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genda Item: 9a Meeting Date: January 21, 2025 1 BURLINGAME CITY COUNCIL Unapproved Minutes Regular City Council Meeting on December 2, 2024 1. CALL TO ORDER A duly noticed meeting of the Burlingame City Council was held on the above date in person and via Zoom at 7:00 p.m. 2. PLEDGE OF ALLEGIANCE TO THE FLAG The pledge of allegiance was led by Art Morimoto. 3. ROLL CALL MEMBERS PRESENT: Brownrigg, Colson, Lee, Pappajohn, Stevenson MEMBERS ABSENT: None 4. REQUEST FOR AB 2249 REMOTE PARTICIPATION There was no request. 5. REPORT OUT FROM CLOSED SESSION There was no closed session. 6. UPCOMING EVENTS Mayor Colson reviewed upcoming events in the city. 7. PRESENTATIONS a. PROCLAMATION RECOGNIZING ASSISTANT PUBLIC WORKS DIRECTOR ART MORIMOTO Mayor Colson read a proclamation recognizing Assistant Public Works Director Art Morimoto’s 17-year career in Burlingame. Agenda Item: 9a Meeting Date: January 21, 2025 2 Assistant Public Works Director Morimoto thanked Council and staff for their kind words. 8. PUBLIC COMMENTS There were no public comments. 9. APPROVAL OF CONSENT CALENDAR Mayor Colson asked the Councilmembers and the public if they wished to remove any item from the Consent Calendar. Councilmember Brownrigg pulled items 9a and 9c. Vice Mayor Stevenson made a motion to adopt items 9b and 9d; seconded by Councilmember Pappajohn. The motion passed unanimously by roll call vote, 5-0. a. ADOPTION OF A RESOLUTION ACCEPTING THE BURLINGAME BICYCLE BOULEVARD AND MERCY NEIGHBORHOOD TRAFFIC CALMING, CITY PROJECT NO. 86640, BY BAYSIDE STRIPE & SEAL, INC. Councilmember Brownrigg asked if the work was done on Alvarado Avenue. DPW Murtuza replied in the affirmative. Hoe noted that this work was previously finalized. Councilmember Brownrigg asked if the speedbumps on the street were temporary. DPW Murtuza replied that the current speedbumps were temporary, and that the final speedbumps would be smoother. Mayor Colson opened the item for public comment. No one spoke. Councilmember Brownrigg made a motion to adopt Resolution Number 144-2024; seconded by Councilmember Lee. The motion passed unanimously by roll call vote, 5-0. b. ADOPTION OF A RESOLUTION ACCEPTING THE CITY-WIDE PEDESTRIAN SAFE ROUTES AND MOBILITY IMPROVEMENTS, CITY PROJECT NO. 86510, BY RAY’S ELECTRIC DPW Murtuza requested Council adopt Resolution Number 145-2024. c. ADOPTION OF A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT NO. 2 TO EXTEND THE TERM OF THE PROFESSIONAL SERVICES AGREEMENT WITH ICF JONES & STOKES, INC. (ICF) TO DECEMBER 31, 2027, TO PERFORM ENVIRONMENTAL REVIEW SERVICES FOR THE PROPOSED DEVELOPMENT OF A NEW PUBLIC NATURE/RECREATION PARK AND EDUCATION CENTER BUILDING AT 410 AIRPORT BOULEVARD Councilmember Brownrigg asked if this is similar to other environmental review work, where the applicant ultimately pays for the work. CDD Zayer replied in the affirmative. Agenda Item: 9a Meeting Date: January 21, 2025 3 Councilmember Brownrigg asked about the scenarios in which the City would not be reimbursed by the applicant. CDD Zayer replied that the applicant prepays. Mayor Colson asked when the environmental review was scheduled to start. She also suggested bringing SPHERE Institute in for an update on the project. CDD Zayer replied that the applicant informed staff that they have funding for the environmental review. She added that the planning and hearing phase would take about a year. City Manager Goldman stated that staff would ask the SPHERE Institute to present to Council in the first part of 2025. Mayor Colson opened the item for public comment. No one spoke. Councilmember Brownrigg made motion to adopt Resolution Number 146-2024; seconded by Vice Mayor Stevenson. The motion passed unanimously by roll call vote, 5-0. d. ADOPTION OF A RESOLUTION AUTHORIZING AN ELEVENTH AMENDMENT OF THE CITY MANAGER'S EMPLOYMENT AGREEMENT AND APPROVING THE CITY OF BURLINGAME PAY RATES AND RANGES (SALARY SCHEDULES) Human Resources Director Saguisag-Sid requested Council adopt Resolution Number 147-2024. 10. PUBLIC HEARINGS a. INTRODUCTION AND FIRST READING OF AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AMENDING BURLINGAME MUNICIPAL CODE CHAPTER 25.40 OF ARTICLE 3; CHAPTER 25.48 OF ARTICLE 4; CHAPTER 25.60 OF ARTICLE 6; CHAPTER 25.88 OF ARTICLE 6; CHAPTER 25.98 OF ARTICLE 6; AND CHAPTER 25.100 OF ARTICLE 7, RELATED TO ACCESSORY DWELLING UNITS; CEQA DETERMINATION: EXEMPT PURSUANT TO STATE CEQA GUIDELINES SECTIONS 15282, 15378, AND 15061(B)(3) Planning Manager Hurin stated the proposed ordinance brings the City into compliance with State law. Planning Manager Hurin began with an overview of the different types of Accessory Dwelling Units (“ADU”): • Interior ADU: When a portion of an existing single-family residence is converted into an ADU. • Attached ADU: When an addition to a single-family residence is constructed to be used as an ADU. • Detached ADU: When a new stand-alone structure is constructed to be used as an ADU, or an existing stand-alone accessory structure or portion of a structure is turned into an ADU. • Junior Accessory Dwelling Unit (JADU): When up to 500 square feet of an existing or proposed single-family residence is converted into a JADU. Agenda Item: 9a Meeting Date: January 21, 2025 4 Planning Manager Hurin stated that in 2016, the State created statewide regulations that required local jurisdictions to allow ADUs on most residential lots as a response to California’s statewide housing shortage. He added that these laws preempted local zoning ordinances and permitting processes in an effort to reduce regulatory barriers commonly found in local zoning ordinances. He noted that since 2016, the State has passed additional laws to further relax regulations around ADUs. Planning Manager Hurin reviewed some of the State ADU regulations: • 2016 (A.B. 2299, S.B. 1069, A.B. 2406): established statewide regulations allowing the development of ADUs including: o Mandated that local governments approve ADU building permit requests if the ADU meets certain standards o Reduced, and in some cases eliminated, ADU parking requirements o Prohibited local governments from discretionary approval of ADUs o Voided all local government ADU-related ordinances that do not fully comply with State law o ADU permits in non-compliant jurisdictions must be reviewed under California law until the local government adopts a California-compliant ADU ordinance o Allowed local governments to adopt an ordinance permitting JADUs, subject to certain requirements. JADUs are ADUs that do not exceed 500 square feet and are completely contained within an existing residential structure • 2017 (SB 229 and AB 494): gave the California Department of Housing and Community Development (“HCD”) greater oversight over how local jurisdictions administered ADU permitting and clarified various ambiguities in the law, including: o Clarified an ADU can be created through the conversion of a garage, carport, or covered parking structure o Reduced the maximum number of parking spaces for an ADU to one space o Allowed replacement parking spaces to be located in any configuration as a result of a parking structure conversion to an ADU • 2019 (AB 68, AB 670, SB 9, SB 13): o Exempted ADUs/JADUs from restrictions in HOAs/CC&Rs o Established Statewide Exemption ADUs for ADUs up to 800 square feet meeting specific criteria o Eliminated impact fees for ADUs under 750 square feet o Allowed ADUs to be constructed at the same time as the primary unit o Reduced time approvals from 120 days to 60 days o Prohibited cities from:  Requiring minimum lot sizes  Requiring replacement parking for garage conversions  Banning short-term rentals in ADUs  Requiring owner occupancy of an ADU • 2021 (AB 3182): further streamlined ADU permitting Agenda Item: 9a Meeting Date: January 21, 2025 5 • 2022 (AB 2221 and SB 897): increased the height of ADUs, allowed the construction of state exempt ADUs within front yard setback areas, reduced local jurisdictions’ ability to deny ADUs, expanded where JADUs could be built, and streamlined application review processes • 2023 (AB 976): permanently exempted ADUs from owner-occupancy mandates Planning Manager Hurin stated that in 2017, 2018, and 2020, the Council adopted code amendments in response to the State laws regarding ADUs. However, he noted that earlier this year, HCD reviewed the City’s ADU regulations and found that they do not comply with current State law. He explained that HCD sent a letter requiring the City to update its ADU regulations to comply with State legislation. Planning Manager Hurin reviewed the proposed changes to the City’s existing ADU regulations: • ADU Permit Requirement – an applicant would only be required to apply for and obtain a building permit, which would be reviewed by all applicable City divisions. This will help: o Remove regulatory barriers by streamlining the ADU review and approval process o Reduce a homeowner’s permitting time from going through two almost identical permitting processes o Reduce staff time reviewing ADUs • Statewide Exemption ADUs – the proposed ordinance would clarify the regulations for Statewide Exemption ADUs including: o JADUs o ADUs in spaces converted from within an existing single-unit or multi-unit dwelling, or existing accessory structure, or within a proposed single-unit dwelling o A new detached ADU with four-foot side and rear setbacks, a maximum size of 800 square feet, and within the height limit allowed by State law • Side and Rear Setback Requirements – amends the ADU regulations to require four-foot side and rear setbacks for construction of a new detached ADU or an addition to an existing detached structure • Maximum Height Limits – amends ADU regulations to allow the following building heights, including a new detached two-story ADU or an ADU above an existing or proposed detached garage: o 18 feet if the lot is located within one-half mile walking distance of a major transit stop or a high-quality transit corridor; an additional two feet is allowed if needed to match the roof pitch of the primary dwelling unit o 18 feet for a detached ADU on a lot with an existing or proposed multi-unit, multi-story dwelling Planning Manager Hurin reviewed SB 1211, which takes effect on January 1, 2025. He explained that this law does the following: • Cannot require replacing uncovered parking spaces if they are demolished for or replaced with an ADU • Adds ‘livable space’ definition for multifamily units • Allows up to eight detached ADUs on existing multifamily lots, or as many primary dwellings units as exist, whichever is less Agenda Item: 9a Meeting Date: January 21, 2025 6 Planning Manager Hurin reviewed AB 2533, which takes effect on January 1, 2025. He explained that this law does the following: • Prohibits the City from denying permits to legalize an unpermitted ADU/JADU if built before January 1, 2020 • City may deny permit for unpermitted ADU/JADU if it finds that correcting violation(s) is necessary to comply with the California Health and Safety Code • Inspector may inspect ADU for compliance with the Health and Safety Code and provide recommendations to comply Planning Manager Hurin stated that if the City does not have a compliant ADU ordinance by January 1, 2025, then the City’s ADU regulations will become null and void. Councilmember Lee asked what it would mean for the City’s ADU laws to be ‘null and void’. Planning Manager Hurin replied that the regulations would default to the State regulations. Councilmember Lee asked if the City had statistics on the number of ADUs built since 2016 and how they are being used. Planning Manager Hurin replied in the negative. However, he noted that in the first few years, the City received between 60 to 70 ADU permit applications a year, and in 2023, the City issued 40 ADU permits. Vice Mayor Stevenson asked if ADUs are counted towards the City’s Regional Housing Needs Allocation (“RHNA”). Planning Manager Hurin replied in the affirmative. Councilmember Brownrigg asked if the setbacks outlined in the proposed ordinance were State requirements or a staff recommendation. Planning Manager Hurin replied that under State law, cities can require no more than a four-foot side and rear setback. Councilmember Brownrigg stated that he supports ADUs and the update but had a few concerns. He voiced concern about how the setbacks would affect tree planting and impact residents with an easement on their boundary. Vice Mayor Stevenson asked if there was flexibility with the setback requirements. CDD Zayer replied that the ordinance as written does not allow for setback flexibility. She explained that if there was flexibility, it would make it more challenging for the staff to make decisions on a case-by-case basis in the ministerial process. Mayor Colson voiced support for the proposed ordinance. Councilmember Brownrigg acknowledged the various viewpoints on this topic and wanted to see some discretion allowed. City Attorney Guina replied that the point of the State regulation is to remove discretion. Agenda Item: 9a Meeting Date: January 21, 2025 7 Mayor Colson asked if an ADU can be built on top of an existing garage. CDD Zayer replied in the affirmative. Mayor Colson suggested that since the ordinance needs to get passed before the new year, that Council pass it as is and then collect data on new ADUs. Mayor Colson opened the public hearing. Mr. Paul commented on the setback distance being needed for emergency reasons. A member of the public commented that this isn’t an easy decision and that she has had trouble with an ADU in San Francisco. Mayor Colson closed the public hearing. Vice Mayor Stevenson made a motion to bring the ordinance back for a second reading; seconded by Councilmember Brownrigg. The motion passed unanimously by roll call vote, 5-0. b. INTRODUCTION AND FIRST READING OF UPDATED TREE ORDINANCE – REPEALING CHAPTERS 11.04 AND 11.06 OF THE BURLINGAME MUNICIPAL CODE TITLE 11 (TREES AND VEGETATION) AND ADOPTING A NEW CHAPTER 11.06 (URBAN REFORESTATION AND TREE PROTECTION); CEQA DETERMINATION: EXEMPT PURSUANT TO STATE CEQA GUIDELINES SECTIONS 15307 AND 15308 ADOPTION OF A RESOLUTION AMENDING THE MASTER FEE SCHEDULE TO ADOPT A TREE REPLACEMENT IN-LIEU FEE AND FEE INCREASE FOR APPEALS OF BEAUTIFICATION COMMITTEE DECISIONS; AND AUTHORIZING THE FINANCE DIRECTOR TO MAKE SUCH AMENDMENTS TO THE MASTER FEE SCHEDULE; CEQA DETERMINATION: EXEMPT PURSUANT TO STATE CEQA GUIDELINES SECTIONS 15078, 15061(B)(3) ACA Spansail explained that the proposed ordinance has come before Council before and has been reviewed at the following meetings: • November 3, 2023 – Beautification Commission • November 20, 2023 – City Council • May 2, 2024 – Beautification Commission • May 28, 2024 – Planning Commission • June 17, 2024 – City Council • October 7, 2024 – City Council Mayor Colson opened the public hearing. No one spoke. Councilmember Brownrigg made a motion to bring the ordinance back for a second reading; seconded by Councilmember Lee. The motion passed unanimously by roll call vote, 5-0. Agenda Item: 9a Meeting Date: January 21, 2025 8 Councilmember Pappajohn made a motion to adopt Resolution Number 148-2024; seconded by Vice Mayor Stevenson. The motion passed unanimously by roll call vote, 5-0. c. INTRODUCTION AND FIRST READING OF AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AMENDING CHAPTER 8.19 OF TITLE 8 OF THE BURLINGAME MUNICIPAL CODE TO ALLOW EXISTING TOBACCO RETAILER PERMIT HOLDERS AN EXEMPTION FROM CERTAIN RELOCATION DISTANCE REQUIREMENTS FOR A PERIOD OF TWO YEARS, ELIMINATING CERTAIN RESTRICTIONS ON RETAILER PERMIT TRANSFERS AND DISCONTINUING THE ISSUANCE OF NEW TOBACCO RETAILER PERMITS; CEQA DETERMINATION: EXEMPT PURSUANT TO STATE CEQA GUIDELINES SECTION 15378 AND 15061(B)(3) ACA Spansail explained that under the proposed ordinance, a tobacco retailer can transfer their permit to a new physical location for a short period of time. He continued that to be effective, the retailer must not propose any additional changes to the permit (such as change of ownership), and the location may not be located within 250 feet of a youth-populated area. He noted that the new retail location must be occupied by the retailer prior to January 16, 2027, to be effective. He added that assuming these criteria are met, the retailer would not be subject to the remaining distance requirements found in section 8.19.230. Mayor Colson asked if there is an additional hookah permit remaining. ACA Spansail replied in the affirmative. He explained that there was one hookah permit remaining, but it would have to be taken out prior to the effective date of the ordinance. Councilmember Lee asked for the definition of a youth-populated area. ACA Spansail replied that it was originally 1000 feet from a populated area and 500 feet from another tobacco retailer, but the distance from another tobacco retailer was eliminated for the relocation purposes. He stated that the 1000 feet from a youth-populated area was reduced to 250 feet. ACA Spansail read the definition of a youth-populated area: it is a private or public school that educates children in grades kindergarten through high school; a library; a playground; a youth center, which is a facility where ages six to 17 come together like a Boys and Girls Club; a recreation center open to the public; a public or private college or university; and a licensed child care facility or preschool. He noted some exceptions to the licensed childcare facility or preschool, such as a family daycare home or large family daycare home, which are defined by the California Health and Safety Code, don’t count in the definition. Mayor Colson opened the public hearing. Mr. Gross thanked Council for engaging with tobacco retailer permit holders on this ordinance. Mayor Colson closed the public hearing. Agenda Item: 9a Meeting Date: January 21, 2025 9 Mayor Colson made a motion to bring back the proposed ordinance for a second reading; seconded by Vice Mayor Stevenson. The motion passed unanimously by roll call vote, 5-0. 11. STAFF REPORTS AND COMMUNICATIONS a. CONSIDERATION OF THREE APPOINTMENTS TO THE BEAUTIFICATION COMMISSION City Manager Goldman stated that there are three vacancies due to the expiring terms of Commissioners Sean Chu, Richard Kirchner, and Hadia Khoury. She explained that the City received five applications, and interviewed Sean Chu, Antoinette Damico, Hadia Khoury, Richard Kirchner, and Laura Medanich. She noted that after the interviews, Commissioner Khoury withdrew her application. Mayor Colson opened the item for public comment. No one spoke. The City Council submitted their ballots to the City Clerk. City Clerk Hassel-Shearer read the votes. Congratulations to Sean Chu, Richard Kirchner, and Antoinette Damico. b. CONSIDERATION OF TWO APPOINTMENTS TO THE PARKS & RECREATION COMMISSION City Manager Goldman stated that there are two vacancies due to the expiring terms of Commissioners John Brunello and Leslie Holzman. She explained that the City received four applications, and interviewed Doug Bojack, John Brunello, John Giere, and Kim Kilgo. Mayor Colson opened the item for public comment. No one spoke. The City Council submitted their ballots to the City Clerk. City Clerk Hassel-Shearer read the votes. Congratulations to John Brunello and John Giere. 12. COUNCIL COMMITTEE AND ACTIVITIES REPORTS AND ANNOUNCEMENTS Council reviewed their committee appointments. 13. FUTURE AGENDA ITEMS Councilmember Brownrigg asked to agendize a review of the City’s bond investment policy. The Council agreed. Councilmember Brownrigg asked to agendize a discussion on whether a letter should be written to the legislature on the impacts of districting in a small City. The Council agreed. 14. ACKNOWLEDGMENTS Agenda Item: 9a Meeting Date: January 21, 2025 10 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. 15. ADJOURNMENT Mayor Colson adjourned the meeting at 9:09 p.m. in support of the young adults who lost their lives in a car accident in Piedmont, California. Respectfully submitted, Meaghan Hassel-Shearer City Clerk Agenda Item: 9b Meeting Date: January 21, 2025 BURLINGAME CITY COUNCIL Unapproved Minutes Traffic Safety & Parking Commission and Art Liaison Interviews on December 9, 2024 1. CALL TO ORDER A duly noticed meeting of the Burlingame City Council was held on the above date in person 5:02 p.m. 2. ROLL CALL MEMBERS PRESENT: Brownrigg, Colson, Lee, Stevenson MEMBERS ABSENT: Pappajohn 3. PUBLIC COMMENTS There were no public comments. 4. DISCUSSION OF CANDIDATE QUESTIONS There was no discussion. 5. INTERVIEW APPLICANTS The City Council interviewed Jennifer Johnson and Robert “Tony” Brown for the two vacancies on the Traffic Safety and Parking Commission. The City Council interviewed Don Donoughe, Janet Martin, Preeti Deb, Russ Cohen, Leslie Holzman, and Suzette Odell for Art Liaison. 6. DISCUSSION OF CANDIDATES (OPTIONAL) There was no discussion. 7. ADJOURNMENT Mayor Colson adjourned the meeting at 7:15 p.m. Agenda Item: 9b Meeting Date: January 21, 2025 Respectfully submitted, Meaghan Hassel-Shearer City Clerk Agenda Item: 9c Meeting Date: January 21, 2025 1 BURLINGAME CITY COUNCIL Unapproved Minutes Regular City Council Meeting on December 16, 2024 1. CALL TO ORDER A duly noticed meeting of the Burlingame City Council was held on the above date in person and via Zoom at 7:04 p.m. 2. PLEDGE OF ALLEGIANCE TO THE FLAG The pledge of allegiance was led by Desiree Thayer. 3. ROLL CALL MEMBERS PRESENT: Brownrigg*, Colson, Lee, Pappajohn, Stevenson MEMBERS ABSENT: None *Councilmember Brownrigg appeared at the meeting remotely from Fiji. 4. REQUEST FOR AB 2249 REMOTE PARTICIPATION There was no request. 5. REPORT OUT FROM CLOSED SESSION There was no closed session. 6. UPCOMING EVENTS Mayor Colson reviewed upcoming events in the city. 7. PRESENTATIONS a. RECOGNITION OF THE RESIDENTS AND BURLINGAME POLICE OFFICERS FOR ACTIONS TAKEN DURING A POLICE INCIDENT Agenda Item: 9c Meeting Date: January 21, 2025 2 Police Chief Matteucci recognized the members of the community who helped prevent a kidnapping from occurring in the city and the members of the Police Department who investigated the incident and arrested the alleged perpetrator. Mayor Colson thanked the Police Department for their work ensuring that this was quickly resolved. b. PROCLAMATION RECOGNIZING SAN MATEO COUNTY SUPERVISOR DAVE PINE FOR HIS SERVICE IN PUBLIC OFFICE Mayor Colson read a proclamation recognizing San Mateo County Supervisor Dave Pine for his dedicated service to the Burlingame community. Mayor Colson stated that it had been her honor to work with Supervisor Pine for over 20 years. She noted that he is a quintessential public servant and thanked him for his service. Vice Mayor Stevenson talked about working with Supervisor Pine to get a parcel tax passed for Burlingame School District. He thanked him for his dedicated work to the community. Councilmember Pappajohn stated that she appreciated the work that Supervisor Pine has conducted on behalf of the environment. Councilmember Lee noted that Supervisor Pine focuses on the community and not on himself. She thanked him for all of his work on behalf of the community. Councilmember Brownrigg stated that Supervisor Pine consistently led with vision and his heart. Supervisor Pine thanked the Council, the community, and his family for all their support. c. PROCLAMATION RECOGNIZING STEPHANIE LEE FOR HER SERVICE AS A COUNCILMEMBER Mayor Colson read a proclamation recognizing Stephanie Lee’s service to the community as an interim Councilmember. Mayor Colson thanked Councilmember Lee for stepping in and assisting the Council for four months after the departure of Vice Mayor Beach from the City Council. Vice Mayor Stevenson stated that he would miss Councilmember Lee and her insightfulness on Council. Councilmember Pappajohn discussed how quickly Councilmember Lee picked up everything on Council. Councilmember Brownrigg stated that Councilmember Lee set a high bar for anyone who joins the Council on a temporary basis. Agenda Item: 9c Meeting Date: January 21, 2025 3 Councilmember Lee thanked the Council and the Department Head team for their assistance during her four-month tenure. Supervisor Pine presented Councilmember Lee with a proclamation on behalf of the San Mateo County Board of Supervisors. d. PROCLAMATION RECOGNIZING MICHAEL J. MATTEUCCI UPON HIS RETIREMENT Mayor Colson read a proclamation recognizing Police Chief Matteucci for his 33 years of service to the Burlingame community. Vice Mayor Stevenson discussed Police Chief Matteucci’s care for the community and thanked him for all his communication with the Council. Councilmember Pappajohn thanked Police Chief Matteucci for taking the time to talk with her children after the George Floyd murder in order to make her family feel seen and safe. Councilmember Lee discussed how she felt safe in Burlingame and stated that it is in large part due to how well run Burlingame’s Police Department is. Councilmember Brownrigg talked about Police Chief Matteucci’s connection to the community and thanked him for consistently exercising good judgment. Police Chief Matteucci thanked the community, Council, and his colleagues for their support. He noted that it would be a hard adjustment to not come into work after 33 years of service. Supervisor Pine presented Police Chief Matteucci with a proclamation on behalf of the San Mateo County Board of Supervisors. e. REPORT FROM MEASURE I OVERSIGHT COMMITTEE Pete Roddy gave the report out from the Measure I Oversight Committee. 8. PUBLIC COMMENTS There were no public comments. 9. APPROVAL OF CONSENT CALENDAR Mayor Colson asked the Councilmembers and the public if they wished to remove any item from the Consent Calendar. No items were pulled. Agenda Item: 9c Meeting Date: January 21, 2025 4 Vice Mayor Stevenson made a motion to approve the Consent Calendar; seconded by Councilmember Lee. The motion passed unanimously by roll call vote, 5-0. a. APPROVAL OF CITY COUNCIL MEETING MINUTES FOR THE NOVEMBER 18, 2024 REGULAR CITY COUNCIL MEETING City Clerk Hassel-Shearer requested Council approval of the City Council meeting minutes for the November 18, 2024, Regular City Council Meeting. b. APPROVAL OF CITY COUNCIL MEETING MINUTES FOR THE NOVEMBER 19, 2024 BEAUTIFICATION COMMISSION AND PARKS AND RECREATION COMMISSION INTERVIEWS City Clerk Hassel-Shearer requested Council approval of City Council meeting minutes for November 19, 2024, Beautification Commission and Parks and Recreation Commission Interviews. c. ADOPTION OF AN ORDINANCE AMENDING BURLINGAME MUNICIPAL CODE CHAPTER 25.40 OF ARTICLE 3; CHAPTER 25.48 OF ARTICLE 4; CHAPTER 25.60 OF ARTICLE 6; CHAPTER 25.88 OF ARTICLE 6; CHAPTER 25.98 OF ARTICLE 6; AND CHAPTER 25.100 OF ARTICLE 7, RELATED TO ACCESSORY DWELLING UNITS; CEQA DETERMINATION: EXEMPT PURSUANT TO STATE CEQA GUIDELINES SECTIONS 15282, 15378, AND 15061(B)(3) CDD Zayer requested Council adopt Ordinance Number 2035. d. SECOND READING AND ADOPTION OF AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AMENDING CHAPTER 8.19 OF TITLE 8 OF THE BURLINGAME MUNICIPAL CODE TO ALLOW EXISTING TOBACCO RETAILER PERMIT HOLDERS AN EXEMPTION FROM CERTAIN RELOCATION DISTANCE REQUIREMENTS FOR A PERIOD OF TWO YEARS, ELIMINATING CERTAIN RESTRICTIONS ON RETAILER PERMIT TRANSFERS AND DISCONTINUING THE ISSUANCE OF NEW TOBACCO RETAILER PERMITS; CEQA DETERMINATION: EXEMPT PURSUANT TO STATE CEQA GUIDELINES SECTION 15378 AND 15061(b)(3) ACA Spansail requested Council adopt Ordinance Number 2036. e. SECOND READING AND ADOPTION OF UPDATED TREE ORDINANCE – REPEALING CHAPTERS 11.04 AND 11.06 OF THE BURLINGAME MUNICIPAL CODE TITLE 11 (TREES AND VEGETATION) AND ADOPTING A NEW CHAPTER 11.06 (URBAN REFORESTATION AND TREE PROTECTION); CEQA DETERMINATION: EXEMPT PURSUANT TO STATE CEQA GUIDELINES SECTIONS 15307 AND 15038 City Arborist Holtz requested Council adopt Ordinance Number 2037. Agenda Item: 9c Meeting Date: January 21, 2025 5 f. ADOPTION OF A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR HUMAN RESOURCES CONSULTATION SERVICES WITH IT’S PERSONNEL PC, FOR A NOT TO EXCEED AMOUNT OF $150,000 HR Director Saguisag-Sid requested Council adopt Resolution Number 149-2024. g. ADOPTION OF A RESOLUTION AUTHORIZING THE CITY MANAGER TO PROCURE SITE FURNISHINGS IN THE AMOUNT OF $355,223.17 FOR THE TOWN SQUARE PROJECT, CITY PROJECT #86120 Parks and Recreation Director Glomstad requested Council adopt Resolution Number 150-2024. h. ADOPTION OF A RESOLUTION TO ADOPT THE UPDATED EMERGENCY SERVICES COUNCIL JOINT POWERS AGREEMENT City Manager Goldman requested Council adopt Resolution Number 151-2024. i. ADOPTION OF A RESOLUTION TO APPROVE THE BUDGET AMENDMENT FOR FISCAL YEAR 2024-25 BY $545,412 FOR AN ADDITIONAL CONTRIBUTION TO THE CENTRAL COUNTY FIRE DEPARTMENT JOINT POWERS AUTHORITY Finance Director Yu-Scott requested Council adopt Resolution Number 152-2024. j. ADOPTION OF A RESOLUTION APPROVING PLANNING COMMISSION RULES OF PROCEDURES AND RESCINDING RESOLUTION NUMBER 110-2002 CDD Zayer requested Council adopt Resolution Number 153-2024. k. ADOPTION OF A RESOLUTION DECLARING THE RESULTS OF THE MUNICIPAL ELECTION HELD ON NOVEMBER 5, 2024 City Clerk Hassel-Shearer requested Council adopt Resolution Number 154-2024. l. ADOPTION OF A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR EXECUTIVE RECRUITMENT SERVICES WITH TERI BLACK & COMPANY LLC, FOR A MAXIMUM AMOUNT OF $150,000 HR Director Saguisag-Sid requested Council adopt Resolution Number 155-2024. m. ACCEPTANCE OF THE CITY OF BURLINGAME ANNUAL COMPREHENSIVE FINANCIAL REPORT AND OTHER RELATED ANNUAL AUDIT REPORTS FOR THE FISCAL YEAR ENDED JUNE 30, 2024 Agenda Item: 9c Meeting Date: January 21, 2025 6 Finance Director Yu-Scott requested Council accept the City’s Annual Comprehensive Financial Report and other related annual audit reports for the fiscal year that ended June 30, 2024. n. ADOPTION OF THE 2025 CITY COUNCIL CALENDAR City Clerk Hassel-Shearer requested Council adopt the 2025 City Council Calendar. 10. PUBLIC HEARINGS There were no public hearings. 11. STAFF REPORTS AND COMMUNICATIONS a. CONSIDERATION OF TWO APPOINTMENTS TO THE TRAFFIC, SAFETY & PARKING COMMISSION City Manager Goldman stated that there are two vacancies on the Traffic, Safety & Parking Commission due to the expiring terms of Prentice Ng and Athan Rebelos. She explained that the City received two applications by the deadline of December 2, 2024, and interviewed Jennifer Johnson and Robert “Tony” Brown on December 9. She added that the appointees’ terms were for three years ending on November 6, 2027. Mayor Colson opened the item up for public comment. No one spoke. The Council marked their ballots and submitted them to the City Clerk. The City Clerk read the ballots. Congratulations to Jennifer Johnson and Robert “Tony” Brown on their appointments to the Traffic, Safety & Parking Commission. b. CONSIDERATION OF FORMATION OF AND APPOINTMENTS TO ART COMMISSION TASK FORCE City Librarian McCulley stated that at the August 19, 2024, Council meeting, staff recommended approval of the creation of a two-member art liaison ad hoc committee. The Council approved the creation of the committee. He noted that on December 9, the Council interviewed potential candidates for the ad hoc committee. Mayor Colson stated that after interviewing the candidates, the Council discussed establishing a task force instead of creating a two-member art liaison ad hoc committee. She explained that the task force would be charged with creating a strategic plan for public art in the city. Councilmember Pappajohn stated that she thought it was important to have about three people on the task force. Agenda Item: 9c Meeting Date: January 21, 2025 7 Councilmember Lee concurred with Councilmember Pappajohn. Vice Mayor Stevenson discussed the importance of art in the community. He added that he believed that creating a task force would ensure that the City is no longer reactive to the donation of art but instead proactive in creating art for the community. He thought that the task force would allow the City to obtain feedback and input from the community and local artists. Councilmember Brownrigg voiced his approval of moving forward with a task force. He suggested appointing five members to the task force. Mayor Colson opened the item up for public comment. Cathy Baylock discussed her support for the creation of the art task force. Mayor Colson closed public comment. Mayor Colson stated that this would be a working group that doesn’t include Councilmembers. She explained that in order to move the ball forward, she would suggest three members be appointed to the task force. She added that if her colleagues agreed, then she and the Vice Mayor would work with staff to appoint members to the task force. Council concurred. 12. COUNCIL COMMITTEE AND ACTIVITIES REPORTS AND ANNOUNCEMENTS There were none. 13. FUTURE AGENDA ITEMS There were no future agenda items. 14. 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. 15. CEREMONIAL a. SWEARING IN OF DISTRICT 1 COUNCILMEMBER ANDREA PAPPAJOHN Councilmember Pappajohn was sworn in by her husband Kimathi Marangu. Agenda Item: 9c Meeting Date: January 21, 2025 8 b. SWEARING IN OF DISTRICT 2 COUNCILMEMBER DESIREE THAYER Councilmember Thayer was sworn in by her partner John Paolini c. SWEARING IN OF DISTRICT 4 COUNCILMEMBER DONNA COLSON Mayor Colson was sworn in by her friends Mary Hockridge, Janet Martin, and Maria Ribera. d. ROTATION OF COUNCILMEMBERS Mayor Colson gave a review of her year as Mayor. She discussed the collaboration of staff, support from the community, and leadership from the Council. Mayor Colson reviewed the City’s tradition of rotating the Mayor on an annual basis. She congratulated Peter Stevenson and Michael Brownrigg on becoming Mayor and Vice Mayor, respectively, for 2025. Mayor Stevenson thanked the community for their support. 16. ADJOURNMENT The City Council adjourned the meeting in memory of former Mayor Janney at 9:04 p.m. Respectfully submitted, Meaghan Hassel-Shearer City Clerk 1 STAFF REPORT AGENDA NO: 9d MEETING DATE: January 21, 2025 To: Honorable Mayor and City Council Date: January 21, 2025 From: Meaghan Hassel-Shearer, City Clerk – (650) 558-7203 Subject: Confirmation of the Mayor’s Council Assignments for 2025 RECOMMENDATION Staff recommends the City Council review, make changes if necessary, and approve the Mayor’s Council assignments for 2025. Exhibit: • 2025 Council Assignments CITY OF BURLINGAME 2025 COUNCIL ASSIGNMENTS – Revised January 21, 2025 Committee Schedule Bold names are members, alternates in parentheses. 1 ABAG – City Delegate Annually Stevenson (Colson) 2 Advanced Life Support (Ambulance) JPA Meets on the 3rd Wednesday of January, May, and September at 6:30 p.m. Thayer (Pappajohn) 3 Airport Land Use Commission (NB: C/CAG subcommittee) Meets quarterly Pappajohn 4 Americans Supporting Americans Meets as needed Thayer 5 Audit Committee Meets 2-3 times per year, including once in December Colson & Stevenson 6 Caltrain Modernization Policymaker Group Meets 4th Thursday of each month, 5:30 – 7:30 p.m. Stevenson (Thayer) 7 Central County Fire Board Meets 4 times a year, generally the second Wednesday of February, April, September, and December, at 4 p.m. (NOTE: Minimum 2-year terms. Stevenson appointed January 2022.) Thayer & Stevenson 8 Chamber of Commerce Liaison Meets 2nd Tuesday of each month, noon-1:30 p.m. Colson & Stevenson 9 City/County Association of Governments (C/CAG) Meets 2nd Thursday of each month, 6:30 p.m. Stevenson (Pappajohn) 10 City/Schools Liaison Committee Meets 3 times a year, usually midweek in the afternoon Brownrigg & Colson 11 Commute.org (formerly called Peninsula Congestion Relief Alliance) Meets every other month on Thursday at 8 a.m. Thayer (Brownrigg) 12 Dog Park Advisory Group Meets as needed Colson & Stevenson 13 Economic Development Subcommittee Meets 2nd Thursday of the month, 8:15 a.m. Brownrigg & Pappajohn 14 Emergency Services Council (quarterly) Meets 3rd Thursday in January, April, June, and September, 5:30 p.m. at Hall of Justice in Redwood City Pappajohn(Stevenson) 15 Enterprise Property Committee Meets as needed Brownrigg & Colson 16 Housing Fund Subcommittee Meets as needed Brownrigg & Colson 17 Housing Endowment and Regional Trust (HEART) Meets quarterly on Wednesdays at 3 p.m. Brownrigg (Pappajohn) 18 Measure I Oversight Committee Meets 1-2 times a year Colson & Stevenson 19 Peninsula Clean Energy (PCE) Meets 4th Thursday of every month, 6:30 p.m. at 2075 Woodside Road, Redwood City, CA 94061 Colson (Thayer) 20 Post Office / Town Square Advisory Group Meets as needed Brownrigg & Colson 21 San Mateo County Home For All Meets quarterly and as needed via Zoom and in person, various locations Colson (Stevenson) 22 SFO Community Round Table Meets quarterly on 1st Wednesday each month at 7 p.m. Pappajohn (Thayer) 23 South Bay Waste Management Authority Meets quarterly, 2 p.m., Thursdays Brownrigg (Stevenson) HIGH PRIORITY INFRASTRUCTURE PROJECTS AND INITIATIVES (APPOINTED BY MAYOR) 24 Broadway Grade Separation Meets as needed Colson & Stevenson 25 City Hall Modernization and Safety Improvements Meets as needed Colson & Stevenson 26 Sea Level Rise Shoreline Protection Improvements Meets as needed Colson & Brownrigg 27 El Camino Real Road and Utilities Renewal Project Meets as needed Colson & Brownrigg 28 Recycled/Reclaimed Water Technology Meets as needed Stevenson & Thayer 29 Shuttles Meets as needed Brownrigg & Pappajohn 30 Vision Zero Meets as needed Pappajohn & Stevenson MEMBERS ELECTED/APPOINTED NOT BY THE MAYOR 31 Bay Area Water Supply and Conservation Agency (BAWSCA) Meets 3rd Thursday of every other month, starting January Stevenson 32 C/CAG Finance Meeting Meets quarterly, 12:00 p.m. at San Mateo City Hall, 330 W 20th Avenue, San Mateo, CA 94403 Colson 33 C/CAG Resource Management and Climate Protection Meets third Wednesday of the month, 3:00 p.m. in Redwood City or San Mateo Colson 34 OneShoreline Meets fourth Monday of month, 4:00 p.m. at 1700 S. El Camino Real Suite 502, San Mateo, CA 94402 Colson 35 Peninsula Clean Energy Executive Committee Meets monthly Colson 36 Peninsula Clean Energy Audit and Finance Committee Meets monthly Colson 37 San Mateo County Flood and Sea Level Rise Resiliency District (One Shoreline) Meets the 2nd Monday of the month at 4:00 p.m. at San Mateo City Hall Colson (North County Representative) 38 San Mateo County Housing and Development Committee Meets as need, 4-6 times a year Colson 39 SFO Community Round Table Subcommittee on Ground-Based Noise Meets as needed Pappajohn 40 South Bay Waste Management Authority’s Zero Waste Working Group Meets as needed Brownrigg 41 South Bay Waste Management Authority’s Finance Committee Meets three times a year Brownrigg ALL COUNCILMEMBERS MAY ATTEND THE FOLLOWING MEETINGS 42 Council of Cities Meets usually 4th Friday of month, rotating City All 43 Peninsula Division League of California Cities Meets quarterly lunch on Wednesdays, plus January reception for newly elected Councilmembers All 1 STAFF REPORT AGENDA NO: 9e MEETING DATE: January 21, 2025 To: Honorable Mayor and City Council Date: January 21, 2025 From: Syed Murtuza, Director of Public Works – (650) 558-7230 Andrew Wong, Senior Civil Engineer – (650) 558-7230 Subject: Adoption of a Resolution Authorizing Execution of the Master Agreement Referred to as the Primary Grant Agreement with the San Mateo County Transportation Authority for Measure A & W Funds for Transportation Programs and Projects RECOMMENDATION Staff recommends that the City Council adopt the attached resolution authorizing execution of the Master Agreement referred to as the Primary Grant Agreement (PGA) between the City of Burlingame and San Mateo County Transportation Authority (SMCTA) in order to be eligible for Measures A & W grant funding for transportation programs and projects. BACKGROUND In 1988, San Mateo County voters approved Measure A, a 20-year half-cent sales tax to fund and leverage additional funding for transportation projects and programs in San Mateo County. The approval of Measure A created the SMCTA to manage and administer the sales tax revenues generated in conformance with the Transportation Expenditure Plan (TEP). The 1988 sales tax expired on December 31, 2008. In 2004, San Mateo County voters reauthorized the Measure A half-cent sales tax and adopted a new TEP for an additional 25 years (from January 1, 2009, through December 31, 2033). The TEP established funding categories for Transit, Highway Improvements, Local Streets/Transportation, Grade Separations, Pedestrian and Bicycle Improvements, and Alternative Congestion Relief Projects. In 2018, San Mateo County voters approved Measure W, a 30-year half cent sales tax, from July 1, 2019, through June 30, 2048, to fund and leverage additional funding for transportation projects and programs in San Mateo County that are consistent with the Measure W Congestion Relief Plan. The San Mateo County Transit District (District) levies this tax and administers investments for 50% of the proceeds assigned to the County Public Transportation Systems category in the Congestion Relief Plan. The SMCTA is responsible for administering the remaining 50% of funds assigned to: Countywide Highway Congestion Improvements; Local Safety, Pothole and Congestion Relief Improvements including Grade Separations; Bicycle and Pedestrian Improvements; and Regional Transit Connections. SMCTA Measure A & W Primary Grant Agreement January 21, 2025 2 DISCUSSION Historically, the SMCTA has executed separate funding agreements, memoranda of understanding, and associated amendments for each phase of individual projects funded by Measures A and W. To streamline the agreement process, SMCTA has developed a new Master Agreement known as the Primary Grant Agreement (PGA) through which the SMCTA and project sponsors will document the structure of their relationships and related obligations associated with Measures A and W grants. Additionally, concise individual project supplemental agreements will detail each funded project and any specifically associated requirements as part of the approval of supplemental agreements during the 10-year term of the PGA. In order to be eligible for SMCTA Measures A and W funding over the next 10 years, the SMCTA requires the City Council to adopt the resolution authorizing the sponsor's City Manager or designee to sign a PGA with the SMCTA. Accordingly, staff is requesting that the City Council authorize the attached PGA and authorize the City Manager or her designee to sign the PGA. FISCAL IMPACT None. Exhibits: • Resolution • Primary Grant Agreement RESOLUTION NO. _______ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING EXECUTION OF A PRIMARY GRANT AGREEMENT WITH THE SAN MATEO COUNTY TRANSPORTATION AUTHORITY FOR FUTURE MEASURES A AND W FUNDING WHEREAS, on June 7, 1988, the voters of San Mateo County approved a ballot measure to allow the collection and distribution by the San Mateo County Transportation Authority (TA) of a half-cent transactions and use tax in San Mateo County for 20 years with the tax revenues to be used for highway and transit improvements pursuant to the Transportation Expenditure Plan presented to the voters (Original Measure A); and WHEREAS, on November 2, 2004, the voters of San Mateo County approved the continuation of the collection and distribution by the TA of the Measure A half cent transaction and use tax for an additional 25 years to implement the 2004 Transportation Expenditure Plan, beginning January 1, 2009 (New Measure A); and WHEREAS, on November 6, 2018, the voters of San Mateo County authorized a new one-half percent sales tax in San Mateo County for transportation purposes, and tasked the TA with administering four of the five transportation program categories described in the Congestion Relief Plan presented to the voters (Measure W); and WHEREAS, the City of Burlingame is eligible for funding under certain programs in the 1988 Transportation Expenditure Plan, 2004 Transportation Expenditure Plan, and/or 2018 Congestion Relief Plan; and WHEREAS, the TA requires the Sponsor's governing board to adopt a resolution authorizing the Sponsor's City Manager or designee to sign a Primary Grant Agreement with the TA to receive Measures A and W grants over the next 10 years, and to take any other actions necessary to give effect to this resolution. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Burlingame: 1. Authorizes the City Manager or designee to execute a Primary Grant Agreement, in the form attached hereto, with the San Mateo County Transportation Authority to be eligible to receive Measures A and W grants over the next 10 years; and 2. Certifies that any funds awarded by the TA will be used to supplement existing funds for program activities, and will not replace existing funds or resources; and 3. Authorizes the City Manager or designee to take any other actions necessary to give effect to this resolution. __________________________ Peter Stevenson, 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 held on the 21st day of January, 2025, and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: _________________________ Meaghan Hassel-Shearer, City Clerk Page 1 of 36 20016287.14 PRIMARY GRANT AGREEMENT SAN MATEO COUNTY TRANSPORTATION AUTHORITY MEASURE A AND/OR MEASURE W FUNDS This Primary Grant Agreement (Agreement) is made __________________ by and between the San Mateo County Transportation Authority (TA) and the [Project Sponsor] (Sponsor), each of which is referred to herein individually as “Party” and jointly as “Parties.” RECITALS WHEREAS, on June 7, 1988, the voters of San Mateo County approved a ballot measure to allow the collection and distribution by the TA of a half-cent transactions and use tax in San Mateo County for 20 years with the tax revenues to be used for highway and transit improvements pursuant to the Transportation Expenditure Plan presented to the voters (Original Measure A); and WHEREAS, on November 2, 2004, the voters of San Mateo County approved the continuation of the collection and distribution by the TA of the Measure A half cent transaction and use tax for an additional 25 years to implement the 2004 Transportation Expenditure Plan, beginning January 1, 2009 (New Measure A); and WHEREAS, on November 6, 2018, the voters of San Mateo County authorized a new one-half percent sales tax in San Mateo County for transportation purposes, and tasked the TA with administering four of the five transportation program categories described in the Congestion Relief Plan presented to the voters (Measure W); and WHEREAS, the TA and Sponsor desire to enter into this Agreement to establish the process, terms and conditions governing the allocation and expenditure of Measures A/W Funds by Sponsor for capital projects. Now therefore, the Parties agree as follows: SECTION 1: Form of Agreements 1.1. Primary Grant Agreement. This Primary Grant Agreement outlines the general terms and conditions applicable to all TA allocations of Measures A/W Funds to Sponsor for capital projects. As allocations are made, the TA and Sponsor will enter into subsequent arrangements for each allocation (Project Supplements). From time to time the Parties may enter into Project Supplements with third parties for cosponsored projects. 1.2. Project Supplements. Each Project Supplement will be substantially in a form attached hereto as described in Exhibit A, "Form of Project Supplements " and will be attached to this Agreement and incorporated herein by this reference. SECTION 2: Term and Termination 2.1. Term. The term of this Agreement will commence on Execution Date and will terminate after 10 years, unless terminated by Sponsor or the TA pursuant to this Section 2. Work begun under the Agreement will continue to be governed by this Agreement until the Scope of Work is complete. Page 2 of 36 20016287.14 2.2. Sponsor’s Right to Terminate; Repayment upon Termination. Sponsor may at any time terminate the Agreement or a Project Supplement by giving ten (10) days’ written notice to the TA of its election to do so. Upon such termination, Sponsor will not be reimbursed for any further Scope of Work Costs associated with the Agreement or the Project Supplement, as applicable, and will reimburse the TA for all monies paid by the TA and costs incurred by the TA in connection with the applicable Scope of Work as well as all reasonable costs and expenses incurred to effect such termination within ninety (90) days of the TA’s submission to Sponsor of a detailed statement of such payments and costs. 2.3. Termination by the TA. The TA may terminate this Agreement or a Project Supplement, with or without cause, by giving ten (10) days’ written notice of such termination. If the TA terminates the Agreement for Sponsor’s default, Sponsor will reimburse the TA for all funds paid to Sponsor in connection with all Scopes of Work, and for all costs incurred by the TA in connection with the Scope of Work as well as all reasonable costs and expenses incurred to effect such termination, within ninety (90) days of the TA’s submission to Sponsor of a detailed statement of such payments and costs. If the TA terminates a Project Supplement for Sponsor’s default, Sponsor will reimburse the TA for all funds paid to Sponsor in connection with the Scope of Work for the applicable Project Supplement, and for all costs incurred by the TA in connection with the Scope of Work as well as all reasonable costs and expenses incurred to effect such termination, within ninety (90) days of the TA’s submission to Sponsor of a detailed statement of such payments and costs. If the TA terminates the Agreement or a Project Supplement for convenience, the TA is obligated to pay to Sponsor all costs and expenses incurred thereunder by Sponsor up to the date of notice of termination, as well as all reasonable costs and expenses incurred to effect such termination. 2.4. Expiration/Suspension of TA’s Financial Obligations. Any and all financial obligations of the TA pursuant to this Agreement expire upon the expenditure of TA’s maximum contribution to each Scope of Work as established in each Project Supplement or the conclusion of the Term as defined in Section 2.1, whichever occurs first. The TA reserves the right to suspend its financial obligation, with ten (10) days’ advance notice, if Sponsor identifies a risk of not being able to complete a Scope of Work within budget. If Sponsor cannot provide a credible funding plan acceptable to the TA to fund and complete each Scope of Work, the Sponsor will be in default and the TA may terminate this Agreement. If Sponsor identifies a risk of not being able to complete each Scope of Work within budget, failure to report such risk to the TA constitutes default and is cause for termination under Section 2.3. 2.5. Supplementing Existing Revenue. Sponsor agrees that it will use funds provided pursuant to this Agreement to supplement existing revenue. Sponsor will not use Measures A/W Funds to replace other local taxes or revenues already programmed and available for use for the same purpose. Sponsor will use funds provided pursuant to this Agreement only for the Scope of Work for each Project Supplement. Page 3 of 36 20016287.14 2.6. Misuse of Funds. If the TA determines that Sponsor has used Measures A/W Funds other than for the approved Scope of Work or Project Costs, the TA will notify Sponsor of its determination. Within thirty (30) days of notification Sponsor will either (a) repay such funds to the TA, or (b) explain in writing how the funds in question were spent for the approved Scope of Work. The TA will respond to Sponsor’s written explanation within thirty (30) days of receipt. Unless otherwise stated in the response, the TA’s response will be final, and Sponsor will repay any funds used other than for the approved Scope of Work within thirty (30) days. SECTION 3: Time of Performance 3.1. Time of Performance. The time of performance will be specified in each Project Supplement (Time of Performance). 3.2. Time Extension. If the Scope of Work cannot be completed within the Time of Performance as defined in Section 3.1, Sponsor must submit a request in writing to the TA no later than six (6) months before the Time of Performance for an extension for the Time of Performance. The TA will review the request and may grant the extension via a letter of concurrence if it is justified in TA’s sole and complete discretion. Extensions longer than one (1) year will require a formal amendment to the Project Supplement. Costs incurred for the Scope of Work after the Time of Performance are at risk of denial for reimbursement by the TA. The unreimbursed portion of Measures A/W allocation will be retained by the TA for the Measures A/W Program. SECTION 4: Insurance 4.1. Insurance. For the purposes of this Section, “Entity” is defined as any entity designing, approving designs and/or performing each Scope of Work specified in the Project Supplements funded by this Agreement. Entities may include Sponsor, a contractor of Sponsor, another body on behalf of which Sponsor submitted its funding application, and/or a contractor of such other body. For each Project Supplement, all Entities will provide the appropriate insurance covering the work being performed as specified in the Project Supplement. The insurance requirements specified in this Section will cover each Entity’s own liability and any liability arising out of work or services of Entity subcontractors, subconsultants, suppliers, temporary workers, independent contractors, leased employees, or any other persons, firms or corporations (hereinafter collectively referred to as “Agents”) working on each Project (as defined in each Project Supplement). If Sponsor itself is an Entity, Sponsor must also provide its own insurance meeting the requirements of this Section. a) Minimum Types and Scope of Insurance. Each Entity is required to procure and maintain at its sole cost and expense insurance subject to the requirements set forth below. Such insurance will remain in full force and effect throughout performance of the Scope of Work. All policies will be issued by insurers acceptable to the TA (generally with a Best’s Rating of A-10 or better). Each Entity is also required to assess the risks associated with work to be performed by Agents and to require that Agents maintain adequate insurance coverages with appropriate limits and endorsements to cover such risks. To the extent that its Agent does not procure and maintain such insurance coverage, an Entity is responsible for and assumes any and all costs and expenses that may be Page 4 of 36 20016287.14 incurred in securing said coverage or in fulfilling Entity’s indemnity obligations as to itself or any of its Agents in the absence of coverage. Entities may self-insure against the risks associated with the Scope of Work, but in such case, waive subrogation in favor of the TA respecting any and all claims that may arise. i. Workers’ Compensation and Employer’s Liability Insurance. Worker’s Compensation coverage must meet statutory limits and Employer’s Liability Insurance must have minimum limits of $1 million. Insurance must include a Waiver of Subrogation in favor of the TA. ii. Commercial General Liability Insurance. The limit for Commercial General Liability Insurance will be specified in each Project Supplement. Commercial General Liability Insurance must be primary to any other insurance, name the TA as an Additional Insured, include a Separation of Interests endorsement and include a Waiver of Subrogation in favor of the TA. iii. Business Automobile Liability Insurance. The limit for Business Automobile Liability Insurance will be specified in each Project Supplement. Insurance must cover all owned, non-owned and hired autos, and include a Waiver of Subrogation in favor of the TA. iv. Property Insurance. Property Insurance must cover an Entity’s and/or Agent’s own equipment as well as any materials to be installed. Property Insurance must include a Waiver of Subrogation in favor of the TA. v. Professional Liability Insurance. If specified in a Project Supplement, Professional Liability insurance should cover each Entity’s and any Agent’s professional work on the Project. vi. Cyber Liability Insurance. If specified in a Project Supplement, and if contract deals with Personally Identifiable Information (PII), then Professional Liability Insurance policy, should also include coverage for Cyber risk coverages including Network and Internet Security Liability coverage, Privacy coverage and Media coverage. vii. Employee Theft Insurance/Crime Insurance. If specified in a Project Supplement, then an Employee Theft Insurance policy covering the loss of money, securities or other property resulting from theft by employees. The policy should include Third-Party Crime or Client Crime coverage viii. Contractors’ Pollution Liability Insurance and/or Environmental Liability Insurance. If specified in a Project Supplement, Contractors’ Pollution Liability Insurance and/or Environmental Liability insurance should cover potential pollution or environmental contamination or accidents. The limit for Pollution and/or Environmental Liability Insurance in each appropriate contract and subcontract should not be less than $1 million. Such insurance must name the TA as an Additional Insured and include a Waiver of Subrogation in favor of the TA. Page 5 of 36 20016287.14 ix. Railroad Protective Liability Insurance. Insurance is required if the Project will include any construction or demolition work within 50 feet of railroad tracks. The limit for Railroad Protective Liability Insurance in each appropriate contract and subcontract cannot be less than $2 million per occurrence and $6 million annual aggregate. On the Entity’s Commercial General Liability insurance policy, the contractual liability exclusion for liability assumed shall be deleted. b) Special Requirement for Caltrain Shuttles. If Sponsor and/or Entity is operating shuttle(s) with the Caltrain logo on the vehicle(s) or on any shuttle public information materials, the Commercial General Liability, Business Automobile, and Pollution and/or Environmental Liability (if applicable) policies also must name as Additional Insureds: the Peninsula Corridor Joint Powers Board, the San Mateo County Transit District, the Santa Clara Valley Transportation Authority, the City and County of San Francisco, TransitAmerica Services, Inc. or any successor Operator of the Service, and the Union Pacific Railroad Company and their respective directors, officers, employees, volunteers and agents while acting in such capacity, and their successors or assignees, as they now, or as they may hereafter be constituted, singly, jointly or severally. c) Excess or Umbrella Coverage. Sponsor and/or any other Entity may opt to procure excess or umbrella coverage to meet the above requirements, but in such case, these policies must also satisfy all specified endorsements and stipulations for the underlying coverages and include provisions that the policy holder’s insurance is to be primary without any right of contribution from the TA. d) Deductibles and Retentions. Sponsor must ensure that deductibles or retentions on any of the above insurance policies are paid without right of contribution from the TA. Deductible and retention provisions cannot contain any restrictions as to how or by whom the deductible or retention is paid. Any deductible or retention provision limiting payment to the named insured is unacceptable. In the event that any policy contains a deductible or self-insured retention, and in the event that the TA seeks coverage under such policy as an additional insured, Sponsor will ensure that the policy holder satisfies such deductible to the extent of loss covered by such policy for a lawsuit arising from or connected with any alleged act or omission of the Entity or Agents, even if neither the Entity nor Agents are named defendants in the lawsuit. e) Claims Made Coverage. If any insurance specified above is provided on a claim- made basis, then in addition to coverage requirements above, such policy must provide that: i. Policy retroactive date coincides with or precedes the Entity’s start of work (including subsequent policies purchased as renewals or replacements). ii. Entity will make every effort to maintain similar insurance for at least three (3) years following Project completion, including the requirement of adding all additional insureds. Page 6 of 36 20016287.14 iii. If insurance is terminated for any reason, each Entity agrees to purchase an extended reporting provision of at least three (3) years to report claims arising from work performed in connection with this Agreement. iv. Policy allows for reporting of circumstances or incidents that might give rise to future claims. f) Failure to Procure Adequate Insurance. Failure by any Entity to procure sufficient insurance to financially support the indemnification requirements of this Agreement does not excuse Sponsor from meeting all obligations of the indemnification requirements and the remainder of this Agreement, generally. g) Prior to beginning work under this Agreement, Sponsor must obtain, and produce upon request of the TA, satisfactory evidence of compliance with the insurance requirements of this Section. SECTION 5: Additional Terms Applicable to Sponsor-Performed Capital Projects The following additional terms apply when the Sponsor is performing the scope of work for capital projects as described in each Project Supplement. 5.1. Project Performance. Sponsor will oversee completion of the scope of work for each TA funded project as described in each Project Supplement (Scope of Work). Sponsor is responsible for procuring and administering any professional service and/or other contracts entered into in connection with each such Scope of Work. Sponsor may appoint a designee or engage contractor(s) to perform work necessary for completion of work, but Sponsor remains responsible to the TA for the completion of each Scope of Work. 5.2. Required Approvals. Prior to commencement of each Scope of Work, Sponsor or its designee (e.g., a consultant) will obtain all applicable local, state and federal approvals and permits for each Scope of Work. In addition, Sponsor must comply with all applicable federal, state and local laws and regulations applicable to the Project. All real property appraisals must comply with Uniform Standards of Professional Appraisal Practice (USPAP). Any right-of-way activities involving property on the Caltrans right-of- way must be conducted in accordance with the current version of the Caltrans Right-of- Way manual. 5.3. Contract Award and Change Orders. Sponsor must comply with state and local agency requirements for the award of any contract(s) for the performance of each Scope of Work and any change orders. As each Scope of Work proceeds, Sponsor must advise the TA of any contracts awarded and change orders as part of the regular progress reporting requirements. Notice of any contracts and change orders provided to the TA will not constitute approval by the TA of the contracts and change orders nor obligate the TA to provide funds in excess of its maximum contribution stated in each Project Supplement. 5.4. Progress Reports. Sponsor will prepare and submit to the TA quarterly progress reports during the entire term of each Scope of Work and covering all Scope of Work activities for work completed during the previous month using the template in Exhibit B or in other formats specified by the TA. The reports must describe: Page 7 of 36 20016287.14 a) The current status of, and any changes in, scope, schedule, budget, and funding plans of each Scope of Work and each Project; b) Any risk factors; c) The work performed during the previous quarter and projected for the next three months; d) Scope of Work Costs (as defined in Section 5.8 below) projected to be expended during the next three months; and e) Any other information requested by the TA. 5.5. Final Report. Within ninety (90) days of Sponsor’s final acceptance of each Scope of Work and all incidental work, Sponsor must prepare and submit to the TA a final report detailing the following and all other relevant information: a) A description of the Project, including a statement detailing the overall progress and success of the Scope of Work and the Project, a compilation of any data collected during the active phase(s) of the Project, and changes/additions to the scope of the Project. b) Total costs for the Scope of Work, including an accounting of all Measures A/W Funds expended in connection with the Scope of Work, and reflecting any unexpended Measures A/W Funds. c) An explanation and the status of any outstanding obligations or potential obligations related to the Scope of Work. d) A discussion of any pertinent issues or problems that arose during the implementation of the Scope of Work. e) Any copies of press articles, press releases, newsletter articles and any other publicity materials regarding the Project. f) Written confirmation or, for the final project phase, a Project Close-out form that no further reimbursements associated with the Scope of Work are anticipated and that all draw-down requests have been made. g) Photographs for all construction projects that satisfactorily demonstrate: 1) site conditions before the project was implemented; 2) work in progress; and 3) completed improvements. 5.6. Funding Commitment. The TA allocates to Sponsor up to the amount specified in each Project Supplement for reimbursement of expenditures related to the Scope of Work (Scope of Work Costs). Sponsor will contribute, or provide for the contribution of matching funds as specified in each Project Supplement. Sponsor also will contribute, or provide for the contribution of the entire amount in excess of the total project cost specified in the Project Supplement needed to complete each Scope of Work. The TA’s funding commitment under this Agreement in no way establishes a right for Sponsor to receive additional funding from the TA. All funding obligations of the TA under this Page 8 of 36 20016287.14 Agreement are subject to downward adjustment based on actual sales tax receipts for the fiscal years indicated. Sponsor will assess and confirm its ability to complete the Scope of Work described in each Project Supplement within budget as part of the quarterly reporting requirements established in 5.4, above. Sponsor must further notify the TA between reporting cycles if Sponsor determines that the budget will not be sufficient to complete each Scope of Work. The TA reserves the right to suspend its funding obligation as set forth in applicable Project Supplements upon such notice, and until Sponsor develops a credible funding plan acceptable to the TA to fund and complete the associated Scope of Work. 5.7. Use of Funds. a) Measures A/W Funds must be used only for direct eligible costs to complete the Scope of Work. The Sponsor is responsible for demonstrating to the TA that the expenses incurred were necessary to deliver each Scope of Work. Reimbursement for the following costs will require detailed documentation in accordance with generally-accepted accounting principles: i. Scope of Work phases or components such as stakeholder/public outreach; development of planning studies, project initiation documents (PID), project study reports (PSR), environmental clearance and mitigation for up to three years following project completion, project approval and environmental document (PA&ED), project design, and plans specifications and estimates (PS&E); regulatory agency review; acquisition of right-of-way; construction, and construction management; ii. Sponsor staff time for Scope of Work implementation; iii. Project administration costs for each Scope of Work under this Agreement. iv. Costs directly tied to the implementation of each Project Scope of Work as more specifically defined in Exhibit C, “Eligible Costs for Reimbursement,” which is attached to this Agreement and incorporated herein by this reference. Eligible costs are defined in greater detail in Exhibit C. If Sponsor wishes to undertake items of work not covered under each Scope of Work concurrent with performing each Scope of Work, the cost for including and undertaking the additional work must be segregated, and the costs borne exclusively by the Sponsor from a non- Measures A/W Program funding source(s). In the event that an activity is not listed in Exhibit C but Sponsor believes that it is an eligible cost, Sponsor may request that the TA consider reimbursing the Sponsor for the activity. The TA will have sole discretion to grant or deny Sponsor’s requests. b) The following costs are not eligible for Measures A/W Funds reimbursement: i. Sponsor’s costs which are unrelated to each Scope of Work; ii. Costs for entering into this Agreement and each Project Supplement; Page 9 of 36 20016287.14 iii. Maintenance, rehabilitation, routine operations of each Project or other facilities or programs except as specifically identified in the Scope of Work for each Project Supplement; and iv. Development of proposals, applications or agreements for Measure A, Measure W, or other funding programs. 5.8. Reimbursement Basis. Unless otherwise specified in the Project Supplement, Sponsor may seek reimbursement for Scope of Work Costs incurred on or after the Execution Date. Scope of Work Costs must be incurred and paid by Sponsor prior to requesting reimbursement from the TA. Sufficient documentation must accompany all requests for reimbursement, including the submittal of all due monthly progress reports. 5.9. Accounting and Request for Reimbursement Procedures. Sponsor, in coordination with and to the satisfaction of the TA, will establish procedures for Scope of Work accounting and requests for reimbursement. These procedures will track and reflect the accumulation of the TA’s pro rata share of Scope of Work Costs. Sponsor will detail the TA’s pro rata share of Scope of Work costs for all work funded under this Agreement with each “Reimbursement Claim Form,” which is attached to this Agreement as Exhibit D and incorporated herein, or in other formats specified by the TA. Sponsor will maintain all necessary books and records in accordance with generally accepted accounting principles. 5.10. Invoices; Payments. a) Sponsor must prepare and submit billing statements consistent with the Reimbursement Claim Form with all required supporting documentation. Supporting documentation may include, but is not limited to, copies of vendor invoices, timesheets, backup documentation, checks, and payment advice, and must include an accounting of the TA’s share of costs for the Scope of Work as contemplated by this Agreement. b) For any property acquisitions for which Sponsor seeks reimbursement from the TA, Sponsor must provide the following supporting documentation for each property: i. Copies of the final real estate appraisal and any appraisal review conducted on behalf of Sponsor; ii. For any right-of-way activities involving property on the Caltrans right-of- way, written confirmation that the acquisition process was conducted in accordance with the then-current version of the Caltrans Right-of-Way manual; iii. A Phase One Environmental Assessment and any recommended additional testing (unless waived by the TA); iv. Copy of the offer package provided to the property owner(s); Page 10 of 36 20016287.14 v. Copy of the Notice of Exemption or other required document for environmental clearance under CEQA/NEPA for the purchase of the property, and evidence of the date of filing such Notice; and vi. Written justification acceptable to the TA of any settlement at an amount higher than the offer. c) For each voluntary real property transaction, Sponsor must also provide: i. Copy of the fully executed purchase and sale agreement; ii. Copy of an executed and recorded deed, in a form consistent with the requirements set forth in the then-current Caltrans Right-of-Way manual; iii. Copy of the Policy of Title insurance; and iv. Copy of the final closing statement from the escrow. d) For each real property acquisition undertaken through condemnation, Sponsor must also provide: i. Copy of the recorded Final Order of Condemnation; and ii. Copy of the litigation guarantee issued by a title insurer. e) Sponsor must detail the tasks performed, associated costs, and pro rata share of Scope of Work Costs to be borne by the TA with each reimbursement request. f) The TA will endeavor to disburse reimbursements for approved Scope of Work Costs within thirty (30) days after the TA’s approval of each claim, subject to the limits on the TA’s maximum contribution as established in each Project Supplement. The TA’s obligation to reimburse Scope of Work Costs to Sponsor as provided in this Section is conditioned upon the TA’s prompt receipt of quarterly progress reports from Sponsor. g) Invoices may be submitted, no more frequently than once a quarter, by e-mail to: invoices@smcta.com, accountspayable@samtrans.com, and the designated TA Project Manager at the email address specified in the Project Supplement. Sponsor must submit a minimum of one reimbursement claim for each fiscal year (July through June) and no more frequently than quarterly. If Sponsor does not submit a reimbursement claim for two consecutive quarters (six months), then Sponsor will be deemed inactive. If the Sponsor does not submit a reimbursement claim within the next two quarters after being deemed inactive then project may be deprogrammed. Sponsor must submit a letter to the TA to seek administrative approval for an exemption. 5.11. Return of Project Cost Savings. Upon submission of the Final Report, if the total Scope of Work Costs are less than the amount specified in the Project Supplement, Sponsor will return to the TA that proportion of the Project cost savings that is equal to Page 11 of 36 20016287.14 the percentage of the original Scope of Work budget that consisted of Measure A/W Funds. 5.12. Indemnity by Sponsor. Sponsor will indemnify, keep and save harmless the TA and its directors, officers, agents and employees against any and all suits, claims or actions related to the performance of this Agreement, each Scope of Work or each Project including, but not limited to, those arising out of any of the following: a) Any injury to persons or property that may occur, or that may be alleged to have occurred, arising from the performance of each Project or implementation of this Agreement; or b) Any allegation that materials or services developed, provided or used for each Project infringe or violate any copyright, trademark, patent, trade secret, or any other intellectual-property or proprietary right of any third party. Sponsor further agrees to defend any and all such actions, suits or claims and pay all charges of attorneys and all other costs and expenses of defenses as they are incurred. If any judgment is rendered, or settlement reached, against the TA or any of the individuals enumerated above in any such action, Sponsor will, at its expense, satisfy and discharge the same. This indemnification will survive termination or expiration of the Agreement. SECTION 6: Additional Terms Applicable to TA-Performed Capital Projects The following additional terms apply when the TA is performing the scope of work for capital projects as described in each Project Supplement (Scope of Work). 6.1. Funding Commitment. The TA will provide in lieu contributions, expenditures on consultants, and/or funds up to the amount specified in each Project Supplement for the Scope of Work tasks specified in the Project Supplement (Scope of Work Costs). 6.2. Cost Savings. Any cost savings of the funds allocated for each Project Supplement will revert to the applicable program for the TA to reallocate to any eligible project through its usual fund programming and allocation activities. 6.3. Insufficient Funding. In the event that additional funding is needed to complete the Scope of Work specified in a Project Supplement, the TA will identify the additional amounts needed and review those estimates with the Sponsor. The Parties will work together to identify potential sources of funding, as well as obtain the necessary funds to complete the Scope of Work for the Project Supplement. If additional funding is needed due to a change in the Project Supplement Scope of Work, as requested by the Sponsor, the TA will identify the additional amounts needed and review those estimates with the Sponsor. In such case, it is the responsibility of the Sponsor to identify the potential sources of funding, as well as obtain the necessary funds to complete the changed Project Supplement Scope of Work. The TA may consider requests for additional funding, but is under no obligation to grant such requests. Page 12 of 36 20016287.14 6.4. TA Responsibilities. For purposes of delivering the Scope of Work, the TA agrees to perform the following tasks, unless otherwise specified in a Project Supplement: a) The TA will perform and complete the Scope of Work, either through its own forces or the use of one or more third-party consultants or contractors. b) The TA will make available to the Project up to the amount(s) specified in the Project Supplement(s) for the Scope of Work. c) For purposes of delivering the Scope of Work, the TA agrees to perform the following tasks, unless otherwise specified in a Project Supplement: i. Manage the Scope of Work, including developing and carrying out the Scope of Work on schedule and within budget; ii. Provide technical oversight for performance of the Scope of Work; iii. Lead coordination with Caltrans and/or other permitting agencies as necessary for the Scope of Work; iv. Obtain the necessary permits and approvals required for the Scope of Work; v. Procure and administer the consultant/contractor services to complete the Scope of Work; vi. Organize and facilitate regular meetings of a Project Development Team (PDT), the Sponsor and representatives from involved local and regional entities to provide input and guidance on the Scope of Work; vii. Keep Sponsor apprised of developments, such as award of contracts or potential changes that may affect the scope, schedule, or budget of the Project or Scope of Work; and viii. Consult with Sponsor where necessary/appropriate. d) To the extent applicable, the TA will execute an agreement with Caltrans for oversight services associated with the Scope of Work. e) The TA will prepare and provide to Sponsor status reports including anticipated and expended costs and Scope of Work delivery milestones and schedule forecasts. f) The TA will review, process, and audit (at its discretion) invoices and other documentation of expenditures for work performed under each Project Supplement. The TA will also track the accumulation and expenditure of funds allocated for Scope of Work, and process other documentation of expenditures in compliance with TA accounting and budgeting requirements. Page 13 of 36 20016287.14 6.5. Sponsor Responsibilities. For purposes of delivering the Scope of Work, the Sponsor agrees to perform the following tasks, unless otherwise specified in a Project Supplement: a) The Sponsor will be responsible for championing the effort of obtaining political and public support for the Project. b) The Sponsor will be the public face of the Project for purposes of leading outreach efforts to local stakeholders and community members, including coordination of public meetings and solicitation of public comment. c) The Sponsor will provide input and oversight based on local policies and desires regarding the outcome of and deliverables of the Project. d) The Sponsor will actively participate in the PDT meetings related to the Scope of Work. e) The Sponsor may, at its discretion, review any professional services agreements, change orders and any other agreements that the TA has entered into for the performance of Scope of Work; however the TA retains ultimate authority over contracting and related decisions. f) The Sponsor may, at its discretion, review the work products and deliverables produced by the TA and/or its contractors/consultants for the Scope of Work, including reports, designs, drawings, plans, specifications, schedules and other materials; however, the TA retains authority to accept or reject contractor/consultant work. g) The Sponsor will approve or endorse, in writing, the final deliverables or work products produced by the TA and/or its contractors/consultants for the Scope of Work. h) The Sponsor will review progress reports prepared and provided by the TA. i) The Sponsor may, at its discretion, review and audit invoices and other documentation of the expenditure of funds allocated for the Scope of Work, however the TA retains ultimate authority for expenditure of allocated funds on the Project. 6.6. Indemnification. a) Each of the Parties will indemnify, hold harmless and defend the other Party and its directors/councilmembers, officers, employees and agents (collectively, "Indemnitees") against all liability, claims, suits, actions, costs or expenses related to performance of the Scope of Work or the Project, including but not limited to those arising from loss of or damage to property, and injuries to or death of any person (including but not limited to the property or employees of each Party) when arising out of or resulting from any act or omission by the indemnifying Party, its agents, employees, contractors or subcontractors in connection with any aspect of the Project, including Project design, construction and/or maintenance. Page 14 of 36 20016287.14 b) Each of the Parties will also fully release, indemnify, hold harmless and defend the other Party and Indemnitees from and against any and all claims or suits that may be brought by any of the indemnifying Party's contractors or subcontractors performing work in connection with or related to the Project. c) The indemnifying Party's obligation to defend includes the payment of all reasonable attorneys' fees and all other costs and expenses of suit, and if any judgment is rendered, or settlement entered, against any Indemnitee, the indemnifying Party must, at its expense, satisfy and discharge the same. Indemnitees may require the indemnifying Party to obtain counsel satisfactory to the Indemnitees. d) This indemnification will survive termination or expiration of this Agreement. SECTION 7: Additional Terms Applicable to Shuttle Operations The following additional terms apply to shuttle projects as described in each Project Supplement (Project). 7.1. Sponsor Oversight; Work Plan. Sponsor is responsible for implementation of the Project as described in each Project Supplement. Sponsor assumes responsibility for procuring and administering any professional service and/or other contracts entered into in connection with the Project. Though Sponsor may appoint a designee or engage contractor(s) to perform work necessary for Project implementation, Sponsor will remain ultimately responsible to the TA for performance of all responsibilities set forth herein. 7.2. Required Approvals. Prior to commencement of each Project, Sponsor or its designee (e.g., a consultant) will obtain all required local, state and federal approvals and permits for Project work. In addition, Sponsor must comply with all federal, state and local laws and regulations applicable to the Project. 7.3. Contract Award and Scope Changes. Sponsor must comply with state and local agency requirements for the award and amendment of any contract(s) for the implementation of each Project. Sponsor must advise the TA in writing (electronic mail is acceptable) as soon as possible of any contracts awarded and any amendments thereto, such as for any changes in service. Notice of any contracts and amendments provided to the TA will not constitute approval by the TA nor obligate the TA to provide funds in excess of its maximum contribution stated in the Project Supplement. 7.4. Monthly & Annual Operations Reports. Within eight (8) calendar days after the end of each month a given Project Supplement is in effect, Sponsor or its agent must submit to the TA a monthly operations report (Operations Report) based on National Transit Database (NTD) reporting requirements, attached as Exhibit E, “National Transit Database Reporting Requirements.” The Operations Report must include such items as the average daily ridership of the Project, and the Project’s total boardings, total revenue miles, hours, vehicles in service, road calls, accidents and any other information pertinent to assess the performance of the service for purposes of local, state or federal reporting requirements for the month just ended. Any monthly service mileage and/or hours that were scheduled, but where service was not operated for any reason, must be Page 15 of 36 20016287.14 deducted from monthly reporting totals. An explanation for all lost service miles and/or hours must be included in the monthly report. Sponsor or its agent must review all required reporting for accuracy prior to submittal to the TA. The form of all reports must be determined by the TA. Within eight (8) calendar days of the end of the performance of the work under a Project Supplement, and/or any extension thereof, Sponsor or its agent must submit to the TA an annual report on the same statistics. All Operations Reports must be submitted via Excel spreadsheet or other format as approved by the TA to shuttles@samtrans.com or as specified in the Project Supplement. 7.5. Quarterly Progress Reports. Sponsor must prepare and submit to the TA quarterly progress reports by January 31, April 30, July 31 and October 31 of each year during the entire term of the Project. Reports must be presented in the form provided as Exhibit F, “Quarterly/Annual Shuttle Program Progress Report Form,” which is attached to this Agreement and incorporated herein by this reference, or in other formats specified by the TA. The reports must describe Project performance and expenditures during the previous quarter. The reports must include actions expected to be taken and any projected changes in the service plan / schedule during the next quarter, and any other information requested by the TA. Additionally, each progress report must include information on any potential issues that may impact any of the performance measures set forth in Exhibit F as well as the ability of Sponsor to meet the conditions outlined in this Agreement. 7.6. Annual Report. By October 1 of each year, Sponsor must provide the TA with an annual report in the form provided as Exhibit F, or in other formats specified by the TA, summarizing the quarterly progress reports from the prior fiscal year. The reports must include actions expected to be taken and any projected changes in the service plan /schedule for the next year (if the Project is continuing), and any other information requested by the TA. Additionally, each Annual report must include information on any potential issues that may impact any of the performance measures set forth in Exhibit F as well as the ability of Sponsor to meet the conditions outlined in this Agreement for the next year (if the Project is continuing). If the Annual Report is submitted after the second year of the Time of Performance, the Annual Report should include written confirmation that no further reimbursements associated with the Project are anticipated and that all reimbursement requests have been made or are being submitted with the Annual Report. 7.7. Funding Commitment. The TA allocates to Sponsor up to the amount specified in each Project Supplement for reimbursement of expenditures related to the Project (Project Costs). The Sponsor will contribute, or provide for the contribution of matching as specified in each Project Supplement, as well as the entire amount in excess of TA's allocation needed to implement the Project. The TA’s funding commitment under this Agreement in no way establishes a right for the Sponsor to receive additional funding from the TA. All funding obligations of the TA under this Agreement are subject to downward adjustment based on actual sales tax receipts for the fiscal years indicated, or if Sponsor receives funding for Project Costs from other sources which allow Sponsor to provide more than the matching funds specified in the Project Supplement over the term of the Agreement. Page 16 of 36 20016287.14 The Sponsor will assess and confirm its ability to implement the Project within budget as part of the quarterly reporting requirements established in Section 7.5, above. The Sponsor must further notify the TA between reporting cycles if the Sponsor determines that the budget will not be sufficient to implement the Project. The TA retains authority to suspend its funding obligation as set forth in Section 2.4 of this Agreement upon such notice, and until the Sponsor develops a credible funding plan acceptable to the TA to fund and implement the Project. 7.8. Reimbursement Basis. Sponsor may seek reimbursement for Project Costs incurred on or after the Execution Date. Project Costs must be incurred and paid by the Sponsor prior to requesting reimbursement from the TA. Sufficient documentation must accompany all requests for reimbursement, including the submittal of all due operations and progress reports. 7.9. Accounting and Reimbursement Procedures. Sponsor, in coordination with and to the satisfaction of the TA, will establish procedures for Project accounting and requests for reimbursement. These procedures will track and reflect the accumulation of the TA’s pro rata share of costs for the Project. Sponsor will detail the TA’s pro rata share of Project Costs for all work funded under this Agreement with each “Reimbursement Claim Form” which is attached to this Agreement as Exhibit D and incorporated herein, or in other formats specified by the TA. Sponsor will maintain all necessary books and records in accordance with generally accepted accounting principles. 7.10. Invoices; Payments. Once per quarter following submission of the quarterly progress reports, Sponsor must prepare and submit billing statements consistent with the Reimbursement Claim Form with all required supporting documentation. Supporting documentation may include, but is not limited to, copies of associated vendor invoices, timesheets, backup documentation, checks and payment advice, and must include an accounting of the TA's share of costs for the Project as contemplated by this Agreement. Claims and supporting documentation for reimbursement may be submitted by e-mail to: accountspayable@samtrans.com and invoices@smcta.com The TA will endeavor to disburse reimbursements for approved Project Costs within thirty (30) days after the TA's approval of each claim, subject to the limits on the TA's maximum contribution as established in the Project Supplement. The TA's obligation to reimburse Project Costs to the Sponsor as provided in this section is conditioned upon the TA’s prompt receipt of reports from Sponsor pursuant to Sections 7.4–7.6, above. 7.11. Indemnity by Sponsor. The Sponsor will indemnify, keep and save harmless the TA (and, if the Project includes shuttle(s) with the Caltrain logo on the vehicle(s) or on any shuttle public information materials, the Peninsula Corridor Joint Powers Board, the San Mateo County Transit District, the Santa Clara Valley Transportation Authority, the City and County of San Francisco, TransitAmerica Services, Inc. or any successor Operator of the Service, and the Union Pacific Railroad Company and each of its/their directors, officers, agents and employees against any and all suits, claims or actions related to the performance of this Agreement including, but not limited to, those arising out of any of the following: Page 17 of 36 20016287.14 a) Any injury to persons or property that may occur, or that may be alleged to have occurred, arising from the performance of the Project or implementation of this Agreement; or b) Any allegation that materials or services developed, provided or used for the Project infringe or violate any copyright, trademark, patent, trade secret, or any other intellectual-property or proprietary right of any third party. The Sponsor further agrees to defend any and all such actions, suits or claims and pay all charges of attorneys and all other costs and expenses of defenses as they are incurred. If any judgment is rendered, or settlement reached, against the TA or any of the other agencies or individuals enumerated above in any such action, the Sponsor will, at its expense, satisfy and discharge the same. This indemnification will survive termination or expiration of the Agreement. SECTION 8: Additional Terms Applicable to All Other Project Supplements for Operations The following additional terms apply to operational projects as described in each Project Supplement (Project). 8.1. Sponsor Oversight; Work Plan. Sponsor is responsible for the completion of the Scope of Work as described in each Project Supplement. Sponsor is responsible for procuring and administering any professional service and/or other contracts entered into in connection with the Scope of Work. Sponsor will oversee completion of the Scope of Work. Sponsor may appoint a designee or engage contractor(s) to perform work necessary for Scope of Work completion, but Sponsor remains responsible to the TA for the completion of the Scope of Work. 8.2. Required Approvals. Prior to commencement of the Scope of Work, Sponsor or its designee (e.g., a consultant) will obtain all applicable local, state and federal approvals and permits for the Scope of Work. In addition, Sponsor must comply with all applicable federal, state and local laws and regulations applicable to the Project. 8.3. Contract Award and Change Orders. Sponsor must comply with state and local agency requirements for the award of any contract(s) for the performance of the Scope of Work and any amendments. As the Scope of Work proceeds, Sponsor must advise the TA of any contracts awarded and amendments as part of the regular progress reporting requirements pursuant to Section 8.4 below. Notice of any contracts and amendments provided to the TA will not constitute approval by the TA of the contracts and amendments nor obligate the TA to provide funds in excess of its maximum contribution stated in the Project Supplement. 8.4. Progress Reports. For each of the projects in the Scope of Work, Sponsor will prepare and submit to the TA quarterly progress reports as the program proceeds and covering all Scope of Work activities for work completed during the previous month using the template in Exhibit B, or in other formats specified by the TA. The reports must describe: a) The current status of, and any changes in, scope, schedule, budget, and funding plans of the Scope of Work and the Project; Page 18 of 36 20016287.14 b) Any risk factors; c) The work performed during the previous quarter and projected for the next three months; d) Scope of Work Costs (as defined in Section 8.8, below) projected to be expended during the next three months; and e) Any other information requested by the TA. 8.5. Closeout. Within ninety (90) days of Sponsor’s final acceptance of the Scope of Work and all incidental work, Sponsor must notify the TA with a final closeout letter detailing the following and all other relevant information: Total costs for the Scope of Work, including an accounting of all Measures A/W expended in connection with the Scope of Work, and reflecting any unexpended Measure A/W Funds. 8.6. Funding Commitment. The TA allocates to Sponsor up to the amount specified in each Project Supplement related to the Scope of Work (Scope of Work Costs). Funds cannot be transferred between projects without separate approval from the TA. The TA Executive Officer, or designee, can approve funds transfers administratively with a letter. The TA’s funding commitment under this Agreement in no way establishes a right for Sponsor to receive additional funding from the TA. 8.7. Use of Funds. a) Measures A/W Funds must be used only for direct eligible costs to complete the Scope of Work. The Sponsor is responsible for demonstrating to the TA that the expenses incurred were necessary to deliver the Scope of Work. b) The following costs are not eligible for reimbursement: i. Sponsor’s costs which are unrelated to the Scope of Work; ii. Costs for entering into this Agreement; iii. Maintenance, rehabilitation, routine operations of the Project or other facilities or programs; and iv. Development of proposals, applications or agreements for Measure A, Measure W, or other funding programs. 8.8. Indemnity by Sponsor. Sponsor will indemnify, keep and save harmless the TA and its directors, officers, agents and employees against any and all suits, claims or actions related to the performance of the Scope of Work or the Project including, but not limited to, those arising out of any of the following: a) Any injury to persons or property that may occur, or that may be alleged to have occurred, arising from the performance of the Project or implementation of this Agreement; or Page 19 of 36 20016287.14 b) Any allegation that materials or services developed, provided or used for the Project infringe or violate any copyright, trademark, patent, trade secret, or any other intellectual-property or proprietary right of any third party. Sponsor further agrees to defend any and all such actions, suits or claims and pay all charges of attorneys and all other costs and expenses of defenses as they are incurred. If any judgment is rendered, or settlement reached, against the TA or any of the individuals enumerated above in any such action, Sponsor will, at its expense, satisfy and discharge the same. This indemnification will survive termination or expiration of the Agreement. SECTION 9: Miscellaneous 9.1. Access to Records and Record Retention. At all reasonable times, Sponsor will permit the TA access to all reports, designs, drawings, plans, specifications, schedules and other materials prepared, or in the process of being prepared, for each Scope of Work by Sponsor or any contractor or consultant of Sponsor. Sponsor will also make available to the TA upon request any professional service agreements, change orders and any other agreements that are related to each Scope of Work. Sponsor will provide copies of any documents described in this Section to the TA upon request. Sponsor will retain all records pertaining to each Scope of Work for at least three years after completion of each Project. 9.2. Audits. The TA, or its authorized agents, may, at any reasonable time during business hours, conduct an audit of Sponsor’s performance under this Agreement. Sponsor will permit the TA, or its authorized agents, to examine, inspect, make excerpts from, transcribe or photocopy books, documents, papers and other records of Sponsor which the TA reasonably determines to be relevant to this Agreement. Sponsor will transmit to the TA the Independent Auditor’s Report prepared for Sponsor’s Annual Comprehensive Financial Report within thirty (30) days of receipt by Sponsor and highlight the section that pertains to the Measures A/W Funds. 9.3. No Waiver. No waiver of any default or breach of any covenant of this Agreement by either Party will be implied from any omission by either Party to take action on account of such default if such default persists or is repeated. Express waivers are limited in scope and duration to their express provisions. Consent to one action does not imply consent to any future action. 9.4. Assignment. Parties are prohibited from assigning, transferring or otherwise substituting their interests or obligations under this Agreement without the written consent of all other Parties. 9.5. Governing Law. This Agreement is governed by the laws of the State of California as applied to contracts that are made and performed entirely in California. 9.6. Compliance with Laws. In performance of this Agreement, the Parties must comply with all applicable Federal, State and local laws, regulations and ordinances. 9.7. Accessibility of Services to Persons with Disabilities. The Project implementation must comply with, and not subject the TA or Sponsor to liability under, the Americans Page 20 of 36 20016287.14 with Disabilities Act, the California Disabled Persons Act, or any other state or federal laws protecting the rights of persons with disabilities. 9.8. Modifications. This Agreement may only be modified in a writing executed by both Parties. 9.9. Attorneys’ Fees. In the event legal proceedings are instituted to enforce any provision of this Agreement, the prevailing Party in said proceedings is entitled to its costs, including reasonable attorneys’ fees. 9.10. Relationship of the Parties. It is understood that this is an Agreement by and between Independent Contractors and does not create the relationship of agent, servant, employee, partnership, joint venture or association, or any other relationship other than that of Independent Contractor. 9.11. Ownership of Work. All reports, designs, drawings, plans, specifications, schedules, studies, memoranda, and other documents assembled for or prepared by or for, in the process of being assembled or prepared by or for, or furnished to Sponsor under this Agreement, are the joint property of the TA and Sponsor, and will not be destroyed without the prior written consent of the TA. The TA is entitled to copies and access to these materials during the progress of the Project and upon completion or termination of the Project or this Agreement. Sponsor may retain a copy of all material produced under this Agreement for its use in its general activities. This Section does not preclude additional shared ownership of work with other entities under contract with Sponsor for funding of the Project. 9.12. Non-discrimination. Sponsor and any contractors performing services on behalf of Sponsor will not discriminate or permit discrimination against any person or group of persons on the basis of race, color, religion, national origin or ancestry, age, sex, sexual orientation, marital status, pregnancy, childbirth or related conditions, medical condition, mental or physical disability or veteran’s status, or in any manner prohibited by federal, state or local laws. 9.13. Attribution to the TA. Sponsor must include attribution that indicates work was funded with “Measure A Funds” or “Measure W Funds” or “Measures A/W Funds from the TA." This provision applies to any project, or publication, that was funded in part or in whole by “Measure A Funds” or “Measure W Funds” or “Measures A/W Funds." Acceptable forms of attribution include TA branding on Project-related documents, construction signs, public information materials, and any other applicable documents. Sponsor must comply with the TA's External Attribution Guide which may be updated from time to time and will be available on the TA's website. 9.14. Warranty of Authority to Execute Agreement. Each Party to this Agreement represents and warrants that each person whose signature appears hereon is authorized and has the full authority to execute this Agreement on behalf of the entity that is a Party to this Agreement. 9.15. Severability. If any portion of this Agreement, or the application thereof, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining portions of this Agreement, or the application thereof, will remain in full force and effect. Page 21 of 36 20016287.14 9.16. Electronic Signatures. This Agreement may be executed through the use of digital or electronic signatures in accordance with Government Code Section 16.5. The presence of an electronic signature on this Agreement will be construed as the Parties’ consent to do business electronically. 9.17. Counterparts. This Agreement may be executed in counterparts. 9.18. Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to its subject matter and supersedes any prior or contemporaneous written or oral agreement between the Parties on the same subject. IN WITNESS WHEREOF, the Parties have hereunder subscribed their names as of the last date written below (Execution Date). [SPONSOR] By: Name: Its: Date: Approved as to Form: Legal Counsel for the [SPONSOR] Date: SAN MATEO COUNTY TRANSPORTATION AUTHORITY By: Name: April Chan Its: Executive Director Date: Approved as to Form: Legal Counsel for the TA Date: Exhibit A: Form of Project Supplements Exhibit B: Progress Reporting Template Exhibit C: Permissible Costs for Reimbursement Exhibit D: Reimbursement Claim Form Exhibit E: National Transit Database Reporting Requirements Exhibit F: Quarterly/Annual Shuttle Program Progress Report Form Page 22 of 36 20016287.14 Exhibit A: Form of Project Supplements SECTION A: Primary Agreement The San Mateo County Transportation Authority (TA) and [Project Sponsor] (Sponsor) entered into a Primary Grant Agreement on ________, 20__ (Primary Agreement). This Project Supplement is entered into on ________, 20__ pursuant to the Primary Grant Agreement and is subject to the terms set forth therein. SECTION B: Project Background Measure(s): ܆ Original Measure A ܆ New Measure A ܆ Measure W Program Category: Measure A Measure W տ Transit տ Highways տ Local Streets/Transportation տ Grade Separations տ Pedestrian and Bicycle ܆ Alternative Congestion Relief Programs տ Countywide Highway Congestion Improvements տ Local Safety, Pothole & Congestion Relief Improvements – Local Investment Share տ Local Safety, Pothole & Congestion Relief Improvements – Grade Separation տ Bicycle and Pedestrian Improvements տ Regional Transit Connections Program Subcategory (if applicable): Project: [Add project name] Scope of Work: [Specify phase(s)] Scope of Work Costs: [Specify amount programmed and allocated for each phase] TA Technical Assistance (if applicable): Date Funding Programmed: Date Funding Allocated: Page 23 of 36 20016287.14 Applicable Resolutions (attached): Additional Terms: The following Agreement Section(s) apply to this Project Supplement: ܆ Section 5 (Additional Terms Applicable to Sponsor-Performed Projects) ܆ Section 6 (Additional Terms Applicable to TA-Performed Projects) ܆ Section 7 (Additional Terms Applicable to Shuttle Operations) ܆ Section 8 (Additional Terms Applicable to All Other Project Supplements for Operations) SECTION C: Invoices; Payments [ALTERNATIVE CLAUSE TO AGREEMENT SECTION 5.10(a) – DELETE IF NOT APPLICABLE] Section 5.10(a) of the Agreement does not apply to this Project Supplement. Instead, the TA will make one upfront lump sum payment of $_______ to the Sponsor to complete the Scope of Work. SECTION D: Matching Funds Sponsor will contribute, or provide for the contribution of, the entire amount in excess of $________ needed to complete the Scope of Work [and must provide at least __% pro rata share of the Scope of Work Costs.] OR Sponsor agrees to contribute the matching funds to the TA in one upfront lump sum payment of $________ (Matching Funds) following Sponsor's approval of an invoice from TA describing the expenses to which the Matching Funds will be applied, subject to the following terms and conditions: TA agrees that the Matching Funds are to be expended solely for the Project and agrees to: (i) prioritize application of the Matching Funds to expenses under the Scope of Work with the objective of utilizing all of the Matching Funds not later than _________; (ii) promptly return to Sponsor any and all unspent Matching Funds upon termination of the Project Supplement, or, absent termination, that have not been expended for the Project by _________. SECTION E: Description of Scope of Work Sponsoring Agency: Lead/Implementing Agency: Contact: Page 24 of 36 20016287.14 Project Description and Scope of Work: Project Schedule: Begin End Project Budget/ Source of Funding: Include funding plan for the project defined above, including use of TA Technical Assistance if applicable * The other fund sources are provided for informational purposes. Operating Responsibility: Maintenance Responsibility: Project Implementation Responsibility: Project Oversight Responsibility: SECTION F: Third Party Roles 1. Third Party Roles. The [THIRD PARTY] is responsible for [LIST ALL RELEVANT RESPONSIBILITIES] for the Project. 2. Caltrans Roles. Caltrans as owner operator of the facility proposed for modification is responsible for reviewing and approving the [RELEVANT DOCUMENTS] for the Project. 3. Other Agreements. A Cooperative Agreement must be executed between Caltrans and the TA that lists the terms and conditions, roles and responsibilities and fee payment associated with Caltrans’ review and approval of the [RELEVANT DOCUMENTS]. SECTION G: Time of Performance 1. Time of Performance. The Scope of Work must be completed no later than the end of __ quarter, Fiscal Year 20__-20__ (the TA's fiscal year runs July 1 through June 30). 2. Timely Use of Funds. Sponsor must expend Measures A/W funds expeditiously. If Sponsor fails to invoice the TA for two consecutive quarters, the TA will require a meeting with Sponsor’s executive and Project staff to review project progress. A Project Supplement found to be non-compliant with this requirement may be terminated for default by the TA. Page 25 of 36 20016287.14 SECTION H: Notice Notices. All notices required or permitted to be given under this Agreement, be in writing and delivered by email to the addresses specified below. Notices will be deemed given when the email was sent. A recipient’s failure to acknowledge receipt of the emailed notice will not affect the effectiveness of notice if (a) the sender can show that the notice was properly addressed and sent by email, and (b) the sender did not receive any email system notification that the email could not be delivered. To TA: San Mateo County Transportation Authority 1250 San Carlos Avenue P.O. Box 3006 San Carlos, CA 94070-1306 Attn: TA Secretary and Executive Director Emails: To [Sponsor]: [Sponsor] ADDRESS LINE ONE ADDRESS LINE TWO Attn: Project Sponsor Contact TITLE Email: In 2025, the TA plans to relocate its administrative building to 166 N. Rollins Road in Millbrae, California and when that occurs, the TA’s address will be at that location. SECTION I: Insurance [The TA and Sponsor will determine what types and levels of insurance are required for each Project Supplement] The following types of insurance are required for this Project Supplement. See Section 6 of the Primary Agreement for additional requirements. Insurance Type Required Coverage Amount Workers’ Compensation and Employer’s Liability Insurance Yes Statutory limits for Workers’ Compensation and at least $1 million for Employers Liability. Commercial General Liability Insurance Yes [$1/5/10 million] x For all projects: $1M for Project Planning, Project Initiation, Project Approval & Environmental Design and Right of Way Phases and for operations. x For capital projects with budgets of up to $10M (e.g., road widening): $1M for Design and Construction Phases. x For capital projects with budgets between $10M and $40M (e.g., freeway interchange): $5M for Design and Page 26 of 36 20016287.14 Construction Phases. x For capital projects with budgets of $40M or more: $10M limits for Design and Construction Phases. Business Automobile Liability Insurance Yes [$1/5/10 million] x For all projects: $1M for Project Planning, Project Initiation, Project Approval & Environmental Design and Right of Way Phases. x For capital projects with budgets of up to $10M (e.g., road widening): $1M for Design and Construction Phases. x For capital projects with budgets between $10M and $40M (e.g., freeway interchange): $5M for Design and Construction Phases. x For capital projects with budgets of $40M or more: $10M limits for Design and Construction Phases. x For operations projects: $10M Property Insurance Yes Professional Liability Insurance [Yes/No] [$1/2/5 million] For most projects with professional liability exposure, such as consulting: At least $1 million For capital projects with some design: At least $2 million. For capital projects with significant design: At least $5M. Cyber Liability Insurance [Yes/No] If contract deals with Personally Identifiable Information (PII): At least $1 million and part of the Professional Liability Insurance program. Crime Insurance [Yes/No] If Entity’s employees have access to funds, securities and other property: At least $250,000 for Employee Dishonesty Insurance and $250,000 for Third-Party/Client Property. If Entity has access to significant funds, securities or other property: Limits should reflect cumulative exposure. Contractors’ Pollution Liability Insurance and/or Environmental [Yes/No] At least $1 million Page 27 of 36 20016287.14 Liability Insurance Railroad Protective Liability Insurance [Yes/No] At least $2 million per occurrence and $6 million annual aggregate IN WITNESS WHEREOF, the Parties have hereunder subscribed their names as of the last date written below. [SPONSOR] By: Name: Its: Date: Approved as to Form: Legal Counsel for the [SPONSOR] Date: SAN MATEO COUNTY TRANSPORTATION AUTHORITY By: Name: April Chan Its: Executive Director Date: Approved as to Form: Legal Counsel for the TA Date: Page 28 of 36 20016287.14 Page 29 of 36 20016287.14 Exhibit B: Progress Reporting Template REPORTING PERIOD: FROM mm/dd/yyyy TO mm/dd/yyyy SMCTA Project # 00XXX – [Project Title/Phases] [Carryover to additional pages as necessary] Contact: [Name, Title, Phone, email, address] 1) Scope: [Describe Scope of Work here, specify Project limits, phases of Project. Identify the [Original Measure A and/or New Measure A and/or Measure W] funded components] Status Summary: [Provide Status] Issues: [List any issues, i.e. potential scope changes] ____________________________________________________________________________ 2) Schedule: Original Baseline Current Baseline Current Forecast Major Milestones: Start Finish Start Finish Start Finish [Activity] MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY [Activity] MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY [Activity] MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY [Activity] MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY Progress This Reporting Period: [Describe progress and activities] [Original Measure A and/or New Measure A and/or Measure W] Funds Expended This Reporting Period: $ Future Activities, Next Reporting Period: [Describe planned future activities] Projected [Original Measure A and/or New Measure A and/or Measure W] Funds Expenditure Next Reporting Period: $ Issues: [List any issues, such as impacts to schedule] Page 30 of 36 20016287.14 _______________________________________________________________________ 3) Scope of Work Total Budget: ____________________________________________________________________________ 4) Scope of Work [Original Measure A and/or New Measure A and/or Measure W] Budget: Phase/Activity A B C D E F Original allocation (per Project Supplement) Current allocation (Per Amendments) Change in allocation from Project Supplement (B-A) Total Measure [A/W] Expended to date % of current allocation expended (D/B) % of Work Completed #DIV/0! #DIV/0! #DIV/0! Total Scope of Work $0 $0 $0 $0 #DIV/0! Issues: [List any issues, i.e. potential cost increases] ____________________________________________________________________________ 5) Funding: [List additional sources as needed, Fill out the following matrix for each phase for the Scope of Work. i.e. environmental, design, etc.] Issues: [List any issues such as changes in non-Measure [A/W] funding] Submit Progress Reports To: invoices@smcta.com or SMCTA Planning & Development 1250 San Carlos Avenue San Carlos, CA 94070 1 1 In 2025, the TA plans to relocate its administrative building to 166 N. Rollins Road in Millbrae, California and when that occurs, the TA’s address will be at that location. ABCDEF Phase/Activity Original Budget (per Funding Agreement) Updated Cost Estimate Total Change from Approved (B-A) Total Expended to Date % of Revised Budget Expended (D/B) % of Work Completed - 0.00% 0.00% - 0.00% 0.00% - 0.00% 0.00% Total Project - - - - #DIV/0! Original Original % Current Current % Estimated at Completion EAC % SMCTA #DIV/0! #DIV/0! #DIV/0! Others: Federal (specify) #DIV/0! #DIV/0! #DIV/0! State (specify)#DIV/0! Other (specify) Total - #DIV/0! - #DIV/0! - #DIV/0! Contribution Contribution Contribution Page 31 of 36 20016287.14 Exhibit C: Eligible Costs for Reimbursement Program / Promotions – activities pertaining to marketing/promotional programs detailed in the Scope of Work. Planning – activities necessary to implement planning studies covered under the Scope of Work. Project Initiation Documents (PID) – activities necessary to complete PIDs covered under the Scope of Work. Environmental Studies – environmental studies costs, including determination of the appropriate environmental document, preparation of all preliminary engineering for each alternative, including geomantic layouts, determination of right-of-way needs, environmental technical studies (such as air, noise, energy, cultural resources and hazardous waste), and all other studies or activities necessary to prepare and finalize the appropriate documents for Project and environmental approval. Design – design activities such as preparation of design studies; materials and foundation reports; drainage, hydrology and hydraulic reports; surveying and mapping; preparation of the plans, specifications and estimate; preparation of bid documents and Project files; preparation of permit applications and maintenance agreements; coordination of agency reviews and any other activities necessary to prepare final plans specifications and estimate (PS&E) for bid advertisement and award; and management oversight of these tasks except as limited in the Agreement. Right-of-Way Acquisition – all activities related to right-of-way including determination of right- of-way needs; title searches; preparation of appraisal maps, legal descriptions and plat maps; parcel appraisals and appraisal reviews; hazardous materials testing and analysis; preparation of right-of-way acquisition documents; activities involved with acquiring rights-of-way including negotiation with property owners and cost associated with condemnation proceedings (including legal costs, expert witness costs, etc., but not including costs related to claims for inverse condemnation), right-of-way capital costs and cost-to-cure impacts related to the acquisition. To the extent allowed by law, Sponsor will undertake all best efforts so that cleanup of existing hazardous materials will remain the liability of the property owner. Services provided for right-of-way activities involved with property not necessary for the Measure A or Measure W Highway Program-funded Project as defined in the Scope of Work, and the associated costs for all such property, will be at the sole expense of the Sponsor. Any property not used for construction of the Project, or used for any purpose other than construction of the Project as defined in the Scope of Work, should be identified and the funding agencies should be informed. Any excess right-of-way will be identified as early as possible in the Project design process and sold. The proceeds from the sale of such property must be returned to the funding agencies, prorated based on the percentage of funds each agency contributed to the purchase of the property. Construction – construction expenditures for the Project (construction capital, management and inspection, surveys, public outreach, and related activities) that are part of the Scope of Work agreed to by the TA. Sponsor must submit all change orders over $50,000 to the TA for Page 32 of 36 20016287.14 review and written approval before the TA will reimburse the Sponsor with Measure A Funds or Measure W Funds. In addition, Measures A and W Funds are eligible for reimbursement of Sponsor’s Project management oversight expenses associated with the construction of the Project. This would include activities such as construction management inspection, expenses associated with reviewing proposed change orders, and activities involved with submitting final costs to the appropriate agencies to secure other leveraged funds. Expenditure of Measure A and Measure W Funds remains subject to the limits set forth in the Agreement. The Sponsor may include additional work beyond the Scope of Work for the Project at its own expense. The TA will require these costs to be segregated from the other item work expenses and paid for with non-Measure A or Measure W Highway Program funds. Miscellaneous – fees from other agencies, including permit fees or reimbursement for review or oversight costs needed for the Project are eligible costs. However, the cost of permits or fees from the Project Sponsor will not be eligible. Utility relocation costs are eligible for reimbursement according to previous agreements establishing rights for those utilities. The costs for specialized equipment for testing, analysis or production of documents for Project- related work are also eligible. Page 33 of 36 20016287.14 Exhibit D: Reimbursement Claim Form Page 34 of 36 20016287.14 Exhibit E: National Transit Database Reporting Requirements The NTD was established by Congress to be the Nation’s primary source for information and statistics on the transit systems of the United States. Recipients or beneficiaries of grants from the Federal Transit Administration (FTA) under the Urbanized Area Formula Program (§5307) or Other than Urbanized Area (Rural) Formula Program (§5311) are required by statute to submit data to the NTD. Over 660 transit providers in urbanized areas currently report to the NTD through the Internet-based reporting system. Each year, NTD performance data is used to apportion over $5 billion of FTA funds to transit agencies in urbanized areas (UZAs). Annual NTD reports are submitted to Congress summarizing transit service and safety data. Below is a partial list of reported elements that may change at any time. For additional information, please go to the National Transit Database website at: https://www.transit.dot.gov/ntd. a) Deadhead (Miles/Hours): The miles and hours that a vehicle travels when out of revenue service. i) Deadhead includes: 1) Leaving or returning to the garage or yard facility; 2) Changing routes; 3) When there is no expectation of carrying revenue passengers; ii) However, deadhead does not include: 1) Charter service; 2) School bus service; 3) Operator training; 4) Maintenance training; b) Fuel Consumed: The quantity of fuel consumed for the service (by fuel type); c) Mechanical System Failure - Major: A failure of some mechanical element of the revenue vehicle that prevents the vehicle from completing a scheduled revenue trip or from starting the next scheduled revenue trip because actual movement is limited or because of safety concerns; d) Mechanical System Failure - Other: A failure of some other mechanical element of the revenue vehicle that, because of local agency policy, prevents the revenue vehicle from completing a scheduled revenue trip or from starting the next scheduled revenue trip even though the vehicle is physically able to continue in revenue service. Any mechanical problem that delayed service more than five minutes, even if no Road Call was required; e) Passenger Miles Traveled (PMT): The cumulative sum of the distances ridden by each passenger; f) Reportable Incident: A safety or security incident occurring on transit property or otherwise affecting revenue service that results in one or more of the following conditions: i) A fatality confirmed within 30 days of the incident; ii) An injury requiring immediate medical attention away from the scene for one or more persons; Page 35 of 36 20016287.14 iii) Property damage equal to or exceeding $25,000; iv) An evacuation for life safety reasons; or v) A mainline derailment. g) Revenue Service (Miles, Hours, and Trips): The time when a vehicle is available to the general public and there is an expectation of carrying passengers. Vehicles operated in fare free service are considered in revenue service. i) Revenue service includes: 1) Layover / recovery time. ii) Revenue service excludes: 1) Deadhead 2) Vehicle maintenance testing 3) School bus service, and 4) Charter service. h) Total Service (Miles or Hours): The time or miles from when a transit vehicle starts (pull-out) from a garage to go into revenue service to the time or miles it returns to the garage (pull-in) after completing its revenue service. i) Since total service covers the time or miles between: 1) Pullout; and 2) Pull-in; ii) It therefore includes both: 1) Deadhead; and 2) Revenue service; i) Unlinked Passenger Trips (UPT): The number of passengers who board public transportation vehicles. Passengers are counted each time they board vehicles no matter how many vehicles they use to travel from their origin to their destination. Page 36 of 36 20016287.14 Exhibit F: Quarterly/Annual Shuttle Program Progress Report Form 1 STAFF REPORT AGENDA NO: 9f MEETING DATE: January 21, 2025 To: Honorable Mayor and City Council Date: January 21, 2025 From: Syed Murtuza, Director of Public Works – (650) 558-7230 Weizhi Cheng, Associate Engineer – (650) 558-7258 Subject: Adoption of a Resolution Approving a $297,848 Professional Services Agreement with Thirkettle Corporation dba Aqua-Metric Sales Company for the Advanced Meter Infrastructure Upgrade and Customer Engagement Project, City Project No. 86700, and Authorizing the City Manager to Execute the Agreement RECOMMENDATION Staff recommends that the City Council adopt the attached resolution approving a professional services agreement with Thirkettle Corporation dba Aqua-Metric Sales Company for work related to the Advanced Metering Infrastructure (AMI) Upgrade and Customer Engagement Project in the amount of $297,848 and authorizing the City Manager to execute the agreement. BACKGROUND The City of Burlingame supplies potable water to the City’s residences and businesses through approximately 9,280 water service connections. The meters are read bimonthly using an existing Advanced Meter Reading (AMR) drive-by system from Sensus. Staff drives a vehicle around the city every other month, and the system picks up reads locally via radio signal emitted by endpoint, which is a device that transmits the meter register read to the drive-by vehicle. Approximately 98 percent of Burlingame’s meters have been installed with endpoint technology, which is now being discontinued. New service installations or failed existing units are being replaced with the latest Sensus AMI-compatible endpoint technology. DISCUSSION The City will replace the outdated AMR system with the latest AMI technology. The AMI system will include two radio base stations to achieve 100% signal coverage within the City’s water service area. Each AMI endpoint transmits hourly water meter reads via the base stations to an AMI server from which hourly water consumption data can be provided to customers and be used for billing and for water system operations. The AMI system will reduce staff time for meter data collection, improve billing operation efficiency, reduce water demands by proactively alerting customers of potential leaks or high-water usage, reduce energy consumption and greenhouse gas emissions, improve operational efficiency, as well as engage with customers and encourage conservation through an AMI-powered customer engagement portal to be implemented after the implementation Resolution Approving Professional Services Agreement with Thirkettle Corporation dba Aqua-Metric Sales Company for the AMI Project January 21, 2025 2 of the AMI system. Many Bay Area Water suppliers, such as Foster City, Hillsborough, Menlo Park, Palo Alto, Redwood City, San Bruno, the California Water Service, and the Mid-Peninsula Water District have already implemented or in the process of implementing AMI systems. In 2022, the City conducted a study to identify a suitable AMI technology to replace the outdated AMR endpoints. Six AMI technology suppliers were included in the study, and Sensus was recommended due to its compatibility with the City’s existing Sensus water meters, private FCC licensed radio network, water meter box compatibility, billing system computability, and superior network design and maintenance features. The study also identified external grant funding opportunities and implementation scenarios due to limited funding and constraints. In January 2024, the State awarded the City $1,009,232 for the AMI Project via a competitive grant program under the Integrated Regional Water Management Program (IRWM). Based on the available grant funding, the City issued an RFP on August 7, 2024, to a list of qualified AMI vendors for the implementation of Sensus FlexNet AMI network infrastructure and related system integration work. (Upon completion of the AMI network and billing integration work, the City’s internal staff will then follow up separately to install the AMI endpoints.) The City received one proposal from a qualified firm, the sole representative of Sensus technology in Northern California. After a comprehensive review, Thirkettle Corporation dba Aqua-Metric Sales Company was selected for this project due to their expertise in Sensus AMI technology, their high understanding of the overall project, and quality of their proposal. Staff negotiated the scope of professional services for the project with Thirkettle Corporation dba Aqua-Metric Sales Company in the amount of $297,848. The following is a brief outline of the scope of services, which is described in detail in Exhibit A of the Professional Services Agreement. • AMI Implementation o Procurement of the AMI network and software o AMI system planning and design in collaboration with the City • Design, installation, and acceptance of the AMI Network • Installation, configuration, integration, and training of the AMI software o Sensus FlexNet RNI o Sensus Analytics MDMS o Sensus FieldLogic Tools • Project Closeout The project is anticipated to begin in spring 2025 and be completed in approximately one year. FISCAL IMPACT The following is the estimated expenditures pertaining to the project development. Professional Services $ 297,848 Contingency (15%) $44,677 Engineering Design & Administration $40,925 Total $383,450 Resolution Approving Professional Services Agreement with Thirkettle Corporation dba Aqua-Metric Sales Company for the AMI Project January 21, 2025 3 There is adequate funding available in the FY24-25 Water Capital Improvement Program to complete the project. The cost of the project will be reimbursed by the IRWM Grant. Exhibits: • Resolution • Professional Services Agreement RESOLUTION NO. _______ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH THIRKETTLE CORPORATION DBA AQUA-METRIC SALES COMPANY FOR THE ADVANCED METER INFRASTRUCTURE UPGRADE AND CUSTOMER ENGAGEMENT PROJECT, AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT CITY PROJECT NO. 86700 WHEREAS, the City of Burlingame supplies potable water to the City’s residences and businesses through approximately 9,280 water service connections, and the meters are read bimonthly using an existing Advanced Meter Reading (AMR) drive-by system from Sensus; and WHEREAS, the City wishes to replace the outdated AMR system with the latest AMI technology, and Thirkettle Corporation dba Aqua-Metric Sales Company was selected for this project due to their expertise in Sensus AMI technology, their high understanding of the overall project, and quality of their proposal; and WHEREAS, on August 27, 2024, staff issued a “Request for Proposals” to a list of qualified AMI vendors for the implementation of Sensus FlexNet AMI network infrastructure and related system integration work; and WHEREAS, Staff negotiated the scope of professional services for the project with Thirkettle Corporation dba Aqua-Metric Sales Company in the amount of $297,848; and WHEREAS, there is adequate funding available in the FY24-25 Water Capital Improvement Program to complete the project. NOW, THEREFORE, BE IT 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 Professional Services Agreement cited in the title above. 2. The City Manager is authorized to sign said Agreement, in the form attached hereto, on behalf of the City of Burlingame. 3. The City Clerk is instructed to attest such signature. _____________________________ Peter Stevenson, 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 21st day of January, 2025, and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: _____________________________ Meaghan Hassel Shearer, City Clerk Page 1 of 8 AGREEMENT FOR PROFESSIONAL SERVICES WITH THIRKETTLE CORPORATION DBA AQUA-METRIC SALES COMPANY FOR ADVANCED METERING INFRASTRUCTURE (AMI) UPGRADE AND CUSTOMER ENGAGEMENT PROGRAM CITY PROJECT NO. 86700 THIS AGREEMENT is entered into this ___________ day of ____________, 2024, by and between the City of Burlingame, State of California, herein called the "City", and Thirkettle Corporation dba Aqua-Metric Sales Company engaged in providing the services herein called the "Consultant". RECITALS A. The City is considering for consultant to provide AMI water metering system network implementation services to assist the City with the Advanced Metering Infrastructure (AMI) Upgrade and Customer Engagement Program (Project), City Project No. 86700. B. The City desires to engage Consultant to perform the desired work, described in the exhibit(s) hereto. In the event of a conflict in terms between the documents affixed hereto, the terms and conditions of this Agreement shall prevail. C. The Consultant represents and affirms that it is qualified and willing to perform the desired work pursuant to this Agreement. AGREEMENTS NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: 1. Scope of Services. The Consultant shall provide professional AMI network implementation services such as procurement of AMI network and software, AMI system planning and design, installation, configuration, integration and training of AMI software, and as detailed in “Scope of Services” of the attached Exhibit A of this agreement. 2. Time of Performance. The services of the Consultant are to commence upon the execution of this Agreement with completion of all work estimated by December 31, 2027. Page 2 of 8 3. Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to City that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. Consultant shall maintain a City of Burlingame business license. 4. Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 5. Information/Report Handling. All documents furnished to Consultant by the City and all reports and supportive data prepared by the Consultant under this Agreement are the City's property and shall be delivered to the City upon the completion of Consultant's services or at the City's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the City to the public, and the Consultant shall not make any of these documents or information available to any individual or organization not employed by the Consultant or the City without the written consent of the City before such release. The City acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and City's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at City's risk, unless Consultant expressly consents to such use in writing. City further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant. 6. Compensation. Compensation for Consultant's services shall not exceed $297,848; and payment shall be made within thirty (30) days of the date on Consultant’s invoice and in accordance with applicable California Public Contract Code; however, the policy shall not apply to payments withheld by City in the event: (a) there is a bona fide dispute between City and Consultant concerning the goods, supplies, materials, equipment delivered, or the services performed, that causes the payment to be late; or (b) the payment application is not mailed or invoiced to City in accordance with Agreement. City shall provide Consultant with written notice of a disputed invoice within thirty (30) days from the date of receiving the Page 3 of 8 invoice. If City has not furnished such notice, Consultant may consider the invoice accepted and ready for payment. 7. Availability of Records. Consultant shall maintain the records supporting this billing for not less than three (3) years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the City at the Consultant's offices during business hours upon written request of the City. 8. Project Manager. The Project Manager for the Consultant for the work under this Agreement shall be Jeff Brockman. 9. Assignability and Subcontracting. The services to be performed under this Agreement are unique and personal to the Consultant. No portion of these services shall be assigned or subcontracted without the written consent of the City. 10. Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: To City: Weizhi Cheng, PE, Associate Engineer City of Burlingame 501 Primrose Road Burlingame, CA 94010 To Consultant: Tommy Thirkettle or Chris Newville Aqua-Metric Sales Company 4050 Flat Rock Drive Riverside, CA 92505 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to City. 11. Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the City. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to City employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Page 4 of 8 Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by Consultant or is based on allegations of Consultant's negligent performance or wrongdoing. 12. Conflict of Interest. Consultant understands that its professional responsibilities is solely to the City. The Consultant has and shall not obtain any holding or interest within the City of Burlingame. Consultant has no business holdings or agreements with any individual member of the Staff or management of the City or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the City in the subject of this Agreement, and it shall immediately disassociate itself from such an interest should it discover it has done so and shall, at the City’s sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify City of this employment relationship, and shall, at the City’s sole discretion, sever any such employment relationship. 13. Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. 14. Insurance. A. Minimum Scope of Insurance: i. Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm to an amount not less than: One million dollars Page 5 of 8 ($1,000,000) combined single limit per occurrence and two million dollars ($2,000,000) aggregate for bodily injury, personal injury and property damage in a form at least as broad as ISO Occurrence Form CG 0001. ii. Consultant agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. iii. Consultant agrees to have and maintain, for the duration of the contract, professional liability insurance in amounts not less than two million dollars ($2,000,000) each claim/aggregate sufficient to insure Consultant for professional errors or omissions in the performance of the particular scope of work under this agreement. iv. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. B. General and Automobile Liability Policies: i. The City, its officers, officials, employees and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of Consultant, premises owned or used by the Consultant. The endorsement providing this additional insured coverage shall be equal to or broader than ISO Form CG 20 10 11 85 and must cover joint negligence, completed operations, and the acts of subcontractors. This requirement does not apply to the professional liability insurance required for professional errors and omissions. ii. The Consultant's insurance coverage shall be endorsed to be primary insurance as respects the City, its officers, officials, Page 6 of 8 employees and volunteers. Any insurance or self-insurances maintained by the City, its officers, officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. iv. The Consultant's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. C. Workers' Compensation and Employers Liability Coverage: i. In addition to these policies, Consultant shall have and maintain Workers' Compensation insurance as required by California law. Further, Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees. ii. The insurer shall agree to waive all rights of subrogation against the City of Burlingame, its officers, officials, employees, or volunteers for losses arising from work performed by the Company for the City of Burlingame. D. All Coverages: Each insurance policy required in this item shall be endorsed to state that coverage shall not be canceled except after thirty (30) days' prior written notice by mail, has been given to the City (10 days for non-payment of premium). Current certification of such insurance shall be kept on file at all times during the term of this agreement with the City Clerk. E. Acceptability of Insurers: Insurance is to be placed with insurers with a Best's rating of no less than A-:VII and authorized to do business in the State of California. F. Verification of Coverage: Upon execution of this Agreement, Contractor shall furnish the City with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person Page 7 of 8 authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on forms approved by the City. All certificates and endorsements are to be received and approved by the City before any work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 15. Indemnification. To the fullest extent permitted by law, Consultant shall save, keep and hold harmless indemnify and defend the City, its officers, employees, authorized agents and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity, including but not limited to attorneys’ fees, that may at any time arise, result from, relate to, or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Consultant, or any of the Consultant’s officers, employees, or agents or any subconsultant. This provision shall not apply if the damage or injury is caused by the sole negligence, active negligence, or willful misconduct of the City, its officers, agents, employees, or volunteers. 16. Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 17. Governing Law. This Agreement, regardless of where executed, shall be governed by and construed under the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of San Mateo. 18. Termination of Agreement. The City and the Consultant shall have the right to terminate this agreement with cause by giving not less than forty-five (45) days written notice of termination. In the event of termination, the Consultant shall deliver to the City all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, City shall pay Consultant for all work completed or goods delivered through the date of termination. 19. Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the City and the Consultant. Page 8 of 8 20. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the Agreement between the City and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. IN WITNESS WHEREOF, the City and Consultant have executed this Agreement as of the date indicated on page one (1). City of Burlingame “Consultant” By Lisa K. 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' $"#$%$(!"!!% • (#--/#-#(.# #.)"0*).(.#&#'*..)."-3-.'5(-/-)*(-(#(#(..#%.('(!- .".#%..",)/!",-)&/.#)(8 •(!('#(.#(."*, ),'() ."-,0,(*, ),'(3"(!),)( #!/,.#)(.)."-,0,5 #(),(.)."-.(,)( #!/,.#)(("(!'(!'(.*)&##-(*,)/,-8 •(!('#(.#(."-,0,-.),!*#.3(*, ),'() .".),!,.1),%AB0#- ..".)."-,0,-5#(),(.)."-.(,)( #!/,.#)(("(!'(!'(.*)&##-( *,)/,-8 •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' $"#$%$(!"!!% ! •#,-.()(&3 *,)0#,#(.,(.#)(&&3,.# ##(3,-/,#.38 •,#)#*(.,.#)(.-.#(!A8!85*#=P),#,"B8 •*,)0#-,&=.#' #,1&&5&)!5( < ')(#.),#(!8 • (.,/-#)(,0(.#)(3-.'< (.,/-#)(..#)(3-.'A < B •)(#.),."*"3-#&(3,-/,#.3) ."-,0,("(-3-.'KM<P.)(-/,-3-.'#-"#!"&3 -/,#(),(1#." -/,#.3-.(,-8 •, ),'.#0#(.,/-#)(*,0(.#)((..#)() .".(.,(.1),%( #,1&&-5(')(#.),-&)!- (&,.-8 •)(/.*,#)*(.,.#)(.-.#(!) ."(.1),%(.(., #&#.#-8 •)(/.')(."&30/&(,#&#.3-((#(!)."#(.,(&(2.,(&.)."(0#,)('(.8 •, ),'(.#0#,/-('&1,*."'(!'(.)(&&-3-.'-8 •(-/--"&&#(-.&&/*.-.)0#,/-*,)..#)(-) .1,(,&. #&-A#(&/#(!0#,/--#!(./, #&-( -#'#&, #&-B)(&&-,0,- ,)'."/*..".#-!(,&&30#&& ,)'."(.#0#,/--) .1,*,)0#,8 •-*)(.)(3*).(.#&.",. )/()(."-3-.'(1),%.)&#'#(.0#,/-),'&1, )/(8 •(-/-.#0&3*,.##*.-#((')(#.),-#(/-.,3,!/&.#)(-(-.(,-,!,#(!-/,#.3.",)/!"." #.(-/-/,#.3.'8 Page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age 40 This propagation study is based on actual information provided by the utility pertaining to meter type, Smart point Location,potential antennae height on structure, structure height, and structure location. Any changes, deletions and/or additions that are not provided to the design engineers during the creation of this design may result in a study that does not correlate to actual field conditions.FlexNet DesignPropagation Analysis 14708 - BURLINGAME CITY OF-AMBurlingame, CADesign FactorsFlex Net Version: V1Endpoint Type: WaterSmart point Location: Pitset Above-LidProposed Site DetailsTotal Site Locations: 2Total Base station Counts: 2 M400B2 = 2RF Engineer: Cameron SissonDate: 9/18/2024LEGENDSite LocationEndpoint Location2 Way Coverage1 Way Coverage&21),'(17,$/Page 41 FlexNet DesignBase station and Endpoint LocationsThis propagation study is based on actual information provided by the utility pertaining to meter type, Smart point Location,potential antennae height on structure, structure height, and structure location. Any changes, deletions and/or additions that are not provided to the design engineers during the creation of this design may result in a study that does not correlate to actual field conditions.LEGENDSite LocationEndpoint Location&21),'(17,$/Page 42 FlexNet DesignBase station and ClutterThis propagation study is based on actual information provided by the utility pertaining to meter type, Smart point Location,potential antennae height on structure, structure height, and structure location. Any changes, deletions and/or additions that are not provided to the design engineers during the creation of this design may result in a study that does not correlate to actual field conditions.LEGENDSite Location&21),'(17,$/Page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age 44 %"!$&$ !%" "! 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• ("&)*,.#)( •,)*,)/'(..#)() "(!=)/.#( ),'.#)(.)-/**),. • .3C/,#.3 •/&#.3/#.-) #(-.&&.#)(- •',.)#(.#(-.&&.#)((.#0.#)( •,# #.#)() ',.)#(..#0.#)( •,)/&-")).#(!',.)#(. --/- .*1)>J<K.)J370,0#1(-/-&2.((&3.#- (."#( ,-.,/./,#-#(-.&&(."-3-.'"-.&-..1)1%-) . ),-'*&#(!) '.,-511#&& "0)0,0#1.,#(#(!.".*,)0#-)(=")/,)0,0#1) ."-3-.'1#."(#.#)(&.1)=")/,---#)( ), #&&#(!*,-)((&8 0,0#1A #&(#&&#(!*,-)((&>J",8B •(-/-&2.,"#../,()'*)((.- •#&.#0.#)(>)0,0#1) #&.#0.#)( •&2.,)&-(,-*)(-##&#.#- •0#(!,0,0#1A-5.,5(&.,#B •(-/-(&3.#-0,0#1 .#&-A )/-)(#&&#(!>#.#)(&K",-8B •#&&#(!-./*(#(.!,.#)( •0#(!,*,#0>-")1#( ),'.#)((.,)/&-")).8 •(-/-(&3.#-., (-#!".>&))%.*, ),'() ."3-.'8 •(-/-(&3.#-#&&#(!0,0#1>-")1#(.!,.#)(.)*,)0#,-#(-)(-8 •&2.((-/-(&3.#-&,'- •(-/-(&3.#-*),.-->!..#(!.)/..)(-1,+/-.#)(-8 .*",>J372*()(3-.'*#&#.#- #.#)(& ),'&.,#(#(!#-*,)0#)(."(-/-&2.-3-.'5#(&/#(!'#(#-.,.#)( /(.#)(-8"- ---#)(-*,)0#*,#0#(.)."-3-.'9-*#&#.#-8"#-.,#(#(!1#&&)/,.1).).",')(."-#(.)." *,)$..)2*(."%()1&!(*#.#-) /.#&#.3*,-)((&()1.".."3, '#&#,#41#."."(-/- &2.8 Page 46 %"!$&$ !%" "! ' $"#$%$(!"!!% .*)/,>K.)L3-7#.#)(&,#(#(!/**),. /,#(!."(2. 1')(."-) ."*,)$..",1#&&)(=-#.0#-#.-),1=-.,#(#(! ),!,)/*-),#(#0#/&- .)(-1,+/-.#)(-(*,)0##.#)(&-/**),.(.,#(#(!-(8 .*#0>J<K37,)$.&)-)/.,#(#(! ,)$.&)-=)/..,#(#(!(.,(-#.#)(#(!) ."*,)$..)."-/**),..'1#&&)/,)(&&'.,-"0( #(-.&&8 Page 47 %"!$&$ !%" "! ' $"#$%$(!"!!% $ 7 **" %$$!$ $##""$)) # &%!% %$ ##%* &%$ Page 49 Network Communications System Redefining Intelligent Utility Communications Page 50 Technology that takes you from today to tomorrow. Page 51 FlexNet™ – Technology you can trust FlexNet is a robust, high-powered solution based on open standards. It gives electric, gas and water utilities a communications network that is designed and built specifically for smart grid applications. Working with smart meters, FlexNet provides utilities a dedicated and secure two-way communications highway over which to transmit and receive customer usage data – the hallmark of Advanced Metering Infrastructure (AMI) solutions. Utilities can more effectively monitor and manage the distribution and use of electricity, water or gas. With automatic delivery and analysis of consumption data, utilities are able to match supply with consumer demand, resulting in much better utilization of resources with the least amount of waste. Customers can be billed based on actual usage patterns and be encouraged to use resources more wisely. They can receive early notification of water or gas leaks, tampering, equipment problems or outages. With these advantages and more, Sensus is redefining the standard for utility AMI. In the FlexNet environment, smart meters communicate data throughout the day – such as electric power consumed from the grid and returned to the grid by customers who generate alternative energy – or water leaks in a home or business. In-home devices inform customers of their energy or water usage patterns. Utilities gain new visibility through infrastructure monitors that can sense trouble conditions and trigger an alert to the need for corrective action. Customers are empowered to participate in demand response programs that save them money while conserving resources. A Dedicated and Protected Communications Highway Reliable, secure and cost-effective. Unlike other utility networks that operate on costly power line infrastructures or low-powered, shared radio frequencies, FlexNet uses primary use radio spectrum, protected by law from interference and bundled into the network solution. This strategy presents essential advantages that other systems cannot offer. No frequency sharing, no interference, no problems – period. While other systems fight interference and signal noise in shared bands, FlexNet transmits with a clarity and security that is protected by federal law. The highest signal power and range in the industry. FlexNet wireless devices can transmit at up to two watts, potentially 10 to 100 times more power than devices on unlicensed spectrum. High signal power and low noise combine to significantly extend network reach. Instead of a fraction of a mile between endpoints, a FlexNet network can transmit up to 40 miles from point to point. A simpler, more manageable infrastructure. One tower gateway can cover 30 to 300 square miles, depending on population density and terrain. In hard-to-reach areas, smart meters can pass along data for each other. That means less equipment to buy, deploy and operate. More reliable communications. FlexNet’s dedicated highway for data transmission makes communication more reliable than other systems that require channel hopping over radio frequencies. Cost-effective, rapid build-out. FlexNet systems have access to more than 4,000 tower sites covering more than 90 percent of the U.S. population. The tower- based architecture can be quickly deployed without concern for easement and access issues. And because FlexNet transmits stronger over a wider signal area, initial infrastructure build-out and ongoing maintenance costs are reduced. Multilayered security to protect data privacy and integrity. Federal law prohibits infringement on licensed spectrum. On top of that, the FlexNet system adds multiple layers of built-in security, from strong AES-256 encryption to multilevel authentication, access controls and more for premium protection. With less traffic to interfere with communication, data is transmitted more securely. Meeting utility needs today and tomorrow. FlexNet gives gas, water and electric utilities the ability to add functionality to keep up with utility growth. Demand response, distribution automation, home area network and new applications can easily be incorporated into a utility’s operations over the FlexNet network, a future-proof investment. Conserve capital while maintaining flexibility and ensuring scalability, whether you want to serve a few thousand homes or a few million. Page 52 Sensus Smart Meters at customer premises communicate consumption, status and diagnostic data to the FlexNet network for monitoring and billing purposes. Energy meters also accept control instruc- tions and software upgrades from the utility to intelligently manage consumption and remotely upgrade features and services. Wireless communication between meters and towers is securely carried on licensed radio spectrum for distances of up to 40 miles, depending on the environment. Sensus Tower Gateway Base Stations (TGBs) installed on existing towers (50–600 feet tall) communicate with SmartPoint meters and with the Regional Network Interface (RNI). Backhaul communication between towers and the utility data center can be wireless, wired or satellite, whichever best suits the utility’s business case. Sensus Regional Network Interface (RNI) servers at the utility’s data center manage network communications and data storage and processing. Sensus FlexWare software provides an intuitive, Web-based interface to manage the system and its data. The Sensus FlexServer Web-based portal enhances utility monitoring and manage- ment, expands consumer participation and improves public outreach. FlexNet™ – Technology that delivers • The highest data transmission power in the industry • No interference from other broadcasters • Blanket coverage of your entire area • Maximum range, reliability and security • Minimal infrastructure for flexible and rapid build-out • Robust, direct, secure communications Sensus is redefining the standard for utility AMI systems. Page 53 FlexNet™ – Technology without limits FlexNet gives water utilities an acoustic leak detection solution that saves not only valuable natural resources but also lost revenue due to leaks in utility lines. FlexNet SmartPoint M2 series transceivers offer water utilities two-way, fully migratable, AMR-to-AMI solutions and unprecedented freedom to expand and modify system capabilities without having to replace or revisit meters and equipment. Smart utilities are using FlexNet data capabilities to inform and interact with customers and promote good conservation practices. The Sensus Smart Grid solution provides electric utilities with a standards- based, secure, dedicated, two-way, long-range wireless data communications network that will future-proof their AMI investment. Electric utilities of all sizes benefit from our FlexNet dedicated RF spectrum with the ability to assign separate communications channels for discrete applications, such as distribution automation, demand response and SCADA. The unparalleled RF design and operational efficiencies of Sensus can blanket a utility’s entire service territory to deliver ubiquitous coverage. FlexNet allows gas utilities to increase meter reading accuracy, reduce overhead costs and enhance customer service – all while keeping more utility trucks off the road. The innovative gas product line produced by Sensus combined with the FlexNet secure, reliable communications network delivers a gas AMI solution that expands easily and meets the requirements for safety and accuracy. Minimal infrastruc- ture means lower maintenance cost and ease of installation. FlexNet lets gas utilities excel in safety, reliability, efficiency and environmental responsibility, because no one has energy to burn. FlexNet Water FlexNet Electric FlexNet Gas Page 54 We’re not just promising results. We’re delivering the smart grid today. With roots that go back more than a century, Sensus is redefining the way utilities think about metering. Not only are we the world’s largest manufacturer of water meters, we are now a leading innovator and installer of utility communications and automation systems that put the “smart” in smart metering. We are literally building on that foundation every day as we manage hundreds of deployments and install millions of endpoints in the United States, Canada and Europe. Whether your utility is rural or urban – electric, gas, water or a combination – a FlexNet solution can deliver superior communications on a secure network that scales to meet your current and future needs. Find out more about how the Sensus FlexNet system redefines the possibilities for intelligently managing costs, resources, infrastructure and customer engagement. Visit us on the Web at www.sensus.com or call 1-800-638-3748. © 2010 Sensus. All rights reserved. FlexNet is a trademark of Sensus. AMI-120 R3 8601 Six Forks Road, Suite 700 Raleigh, NC 27615 1-800-638-3748 www.sensus.com www.sensus.com/flexnet Page 55 DATA SHEET ADS-10012-03 Regional Network Interface (RNI) The nerve center of your FlexNet® communication network The Regional Network Interface (RNI)™ is the head end system for the FlexNet communication network. The RNI manages communications by reading and delivering near real-time data, providing a window into the field. Communicating with end points, the RNI continuously gathers and processes device and network data, providing you with status updates and storing or sending data to other systems including your CIS, MDM, OMS and Sensus Analytics. From the data received, you can monitor the operation of meters, base stations, and the various RNI components to ensure timely and accurate billing for services. Priority alarms are delivered immediately, and onboarding diagnostic tools optimize performance by monitoring and managing system health. RNI software applications The RNI software applications are used to monitor and maintain the FlexNet AMI communication solution. Core functions include: Configure: set up of the devices and network settings; manage user access and security settings. Monitor: observe, detect and record network status using charts and graphs. Tune: make adjustments for proper system operation. Troubleshoot: analyze monitoring data and alerts to maintain proper network operation. Optimize: perform firmware and configuration downloads, and maximize the efficiency and speed of your network. COMPONENTS Hardware: Whether licensed and hosted onsite at your facility, or in one of our data centers through a managed services partnership, servers are part of the RNI, used to host multiple components. Configuration varies with the size, structure and data needs of your network (e.g. number of end points, number of base stations, message duplication rate, base station to meter density). Database: This is the primary system of record for information consumed and produced by FlexNet. The database contains data such as meter read information and end point configuration information. Software: a suite of intuitive applications used to manage FlexNet. BENEFITS Receive reliable, accurate device data to support billing and data analytics. Configure end points over the air. Operate more efficiently. Monitor and optimize system performance. Manage system security. Page 56 SENSUS | 637 Davis Drive | Morrisville, NC 27560 | 800.638.3748 ©2020 Sensus. All products purchased and services performed are subject to Sensus’ terms of sale, available at either sensus.com/TC or 1-800-638-3748. Sensus reserves the right to modify these terms and conditions in its own discretion without notice to the customer. The Sensus logo is a registered trademark of Sensus. This document is for informational purposes only, and SENSUS MAKES NO EXPRESS WARRANTIES IN THIS DOCUMENT. FURTHERMORE, THERE ARE NO IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. ANY USE OF THE PRODUCTS THAT IS NOT SPECIFICALLY PERMITTED HEREIN IS PROHIBITED. Xylem.com | Sensus.com Regional Network Interface (RNI) The nerve center of your FlexNet® communication network Optional Managed Services You have choices for hosting and managing the RNI. We can install the RNI at one of your data centers or other climate controlled environment. Or, with our Software as a Service (SaaS) offering, Sensus hosts the RNI through a secure cloud- based solution. When you select a SaaS model, we provide all the hardware and software required to operate the RNI through world-class, Tier IV data centers. Regional Network Interface (RNI) AMI FIXED BASE Billing System Base Station Sensus Analytics Customer PortalFlexNet SaaS NaaS To take it a step further, you have the option to own and manage your base stations or allow Sensus to do it for you with our Network as a Service (NaaS) offering. With NaaS, all network base stations, firmware RF spectrum and system health are managed and maintained 24/7/365 by our Network Operations Center (NOC) engineers. Page 57 DATA SHEET ADS-10009-01 FlexNet M400B2 Base Station Compact Point-to-Multipoint Base Station The Sensus FlexNet® M400B2 Base Station offers a strategic communications option for public service providers with endpoints deployed in remote or densely populated areas. The efficient transceiver can transmit and receive in a 200kHz band of spectrum. 200kHz enables more dedicated channels, resulting in higher network capacity, allowing more granular data and more channels of data. And the Sensus FlexNet communication network delivers double the transmit power of competitive systems over primary-use licensed spectrum – ensuring reliability for mission critical applications. The tower-based architecture enables reliable communication of status and usage information with fewer access points than other network architectures. These compact, efficient base stations fit in space- constrained environments and require no air conditioning. Licensed Radio Spectrum In North America, FCC/IC protected primary-use spectrum avoids competition with other wireless services, interference from other radio devices and the risk of being taken over by emergency service providers Fewer Access Points Our point-to-multipoint architecture directly connects base stations to endpoints over large geographic areas – greatly reducing the number of network backhaul connections as well as O&M costs Resilient Network Design Sensus Base Stations continue to provide real time data during outages and emergencies because of eight hour plus battery backup – enabling better workforce management and faster service restoration Small Footprint Flexible pole or wall-mounting options enable strategic deployment with a discreet appearance Industry Leading Security Sensus has achieved GE/Wurldtech™ Achilles® communications certification for critical infrastructure security against cyber threats FEATURES GPS receiver for time synchronization Duplexer for single antenna IP-addressable power supply with hot- swap capability 8-hour battery backup Alarms and reporting capability Backhaul via Ethernet/IP Heated battery for cold weather environ- ments Modular construction for easy serviceability APPLICATIONS Two-way Advanced Meter Infrastructure (AMI) Distribution Automation (DA) Demand Response (DR) Home Area Networks (HAN) Sensus VantagePoint® Lighting Control Page 58 ©2018 Sensus. All products purchased and services performed are subject to Sensus’ terms of sale, available at either https://sensus.com/TC or 1-800-638-3748. Sensus reserves the right to modify these terms and conditions in its own discretion without notice to the customer. The Sensus logo is a registered trademark of Sensus. This document is for informational purposes only, and SENSUS MAKES NO EXPRESS WARRANTIES IN THIS DOCUMENT. FURTHERMORE, THERE ARE NO IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. ANY USE OF THE PRODUCTS THAT IS NOT SPECIFICALLY PERMITTED HEREIN IS PROHIBITED. 8601 Six Forks Rd, Ste 700 Raleigh, NC 27615 1-800-638-3748 sensus.com FlexNet® M400B2 Base Station Compact Point-to-Multipoint Base Station Enclosures - Outdoor - Pole/Wall Mount Height 22” (55.9 cm) Width x Depth 22” (55.9 cm) x 10.5” (26.7 cm) Capacity One transceiver Temperature -40º to +122º F (-40º to +50º C) Voltage 120 VAC Battery backup 8 hours NEMA rating 4 Air conditioned No Properties Receive bandwidth 200 KHz Transceivers Single Spectrum Licensed 900 MHz PCS/MAS Duplexing Single transmit Sixteen receivers - simultaneous/dedicated Applications Single Expandability No Compatibility SNMP FlexNet Requires RNI 3.x or newer Page 59 "-59;9141:-,&)88)5:? 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Terms of Sale. Sensus USA Inc. (“Sensus”) warrants its products and parts as set forth below. All products are sold to the buyer (“Customer”) pursuant to Sensus’ Terms of Sale, available at: sensus.com/tc. 2. Electricity Meters and Electricity SmartPoint™ Modules. Sensus warrants the Sensus electricity meters and Sensus electricity SmartPoint Modules to be in compliance with their respective specifications under normal use and service, and to be free from material defects in materials and workmanship for a warranty period of twelve (12) months from the date of the installation or eighteen (18) months from the date of shipment, whichever occurs first. The warranty period for new spare parts and components sold by Sensus is twelve (12) months from the date of shipment. The warranty period for repaired or refurbished parts repaired by Sensus is ninety (90) days from the date of shipment, unless repaired pursuant to a warranty, in which case the repair is warranted for the time remaining of the original warranty period. 3. Gas Products and Gas SmartPoint Modules. a. Except for the Sonix meters, Sensus warrants the Sensus gas products to be in compliance with their respective specifications under normal use and service, and to be free from material defects in materials and workmanship for a warranty period of twelve (12) months from the date of the installation or eighteen (18) months from the date of shipment, whichever occurs first. Sensus warrants the Sensus Sonix meters to be free from material defects in materials and workmanship for a warranty period of fifteen (15) years from the date of shipment. Sensus warrants the batteries in the Sensus Sonix meters to be free from material defects in materials and workmanship for a warranty period of ten (10) years from the date of shipment. The warranty period for new spare parts and components sold by Sensus is twelve (12) months from the date of shipment. The warranty period for repaired or refurbished parts repaired by Sensus is ninety (90) days from the date of shipment, unless repaired pursuant to a warranty, in which case the repair is warranted for the time remaining of the original warranty period. b. Sensus warrants the Sensus gas SmartPoint Modules as set forth in the “G500” warranty, as set forth at: sensus.com/tc,or available at 1-800-METER-IT. 4. Water Meters and Water SmartPoint Modules. Sensus warrants the Sensus water meters and Sensus water SmartPoint Modules as set forth in the “G500” warranty, as set forth at: sensus.com/tc,or available at 1-800- METER-IT. 5. VantagePoint ®Lighting Control Module. Sensus warrants the Sensus VantagePoint ®Lighting Control Module to be in compliance with their respective specifications under normal use and service, and to be free from material defects in materials and workmanship for a warranty period of ten (10) years from the date of shipment. The warranty period for new spare parts and components sold by Sensus is twelve (12) months from the date of shipment. The warranty period for repaired or refurbished parts repaired by Sensus is ninety (90) days from the date of shipment, unless repaired pursuant to a warranty, in which case the repair is warranted for the time remaining of the original warranty period 6. DA Devices and HAN Devices. Sensus warrants the Sensus DA Devices and Sensus HAN Devices to be in compliance with their respective specifications under normal use and service, and to be free from material defects in materials and workmanship for a warranty period of twelve (12) months from the date of shipment. The warranty period for new spare parts and components sold by Sensus is twelve (12) months from the date of shipment. The warranty period for repaired or refurbished parts repaired by Sensus is ninety (90) days from the date of shipment, unless repaired pursuant to a warranty, in which case the repair is warranted for the time remaining of the original warranty period. 7. RF Field Equipment. Sensus warrants the Sensus RF Field Equipment to be in compliance with their respective specifications under normal use and service, and to be free from material defects in materials and workmanship for a warranty period of twelve (12) months from the date of shipment. 8. Server Hardware. Sensus provides no warranty on the Server Hardware. 9. Third Party Goods. Notwithstanding anything to the contrary herein, Sensus does not warrant any goods manufactured or software supplied by third parties. For example, if Customer elects to buy meters from a third party, the Sensus SmartPoint Modules installed in such third party meters shall, subject to Section 11, below, be covered by the warranty above, but any warranty on the meter itself shall be a matter directly between Customer and such third party meter supplier. 10. Services. Sensus warrants that its services shall, at the time of performance, materially conform to the contract requirements, and shall be performed in a professional and workmanlike manner, free from material defects in workmanship. 11. Remedy. a. If any Field Device or RF Field Equipment fails during the applicable warranty period (a “Failed Good”), Sensus’ obligation, and Customer’s exclusive remedy, is, at Sensus’ option, to either (i) repair or replace the Failed Good, provided the Customer (a) returns the product to the location designated by Sensus within the warranty period; and (b) prepays the freight costs both to and from such location; or (ii) deliver replacement components to the Customer, provided the Customer installs, at its cost, such components in or on the Failed Good (as instructed by Sensus). In all cases, Customer shall be responsible for returning the Failed Good to Sensus, including all costs associated with the return of the Failed Good, and Sensus shall be responsible for shipping the repaired or replaced good back to Customer’s warehouse. Customer shall, in all cases, be responsible for the In/Out Costs. If Sensus determines that the returned good is not defective, Customer shall pay and/or reimburse Sensus for all expenses incurred by Sensus in the examination of the returned good. b. Customer’s remedy under the warranty for services shall be, at Sensus’ sole cost and expense, to correct or re-perform any defective or non-conforming services to assure compliance with the contract requirements. c. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDY WITH RESPECT TO A FAILED GOOD OR ANY DEFECTIVE OR NON-CONFORMING SERVICE. 12. Warranty Exceptions. This General Limited Warranty does not include costs for removal or installation of products, or costs for replacement labor or materials, which are the responsibility of the Customer. The warranties in this General Limited Warranty do not apply to, and Sensus has no liability for,goods that have been: installed improperly or in non-recommended installations; installed to a socket that is not functional, or is not in safe operating condition, or is damaged, or is in need of repair; tampered with; modified or repaired with parts or assemblies not certified in writing by Sensus, including without limitation, communication parts and assemblies; improperly modified or repaired (including as a result of modifications required by Sensus); converted; altered; damaged; read by equipment not approved by Sensus; for water meters, used with substances other than water, used with non-potable water, or used with water that contains dirt, debris, deposits, or other impurities; subjected to misuse, improper storage, improper care, improper maintenance, or improper periodic testing (collectively, “Exceptions.”). If Sensus identifies any Exceptions during examination, troubleshooting or performing any type of support on behalf of Customer, then Customer shall pay for and/or reimburse Sensus for all expenses incurred by Sensus in examining, troubleshooting, performing support activities, repairing or replacing any Equipment that satisfies any of the Exceptions defined above. The above warranties do not apply in the event of Force Majeure, as defined in the Terms of Sale. 13. THE WARRANTIES SET FORTH IN THIS GENERAL LIMITED WARRANTY ARE THE ONLY WARRANTIES GIVEN WITH RESPECT TO THE GOODS, SOFTWARE LICENSES AND SERVICES SOLD OR OTHERWISE PROVIDED BY SENSUS. SENSUS EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER IN CONNECTION WITH THIS GENERAL LIMITED WARRANTY OR WITHT EH TERMS OF SALE, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND TITLE. 14. SENSUS ASSUMES NO LIABILITY FOR COSTS OR EXPENSES ASSOCIATED WITH LOST REVENUE OR WITH THE REMOVAL OR INSTALLATION OF EQUIPMENT. THE FOREGOING REMEDIES ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR THE FAILURE OF EQUIPMENT, LICENSED SOFTWARE OR SERVICES TO CONFORM TO THEIR RESPECTIVE WARRANTIES. 15. Limitation of Liability a. SENSUS’ AGGREGATE LIABILITY IN ANY AND ALL CAUSES OF ACTION ARISING UNDER, OUT OF OR IN RELATION TO THIS AGREEMENT, ITS NEGOTIATION, PERFORMANCE, BREACH OR TERMINATION (COLLECTIVELY “CAUSES OF ACTION”) SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SENSUS UNDER THIS AGREEMENT. THIS IS SO WHETHER THE CAUSES OF ACTION ARE IN TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY, IN CONTRACT, UNDER STATUTE OR OTHERWISE. b. AS A SEPARATE AND INDEPENDENT LIMITATION ON LIABILITY, SENSUS’ LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES. SENSUS SHALL NOT BE LIABLE FOR: (I) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; NOR (II) ANY REVENUE OR PROFITS LOST BY CUSTOMER OR ITS AFFILIATES FROM ANY END USER(S), IRRESPECTIVE OF WHETHER SUCH LOST REVENUE OR PROFITS IS CATEGORIZED AS DIRECT DAMAGES OR OTHERWISE; NOR (III) ANY IN/OUT COSTS; NOR (IV) MANUAL METER READ COSTS AND EXPENSES. c. The limitations on liability set forth in this Agreement are fundamental inducements to Sensus entering into this Agreement. They apply unconditionally and in all respects. They are to be interpreted broadly so as to give Sensus the maximum protection permitted under law. d. To the maximum extent permitted by law, no Cause of Action may be instituted by Customer against Sensus more than TWELVE (12) MONTHS after the Cause of Action first arose. In the calculation of any damages in any Cause of Action, no damages incurred more than TWELVE (12) MONTHS prior to the filing of the Cause of Action shall be recoverable. 16. Definitions. Any terms used in this General Limited Warranty as defined terms, and which are not defined herein, shall have the meanings given to those terms in the Terms of Sale. a. “Agreement” means this General Limited Warranty, Customer’s purchase order (except any Additional Terms), Sensus’ Acknowledgement Form (if any), Sensus’ invoice and the Terms of Sale. b. “DA Devices” means RTMs and RTUs. c. “Echo Transceiver” (formerly “FlexNet Network Portal” and “FNP”) identifies the Sensus standalone, mounted relay device that takes the radio frequency readings from the SmartPoint Modules and relays them by radio frequency to the relevant FlexNet Base Station. d. “End User” means any end user of electricity/water/gas that pays Customer for the consumption of electricity/water/gas, as applicable. e. “Equipment” means the Field Devices, RF Field Equipment, Server Hardware, and any other goods sold hereunder. f. “FlexNet Base Station” (formerly “Tower Gateway Base Station” and “TGB”) identifies the Sensus manufactured device consisting of one transceiver, to be located on a tower that receives readings from the SmartPoint Modules (either directly or via an Echo Transceiver) by radio frequency and passes those readings to the RNI by TCP/IP backhaul communication. g. “Field Devices” means the meters, SmartPoint Modules, DA Devices and HAN Devices. h. “Force Majeure” shall have the meaning set forth in the Terms of Sale. i. “HAN Devices” means the PCTs, IHDs and LCMs. j. “IHDs” means the in-home displays. k. “In/Out Costs” means any costs and expenses incurred by Customer in transporting goods between its warehouse and its End User’s premises and any costs and expenses incurred by Customer in installing, uninstalling and removing goods. l. “LCMs” means the load control modules. m. “PCTs” means the programmable controllable thermostats. n. “Remote Transceiver” (formerly “FlexNet Remote Portal” and “FRP”) identifies the Sensus standalone, mounted relay device that takes the radio frequency readings from the SmartPoint Modules and relays them directly to the RNI by TCP/IP backhaul communication. o. “RNI” identifies the regional network interfaces consisting of hardware and software used to gather, store, and report data collected by the FlexNet Base Stations from the SmartPoint Modules. p. “RF Field Equipment” means, collectively, FlexNet Base Stations, Echo Transceivers and Remote Transceivers. q. “RTMs” means the telemetric remote telemetry modules. r. “RTUs” means telemetric MicroRTU (T866). s. “Server Hardware” means the RNI hardware and the FlexServer hardware. t.“ SmartPoint™ Modules” identifies the Sensus transmission devices installed on devices such as meters, distribution automation equipment and demand/response devices located at Customer’s End Users’ premises that take the readings of the meters and transmit those readings by radio frequency to the relevant FlexNet Base Station, Remote Transceiver or Echo Transceiver. Page 62 %"!$&$ !%" "! ' $"#$%$(!"!!% Page 63 November 6, 2024 $ # '#&!" '# $!% " '# $!% # Client:City of Burlingame, CA Address 0501 Primrose Road City, State, Zip:Burlingame, CA 94010 Project:RFP City Project No. 86700, AMI Upgrade and Customer Engagement Program Due Date:September 24, 2024 at 2:00 PM Line No. Item Quantity Unit Extended Sensus FlexNet AMI System Network Infrastructure, Setup, and Configuration M400B2 Basestation with SPM-900 2 $37,800.00 $75,600.00 Communication Backhaul 2 $1,000.00 $2,000.00 M400B2 Basestation Installation at Alcazar Tank 1 $47,054.17 $47,054.17 M400B2 Basestation Installation at Public Works Yard 1 $16,500.00 $16,500.00 M400B2 Basestation Certification 2 $1,750.00 $3,500.00 FlexNet AMI Software Setup and Configuration RNI SaaS Setup 1 $9,400.00 $9,400.00 RNI Training 1 $5,500.00 $5,500.00 Sensus Analytics System Setup 1 $9,400.00 $9,400.00 Sensus Analytics Basic Integration 1 $9,200.00 $9,200.00 Sensus Analytics Training 1 $4,000.00 $4,000.00 Sensus Professional Services SOW for OTA Programming of 9,280 Water Meters, Estimated Pricing 1 $17,600.00 $17,600.00 Network Implementation, Monthly Fee 3 $10,000.00 $30,000.00 Recurring Annual Fees: SaaS Software Hosting and Support Annual Hosted RNI Software-as-a-Service, Water Only 1 $19,850.00 $19,850.00 Annual Sensus Analytics Enhanced, Water Only 1 $15,670.00 $15,670.00 Annual Sensus Analytics Text Messaging Fee (Optional)1 $1,500.00 $1,500.00 Annual M400 Basestation Extended Warranty 2 $1,800.00 $3,600.00 Annual Aqua-Metric Support 1 $20,000.00 $20,000.00 #!%$"$ "%$#"&#&##%$$$'$"#-Subtotal: $290,374.17 Estimated Tax: $7,472.88 ;.%$#&"$"$))#.Total: $297,847.05 <.$#$"#+"+" "##""!%"$$'"%$#+$ "#%$$"##%$$$. =."$'# #%# "%$""#(6A9+999.99. >. $"$))#$ ) ?.$%" "%$)#%$$;>E"#$.$$# ). @. #(/""$"#"$%. 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'&*'))!).4(%%'$+!##$''%'$')$%*'(#'%!"#)%'$*)($'%'$'"#('+(3 A3 ''$%$(!!)) $)(( &*6)'4(%'$%$(!%'#'!)()"/$()($')%'$*)(#('+(,'%'$+#34( '$%$(!$#)#))$#$*)!#()'$()%'$%$(!'&*'"#)(1$,+'0)('&*'"#)('!)('+( %'$+.$#(*!)#)3&*6)'$(#$)#+$('&*(),)#)(()$#1)'$'0,') # -%)$#)$)'&*'"#)())0#'&*$)#($#)!+'!(,%'$+3 Page 65 %"!$&$ !%" "! ' $"#$%$(!"!!% ##*!#(*( ##(*(#!.)(('($#G0AF? ,)'('+(3'("#"*"D6.' )'"$'!!##*!(*%%$')#(*('%)$#('+(,)BJ.'!.%'(!)$'3 *!.()"7&*6)'(%'$%$(#$""*#)$# *!(.()",)''6'!(($"3). $*'!#",!!'(%$#(!$'!!)) '((8(90 CD$##)$#0#"$#)!. '5)' $' *!(*(3&*6)',!!,$' ,)))!).)$)'"#)()$%)$#()$"$+$',',)1 &*6)'%''(:0%'#)0$''/$#'!((3 (())$# #()!!)$#7).$*'!#",!!'&*')$%'$+#!)'!()#'*#!)').)$ (())$#)$,'0(,!!(%'$+"$*#)#' (#5$'#)##"$*#)(0(#3)5 #()!!)$#$' ##'',#('#$)#!*3'#((*"()$!!$,#2 • #()!!)$#$),$(())$#(3 •$,' #&*%"#)'$*##($*' ((*")$%'$+,)#@?4$(())$#!$)$#3 •)!/#$+6'$*#$#*)$#!.3 •*$)$(#$)#!*#.(%!)$'$#'),$' 3 •'#((*"($#"$!/)$#5)'%3 " • !$ • 1'2) ! 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age 67 1 STAFF REPORT AGENDA NO: 9g MEETING DATE: January 21, 2025 To: Honorable Mayor and City Council Date: January 21, 2025 From: Syed Murtuza, Director of Public Works – (650) 558-7230 Victor Voong, Associate Engineer – (650) 558-7230 Subject: Adoption of a Resolution Authorizing the City Manager to Execute the General Lease – Public Agency Use Agreement No. 8034 with the California State Lands Commission for Assessor’s Parcel Number 026-363-470 RECOMMENDATION Staff recommends that the City Council adopt the attached resolution authorizing the City Manager to execute the General Lease – Public Agency Use Agreement No. 8034 with the California State Lands Commission. The term of the agreement is from October 17, 2024, to October 16, 2049. BACKGROUND General Lease Agreement No. 8034 between the City of Burlingame and the California State Lands Commission was originally approved on June 19, 1998. The 25-year agreement expired on April 30, 2023. The agreement was for the use of a bicycle and pedestrian bridge and abutment, maintenance easement, and one water pipeline attached to the bridge that crosses the Bay Front Channel and connects Beach Road to the trail behind the properties between 555 and 777 Airport Boulevard. In order to maintain access and protect the City’s infrastructure, City staff negotiated with the California State Lands Commission to extend the existing lease for another 25 years. DISCUSSION In December 2023, staff filed for an extension of General Lease – Public Agency Use Agreement No. 8034 with the California State Lands Commission. The agreement was updated for review and approval by the California State Lands Commission at their October 17, 2024 Commission meeting. The attached agreement is now ready for execution with notarized signature. The attached resolution authorizes the City Manager to execute the agreement. FISCAL IMPACT None Execution of Lease with State Lands Commission - January 21, 2025 2 Exhibits: • Resolution • General Lease – Public Agency Use Agreement No. 8034 • October 17, 2024 California State Lands Commission Staff Report • June 19, 1998 California State Lands Commission Staff Report RESOLUTION NO. _________ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING THE CITY MANAGER TO EXECUTE THE GENERAL LEASE – PUBLIC AGENCY USE AGREEMENT NO. 8034 WITH THE CALIFORNIA STATE LANDS COMMISSION FOR ASSESSOR’S PARCEL NUMBER 026-363-470 WHEREAS, General Lease Agreement No. 8034 between the City of Burlingame and the California State Lands Commission was originally approved on June 19, 1998, and the 25-year agreement expired on April 30, 2023; and WHEREAS, the lease agreement was for the use of a bicycle and pedestrian bridge and abutment, maintenance easement, and one water pipeline attached to the bridge that crosses the Bay Front Channel and connects Beach Road to the trail behind the properties between 555 and 777 Airport Boulevard; and WHEREAS, in December 2023, staff filed for an extension of General Lease – Public Agency Use Agreement No. 8034 with the California State Lands Commission; and WHEREAS, to maintain access and protect City owned infrastructure, City staff negotiated with the California State Lands Commission to extend the existing lease for another 25 years, with the new lease agreement term from October 17, 2024, to October 16, 2049; and WHEREAS, the State Lands Commission approved the new lease agreement at their October 17, 2024, meeting. 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 Council approves and authorizes the City Manager to execute the new lease agreement (8034) in the form attached hereto. ___________________________ Peter Stevenson, 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 held on the 21st day of January, 2025, and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ___________________________ Meaghan Hassel-Shearer, City Clerk RECORDED AT THE REQUEST OF AND WHEN RECORDED MAIL TO: STATE OF CALIFORNIA California State Lands Commission Attn: Land Management Division 100 Howe Avenue, Suite 100-South Sacramento, CA 95825-8202 STATE OF CALIFORNIA OFFICIAL BUSINESS Document entitled to free recordation pursuant to Government Code Section 27383 SPACE ABOVE THIS LINE FOR RECORDER'S USE A.P.N.: 026-363-470 County: San Mateo LEASE 8034 This Lease consists of this summary and the following attached and incorporated parts: Section 1 Basic Provisions Section 2 Special Provisions Amending or Supplementing Section 1 or 3 Section 3 General Provisions Exhibit A Land Description Exhibit B Site and Location Map SECTION 1: BASIC PROVISIONS THE STATE OF CALIFORNIA, hereinafter referred to as Lessor acting by and through the CALIFORNIA STATE LANDS COMMISSION (100 Howe Avenue, Suite 100-South, Sacramento, California 95825-8202), pursuant to Division 6 of the Public Resources Code and Title 2, Division 3 of the California Code of Regulations, and for consideration specified in this Lease, does hereby lease, demise, and let to CITY OF BURLINGAME, hereinafter referred to as Lessee, those certain lands described in Exhibit A hereinafter referred to as Lease Premises, subject to the reservations, terms, covenants, and conditions of this Lease. MAILING ADDRESS: 501 Primrose Road Burlingame, CA 94010 LEASE TYPE: General Lease – Public Agency Use LAND TYPE: Sovereign LOCATION: Bay Front Channel, Burlingame, as described in Exhibit A attached and by this reference made a part hereof. LAND USE OR PURPOSE: Use of a bicycle and pedestrian bridge, abutment, maintenance easement, and one water pipeline attached to the bridge. TERM: 25 years; beginning October 17, 2024; ending October 16, 2049, unless sooner terminated as provided under this Lease. CONSIDERATION: The public use and benefit, with the State reserving the right at any time to set a monetary rent if the Commission finds such action to be in the State’s best interest. AUTHORIZED IMPROVEMENTS: X EXISTING: Bicycle and pedestrian bridge and abutment, maintenance easement, and one water pipe. LIABILITY INSURANCE: $0 SURETY BOND OR OTHER SECURITY: $0 SECTION 2: SPECIAL PROVISIONS BEFORE THE EXECUTION OF THIS LEASE, ITS PROVISIONS ARE AMENDED, REVISED, OR SUPPLEMENTED AS FOLLOWS: 1. Lessee acknowledges that the lands described in Exhibits A and B of this Lease are subject to the Public Trust and are presently available to members of the public for recreational use, waterborne commerce, navigation, fisheries, open space, or other recognized Public Trust uses and that Lessee’s use of the Lease Premises must not interfere with or limit the Public Trust rights of the public. 2. Lessee shall not install, attach, or authorize the placement or attachment of any additional utilities or other improvements on the bridge or within the Lease Premises without Lessor’s prior review and approval. Separate Leases may be required for any utilities or other improvements placed on the bridge or within the Lease Premises. 3. Lessee agrees that the provisions of Section 3, Paragraph 11 shall also extend to the period of Lessee’s unauthorized occupation of state-owned lands, from May 1, 2023, through October 16, 2024. 4. Section 3, Paragraph 7.3 is hereby deleted in its entirety. / Section 3 General Provisions Page 1 of 22 Form 51.16 (Rev. 4/24) Section 3: General Provisions Paragraph 1: Definitions “Applicable Laws” are all local, state, and federal statutes, regulations, rules, codes (including building codes), ordinances, judgments, orders, notice requirements, and other requirements of governmental authorities pertaining to the use or condition of the Lease Premises and the conduct of Lessee’s business thereon in effect as of the date of execution of this Lease or subsequently enacted and lawfully applied hereto. “Damages” are all liabilities, demands, claims, actions, or causes of action whether regulatory, legislative, or judicial in nature; all assessments, levies, losses, fines, penalties, damages, costs, and expenses, including, without limitation: (i) reasonable attorneys’, accountants’, investigators’, and experts’ fees and expenses sustained or incurred in connection with the defense or investigation of any such liability, and (ii) costs and expenses incurred to bring the Lease Premises into compliance with Applicable Laws, Environmental Laws, a court order, or applicable provisions of a Regulatory Agency. The term “Damages” also includes those Damages that arise as a result of strict liability, whether arising under Environmental Laws or otherwise. “Environmental Laws” are any and all federal, state, or local environmental, health, or safety-related laws, regulations, standards, decisions of courts, ordinances, rules, codes, orders, decrees, directives, guidelines, permits, or permit conditions, treaties and conventions, currently existing and as amended, enacted, issued, or adopted in the future that are or become applicable to Lessee, and the Lease Premises with respect to: (a) the protection, preservation, or clean-up of the environment, wildlife, habitat, or natural resources; (b) the use, treatment, storage, transportation, handling, or disposal of Hazardous Materials; (c) the quality of the air and the discharge of airborne wastes, gases, particles, or other emissions; (d) the preservation or protection of waterways, groundwater, or drinking water; or (e) the health and safety of persons or property. “Hazardous Materials” are any chemical, substance, material, controlled substance, object, condition, waste, living organism, or combination thereof that is or may be hazardous to human health or safety or to the environment due to its radioactivity, ignitability, corrosivity, reactivity, explosivity, toxicity, Section 3 General Provisions Page 2 of 22 Form 51.16 (Rev. 4/24) carcinogenicity, mutagenicity, phytotoxicity, infectiousness, or other harmful or potentially harmful properties or effects, including, without limitation, tobacco smoke, petroleum and petroleum products, asbestos, radon, polychlorinated biphenyls (PCBs), and all of those chemicals, substances, materials, controlled substances, objects, conditions, wastes, living organisms, or combinations thereof that are now or become in the future listed, defined, or regulated in any manner by any Environmental Laws based on, directly or indirectly, such properties or effects. “Improvements” are any modification, alteration, addition, or removal of any material and any other action that changes the condition of the Lease Premises from the natural state, whether situated above, on, or under the Lease Premises. Improvements include any construction situated on or placement of material within the Lease Premises regardless of value. “Lease” is this document together with all subsequent amendments and exhibits. “Major Repairs” means any work that requires a permit or approval from other agencies, requires environmental review, or requires rebuilding or replacing any of the authorized Improvement(s). “Mineral Resources” includes timber, crops, sand, oil, gas, hard rock minerals and other mineral deposits as defined in Public Resources Code section 6407. “Natural Resources” are all of the flora and fauna native to both the upland terrestrial, fresh water, coastal and marine ecosystems within, and adjacent to, the lease premises. “Public Trust” means the constitutional, statutory, and common law doctrine providing the state’s sovereign authority over the navigable waters of the state, including the tidelands and submerged lands underlying those waters that are held in trust for the benefit of all the people of the state and for purposes that include maritime or water-dependent commerce, navigation, fisheries, the preservation of lands in their natural state for scientific study, open space, wildlife habitat, and water-oriented recreation. “Repairs” means work to maintain the Lease Premises and Improvements thereon in good, safe, and clean condition. Repairs are work that is minor in scope, do not require obtaining permits, approvals, or authorizations from other agencies, such as building permits, and do not require environmental review under State or Federal environmental laws. Section 3 General Provisions Page 3 of 22 Form 51.16 (Rev. 4/24) Paragraph 2: Rent 2.1. Absolute Triple Net Lease. This Lease is an absolute triple net lease, meaning Lessor has no obligation with respect to the payment of taxes, insurance, the cost of maintenance, utilities, repairs, or other costs or obligations associated with the Leased Premises, except as expressly stated herein. 2.2. Payment of Rent. Lessee must pay rent annually, on or before each anniversary of this Lease unless this Lease specifies a different rent schedule. The first installment is due on the beginning date of this Lease or within 60 days of Lessor authorizing the Lease at a public meeting, whichever is later. Rent is due each year in advance. Should Lessee submit payments that are less than the full amount of rent due under this Lease, Lessor may provide a supplemental billing invoice. Rent will not be refunded or prorated if Lessee discontinues use of the Lease Premises during the term. 2.3. Place for Payment. All payments under this Lease must be submitted to Lessor’s principal office as specified in this Lease. Lessee may contact Lessor’s accounting staff for Lessor’s current practices for payment by credit card or electronic fund transfer. 2.4. Courtesy Invoices. Lessor may send courtesy invoices to the address on file for Lessee at least thirty (30) days before a rent payment is due. Lessor’s failure to, or delinquency in, providing invoices will neither excuse Lessee from paying rent nor extend the time for paying rent. If Lessor does not send a courtesy invoice, Lessee must submit rent in the amount of the prior year’s rent when due and contact Lessor within thirty (30) days to determine the balance due. 2.5. Penalties and Interest. Penalties for late payments of any amounts due under this Lease and interest thereon are as provided in Title 2, California Code of Regulations section 1911(b). Timeliness of receipt of remittances shall be as provided in Title 2, California Code of Regulations section 1911(a). 2.6. Annual Adjustment of Rent. The rent specified in Section 1 of this Lease will be adjusted annually by the Consumer Price Index as specified in Title 2, California Code of Regulations section 1900(m) & (n) unless otherwise specified in this Lease. 2.7. Review of Non-Monetary Consideration. If rent is discounted or waived pursuant to Title 2, California Code of Regulations section 2003(e)(4), Lessor may review such determination at any time and set a monetary rental. Lessee shall be given at least thirty (30) days’ notice prior to the date of the Commission Section 3 General Provisions Page 4 of 22 Form 51.16 (Rev. 4/24) meeting wherein the rent modification is considered, or thirty (30) days’ notice prior to the effective date that the rent is changed, whichever provides more notice. 2.8. Periodic Rent Review. Lessor may modify the method, amount, or rate of consideration effective on each tenth anniversary of the beginning date of this Lease, in addition to the last two years of the Lease as provided in Provision 14.4 below. Lessor shall consider the factors provided in Title 2, California Code of Regulations section 2003(d) when determining whether a rent modification is appropriate and which rental method listed in section 2003(a) should apply. Should Lessor fail to exercise such right effective on any tenth anniversary, it may do so on any one (1) of the next nine (9) anniversaries following such tenth anniversary, without prejudice to its right to modify rent on the next or any succeeding tenth anniversary of the beginning date. No such modification shall become effective unless Lessee is given at least thirty (30) days’ notice prior to the date of the Commission meeting wherein the rent modification is considered or thirty (30) days’ notice prior to the effective date of the increase, whichever provides a greater notice period. 2.9. If Lessor elects to prepare an appraisal to establish a new rent, Lessee may, at its option, also provide a timely independent appraisal at its sole expense for Lessor’s review and consideration. Prior to Lessee’s contracting for such appraisal, Lessor and Lessee shall negotiate in good faith and agree upon the terms and conditions for such third-party appraisal, including but not limited to the highest and best use, appraisal methodology, and minimum appraiser credentials. Such appraisal shall be prepared in accordance with generally accepted and applicable appraisal standards as they are adopted from time to time by the Appraisal Standards Board of the Appraisal Foundation, and Lessor’s Appraisal Guidelines. 2.10. Books and Records. Lessee must keep and maintain full and accurate accounting books and records of transactions from the Lease Premises in accordance with generally accepted accounting principles for at least the five (5) prior years. The accounting books and records kept and maintained by Lessee for audit purposes must include all records, receipts, journals, ledgers, and documents reasonably necessary to enable Lessor or its auditors to perform a complete and accurate audit of gross sales and exclusions from gross sales in accordance with generally accepted accounting principles. Lessee must also maintain an original receipt for the payment of taxes, assessments, or installments and deliver such to Lessor upon request. Section 3 General Provisions Page 5 of 22 Form 51.16 (Rev. 4/24) 2.11. Report of Gross Income. On Lessor’s request, Lessee must submit a Report of Gross Income on a form provided by Lessor for the prior five (5) years. This report together with supporting documentation (hereinafter collectively referred to as “Income Reports”) must include all business operations located on or over the Lease Premises. The gross income of sublessees and all others generating income on the Lease Premises must be reported separately and with sufficient organization and detail so that Lessor can identify the source of all gross income generated on the Lease Premises. 2.12. Audits. On not less than ten (10) days' prior written notice to Lessee, Lessor may cause an audit to be made of the Income Reports and all of Lessee's records and accounting books necessary (in Lessor’s judgment) to audit such items. Lessee will make all such books and records available for the audit at the Lease Premises or at Lessor’s offices. If the audit discloses an underpayment of Rent, Lessee will immediately pay to Lessor the amount of the underpayment with "Interest" (as provided in Paragraph 2.5), which will accrue from the date the payment should have been made through and including the date of payment. If the audit discloses an underreporting of rent in excess of two percent (2%) of the reported Gross Income, then Lessee will also immediately pay to Lessor all reasonable costs and expenses incurred in the audit and in collecting the underpayment, including auditing costs and attorney fees. If the audit discloses an overpayment of Rent, Lessee will be entitled to a credit in the amount of the overpayment against the next rent payment(s). Paragraph 3: Surety 3.1. Lessee to Obtain Surety. Lessee shall provide a surety bond or other security device acceptable to Lessor when required by Section 1 of this Lease. Such security shall be for the specified amount, name the State of California, California State Lands Commission, as the assured, and guarantee to Lessor the faithful observance and performance by Lessee of all the terms, covenants, and conditions of this Lease. 3.2. Lessor’s Modification of Surety. Lessor may require an increase in the amount of the surety bond or other security device to cover any additionally authorized Improvements, any modification of consideration, or to provide for inflation or other increased need for security. The surety bond or other security device may be increased: (i) if any additional Improvements or activities are authorized on the Lease Premises; (ii) if Lessee modifies any existing Improvements such that the cost for removal of such Improvements is increased; (iii) when a periodic rent Section 3 General Provisions Page 6 of 22 Form 51.16 (Rev. 4/24) review is conducted under section 2.8; (iv) on each fifth anniversary of this Lease, (v) Lessor determines it is in the best interest of the state; (v) within the last two years of the Lease. Should Lessor fail to exercise such right effective on any fifth anniversary, it may do so effective on any one of the next four anniversaries without prejudice to its right to modify the surety on the next fifth anniversary or as otherwise provided above. Lessor will provide at least thirty (30) days’ notice prior to the date of the Commission meeting wherein the modification of the surety is considered, or thirty (30) days’ notice prior to the effective date of the increase. 3.3. Lessee’s Modification of Surety. Any security device required under this Lease must be maintained at all times during the Lease term. Lessee must first seek approval of Lessor before changing the surety holder or the type of security device used. Paragraph 4: Insurance 4.1. Lessee Must Insure Lease Premises. Lessee must obtain and maintain in full force and effect during the term of this Lease comprehensive general liability insurance and property damage insurance against any and all claims or liability arising out of the ownership, use, occupancy, condition, or maintenance of the Lease Premises and all Improvements. The coverage limit must be no less than the amount specified in Section 1 of this Lease. 4.2. Insurance Policy Requirements. The insurance policy must identify the Lease by its assigned number. The coverage provided must be primary and non- contributing. Lessee must keep such policy current. Lessor must be named as a “certificate holder” or an “additional interest” on the policy. Lessee must provide Lessor with a current certificate of insurance at all times. At Lessor’s request, Lessee must provide a full copy of the current insurance policy, along with any and all endorsements or other such documents affecting the coverage. Lessor will not be responsible for any premiums or other assessments on the policy. 4.3. Notice to Lessor. Lessee shall notify Lessor within five (5) business days if the insurance is canceled for any reason and shall act diligently to replace the insurance. Failure to timely replace the insurance may result in a default of the lease. 4.4. Modification. Lessor may require an increase in the amount of the insurance to cover any additionally authorized Improvements, any modification of consideration, or to provide for inflation or other increased need. Insurance Section 3 General Provisions Page 7 of 22 Form 51.16 (Rev. 4/24) coverage may be increased: (i) if any additional Improvements or activities are authorized on the Lease Premises; (ii) if Lessee modifies any existing Improvements or intensity of use; (iii) when a periodic rent review is conducted under section 2.8; (iv) on each fifth anniversary of this Lease; (v) Lessor determines it is in the best interest of the state; (vi)within the last two years of the Lease. Should Lessor fail to exercise such right effective on any fifth anniversary, it may do so effective on any one of the next four anniversaries without prejudice to its right to modify insurance requirements on the next fifth anniversary. Lessor will provide at least thirty (30) days’ notice prior to the date of the Commission meeting wherein the modification of insurance is considered, or thirty (30) days’ notice prior to the effective date of the increase. Paragraph 5: Taxes, Assessments, and Fees 5.1. Revenue and Tax Code Section 107.6 Statement. Issuance of this Lease creates a possessory interest that may be subject to property taxation. The Lessee may be subject to, and is solely responsible for, any possessory interest taxes levied on the leasehold interest. 5.2. Lessee to Pay All Taxes, Assessments, and Fees. In addition to any Rent due under this Lease, Lessee must pay when due all real and personal property taxes imposed on or associated with the Lease Premises during the term of this Lease. This includes, without limitation: possessory interest taxes, assessments, special assessments, user fees, and service charges. If this Lease begins or ends during a tax year, Lessee must pay the taxes, assessments, and fees for the portion of the tax year the Lease was in effect. 5.3. Reimbursement Agreements. Lessee must pay in full any amount owed on the Application Reimbursement Agreement within 30 days of invoice. 5.4. Records of Payments. Lessee shall keep the official and original receipt for payments required by this paragraph 5 and provide to Lessor upon request. Paragraph 6: Land Use 6.1. Only Authorized Uses. Lessee will use the Lease Premises only for the purposes stated in this Lease. Any additional uses or Improvements require separate authorization from Lessor. Lessee must submit a separate application to Lessor to amend this Lease if Lessee intends to add to or alter the Improvements on, or change the uses of, the Lease Premises. 6.2. Lessee to Comply with All Applicable Laws. Lessee, at Lessee’s sole expense, Section 3 General Provisions Page 8 of 22 Form 51.16 (Rev. 4/24) will comply with all Applicable Laws. Lessee must give Lessor immediate written notice on Lessee’s becoming aware that the use or condition of the Lease Premises is in violation of any Applicable Laws. Lessee must obtain and maintain all permits or other entitlements. 6.3. Lease Does Not Substitute for Permits. This Lease does not substitute for or provide preference in obtaining approval from other federal, state, or local agencies. Lessee is solely responsible for determining what approvals, authorizations, or certifications are required, and will be solely responsible for all costs incurred thereby. 6.4. No Discrimination. Lessee, in its use of the Lease Premises, must not discriminate against any person or class of persons on any basis protected by federal, state, or local law. 6.5. “As Is.” Lessee accepts the Lease Premises “as is” and acknowledges that: 6.5.1. Lessor, including its officers and employees, made no representations or warranties as to the suitability of the Lease Premises for any uses authorized under this Lease. Lessee is solely responsible for determining the suitability of the Lease Premises for any proposed use or Improvements; and 6.5.2. Lessor, including its officers and employees, has made no representations or warranties as to the quality or value of any Improvements found on the Lease Premises, or of their conformity to Applicable Laws. Lessee agrees to inspect any preexisting Improvements at its own cost to determine whether such Improvements are safe and suitable for the Lessee’s intended use; and 6.5.3. Damage to or destruction of any Improvements on the Lease Premises by any cause whatsoever does not entitle Lessee to any reduction in rent or extension of this Lease; and 6.5.4. Any Improvements on the Lease Premises are considered personal property and not fixtures; and 6.5.5. Lessee accepts the hazards involved in using or improving such lands. Lessor is not responsible for any damages or reduced use of the Lease Premises caused by: local or invasive flora or fauna, flooding, erosion, climate change, sea level rise, storms, freezing, inclement weather of any kind, acts of god, maintenance or failure of protective structures, and any other such hazards. Lessee will not be reimbursed or receive offset of rent for such hazards; and 6.5.6. The Lease Premises may be subject to pre-existing contracts, leases, Section 3 General Provisions Page 9 of 22 Form 51.16 (Rev. 4/24) licenses, easements, encumbrances, and claims. The Lease is made without warranty by Lessor of title, condition, or fitness of the land for the stated or intended purpose. 6.6. Uses Inconsistent with the Public Trust Prohibited. Unless specifically authorized in this Lease, any use of the Lease Premises which is inconsistent with the Public Trust is prohibited when the Lease Premises are lands subject to the Public Trust. Paragraph 7: Climate Change 7.1. Lessee acknowledges that the Lease Premises and adjacent upland may be subject to the hazards exacerbated by climate change, including sea level rise. Potential hazards to the Lease Premises from climate change include but are not limited to flood damage, erosion damage, earthquakes, tsunamis, and damage from waves and storm-created debris. Lessee acknowledges that these impacts associated with climate change may require additional adaptation or protection strategies applied to the improvements on the Lease Premises and additional maintenance. 7.2. Lessee assumes the risks associated with such potential hazards and agrees to be solely responsible for all damages, costs, and liabilities arising as a result of the impacts of such hazards on the Lease Premises. Any additional maintenance or protection strategies necessitated by such hazards may be subject to environmental review and require additional approval by the Lessor. 7.3. Lessee shall conduct monitoring reports within the first three years of lease execution or construction, and at five-year intervals thereafter for the life of the project; and shall also provide Lessor with monitoring reports following any extreme event, including, but not limited to: extreme tide event (including King Tides), earthquake, or tsunami that results in the declaration of a Local Emergency or a State of Emergency (as defined in Cal. Gov. Code § 8558) or a federal Emergency or Major Disaster (as defined in 44 C.F.R. § 206.2). Paragraph 8: Environmental Matters 8.1. Lessee to Comply with Environmental Laws. Lessee, at its sole cost and expense, will comply with all Environmental Laws. 8.2. Hazardous Materials. Lessee will immediately notify Lessor of any known violation of any Environmental Laws, along with any action, claim, demand, inquiry, or order relating to a violation of Environmental Laws on the Lease Section 3 General Provisions Page 10 of 22 Form 51.16 (Rev. 4/24) Premises. Lessee must immediately provide copies of all related documents upon Lessor’s request. Lessee must immediately notify Lessor and the appropriate governmental emergency response agency, or agencies in the event of any release or threatened release of any Hazardous Material on or about the Lease Premises. 8.3. Cleanup of Hazardous Materials. If Hazardous Materials are located on or released onto or about the Lease Premises due to Lessee’s activities on the Lease Premises, the Lessee is responsible for the cleanup and disposal of such Hazardous Materials consistent with all Applicable Laws. Lessee must submit a site assessment and removal/remediation plan prepared by a professional, licensed and qualified to remove or remediate the Hazardous Materials for review and approval by Lessor. If Lessor approves the plan in writing, Lessee must commence the removal/remediation at its sole expense, in conformance with all Applicable Laws. Alternately, Lessor may elect to perform the removal/remediation at Lessee’s expense. Lessee must compensate Lessor for the actual cost of the removal/remediation within thirty (30) days of receiving a written invoice from Lessor. 8.4. Inspection. Lessee will permit Lessor or its agents to enter the Lease Premises on 24-hour notice to inspect, monitor, or take remedial action with respect to Hazardous Materials. If Hazardous Materials are generated, stored, or transported on the Lease Premises, Lessor may require Lessee to conduct an independent environmental site assessment or inspection for the presence or suspected presence of Hazardous Materials. If this assessment or inspection is required, Lessor will be allowed to review and approve the contractor, and the work will be done at Lessee’s expense. 8.5. Conservation. Lessee will cooperate with and participate in conservation programs for water, electricity, composting, natural gas and recycling programs, including those for the collection of cardboard, metals, plastics, and glass at Lessee’s expense. Paragraph 9: Repairs, Major Repairs, and Alterations 9.1. Lessee Required to Perform Repairs. Lessee is solely responsible for maintaining the Lease Premises, including all Improvements, in good order and repair and in a clean, safe, sanitary, and orderly condition. Lessee is not required to get Lessor’s advanced approval for routine Repairs. 9.2. Major Repairs Require Lessor Approval. Lessee must obtain Lessor’s Section 3 General Provisions Page 11 of 22 Form 51.16 (Rev. 4/24) advanced written approval prior to conducting any Major Repairs. The decision whether a Repair is a Major Repair, and the decision whether a lease amendment is necessary, will be made by Lessor and based on the scope, cost, and impacts of the work. 9.3. Alterations Require Lessor Approval. Any material change in the size, scope, density, type, nature, or intensity of Improvements on or uses of the Lease Premises from what is authorized in this Lease will be considered an Alteration. Lessee may not conduct any Alterations without a modification of this Lease approved by Lessor. The decision whether a change constitutes an Alteration will be made by Lessor and based on the individual facts. 9.4. Improvements in Disrepair or Unsafe Condition. Lessee’s failure to maintain the Lease Premises or Improvements that have become unsafe or derelict entitle Lessor to require removal under Paragraph 14. After providing notice and opportunity to cure, Lessor may require submission of a written plan to restore the Lease Premises under Paragraph 14. Lessee’s failure to comply shall entitle Lessor to terminate this Lease, remove the Improvements from the Lease Premises and recover the costs incurred in doing so from the Lessee. Paragraph 10: Lessor’s Reservation of Rights 10.1. Non-Exclusive Lease. Lessee’s right of occupancy is non-exclusive. Lessee may control access to the Improvements on the Lease Premises. Unless otherwise stated in this Lease, Lessee may exclude persons from the Lease Premises only when their presence or activity constitutes a material interference with the Authorized Use of the Lease Premises. 10.2. Lessee Responsible for Impacts to Natural Resources and Public Trust Uses. When the Lease Premises include school lands or sovereign lands, the Lessee is responsible for any damage or adverse impacts to Natural Resources within or adjacent to the Lease Premises. It is the intention of Lessor to limit the transfer of rights under this lease to the minimum level required to carry out the primary purpose of the Lease. Lessee’s use of the Lease Premises must minimize impacts to the Public Trust if the Lease Premises are subject to the Public Trust. Lessee must not interfere with public access or Public Trust uses authorized under statute and common law. 10.3. Mineral Resources. Mineral Resources may not be removed from the Lease Premises unless specifically authorized under this Lease. Lessee shall not extract, sell, damage, or use Mineral Resources found within the Lease Premises without Section 3 General Provisions Page 12 of 22 Form 51.16 (Rev. 4/24) specific authorization under this Lease. Lessor reserves the right to grant and transfer Mineral Resources along with the right to grant leases to third parties in and over the Lease Premises for the extraction of such Mineral Resources. Such leasing will not be inconsistent or incompatible with the rights or privileges of Lessee under this Lease. 10.4. Right to Inspect. Lessor reserves the right to inspect the Lease Premises. If access to the Lease Premises is reasonably accomplished by passing through adjacent property owned by Lessee, Lessor shall provide 24-hour notice prior to entry and Lessee shall grant such entry for inspection of the Lease Premises. 10.5. Statutory Reservations. Lessor reserves to the public an easement across the Lease Premises complying with Public Resources Code section 6210.4 and Public Resources Code section 6210.5. 10.6. Multiple Overlapping Leases Allowed. Lessor reserves the right to lease, convey, or encumber the Lease Premises, in whole or in part, during the Lease term for any purpose not inconsistent or incompatible with the rights or privileges of Lessee under this Lease. Paragraph 11: Indemnity 11.1. Lessee’s Sole Risk. Lessee’s use of the Lease Premises and any Improvements thereon, including use by guests and invitees, is at Lessee’s sole and exclusive risk. 11.2. Lessee to Indemnify Lessor. Except to the extent caused by the sole negligence or willful misconduct of the Lessor, Lessee shall indemnify, hold harmless, and, at the option of Lessor, defend Lessor, its officers, agents, and employees from any and all Damages resulting from Lessee’s occupation and use of the Lease Premises. Lessee shall reimburse Lessor in full for all reasonable costs and attorneys’ fees, specifically including, without limitation, any Damages arising by reason of: (1) The issuance, enjoyment, interpretation, or breach of this Lease; (2) The challenge to or defense of any environmental review upon which the issuance of this Lease is based; (3) The death or injury of any person, or damage to or destruction of any property from any cause whatever in any way connected with the Lease Premises, or with any of the Improvements or personal property on the Lease Premises; (4) The condition of the Lease Premises, or Improvements on the Lease Premises; (5) An act or omission on the Lease Premises by Lessee or any person in, on, or about the Lease Premises; (6) Any work performed on the Lease Premises or material furnished to the Lease Section 3 General Provisions Page 13 of 22 Form 51.16 (Rev. 4/24) Premises; (7) Lessee’s failure to comply with any Applicable Laws or violation of any Environmental Laws; (8) The costs for any cleanup or other response costs relating to the release or threatened release of Hazardous Materials on the Lease Premises during Lessee’s occupation of the Lease Premises. This obligation includes any prior leases between Lessee and Lessor and will continue until Lessee has performed all duties under Paragraph 14. 11.3. Lessor Not Required to Defend. Lessor need not defend itself against all or any aspect of any challenge to this Lease or any associated environmental review. However, Lessee may take whatever legal action is available to it to defend this Lease or any associated environmental review against any challenge by a third party, whether or not Lessor chooses to raise a defense against such a challenge. 11.4. Lessee to Notify Lessor. Lessee shall notify Lessor immediately in case of any accident, injury, or casualty on the Lease Premises. Paragraph 12: Assignment, Encumbrance, or Sublet 12.1. Lessor’s Consent Required for Assignment. Lessee shall not mortgage; hypothecate; encumber; assign; sublet; enter into franchise, license, or concession agreements; or otherwise transfer all or part of this Lease (collectively “Assign” or “Assignment”) without Lessor’s advanced and expressed consent at a properly noticed public meeting. Any purported Assignment without Lessor’s consent will be void and of no force or effect and will not confer any estate or benefit on anyone. A consent to one Assignment by Lessor will not be deemed to be a consent to any subsequent Assignment by or to any other party. 12.2. Lessee Actions Not Considered Assignments. If Lessee is a public corporation whose stock is traded on a nationally recognized stock exchange, sale or transfer of such stock is not an Assignment. 12.3. Procedures. If Lessee desires to Assign this Lease, Lessee will apply to Lessor for the proposed Assignment. The Assignment will be considered by Lessor at a public meeting. Lessor may require any of the following in considering consent of an Assignment: (a) the nature, effective date, terms, and conditions of the assignment; (b) a description of the identity, net worth, and previous business experience of the proposed assignee; (c) a complete business plan prepared by the proposed assignee; and (d) any further information relevant to the proposed Assignment that Lessor reasonably requests. Lessor may either (i) consent to the proposed Assignment; (ii) refuse to consent to the proposed Section 3 General Provisions Page 14 of 22 Form 51.16 (Rev. 4/24) Assignment; or (iii) determine that it is preferable to terminate this Lease and issue a new lease to the proposed assignee. 12.4. Standard for Consent. Lessor may refuse its consent to the proposed Assignment on any reasonable grounds. Reasonable grounds include, without limitation: (a) the proposed assignee intends to use the Lease Premises for different activities or uses than those set forth in Section 1; (b) the proposed assignee’s financial condition is deemed by Lessor to be inadequate to support the financial and other obligations of Lessee under this Lease; (c) the business reputation or character of the proposed assignee is not reasonably acceptable to Lessor; (d) the proposed assignee is not likely to conduct a business of a quality substantially equal to that conducted by Lessee; (e) the proposed assignee’s planned use of the Lease Premises would increase the burden on the Lease Premises, involve an increased risk of the presence, use, release, or discharge of Hazardous Materials; or (f) Lessor has not received adequate assurance that all breaches will be cured before the effective date of the proposed Assignment. 12.5. Additional Terms. Lessee’s Assignment of the Lease does not release Lessee from liability for any Hazardous Materials or ordinance manufactured, generated, used, placed, disposed, stored, or transported on the Lease Premises during Lessee’s tenancy. An unauthorized assignment does not relieve Lessee from its covenants and obligations under this Lease. Lessor’s acceptance of any payment due under this Lease from any person other than Lessee will not be deemed to be a waiver by Lessor of any provision of this Lease or to be a consent to any Assignment. 12.6. Bankruptcy. If Lessee files a petition or an order for relief is entered against Lessee under the Bankruptcy Code (11 U.S.C. § 101, et seq.), then the trustee or debtor-in-possession must elect to assume or reject this Lease within sixty (60) days after filing of the petition or appointment of the trustee, or as that deadline may be extended by order of the court, or the Lease shall be deemed to have been rejected and Lessor shall be entitled to immediate possession of the Lease Premises. No assumption or assignment of this Lease shall be effective unless it is in writing and unless the trustee or debtor-in-possession has cured all breaches of this Lease (monetary and non-monetary) or has provided Lessor with adequate assurances (a) that within ten (10) days from the date of such assumption or assignment, all monetary breaches of this Lease will be cured; and (b) that within thirty (30) days from the date of such assumption, all non-monetary breaches of this Lease will be cured; and (c) that all provisions of this Lease will Section 3 General Provisions Page 15 of 22 Form 51.16 (Rev. 4/24) be satisfactorily performed in the future. 12.7. Permitted Assignments. The following Assignments are permitted under this Lease without Lessor’s consent: (a) Assignment caused by the death of a spouse where the full interest of the deceased spouse is Assigned to a surviving spouse who is a co-lessee on this Lease, provided Lessor is notified in writing within thirty (30) days of the assignment; (b) assignment caused by the dissolution of the marriage of Lessee when the full interest of one spouse is assigned to the other spouse who is a co-lessee on this Lease, provided Lessor is notified in writing within thirty (30) days of the transfer; and (c) substitution or succession of a new trustee if the Lease is held in trust and the Lessee is a trustee or successor trustee thereof, provided Lessor is notified in writing no later than sixty (60) days after the named trustee as appears on the face of this Lease becomes unable or ceases to serve as trustee for any reason. 12.8. Lessee Remedies. If Lessor withholds or conditions its consent and Lessee believes that Lessor did so contrary to the terms of this Lease, then Lessee’s sole remedy will be to prosecute an action for declaratory relief to determine if Lessor properly withheld or conditioned its consent, and Lessee hereby waives all other remedies. Paragraph 13: Breach 13.1. Events of Breach. All covenants and agreements contained in this Lease are declared to be conditions to this Lease. Lessee’s failure to pay rent when due or any other charges under this Lease for five (5) days after written notice from Lessor to Lessee will be considered a monetary breach. Lessee’s failure to perform any other promise, covenant, or agreement under this Lease for more than thirty (30) days after written notice from Lessor to Lessee will be considered a non-monetary breach. If a non-monetary breach cannot be cured within the thirty (30)-day period, the breach will be deemed to be cured if Lessee begins to cure the breach within the thirty (30)-day period and continues to diligently complete the cure. 13.2. Breach of Lease. Lessor shall provide written notice to Lessee specifying the particulars of the breach. Should Lessee fail to cure the breach within the period specified in Paragraph 13.1, then Lessor may elect to pursue any available remedies under law, or those specified in paragraph 13.3, below. 13.3. Remedies on Breach of Lease. In addition to any other rights or remedies at law or equity, Lessor may, without further notice, (a) terminate this Lease, reenter Section 3 General Provisions Page 16 of 22 Form 51.16 (Rev. 4/24) and take possession of the Lease Premises and remove all persons and all Improvements therefrom at Lessee’s cost; or (b) keep this Lease in effect without declaring this Lease terminated and without terminating Lessee’s right to possession, reenter the Lease Premises and occupy the whole or any part for and on account of Lessee and collect any unpaid rentals and other charges that have become payable or that may thereafter become payable; or (c) terminate this Lease after reentering the Lease Premises as provided in subclause (b) above. Any notice required to be given by Lessor above will be instead of, and not in addition to, any notice required under the laws of the State of California. 13.4. Determination of Rental Value. If rent under this Lease is calculated as percentage of Lessee’s income attributable to the Lease Premises and Lessee abandons the Lease Premises, then the reasonable rental value shall be the percentage of proceeds Lessor would have received had Lessee operated the Lease Premises in the usual and customary manner. 13.5. Acceptance of Rent When Lessee is in Breach. Lessor’s acceptance of any rent shall not be considered a waiver of any preexisting Breach by Lessee other than the failure to pay the particular rent accepted regardless of Lessor’s knowledge of the preexisting Breach at the time rent is accepted, unless the breach was a monetary breach and the payment occurs during the cure period specified in Paragraph 13.1. 13.6. Acceptance of Payments After Lease Termination. Lessee’s submission or Lessor’s acceptance of any payments after the expiration or termination of this Lease shall not reinstate or extend this Lease. Lessor may elect to retain any payment submitted and apply these payments to offset any damages claimed against Lessee; or Lessor may elect to allow a holdover tenancy under Paragraph 14.6; or Lessor may elect to refund the payments less a reasonable handling fee. 13.7. Waiver of Rights. The failure or delay of either party to exercise any right or remedy shall not be construed as a waiver of such right or remedy or any Breach by the other party. Paragraph 14: Conditions of Lease Termination 14.1. Use of State Land. This Lease authorizes the use or occupation of state land for a fixed term of years without options or rights of renewal. Lessee accepts that future leases authorizing the continued existence of any Improvements Section 3 General Provisions Page 17 of 22 Form 51.16 (Rev. 4/24) constructed or maintained by Lessee on the Lease Premises are subject to a discretionary action of the California State Lands Commission. Submission of an application for a new lease does not guarantee a new lease will be granted to Lessee. Lessee acknowledges that construction of Improvements on the Lease Premises and investment in or obtaining financing for the uses authorized under this Lease is done in full understanding that future leases are not guaranteed. Lessee also affirmatively represents that the cost of removing Improvements was considered before entering into this Lease and placing or assuming any Improvements on state land. 14.2. Abandonment. Lessee’s right of access to the Lease Premises was a material consideration in Lessor issuing this Lease. If, without prior notice to Lessor, Lessee sells, abandons, or loses title to the upland property adjacent to the Lease Premises, or otherwise loses the legal right to access the Lease Premises, Lessor may deem this an abandonment of the Lease Premises. Lessee must actively maintain and manage any Improvements authorized by this Lease. Should Lessee discontinue use, management, or maintenance of the authorized Improvements, Lessor may deem this an abandonment and elect to terminate the Lease. Alternately, Lessor has the remedy described in California Civil Code section 1951.4 (Lessor may continue lease in effect after Lessee’s breach and abandonment and recover rent as it becomes due if Lessee has right to sublet or assign, subject only to reasonable limitation). Abandonment of the Lease Premises shall not relieve Lessee of any obligations under this Lease. 14.3. Restoration. In issuing this Lease it is Lessor’s understanding that all Improvements will be removed from state land at the expiration or termination of this Lease. If Lessee abandons the Lease Premises, or Lessor terminates this Lease, or this Lease expires without execution of a new lease authorizing Lessee’s use of the Lease Premises, Lessee must: 1) remove all Improvements regardless of whether Lessee constructed or placed Improvements together with all debris at its sole expense and risk, restoring the Lease Premises to as close as possible to an unimproved condition to Lessor’s satisfaction; and 2) immediately surrender possession of the Lease Premises. Lessor may, in its sole discretion, allow all or any portion of the Improvements to remain in place. In carrying out this obligation, Lessee acknowledges that further authorizations, review of the Restoration Plan, and environmental review may be necessary as outlined in Section 14.4 below. 14.4. Two Years Prior to Expiration. (A) If Lessee desires to continue the uses authorized under this Lease, Lessee shall submit an application together with all Section 3 General Provisions Page 18 of 22 Form 51.16 (Rev. 4/24) required fees at least two years prior to the expiration of this Lease. Submission of an application does not guarantee a new lease will be granted to Lessee. (B) If Lessee does not desire to occupy the Lease Premises beyond the term of this Lease, then two years prior to the expiration of this Lease, Lessee shall submit an application, including a detailed plan to remove all Improvements and restore the Lease Premises to the condition existing prior to the installation or construction of any Improvements. The plan must include a timeline for obtaining all necessary permits. The restoration plan may require a subsequent environmental review and approval from Lessor. (C) Lessor may modify annual rent, surety and insurance within the last two years of the Lease. 14.5. Failure to Restore Lease Premises. Lessee’s failure to remove improvements, restore the Lease Premises, or surrender possession of the Lease Premises at the expiration or sooner termination of this Lease shall not constitute a renewal or extension and shall not give Lessee any rights in or to the Lease Premises or any part thereof. Lessee shall not be entitled to any compensation for Improvements left on the Lease Premises at the termination or expiration of this Lease. Lessor may, in its sole discretion, elect to treat the Improvements as abandoned and remove all or any portion of Improvements from the Lease Premises. Lessee’s failure to adequately restore the Lease Premises imposes significant financial liability on Lessor. As a result, Lessee shall be responsible for all expenses incurred by Lessor in restoring the Lease Premises, including, without limitation, staff time, environmental work or permitting, contractor costs, and reasonable attorney’s fees. 14.6. Holdover. This Lease terminates without further notice at the end of its term. Lessor may, in its sole discretion, choose to accept Rent for the Lease Premises and allow a period of holdover tenancy. Any holdover tenancy shall be on a month-to-month basis. Lessee’s submittal of annual rent during holdover does not constitute tenancy longer than month-to-month. Any holdover tenancy shall be on the same terms as this Lease insofar as such terms can be applicable to a month-to-month tenancy. The rent for each month or any portion thereof during such holdover period is one hundred fifty percent (150%) of one-twelfth (1/12) of the total compensation for the most recent year paid. The month-to-month tenancy may be terminated by Lessor upon thirty (30) calendar days’ prior written notice to Lessee. 14.7. Holdover on Leases with No Monetary Consideration. In the event this Lease does not require monetary consideration, 14.6 shall continue to apply, and in addition: 1) Lessor shall have the right to establish rent based on the fair Section 3 General Provisions Page 19 of 22 Form 51.16 (Rev. 4/24) market value of the Lease Premises, and 2) In no way shall the prior lease consideration limit damages for trespass. 14.8. Quitclaim. In the event this Lease is terminated prior to expiration, Lessee shall deliver a quitclaim of all rights under this Lease to Lessor on request. Lessee shall execute and deliver such quitclaim to Lessor in a form provided by Lessor. Should Lessee fail or refuse to deliver such a release, Lessor may record a written notice reciting such failure or refusal. This written notice shall, from the date of its recordation, be conclusive evidence against Lessee of the termination of this Lease and all other claimants. Paragraph 15: Additional Provisions 15.1. Conflict in Terms. In the case of any conflict between these General Provisions and Special Provisions found in Section 2, the Special Provisions control. 15.2. Boundaries. This Lease does not establish the State's boundaries in so far as it relates to land and resource jurisdiction and ownership and is made without prejudice to either party regarding any land and water boundary or title claims which may be asserted presently or in the future. 15.3. No Waiver. Lessor’s acceptance of a late or nonconforming performance shall not constitute a waiver unless such waiver is expressly acknowledged by Lessor in writing. Lessor’s delay in or omission to exercise any right under this Lease shall not constitute a waiver. 15.4. Time is of the Essence. Time is of the essence for this Lease and each and all of its terms, covenants or conditions in which performance is a factor. 15.5. Notice. All notices required to be given under this Lease shall be given in writing, sent by U.S. Mail or other reputable private carrier with postage prepaid, to Lessor at the offices of the State Lands Commission and the Lessee at the address specified in this Lease. Lessor’s staff and Lessee may agree to accept any notice by electronic mail. Lessee shall give Lessor notice of any change in its name or address. 15.6. Consent. Lessor’s consent to one transaction or event shall not be deemed to be a consent to any subsequent occurrence. 15.7. Changes. This Lease may only be amended, revised, or supplement by written agreement of the Parties. 15.8. Joint and Several Obligation. If more than one Lessee is a party to this Section 3 General Provisions Page 20 of 22 Form 51.16 (Rev. 4/24) Lease, the obligations of the Lessees shall be joint and several. 15.9. Captions. The section and paragraph captions used in this Lease are for the convenience of the Parties. The captions are not controlling and shall have no effect upon the construction or interpretation of this Lease. 15.10. Severability. If any term, covenant, or condition of this Lease is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Lease shall not be affected thereby, and each term and provision of this Lease shall remain valid and enforceable to the fullest extent permitted by law. 15.11. Representations. Lessee agrees that no representations have been made by Lessor or by any person or agent acting for Lessor except those stated in this Lease. This document contains the entire agreement of the Parties. No verbal agreements, representations, warranties, or other understandings affect this Lease. Lessor and Lessee, as a material part of the consideration of this Lease, waive all claims against the other for rescission, damages, or otherwise by reason of any alleged covenant, agreement, or understanding not contained in this Lease. 15.12. Gender and Plurality. In this Lease, words importing any gender include any or all genders, and the singular number includes the plural whenever the context so requires. 15.13. Survival of Certain Covenants. All covenants pertaining to bond, insurance, indemnification, restoration obligations, breach or remedies shall survive the expiration or earlier termination of this Lease until Lessee has fulfilled all obligations to restore the Lease Premises as required by this Lease. 15.14. Counterparts. This agreement may be executed in any number of counterparts and by different Parties in separate counterparts. 15.15. Delegation of Authority. Lessor and Lessee acknowledge that Lessor as defined herein includes the Commission Members, their alternates or designees, and the staff of the Commission. The ability of staff of the Commission to give consent, or take other discretionary actions described herein will be as described in the then-current delegation of authority to Commission staff. All other powers are reserved to the Commission. 15.16. Successors. The terms, covenants, and conditions of this Lease shall extend to and be binding upon and inure to the benefit of the heirs, successors, and assigns of the respective parties. Section 3 General Provisions Page 21 of 22 Form 51.16 (Rev. 4/24) [Remainder of the page left intentionally blank.] Section 3 General Provisions Page 22 of 22 Form 51.16 (Rev. 4/24) STATE OF CALIFORNIA - STATE LANDS COMMISSION LEASE NUMBER: 8034 This Lease shall become effective only when approved by and executed on behalf of the State Lands Commission of the State of California and Lessee. The submission of this Lease by Lessor, its agent, or representative for examination by Lessee does not constitute an option or offer to lease the Lease Premises upon the terms and conditions contained herein, or a reservation of the Lease Premises in favor of Lessee. Lessee's submission of an executed copy of this Lease to Lessor shall constitute an offer to Lessor to lease the Lease Premises on the terms and conditions set forth herein. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date hereafter affixed. LESSEE: CITY OF BURLINGAME By: ________________________________ Title: ________________________________ Date: _______________________________ LESSOR: STATE OF CALIFORNIA STATE LANDS COMMISSION By: _________________________________ ROBERT BRIAN BUGSCH Title: Chief, Land Management Division Date: ________________________________ Execution of this document was authorized by the California State Lands Commission on _______________________________. ATTACH ACKNOWLEDGMENT Page 1 of 2 EXHIBIT A LEASE 8034 LAND DESCRIPTION PARCEL 1 A 33 foot wide strip of State owned land in the city of Burlingame, County of San Mateo, being a portion of Parcel H as shown in Volume 52 of Parcel Maps at Page 70 in the records of said County, and a portion of Parcel A as shown in Volume 61 of Maps at Pages 20 and 21 in the records of said County, lying 12 feet Northerly and 21 feet Southerly of the following described line: BEGINNING at the westerly terminus of the line described as East 230.31 feet, as shown on said map filed in Volume 61 of maps at Page 21; thence along the westerly prolongation of said line, across said Parcel A and said Parcel H West 138 feet to the terminus of said strip. The sidelines of said strip are to be prolonged or shortened so as to commence at the easterly line of said Parcel A, and terminate a point perpendicular to the terminus of said strip. PARCEL 2 A parcel of State owned land in the City of Burlingame, County of San Mateo, being a portion of Parcel H as shown in Volume 52 of Parcel Maps at Page 70 in the records of said County, more particularly described as follows: COMMENCING at westerly corner of said Parcel H, said corner being the westerly terminus of that line described as N 85°44’23” W 971.30 feet as shown on said Map, thence along the northerly and westerly boundary of said Parcel H, S 85°44’23” E 620.76 feet to the POINT OF BEGINNING; thence along said northerly and westerly boundary, S 85°44’23” E 350.54 feet; thence N 0°17’00” W 244.07 feet; thence leaving said northerly and westerly boundary to a point on the easterly boundary of said Parcel H, N 89°43’ 00” E 50.00 feet; thence along the easterly and southerly boundary of said Parcel H the following four (4) course: 1) S 0°17’00” E 319.28 feet; 2) S 64°00’00” W 19.88 feet; 3) N 0°00’00” E 31.11 feet; 4) N 85°44’23” W 379.37 feet; thence leaving said easterly and southerly boundary N 4°15’37” W 50.56 feet to the POINT OF BEGINNING. Page 2 of 2 END OF DESCRIPTION Prepared by the California State Lands Commission Boundary Unit August 21, 2024. PROFESSIO N A L LAND S U RVEYORST A TE OF CA L I F O RNIADANIE L J .F R I NKNo.8 8 6 4 LEASE PARCEL 2 APN 026-363-470 APN 026-363-470BAY FRONT CHANNELAIRPORT BLVD.LEASE PARCEL 1 APN 026-363-230LEASE 8034 CITY OF BURLINGAME APN 026-363-230 & 470 GENERAL LEASE - PUBLIC AGENCY USE SAN MATEO COUNTY MAP SOURCE: USGS QUAD ANZA PARK, CITY OF BURLINGAME THIS EXHIBIT IS SOLELY FOR PURPOSES OF GENERALLY DEFINING THE LEASE PREMISES, IS BASED ON UNVERIFIED INFORMATION PROVIDED BY THE LESSEE OR OTHER PARTIES AND IS NOT INTENDED TO BE, NOR SHALL IT BE CONSTRUED AS, A WAIVER OR LIMITATION OF ANY STATE INTEREST IN THE SUBJECT OR ANY OTHER PROPERTY.DJF 8/21/2024 EXHIBIT BNO SCALE SITE LOCATION SITE NO SCALE N N SITE SAN FRANCISCO BAY BURLINGAME 1 Meeting Date: 10/17/24 Lease Number: 8034 Staff: M. Schroeder Staff Report 22 APPLICANT: City of Burlingame PROPOSED ACTION: Issuance of a General Lease – Public Agency Use. AREA,LAND TYPE, AND LOCATION: Sovereign land in the Bay Front Channel, adjacent to Assessor’s Parcel Number 026- 363-470, Burlingame, San Mateo County (as shown in Figure 1). Figure 1. Location Staff Report 22 (continued) 2 AUTHORIZED USE: Use of a bicycle and pedestrian bridge and abutment, maintenance easement, and one water pipe attached to the bridge. (as shown in Figure 2). Figure 2. Site Map NOTE: This depiction of the lease premises is based on unverified information provided by the Applicant or other parties and is not a waiver or limitation of any State interest in the subject or any other property. TERM: 25 years, beginning October 17, 2024. CONSIDERATION: The public use and benefit, with the State reserving the right at any time to set a monetary rent if the Commission finds such action to be in the State’s best interests. Staff Report 22 (continued) 3 SPECIFIC LEASE PROVISIONS: x Lessee shall indemnify, hold harmless, and, at the option of Lessor, defend Lessor from all damages, injuries, or claims arising from the construction, maintenance, or operation of Lessee’s facilities on State land, including any attached, suspended, or otherwise fixed to the improvements. Further, Lessee shall indemnify the State for the period of occupation prior to October 17, 2024. x Lessee shall not install, attach, or authorize the placement or attachment of any additional utilities or other improvements on the bridge or within the Lease Premises without Lessor’s prior review and approval. STAFF ANALYSIS AND RECOMMENDATION: AUTHORITY: Public Resources Code sections 6005, 6216, 6301, 6501.1, and 6503; California Code of Regulations, title 2, sections 2000 and 2003. PUBLIC TRUST AND STATE’S BEST INTERESTS: On June 19, 1998, the Commission authorized a 25-year General Lease – Public Agency Use to the Applicant for installation of a bicycle and pedestrian bridge abutment, along with maintenance and construction easement (Item 85, June 19, 1998). That lease expired on April 30, 2023. The Applicant is now applying for a General Lease – Public Agency Use, for the use of a bicycle and pedestrian bridge and abutment, maintenance easement, and one water pipe attached to the bridge. The bridge abutment, prefabricated steel bicycle and pedestrian bridge, and one water pipe have existed for many years at this location. The bridge provides the regional and statewide public the ability to cross and re-cross the Bay Front Channel. In addition, the bridge is part of the San Francisco Bay Trail consisting of several miles of trails allowing the public to explore the San Francisco Bay and shoreline. The bridge has an attached water pipe owned and operated by the Applicant. The water pipe provides critical infrastructure for conveyance of water in support of the Applicant’s operations on both sides of the waterway. The proposed lease includes provisions protecting the public use of the proposed lease area. Furthermore, the bridge and water pipe do not substantially interfere Staff Report 22 (continued) 4 with Public Trust uses in this area. The public can enjoy use of the waterway for recreational Public Trust activities. The proposed lease does not alienate the State’s fee simple interest or permanently impair public rights. The lease is limited to a 25-year term and does not grant the lessee exclusive rights to the lease premises, which allows the Commission flexibility to determine if the Public Trust needs of the area have changed over time. Upon termination of the lease, the lessee may be required to remove all improvements from State land and restore the lease premises to their original condition. The proposed lease requires the lessee to indemnify the State for any liability incurred as a result of the lessee’s activities thereon. CLIMATE CHANGE: Climate change impacts, including sea level rise, increased wave activity, storm events, and flooding may impact the pedestrian/bike bridge and abutment subject to the proposed lease, located on the Bay Front Channel. The California Ocean Protection Council updated the State of California Sea-Level Rise Guidance in 2018 to provide a synthesis of the best available science on sea level rise projections and rates. Commission staff evaluated the “high emissions,” “medium-high risk aversion” scenario to apply a conservative approach based on both current emission trajectories and the lease location and structures. The San Francisco gauge was used for the projected sea level rise scenario for the lease area as listed in Table 1. Table 1. Projected Sea Level Rise for San Francisco Year Projection (feet) 2030 0.8 2040 1.3 2050 1.9 2100 6.9 Source: Table 13, State of California Sea-Level Rise Guidance: 2018 Update Note: Projections are with respect to a 1991 to 2009 baseline. As stated in the Safeguarding California Plan: 2018 Update (California Natural Resources Agency 2018), climate change is projected to increase the frequency and severity of natural disasters related to flooding, drought, and storms (especially when coupled with sea level rise). In tidally influenced waterways, more frequent and powerful storms can result in increased flooding conditions and damage from storm-created debris, especially when storms coincide with high tides. Climate Staff Report 22 (continued) 5 change and sea level rise will further influence coastal and riverine areas by changing erosion and sedimentation rates. Waterfront areas will be exposed to higher water levels, potentially resulting in greater bank erosion and scour than previously experienced. The increase in sea level combined with more frequent and stronger storm events will likely expose the lease area to higher flood risks, comprised of greater total water levels for longer periods of time. The pedestrian/bike bridge (including abutment and water pipe) is a fixed structure that may need additional reinforcement to withstand higher levels of flood exposure, scouring, and more frequent storm events. Regular maintenance, as referenced in the lease, may reduce the likelihood of severe structural degradation or dislodgement. Pursuant to the proposed lease, the Applicant acknowledges that the lease premises and adjacent upland are located in an area that may be subject to the effects of climate change, including scour, sea level rise, and extreme storm events. The pedestrian/bike bridge (including abutment and water pipe) could be impacted by higher water levels and increased scouring towards the later years of the lease term. Any adaptation strategies applied to the pedestrian/bike bridge (including abutment and water pipe) to reduce scouring and flood risks should not adversely impact equitable public access in the area, water quality, shoreline habitat, wildlife, or public health and safety. The Commission prefers nature-based adaptation strategies as explained in the 2023 Shoreline Adaptation Report. Staff also encourages further consideration of the living shorelines strategy that was proposed for this location in the City of Burlingame’s Understanding Risks and Vulnerabilities Memorandum. CONCLUSION: For all the reasons above, staff believes the issuance of the proposed lease will not substantially interfere with Public Trust rights to navigation, fishing, and commerce; or substantially interfere with Public Trust needs and values at this location, at this time, and for the term of the lease; and is in the best interests of the State. OTHER PERTINENT INFORMATION: 1. Approval or denial of the application is a discretionary action by the Commission. Each time the Commission approves or rejects a use of sovereign land, it exercises legislatively delegated authority and responsibility as trustee of Staff Report 22 (continued) 6 the State’s Public Trust lands as authorized by law. The lessee has no right to a new lease or to renewal of any previous lease. 2. This action is consistent with the “Meeting Evolving Public Trust Needs” and “Leading Climate Activism” Strategic Focus Areas of the Commission’s 2021- 2025 Strategic Plan. 3. Staff recommends that the Commission find that this activity is exempt from the requirements of the California Environmental Quality Act (CEQA) as a categorically exempt project. The project is exempt under Class 1, Existing Facilities; California Code of Regulations, title 2, section 2905, subdivision (a)(2). Authority: Public Resources Code section 21084 and California Code of Regulations, title 14, section 15061 and California Code of Regulations, title 2, section 2905. RECOMMENDED ACTION: It is recommended that the Commission: CEQA FINDING: Find that the activity is exempt from the requirements of CEQA pursuant to California Code of Regulations, title 14, section 15061 as a categorically exempt project, Class 1, Existing Facilities; California Code of Regulations, title 2, section 2905, subdivision (a)(2). PUBLIC TRUST AND STATE’S BEST INTERESTS: Find that the proposed lease will not significantly impair the public rights to navigation or substantially interfere with the Public Trust needs and values at this location, at this time, and for the term of the lease; and is in the best interests of the State. AUTHORIZATION: Authorize issuance of a General Lease – Public Agency Use to the Applicant, beginning October 17, 2024, for a term of 25 years, for the use of a bicycle and pedestrian bridge and abutment, maintenance easement, and one water pipe attached to the bridge; consideration: the public use and benefit, with the State reserving the right at any time to set a monetary rent if the Commission finds such action to be in the State’s best interests. MIMIMIMIMINUNUNUNUNUTETETETETE ITETETETETEM M M MM ThThThThThisisisss CCCCCalaaaaenenenenendadadadadar r r rr ItItItIItememememem NNNNNo.o.o.o.o.CCCCC$5$5$5$5$5 wwwwwasasasasas aaaaapppppppppprororororoveveveveveddddd asasasaa Minununununutetetetete IIIIItetetetetemmmmm NoNoNoNN.....8585858585 bbbbby y y y y thththththe e e ee CaCaCaCaCalllifofofofofornrnrnrnrniaiaiaaa SSSSStatatatatatetetetete Lands Cooooommmmmmmmmmisisisisissisisisisiononononon bbbbby y y yy a a a aa vovovovovotett of 3 to - at its 6-19-d meeting. CALENDDDDDAAAAARRRRR IITTTEM C8888855555 A 19 066666/1/1/1/1/19/9/9///9898989898 W 25222244444444449 99 99 N. 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CONSIDERERERERERATATATATATIOIOIOIOION:N:N:NN Thhhhheeeee pupupupupublblblblblicciccc uuuseseses aaaaandndndndnd bbbbbenenenenenefefefefefititititit;;;;wiwiwiwiwiththththth SSSStaataatatetetetete rrrrresesesesesererererervivivivvngngngngg ttthehehehehe rrrigigiggghththth aaat t t annnanany y y yy tititititimememememe tttttooooo seseseseset t t tt a aaaa mooooonnnnneeeeetttttaaaaarrrrryyyyy rent if the Commission finds such action to be in the State's best interest. OTHER PEPPPPRTINNNNNENENENENT T TT T INININIFOFOFOFOFORMRMRMRMRMATTATTATIOIOIOIOON:N:N:NN: 1 .Applicant has a right t to use the uplands adjoining theh lease premises. 2.Onnnnn AAAAAppppprrrrriiiiillll 2222266666,,, 1111199999999944444,,, tttthhhhheeeee SSSaaaaannnnn FFFFFrrrrraaaaannnccccciiiiissssscccccooooo BBBBBaaaaayyyyy CCCCCooooonnnnnssssseeeeerrrvvvvvaaaaatttttiiiooooonnnnn aaaaannnnnddddd DDDDDeeeeevvvvveeeeelllooooopppppmmmmmeeeeennnnnttttt Cooooommmmmmmmmmisisisissisisiiononononon (((((BCBCBCBCBCDCDCDCDCDC) ) ) ) ) grgrgrgrgranananananteteteteted d dd d PePePeeermrmrmrmrmititittt #####MMMMM93939399-4-4-4-4-46 6 6 66 ununununundededededer r r itititiisssss cecceccrtrtrtrrifififififieieieieied program. (Title 14, California Codee of Regulations, section 15251 (h)). 3.Staaaaaffffffffff hhhhhaaaaasssss rrrrreeevvvvviiieeeeewwwwweeeeeddddd ttthhhhheee dddddooooocccccuuuuummmmmeeeeennnnnt aaaaannnnnddddd dddddeeeeettteeeeerrrrrmmmmmiiiiinnnnneeeeeddddd ttttthhhhhaaaaattttt ttttthhhhheeeee cccccooooonnnnndddiiiitttiiiiiooooonnnnnsssss,,,, aaaaasssss spppppeeeeeccccciiiiifffffiiieeeeeddddd iiinnnnn TTTiitttttlleeeee 11144444,,, CCCCCaaaallliffffooooorrrrrnnnnniiiaaa CCCCCooooodddddeeeee oooofffff RReeeeeggggguuulllaaaaatttttiiiooooonnnsssss,,,,, ssseeeeecccccttttiiiiooooonnnnn 1111155555222225555533333 (((bbbbb))))) haaaaavvvvveeeee bbbbbeeeeeeeeeennnnn mmmmmeeeeettt fffooooorrrrr ttttthhhhheee CCCCCooooommmmmmmmmmiissssssssssiiiiiooooonnnn tttooooo uuuuussssseeeee ttttthhhhheeeee eeeeennnnnvvvvvirrrooooonnnnnmmmmmeeeeennnnntttttaaaaalllll aaaaannnnnaaaaalllyyyyysssssiiiisssss doooocccccuuuuummmmmeeeeennnnnttttt ccccceeeeerrrrrtttiiiiifffffiiieeeeeddddd bbbbbyyyyy ttttthhhhheeeee BBBBBCCCCCDDDDDCCCCC aaaaasssss aaaaa (((((NNNNNeeeeegggggaaaaatttiiiiivvvvveee DDDDDeeeeeccccclllaaaaaration) equivalent in order to comply with the requirements of the CEQA. -1- CACACACACALELLELLENDDNDDNDARARRARR PPPAGGAGE EEEE MIMIMIMMNUNUNUNTETETEEE PPPAGAGAGAGAGEEEEE 440000077777 CALENDAR ITEM NO. C85 (CONT'D) APPROVVVVVAAAAALLLLLSSSSS OOOOOBBBBBTTTTTAAAAAIIINNNNNEEEDDDDD::: San Francisco Bay CoCCCCnservation and Development Commission EXHIIIBITSSSSS: A.Laaaaandndndndnd DDDDDesesesesescrcrcrccripipippiptititittonoooo B.Location Map PERMIT SSSSSTTTTTRRRRREEEEEAAAAAMMMMMLLLIIIINNNNINNNNNGGGGG AAAAACT DEADLINE: December 7, 1998 REEECOCOCOCOCOMMMMMMMMENENENENENDEDEDEDEDEDDDDD ACACACACCTITITITITIONONONONON::: IT IS RECOMMENDED THATT THE COMMISSION: CEQA FINNNNDDDDDIIIIINNNNNGGGGG::: FIIIINDNDNDNDND TTTTTHAHAHAHAHAT T T TT ANANANANAN EEEEENVNVNVNVNVIRIRIRIRIRONONONONONMEMEMEMEMENTNTNTNTNTALALALALAL AAAAANANANANANALYLYLYLYLYSISISSISSSSSS DODODODODOCUCUCUCUCUMEMEMEMEMENTNTNTNTNT, SASASAAANNNNN FRRRANANANANANCICICICICISCSCSCSCSCOOOO BABABABABAY Y YY Y COCOCCOCNSNSNSNSNSERERERERERVAVAVAVAVATITTTITONONONONON AAAAANDNDNDNDND DDDDDEVEVEVEVEVELELELELELOPOPOPOPOPMEMEMEMEMENTNTNTNTNT,,,(((((BCBCBCBCBCDCDCDCDCDC PEEEEERRRRRMMMMMIIIIITTTTT ##### MMMMM9999933333-----444666))))),,, WWWWWAAASSSSS AAAAADDDDDOOOOOPPPPPTTTTTEEEEEDDDDD FFFOOOOORRRRR TTTTTHHHHHIIISSSS PPPPPRRRRROOOOOJJJEEEEECCCCCTTTTT BBBBBYYYY TTTTTHHHEEEE COOOOOMMMMMMMMMMIIISSSSSSSSSSIIIOOOOONNNNN (BBBBBCCCCCDDDDDCCCCC) UUUUUNNNNNDDDDDEEEEERRRRR ITTTTTSSSSS CCCCEEEEERRRRRTTTTTIIFFFFFIIIIIEEEEEDDDDD PPPPPRRRRROOOOOGGGRRRRRAAAAAMMMMM (TTTTTIIIIITTTTTLEEEEE 111114444,,, CAAAALLLLLIFFFFFOOOOORRRRRNNNNNIIIAAAAA CCCCCOOOOODDDDDEEEEE OOOOOFFFFF RRRRREEEEEGGGGGUUUUULLLLLAAAAATTTTTIOOOOONNNNNSSSSS,,,, SSSSSEEEEECCCCCTTTTTIIIIOOOOONNNNN 111115555522222555551 (((((hhhhh)))))))))), AAAND THHHHHATATATATAT TTTTTHEHEHEHEHE CCCCCALALALALALIFIFFIFFORORORORORNININININA AA A A STSTSTSTSTATATATATATEEEEE LALALALALANDNDNDNDNDS SS COCOCOCOCOMMMMMMMMMMISSISSISSISISISISIONONONONON HHHHHASASASASAS REEEEEVVVVVIIIIIEEEEEWWWWWEEEEEDDDDD AAAAANNNNNDDDDD CCCCCOOOOONNNNNSSSSSIIIIIDDDDDEEEEERRRRREEEEEDDDDD TTTTTHHHEEEEE IIIIINNNNNFFFFFOOOOORMATION THEREIN AND CONCURS IN BCDC'S DETERMINATION. AUTHORRRRRIIZZZAAAAATTTTTIIIIIOOOOONNNNN::::: AUUUUUTHTHTHTHTHORORORORORIZIZZIZZE EE ISISISISISSUSUSUSUSUANANANANANCECECECECE TTTTTOOOOO THTHTHTHTHE E E E E CICCICCITYTYTYTYTY OOOOOFFFFF BUBUBUBUBURLRLRLRLRLINININININGAGAGAGAGAMEMEMEMEME OOOOOFFFFF A A A AA GEEEEENNNNNEEEEERRRRRAAAAALLLL LLLEEEEEAAAAASSSSSEEEEE --- PPPPPUUUUUBBBBLLLLLIIIIICCCCC AAAAAGGGGGEEEEENNNNNCCCCCYYYYY UUUUUSSSEEEEE,,,, BBBBBEEEEEGGGIIIINNNNNNNNNNIIINNNNNGGGGG MAY 1, 19998, FOOOOOR RRRR A A A A A TETETETETERMRMRMRMRM OOOOOFFFFF 2525252525 YYYYYEAEAEAEAEARSRSRSRSRS,,,FOFOFOFOFOR R R R R INNINNINSTSTSTSTSTALALALALALLALALATITITITITONONONONON OOOOOFFFF PEEEEEDDDDDEEEEESSSSSTTTTTRRRRRIIIIIAAAAANNNNN/////BBBBBIIIKKKKKEEEEE BBBBBRRRRRIDDDDDGGGGGEEEEE AAAAABBBBBUUUUUTTTTTMMMMMEEEEENNNNNTTTTT, AAAAALLLLOOOOONNNNNGGGGG WWWWWIIIIITTTHHHHH MAAAAAIIIIINNNNNTTTTTEEEEENNNNNAAAAANNNNNCCCCCEEEEE AAAAANNNNNDDDDD CCCCCOOOOONNNNNSSSSSTTTTTRRRRRUUUUUCCCCCTTTTTIIIOOOOONNNNN EEEEEAAAAASSSSSEEEEEMMMMMEEEEENNNNNTTTTT OOOOONNNNN TTTTTHHHHHEEEEE LLLLLAAAAANNNNNDDDDD DEEEEESCSCSCSSRIRRRRBEBEBEBBD D D DD ONONONONON EEEEEXHXHXHXHXHIBIBIBBBITITITITIT AAA AAAAATTTTTTTTTTACACACAAHEHEHEHHD D D DD ANANANANANDDDD BYBYBYBYBY TTTTTHIHIHIHHSSSSS REREREREREFEFEFEFEFERERERERERENCNCNCNCNCE E EEE MAAAAADDDDDEEEEE AAAAA PPPPPAAAAARRRRRTTTTT HHHHHEEEEERRRRREEEEEOOOOOFFFFF;;; TTTTTHHHHHEEEEE PPPPPUUUBBBBBLLLLLIIICCCCC UUUUUSSSSSEEEEE AAAAANNNNNDDDDD BBBBBEEEEENNNNNEEEEEFFFFFIIITTTTT;;;;; WWWWWIIIIITTTTTHHHHH TTTTTHHHHHEEEEE STTTTTAAAAATTTTTEEEEE RRRRREEEEESSSSSEEEEERRRRRVVVVIIINNNNNGGGGG TTTTTHHHHHEEEEE RRRRRIIIGGGGGHHHHHTTTTT AAAAATTTTT AAAAANNNNNYYYYY TTTIIIIIMMMMMEEEEE TTTTTOOOOO SSSSSEEEETTTTT AAAAA MMMMMOOOOONNNNNEEEETTTAAAAARRRY REEEEENTNTNTNTT IIIF F F FF THTHTHTHTHEEEE COCOCOCOCOMMMMMMMMISISISSSSISISISISIONONONONON FINDS SUCH ACTION TO BE IN THE STATE'S BEST INTEREST. -2- CACACAAALELELELELENDNDNDARARARARAR PPPAGAGAAGAE EEEE MIMIMIMNUNNUNNUTETETETTE PPPPPAGAGAGAGAGE EE 4040040088888 Exhhhiiibbbiittt AAA Land Descriptiion W 25449 PARCEL 1 Reeeeealalalalal PPPPPrororororopepepepepertrtrtrryyyyy ininininin ttthehehehehe cccccititity y y yy ofofofofof BBBBBurururururlililiiingngngngngamamamamame,e,e,CCCCCououououountntntntny y yy y ofofofofof SSSSSananananan MMMMMatatatatateoeoeoeoeo. aaaaa popopopoportrtrtrtrtioioioioion n n n ofofofofof PPPPParararararcececececelllll HHHHH asasasasas sssshohohohhwnwnwnwnw iiiiinnnnn Volume 52 of Parcel Maps at Page 70 in the records of said County, being described as follows: Begiggggnning at thehehee mmmosososost tt sososoooutuuuheeeerly y yyy coocooorner of f ff saaaaididdidd Parrrrcececeecel H.ttttthehehheencccce N NNNN 64 00'00" E. 19.88 feet: Thence N 0017'00" W, 46.35 feet to the True Point of Beginning: Thence S 89 43'00" W. 35.00 feet Thence N 00 17'00" W. 33.00 feet Thence N 89 43'00" E, 35.00 feet Thhhhhenenenenencecececc SSS 00000010101007'77 00000000"""E,E,E,E,E, 33.00 feet to the True Point of Beginning and containing 1155 square feet of land more or less. PARCEL 2 Reeeeealalalalal PPPPProrororrpepepeppertrtrtrtrty yyyy ininininin ttttthehehehehe CCCCCititittty y y y y ofofofofof BBBBBurururuulillllngngngngngamamamamame,e,e,e,e,CCCCCouuouuountntntntnty y y yy ofofofofof SSSSSananananan MMMMMatatatatateoeoeoeoeo,,,,,a aa aa popopopprtrtrtrtrtioiinnnnn ofofofofof PPPPParararararcececececel llll HHHHH asasassas ssssshohohooownwnwnwnwn iiinnnnn Volume 52 of Parcel Maps at Page 70 in the records of said County, being described as follows: Beeeeegiggigginnnnnnnnnninnnnnggggg atattatt ttttthehehehh mmmmmososososost tt wewewewewestststststererererelylylylyly cccccororororornenenenener rr r ofoofoof PPPPParararararcececececel l l A A AA A asasasasas ssssshohohoohownwnwnwnwn iiinnn VoVoVoVoVoluuuuumememememe 22222888 ofofoff PPPPParararararcececececelll MaMaMaMaMapspspsss aaaaat t t tt paagegegegege 333339,9,9,9,9,sssaiaiaiaiaiddddd poppppint being on the southeasterly right-of-way line of Airport Boulevard as shown on said map; Thence S 46 00'00" E,,,588.29 feet to a pppoiiint on the northerly y liiiiine of said Parcel H; Thence S 85 44'23" E,54.39 feet to the True Point of Beginning; Thence S 85 44'23" E,,343.05 feet: Thence N 00 17'00" W, 244.07 feet: Thence N 8943'00" E,,,, 50.00 feet;; Thence S 00 17'00" E. 319.27 feet; Thence S 64 00'00" W,19.88 feet; Thence N 00 00'00" E,,31.11 feet; Thence N 85 44'23" W,379.37 feet; Thhhhhenenenenencecececece NNNNN 000004 444 4 1515151515'333337"7777 W, 50.00 feet to the True Point of Beginning and containing 00000.747 acres of land more or less. REVIEWED BY SFBCC BOUNDARY STAFF APRIL 1998 CACACACCLELELENDNDNDARARAR PPPAGAGAGAGEEE MIMIMIMIMINUUNUUNUTETETTET PPPAGAGAGAGAGEEEEE 4040040099999 W SWSWSacrameamamamamntontontonn IIISSSSS AAAAA CCCCCRRRRR Adenopppiiei DirDirDirDiDiununununun dyesdyesdyesyesye NORNORNORORORTHTHTHTHTHEr VEr VEr VrVrVeraneraneraeraneraneee NapNapNapNapNapaaaaa 'sssss AAAAA OOOOOFaFaFaFaFailililililtititittelelelelelddddd verververtontontontt MoMoMoMoMontntntnnthrhrhrhrhrumumumumumsssBedBedBedBees LsLsLLandandandandandingingingii burburburbuburSanSanSanSanSantatatatata IslIslIslslslandandandandand SaSaSaSaSannnnn RaRaRaRaRatatatataannnnn SenSenSenSeSen SaSaSaSaSannnnn PaPaPaPaPabibibibibiddddd ConConConConCocorcorcorcorddddQueQueQueQueQueminiminming.g.g.g.g. fofofofoortrtrtrtree e ee PUPUPPPLLLLLLLLLL M.oM.oM.oMoModerderderdede RiRiRiRiRive vvevve HalHalHalHalHallllll ANANANNNBeBeBeBeBerTrTrTrTrTibibibbuururuuononofinfinfiniCaCaCaCaCar rr OFOFOFOFOF BBBBBERERERERERKKKKKSauSauSauSauSausalsalsalsalsalitoitoitototo PoemPoemPoems LasLasLaLabes besbes besbes SASASASASANNNNN FRFRFRFRFRANANANANACCCCC FRFRFRFFANNNCICICICICISCSCSCSCSC DaDaDaDaDalylylylyy CCCCCitititttyyy yy urburburbrbrbaneaneaneaneane SanSanSanSanSa FraFraFrararancincincincinciscoscoscococo SanSanSanSanSan BrBrBrBrBrunounounonono NNNYSSSFRFRFRFFFRFRFRFF EEEEExxxxxhhhhhiiibbbbbiiiiittttt BBBBBPacPacPacccifiifiifiiicacacacaca WWWWW 2222255555444444444499999BurBurBurBurBurlinlinlingagagaggaSSSSSIIIIITTTTTEEEEE MossMossMossossoss BeaBeaBeaBeaBeachbchbchbchch SanSanSananan GrGrGrGrGregoegoegoegoegononononono 414141414100000CACACACACALELELELELENDNDNDNDNDARARARARARPPPPPAGAGAGAGAGEEEEEN LN LN LNLNLomomomomom PescaPPderoderodero PermePermePerme 0000000022222666665555566666MIMIMIMIMINUNUNUNUNUTETETETETEPPPPPAGAGAGAGAGEE EEE 1 STAFF REPORT AGENDA NO: 9h MEETING DATE: January 21, 2025 To: Honorable Mayor and City Council Date: January 21, 2025 From: Maria Saguisag-Sid, Human Resources Director – (650) 558-7209 Subject: Adoption of a Resolution Authorizing Amendment No. 1 to the Professional Services Agreement Between the City of Burlingame and NFP to Provide Deferred Compensation and Defined Contribution Compliance Assistance, and Increasing the Deferred Compensation Fund Appropriation by $36,000 RECOMMENDATION Staff recommends that the City Council adopt the attached resolution authorizing the City Manager to execute an amendment to the agreement with NFP to add an additional scope of service Provider Analysis/Service Provider Search services and conduct an RFP for Recordkeeping Services. BACKGROUND The City of Burlingame currently contracts with NFP to provide professional compliance assistance services for the City’s 457(b) plan. In partnership with the City’s Deferred Compensation Committee, NFP advises the City by monitoring investment performance, reviewing the 457(b)-investment policy, and supporting the monitoring of the City’s recordkeeping vendor. The City’s current 457(b) recordkeeper service provider is Empower, who acquired the City’s prior recordkeeper Mass Mutual in 2022. The services provided by NFP are essential for proper governance of the 457(b) plan to ensure the City meet its fiduciary responsibilities. DISCUSSION As part of the City’s due diligence in overseeing the 457(b) plan, the Deferred Compensation Committee discussed issuing a Request for Proposals (RFP) for recordkeeper service providers. The last time an RFP was conducted was in 2016, when the City moved from ICMA-RC and CalPERS/Voya to Mass Mutual. As noted earlier, Mass Mutual was acquired by the City’s current recordkeeper, Empower. While the services provided by Empower have been adequate, there is interest in issuing this RFP to analyze and review if the services and fees provided by Empower are competitive with similar Deferred Compensation Compliance Assistance Agreement Amendment January 21, 2025 2 recordkeeping service providers. This review is outside of the normal scope of services currently provided to the City by NFP, so an amendment to perform the review and RFP service is required to move forward. FISCAL IMPACT This additional service has a one-time fee of $36,000. Staff also proposes increasing the Deferred Compensation Fund budget appropriation by $36,000. Exhibits: • Resolution • Amendment • Engagement Agreement • NFP Agreement dated June 2, 2021 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT NO. 1 WITH NFP TO PROVIDER RECORDKEEPER SERVICE PROVIDER ANALYSIS /SERVICE PROVIDER SEARCH SERVICES AND INCREASE THE DEFERRED COMPENSATION FUND APPROPRIATION BY $36,000 WHEREAS, the City contracts with NFP to provide compliance assistance expertise for the deferred compensation plan assets; and WHEREAS, the City contracts with Empower, formerly Mass Mutual, as the deferred compensation plan administrator/recordkeeper; and WHEREAS, California Constitution Section 17 of Article XVI and California Code Section 53609 require public sector plan sponsors to manage deferred compensation plans in a prudent, due diligence manner on behalf of the employees and participants; and WHEREAS, the City has convened a Deferred Compensation Committee to ensure the Plan is administered solely in the interest of, and for the exclusive purpose of, providing benefits to participants and their beneficiaries while defraying reasonable expense of administering the Plan; and WHEREAS, the City contracts with NFP to perform on-going due diligence services for the Plan and to provide direction and oversight to the Deferred Compensation Committee; and WHEREAS, the City wishes to add to the scope of service that NFP provides in order to perform a recordkeeper analysis and conduct a request for proposal search for recordkeepers; and WHEREAS, the City needs to amend the current contract with NFP to provide this additional service and increase the Deferred Compensation Fund appropriation by $36,000. NOW, THEREFORE, BE IT RESOLVED, that the City Manager is authorized to execute Amendment No. 1 to the Professional Services Agreement with NFP attached hereto as Exhibit A. Peter Stevenson, 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 21st day of January, 2025, and was adopted thereafter by the following vote: AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers: Meaghan Hassel-Shearer, City Clerk AMENDMENT NO. 1 TO AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF BURLINGAME AND NFP THIS AMENDMENT NO. 1 is by and between NFP (“Consultant”) and the City of Burlingame, a public body of the State of California (“City”) (collectively, the “Parties”) to provide Deferred Compensation and Defined Contribution Consulting Services hereby amends the Agreement for Professional Services between the Parties dated June 1, 2021, hereinafter called the “Agreement.” RECITALS WHEREAS, on June 1, 2021, the City and Consultant executed that certain Agreement for Professional Services (“Agreement”) for Deferred Compensation and Defined Contribution Consulting Services with a term expiring on August 31, 2026; and WHEREAS, the City has determined that additional work is required from the Consultant to manage a service provider search for a Deferred Compensation Administrator/Recordkeeper services; and WHEREAS, the Consultant is available to provide such services for the benefit of the City as outlined in Exhibit A – Engagement Agreement and 408(B)(2) disclosure. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. The above Recitals are fully incorporated into this Amendment No. 1 to the Agreement. 2. The City agrees to compensate the Consultant in an amount not to exceed thirty-six thousand dollars ($36,000) for this additional scope of work. 3. Except as expressly modified in this Amendment No 1, all other terms and conditions contained in the original Agreement shall remain in full force and effect. 1 IN WITNESS WHEREOF, Consultant and City execute this Amendment No. 1 to the Agreement, effective as of the date of the City’s execution thereof. CITY OF BURLINGAME CONSULTANT 501 Primrose Road NFP Burlingame, CA 94010 120 Vantis, Suite 400 Aliso Viejo, CA By: By: Lisa K. Goldman City Manager Name: Date: Title: Date: Attest: Meaghan Hassel-Shearer City Clerk Approved as to form: Michael Guina City Attorney Attachments: Exhibit A – Engagement Agreement and 408(B) Disclosure 2 ENGAGEMENT AGREEMENT AND 408(B)(2) DISCLOSURE This agreement is between NFP, Inc. (herein “Company”), a qualified retirement plan consulting firm, and City of Burlingame, (herein “Client”), a qualified retirement plan sponsor, for services described below that are offered to Client. 408(b)(2) Disclosure. Regulations promulgated by the U.S. Department of Labor, known as the “408(b)(2) regulations,” require covered service providers to ERISA-covered retirement plans to provide disclosures, in writing, regarding their services and compensation. The disclosures contained in this Agreement are made in accordance with section 408(b)(2) regulations and are intended to assist the Client in determining whether Adviser’s services and compensation are reasonable. Within 30 days of written request by the Client, the Adviser will provide all information regarding this Agreement and compensation in order that Client may comply with all reporting and disclosure requirements of ERISA. In the event the Client desires additional information regarding Adviser’s services and/or compensation, the Client may request further clarification in writing and the Adviser will respond no later than 30 days from receipt of written request. In the event of any material change to the terms of the Agreement or compensation occur, the Adviser will provide the Client disclosure of any change within a reasonable period of time after the Adviser becomes aware of the material change. If the Adviser discovers any error or omission in the provision of disclosures required by section 408(b)(2) regulations, the Adviser will notify the Client of same, and provide missing/corrected disclosures, within 30 days of discovery. Service Provider Analysis/Service Provider Search Assist with the evaluation and selection of the administrator/recordkeeper for the plans, based on detailed research and analysis of up to 6 (six) service providers Ability to work with client-directed RFP templates Review process includes an evaluation of administrative, recordkeeping, compliance, cybersecurity, employer website, employee website, statements, investment management, and employee communication services Analysis of Total Plan Costs (both Employer & Employee costs) including Revenue Sharing and detailed fee schedules for all plans Written report and analysis of approximately 60 pages, prepared by Company In-person or virtual review of Analysis for up to two hours Assist in the selection, coordination, and review of service provider finalist presentations of up to 4 (four) service providers in 2 (two) continuous days Provide an Executive Summary of the finalist presentations Assist with the service provider selection through coordinating follow up questions, clarifications of capabilities, and documentation of the final decision Non-Disclosure & Confidentiality Company or Client may disclose certain business, financial, technical, intellectual property, materials, data, and other information to each other. All such information shall be considered "Confidential Information". The receiving party shall use Confidential Information solely for the purposes of rendering services pursuant to and in accordance with this Agreement and shall not, without the prior written consent of the other party, disclose any Confidential Information to any person, other than its officers and directors with a need to know. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, Trademark ™, ServiceMark, or other intellectual property of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party, except for the use of Confidential Exhibit A Information that is expressly permitted herein. Each of the parties acknowledges that any disclosure or unauthorized use of Confidential Information will constitute a material breach of this Agreement and cause substantial harm to the party that provided such information initially for which damages would not be a fully adequate remedy. Disclaimer of Tax & Legal Advice The following services are provided to assist the Client and the fiduciaries of its qualified plan in performing their duties under the plan and the Employee Retirement Income Security Act of 1974 (ERISA). In providing these services, Company will not exercise any discretion or control over the operation or assets. All decisions regarding the assets of the plan, the interpretation of its provisions, compliance with applicable legal requirements and operation of the plan must be made by Client. The services, opinions, and ideas expressed by Company should not be considered general or ERISA tax or legal advice. Client should engage an ERISA tax or legal adviser who can provide advice based on the particular facts and circumstances at issue. Termination of Agreement (Disclosed pursuant to and in accordance with the 408(b)(2) regulation) This agreement may be terminated by either party upon providing written notification to the other party. Adviser will not accept any termination instructions, including account liquidation instructions, unless provided in writing by Client. In the event of termination of this agreement, Adviser will have no obligation whatsoever to recommend any action with respect to the assets in Client’s account. If services are terminated within five (5) business days from the Effective Date of this Agreement (shown below) services will be terminated without penalty. After the initial (5) business days, Adviser is entitled to fees in connection with its services provided hereunder for the period to such termination. The Client will be responsible for a pro rata portion of its (quarterly, semi-annual) fee for such additional period. Any such additional fee will be paid concurrently with the notice of termination if given by Client and within 5 business days following the notice of termination by Adviser. Description of Fees: A one-time fee of $,000 will be invoiced to the client upon delivery of the completed report. Effective Date of Agreement: 10/1/2024 I am authorized to sign below on behalf of Client: Name of Client Representative Title Signature of Client Representative Date Name of Company Representative Title Signature of Company Representative Date AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF BURLINGAME AND NFP THIS AGREEMENT is by and between NFP (“Consultant”) and the City of Burlingame, a public body of the State of California (“City”). Consultant and City agree: 1. Services. Consultant shall provide the Deferred Compensation and Defined Contribution Consulting Services set forth in Exhibit A, attached hereto and incorporated herein. 2. Compensation. Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum compensation amount, Consultant agrees to perform all of the Scope of Services herein required of Consultant as indicated at Exhibit A, including all materials and other reimbursable amounts (“Maximum Compensation”). Consultant shall submit invoices as the work is completed over the contract term. All bills submitted by Consultant shall contain sufficient information to determine whether the amount deemed due and payable is accurate. In accordance with the Scope of Services, bills shall include a brief description of services performed, the date services were performed and by whom, a brief description of any costs incurred and the Consultant’s signature. 3. Term. This Agreement commences on full execution hereof and terminates on August 31, 2026 with three (3) one-year renewal options at the election of the City or unless otherwise extended or terminated pursuant to the provisions hereof. Consultant agrees to diligently prosecute the services to be provided under this Agreement to completion and in accordance with any schedules specified herein. 4. Assignment and Subcontracting. A substantial inducement to City for entering into this Agreement is the professional reputation and competence of Consultant. Neither this Agreement nor any interest herein may be assigned or subcontracted by Consultant without the prior written approval of City. It is expressly understood and agreed by both parties that Consultant is an independent contractor and not an employee of the City. 5. Insurance. Consultant, at its own cost and expense, shall carry, maintain for the duration of the Agreement, and provide proof thereof, acceptable to the City, the insurance coverages specified in Exhibit B, "City Insurance Requirements," attached hereto and incorporated herein by reference. Consultant shall demonstrate proof of required insurance coverage prior to the commencement of services required under this Agreement, by delivery of Certificates of Insurance to City. 6. Indemnification. Consultant shall indemnify, defend, and hold 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 negligence, recklessness or willful misconduct of Consultant, 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 Consultant 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 pursuant to California Civil Code section 2782.8. Acceptance of insurance certificates and endorsements required under this Agreement does not 2 relieve Consultant 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 applicable to any of such damages or claims for damages. 7. Termination and Abandonment. This Agreement may be cancelled at any time by City for its convenience upon written notice to Consultant. In the event of such termination, Consultant shall be entitled to pro-rated compensation for authorized Services performed prior to the effective date of termination provided however that City may condition payment of such compensation upon Consultant's delivery to City of any or all materials described herein. In the event the Consultant ceases performing services under this Agreement or otherwise abandons the project prior to completing all of the Services described in this Agreement, Consultant shall, without delay, deliver to City all materials and records prepared or obtained in the performance of this Agreement. Consultant shall be paid for the reasonable value of the authorized Services performed up to the time of Consultant’s cessation or abandonment, less a deduction for any damages or additional expenses which City incurs as a result of such cessation or abandonment. 8. Ownership of Materials. All documents, materials, and records of a finished nature, including but not limited to final plans, specifications, video or audio tapes, photographs, computer data, software, reports, maps, electronic files and films, and any final revisions, prepared or obtained in the performance of this Agreement, shall be delivered to and become the property of City. All documents and materials of a preliminary nature, including but not limited to notes, sketches, preliminary plans, computations and other data, and any other material referenced in this Section, prepared or obtained in the performance of this Agreement, shall be made available, upon request, to City at no additional charge and without restriction or limitation on their use. Upon City’s request, Consultant shall execute appropriate documents to assign to the City the copyright or trademark to work created pursuant to this Agreement. Consultant shall return all City property in Consultant’s control or possession immediately upon termination. 9. Compliance with Laws. In the performance of this Agreement, Consultant shall abide by and conform to any and all applicable laws of the United States and the State of California, and all ordinances, regulations, and policies of the City. Consultant warrants that all work done under this Agreement will be in compliance with all applicable safety rules, laws, statutes, and practices, including but not limited to Cal/OSHA regulations. If a license or registration of any kind is required of Consultant, its employees, agents, or subcontractors by law, Consultant warrants that such license has been obtained, is valid and in good standing, and Consultant shall keep it in effect at all times during the term of this Agreement, and that any applicable bond shall be posted in accordance with all applicable laws and regulations. 10. Conflict of Interest. Consultant warrants and covenants that Consultant presently has no interest in, nor shall any interest be hereinafter acquired in, any matter which will render the services required under the provisions of this Agreement a violation of any applicable state, local, or federal law. In the event that any conflict of interest should nevertheless hereinafter arise, Consultant shall promptly notify City of the existence of such conflict of interest so that the City may determine whether to terminate this Agreement. Consultant further warrants its compliance with the Political Reform Act (Government Code § 81000 et seq.) respecting this Agreement. 11. Whole Agreement and Amendments. This Agreement constitutes the entire understanding and Agreement of the parties and integrates all of the terms and conditions 3 mentioned herein or incidental hereto and supersedes all negotiations or any previous written or oral Agreements between the parties with respect to all or any part of the subject matter hereof. The parties intend not to create rights in, or to grant remedies to, any third party as a beneficiary of this Agreement or of any duty, covenant, obligation, or undertaking established herein. This Agreement may be amended only by a written document, executed by both Consultant and City's City Manager, and approved as to form by the City’s City Attorney. Such document shall expressly state that it is intended by the parties to amend certain terms and conditions of this Agreement. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. Multiple copies of this Agreement may be executed but the parties agree that the Agreement on file in the office of City's City Clerk is the version of the Agreement that shall take precedence should any differences exist among counterparts of the document. This Agreement and all matters relating to it shall be governed by the laws of the State of California. 12. Capacity of Parties. Each signatory and party hereto warrants and represents to the other party that it has all legal authority and capacity and direction from its principal to enter into this Agreement and that all necessary actions have been taken so as to enable it to enter into this Agreement. 13. Severability. Should any part of this Agreement be declared by a final decision by a court or tribunal of competent jurisdiction to be unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement, absent the unexcised portion, can be reasonably interpreted to give effect to the intentions of the parties. 14. Notice. Any notice required or desired to be given under this Agreement shall be in writing and shall be personally served or, in lieu of personal service, may be given by (i) depositing such notice in the United States mail, registered or certified, return receipt requested, postage prepaid, addressed to a party at its address set forth in Exhibit A; (ii) transmitting such notice by means of Federal Express or similar overnight commercial courier (“Courier”), postage paid and addressed to the other at its street address set forth below; (iii) transmitting the same by facsimile, in which case notice shall be deemed delivered upon confirmation of receipt by the sending facsimile machine’s acknowledgment of such with date and time printout; or (iv) by personal delivery. Any notice given by Courier shall be deemed given on the date shown on the receipt for acceptance or rejection of the notice. Either party may, by written notice, change the address to which notices addressed to it shall thereafter be sent. 15. Miscellaneous. Except to the extent that it provides a part of the definition of the term used herein, the captions used in this Agreement are for convenience only and shall not be considered in the construction of interpretation of any provision hereof, nor taken as a correct or complete segregation of the several units of materials and labor. Capitalized terms refer to the definition provided with its first usage in the Agreement. When the context of this Agreement requires, the neuter gender includes the masculine, the feminine, a partnership or corporation, trust or joint venture, and the singular includes the plural. 4 The terms “shall”, “will”, “must” and “agree” are mandatory. The term “may” is permissive. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. When a party is required to do something by this Agreement, it shall do so at its sole cost and expense without right to reimbursement from the other party unless specific provision is made otherwise. Where any party is obligated not to perform any act, such party is also obligated to restrain any others within its control from performing such act, including its agents, invitees, contractors, subcontractors and employees. IN WITNESS WHEROF, Consultant and City execute this Agreement. CITY OF BURLINGAME CONSULTANT: NFP 501 Primrose Road 120 Vantis, Suite 400 Burlingame, CA 94010 Aliso Viejo, CA By: ___________________ By: __________________ Lisa K. Goldman Title: __________________ Title: ________________ City Manager Date: __________________ Date: _________________ Attest: _____________________ Federal Employer ID Number: 77-1465974 Meaghan Hassel-Shearer License Number: _________________ City Clerk Expiration Date: _________________ Approved as to form: ______________________ Michael Guina City Attorney Exhibit A – Scope of Services Exhibit B – Insurance Requirements 5 SCOPE OF SERVICES COMPLIANCE ASSISTANCE Review & Revise Investment Policy $1,000 per review We would provide a detailed analysis to insure that Investment Policy is up to date with changes that have occurred in the investment industry as well as regulatory clarification. 1. Meeting with the Committee to discuss changes to the policy to the City of Burlingame’s current needs; and 2. Provision of an electronic copy of final investment policy for printing and distribution by the City of Burlingame. Quarterly Meeting – On-site (or video conference) $3,000 per quarter Attendance at regularly scheduled quarterly deferred compensation committee meetings. Meetings will include: 1. Stakeholder education; 2. Regulatory & legislative updates; 3. Industry best practices update; and 4. Watch list review. Monitor Vendor Performance - $5,000 per review The monitoring of investment performance focuses on individual funds. Monitoring vendor or administrator performance focuses on the complete array of performance guarantees established in primary and secondary criteria and incorporated into the contract. Such guarantees are often based on administrator analysis or surveys. This component includes: 1. Review and analysis of performance guarantees provided contractually; and 2. Written executive summary of performance results that enables the Deferred Compensation Committee to obtain financially “at risk” performance standards or other evaluative measurement. The term “at risk” is defined as financial commitments providers make to achieve mutually agreeable standards or outcomes in delivery of service. These annual summaries also serve as the benchmarks for subsequent RFPs in establishing both standards and evaluation criteria. Monitor Investment Performance - $7,500 per review This component provides an annual analysis of fund performance based on: 1. External, neutral investment indices that identify the performance of funds within identified asset classes; 2. Comparison of funds, portfolio returns with other pre-determined employers who offer similar plans with similar investment options; and 6 3. Written summary of year-end performance for the Committee’s review and use, especially related to funds that may not be performing to standards. Stand-Alone Watch List Review- $1,000 per review Assist Selecting / Deleting Investment Options - $500 per fund Investment performance constantly changes as new investment options emerge and current options fail to meet performance standards or competitive alternative funds. Part of employer fiduciary responsibility is the monitoring and evaluation of existing funds and constant due diligence in replacing under-performing funds. This component includes: 1. External review of investments based upon a one, three year and five year performance history compared to the relevant benchmark index; 2. Comparison of each investment with other current investments by asset class and asset category; and 3. Written summary of investments and investments on the Watch List. Education / Training $ 7,500 per training NFP will be the trainers of 457 University, a comprehensive one-day training program for 457 plan decision-makers and staff. The training will focus on trustee/fiduciary duties of plan decision-makers, and the due diligence necessary to carry out these duties. The training will also focus on the legal requirements applicable to 457 Plans, and the practical administration necessary to meet all legal and fiduciary responsibilities. The above cost assumes preparation of an on-site presentation and up to 25 binders. (Consultant has found that approximately 25 participants provide an interactive workshop that serves participants most effectively.) Compliance Audit $20,000 per audit The Internal Revenue Service (IRS) has recently notified public employers through forums like NAGDCA, that it intends to audit public plans. The IRS has specifically identified eligibility requirements, adherence to annual maximums, appropriate standards for determining catch-up, adherence to hardship and loan requests and Domestic Relations Orders. Additionally, the IRS has indicated they wish to scrutinize decision-making meeting minutes to assure that decisions are made for reasons that reflect due diligence and compliance with legislative and regulatory mandates NFP will provide an external audit of the functions likely to be examined by the IRS for plan sponsor compliance. Specifically this component will examine: 1. Decision-maker policies regarding actions / decisions that impact plan compliance and governance; 2. Hardship procedures (whether administered internally or externally) and adherence to IRS guidelines regarding the appropriate basis for approvals; 3. Administration of loans, domestic relations orders and catch up provisions; 4. Establishment of internal controls regarding eligibility (initial participant contributions), adherence to annual maximums; and 5. Recommendations that may bring the employer into a stronger position relative to potential future audits. 7 EXHIBIT B INSURANCE REQUIREMENTS Before beginning any of the services or work called for by any term of this Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration of the Agreement, and provide proof thereof that is acceptable to the City, the insurance specified herein. 1. Insurance Requirements. Coverage shall be at least as broad as follows, and the City is to be endorsed as additional insured as described below up to the maximum limit of coverage if it is greater than the minimums specified here. Statutory Worker’s Compensation Insurance and Employer’s Liability Insurance coverage: $1,000,000 Commercial General Liability Insurance: $1,000,000 (Minimum), $2,000,000 Aggregate Automobile Liability Insurance-including owned, non-owned and hired vehicles: $1,000,000 per occurrence Where applicable, professional Errors and Omissions coverage: $1,000,000 2. Workers' Compensation. Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant shall be provided as required by the California Labor Code. 3. Commercial General and Automobile Liability. Consultant, at Consultant's own cost and expense, shall maintain Commercial General and Business Automobile Liability insurance for the period covered by this Agreement in an amount not less than the amount set forth in this Exhibit B, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting there from, and damage to property resulting from activities contemplated under this Agreement, including the use of hired, owned and non-owned automobiles. Coverage shall be at least as broad as the latest edition of the Insurance Services Office Commercial General Liability occurrence form CG 0001 and Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 1 (any auto). No endorsement shall be attached limiting the coverage. a. A policy endorsement must be delivered to City demonstrating that City, its officers, employees, agents, and volunteers are to be covered as insured as respects each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, employees, agents, or volunteers. b. The insurance shall cover on an occurrence or an accident basis, and not on a claims made basis. c. An endorsement must state that coverage is primary insurance and that no other insurance affected by the City will be called upon to contribute to a loss under the coverage. 8 d. Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. e. Insurance is to be placed with California-admitted insurers with current, unrestricted licenses and no negative financial ratings. 4. Deductibles and Self-Insured Retentions. Consultant shall disclose the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. Any self-insured retention or deductible is subject to approval of City. During the period covered by this Agreement, upon express written authorization of City Attorney, Consultant may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The City Attorney may condition approval of an increase in deductible or self-insured retention levels upon a requirement that Consultant procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. 5. Notice of Reduction in Coverage. In the event that any coverage required under the Agreement is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage. 6. Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option: a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; b. Order Consultant to stop work under this Agreement or withhold any payment which becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; c. Terminate this Agreement. Exercise of any of the above remedies, however, is an alternative to other remedies City may have and is not the exclusive remedy for Consultant's failure to maintain insurance or secure appropriate endorsements. 1 STAFF REPORT AGENDA NO: 9i MEETING DATE: January 21, 2025 To: Honorable Mayor and City Council Date: January 21, 2025 From: Helen Yu-Scott, Finance Director – (650) 558-7222 Subject Approval of Government Finance Officers Association (GFOA) Annual Conference Out-of-State Travel RECOMMENDATION Staff recommends that the City Council approve the out-of-state travel for the Finance Director to attend the Government Finance Officers Association (GFOA) annual conference for training and professional development. BACKGROUND This year’s Government Finance Officers Association (GFOA) annual conference will take place June 29 – July 2, 2025, at the Walter E. Washington Convention Center in Washington, DC. This conference provides professionals across the country with training and development opportunities focused on accounting, budgeting, capital planning, debt management, economic development, ERP systems and technology, leadership, procurement, risk assessment, treasury and investment management, and other key trends impacting local government finance. DISCUSSION The GFOA Annual Conference serves as a platform for sharing best practices, discussing emerging issues, and exploring innovative solutions to the challenges faced by finance professionals. The conference will provide good resources and training to help the Finance Director improve her professional expertise and service to the organization. Information received at this conference will also be shared with other department staff. Section III.1.a of the City’s Expense Reimbursement Policy requires City Council approval for out- of-state travel. Pursuant to the policy, staff requests that the Council approve the out-of-state travel request for the Finance Director. FISCAL IMPACT The estimated cost of this trip is approximately $1,900. The Finance Department budget has sufficient funds available for attendance at this conference. 1 STAFF REPORT AGENDA NO: 9j MEETING DATE: January 21, 2025 To: Honorable Mayor and City Council Date: January 21, 2025 From: Maria Saguisag-Sid, Human Resources Director – (650) 558-7209 Subject: Adoption of a Resolution Authorizing an Amendment to the Deputy/Assistant City Attorney Classification RECOMMENDATION Staff recommends the City Council adopt the proposed resolution approving the amended Deputy/Assistant City Attorney classification. BACKGROUND The City Attorney Department is preparing to recruit for the Assistant City Attorney position. The Deputy/Assistant City Attorney job classification was created in March 2019 (Resolution No. 27- 2019). Upon review, the supervisor of the position noted changes necessary for the existing job classification to reflect the current job duties and qualifications. DISCUSSION Staff from the City Attorney’s Office and Human Resources worked together to review changes and make recommendations to update the existing Deputy/Assistant City Attorney classification. This includes clarifying some of the duties, revising some of the responsibilities, and clarifying some of the position requirements. These changes will better reflect the current needs of the department and allow staff to recruit a new employee with a clear understanding of the current job responsibilities. FISCAL IMPACT There is no fiscal impact from this change as the position is currently reflected in the budget. Exhibits: • Resolution • Deputy/Assistant City Attorney Job Classification RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING AN AMENDMENT TO THE DEPUTY/ASSISTANT CITY ATTORNEY CLASSIFICATION WHEREAS, under the City of Burlingame Civil Service Rules, adopted pursuant to Municipal Code Section 3.52.030, the City Council is the final authority for approving the classification and compensation plan, including any new or revised job specifications; and WHEREAS, the Deputy/Assistant City Attorney classification was established in March of 2019 (Resolution No. 27-2019); and WHEREAS, staff proposes to amend the Deputy/Assistant City Attorney classification to better reflect the current requirements and responsibilities of the position; and WHEREAS, this change in position is deemed necessary to effectively carry out the City’s priorities and support General Fund activities. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Burlingame authorizes and adopts the revised Deputy/Assistant City Attorney classification, attached hereto. ____________________________ Peter Stevenson, 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 21st day of January, 2025, and was adopted thereafter by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ____________________________ Meaghan Hassel-Shearer, City Clerk DEPUTY/ASSISTANT CITY ATTORNEY Page 1 of 3 DEPUTY/ASSISTANT CITY ATTORNEY Class specifications are only intended to present a descriptive summary of the range of duties and responsibilities associated with specified positions. Therefore, specifications may not include all duties performed by individuals within a classification. In addition, specifications are intended to outline the minimum qualifications necessary for entry into the class and do not necessarily convey the qualifications of incumbents within the position. DEFINITION The Deputy/Assistant City Attorney is an “at-will” position and works under the direction of the City Attorney. The Deputy/Assistant City Attorney provides a wide range of professional legal services related to municipal government operations in a variety of civil and criminal matters; conducts legal research and prepares opinions, memoranda, contracts, ordinances and other legal documents; advises city departments, boards and commissions; and represents the city in a variety of litigation matters. DISTINGUISHING CHARACTERISTICS: This classification is flexibly staffed and may be filled at the Deputy or Assistant level. The levels are distinguished by the amount of experience in municipal law and level of independence exercised by the incumbent. At the Assistant level, the incumbent must be able to handle complex and sensitive matters independently, be capable of directly supervising outside counsel and appearing in court on the City’s behalf without supervision and be competent to handle Council and public communications without direct support from the City Attorney. The Deputy City Attorney must be able to complete complex legal tasks, including appearing in court on routine matters, and handle communications with the public and staff. However, the Deputy City Attorney may have less experience in municipal law and is expected to require more instruction and oversight from the City Attorney, particularly in addressing complex or novel issues. SUPERVISION EXERCISED AND RECEIVED: Receives direction from the City Attorney. Exercises technical and functional supervision over support staff as appropriate. ESSENTIAL FUNCTIONS: Duties may include, but are not limited to, the following: • Confer with and advise the City Council, departments, boards, and commissions concerning their duties, powers, and functions; perform legal research and prepare written and oral opinions on various legal issues for presentation to the City Council, City departments and various boards and commissions. • Advise the City Council, boards, commissions, and City staff on open government laws, including but not limited to the Brown Act, Public Records Act, conflicts of interest, and ethics laws. • Provide legal support to assigned departments; prepare, draft, and review ordinances, resolutions, contracts, deeds, leases, and other legal documents and instruments; review joint agency agreements, mutual aid agreements, grants, and various competitive bid documents. • Provide opinions as to the legal acceptability of agreements, contracts, covenants, and other binding documents presented to the City for consideration by outside parties or agencies. DEPUTY/ASSISTANT CITY ATTORNEY Page 2 of 3 • Represent the City in litigation and/or administrative hearings and supervise related activities; investigate claims and complaints against the City and take or recommend appropriate action. • Assist in or prepare cases including those related to the Municipal Code for hearings, trials, and other judicial proceedings; represent the City in such proceedings. • Review and analyze court rulings and legislation relative to their effect on municipal government operations; recommend changes in policies and procedures in order to meet current legal requirements. • Represent the City at various City Council, board and commission meetings and in court as directed. • Respond to requests for information from the general public, City staff, outside agencies, and other interested parties; research requested information. • Build and maintain positive working relationships with co-workers, other City employees and the public using principles of good customer service. • Perform related duties as assigned. • For Assistant City Attorney: Acts as City Attorney in their absence. QUALIFICATIONS: (The following are minimal qualifications necessary for entry into the classification) Experience: • For Deputy City Attorney: one year of professional legal experience, with a preference for municipal law experience. • For Assistant City Attorney: three years of professional legal experience in municipal law. Education/Training: • Equivalent to a Juris Doctorate from an American Bar Association accredited law school. License or Certificate: • Active membership, in good standing, in the State Bar of California and Federal Courts. KNOWLEDGE/ABILITIES/SKILLS: (The following are a representative sample of the KAS’s necessary to perform essential duties of the position) Knowledge of: • Legal principles and practices including civil, criminal, constitutional, and administrative law and related procedures. • Judicial procedures and rules of evidence; methods of legal research and analysis. • Statutes and court decisions relating to municipal government operations; Public Records Act; Brown Act and conflict of interest laws; Government Tort Claims Act, and liability insurance litigation. • Modern office equipment and methods including use of computer applications in word processing, spreadsheet, database, and visual presentation. • Municipal government operations, including zoning, planning, real property, labor and employment, environmental, public contracting, public safety, code enforcement, and civil and criminal procedures. • Ordinances, statutes and court decisions relating to municipal corporations. • Organization, operating procedures, duties, powers, limitations and authority of city government and the City Attorney's Office. • Established precedents and sources of legal reference applicable to municipal activities. DEPUTY/ASSISTANT CITY ATTORNEY Page 3 of 3 Ability to: • Perform professional legal work related to municipal government operations. • Prepare staff reports, resolutions, ordinances, and legal memoranda. • On a continuous basis, know and understand all aspects of the job; intermittently analyze work papers, reports and special projects; identify and interpret technical and numerical information; observe and problem solve operational and technical policy and procedures. • On a continuous basis, sit at desk for long periods of time; intermittently twist to reach equipment surrounding desk; perform simple grasping and fine manipulation; use telephone, and write or use a keyboard to communicate through written means; and lift or carry weight of 10 pounds or less. • Learn ordinances, statutes and court decisions relating to municipal corporations. • Learn the organization, operating procedures, duties, powers, limitations and authority of municipal government and the City Attorney's Office. • Learn established precedents and sources of legal reference applicable to municipal activities. • Represent the City in a wide variety of judicial and administrative proceedings; prepare and present cases. • Analyze a wide variety of legal issues; organize, interpret and apply legal principles and knowledge of legal problems; analyze and prepare a wide variety of legal documents. • Apply legal knowledge and principles in court; conduct research on legal problems and prepare sound legal opinions. • Communicate clearly and concisely, both orally and in writing. • Establish and maintain effective working relationships with those contacted in the course of work. • Independently perform a wide range of professional legal work related to municipal government operations. PHYSICAL, MENTAL AND ENVIRONMENTAL WORKING CONDITIONS: Ability to sit for long periods of time at a desk; stand and walk for moderate periods of time and crouch/stoop/squat occasionally. Ability to hear phones and normal conversations; speak, read and write correct English; receive and follow instructions; and remain calm during difficult situations. Ability to travel to remote worksites as needed. D501/D502 DEPUTY/ASSISTANT CITY ATTORNEY DEPARTMENT HEAD & UNREPRESENTED UNIT EXEMPT Created March 2019 Revised _________ 1 STAFF REPORT AGENDA NO: 9k MEETING DATE: January 21, 2025 To: Honorable Mayor and City Council Date: January 21, 2025 From: Neda Zayer, Community Development Director – (650) 558-7253 Jessie Oswald, Interim Chief Building Official – (650) 558-7270 Subject: Adoption of a Resolution Authorizing the City Manager to Negotiate and Execute Amendment No. 3 to the Professional Services Agreement with Bureau Veritas North America, Inc., to Increase the Contract Amount by $1,000,000, for a Total Compensation of $3,576,000, for Fiscal Year 2024- 2025 RECOMMENDATION Staff recommends that the City Council adopt the attached resolution authorizing the City Manager to execute Amendment No. 3 to the Professional Services Agreement with Bureau Veritas North America Inc., increasing the contract amount by $1,000,000, for a total compensation not to exceed $3,576,000, for Fiscal Year 2024-2025. BACKGROUND / DISCUSSION The City of Burlingame entered into a Professional Services Agreement with Bureau Veritas North America, Inc. on August 4, 2021, in the amount of $760,000, for contract building services such as plan review and inspection support. On July 12, 2022, the Community Development Director authorized an increase to the contract in the amount of $16,000, for a total amount of $776,000. On August 15, 2022, and March 20, 2023, the City Council approved Amendment No. 1 and No. 2, respectively, in the collective amount of $1,800,000, for a total contract amount of $2,576,000 (Resolutions No. 97-2022 and 034-2023). At the November 18, 2024 City Council meeting, the City Council approved an amendment to the Bureau Veritas contract that contained administrative errors. The proposed amendment would replace the November 18, 2024, action extending the contract services to support plan review, inspection, and temporary staff augmentation. Therefore, staff requests that the City Council approve the amendment to the Professional Services Agreement to add funds to the contract. The general terms of the agreement for services have not changed with the exception to the scope of work to cover staff augmentation. The initial agreement terminated on June 30, 2024, with options to renew for two additional one-year terms. Bureau Veritas Agreement Amendment January 21, 2025 2 FISCAL IMPACT There is no fiscal impact on the City’s General Fund as all contract building services are covered by building permit fees that are managed through the Building Enterprise Fund. Exhibits: • Resolution • Proposed Amendment No. 3 • Fee Schedule • Amendment No. 2 • Amendment No. 1 with Original Agreement 1 RESOLUTION NO. RESOLUTION AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE AMENDMENT NO. 3 TO THE PROFESSIONAL SERVICES AGREEMENT WITH BUREAU VERITAS NORTH AMERICA, INC., INCREASING THE CONTRACT AMOUNT BY 1,000,000, FOR A TOTAL COMPENSATION OF $3,576,000 FOR CONTRACT BUILDING SERVICES WHEREAS, on August 4, 2021, the City Council authorized the City Manager to execute a Professional Services Agreement (“Agreement”) with Bureau Veritas North America, Inc., for plan check and building inspection services, in the amount of $760,000; and WHEREAS, on July 12, 2022, the Community Development Director authorized an increase to the Bureau Veritas North America, Inc. contract for building plan check and inspection services in the amount of $16,000, for a total amount of $776,000; and WHEREAS, on August 15, 2022, the City Council authorized the City Manager to execute Amendment No. 1 to the Agreement with Bureau Veritas North America, Inc., for plan check and building inspection services, in the amount of $800,000, for a total amount of $1,576,000; and WHEREAS, on March 20, 2023, the City Council authorized the City Manager to execute Amendment No. 2 to the Agreement with Bureau Veritas North America, Inc., for building plan check and inspection services in the amount of $1,000,000, for a total amount of $2,576,000; and WHEREAS, the City of Burlingame Community Development Department requires contract building service support for plan check, inspection, and temporary staff augmentation that will necessitate engaging the services of the vendor to a greater degree than budgeted for Fiscal Year 2024-2025, and therefore an amendment to the maximum amount to be expended under the terms of the current Professional Services Agreement with Bureau Veritas North America, Inc., is necessary. NOW, THEREFORE, BE IT RESOLVED AND ORDERED: 1. The City Manager is authorized and directed to negotiate and execute Amendment No. 3 to the Professional Services Agreement with Bureau Veritas North America, Inc., in the form attached hereto, for contract building services, increasing the contracted amount by $1,000,000, for a total compensation not to exceed $3,576,000. 2. The City Clerk is directed to attest to the signature of the City Manager upon execution of Amendment No. 3 to the Professional Services Agreement. 2 _______________________________ Peter Stevenson, 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 21st day of January, 2025, and was adopted thereafter by the following vote: AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers: _______________________________ Meaghan Hassel-Shearer, City Clerk AMENDMENT NO. 3 TO AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF BURLINGAME AND BUREAU VERITAS NORTH AMERICA, INC. FOR BUILDING SERVICES THIS AMENDMENT NO. 3 to the Professional Services Agreement is by and between Bureau Veritas North America, Inc. ("Consultant"), engaged in contract building services in Burlingame, and the City of Burlingame, a public body of the State of California ("City"), amending the Agreement between the parties dated August 4, 2021. RECITALS WHEREAS, on August 4, 2021, the City executed a Professional Services Agreement with Bureau Veritas North America, Inc. for building plan check and inspection services in the amount of $760,000; and WHEREAS, on July 12, 2022, the Community Development Director authorized an increase to the Bureau Veritas North America, Inc. contract for building plan check and inspection services in the amount of $16,000, for total amount of $776,000; and WHEREAS, on August 15, 2022, the City Council authorized the City Manager to execute Amendment No. 1 to the Agreement with Bureau Veritas North America, Inc. for building plan check and inspection services in the amount of $800,000, for total amount of $1,576,000; and WHEREAS, on March 20, 2023, the City Council authorized the City Manager to execute Amendment No. 2 to the Agreement with Bureau Veritas North America, Inc. for building plan check and inspection services in the amount of $1,000,000, for total amount of $2,576,000; and WHEREAS, the City of Burlingame Community Development Department requires contract building service support for plan check, inspection, and temporary staff augmentation that will necessitate engaging the services of the vendor to a greater degree than budgeted for Fiscal Year 2024-2025 and therefore an amendment to the maximum amount to be expended under the terms of the current Professional Services Agreement with Bureau Veritas North America, Inc. is necessary. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. The Consultant shall provide the additional services requested by the City. 2. The additional cost shall not exceed $1,000,000, to be invoiced as the work occurs, for a total compensation not to exceed $3,576,000. 3. The Fee Schedule has been amended from the original contract with new fees and is included by reference and attached. 4. Except as expressly amended in this Amendment No. 3, all other terms and conditions contained in the Agreement shall remain in full force and effect. Amendment No. 3 to Agreement for Professional Services between Bureau Veritas North America, Inc. and the City of Burlingame 2 IN WITNESS WHEREOF, Consultant and City execute this Amendment No. 3 to the Agreement. CITY OF BURLINGAME CONSULTANT 501 Primrose Road BUREAU VERITAS NORTH AMERICA, Burlingame, CA 94010 INC. 180 Promenade Circle, Suite 150 Sacramento, CA 95834 By: By: Lisa K. Goldman Craig Baptista City Manager Vice President Date: Date: Attest: Federal Employer ID Number: 06-1689244 Meaghan Hassel-Shearer License Number: C2888871 City Clerk Expiration Date: N/A Approved as to form: Michael Guina City Attorney Attachments: BV Fee Schedule BV Amendment No. 2 BV Amendment No. 1 with Original Agreement BUREAU VERITAS 180 Promenade Circle, Suite 150, Sacramento, CA 95834 P 916.725.4200 | E craig.baptista@bureauveritas.com | www.bvna.com2 EXHIBIT B - FEE SCHEDULE Plan Review Basic Fees: For complete plan review projects performed at Bureau Veritas North America, Inc. offices, fees are as shown below, based on the City-collected plan review fees. Basic fees include first and second plan reviews and simple, quick third reviews. Full Plan Review Completed in BVNA Offices 70% of City’s plan review fee Miscellaneous and Structural Only Review 50% of City’s plan review fee Full Plan Review for projects valued over $10,000,000 50% of City’s plan review fee *Plumbing/mechanical/electrical-only and unreinforced masonry The fee for expedited plan review will be an additional 25%. Other Fees: In addition to the Basic Fees described above, time-and materials methods using the current Bureau Veritas North America, Inc. hourly rate schedule will be used for determining fees for the following types of services: 1. Fees for plan review revisions to permitted plans will be based on the current Bureau Veritas North America, Inc. hourly rate schedule. 2. Fees for problem plan checks that require more than a quick third check to approve the project, when mutually agreed between the Chief Building Official and Bureau Veritas North America, Inc., will be based on the current Bureau Veritas North America, Inc. hourly rate schedule. 3. For rechecks of projects that were reviewed by others. Inspection Services Building Inspection Services will be provided at an hourly rate per inspector, including miscellaneous charges as specified by the current Bureau Veritas North America, Inc. Schedule of Charges (below) or other fixed fee method as mutually agreeable between the City and Bureau Veritas North America, Inc . Permit Issuance Services Permit Issuance Services will be provided hourly in accordance with the current Fee Schedule. BUILDING SAFETY AND INSPECTION SERVICES, CITY OF BURLINGAME NOVEMBER 14, 2024 SCHEDULE OF FEES Proposal No. 9909914 BUREAU VERITAS 180 Promenade Circle, Suite 150, Sacramento, CA 95834 P 916.725.4200 | E craig.baptista@bureauveritas.com | www.bvna.com3 FEE SCHEDULE Our pricing reflects our commitment to the success of your City by helping you maintain significant quality and cost saving benefits moving forward. These include: • Reduced plan review turnaround times • Implementation of established electronic plan review processes • Commitment to maintain a proposed rate structure for the life of the initial contract period • Highly qualified staff compensated commensurate with their duties and responsibilities • Confidence of working with a well-established consultant in business for 193+ years Hourly rates for project personnel are outlined below: Staff Level Classifications Hourly Billing Rate* Onsite Building Official $165.00 Remote Building Official $150.00 Senior Engineer $145.00 Senior Plans Examiner $135.00 Plan Review Engineer $115.00 Accessibility Plans Examiner (CASp) $115.00 Senior Combination Building Inspector $95.00 Building Inspector $90.00 Permit Technician $65.00 *Overtime, weekend or holiday rates will be an additional 30% of the hourly rates shown above *Rates are valid from July 1, 2021 to June 30, 2026. Bureau Veritas North America, Inc.; Hourly rates are subject to annual adjustment in accordance with CPI and with City of Burlingame approval. Miscellaneous Charges Description Billing Rate* Personal Vehicle, per mile current IRS rate AMENDMENT NO. 2 TO AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF BURLINGAME AND BUREAU VERITAS NORTH AMERICA, INC. FOR PLAN CHECK AND BUILDING INSPECTION SERVICES THIS AMENDMENT NO. 2 is by and between Bureau Veritas North America, Inc. ("Consultant"), engaged in plan check and building inspection services in Burlingame, and the City of Burlingame, a public body of the State of California ("City"), amending the Agreement between the parties dated August 4, 2021, hereinafter called the “Agreement.” RECITALS WHEREAS, on August 24, 2021, the City Council authorized the City Manager to execute an agreement with Bureau Veritas North America, Inc. for plan check and building inspection services required by the Community Development Department - Building Division, in the amount of $760,000; and WHEREAS, on August 15, 2022, the City Council authorized the City Manager to execute an amendment to the agreement with Bureau Veritas North America, Inc. for plan check and building inspection services required by the Community Development Department - Building Division, in the amount of $800,000, for total amount of $1,560,000 (Amendment No. 1); and WHEREAS, the Community Development Department - Building Division has received Building Permit Applications for several major construction projects that will necessitate engaging the services of the vendor to a greater degree than budgeted for Fiscal Year 2022-2023, and therefore an amendment to the maximum amount to be expended under the terms of the current Professional Services Agreement with Bureau Veritas North America, Inc. is necessary. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. The Consultant shall provide the additional services requested by the City for major construction projects. 2. The additional cost shall not exceed $1,000,000, to be invoiced as the work occurs, for a total compensation not to exceed $2,560,000.00. 3. Except as expressly amended in this Amendment # 2, all other terms and conditions contained in the Agreement shall remain in full force and effect. Amendment No. 2 to Agreement for Professional Services between True North Compliance Services, Inc. and the City of Burlingame 2 IN WITNESS WHEREOF, Consultant and City execute this Amendment No. 2 to the Agreement. CITY OF BURLINGAME CONSULTANT 501 Primrose Road BUREAU VERITAS NORTH AMERICA, Burlingame, CA 94010 INC. 180 Promenade Circle, Suite 150 Sacramento, CA 95834 By: By: Lisa Goldman Craig Baptista City Manager Vice President Date: Date: Attest: Federal Employer ID Number: 06-1689244 Meaghan Hassel-Shearer License Number: C2888871 City Clerk Expiration Date: N/A Approved as to form: Michael Guina City Attorney Attachments: Exhibit A –Originally Executed Contract, Scope of Work and Certificate of Liability Insurance ΖχϘωώллͥлйлм AMENDMENT NO. 1 TO AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF BURLINGAME AND BUREAU VERITAS NORTH AMERICA, INC. FOR PLAN CHECK AND BUILDING INSPECTION SERVICES THIS AMENDMENT NO. 1 is by and between Bureau Veritas North America, Inc. ("Consultant"), engaged in plan check and building inspection services in Burlingame, and the City of Burlingame, a public body of the State of California ("City"), amending the Agreement between the parties dated August 4, 2021, hereinafter called the “Agreement.” RECITALS WHEREAS, the Community Development Department – Building Division has received Building Permit Applications for major construction projects including 567 Airport Boulevard, and tenant improvements at 555 and 577 Airport Boulevard that will necessitate engaging the services of the vendor to a greater degree than budgeted for Fiscal Year 2022-2023; and WHEREAS, an amendment to the maximum amount to be expended under the terms of the current Professional Services Agreement with Bureau Veritas North America, Inc. is necessary. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. The Consultant shall provide the additional services requested by the City for major construction projects including 567 Airport Boulevard, and tenant improvements at 555 and 577 Airport Boulevard. 2. The additional cost shall not exceed $800,000, to be invoiced as the work occurs, for a total compensation not to exceed $1,560,000.00. 3. Except as expressly amended in this Amendment # 1, all other terms and conditions contained in the Agreement shall remain in full force and effect. Amendment No. 1 to Agreement for Professional Services between True North Compliance Services, Inc. and the City of Burlingame 2 IN WITNESS WHEREOF, Consultant and City execute this Amendment No. 1 to the Agreement. CITY OF BURLINGAME CONSULTANT 501 Primrose Road BUREAU VERITAS NORTH AMERICA, Burlingame, CA 94010 INC. 180 Promenade Circle, Suite 150 Sacramento, CA 95834 By: By: Lisa Goldman Craig Baptista City Manager Vice President Date: Date: Attest: Federal Employer ID Number: 06-1689244 Meaghan Hassel-Shearer License Number: C2888871 City Clerk Expiration Date: N/A Approved as to form: Michael Guina City Attorney Attachments: Exhibit A –Originally Executed Contract, Scope of Work and Certificate of Liability Insurance ammento, CA 95834 August 18, 2022 RESOLUTION NO. __________ RESOLUTION AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH BUREAU VERITAS NORTH AMERICA, INC. INCREASING THE CONTRACT AMOUNT BY $800,000 TO COVER PLAN CHECK AND BUILDING INSPECTION SERVICES RELATED TO MULTIPLE LARGE CONSTRUCTION PROJECTS WHEREAS, on August 4, 2021, the City Council authorized the City Manager to execute a contract with Bureau Veritas North America, Inc. for plan check and building inspection services required by the Community Development Department – Building Division, in the amount of $760,000; and WHEREAS, the Community Development Department – Building Division has received Building Permit Applications for several major construction projects that will necessitate engaging the services of the vendor to a greater degree than budgeted for Fiscal Year 2022-2023, and therefore an amendment to the maximum amount to be expended under the terms of the current Professional Services Agreement with Bureau Veritas North America, Inc. is necessary; and WHEREAS, all costs for plan check and permit fees are passed through to project proponents. NOW, THEREFORE, BE IT RESOLVED AND ORDERED: 1. The City Manager is authorized and directed to negotiate and execute an amendment to the Professional Services Agreement with Bureau Veritas North America, Inc. for plan check and inspection services, increasing the contracted amount by $800,000, for a total compensation not to exceed $1,560,000. 2. The City Clerk is directed to attest to the signature of the City Manager upon execution of the amendment. ______________________________________ Ricardo Ortiz, 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 15th day of August, 2022 and as adopted thereafter by the following vote: AYES: COUNCILMEMBERS: NAYES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ______________________________________ Meaghan Hassel-Shearer, City Clerk 1 STAFF REPORT AGENDA NO: 11a MEETING DATE: January 21, 2025 To: Honorable Mayor and City Council Date: January 21, 2025 From: Margaret Glomstad, Parks and Recreation Director – (650) 558-7307 Nicole Acquisti, Recreation Manager – (650) 558-7337 Subject: Burlingame Aquatics Club Update RECOMMENDATION Staff recommends that the City Council review the information below regarding the Burlingame Aquatics Club (BAC). BACKGROUND The City has a long history with BAC. In 2011, in addition to offering competitive programs, BAC began providing community youth and adult aquatic program offerings (primarily lessons and lap swimming) on behalf of the City at the Burlingame High School (BHS) pool. On August 18, 2014, the City and BAC updated their Agreement to clarify areas of ambiguity and to incorporate current operating practices that had evolved over the term of the Agreement. The agreement was updated again on August 16, 2022 (Exhibit A), to allow BAC time to rebuild its programming due to pandemic-related closures, extensive renovations to the Aquatic Complex, and increased pool costs and cost-sharing with the San Mateo Union High School District (SMUHSD). BAC operates out of the Burlingame High School Aquatic Complex. The Complex includes a 50- meter by 25-yard competition pool; a smaller, warm pool for lessons; and a pool house with locker rooms, offices, and pool equipment. Throughout this time, the City has been supporting the community programming efforts with an annual subsidy approved by the City Council each year as part of the City's yearly budget adoption. The budgeted subsidy has varied over the years but has been between $90,000 and $155,000 annually. In addition, the City acts as a pass-through between SMUHSD and BAC. SMUHSD bills the City; the City bills BAC for their portion of operational costs; BAC reimburses the City; and the City pays SMUHSD. The City also bills SMUHSD directly for the cost of water. DISCUSSION Over the past year, BAC has made notable enhancements to community programming. First, BAC welcomed new Executive Director Tara Joos in 2023. She was tasked with revitalizing the club, its programming, and staffing. She has over 20 years of community-based programming with families and sports. Her background includes being a Community Liaison Officer for the U.S. State Burlingame Aquatics Club Update January 21, 2025 2 Department’s U.S. Embassy Ottawa, a Youth and Family Director of a YMCA in Connecticut, and a Program Director for the Special Olympics in coastal Georgia. Ms. Joos is a certified lifeguard instructor and is also certified in CPR/AED and first aid. Shortly after Ms. Joos became the Executive Director of BAC, she hired Troy Hartman as the Program Director. Mr. Hartman is responsible for community programming and is also a certified lifeguard instructor. Ms. Joos and Mr. Hartman have enhanced BAC’s community programming, including lap swimming, recreational swimming, Splashball, aqua aerobics, and swim lessons (group and private). BAC’s first line of outward-facing community engagement is through its website. Users and staff described BAC’s previous website platform as outdated and not user-friendly, and it often had incorrect information or didn’t include all the offerings. The revamped website (www.burlingameaquatics.com) is easier to navigate and provides up-to-date information. The updated website has led to improvements for members as well. Implementing membership cards and 10-pack drop-in passes have allowed for easy entry into the pool. Now, visitors scan their cards rather than dealing with payments each time. The monthly auto-renewal of memberships and the ability to keep credit cards on file have reduced the administrative work required from BAC staff and increased revenue by maintaining membership and closing gaps in revenue tracking. The website also has a communication board, which makes staff communication more effective and efficient. The website was not the only significant change. BAC has completely transformed the Learn to Swim curriculum as well. Previously, BAC’s group lessons were designed with independent levels, without emphasizing safety. The new curriculum starts with water safety and, through clearly defined benchmarks, transitions swimmers from a beginner level to a pre-team and competitive level of competency. With this new curriculum, BAC has programs that can feed each other and maintain participant involvement with BAC at every level. For example, if a swimmer attends tryouts for BAC’s competitive water polo or swim team and isn’t ready, the new curriculum allows them to enroll in community lessons to improve their abilities, thereby ensuring that Burlingame has a consistently thriving aquatic community with options for all community members. Finally, the lifeguard training program has also transitioned from the American Red Cross to Lifeguard-Pro, which is nationally and internationally recognized and has been approved by the California Department of Public Health. This program provides a first responder advanced training called Title 22 First Aid, is more cost-efficient for certifications, and has more comprehensive training guides and access to online reference materials. This aligns with BAC’s safety-first mentality and creates better-trained and prepared staff. These changes have led to a significant increase in participants and program offerings. For example, in April 2023, the program offered one class with four students. In April 2024, the program offered 60 classes with 164 students. BAC staff conducted a study of neighboring pools to evaluate their fees. Upon review, they discovered they were in the middle of the market and implemented modest increases. Despite rising costs per lesson, BAC's prices remain in the center of the local market. Burlingame Aquatics Club Update January 21, 2025 3 BAC staff strives to further extend their community programming while continuing thorough staff training to safeguard the well-being of the patrons. With only one year since the implementation of the changes noted above, BAC is on a trajectory to continue to be a leader on the Peninsula for aquatic programming. FISCAL IMPACT Under the Use, Operation, and Maintenance Agreement between the City and SMUHSD (Exhibit B), capital outlay costs are split 50/50. Operating costs are shared between the City and SMUHSD, and the percentage split is based on a formula using the hours each Party used the Competition Pool, the hours of shared use, and the hours of unused time. The City and SMUHSD agree upon the percentage before SMUHSD sends the Quarter 1 invoice to the City each year. The percentage split between the City and SMUHSD for the cost of operation and maintenance is: FY 2021/2022: City 50%, SMUHSD 50% FY 2022/2023: City 71%, SMUHSD 29% FY 2023/2024: City 71%, SMUHSD 29% FY 2024/2025: City 74%, SMUHSD 26% When the City receives an invoice from SMUHSD, the City reviews it to determine if any items or repairs should be considered capital outlay. Capital outlay items are the City’s responsibility, not BAC’s, and the City pays SMUHSD 50% of the cost. Some examples of capital outlay expenditures are deck maintenance and pump repairs. BAC is responsible for a portion of operating costs and divides operating expenses between its community and competitive programs. BAC pays the City (which pays SMUHSD) for the operating costs associated with competitive programming, and the City provides BAC with a subsidy to help cover the community programming that BAC provides on behalf of the City. In order to help BAC recover from the COVID-19 and construction-related shutdowns, the City allowed BAC to pay a fixed amount of $10,570.83 per month to cover its competitive costs through June of 2023. This was less than was due based on the competitive program’s actual percentage use. At the end of each fiscal year, BAC pays the City a true-up for the balance due for the community portion minus the City Council-approved subsidy amount. In the chart below, the number highlighted in purple represents the City's total cost, which includes the four invoices the City received from SMUHSD for the pool in addition to the costs of the City’s provision of water. The City pays the cost of water for both the community and competitive programs, and the District pays its portion based on the percentage split described above. The number highlighted in green represents the amount paid to the City by the BAC and SMUHSD. The number highlighted in blue represents the City's net cost for the pool after reimbursements from the Burlingame Aquatic Club and SMUHSD. BAC has exceeded the budgeted subsidy from the City for the last three years. The budgeted subsidy for each of the years below was $120,000. While the actual subsidy exceeded the budgeted amount, staff felt it was prudent to help BAC return to full operations while hiring a new leadership team. For these years, funds were available from other aquatic budget line items where Burlingame Aquatics Club Update January 21, 2025 4 the funds were not fully spent (due to the inconsistency of pool maintenance needs). While this was possible for the years below, the budgetary saving from other line items may not be available in future years. *The total cost from the SMUHSD for FY21-22 used the average between FY20-21 and FY21-22. This was necessary because of the payment timing between years. Since the transition from the City operating the community programming to the BAC, the intent of both the City and BAC has been to strive to reduce dependence on the General Fund. Staff will continue to work with the BAC leadership to ensure that City funds are being used in a fiscally conservative manner as they continue to rebuild their programming and revenues, improve their budgeting and expenditure, and streamline their processes so their reliance on the City is minimal. Exhibits: • City/BAC Agreement • Use, Operation, and Maintenance Agreement between the City and SMUHSD