill its duties. D. Meetings. The Committee shall adopt a regular meeting schedule that shall include, at minimum, one annual regular meeting for the purposes of reviewing the annual audit. The Committee may schedule additional meetings as necessary. 1. The Committee is subject to the Ralph M. Brown Act. (Government Code Section 54950 et seq.) Notice must be given of all Committee meetings and the meetings shall be open to the public. The City Manager or his or her designees shall arrange for any necessary training and will assist the Committee in complying with the Brown Act. E. Attendance. Committee members are expected to attend all regular meetings and special meetings as needed. Committee members are expected to attend all committee-related orientation and training sessions (including ethics training and audit review training). F. Committee Operations. The City Council shall select two Committee members to serve as the initial chair and vice-chair of the Committee until the Committee selects its own chair and vice-chair. At its first regular meeting of each subsequent calendar year, or as soon as practicable thereafter, the Committee shall select members to serve as chair and vice-chair. The City Manager or his or her designee shall serve as the Committee’s secretary. The secretary will be responsible for the posting and distribution of agendas and the taking of minutes. Approved minutes shall be made available to the public. G. Vacancies. In the event of removal approved by the City Council, resignation, or death of a Committee member, the City Council shall appoint a person to fill the vacant Committee member seat. In the event of a vacancy, the City Council may appoint the Alternate to the vacant Committee member position. Measure O Citizen Oversight Committee Mission Ensure that all revenues received from the voter approved Transactions and Use Tax (Measure O) are only spent on permissible uses as outlined in Ordinance 3680 Roles and Responsibilities 1. Understand permissible uses under Measure O. 2. Understand allocation methodology of revenues between Police, Fire, and Gang Prevention and Youth Programs 3. Review appropriateness of proposed Measure O appropriations for upcoming budget year prior to the City Council budget hearings. 4. Issue to the City Council an annual public report on the expenditures and appropriations of Measure O tax revenues using data from the previous fiscal year. 1 STAFF REPORT AGENDA NO: 10f MEETING DATE: January 2, 2018 To: Honorable Mayor and City Council Date: January 2, 2018 From: Margaret Glomstad, Parks and Recreation Director – (650) 558-7307 Subject: Adoption of a Resolution Authorizing the City Manager to Execute an Agreement for Professional Services with MIG for the Development of a Parks Master Plan RECOMMENDATION Staff recommends that the City Council adopt the attached resolution authorizing the City Manager to execute an Agreement for Professional Services with MIG for the development of a Parks Master Plan. BACKGROUND The City Council approved funds in the FY 17-18 Parks and Trees Capital Improvement Program to complete the City’s first Citywide Parks Master Plan. The Parks Master Plan will set the framework for decision makers in the planning, maintenance, development, and/or rehabilitation of Burlingame’s parks and recreational facilities by providing a systematic and prioritized approach to implementation of parks and recreation projects. The City issued a request for proposals on August 22, 2017, and received seven proposals by the October 17, 2017 deadline. An Advisory Committee comprised of then-Mayor Ortiz, Councilmember Beach, Parks and Recreation Commissioners Lewis and Matthews, Parks and Recreation Director Glomstad, Recreation Supervisor Acquisti, Parks Supervisor Holtz, and Senior Planner Keylon reviewed the proposals and determined that MIG, Verde Designs, and RHAA were the most qualified firms to be invited to an interview. The Advisory Committee conducted the interviews on Wednesday, November 15, 2017. DISCUSSION At the conclusion of the interviews, the Advisory Committee selected MIG as the best qualified to prepare the City’s Parks Master Plan based upon: 1) the firm’s involvement in numerous parks master plans in comparable jurisdictions in the Bay Area; 2) the firm’s experience with and approach to preparing a parks master plan, including the sub-consultants on the team who specialize in Fee Nexus Studies and community surveys; 3) the firm’s recognized leadership in community engagement, with the proposal including a comprehensive community participation and outreach plan; 4) the firm’s current experience working with the Burlingame community Parks Master Plan Agreement with MIG January 2, 2018 2 through the Envision Burlingame General Plan update process; and 5) the overall expertise and energy of the team assembled for the project. FISCAL IMPACT The fee to complete the Parks Master Plan is $199,555. This includes an existing park and facilities analysis, community engagement and surveying, a funding and implementation plan, and a final Parks Master Plan to be approved by the City Council. The fee for optional tasks, including an online interactive mapping survey, additional community/stakeholder workshops/meeting and public engagement support that may be required to ensure adequate community input is up to $50,000. Adequate funds are available in the Parks and Trees Capital Improvement Program budget. Exhibits: • Resolution • Agreement for Professional Services with MIG RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL SERVICES WITH MIG. WHEREAS, the City Council approved funds in the FY 17-18 Parks and Trees Capital Improvement Program to complete the City’s first Citywide Parks Master Plan in the amount of $250,000; and WHEREAS, the Parks Master Plan will set the framework for decision makers in the planning, maintenance, development, and/or rehabilitation of Burlingame’s parks and recreational facilities by providing a systematic and prioritized approach to implementation of parks and recreation projects; and WHEREAS, the City issued a request for proposals on August 22, 2017, and received seven proposals by the October 17, 2017 deadline; and WHEREAS, an Advisory Committee comprised of then-Mayor Ortiz, Councilmember Beach, Parks and Recreation Commissioners Lewis and Matthews, Parks and Recreation Director Glomstad, Recreation Supervisor Acquisti, Parks Supervisor Holtz, and Senior Planner Keylon reviewed the proposals and determined that MIG, Verde Designs, and RHAA were the most qualified firms to be invited to an interview; and WHEREAS, the Advisory Committee conducted the interviews on Wednesday, November 15, 2017, and selected MIG as the best qualified to prepare the City’s first Parks Master Plan based upon: 1) the firm’s involvement in numerous parks master plans in comparable jurisdictions in the Bay Area; 2) the firm’s experience with and approach to preparing a parks master plan, including sub-consultants on the team who specialize in Fee Nexus Studies and community surveys; 3) the firm’s recognized leadership in community engagement, with the proposal including a comprehensive community participation and outreach plan; 4) the firm’s current experience working with the Burlingame community through the Envision Burlingame General Plan update process; and 5) the overall expertise and energy of the team assembled for the project. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME RESOLVES AND ORDERS AS FOLLOWS: 1. The City Council approves the agreement with MIG to complete the Parks Master Plan at a cost not to exceed $149,555. 2. The City Manager is authorized to execute the contract amendment and any necessary documents to undertake the above said work. ________________________________ Michael Brownrigg, Mayor I, Meaghan Hassel-Shearer , City Clerk of the City of Burlingame, certify that the foregoing Resolution was introduced at a regular meeting of the Burlingame City Council held on the 2nd day of January, 2018, and was adopted thereafter by the following vote: AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers: ________________________________ Meaghan Hassel-Shearer, City Clerk 1 STAFF REPORT AGENDA NO: 10g MEETING DATE: January 2, 2018 To: Honorable Mayor and City Council Date: January 2, 2018 From: Margaret Glomstad, Parks and Recreation Director – (650) 558-7307 Subject: Adoption of a Resolution Authorizing the City Manager to Execute an Agreement with Burlingame Youth Baseball Association for Use of City- Owned Fields For Recreational Baseball Use, Concession Sales, and Storage RECOMMENDATION Staff recommends that the City Council review the draft agreement, provide direction regarding waiving and/or reducing City fees, and authorize the City Manager to execute the agreement with the changes as directed by the City Council. BACKGROUND Burlingame Youth Baseball Association (BYBA), a non-profit organization established in 1992, has had a long relationship with the City. BYBA provides organized baseball for youth ages 5-18 in seven different age divisions on City athletic fields, with an average of 600-650 players each year. Their resident player percentage is approximately 95%. Over the years, BYBA has paid to add amenities to City parks in order to enhance their programs, including batting cages at Bayside Fields and Washington Park; a scoreboard at Bayside Field #1; storage sheds at Bayside Fields, Washington Park, and Cuernavaca Field; and ballfield and dugout improvements including the new Field #5 at Bayside Fields. Over the years, the City has had multiple agreements with BYBA for various improvements they have made in City parks. The earliest agreement was signed in 1993, while the most recent agreement was signed in 2004. As such, they are out of date and need to be updated to current requirements and standards. For efficiency, staff determined that it was prudent to combine the agreements into one agreement. While this agreement covers improvements made to City parks and the maintenance and use of those improvements, the rental use of the fields is not covered but continues through the Field Use Policy. Burlingame Youth Baseball Association Agreement January 2, 2018 2 DISCUSSION The draft agreement, which was developed by Parks and Recreation Department staff, City Attorney’s office staff, and BYBA Board members, covers use of facilities including batting cages, concession stands, and storage sheds; the process for improvements; liabilities and indemnifications; insurance requirements; emergency repairs; termination; etc. City staff and the BYBA Board have agreed on all sections of the new agreement. The BYBA Board, however, has requested that the Council waive permit fees for improvements (Section 6) and reduce the surcharge from 10% to 5% for emergency repairs completed by the City (Section 12). The requests are highlighted in the attached proposed agreement. FISCAL IMPACT The average permit fee can vary depending on the project, but staff anticipates it to be no more than $300 per permit. Because a surcharge fee has never been used before, it is not possible to know the fiscal impact. Staff anticipates it to be minimal, however. Exhibits: • Resolution • Draft Agreement RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH BURLINGAME YOUTH BASEBALL ASSOCIATION WHEREAS, Burlingame Youth Baseball Association (BYBA), a non-profit organization established in 1992, has had a long relationship with the City; and WHEREAS, BYBA provides organized baseball for youth ages 5-18 in seven different age divisions on City athletic fields, with an average of 600-650 players each year and a 95% resident player percentage; and WHEREAS, over the years, BYBA has paid to add amenities to City parks in order to enhance their programs, including batting cages at Bayside Fields and Washington Park; a scoreboard at Bayside Field #1; storage sheds at Bayside Fields, Washington Park, and Cuernavaca Field; and ballfield and dugout improvements including the new Field #5 at Bayside Fields; and WHEREAS, the City has had multiple agreements with BYBA for various improvements they have made, and staff determined that it was prudent to combine the agreements into one agreement. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME DOES HEREBY RESOLVE AND ORDER AS FOLLOWS: 1. The City Manager is hereby authorized to execute the agreement. ________________________________ Michael Brownrigg, Mayor I, Meaghan Hassel-Shearer , City Clerk of the City of Burlingame, do h ereby certify that the foregoing Resolution was introduced at a regular meeting of the Burlingame City Council held on the 2nd day of January, 2018, and was adopted thereafter by the following vote: AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers: ________________________________ Meaghan Hassel-Shearer, City Clerk 1 THE CITY OF BURLINGAME AND BURLINGAME YOUTH BASEBALL ASSOCIATION USE AGREEMENT This USE AGREEMENT (hereinafter, "AGREEMENT”) is made and entered into this ____ day of ________________, 2017, by and between the CITY OF BURLINGAME (hereinafter, "CITY”) and BURLINGAME YOUTH BASEBALL ASSOCIATION, a non-profit 501(c)(3) corporation (hereinafter, "BYBA”), who are referred to as a “Party” or collectively the “Parties.” R E C I T A L S WHEREAS, CITY is the fee owner of Bayside Fields, Washington Park, and Cuernavaca Park in the City of Burlingame; and WHEREAS, the CITY and BYBA desire to enter into this AGREEMENT to allow BYBA to use FACILITIES for recreational baseball use, concession sales, and storage. NOW, THEREFORE, for and in consideration of the following terms and conditions herein contained, the Parties hereto agree as follows: 1. TERM AND COMMENCEMENT This AGREEMENT shall become effective upon execution and end on December 31, 2027, in order to provide a 10 year period for BYBA to amortize its annual capital investments in field improvements. Tenant shall have the option, exercisable by written notice to CITY not later than ninety (90) days prior to the expiration of the then current Term, to extend the Term of this Agreement for three (3) further terms of five (5) years each on the same terms and conditions as provided in this Agreement.. 2. FACILITIES This AGREEMENT covers BYBA’s use of three CITY-owned properties, which are collectively referred to as FACILITIES. Each property has unique features and uses, which are more particularly described in the attached exhibits. • Bayside Fields, 1125 South Airport Blvd. (EXHIBIT A), • Washington Park, 420 Carolan Ave. (EXHIBIT B) • Cuernavaca Park, 3075 Alcazar Dr. (EXHIBIT C). 3. USE OF FACILITIES 2 a. BYBA shall have use of FACILITIES for baseball activities pursuant to the terms of this AGREEMENT. BYBA is obligated to do the following: i. Provide CITY staff with keys and/or codes for all buildings used by BYBA on CITY property. ii. Provide at least 24 hours’ notice to the City when vehicles will be parked at the FACILITIES overnight, unless such vehicles are used in construction, grading, and maintenance of the field. iii. Provide all personnel necessary to supervise their activities. All BYBA board members and coaches shall have completed background checks. iv. Furnish and supply all equipment and expendable materials which may be necessary for their activities. v. Prevent any nuisance, such as dust or noise, that might be created affecting adjoining residential and/or other properties. vi. Operate any public address system in accordance with the City of Burlingame Municipal Code. vii. Ensure that no signs/banners shall be erected or displayed on the premises without the prior written approval of the Parks and Recreation Director, which approval Parks and Recreation Director will not unreasonably withhold in accordance with applicable City policies and/or regulations. viii. Ensure that there is no subletting of fields. b. USE OF BATTING CAGES BYBA shall have the exclusive control over the use of the Batting Cages and CITY authorizes BYBA or its approved user to conduct batting practice in the Batting Cages. When reasonably possible, City will give BYBA seven (7) days’ notice of any upcoming special events or park closures that may affect BYBA’s use of the batting cages. BYBA may permit CITY or other user groups to use the facility for batting practice, at BYBA’s discretion, which will not be unreasonably withheld, on a time available basis. All use of the Batting Cage will be governed by the following rules: i. The Batting Cage hours of operation shall be as follows: a. Washington Park: The Washington Park Batting Cage may only be used Monday to Friday from 8:00 a.m. to 9:00 p.m. and Saturday and Sunday from 9:00 a.m. to 9:00 p.m. b. Bayside Fields: The Batting Cage at Bayside Fields may only be used from Monday to Sunday from 8:00 a.m. to 9:00 p.m. ii. The CITY may reasonably change the hours of operation based upon neighborhood impact. Notice of any change in Batting Cage hours of 3 operation will be provided to BYBA in writing at least 30 days in advance. iii. A BYBA coach or Board Member must supervise minors who use the Batting Cages. iv. BYBA shall maintain the Batting Cage in accordance with all laws and regulations and applicable safety standards. The roof, structure and fence of the Batting Cages shall be kept in good repair and in an attractive condition at all times. CITY shall have the right to enter upon and inspect the Batting Cage, subject to reasonable advance notice, to determine whether BYBA is complying with this lease and whether the site is being maintained in a reasonably safe manner. v. If BYBA fails to maintain or make repairs or replacements as required herein, CITY may notify BYBA in writing of said failures. Should BYBA fail to correct the situation with 60 days thereafter, Parks and Recreation Director, may make, or cause to be made, the necessary corrections and the cost thereof, including, but not limited to the cost of labor, materials and equipment plus a 5% charge for CITY administration of the repairs, shall be paid by BYBA with ten (10) business days of receipt of a statement of cost from the Parks and Recreation Director. vi. The CITY shall be responsible for and shall pay, prior to delinquency, any charges for utilities supplied to the Batting Cages. c. USE OF CONCESSION STANDS The CITY is the owner of the two (2) concession stands that may be used for the sale of food and other items to participants and spectators. BYBA shall operate the concession stands for the convenience of participants and spectators. BYBA’s use of the concession stands under this Agreement is limited to January 2nd to July 31st of each year this Agreement is in effect. From August 1st through January 1st, all appliances will be unplugged and no food storage will be permitted in the concession stands. From August 1st through January 1st physical access to the concessions stands by BYBA members and/or affiliates shall only be allowed with prior written permission of City staff, which shall not be unreasonably withheld. As the sole operator of the concession stands, BYBA agrees to the following: i. BYBA will be allowed to utilize the concession stands at Bayside Fields for the purpose of selling food and sundry items at games and special events. No alcoholic beverages shall be sold. BYBA shall provide all personnel and supplies at said concession stand. ii. BYBA or its subtenant shall pay the City rent of $250.00 per year payable on January 1st each year. This fee will cover all utilities, 4 including water, electricity, garbage, and other services associated with the operation of the concession stands. iii. BYBA or its subtenant must obtain permits and pay the fee required by the San Mateo County Health Department and must meet all requirements as set forth by the San Mateo County Health Department for the operation of the concession stands. iv. BYBA or its subtenant shall comply with any and all laws pertaining to the operation of such concession facility. v. BYBA or its subtenant shall maintain the interior of the facility and carry insurance upon its contents and personnel in limits of at least $1,000,000 per occurrence naming the City as additional insured. vi. BYBA may sublet the concession stands to a private vendor, with written permission from the Parks and Recreation Director, which consent Parks and Recreation Director will not unreasonably withhold. A private vendor must follow all of the terms and conditions of this section 3(c) of this AGREEMENT. A private vendor will also be required to obtain a City of Burlingame Business License. No private vendor may operate a personal business out of FACILTIES or store personal items in FACILITIES. vii. Concession stands shall be kept in a clean and well-maintained condition. viii. The FACILITIES may not be used for any activities that do not directly benefit BYBA. d. USE OF STORAGE SHEDS i. Only pre-fabricated units, approved by the Parks and Recreation Director, or his or her designee, shall be placed on the FACILITIES. BYBA shall contact, and make arrangements with appropriate CITY staff to obtain supervision and guidance in the placement and/or removal of the storage units. ii. Storage units shall be kept in a clean and well maintained condition. BYBA shall monitor and inspect the storage units on a regular basis throughout the year and immediately remove any graffiti and/or make repairs as needed. BYBA shall paint and/or repair any approved storage units with 72 hours of being notified of needed painting or repairs. This shall include painting and/or removal of graffiti. iii. If BYBA has not taken corrective action for the painting or maintenance of BYBA’s storage unit within the 72 hour time period set forth above, the Parks and Recreation Director, or his or her designee, at his or her sole discretion, shall take necessary steps to correct the non- compliance through the use of CITY’S employees or the hiring of contractors to perform the necessary work. BYBA shall reimburse CITY for any costs incurred in taking this corrective action. 5 4. COMPLIANCE WITH ALL LAWS BYBA, their members and participants, shall each comply with all the requirements, statutes, and codes of all municipal, state and federal authorities and agencies now in force, or which may hereinafter be in force, pertaining to the use of FACILITIES. 5. FEES BYBA agrees to pay the approved per player, per hour and light fees adopted by the Burlingame City Council as stated in the Master Fee Schedule, as amended. 6. IMPROVEMENTS BYBA shall not remove, alter, construct, or add to the FACILITIES without the CITY’S express prior written consent (no City fees shall be charged to BYBA for such consents). Any such removal, alteration, construction or addition of any kind to FACILITIES or grounds without the CITY’S written consent shall be a material breach of this AGREEMENT. In the event of said material breach, CITY may either remove the improvements at BYBA’s expense or CITY may retain such improvements at no cost. BYBA must provide at least 60 day prior written notification to the CITY and receive CITY’S written consent before making any alterations, additions, or improvements to FACILITIES, which will be at BYBA’s sole expense, unless otherwise agreed upon in writing. All alterations, additions, or improvements must comply with all applicable laws. All permits must be obtained and signed off before any removal, alteration or construction may begin (no City fees shall be charged to BYBA for such permits). Whenever a physical structure is added to any of the FACILITIES, this AGREEMENT shall be updated to describe the new structure. 7. DESTRUCTION OR DAMAGE TO FACILITIES If for any reason there is any destruction or damage to the batting cages, storage sheds, or concessions stands, then BYBA is responsible for their repair and/or replacement unless, in the course of an investigation conducted by the City’s insurer, it is determined conclusively that another party is responsible for such damage, in which case that party shall bear the cost of repairs. This AGREEMENT does not confer any legal responsibility on the CITY to repair or replace any structure for BYBA’s use under the terms of this AGREEMENT. 8. NUISANCE ABATEMENT CITY has the authority to abate any public nuisance created by BYBA’s performance of the terms and conditions of this AGREEMENT and use of FACILITIES. BYBA must reimburse CITY for all reasonable fees and costs associated with nuisance abatement or code enforcement. The normal noises, odors, parking and crowds associated with Commented [MG1]: Council decision Commented [MG2]: Council decision 6 BYBA’s customary operation, maintenance and use of the FACILITIES shall not be deemed a nuisance as defined in Burlingame Municipal Code section 1.16.010. 9. LIABILITIES AND INDEMNIFICATION BYBA, shall defend, indemnify, hold free and harmless the CITY, its elected and appointed officials, officers, attorneys, agents and employees, at BYBA'S sole expense, from and against any and all claims, actions, suits or other legal proceedings brought against the CITY, its elected officials, officers, agents and employees arising out of BYBA'S operation, maintenance, and/or use of FACILITIES or its obligations under this AGREEMENT. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by BYBA, its officers, employees, volunteers and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or misconduct of BYBA, its officers, employees, volunteers and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the CITY, its elected and appointed officials, officers, agents and employees based upon the work performed by BYBA, its officers, employees, volunteers and/or authorized subcontractors under this AGREEMENT whether or not BYBA, its officers, employees, volunteers and/or authorized subcontractors are specifically named or otherwise asserted to be liable. Under no circumstances shall the CITY be liable for the defense or indemnification of BYBA for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of BYBA. BYBA shall not be liable for damage or injury occasioned by the active negligence or willful misconduct of CITY or its agents, contractors or employees. CITY shall have no responsibility or liability for loss or damage of any personal property placed or stored in any of the FACILITIES, including but limited to netting, pitching machines, electrical cables, balls, player equipment, or other items. 10. ASSIGNMENTS AND SUBLEASE Neither CITY nor BYBA may assign or transfer this AGREEMENT, or any part thereof, without the written consent of the other Party. 11. NOTICES All notices, statements, demands, requests, consents, approvals, authorizations, appointments, or designations hereunder by either Party to the other will be in writing and will be deemed given and served upon the other Party, if delivered personally or three (3) days after depositing in the United States mail, postage prepaid, addressed to: If to CITY: If to BYBA: City of Burlingame Attention: Parks and Recreation Director Burlingame Youth Baseball Association Attn: President 7 850 Burlingame Ave Burlingame, CA 94010 Telephone: (650) 558-7300 E-Mail: mglomstad@burlingame.org P.O. Box 1633 Burlingame, CA 94010 E-Mail: board@byba.us 12. EMERGENCY REPAIRS CITY reserves the right to make, or cause to be made, necessary emergency repairs and to access all FACILITIES for such purposes. When feasible, CITY shall provide BYBA verbal or written notice of the need for an emergency repair. If BYBA does not perform the repair within 24 hours of notice, then CITY shall handle the repair. BYBA shall reimburse the CITY for the total cost of the repair, including labor, materials and equipment, plus a 5% charge for CITY administration of the repair. BYBA shall reimburse the CITY within ten (10) business days of receipt of an invoice. 13. TERMINATION This AGREEMENT may be terminated, with or without cause, at any time by either Party. BYBA shall provide 6 months written notice to the CITY. CITY shall provide 6 months written notice to BYBA. If CITY transfers ownership, or if part of or all of FACILITIES is condemned, or access to FACILITIES is changed or limited, either Party may, in its sole discretion, terminate this AGREEMENT as it relates to such facilities without any liability by giving the other Party no fewer than 90 days prior written notice. Upon termination, BYBA agrees to remove all signage and repair any damage caused to FACILITIES to the extent such damage was not the result active negligence or willful misconduct by the CITY or its agents, contractors or employees. 14. INSURANCE BYBA shall obtain and maintain during the life of this AGREEMENT all of the following insurance coverages: i. Commercial general liability including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than Two Million Dollars ($2,000,000.00), combined single limits, per occurrence and aggregate. ii. Workers' compensation insurance as required by the State of California iii. Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions concerning the CITY: Commented [MG3]: Council decision 8 1. Additional insureds: BYBA, shall defend, indemnify, hold free and harmless the CITY, its elected and appointed officials, officers, agents and employees 2. Other insurance: "Any other insurance maintained by the City of Burlingame shall be excess and not contributing with the insurance provided by this policy." iv. Certificates of Insurance: Upon execution of this AGREEMENT, BYBA shall provide the CITY with certificates of insurance showing the insurance coverages and required endorsements described above. 15. SEVERABILITY AND APPLICABLE LAW Whenever possible, each provision of this AGREEMENT will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this AGREEMENT is invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision, or the remaining provisions. This AGREEMENT has been made and entered into in the State of California and the laws of said State will govern the validity and interpretation hereof and the performance hereunder by the parties herein. Venue shall be in San Mateo County. 16. WAIVER The failure of CITY or BYBA to insist upon strict performance of any of the terms, conditions, or covenants in this AGREEMENT will not be deemed a waiver of any right or remedy which CITY or BYBA may have and will not be deemed a waiver of any right or remedy for a subsequent breach or default of the terms, conditions, or covenants herein contained. 17. BINDING EFFECT This AGREEMENT and all the terms, covenants, conditions, and agreements herein contained will be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. 18. NO PARTNERSHIP OR JOINT VENTURE CITY and BYBA are not partners. Nothing herein contained shall be construed to create a partnership or joint venture in any sense. 19. NONDISCRIMINATION 9 As provided by law, BYBA shall not employ any discriminatory practices in its performance of the terms and conditions of this AGREEMENT, including its employment practices or FACILITIES usage. 20. ENTIRE AGREEMENT This AGREEMENT expresses the entire agreement between the Parties concerning the subject matter of this AGREEMENT. There are no understandings, agreements, representations, or warranties, express or implied, not set forth or specified in this AGREEMENT. This AGREEMENT supersedes all other agreements, verbal or written. This AGREEMENT may not be amended except in writing signed by both Parties. IN WITNESS WHEREOF, the Parties have hereunto affixed their name by their officers "hereunto duly authorized," on the day and year written above. City of Burlingame, A municipal corporation _______________________________ Lisa K. Goldman City Manager Approved as to form: _______________________________ Kathleen Kane City Attorney Burlingame Youth Baseball Association _______________________________ Derek Johnson Co-President Attest: _______________________________ Meaghan Hassel-Shearer City Clerk 10 Exhibit A Bayside Fields Bayside Fields is located at 1125 South Airport Blvd. This 12 acre facility includes five (5) ballfields, two (2) concession stands, two (2) batting cages and four (4) storage units. 11 Batting Cages The Batting Cage at Bayside Fields may only be used from Monday to Sunday from 8:00 a.m. to 9:00 p.m. Bayside Fields Batting Cages 12 Concession Stands at Bayside Fields Bayside Fields Snack Shack #1 Bayside Fields Snack Shack #2 13 Bayside Fields Storage Unit 14 Bayside Fields Storage Unit 15 Exhibit B Washington Park Washington Park is located at 420 Carolan Ave. This 10 acre facility includes two (2) ballfields, one (1) batting cage, and one (1) storage unit. Washington Park Batting Cage The Washington Park Batting Cage may only be used Monday to Friday from 8:00 a.m. to 9:00 p.m. and Saturday and Sunday from 9:00 a.m. to 9:00 p.m. 16 Washington Park Storage Unit 17 Exhibit C Cuernavaca Park Cuernavaca Park is located at 3075 Alcazar Drive. This 5 acre facility includes one (1) ballfield and one (1) storage unit. 18 Cuernavaca Park Storage Unit