HomeMy WebLinkAbout2014-10-09 Council Agenda PacketThursday, October 9, 2014
8:30 AM
City of Fresno
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
Council Chambers
City Council
Meeting Agenda - Final-revised
Regular Session
October 9, 2014City Council Meeting Agenda -
Final-revised
The meeting room is accessible to the physically disabled. If you require special
assistance to participate in the meeting, notify the Office of the City Clerk at
559-621-7650 at least three business days prior to the meeting. Please keep the
doorways, aisles and wheelchair seating areas open and accessible. If you need
assistance with seating because of a disability, contact Security.
The City Council welcomes you to the Council Chambers, located in City Hall, 2nd
Floor, 2600 Fresno Street, Fresno CA 93721.
The agenda and related staff reports are available on (www.fresno.gov) as well as in
the Office of the City Clerk. The Council meeting can also be heard live at the same
web site address, and viewed live on Comcast Channel 96 and AT&T Channel 99
from 8:30 a.m. and re-played beginning at 8:00 p.m.
PROCESS: For each matter considered by the Council there will first be a staff
presentation followed by a presentation from the involved individuals, if present.
Testimony from those in attendance will then be taken. All testimony will be limited to
three minutes per person. If you would like to speak fill out a Speaker Request Form
available from the City Clerk’s Office and in the Council Chambers. The three lights
on the podium next to the microphone will indicate the amount of time remaining for
the speaker.
No documents shall be accepted for Council review unless they are submitted to the
City Clerk at least 24 hours prior to the Council Agenda item being heard.
Following is a general schedule of items for Council consideration and action. The
City Council may consider and act on an agenda item in any order it deems
appropriate. Actual timed items may be heard later but not before the time set on
agenda. Persons interested in an item listed on the agenda are advised to be present
throughout the meeting to ensure their presence when the item is called.
AGENDA ITEMS MARKED WITH AN ASTERISK (*) ARE SUBJECT TO MAYORAL
VETO OR RECONSIDERATION
Page 2 City of Fresno ***Subject to Mayoral Veto
October 9, 2014City Council Meeting Agenda -
Final-revised
8:40 A.M. ROLL CALL
Invocation by Pastor Powell Lemons of Bethel Christian Center
Pledge of Allegiance to the Flag
CEREMONIAL PRESENTATIONS
Presentation of certificates to The Münster Youth ChoirID#14-452
Sponsors:Council President Brandau
Proclamation of “NATIONAL DAY ON WRITING”ID#14-465
Sponsors:Baines III
Approve City Council Minutes
Approval of City Council minutes from October 2, 2014ID#14-453
Councilmember Reports and Comments
Approve Agenda
1. CONSENT CALENDAR
All Consent Calendar items are considered to be routine and will be treated as
one agenda item. The Consent Calendar will be enacted by one motion. Public
comment on the Consent Calendar is limited to three (3) minutes per speaker.
There will be no separate discussion of these items unless requested by a
Councilmember, in which event the item will be removed from the Consent
Calendar and will be considered as time allows.
Adopt amendments to The City Of Fresno Deferred
Compensation Plan document to allow for Roth
Contributions and Roth In-Plan Rollover Conversions,
update limits on deferrals, and Section concerning
qualified military service
ID#14-3641-A
Sponsors:Retirement Department
Authorize Amendment No. 2 to the agreement between the
City of Fresno and Diversified Transportation, LLC (DBA
ID#14-3661-B
Page 3 City of Fresno ***Subject to Mayoral Veto
October 9, 2014City Council Meeting Agenda -
Final-revised
Keolis Transit America)
Sponsors:Department of Transportation
Approval for a two-year contract between Fresno City
College and the City of Fresno for contract instruction,
assessment services and training credit
ID#14-3761-C
Sponsors:Police Department
Approve lease agreement between the City of Fresno and
The Fresno Arts Council for use of the Historic Water
Tower located at Fresno and “O” Street (Council District
3)
ID#14-3871-D
Sponsors:Office of Mayor & City Manager
Actions pertaining to the establishment of a non-exclusive
towing operation franchise for certain towing operators to
participate in the Police Department’s tow car rotation list
1.RESOLUTION - Of intention to establish non-exclusive
towing operation franchise and setting a public hearing on
the matter and a final vote on October 23, 2014 at 10:00
a.m.
2.ORDINANCE (For Introduction) - Granting to towing
operators a non-exclusive franchise to participate in the
Fresno Police Department’s tow car rotation list in
preparation for a public hearing on October 23, 2014 for a
final vote to approve the non-exclusive towing operation
franchise
3.ORDINANCE (For Introduction) - amending Article 17,
Chapter 9 of the Fresno Municipal Code relating to tow
trucks
ID#14-4091-E
Sponsors:Police Department
Authorize the City Manager or designee to execute a grant
deed for the sale of excess property in the amount of
$75,348 to DFP Limited LP located on “G” Street near
Tulare Street APN 467-071-03T and 467-071-04T
(Council District 3)
ID#14-4231-F
Sponsors:Public Works Department
Page 4 City of Fresno ***Subject to Mayoral Veto
October 9, 2014City Council Meeting Agenda -
Final-revised
RESOLUTION - Of Intention by the Council of the City of
Fresno, California, to grant a Non-Exclusive Franchise for
roll-off collection services within the City of Fresno and
setting the public hearing for October 23, 2014
ID#14-4381-G
Sponsors:Department of Public Utilities
Approve a consultant agreement in the amount of
$160,100 with Blair, Church & Flynn Consulting Engineers
for the professional engineering services for sewer
rehabilitation and replacement in Chinatown and authorize
Director of Public Utilities or his designee to sign on behalf
of the City (Council District 3)
ID#14-4391-H
Sponsors:Department of Public Utilities
CONTESTED CONSENT CALENDAR
2. GENERAL ADMINISTRATION
Approve the selection of, and award a contract to,
Republic Parking Inc. to provide Parking Facilities
Management Services in downtown Fresno
ID#14-3612-A
Sponsors:Planning and Development Department
Actions pertaining to On-Airport Non-Exclusive Rental Car
Concession Agreements at Fresno Yosemite International
Airport (Council District 4) - Airports Department
1.Adopt a finding of Categorical Exemption pursuant to
Article 19, Section 15301(a) and (d)/Class 1 (Existing
Facilities) of the California Environmental Quality Act
(CEQA) Guidelines to authorize Concession Agreements
with Avis/Budget Car Rental, LLC, Enterprise Rent A Car
of Sacramento, LLC, and The Hertz Corporation at Fresno
Yosemite International Airport (FAT)
2.Approve On-Airport Non-Exclusive Rental Car
Concession Agreements between the City and
Avis/Budget Car Rental, LLC (Avis), Enterprise Rent A Car
of Sacramento, LLC, (Enterprise), and The Hertz
Corporation (Hertz)
ID#14-4402-B
Page 5 City of Fresno ***Subject to Mayoral Veto
October 9, 2014City Council Meeting Agenda -
Final-revised
Sponsors:Airports Department
3. CITY COUNCIL
4. CLOSED SESSION
Page 6 City of Fresno ***Subject to Mayoral Veto
October 9, 2014City Council Meeting Agenda -
Final-revised
5. SCHEDULED COUNCIL HEARINGS AND MATTERS
10:00 A.M.#1
HEARING to consider a Resolution of Public Use and
Necessity for Acquisition of Permanent Utility Easements and
Temporary Construction Easements from APNs 580-040-02S
owned by Frances M. Ricchiuti & Patrick V. Ricchiuti,
Co-Trustees of the Frances M. Ricchiuti Family Trust and
Patrick V. Ricchiuti, Trustee, The Ricchiuti GST Nonexempt
QTIP Trust; 580-020-20S and 580-020-22S owned by
Leonard and Nicholas Verni; 580-050-01S owned by Patrick
Vincent Ricchiuti, Trustee of the Patrick Vincent Ricchiuti
Family Trust; and 580-020-21 and 580-020-23 owned by
George C. Goshgarian, Kathleen A. Goshgarian, Michael
Morales, Leonard Verni, Nicholas Verni, Steven G. Fogg
Family Partnership, and Christopher T. Lum as Sole Trustee
of the Steven C.Y. Lum and Catherine J. Lum Trust.
1. * RESOLUTION - That the Public Interest and Necessity
Require and Authorize Eminent Domain for Acquisition of
Permanent Utility Easements and Temporary Construction
Easements from Real Property: APNs 580-040-02S,
580-020-20S, 580-020-22S, 580-050-01S, 580-020-21,
580-020-23, located in the County of Fresno. (Requires 5
Affirmative Votes)
(Continue to October 23, 2014 @ 11:00 a.m.)
ID#14-462
Sponsors:Department of Public Utilities
10:00 A.M.#2
CONTINUED HEARING to Consider Rezone Application
No. R-13-014 and related Environmental Assessment No.
R-13-014/TPM 2013-03 filed by Mike Hamzy on behalf of
Niko Real Estate Fund, LLC for property located on the
west side N. Winery Avenue between E. Washington and
E. McKenzie Avenues (Council District 7)
(Continued from June 26, 2014 Council meeting)
1.Consider the Finding of Conformity for Environmental
Assessment No. R-13- 014/TPM 2013-03
ID#14-416
Page 7 City of Fresno ***Subject to Mayoral Veto
October 9, 2014City Council Meeting Agenda -
Final-revised
2. BILL- (For introduction and adoption) - Amending the
Official Zone Map to reclassify the subject property from
the R-A (Single Family Residential Agricultural) zone
district to the R-1 (Single Family Residential) zone district
Sponsors:Planning and Development Department
10:30 A.M.
Consider an appeal filed by Councilmember Caprioglio,
appealing the Planning Commission’s action to approve
Conditional Use Permit No. C-13-092 and related Vesting
Tentative Tract Map No. 6033/UGM, and environmental
findings, by Jeffrey T. Roberts of Granville Homes, Inc, for
property located on the northeast corner of North Fowler
and East Clinton Avenues (Council District 4)
1.RESOLUTION - Denying the appeal and approving
Conditional Use Permit No. C-13-092
2.RESOLUTION - Denying the appeal and approving
Vesting Tentative Tract Map No. 6033/UGM
(Continued from September 25, 2014)
ID#14-446
Sponsors:Planning and Development Department
10:45 A.M.
JOINT MEETING OF THE CITY OF FRESNO, THE SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, AND THE FRESNO
REVITALIZATION CORPORATION
City Council, Successor Agency Board, FRC Board
consider approving:
Actions pertaining to public improvements within the
Central City Commercial Redevelopment Project
1.Findings of Categorical Exemption pursuant to Sections
15301 (Existing Facilities), item (c) of the CEQA
Guidelines, related to the construction of publically owned
improvements in the area generally described as Hedges
Avenue between Abby and Effie, Effie Avenue between
Hedges and Hammond, and Hammond Avenue between
Effie and Abby.
ID#14-451
Page 8 City of Fresno ***Subject to Mayoral Veto
October 9, 2014City Council Meeting Agenda -
Final-revised
2.RESOLUTION - Of the City of Fresno, the Successor
Agency and the Fresno Revitalization Corporation making
the necessary findings under section 33445 of the
community redevelopment law, authorizing the installation
of public improvements within the Central City Commercial
redevelopment project area for street improvements
including curb, gutter, paving and sidewalks.
3.Award of construction contract to Central Valley Asphalt
as the lowest responsive and responsible bidder in the
amount of $252,831.88 (Bid File No.3291) for the
construction of publically owned improvements in the area
generally described as Hedges Avenue between Abby and
Effie, Effie Avenue between Hedges and Hammond, and
Hammond Avenue between Effie and Abby.
ADJOURN JOINT MEETING
PLEASE NOTE: UNSCHEDULED COMMUNICATIONS IS NOT SCHEDULED FOR A
SPECIFIC TIME AND MAY BE HEARD ANY TIME DURING THE MEETING
UNSCHEDULED COMMUNICATION
ADJOURNMENT
UPCOMING SCHEDULED COUNCIL HEARINGS AND MATTERS
UPCOMING SCHEDULED COUNCIL HEARINGS AND MATTERS
UPCOMING SCHEDULED COUNCIL HEARINGS AND MATTERS
OCTOBER 23
10:00 A.M.#1 HEARING ordering the vacation of a portion of the northwest side of
Stanislaus Street northeast of Fulton Street (Council District 3)
OCTOBER 23
10:00 A.M.#2 HEARING re: Non-Exclusive Towing Franchise Agreements
OCTOBER 23
10:00 A.M. #3 HEARING re: granting a non-exclusive franchise for roll-off
collection services within the City of Fresno
Page 9 City of Fresno ***Subject to Mayoral Veto
October 9, 2014City Council Meeting Agenda -
Final-revised
OCTOBER 23
10:15 A.M. HEARING re: Rezone Application No. R-14-004 filed by Poeschel Land
Development Services on behalf of property owner Bill Milam
OCTOBER 23
10:30 A.M. Rezone Application No. R-14-006 (and the finding Mitigated Negative
Declaration prepared for EA No. R-14-006) filed by Dirk Poeschel Land
Development Services, on behalf of Wells Fargo Bank, NA and successor in
interest Property Multipliers LLC.
OCTOBER 23
11:00 A.M. CONTINUED HEARING to consider a Resolution of Public Use and
Necessity for acquisition of permanent utility easements and temporary
construction easements from APNs 580-040-02S owned by Frances M. Ricchiuti &
Patrick V. Ricchiuti
OCTOBER 23
1:30 P.M. Review of Police Staffing - Council President Brandau
OCTOBER 23
3:00 P.M. WORKSHOP re the General Plan presented by Building Healthy
Communities
NOVEMBER 20
10:00 a.m. HEARING re: Final Tract Map No. 5967 annexed to CFD No. 11 to
provide funding for the operation and reserves for maintenance (“Services”)
pertaining to the concrete curbs and gutters, entrance median curbs and
hardscaping, sidewalks, curb ramps, interior street paving and street lighting
associated with this subdivision
DECEMBER 11
11:00 A.M. WORKSHOP - Central Unified School District -Superintendent Mike
Berg (Council President Brandau)
UPCOMING EMPLOYEE CEREMONIES
OCTOBER 22 (Wednesday)
Page 10 City of Fresno ***Subject to Mayoral Veto
October 9, 2014City Council Meeting Agenda -
Final-revised
2:00 P.M. Presentation of Employee Service Awards (Reception immediately
following - 2nd floor foyer)
2014 CITY COUNCIL MEETING SCHEDULE
OCTOBER 16 - NO MEETING
OCTOBER 23 - 8:30 A.M.
OCTOBER 30 - 8:30 A.M.
NOVEMBER 6 - 8:30 A.M. DECEMBER 4 - 8:30 A.M.
NOVEMBER 13 - NO MEETING DECEMBER 11 - 8:30 A.M
NOVEMBER 20 - 8:30 A.M. DECEMBER 18 - 1:30 P.M.
NOVEMBER 27 - NO MEETING DECEMBER 25 - NO MEETING
Page 11 City of Fresno ***Subject to Mayoral Veto
City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-452 Agenda Date:10/9/2014 Agenda #:
CEREMONIAL PRESENTATION
Presentation of certificates to The Münster Youth Choir
City of Fresno Printed on 12/16/2022Page 1 of 1
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City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-465 Agenda Date:10/9/2014 Agenda #:
CEREMONIAL PRESENTATION
Proclamation of “NATIONAL DAY ON WRITING”
City of Fresno Printed on 12/16/2022Page 1 of 1
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City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-453 Agenda Date:10/9/2014 Agenda #:
CITY COUNCIL MINUTES FOR APPROVAL
Approval of City Council minutes from October 2, 2014
City of Fresno Printed on 12/16/2022Page 1 of 1
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Agenda ltem: lD#14-453
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Supplemental lnformation Packet
Agenda Related ltems - Meeting of October 9, 2Ot4
Supplemental Packet Date: October 7,2OL4
Item(sI
File lD# L4-453 - Approval of City Council minutes from October 2,2014
Supplemental lnformation :
Any agenda related public documents received and distributed to a majority of the City Council after the
Agenda Packet is printed are included in Supplemental Packets. Supplemental Packets are produced as
needed. The Supplemental Packet is available for public inspection in the City Clerk's Office, 2600
Fresno Street, during normal business hours (main location pursuant to the Brown Act, G.C. 54957.5(21.
ln addition, Supplemental Packets are available for public review at the City Council meeting in the City
Council Chambers, 2600 Fresno Street. Supplemental Packets are also available on-line on the City
Clerk's website.
Americans with Disabilities Act (ADA):
The meeting room is accessible to the physically disabled, and the services of a translator can be
made available. Requests for additional accommodations for the disabled, sign language interpreters,
assistive listening devices, or translators should be made one week prior to the meeting. Please call
City Clerk's Office at 621-7650. Please keep the doorways, aisles and wheelchair seating areas open
and accessible. lf you need assistance with seating because of a disability,se see Security.
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
City of Fresno
Meeting Minutes - Draft
City Council
Council President - Steve Brandau
Acting President - Oliver Baines, III
Councilmembers:
Lee Brand, Paul Caprioglio, Clinton J. Olivier,
Sal Quintero, Blong Xiong
City Manager - Bruce Rudd
City Attorney - Douglas T. Sloan
City Clerk - Yvonne Spence, CMC
8:30 AM Council ChambersThursday, October 2, 2014
Regular Session
The City Council met in regular session at the hour of 8:30 A.M. in the Council
Chamber, City Hall, on the day above written.
8:37 A.M. ROLL CALL
Council President Steve Brandau
Acting Council President Oliver Baines
Councilmember Lee Brand
Councilmember Paul Caprioglio
Councilmember Clinton Olivier
Councilmember Sal Quintero
Councilmember Blong Xiong
Present:7 -
Invocation by District 4
The invocation was performed by Public Works Director Mozier
Pledge of Allegiance to the Flag
CEREMONIAL PRESENTATIONS
ID#14-425 Presentation of SPCA Pet of the Month
Sponsors:City Councilmember Brandau
PRESENTED
City of Fresno *Subject to mayoral veto Page 1
October 2, 2014City Council Meeting Minutes - Draft
ID#14-378 Presentation of the annual Disability Awareness Month Proclamation
and Disability Advisory Commission annual awards
Sponsors:Mayor's Office
PRESENTED
ID#14-426 Presentation of P.R.I.D.E. Team Certificates for the Fall Quarter
PRESENTED
RECESSED 9:16 A.M. to 9:40 A.M.
APPROVE CITY COUNCIL MINUTES
ID#14-442 Approval of City Council minutes from September 25, 2014
APPROVED
On motion of Councilmember Quintero, seconded by Councilmember
Brand, the above Minutes were approved. The motion carried by the
following vote:
Aye:Brandau, Baines, Brand, Olivier, Quintero and Xiong6 -
Absent:Caprioglio1 -
COUNCILMEMBER REPORTS AND COMMENTS
Councilmember Quintero asked City Manager Rudd to relay his appreciation
to city staff for the great work done for the Carnival event at the Mosqueda
Center and at the opening of the Big Fresno Fair. Councilmember Quintero
congratulated the City Manager on the improvement of the City’s rating by
Moody’s Investor Services.
City Manager Rudd noted that Council and many others played a role in the
rating improvement by Moody’s Investor Services. Rudd commented that
the path laid out over the last four years was a difficult one but one that was
required over the long run. The ratings change affirmed it was the correct
path. Rudd noted the ratings improvements would help if the City decided to
borrow money sometime in the future and would help economic
development by drawing new business to Fresno and encouraging existing
businesses to expand.
Acting President Baines reported that he missed the Council meeting last
week because he was attending the Congressional Black Caucus in
City of Fresno *Subject to mayoral veto Page 2
October 2, 2014City Council Meeting Minutes - Draft
Washington D.C.. The conference was excellent and he brought back a lot
of ideas and made many contacts on behalf of the City. Acting President
Baines also thanked City Manager Rudd and City Clerk Spence for getting
public information onto the City website so constituents would have easy
access to those things that occur in City.
Councilmember Brand reported he had attended a great event by The Art of
Life Cancer Foundation at California State University Fresno the previous
Sunday. The foundation gets artists involved with people undergoing cancer
treatment. Councilmember Brand informed Council he would bring an item
before council to allow the Foundation to hold a similar event at Woodward
Park.
Councilmember Xiong asked City Manager Rudd to pass along his
appreciation to staff for performing well at his districts General Plan update
meeting.
President Brandau noted his appreciation for the City's water meetings that
allowed interested citizens to interact with the City and better understand the
water plans.
APPROVE AGENDA
On motion of Councilmember Olivier, seconded by Councilmember
Brand, the agenda was approved. The motion carried by the following
vote:
Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and
Xiong
7 -
1. CONSENT CALENDAR
APPROVAL OF THE CONSENT CALENDAR
Councilmember Brand moved Consent Calendar Item 1-F (File ID#14-443)
regarding a consultant services agreement with Barrett Sports Group LLC,
to the Contested Consent Calendar for further discussion.
On motion of Councilmember Xiong, seconded by Councilmember
Olivier, the CONSENT CALENDAR was hereby adopted by the following
vote:
Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and
Xiong
7 -
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October 2, 2014City Council Meeting Minutes - Draft
ID#14-3791-A Revision of Video Policing Auditing
Sponsors:Police Department
APPROVED
The above item was approved on the Consent Calendar.
ID#14-3971-B Approve a (3) three year requirements contract with the possibility of (2)
two one-year extensions for Cost Allocation Plan (CAP) and Indirect
Cost Rate Proposal (ICRP) services in the amount of $23,000 per year
with MGT of America, Inc.
Sponsors:Finance Department
APPROVED
The above item was approved on the Consent Calendar.
ID#14-4001-C RESOLUTION - Of Intention to vacate portions of the northwest side of
Stanislaus Street northeast of Fulton Street and the northeast side of
Fulton Street northwest of Stanislaus Street, and a portion of the
Fulton-Van Ness Alley northwest of Stanislaus Street (Council District 3)
Sponsors:Public Works Department
ADOPTED
The above item was adopted on the Consent Calendar.
ID#14-4021-D Approve Agreement for Transfer of Drainage Facilities from City of
Fresno to Fresno Metropolitan Flood Control District along Kings
Canyon Road (former State Route 180) (Council District 5)
Sponsors:Public Works Department
APPROVED
The above item was approved on the Consent Calendar.
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October 2, 2014City Council Meeting Minutes - Draft
ID#14-4271-E Actions pertaining to the City Hall Annex Reroof Project (Council District
3)
1.Adopt finding of a Categorical Exemption per staff determination,
pursuant to Section 15301(d) of the California Environmental Quality
Act (CEQA) Guidelines
2.Award a construction contract to Roof Systems, Inc. dba Nations
Roof West of Fresno, California in the amount of $282,182 for the
City Hall Annex Roof Project (Bid File 3282)
Sponsors:Public Works Department
APPROVED
The above item was approved on the Consent Calendar.
ID#14-4431-F Approve a consultant services agreement with Barrett Sports Group,
LLC
Sponsors:City Manager's Office
The above item was moved to the Contested Consent Calendar for further
discussion by Councilmember Brand.
CONTESTED CONSENT CALENDAR
ID#14-4431-F Approve a consultant services agreement with Barrett Sports Group,
LLC
Sponsors:City Manager's Office
Councilmember Brand introduced the above item to Council and Mayor
Swearengin's Chief of Staff White answered questions.
City Attorney Sloan read a proposed change to the Barrett Sports Group
consultant agreement into the record as follows: "instead of reading '...a
finders fee in an amount equal to 3.5%' the proposed change is that text
should read, '...a finders fee not to exceed 3.5%' because there is a chance
it could be negotiated to be less."
APPROVED
On motion of Councilmember Brand, seconded by Councilmember
Olivier, the above item was approved. The motion carried by the
following vote:
Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and
Xiong
7 -
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October 2, 2014City Council Meeting Minutes - Draft
2. GENERAL ADMINISTRATION
ID#14-3862-A Approve a Requirements Contract with Elite Maintenance and Tree
Service, Inc. in the amount of $585,162 to provide monthly landscape
maintenance service in selected Community Facility Districts and
Landscape and Lighting Maintenance Districts
Sponsors:Public Works Department
Public Works Manager Aguirre introduced the above item to Council.
APPROVED
On motion of Councilmember Quintero, seconded by Councilmember
Brand, the above item was approved. The motion carried by the
following vote:
Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and
Xiong
7 -
ID#14-3922-B Approve a State of California Lead Poisoning Prevention Program
Agreement in the amount of $436,470 with the County of Fresno for
three years for lead hazard assistance and outreach
Sponsors:Development and Resource Management Department
Development and Resources Management Director Clark introduced the
above item to Council.
Acting President Baines noted that staff reports are as much as for the
public as they are for Council so staff should include responses provided to
Councilmembers concerns in the staff reports.
Councilmember Quintero recommended utilizing mailers to focus on
neighborhoods most likely to qualify for help from this grant and asked staff
to work with his office to identify neighborhoods in District 5.
APPROVED
On motion of Acting President Baines, seconded by Councilmember
Xiong, the above item was approved. The motion carried by the
following vote:
Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and
Xiong
7 -
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October 2, 2014City Council Meeting Minutes - Draft
ID#14-4372-C Action pertaining to an Annual Appropriation Resolution for the High
Speed Rail Station Area Master Plan
1.*RESOLUTION- 3rd amendment to the Annual Appropriation
Resolution (AAR) No. 2014-95 appropriating $1,020,000 for High
Speed Rail Station Master Plan consulting services and
miscellaneous City expenses (Requires 5 affirmative votes)
Deputy City Manager Quan-Schecter introduced the above item to Council.
The following member(s) of the public spoke on this item: Anna Lovelace of
I Will Ride, Shoshana Mudick of I Will Ride and Lee Ann Eager of Fresno
County Economic Development Corporation.
Councilmember Brand stated, for the record, that he had serious concerns
with the financing and the overall High Speed Rail position in California but
the current item was a local application and the consequence of not
accepting the grant would be a burden upon the general fund.
Councilmember Brand confirmed the general fund burden consequence with
City Manager Rudd.
Councilmember Caprioglio stated, for the record, that most citizens of
District 4 do not support High Speed Rail and his research showed that High
Speed Rail was an imposition by the State and Federal Government and the
way to get by the situation was through the courts. Councilmember
Caprioglio continued by explaining he would support the above item in order
to bring tax money back to the local area and to protect the general fund.
RESOLUTION 2014-161 ADOPTED
On motion of Acting President Baines, seconded by Councilmember
Quintero, the above item was adopted. The motion carried by the
following vote:
Aye:Baines, Brand, Caprioglio, Quintero and Xiong5 -
No:Brandau and Olivier2 -
5. SCHEDULED COUNCIL HEARINGS AND MATTERS
10:00 A.M.
ID#14-363 HEARING to adopt resolutions and ordinance to annex territory and
levy a special tax regarding City of Fresno Community District No .
11, Annexation No. 56 (Final Tract Map No. 6063) (near south corner
of North Friant Road and East Copper Avenue) (Council District 6)
City of Fresno *Subject to mayoral veto Page 7
October 2, 2014City Council Meeting Minutes - Draft
1.RESOLUTION - Annexing Territory to Community
Facilities District No. 11 and Authorizing the Levy of a
Special Tax
2.RESOLUTION - Calling Special Mailed-Ballot Election
3.RESOLUTION - Declaring Election Results
4.* BILL - (For introduction and adoption) - Levying a
Special Tax for the Property Tax
Year 2014-2015 and Future Tax Years Within and Relating to
Community Facilities District No. 11, Annexation No. 56,
Final Tract Map No. 6063
Sponsors:Public Works Department
Assistant Public Works Director Benelli introduced the above item to
Council.
The following member(s) of the public spoke on this item: owner/applicant
Christine Lingenfelter
RESOLUTION 2014-162 ADOPTED
RESOLUTION 2014-163 ADOPTED
RESOLUTION 2014-164 ADOPTED
BILL B-42 / ORDINANCE 2014-43 ADOPTED
On motion of Councilmember Brand, seconded by Councilmember
Olivier the above item was adopted. The motion carried by the
following vote:
Aye:Brandau, Baines, Brand, Caprioglio, Olivier, Quintero and
Xiong
7 -
10:10 A.M.
ID#14-420 Sign Ordinance Workshop
Development and Resources Management Director Clark introduced the
above item to Council.
Councilmember Xiong clarified that public input would include the many
chambers throughout the City and requested that the discussion would
include the financial resources required to enforce sign policies.
Councilmember Quintero asked that consideration be given to current signs
and what could be done to get them fixed up or help the property owners get
into compliance. Councilmember Quintero also asked that there be
weekend code enforcement for those that only display illegal signs on the
City of Fresno *Subject to mayoral veto Page 8
October 2, 2014City Council Meeting Minutes - Draft
weekends when code enforcement historically had not been present.
President Brandau recommended hitting enforcement hard once the final
decisions had been made and asked that consideration be given to adding
overlay areas for locations that might need different sign rules than the city
wide sign policy.
Councilmember Caprioglio asked for enforcement of illegal political signs to
be addressed in the final policy.
Councilmember Brand asked for consideration of changing the enforcement
policy from a solely complaint driven process to something more equitable
and that would treat everyone the same. Councilmember Brand also asked
that consideration be given to the future of electronic signs in the city.
City Attorney Sloan noted there were First Amendment, Equal Protection,
and state and federal law issues that come into play when dealing with
signs. City Attorney Sloan asked if his office could prepare a memo for
Council that would describe those things the City could properly regulate.
Acting President Brandau welcomed the suggestion of a memo from the City
Attorney's Office.
Director Clark noted the draft code would be released for public
consideration later in October. Currently, the public can provide input
through Director Clark's office or Councilmember offices.
3. CITY COUNCIL
ID#14-4293-A Council Boards and Commissions Communications, Reports,
Assignments and/or Appointments, Reappointments, Removals to /from
City and non-City Boards and Commissions:
1. Council of Governments - Swearengin-Ex-Officio
(Olivier-Alternate)
2. Financial Audit Committee - Brand, Olivier, Xiong
3. Fresno Area Workforce Investment Corporation - Baines
4. Fresno County Transportation Authority (FCTA) - Swearengin,
Brandau
5. Fresno Regional Workforce Investment Board - Baines, Renena
Smith
6. Fresno County Zoo Authority - Swearengin (Baines-Alternate)
7. Fresno Madera Area Agency on Aging Board - Olivier
8. Joint Powers Financing Authority - Baines, Xiong, Swearengin
9. Association for the Beautification of Highway 99 - Baines
City of Fresno *Subject to mayoral veto Page 9
October 2, 2014City Council Meeting Minutes - Draft
10. Upper Kings Basin Integrated Regional Water Management JPA -
Xiong
11. Pension Reform Task Force - Brand, Xiong, (3rd Member
vacant)
12. Economic Development Corporation Serving Fresno County -
Brandau-Ex-Officio
13. Fresno/Clovis Convention & Visitors Bureau (CVB) - Amy
Fuentes
14. League of California Cities (Annual Meeting) - Swearengin
(Olivier-Alternate)
15. San Joaquin Valley Air Pollution Control District - Baines
16. Infill Development Ad Hoc Subcommittee - Brand, Baines,
Olivier
17. Litigation Exposure Reduction Ad Hoc Committee - Brandau,
Caprioglio
18.Convention Center Oversight Advisory Board - Baines,
(Brand-Alternate), City Manager, SMG General Manager and
one representative from each of SMG’s organizations
Sponsors:City Clerk's Office
Acting President Baines reported the Fresno County Zoo Authority was well
underway with the Measure Z campaign and the African exhibit would be
completed next summer. Acting President Baines reported zoo attendance
had doubled from five years ago with almost 700,000 people currently
attending each year. Acting President Baines stated the Sea Lion Cove
exhibit was an award winning exhibit and with the upcoming African exhibit
our zoo would be one of the best in the region.
Acting President Baines reported the San Joaquin Valley Air Pollution
Control District had updated the wood burning rules to allow increased wood
burning for clean burning devices and there was an incentive grant program
to help people upgrade their wood burning devices to clean burning
systems.
Councilmember Brand reported he and Acting President Baines would be
introducing a concept of Council sub-committees working with School
Districts in a formalized process to improve relations with the local school
districts on cross jurisdictional issues. President Brandau replied to
Councilmember Brand that the City was reaching out to the School Districts
and would bring in the Superintendents before the end of the year.
President Brandau reported that the Economic Development Corporation
serving Fresno County recently sponsored a group of Chinese investors that
City of Fresno *Subject to mayoral veto Page 10
October 2, 2014City Council Meeting Minutes - Draft
were very interested in investing in the central valley and Fresno in
particular.
REPORTS AND COMMENTS MADE
4. CLOSED SESSION
No Closed Session items were scheduled.
UNSCHEDULED COMMUNICATION
The following member(s) of the public spoke to Council about items not on
the agenda:
Dave Herb of the Democratic Central Committee noted his committee has
received complaints about timed items being heard well after the stated
times listed on the agendas. Mr. Herb asked Council to make a concerted
effort to hear timed items as close to the stated time as possible (but not
earlier) in order to facilitate citizens that arrange their schedules to attend
those items.
ADJOURNMENT
Adjourned at 11:49 A.M.
City of Fresno *Subject to mayoral veto Page 11
City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-364 Agenda Date:10/9/2014 Agenda #:1-A
REPORT TO THE CITY COUNCIL
October 9, 2014
FROM:DEFERRED COMPENSATION BOARD
BY:STANLEY L. MCDIVITT, Retirement Administrator
SUBJECT
Adopt amendments to The City Of Fresno Deferred Compensation Plan document to allow for Roth
Contributions and Roth In-Plan Rollover Conversions, update limits on deferrals, and Section
concerning qualified military service
RECOMMENDATION
The City of Fresno Deferred Compensation Board recommends that the City Council approve the
attached City of Fresno Deferred Compensation Plan Document adding the Roth provisions allowed
by the American Taxpayer Relief Act (ATRA)of 2012,qualified military service provisions of Pension
Protection Act (PPA) of 2006 and updating deferral limits.
EXECUTIVE SUMMARY
The City of Fresno Deferred Compensation Plan document has been modified to incorporate the
necessary language to 1)add Roth Contributions as a deferral type,including provisions for the Roth
In-Plan Conversion enabling Fidelity,the plan’s current record keeper custodian,to implement these
provisions approximately 12-weeks following receipt of the amended Plan document;2)update
deferral limits, and 3) add a section on Qualified Military Service.
BACKGROUND
ATRA contains an important provision that offers a new opportunity to convert assets in defined
contribution plans (such as Section 401(k)plans,Section 403(b)plans,and governmental 457(b)
plans)into Roth amounts within the plan,regardless of whether the amounts are currently
distributable,as long as the plan permits regular non-rollover Roth contributions.The amount
converted is currently taxable but subsequent qualified distributions from the plan Roth account are,
of course,completely nontaxable.Plans are permitted to offer this new conversion election but are,of
course, not required to do so.
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File #:ID#14-364 Agenda Date:10/9/2014 Agenda #:1-A
This opens up a potential source of assets for conversion to Roth.The new provision would allow all
vested assets in a plan to be eligible for conversion.This provision is effective for transfers to Roth
accounts after adoption by Council; and it is important to note that plan conversions are irrevocable.
At its meeting on July 25,2014,the Deferred Compensation Board reviewed,discussed and
ultimately concluded that it was in favor of adopting modifications to the City of Fresno Deferred
Compensation Plan document to allow Roth Contributions and Roth In-Plan Conversion features
recently allowed in 457 Government sponsored deferred compensation plans.
Once the City Council approves the Plan document modifications,Retirement Office staff will work
with Personnel/Payroll and ISD to program,test,and implement 457 Roth deferral contributions to
the City’s PeopleSoft payroll system.Fidelity has provided the Fidelity Roth Deferral Feedback
File/Tape Specifications which have been reviewed by the City’s Personnel/Payroll and ISD
departments.
The City Attorney’s Office has thoroughly reviewed the attached proposed revisions to the Plan
Document.
ENVIRONMENTAL FINDINGS
N/A
LOCAL PREFERENCE
N/A
FISCAL IMPACT
The costs of implementing new provisions to the 457 Plan are borne by the City.It is estimated that
up to approximately ninety (90)hours of staff work may be required to program,test and implement
457 Roth deferral type (after-tax)contributions to the City’s PeopleSoft payroll system.There are no
other costs for the City associated with the implementation of the Roth In-Plan Rollover conversion
provisions.
Attachments: City of Fresno Deferred Compensation Plan Document Redlined and Final
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CITY OF FRESNO
DEFERRED COMPENSATION
PLAN DOCUMENT
CITY OF FRESNO
July 23, 2009October 9, 2014
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
TABLE OF CONTENTS
Article I
PLAN ESTABLISHED
01-01 Plan Established. ........................................................................... 1
Article II
PURPOSE
02-01 Primary Purpose ........................................................................... 1
02-02 Agreement ................................................................................... 1
02-03 Tax Status not Guaranteed ............................................................ 1
Article III
DEFINITIONS
03-01 Account ........................................................................................ 2
03-02 Accumulated Deferrals .................................................................. 2
03-03 Automatic Distribution Date ........................................................... 2
03-04 Beneficiary ................................................................................... 2
03-05 Compensation ............................................................................... 2
03-06 Deferred Compensation ................................................................. 2
03-07 Deferred Compensation Board ....................................................... 2
03-08 Eligible Employee .......................................................................... 3
03-09 Eligible Retirement Plan ................................................................. 3
03-10 Eligible Rollover Distribution .......................................................... 3
03-11 Eligible Tax Favored Vehicle........................................................... 3
03-12 Employer ...................................................................................... 3
03-13 Includible Compensation ............................................................... 3
03-14 IRC .............................................................................................. 3
03-15 Normal Retirement Age ............................................................... 34
03-16 Participant .................................................................................... 4
03-17 Participation Agreement ................................................................ 4
03-18 Participation Account ................................................................... . 4
03-19 Plan Year. ................................................................................. 45
03-1920 Qualified Domestic Relations Order or "QDRO ............................... 45
03-2021 Required Beginning Date ............................................................. 45
03-2122 Rollover Amount ......................................................................... 45
03-2223 Roth Contributions........................................................................5
03-24 Roth Contributions Subaccount......................................................5
03-25 Roth In-Plan Rollover Contributions................................................5
03-26 Roth In-Plan Rollover Subaccount.................................................. 5
03-27 Severance Event ......................................................................... 45
03-2324 State Law ................................................................................. 56
03-2425 Trust ......................................................................................... 56
03-2526 Trust Agreement ......................................................................... 56
03-2627 Trustee ...................................................................................... 56
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
TABLE OF CONTENTS
Article IV
ADMINISTRATION
04-01 Administered by Deferred Compensation Board ............................ 65
04-02 Deferred Compensation Board Duties and Responsibilities ............. 65
(a) Deferred Compensation Board to Adopt Rules and Regs ...... 65
(b) Deferred Compensation Board Action Fair and Reasonable .. 75
04-03 Deferred Compensation Board Powers. ......................................... 76
(a) Plan Prevails ..................................................................... 76
(b) Decision Binding ............................................................... 76
(c) Deferred Compensation Board to Interpret ......................... 76
(d) Deferred Compensation Board May Require Court Order...... 76
(e) Delegation of Authority ...................................................... 76
Article V
PARTICIPATION IN THE PLAN
05-01 Enrollment in the Plan ................................................................... 7
05-02 Investment Options ..................................................................... 87
05-03 Deferral ...................................................................................... 87
05-04 Investment Vehicle Election and Direction of Investments ............ 87
(a) Investment Options ........................................................... 87
(b) Experience of Loss ............................................................ 87
(c) Actions of Deferred Compensation Board ............................ 98
05-05 Designation of Beneficiary ........................................................... 98
05-06 Modification of Deferral or Investment Option(s) ........................... 98
Article VI
LIMITATION ON DEFERRALS
06-01 Deferral Limitation ...................................................................... 98
06-02 Catch-up Provisions .................................................................... 109
(a) Normal Catch-up Provision ................................................ 109
(b) Age 50 Plus Catch-up Provision ......................................... 109
Article VII
TRANSFERS AND ELIGIBLE ROLLOVERS
07-01 Rollover Contributions ................................................................ 110
(a) Eligible Deferred Compensation Plans ................................ 110
(b) Other Eligible Retirement Plans ........................................ 110
07-02 Transfers to Certain Plans for the Purchase of Service Credit ........ 121
(a) Direct Trustee to Trustee Transfer .................................... 121
(b) Application of Transfer ..................................................... 121
(c) Administrative Rules ......................................................... 121
07-03 Roth In-Plan Rollover Contributions .............................................. 12
CITY OF FRESNO=S DEFERRED COMPENSATION PLAN DOCUMENT
TABLE OF CONTENTS
Article VIII
DISTRIBUTION OF BENEFITS
08-01 Inactive De Minimis Accounts ..................................................... 131
(a) Voluntary Withdrawals...................................................... 131
08-02 Distribution Upon the Death of Participant or Beneficiary .............. 132
08-03 Elections Regarding Distribution .................................................. 132
08-04 Distribution of Deferrals ............................................................. 142
(a) General Rule .................................................................... 142
(b) Distribution of Participant ................................................. 142
(c) Distribution to Beneficiary ................................................. 142
08-05 Eligible Rollover Distributions ...................................................... 143
(a) Election Procedure ........................................................... 143
(b) Effect of Delivery of Rollover Amounts ............................... 153
08-06 Unforeseeable Emergency General .............................................. 153
08-07 Qualified Domestic Relations Orders - General ............................. 154
(a) Segregation of Account/Payment .................................... 1416
(b) Status, rights, and Privileges of Alternate Payee ................. 164
(c) Exceptions to General Rule ............................................... 164
(d) Qualified Domestic Relations Order Expenses .................... 165
Article IX
LOANS TO PARTICIPANTS
09-01 Loans to Participants ................................................................ 1516
(a) Limitation on Amount .................................................... 1516
(b) Equality of Borrowing Opportunity ..................................... 157
(c) Pledge of Security .......................................................... 1517
(d) Loan Forms ................................................................... 1617
(e) Interest Rate ................................................................. 1617
(f) Loan Terms ................................................................... 1617
(g) Amortization .................................................................. 1618
(h) Prepayments ................................................................. 1618
(i) Defaults and Remedies ................................................... 1618
(j) Loan Procedures ............................................................ 1618
(k) Outstanding Loans ......................................................... 1618
(l) Payment of Fees ............................................................ 1618
(m) Suspension of Repayment .............................................. 1718
(n) Other Terms and Conditions ........................................... 1719
CITY OF FRESNO=S DEFERRED COMPENSATION PLAN DOCUMENT
TABLE OF CONTENTS
Article X
MISCELLANEOUS PROVISIONS
10-01 Leave of Absence ....................................................................... 179
10-02 Termination of Plan .................................................................... 179
10-03 Amendment of Plan .................................................................... 197
10-04 Non alienation of Benefits - Attachment ..................................... 1819
10-05 Plan Assets .............................................................................. 1819
10-06 Participation by Deferred Compensation Board Members ............ 1820
10-07 Employer Contributions ............................................................ 1820
10-08 Controlling Law ........................................................................ 1820
10-09 Suspension of Contributions ..................................................... 1920
10-10 No Contract of Employment ...................................................... 1920
10-11 Severability of Provisions .......................................................... 1921
10-12 Heirs, Assigns and Personal Representatives .............................. 1921
10-13 Payments to Minors, Etc. ............................................................ 210
10-14 Reliance on Data and Consents ................................................... 201
10-15 Equal Access to Benefits, Rights and Feature ............................... 201
10-16 Claim Procedures ..................................................................... 2021
10-17 Gender and Number ................................................................ 2022
10-18 Qualified Military Service…………………………………………………………..22
10-19 Entire Agreement ....................................................................... 212
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
CITY OF FRESNO
DEFERRED COMPENSATION
PLAN DOCUMENT
ARTICLE I
PLAN ESTABLISHED
01-01 Plan Established. The Employer hereby amends and restates the City of
Fresno Deferred Compensation Plan Document ("Plan"). The Plan consists of the
provisions set forth in this document. This which is amendedment and restatemented
of the Plan is pursuant to the Economic Growth and Tax Relief Reconciliation Act of
2001, Pension Protection Act of 2006 (“PPA”), and American Taxpayer Relief Act of
2012 (“ATRA”). It is intended that the Plan shall qualify as an Eligible Deferred
Compensation Plan within the meaning of Code Section 457(b) of the Internal Revenue
Code of 1986 as amended (“IRC”) sponsored by an Eligible Governmental Employer.
ARTICLE II
PURPOSE
02-01 Primary Purpose. The primary purpose of the Plan is to provide retirement
income and other deferred benefits to the Employees of the Employer and the
Employees' Beneficiaries in accordance with the provisions of Section 457 of the
IRCnternal Revenue Code of 1986 as amended, and Government Code Sections 53212
et seq.
02-02 Agreement. The Plan shall be an agreement solely between the Employer
and participating Employees. The Employer has established a Trust in the Trust
Agreement, to hold all assets of the Plan for the exclusive benefit of Participants and
Beneficiaries. The Trust shall comply with IRC Section 457(g) and constitute a valid
trust under applicable state law. The powers and duties of the Trustee are set forth in
the Trust Agreement.
02-03 Tax Status not Guaranteed. The Employer, and the Deferred
Compensation Board which administers the Plan, do not, and cannot, represent or
guarantee that any particular federal and state income, payroll, or other tax
consequences will occur by reason of an Employee's participation in this Plan. The
Participant shall consult with his own attorney or other representative regarding all tax
or other consequences of participation in this Plan.
1
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
ARTICLE III
DEFINITIONS
The following terms when used herein, shall have the following meaning:
03-01 Account means the bookkeeping account maintained for each Participant
reflecting the cumulative amount of the Participant's Deferred Compensation, including
any income, gains, losses, or increases or decreases in market value attributable to the
investment of the Participant's Deferred Compensation, any transfers for the
Participant's benefit, any distributions to the Participant or the Participant's Beneficiary,
and any fees or expenses charged against such Participant's Deferred Compensation.
03-02 Accumulated Deferrals means compensation deferred under the Plan,
adjusted until date of payment by income received, increases or decreases in
investment value, fees and any prior distributions made.
03-03 Automatic Distribution Date, on or after January 1, 2002, means April 1
of the calendar year after the Plan year the Participant attains the age of 70 1/2 , or if
later, a Severance Event.
03-04 Beneficiary means any person, trust, corporation or firm, or the estate of
the Participant, or any combination of the foregoing designated by the Participant to
receive benefits under the Plan. Designation shall be made initially on the City of
Fresno Participation Agreement executed by the Participant, unless otherwise provided.
Beneficiary may mean singular or plural, primary or contingent.
03-05 Compensation means all payments made to the Employee by the Employer
as remuneration for services rendered.
03-06 Deferred Compensation means the amount of Participant's compensation
which the Participant and the Employer mutually agree to defer in accordance with the
provisions of this Plan, or any other amount which the Employer agrees to credit to a
Participant's Account under this Plan. When used in the context of deferrals of
Compensation, “defer(s)”, “deferral” or “deferred” means, individually or collectively,
Pre-Tax Deferrals and Roth Contributions, as applicable. “Deferred Compensation”
means the aggregate Pre-Tax Deferrals and Roth Contributions made from a
Participant’s Compensation, which said Participant has elected to defer in accordance
with the provisions of this Plan.
03-07 Deferred Compensation Board means the Deferred Compensation Board
which shall administer the City of Fresno Deferred Compensation Plan. The Deferred
2
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
Compensation Board shall consist of five members selected as follows:
(a) One member from the Finance Department appointed by the City Manager
with the approval of the City Council; and
(b) One member from any City department appointed by the City Manager
with the approval of the City Council; and
(c) Two members elected by and from the plan Participants who have a non-
zero balance in their Deferred Compensation Account (active or any other
status); and
(d) A fifth member chosen by the previously designated four members from
the qualified electors of Fresno County not connected with the City of Fresno or
the Plan.
The members elected by and from the Plan Participants shall serve a term of four years,
whose terms shall be staggered. The remaining members shall serve at the pleasure of
the appointing or electing authority.
03-08 Eligible Employee means any full time Employee or City Councilmember of
the City or any other Employee eligible for the City's pension system. Permanent part
time City employees are also eligible to participate in this Deferred Compensation Plan.
03-09 Eligible Retirement Plan means any account, annuity, plan or trust as
defined in IRC Section 402(c)(8)(B).
03-10 Eligible Rollover Distribution means any distribution as defined in IRC
Section 402(c)(4)(E).
03-11 Eligible Tax Favored Vehicle shall means a plan within the meaning of IRC
Sections 401(a), 401(k), 457(b), 403 (b) as defined in Section 402(c)(8)(B), of the
Internal Revenue Code, or Individual Retirement Arrangement, or qualified defined
benefit plan as defined by IRC Section 415(n)(3)(A).
03-12 Employer means the City of Fresno.
03-13 Includible Compensation means compensation for services performed for
the Employer, as defined in IRC Section 457(e)(5).
03-14 IRC means the Internal Revenue Code of 1986, as amended from time to
time.
3
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
03-15 Normal Retirement Age means age 70 1/2, unless the Participant has
elected an alternate Normal Retirement Age by written instrument delivered to the
Deferred Compensation Board prior to a Severance Event. A Participant’s Normal
Retirement Age determines the period during which a Participant may utilize the 457
Catch-Up Dollar Limitation set forth in Article VI. Once a Participant has to any extent
utilized the catch-up limitation in Article VI, his Normal Retirement Age cannot be
changed.
A Participant’s alternate Normal Retirement Age may not be earlier than the earliest
date that the Participant will become eligible to retire and receive unreduced retirement
benefits under his or her respective City of Fresno Retirement System (Fire and Police
Retirement System or Employees’ Retirement System), and may not be later than the
date the Participant will attain age 70 1/2. If a Participant continues employment after
attaining age 70 1/2, not having previously elected alternate Normal Retirement Age,
the Participant’s alternate Normal Retirement Age shall not be later than the mandatory
retirement age, if any, established by the Employer, or the age at which the Participant
actually has a Severance Event if the Employer has no mandatory retirement age. If
the Participant will not become eligible to receive benefits under his or her respective
City Retirement System, the Participant’s alternate Normal Retirement Age may not be
earlier than attainment of age 50 for Participants who are members of the Fire and
Police Retirement System, and age 55 for Participants who are members of the City
Employees’ Retirement System or are Permanent Part time Employees.
03-16 Participant means any member of the Plan who has elected, pursuant to
the Plan, to defer a portion of his compensation, and who fulfills the requirements of
participation in the Plan.
03-17 Participation Agreement means the agreement, including any
amendments and modifications thereof, executed and filed by an Eligible Employee with
the Employer pursuant to Article V, in which the Eligible Employee elects to become a
Participant in the Plan.
03-18 Participation Account means the account and subaccounts established and
maintained for a Participant under the Plan to which there is recorded, as applicable,
the Participant’s Pre-Tax Deferrals, Roth Contributions, Deferred Compensation Eligible
Deferred Compensation Plan Transfers, Rollover Contributions and Roth In-Plan
Contributions, if any, and any interest, dividends, gains, losses, earnings or expenses or
the like thereon. A Participant’s Participation Account shall be divided into the following
subaccounts, as applicable: the Pre-Tax Deferral Subaccount, the Roth Contribution
Subaccount, the Eligible Deferred Compensation Plan Transfer Subaccount, the Rollover
Subaccount and the Roth In-Plan Rollover Subaccount.
4
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
03-1819 Plan Year means the calendar year.
03-1920 Qualified Domestic Relations Order or "QDRO" means any judgment,
decree or order as defined in IRC Section 414(p).
03-20 21 Required Beginning Date means April 1 of the calendar year
following the later of: (a) the calendar year in which the Participant attains age 70 1/2;
or (b) the calendar year in which the Participant retires or leaves City service.
03-2122 Rollover Amount means that portion of an Eligible Rollover Distribution
from this Plan that, by election of the prospective distributee, is transferred directly or
indirectly to an Eligible Retirement Plan.
03-23 Roth Contribution(s) means contributions made pursuant to the
Participant’s Participation Agreement that (i) the Participant irrevocably designates at
the time of the contribution election as post-tax Roth contributions that are being made
from Compensation on an after-tax basis; and (ii) the Employer treats as includible in
the Participant’s gross income in the year deferred.
03-24 Roth Contribution Subaccount means the subaccount established within a
Participation Account to which a Participant’s Roth Contributions are recorded, as
applicable, and any interest, dividends, gains, losses, earnings or expenses or the like
thereon.
03-25 Roth In-Plan Rollover Contribution means the portion of an Eligible
Rollover Distribution from the Plan that a Participant elects to have allocated to the Roth
In-Plan Rollover SubAccount within the Participant’s Participation Account.
03-26 Roth In-Plan Rollover SubAccount means the subaccount established
within a Participant’s Participation Account to which a Participant’s Roth In-Plan Rollover
Contributions are recorded, as applicable, and any interest, dividends, gains, losses,
earnings or expenses or the like thereon.
03-2227 Severance Event prior to January 1, 2002, means severance of the
Participant’s employment with the Employer that constitutes a separation of service
within the meaning of IRC Sections 414(u), 402(e)(4)(A)(iii), and . After December 31,
2001, a Severance Event means a severance of the Participant’s employment with the
Employer within the meaning of IRC Section 457(d)(1)(A)(ii) or on account of the
Participant’s death or retirement. In general, a Participant will be deemed to have
severed his or her employment as of the date of his or her last payroll.
5
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
03-2328 State Law means any statutes, court decisions, executive orders,
administrative rulings, regulations or other proclamations having the force of law in the
State of California.
03-2429 Trust means the funding vehicle established pursuant to IRC Section 457(g)
which shall consist of all assets of the Plan held by the Trustee pursuant to the terms of
the Trust Agreement.
03-2530 Trust Agreement means the agreement by and between the City of Fresno,
as the Sponsor, and the Trustee which governs the operation of the Trust
03-2631 Trustee means such individual(s) or entity designated by the Sponsor with
the duties and responsibilities set forth in the Trust Agreement.
ARTICLE IV
ADMINISTRATION
04-01 Administered by Deferred Compensation Board. This Plan shall be
administered by the City of Fresno Deferred Compensation Deferred Compensation
Board which shall represent the Employer and all participants in all matters concerning
the administration of this Plan.
04-02 Deferred Compensation Board Duties and Responsibilities.
(a) Deferred Compensation Board to Adopt Rules and
Regulations. The Deferred Compensation Board shall have full power and authority to
adopt rules and regulations for the administration of the Plan, and to interpret, alter,
amend, or revoke any rules and regulations so adopted.
(b) Deferred Compensation Board Action Fair and Reasonable.
Every action taken by the Deferred Compensation Board shall be presumed to be a fair
and reasonable exercise of the authority vested in or the duties imposed upon it. The
Deferred Compensation Board and its individual members shall be deemed to have
exercised their fiduciary duties with reasonable care, diligence, and prudence and to
have acted impartially as to all persons interested, unless the contrary may be proven
by affirmative evidence.
04-03 Deferred Compensation Board Powers.
(a) Plan Prevails. In the event any form or other document used in
administering this Plan, including but not limited to Participation Agreement
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
and marketing materials, conflicts with the terms of the Plan, the terms of the
Plan shall prevail.
(b) Decision Binding. The Deferred Compensation Board is authorized to
determine any matters concerning the rights of any Participant under this
Plan, and such determination shall be binding on the Participant and any
Beneficiary thereof.
(c) Deferred Compensation Board to Interpret. The Deferred
Compensation Board is authorized to construe this Plan and resolve any
ambiguity in the Plan. The Plan and any form or other document used in
administering the Plan shall be interpreted, and this Plan shall be
administered, so as to comply with IRC Section 457, as amended, and the
regulations of the Treasury Department promulgated thereunder.
(d) Deferred Compensation Board May Require Court Order. The Deferred
Compensation Board or the Employer, if in doubt concerning the correctness
of their action in making a payment of accumulated deferrals, may suspend
payment until satisfied as to the correctness of the payment or the person to
receive the payment or to allow the filing in any state court of competent
jurisdiction of a civil action seeking a determination of the amounts to be paid
and the persons to receive them. The Deferred Compensation Board and the
Employer shall comply with the final orders of the court in any such suit, and
the Participant, or the Participant and the Participant's Beneficiary, consent to
be bound thereby. Whenever payment of accumulated deferrals is
suspended pursuant to this section, the time for a Participant or Beneficiary
making any election under Article VIII of this Plan, shall not begin until
amount(s) and person(s) entitled are determined either by written agreement
of all parties concerned or by a court judgment that has become final.
(e) Delegation of Authority. The Deferred Compensation Board may
delegate its functions to be performed under this Plan to any designee with
legal authority to perform such functions.
ARTICLE V
PARTICIPATION IN THE PLAN
05-01 Enrollment in the Plan. An Employee may elect to become a Participant
in the Plan by executing a Participation Agreement approved by the Deferred
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
Compensation Board or its designee, and delivered to the Employer.
05-02 Investment Options. As part of the Participation Agreement, the
Participant shall be responsible for contacting the Trustee directly to select his/her
investment option(s) from among those selected by the Deferred Compensation Board
in its sole discretion from time to time, and to designate the amount of compensation to
be deferred and whether such deferral is a Pre-Tax Deferral or a Roth Contribution or
consists of both Pre-Tax Deferrals and Roth contributions. The amount(s) requested
must equal at least ten ($10.00) dollars per pay period and shall continue until changed
or revoked pursuant to Section 05-06 of this Plan.
05-03 Deferral. By executing the Participation Agreement, the Participant
consents to the Employer taking the necessary actions to defer that portion of his or her
Compensation which the Participant has specified is to be deferred from the
Participant’s gross compensation for each pay period. The Participant shall and
indicates whether such deferral is a Pre-Tax Deferral, or a Roth Contribution, or consists
of both Pre-Tax Deferrals and Roth Contributions, in which case the Participant shall
designate specific amounts for each, as applicable., the amount specified by the
Participant from the Participant's gross compensation for each pay period. Deferral of
compensation shall occur as soon as administratively possible after completing the
Participation Agreement, or on such other date as may be permitted under the IRC.
05-04 Investment Vehicle Election and Direction of Investments.
(a) Investment Options. The Deferred Compensation Board shall establish
such Investment Options as it deems necessary to provide Participants with a
diversified range of alternatives. Each Investment Option shall be based upon
its investment performance as well as its ability to provide a range of
investment diversification under the Plan. The Deferred Compensation Board
shall specify the investment objectives and characteristics of each Investment
Option and the corresponding investment portfolio or portfolios and shall
provide eligible Employees with a written description of each available
Investment Option. The Deferred Compensation Board, in its sole discretion,
may add, eliminate, or consolidate Investment Options and corresponding
investment portfolios from time to time. In the event that an Investment
Option is eliminated, the Deferred Compensation Board shall provide prior
notice of such elimination, and if the Participants whose accounts were wholly
or partially allocated to that Investment Option do not make a re-allocation,
the Deferred Compensation Board shall reallocate such amounts to the
available Investment Option or Investment Options that the Deferred
Compensation Board in its sole discretion deems most comparable to the
eliminated Investment Option.
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
(b) Experience of Loss. In the event that the selected investment vehicle
experiences a loss, the Participant’s accumulated deferrals payable hereunder
shall likewise reflect a loss, rather than income, for the period.
(c) Actions of Deferred Compensation Board. Any such action by the
Deferred Compensation Board in investment funds, or approving of any such
investment funds, shall not be considered to be either an endorsement or
guarantee of any investment, nor shall it be considered to attest to financial
soundness or the suitability of any investment for the purpose of meeting
future obligations.
05-05 Designation of Beneficiary. A Participant may designate by the
Participation Agreement, delivered to the Employer, a Beneficiary to receive any
benefits which may be payable under the Plan upon the death of such Participant. A
Participant may at any time, amend his or her Participation Agreement to change the
designated Beneficiary(ies) or update beneficiaries using online access provided by the
Plan. Any change in the beneficiary designation filed in proper form, shall become
effective as of the date of delivery to the Deferred Compensation Board.
05-06 Modification of deferral or investment option(s). A Participant may on
a prospective basis change his/her deferral amount, change the deferrals designated as
Pre-Tax Deferrals or Roth Contributions, change investment options, suspend or revoke
participation in the Plan, or reinstate participation at any time. The Participant shall be
responsible for contacting and notifying the Trustee of any modifications. Changes in
the amount of the deferral must equal at least five ($5.00) dollars per pay period.
Investment changes may be made at any time subject to the terms of the
Trustee/mutual fund provider(s). The requested change shall become effective at the
earliest possible payroll period which allows sufficient time for the order to be processed
through the City payroll section.
ARTICLE VI
LIMITATION ON DEFERRALS
06-01 Deferral Limitation. Except as provided in Section 06-02, relating to
catch-up provisions, the maximum amount of the compensation of any Participant
which may be deferred under the Plan for each calendar year, shall not exceed the
lesser of (1) 100% of the Participant's includible compensation or (2) $15,00017,500 in
the year 20062014, and thereafter adjusted for the calendar year to reflect increases in
the cost-of-living, in accordance with IRC Section 457(e)(15) and 415(d). The
Participant acknowledges the right of the Deferred Compensation Board to disallow
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
deferral of compensation under the Plan in excess of the limitations set forth in this
Section. However, the Deferred Compensation Board shall have no duty or assume or
incur any liability for failure to assure that amounts deferred are in compliance with
such limitations.
06-02 Catch-up Provisions.
(a) Normal Catch-up Provision. Notwithstanding any provision in this
Article to the contrary, with respect to any one or more of the three (3)
taxable years ending before the date of the Participant's Normal Retirement
Age, such Participant may elect to have Deferred Compensation contributed
to the Plan in an amount not to exceed the lesser of (1) twice the dollar
amount of the Deferral Limitation established in Section 6.01, or (2) the
Underutilized Limitation. For purposes of this subsection, the Underutilized
Limitation with respect to a Participant shall be equal to the sum of: the
Deferral Limitation for the taxable year, and the excess of (i) over (ii) where:
(i) equals the sum of the limitations set forth in IRC Section457(b)(2) for all
taxable years on or after December 31, 1978 in which the Participant was
eligible to participate in this Plan or any other eligible deferred compensation
plan sponsored by an entity within the State of California, and (ii) equals the
sum of all Deferred Compensation made on behalf of such Participant for
such taxable years plus his/her deferred compensation under any other
eligible deferred compensation plan sponsor by an entity within the State of
California.
(b) Age 50 Plus Catch-up Provision. Pursuant to IRC Section 414(v),
Participants turning age 50 by the end of the Plan year (or such other date as
the Treasury Department may require by regulations) may contribute
additional annual contributions each year, which shall be the lesser of:
(i) Compensation reduced by elective deferrals made to other
plans; or
(ii) A specified dollar limit as provided in IRC Section 414(v). Those
dollar limits are, an additional $5,0005,500 in the year 20062014, thereafter
adjusted for the calendar year to reflect increases in the cost of living in
accordance with IRC Sections 457(e)(15) and 415 (d).
The age fifty catch-up contributions can be made beginning in the year in which the
Participant reaches age fifty and for as many years as the Participant desires; however,
the age fifty catch-up contribution may not be used in the same year as the Normal
Catch-up Provision for which the additional contributions permitted under IRC Section
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
457(b)(3) applies to such Participant, to the extent required by applicable statute or
regulations.
ARTICLE VII
TRANSFERS AND ELIGIBLE ROLLOVERS
07-01 Rollover Contributions.
(a) Eligible Deferred Compensation Plans: The direct transfer and/or
rollover contribution of an Eligible Rollover Distribution from another eligible
deferred compensation plan (as defined in IRC Section 457(b)) shall be
accepted and allocated to a Participant’s Account under this Plan provided
that such amounts are in cash or other property acceptable to the Deferred
Compensation Board. The Deferred Compensation Board may request proof
that the prior plan is an eligible deferred compensation plan under IRC
Section 457(b). Direct transfer and/or rollover contribution amounts shall not
be subject to the limitations of Article VI; provided, however, that the actual
amount deferred during the calendar year under both the prior plan and the
Plan shall be taken into account in calculating the deferral limitations for that
year. For purposes of determining the limitations set forth in Article VI, years
of eligibility to participate in the prior plan and deferrals under the prior plan
shall be taken into account to the extent required by IRC Section 457.
(b) Other Eligible Retirement Plans: The direct transfer and/or rollover
contribution of an Eligible Rollover Distribution from another Eligible
Retirement Plan (other than an eligible deferred compensation plan) shall be
accepted and allocated to a Participant’s Account under this Plan provided
that such amounts are in cash or other property acceptable to the Deferred
Compensation Board. The Deferred Compensation Board may request
verification that the prior plan is an Eligible Retirement Plan. Direct transfer
and rollover contribution amounts shall not be subject to the limitations of
Article VI. In addition, in order for Eligible Rollover Distributions to be
accepted by this Plan, the Deferred Compensation Board may request
verification that (1) the amounts to be transferred are not subject to a QDRO,
and (2) spousal consent, if required to transfer such amounts from the prior
plan, has been obtained.
Amounts shall be identified as to source and nature (such as non-deductible employee
contributions, elective deferral amounts and deemed elective deferral amounts subject
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
to the provisions of IRC Section 401(k), employer contributions, etc.) Any amounts
accepted for contribution under this Section 07-01(b) shall be allocated to one or more
sub-accounts within the Participant’s Account. The sub-account(s) will share in the
investment gains and losses experienced by the Account as a whole; however, it will be
separately accounted for taxation and distribution purposes as required under IRC
Section 457.
07-02 Transfers to Certain Plans for the Purchase of Service Credit.
(a) Direct Trustee to Trustee Transfer: Any Participant who is also a
Participant in a defined benefit governmental plan (as defined in IRC Section
414(d)) may have a direct trustee to trustee transfer made from this Plan to
the defined benefit governmental plan if the transferred assets are used for:
(i) the purchase of service credits (as defined in IRC 415(n)(3)(A))
in the defined benefit governmental plan; or
(ii) a repayment of a cash out from the defined benefit
governmental plan which meets the requirements of IRC Section
415(k)(3).
(b) Application for Transfer: If the conditions in subsections (i) and (ii) of
this Section are met and the Participant wishes to transfer his/her account,
he/she shall complete any application form and/or other documents as may
be required by the Deferred Compensation Board.
(c) Administrative Rules: The Deferred Compensation Board shall
prescribe such rules consistent with the provisions of Subsections (i) and (ii)
of this Section concerning plan-to-plan transfers as in its sole judgment it
deems desirable for the orderly administration of the Plan.
07-03 Roth In-Plan Rollover Contributions. The Plan, to the extent permitted
by the IRC and otherwise pursuant to procedures established by the Plan, will
accept Roth In-Plan Rollover Contributions with such amounts to be credited
to the Participant’s Roth In-Plan Rollover Subaccount. The Participant shall,
in the time and manner prescribed by the Plan, specify the amount to be
rolled over as a Roth In-Plan Rollover Contribution.
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
ARTICLE VIII
DISTRIBUTION OF BENEFITS
08-01 Inactive De Minimis Accounts.
(a) Voluntary Withdrawals: A Participant shall be entitled to request a
withdrawal of his/her account, other than that portion attributable to a
rollover of contributions, provided that:
(i) the total amount credited to the Participant's account does not
exceed $5,000 (or as may be revised by the Internal Revenue Service
and/or Department of Labor);
(ii) the Participant has not authorized Deferred Compensation under
the Plan during the two (2) year period immediately preceding such
request; and
(iii) the Participant has not previously applied for a withdrawal under
this Section.
The amount of the Participant's account attributable to rollover contributions shall not
be considered in determining whether the Participant's account is less than $5,000.
08-02 Distribution Upon the Death of Participant or Beneficiary. Should the
Participant die at any time, accumulated deferrals shall be paid to the Beneficiary
designated by the Participation Agreement. If no Beneficiary is designated as provided
in the Participation Agreement, or if the designated Beneficiary does not survive a
period of thirty days, then a lump sum shall be paid, to the surviving spouse, or if none,
a lump sum shall be paid to the estate of the Participant.
08-03 Elections Regarding Distribution. Each participant (or in the event of
death, each Beneficiary other than an organization, estate, or trust) shall direct the
Trustee regarding the details of paying out his/her account. A Participant electing to
commence distribution shall have the opportunity to designate the extent to which the
distribution should be taken in whole or in part from subaccounts within the
Participant’s Participation Account in which Roth Contributions, Roth In-Plan Rollover
Contributions or Eligible Deferred Compensation Plan Transfers or Rollover
Contributions from Qualified Roth Contribution Programs are held, as applicable. In the
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
absence of such designation, the distribution shall be taken pro rata from the
subaccounts within the Participant’s Participation Account. The Participant/Beneficiary
may change this direction from time to time within the distribution rules that apply to all
qualified plans and within the constraints of the Trustee. Any amount payable to an
organization, estate, or trust shall be paid in a lump sum as prescribed in Sections
08-02 and 08-04(c).
08-04 Distribution of Deferrals.
(a) General Rule. Upon retirement or severance from employment with
the City of Fresno, and assuming a request is made to the Trustee, payment
will be made in at least annual, quarterly, or monthly payments as requested
by the Participant.
(b) Distribution to Participant. Payment must be sufficiently rapid to
satisfy the minimum required distribution rules under the Internal Revenue
Code regulations.
(c) Distribution to Beneficiary.
(i) When distribution begins prior to the Participant's death, the
payout must be made at least as rapidly as it were as being made to
the Participant. When the Beneficiary is an organization, estate or
trust, then payment will be payable in a lump sum.
(ii) When distribution does not begin prior to the Participant's
death, and is to be made:
(1) To an organization, estate or trust, then payment will be
payable in one lump sum.
(2) To the Participant's surviving spouse, whether as
designated Beneficiary, or by default, then payment will be
made by the Trustee as directed by the spouse within the
minimum distribution rules under the IRC regulations.
(3) Notwithstanding anything in this Plan to the contrary,
distributions from the Plan will be made in compliance with the
minimum distribution rules and applicable sections of the IRC.
08-05 Eligible Rollover Distributions.
(a) Election Procedure. If all or any portion of a prospective distribution is
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
an Eligible Rollover Distribution, the prospective distributee shall have the
right to elect to have all or any portion of the Eligible Rollover Distribution
treated as a Rollover Amount. Subject to satisfaction of the requirements of
IRC Section 457(e)(16) and this Section, Rollover Amounts shall be delivered
directly by this Plan to an Eligible Retirement Plan as designated by the
distributee. The Plan permits non-spouse rollovers described in IRC Section
402 (c)(11). Any such transfers shall also comply with all applicable rules and
regulations issued by the Internal Revenue Service.
(b) Effect of Delivery of Rollover Amounts. Each prospective distributee,
by electing to have any portion of his/her Eligible Rollover Distribution treated
as a Rollover Amount, agrees that, upon transmittal as instructed of the funds
to which such election applies, the Deferred Compensation Board shall be
released from all duties, obligations responsibilities, and liabilities in
connection with the amount so transmitted. The Deferred Compensation
Board shall not be responsible to see to the crediting or application of the
funds so transferred.
08-06 Unforeseeable Emergency. General: In the event an unforeseeable
emergency occurs, a Participant may apply to the Deferred Compensation Board to
request a withdrawal of a portion of his/her account as necessary to satisfy the
emergency need. If the application is approved by the Deferred Compensation Board,
the Participant shall be paid only such amount as the Deferred Compensation Board
deems necessary to meet the emergency need. Payment shall not be made to the
extent that the financial hardship may be relieved (1) through reimbursement or
compensation by insurance or otherwise, (2) by liquidation of the Participant's assets
(to the extent the liquidation of such assets would not itself cause severe financial
hardship), or (3) by cessation of Deferred Compensation under the Plan.
An unforeseeable emergency shall be deemed to involve only circumstances of severe
financial hardship to the Participant resulting from a sudden unexpected illness,
accident, or disability of the Participant or of a dependent (as defined in IRC Section
152) of the Participant, loss of the Participant's property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of an event
beyond the control of the Participant.
The circumstances that will constitute an unforeseeable emergency will depend upon
the facts of each case. Examples of what shall not be considered to be unforeseeable
emergencies include the wish to finance a child’s college education or the desire to
purchase a home.
08-07 Qualified Domestic Relations Orders - General. Parties to a divorce or
termination of registered domestic partnership will be required to file a joinder with the
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
Plan, notifying the City that a divorce or termination of registered domestic partnership
is pending. Upon receipt of the final judgment, decree or order which is made pursuant
to a state domestic relations and/or community property law ("Court Order"), the
Trustee, within a reasonable period after receipt of such Court Order will make the
appropriate changes on the Plan data base in accordance with such Order as a Qualified
Domestic Relations Order ("QDRO").
(a) Segregation of Account/Payment - The Trustee, upon receipt of
instructions from the Deferred Compensation Board, will segregate in a
separate account in the Plan, the amounts which are payable to the Alternate
Payee pursuant to the QDRO.
(b) Status, Rights and Privileges of Alternate Payee - Except as otherwise
provided herein, an Alternate Payee shall have the status and rights of a
Beneficiary under this Plan to the exclusion of all other rights associated with
Participants under this Plan.
(c) Exceptions to General Rule - Notwithstanding the provisions of Section
08-07(b), the Alternate Payee shall have the following rights and privileges
under this Plan:
(i) The right to receive payment under the terms of the QDRO
domestic relations order at the time and manner specified in the
QDRO; provided, however, that such payment may not be made in a
form which is not available to Participants under the Plan; and
(ii) The right to direct the manner in which Plan amounts allocated
to such Alternate Payee are invested.
(d) Qualified Domestic Relations Order Expenses - Any expense related to
the administration of a QDRO shall be assessed against the Participant's
account and the Alternate Payee's account in percentages equal to the
percentage split of assets in the QDRO.
ARTICLE IX
LOANS TO PARTICIPANTS
9-01 Loans to Participants. A Participant may take a loan from his/her Account
subject to the terms and conditions of this Section 9-01 and the IRC.
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
(a) Limitation on Amount. No Participant shall, under any circumstance,
be entitled to loans aggregating in excess of the lesser of:
(1) $50,000, reduced by the excess (if any) of:
(A) the highest outstanding balance of loans to such
Participant from the Plan during the 1-year period ending on the
day before the date on which such loan was made, over
(B) the outstanding balance of loans from the Plan on the
date on which such loan was made, or
(2) one-half (1/2) of the value of the Participant’s adjusted vested
interest in his/her Account as of the Valuation Date coincident with or
immediately preceding the date on which the loan is made.
(3) The minimum Loan amount is $1,000.
(b) Equality of Borrowing Opportunity. Loans shall be made available on a
reasonably equivalent basis to all Participants who are active City employees
who have a minimum balance of $2,000 in their Deferred Compensation
Account. A loan may not be made to a Participant after his/her separation
from City service. If a Participant’s date of separation from City service
occurs after he/she has requested a loan but before the loan is actually made
to the Participant, the Participant’s request for a loan shall automatically be
cancelled. No loans may be made to a beneficiary or an Alternate Payee.
(c) Pledge of Security. Each loan to a Participant shall be secured by the
pledge of the amounts allocated to his/her Account equal to initial
outstanding balance of such loan.
(d) Loan Forms. The Participant shall complete all forms required by the
Deferred Compensation Board in order to process the loan including, but not
limited to: pledge of security, spousal consent, and acknowledgement of loan
terms. Participants shall submit paperwork for automatic electronic payments
(ACH) from a personal bank account directly to the Plan administrator.
(e) Interest Rate. Interest shall be charged at prime plus 1%, designed to
provide the Plan with a return commensurate with interest rates charged by
persons in the business of lending money under similar circumstances.
(f) Loan Term. Loans shall be for terms not to exceed five (5) years from
the date of the loan, except that loans taken for the purpose of acquiring any
17
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
dwelling unit which is to be used as a principal residence of the Participant
may be for periods not to exceed fifteen (15) years. Loan payments may
continue after the employee leaves City service until such time as the loan is
paid in full or until such time as a payment is in default, at which time the
loan becomes payable in full. Loans shall be non-renewable and non-
extendable.
(g) Amortization. Loans shall provide for substantially level amortization of
principal and interest by monthly automatic deduction (ACH) from the
Participant’s personal bank account.
(h) Prepayment. The Participant shall be permitted to repay the loan
in whole or in part at any time prior to maturity, without penalty.
(i) Defaults and Remedies. During the term of the loan, if no portion of a
loan payment is made within 60 days of the date such payment is due, or if
any balance remains outstanding 60 days after the end of the term of the
loan, the loan shall be considered in default. In the event of default by a
participant, the outstanding balance of the loan shall be reported to the
Internal Revenue Service as a deemed distribution. Interest accrued from the
date of the last loan repayment to the deemed distribution date is also
reported to the Internal Revenue Service.
(j) Loan Procedures. All Plan loans shall be made and administered by
the Deferred Compensation Board in accordance with the rules and
procedures that the Deferred Compensation Board may establish from time to
time, which are hereby incorporated into the Plan by reference.
(k) Outstanding Loans. A participant may have no more than one loan
outstanding at any time.
(l) Payment of Fees. The participant shall be responsible for the payment
of fees to cover the cost of administering his/her loan. Payment shall be
made by deduction from the Participant’s Deferred compensation account.
(m) Suspension of Repayment
(i) Military Service. Loan repayment shall be suspended without
penalty for any period during which a Participant is serving on active
duty in the uniformed services of the United States.
(ii) Other Leaves of Absence. In the event of an employer
approved unpaid leave of absence for any other reason, the participant
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
may suspend principal installments and interest payments otherwise
due for the duration of the leave or one year, whichever is shorter.
(iii) Upon termination of a repayment suspension, the Participant
may either: (1) make a one-time payment equal to the total amount
that accumulated during the suspension, or (2) reamortize the loan.
(n) Other terms and conditions. The Deferred Compensation Board shall
fix such other terms and conditions of the loan as it deems necessary to
comply with the applicable laws, including maintaining the qualification of the
Plan under IRC Section 457, and any applicable regulations.
ARTICLE X
MISCELLANEOUS PROVISIONS
10-01 Leave of Absence. If a Participant is on an approved leave of absence from
the Employer, participation in this Plan shall continue.
10-02 Termination of Plan. The City of Fresno may, by appropriate action of the
City Council, terminate this Plan. No such termination shall deprive a Participant or
Beneficiary of any benefits to which the Participant or Beneficiary is entitled under this
Plan immediately prior to the effective date of such termination.
10-03 Amendment of Plan. The City of Fresno may, by action of the City Council,
amend this Plan. No amendment shall deprive any Participant or Beneficiary of any
right or benefit to which the Participant or Beneficiary is entitled under this Plan
immediately prior to the effective date of such amendment. To the extent there are
legislative changes affecting IRC Section 457, this Plan shall be interpreted to allow
implementation of mandatory changes.
10-04 Non alienation of Benefits - Attachment. Except as set forth in Section
08-06 with regard to Qualified Domestic Relations Orders, no Participant or Beneficiary
shall have the right to alienate, anticipate, commute, pledge, encumber or assign any of
the benefits or payments under this Plan, except the right to designate a Beneficiary as
hereinabove provided. The rights of the Participant under this Plan shall not be subject
to creditors of the Participant and shall be exempt from execution, attachment, prior
assignment, or any other judicial relief or order for the benefit of any creditors or other
third persons having claims against the Participant.
10-05 Plan Assets. All amounts of compensation deferred under the Plan, all
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
property and rights to property (including right as a beneficiary of a contract providing
life insurance protection) purchased with such amounts, property or rights to property
shall remain (until paid or made available to the Participant or the Participant's
Beneficiary under the Plan) solely the property and rights of the Employer (without
being restricted to the benefits under the Plan), and shall be held in trust for the
Participants and NOT be subject to the claims of general creditors of the Employer.
10-06 Participation by Deferred Compensation Board Members. Members of
the Deferred Compensation Board, who are otherwise eligible, may participate in the
Plan under the same terms and conditions as apply to other Participants, but an
individual member shall not participate in any Deferred Compensation Board action
taken with respect to that member's participation.
10-07 Employer Contributions. The Employer may, pursuant to a changed or
new Participation Agreement filed by a Participant as specified in Sections 05-01
through 05-06, add additional deferred compensation for services to be rendered by the
Employee to the Employer during any calendar month, provided:
(a) The Employee has elected to have such additional compensation
deferred, invested, and distributed, pursuant to this Plan, prior to the
calendar month in which the compensation is earned; and
(b) Such additional deferred compensation, when added to all other
deferred compensation under the Plan, does not exceed the maximum
deferral permitted under Article VI.
10-08 Controlling Law. This Plan shall be construed and enforced according to
state law, applicable local law and the IRC, and shall be interpreted in a manner
consistent with the maintenance of its status as an "eligible deferred compensation
plan" as defined in IRC Section 457(b). Reference to any section of the IRC, state law,
or local law shall be deemed to incorporate any required amendments of such section
as necessary to maintain the status of this Plan as an eligible deferred compensation
plan. The Employer reserves the right to take such action and do such things as are
required to make the Plan, as administered, consistent with IRC Section 457.
10-09 Suspension of Contributions. The Trustee may temporarily suspend the
acceptance of Deferred Compensation as necessary to facilitate appropriate
administration of this Plan or to comply with any federal, state or local law. Written
notice of such suspension shall be provided to all Participants and may accompany the
distribution of payroll check. No such suspension shall deprive a Participant or
Beneficiary of any right or benefit to which the Participant or Beneficiary is entitled
under this Plan immediately prior to the effective date of such suspension.
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CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
10-10 No Contract of Employment. Neither the establishment of the Plan, nor
the participation in the Plan, shall be construed as giving any Participant the right to be
retained in the service of the City of Fresno.
10-11 Severability of Provisions. If any provision of this Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect any other
provisions hereof, and this Plan shall be construed and enforced as if such provisions
had not been included.
10-12 Heirs, Assigns and Personal Representatives. This Plan shall be binding
upon the heirs, executors, administrators, successors and assigns of the parties;
including each Participant and Beneficiary, present and future.
10-13 Payments to Minors, Etc. Any benefit payable to or for the benefit of a
minor, an incompetent person or other person incapable of receipting therefore shall be
deemed paid when paid to such person's guardian or to the party providing or
reasonably appearing to provide for the care of such person, and such payment shall
fully discharge the City of Fresno and the Deferred Compensation Board with respect
thereto.
10-14 Reliance on Data and Consents. The Deferred Compensation Board, and
all other persons or entities associated with the operation of the Plan, the
administration, management of its assets, and the provision of benefits there may
reasonably rely on the truth, accuracy and completeness of all data provided by a
Participant, and/or Beneficiary, including, without limitation, data with respect to age,
health and marital status. Furthermore, the Deferred Compensation Board, and all
persons identified above may reasonably rely on all consents, elections and
designations filed with the Plan or those associated with the operation of the Plan by
any Participant or Beneficiary, or the representatives of such persons without duty to
inquire into the genuineness of any such consent, election or designation.
None of the aforementioned persons or entities associated with the administration
operation of the Plan, its assets and the benefits provided under the Plan shall have any
duty to inquire into any such data, and all may rely on such data being current to the
date of reference. It shall be the duty of the Participant or Beneficiary to advise the
appropriate parties of any change in such data. The Deferred Compensation Board
shall not be liable for the consequences of such change in data.
10-15 Equal Access to Benefits, Rights and Features. Any determination
made by the Deferred Compensation Board with respect to the availability of benefits,
rights and features under this Plan shall apply on a non-discriminatory basis allowing
equal access for all Participants; provided, however, that such access may be limited by
21
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
the terms of a collective bargaining agreement or individual employment contract.
10-16 Claim Procedures. Any dispute over payment from Accounts under the
Plan shall be resolved by the Deferred Compensation Board pursuant to its written
claims procedures. Such claims procedures shall comply with applicable state laws
including, but not limited to, civil service rules and applicable collective bargaining
agreements.
10-17 Gender and Number. The masculine pronoun, whenever used herein, shall
include the feminine pronoun, and the singular shall include the plural, except where
the context requires otherwise.
10-18 Qualified Military Service. This Plan will be administered in accordance
with IRCode Section 414(u) for Eligible Employees who return to work after absences
from employment due to qualified military service. This includes make-up contributions
that were not made during the Eligible Employee’s period of qualified military service.
Contributions made up will be subject to the annual contribution limitations for the year
in which they relate, rather than the year they are made.
10-19 Entire Agreement. This Plan and the Participation Agreement, and any
subsequently adopted amendment thereof, shall constitute the total agreement or
contract between the Employer and the Participant regarding the Plan. No other
communication or statement of any sort shall modify this Plan in any way or be relied
upon by the parties to this Agreement.
END OF DOCUMENT
City Council Approved on 7/23/2009
Revised draft AugustNovember 6October 22, 2013
22
CITY OF FRESNO
DEFERRED COMPENSATION
PLAN DOCUMENT
CITY OF FRESNO
October 9, 2014
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
TABLE OF CONTENTS
Article I
PLAN ESTABLISHED
01-01 Plan Established. .......................................................................... 1
Article II
PURPOSE
02-01 Primary Purpose ........................................................................... 1
02-02 Agreement .................................................................................. 1
02-03 Tax Status not Guaranteed ........................................................... 1
Article III
DEFINITIONS
03-01 Account ....................................................................................... 2
03-02 Accumulated Deferrals .................................................................. 2
03-03 Automatic Distribution Date .......................................................... 2
03-04 Beneficiary .................................................................................. 2
03-05 Compensation .............................................................................. 2
03-06 Deferred Compensation ................................................................ 2
03-07 Deferred Compensation Board ....................................................... 2
03-08 Eligible Employee ......................................................................... 3
03-09 Eligible Retirement Plan ................................................................ 3
03-10 Eligible Rollover Distribution .......................................................... 3
03-11 Eligible Tax Favored Vehicle .......................................................... 3
03-12 Employer ..................................................................................... 3
03-13 Includible Compensation ............................................................... 3
03-14 IRC ............................................................................................. 3
03-15 Normal Retirement Age ................................................................ 4
03-16 Participant ................................................................................... 4
03-17 Participation Agreement ................................................................ 4
03-18 Participation Account .................................................................. . 4
03-19 Plan Year. ................................................................................. 5
03-20 Qualified Domestic Relations Order or "QDRO ................................ 5
03-21 Required Beginning Date .............................................................. 5
03-22 Rollover Amount .......................................................................... 5
03-23 Roth Contributions........................................................................5
03-24 Roth Contributions Subaccount......................................................5
03-25 Roth In-Plan Rollover Contributions................................................5
03-26 Roth In-Plan Rollover Subaccount.................................................. 5
03-27 Severance Event .......................................................................... 5
03-24 State Law .................................................................................. 6
03-25 Trust .......................................................................................... 6
03-26 Trust Agreement .......................................................................... 6
03-27 Trustee ....................................................................................... 6
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
TABLE OF CONTENTS
Article IV
ADMINISTRATION
04-01 Administered by Deferred Compensation Board .............................. 6
04-02 Deferred Compensation Board Duties and Responsibilities ............... 6
(a) Deferred Compensation Board to Adopt Rules and Regs ........ 6
(b) Deferred Compensation Board Action Fair and Reasonable .... 7
04-03 Deferred Compensation Board Powers. .......................................... 7
(a) Plan Prevails ...................................................................... 7
(b) Decision Binding ................................................................. 7
(c) Deferred Compensation Board to Interpret ........................... 7
(d) Deferred Compensation Board May Require Court Order ........ 7
(e) Delegation of Authority ....................................................... 7
Article V
PARTICIPATION IN THE PLAN
05-01 Enrollment in the Plan .................................................................. 7
05-02 Investment Options ...................................................................... 8
05-03 Deferral ....................................................................................... 8
05-04 Investment Vehicle Election and Direction of Investments .............. 8
(a) Investment Options ............................................................ 8
(b) Experience of Loss ............................................................. 8
(c) Actions of Deferred Compensation Board ............................. 9
05-05 Designation of Beneficiary............................................................. 9
05-06 Modification of Deferral or Investment Option(s) ............................ 9
Article VI
LIMITATION ON DEFERRALS
06-01 Deferral Limitation ....................................................................... 9
06-02 Catch-up Provisions .................................................................... 10
(a) Normal Catch-up Provision ................................................ 10
(b) Age 50 Plus Catch-up Provision ......................................... 10
Article VII
TRANSFERS AND ELIGIBLE ROLLOVERS
07-01 Rollover Contributions ................................................................ 11
(a) Eligible Deferred Compensation Plans ................................ 11
(b) Other Eligible Retirement Plans ........................................ 11
07-02 Transfers to Certain Plans for the Purchase of Service Credit ......... 12
(a) Direct Trustee to Trustee Transfer ............................................... 12
(b) Application of Transfer ...................................................... 12
(c) Administrative Rules ......................................................... 12
07-03 Roth In-Plan Rollover Contributions ............................................. 12
CITY OF FRESNO=S DEFERRED COMPENSATION PLAN DOCUMENT
TABLE OF CONTENTS
Article VIII
DISTRIBUTION OF BENEFITS
08-01 Inactive De Minimis Accounts ...................................................... 13
(a) Voluntary Withdrawals ...................................................... 13
08-02 Distribution Upon the Death of Participant or Beneficiary ............... 13
08-03 Elections Regarding Distribution .................................................. 13
08-04 Distribution of Deferrals .............................................................. 14
(a) General Rule .................................................................... 14
(b) Distribution of Participant .................................................. 14
(c) Distribution to Beneficiary ................................................. 14
08-05 Eligible Rollover Distributions ...................................................... 14
(a) Election Procedure ............................................................ 14
(b) Effect of Delivery of Rollover Amounts ............................... 15
08-06 Unforeseeable Emergency General .............................................. 15
08-07 Qualified Domestic Relations Orders - General .............................. 15
(a) Segregation of Account/Payment ....................................... 16
(b) Status, rights, and Privileges of Alternate Payee.................. 16
(c) Exceptions to General Rule ................................................ 16
(d) Qualified Domestic Relations Order Expenses ..................... 16
Article IX
LOANS TO PARTICIPANTS
09-01 Loans to Participants .................................................................. 16
(a) Limitation on Amount ...................................................... 16
(b) Equality of Borrowing Opportunity ..................................... 17
(c) Pledge of Security ............................................................ 17
(d) Loan Forms...................................................................... 17
(e) Interest Rate ................................................................... 17
(f) Loan Terms ..................................................................... 17
(g) Amortization .................................................................... 18
(h) Prepayments .................................................................... 18
(i) Defaults and Remedies ..................................................... 18
(j) Loan Procedures .............................................................. 18
(k) Outstanding Loans ........................................................... 18
(l) Payment of Fees .............................................................. 18
(m) Suspension of Repayment ................................................. 18
(n) Other Terms and Conditions .............................................. 19
CITY OF FRESNO=S DEFERRED COMPENSATION PLAN DOCUMENT
TABLE OF CONTENTS
Article X
MISCELLANEOUS PROVISIONS
10-01 Leave of Absence ....................................................................... 19
10-02 Termination of Plan .................................................................... 19
10-03 Amendment of Plan .................................................................... 19
10-04 Non alienation of Benefits - Attachment ....................................... 19
10-05 Plan Assets ................................................................................ 19
10-06 Participation by Deferred Compensation Board Members ............... 20
10-07 Employer Contributions............................................................... 20
10-08 Controlling Law .......................................................................... 20
10-09 Suspension of Contributions ........................................................ 20
10-10 No Contract of Employment ........................................................ 20
10-11 Severability of Provisions ............................................................ 21
10-12 Heirs, Assigns and Personal Representatives ................................ 21
10-13 Payments to Minors, Etc. ............................................................ 21
10-14 Reliance on Data and Consents ................................................... 21
10-15 Equal Access to Benefits, Rights and Feature ................................ 21
10-16 Claim Procedures ....................................................................... 21
10-17 Gender and Number .................................................................. 22
10-18 Qualified Military Service…………………………………………………………..22
10-19 Entire Agreement ....................................................................... 22
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
1
CITY OF FRESNO
DEFERRED COMPENSATION
PLAN DOCUMENT
ARTICLE I
PLAN ESTABLISHED
01-01 Plan Established. The Employer hereby amends and restates the City of
Fresno Deferred Compensation Plan Document ("Plan"). The Plan consists of the
provisions set forth in this document which is amended and restated pursuant to the
Economic Growth and Tax Relief Reconciliation Act of 2001, Pension Protection Act of
2006 (“PPA”), and American Taxpayer Relief Act of 2012 (“ATRA”). It is intended that
the Plan shall qualify as an Eligible Deferred Compensation Plan within the meaning of
Section 457(b) of the Internal Revenue Code of 1986 as amended (“IRC”) sponsored by
an Eligible Governmental Employer.
ARTICLE II
PURPOSE
02-01 Primary Purpose. The primary purpose of the Plan is to provide retirement
income and other deferred benefits to the Employees of the Employer and the
Employees' Beneficiaries in accordance with the provisions of Section 457 of the IRC,
and Government Code Sections 53212 et seq.
02-02 Agreement. The Plan shall be an agreement solely between the Employer
and participating Employees. The Employer has established a Trust in the Trust
Agreement, to hold all assets of the Plan for the exclusive benefit of Participants and
Beneficiaries. The Trust shall comply with IRC Section 457(g) and constitute a valid
trust under applicable state law. The powers and duties of the Trustee are set forth in
the Trust Agreement.
02-03 Tax Status not Guaranteed. The Employer, and the Deferred
Compensation Board which administers the Plan, do not, and cannot, represent or
guarantee that any particular federal and state income, payroll, or other tax
consequences will occur by reason of an Employee's participation in this Plan. The
Participant shall consult with his own attorney or other representative regarding all tax
or other consequences of participation in this Plan.
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
2
ARTICLE III
DEFINITIONS
The following terms when used herein, shall have the following meaning:
03-01 Account means the bookkeeping account maintained for each Participant
reflecting the cumulative amount of the Participant's Deferred Compensation, including
any income, gains, losses, or increases or decreases in market value attributable to the
investment of the Participant's Deferred Compensation, any transfers for the
Participant's benefit, any distributions to the Participant or the Participant's Beneficiary,
and any fees or expenses charged against such Participant's Deferred Compensation.
03-02 Accumulated Deferrals means compensation deferred under the Plan,
adjusted until date of payment by income received, increases or decreases in
investment value, fees and any prior distributions made.
03-03 Automatic Distribution Date, on or after January 1, 2002, means April 1
of the calendar year after the Plan year the Participant attains the age of 70 1/2 , or if
later, a Severance Event.
03-04 Beneficiary means any person, trust, corporation or firm, or the estate of
the Participant, or any combination of the foregoing designated by the Participant to
receive benefits under the Plan. Designation shall be made initially on the City of
Fresno Participation Agreement executed by the Participant, unless otherwise provided.
Beneficiary may mean singular or plural, primary or contingent.
03-05 Compensation means all payments made to the Employee by the Employer
as remuneration for services rendered.
03-06 Deferred Compensation means the amount of Participant's compensation
which the Participant and the Employer mutually agree to defer in accordance with the
provisions of this Plan, or any other amount which the Employer agrees to credit to a
Participant's Account under this Plan. When used in the context of deferrals of
Compensation, “defer(s)”, “deferral” or “deferred” means, individually or collectively,
Pre-Tax Deferrals and Roth Contributions, as applicable. “Deferred Compensation”
means the aggregate Pre-Tax Deferrals and Roth Contributions made from a
Participant’s Compensation, which said Participant has elected to defer in accordance
with the provisions of this Plan.
03-07 Deferred Compensation Board means the Deferred Compensation Board
which shall administer the City of Fresno Deferred Compensation Plan. The Deferred
Compensation Board shall consist of five members selected as follows:
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
3
(a) One member from the Finance Department appointed by the City
Manager with the approval of the City Council; and
(b) One member from any City department appointed by the City Manager
with the approval of the City Council; and
(c) Two members elected by and from the plan Participants who have a non-
zero balance in their Deferred Compensation Account (active or any other
status); and
(d) A fifth member chosen by the previously designated four members from
the qualified electors of Fresno County not connected with the City of Fresno or
the Plan.
The members elected by and from the Plan Participants shall serve a term of four
years, whose terms shall be staggered. The remaining members shall serve at the
pleasure of the appointing or electing authority.
03-08 Eligible Employee means any full time Employee or City Councilmember of
the City or any other Employee eligible for the City's pension system. Permanent part
time City employees are also eligible to participate in this Deferred Compensation Plan.
03-09 Eligible Retirement Plan means any account, annuity, plan or trust as
defined in IRC Section 402(c)(8)(B).
03-10 Eligible Rollover Distribution means any distribution as defined in IRC
Section 402(c)(4)(E).
03-11 Eligible Tax Favored Vehicle shall means a plan within the meaning of IRC
Sections 401(a), 401(k), 457(b), 403 (b) as defined in Section 402(c)(8)(B), of the
Internal Revenue Code, or Individual Retirement Arrangement, or qualified defined
benefit plan as defined by IRC Section 415(n)(3)(A).
03-12 Employer means the City of Fresno.
03-13 Includible Compensation means compensation for services performed for
the Employer, as defined in IRC Section 457(e)(5).
03-14 IRC means the Internal Revenue Code of 1986, as amended from time to
time.
03-15 Normal Retirement Age means age 70 1/2, unless the Participant has
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
4
elected an alternate Normal Retirement Age by written instrument delivered to the
Deferred Compensation Board prior to a Severance Event. A Participant’s Normal
Retirement Age determines the period during which a Participant may utilize the 457
Catch-Up Dollar Limitation set forth in Article VI. Once a Participant has to any extent
utilized the catch-up limitation in Article VI, his Normal Retirement Age cannot be
changed.
A Participant’s alternate Normal Retirement Age may not be earlier than the earliest
date that the Participant will become eligible to retire and receive unreduced retirement
benefits under his or her respective City of Fresno Retirement System (Fire and Police
Retirement System or Employees’ Retirement System), and may not be later than the
date the Participant will attain age 70 1/2. If a Participant continues employment after
attaining age 70 1/2, not having previously elected alternate Normal Retirement Age,
the Participant’s alternate Normal Retirement Age shall not be later than the mandatory
retirement age, if any, established by the Employer, or the age at which the Participant
actually has a Severance Event if the Employer has no mandatory retirement age. If
the Participant will not become eligible to receive benefits under his or her respective
City Retirement System, the Participant’s alternate Normal Retirement Age may not be
earlier than attainment of age 50 for Participants who are members of the Fire and
Police Retirement System, and age 55 for Participants who are members of the City
Employees’ Retirement System or are Permanent Part time Employees.
03-16 Participant means any member of the Plan who has elected, pursuant to
the Plan, to defer a portion of his compensation, and who fulfills the requirements of
participation in the Plan.
03-17 Participation Agreement means the agreement, including any
amendments and modifications thereof, executed and filed by an Eligible Employee with
the Employer pursuant to Article V, in which the Eligible Employee elects to become a
Participant in the Plan.
03-18 Participation Account means the account and subaccounts established and
maintained for a Participant under the Plan to which there is recorded, as applicable,
the Participant’s Pre-Tax Deferrals, Roth Contributions, Deferred Compensation Eligible
Deferred Compensation Plan Transfers, Rollover Contributions and Roth In-Plan
Contributions, if any, and any interest, dividends, gains, losses, earnings or expenses or
the like thereon. A Participant’s Participation Account shall be divided into the following
subaccounts, as applicable: the Pre-Tax Deferral Subaccount, the Roth Contribution
Subaccount, the Eligible Deferred Compensation Plan Transfer Subaccount, the Rollover
Subaccount and the Roth In-Plan Rollover Subaccount.
03-19 Plan Year means the calendar year.
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
5
03-20 Qualified Domestic Relations Order or "QDRO" means any judgment,
decree or order as defined in IRC Section 414(p).
03-21 Required Beginning Date means April 1 of the calendar year following the
later of: (a) the calendar year in which the Participant attains age 70 1/2; or (b) the
calendar year in which the Participant retires or leaves City service.
03-22 Rollover Amount means that portion of an Eligible Rollover Distribution
from this Plan that, by election of the prospective distributee, is transferred directly or
indirectly to an Eligible Retirement Plan.
03-23 Roth Contribution(s) means contributions made pursuant to the
Participant’s Participation Agreement that (i) the Participant irrevocably designates at
the time of the contribution election as post-tax Roth contributions that are being made
from Compensation on an after-tax basis; and (ii) the Employer treats as includible in
the Participant’s gross income in the year deferred.
03-24 Roth Contribution Subaccount means the subaccount established within a
Participation Account to which a Participant’s Roth Contributions are recorded, as
applicable, and any interest, dividends, gains, losses, earnings or expenses or the like
thereon.
03-25 Roth In-Plan Rollover Contribution means the portion of an Eligible
Rollover Distribution from the Plan that a Participant elects to have allocated to the
Roth In-Plan Rollover SubAccount within the Participant’s Participation Account.
03-26 Roth In-Plan Rollover SubAccount means the subaccount established
within a Participant’s Participation Account to which a Participant’s Roth In-Plan Rollover
Contributions are recorded, as applicable, and any interest, dividends, gains, losses,
earnings or expenses or the like thereon.
03-27 Severance Event means severance of the Participant’s employment with
the Employer that constitutes a separation of service within the meaning of IRC
Sections 414(u), 402(e)(4)(A)(iii), and 457(d)(1)(A)(ii) or on account of the
Participant’s death or retirement. In general, a Participant will be deemed to have
severed his or her employment as of the date of his or her last payroll.
03-28 State Law means any statutes, court decisions, executive orders,
administrative rulings, regulations or other proclamations having the force of law in the
State of California.
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
6
03-29 Trust means the funding vehicle established pursuant to IRC Section 457(g)
which shall consist of all assets of the Plan held by the Trustee pursuant to the terms of
the Trust Agreement.
03-30 Trust Agreement means the agreement by and between the City of Fresno,
as the Sponsor, and the Trustee which governs the operation of the Trust
03-31 Trustee means such individual(s) or entity designated by the Sponsor with
the duties and responsibilities set forth in the Trust Agreement.
ARTICLE IV
ADMINISTRATION
04-01 Administered by Deferred Compensation Board. This Plan shall be
administered by the City of Fresno Deferred Compensation Deferred Compensation
Board which shall represent the Employer and all participants in all matters concerning
the administration of this Plan.
04-02 Deferred Compensation Board Duties and Responsibilities.
(a) Deferred Compensation Board to Adopt Rules and
Regulations. The Deferred Compensation Board shall have full power and authority
to adopt rules and regulations for the administration of the Plan, and to interpret, alter,
amend, or revoke any rules and regulations so adopted.
(b) Deferred Compensation Board Action Fair and Reasonable.
Every action taken by the Deferred Compensation Board shall be presumed to be a fair
and reasonable exercise of the authority vested in or the duties imposed upon it. The
Deferred Compensation Board and its individual members shall be deemed to have
exercised their fiduciary duties with reasonable care, diligence, and prudence and to
have acted impartially as to all persons interested, unless the contrary may be proven
by affirmative evidence.
04-03 Deferred Compensation Board Powers.
(a) Plan Prevails. In the event any form or other document used in
administering this Plan, including but not limited to Participation Agreement
and marketing materials, conflicts with the terms of the Plan, the terms of
the Plan shall prevail.
(b) Decision Binding. The Deferred Compensation Board is authorized to
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
7
determine any matters concerning the rights of any Participant under this
Plan, and such determination shall be binding on the Participant and any
Beneficiary thereof.
(c) Deferred Compensation Board to Interpret. The Deferred
Compensation Board is authorized to construe this Plan and resolve any
ambiguity in the Plan. The Plan and any form or other document used in
administering the Plan shall be interpreted, and this Plan shall be
administered, so as to comply with IRC Section 457, as amended, and the
regulations of the Treasury Department promulgated thereunder.
(d) Deferred Compensation Board May Require Court Order. The Deferred
Compensation Board or the Employer, if in doubt concerning the correctness
of their action in making a payment of accumulated deferrals, may suspend
payment until satisfied as to the correctness of the payment or the person to
receive the payment or to allow the filing in any state court of competent
jurisdiction of a civil action seeking a determination of the amounts to be paid
and the persons to receive them. The Deferred Compensation Board and the
Employer shall comply with the final orders of the court in any such suit, and
the Participant, or the Participant and the Participant's Beneficiary, consent to
be bound thereby. Whenever payment of accumulated deferrals is
suspended pursuant to this section, the time for a Participant or Beneficiary
making any election under Article VIII of this Plan, shall not begin until
amount(s) and person(s) entitled are determined either by written agreement
of all parties concerned or by a court judgment that has become final.
(e) Delegation of Authority. The Deferred Compensation Board may
delegate its functions to be performed under this Plan to any designee with
legal authority to perform such functions.
ARTICLE V
PARTICIPATION IN THE PLAN
05-01 Enrollment in the Plan. An Employee may elect to become a Participant
in the Plan by executing a Participation Agreement approved by the Deferred
Compensation Board or its designee, and delivered to the Employer.
05-02 Investment Options. As part of the Participation Agreement, the
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
8
Participant shall be responsible for contacting the Trustee directly to select his/her
investment option(s) from among those selected by the Deferred Compensation Board
in its sole discretion from time to time, and to designate the amount of compensation
to be deferred and whether such deferral is a Pre-Tax Deferral or a Roth Contribution
or consists of both Pre-Tax Deferrals and Roth contributions. The amount(s) requested
must equal at least ten ($10.00) dollars per pay period and shall continue until changed
or revoked pursuant to Section 05-06 of this Plan.
05-03 Deferral. By executing the Participation Agreement, the Participant
consents to the Employer taking the necessary actions to defer that portion of his or
her Compensation which the Participant has specified is to be deferred from the
Participant’s gross compensation for each pay period. The Participant shall indicate
whether such deferral is a Pre-Tax Deferral, a Roth Contribution, or consists of both
Pre-Tax Deferrals and Roth Contributions, in which case the Participant shall designate
specific amounts for each, as applicable. Deferral of compensation shall occur as soon
as administratively possible after completing the Participation Agreement, or on such
other date as may be permitted under the IRC.
05-04 Investment Vehicle Election and Direction of Investments.
(a) Investment Options. The Deferred Compensation Board shall establish
such Investment Options as it deems necessary to provide Participants with a
diversified range of alternatives. Each Investment Option shall be based upon
its investment performance as well as its ability to provide a range of
investment diversification under the Plan. The Deferred Compensation Board
shall specify the investment objectives and characteristics of each Investment
Option and the corresponding investment portfolio or portfolios and shall
provide eligible Employees with a written description of each available
Investment Option. The Deferred Compensation Board, in its sole discretion,
may add, eliminate, or consolidate Investment Options and corresponding
investment portfolios from time to time. In the event that an Investment
Option is eliminated, the Deferred Compensation Board shall provide prior
notice of such elimination, and if the Participants whose accounts were
wholly or partially allocated to that Investment Option do not make a re-
allocation, the Deferred Compensation Board shall reallocate such amounts to
the available Investment Option or Investment Options that the Deferred
Compensation Board in its sole discretion deems most comparable to the
eliminated Investment Option.
(b) Experience of Loss. In the event that the selected investment vehicle
experiences a loss, the Participant’s accumulated deferrals payable hereunder
shall likewise reflect a loss, rather than income, for the period.
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
9
(c) Actions of Deferred Compensation Board. Any such action by the
Deferred Compensation Board in investment funds, or approving of any such
investment funds, shall not be considered to be either an endorsement or
guarantee of any investment, nor shall it be considered to attest to financial
soundness or the suitability of any investment for the purpose of meeting
future obligations.
05-05 Designation of Beneficiary. A Participant may designate by the
Participation Agreement, delivered to the Employer, a Beneficiary to receive any
benefits which may be payable under the Plan upon the death of such Participant. A
Participant may at any time, amend his or her Participation Agreement to change the
designated Beneficiary(ies) or update beneficiaries using online access provided by the
Plan. Any change in the beneficiary designation filed in proper form, shall become
effective as of the date of delivery to the Deferred Compensation Board.
05-06 Modification of deferral or investment option(s). A Participant may on
a prospective basis change his/her deferral amount, change the deferrals designated as
Pre-Tax Deferrals or Roth Contributions, change investment options, suspend or revoke
participation in the Plan, or reinstate participation at any time. The Participant shall be
responsible for contacting and notifying the Trustee of any modifications. Changes in
the amount of the deferral must equal at least five ($5.00) dollars per pay period.
Investment changes may be made at any time subject to the terms of the
Trustee/mutual fund provider(s). The requested change shall become effective at the
earliest possible payroll period which allows sufficient time for the order to be
processed through the City payroll section.
ARTICLE VI
LIMITATION ON DEFERRALS
06-01 Deferral Limitation. Except as provided in Section 06-02, relating to
catch-up provisions, the maximum amount of the compensation of any Participant
which may be deferred under the Plan for each calendar year, shall not exceed the
lesser of (1) 100% of the Participant's includible compensation or (2) $17,500 in the
year 2014, and thereafter adjusted for the calendar year to reflect increases in the
cost-of-living, in accordance with IRC Section 457(e)(15) and 415(d). The Participant
acknowledges the right of the Deferred Compensation Board to disallow deferral of
compensation under the Plan in excess of the limitations set forth in this Section.
However, the Deferred Compensation Board shall have no duty or assume or incur any
liability for failure to assure that amounts deferred are in compliance with such
limitations.
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
10
06-02 Catch-up Provisions.
(a) Normal Catch-up Provision. Notwithstanding any provision in this
Article to the contrary, with respect to any one or more of the three (3)
taxable years ending before the date of the Participant's Normal Retirement
Age, such Participant may elect to have Deferred Compensation contributed
to the Plan in an amount not to exceed the lesser of (1) twice the dollar
amount of the Deferral Limitation established in Section 6.01, or (2) the
Underutilized Limitation. For purposes of this subsection, the Underutilized
Limitation with respect to a Participant shall be equal to the sum of: the
Deferral Limitation for the taxable year, and the excess of (i) over (ii) where:
(i) equals the sum of the limitations set forth in IRC Section457(b)(2) for all
taxable years on or after December 31, 1978 in which the Participant was
eligible to participate in this Plan or any other eligible deferred compensation
plan sponsored by an entity within the State of California, and (ii) equals the
sum of all Deferred Compensation made on behalf of such Participant for
such taxable years plus his/her deferred compensation under any other
eligible deferred compensation plan sponsor by an entity within the State of
California.
(b) Age 50 Plus Catch-up Provision. Pursuant to IRC Section 414(v),
Participants turning age 50 by the end of the Plan year (or such other date as
the Treasury Department may require by regulations) may contribute
additional annual contributions each year, which shall be the lesser of:
(i) Compensation reduced by elective deferrals made to other
plans; or
(ii) A specified dollar limit as provided in IRC Section 414(v). Those
dollar limits are, an additional $5,500 in the year 2014, thereafter adjusted
for the calendar year to reflect increases in the cost of living in accordance
with IRC Sections 457(e)(15) and 415 (d).
The age fifty catch-up contributions can be made beginning in the year in which the
Participant reaches age fifty and for as many years as the Participant desires; however,
the age fifty catch-up contribution may not be used in the same year as the Normal
Catch-up Provision for which the additional contributions permitted under IRC Section
457(b)(3) applies to such Participant, to the extent required by applicable statute or
regulations.
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
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ARTICLE VII
TRANSFERS AND ELIGIBLE ROLLOVERS
07-01 Rollover Contributions.
(a) Eligible Deferred Compensation Plans: The direct transfer and/or
rollover contribution of an Eligible Rollover Distribution from another eligible
deferred compensation plan (as defined in IRC Section 457(b)) shall be
accepted and allocated to a Participant’s Account under this Plan provided
that such amounts are in cash or other property acceptable to the Deferred
Compensation Board. The Deferred Compensation Board may request proof
that the prior plan is an eligible deferred compensation plan under IRC
Section 457(b). Direct transfer and/or rollover contribution amounts shall not
be subject to the limitations of Article VI; provided, however, that the actual
amount deferred during the calendar year under both the prior plan and the
Plan shall be taken into account in calculating the deferral limitations for that
year. For purposes of determining the limitations set forth in Article VI, years
of eligibility to participate in the prior plan and deferrals under the prior plan
shall be taken into account to the extent required by IRC Section 457.
(b) Other Eligible Retirement Plans: The direct transfer and/or rollover
contribution of an Eligible Rollover Distribution from another Eligible
Retirement Plan (other than an eligible deferred compensation plan) shall be
accepted and allocated to a Participant’s Account under this Plan provided
that such amounts are in cash or other property acceptable to the Deferred
Compensation Board. The Deferred Compensation Board may request
verification that the prior plan is an Eligible Retirement Plan. Direct transfer
and rollover contribution amounts shall not be subject to the limitations of
Article VI. In addition, in order for Eligible Rollover Distributions to be
accepted by this Plan, the Deferred Compensation Board may request
verification that (1) the amounts to be transferred are not subject to a QDRO,
and (2) spousal consent, if required to transfer such amounts from the prior
plan, has been obtained.
Amounts shall be identified as to source and nature (such as non-deductible employee
contributions, elective deferral amounts and deemed elective deferral amounts subject
to the provisions of IRC Section 401(k), employer contributions, etc.) Any amounts
accepted for contribution under this Section 07-01(b) shall be allocated to one or more
sub-accounts within the Participant’s Account. The sub-account(s) will share in the
investment gains and losses experienced by the Account as a whole; however, it will be
separately accounted for taxation and distribution purposes as required under IRC
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
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Section 457.
07-02 Transfers to Certain Plans for the Purchase of Service Credit.
(a) Direct Trustee to Trustee Transfer: Any Participant who is also a
Participant in a defined benefit governmental plan (as defined in IRC Section
414(d)) may have a direct trustee to trustee transfer made from this Plan to
the defined benefit governmental plan if the transferred assets are used for:
(i) the purchase of service credits (as defined in IRC 415(n)(3)(A))
in the defined benefit governmental plan; or
(ii) a repayment of a cash out from the defined benefit
governmental plan which meets the requirements of IRC Section
415(k)(3).
(b) Application for Transfer: If the conditions in subsections (i) and (ii) of
this Section are met and the Participant wishes to transfer his/her account,
he/she shall complete any application form and/or other documents as may
be required by the Deferred Compensation Board.
(c) Administrative Rules: The Deferred Compensation Board shall
prescribe such rules consistent with the provisions of Subsections (i) and (ii)
of this Section concerning plan-to-plan transfers as in its sole judgment it
deems desirable for the orderly administration of the Plan.
07-03 Roth In-Plan Rollover Contributions. The Plan, to the extent permitted
by the IRC and otherwise pursuant to procedures established by the Plan, will
accept Roth In-Plan Rollover Contributions with such amounts to be credited
to the Participant’s Roth In-Plan Rollover Subaccount. The Participant shall,
in the time and manner prescribed by the Plan, specify the amount to be
rolled over as a Roth In-Plan Rollover Contribution.
ARTICLE VIII
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
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DISTRIBUTION OF BENEFITS
08-01 Inactive De Minimis Accounts.
(a) Voluntary Withdrawals: A Participant shall be entitled to request a
withdrawal of his/her account, other than that portion attributable to a
rollover of contributions, provided that:
(i) the total amount credited to the Participant's account does not
exceed $5,000 (or as may be revised by the Internal Revenue Service
and/or Department of Labor);
(ii) the Participant has not authorized Deferred Compensation
under the Plan during the two (2) year period immediately preceding
such request; and
(iii) the Participant has not previously applied for a withdrawal
under this Section.
The amount of the Participant's account attributable to rollover contributions shall not
be considered in determining whether the Participant's account is less than $5,000.
08-02 Distribution Upon the Death of Participant or Beneficiary. Should the
Participant die at any time, accumulated deferrals shall be paid to the Beneficiary
designated by the Participation Agreement. If no Beneficiary is designated as provided
in the Participation Agreement, or if the designated Beneficiary does not survive a
period of thirty days, then a lump sum shall be paid, to the surviving spouse, or if none,
a lump sum shall be paid to the estate of the Participant.
08-03 Elections Regarding Distribution. Each participant (or in the event of
death, each Beneficiary other than an organization, estate, or trust) shall direct the
Trustee regarding the details of paying out his/her account. A Participant electing to
commence distribution shall have the opportunity to designate the extent to which the
distribution should be taken in whole or in part from subaccounts within the
Participant’s Participation Account in which Roth Contributions, Roth In-Plan Rollover
Contributions or Eligible Deferred Compensation Plan Transfers or Rollover
Contributions from Qualified Roth Contribution Programs are held, as applicable. In the
absence of such designation, the distribution shall be taken pro rata from the
subaccounts within the Participant’s Participation Account. The Participant/Beneficiary
may change this direction from time to time within the distribution rules that apply to
all qualified plans and within the constraints of the Trustee. Any amount payable to an
organization, estate, or trust shall be paid in a lump sum as prescribed in Sections
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
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08-02 and 08-04(c).
08-04 Distribution of Deferrals.
(a) General Rule. Upon retirement or severance from employment with
the City of Fresno, and assuming a request is made to the Trustee, payment
will be made in at least annual, quarterly, or monthly payments as requested
by the Participant.
(b) Distribution to Participant. Payment must be sufficiently rapid to
satisfy the minimum required distribution rules under the Internal Revenue
Code regulations.
(c) Distribution to Beneficiary.
(i) When distribution begins prior to the Participant's death, the
payout must be made at least as rapidly as it were as being made to
the Participant. When the Beneficiary is an organization, estate or
trust, then payment will be payable in a lump sum.
(ii) When distribution does not begin prior to the Participant's
death, and is to be made:
(1) To an organization, estate or trust, then payment will be
payable in one lump sum.
(2) To the Participant's surviving spouse, whether as
designated Beneficiary, or by default, then payment will be
made by the Trustee as directed by the spouse within the
minimum distribution rules under the IRC regulations.
(3) Notwithstanding anything in this Plan to the contrary,
distributions from the Plan will be made in compliance with the
minimum distribution rules and applicable sections of the IRC.
08-05 Eligible Rollover Distributions.
(a) Election Procedure. If all or any portion of a prospective distribution is
an Eligible Rollover Distribution, the prospective distributee shall have the
right to elect to have all or any portion of the Eligible Rollover Distribution
treated as a Rollover Amount. Subject to satisfaction of the requirements of
IRC Section 457(e)(16) and this Section, Rollover Amounts shall be delivered
directly by this Plan to an Eligible Retirement Plan as designated by the
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
15
distributee. The Plan permits non-spouse rollovers described in IRC Section
402 (c)(11). Any such transfers shall also comply with all applicable rules
and regulations issued by the Internal Revenue Service.
(b) Effect of Delivery of Rollover Amounts. Each prospective distributee,
by electing to have any portion of his/her Eligible Rollover Distribution treated
as a Rollover Amount, agrees that, upon transmittal as instructed of the
funds to which such election applies, the Deferred Compensation Board shall
be released from all duties, obligations responsibilities, and liabilities in
connection with the amount so transmitted. The Deferred Compensation
Board shall not be responsible to see to the crediting or application of the
funds so transferred.
08-06 Unforeseeable Emergency. General: In the event an unforeseeable
emergency occurs, a Participant may apply to the Deferred Compensation Board to
request a withdrawal of a portion of his/her account as necessary to satisfy the
emergency need. If the application is approved by the Deferred Compensation Board,
the Participant shall be paid only such amount as the Deferred Compensation Board
deems necessary to meet the emergency need. Payment shall not be made to the
extent that the financial hardship may be relieved (1) through reimbursement or
compensation by insurance or otherwise, (2) by liquidation of the Participant's assets
(to the extent the liquidation of such assets would not itself cause severe financial
hardship), or (3) by cessation of Deferred Compensation under the Plan.
An unforeseeable emergency shall be deemed to involve only circumstances of severe
financial hardship to the Participant resulting from a sudden unexpected illness,
accident, or disability of the Participant or of a dependent (as defined in IRC Section
152) of the Participant, loss of the Participant's property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of an event
beyond the control of the Participant.
The circumstances that will constitute an unforeseeable emergency will depend upon
the facts of each case. Examples of what shall not be considered to be unforeseeable
emergencies include the wish to finance a child’s college education or the desire to
purchase a home.
08-07 Qualified Domestic Relations Orders - General. Parties to a divorce or
termination of registered domestic partnership will be required to file a joinder with the
Plan, notifying the City that a divorce or termination of registered domestic partnership
is pending. Upon receipt of the final judgment, decree or order which is made pursuant
to a state domestic relations and/or community property law ("Court Order"), the
Trustee, within a reasonable period after receipt of such Court Order will make the
appropriate changes on the Plan data base in accordance with such Order as a
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
16
Qualified Domestic Relations Order ("QDRO").
(a) Segregation of Account/Payment - The Trustee, upon receipt of
instructions from the Deferred Compensation Board, will segregate in a
separate account in the Plan, the amounts which are payable to the Alternate
Payee pursuant to the QDRO.
(b) Status, Rights and Privileges of Alternate Payee - Except as otherwise
provided herein, an Alternate Payee shall have the status and rights of a
Beneficiary under this Plan to the exclusion of all other rights associated with
Participants under this Plan.
(c) Exceptions to General Rule - Notwithstanding the provisions of Section
08-07(b), the Alternate Payee shall have the following rights and privileges
under this Plan:
(i) The right to receive payment under the terms of the QDRO
domestic relations order at the time and manner specified in the
QDRO; provided, however, that such payment may not be made in a
form which is not available to Participants under the Plan; and
(ii) The right to direct the manner in which Plan amounts allocated
to such Alternate Payee are invested.
(d) Qualified Domestic Relations Order Expenses - Any expense related to
the administration of a QDRO shall be assessed against the Participant's
account and the Alternate Payee's account in percentages equal to the
percentage split of assets in the QDRO.
ARTICLE IX
LOANS TO PARTICIPANTS
9-01 Loans to Participants. A Participant may take a loan from his/her Account
subject to the terms and conditions of this Section 9-01 and the IRC.
(a) Limitation on Amount. No Participant shall, under any circumstance,
be entitled to loans aggregating in excess of the lesser of:
(1) $50,000, reduced by the excess (if any) of:
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
17
(A) the highest outstanding balance of loans to such
Participant from the Plan during the 1-year period ending on
the day before the date on which such loan was made, over
(B) the outstanding balance of loans from the Plan on the
date on which such loan was made, or
(2) one-half (1/2) of the value of the Participant’s adjusted vested
interest in his/her Account as of the Valuation Date coincident with or
immediately preceding the date on which the loan is made.
(3) The minimum Loan amount is $1,000.
(b) Equality of Borrowing Opportunity. Loans shall be made available on a
reasonably equivalent basis to all Participants who are active City employees
who have a minimum balance of $2,000 in their Deferred Compensation
Account. A loan may not be made to a Participant after his/her separation
from City service. If a Participant’s date of separation from City service
occurs after he/she has requested a loan but before the loan is actually made
to the Participant, the Participant’s request for a loan shall automatically be
cancelled. No loans may be made to a beneficiary or an Alternate Payee.
(c) Pledge of Security. Each loan to a Participant shall be secured by the
pledge of the amounts allocated to his/her Account equal to initial
outstanding balance of such loan.
(d) Loan Forms. The Participant shall complete all forms required by the
Deferred Compensation Board in order to process the loan including, but not
limited to: pledge of security, spousal consent, and acknowledgement of loan
terms. Participants shall submit paperwork for automatic electronic payments
(ACH) from a personal bank account directly to the Plan administrator.
(e) Interest Rate. Interest shall be charged at prime plus 1%, designed to
provide the Plan with a return commensurate with interest rates charged by
persons in the business of lending money under similar circumstances.
(f) Loan Term. Loans shall be for terms not to exceed five (5) years from
the date of the loan, except that loans taken for the purpose of acquiring any
dwelling unit which is to be used as a principal residence of the Participant
may be for periods not to exceed fifteen (15) years. Loan payments may
continue after the employee leaves City service until such time as the loan is
paid in full or until such time as a payment is in default, at which time the
loan becomes payable in full. Loans shall be non-renewable and non-
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
18
extendable.
(g) Amortization. Loans shall provide for substantially level amortization
of principal and interest by monthly automatic deduction (ACH) from the
Participant’s personal bank account.
(h) Prepayment. The Participant shall be permitted to repay the loan
in whole or in part at any time prior to maturity, without penalty.
(i) Defaults and Remedies. During the term of the loan, if no portion of a
loan payment is made within 60 days of the date such payment is due, or if
any balance remains outstanding 60 days after the end of the term of the
loan, the loan shall be considered in default. In the event of default by a
participant, the outstanding balance of the loan shall be reported to the
Internal Revenue Service as a deemed distribution. Interest accrued from
the date of the last loan repayment to the deemed distribution date is also
reported to the Internal Revenue Service.
(j) Loan Procedures. All Plan loans shall be made and administered by
the Deferred Compensation Board in accordance with the rules and
procedures that the Deferred Compensation Board may establish from time to
time, which are hereby incorporated into the Plan by reference.
(k) Outstanding Loans. A participant may have no more than one loan
outstanding at any time.
(l) Payment of Fees. The participant shall be responsible for the payment
of fees to cover the cost of administering his/her loan. Payment shall be
made by deduction from the Participant’s Deferred compensation account.
(m) Suspension of Repayment
(i) Military Service. Loan repayment shall be suspended without
penalty for any period during which a Participant is serving on active
duty in the uniformed services of the United States.
(ii) Other Leaves of Absence. In the event of an employer
approved unpaid leave of absence for any other reason, the
participant may suspend principal installments and interest payments
otherwise due for the duration of the leave or one year, whichever is
shorter.
(iii) Upon termination of a repayment suspension, the Participant
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
19
may either: (1) make a one-time payment equal to the total amount
that accumulated during the suspension, or (2) reamortize the loan.
(n) Other terms and conditions. The Deferred Compensation Board shall
fix such other terms and conditions of the loan as it deems necessary to
comply with the applicable laws, including maintaining the qualification of the
Plan under IRC Section 457, and any applicable regulations.
ARTICLE X
MISCELLANEOUS PROVISIONS
10-01 Leave of Absence. If a Participant is on an approved leave of absence
from the Employer, participation in this Plan shall continue.
10-02 Termination of Plan. The City of Fresno may, by appropriate action of the
City Council, terminate this Plan. No such termination shall deprive a Participant or
Beneficiary of any benefits to which the Participant or Beneficiary is entitled under this
Plan immediately prior to the effective date of such termination.
10-03 Amendment of Plan. The City of Fresno may, by action of the City Council,
amend this Plan. No amendment shall deprive any Participant or Beneficiary of any
right or benefit to which the Participant or Beneficiary is entitled under this Plan
immediately prior to the effective date of such amendment. To the extent there are
legislative changes affecting IRC Section 457, this Plan shall be interpreted to allow
implementation of mandatory changes.
10-04 Non alienation of Benefits - Attachment. Except as set forth in Section
08-06 with regard to Qualified Domestic Relations Orders, no Participant or Beneficiary
shall have the right to alienate, anticipate, commute, pledge, encumber or assign any
of the benefits or payments under this Plan, except the right to designate a Beneficiary
as hereinabove provided. The rights of the Participant under this Plan shall not be
subject to creditors of the Participant and shall be exempt from execution, attachment,
prior assignment, or any other judicial relief or order for the benefit of any creditors or
other third persons having claims against the Participant.
10-05 Plan Assets. All amounts of compensation deferred under the Plan, all
property and rights to property (including right as a beneficiary of a contract providing
life insurance protection) purchased with such amounts, property or rights to property
shall remain (until paid or made available to the Participant or the Participant's
Beneficiary under the Plan) solely the property and rights of the Employer (without
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
20
being restricted to the benefits under the Plan), and shall be held in trust for the
Participants and NOT be subject to the claims of general creditors of the Employer.
10-06 Participation by Deferred Compensation Board Members. Members of
the Deferred Compensation Board, who are otherwise eligible, may participate in the
Plan under the same terms and conditions as apply to other Participants, but an
individual member shall not participate in any Deferred Compensation Board action
taken with respect to that member's participation.
10-07 Employer Contributions. The Employer may, pursuant to a changed or
new Participation Agreement filed by a Participant as specified in Sections 05-01
through 05-06, add additional deferred compensation for services to be rendered by the
Employee to the Employer during any calendar month, provided:
(a) The Employee has elected to have such additional compensation
deferred, invested, and distributed, pursuant to this Plan, prior to the
calendar month in which the compensation is earned; and
(b) Such additional deferred compensation, when added to all other
deferred compensation under the Plan, does not exceed the maximum
deferral permitted under Article VI.
10-08 Controlling Law. This Plan shall be construed and enforced according to
state law, applicable local law and the IRC, and shall be interpreted in a manner
consistent with the maintenance of its status as an "eligible deferred compensation
plan" as defined in IRC Section 457(b). Reference to any section of the IRC, state law,
or local law shall be deemed to incorporate any required amendments of such section
as necessary to maintain the status of this Plan as an eligible deferred compensation
plan. The Employer reserves the right to take such action and do such things as are
required to make the Plan, as administered, consistent with IRC Section 457.
10-09 Suspension of Contributions. The Trustee may temporarily suspend the
acceptance of Deferred Compensation as necessary to facilitate appropriate
administration of this Plan or to comply with any federal, state or local law. Written
notice of such suspension shall be provided to all Participants and may accompany the
distribution of payroll check. No such suspension shall deprive a Participant or
Beneficiary of any right or benefit to which the Participant or Beneficiary is entitled
under this Plan immediately prior to the effective date of such suspension.
10-10 No Contract of Employment. Neither the establishment of the Plan, nor
the participation in the Plan, shall be construed as giving any Participant the right to be
retained in the service of the City of Fresno.
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
21
10-11 Severability of Provisions. If any provision of this Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect any other
provisions hereof, and this Plan shall be construed and enforced as if such provisions
had not been included.
10-12 Heirs, Assigns and Personal Representatives. This Plan shall be binding
upon the heirs, executors, administrators, successors and assigns of the parties;
including each Participant and Beneficiary, present and future.
10-13 Payments to Minors, Etc. Any benefit payable to or for the benefit of a
minor, an incompetent person or other person incapable of receipting therefore shall be
deemed paid when paid to such person's guardian or to the party providing or
reasonably appearing to provide for the care of such person, and such payment shall
fully discharge the City of Fresno and the Deferred Compensation Board with respect
thereto.
10-14 Reliance on Data and Consents. The Deferred Compensation Board, and
all other persons or entities associated with the operation of the Plan, the
administration, management of its assets, and the provision of benefits there may
reasonably rely on the truth, accuracy and completeness of all data provided by a
Participant, and/or Beneficiary, including, without limitation, data with respect to age,
health and marital status. Furthermore, the Deferred Compensation Board, and all
persons identified above may reasonably rely on all consents, elections and
designations filed with the Plan or those associated with the operation of the Plan by
any Participant or Beneficiary, or the representatives of such persons without duty to
inquire into the genuineness of any such consent, election or designation.
None of the aforementioned persons or entities associated with the administration
operation of the Plan, its assets and the benefits provided under the Plan shall have any
duty to inquire into any such data, and all may rely on such data being current to the
date of reference. It shall be the duty of the Participant or Beneficiary to advise the
appropriate parties of any change in such data. The Deferred Compensation Board
shall not be liable for the consequences of such change in data.
10-15 Equal Access to Benefits, Rights and Features. Any determination
made by the Deferred Compensation Board with respect to the availability of benefits,
rights and features under this Plan shall apply on a non-discriminatory basis allowing
equal access for all Participants; provided, however, that such access may be limited by
the terms of a collective bargaining agreement or individual employment contract.
10-16 Claim Procedures. Any dispute over payment from Accounts under the
Plan shall be resolved by the Deferred Compensation Board pursuant to its written
CITY OF FRESNO’S DEFERRED COMPENSATION PLAN DOCUMENT
22
claims procedures. Such claims procedures shall comply with applicable state laws
including, but not limited to, civil service rules and applicable collective bargaining
agreements.
10-17 Gender and Number. The masculine pronoun, whenever used herein, shall
include the feminine pronoun, and the singular shall include the plural, except where
the context requires otherwise.
10-18 Qualified Military Service. This Plan will be administered in accordance
with IRC Section 414(u) for Eligible Employees who return to work after absences from
employment due to qualified military service. This includes make-up contributions that
were not made during the Eligible Employee’s period of qualified military service.
Contributions made up will be subject to the annual contribution limitations for the year
in which they relate, rather than the year they are made.
10-19 Entire Agreement. This Plan and the Participation Agreement, and any
subsequently adopted amendment thereof, shall constitute the total agreement or
contract between the Employer and the Participant regarding the Plan. No other
communication or statement of any sort shall modify this Plan in any way or be relied
upon by the parties to this Agreement.
END OF DOCUMENT
City Council Approved on 7/23/2009
Revised draft November 6, 2013
City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-366 Agenda Date:10/9/2014 Agenda #:1-B
REPORT TO THE CITY COUNCIL
October 9, 2014
FROM:BRIAN R. MARSHALL, Director
Department of Transportation
BY:JIM SCHAAD, Assistant Director
Department of Transportation
SUBJECT
Authorize Amendment No. 2 to the agreement between the City of Fresno and Diversified
Transportation, LLC (DBA Keolis Transit America)
RECOMMENDATION
Staff recommends Council authorize the Director of Transportation to execute Amendment No.2 to
the agreement between the City of Fresno and Diversified Transportation,LLC (DBA Keolis Transit
America),revising some of the standards and definitions to ensure compliance with Federal Transit
Administration (FTA) and Americans with Disabilities Act (ADA) regulations.
EXECUTIVE SUMMARY
On January 24,2013,Council approved a new agreement with Diversified Transportation,LLC (DBA
Keolis Transit America),to provide ADA paratransit services.In an effort to address several FTA and
ADA compliance issues,provide reasonable and achievable service level standards,and correct
some general contract deficiencies,the City of Fresno and Keolis have agreed to changes to several
definitions and standards.
BACKGROUND
The City of Fresno Handy Ride service provides demand-response transportation services,offering
curb-to-curb transportation for citizens with disabilities in accordance with the ADA of 1990 (49 CFR,
Parts 27,37,and 38).Primarily used by people who are unable to use fixed-route buses,Handy
Ride operates seven days per week,with service levels comparable to the fixed-route system.The
demand response transportation services are being provided through a contractual agreement
between the City of Fresno and Diversified Transportation, LLC (DBA Keolis Transit America).
In December 2007,The FTA Office of Civil Rights conducted an audit of the Department of
City of Fresno Printed on 12/16/2022Page 1 of 4
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File #:ID#14-366 Agenda Date:10/9/2014 Agenda #:1-B
In December 2007,The FTA Office of Civil Rights conducted an audit of the Department of
Transportation complimentary paratransit service (Handy Ride)for compliance with the above-
referenced ADA requirements.Federal auditors did not publish their final report until several years
later,on June 7,2012.Shortly thereafter,on August 17,2012,the City solicited proposals for the
provision of demand-response transportation services (Handy Ride)to replace a contract expiring in
December 2012.In an attempt to address the audit report findings,several changes to the Request
for Proposals (RFP)language were made,including significant changes/additions to performance
measures.Since many of the performance measures and associated incentives and disincentives
were new,the RFP contained specific verbiage allowing post-award re-evaluation of standards to
determine any changes needed to ensure their levels are reasonably achievable while continuing to
encourage improvement to services.
In late August 2012,shortly after the release of the RFP,the FTA Office of Civil Rights requested a
copy of the document for review,which was immediately provided.The City received additional
comments from FTA on September 18,2012,after bids had been received.In order to continue
operations,the City awarded a contract to the most qualified proposer,Keolis Transit America,with
the intent to amend the contract as required once the FTA input was carefully reviewed.
The Department of Transportation has since been working with Keolis Transit America to make
required amendments to the contract that address FTA concerns,as well as apply reasonable
incentives and disincentives for performance. The major changes are summarized below:
·Clarification of the definition for “trip denials”to address auditor concerns that poor
definition allows exclusion of denied trips that must be counted when measuring
performance.
·Addition of the definition of “Early Pickup”and clarification that early pickups are not
considered as on-time,to address auditor concerns that riders might be unduly
pressured to accept an early pickup.This added definition essentially reduces on-time
window from previous 35 minutes to 30 minutes.
·Revision of definitions for “Late Trip,”“Missed Trip,”and On-time Pick-Up,”to
correspond with the above definition for “Early Pickup”and the reduced 30 minute
pickup window.
·Addition of separate “On-time Performance”and “Late Trip”tables that adjust for
tightened performance windows (above),provide more realistic and achievable
performance standards,and progressively increase severity of incentives/disincentives
based on the degree the contractor deviates from the performance standard.
·Removal of “Average Telephone Hold Times”measure to address FTA concerns about
weaknesses in use of averages to measure performance (“Single Customer On-Hold”
measure adequately addresses performance).
·Adjustment of ride-time policy and addition of an associated performance measure that
ties ride times to comparable fixed-route lengths.This to address auditor findings that
ride length needs to be monitored to ensure performance relative to fixed route services
and that trip lengths are not excessive.
·Addition of a drop-off time performance standard to ensure passengers with an
appointment not later than the specified appointment time.This is to address auditor
findings that there is an implicit obligation to get riders to appointments on time or early,
rather than late.
·Removal of Service Delivery Failure Measure based on FTA comments (“Late trip”and
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·Removal of Service Delivery Failure Measure based on FTA comments (“Late trip”and
“Missed Trip” measures adequately address performance).
·Addition to City roles and responsibilities to “ensure compliance with all requirements of
the ADA.” This is added to explicitly state ADA compliance in required.
·Addition of statements explicitly prohibiting restriction or prioritization of ADA trips based
on trip purpose to address auditor concerns that preference might be given based on
passenger preference (this is strictly prohibited by DOT/ADA regulations).
·Removal of references to the “Guide to Ride”and instead reference “City of Fresno
Handy Ride policies and procedures”since the “Guide to Ride”is a document directed
to riders and does not necessarily encompass all Handy Ride contractor requirements.
In addition to revisions made to address audit findings,Department of Transportation staff and
the subcontractor have identified other necessary revisions to the contract:
·Correction of system productivity standard (Passengers per Vehicle Service Hour)in
the performance standards table to coincide with estimated productivity levels specified
under section 2.1 of the contract.
·Addition of a table that defines productivity levels on actual passenger trips (contractor
has minimal control over number of passenger trips and therefore productivity goals
should be adjusted based on actual ridership)
·Revision of maintenance manager qualifications to:
o Recognize comparable management experience in non-paratransit bus
facilities and not limit experience to the narrow paratransit maintenance
industry.This provides for a much larger pool of qualified candidates and is
comparable to City hiring practices for similar positions.Note:The City
maintains the ability to determine if qualifications are comparable.
o Allow an associate degree/2-year certificate in automotive/truck repair from
an accredited college may be substituted for work experience on a year-per
-year basis. This is consistent with City hiring processes.
These changes will allow the City to address many of the concerns addressed in the FTA Office of
Civil Rights audit;revise key performance measures,incentives,and disincentives to make more
realistic; and in general clean up some additional deficiencies/errors within the contract document.
ENVIRONMENTAL FINDING
By the definition in the California Environmental Quality Act (CEQA)Guidelines Section 15378 the
amendment of a service contract does not qualify as a “project” as defined by CEQA.
LOCAL PREFERENCE
Local preference not implemented because the amendment of an agreement is not subject to a
competitive bid process.
FISCAL IMPACT
Incentives are added to the contractor’s monthly invoice and disincentives,deducted.While
exceeding standards or failing to meet specific performance,criteria would trigger these incentives
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exceeding standards or failing to meet specific performance,criteria would trigger these incentives
and disincentives,and potentially increase or decrease the annual cost of the contract.The intent of
the incentive and disincentive provisions is to ensure compliance and customer satisfaction,not
overly reward or unjustly penalize the contractor.The department may see a reduction in the
amounts withheld from the contractor’s monthly invoice if performance measures are better achieved;
however,appropriations for FY14 and FY15 were budgeted using the full award amount with no
incentives/disincentives.
Attachment:
Amendment No. 2 to Agreement between City of Fresno and Diversified Transportation LLC
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1
AMENDMENT NO. 2 TO AGREEMENT
BETWEEN THE CITY OF FRESNO AND
DIVERSIFIED TRANSPORTATION, LLC, DBA KEOLIS TRANSIT AMERICA
FOR PARATRANSIT SERVICES (HANDY RIDE)
THIS AMENDMENT NO. 2 TO CONTRACT (“Amendment”), is made and
entered into effective ________, 2014, by and between the CITY OF FRESNO, a
California municipal corporation (“CITY”), and DIVERSIFIED TRANSPORTATION
SERVICES, LLC, A California Limited Liability Company, dba KEOLIS TRANSIT
AMERICA (“CONTRACTOR”).
RECITALS
WHEREAS, CITY and CONTRACTOR entered into an agreement, dated
February 14, 2013, for Paratransit Services, and an amendment dated February 13,
2014 (“Agreement”); and
WHEREAS, the parties desire to revise such portions of the contract relating to the
SCOPE OF WORK and HANDY RIDE SERVICE STANDARDS.
AGREEMENT
NOW THEREFORE, in consideration of the above recitals, which recitals are
contractual in nature, the mutual promises herein contained, and for the other good and
valuable considerations hereby acknowledged, the parties agree as follows:
1. Add a definition for “EARLY PICK-UP”:
“Early Pick-up” shall mean the driver arrived at the pickup location and the
passenger elected to board and leave before the negotiated pick -up time.
Early pick-ups must be tracked separately and shall not be included in On-
Time Performance tracking.”
2. Change the definition of “LATE TRIP” from:
“Late Trip” shall mean an occurrence when the vehicle arrives more than 30
minutes but less than 60 minutes after the scheduled pick-up time and the
passenger chooses to board the vehicle and take the trip.
To read:
“Late Trip” shall mean an occurrence when the vehicle arrives more than 30
minutes after the scheduled pick-up time and the passenger chooses to board
the vehicle and take the trip.
3. Change the definition of “MISSED TRIP” from:
“Missed Trip” shall mean an occurrence when the vehicle arrives outside of the
35 minute pickup window and the rider is not there or decides not to take the trip.
This applies to arriving more than 5 minutes before the pickup time and
leaving before the pickup time without the customer as well as arriving more
than 30 minutes after the scheduled time.
2
To read:
“Missed Trip” shall mean an occurrence when the vehicle arrives outside of the
30 minute pick-up window and the rider is not there or decides not to take the
trip. This applies to arriving before the pick-up time and leaving before 5
minutes after the pick-up time without the customer as well as arriving more
than 30 minutes after the scheduled time.
4. Change the definition of “ON-TIME PICK-UP” from:
“On-Time Pick-up” For paratransit services, a vehicle shall be on-time if it arrives
at the designated pickup location no more than 5 minutes prior to the
scheduled pickup time or no more than 30 minutes after that time.
To read:
“On-Time Pick-up” For paratransit services, a vehicle shall be on-time if it arrives
at the designated pick-up location and leaves at any time within the
designated pick-up window or arrives no more than 30 minutes after the
scheduled pick-up time.
5. Change the definition of “TRIP DENIAL” from:
“Trip Denial” Under guidelines established by the ADA, a paratransit service
provider is allowed to negotiate trip times with a customer up to 1 hour before
and 1 hour after the originally requested trip time, except for “time certain” drop-
off and pick-up times when the customer must arrive at or within 1 hour before
but no later than the specified time or cannot be picked -up until after a specified
time (e.g. medical appointments, work start and end times). If an available trip
cannot be located with the 2-hour time window (or 1 hour before the requested
time for time certain deliveries or 1 hour after a time -certain pick-up), whether the
customer accepts the offered trip or not, this represents a trip denial.
To read:
“Trip Denial” Under regulations established by the ADA, a paratransit service
provider is allowed to negotiate trip times with a customer up to 1 hour before
and 1 hour after the originally requested trip time, except for “time certain” drop -
off and pick-up times when the customer must arrive at or within 1 hour before
but no later than the specified time or cannot be picked -up until after a specified
time (e.g. medical appointments, work start and end times). If an available trip
cannot be located with the 2-hour time window (or 1 hour before the requested
time for time certain deliveries or 1 hour after a time -certain pick-up), whether the
customer accepts the offered trip or not, this represents a trip denial.
6. Add p. to “1. General Roles and Responsibilities”:
“1.3 The City’s designated staff will manage services proposed pursuant to this
solicitation. The City’s roles and responsibilities shall include:
p. Ensure compliance with all requirements of the ADA.
3
7. Change section 6.1 under “Reservations, Scheduling and Dispatching” from:
6.1 Compliance with ADA and Handy Ride Policies Contractor shall implement
and administer reservations, scheduling and dispatch procedures that shall be in
compliance with Americans with Disabilities Act complementary paratransit
requirements, as may be amended and modified by the Federal Transit
Administration, and City of Fresno Handy Ride policies as presented in the
Handy Ride Guide to Ride.
To read:
6.1 Compliance with ADA and Handy Ride Policies Contractor shall implement
and administer reservations, scheduling and dispatch procedures that shall
be in compliance with Americans with Disabilities Act complementary par
transit requirements, as may be amended and modified by the Federal
Transit Administration, and City of Fresno Handy Ride policies and
procedures.
DOT ADA regulations prohibit restricting or prioritizing ADA trips based on
trip purpose. All customers and trips will be treated equally.
8. Change section 6.2 under “Reservations, Scheduling and Dispatching” from:
6.2 Reservations Eligible riders will be asked to contact Handy Ride at least
one (1) day and up to two (2) days in advance to make a trip reservation.
When placing a trip request, riders will be requested to give point of origin,
point of destination and number of persons in the party. Upon making a trip
reservation, riders will be advised of the promised pickup time for their trip
and advised that the Handy Ride vehicle may arrive from 5 minutes before
to 30 minutes after that promised time.
In accordance with the ADA, call takers shall negotiate the pickup time for a
requested trip up to one hour before to one hour after the requested travel
time unless the rider indicates a delivery time or pickup time constraint
which prohibits their being delivered or picked up either before or after a
specific time. In the event of a delivery or pick up time constraint, the
following policies shall apply:
i. No-later-than Delivery: If an appointment time has been specified, the
reservationist will offer one or more pickup windows that will ensure
that the customer arrives within 30 minutes of and not later than the
specified appointment time. Depending upon travel distance and other
customer trips already scheduled for that service day, the pickup
window may begin as much as 90 minutes prior to the specified
appointment time in order to ensure that the customer will not be
traveling on the Handy Ride vehicle for more than 1 hour prior to
his/her arrival time. The appointment time must be entered into
Trapeze and must be printed on the driver manifests.
ii. No-earlier-than Delivery: If the customer is unable to arrive at a
location prior to a specified time, the reservationist will offer one or
more pickup windows that will ensure that the customer will arrive not
4
before and no more than 30 minutes after the specified early arrival
time. Depending upon travel distance and other customer trips already
scheduled for that service day, the pickup window may begin as much
as 60 minutes prior to the specified opening time in order to ensure
that the customer will not be traveling on the Handy Ride vehicle for
more than 1 hour prior to arrival time.
iii. No-later-than Pick-up: If a customer must leave a location no later than
a specified time, i.e. a facility closes at 6 p.m., the reservationist will
offer one or more pickup windows that will ensure that the customer is
picked up not later than and up to 60 minutes prior to the specified
closing time.
iv. No-earlier-than Pick-up: If the Customer has requested not to leave
his/her pick up location before a specified time, the reservationist may
offer one or more pick up window choices, for which the start of the
window is after the specified time.
To read:
6.2 Reservations Eligible riders will be asked to contact Handy Ride at least
one (1) day and up to two (2) days in advance to make a trip reservation.
When placing a trip request, riders will be requested to give point of origin,
point of destination and number of persons in the party. Upon making a trip
reservation, riders will be advised of the promised pickup time for their trip
and advised that the Handy Ride vehicle may arrive from the appointment
time to 30 minutes after that promised time.
Contractor will not be permitted to restrict or prioritize ADA trip
requests based on trip purpose.
In accordance with the ADA, call takers shall negotiate the pickup time for a
requested trip up to one hour before to one hour after the requested travel
time unless the rider indicates a delivery time or pickup time constraint which
prohibits their being delivered or picked up either before or after a specific
time. In the event of a delivery or pick up time constraint, the following
policies shall apply:
i. No-later-than Delivery: If an appointment time has been specified, the
reservationist will offer one or more pickup windows that will ensure
that the customer arrives within 30 minutes of and not later than the
specified appointment time. Depending upon travel distance and other
customer trips already scheduled for that service day, the pickup
window may begin as much as 90 minutes prior to the specified
appointment time in order to ensure that the customer will not be
traveling on the Handy Ride vehicle for more than 1 hour prior to
his/her arrival time. The appointment time must be entered into
Trapeze and must be printed on the driver manifests.
ii. No-earlier-than Delivery: If the customer is unable to arrive at a
location prior to a specified time, the reservationist will offer one or
more pickup windows that will ensure that the customer will arrive not
5
before and no more than 30 minutes after the specified early arrival
time. Depending upon travel distance and other customer trips already
scheduled for that service day, the pickup window may begin as much
as 60 minutes prior to the specified opening time in order to ensure
that the customer will not be traveling on the Ha ndy Ride vehicle for
more than 1 hour prior to arrival time.
iii. No-later-than Pick-up: If a customer must leave a location no later
than a specified time, i.e. a facility closes at 6 p.m., the reservationist
will offer one or more pickup windows that will ensure that the
customer is picked up not later than and up to 60 minutes prior to the
specified closing time.
iv. No-earlier-than Pick-up: If the Customer has requested not to leave
his/her pick up location before a specified time, the reservationist may
offer one or more pick up window choices, for which the start of the
window is after the specified time.
v. If a reservationist or dispatcher is unable to schedule the pick up
within the requirements stated above, the trip must be coded as a
denial whether the customer accepted the trip or not. If only one leg
of a round trip can be reserved and the rider declines the trip, it must
be tracked as 2 denials.
9. Change section 6.2 under “Reservations, Scheduling and Dispatching” from:
6.3 Scheduling Within the requirements established by the ADA, Contractor’s
scheduling staff will organize trip requests for Handy Ride service so as to
meet or exceed the service standards defined herein. Handy Ride shall be
operated as a shared-ride service.
City will provide Contractor with Trapeze software and operating licenses for
use in the reservations, scheduling and dispatch of Handy Ride paratransit
services. Contractor will be required to provide the technical expertise and
support staff necessary to:
train Handy Ride staff as needed in the use of Trapeze;
provide customized performance reports and operating data;
ensure that Handy Ride scheduling staff are knowledgeable of and
apply the tools and techniques in Trapeze designed to optimize vehicle
schedules; and
monitor the use of Trapeze and the performance on Handy Ride
services on at least a semi-annual basis and identify potential
improvements and opportunities for retraining and specialized training.
6
To read:
6.3 Scheduling Within the requirements established by the ADA, Contractor’s
scheduling staff will organize trip requests for Handy Ride service so as to
meet or exceed the service standards defined herein. Handy Ride shall be
operated as a shared-ride service.
Schedulers may NOT alter the scheduled pick-up time without
contacting the customer. Any changes made to the scheduled time
that is outside the requirements as listed above will be considered and
tracked as a trip denial.
City will provide Contractor with Trapeze software and operating licenses for
use in the reservations, scheduling and dispatch of Handy Ride par transit
services. Contractor will be required to provide the technical expertise and
support staff necessary to:
train Handy Ride staff as needed in the use of Trapeze;
provide customized performance reports and operating data;
ensure that Handy Ride scheduling staff are knowledgeable of and
apply the tools and techniques in Trapeze designed to optimize vehicle
schedules; and
monitor the use of Trapeze and the performance on Handy Ride
services on at least a semi-annual basis and identify potential
improvements and opportunities for retraining and specialized training.
10. Add section 6.6 as follows:
6.6 Ride Time Policy:
For Handy Ride trips, acceptable on-board travel times as compared to
similar Fixed Route trips shall be computed as shown below. As a goal,
100% of Handy Ride trips will have a ride time of 90 minutes or less.
Fixed Route Travel Time Acceptable Handy Ride Trip Times
0-30 minutes Fixed Route time + 50%
31 – 60 minutes 45 minutes or Fixed Route time + 25%, whichever is
greater
> 60 minutes 75 minutes or Fixed Route time + 10%, whichever is
greater
11. Change 7.3 Incentives and Disincentives from:
Performance
Measure Definition Standard Incentive Disincentive
Passengers per
Vehicle Service
Hour
The average number of unlinked
passenger trips completed per
vehicle service hour operated. City
may increase standard by 0.1 upon
third consecutive month of achieving
incentive.
2.3 or greater
$2,500 per
month at 2.4 or
higher
productivity
$2,500 per
month at less
than 2.2
productivity
7
On-Time
Performance
Percentage of pick-ups made
within 5 minutes before to 30
minutes after the scheduled time.
City may increase standard by 1.0%
upon third month of achieving
incentive.
Ninety-One
percent (91%)
$500 for each
month at 95%
or above
$500 monthly
for each
percent at or
below 90%
on-time
Average
Telephone Hold
Time
Average time telephone calls to
the Handy Ride call center are
kept on hold
Less than 90
seconds
$500 for each
month at less
than 60
second
average hold
time
$500 for
each month
above 90
second
average hold
time
Single Customer
On Hold
Length of time an individual
customer is on hold
95% of calls
answered in 3
minutes, 99%
of calls in five
minutes
None
Calculated
Monthly at
$10 per call
each hold
length for
over 5
minutes
outside of the
1% allowed,
with daily
penalties
capped per
Table A.
Will-Call Wait
Time
The maximum time between a will-
call passenger’s call to be picked-up
and the vehicle’s arrival.
Ninety percent
90% within 90
minutes
None None
Ride Time The average ride time between pick-
up and drop-off.
75% within 60
minutes
100% within 90
minutes
None None
Trip Denials
Failure to negotiate an acceptable
trip within ADA guidelines.
See “Trip Denial” definition above.
Zero denials None None
Late Trips
Vehicle arrival more than 30 minutes
but less than 60 minutes after the
scheduled pick-up time and
passenger chooses to take the ride.
No more than
5% of all
scheduled trips
per month
None
$50 for each
late trip
exceeding
standard
Missed Trip
Vehicle arrival more than 30 minutes
but less than 60 minutes after the
scheduled pick-up time and
passenger does not appear or
chooses not to ride.
No more than
2% of all
scheduled trips
per month
None
$50 for each
missed trip
exceeding
standard
8
Service Delivery
Failures
Failure to arrive within 61 minutes
after the scheduled pick-up time,
whether or not the passenger is
transported.
Zero service
delivery
failures
None
$500 for
each service
delivery
failure >20 in
a month
Road Calls Average number of vehicle service
miles between road calls.
(to be
determined) None None
To read:
Table A.
Performance
Measure
Definition Standard Incentive Disincentive
Passengers per
Vehicle Service
Hour
The average number of unlinked
passenger trips completed per
vehicle service hour operated. City
may increase standard by 0.1 upon
third consecutive month of achieving
incentive.
Per Table B
$250 per
month for each
one hundredth
(0.01) above
range
established in
Table B.
$250 per
month for
each one
hundredth
(0.01) above
range
established
in Table B.
On-Time
Performance
Percentage of pick-ups made
from the negotiated pick-up time
to 30 minutes after the negotiated
time. City may increase standard
by 1.0% upon third consecutive
month of achieving incentive.
Ninety-One
percent
(91%)
Incentives per
Table C
Disincentive
s per Table C
On-Time Drop-
off Performance
For time certain delivery or drop-
offs, the percentage of drop-offs
arriving within 30 minutes of and
not later than the specified
appointment time.
No less than
95% of trips
with a
defined
delivery time
will be
performed
on time.
None None
Single Customer
On Hold
Length of time an individual
customer is on hold
95% of calls
answered in 3
minutes, 99%
of calls in 5
minutes,
100% in 7
minutes
None
Calculated
Monthly at
$10 per call
each hold
length for
over 5
minutes
outside of the
1% allowed,
with daily
penalties
capped per
Table A.
9
Will-Call Wait
Time
The maximum time between a will-
call passenger’s call to be picked-up
and the vehicle’s arrival.
90% within 90
minutes,
100% within
120 minutes
None None
Ride Time The time rider is on the vehicle
between pick-up and drop-off.
See Ride
Time Policy
pg. 56. Of
trips
sampled
100% must
be within the
defined
acceptable
travel time,
100% less
than 90
minutes.
None None
Trip Denials
Failure to negotiate an acceptable
trip within ADA regulations.
See “Trip Denial” definition above.
Zero denials None None
Late Trips
Vehicle arrival more than 30 minutes
after the scheduled pick-up time and
passenger chooses to take the ride
No more than
5% of all
scheduled
trips per
month
Incentives per
Table D.
Disincentive
s per Table
D.
Missed Trip
Vehicle arrival more than 30 minutes
after the scheduled pick-up time and
passenger does not appear or
chooses not to ride
No more than
2% of all
scheduled
trips per
month
None
$50 for each
missed trip
exceeding
standard
Road Calls Average number of vehicle service
miles between road calls.
(to be
determined) None None
12. Change 10.5(e)(i) “Reservations, Scheduling and Dispatch Staff” From:
i. Handy Ride policies and procedures as summarized in the Handy
Ride Guide to Ride, most current version;
To read:
i. Handy Ride policies and procedures;
ii.
13. Add Table B to Section 7.3 below to reflect an expected “AVERAGE PASSENGER
PRODUCTIVITY” scale based on overall Handy Ride system ridership.
Incentives/disincentives shall be applied for performance outside stated ranges.
10
Table B.
Total Passenger trips
Average Passenger
Productivity
200,000 to < 210,000 2 to 2.1
210,000 to < 220,000 2.1 to 2.2
220,000 to < 230,000 2.2 to 2.3
230,000 to < 240,000 2.3 to 2.4
240,000 to < 250,000 2.4 to 2.5
250,000 or greater 2.5
14. Add Table C to Section 7.3 below to apply “ON-TIME PERFORMANCE”
incentive/disincentives. Incentives/disincentives shall be applied for performance
outside stated ranges.
Table C.
On-Time Performance
(%)
% over/ under
90%
Monthly (Dis)incentive PER
PERCENTAGE POINT (%)
over/under
99 or greater (9) - (10)
$(5
00) Incentive 97 to <99 % (7) - (8)
$(4
00)
95 to <97 % (5) - (6)
$(3
00)
93 to <95 % (3) - (4)
$(2
00)
91 to <93 % (1) - (2)
$(1
00)
90 to <90 % 0 0
88 to <89 % 1 - 2 $50 Disincentive 85 to <88% 3 - 5
$10
0
82 to <85 % 6 - 8
$15
0
78 to <82% 9 - 12
$20
0
74 to <78 % 13 16
$25
0
70 to <74% 17 - 20
$30
0
Less than 70% 21 - up
$50
0
*Numbers in Parenthesis indicate incentives
11
15. Add Table D to Section 7.3 below to apply “LATE TRIPS” incentive/disincentives.
Incentives/disincentives shall be applied for performance outside stated ranges.
Table D.
% Late
Incentive/
Disincentive
0 to <2 $ 10,000.00 Incentive 2 to <3 $ 6,000.00
3 to <4 $ 3,000.00
4 to <5 $ 1,000.00
5 to <6 $ -
6 to <7 $ 1,000.00 Disincentive 7 to <8 $ 3,000.00
8 to <9 $ 6,000.00
9 to <10 $ 10,000.00
10 to <11 $ 15,000.00
11 to <12 $ 21,000.00
12 to <13 $ 28,000.00
13 to <14 $ 36,000.00
14 to <15 $ 45,000.00
16. Change “Qualifications of Maintenance Manager” from:
16.3 Maintenance Management
a. The CONTRACTOR shall designate and provide the services of a qualified
Maintenance Manager/Foreman, subject to the approval of CITY. This individual
may be the lead mechanic and shall be assigned to Handy Ride maintenance
operations on a full-time basis. The Maintenance Manager/Foreman shall provide
proactive resource management including but not limited to preventive maintenance
scheduling and supervision, repair supervision, technical training, and such other
activities as may be necessary to ensure the performance of CONTRACTOR
maintenance duties and responsibilities.
b. The Maintenance Manager/Foreman shall have a minimum of three years of
experience managing the maintenance functions of a paratransit bus shop similar in
size and complexity to the services herein described.
c. The Maintenance Manager/Foreman shall have a minimum of five years
journeyman level experience with gasoline engines, CNG engines and systems, air
conditioning systems, and wheelchair lifts. ……”
To read:
16.3 Maintenance Management
a. The CONTRACTOR shall designate and provide the services of a qualified
Maintenance Manager/Foreman, subject to the approval of CITY. This individual
12
may be the lead mechanic and shall be assigned to Handy Ride maintenance
operations on a full-time basis. The Maintenance Manager/Foreman shall provide
proactive resource management including but not limited to preventive maintenance
scheduling and supervision, repair supervision, technical training, and such other
activities as may be necessary to ensure the performance of CONTRACTOR
maintenance duties and responsibilities.
b. The Maintenance Manager/Foreman shall have a minimum of three years of
experience managing the maintenance functions of a paratransit bus shop similar in
size and complexity to the services herein described. Comparable experience in
non-paratransit bus facilities may be substituted subject to the approval of
the CITY.
c. The Maintenance Manager/Foreman shall have a minimum of five years
journeyman level experience with gasoline engines, CNG engines and systems, air
conditioning systems, and wheelchair lifts. An associate degree/2-year certificate
in automotive/truck repair from an accredited college may be substituted on
a year per year basis.
17. Add 7.3(d) as follows:
Performance incentives/disincentives for “ON-TIME PERFORMANCE” and “LATE
TRIPS” will be measured for both 35 and 30 minute pickup/delivery windows
during the first 120 day period after this amendment becomes effective. During
this 120 day period, incentives/disincentives for these measures will be applied
using a 35 minute pickup/delivery window to allow the contractor to adjust
operational schedules and policies as necessary. At the completion of this 120
day adjustment period, ON-TIME PERFORMANCE” and “LATE TRIPS” incentives
will be applied using the revised 30 pickup/delivery window.
18. Except as otherwise provided herein, the Agreement entered into by CITY and
CONTRACTOR, dated February 14, 2013, and amended dated February 13, 2014,
remains in full force and effect.
/ / /
13
IN WITNESS WHEREOF, the Parties have executed this Contract Amendment
No. 2 in Fresno, California, on the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
By
Name:
Title:
ATTEST:
YVONNE SPENCE, CMC
City Clerk
By:
Deputy
APPROVED AS TO FORM:
City Attorney’s Office
By:
Brandon M. Collet Date
Deputy City Attorney
DIVERSIFIED TRANSPORTATION
SERVICES, LLC., (dba KEOLIS TRANSIT
AMERICA)
a California Limited Liability company
By:
Name:
Title:
(if corporation or LLC, Board Chair,
Pres. or Vice Pres.)
By:
Name:
Title:
(if corporation or LLC, CFO,
Treasurer, Secretary or Assistant
Secretary)
City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-376 Agenda Date:10/9/2014 Agenda #:1-C
REPORT TO THE CITY COUNCIL
October 9, 2014
FROM:JERRY P. DYER, Chief of Police
Police Department
BY:ROBERT A. NEVAREZ, Deputy Chief
Police Department
SUBJECT:
Approval for a two-year contract between Fresno City College and the City of Fresno for contract
instruction, assessment services and training credit
RECOMMENDATION
Staff recommends that the City Council approve a two-year contract between Fresno City College
and the Fresno Police Department for contract instruction,training credit and assessment services.
This two-year contract will authorize a $3.50 fee per instructional hour per student received from
Fresno City College.
EXECUTIVE SUMMARY
The Fresno City College Police Academy has served as the Police Department’s contracted
instructor since 1997,providing training credit for employees.Pursuant to Section 3,subpart “a”of
the Master Agreement,the parties wish to continue the agreement for two additional years and
maintain the $3.50 fee per instructional hour per student received from Fresno City College.Training
remains a high priority for the Department despite budget constraints.This Master Agreement
allows the current funding stream for employee training to continue uninterrupted from July 1,2014,
through June 30,2016.In this “win-win”scenario,Fresno City College receives funding for student
enrollment and the Police Department receives a portion of that funding for providing students who
are mandated to receive the training.
BACKGROUND
The Fresno City College Police Academy has served as a training provider for the Police Department
since 1997,providing training,course credit,and payment for instructional hours.Fresno City
College additionally processes all related documentation such as course registration,payment
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College additionally processes all related documentation such as course registration,payment
processing,and the updating of student records.This long-standing partnership benefits the Police
Department as it allows for a small percentage of instructional costs to be returned to the
Department,extending the Department training budget,and furthering the Department’s ability to
provide training opportunities for employees and outside agencies.Fresno City College benefits from
increased student usage,and attendance ratings.The City Attorney’s Office has reviewed and
approved as to form the proposed Agreement.
ENVIRONMENTAL FINDINGS
N/A
LOCAL PREFERENCE
N/A. This is not a competitive bid award.
FISCAL IMPACT
It is anticipated this agreement will generate approximately $80,000 annually to off-set debt service at
the Fresno Police Department Regional Training Center.
JPD:RAN:TL:rb
09/09/14
Attachment: Master Agreement Contract
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MASTER AGREEMENT
BETWEEN
FRESNO CITY COLLEGE
AND
CITY OF FRESNO
INSTRUCTIONAL SERVICE AGREEMENT
This Agreement is made and entered into this_____day of _________, 2014 by
and between Fresno City College (FCC), a college of the State Center
Community College District (SCCCD) and the City of Fresno, a municipal
corporation (CITY).
WITNESSETH:
WHEREAS, FCC is authorized by the California Education Code
(Education Code) and Title 5 of the California Code of Regulations (Title 5), to
conduct Contract Instruction, Assessment and Counseling Services to serve
community needs; and
WHEREAS, CITY desires to contract with FCC for services as identified
herein; and
WHEREAS, the parties intend that this Agreement provide for the mutual
cooperation of FCC and CITY in the provision of quality instruction and training to
meet community needs.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the
covenants, conditions, and promises hereinafter contained to be kept and
performed by the respective parties, FCC and CITY mutually agree as follows:
Section 1. RESPONSIBILITIES OF FCC
a.FCC shall offer approved educational courses through its various
programs to meet the needs of the CITY’s Police Department (FPD).
b.FCC shall provide a coordinator to work with FPD. Said coordinator shall
act as the FPD co-director for all FCC affiliated educational courses.
Under no circumstances, however, shall the coordinator have authority
over the remaining operations of FPD, including but not limited to,
personnel issues concerning FPD employees, operational budget, or the
use, maintenance, or scheduling of FPD facilities.
c.FCC and FPD will mutually ensure that ancillary and support services are
provided for the students. (e.g. Counseling, Guidance, & Placement
Assistance)
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d.FCC shall assist the FPD in registration and other support services to
students in order to adequately manage and control its course offerings.
e.FCC shall approve of the selection of instructors and facilitators and
evaluate the quality of instruction to ensure that it meets the needs of the
students and the accreditation requirements of FCC. FCC shall have the
primary right to control and direct the instructional activities of all
instructors.
f.FCC shall ensure that course offerings meet all appropriate requirements
of the Education Code and Title 5.
g.FCC shall consult the FPD on any revisions to existing FCC courses
designed for the FPD program, initiation of new courses, or any other
changes, in order to ensure the quality of educational services and to
meet the needs of the FPD.
h. FCC shall provide the use of its facilities and equipment free of charge for
use by the FPD, on an as-needed, space available basis for affiliated
programs. FCC shall attempt to provide use of said facilities and
equipment during normal business hours.
i.FCC shall demonstrate control and direction through such actions as:
providing the instructor of record an orientation, instructor’s manual, Title 5
course outlines, curriculum materials, testing and grading procedures and
any other materials and services it would provide its hourly instructors on
campus.
j. FCC shall waive the health fee for all FPD students.
k.By signing this Agreement, FCC certifies that it does not receive full
compensation for direct education costs of the course from any public or
private agency, individual or group.
Section 2. RESPONSIBILITIES OF FPD
a.FPD shall provide classroom space for use as off-campus sites by FCC,
free of charge for affiliated programs. FPD shall attempt to provide use of
said facilities during normal business hours.
b.FPD shall provide instructors, facilitators, equipment, materials, day-to-day
management support, and all other related overhead necessary to
conduct FCC’s affiliated educational programs.
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c. FPD shall cooperate with FCC to ensure that all personnel, equipment,
and materials used in carrying out its responsibilities under this Agreement
conform to Education Code and Title 5 mandated standards governing
instructional programs, including minimum qualifications for instructors.
d.CITY shall use the money received as compensation for services under
this Agreement for educational and training related purposes as they
relate to law enforcement training programs.
e.FPD shall assist FCC in collecting all instructional fees associated with the
class offerings under this Agreement.
f. Records of student attendance and achievement shall be maintained by
FPD. Records will be open for review at all times by officials of the college
and submitted on a schedule developed by FCC.
g.By signing this Agreement, CITY certifies the training facility is open to the
public and that the instructional activity to be conducted will not be fully
funded by other sources.
Section 3. PAYMENT FOR SERVICES
a.In consideration for the services provided herein, FCC shall pay CITY
$3.50 per student instructional hour that is eligible for state general
apportionment.
b.For fiscal year 2014/2015, (for purposes of this Agreement, “fiscal year”
begins July 1 and ends June 30) said hours shall not exceed 52,500
Student Instructional Hours or 100 Full Time Equivalent Students (FTES),
unless mutually agreed prior to May 1, 2015. The same limits shall apply
in each subsequent fiscal year, unless otherwise agreed in writing by the
parties.
c.Any subsequent year’s student instructional hour cap shall be determined
at lease sixty (60) days prior to the start of the next fiscal year.
d.CITY shall present FCC with a valid invoice of all mutually agreed upon
instructional hours presented under this Agreement and FCC shall pay
CITY the agreed contract price within 45 days. The registration fees for
courses under this contract will be deducted from the total amount of said
invoice. FCC shall consider this payment for the registration fees and
CITY shall consider the contracted price, minus the registration fees, as
payment in full.
e.Instructional hours are defined as those hours that are reported on
SCCCD’s CCFS-320, California Community Colleges Apportionment
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Attendance Reports, and are subject to audit by SCCCD’s independent
auditor and the California Community Colleges Chancellor’s Office.
Section 4. INDEMNIFICATION
a.CITY shall indemnify, hold harmless and defend FCC, and each of its
officers, officials, agents, and volunteers from and all loss, liability, fines,
penalties, forfeitures, costs and damages (whether in contract, tort or strict
liability, including but not limited to personal injury, death at any time and
property damage) incurred by CITY, FCC or any other person, and from
and from any and all claims, demands and actions in law or equity
(including attorney’s fees and litigation expenses), arising or alleged to
have arisen directly or indirectly from the negligent or intentional acts or
omissions of CITY or any of its officers, officials, employees, agents or
volunteers in the performance of this Agreement; provided nothing herein
shall constitute a waiver by CITY of governmental immunities including
California Government Code Section 810 et seq.
b.FCC shall indemnify, hold harmless and defend CITY and each of its
officers, officials, employees, agents and volunteers from any and all loss,
liability, fines, penalties, forfeitures, costs and damages (whether in
contract, tort or strict liability, including but not limited to personal injury,
death at any time and property damage) incurred by the CITY, FCC or any
other person, and from any and all claims, demands and actions in law or
equity (including attorney’s fees and litigation expenses), arising or alleged
to have arisen directly or indirectly from the negligent or intentional acts or
omissions of FCC or any of its officers, officials, employees, agents or
volunteers in the performance of this Agreement; provided nothing herein
shall constitute a waiver by FCC of governmental immunities including
California Government Code Section 810 et seq.
c.In the event of concurrent negligence on the part of FCC or any of its
officers, officials, employees, agents or volunteers, and CITY or any of its
officers, officials, employees, agents or volunteers, the liability for any and
all such claims, demands and actions in law or equity for such losses,
fines, penalties, forfeitures, costs and damages shall be apportioned
under the State of California’s theory of comparative negligence as
presently established or as may be modified hereafter.
d.This section shall survive expiration or termination of this Agreement.
Section 5.INSURANCE
a.Each party shall insure its activities in connection with this Agreement and
maintain at all times insurance in coverage and limit amounts reasonably
5
necessary to protect itself against injuries and damages arising from the
acts or omissions caused by each party, their respective Boards, officers,
employees and agents in the performance of this Agreement. This
insurance requirement may be satisfied through a program of self-
insurance, or insurance coverage afforded to public entities through a
Joint Powers Authority (JPA) risk pool.
Section 6. MISCELLANEOUS
a.If any of the provisions of this Agreement are found to be, or become
contrary to State law or regulations, or court decisions, FCC and CITY
agree that the Agreement shall be renegotiated as it relates to said
provision, but the remainder of the Agreement shall remain in full force
and effect.
b.The term of this Agreement shall be retroactive to July 1, 2014, and shall
terminate on June 30, 2016. Notwithstanding the foregoing, this
Agreement may be terminated at any time, with or without cause, upon
written notice given to the other party at least thirty (30) days prior to the
end of the term in which classes are currently in session. In the event of
such termination, each party shall fully pay and discharge all obligations
accruing to the other party up to and including the date of termination.
Neither party shall incur any additional liability to the other by reason of
such termination.
c.Either party hereto maintains the right to cancel services prior to the
beginning of each course at no cost to either party to this Agreement.
d.CITY and FCC will not discriminate in the selection of any student to
receive instruction pursuant to this Agreement because of race, creed,
color, national origin, sex, disability (physical or mental), religion, age or
any other characteristic prohibited by law.
e.The parties agree that no action, at law or equity, including an action for
declaratory relief, shall be brought unless the underlying claim and/or
cause of action has been submitted to non-binding arbitration before a
mutually acceptable arbitrator appointed by the Judicial Arbitration and
Mediation Service.
f.FCC has the primary right to control and direct the activities of the person
or persons furnished by the CITY during the term of the Agreement.
g.This Agreement supersedes any and all other agreements, oral or written,
between the parties hereto with respect to the use of the aforesaid
facilities or services and contains all covenants and agreements between
the parties with respect hereto. Each party to this Agreement
6
acknowledges that no representations, inducements, promises or
agreements, oral or otherwise, have been made by any party, or by
anyone acting on behalf of any parties, which are not embodied herein,
and that no other agreement, statement, or promise not contained herein
shall be valid or binding. Any modification to this Agreement shall be
effective only if it is in writing and signed by the CITY and FCC in the form
of an amendment to this Agreement.
h.Notice or correspondence required by this Agreement shall be delivered
personally or by United States mail as follows:
To FCC Richard Lindstrom To FPD Lt. Tom Laband
State Center Regional Fresno Police Dept.
Training Facility 2326 Fresno Street
1101 E. University Ave.Fresno, Ca. 93721
Fresno, Ca. 93741
i.The specific courses covered under this Agreement are described in
Attachments 1 through 29, which are incorporated herein by this
reference.
j.In addition to the specific courses noted above, the parties may offer
additional courses pursuant to this Agreement, on the same terms and
conditions as this Agreement. For each additional course of instruction,
written agreement to offer the course is required by CITY’s Chief of Police
or designee, and the FCC President or designee. The course particulars
must be set forth in writing as with the courses listed above, and will
become attachments to this Agreement.
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IN WITNESS WHEREOF, The parties hereto have executed this Agreement to be
effective July 1, 2014.
City of Fresno, a Municipal
Corporation
_______________________________
Jerry Dyer, Chief
Fresno Police Department
Date:________________
APPROVED AS TO LEGAL FORM:
_______________________________
Douglas Sloan,
Fresno City Attorney
Date:_________________
ATTEST:
_______________________________
Yvonne Spence,
Fresno City Clerk
Date:_________________
Fresno City College, a college of the
State Center Community College
District
________________________________
Mr. Edwin Eng
Vice Chancellor Finance and
Administration
Date:_________________
REVIEWED AND RECOMMENDED
FOR APPROVAL
________________________________
Mr. Tony Cantu, President
Fresno City College
Date:_________________
APPROVED AS TO LEGAL FORM:
________________________________
Gregory Taylor, District Counsel
Date:_________________
City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-387 Agenda Date:10/9/2014 Agenda #:1-D
REPORT TO THE CITY COUNCIL
October 9, 2014
FROM:BRUCE RUDD, City Manager
BY:RENENA SMITH, Assistant City Manager
SUBJECT
Approve lease agreement between the City of Fresno and The Fresno Arts Council for use of the
Historic Water Tower located at Fresno and “O” Street (Council District 3)
RECOMMENDATION
Staff recommends that the City Council approve the lease agreement with The Fresno Arts Council to
operate the Historic Water Tower as an art gallery,gift shop and visitor’s center.City Council
approval authorizes the City Manager and City Attorney to execute the contract effective November
1, 2014.
EXECUTIVE SUMMARY
HandsOn Central California (HandsOn)entered into a Lease Agreement with the City of Fresno on
September 1,2011,to provide visitor’s services at no net cost to the City.HandsOn paid no rent,but
provided all staffing for the Tower and paid all utilities,janitorial and minor maintenance costs for the
Tower.The Lease Agreement has expired and The Fresno Arts Council wishes to continue operating
the Historic Water Tower, under the same terms, as an art gallery, gift shop, and information center.
The Lease Agreement has a term of three (3)years,with two (2)one year extensions and will be
effective November 1,2014.Under the lease terms the City will receive no monetary exchange but
will benefit by having the downtown icon in use with operating costs paid by The Fresno Arts Council.
BACKGROUND
HandsOn Central California,a non-profit agency that provides volunteers to various agencies,
entered into a Lease Agreement with the City on September 1,2011,and has been operating a
Visitor’s Center at no cost to the City.They have been providing tourism-related information and
displaying and selling handmade works of art from local Fresno artists.The lease expired on June
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displaying and selling handmade works of art from local Fresno artists.The lease expired on June
30,2014.A month to month lease has been granted to HandsOn pending final authorization.A
Request for Information (RFI)was opened on August 8,2014 to determine business interest in the
facility. The RFI closed on August 29, 2014 with The Fresno Arts Council as the only respondent.
The City of Fresno and The Fresno Arts Council wishes to enter into a new agreement to continue
operating Historic Water Tower under the same provisions as provided to HandsOn.The Fresno
Arts Council will manage the gallery and daily operations,and work with the many artists who
participate in this program.HandsOn will continue to recruit volunteers to work in the Water Tower
and the Fresno Cultural Arts Rotary Club will provide support to help cover the PG&E expense.
This collaborative will continue to maintain and develop the Visitor’s Center services currently
provided to the City of Fresno.
ENVIRONMENTAL FINDINGS
Staff has performed a preliminary environmental assessment of this project and has determined that
it falls within the Categorical Exemption set forth in CEQA Guidelines 15301/Class 1 which exempts
projects where there is no expansion of existing use because Fresno Arts Council will be operating
the Water Tower on the same terms as the previous operator.Furthermore,Staff has determined
that none of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines,section
15300.2 apply to this project.
LOCAL PREFERENCE
N/A
FISCAL IMPACT
The City will receive no rent from The Fresno Arts Council,however they will pay all operating
expenses,including utilities,janitorial,and minor maintenance.The City will continue to provide
regular janitorial services at the nearby restrooms and surrounding landscape areas.
Attachments:
Historic Water Tower Lease Agreement - The Fresno Arts Council
RFI Response - The Fresno Arts Council
Letters of Support from:
Hands-On
Fresno Cultural Arts Rotary Club
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LEASE AGREEMENT
CITY OF FRESNO HISTORIC WATER TOWER
THIS LEASE AGREEMENT (hereinafter referred to as "Lease"), made and entered
into effective November 1, 2014, (the “Effective Date”), by and between the CITY OF
FRESNO, CALIFORNIA, a municipal corporation, (hereinafter referred to as "City"), and
The FRESNO ARTS COUNCIL, a California nonprofit corporation, hereinafter called
"Tenant."
WITNESSETH
WHEREAS, City owns the property commonly known as Fresno and “O” Streets ,
Fresno, California, (the “Leased Premises”), commonly described as the Historic Water
Tower; and
WHEREAS, The Fresno Arts Council is a nonprofit corporation who proposes to
lease the Historic Water Tower and operate it as an art gallery, gift shop and visitor’s
center;
WHEREAS, the City deems it advantageous to the public to rent the Leased
Premises to Tenant because of the Water Tower’s historical and architectural significance
and the educational opportunities associated therewith.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
CONTAINED HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:
SECTION 1: DESCRIPTION OF LEASED PREMISES. City leases to Tenant “as is,” in its
existing physical condition and without warranty, the area commonly described as the
Historic Water Tower located at Fresno and “O” Street, Fresno, California, for the purpose
of maintaining and operating the Water Tower as a n art gallery, visitor’s center and gift
shop for the benefit of the general public.
SECTION 2: TERM OF LEASE. The Initial Term of this Lease shall be from the Effective
Date through November 1, 2017, with the two one year extensions optional. The parties
understand and agree that, during the term of this Lease, the City will actively market the
Historic Water Tower in an effort to secure a market rate tenant. At the end of the Initial
Term, Tenant shall have a first right of refusal to match the terms of any lease offer
secured through the City’s marketing efforts. City shall provide any such offer to Tenant in
writing not less than thirty (30) days prior to the end of the Initial Term, and Tenant shall
have ten (10) days from receipt thereof to confirm in writing Tenant’s intent t o match the
terms of the offer. In the event that the Water Tower is sold to another party and that party
does not desire to assume the Lease, the City may terminate this Lease upon providing
Tenant with two months’ written notice prior to the date of term ination.
SECTION 3: TERMINATION OF LEASE. Notwithstanding any other termination provisions
existing herein, in the event that Tenant fails to maintain and operate said premises for the
2
principal purposes for which the same are hereby demised, or fails to maintain reasonable
and adequate supervision and maintenance of said premises, or Tenant fails to perform
any provision of this Lease, or to comply with any requirement of law or any requirement
imposed on Tenant or the Leased Premises by any duly author ized governmental agency
or political subdivision, relating to the Tenant’s use or occupancy of the Leased Premises,
and further fails to remedy any such faults or defects within ten (10) days after written
notice to do so from City, then City may elect to terminate and cancel this Lease as to
some or all of the Leased Premises, in the City’s discretion.
SECTION 4: RENT. No rent will be paid by Tenant in recognition of their ongoing financial
investment in the maintenance and upkeep of the facility, and valuable benefit the
operation of the Historic Water Tower Visitor’s Center brings to the community.
SECTION 5: USE OF THE LEASED PREMISES. Tenant shall not use or permit the
Leased Premises or any part thereof, to be used other than for a n art gallery, visitor’s
center and gift shop, and such additional uses as may be approved in advance by City in
writing, provided that such use is consistent with operating and maintaining the Historic
Water Tower as Visitor’s Center for the benefit of the general public. Except as expressly
provided elsewhere in this Lease, programming and all operating costs shall be solely the
responsibility of Tenant. Tenant shall have exclusive responsibility and control of
programming, hiring of staff, establishing hours of operation, and providing written material
for tourism-related purposes. Tenant shall not be permitted to rent the Water Tower to
other entities or individuals as a venue for special events or other functions as a means of
raising funds to support the mission of the Tenant. Tenant shall have the right to post such
signs as are necessary and usual in the conduct of its activities in and upon the Leased
Premises, so long as such signs conform to the regulations of the Fresno Municipal Code.
SECTION 6: REVENUE. Tenant may retain revenues generated by the Leased Premises,
including but not limited to fund-raising revenues, and donations.
SECTION 7: RECORDS. Tenant shall maintain adequate records of all visitors to the
Tower and other activities carried on by it on the Leased Premises. All such records shall
be available for inspection by authorized employees of the City at any reasonable time, and
Tenant shall furnish to City upon request above information concerning any operation or
operations conducted by it on the Leased Premises, including but not limited to attendance
numbers.
SECTION 8: ANNUAL REPORTING. City and Tenant agree to meet at least once
annually to discuss the following items, which Tenant agrees to provide on an annual basis
within 90 days after the close of each annual period:
A. A report of the Leased Premises activities in connection with the operation of the
Leased Premises.
B. A financial statement which includes a balance sheet detailing all assets and
liabilities associated with the Leased Premises, and an income statement detailing
all revenue and expenses during the year for the Water Tower operations.
3
C. Tenant shall provide a list of Board members and contact information annually and
contact information whenever there is a change to membership immediately.
D. A report of membership and ongoing fundraising activities associated with the
Leased Premises.
E. Provide proof of active corporate status.
F. Proof of insurance as required in Section 17 of this Lease.
SECTION 9: UTILITIES. Tenant shall pay for its electrical, heating, and air-conditioning
requirements at the Leased Premises during the term of this Lease. Tenant shall be
responsible for its own telephone and security service. City shall furnish all water for
lavatory and other purposes without charge. City shall supply to Tenant its reasonable
waste disposal requirements by providing a complete and proper arrangement for the
sanitary handling and disposal of all trash, garbage, and refuse without charge.
SECTION 10: ALTERATIONS AND IMPROVEMENTS. Tenant agrees not to make any
alterations or improvements to the Leased Premises without first receiving City’s written
approval thereof. Any contract that Tenant enters into to construct improvements shall
contain insurance, indemnity, release and assignment provisions acceptable to the City.
Except as may be otherwise authorized in writing, any such permanent structural
alterations or improvements shall be and remain the property of the City, subject to
Tenant’s use therefor during the term of this Lease. Upon expiration of the term of this
Lease, or any renewal thereof, or upon the earlier termination thereof, all furnishings and
artifacts placed upon the Leased Premises by Tenant shall, at the option of Tenant,
become the property of Tenant except as otherwise provided by this Lease.
SECTION 11: REPAIRS AND MAINTENANCE. Tenant agrees that it will, at its own cost
and expense, keep the Leased Premises and each and every part thereof, excluding
lavatory, in good condition and repair during the term of this Lease, and make all cosmetic
repairs to the interior of the Leased Premises as the necessity thereof exists, except as
otherwise provided in this Section. City agrees to perform and/or provide the following,
subject to the terms of this Section and subject to available funding to furnish adequate
irrigation water for the upkeep and maintenance of any trees, shrubs and grass within the
leased area;
a. Mow and edge all lawns within the leased area;
b. Trim and fertilize the trees and shrubs located within the leased area and to replace
any trees thereon;
c. Make interior and exterior structural repairs which are necessary for the health,
welfare and safety of the public as determined by the City, except as otherwise set
forth herein;
d. Maintain exterior lighting; and
e. Make all major repairs to plumbing, heating, furnace and air-conditioner.
Tenant shall, at all times, cooperate with City to keep the Leased Premises in a neat, clean
and orderly condition, and shall prevent the accumulation of an d shall maintain the Leased
Premises free from any refuse or waste materials which might constitute a fire hazard or
public or private nuisance. Tenant shall also make all structural and non-structural repairs
4
occasioned by the fault of Tenant or its agen ts. Tenant agrees to provide for all necessary
maintenance inside the Water Tower and shall also furnish necessary janitorial care
therein.
City’s obligation to perform any obligation under this Lease shall be contingent upon the
appropriation of funds by the City’s governing body sufficient to provide such services or
payment during City’s respective fiscal year (July 1 through June 30). The performance of
obligations shall be funded only from current funds, budgeted and appropriated, on deposit
in a reserve fund, or otherwise legally available for funding such services or other Leased
Premises costs. This Lease shall not create an immediate debt for funding all service
obligations throughout the term of the Lease, and is not a pledge of City’s full faith and
credit. During its annual budgeting process, City shall consider, and will use best efforts to
appropriate funding to meet its estimated costs under this Lease for the fiscal year under
consideration.
SECTION 12: GIFTS TO CITY. During the duration of this Lease, persons may elect to
give certain items to the City or Tenant for display in the Water Tower. If any such item is
given to the City, Tenant shall permit and cooperate in the display of such items. City and
Tenant shall exercise reasonable and good faith judgment in accepting only those items
that are consistent with the theme of the Water Tower, Visitor’s Center and for which there
is adequate space. City and Tenant shall consult with one another prior to acceptance of
any such gift.
SECTION 13: SURRENDER. At the expiration of the life of this Lease or any prior
termination thereof, Tenant agrees to quietly and peacefully surrender possession of said
Leased Premises to the City in a neat and clean condition. City will not be responsible for
any equipment and/or supplies left on the Leased Premises.
SECTION 14: DEFAULT. If any default is made in the performance of or compliance with
any other term or condition hereof, this Lease, at the option of City or Tenant, shall
terminate and be f orfeited. City or Tenant shall give ten (10) days written notice of any
default or breach. If, within ten (10) days of receipt of such notice, the default or breach has
not been remedied to the City’s or Tenant’s satisfaction or City or Tenant has failed to take
action reasonably likely to effect such correction within a reasonable time, then this Lease
shall be terminated and forfeited.
SECTION 15: ABANDONMENT. If at any time during the term of this Lease, Tenant
abandons the Leased Premises or any part thereof, City may, at its option, enter the
Leased Premises by any means without being liable for any prosecution therefore and
without becoming liable to Tenant for damages or for any payment of any kind whatever,
and may, at its discretion, relet the Leased Premises, or any part thereof, for the whole or
any part of the then unexpired term, and may receive and collect all rent payable by virtue
of such reletting. If City’s right of re-entry is exercised following abandonment of the
Leased Premises by Tenant, then City may consider any personal property belonging to
Tenant and left on the Leased Premises to also have been abandoned, in which case City
5
may dispose of all such personal property in any manner City shall deem proper and is
hereby relieved of all liability for doing so.
SECTION 16: DESTRUCTION OF LEASED PREMISES. If, during the term of this Lease,
the Water Tower or a substantial portion thereof, shall be destroyed by fire or the elements
or any other cause, then this Lease shall terminat e at the option of either party and
become null and void from the date of notice of termination. In the event the exercise of
this option by either party, Tenant shall immediately surrender the premises to City and this
Lease shall thereupon terminate.
SECTION 17: INDEMNIFICATION AND INSURANCE Notwithstanding any provision of the
Agreement to the contrary, and without limiting Tenant’s indemnification, Tenant shall
secure and maintain, at its sole cost and expense, during the term of this Agreement, a
comprehensive general liability and property damage policy using an occurrence policy
form with combined single limits of not less than one million dollars ($1,000,000.00), with
no aggregate limit.
The City shall be named as an additional insured on the policies by endorsement that shall
be attached to this Agreement as proof of insurance. The insurance provided under
Tenant’s policies shall be primary, and any insurance maintained by the City shall apply, in
excess of, and not contributory with, the insuranc e required under the terms of this
Agreement.
Tenant shall indemnify, defend and hold harmless the City, its officers, agents
employees and members of its governing board, from and against any and all claims,
demands, losses, judgments, liabilities, causes of action and expense, including attorney
fees and costs, of any kind or nature the District may sustain or incur or which may be
imposed upon it for injury to or death of any person, or damage to property, or for any other
act(s) of commission or omission arising out of or in any manner related to or connected
with Tenant’s (including it officers, agents and employees) performance of or failure to
perform the terms of this Agreement. Tenant’s occupancy, maintenance and use of the
Leased Premises shall be at Tenant’s sole risk and expense, Tenant accepts all risk
relating to Tenant’s: (i) occupancy, maintenance and/or use of the Leased Premises; and
(ii) the performance of, or failure to perform, this Lease. City shall not be liable to Tenant
for, and Tenant hereby waives and releases City from, any and all loss, liability, fines,
penalties, forfeitures, costs or damages resulting from or attributable to an occurrence on
or about the Leased Premises in any way related to the Tenant’s operations and activit ies.
Tenant shall immediately notify City of any occurrence on the Lease Premises resulting in
injury or death to any person or damage to property of any person.
The provisions of this Section shall survive termination or expiration of this Lease.
Tenant’s Insurance: Throughout the life of this Lease, Tenant shall pay for and
maintain in full force and effect all policies of insurance required hereunder with an
insurance company(ies) either (i) admitted by the California Insurance Commissioner to do
business in the State of California and rated not less than "A - VII" in Best's Insurance
Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance
are required:
6
(i) COMMERCIAL GENERAL LIABILITY insurance which shall be at
least as broad as the most current version of Insurance Services Offices (ISO)
Commercial General Liability Coverage Form CG 00 01 and include insurance for
“bodily injury,” “property damage” and “personal and advertising injury” with
coverage for premises and operation, products and completed operations, and
contractual liability with limits of liability of not less than $1,000,000 per o ccurrence
and $2,000,000 aggregate for bodily injury and property damage; $1,000,000 per
occurrence for personal and a dvertising injury; and $2,000,000 aggregate for
products and completed operations.
(ii) LIQUOR LIABILITY insurance which shall be at least as broad as the
most current version of Insurance Services Office (ISO) Liquor Liability Coverage
Form CG 00 33, and include insurance for “bodily injury,” and “property damage”
with limits of liability of not less than $1,000,000 per occurrence and $2,000,000
aggregate for bodily injury and property damage. Only required if alcoholic
beverages are to be sold, served or furnished on the Leased Premises.
(iii) WORKERS’ COMPENSATION insurance as required under the
California Labor Code.
(iii) EMPLOYERS’ LIABILITY insurance with minimum limits of $1,000,000
each accident, $1,000,000 disease policy limit and $1,000,00 0 disease each
employee.
Tenant shall be responsible for payment of any deductibles contained in any
insurance policies required hereunder and Tenant shall also be responsible for payment of
any self-insured retentions.
All policies of insurance required hereunder shall be endorsed to provide that the coverage
shall not be cancelled, non-renewed, reduced in coverage or in limits except after 30
calendar day written notice has been given to City. Upon issuance by the insurer, broker,
or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits,
Tenant shall furnish City with a new certificate and applicable endorsements for such
policy(ies). In the event any policy is due to expire during the work to be performed for
City, Tenant shall provide a new certificate, and applicable endorsements, evidencing
renewal of such policy not less than 15 calendar days prior to the expiration date of the
expiring policy.
The General Liability and Liquor Liability insurance policies shall be written on an
occurrence form and shall name City, its officers, officials, agents, employees and
volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so
Tenant’s insurance shall be primary and no contribution shall be req uired of City. Any
Workers’ Compensation insurance policy shall contain a waiver of subrogation as to City,
its officers, officials, agents, employees and volunteers. Tenant shall have furnished City
with the certificate(s) and applicable endorsements fo r ALL required insurance prior to
City’s execution of the Lease.
If at any time during the life of the Lease or any extension, Tenant fails to maintain any
required insurance in full force and effect, all Tenant’s activities under this Lease shall be
7
discontinued immediately, until notice is received by City that the required insurance has
been restored to full force and effect and that the premiums therefore have been paid for a
period satisfactory to City. Any failure to maintain the required insurance shall be sufficient
cause for City to terminate this Lease. No action taken by City pursuant to this section
shall in any way relieve Tenant of its responsibilities under this Lease.
The fact that insurance is obtained by Tenant shall not be deemed t o release or diminish
the liability of Tenant, including, without limitation, liability under the indemnity provisions of
this Lease. The duty to indemnify City and its officers, officials, employees, agents and
volunteers shall apply to all claims and liability regardless of whether any insurance policies
are applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by Tenant. Approval or purchase of any insurance contracts
or policies shall in no way relieve from liability nor limit the liability of Tenant, or any of its
board, officers, employees, agents, volunteers, invitees, suppliers, vendors, consultants,
contractors or subcontractors.
Upon request of City, Tenant shall immediately furnish City with a complete copy of any
insurance policy required under this Lease, including all endorsements, with said copy
certified by the underwriter to be a true and correct copy of the original policy. This
requirement shall survive expiration or termination of this Lease.
Tenant and its insurers hereby waives all rights of recovery against City and its officers,
officials, employees, agents and volunteers, on account of injury, loss by or damage to the
Tenant or any of its board, officers, employees, agents, volunteers, invitees, suppliers,
vendors, consultants, contractors or subcontractors, or its property or the property of others
under its care, custody and control. Tenant shall give notice to its insurers that this waiver
of subrogation is contained in this Lease. This requirement shall survive termination or
expiration of this Lease.
SECTION 18: OBSERVATION OF GOVERNMENTAL REGULATIONS. Tenant agrees,
during the life of this Lease, to comply with and conform to all rules, regulation s and
ordinances of the City of Fresno and County of Fresno and all laws of the State of
California and the United States, and all orders of any governmental agency which shall be
applicable to Tenant’s use of the facilities or to the Tenant’s use of the s aid Leased
Premises or the business thereon being conducted by Tenant. Nothing in this Lease shall
be construed as a limitation on the City’s police power.
Tenant acknowledges that Tenant, not the City, is responsible for determining applicability
of and complying with all local, state and federal laws. The City makes no express or
implied representation as to the applicability or inapplicability of any such laws to this
Lease or the parties’ respective rights or obligations hereunder.
SECTION 19: PROPERTY TAXES. Tenant acknowledges that any possessory property
interest arising by entering this Lease may be subject to property taxation and that Tenant
shall pay and property taxes levied on such interest. NOTIFICATION TO TENANT
PURSUANT TO CALIFORNIA REVENUE AND TAXATION CODE SECTION 107.6: A
8
POSSESSORY INTEREST SUBJECT TO PROPERTY TAXATION MAY BE CREATED
BY ENTERING INTO THIS LEASE AND TENANT MAY BE SUBJECT TO THE PAYMENT
OF PROPERTY TAXES LEVIED ON SUCH INTEREST.
SECTION 20: CONDITIONS PRECEDENT. Prior to the City’s execution of this Lease,
Tenant shall provide to City current proof of its good corporate standing with the California
Secretary of State, and proof of its current IRS section 501(c)(3) status.
SECTION 21: INSPECTION BY THE CITY. The City or any of its authorized officers and
employees shall, at all reasonable times, have the right to enter upon the Leased
Premises, either in person or by nominee, for the purpose of inspecting said Leased
Premises to ascertain that the Leased Premises and the covenants of this Lease are being
kept, observed and performed.
SECTION 22: RIGHT TO ASSIGN AND SUBLET. Tenant shall not make any assignment
or sub-lease in whole or in part of this Lease without first receiving the written consent and
approval of the City. Consent to one or more assignment or sub-lease shall not constitute a
waiver of the City’s rights under this section for further or other assignments or sub-leases.
SECTION 23: SUCCESSORS AND ASSIGNS BOUND. This Lease shall extend to and
bind the heirs, executors, administrators, and assigns of the respective parties hereto.
SECTION 24: MISCELLANEOUS.
A. This Lease shall be construed and enforced in accordance with the laws of the
State of California and venue shall be in Fresno County.
B. The City represents that it has the right to lease the Leased Premises described
herein, together with all, rights, licenses, services and privileges herein granted and
has power and authority to enter into this Lease by virtue of and under its Charter
and all applicable laws. The Tenant represents and warrants that it is a duly
authorized and existing California not for profit corporation, in good standing; that it
shall remain in good standing, and its authority to enter this Lease and its signatory
is authorized to execute.
C. No waiver by the City or the Tenant of any breach of any provision of this Lease
shall be deemed for any purpose to be a waiver of any breach of any other provision
hereof or of a continuing or subsequent breach of the same provision.
D. In the event any covenant, condition or provision herein contained is held to be
invalid by final judgment of any Court of competent jurisdiction, the invalidity of such
covenant, condition or provision shall not in any way affect any of the other
covenants, conditions or provisions herein contained.
E. If either party is required to commence any proceeding or legal action to enforce or
interpret any term, covenant or condition of this Lease, the prevailing party in such
proceeding or action shall be entitled to recover from the other party its reasonable
attorney's fees and legal expenses.
F. Upon execution of this Lease, all other existing leases between City and Tenant for
the Leased Premises shall terminate.
9
G. All notices required herein shall be in writing and shall be given by registered or
certified mail, postage prepaid, and addressed to the City or Tenant at their
respective addresses as provided on the signature page of this Lease.
H. It is the intention of the parties hereto to act reasonably in fulfilling their respective
obligations and exercising their authority under this Lease.
I. In pursuit of this Lease the parties shall act in an independent capacity and not as
an officer, agent, servant, employee, joint venturer, partner, or associate of the
other party.
J. This Lease includes any exhibits and attachments referenced and incorporated in it.
This Lease contains the entire agreement between the parties relating to the
transaction contemplated by this Lease and supersedes all prior or
contemporaneous agreements, understanding, representation and statements,
whether oral or written.
K. This Lease may be modified only by a written amendment signed by the parties’
respective authorized agent.
L. Venue for any dispute arising under or based upon this contract shall be in a
competent court with jurisdiction located in the County of Fresno.
The rest of this page is intentionally left blank.
Signatures appear on the next page.
10
IN WITNESS WHEREOF, the parties hereto have set their hands the day first
above written.
CITY OF FRESNO,
a Municipal Corporation
FRESNO ARTS COUNCIL,
a California Non-Profit Corporation
By: Renena Smith
Assistant City Manager
By: Lilia Gonzalez Chavez
Title: Executive Director
ATTEST:
Yvonne Spence, C.M.C.
City Clerk ADDRESS OF CITY
City of Fresno
City Manager’s Office
By: Deputy
2600 Fresno Street
Fresno, CA 93721
APPROVED AS TO FORM: ADDRESS OF TENANT
Douglas T. Sloan 245 Van Ness Avenue
City Attorney
_____________________________
By: Katherine B. Doerr Date
Supervising Deputy
Fresno CA 93721
City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-409 Agenda Date:10/9/2014 Agenda #:
REPORT TO THE CITY COUNCIL
October 9, 2014
FROM:JERRY P. DYER, Chief of Police
Police Department
BY:ANDREW HALL, Captain
Police Department
SUBJECT
Actions pertaining to the establishment of a non-exclusive towing operation franchise for certain
towing operators to participate in the Police Department’s tow car rotation list
1.RESOLUTION - Of intention to establish non-exclusive towing operation franchise and setting
a public hearing on the matter and a final vote on October 23, 2014 at 10:00 a.m.
2.ORDINANCE (For Introduction) - Granting to towing operators a non-exclusive franchise to
participate in the Fresno Police Department’s tow car rotation list in preparation for a public
hearing on October 23, 2014 for a final vote to approve the non-exclusive towing operation
franchise
3.ORDINANCE (For Introduction) - amending Article 17, Chapter 9 of the Fresno Municipal
Code relating to tow trucks
RECOMMENDATIONS
It is recommended that Council authorize the Chief of Police to execute a three-year Non-
Exclusive Franchise Tow Agreement (the “Agreement”) with several local tow operators for the
towing and storage of vehicles impounded by the Fresno Police Department. It is also
recommended that the Council amend Article 17, Chapter 9 of the Fresno Municipal Code
(“FMC”) as it relates to tow trucks.
EXECUTIVE SUMMARY
This Agreement with the tow operators will replace the existing non-exclusive franchise tow
agreement which expires on December 27,2014.This Agreement contains subtle changes,
including modification of the provision related to changes in ownership or control of the tow
operators.Such change now enables transfer of ownership/control to “immediate family
members”as defined in FMC section 3-101(e).The other substantial change to the Agreement
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modifies a tow operator’s appeal rights for major violations of the Agreement.
To facilitate such changes to the Agreement,Article 17,Chapter 9 of the FMC must be amended.
Additional minor amendments to Article 17,Chapter 9 of the FMC have also been proposed for
ease of reading comprehension.
The proposed Agreement and changes to Article 17,Chapter 9 of the FMC have been reviewed
and approved by the City Attorney’s office.The insurance requirements and indemnification
provisions have been reviewed and approved by the City’s Risk Manager.
BACKGROUND
This Agreement closely mirrors our previous non-exclusive tow franchise agreement that has been in
effect for the last three years.This Agreement will continue to allow our local tow companies to
release impounded vehicles directly from the tow yard seven days a week.The tow operators will
continue to collect the City’s administrative fees from the registered owners,or pay the administrative
fees for those vehicles not picked up by their owners.
The Agreement also continues to mandate that tow companies utilize Dispatch and Towing Software
(“DTS”).DTS allows the Police Department to manage,control,and audit our contracted tow
companies.This software provides an internet portal to assist citizens with locating their impounded
vehicles and allows them to view an invoice associated with the impounded vehicle before going to
the tow yard.DTS has been extremely beneficial in providing oversight of our tow operators and
tracking vehicles that have been impounded by the Police Department.
In the prior non-exclusive franchise tow agreement,tow operators who were facing a suspension for
violations of the agreement were required to appeal through the City of Fresno’s administrative
hearing officer,which often led to lengthy delays in having their appeal heard.During these delays,
tow operators were not allowed to tow for the City of Fresno,which placed them in undue financial
hardship.Under this Agreement,the tow operators waive their appeal rights for minor violations
involving potential suspensions of thirty (30)days or less.Such appeals would instead be heard by
the Chief of Police or his/her designee.For suspensions in excess of thirty (30)days,or terminations
of the agreement,the tow operators retain the right for their appeals to be heard by the City of
Fresno’s administrative hearing officer.
Many of the tow operators providing towing service for the City of Fresno have been operating their
business in excess of 20 years.The vast majority of our tow operators are small business owners
and would like the ability to transfer control of their business to an immediate family member upon
retirement or death.The current ordinance does not allow for any change of ownership/control.The
proposed changes to Article 17,Chapter 9 of the FMC allow these business owners to effectively
transfer ownership/control to an immediate family member as defined by the code,subject to prior
written approval by the Chief of Police.
ENVIRONMENTAL FINDINGS
Not applicable since the ordinance and agreement do not constitute a project.
LOCAL PREFERENCE
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Not applicable since no goods or services are being procured by the City.
FISCAL IMPACT
There is no impact to the General Fund.
Attachments: Resolution of Intent with Non-exclusive Franchise Tow Agreement
Fresno Municipal Code Article 17, Chapter 9 with proposed changes
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Date Adopted:
Date Approved:
Effective Date:
City Attorney Approval: ______ Resolution No.
____________
RESOLUTION NO. ____________
A RESOLUTION OF INTENTION BY THE COUNCIL OF
THE CITY OF FRESNO, CALIFORNIA, TO ESTABLISH
NON-EXCLUSIVE TOWING OPERATION FRANCHISES
AND SET A DATE FOR PUBLIC HEARING
RESOLVED, BY THE City Council of the City of Fresno, California, that:
WHEREAS, pursuant to Article XIII of the Charter of the City of Fresno,
proceedings for the establishment of non -exclusive towing franchises may be instituted
by the legislative body by Resolution of Intention to adopt an Ordinance granting the
franchises; and
WHEREAS, this Council, as a legislative body of the City of Fresno (“City”),
hereby determines that it is in the best interest of the City that this Council insti tute
proceedings for the establishment of non-exclusive towing franchises pursuant to the
Charter in order to facilitate the placement of towing operators on the City of Fresno
Police Department’s Tow Truck Rotation List; and
WHEREAS, in the event the non-exclusive towing franchises are established, it is
the intention of the City to place each of these non -exclusive franchise towing operators
on a Rotation List to facilitate and assist the City in towing vehicles consistent with
Article 17, Chapter 9 of the Fresno Municipal Code (“Code”).
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Fresno as
follows:
1. The above recitals are true and correct.
2. Numerous non-exclusive towing franchises are proposed to be
established under the terms of Article XIII, “Franchises” of the City
Charter.
3. The City Council hereby finds and determines that the grant of non -
exclusive towing franchise for Police generated tows to those towing
operators identified on Exhibit “A,” attached hereto and incorporated
herein, is in the public interest. The franchises granted herein are
awarded, for a period of 3 years from the date of final passage of the
franchise Ordinance, provided that the provisions of this Resolution, Non -
Exclusive Franchise Agreement, and the Code have been agreed to in
writing by the Grantee and the Grantee has executed the Non -Exclusive
Franchise Agreement and the City received and approved the insurance
and documents required by such agreement.
4. The grant of these non-exclusive franchises will be expressly subject to
the provisions of Article 17, Chapter 9 of the Code and compliance with all
terms and conditions of the Non-Exclusive Franchise Agreement and
performance standards adopted by the City Police Chief.
5. All Grantees shall during the term of their franchise pay to the City the
franchise fee set forth from time-to-time by Council Resolution, as well as
all other applicable taxes, fees and charges payable by the Towing
Operators.
6. The Police Chief is hereby authorized to adopt rules for towing operators
regarding standards for service, hours of operation, etc., to insure that the
purposes of the grant of these non-exclusive franchises are archived.
7. The form of the Non-Exclusive Franchise Agreement attached hereto as
Exhibit “B” is incorporated by reference and is hereby approved. The
Police Chief is authorized to execute the same on behalf of the City. The
Police Chief is further authorized to execute amendments to such Non -
Exclusive Franchise Agreement consistent with the purpose and intent of
the franchise ordinance, subject to review and approval by the City
Attorney’s Office.
8. A public hearing on the granting of these non -exclusive franchises shall be
held at 10:00 a.m., or as soon thereafter as practical on Thursday,
October 23, 2014, at the regular meeting of the City Council, Fresno City
Hall, 2600 Fresno Street, Fresno, California 93721. The hearing may be
continued from time to time as permitted by the Code.
9. At the time and place set forth in this Resolution for the public hearing, any
interested person may appear and be heard, and the testimony of all
interested persons for or against the granting of non-exclusive towing
franchises will be heard and considered. Any protest may be made either
orally or in writing. All written protests shall be filed with the City Cl erk on
or before the time fixed for the public hearing, and written protest may be
withdrawn in writing at any time prior to the conclusion of the hearing.
10. The City Clerk is hereby directed to publish a Notice (“Notice”) of the
hearing as defined in Section 1301 of the Charter of the City of Fresno, in
the form required by the Charter, within fifteen (15) days of the passage of
this Resolution, in a newspaper of general circulation within the City. Said
Notice shall be published at least ten (10) days prior to the date of the
hearing.
11. At the conclusion of the hearing, if the Council determines to grant
non-exclusive towing franchises, it shall adopt an ordinance granting the
franchises on the terms and conditions specified in this Resolution.
* * * * * * * * * * * * * *
STATE OF CALIFORNIA )
COUNTY OF FRESNO ) ss.
CITY OF FRESNO )
I, YVONNE SPENCE, City Clerk of the City of Fresno, certify that the foregoing
resolution was adopted by the Council of the City of Fresno, at a regular meeting held
on the day of October, 2014.
AYES :
NOES :
ABSENT :
ABSTAIN :
Mayor Approval: , 2014
Mayor Approval/No Return: , 2014
Mayor Veto: , 2014
Council Override Vote: , 2014
YVONNE SPENCE, CMC
City Clerk
BY:
Deputy
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
BY:
Mary Anne B. Tooke [Date]
Deputy
Attachments: Exhibit A
Exhibit B
MAT:pn[65575pn/RESO] Rev. 09-03-14
EXHIBIT “A”
EXHIBIT “A”
FPD NO PREFERENCE ROTATION TOW LIST
QUICK REFERENCE
(Reminder *Have vehicle owners call office FIRST to find out exact storage location)
Name Storage Address Zip
Code
Phone FAX Owner
76 Towing 1805 N. Lafayette #102 93705 486-7033 486-8230 Richard McCracken
A&R Towing 3282 W. Lansing Way 93722 225-9364 226-4924 Alice Frantzich
Ace Towing 1420 N. Hughes
*PO Box 26645
93728
93729
222-4236 442-0448 Ace Avedisian
Action Towing 2822 E. California 93721 498-9999 498-9949 John Decicco
Ark Towing 1420 N. Hughes
*4770 N Ila
93728
93705
222-7609 224-0709 Craig Frantzich
B&K Towing 3208 W. Lansing 93722 226-4233 226-0653 Janice Barnes
Bauers Auto 103 N. Thorne 93706 233-9121 233-9046 Ed Mason/
Sharon Bauers-Mason
Budget Towing 4066 E. Church 93725 283-2090 268-1015 Donald Bartlett
Bulldog Towing 1805 N. Lafayette #101 93705 486-7038 486-8230 Kevin McCracken
C&K Towing 3229 W. Lansing Way
*PO Box 9637
93722
93793
226-0140 243-9860 Ryan Reeves
Custom Towing 1420 N. Hughes
*42485 Ranger Circle
Way – Coarsegold
93728
93614
287-5133 486-0100 Kenneth Johnson
D&B Towing 4619 E. White
*5375 N. McCall, Clovis
93702
93619
255-4981 297-7778 Robert Barnes
D&K Towing 4568 E. Home 93703 251-8270 255-9278 David Boyko
Dennis Towing 1801 Sacramento 93721 226-8219 268-2264 Dennis Avedisian
Discount Towing 1326 N. Jackson 93703 229-2700 455-1824 Roy Johnson
Econo Towing 1523 N. Maple 93703 456-9310 456-9314 Robert Kodman
Ed-Nic Towing 4533 E. Floradora 93702 252-2541 252-4629 Horace (Jay) Bruno
Fortney Towing 2501 N. Business Park 93727 292-1114 292-9535 Debra Fortney
Frontier Auto 4784 E. Carmen 93703 974-0465 452-1575 Chris Clark
Herndon Towing 5030 E. Jensen 93725 431-3334 431-5535 James D. Deatherage
Johnson Bros 2622 W. McKinley 93703 226-0629 268-0755 Shaun Johnson
Kevin’s Towing 3223 W. Saginaw 93722 227-7930 227-7940 Kevin Barnes
Lamona Towing 2740 E. Jensen 93706 237-9159 497-6640 Doug Dunbar
Mike’s Towing 4549 E. Pine 93703 251-2361 251-2948 Mike Dockstader
Nelly’s Towing 631 N. Maple 93702 273-6619 237-1467 Juan Flores
Ray’s Towing 1463 N. Maple 93703 251-5244 252-2228 Ray & Monte Evans
RR-M Reyna 1811 E. Hedges 93703 485-8236 485-6233 Raul Reyna
Robinsons Towing 1830 E. University 93703 233-9185 266-2541 Larry Andres
RR-M Reyna 4625 N. Golden State 93722 275-4823 275-9985 Raul and Sue Romo
Rons Towing 3252 W. Lansing Way 93722 277-9364 226-4925 Ron Frantzich
Steve’s Towing 2005 W. Hedges 93728 224-1370 264-4625 Miguel A Valdovinos
Thrifty Towing 3456 E. Church 93725 259-3663 353-2446 Robert Bartlett
Tips Automotive 2914 Phillip, Clovis 93612 227-4840 346-1848 Jeff Banks
Tow City 1380 N. Sierra Vista 93703 260-6416 251-6771 Rae Burton
Walt’s Towing 1820 E. University 93703 307-2804 233-8843 Tiffany Lawley
* mailing address
EXHIBIT “A”
EXHIBIT “B”
CITY OF FRESNO
NON-EXCLUSIVE FRANCHISE TOW AGREEMENT
FOR FRESNO POLICE DEPARTMENT
This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the
“effective Date” set forth below, at Fresno, California, between the City of Fresno, a
municipal corporation (City) and [Tow Operator Name], [Legal Identity] (the Tow
Operator).
This Agreement, including all attachments, contains rules and regulations that a tow
company agrees to comply with in order to participate in the tow operations of the City
of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program
(Tow Program) is voluntary. Compliance with all of the terms and conditions of the
Agreement is mandatory for tow companies participating in the Tow Program. A Tow
Operator, by agreeing to participate in the Tow Program, is not acting as an agent for
FPD or City when performing services under this Agreement.
1. Governing Law and Venue
This Agreement shall be governed by, and construed enforced in accordance with, the
laws of the State of California excluding, however, any conflict of laws rule which
would apply the law of another jurisdiction. Venue for purposes of the filing of any
action regarding the enforcement or interpretation of this Agreement and any rights
and duties hereunder shall be the County of Fresno, California.
2. Entire Agreement
This Agreement, its attachments and exhibits, when accepted by the Tow Operator
either in writing or commencement of performance hereunder, contains the entire
Agreement between the parties with respect to the matters herein, and there are no
restrictions, promises, warranties or undertakings other than those set forth herein. No
exceptions, alternatives, substitutes or revisions are valid or binding on City unless
authorized by City in writing.
3. Amendments
No alteration or variation of the terms of this Agreement shall be valid unless made in
writing and signed by the parties; no oral understanding or agreement not incorporated
herein shall be binding on either of the parties; and no exceptions, alternatives,
substitutes or revisions are valid or binding on City unless authorized by City in writing.
4. Assignment or Sub Contracting
The terms, covenants, and conditions contained herein shall apply to the parties.
Furthermore, neither the performance of this Agreement nor any portion thereof may
be assigned or subcontracted by Tow Operator without the express written consent of
City. Any attempt by Tow Operator to assign or subcontract the performance or any
portion of this Agreement without the express written consent of City shall be invalid
and shall constitute a breach of this Agreement.
EXHIBIT “B”
2
5. Patent/Copyright Materials/Proprietary Infringement
Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely
responsible for obtaining a license or other authorization to use any patented or
copyrighted materials in the performance of this Agreement. Tow Operator war rants
that any Software as modified through services provided hereunder will not infringe
upon or violate any patent, proprietary right, or trade secret right of any third party.
Tow Operator agrees that, in accordance with the more specific requirement b elow, it
shall indemnify, defend and hold City and City Indemnitees harmless from any and all
such claims and be responsible for payment of all costs, damages, penalties and
expenses related to or arising from such claim(s), including, but not limited to,
attorney’s fees, costs and expenses.
6. Non-Discrimination
In the performance of this Agreement, Tow Operator agrees that it will comply with the
requirements of section 1735 of the California Labor Code and not engage nor permit
any Tow Operators to engage in discrimination in employment of persons because of
the race, religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, or sex of such persons. Tow Operator
acknowledges that a violation of this provision shall subject Tow Operator to all the
penalties imposed for a violation of anti-discrimination law or regulation, including but
not limited to, section 1720 et seq. of the California Labor Code.
7. Termination
In addition to any other remedies or rights it may have by law, City has the right to
terminate this Agreement without penalty immediately with cause and either party may
terminate after thirty (30) days written notice without cause, unless otherwise
specified. Cause shall be defined as any breach of this Agreement or any
misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its
right to terminate the Agreement shall relieve City of all further obligation.
8. Consent to Breach Not Waiver
No term or provision of this Agreement shall be deemed waived and no breach
excused, unless such waiver or consent shall be in writing and signed by the party
claimed to have waived or consented. Any consent by any party to, or waiver of, a
breach by the other, whether express or implied, shall not constitute consent to, waiver
of, or excuse for any other different or subsequent breach.
9. Remedies Not Exclusive
The remedies for breach set forth in this Agreement are cumulative as to one another
and as to any other provided by law, rather than exclusive; and the expression of
certain remedies in this Agreement does not preclude resort by either party to any
other remedies provided by law.
10. Independent Tow Operator
Tow Operator shall be considered an indep endent Tow Operator and neither Tow
Operator, its employees nor anyone working under Tow Operator shall be considered
an agent or an employee of City. Neither Tow Operator, its employees nor anyone
working under Tow Operator, shall qualify for workers’ compensation or other fringe
benefits of any kind through City.
EXHIBIT “B”
3
11. Performance
Tow Operator shall perform all work under this Agreement, taking necessary steps and
precautions to perform the work to City’s satisfaction. Tow Operator shall be
responsible for the professional quality, technical assurance, timely completion, and
coordination of all documentation and other goods/services furnished by Tow Operator
under this Agreement. Tow Operator shall: perform all work diligently, carefully, and
in a good and workman-like manner; furnish all labor, supervision, machinery,
equipment, materials, and supplies necessary therefore; at its sole expense obtain and
maintain all permits and licenses required by public authorities, including those of City
required in its governmental capacity, in connection with performance of the work; and,
if permitted to subcontract, be fully responsible for all work performed by sub -Tow
Operators.
12. Indemnification
A) Tow Operator shall indemnify, hold harmless and defend City and each of its
officers, officials, employees, agents and authorized volunteers from any
and all loss, liability, fines, penalties, forfeitures, costs and damages
(whether in contract, tort or strict liability, including but not limited to personal
injury, death at any time and property damage) incurred by City, Tow
Operator, or any other person, and from any and all claims, demands and
actions in law or equity (including attorney’s fees and litigation expenses),
arising or alleged to have arisen dire ctly or indirectly out of performance of
this Agreement. Tow Operator's obligations under the preceding sentence
shall apply regardless of whether City or any of its officers, officials,
employees, agents or authorized volunteers are negligent, but shall not
apply to any loss, liability, fines, penalties, forfeitures, costs or damages
caused solely by the gross negligence, or caused by the willful misconduct,
of City or any of its officers, officials, employees, agents or authorized
volunteers.
B) If Tow Operator should subcontract all or any portion of the work to be
performed under this Agreement, Tow Operator shall require each
subcontractor to indemnify, hold harmless and defend City and each of its
officers, officials, employees, agents and authorized volunteers in
accordance with the terms of the preceding paragraph.
C) This section shall survive termination or expiration of this Agreement.
13. Insurance
A) Throughout the life of this Agreement, Tow Operator shall pay for and
maintain in full force and effect all policies of insurance required hereunder
with an insurance company(ies) either (i) admitted by the California
Insurance Commissioner to do business in the State of California and rated
not less than “A-VII” in Best's Insurance Rating Guide, or (ii) authorized by
City’s Risk Manager. The following policies of insurance are required:
1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the
most current version of Insurance Services Office (ISO) Commercial
EXHIBIT “B”
4
General Liability Coverage Form CG 00 01 and include insurance for
“bodily injury,” “property damage” and “personal and advertising injury”
with coverage for premises and operations, products and completed
operations, and contractual liability (including, without limitation,
indemnity obligations under the Agreement) with limits of liability of not
less than $1,000,000 per occurrence for bodily injury and property
damage, $1,000,000 per occurrence for personal and advertising injury
and $2,000,000 aggregate for products and comple ted operations and
$2,000,000 general aggregate.
2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include
coverage for vehicles in the care, custody, and control of the Tow
Operator with limits of liability of not less than $120,000 per occurrence
for property damage.
3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on
the most current version of Insurance Service Office (ISO) Business
Auto Coverage Form CA 00 01, and include coverage for all owned,
hired, and non-owned automobiles or other licensed vehicles (Code 1-
Any Auto) with limits of not less than $1,000,000 per accident for bodily
injury and property damage.
4) ON-HOOK/CARGO insurance which shall include coverage for
vehicles in tow with limits of liability based on the size of the tow truck,
which are as follows:
a) Class A/B tow truck…………………………$120,000
b) Class C tow truck……………………………$200,000
c) Class D tow truck……………………………$300,000
5) WORKERS’ COMPENSATION insurance as required under the California
Labor Code and EMPLOYERS’ LIABILITY insurance with minimum limits of
$1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000
disease each employee.
B) Tow Operator shall be responsible for payment of any deductibles contained
in any insurance policies required hereunder a nd Tow Operator shall also be
responsible for payment of any self-insured retentions. Any deductibles or
self-insured retentions must be declared to on the Certificate of Insurance
and approved by the City’s Risk Manager or his/her designee. At the optio n
of the City’s Risk Manager, or his/her designee, either:
1) The insurer shall reduce or eliminate such deductibles or self -insured
retention as respects City, its officers, officials, employees, agents and
volunteers; or
2) Tow Operation shall provide a financial guarantee, satisfactory to City’s
Risk Manager, or his/her designee, guaranteeing payment of losses
and related investigations, claim administration and defense expenses.
EXHIBIT “B”
5
At no time shall City be responsible for the payment of any deductibles
or self-insured retentions.
C) The above described policies of insurance shall be endorsed to provide an
unrestricted thirty (30) calendar days written notice in favor of City of policy
cancellation, change or reduction of coverage, except for the Workers’
Compensation policy which shall provide ten (10) calendars day written
notice of such cancellation, change or reduction of coverage. In the event
any policies are due to expire during the term of this Agreement, Tow
Operator shall provide a new certificate and all applicable endorsements
evidencing renewal of such policy prior to the expiration date of the expiring
policy(ies) to the Chief of Police, or his/her designee, and the City’s Risk
Division. Upon issuance by the insurer, broker, or agent of a notice of
cancellation, change or reduction in coverage, Tow Operator shall file with
the Chief of Police, or his/her designee, and the City’s Risk Division, a new
certificate and all applicable endorsements for such policy(ies).
D) The General Liability, Automobile Liability and Garagekeepers Legal Liability
insurance policies shall be written on an occurrence form and shall name
City, its officers, officials, agents, employees and volunteers as an additional
insured. Such policy(ies) of insurance shall be endorsed so Tow Operator’s
insurance shall be primary with respect to the City, its officers, officials,
employees, agents and authorized volunteers with no contribution required
of City. Any Workers’ Compensation insurance policy shall contain a waiver
of subrogation as to City, its officers, officials, agents, employees and
authorized volunteers. Tow Operator shall have furnished City with the
certificate(s) and applicable endorsements for ALL required insurance prior
to City’s execution of the Agreement.
E) The fact that insurance is obtained by Tow Operator shall not be deemed to
release or diminish the liability of Tow Operator, including, without limitation,
liability under the indemnity provisions of this Agreement . City shall apply to
all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by Tow Operator. Approval or purchase of
any insurance contracts or policies shall in no way relieve from liability nor
limit the liability of Tow Operator, its principals, officers, agents, employees,
persons under the supervision of Tow Operator, vendors, suppliers, invitees,
consultants, sub-consultants, subcontractors, or anyone employed directly
or indirectly by any of them.
F) Upon request of City, Tow Operator shall immediately furnish City with a
complete copy of any insurance policy required under this Agreement,
including all endorsements, with said copy certified by the underwriter to be
a true and correct copy of the original policy. This requirement shall survive
expiration or termination of this Agreement.
G) If at any time during the life of the Agreement or any extens ion, Tow
Operator fails to maintain the required insurance in full force and effect, all
EXHIBIT “B”
6
work under this Agreement shall be discontinued immediately until notice is
received by City that the required insurance has been restored to full force
and effect and that the premiums therefore have been paid for a period
satisfactory to City. Any failure to maintain the required insurance shall be
sufficient cause for City to terminate this Agreement.
H) If Tow Operator should subcontract all or any portion of the work to be
performed, Tow Operator shall require each subcontractor to provide
insurance protection in favor of the City, its officer, officials, employees,
agents and authorized volunteers in accordance with the terms of each of
the preceding paragraphs, except that the subcontractors certificates and
endorsements shall be on file with the Tow Operator and City prior to the
commencement of any work by the subcontractor.
14. Bills and Liens
Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment
used in performance of the work. Tow Operator shall not permit any lien or charge to
attach to the work or the premises, but if any does so attach, Tow Operator shall
promptly procure its release and indemnify, defend, and hold Ci ty harmless and be
responsible for payment of all costs, damages, penalties and expenses related to or
arising from or related thereto.
15. Change of Control
Tow Operator agrees that if there is a change or transfer in ownership or control of the
Tow Operator’s business prior to completion of this Agreement, unless such change or
transfer is to “immediate family” as defined in Fresno Municipal Code (FMC) section 3 -
101(e) and approved in writing by the Chief of Police, or his/her designee, such
change or transfer shall terminate this Agreement. This includes but is not limited to
changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or
ownership interests. All changes or transfers to “immediate family” must be approved
by the Chief of Police, or his/her designee, prior to such change or transfer in order for
the Tow Operator to remain on the tow services list. Final written approval or
disapproval for the change or transfer in ownership or control will be given by the Chief
of Police or his/her designee. All “immediate family” members involved in the potential
transfer and operation of the Tow Operator shall be required to undergo a background
check, review, and “Livescan” fingerprint screening. The “immediate family” members
involved in the change or transfer of ownership or control must also possess and keep
current all licensing certificates and insurance as required in this Agreement. The
“immediate family” members who will operate or otherwise be legally responsible for
the Tow Operator will be required to execute a new TSA.
A) Tow Operator owners shall be directly involved in the day-to-day operations
of their business and shall not be directly involved in the towing-related
business of any other tow company on, or applicant for, the Tow Rotation
List. Co-mingling of operations, business, offices, board members, and
finances is strictly prohibited.
B) If terminated or suspended, Tow Operator and/or its owner at the time of the
suspension or termination, shall not be eligible for a rotation listing for the
EXHIBIT “B”
7
duration of the suspension or termination. This section applies to the Tow
Operator working in any capacity within any tow business or operating any
tow business and to the tow business even if operated under new
ownership.
C) Tow Operator shall not share equipment with any other tow company on, or
applicant for, the Tow Rotation List, excluding equipmen t which may be
unavailable due to repairs or when there is a need for equipment
replacement and written approval is obtained from the Chief of Police or
his/her designee.
16. Force Majeure
Tow Operator shall not be in breach of this Agreement caused by any act of God, war,
civil disorder, employment strike or other cause beyond its reasonable control,
provided Tow Operator gives written notice of the cause of the delay to City within
thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any
available remedies.
17. Confidentiality
Tow Operator agrees to maintain the confidentiality of all City and City -related records
and information pursuant to all statutory laws relating to privacy and confidentiality that
currently exist or exist at any time during the term of this Agreement. All such records
and information shall be considered confidential and kept confidential by Tow Operator
and Tow Operator’s staff, agents and employees.
18. Compliance with Laws
Tow Operator represents and warrants that services to be provided under this
Agreement shall fully comply, at Tow Operator’s expense, with all standards, laws,
statutes, restrictions, ordinances, requirements, and regulations, including, but not
limited to those issued by City in its governmental capacity and all other laws
applicable to the services at the time services are provided to and accepted by City.
Tow Operator acknowledges that City is relying on Tow Operator to ensure such
compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify
and hold City and City Indemnitees harmless from all liability, damages, costs, and
expenses arising from or related to a violation of Laws.
19. Pricing
The Agreement price shall include full compensation for provi ding all required services
in accordance with the Scope of Work attached to this Agreement, and no additional
compensation will be allowed therefore, unless otherwise provided for in this
Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment
“B”, or “City Administrative / Franchise Fees”, in accordance with Paragraph 25 of
Attachment “A”.
20. Terms and Conditions
Tow Operator acknowledges that the undersigned has read and agrees to all terms
and conditions included in this Agreement.
EXHIBIT “B”
8
21. Severability
If any term, covenant, condition, or provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions hereof shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby.
22. Calendar Days
Any reference to the word “day” or “days” herein shall mean calendar day or calendar
days, respectively, unless otherwise expressly provided.
23. Attorney Fees
If either party is required to commence any proceeding or legal action to enforce any
term, covenant or condition of this Agreement, the prevailing party in such proceeding
or action shall be entitled to recover from the other party its reasonable Attorney’s fees
and legal expenses.
24. Interpretation
This Agreement has been negotiated at arm’s length and between persons
sophisticated and knowledgeable in the matters dealt with in this Agreement. In
addition, each party has been represented by experienced and kno wledgeable
independent legal counsel of their own choosing or has knowingly declined to seek
such counsel despite being encouraged and given the opportunity to do so. Each party
further acknowledges that they have not been influenced to any extent whatsoev er in
executing this Agreement by any other party hereto or by any person representing
them, or both. Accordingly, any rule or law (including California Civil Code section
1654) or legal decision that would require interpretation of any ambiguities in this
Agreement against the party that has drafted it is not applicable and is waived. The
provisions of this Agreement shall be interpreted in a reasonable manner to affect the
purpose of the parties and this Agreement.
25. Authority
The parties to this Agreement represent and warrant that this Agreement has been
duly authorized and executed and constitute the legally binding obligation of their
respective organization or entity, enforceable in accordance with its terms.
26. Employee Eligibility Verification
Tow Operator warrants that it fully complies with all Federal and State statutes and
regulations regarding the employment of aliens and others and that all its employees
performing work under this Agreement meet the citizenship or alien status requir ement
set forth in Federal statutes and regulations. Tow Operator shall obtain, from all
employees performing work hereunder, all verification and other documentation of
employment eligibility status required by Federal or State statutes and regulations
including, but not limited to, the Immigration Reform and Control Act of 1986, 8 U.S.C.
§1324 et seq., as they currently exist and as they may be hereafter amended. Tow
Operator shall retain all such documentation for all covered employees for the period
prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in
writing by City, and hold harmless, City, its agents, officers, and employees from
employer sanctions and any other liability which may be assessed against Tow
Operator or City or both in connection with any alleged violation of any Federal or
EXHIBIT “B”
9
State statutes or regulations pertaining to the eligibility for employment of any persons
performing work under this Agreement.
27. Additional Terms and Conditions
A) Term of Agreement: This Agreement shall commence on December 28,
2014, and shall be effective for three (3) years from that date, unless
otherwise terminated by City.
B) Fiscal Appropriations: This Agreement is subject to and contingent upon
applicable budgetary appropriations being made by the City for each year
during the term of this Agreement. If such appropriations are not
forthcoming, the Agreement will be terminated without penalty. Tow
Operator acknowledges that funding or portions of funding for this
Agreement may also be contingent upon the receipt of funds from, and/or
appropriation of funds by City. If such funding and/or appropriations are not
forthcoming, or are otherwise limited, City may immediately terminate or
modify this Agreement without penalty.
C) Conflict of Interest (Tow Operator): Tow Operator shall exercise
reasonable care and diligence to prevent any actions or conditions that
result in a conflict with the best interest of City. This obligation shall apply to
Tow Operator, Tow Operator’s employees, agents, relatives, and third
parties associated with accomplishing the work hereunder. Tow Operator’s
efforts shall include, but not be limited to, establishing precautions to prevent
its employees or agents from making, receiving, providing, or offering gifts,
entertainment, payments, loans, or other considerations which could be
deemed to appear to influence individuals to act contrary to the best interest
of City.
D) Tow Operator Work Hours and Safety Standards : Tow Operator shall
ensure compliance with all safety and hourly requirements for employees, in
accordance with federal, state, and City safety and health regulations and
laws.
E) Orderly Termination: Upon termination or other expiration of this
Agreement, each party shall promptly return to the other party all papers,
materials, and other properties of the other held by each for purposes of
execution of the Agreement. In addition, each party will assist the other
Party in orderly termination of this Agreement and the transfer of all aspects,
tangible and intangible, as may be necessary for the orderly, non -disruptive
business continuation of each party.
F) Reprocurement Costs: In the case of default by Tow Operator, City may
procure the service from other sources and, if the cost is higher, Tow
Operator will be held responsible to pay City the difference between the
Agreement cost and the price paid. City may make reasonable efforts to
obtain the prevailing market price at the time such services are rendered.
This is in addition to any other remedies available under law.
EXHIBIT “B”
10
G) Authorization Warranty: Tow Operator represents and warrants that the
person executing this Agreement on behalf of and for Tow Operator is an
authorized agent who has actual authority to bind Tow Operator to each and
every term, condition, and obligation of this Agreement and that all
requirements of Tow Operator have been fulfilled to provide such actual
authority.
H) Notices: Any and all notices permitted or required to be given hereunder
shall be deemed duly given (1) upon actual delivery, if delivery is by hand; or
(2) upon delivery by the United States mail if delivery is by postage paid
registered or certified return receipt requested mail; or (3) through electronic
means such as, email or the Dispatch & Tracking Solutions Software
System (DTS).
I) Data – Title to: All materials, documents, data or information obtained from
City data files or any City medium furnished to Tow Operator in the
performance of this Agreement will at all times remain the property of City.
Such data or information may not be used or copied for direct or indirect use
by Tow Operator after completion or termination of this Agreement without
the express written consent of City. All materials, documents, data or
information, including copies, must be returned to City at the end of this
Agreement.
J) Usage: No guarantee is given by City to Tow Operator regarding usage of
this Agreement. Usage figures, if provided, are approximate, based upon
the last usage. Tow Operator agrees to supply services and/or commodities
requested, as needed by City, at prices listed in the Agreement, regardless
of quantity requested.
K) Tow Operator’s Records: Tow Operator shall keep true and accurate
accounts, records, books and data which shall correctly reflect the business
transacted by Tow Operator in accordance with generally accepted
accounting principles. These records shall be stored at the Tow Operators
principal place of business for a period of three (3) years after final payment
is received by City.
L) Audits/Inspections: Tow Operator agrees to permit City’s authorized
representative (including auditors from a private auditing firm hired by City)
access during normal working hours to all books, accounts, records, reports,
files, financial records, supporting documentation, including payroll and
accounts payable/receivable records, and other papers or property of Tow
Operator for the purpose of auditing or inspecting any aspect of
performance under this Agreement. The inspection and/or audit will be
confined to those matters connected with the performance of the Agreement
including, but not limited to, the costs of administering the Agreement. City
reserves the right to audit and verify Tow Operator’s records before or after
final payment is made.
EXHIBIT “B”
11
Tow Operator agrees to maintain such records for possible audit for a
minimum of three (3) years after final payment, unless a longer period of
records retention is stipulated under this Agreement or by law. Tow
Operator agrees to allow interviews of any employees or others who might
reasonably have information related to such records. Further, Tow Operator
agrees to include a similar right to City to audit records and interview staff of
any sub-Tow Operator related to performance of this Agreement.
M) Should Tow Operator cease to exist as a legal entity, Tow Operator’s
records pertaining to this Agreement shall be forwarded to the Chief of
Police or his/her designee.
28. Disputes-Agreement
A) The Parties shall deal in good faith and attempt to resolve potential disputes
informally.
1) Tow Operator shall submit to the Chief of Police, or his/her designee, a
written demand for a final decision regarding the disposition of any
dispute between the parties arising under, related to, or involving this
Agreement, unless City, on its own initiative, has already rendered
such a final decision.
2) Tow Operator’s written demand shall be fully supported by factual
information, and, if such demand involves a cost adjustment to the
Agreement, Tow Operator shall include with the demand a written
statement signed by a senior official indicating that the demand is
made in good faith, that the supporting data are accurate and
complete, and that the amount requested accurately reflects the
Agreement adjustment for which Tow Operator believes City is liable.
B) Pending the final resolution of any dispute arising under, related to, or
involving this Agreement, Tow Operator agrees to diligently proceed with the
performance of this Agreement. Tow Operator ’s failure to diligently proceed
shall be considered a material breach of this Agreement.
C) Any final decision of City shall be expressly identified as such, shall be in
writing, and shall be signed by the City Hearing Administrative Officer, or
Chief of Police, or his/her designee, as applicable. If City fails to render a
decision within ninety (90) days after receipt of Tow Operator’s demand, it
shall be deemed a final decision adverse to Tow Operator’s contentions.
City’s final decision shall be conclusive and binding regarding the dispute
unless Tow Operator commences action in a court of competent jurisdiction.
29. Breach of Agreement
The failure of the Tow Operator to comply with any of the provisions, covenants or
conditions of this Agreement shall be a material breach of this Agreement. In such
event the City may, and in addition to any other remedies available at law, in equity, or
otherwise specified in this Agreement, undertake any of the individual actions or any
combination of the following actions:
EXHIBIT “B”
12
1) Afford the Tow Operator written notice of the breach and ten calendar
days or such shorter time that may be specified in this Agreement
within which to cure the breach;
2) Suspend and/or remove Tow Operator from the rotation;
3) Terminate the Agreement immediately, without any penalty.
The Parties hereto have executed this Agreement.
TOW OPERATOR:
By: Title:
Print Name: Date:
TOW OPERATOR*:
By: Title:
Print Name: Date:
*If a corporation or limited liability company, the document must be signed by two corporate
officers. The first signature must be either the Chairman of the Board, President, or any Vice
President. The second signature must be the secretary, an assistant secretary, the Chief
Financial Officer, or any assistant treasurers. In the alternative, a single signature is
acceptable when accompanied by a corporate document demonstrating the legal
authority of the signature to bind the company.
CITY OF FRESNO,
A municipal corporation
By: Date:
Jerry Dyer, Chief of Police
APPROVED AS TO FORM
DOUGLAS T. SLOAN
City Attorney
By: Date:
Deputy
ATTEST:
YVONNE SPENCE, CMC
City Clerk
By:: Date:
Deputy
EXHIBIT “B”
13
ATTACHMENT A
SCOPE OF WORK
1. Scope of Work
Tow Operator shall perform the towing, and storage of vehicles as directed by the City,
and in addition, such other services as provided in this Scope of Work, and shall
provide necessary storage facility, tow vehicles, labor, materials, equipment,
machinery, and tools. The Tow Operator shall comp ly with all State laws and
regulations, applicable to tow units and impound, towing, storage, selling or junking of
vehicles. Tow operators must follow all guidelines set forth by equipment
manufactures recommendations as to their use and care of all towin g related
equipment. All permits and licensing fees as specified under California Vehicle Code
(CVC) sections 34620 through 34624 shall be in full force and effect at all times during
this Agreement. Any violation of this section will be considered a material breach of the
Agreement and may result in immediate termination of this Agreement.
2. Towing Services and Duties
It shall be the duty of the Tow Operator, when so directed by the City, to provide
prompt tow service for vehicles which are taken into custody by the City. This includes
vehicles involved in collisions or disabled by any other cause, abandoned in public
places or on private property. Vehicles impounded for evidence, impeding the flow of
traffic, or which for any other reason, are within the jurisdiction of the FPD. As
required by law, Tow Operators are to remove from the street all debris resulting from
said collisions and to clean the immediate area of such street (CVC section
27700(a)(1)). It shall also be the duty to provide for the saf ety and security of those
vehicles and the contents thereof. These duties are inherent to the job and are to be
included in the price of the basic tow bill.
The tow truck operator shall provide a business card to the registered owner or driver
for the vehicle being towed. The business card shall contain the name, address and
phone number of the tow company as well as the link to the vehicle search system in
DTS as follows: www.findmytow.com
Tow truck operators and/or drivers will not be permitted to drive an impounded or
recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or
special operation. Any exceptions must be at the direction of the FPD officer in charge
of the scene and should be limited to repositioning the vehicle to allow for towing.
The City has designated two (2) tow companies for evidence impound tows and no
other rotation tow company shall maintain custody over these vehicles at any time. If
an officer impounds a vehicle for evidence and a non -preference rotational tow is
dispatched, it is the responsibility of the tow driver to verify with the officer on scene as
to whether a vehicle is to be held for evidence. If it is determined that the vehicle is to
be held for evidence, the tow driver must immediately no tify the officer on scene that
the company is not authorized to handle evidence impounds and an evidence tow
company shall be dispatched. Tow Operator shall then contact the Tow Unit on the
EXHIBIT “B”
14
same business day, or within the next business day if such tow occ urs after regular
business hours. Acceptance of an evidence tow by a non -designated evidence tow
company will result in disciplinary action and full financial responsibility for all tow and
storage fees for each violation.
If terminated or suspended, Tow Operator and/or owner at the time of the suspension
or termination, shall not be eligible for a rotation listing for the duration of the
suspension or termination. This provision applies to the Tow Operator working in any
capacity within any tow business or operating any tow business and to the tow
business even if operated under new ownership.
Tow Operator shall not share equipment with any other tow company on, or applicant
for, the Tow Rotation List, excluding equipment which may be unavailable due to
repairs or when there is a need for equipment replacement and written notice has
been obtained from FPD.
3. Special Operations
FPD conducts special operations coordinated through the Traffic Bureau throughout
the year that requires tow companies at the location of the special operation. Tow
companies on the Tow Rotation List that are in good standing with FPD may be invited
to participate in these operations, provided they are willing to remain with the special
operation until its conclusion and forfeit any rotational tow calls (FPD, California
Highway Patrol, or other) received during the duration of the operation. “Good
standing” shall mean that Tow Operator has not violated, or is not in violation of the
terms of this Agreement, the provisions of the FMC, State, or Federal law. All special
operations tows will be subject to the provisions of this Agreement. Tow Operator
shall respond to a special operation with a flatbed tow truck with the capability of
towing (2) vehicles. No ride alongs will be allowed on any special operations unless
the ride along is the Tow Owner or a Tow Driver who is in training and has been
approved by FPD.
4. Signage and hours of Operation
The storage yard or business office shall have a sign that clearly identifies it to the
public as a towing service. The sign shall have letters that are clearly visible to the
public from the street and must be visible at night. All storage facilities must be
accessible to City personnel twenty-four (24) hours per day and seven (7) days per
week. The Tow Operator will provide customer service twenty-four (24) hours per day
and seven (7) days per week for the release of vehicles.
Tow Operator shall provide at least one person at a call station to respond and release
vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required
pursuant to CVC sections 22850.3 and 22651.07 and include an a fter-hours contact
phone number for Tow Operator.
5. Response Time
Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a
week, within the maximum response time limits as established by the Chief of Police
or his/her designee. A reasonable response time is thirty (30) minutes or less, except
during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m., (Monday
EXHIBIT “B”
15
through Friday), when the required response time will be extended to forty-five (45)
minutes or less. Tow Operator shall respond with a tow truck of the class required to
tow the vehicle specified by the DTS System.
6. Non-Response
The Tow Operator shall update the DTS System at the time of dispatch to a tow
rotation request. If the Tow Operator is either unab le to respond or unable to meet the
maximum response time, the tow operator shall immediately update the DTS System
accordingly. If, after accepting the call, the Tow Operator is unable to respond or will
be delayed in responding, the Tow Operator shall i mmediately update the DTS system
accordingly.
To decline or refuse to respond will be considered a non -response. Each non-
response will be immediately documented in the DTS System. Each non -response will
be logged by the DTS System and reviewed by the City. If the fault for the non-
response is attributed to other than the Tow Operator, the Tow Operator will be placed
back in the rotational list and called at the next opportunity in line.
One such breach, determined to be the fault of the Tow Operator, will be grounds for
written reprimand which may be subsequent to a meeting between the Tow Operator
and the City. A second breach may be grounds for a (30) thirty -day suspension of this
Agreement. A third violation will be considered a material breach of the Agreement
and may result in immediate termination of this Agreement.
In the case of suspension or termination, all vehicles then in storage at the time of the
suspension or termination remain protected under this Agreement as City’s impounds
and the Tow Operator is so bound. The City will have the option to remove and/or
transfer stored vehicles.
When a Tow Operator will be temporarily unavailable to provide services due to
preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc.,
the Tow Operator will notify City in writing via the DTS system at least forty -eight (48)
hours in advance. City reserves the right to deny these requests to maintain adequate
service levels for tow operations. Failure to notify the City will be c onsidered a non-
response and a material breach of this agreement.
7. Storage Responsibilities
It shall be the duty of the Tow Operator to provide impound and other storage service
for all vehicles as directed by the City. The Tow Operator shall be resp onsible for all
vehicles, accessories and equipment thereon and all personal property therein stored
by Tow Operator. It shall be the Tow Operators’ duty to protect such stored vehicles,
accessories, equipment, and property against all loss or damage by f ire, theft or other
causes. The Tow Operator will have available for review by City personnel, all permits
and proof of compliance to all local zoning, special use, conditional use and special
requirements, laws and regulation. It is the responsibility of the Tow Operator to
ensure vehicles are stored in a secured facility.
8. Size and Location of Storage Facility
EXHIBIT “B”
16
The tow yard shall be located within the City of Fresno’s “Metropolitan Area.”
Metropolitan area is defined as within the borders of Copper Avenue to the north,
American Avenue to the south, DeWolf Avenue to the east, and Chateau Fresno to the
west. Tow Operator shall be responsible for the security of vehicles and property at the
place of storage. At a minimum, a six (6) foot fence or enclosed secured area is
required for outside storage. A minimum of 5,000 square feet, or room for twenty (20)
vehicles, shall be provided. All tow yards located with the City of Fresno shall be in
compliance with the FMC, current Directors Class #208 and shall follow the current
Development and Resource Management Department’s Policy and Procedure C -002.
If the tow facility is located outside the City of Fresno, the tow operator is required to
provide written proof that the yard is in compliance with the authoriz ing jurisdiction.
Tow Operator is responsible for the reasonable care, custody, and control of any
property contained in towed or stored vehicles. The storage facility and business
office will be located at the primary storage yard and shall be maintained in a
functional, clean and orderly fashion. The facility shall have a telephone, on -site fax
machine and the necessary computer equipment to properly run DTS software and to
send and receive email.
In the event of criminal activity at a storage facility, the City may require the Tow
Operator to take measures to assist in preventing such crimes. These measures could
include, but are not limited to: the yard being illuminated during darkness, with
security type lighting, to such a degree that visual observation of the entire yard may
be accomplished at all times, improved fencing and/or security patrols.
All vehicles stored or impounded as a result of a tow ordered by the City shall be
towed directly to a towing service storage lot unless the City, or in t he case of a
citizen’s assist, a person legally in charge of the vehicle, requests that it be taken to
some other location.
All vehicles towed as a result of action taken by the City will be stored at the Tow
Operator’s principal place of business unless directed otherwise by the City’s Tow
Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach
of this Agreement. The Tow Operator shall not remove personal property from a
stored vehicle. If the registered owner removes personal property from a stored
vehicle, the Tow Operator will maintain documentation of such and will require a
signed receipt from the registered owner for property released. The Tow Operator
shall immediately notify the City if any contraband, weapons or hazardous materials
are found in the vehicle(s).
9. Enclosed Facility
The Tow Operator may maintain, without charge to the City or any other person,
separate and enclosed garage facilities no less than 1,000 square feet of clean
working space. The facility must be constructed to include a roof and at least four
walls of substantial design to withstand the elements and protect the vehicles from the
weather. The facility should have a concrete floor and sufficient lighting. This inside
facility must be located at the Tow Operator’s primary storage yard. This inside facility
is not required to qualify for the City’s rotation, however, when inside storage is
EXHIBIT “B”
17
requested for a particular vehicle, the next Tow Operator in line meeting the needs of
the City’s request will be used.
10. DTS Requirements
Tow Operator shall utilize the most recent, updated and upgraded DTS software
program, to dispatch and track, via a web -based Internet connection. Tow Operators
will be required to enter the towed vehicle information as instructed by the City. At no
time will a vehicle be released, subject to lien, or junked from impound without all
required data fields being entered into the DTS system by the Tow Operator. The Tow
Operator shall clearly identify and enter into DTS the name of the person to whom the
vehicle was actually released. All City tow requests shall be made utilizing this
program. Failure at any time to have the DTS program in full operation shall cause the
immediate removal of the Tow Operator from the tow rotation and be grounds for
immediate termination by City. Tow Operator must enter into a separate agreement,
or license for the DTS software program with the owner of that proprietary software.
The City shall not provide the DTS software program, any licensing or sub -licensing
thereof or any intermediary services for the procurement by Tow Operator of the DTS
software program. This Agreement shall not be executed by the City until Tow
Operator has demonstrated to the City‘s satisfaction compliance with the requirements
set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and
service charges required from DTS. DTS shall be utilized in “real time” and all entries
should reflect as such. Invoices shall be used from DTS when releasing vehicles and
be pursuant to section 22651.07 of the CVC. The on ly Tow Operator personnel
authorized to utilize and access DTS are those that have fully complied with the
provisions set forth in Section 12, “Tow Operator Personnel” of this Agreement. If the
Tow Operator is not in FULL compliance with the above stated requirement, the Tow
Operator will be removed from the City towing rotation. In the event that DTS fails to
provide software services, or the City elects to utilize a new software provider, the Tow
Operator will be required to use the replacement towing software system. If that
occurs, all references to DTS in this Agreement shall instead be interpreted as
references to the new software program.
11. Official Notification by City Regarding Tow
Official notification by City regarding tow services is considered any form of written,
email, verbal instructions or notifications received from an authorized City employee or
electronic notice from the DTS program. If the Tow Operator receives verbal
instructions or notifications f rom a City employee the Tow Operator must respond to
City, by 5:00 p.m. (PST) on the next business day.
12. Tow Operator Personnel
A.) Conduct
The Tow Operator shall perform the services required of it in an ethical, orderly
manner, endeavoring to obtain and keep the confidence of the public. At no time
will the Tow Operator or its agent or any employee of the Tow Operator exhibit
any of the following behavior: rudeness, or otherwise being uncooperative,
argumentative, threatening, incompetent or acting in a dangerous manner with
any City employee, or with any member of the public. The City reserves the right
to cancel an individual tow assignment, if in the opinion of the City, the Tow
EXHIBIT “B”
18
Operator is acting in a rude, uncooperative, argumentative, threate ning,
incompetent or dangerous manner. The City also reserves the right to cancel an
individual tow assignment if in the opinion of the City the Tow Operator is likely to
damage the vehicle for which the tow service was called. Other examples of
unacceptable behavior include but are not limited to: profanity, abusive
language, disconnecting telephone calls for public inquiries regarding a tow,
threatening, aggressive, or assertive language, failure to provide timely
information or documents in response to a public or City inquiry, lack of respect to
any City personnel or member of the public, destruction or damaging of evidence,
failure to comply with the reasonable request of a member of the public, failure to
release vehicle in a timely manner, failure to make appointment for release of
vehicle during evening or weekend hours, failure to promptly be on site at time of
appointment for release of vehicle during evening or weekend hours, impeding an
investigation or any other conduct which the City deems unprofessional.
If the Tow Operator is found to be in violation of this conduct clause, the City will
cancel the Tow Operator and request the next Tow Operator in rotation. Any
such behavior as set forth above shall be considered a material breach of this
Agreement and may be grounds for immediate suspension or immediate
termination by the City, without penalty.
B.) Personnel Appearance
Tow Operators shall be required to furnish their employees with a distinctive
company uniform. Each uniform shall have the firm’s name, as well as the
employee’s name, in a conspicuous place. The tow company’s name and driver’s
first name shall be clearly visible at all times, meaning that protective or inclement
weather outer garments must meet this standard. Each employee shall have
sufficient uniforms so as to maintain a neat, clean appearance at all times.
Minimum requirements for uniforms include a shirt, long pants, and appropriate
safety shoes. All drivers shall be in uniform before any towing or service
operation begins. No wording, designs, photos, gestures, or anything that could
be considered offensive or obscene to the general public shall be displayed by
the Tow Operators or on any part of the uniform. Dress standards are required in
order to project a professional and positive image to the public.
All employees must be neat, clean and well groomed in appearance. In order to
ensure a professional appearance, all tattoos must be concealed by operators
while working. Personnel will be required to conceal any tattoo s with gloves,
collars, long sleeves, or by other means acceptable to the City. Facial tattoos of
any variety are not permitted. No facial piercings shall be worn while on duty.
Drivers shall wear safety vests or reflectorized clothing that conforms to
Occupational Safety and Health Administration (OSHA) requirements.
Alternatively, the OSHA safety requirements may be incorporated into the
uniform, jacket, or rain gear, as long as these items are worn as the outermost
garment.
C.) Unlawful Activity
EXHIBIT “B”
19
The Tow Operator or it’s employees shall not be involved, nor shall the Tow
Operator or its employees become involved in any agreement or activity whether
verbal, written or conveyed in any other manner, any activity or business venture
which may be construed as unlawful. If the City deems the involvement to be
unlawful, the City may immediately terminate this Agreement.
The Tow Operator shall not provide any direct or indirect commission, gift or any
compensation to any person or public or private entity, in consideration of
arranging or requesting the services of a tow truck as provided in section 12110
of the CVC.
No Tow Operator will be involved or solicit any compensation of any kind
including but not limited to involvement with any other company or busin ess that
might result in income or consideration as a result of any activity initiated by the
City.
An example of such a prohibited involvement could include but is not limited to:
financial reimbursement by auto-body repair business for referrals, or towing
directly from the scene of a collision to the auto -body shop without prior
unsolicited approval or request by the registered owner, driver or insurance
company representative of the damaged vehicle; kickback to or from a security
company or homeowner’s association for “finding” or towing a vehicle from a
location, whether private property, public, off street parking facility or a public
roadway. Violation of this provision shall be grounds for immediate termination by
City, without penalty.
D.) Personnel Licenses
Tow Operators providing services under this Agreement, including tow truck
drivers, dispatchers and other office personnel, will have sufficient knowledge,
experience and capability to ensure safe and proper discharge of their service
responsibilities. It will be the responsibility of the Tow Operator to ensure that all
of its personnel will be properly licensed in accordance with sections 12500,
12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators
shall be enrolled in the “Pull Notice” program as defined in CVC section1808.1 et
seq.. Drivers must complete a CHP approved Tow Operator Course every five (5)
years and copies of completion of the course shall be sent to the City. All Tow
Operators and personnel shall have no criminal record which would preclude
them from being placed in a position of trust while in the service of a law
enforcement agency or any crime listed below under the heading of “Criminal
Record.”
E.) Fingerprints
All owners and employees who have not previously submitted their “LiveScan”
fingerprint samples shall submit their “LiveScan” fingerprint samples, at their own
expense, through the City prior to being awarded this Agreement, for the
purposes of verifying their criminal history with the Departmen t of Justice.
Failure to provide information regarding the identity of the owner, employee, or
anyone else with a financial interest in the Tow Operator will result in termination
EXHIBIT “B”
20
of this Agreement. The Tow Operator will provide the City with information
regarding any change in employee status immediately and update DTS to reflect
such changes. Failure to comply may result in further disciplinary action, and will
be considered a breach of this Agreement.
After execution of this Agreement, no person shal l be employed by the Tow
Operator or perform any service under this Agreement until the background
record check and “LiveScan” is completed and approved by the City and said
employee has received their identification badge from the City.
Notwithstanding the foregoing, Tow Operators and owners that have towed for
the City under the previous Tow Service Agreement and have completed a new
background and “LiveScan” check will be allowed to continue to tow for the City
until such time as the results of the background and “LiveScan” submissions are
reviewed and approved by the City.
Any employee of the Tow Operator that has left employment with said Tow
Operator and returned and been rehired must complete an additional background
check before performing services pursuant to this Agreement
F.) Criminal Record
A conviction of anyone with a financial interest in the Tow Operator, or any
employee of the Tow Operator, including but not limited to any of the following
offenses, may be cause for denial of application or termination of this Agreement:
Any crimes listed in California Penal Code section 290
DUI-Within 5 years of the Date of Fingerprinting
Vehicle theft
Fraud
Stolen Property
Crimes of Violence
Any felony crime relating to narcotics or any controlled substance
Any other crimes enumerated in CVC section 2432.3
Actively on parole or on any form of probation
Crime of moral turpitude
Sex, Arson, Narcotics Registrant
Other felony conviction
The City is not required to provide any reason, rationale or fact ual information in
the event it elects to deny application or remove any of Tow Operator’s personnel
from providing services for the City under this Agreement. Tow driver or
employee applicants denied under this section may appeal to the Chief of Police
or his/her designee. All decisions by the Chief of Police, or his/her designee, are
final.
In the event the Tow Operator or employee is convicted or is under investigation,
the Tow Operator may be given the opportunity to replace that employee without
prejudice to the Agreement. Nothing shall prohibit the City from removing,
EXHIBIT “B”
21
suspending or terminating the Agreement. It will be the responsibility of the Tow
Operator to provide the City with updated information regarding any illegal
activity, arrest(s) or conviction of any Tow Operator and/or employee. For the
purpose of this section, any conviction or plea of guilty or nolo contendre, even to
any lesser-included offense, are considered convictions. Failure to provide
information regarding the identity of the employee, or anyone else with a financial
interest in the Tow Operator will result in termination of the Agreement. Failure to
provide information to the City of any information regarding the conviction of any
of the above crimes may also result in termination of the Agreement.
G.) Identification Badges
Each tow truck driver or employee of the Tow Operator shall wear, in plain view
an identification badge, authorized and issued by the City to that employee, while
on any call for service where the City is involved. If a tow truck driver responds to
a scene without his authorized name badge, the tow truck driver will be dismissed
from the scene and the next Tow Operator in rotation will be called. Failure to
carry an identification badge will be considered a violation as stated in
Section 31, “Disciplinary Action,” of this Agreement. The purpose of these
badges will be to identify those employees of the Tow Operator who have been
fingerprinted by the City and have passed the record check by the Department o f
Justice.
All identification badges are the property of the City and will be returned by the
Tow Operator to the City within forty-eight (48) hours of an employee’s
separation. Tow Operator will provide a current list of all staff including drivers,
dispatchers, etc. Anytime there are any changes to this list, the City is to be
notified by the next business day and provided with an updated and current list.
13. Tow Operator Licensing and Certification
All licensing and certifications required by Federal, State and local authorities shall be
maintained current and valid at all times as required in CVC sections: 34507.5, 34600
et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue a nd
Taxation code. Failure to have any required license or certification, including any driver
who fails to have an appropriate class of license, may be grounds for immediate
termination by City without penalty.
14. Inspection
All real property and improvements thereon, and all vehicle facilities, equipment and
materials used by the Tow Operator in the performance of the services required herein
shall be open to inspection by the City or its authorized representative, and will be
subject to no less than one annual inspection. Additional inspections may be
conducted without notice during normal business hours. Inspections may include, but
are not limited to, all books, accounts, records, reports, files, financial records,
supporting documentation, including payroll and accounts payable/receivable records,
and other papers or property of Tow Operator for the purpose of auditing or inspecting
any aspect of performance directly related to this Agreement. In the event that the City
determines that the real property and improvements thereon are insufficient, derelict or
fail to meet the requirements as called out in this Agreement, this Agreement may be
terminated by City immediately, without penalty.
EXHIBIT “B”
22
15. Vehicle and Equipment Requirements
Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300,
27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with
dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer.
Tow vehicles must have two-way communication capabilities and the ability to
communicate and connect with the DTS System at all times. The Tow Operator shall
have equipment capable of towing from off -road areas, towing from underground
facilities, and recovery services with an ad justable boom with at least five tons of lifting
capacity. In addition to the conventional wheel lift towing capabilities, the Tow
Operator shall maintain at least one or more flatbed or rollback trucks with a minimum
of fifty (50) feet of cable, and the required safety equipment. Unless otherwise
specified by the City, all Tow Operators shall respond to a tow service request with a
flatbed or rollback truck as specified above. At the discretion of the tow operator, a
wrecker may be used to respond to a tow service request. If for any reason the Tow
Operator is unable to complete the tow service request with the wrecker, the Tow
Operator will not be placed back on the top of the rotation list and a new Tow Operator
will receive the tow service request.
A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that
possess this equipment will be placed on a heavy-duty tow rotation list.
All trucks must have the required emergency lighting, portable stop and tail lamps, a
broom, shovel, fire extinguisher (rating 4-B, C), a utility light, reflective triangles, a
large pry-bar, covered trash cans with approved absorbent, rags, unlocking
equipment, dollies (boom trucks), chains, and/or tie downs.
Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as
required by the manufacturer.
Tow vehicles must have a cable winch of sufficient size and capacity to retrieve
vehicles that have gone off traveled portions of roadways into inundated areas or other
inaccessible locations. Winches must have visible ID tags designating the model,
make, serial number, and rated capacity.
All tow trucks used in City tows will be subject to a yearly inspection. This does not
preclude the City from conducting random inspections throughout the year.
16. Vehicle Identification
Tow vehicles shall display identification signs in compliance with section 27907 of the
CVC. The Tow Operator shall not display any sign or advertising material that
indicates that his tow vehicles are an official police service of the City.
17. Charges and Fees to be collected from Registered Owners
All rates and charges shall be conspicuously posted in the office and in all tow
vehicles. These rates shall quote complete charges and fees with no additional fees
to be added at a later date. These rates will be available for review by City personnel
and/or the person for whom tow service is provided. All fees collected shall be
itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. It will be
EXHIBIT “B”
23
the Tow Operator’s responsibility to collect his bill for service, and the City will not be
responsible in any way for these charges. Storage fees will be calculated on the
calendar day except the first 24-hours which is counted as a single day in accordance
with California Civil Code (CCC) 3068.1 (see Attachment B). All fees listed on the DTS
invoice will be received in the form of major credit card, debit card, or cash. All fees
collected, both City and Tow Operator fees, must be invoiced through the DTS system
prior to release and at the time of payment. No credit card fees will be charged
pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees.
The City reserves the right to change all payment methods during the term of this
agreement.
18. Lien Fees
At no time shall the City be charged a lien fee on a towed or impounded vehicle. No
lien shall be attached to any vehicle that has been impounded by the City until after
seventy-two (72) hours from the time of storage as listed in the DTS system have
passed pursuant to section 22851.12 of the CVC. All lien transact ions must be
entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide
by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30)
days, shall not be sold at lien until such time as is considered reasonable to allow the
registered owner time to pay for and pick up the vehicle before it is sold at lien, but
under no circumstances before the thirty-fifth (35th) day after storage.
The Tow Operator shall abide by all applicable statutes and ordinances concerning
disposal of unclaimed vehicles, including but not necessarily limited to CVC sections
22670; 22851; 22851.1; 22851.2; 22851.3; 22851.4; 22851.6; 22851.8; 22851.10,
22851.12 and 22852.5.
As described in CVC section 22856, liability for despolia tion of evidence shall not arise
against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a
lien sale, as long as the Tow Operator can show written proof that he was notified in
writing by the City that the vehicle would not be needed as evidence in a legal action.
This proof may exist in the form of an official release in the DTS System or any other
written conveyance signed by a member of the City prior to the official, written release
of the vehicle.
19. Reasonableness and Validity of Fees
Fees charged to the registered owner or any other person for response to calls
originating from the City shall be reasonable and not in excess of those rates charged
for similar services provided in response to requests initiated by any ot her public
agency or private person. During the term of this agreement, the City shall conduct an
annual review each December of towing and storage fees of comparable cities and
adjust rates set forth in Attachment B by the first week of January of the following year.
20. Towing Operation
All tows performed under this Agreement will be included in the flat rate charge as
described in Attachment B. No additional charges shall be charged without prior
approval from the City and written notice is provided in the DTS System. Any
unapproved charges received outside the DTS System will result in immediate
termination of this Agreement and removal from the rotation list.
EXHIBIT “B”
24
The Tow Operator shall base towing charges upon the class of vehicle being towed
regardless of the class of the truck used, except when vehicle recovery operations
require a larger class truck. The Tow Operator may refer to the tow truck classes and
weight ratings as defined by the Towing & Recovery Association of America (TRAA)
vehicle identification guide.
21. Service Call Rotation and Fees
The City shall establish a separate rotation list for Tow Operators willing to respond to
service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests
shall not exceed one-half the flat rate charge for a light duty truck response.
22. Gate Fees
No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through
Friday, excluding State recognized holidays as listed below:
New Year’s Day
Martin Luther King Day
Presidents’ Day
Cesar Chavez Day
Memorial Day
Independence Day
Labor Day
Veterans’ Day
Thanksgiving Day
Day after Thanksgiving
Christmas Day
An after hours gate fee may be charged at all other times. The gate fee is not to
exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be
charged to the vehicle’s owner for releases or personal property recovery that occurs
outside normal business hours (excluding lien fees, storage fees, taxes, or other
additional fees.) The Tow Operator is responsible for assuring that proper gate fees
are charged in accordance with this section. Over charging gate fees will be
considered a major violation as outlined in Section 30.
All towing and storage fees charged by the Tow Operator are the responsibility of the
vehicle’s owner and are not the responsibility of the City. The exception would be
evidentiary impounds made at the direction of City personnel.
23. Cancelled Tow
The City shall not be liable to pay the Tow Operator or anyone else any charge or
other fee for a call that does not result in a chargeable service being rendered by Tow
Operator (“Dry Run”). The cancelled Tow Operator shall be p laced back on the top of
the rotation list and will receive the next tow in rotation.
EXHIBIT “B”
25
24. Towed in Error
In the event the City determines that an error has occurred in impounding a vehicle, it
shall be immediately released to the registered owner without charge and the Tow
Operator will be placed back on the top of the rotation list and will receive the next tow
in rotation. In addition, the Tow Operator will be given one extra tows on the rotation
list. Additional extra tows may be given at the discretio n of the Tow Unit.
25. Release Fees
California law authorizes the recovery of funds required to enforce certain provisions of
the CVC and promote traffic safety on public roadways. This authorization falls under
CVC section 22850.5 and further authorized by City resolutions. These resolutions
are open to public view at the City and/or City offices and are on file with the City’s
Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the
registered owner, legal owner or agent of an impounded car.
A City administrative / franchise fee will be charged for the release of a vehicle that
has been impounded by the City. Fees will be established by an independent
consulting firm to determine the City’s costs associated with impounding vehicles in
accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be
charged an administrative / franchise fee for the release of the vehicle. This fee will be
established and attached to each vehicle in the DTS System. The City’s
administrative fees will be collected at the time of the release by the Tow Operator.
The Tow Operator will pay the City’s franchise fees equivalent to the City’s
administrative fees for every vehicle that is not picked up by the owner or agent. The
Tow Operator will pay the City’s administrative / franchise fees for every City vehicle
that was towed during the preceding month and will pay the City no later than 12:00
p.m. on the 15th of the following month, regardless of the disposition of the vehicle. In
the event that the 15th of the month falls on one of the State recognized holidays listed
in Section 22 above, or a weekend, the City’s administrative/franchise fee must be
paid by 12:00 p.m. on the following business day. Tow Operators who fail to subm it
the City’s administrative / franchise fees to the City by the 15 th day of each month will
be immediately suspended from rotation until all fees are received, and will be subject
to appropriate disciplinary action and civil recourse. The City will keep a strict
accounting of these fees through the DTS System and frequent audits will take place
to ensure accurate and timely payment of collected City administrative / franchise fees.
The fee will be listed as an item on the owner’s / agent’s DTS contractor invoice.
26. Unauthorized Release
Unauthorized release of an impounded vehicle, accidental or otherwise, having
evidentiary value, not officially released by the City, and determined to be the fault of
the Tow Operator, will result in the issuance of a major violation as set forth in this
Agreement. The determination of such fault will be the responsibility of the City.
27. Release of Multi-Day Impounds
A vehicle impounded with a multiple day hold may only be released prior to the
impound period with written authorization by the City in the DTS System. The DTS
System will automatically schedule the release of an impounded vehicle.
EXHIBIT “B”
26
28. Release of Vehicles
Vehicles may only be released through the DTS System. Once the DTS System
authorizes the release of a stored or impounded vehicle, it is the Tow Operator’s
responsibility for the vehicle’s release. The Tow Operator is hereby granted authority
to release to the registered owner, legal owner, or authorized representative, pursuant
to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the
registered owner, legal owner, or authorized representative taking possession of the
vehicle sign a release indicating that they are properly licensed and insured to drive a
motor vehicle.
29. Disciplinary Action
The Chief of Police, or his/her designee, shall take disciplinary action against Tow
Operators for violations investigated and sustained. Unless otherwise noted, the Chief
of Police, or his/her designee, will determine the period of suspension and shall retain
discretion regarding the length of any suspension imposed pursuant to the terms and
conditions of this Agreement. The City shall retain record of violations for at least the
term of this Agreement.
30. Major violations
Major violations include any chargeable offense under Federal, State, Local Law and
significant violations of this Agreement. Such violations shall result in suspension or
immediate termination of this Agreement. The Chief of Police, or his/her designee,
reserves the right to impose longer periods of suspensions or immediate termination, if
deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee,
reserves the right to remove a Tow Operator from the tow rotation during the
investigation of a major violation. A reinstatement from suspension for a major
violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted
until the reinstatement fee is received by the Chief of Police or his/her designee. In
addition, a major violation may also result in the Tow Operator’s employee being
removed from participation in this Agreement. Examples of major violations include,
but are not limited to:
Physical assault, against public and/or law enforcement
Verbal abuse against public and/or law enforcement
Resisting arrest
Tow Truck Driver under the influence of alcohol or illegal drugs
Charging rates that exceed those listed in Attachment B
Vehicle released without authorization
Unauthorized access to storage yard
Theft
Mishandling of vehicles stored as evidence
Unauthorized driver responding to call
Failure to provide information or change of status on any Tow Operator
employee or staff
Substantiated private party impound complaints
Any Felony/Misdemeanor arrest
Refusal to take a rotational tow
Failure to utilize the DTS System for all City towing related matters
EXHIBIT “B”
27
Repeated late or nonpayment of City franchise fees
Failure to properly secure storage yard
Failure to obey a lawful order by law enforcement
31. Minor violations
Minor violations will be given to the Tow Operator in the form of a documented warning
for the first violation. The second violation will be in the form of a documented
reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations
during the term of the Agreement may be treated as a major violation, and the Tow
Operator will be suspended or terminated from this Agreement. A reinstatement from
suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be
lifted until the reinstatement fee is received by the Chief of Police or his/her designee.
Examples of minor violations include, but are not limited to:
Late payment of City franchise fees
Tow truck drivers not wearing City issued I.D. cards/ proper uniform
Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45)
minutes during peak hours
Repeated rejection of dispatched calls
Other violations of this Agreement not considered a major violation by the
Chief of Police or his/her designee
Unauthorized ride-a-long
Failure to respond to customers’ needs
Failure to maintain proper equipment
Failure to clean up at a collision scene
Vehicle code infractions
32. Hearing/Appeal
Tow Operator must have a legal existing interest in the tow operation or entitlement
subject to the City order, citation, decision or determination to have standing to appeal
a decision by the Chief of Police or his/her designee. An appeal that fails to identify
the appellant’s standing may be rejected as defective.
In the event FPD serves Tow Operator with disciplinary action amounting to anything
less than a suspension resulting from a minor violation, the Tow Operator may request
a hearing within fifteen (15) calendar days by submitting an appeal in writing to the
Chief of Police, or his/her designee, through the Tow Unit.
In the event FPD serves Tow Operator with disciplinary action amounting to a
suspension for thirty (30) days or less resulting from a minor or major violation, the
Tow Operator may request a hearing within fifteen (15) calendar days by submitting an
appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit.
Upon receipt of a written request for an appeal, and at the discretion of the Chief of
Police, or his/her designee, the Tow Operator may be allowed to continue rotational
tows until the final disposition of the appellate hearing.
In the event FPD serves Tow Operator with disciplinary action amounting to a
suspension in excess of thirty (30) days, or termination of the T SA, the Tow Operator
EXHIBIT “B”
28
may request a hearing within fifteen (15) calendar days by submitting an appeal in
writing to the Administrative Hearing Officer by way of the City Manager’s Office. The
written appeal shall be in compliance with FMC sections 1-407 and 9-1712.
Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who
appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall
not be entitled to placement on the Tow Rotation List or to participate in tows until
such time as any appeal hearing has been concluded and the Administrative Hearing
Officer finds that no grounds for a suspension in excess of thirty (30) days, or a
termination of the TSA has been established. Tow Operator’s remedy shall be lim ited
to reinstatement on the tow rotation list in such case and no other compensation or
consideration will be allowed.
EXHIBIT “B”
29
ATTACHMENT B
TOW FEES
Flat price per vehicle per call:
Light Duty Tow/Flatbed $ 184.00/Each
Medium Duty Tow $ Average CHP Rates Apply
Heavy Duty Tow $ Average CHP Rates Apply
Water Recovery: $ Average CHP Rates Apply
Technology Fee:
DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and
DTS System
Storage Rates:
Passenger cars $ 45.00/per day
Motorcycles $ 45.00/per day
Trucks or Trailers $ Average CHP Rates Apply
Inside Storage Rates:
Passenger cars $ 55.00/per day
Motorcycles $ 55.00/per day
Trucks or Trailers $ Average CHP Rates Apply
Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday
through Friday, excluding State recognized holidays as listed in the Agreement.
An after hours gate fee may be charged at all other times. The gate fee shall not
exceed fifty percent (50%) of the flat rate charge for a light d uty tow and may be
charged to the vehicle’s owner for releases or personal property recovery that occur
outside normal business hours (excluding lien fees, storage fees, taxes, or other
additional fees).
Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one -half the
flat rate charge for a light duty truck response.
City of Fresno Administrative / Franchise Fees:
Vehicle Collision Blocking a Roadway $ 60.00
Illegally Parked / Abandoned Vehicle $116.00
Unlicensed Driver / Expired Registration $189.00
Arrested / Suspended Driver $266.00
DUI Driver $450.00
All fees listed on the DTS invoice will be received in the form of major credit card,
debit card or cash. No credit card fee will be charged pursuant to
CVC section 22651.1 and CCC section 1748.1.
Date Adopted: Page 1 of 13
Date Approved
Effective Date:
City Attorney Approval:
Ordinance No.
BILL NO. _________
ORDINANCE NO. _____________
AN ORDINANCE OF THE CITY OF FRESNO, CALIFORNIA
AMENDING ARTICLE 17 OF CHAPTER 9 OF THE
FRESNO MUNICIPAL CODE RELATING TO TOW
TRUCKS.
THE COUNCIL OF THE CITY OF FRESNO DOES ORDAIN AS FOLLOWS:
SECTION 1. Article 17 of Chapter 9 of the Fresno Municipal Code is amended to read:
ARTICLE 17 – TOW CARS [TOW TRUCKS]
Section 9-1701. Title.
9-1702. Definitions.
9-1703. Intent.
9-1704. Dispatching of tow cars [Tow Trucks].
9-1705. Exceptions.
9-1706. Application for Placement on Rotation List.
9-1707. Investigation.
9-1708. Non transferability [and Change of Control].
9-1709. Regulations.
9-1710. Suspension.
9-1711. Removal from Rotation List.
9-1712. Appeal.
9-1713. Authority of Police Chief.
SECTION 9-1701. TITLE. This article shall be known as the Tow Car
[Tow Truck] Ordinance of the City of Fresno.
SECTION 9-1702. DEFINITIONS. Unless the particular provision or the
context otherwise requires, the definitions and provisions contained in this
section shall govern the construction, meaning, and application of words and
phrases used in this article, and, except to the extent that a particular word or
phrase is otherwise specifically defined in this section, the definitions and
provisions contained in Article 2 of Chapter 1 of this Code shall also govern the
Page 2 of 13
construction, meaning, and application of words and phrases used in this article
unless the particular provisions or the context otherwise requires. Whenever any
words or phrases used herein are not defined, but are defined in the Vehicle
Code of the State of California, and amendments thereto, such definitions shall
apply. The definition of each word or phrase shall constitute, to the extent
applicable, the definition of each word or phrase which is derivative from it, or
from which it is a derivative, as the case may be.
(a) "Non-Exclusive Franchise" means non-exclusive franchise
granted by the Council in accordance with Article XIII of the Charter of the
City of Fresno for purposes of participating with the Police Department's
Rotation List.
(b) "Police Impound" means a written direction from the police
officer on the scene to store the vehicle to be towed in a secured area until
released by Police Department Personnel. It is the discretion of the police
officer to store the vehicle in either an inside or outside storage facility.
(c) "Rotation list" means a list of persons engaged in the
business of providing tow car [Tow Truck] service, which list shall be
maintained by the Police Chief or his or her designee for the purpose of
rotating police dispatch of tow cars [Tow Truck] in accordance with the
provisions of this article, a Tow Agreement and other applicable law.
(d) "Tow Agreement" means a non-exclusive franchise
agreement entered into between the City and an owner of tow cars [Tow
Truck] that defines the obligations, procedures and terms of the tow car
Page 3 of 13
[Tow Truck Company] being placed on the Rotation List, and is approved
by the City Attorney's Office.
(e) "Tow car" [“Tow Truck”] means a motor vehicle which has
been altered or designed and equipped for and exclusively [primarily] used
in the business of towing vehicles by means of a crane, hoist, tow bar, tow
line or dolly, or is otherwise exclusively [primarily] used to render
assistance to other vehicles. [A “roll-back carrier” designed to carry up to
two vehicles, and a trailer for hire that is being used to transport a vehicle
shall also be considered a Tow Truck under this Article. An automobile
dismantlers’ tow vehicle or a repossessor’s tow vehicle shall not be
considered a Tow Truck for purposes of this Article.]
SECTION 9-1703. INTENT. It is the intent of this article to regulate the
operation of tow car [Tow Truck] services dispatched by the Police Department of
the city pursuant to the authority conferred by the Vehicle Code.
SECTION 9-1704. DISPATCHING OF TOW CARS [TOW TRUCKS].
Except as otherwise provided in Section 9-1705, the Police Chief or his or
her designee shall dispatch tow cars [Tow Trucks] to perform tow car [Tow Truck]
services only on a rotation basis from a rotation list established and maintained in
accordance with the provisions of this article, the Non-Exclusive Franchise, and
the Fresno Police Department Tow Agreement [and the Non-Exclusive Franchise
Tow Agreement for the Fresno Police Department].
SECTION 9-1705. EXCEPTIONS.
This article shall not apply to the following:
Page 4 of 13
(a) Tow car [Tow Truck] services performed by automobile
clubs, automobile associations or garages specified by the owner or driver
of the towed vehicle;
(b) Tow car [Tow Truck] services performed for the abatement
and removal of abandoned, wrecked, dismantled or inoperable vehicles or
parts thereof pursuant to Section 22660, et seq., of the Vehicle Code; or
(c) Tow car [Tow Truck] services performed on an emergency
basis to eliminate a dangerous or hazardous condition as determined by
the police dispatcher [department], when the dispatcher determines that
another tow car [Tow Truck] can provide the most expeditious response.
SECTION 9-1706. APPLICATION FOR PLACEMENT ON ROTATION
LIST. Any person engaged in the business of providing tow car [Tow Truck]
service and desiring to be placed on the rotation list shall submit a signed Tow
Agreement and an application for a Non-Exclusive Franchise to the Police Chief
or his or her designee. The application shall be in a form approved by the Police
Chief or his or her designee and shall include the following:
(a) The applicant's name, home address, business address, and
telephone numbers, including the names of persons doing business under
fictitious names, members of partnerships, and officers of corporations or
associations;
(b) A list of vehicles which will be used as tow cars [Tow Trucks]
including a full description of each vehicle and its license number;
Page 5 of 13
(c) The location of the applicant's place of business and storage
facility; and
(d) Such other and further information as the Police Chief or his
or her designee may require.
[(e) No Tow Truck company shall accrue any vested rights as a
result of being a party to a Non-Exclusive Franchise Tow Agreement, nor
will any Tow Truck company be guaranteed placement on subsequent
Non-Exclusive Franchise Tow Agreements for the Fresno Police
Department. All applicants for any subsequent Non-Exclusive Franchise
Tow Agreement will be reviewed and considered for inclusion at the time
of the issuance of the subsequent Non-Exclusive Franchise Tow
Agreement. Tow Truck company owners may be subject to an interview
process and an inspection prior to approval. Tow truck companies
currently on the Police Department rotation list who are in good standing,
will receive priority reinstatement status on subsequent Non-Exclusive
Franchise Tow Agreements for the Fresno Police Department.]
The application shall be made under penalty of perjury and shall not be
accepted unless it is clearly filled out in full with all required information and
submitted with a Tow Agreement.
SECTION 9-1707. INVESTIGATION. The Police Chief or his or her
designee shall cause an investigation to be made of the facts stated in the
application, and shall within thirty days after completion of the investigation place
the applicant on the rotation list unless any one of the following exists:
Page 6 of 13
(a) The applicant has [previously] been removed from the
rotation list within the last twenty-four (24) months [for violations of the
Non-Exclusive Franchise Tow Agreement for the Fresno Police
Department];
(b) A material statement made in the application is untrue;
(c) A fact exists of which the Police Chief or his or her designee
has knowledge which would be cause for removal or suspension of the
applicant from the rotation list;
(d) The applicant's business or storage facility is not located
within twenty (20) miles of the city's limits [the geographical boundaries as
set forth in the Non-Exclusive Franchise Tow Agreement for the Fresno
Police Department].
(e) The applicant has a felony conviction; or
(f) The rotation list already consists of 30 or more tow
companies; or
(g) The applicant fails to sign a Tow Agreement.
SECTION 9-1708. NONTRANSFERABILITY [AND CHANGE OF
CONTROL]. No person shall assign or subcontract their Tow Agreement [Non-
Exclusive Franchise Tow Agreement for the Fresno Police Department] under
this article to another person.
[Tow Operator agrees that if there is a change or transfer in ownership or
control, other than transfers to “immediate family” as defined in Fresno Municipal
Code Section 3-101(e), of the Tow Operator’s business prior to completion of this
Page 7 of 13
Agreement, such change or transfer will terminate the Non-Exclusive Franchise
Agreement. This includes but is not limited to: changes in Corporate Board
Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All
transfers of ownership or control to “immediate family” shall be approved prior to
the execution of any transfer. “Immediate family” transfers will be subject to the
final approval of the Chief of Police or his/her designee. “Immediate family”
members will be required to pass background reviews, livescan fingerprint
screening and will be required to possess the proper licensing certificates and
insurance to perform tow operations for the City of Fresno Police Department .
The “immediate family” transferee will also be required to execute a new Non -
Exclusive Franchise Agreement with the Police Department.]
SECTION 9-1709. REGULATIONS.
All persons on the rotation list shall:
(a) Comply with all laws of the state pertaining to tow cars [Tow
Trucks] and tow car [Tow Truck] service, including but not limited to
satisfying minimum equipment standards, reporting to the California
Highway Patrol all vehicles stored over thirty (30) days and keeping
records of vehicles stored for longer than twelve (12) hours [and all
provisions of the Non-Exclusive Franchise Tow Agreement for the Fresno
Police Department, and all City of Fresno zoning requirements];
(b) Provide twenty-four (24) hour service, seven (7) days per
week, including holidays, for towing, storage and release of vehicles;
Page 8 of 13
(c) Remain open during normal business hours and release
vehicles after normal business hours. "Normal business hours" are
Monday through Friday, from 8:00 a.m. to 5:00 p.m., except state or city
holidays;
(d) Have storage space a minimum of 5,000 square feet in area
or the capability to store a minimum of twenty (20) vehicles;
(e) Provide adequate security for vehicles and property. Security
shall include a minimum six-foot high fence or wall enclosing any outside
storage area which screens and/or blocks the stored vehicles and other
property from public view;
(f) Furnish the Police Department with a copy of any report
made to the Department of Justice in Sacramento pursuant to Vehicle
Code Section 10652, regarding vehicles stored for thirty (30) days, the
copy may be forwarded by regular mail;
(g) Store vehicles subject to a police impound within a secured
storage facility. It is the discretion of the police officer to store the vehicle
in either an inside or outside storage facility.
(h) Retain and safeguard any vehicle subject to a police
impound until authorized by the Police Department to release same and
the contents therein;
(i) Post a schedule of towing fees in a conspicuous place on
the business premises;
Page 9 of 13
(j) [(b)] Charge reasonable towing fees not in excess of those
charges that would have been charged for that towing or storage under
the Tow Agreement or if the private property is not located within the city,
then the law enforcement agency that exercises primary jurisdiction in the
county in which the private property is located;
(k) Maintain motor vehicle liability insurance and general liability
insurance by a policy or policies having single limit bodily injury and
property damage limits of not less than one million dollars ($1,000,000.00)
and provide the City with a certificate of insurance evidencing the same;
(l) Maintain receipts, with a copy placed in the towed or stored
vehicle, whenever any item is removed from such vehicle;
(m) Maintain records of tow services and other services
furnished, including a description of the vehicle, the nature of services
rendered, and the time and location of calls. These records may be
inspected by authorized employees of the City during normal business
hours;
(n) [(c)] Comply with such other rules and regulations
promulgated by the Police Chief or his or her designee.
SECTION 9-1710. SUSPENSION. Any tow car service [Tow Truck
company] placed on the rotation list may be suspended by the Police Chief or his
or her designee from such list if the tow car service [Tow Truck company] fails to
comply with any of the conditions, regulations or requirements of this article.
Upon learning of grounds for suspension, the Police Chief or his or her designee
Page 10 of 13
shall immediately, by written notice, inform the owner of the tow car service [Tow
Truck company] of his action of suspension. The Police Chief or his or her
designee may reinstate the tow car service [Tow Truck company] to the rotation
list upon satisfactory proof that the tow car service [Tow Truck company] is in
compliance with the conditions, regulations, and requirements of this article [and
has completed its suspension].
SECTION 9-1711. REMOVAL FROM ROTATION LIST. Any tow car
service placed [Tow Truck company] on the rotation list may be removed from
such list [in accordance with the provisions of the Non-Exclusive Franchise Tow
Agreement for the Fresno Police Department .] for one or more of the following
grounds:
(a) The tow car service has been suspended from the rotation
list at least once and repeatedly or intentionally fails to comply with any of
the conditions, regulations or requirements of this article.
(b) The owner of the tow car service knew or should have
known that his driver or drivers have repeatedly violated the provisions of
the Vehicle Code and has failed to take corrective action within a
reasonable time.
(c) The tow car service repeatedly fails to answer calls, fails to
respond to calls within a reasonable time, fails to maintain clean and
orderly storage facilities, or at any time fails to clean the roadway of glass
and debris at an accident scene.
Page 11 of 13
(d) The owner of the tow car service sells fifty-one (51) percent
or more of the business, provided the person, or persons purchasing the
business may apply for placement on the rotation list in accordance with
Section 9-1706 of this article.
(e) The owner of a tow car service applies for placement on the
rotation list under another name.
(f) When a fact exists which would constitute a ground for
denial of an application pursuant to Section 9-1707.
Upon learning of grounds for removal, the Police Chief or his or her designee
shall immediately, by written notice, inform the owner of the tow car service [Tow Truck
company] of his [or her] action of removal.
SECTION 9-1712. APPEAL. Any applicant denied placement on the
rotation list, or any person [Tow Truck company] suspended [in excess of 30
days] or removed from the rotation list, shall have the right to appeal such order
under Chapter 1, Article 4. If no appeal is filed within the time prescribed, the
action of the Police Chief shall be final. Notwithstanding any other provision of
this Code including Chapter 1, Article 4, in the event that any appeal is filed, the
appellant shall not be allowed to participate in any tows or be placed on the
Rotation List until such time as the Chief Administrative Officer finds that the
appellant is entitled to be reinstated on the Rotation List. [Applicants for a
position on the rotation list have no vested interest in the City of Fresno Non-
Exclusive Franchise Tow Agreement for the Fresno Police Department and
therefore have no right of appeal.]
Page 12 of 13
SECTION 9-1713. AUTHORITY OF POLICE CHIEF. The Police Chief
for the City of Fresno is authorized to promulgate administrative rules and
procedures [in the form of the City of Fresno Non-Exclusive Franchise Tow
Agreement for the Fresno Police Department, Administrative Order, or any other
document] necessary for the successful and effective implementation of this
Article including establishing, amending, updating, restating and entering into
towing agreements subject to approval of the City Attorney. Said administrative
rules and procedures shall be in writing.
SECTION 2. Severability. If any section or portion of this ordinance shall be
determined invalid or unconstitutional, that section or portion shall be deemed severable
and all remaining sections or portions shall remain in full force and effect.
SECTION 3. This ordinance shall become effective and in full force and effect at 12:01
a.m. on the thirty-first day after its passage.
/ / /
/ / /
/ / /
* * * * * * * * * * * * * *
Page 13 of 13
* * * * * * * * * * * * * *
STATE OF CALIFORNIA )
COUNTY OF FRESNO ) ss.
CITY OF FRESNO )
I, YVONNE SPENCE, CMC, City Clerk of the City of Fresno, certify that the
foregoing ordinance was adopted by the Council of the City of Fresno, at a regular
meeting held on the _________day of , 2014.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor Approval: , 2014
Mayor Approval/No Return: , 2014
Mayor Veto: , 2014
Council Override Vote: , 2014
YVONNE SPENCE, CMC
City Clerk
By:_________________________
Deputy
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
By:______________________________
Mary Anne B. Tooke, Deputy
MAT:MDF:nts:pn [60686ns/ORD] -09/03/14
BILL NO.
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF FRESNO,
CALIFORNIA, WHICH GRANTS TO THE TOWING
OPERATORS LISTED ON ATTACHMENT A NON-
EXCLUSIVE FRANCHISE TO PARTICIPATE IN THE
FRESNO POLICE DEPARTMENT'S TOW CAR ROTATION
LIST.
THEcoUNclLoFTHEclTYoFFREsNo(THE,,clTY,)DoESoRDAlNAS
FOLLOWS:
SECTION 1. This Ordinance effectuates the terms and conditions set forth in the form
of the Franchise Agreements executed by the City and the Towing operator(s) listed on
Attachment A.
SECTION 2. Whenever in this ordinance the words or phrases hereinafter in this
section defined are used, they shall have the respective meanings assigned to them in
the following definitions; and words or phrases not hereinafter in this section defined,
but which are defined in any Franchise Document, as herein defined, shall have the
same meanings herein, as so defined in such Franchise Documents (unless, in the
giveninstance,thecontextwhereintheyareusedsha|lclearlyimportadifferent
meaning):
(a) " Towing operator " shall mean one or more of the companies listed
on Attachment A, attached hereto and incorporated herein by reference.
(b) "Franchise Documents" shall mean and shall include all of the
following:
Date Adopted:
Date Approved
Effective Date:
City Attorney Approval:
Page 1 ol 4
Ordinance No.
(l) Article Xlll of the Charter of the City of Fresno.
(2') Chapter 6, Article 2, of the Fresno MunicipalCode.
(3) The Non-Exclusive Franchise Agreements for Towing
Services.
(4) The written acceptance of the granting of a Non-Ëxclusive
Franchise to Towing operators.
(5) Resolution No. , Resolution of lntention to grant
Franchises to the Towing operators.
(6) This,Ordinance.
(7) Any and all documents which are referred to, defined, or
described in any of the foregoing as "Franchise Documents."
(c) "Franchise Fee" shall mean any and all compensation or other
consideration paid directly or indirectly to the City for the non-exclusive right to
perform City generated tows pursuant to, and in the amount defined in the Non-
Exclusive Franchise Agreement, and other rates established by the Non-
Exclusive Franchise Ag reement.
SECTION 3, Non-Exclusive Franchise Authorizing and permitting the Towing operator
to do all things described by the Franchise Documents is hereby granted to the Towing
operators identifíed in Exhibit "4," who have provided written acceptance to the terms
and conditions set out in the Franchise Documents.
SECTION 4. The term of the Non-Exclusive Franchise Agreements shall be expressly
stated in Attachment B, which is attached hereto and incorporated by reference.
Page 2 of 4
SECTION 5. Towing operators shall pay to the City all franchise/administrative fees
pursuant to, and in accordance with the Non-Exclusive Franchise Two Agreement.
SECTION 6. Staff shall provide Council with an annual status report on the tow
franchise during the time of the annual review of the towing and storage fees under the
Non-Exclusive Franchise Tow Agreement.
SËCT¡ON 7. This ordinance shall become effective and In full force and effect at 12:01
a.m. on the thirty-first day after its final passage.
,t*************
Page 3 of 4
STATE OF CALIFORN]A
COUNTY OF FRESNO
CITY OF FRESNO
l, YVONNE SPENCE, City Clerk of the City of Fresno, certify that the
foregoing ordinance was adopted by the Council of the City of Fresno, at a regular
meeting held on the day of
SS.
,2014.
AYES :NOES :
ABSENT :
ABSTAIN :
Mayor Approval:
Mayor ApprovaliNo Return :
Mayor Veto:
Council Override Vote:
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
BY:
Brandon M, Collet Date
Deputy
Attachments: Attachment A - List of Grantees
Attachment B - Franchise Agreement
2014
2014
2014
2014
YVONNE SPENCE, CMC
City Cterk
BY:
Deputy
Page 4 of 4
City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-423 Agenda Date:10/9/2014 Agenda #:1-F
REPORT TO THE CITY COUNCIL
October 9, 2014
FROM:SCOTT L. MOZIER, PE, Director
Public Works Department
THROUGH:ANDREW J. BENELLI, PE, City Engineer/Assistant Director
Public Works Department, Traffic and Engineering Services Division
BY:CRAIG L. HANSEN, Supervising Real Estate Agent
Public Works Department, Real Estate Services Section
SUBJECT
Authorize the City Manager or designee to execute a grant deed for the sale of excess property in the
amount of $75,348 to DFP Limited LP located on “G” Street near Tulare Street APN 467-071-03T and
467-071-04T (Council District 3)
RECOMMENDATION
To approve the sale of 13,125 square feet of excess property located at 941 “G”Street to DFP
Limited LP also known as Central Fish Company.
EXECUTIVE SUMMARY
Central Fish Company occasionally uses a vacant property across the street from its business for
overflow parking at Kern and “G”Streets.That property is in the direct path of the proposed high
speed rail.In search of a replacement property for the overflow parking,DFP Limited approached
the City of Fresno about selling its parking lot located just north of the store and restaurant.The City
of Fresno has agreed in principle to sell its property to DPF Limited pending concurrence by the City
Council.
BACKGROUND
The City of Fresno constructed a parking lot on the subject property more than 20 years ago,next to
Central Fish Company on “G”Street between Tulare and Kern Street.Central Fish had been using a
vacant parcel across the street from its business as overflow parking,but is now compelled to sell
that property to the California High Speed Rail.Central Fish approached the City of Fresno about its
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File #:ID#14-423 Agenda Date:10/9/2014 Agenda #:1-F
that property to the California High Speed Rail.Central Fish approached the City of Fresno about its
vacant parking lot.The Parking Division agreed to sell the parking lot since it was no longer being
considered for any future use.An independent MAI appraisal was performed and a price negotiated
which was somewhat higher than the appraisal.The subject property is free of any liens or bonds
and the proceeds are expected to be deposited into the Parking Service Fund 10101-401001.The
City Attorney has reviewed and approved the purchase and sale agreement along with the grant
deed as to form.
ENVIRONMENTAL FINDINGS
The project falls within the Class 1 Categorical Exemption set forth in CEQA Guidelines,Section
15301(c)as the subject property had been used as a parking lot by the City of Fresno for many years
and the new owner intends to use the parcel for the same purpose.Furthermore,none of the
exceptions to Categorical Exemptions set forth in the CEQA Guidelines,Section 15300.2 apply to this
project.
LOCAL PREFERENCE
N/A
FISCAL IMPACT
The City of Fresno will net $75,348 from the sale of the property.
Attachment: Aerial photo of subject property
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City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-438 Agenda Date:10/9/2014 Agenda #:1-G
REPORT TO THE CITY COUNCIL
October 9, 2014
FROM:THOMAS C. ESQUEDA, Director
Department of Public Utilities
BY:JERRY L. SCHUBER SR., Assistant Director
Department of Public Utilities, Solid Waste Management Division
SUBJECT
RESOLUTION - Of Intention by the Council of the City of Fresno, California, to grant a Non-Exclusive
Franchise for roll-off collection services within the City of Fresno and setting the public hearing for
October 23, 2014
RECOMMENDATION
It is recommended that City Council approve a resolution declaring its intention to award a non-exclusive roll-off collection
franchise to the company listed on the attachment in preparation for a public hearing on the matter and final vote to
approve the non-exclusive roll-off franchise on October 30, 2014.
EXECUTIVE SUMMARY
The City Council approved an ordinance establishing a non-exclusive roll-off collection franchise system for private
haulers under City Charter Article XIII,Section 1300 on July 21,2011.Sixteen (16)companies were approved as
franchisees at that time.Since then,four (4)additional companies have applied and been approved to become
franchisees. The most recent application requires City Council approval to be added to the list of franchisees.
BACKGROUND
On July 21,2011,City Council an ordinance establishing a non-excusive roll-off collection franchise system to regulate
roll-off hauler collection activities.
The volume of roll-off materials collected is approximately 20-25%of the solid waste stream and highly recyclable,
therefore the City has implemented the system to:
·Comply with current and anticipated State regulations related to the diversion of such
materials from landfill diversion;
·Implement the goals of the City’s AB 939 Plan including the Source Reduction and
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File #:ID#14-438 Agenda Date:10/9/2014 Agenda #:1-G
Recycling Element as adopted by the City Council;
·Support the goals of the City to achieve 75%diversion by 2012 and Zero Waste by 2025,
which were adopted by City Council by establishing minimum diversion standards for roll
-off materials (50% of C&D materials and 70% of recyclables); and
·Increase the fees received from these companies from the previous material diversion
fee of $17.70 per service location to a 10%franchise fee.In FY 2014,the City received
$636,320.
Roll-Off Hauler Application Process
Haulers may apply to the City to obtain a non-exclusive roll-off franchise. The applicant must describe and/or provide:
·Information about the company
·Qualifications of the company, which must include:
―Names and addresses (1)officers,directors,and associates;(2)persons and
entities having five percent or more of ownership;and (3)Any parent or
subsidiary or business entity owning or controlling in whole or in part applicant
―Description of applicant’s experience
―Municipal references
―Customer references
―Proof of insurance
―Litigation and regulatory history
―Criminal history
·Operations Information
―Diversion plan
―Description of equipment (trucks and containers)
―Collection schedule
―Description of the types of materials to be collected
―Processing facilities collector intends to use
―Hazardous waste procedures
―Customer service plans
―Billing services
·Other information that may be requested by the Director of Department of Public Utilities.
All franchise applications have been thoroughly reviewed and vetted by internal city staff, who are experts in this area.
Next Steps
Per the City Charter,if the non-exclusive roll-off collection franchises are to be awarded,the City Council must perform an
introduction and first reading of an ordinance awarding the franchise.A public hearing for this issue will then be held on
October 30, 2014. At the conclusion of the public hearing, the City Council will decide whether to award the franchise.
If approved by City Council,the Director of the Public Utilities Department will execute the agreements with the
franchisees listed on Attachment A.
ENVIRONMENTAL FINDINGS
By the definition provided in the California Environmental Quality Act Guidelines Section 15378 this item does not qualify
as a “project” and is therefore exempt from the California Environmental Quality Act requirements.
LOCAL PREFERENCE
Local preference was not implemented because a resolution declaring an intention to award a non-exclusive roll-off
franchise is not an award of a services or construction contract.
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File #:ID#14-438 Agenda Date:10/9/2014 Agenda #:1-G
FISCAL IMPACT
In FY 2014, the City received $636,320 in total annual franchise fees from roll-off haulers.
Attachments:
·Resolution of Intention
·List of Grantees-Attachment A
·Non-Exclusive Franchise Agreement-Attachment B
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Attachment A
List of Grantees
Business Name Full Legal Name
1 Katch Environmental Katch Environmental Inc.
2 Mini Dumpsters of Fresno Mini Dumpsters of Fresno
City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-439 Agenda Date:10/9/2014 Agenda #:1-H
REPORT TO THE CITY COUNCIL
October 9, 2014
FROM:THOMAS C. ESQUEDA, Director
Department of Public Utilities
THROUGH:STEPHEN A. HOGG, Assistant Director
Department of Public Utilities - Wastewater Management Division
BY:KEVIN L. NORGAARD, Supervising Professional Engineer
Department of Public Utilities - Wastewater Management Division
SUBJECT
Approve a consultant agreement in the amount of $160,100 with Blair, Church & Flynn Consulting
Engineers for the professional engineering services for sewer rehabilitation and replacement in
Chinatown and authorize Director of Public Utilities or his designee to sign on behalf of the City
(Council District 3)
RECOMMENDATIONS
Staff recommends that the City Council approve a consultant agreement with Blair,Church &Flynn
Consulting Engineers,in the amount of $145,100 and a contingency of $15,000 for professional
engineering services to rehabilitate and replace sewer pipes in Chinatown and authorize the Director,
or his designee, to sign the agreement on behalf of the City.
EXECUTIVE SUMMARY
The Department of Public Utilities Wastewater Management Division is seeking to award a consultant
services agreement to Blair,Church &Flynn Consulting Engineers for the design of replacement and
rehabilitation of sewers in Chinatown.The area currently has old sewer lines,some dating back to
1890.Sewer rehabilitation/replacement is proposed where necessary to remedy structural
deficiencies.Staff is seeking to award a contract in the amount of $145,100 with a contingency of
$15,000 to Blair, Church & Flynn Consulting Engineers.
BACKGROUND
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File #:ID#14-439 Agenda Date:10/9/2014 Agenda #:1-H
In conjunction with the Downtown Revitalization Planning,the Collection System Maintenance work
group performed an inspection of the Downtown sewer systems.The goals of these inspections
were to evaluate the structural and capacity handling condition of all the downtown sewer pipes.The
investigation was done using Closed Circuit Television (CCTV).Through this investigation some
pipes were found to have structural deficiencies such as cracks and voids and some were found to
be past the design useful life and undersized per the City Standard design requirements.These
identified areas will need to be rehabilitated or removed and replaced.
A Request For Proposal (RFP)was circulated and posted on July 10,2014.The department
received three responses.Blair,Church &Flynn Consulting Engineers was selected as the most
qualified and best value to the City,and was asked to submit a level of effort and scope.Staff
negotiated a professional services fee of $145,100 with a contingency of $15,000 for Professional
Engineering Services.As per Administrative Order 4-4,the City Attorney’s as to form standard
contract CAISD #DPU-S 9.1 03-24-14, was used in this contract.
ENVIRONMENTAL FINDINGS
By the definition provided in the California Environmental Quality Act Guidelines Section 15378 the
award of the contract does not qualify as a “project”and is therefore exempt from the California
Environmental Quality Act requirements.
LOCAL PREFERENCE
The local preference according to the Fresno Municipal Code Section 4-109 did not affect the award
of this contract because all the proposers are local businesses (Fresno Municipal Code Section 4-
109 (b)(1)) and the lowest proposer (local) was selected.
FISCAL IMPACT
This project has no impact to the General Fund and is located in Council District 3.This project is
identified in the five-year capital improvement plan.Funds in the amount of $2,100,000 are budgeted
in the 2015 Sewer Enterprise Fund No. 40501. The fiscal impact of this contract will be $160,100.
Attachments:
Consultant Contract
Vicinity Map
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AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT is made and entered into effective the day of September,
2014, by and between the CITY OF FRESNO, a California municipal corporation (hereinafter
referred to as "CITY"), and Blair, Church & Flynn Consulting Engineers (hereinafter referred to
as "CONSULTANT").
RECITALS
WHEREAS, CITY desires to obtain professional consulting engineering services for the
design of plans and general construction contract documents for Sewer Rehabilitation and
Replacement in Chinatown, hereinafter referred to as the "Project;" and
WHEREAS, CONSULTANT is engaged in the business of furnishing services as a
professional engineer and hereby represents that it desires to and is professionally and legally
capable of performing the services called for by this Agreement; and
WHEREAS, CONSULTANT acknowledges that this Agreement is subject to the
requirements of Fresno Municipal Code Section 4-1 07 and Administrative Order No. 6-19; and
WHEREAS, this Agreement will be administered for CITY by its Director of Public
Utilities (hereinafter referred to as "Director") or his/her designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions,
and promises hereinafter contained to be kept and performed by the respective parties, it is
mutually agreed as follows:
1. Scope of Services and Completion Schedule. CONSULTANT shall perform the
services described herein and in Exhibit A to complete the Project more fully described in
Exhibit A, and this shall include all work incidental to, or necessary to perform, such services
even though not specifically described in Exhibit A. The services of CONSULT ANT shall
consist of five Parts as described below. A separate Notice to Proceed will be issued for each
of the aforementioned Parts. By entry into this Agreement and upon CITY'S issuance of a
written "Notice to Proceed," CITY contracts for the services in Part One. CONSULTANT shall
not perform any other Part of the Agreement, and this Agreement shall not be a contract for any
other Part, until further performance is authorized by CITY'S issuance of a written "Notice to
Proceed." It shall, however, remain CONSULTANT'S offer to perform all remaining parts
described herein. In the event CONSULTANT performs services without CITY'S prior written
authorization, CONSULTANT will not be entitled to compensation for such services.
(a) Part One. Schematic Design Phase.
(1) CONSULTANT shall review the description of the Project set forth
in Exhibit A and consult with designated representatives of CITY to ascertain the
requirements of the Project.
(2) CONSULTANT shall complete a topographic survey in
accordance with the detailed minimum survey requirements set forth in Exhibit A. The
topographic survey shall include sufficient detail for the design of the Project, to establish
pertinent right-of-way and property lines, and as necessary to obtain the acceptance of
DPU-S 9 .1 /03-24-14
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CITY. CONSULTANT shall provide CITY with an electronic file of the topographic
survey in the following format:
AutoCAD and Pdf.
(3) CONSULT ANT shall conduct studies and investigations as
necessary to confirm requirements of design including, but not limited to, (i) consulting
with the various utility agencies, and (ii) obtaining all information and data from the
respective responsible CITY department/division that is available in CITY'S records and
is required by CONSULTANT in connection with the consulting services including, but
not limited to, maps, reports, information, restrictions and easements.
(4) CONSULTANT shall provide a preliminary evaluation of the
Project taking into consideration CITY'S estimate of the cost of construction
("Construction Budget") of two million dollars ($2,000,000.00), including alternative
approaches to design and construction of the Project.
(5) Based upon the mutually agreed upon Project requirements and
any adjustments authorized by CITY in the Construction Budget, CONSULTANT shall
design and prepare schematic design drawings and other documents for review,
modification, if required, and acceptance by CITY staff sufficient to show the concept
and scope of the proposed Project and the scale and relationship of Project
components.
(6) CONSULTANT shall submit a preliminary estimate of construction
cost for review and acceptance by CITY. As used herein, "construction cost" means the
cost of construction under the general construction contract and does not include
CONSULT ANT'S compensation as herein provided. Such estimate shall include, and
shall separately state, the cost of any add or deduct alternatives, the cost of any work
which may be let on a segregated bid basis and any equipment or fixtures which may be
incorporated in or excluded from the general construction contract as may be necessary
to stay within the Construction Budget.
(7) CONSULT ANT shall make as many submittals as may be
necessary or desirable to obtain the acceptance by CITY and shall assist CITY in
applying for and obtaining from applicable public agencies any approval permit, or
waiver required by law, which assistance shall include, but not be limited to, making
Project information available to CITY.
(8) CONSULTANT may not rely upon any as-builts provided by CITY,
but shall investigate the existing conditions and ascertain the adequacy of such as-builts
for CONSULTANT'S design. CONSULTANT shall bring to CITY'S attention any
discrepancies in the as-builts that are discovered by CONSULTANT. CITY makes no
representations regarding any as-builts.
(9) Services shall be undertaken and completed in a sequence
assuring expeditious completion. All services shall be rendered and deliverables
submitted within sixty (60) calendar days from the issuance of a Notice to Proceed for
this Part unless an extension of time is approved in writing by the Director. Re-
submittals, as necessary to obtain the acceptance by CITY, shall be submitted to CITY
within fifteen (15) calendar days from receipt of CITY'S comments unless an extension
of time is approved in writing by the Director.
OPU-S 9 .1 /03-24-14
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(b) Part Two. Design Development Phase. After review and acceptance of
the schematic design phase and issuance of a written Notice to Proceed with this Part
Two:
(1) Based upon the accepted schematic design documents and the
Construction Budget, including authorized revisions thereto, CONSULTANT shall
prepare for review and acceptance by CITY the design development documents
consisting of drawings and other documents to fix and describe the size and character of
the Project as necessary to show treatment of significant details . In addition,
CONSULTANT shall provide outline specifications of the work as to kinds of materials,
systems, and other such design elements as may be required. Such design
development documents and specifications shall be subject to review and acceptance by
CITY.
(2) CONSULTANT shall submit a revised estimate of construction
cost for review and acceptance by CITY. The revised estimate shall include, but shall
separately state, the cost of any add or deduct alternates, any work which may be let on
a segregated bid basis, and any furnishings, equipment or fixtures which may be
incorporated in or excluded from the general construction contract as may be necessary
to stay within the Construction Budget, including authorized revisions thereto.
(3) In the event that the revised estimate of construction cost exceeds
the preliminary estimate of construction cost previously accepted, excluding therefrom
any add alternate, any work which may be let on a segregated bid basis and any
furnishing, equipment or fixtures which was identified in Part 1 as that which may be
excluded from the general construction contract, CITY shall have the option of accepting
or rejecting the revised estimate and CONSULTANT shall, at no additional cost to CITY,
make such design changes as may be necessary to reduce the revised estimate so that
it shall not exceed the preliminary estimate of construction cost previously accepted by
CITY. CITY shall not increase the scope of the Project except by modification of this
Agreement which shall include an agreed upon increase in CONSULTANT'S
compensation.
(4) CONSULTANT shall make as many submittals as may be
necessary or desirable to obtain the acceptance by CITY and shall assist CITY in
applying for and obtaining from applicable public agencies any approval, permit, or
waiver required by law, which assistance shall include, but not be limited to, making
Project information available to CITY .
(5) Services shall be undertaken and completed in a sequence
assuring expeditious completion . All services shall be rendered and deliverables
submitted within forty (40) calendar days from the issuance of a Notice to Proceed for
this Part unless an extension of time is approved in writing by the Director. Re-
submittals, as necessary to obtain the acceptance by CITY, shall be submitted to CITY
within fifteen (15) calendar days from receipt of CITY'S comments unless an extension
of time is approved in writing by the Director.
(c) Part Three. Construction Document Phase. After review and acceptance
of the design development phase and issuance of a written Notice to Proceed with this
Part Three:
DPU-S 9 .1 /03-24-14
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(1) CONSULTANT shall prepare from the accepted design
development documents, detailed plans and specifications setting forth the complete
work to be done, and the materials, workmanship, finishes and equipment, fixtures, and
site work required. CONSULTANT shall also prepare necessary bidding information,
general and special conditions of the general construction contract, technical
specifications of the general construction contract, and the bid proposal and general
construction contract forms. Such documents shall be subject to the review and
acceptance by CITY. CONSULTANT shall cooperate with, assist and be responsive to
CITY'S Purchasing Manager in preparation of all documents including, without limitation,
slip-sheeting final documents for printing when requested. CITY'S Standard
Specifications must be used by CONSULTANT where possible. Final drawings shall be
drawn, printed or reproduced by a process providing a permanent record in black on
vellum, tracing cloth, polyester base film, or high quality bond copy. Bid, general
conditions, contract and bond document forms or formats regularly used by CITY shall
be used by CONSULTANT unless the Director determines they would be impractical for
this Project. CONSULTANT shall be responsible for assuring that the special conditions,
technical specifications and any other documents prepared by CONSULTANT are
consistent with any documents regularly used by CITY that are used for this Project.
(2) Upon request of CITY, CONSULTANT shall provide the
calculations used to determine the general construction contract quantities; and
structural calculations for the purpose of obtaining any building permits.
(3) CONSULTANT shall make as many submittals as may be
necessary or desirable to obtain the acceptance by CITY and shall assist CITY in
applying for and obtaining from applicable public agencies any approval, permit, report,
statement, or waiver required by law, which assistance shall include, but not be limited
to, making Project information available to CITY.
(4) CONSULTANT shall provide CITY with five (5) sets of completed
plans and five (5) sets of completed specifications for review and final acceptance by
CITY. Should the plans and specifications as submitted by CONSULTANT not be
accepted by CITY, CONSULTANT shall revise the plans and specifications as needed to
obtain final acceptance at no additional cost to CITY.
(5) After acceptance of final corrections, if any, CONSULTANT shall
provide CITY with one set of accepted reproducible tracings and bid documents for the
Project. In addition, CONSULTANT shall provide CITY with one complete set of
GAD/System disk files of drawings and complete disk files of specifications in the
following format: AutoCAD and Pdf.
(6) CONSULTANT shall submit a final estimate of construction cost
for review and acceptance by CITY. Such estimate shall be calculated as of the date all
general construction contract documents are delivered to CITY in final form ready for
reproduction and advertising. Such estimate shall include, but shall separately state, the
cost of any add or deduct alternates , any work which may be let on a segregated basis,
and any equipment, or fixtures which may be incorporated in or excluded from the
general construction contract.
OPU -S 9 .1 /03-24-14
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(7) In the event that the final estimate of construction cost exceeds
the revised estimate of construction cost previously accepted, excluding therefrom any
add alternate, any work which may be let on a segregated bid basis and any furnishings,
equipment or fixtures which was identified in the final revised estimate in Part 2 as that
which may be excluded from the general construction contract, CITY shall have the
option of accepting or rejecting the final estimate. If CITY elects to reject the final
estimate, CONSULTANT shall at no additional cost to CITY, make such design changes
as may be necessary to reduce the final estimate so that it shall not exceed the revised
estimate of construction cost previously accepted by CITY.
(8) Services shall be undertaken and completed in a sequence
assuring expeditious completion. All services shall be rendered and deliverables
submitted within fifty (50) calendar days from the issuance of a Notice to Proceed for this
Part unless an extension of time is approved in writing by the Director. Re-submittals, as
necessary to obtain the acceptance by CITY, shall be submitted to CITY within ten (1 0)
calendar days from receipt of CITY'S comments unless an extension of time is approved
in writing by the Director.
(d) Part Four. Bidding Phase. After review and acceptance of the construction
document phase and if CITY elects to proceed to bid, which shall constitute a written
Notice to Proceed with this Part Four:
(1) CONSULTANT shall assist CITY in obtaining bids.
CONSULTANT shall not communicate with potential bidders regarding this Project
without the express prior written authorization of CITY'S Purchasing Manager.
(2) Upon request of CITY, CONSULTANT shall expeditiously draft
addendum as determined by CITY to be reasonable or necessary for the bidding
process.
(3) If the lowest responsible bid received for the general construction
contract exceeds by 1 0% or more the final estimate of construction cost previously
accepted by CITY, excluding therefrom any add alternate, any work which may be let on
a segregated bid basis and any furnishings, equipment or fixtures which are excluded
from the general construction contract, CONSULTANT shall, within 14 days of any
request by CITY, revise the plans and specifications as may be necessary to stay within
10% of such final estimate of construction cost, at no additional cost to CITY provided
such bid is received within 180 calendar days after completion of services in Section 1 (c)
of this Agreement. CONSULTANT shall also submit such revised plans and
specifications, together with a new final estimate of construction cost, to CITY for review
and acceptance. This procedure, using the latest accepted final estimate of construction
cost, shall, upon written notice to CONSULTANT from the Director, be repeated until an
acceptable bid is received that does not exceed the accepted final estimate of
construction cost by more that 1 0%.
(e) Part Five. Construction Phase and General Construction Contract
Administration. The construction phase will begin with the award of the general
construction contract, which shall constitute a written Notice to Proceed with this Part
Five, and will terminate when a Notice of Completion is filed. Upon award of a general
construction contract for the Project and under the direction of the Director through
CITY'S designated Construction Manager for the Project:
OPU-S 9.1 /03 -24-14
-5-
(1) CONSULTANT shall attend the pre-construction conference and,
if called upon by CITY, act on CITY'S behalf in discussing the various aspects of the
construction phase.
(2) CONSULTANT shall review and recommend in writing to CITY
acceptance or non-acceptance of shop drawings, equipment and material submittals of
the general construction contractor as required by the general construction contract and
applicable laws and regulations in a timely manner. The period for CONSULTANT
review shall be as specified in the general construction contract, except if such period is
not so specified, the period shall be as determined in the pre-construction conference as
mutually agreed upon by CITY, CONSULTANT and the general construction contractor.
(3) CONSULTANT shall , at intervals appropriate to the state of
construction, familiarize itself with the progress and quality of the work and determine in
general if the work is proceeding in accordance with the general construction contract
documents, and keep CITY informed of the progress of the work. In the event that
CONSULTANT'S visit to the site results in the d iscovery of any defect or deficiencies in
the work of the general construction contractor, CONSULTANT shall immediately advise
CITY and document, in writing, the work CONSULTANT deems substandard, and make
recommendations whe re appropriate to reject any work not conforming to the intended
design or specifications. Based on CONSULTANT'S best knowledge , information and
belief, CONSULTANT shall provide CITY a general written assurance that the work
covered by a payment application meets the standards in the general construction
contract. As to technical aspects , CONSULTANT shall provide a written judgment of the
acceptability of the work for payment applications and final acceptance, subject to
CITY'S right to overrule CONSULTANT.
(4) Upon written request by CITY, CONSULTANT shall render
interpretations of the general construction contract documents necessary for the proper
execution or progress of the work.
(5) Upon written request by CITY, CONSULTANT shall render written
recommendations on change orders , claims, disputes or other questions arising out of
the general construction contract, in a timely manner. Recommendations by
CONSULTANT in favor of a change order that is consequently accepted by CITY shall
constitute approval by CONSULTANT who shall then approve the change order i n
writing. CONSULTANT shall not unreasonably withhold written approval in the event
CITY accepts a change order that CONSULTANT recommended to be rejected. In the
event of any technical disputes, CONSULTANT shall provide CITY with
CONSULT ANT'S written interpretation of the contract documents. The period for
CONSULT ANT review shall be as specified in the general construction contract, except
if such period is not so specified , the period shall be as determined in the pre-
construction conference as mutually agreed upon by CITY, CONSULTANT and the
general construction contractor. If CITY, CONSULT ANT and the respective general
construction contractor are unable to mutually agree on such period for CONSULTANT
review, then CITY will make the determination and that determination will be final.
(6) Upon written request by CITY, CONSULTANT shall provide such
design and specification services as may be requested by CITY to implement change
DPU -S 9 .1 /03 ·24-14
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orders necessary for clarification or interpretation of the general construction contract
documents or which may have resulted from errors or omissions by CONSULTANT.
(7) Where change orders arise as a result of an increase in the scope
of work or are due to unforeseeable conditions, the parties may modify this Agreement,
which modification shall include an agreed upon increase in CONSULTANT'S
compensation.
(8) Upon written request of CITY, CONSULTANT shall assist CITY in
the preparation of Progress Payment Estimates and other related construction reports.
(9) CONSULTANT shall provide CITY with two sets of original
as-grade plans wet-stamped and signed by the CONSULTANT'S Engineer of Record for
the Project submitted for final approval by the CITY's Building and Safety Services
Division of the Development and Resource Management Department
(1 0) CONSULTANT shall prepare Record Drawings by updating the
accepted general construction documents in Part 3 to reflect all changes or deviations
that occurred during construction as reflected on or from each of the following: (i) the
general construction contractor provided red-lined plans, (ii) those furnished by the
CITY, (iii) CONSULTANT provided Request for Information responses, and (iv) any
CONSULTANT bulletins, amendments or clarifications. CONSULTANT shall provide
CITY with one set of vellum Record Drawings for the Project within fifteen (15) calendar
days from receipt of red-lined field markups unless an extension of time is approved in
writing by the Director. Re-submittals, as necessary to obtain the acceptance by CITY,
shall be submitted to CITY within ten (1 0) calendar days from receipt of CITY comments
unless an extension of time is approved in writing by the Director. In addition,
CONSULTANT shall provide CITY with one complete set of CAD/System disk files of
Record Drawings in the following format: AutoCAD and Pdf.
2. CITY'S responsibilities. CITY will:
(a) Provide, upon request and cooperation of CONSULTANT, access to, and
make all provisions necessary to, enter upon public or private lands as required for
CONSULT ANT to perform such services and inspections as are required in development of the
Project; provided, however, if CITY is unable to obtain access to enter upon public or private
lands, CONSULTANT shall not be relieved from performing its services as to those public and
private lands that are accessible.
(b) Manage and be responsible for all negotiations with owners in connection
with land or easement acquisition and provide all required title reports and appraisals.
(c) With the exception of preparing correspondence required for design, hold
all required special meetings, serve all public and private notices, receive and act upon all
protests, and perform all services customarily performed by owners as are necessary for the
orderly progress of the work and the successful completion of the Project, and pay all costs
incidental thereto.
(d) Select the testing laboratory and pay the cost of borings, samplings, and
other work involved in soils testing during construction.
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(e) Conduct onsite inspection during construction to check quality and
quantity of work as conditions warrant and be responsible for assuring that the general
construction contractor carries out all construction work in accordance with the plans and
specifications. However, this does not release CONSULTANT from its responsibility to make
periodic site visits under Section 1 (e) for the purpose of observing the work to determine its
general conformity with the plans and specifications and reporting its findings to CITY.
(f)
CONSULTANT.
Prepare all change orders during construction in cooperation with
(g) Prepare all Progress Payment Estimates in cooperation with
CONSULTANT following its general assurance that the work covered by a payment application
meets the standards in the general construction contract documents based upon
CONSULTANT'S best knowledge, information and belief.
(h) Pay, or cause to be paid, plan check fees, conditional use permit fees and
site plan review fees.
(i) Arrange for and pay, or cause to be paid, any fees associated with
Environmental Impact Reports or Statements.
(j) Give reasonably prompt consideration to all matters submitted by
CONSULTANT for acceptance to the end that there will be no substantial delays in
CONSULTANT'S program of work. For an acceptance, approval, authorization, a request or
any direction to CONSULTANT to be binding upon CITY under the terms of this Agreement,
such acceptance, approval, authorization, request or direction must be in writing, duly
authorized by CITY and signed on behalf of CITY by the Director.
3. Compensation.
(a) CONSULTANT'S sole compensation for satisfactory performance of all
services required or rendered pursuant to this Agreement shall be a total fee of one hundred
forty five thousand one hundred dollars ($145, 1 00.00), and a contingency amount not to exceed
fifteen thousand dollars ($15,000.00) for any additional work rendered pursuant to Subsection
(d) below and authorized in writing by the Director. Such fees include all expenses incurred by
CONSULTANT in performance of such services.
(b) Detailed statements shall be rendered monthly and will be payable in the
normal course of CITY business. Such statements shall be for an amount no greater than that
attributable to the Part upon which CONSULTANT is then engaged as provided in Section 3(c)
below.
(c) For purposes of determining the division of the total compensation to
CONSULTANT as provided in Section 3(a) above, or should performance of any succeeding
Part not be authorized by CITY as provided in Section 1 of this Agreement, it is agreed that the
total compensation shall be allocated to the five Parts of CONSULTANT'S performance as
follows: Part 1 -39%, Part 2 -24 .1 %, Part 3 -23.4%, Part 4 -3.2% and Part 5 - 1 0.3%.
Prior to the award of a general construction contract for the Project, or should such contract not
be awarded, the approved Parts as provided above shall be utilized for purposes of determining
the fee due to CONSULTANT.
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(d) The parties may modify this Agreement to increase or decrease the
scope of services or provide for the rendition of services not required by this Agreement, which
modification shall include an adjustment to CONSULTANT'S compensation. Any change in the
scope of services must be made by written amendment to the Agreement signed by an
authorized representative for each party. CONSULTANT shall not be entitled to any additional
compensation if services are performed prior to a signed written amendment. Subsequent to
the date of completion of Part Three, changes due to Code revisions or enactments adopted
after such date shall constitute additional work subject to this Section 3( d).
4. Termination, Remedies, Force Majeure, and Consolidation of Disputes.
(a) This Agreement shall terminate without any liability of CITY to
CONSULTANT upon the earlier of: (i) CONSULTANT'S filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party
against CONSULTANT; (ii) 7 calendar days prior written notice with or without cause by CITY to
CONSULTANT; (iii) CITY'S non-appropriation of funds sufficient to meet its obligations
hereunder during any CITY fiscal year of this Agreement, or insufficient funding for the Project;
or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
CONSULTANT shall (i) immediately stop all work hereunder; (ii) immediately cause any and all
of its subcontractors to cease work; and (iii) return to CITY any and all unearned payments and
all properties and materials in the possession of CONSULTANT that are owned by CITY.
Subject to the terms of this Agreement, CONSULTANT shall be paid compensation for services
satisfactorily performed prior to the effective date of termination. CONSULTANT shall not be
paid for any work or services performed or costs incurred which reasonably could have been
avoided.
(c) In the event of termination due to failure of CONSULTANT to satisfactorily
perform in accordance with the terms of this Agreement, CITY may withhold an amount that
would otherwise be payable as an offset to, but not in excess of, CITY'S damages caused by
such failure. In no event shall any payment by CITY pursuant to this Agreement constitute a
waiver by CITY of any breach of this Agreement which may then exist on the part of
CONSULTANT, nor shall such payment impair or prejudice any remedy available to CITY with
respect to the breach.
(d) Upon any breach of this Agreement by CONSULTANT, CITY may
(i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to
it under applicable laws of the State of California or any other applicable law; (ii) proceed by
appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct,
indirect, consequential, economic and incidental damages for the breach of the Agreement. If it
is determined that CITY improperly terminated this Agreement for default, such termination shall
be deemed a termination for convenience.
(e) CONSULTANT shall provide CITY with adequate written assurances of
future performance, upon the request of the Director or his/her designee, in the event
CONSULTANT fails to comply with any terms or conditions of this Agreement.
(f) CONSULTANT shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of CONSULTANT and without its fault
or negligence such as, acts of God or the public enemy, acts of CITY in its contractual capacity,
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fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of
common carriers. CONSULTANT shall notify the Director or his/her designee in writing as soon
as it is reasonably possible after the commencement of any excusable delay, setting forth the
full particulars in connection therewith, and shall remedy such occurrence with all reasonable
dispatch, and shall promptly give written notice to the Director or his/her designee of the
cessation of such occurrence.
(g) CONSULTANT agrees that, notwithstanding any contrary provision in this
Agreement, any dispute arising from or relating to this Agreement (including, without limitation,
disputes based on contract, tort, equity or statute) may, at CITY'S option, be joined and
consolidated with any other dispute or disputes arising from or relating to the Project so that all
disputes arising from or relating to the Project may be resolved in a single proceeding.
CONSULTANT hereby specifically waives any objection it may otherwise have to such joinder
and consolidation and specifically consents to mediation, arbitration or any other dispute
resolution mechanism, forum or proceeding necessary to effectuate the joinder and
consolidation contemplated by this provision.
5. Confidential Information, Ownership of Documents and Copyright License.
(a) Any reports, information, or other data prepared or assembled by
CONSULTANT pursuant to this Agreement shall not be made available to any individual or
organization by CONSULTANT without the prior written approval of CITY. During the term of
this Agreement, and thereafter, CONSULT ANT shall not, without the prior written consent of
CITY, disclose to anyone any Confidential Information. The term Confidential Information for
the purposes of this Agreement shall include all proprietary and confidential information of CITY,
including but not limited to business plans, marketing plans, financial information, designs,
drawings, specifications, materials, compilations, documents, instruments, models, source or
object codes and other information disclosed or submitted, orally, in writing, or by any other
medium or media. All Confidential Information shall be and remain confidential and proprietary
in CITY.
(b) Any and all original sketches, pencil tracings of working drawings, plans,
computations, specifications, computer disk files, writings and other documents prepared or
provided by CONSULTANT pursuant to this Agreement are the property of CITY at the time of
preparation and shall be turned over to CITY upon expiration or termination of the Agreement or
default by CONSULTANT. CONSULTANT grants CITY a copyright license to use such
drawings and writings. CONSULTANT shall not permit the reproduction or use thereof by any
other person except as otherwise expressly provided herein. CITY may modify the design
including any drawings or writings. Any use by CITY of the aforesaid sketches, tracings, plans,
computations, specifications, computer disk files, writings and other documents in completed
form as to other projects or extensions of this Project, or in uncompleted form, without specific
written verification by CONSULTANT will be at CITY'S sole risk and without liability or legal
exposure to CONSULTANT. CONSULTANT may keep a copy of all drawings and
specifications for its sole and exclusive use.
(c) If CONSULTANT should subcontract all or any portion of the services to
be performed under this Agreement, CONSULTANT shall cause each subcontractor to also
comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this Agreement.
OPU -S 9 .1 /03-24-14
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6. Professional Skill. It is further mutually understood and agreed by and between
the parties hereto that inasmuch as CONSULTANT represents to CITY that CONSULTANT and
its subcontractors, if any, are skilled in the profession and shall perform in accordance with the
standards of said profession necessary to perform the services agreed to be done by it under
this Agreement, CITY relies upon the skill of CONSULTANT and any subcontractors to do and
perform such services in a skillful manner and CONSULTANT agrees to thus perform the
services and require the same of any subcontractors. Therefore, any acceptance of such
services by CITY shall not operate as a release of CONSULT ANT or any subcontractors from
said professional standards.
7. Indemnification. To the furthest extent allowed by law, CONSULTANT shall
indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents
and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages
(whether in contract, tort or strict liability, including but not limited to personal injury, death at
any time and property damage), and from any and all claims, demands and actions in law or
equity (including reasonable attorney's fees and litigation expenses) that arise out of, pertain to,
or relate to the negligence, recklessness or willful misconduct of CONSULTANT, its principals,
officers, employees, agents or volunteers in the performance of this Agreement.
If CONSULTANT should subcontract all or any portion of the services to be performed
under this Agreement, CONSULTANT shall require each subcontractor to indemnify, hold
harmless and defend CITY and each of its officers, officials, employees, agents and volunteers
in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. Insurance.
(a) Throughout the life of this Agreement, CONSULTANT shall pay for and
maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into
and part of this Agreement, with an insurance company(ies) either (i) admitted by the California
Insurance Commissioner to do business in the State of California and rated no less than "A-VII"
in the Best's Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk
Manager or his/her designee at any time and in his/her sole discretion. The required policies of
insurance as stated in Exhibit 8 shall maintain limits of liability of not less than those amounts
stated therein. However, the insurance limits available to CITY, its officers, officials, employees,
agents and volunteers as additional insureds, shall be the greater of the minimum limits
specified therein or the full limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension,
CONSULTANT or any of its subcontractors/sub-consultants fail to maintain any required
insurance in full force and effect, all services and work under this Agreement shall be
discontinued immediately, and all payments due or that become due to CONSULTANT shall be
withheld until notice is received by CITY that the required insurance has been restored to full
force and effect and that the premiums therefore have been paid for a period satisfactory to
CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to
terminate this Agreement. No action taken by CITY pursuant to this section shall in any way
relieve CONSULTANT of its responsibilities under this Agreement. The phrase "fail to maintain
any required insurance" shall include, without limitation, notification received by CITY that an
insurer has commenced proceedings, or has had proceedings commenced against it, indicating
that the insurer is insolvent.
DPU·S 9.1 /03-24-14
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(c) The fact that insurance is obtained by CONSULTANT shall not be
deemed to release or diminish the liability of CONSULTANT, including, without limitation, liability
under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all
claims and liability regardless of whether any insurance policies are applicable. The policy limits
do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT.
Approval or purchase of any insurance contracts or policies shall in no way relieve from liability
nor limit the liability of CONSULTANT, its principals, officers, agents, employees, persons under
the supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub-consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
(d) If CONSULTANT should subcontract all or any portion of the services to
be performed under this Agreement, CONSULTANT shall require each subcontractor/sub-
consultant to provide insurance protection, as an additional insured, to the CITY and each of its
officers, officials, employees, agents and volunteers in accordance with the terms of this
section, except that any required certificates and applicable endorsements shall be on file with
CONSULTANT and CITY prior to the commencement of any services by the subcontractor.
CONSULTANT and any subcontractor/sub-consultant shall establish additional insured status
for CITY, its officers, officials, employees, agents and volunteers by using Insurance Service
Office (ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an
executed manuscript company endorsement providing additional insured status as broad as that
contained in ISO Form CG 20 1 0 11 85.
9. Conflict of Interest and Non-Solicitation.
(a) Prior to CITY'S execution of this Agreement, CONSULTANT shall
complete a City of Fresno conflict of interest disclosure statement in the form as set forth in
Exhibit C. During the term of this Agreement, CONSULTANT shall have the obligation and
duty to immediately notify CITY in writing of any change to the information provided by
CONSULTANT in such statement.
(b) CONSULTANT shall comply, and require its subcontractors to comply,
with all applicable (i) professional canons and requirements governing avoidance of
impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and
regulations including, without limitation, California Government Code Section 1090 et. seq., the
California Political Reform Act (California Government Code Section 87100 et. seq.), the
regulations of the Fair Political Practices Commission concerning disclosure and disqualification
(2 California Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno
Municipal Code (Ineligibility to Compete). At any time, upon written request of CITY ,
CONSULTANT shall provide a written opinion of its legal counsel and that of any subcontractor
that, after a due diligent inquiry, CONSULTANT and the respective subcontractor(s) are in full
compliance with all laws and regulations. CONSULTANT shall take, and require its
subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon
discovery of any facts giving rise to the appearance of a conflict of interest, CONSULTANT shall
immediately notify CITY of these facts in writing.
(c) In performing the work or services to be provided hereunder,
CONSULTANT shall not employ or retain the services of any person while such person either is
employed by CITY or is a member of any CITY council, commission, board, committee, or
similar CITY body. This requirement may be waived in writing by the City Manager, if no actual
or potential conflict is involved.
OPU-S 9.1 /03-24-14
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(d) CONSULTANT represents and warrants that it has not paid or agreed to
pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this
Agreement or any rights/benefits hereunder.
(e) Neither CONSULTANT, nor any of CONSULTANT'S subcontractors
performing any services on this Project, shall bid for, assist anyone in the preparation of a bid
for, or perform any services pursuant to, any other contract in connection with this Project.
CONSULTANT and any of its subcontractors shall have no interest, direct or indirect, in any
other contract with a third party in connection with this Project unless such interest is in
accordance with all applicable law and fully disclosed to and approved by the City Manager, in
advance and in writing.
(f) If CONSULTANT should subcontract all or any portion of the work to be
performed or services to be provided under this Agreement, CONSULTANT shall include the
provisions of this Section 9 in each subcontract and require its subcontractors to comply
therewith.
(g) This Section 9 shall survive expiration or termination of this Agreement.
10. Recycling Program. In the event CONSULTANT maintains an office or operates
a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of
the City of Fresno, CONSULTANT at its sole cost and expense shall:
(i) Immediately establish and maintain a viable and ongoing recycling program,
approved by CITY'S Solid Waste Management Division, for each office and
facility. Literature describing CITY recycling programs is available from CITY'S
Solid Waste Management Division and by calling City of Fresno Recycling
Hotline at (559) 621-1111.
(ii) Immediately contact CITY'S Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such
Division in their conduct of the audit for each office and facility.
(iii) Cooperate with and demonstrate to the satisfaction of CITY'S Solid Waste
Management Division the establishment of the recycling program in paragraph (i)
above and the ongoing maintenance thereof.
11 . General Terms.
(a) Except as otherwise provided by law, all notices expressly required of
CITY within the body of this Agreement, and not otherwise specifically provided for, shall be
effective only if signed by the Director or his/her designee.
(b) Records of CONSULTANT'S expenses pertaining to the Project shall be
kept on a generally recognized accounting basis and shall be available to CITY or its authorized
representatives upon request during regular business hours throughout the life of this
Agreement and for a period of three years after final payment or, if longer, for any period
required by law. In addition, all books, documents, papers, and records of CONSULTANT
pertaining to the Project shall be available for the purpose of making audits, examinations,
excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations,
audit or other action is commenced before the expiration of said time period, all records shall be
DPU·S 9.1 /03·24-14
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retained and made available to CITY until such action is resolved, or until the end of said time
period whichever shall later occur. If CONSULTANT should subcontract all or any portion of the
services to be performed under this Agreement , CONSULTANT shall cause each subcontractor
to also comply with the requirements of this paragraph. This Section 11 (b) shall survive
expiration or termination of this Agreement.
(c) Prior to execution of this Agreement by CITY , CONSULTANT shall have
provided evidence to CITY that CONSULTANT is licensed to perform the services called for by
this Agreement (or that no license is required). If CONSULTANT should subcontract all or any
portion of the work or services to be performed under this Agreement , CONSULTANT shall
require each subcontractor to provide evidence to CITY that subcontractor is licensed to
perform the services called for by this Agreement (or that no license is required) before
beginning work.
(d) CONSULTANT'S services pursuant to this Agreement shall be provided
under the supervision of Karl E. Kienow , and he/she shall not assign another to supervise
CONSULTANT'S performance of this Agreement without the prior written approval of the
Director.
12. Nondiscrimination. To the extent required by controlling federal, state and local
law, CONSULTANT shall not employ discriminatory practices in the provision of services ,
employment of personnel, or in any other respect on the basis of race, religious creed, color,
national origin, ancestry, physical disability , mental disability, medical condition, marital status,
sex , age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam
era. Subject to the foregoing and during the performance of this Agreement , CONSULTANT
agrees as follows:
(a) CONSULTANT will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race , religious creed, color, national origin ,
ancestry, physical disability , mental disability , medical condition, marital status , sex , age, sexual
orientation , ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded
from participation in , be denied the benefits of , or be subject to discrimination under any
program or activity made possible by or resulting from this Agreement.
(b) CONSULTANT will not discriminate against any employee or applicant for
employment because of race , religious creed, color , national origin , ancestry , physical disability,
mental disability, medical condition , marital status , sex , age, sexual orientation , ethnicity, status
as a disabled veteran or veteran of the Vietnam era. CONSULT ANT shall ensure that
applicants are employed, and the employees are treated dur ing employment, without regard to
their race , religious creed, color, national origin , ancestry , physical disability , mental disability ,
medical condition , marital status, sex, age , sexual orientation , ethnicity , status as a disabled
veteran or veteran of the Vietnam era . Such requirement shall apply to CONSULTANT'S
employment practices including, but not be limited to, the following: employment, upgrading,
demotion or transfer ; recruitment or recruitment advert ising ; layoff or termination; rates of pay or
other forms of compensation; and selection for training , including apprenticeship.
CONSULTANT agrees to post in conspicuous places , available to employees and applicants for
employment , not ices setting forth the provis ion of this nondiscriminat ion clause.
(c) CONSULTANT will , in all solicitations or advertisements for employees
placed by or on behalf of CONSULTANT in pursuit hereof , state that all qualified appl icants will
receive consideration for employment without regard to race , rel igious creed , color , nationa l
DPU·S 9 .1 /03-24-14
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origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
(d) CONSULT ANT will send to each labor union or representative of workers
with which it has a collective bargaining agreement or other contract or understanding, a notice
advising such labor union or workers' representatives of CONSULTANT'S commitment under
this section and shall post copies of the notice in conspicuous places available to employees
and applicants for employment.
(e) If CONSULTANT should subcontract all or any portion of the services to
be performed under this Agreement, CONSULTANT shall cause each subcontractor to also
comply with the requirements of this Section 12.
13. Independent Contractor.
(a) In the furnishing of the services provided for herein, CONSULTANT is
acting solely as an independent contractor. Neither CONSULTANT, nor any of its officers,
agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or
associate of CITY for any purpose. CITY shall have no right to control or supervise or direct the
manner or method by which CONSULTANT shall perform its work and functions. However,
CITY shall retain the right to administer this Agreement so as to verify that CONSULTANT is
performing its obligations in accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between
CONSULTANT and CITY. CONSULTANT shall have no authority to bind CITY absent CITY'S
express written consent. Except to the extent otherwise provided in this Agreement,
CONSULTANT shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, CONSULTANT and
its officers, agents and employees shall have absolutely no right to employment rights and
benefits available to CITY employees. CONSULTANT shall be solely liable and responsible for
all payroll and tax withholding and for providing to, or on behalf of, its employees all employee
benefits including, without limitation, health, welfare and retirement benefits. In addition,
together with its other obligations under this Agreement, CONSULTANT shall be solely
responsible, indemnify, defend and save CITY harmless from all matters relating to employment
and tax withholding for and payment of CONSULTANT'S employees, including, without
limitation, (i) compliance with Social Security and unemployment insurance withholding,
payment of workers' compensation benefits, and all other laws and regulations governing
matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in
CITY employment benefits, entitlements, programs and/or funds offered employees of CITY
whether arising by reason of any common law, de facto, leased, or co-employee rights or other
theory. It is acknowledged that during the term of this Agreement, CONSULTANT may be
providing services to others unrelated to CITY or to this Agreement.
14. Notices. Any notice required or intended to be given to either party under the
terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered
personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by
United States registered or certified mail, with postage prepaid, return receipt requested,
addressed to the party to which notice is to be given at the party's address set forth on the
signature page of this Agreement or at such other address as the parties may from time to time
DPU-S 9 .1 /03·24-14
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designate by written notice. Notices served by United States mail in the manner above
described shall be deemed sufficiently served or given at the time of the mailing thereof.
15. Binding. Subject to Section 16 below, once this Agreement is signed by all
parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties'
respective heirs, successors, assigns, transferees, agents, servants, employees and
representatives.
16. Assignment.
(a) This Agreement is personal to CONSULTANT and there shall be no
assignment by CONSULTANT of its rights or obligations under this Agreement without the prior
written approval of the City Manager or his/her designee. Any attempted assignment by
CONSULTANT, its successors or assigns, shall be null and void unless approved in writing by
the City Manager or his/her designee.
(b) CONSULT ANT hereby agrees not to assign the payment of any monies
due CONSULTANT from CITY under the terms of this Agreement to any other individual(s),
corporation(s) or entity(ies). CITY retains the right to pay any and all monies due
CONSULTANT directly to CONSULTANT.
17. Compliance With Law. In providing the services required under this Agreement,
CONSULT ANT shall at all times comply with all applicable laws of the United States, the State
of California and CITY, and with all applicable regulations promulgated by federal, state,
regional, or local administrative and regulatory agencies, now in force and as they may be
enacted, issued, or amended during the term of this Agreement.
18. Waiver. 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. No provisions of this Agreement may
be waived unless in writing and signed by all parties to this Agreement. Waiver of any one
provision herein shall not be deemed to be a waiver of any other provision herein.
19. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction . Venue for
purposes of the filing of any action regarding the enforcement or interpretation of this
Agreement and any rights and duties hereunder shall be Fresno County, California.
20. Headings. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify or add to the
interpretation or meaning of the provisions of this Agreement.
21. Severability. The provisions of this Agreement are severable. The invalidity, or
unenforceability of any one provision in this Agreement shall not affect the other provisions.
22. Interpretation. The parties acknowledge that this Agreement in its final form is
the result of the combined efforts of the parties and that, should any provision of this Agreement
be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this
Agreement in favor of or against either party, but rather by construing the terms in accordance
with their generally accepted meaning.
OPU -S 9.1 /03-24 -14
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23. Attorney's Fees. If either party is required to commence any proceeding or legal
action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing
party in such proceeding or action shall be entitled to recover from the other party its reasonable
attorney's fees and legal expenses.
24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
25. Precedence of Documents. In the event of any conflict between the body of this
Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this
Agreement shall control and take precedence over the terms and conditions expressed within
the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or
Attachment hereto which purport to modify the allocation of risk between the parties, provided
for within the body of this Agreement, shall be null and void.
26. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined
within this Agreement are intended for the specific parties hereto as identified in the preamble of
this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not
intended that any rights or interests in this Agreement benefit or flow to the interest of any third
parties.
28. Extent of Agreement. Each party acknowledges that they have read and fully
understand the contents of this Agreement. This Agreement represents the entire and
integrated agreement between the parties with respect to the subject matter hereof and
supersedes all prior negotiations, representations or agreements, either written or oral. This
Agreement may be modified only by written instrument duly authorized and executed by both
CITY and CONSULTANT.
Ill
Ill
Ill
DPU·S 9.1 /03·24-14
-17-
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
By: --------------------Thomas C. Esqueda,
Director
Department of Public Utilities
ATTEST:
YVONNE SPENCE, CMC
City Clerk
By: --------------------
Deputy
No signature of City Attorney required.
Standard Document #OPU-S 9.1 has been
used without modification, as certified by
the undersigned.
By: ----'r-="------JL""""-------
Patricia Die
Supervising Engineering Technician
Department of Public Utilities
REVIEWED BY:
Kevin L. Norgaard, Supe sing
Professional Engineer
Department of Public Utilities
Addresses :
CITY:
City of Fresno
Attention: Kevin L. Norgaard,
Supervising Professional Engineer
5607 W. Jensen Ave.
Fresno, CA 93706
Phone: (559) 621 -5297
FAX: (559) 498-1700
Attachments:
1.
2.
Exhibit A -Scope of Services
Exhibit B -Insurance Requirements
Blair, Church & Flynn Consulting Engineers,
a California Cor oration
Name: Karl E. Kienow
Title : Vice President
[if corporation or LLC, Board
Chair, Pres. or Vice Pres.]
Name: Adam K. Holt
Title: CFO I Secretary
[if corporation or LLC, CFO ,
Treasurer, Secretary or Assistant
Secretary.]
Any Applicable Professional License:
Number: C51,615
Name: Karl E. Kienow
Date of Issuance: 4 Feb 1994
CONSULTANT:
Blair, Church & Flynn Consulting Engineers
Attention : Karl E. Kienow ,
Principal
451 Clovis Ave., Suite 200
Clovis, CA. 93612
Phone: (559) 326-1400
FAX: (559) 326-1500
3. Exhibit C -Conflict of Interest Disclosure Form
OPU -S 9 .1 /03 -24-14
-18-
Exhibit A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno ("City")
and Blair, Church & Flynn Consulting Engineers ("Consultant")
Sewer Rehabilitation and Replacement in Chinatown
PROJECT TITLE
Project Background
This Scope of Engineering Services (Scope) provides for the design of sewer rehabilitation I
replacement in the "Chinatown" area of downtown Fresno. The project area is generally
bounded by G Street, Stanislaus Street, lnyo Street and State Highway 99.
The project includes approximately 9,610 linear feet of existing sewer mains ranging in size
from 4 inches to 24 inches in diameter; most of the project sewers range from 6 inches to 12
inches in diameter. Most of the project sewers are vitrified clay pipe (VCP), except for some of
the 22-inch and 24-inch sewers, which have a combined length of approximately 720 feet and
are standard concrete pipe (SCP). The majority of the project sewers are in alleys within the
project area, but some of the project sewers are in the streets. The project sewers are generally
very old, with some dating back to 1890.
Approximately 8,890 linear feet of the project sewers have been video inspected by City crews,
and the City will provide the corresponding video imagery. The remaining 720 linear feet of the
project sewers are designated by the City as needing further evaluation. This Scope provides
for closed circuit television (CCTV) inspection of the remaining sewers to be done as the basis
for further evaluation.
Sewer rehabilitation I replacement is proposed where necessary to remedy structural
deficiencies such as holes and cracks, to increase the size of certain sewers, restore old sewer
mains that are beyond their expected service life, and halt the effects of sulfide-related corrosion
processes for the SCP sewers.
Project Work Plan
The Project shall be accomplished through the implementation of a five-part work plan
incorporating the following phases:
• Schematic Design Phase
• Design Development Phase
• Construction Document Phase
• Bidding Phase
• Construction Phase and General Construction Contract Administration
The Schematic Design Phase shall include CCTV inspection for those sewers that have not
already been inspected by City crews. All CCTV inspection imagery, including imagery
provided by the City, shall be reviewed to evaluate the project sewers in conformance with the
National Association of Sewer Service Companies (NASSCO) Pipeline Assessment Certification
Program (PACP) evaluation standards.
DPU -S 9 .1 /03-24-14
Page 1 of 5
The Schematic Design Phase shall include a geotechnical investigation for the proposed sewer
rehabilitation I replacement improvements. The geotechnical investigation shall be based on a
series of 1 0 borings in the vicinity of the project sewers, to depths extending to at least five feet
below the sewer invert. Laboratory testing shall include gradation, moisture-density, shear,
corrosivity, and resistivity analyses. A geotechnical report shall be prepared to document the
investigation, and shall include trench configuration and pipe bedding recommendations for pipe
materials under consideration. Approved traffic control shall be provided for field operations.
The Schematic Design Phase shall culminate in the submittal of a Schematic Design Report,
together with a construction cost estimate. The Schematic Design Report shall document the
inspection and evaluation of the project sewers, and shall provide recommendations for the
sewer rehabilitation or replacement methods recommended for each reach of the project
sewers. The report shall further address the various issues expected to influence project
design, including utility research findings, structure placement and configuration, temporary
bypass pipeline routing, and potential conflicts with existing facilities. The report shall include
recommendations for the design features to be implemented in subsequent design development
and construction document phases, including rehabilitation and replacement methods and
materials, manhole and structure rehabilitation, construction of additional manholes, temporary
handling of wastewater flows, and construction method recommendations.
The Design Development Phase shall include the preparation and submittal of preliminary
plans, specifications, and estimates (approximately 60% design completion), incorporating the
recommendations of the Schematic Design Phase as approved by the City. This phase shall
also include a California Environmental Quality Act (CEQA) analysis to the extent necessary to
verify whether or not the Project qualifies for a Categorical Exemption as expected, and the
preparation and filing of a corresponding Notice of Exemption.
The Construction Document Phase shall include the preparation and submittal of plans,
specifications, and estimates at the draft final (approximately 90% design completion) and final
(1 00% complete) stages of completion. At each submittal stage, review comments resulting
from the prior submittal shall be thoroughly addressed.
For locations where rehabilitation work will require equipment setup in major intersections,
construction staging and traffic handling plans shall be prepared to facilitate work in the
intersection while providing for safe traffic movement through the work area. The construction
contractor will be required to implement the construction staging and traffic handling plans as
part of traffic control operations.
The preparation of plans, specifications , and estimates shall result in a single set of bid and
construction documents, intended to be bid and constructed under a single construction
contract, unless other arrangements are specified or approved by the City .
Blair, Church & Flynn Consulting Engineers shall provide the engineering services enumerated
in the following task outline.
PART 1 SCHEMATIC DESIGN PHASE
A. PROGRAMMING AND SCHEMATIC DESIGN REPORT
1. Schedule and Conduct Project Kick-off Meeting
2. Conduct Site Investigations
3. Conduct Public Street, Property Line & OPL Research
DPU-S 9.1 /03-24-14
Page 2 of 5
4. Conduct Office and Field Utility Investigations
5. Obtain and Incorporate Aerial Photography
a. Fresno Stock Coverage
6. Conduct Topographic Surveys
7. Conduct Geotechnical Investigation
8. Obtain and Incorporate City CCTV Inspection Data
a. Approximately 8,890 Linear Feet of Project Sewers
9. Conduct Additional CCTV Sewer Inspections
a. Approximately 720 Linear Feet of Project Sewers
b. Record in Digital Format Compatible with City Systems
10. Review CCTV Inspection Data and Evaluate Sewer Condition
a. By PACP-Certified Professionals
11. Formulate Rehabilitation I Replacement Recommendations
12. Prepare Estimates of Quantities and Cost
13. Prepare Schematic Design Letter Report , Incorporating:
a. Utility Investigation Findings
b. Geotechnical Investigation
c. Inspection and Evaluation Results
d. Rehabilitation I Replacement Recommendations
e. Construction Method Recommendations
f. Manhole Construction Recommendations
g. Temporary Handling of Wastewater Flow Recommendations
14. Submit Schematic Design Letter Report
PART 2 DESIGN DEVELOPMENT PHASE
A. PRELIMINARY PLANS, SPECIFICATIONS AND ESTIMATES
1. Prepare Preliminary Cover and Index Sheets
2. Prepare Preliminary Plan and Profile Drawings
3. Prepare Preliminary Construction Detail Drawings
4. Prepare Preliminary Construction Staging and Traffic Handling Plans
5. Prepare Preliminary Technical Specifications
6. Prepare Itemized Estimate of Quantities and Cost
7. Address Schematic Design Review Comments
8. Submit Preliminary (60%) Plans , Specifications and Estimate
B. UTILITY AND AGENCY COORDINATION
1. Submit Preliminary Plans to Affected Utilities , Agencies & Districts
2. Obtain Necessary Permits from Affected Utilities, Agencies & Districts
a. None Expected to be Required
3. Coordinate Utility Relocation Efforts with Project Design
C. CEQA ANALYSIS
1. Evaluate Project for Applicability of Categorical Exemption
2. Prepare and File Notice of Exemption
PART 3 CONSTRUCTION DOCUMENT PHASE
A. DRAFT FINAL DESIGN
1. Prepare Draft Final Cover and Index Sheets
2. Prepare Draft Final Plan and Profile Drawings
OPU -S 9 .1 /03-24 -14
Page 3 of 5
3. Prepare Draft Final Construction Detail Drawings
4. Prepare Draft Final Construction Staging and Traffic Handling Plans
5. Prepare Draft Final Technical Specifications
6. Incorporate City "Boilerplate" Documents
7. Prepare Itemized Estimate of Quantities and Cost
8. Address Preliminary Review Comments
9. Submit Draft Final (90%) Plans, Specifications and Estimate
B. FINAL PLANS, SPECIFICATIONS AND ESTIMATES
1 . Prepare Final Plans
2. Prepare Final Specifications
3. Prepare Final Itemized Estimate of Quantities and Cost
4. Address Draft Final Review Comments
5. Submit Final (1 00%) Plans, Specifications and Estimate
PART 4 BIDDING PHASE
A . BID SERVICES
1 . Attend Pre-Bid Conference
2. Prepare Addenda and Clarifications
3. Attend Bid Opening and Evaluate Bid Proposals
PART 5 CONSTRUCTION PHASE AND GENERAL CONSTRUCTION CONTRACT
ADMINISTRATION
A. CONSTRUCTION SERVICES
1 . Attend Pre-Construction Conference
2. Review Shop Drawings and other Contractor Submittals
3. Respond to Requests for Information (RFis)
4. Provide Periodic Worksite Observation
5. Prepare Record Drawings
ASSUMPTIONS
A. CCTV inspection will be provided for approximately 720 feet of project sewers that have
not already been inspected by City crews.
B. Project sewer manholes are accessible, or will be made accessible by the City, to allow
entry for CCTV inspection.
C. CCTV inspection will include two cleaning passes with a hydraulic jetter immediately
prior to CCTV camera passage to ensure that the interior of the sewer is sufficiently clean and
visible to allow effective inspection .
D. For project sewers in which two cleaning passes with a properly functioning hydraulic
jetter cannot clean the sewer sufficiently for effective inspection, the City will provide any
necessary additional cleaning.
E. If the flow level in a sewer is too high to allow the camera to view and record the surface
of the pipe, then the City will be contacted to temporarily plug the sewer, implement a diversion
or bypass pumping system, or make other arrangements to control wastewater flow for CCTV
inspection.
F. CCTV inspections will be recorded in a digital format compatible with the City's computer
systems.
OPU-S 9 .1 /03-24-14
Page 4 of 5
OPU -S 9 .1 /03-24-14
Page 5 of 5
Exhibit B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno ("CITY")
and Blair, Church & Flynn Consulting Engineers ("CONSULTANT")
Sewer Rehabilitation and Replacement in Chinatown
PROJECT TITLE
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial General
Liability Coverage Form CG 00 01, providing liability coverage arising out of your
business operations. The Commercial General Liability policy shall be written on
an occurrence form and shall provide coverage for "bodily injury," "property
damage" and "personal and advertising injury" with coverage for premises and
operations (including the use of owned and non-owned equipment), products and
completed operations, and contractual liability (including, without limitation,
indemnity obligations under the Agreement) with limits of liability not less than
those set forth under "Minimum Limits of Insurance."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01,
providing liability coverage arising out of the ownership, maintenance or use of
automobiles in the course of your business operations. The Automobile Policy
shall be written on an occurrence form and shall provide coverage for all owned,
hired, and non-owned automobiles or other licensed vehicles (Code 1-Any
Auto). If personal automobile coverage is used, the CITY, its officers, officials,
employees, agents and volunteers are to be listed as additional insureds.
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to
CONSULTANT'S profession. Architect's and engineer's coverage is to be
endorsed to include contractual liability.
MINIMUM LIMITS OF INSURANCE
CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits of
liability of not less than those set forth below. However, insurance limits available to CITY, its
officers, officials, employees, agents and volunteers as additional insureds, shall be the greater
of the minimum limits specified herein or the full limit of any insurance proceeds available to the
named insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1 ,000,000 per occurrence for bodily injury and property damage;
(ii) $1 ,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
OPU-S 9 .1/03-24-14
Page 1 of 4
(iv) $2,000,000 general aggregate applying separately to the work performed
under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1 ,000,000 per accident for bodily injury and property damage.
OR*
PERSONAL AUTOMOBILE LIABILITY insurance with limits of liability not less
than:
(i) $100,000 per person ;
(ii) $300 ,000 per accident for bodily injury; and,
(iii) $50,000 per accident for property damage.
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1 ,000 ,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1 ,000 ,000 disease policy limit.
5 . PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1 ,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate .
UMBRELLA OR EXCESS INSURANCE
In the event CONSULTANT purchases an Umbrella or Excess insurance pol icy(ies) to meet the
"Minimum Limits of Insurance," this insurance policy(ies) shall "follow form " and afford no less
coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance
policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY ,
its officers , officials, employees, agents and vo lunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
CONSULTANT shall be responsible for payment of any deductibles contained in any insurance
policy(ies) required herein and CONSULTANT shall also be responsible for payment of any self-
insured retentions. Any deductibles or self-insured retentions must be declared on the
Certificate of Insurance , and approved by , the CITY 'S Risk Manager or his/her designee . At the
option of the CITY 'S Risk Manager or his/her des ignee , either :
OPU-S 9.1 /03-24-14
(i) The insurer shall reduce or eliminate such deduct ibles or self-insured
retentions as respects CITY , its officers , officials , employees, agents and
volunteers ; or
(ii ) CONSULTANT shall provide a financial guarantee , satisfactory to CITY 'S
Risk Manager or his/her designee , guaranteeing payment of losses and
Page 2 of 4
related investigations , claim administration and defense expenses. At no
time shall CITY be responsible for the payment of any deductibles or self-
insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be endorsed
to contain, the following provisions:
1. CITY, its officers, officials, employees, agents and volunteers are to be covered
as additional insureds. CONSULTANT shall establish additional insured status
for the City and for all ongoing and completed operations by use of ISO Form
CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 3710 01 or by an executed
manuscript insurance company endorsement providing additional insured status
as broad as that contained in ISO Form CG 20 10 11 85.
2. The coverage shall contain no special limitations on the scope of protection
afforded to CITY, its officers, officials, employees, agents and volunteers. Any
available insurance proceeds in excess of the specified minimum limits and
coverage shall be available to the Additional Insured.
3. For any claims related to this Agreement, CONSULTANT'S insurance coverage
shall be primary insurance with respect to the CITY, its officers, officials,
employees, agents and volunteers. Any insurance or self-insurance maintained
by the CITY, its officers, officials, employees, agents and volunteers shall be
excess of CONSULTANT'S insurance and shall not contribute with it.
CONSULTANT shall establish primary and non-contributory status by using ISO
Form CG 20 01 04 13 or by an executed manuscript insurance company
endorsement that provides primary and non-contributory status as broad as that
contained in ISO Form CG 20 01 04 13.
The Workers ' Compensation insurance policy is to contain , or be endorsed to contain, the
following provision: CONSULTANT and its insurer shall waive any right of subrogation against
CITY, its officers, officials , employees, agents and volunteers.
If the Professional Liability (Errors and Omissions) insurance policy is written on a claims-made
form:
1. The retroactive date must be shown, and must be before the effective date of the
Agreement or the commencement of work by CONSULTANT.
2. Insurance must be maintained and evidence of insurance must be provided for at
least five (5) years after completion of the Agreement work or termination of the
Agreement, whichever occurs first, or, in the alternative, the policy shall be
endorsed to provide not less than a five (5) year discovery period.
3. If coverage is canceled or non-renewed , and not replaced with another claims-
made policy form with a retroactive date prior to the effective date of the
Agreement or the commencement of work by CONSULTANT , CONSULTANT
must purchase "extended reporting " coverage for a minimum of five (5) years
OPU -S 9.1 /03-24-14
Page 3 of 4
after completion of the Agreement work or termination of the Agreement,
whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to CITY for
review.
5. These requirements shall survive expiration or termination of the Agreement.
All policies of insurance required herein shall be endorsed to provide that the coverage shall not
be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar
days written notice by certified mail, return receipt requested, has been given to CITY.
CONSULTANT is also responsible for providing written notice to the CITY under the same
terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation,
non-renewal, or reduction in coverage or in limits, CONSULTANT shall furnish CITY with a new
certificate and applicable endorsements for such policy(ies). In the event any policy is due to
expire during the work to be performed for CITY, CONSULTANT shall provide a new certificate,
and applicable endorsements, evidencing renewal of such policy not less than fifteen (15)
calendar days prior to the expiration date of the expiring policy.
VERIFICATION OF COVERAGE
CONSULTANT shall furnish CITY with all certificate(s) and applicable endorsements effecting
coverage required hereunder. All certificates and applicable endorsements are to be received
and approved by the CITY'S Risk Manager or his/her designee prior to CITY'S execution of the
Agreement and before work commences. All non-ISO endorsements amending policy coverage
shall be executed by a licensed and authorized agent or broker. Upon request of CITY,
CONSULTANT shall immediately furnish City with a complete copy of any insurance policy
required under this Agreement, including all endorsements, with said copy certified by the
underwriter to be a true and correct copy of the original policy . This requirement shall survive
expiration or termination of this Agreement.
OPU-S 9.1 /03-24-14
Page 4 of 4
1
2
3
4
5
6
Exhibit C
DISCLOSURE OF CONFLICT OF INTEREST
Sewer Rehabilitation and Replacement in Chinatown
PROJECT TITLE
Are you currently in litigation with the City of Fresno or any of its
agents?
Do you represent any firm, organization or person who is in
litigation with the City of Fresno?
Do you currently represent or perform work for any clients who do
business with the City of Fresno?
Are you or any of your principals , managers or professionals,
owners or investors in a business which does business with the
City of Fresno, or in a business which is in litigation with the City of
Fresno?
Are you or any of your principals , managers or professionals,
related by blood or marriage to any City of Fresno employee who
has any significant role in the subject matter of this service?
Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with
this Project?
* If the answer to any question is yes, please explain in full below. -
YES*
D
D
•
D
D
D
~~~~~ Explanation:
Si 111aL J 1c •
Item 3: Blair, Church & Flynn Consulting Engineers has
a number of clients that could potentially do business
with the City of Fresno including : the City of Clovis, the
County of Fresno, Fresno Irrigation District, Fresno
Metropolitan Flood Contro l District, Clovis USD , Fresno
USD and Central USD.
g
September 8, 2014
Date
Adam K. Holt
(name)
Blair, Church & Flynn
(company)
451 Clovis Ave , Suite 200
(address)
Clovis, CA 93612
(city state zip)
NO
•
•
D
•
•
•
City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-361 Agenda Date:10/9/2014 Agenda #:2-A
REPORT TO THE CITY COUNCIL
October 9, 2014
FROM:JENNIFER K. CLARK, Director
Development and Resource Management Department
BY:DEL ESTABROOKE, Parking Manager
Parking Services Division
SUBJECT
Approve the selection of, and award a contract to, Republic Parking Inc. to provide Parking Facilities
Management Services in downtown Fresno
RECOMMENDATION
Staff recommends that the Council approve the selection of,and award a contract to,Republic
Parking,Inc.to provide professional Parking Facilities Management Services at City-owned
Downtown parking lots and garages in the amount of $6,595,263 for the first five-year term.In
addition to the initial five-year term,the proposed contract includes five (5)one-year optional
extensions.Staff also recommends that the City Manager,in conjunction with the City Attorney,or
his representative be authorized to sign the original five-year contract and the one-year extensions
on behalf of the City of Fresno.
EXECUTIVE SUMMARY
Since 2005 Downtown parking facilities management services have been provided to the City by Ace
Parking.The term of the service agreement with Ace Parking has ended,and a Request for
Proposals (RFP)for these services for the next five (5)years was released to the public on February
10, 2014. The City received Seven (7) proposals of which six were deemed responsive to the RFP.
The Proposals were reviewed by the Parking Management Services RFP Selection Review
Committee (Committee)which conducted three rounds of meetings.The final selection of Republic
Parking Services was based on their experience,comprehensive plan for customer service,
technology,and cost.The Committee was impressed by Republic’s presentation,professionalism,
and commitment to Fresno’s revitalization efforts downtown.The Committee believes Republic
Parking Inc.will be a valuable partner and provide excellent service,superior recordkeeping,and
reporting while efficiently managing the parking program in downtown Fresno.
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File #:ID#14-361 Agenda Date:10/9/2014 Agenda #:2-A
The Parking Division’s payment to Ace Parking ranges from $1.7 million to $2.4 million dollars
annually,which includes management fees and applicable pass through expenses.The proposed
management agreement with Republic Parking Inc.reduces the Parking Division’s annual
commitment to $1.3 million resulting in a potential savings of $400,000 to $900,000 each year.
BACKGROUND
The long-term contract and multiple extensions with Ace Parking to provide Downtown parking
facilities management services expired.An RFP for these services was released to the public on
February 10,2014.Eight (8)Building Exchanges received the RFP by facsimile,and as a result
thirty-seven (37)prospective proposers received the RFP.The Scope of Work was written to include
upgrades and changes to maintenance and customer service levels,strategies to increase revenues
potential,improving aesthetics and safety,and technology opportunities to support Downtown
revitalization.
A Selection Review Committee was convened to review the proposals.The Committee included staff
from City of Fresno Purchasing Division,the City Manager’s Office,Internal Audit,FYI,Development
and Resource Management,as well as the interim President and a board member from the
Downtown Fresno Partnership.Parking Services staff provided technical background to the
Committee but did not participate in the scoring of the proposals.
The Committee met on three occasions to review proposals,methodically score and select the final
proposer.While cost was an important consideration,it was not the sole deciding factor in the
Committee’s evaluation.The RFP sought a vendor who possessed extensive experience in special
events due to the number of venues located in the Downtown area,a marketing strategy,a forward
thinking approach to improving the facilities,and innovative techniques for supporting Downtown
revitalization and increasing revenues.The RFP also specifically requested a comprehensive
program to include robust accounting procedures, record keeping, and reporting.
At the first meeting two responses were eliminated from further consideration.The first proposal
eliminated was Pro Park due the submission being non-responsive to RFP requirements.Their bid
proposal page was not complete and the Committee determined they could not adequately evaluate
their proposal.Ace Parking,the incumbent contract holder,was also eliminated in the first round.
The Ace Parking proposal was among the most expensive and the quality of the presentation was
lower than the five proposers that moved on to the second round.Prior to the second round the
Committee requested additional clarifying information from both LAZ Parking and Parking Concepts.
During the second meeting the Committee focused on the specificity in each of the proposals relating
to strategy,technology,customer service,and management experience.These attributes were then
compared to the relative cost of each proposal.At the conclusion of the second round the Committee
eliminated three other candidates and selected two finalists.For the third round Republic Parking
and SP Plus Corporation were invited to make a presentation and be interviewed by the Committee.
Both companies gave excellent presentations but ultimately the Committee agreed to recommend
Republic Parking Inc.based on their interview,presentation,overall experience,submitted proposal,
cost, and commitment to our downtown area.
During the Committee’s review of the proposals,the five (5)companies eliminated during the first two
rounds were not invited to be interviewed for various reasons including the following:
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File #:ID#14-361 Agenda Date:10/9/2014 Agenda #:2-A
·Incomplete proposal as required in the RFP;
·Proposed costs;
·One proposer was rejected because they lacked adequate documentation to support their
ability to upfront operational costs of more than $1,000,000 annually (the vendor must pay
expenses and then request reimbursement from the City);
·A Proposer was eliminated because the approach relied too heavily on automation and lacked
a strong customer service element which would be complimentary to the City’s Downtown
revitalization efforts;
·A lack of experience in a downtown environment; and
·Proposal not comparing in strength to the others in areas related to reporting,technology and
customer service.
For reference, the five-year cost for the seven Proposers were as follows:
Bidder Proposal Selected Not Selected
LAZ Parking $3,884,614 X
Parking Concepts, Inc.$4,645,009 X
SP Plus Corp $6,066,056 X
Republic Parking $6,595,263 X
Ace Parking $8,322,380 X
ABM Parking $9,238,970 X
Pro Park Not Included X
After exhausting due diligence consideration for all the proposals received,the Committee and staff
recommend awarding the contract to Republic Parking Inc.to provide Parking Facilities Management
Services for the next contract term.
ENVIRONMENTAL FINDINGS
Pursuant to the provisions of California Environmental Quality Act (CEQA)Guidelines Section 15378,
this agreement is not a project for the purposes of CEQA.
LOCAL PREFERENCE
Local preference did not affect the award of this requirements contract since none of the proposers
qualify for the local business preference according to the Fresno Municipal Code Section 4-108(a).
FISCAL IMPACT
The fees include two components:1)Management Fee of $952,696 for the five year period;and 2)
Pass-through expenses of $5,642,567 related to garage operations for five years.Total cost is
$6,595,263.
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File #:ID#14-361 Agenda Date:10/9/2014 Agenda #:2-A
The Parking Division’s payment to the current management provider Ace Parking ranges from $1.7
million to $2.4 million dollars annually,which includes management fees and applicable pass through
expenses.The proposed management agreement with Republic Parking Inc.reduces the Parking
Division’s annual commitment to $1.3 million, a potential savings of $400,000 to $900,000 each year.
Attachment:9261 RFP Parking Operations
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RECEIVED
¿ûil ccT 6 Pn 3 ?B
CITY CLERK, FRESì,IO CA
Agenda ltem: lD#14-361
(2-A)
Date: t0lglt4
FRESNO CITY COUNCIL
City ofEEDEêTTS\I/':ffìE=iEz¿¿ñ--
Supplemental lnformation Packet
Agenda Related ltems - lD#14-361 (2-A)
Supplemental Packet Date: October 6,2OI4
Item(sl
Approve the selection of, and award a contract to, Republic Parking lnc. to provide
Parking Facilities Management Seruices in downtown Fresno - Development and
Resource Management Department
Supplemental lnformation :
Any agenda related public documents received and distributed to a majority of the City Council after the
Agenda Packet is printed are included in Supplemental Packets. Supplemental Packets are produced as
needed. The Supplemental Packet is available for public inspection in the City Clerk's Office, 2600
Fresno Street, during normal business hours (main location pursuant to the Brown Act, G.C. 54957.5(2l..
ln addition, Supplemental Packets are available for public review at the City Council meeting in the City
Council Chambers, 2600 Fresno Street. Supplemental Packets are also available on-line on the City
Clerk's website.
Americans with Disabilities Act (ADA):
The meeting room is accessible to the physically disabled, and the services of a translator can be
made available. Requests for additional accommodations for the disabled, sign language interpreters,
assistive listening devices, or translators should be made one week prior to the meeting. Please call
City Clerk's Office at 62I-7650. Please keep the doorways, aisles and wheelchair seating areas open
and accessible. lf you need assistance with seating because of a disability, please see Securi
tD#/'l-J6l( zA\
RobertM Dowd'
RobertW. Gin'
Randy L. Edwards
Jim D. Lee
Jeffrey L. Levinson*
Raymond L. Carlson
Ty N. Mizote.
Michael R. Johnson*
Mario U. Zamora
Janae D. Lopes
Melissa E. Webb
*a Profess¡onal Corporation
LAS(_()iltr l)(
ALLE
'TrTl'ttT'g pn ? IB
Lyman D. Griswold
(191 4-2000)
Michael E. LaSalle
(Retired)
Steven W. Cobb
(1947-1 993)
ATTORNEYS
A Californ¡a Limited Liability Partnersh¡p ¡ncluding Professional Corporat¡ons
111 E. SEVENTH g+yrelERK' FRESI{o cA
HANFORD, CA 93230
Telephone: (559) 584{656
dowd@ griswoldlasalle. com
Direct Fax: 800-947 -0468
October 6,2014
VIA HAND DELIVERY
Blong Xiong, Councilmember, District 1
Steve Brandau, Councilmember, District 2
Oliver L. Baines, III, Councilmember, District 3
Paul Caprioglio, Councilmember, District 4
Sal Quintero, Councilmember, District 5
Lee Brand, Councilmember, District 6
Clinton J. Olivier, Councilmember, District 7
c/o Yvonne Spence, City Clerk
CITY OF FRESNO
2600 Fresno Street, Room 2133
Fresno, CA 93721
Re: Council Agenda October 9,2014,
Agenda Item ID# l4-36f
Dear Honorable Councilmembers :
We come before you on behalf of Ace Parking Management Inc. (Ace).
We request that the City Council not award the Parking Facilities Management Contract to
Republic Parking Inc. (Republic) as recommended by Staff.
Not all proposals were responsive to the City's Request for Proposals (RFP). Therefore, we
suggest that the Council eliminate all non-complying proposals and reevaluate the responsive
ones. There is time. The City has asked bidders to allow bids to stand through November 5,
2014 (see Attachment 1); and if that is insuffrcient time for the City to thoroughly and
objectively review the proposals, I am sure the bidders would extend further.
RISWO EIvED ;fÅtoll f /+
Honorable City Council
October 6,2014
Page2
Why do we request such action? Because Republic did not comply with the terms of the RFP
and such non-compliance will harm the City.
The Parking Management Services RFP Selection Review Committee (Committee) found Pro
Park non-responsive because it did not complete its bid proposal page (see Attachment 2);the
staff report identifies Pro Park's proposed cost f,rgure as "Not Included." Republic's proposal
was, however, found to be responsive even though it failed to address the requirements of
Addendum 5----a very expensive element of the bid. What was called for by Addendum 5? All
bidders were directed to bid two fulltime daily employees for Woodward Park entry points and
one more employee during major events; two fulltime daily employees for Roeding Park entry
points; and one employee for the Sports Complex entry point during major events. Ace did and
Republic did not. We raised these issues to City Manager Rudd and Purchasing Manager'Watahira by writing of September 12 of this year and provided hereto as Attachment 3 is a copy
ofthose papers.
The failure by Republic to address the staffing requirements of Addendum 5 means that
Republic's payroll and payroll tax figures, two of the most signif,rcant line item expenses in
Republic's proposed annual operating budget, are inaccurate. If Republic had included the
required staffrng for the parks, its proposal would increase by $400,000 per year, making
Republic's bid the second most expensive received by the City.
The staff report indicates that one reason Ace is not the recommended candidate is because of the
cost of its proposed services. Ace's proposal would have included a lower cost component if it
omitted required services like Republic's bid. Instead, Ace followed the instructions set forth in
the RFP and included øll of the requested information in its proposal.
The Committee involved in the selection process noted that Ace is qualified, but also dismissed
our proposal in part due to "unresolved complaints" (see Attachment 2). Ace is unfamiliar with
such "unresolved complaints" as the City failed to bring them to Ace's attention during the
nearly ten year period during which Ace has worked for the City. In light of the City's silence
over the years, it came as a surprise that the Committee found that the "unresolved complaints"
justified Ace's elimination as a candidate after the first round of review.
Why do we do an RFP? Generally speaking, an RFP is used so the City can solicit proposals for
goods and services that address the City's needs. Everyone is to bid the same goods and services
so the City can compare apples-to-apples and receive the best product for a reasonable
price. This has not occurred.
Neither the City's nor the public's interests are served by awarding a contract based upon a bid
that fails to address significant RFP requirements, which is why Pro Park was eliminated after
the Committee's first round of review. Republic's proposal is similarly deficient.
Honorable City Council
October 6,2014
Page 3
It is fuither noted the RFP places emphasis on the integration of parking facilities operations
with Downtown revitalization efforts. The RFP's Scope of Work identifies one component of
that effort as: "Continually strive to increase customer satisfaction and City revenue in the
parking facilities, within the given rate structure." 'We agree with both. The question is how do
you achieve such goal?
Republic's proposal relies heavily on payment systems/machines, which illustrates Republic's
unfamiliarity with the demographics of Downtown patrons. In order for Downtown
tevitalization to be successful, patrons must be accommodated rather than subjected to
conditions that would make their Downtown experience unpleasant. Ace is rnost aware of the
Downtown patrons because Ace has been a partner with Fresno for many years, focusing on
Downtown.
'We encourage the Council to eliminate those proposals fhat are non-responsive or which may be
inconsistent with the goals stated in the RFP. Millions of dollars of public funds will be paiá to
the company that is awarded the Parking Facilities Management Contract. A fair RFp process,
including the consistent and objective review of proposals, should be utilized to identify the
contractor that will provide the best services at the best price, which will result in the sound use
of the public's funds. We encourage the Council to utilize a third party consultant to review the
proposals and to identify those that are non-responsive and to rank the responsive bids as the
process that has occurred to date suffers from glaring def,rciencies. The Council should have a
full and accurate assessment of the proposals when awarding the Parking Facilities Management
Contact.
Without a fair RFP process, the citizens of Fresno cannot be ensured to have the best service for
the best price, by the most qualified group. We believe that the citizens deserve the best and
believe that each of you believe that as well. If the contract is awarded to a group who has failed
to comply with the basic requirements of the RFP, the citizens will undoubtedly suffer.
Sincerely,
GRISWOLD
By:
RMD/sr
Attachments
cc: (with attachments)
Ashley Swearengin, Mayor
Bruce Rudd, City Manager
Douglas Sloan, City Attomey
Jennifer Clark, Director, Development and Resource Management Department
Del Estabrooke, Parking Manager, parking Services Division
ALLE, COBB,
GIN, LLP
ROBERT M. DOWD
ATTACHMENT 1
Ci(y ol
Fffiffi#
s2 . Ë/iX ({i{iıtlî¡¡:1069 . mw¡lrèilil¡ñ finânce Deoârlttenl
t€ren Bradley
Assislar)t ContmllerI'rostlÖ CA 9372.|
October 1,2014 VIAËAC$M"ILh-
AÖF PÂIII(I NG MANAGFMEN]' INC,
555 MONTQOMü:RY STREtil' Stjl"tE 1150
$AN t-ttANCtSCO CA 94111
A'lì"ËN]lON: JOt tN BAt"JMGAÍ:ìDNIËfì
suB.tËc't' Rb:auEs'f l-olt EXTËNS|()N otr BtD trt.{opo$Al.
IjoR: llfjP lîoR pARKING fACIrll I_E$,MANAGEM,IÍNI $HttvlÇt;^$.
(Llttj F|LH N().) 9261
1'he Cìty is cunently evaluating the hid ¡rr-opo l.l r, the City will r¡otbe ablo to nralçe an awårcl withirr thet time s ati<lns. i-ne Ciiyrequests that your corlpany e.¡t9¡çl"y"pU"t-þ E,
Plea f yotr arc able or unable to conrpl requcst. Rcturn yorrrsign ¡i..; r"rffice tro later flre {i:00 plVi, ï.}1,2û1e, A fax copyis ac number (559)48S-1069.
Birl deposits willcontitrLle to be held untÍla contract is awarclecl, o¡ all bids are reje<;tecl,There is rro change in staff deterrninaticln.
Purchasing Manager
Please check the ap¡:rcpriale box:
L;,'t Witf extencl bicl/proposat
lWtl 1ot
extcnll birl/proposat
iì ¡ ! iir: .l .: , !\'' ,..¿ .r
.tLI .-.;
1 itle
uri' o.f Authorized lnclívid Llal
':;::- '"i- trf
Date
HP OfrlceJet Pro 8600 N911a Series Fax Log for
Ace Parking
16192330741
Oct 01 2014 4:32PM
LastTraneaotlon
Date ïime Typo
Oct I 4:30PM Fax Sent
Station lD
15594881069
Duration Pagas Result
1:22 2
N/A
ATTACHMEI{T 2
REPORT FROM ËVALUA'TION CO[/IMITTEE
pA R r* N c ** äËÊHËRi ãÊåfi ågåüäi{8å- " R Fp r\¡ o e2 6 I
CO[,lMlTTEE MEMBERS;
u Diana Reynolcis, Buyer ll/Facilítator, Ciìy of Fresno, Finance Department- purchasingu Rene smith. Assistant city Manager, cúy of Fresnó, on¡ce ortne .àyó,
"nJc-iiy*nt"nugur,*
:
oo'""
Department
u Airports Finance
n fiership
BACKGROUND
The goaì of this Request for Proposal (RFP) was to solicit proposals to provide professionaf publícpersonnel to properly nlanage maintain and secure the parkÍng iacility "n.i "ornmon
ãtLä, on a dailybasis' The operator wifl be responsíb[e for the ernplóying änc,l supervising personnel to performcontracted services
Proposels were submitted by the seven vendors.accordíng to the Request for proposal April B, 2014deadline. ßelow is a summary of proposals subnrítted by th"e seven venriors:
$ P{oposal
Republic
Parking
Systems
6,595,26s.00
Ace Parlcino 8,322,380.00
4,645,009.00
les4;614-oo
ABM ParkinSr 9,238,970.00
SÍr lrlus Coro 6,066,056.00
Pro Park 9,238,970,00
COMffJIITTEË NÓTES
Evaluation committee members.were in agreement that all seven proposers, are capable of providingthe Development Department/Parking riith professtonát pu*irfr iacilities runàı.ránt seruices.Therefore, lhe selection was based on the clifferances in the'vendãrs' wrifien piopo.*äit, éresentationsand inierviews.
ln the first conrmÌttee rneeting, Propark was determined to be rron-responsive as they clicl not cornpletetheir bid proposal page, The itlcumtrenl was also dismissed ¿ue io curent unresolve<i problems anclcomplainls. The comnríttee narrowed down their selection to four candiclates nåirnfic parking
system, sP PIus corporation, LAZ parkíng and parking concepts rnc.requesfs for rnore information to LAZ parking-and ea*inj ðonãäpts. rrom tcame up with the top,two candidates Repuu[c earking "systäm and sp pr
them to be interviewed.
System wìll
experience,
pressed by
during the
ided the lowest cost of the seven propos rned that theas at the expense of customer service.'Th that Republic
area, provÍde more vafue based on experience an the downtown
RepuLrlic Parkino Syqlem
SP. Plus.Corpofation
SP;.' iä: io,,'ï iì:il"-:yy,å"J.,'#the "ii. Iifl-" t all requirements or
LAZ PARKING
LM Parking has just merged with Vinci parking which ma much of ihe experience isLAZ and how much ís..Vincj, Their ptan inctüCeU a grð on automat.ron which thecommittee felt was ai the expense of customers. Thãir checked and found to besatisfactory,
FARKTNF CONCEPTS ¡NC.
Pq¡k¡S Goncepts fnc. (pCt) was
satisfadory but was not as strong as
were not strong and the committee
address our situation here in Fresnr¡.
ABM PARKING SERVTCES
ABM Parking Services providert a satisfactory proposal but the committee felt that nothing really stoodout as exceptional. Theír'references were checked'and found to 0"
"àtirra.torv
ACE PARKING
Ace Parking ís the current contract holder of Lhe Parking Facilities Management Services. Thecommíttee felt that their presentation was weak and is not cuirently meeting t¡etitvt neãds related toreportíng' technology or customer serviçe. Their referen"u* rcr"
"É"ckec and rouná to be satisfactory.
Pro"Park
Pro Park was determined to. be non-responsive.. Their bid proposal page was not completed and thecommittee felt that they could not adequately evaluate their óroposài.
RECOMIIIENDATION:
The cornmittee firrns theír findings th m will beable to provide professional pár"ting rvices aswellas tlre besl lnterview, and stroni owntownarea- Therefore hat nepu'blic paiL¡nı systems be awarded the parking
Facillties Serulces contract.
ATTACHMENT 3
Süolt /1. J.rrres
Cltaírntan
R+:iîlt B. Janes
Managing Prhtci¡:al
J t l, t1 Ej lt u tn Ea ftJ n,) r
Vicr': Oltairnt.¡n & CEA
Steve Bu¡4ot¡
Presidenl
F0!ni¡ia!J illeùtbÈt of ¡lt1
l',la lit¡n¿i Pat ki t t g A.$ô \;iîtlicr)
tlLli' ¡{tl5s14}lt
ací;dilrt¿!bili[:t, \,',,e vill l(:ùr] tit: l¡ati;!¡ttJ iùclLtslt¡t i¡¡ stttvicc ûnt! ljni'tÍtcir.ì! t-]sttll!: ior at¡l tlicilis.
HAND DELIVERED
September 12,2ot4
Mr. Bruce Rudd
City Manager
Office of the City Manager
2600 Fresno Street
Fresno, CA9372l-3602
RE:
Sf PTEMBER 25, 20L4. (RFP For Parking Facilities Management Services -
No.9261)
Dear Mr. Rudd,
Ace Parking Management lnc. hereby formally and legally notifies the City of
Fresno that we respectively protest city staff's "NOTICE OF STAFF
DETERMINATION OF CONTRACTAWARD," posted on August L4,2014,
recomrnending contract awãrd to Republic Parking, which is tentatively
agendized for the City Council Meeting of Septernb er 25,2OL4.
Said protest is based on the City's non-compliance with the mandatory
requirernerrts as stipulated in the February 5, 7Ot4 "RËP for Parking Facilities
Management Services, lnvitatìon #9261and its Addendums 1" through B,
inclusive.
Accordingly, we are reguest¡ng the City of Fresno remove from the City
Council Meetingof September25,2014, the award of contractto Republic
Parking until all part¡es can determine the subsequent fair and legal protocol
regarding the entlre RFP process and its final disposition.
BACK€ROUND
With the August 14,201,4, posting of "Notice of Staff Determination of
Contract Award" (EXHIBIT 1), Ace Parking Mar''ragement lnc. also received a
facsimile fronr Purchasing Manager Gary Watahira, dated August 18,2014,
titled:
Page 1 of 5
Manasement Services - Bid File No. 9261" (EXHIBIT 2). Mr. Watah¡ra's
letter is clear in requesting the following:
"The Cíty is currently evaluotíng the bid proposols for the ohove
prolect. However, the City will not be able fo make on award with
the time frame allowed by the bid specifications. The City requests
that your compony
2014."
The City of Fresno issues an August '1,4, 2OL4 "Notice of Staff Deterrnination
of Contract Award" and, immediately thereafter, issues an August IB,201'4
public document extending the process to October 5,201-4' At this point,
the RFP process became convoluted.
As a result, Ace Parking Management lnc. faxed to Mr. Watahira on August
21.,20L4, our letTer requesting clarification and a reply to our three
questions (EXHIBIT 3), On August 2L,2014, alIT:32 PM, we did receive an
immediate email respotrse from Diana Reynolds, Buyer ll, Purchasing
Division, which she states:
"ln response ta your questions regarding the extensian on the above'
Thts only meens that the bids høve expired und that an extension is
required ta keep them current. You have fíve davs prior to the award
te submit on sppeql if vou choose to do so (emphosis odded)."
We immediately responded to Ms. Reynolds'email and stated:
"Thonks for the last response to my fax' I still have the question -
Does the August 1"4, 20L4 postíng still stond indicating that Repuhlic
Parking is tentstively to be aworded the contract qt the September
25, 201.4 Council nteeting?"
Seven (7) days passed and we did not receive any further response from the
City of Fresno. Therefore, we faxed Ms' Reynolds our August28,2Ot4,
letter expressing our serious concerns with the RFP process. We copied you
and Mr. Watahira on this letter {EXHIBIT 4}.
Subsequently, Mr. Watahira called John Baumgardner, CËO & Vice
Chairman, and asked what he was seeking. Mr. Baumgardner requested a
response to Ace Parking Management lnc. written requests for information.
Furthermore, if flepublic Parking is being reconrmended for award, Mr.
Baumgardner requested infon'nation regarding the RFP Evaluation
Cgmmittee, the RFP evaluation process/ evaluation documents, and a copy
of Republic Parking's submitted RFP.
Page 2 of 5
On Septemb er 4,2ÐL4, Mr. Watahíra did forward an incomplete copy of
Republic Farking's RFP submittalto Ace Parking Management lnc' We
recognize that elements of Republic Parking's RFP are proprietary; however,
the fotlowing paBes are mìssing: Itjl"L,60-68,67-70,72-82,84-92, and 102-
125. The missing pages appear to be random in nature.
After reviewing Republic Parking's RFP submittal, we found it did not comply
with the city of Fresno's stipulated RFP requirements and mandatory
Addendums. These omissioLrs produced a lower bid proþosal from Republic
Parking. Therefore, Ace Parking Management lnc' protests the RtP
Evaluation Comrnittee and staff's determination that Republic Parking is the
"lowest responsíble bidder,"
By the City of Fresno's own admission of fact, as notice to all bidders, an
addendum is ".,. rnade part of the above entitled specifications for the City
of Fresno..." Addendum No. 5 was issued for "ParkÌng Facilities
Management Services Bid File Number: 926L' (EXHIBIT 5), Addendum No' 5
ctearly mandates that all bid proposals shall now include three (3) parks,
which shall include staffing for the specifíed hours of operations and
number of entry Points'
Furthermore, Addendurn No. 5, "Requirements: 3" through 9" stipulates
additional requirements and costs. Requirement #9 is specific in stating: "9'
A separate Management through the addendurn is established for this
work."
A review of Republic Parking s RFP proposal indicates the proposal does not
include the additional requirements and incurred costs of Addendum No' 5'
There is no "... separate Managenrent through the addendum established
for this work,,, The following peges from Republic Parking's proposat
underscore these points {EXHIBIT 6):
Republic Parkins RFP Proposal Observations
page 23 of I25 No line item for parks cashiers or
staffing.
pages 30 to 32 ôf 125 Staffing Plan & Managernent/OÍfice
Schedule does not include required
Parl< Supervisor'
page 34 of 125 No cashier staffing for three (3) Parks.
Page 3 of 5
Page 35 -36 of 125 No Special Events staffing for three (3) Parks,
Repgblic Parking's RFP proposal has no "separate Management through
addendum" and, therefore, there Bid Proposal does not include these costs.
These aforementioned facts are clear, undeniable, and consclusive based on
the informaïion provided to us by the City of tresno.
Acr {FÕrA)
Ace Parking Management lnc., under all applicable laws governing the
Freedom of lnformation AcT (FOIA), is requesting the followíng information
from the City of Fresno:
The Bid Ranklng of all RFP proposals.
The composition of RFP Selection Comrnittee, both Voting and Non-
Voting mernbers.
Atl rnaterials used by the RFP Selection Committee for evaluation
purposes (Btanks).
4. lnstructions given to the RFP Selection committee for evaluating.
5. All emails from RFP Selection Committee members sent to
prospect¡ve Bidders, including responses.
The role of Non-Voting members,
The written criteria for selecting RFP Selection Comnrittee mernbers
ìn addition to those listed ín the RFP proposal'
The RFP Bid proposal documents for the top three ranked proposals'
lf an oral interview was convened, the criteria for the oral board
composition and qualifications. Furthermore, what criterion was
used to invite bidders to the oral interviews, if such interviews were
convened.
10. Atl Fresno Municipal Codes and Ordinances that provide support to
Fresno businesses,
CLOSING OBSERVATITNS
We know the City of Fresno strives for the highest level of transpârency.
Mayor/CEO Ashley Swearingen has made this one of the cornerstones of her
administration. Theretbrel we would appreciate timely written
correspondence from the City of Fresno that the September 25, 2014 City
Council agenda item, which is scheduled to award the Parking Facilities
Management Services contract to Republic Parking, is removed from the
agenda. Until all inforrnation is made available and this matter is addressed
by the city of Fresno, it would place an undue onus to bring this item
forward to the City Council.
3.
1,.
2.
B
v
6.
7.
Page 4 of 5
ln accordance with the May 7,2004 Ordinance No. 2004-41, which is also
known as the "Regulated Communications in City Procurement Process
Ordinance," we are cornmun¡cating only directly with you and the
Purchasing Manager by copying hirn on this letter. The gravity of this
convoluted RFP process, the untimely and fragrnented respanses from the
City's Purchasing Dìvision, and the docunrented facts we have provided is
significarit justification to bring this to your d¡rect attention as the Cíty's
Ch ief Ad m inístratíve Officer.
We truly appreciate your efforts and staff efforts to address our protest and
substantiated facts. We look forward to the City of Fresno responding to
our requests under the Freedom of lnformation Act (FOIA) so we may
further analyze the RFP process.
: Mr, Gary Watahira, Purchasing Manager (HAND DELIVEREÐ) City of
Fresno Purchasing Divislon
John Baurngardner, Vice Chairman & C.E.O., Ace Parking Management,
lnc,
Attachments: Exhibíts 1 - 6
Ace Parking Management lnc.
Page 5 of5
EXHIBIT L
NOTTCE OF STAFF DETERMINATION OF COI¡TRACÍ AWARD, PQSTED: August t4'20L4
City ofEEDEEI¡¡5\l/¿fflEÐiE=z¿È=
Purchosing Divisioñ Koren Brodley, As¡istont Conlroller
2600 Fresno Sireel, Room 2ì5ó - Fresno - Coliforn¡o 93721-3622
(559) ó2r-r332 FAX (sse) 488-roó9
NOTICE OF STAFF DETERMINATION OF CONTRACT AWARD
Posted: August 14,20Í4
Staff has determined the following to be the lowest responsible bidde(s) for the project(s) listed below.
Any bidder having a specific interest in the award of a contract may file an appeal of the staff
determination of contract award in accordance with Resolution 2003-129. Note: Resolution 2003-129
does not apply to Request for Proposals, (RFP's), Request for Qualifications (RFQ's), or Request for
lnformation (RFl), unless specifically included in the specifications.
Bid File Proiect To Be Awarded
Council Meeting September 25,2014
9261 Request for Proposals for Parking Facilities Management Republic Parking
Services ($6, 595,263.00)
EXFIIBIT 2
"REQUEST FOR EXTENSION OF BID PROPOSAL", MR. GARY WATAI.IIRA, PURCI-IASING MAI\AGER,
August !8,2AL4 LETTER TO AtL RFp BTDDERS
Ôtty al
PUrchaslng D¡vlsíon - {559) 621133!t - fAX (559)
2600 Ffesno St, Rm 2156 Asslstent Controller
DATE Augusl 18,2A14 ylA EAcsrMrLE
ACE PARKING MANAGEMENT INC.
555 MONTGOMERY STREET SI.'ITE 1I50
SAN FRANCISCO CA 94111
ATTENTION: JOHN BAUMGARDNER
SUBJECT REQUEST FOR EXTENSION OF BID PROPOSAL
FOR:
(BtD FÍLE NO.) 9261/"/
Please check the appropriate box:
[ ] Will extend bidiproposal
I I W¡ll not extend bid/proposal
Signature of Authorized lndividual
Narne (Print)
d @lüf sÆçjÍsc!¡gls' The citY
mpany extend vpur bid proposal throuch October 5. 20,l4.
Please indicate below if you are able or unable to comply with the extension request. Return your
signed response to this ofüce no later the 5:00 PM, Mondav Ar+qust 25 | 2014. A fax copy is
acceptable using fax number (559) 488-1069.
lf you are unable to comply with the extension request, your company will no longer be eligible for
award of a contract for this project and your Þ!d deposit will be refunded.
Bid deposits will continue to be held untila contract is awarded, or all bids are rejected. Bid bonds
will not be returned unless requested in wrÍting by the Bidder.
Sincerely,
-. 't-.t,.r, t;-¿'li/r.-J ¿:
Gary Watahira
Purchasing Manager
Title Date
EXHIBIT 3
TETTER TO GARY WATAhIIRA, PURCHASING MAIUAGER, FROM JO'{N BAUMGARDIIER, CEO &
CHAlRfvlAN, ACE PARK¡NG MANAGEMENT ln¡C., DATED August 2L,Ztt4.
Scoft Á. Jor¡e.s
CÌmirnan
Keith Ð. Jones
fulariaghryl Princî¡nl
Jolttt Bawngartlnet
Vice Chah'n¡¿ut & CEA
Slêyê Êt)rlan
Presidelf
[:oundirry] hieí¡tbet ûf hÈ
t'l al kvt r t I IJ a rki n 1 I t\ s\ a í;i tl ¡ô | )
Ua.tr t'rvgfi[t]It
att<sunltilLilill,, wr: '.'¡il! !*aú if* parkirtç| ìrt;.)Ltstry it.t st:tvit:o and {itta¡¡t:inl rc:;t)!t:i for öu{ c}tutt¡s
VIA FACSIMILE
August 21.,2ßt4
Mr. Gary Watahira
Purchasing Manager
City of Fresno Purchasing Division
2600 Fresno Street
Room 21-56
Fresno, California 93721
Dear Mr. Watahira,
Attached is Ace Parkirtg Management, lnc.'s response to your August 18,20L4,
letter regarding "Request for Extension of Bid Proposal for: 8IP fqr Parkine
Facilitjes Manase,Fent Services {BlD FIL[ NO. 9261i"'
Ace parking Management, lnc. is enthusiast¡c and will rernaln cornpet¡t¡v€ during
the entire bid proposal evaluation. Therefore, our firm will extend our bid proposal
through October 5. 2014. ]n the interest of fairness and clarìty, we would also
appreciate a response lo our following questionsì
1. Does your August L8,2}L4letter null-and-void and thUs supersede the City of
Fresno's website August 1'4,2074 posting of: NOTICE OF STAFF
DETERMNINATION OF CONTRACT AWARD" to Republic Parking with a council
meeting of Septembe r 25,7014 (Attachment)? lt would have too, correct?
2, Since the city of Fresno's August 14,201,4 posting does identify Republic
Parking as the initial recommended bidder, which requires city council
approvalr does this denote Republic Parking is no longer aÛ applicant?
3. Since the Bid Proposal is cxtendecJ to October 5,2Ð!4, does thìs indicate that
the city of Fresno will convene a separate oral board evaluation panel
considering the magnitude and impact of this Bid Proposal?
Thank you for the opportuftity for Ace Parking Managentent, lnc. to compete
through October 5,20L4. We lool< forward t0 your timely wr¡tten response t0 ouf
questions. Please contact us al 619-233-6624 if we can be of asSistance'
C.E.O. & Vice Chairman
Attâchments
aco parkirtg tlanagernent, in¡:, (i4r.¡ Ås^/r Slrec¡ San Diego, CAû2101 tel 6ìl!).2!13.6824 fax 619.2:j3.O74J tuwt't-acøparking,carn
Fgffi R.þtsl2-EFHT ËH?¿srs
IJrrrctnshg t)tv;¡irri¡ - lstg) 02t'lããt:ÊÃ'¡dliiìúi-i0ıı -,,,v,,¿fe"îñ¡r¡r
2600 Fresno St, Rm 2i56.
CÍly ol
Fresnd CA 03721
DATE Augusì.19, 2014
Sincerely,
Gary Watahíra
Purchasing Manager
Fl¡ìArtce UcDarlmcnt
l(¿ßn Bradloy
A:d5tÞnl Conlroller
YlA]:Aç.SIMILE
ACË PARK¡NG MANAGEMENT INC.
555 MONTGOMERY STREET SUITE 1150
$AN FRANCISCO CA 94I11
ATTF-NT ION: JOI-IN BAUMGARDN F R
SUBJECT REQUESI"FOR EXTENSION OF B¡D PROPOSAL
FoR:EEBf_û,Bf ABKTN_G*ruQIL|IES_MANAGEMENI'sEBVtqES-
(BtD F|LE N0.) e26r
The City ìs currently €vâluäting the bid propo the eity will notbe able to make an award w¡thin the ilme ions. ine Cityrequests that your company
Please lnclicate belour if you are able or unable to c est. Rcturn yoursigt'lod rerig)úrlsg to thts offïce ¡la later the !i:00 ?4. A fax coþy isacceptable using fax numtrer (559) 4BB-1069.
lf you ate unabls to comply wifh the extençion request, your cornpany will no longer be eligilrle forawad of a contract for this project and your bid d rpr:sit will be rofundéd.
Bid deposits wlll continuo to be held u¡rtil a contract is awarded, or all hids are rojected. Bicl bondswill not be returned unless requested in wdting by tho Bidder.
Flease checl< the appruprlate box:
l;t llÂlill exlend b id/proposal
{
Na \çl y'
PurcDoing Dfvi!¡on
2ó00 Fresno Slreet, Room 2 t 5ó - tresno - Cotüomi{ î37 21.3622
l5stl ó2t-t332 F X (55e1 r88-t0ó?
NOTICE OF STAFF DETËRMINA'TION OF CONTRACT AWARD
Posted: August 14,2014
Staff has debrrnined the following to be the lowest responsible bidder(s) for the project(s) t6ted below.
Any bidder having a specífic interest in the award of a contract may file an appeal of the staff
determination of contract award in accordance wilh Resolution 2003-129. Note: Resolution Zû0$12g
do-es not apply to Request for Proposals, (RFPþ. Request for Quatifications (RFe's), or Request for
lnformation (RFl), unless specífìcatly inctuded in th ,specilications.
Bid FÍle
9261
Proiect
Council Meeting September 25,2A14
Request lor Proposals for Parking FacilÍties Managemenl
Services ($6,595,263.00)
To Be Awarded
Republic Parking
Facsimile
Date: August 21,2Õ14
To: GaryWatahira From: John Baumgardner
Ace pad<ing Management, lnc.
Phone: phone¡ (619) 2g3-6624
Fax. (559) 4SS-1069 Fax: {619) 2Sg_0741
Numþerof Pages tncluding Goven 4
Comments:
ace parkîng managemena ínc. t 645 Ash sf¡eef ¡ san Dre gc cA 92101 tel 619.233.6624 fax 619.233.0741
HP OfrlceJet Prs €ô00 N911a Ssriee Faxlog for
¡\ce Parking
16192330741
Aus2l 2û1411',544M
LastTran¡actlon
Date Time Type
Aug21 11:524M FaxSent
Duraiion Fages Result
EXHIBIT 4
LETTER TO MlS. DIANA RE'YNOLDS, BUYER il, PURCHASTNG DtVtStON, FROM JOFTN BAUMGARDT\iER,
€EO & CHAIRMAN, ACE PÀRKÍNG MAI\AGEMENT lNC., DATED August 28,2A!4,
ScolfÁ, Jo¡es
Cl¡¿tir¡¡¡atl
Kejth B. Jat¡os
lv'lanagit rg P ri nci¡sa!
Jolzn Bawttgatrlt"uzt
\¡ice Cltakr¡an & CF-Õ
Steve Bmlan
f'¡esidenî
[:ar:nditg ùle;ubtr rtl 11rc
i,t¿\ilLl D¿1 I Patk i n,:J /\s$r"ü¿tiot
rrt¿f Ir'!¡ssi{.\'l
ac{öun!ítl}iilty, rt.^'J/ilt ltêtd tha ¡;arkittgl indttsft\,it servic¡.: irtd fiw¡tcial rr¿sults fol oïn'ciitllls,
SENT VIA FACSIMILE
August 28,20L4
Ms. Diana ReYnolds
Buyer lt
City of Fresno Purchasing Division
2600 Fresno Street
Room 2156
Fresno, California 93721
Dear Ms. Reynolds,
on August 2L,20L4, we faxed Mr. Gary watahira Our ìett€r legarding the "RFP for
Parking Facilities Management Services - Bid File No. 9261" wÍth attachments
(Exhibit S). You were kind enough to immediately respond on his behaif, Although
your reply did not specif¡cally address our questions to Mr, Watahira, we did have
an addirionalfollow-up question (Exhibit B). To date, we have not received a
response.
Ace Parking Management, Inc. truly apprec¡ates your prÔfessional consciousness
throughout the RFP process. YoUr effOtts are to be commençled' However, today
we checked the City of Fresno's website and ¡t revealed that the August 14,7014,
'NoTlCE OF STAFF DETERMINATION OF CONTRACT AWARD" to Republic Parking is
extracted. This removal, without nOtice or explanation, raises serioUs concerns.
Therefore, since this RFP process is now convoluted, we Will address al[ further
inquiries directly to City Manager Bruce Rudd with a copy to the City of Fresno's
City Council.
Communication with the City Council will be in accordance with the May 7,2004
ordinance No. 20C4-41, "An orelìnance of The city of FrÊsno, california, Adding
Article 6 To chapter 3 of The Fresno Municipal code Relating to Regulated
commr_¡nications with Mayor and councilmembers During competitive
Procufement Process."
Thank you for Your assistance.
Attachments: fxhibits A & B
CitV Manager Bruce Rudd
Gary Watahira, Purchasing Manager
ace ¡tarl<í¡g manageryÊnl, inc. 6tl5 ¡ìsh Sí¡e¡,¡l Sitrt Diego, CA92'íü tel 6'19.233.6Û2,í fi¡x {i19.233.Ð741 ulwwnceparkirtg-cant
ffi
ÞT<
F<<
ffi
,*ä
b
S.;oll ll, .Jo,tês
Cltairn¿n
ltuíilt f.t. Jont}s
í1artagh6 Frincipal
Jalnt B;uu'rt¡Ttrdnct
\/,rÉ {)rrililan ¿i CÉo
.çt$se Blrr¿orl
Pr¿sidet¡t
ltomd¡n!) ¡\lonrlt{t 0l lltî
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rij.llï itilss¡ât1
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l,t:tcl tlle Pa¡útg i:tiiistt 1r ht st:¡\'t ti it¡tí lit¡¿ttci¿tì testtlls fo¿ c¡t l¿' c/ie¡11:'-
VIA FACSIMILE
August 2L,2Ð14
Mr, Gary Watah¡m
Purchasing Managel'
City of Fresno Purchasirrg Division
2600 Fresno Street
Room 21-56
[:r'esno, California 9372L
Dear Mr. Watahira,
Attached ìs Ace Parking Managelnent, lnc.'s lesponse tÕ your August t8'2014'
letterregarding,.BeqtlestforExtensionofBidProposalfor.RFPforParking
Facilr'tdManaeement Services (BlD F|LE '"
i,ïffi îif, yliiååiïli;lÏl,iåiÏllLlli:,T,Xîl'f ill"iîf; iiÏT¡i:Jiå'
throughggtober5,20l-4'lnlheinterestoffairrressandclarity,wewouldalso
appreciate a respolìse to oul following questions:
1-, Does yottr August 18, 2014 letter null-ar¡d-Jpid atdlltgllupÊr¡g'dg the city of
Fresno's website August 1'4,2OL4 ¡:osting of: NOTICE oF STAFF
DETEßMNtNATtoN ıF CONiRACT AWARD,' ro Republic pärking with a council
rneetingofseptêmber25,2014(Rttachmerrt)?ltwouldhavetoo'correct?
2.sincethecityofFresno'sAugust'L4,2}s.4postingdoesidentifyRepublit:
Parl<ing as the initial recornmendecl biclcler' which requires City Councìl
upprou-rl, cloes this clenote Repuhlic Parklng is no longer an applicant?
3. 5ince the Birt Proposal i¡ extencled to October 5'2Ot4' cloes this indicate that
theCityo{Fresnowillconveneaseparateoralboarc]evaluationpanel
consiclering the magnitude and impact of this Bid Ploposal?
Thanltyoufortheopportunityfor.AceParl<ingManagenrent,ìnc.tocompete
throughoctobers,2al4.Welool<forwarrltoyourtirnelywrìtterìresponsetoÖur
quest,|ons.Pleasecontactusat6lg-233.6624ifwecanlreofassistance.
- l'i
,sln':.
./
lól dner
c.E.O. & Vice Chairman
Attachmerlts
City ofËttEtË¡AI--*'.øfffE-=l?Zr¡lrs
PurdlìoJ¡ng ÞMlon
2ó00 fÌEsnû Srreel, Rognr 2lSô - Fr6¡ño ^ Çsúlo{r{o 9372ì -3ó22
15591 ó2t-r332 FAXl5sel 1o&'roó9
Koron Brodloy,
NOTICE OF STAFF DETERI\IINATION OF GONTRACTAWARD
Posted: August 14,2t14
Staff has determined the following to be the lowest responsible bidder(s) fo r the project(s) lîsted below.
Any bidder havlng a speeÌfic interest ln the award of a contract may file an appeal of the staff
determination of contract awård in accordânce with Resolulicn 2003-129- Noùe: Resolulion 2003-129
does not apply to Rcquest for Proposals, (RFP's), Request for Qualifications (RFQ's), or Request for
InformatÌon (RFl), unless specllically htÊluded ¡n fhe specf/lcaflons-
lJtd F.rle
9261
Pre¡p..ct
Gouncll Meelïng Septemfrer 26, 20f4
Request for Proposats for Parking FacilÍtÎes Management
Servicas ($6,595,263.00)
Tg BçÂwarded
Reputrlic Parking
rlirr ol
Pn'c't'd"iñD"lsrñl¡selTtiîttr- F^/, {'d¡Ð¡¡&1 000: rn.lyl70añi;d(
2600 Ff€sno St, Rm 2156
Fresno CA93?21
DAI'Ë August 18,2û14
FllaIGû ljcrrîriilÊnl
l(aren Brsdlôy
^sslslâ¡t
Conlrôllof
vtaFAcç!.\4tLE
Pleaso check lhe a¡rÞtoprìate box:
t ;rl,¡ruif f oxtond bidlproposal
,ACE PARKING MANAGËI\4ËNT' ]NC.
555 MÖNTGOMERY STREET SUITE 1150
SAN ËRANCISCO CA S4111
AI'TENTiON: JÕl'lN BAUMGARDNER
fiUIsJËC]' REOUEST FOR EXTENSION OF IIIT} PROPOSAL
Fo lì : EF I'_EQB PAßKil!.ç F_^g!UlËÊ_elW
(BrD F|LE NO.)e261
ïTe {3ity ls currenlly evalusting ths bicl propoeâls for ihe âbova proloot. l-Jowgver, lhe tig wlll not
t¡e able to mal<e ari award wîthin the tlme frarvre allowecl by the bid sfJeclncations. Tho Cìty
requests that your company
Pleaso lnelleaie bolow if you aie able or unaltle to comply t¡¡ith the extonnion requosi, Relurn your
sigriod rèspûnse lo thÊs office no later the 5:0û FM, ]ìro¡ldav Aggt{s_8_e5, ?.01,4. A fax copy is
acceptable usíng fax number (559)480-1069.
lf you aro ur¡able to compfy wílh the oxtensiçn requesl, your compãny wlll n0 longêr b6 eliglble for
awatd of rå conlract fût this project and your birì cleposlt will bo rofundccl,
Bicl deposits wlll conlinLrs lo be hsld until a contract is awarded, o[ âll b¡ds âtê rejeoted, Bld boncls
wíll not be returned unless tequested in wriling by the Blddot'.
t1
-.-:i I'J.. ï:.,¡.-'+::':.i¡¡ 'f''\*t', ;
Name (l¡dnt) . ,)
. --*t.,) --- :iu,i¡ r \
îirte * -*îãro -
tacsimile
Date: August21,2014
To: GaryWatahíra From: John Baumgardner
Ace Parking Management, lnc.
Phone: Phone: (619)29gS624
Fax: {559i48S-1069 Fax¡ (619) zg3-0241
Numherof Pagrcs Inoludfng Goven 4
Gomrnente:
acøpa///;ingmanâgètnenLínc.aô4ıAshsfeetrSenDragô,oA 92101 ke|619.233.0624 Íaxø19.233,074í
ffi "[,TFffir+Xm
From:
Sent:
To:
Subject:
Follow Up Flag:
Flag Status:
Categories:
John-Bau mga rdner(ùacepa rki ng.com
Thursday,August 21,2014 2:16 PM
Diana Reynolds
RC: 9261 RFP FOR PARKING FACIUNES MANAGËMENT SERVICËS
Fol[ow up
f laEged
Red Category
Diana,
Tllanks for the fast responsc tu my fax.
I still have ihe question - Ðoes the August 14,20l4posting stand ìndicatirrg that lìepublic Paiking is tentüively
to be awarded thc contuact at the Septenrbel25, 2074 Covncil meeting?
{ look fnrwarcl to your reply.
.lohn
Joltrr ßaunrgðt'dner-
CEO, Vlce Chslrman
uce ¡r;;¡lai¡g rnêllageï:ÉtJL, l.iL"
645 Ash Street
San Dìego, CA 92101
tel 619,233.6624 tax 619,233.ô741
;ro{ìi: D¡ana Reynolds <pjâ1ìa.Révnol(ls@ftesno.oov>
i'o,'1ç¡LÈeu¡rt{d!Ê@ga¡úæ@æcp-cd!ls re.il1>,Dale: 0812112D1412:X2PM
Sr-rbject: 9261 RFP FOR PARKING FAC|L|TIES MANAGET\4ENT SERVICES
Johu"
In respolrse to youl questions regarding the extonsion on the above. This only rnçans that thc bicls have expired
¿rncl that an extension is requit'ecl to keep them crurent. Yon have lÌve days prior to the awald to submit
FIP OtrceJet Pro 8600 N911a Serles
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EXHTBIT 5
CITY OF FRESNO, ADDENÐUM No' 5 FOR PARK¡NG FA€tLlTlES MANAGEMENTSERVICES BtD FILE
lrlUME€R:9261
Ciiv cí
"!,icì)asi!Ìo:10r .c'si
rr-âsio. a¿:ifon¡3 997tr.J67¿
nirs:,ri:lú riãì*ii,i.lüìiiıì";," --: -- . *_._lrcnÈc llLrnrlr I lc, tl
lc; rr r r Ll¡..l,-iıì sìi;;¡;ñ""
ADDENDUM NO. 5
pARKr Nc FACt Lrl Es^üiL--rENï ssRvrcESBtD FiLE NUn¿een: gei1
¡!-QfLa s;
;ilf i33,'"JiliiJî,îl;:;f;"r?ii#îff
3^',¡ü åf il.å"l[?ËiT*o specificatíons for the ciry of Fresno
All changes and or clarifications will appear ln
ffiJniiil shall sígn below ind cating he/she has ihoroughry read .no ,no"otu;-;;of this
Signed:
Cornpany:
Thís addendum is being distributed on onljnra signed .opy órìn:*'aooendurn vyith the¡; bcnly
and will not be sent by u.s. fi4ait. The biddershailsubrnir
Áddenda to dðte: ¡
The fulanagement Fee Ís íts¡eim bursable expenses.
Answer to question 41
Houi-s of Operat¡orL
Tournarnents
Eniry Points; 1
1. Requires one supervisol-.2' Emproyees comprete parks and Recreation orientation/training3' A.east two (2) emptoyees staffing fhe entry ¡ootrrsJuring alr operating hours1 Collect the specifieO i¡ty npprou"i entry fee
i Provide entry tickets and re'ceipts to all vehiclest
H:[î,ï:t$tJ,Liîanc temnårarv parkins areas ror overcapacityiimproper parkins and
7 ' Provide generar parks reratecJ ínforrnation to the pubricB' coordinate with Parks anc Recreation on speciarevents atthe different parks.9- A separate Management through the addendurn ¡,
"utrttirr,ed for this work.
own rine item but is incruded in the invoice arong with ail the other
as Soccerand Baseball
Hours of Ope
fntry Foíntä: 7PM
r evenTs
72
Winter 6a-¡1¿-7p-fú
Dtvts¡oN¡c g)ô2f-1332
QU€SrJGru ..-e¡'_
::J o1*r.¡s:_ ¿{tã_gSg- BeHh
%
: ¡1 : .a,*_r:*et'¡E@1:i_;:+_:
i-JsE trvLY)
RÊVIEWEI} 8Y:
ûne qaresâion psr pãó6 _ñ;ìrldfrC;nìiô _:,
RFP Ô7.O8
08/10 1 lJR
t/
PAGE 7
l,Ëì3â S"pl. f;¡¿sadsouoa pu ¡ >¡.red ¡,luze ¡ T 1 þTD¿ ÊÐ JBI.Í
EXI_IIBIT 6
EXCÊRPTS FROM REPUBLIC PARKIN€ SUBMITTËD RFP f,ROPOSAT A5 FORWARDED TO ACE PARKINGMANAGfMENT tNc. oN September 4,vÐ74,8y GARYWF|ATAH|RA, puRcHAstNG MANAGER,
Menågement
G€nsiål tanager
ås8¡dant ttar¡aget
¡TlRâv€nuF Co¡tsol Manager
fr¡¡ghüEv€ nt Süpew¡sor
Accot¡nüng Manågê,
Eookkeoper/á,udltor
Ofñcê Ctârt
Malntsnance
Day Mal¡bnance
t{lght lUtaintenance
Lead ilalntenance
Ceshlers
Garage #B
Gonvanûon Cenbr
Arfibasçadors
Äll C¡ty LocÉüon8
Conv€nfoD CantÊr
Eve¡rts
Ë\.ent Gash¡érs
TraÍflc DlrEçfs¡g
Totel
F Garage #gF Gârage ¡raF Garäge#Br- Convent¡on Center
FÀI
F çonvent¡on centerFÄr
Garages # 4, Z B, St¡dlum Lot &F çonvention center
_ Garages#4,7,9,9, Lots#¿P BoxcarLot&ConventfonCenter
¡
1
1
1
1
1
1
1
3
1
I
1
f
7
F
F
F
P
F
F
P
F/a
F/o
F/o
F
o
o
o
F
F
F
Ail
Ail
Ail
AD
Downtown Offïce
Downtown Offlce
Downtown Office
Ail
Ail
All
F
F
F
F
P
P
P
F
F
P
2
I
I
3
3/*
9.r posseulatlon, providing fasilities ma In a cifynt venues, and facitity
"ï tiI'ð¡tv
Yes _X-- No
lf "Yés', desc¡-ibe tf¡e lscation:
Page 23 of 125
'- fiä:'J:ååîi"t#,ï-îl'J-fffårû';e reQuiremenr ro provide parking Facir*res
Republic parking Systemparking operatioñ. T'hese , \pproach for the City of Fresno
operafing income, ope -,"1:
fot the improvement of your
in this section is inform rt the parking facilities. lnclúdeU
e Staffing plan
r Operational & Equipment Reconfþurationr Use of parking Technologies. Special Event procedures
r LocalOffice
o Human Resources
o Accounting/Auditing
r Maintenance prograrn
r euality Assr-¡rance plan
STAFFING PLAN
The management and staffìr
l"tf,ing System can be su rr,,the City of Fresno Municipal
Parkins wiir bring Ín soor Mo niy, ig^""ff'il_î""J"årj,¡:
nagers and line.employees we attract better people andneficial to a parking bpåratir n.
sense of ownership in allof ou
General Manager - Scot lVlooney
. primary Cljent Contact
o Support City of Fresno Leadership
' l"i;å?s & Mainrain Rerationship w*h the Fresno Merchanrs & Business
r Develop & lrnplement parking policies & procedures
Page 30 of 125
. Supervise Entíre Operation
. eualíty Assurance of the Operatíon
' prepare speciar críent Repolt (utirizatíon Reports, capitarBudgeting, Marketing plan, etc.)
r -'. "-r
o Review & Approve AllClíent Reportingo Monitor & lmplement Employee Trainíng programs
c coordinale corporate support with Regionar vice presídent
o Monilor All Sub_Contractor Services & Relatíonships
Assistant Manager - TBD
¡ Assist GeneralManagerwith hís Duties
r Superuise Ambassadors
. Recruiting & Hiring of Líno Staff
¡ Supervise Maintenance & Cleaning prograrns
. Coordinate Security Services with Sub_Contracto¡
r perform operationar Audits of At Areas of the operationr Coordinate Repairs of Revenue Control Equipmento Assist General Managerwith his Duties
lT/ Revenue Control Manager- TBD
Expense Plans,
o Provide system wide technical support.o Serve as project ManaEer for all lT related inltiativesr Responsible for managing all technology assets
" Responsible for pcr DSS compriancy standards and practices
' Frovides a seôure, wert documented and audited network perimeter andinterior.
' Provides detailed..reporting,. analysis and actíonable recomrnendationsbased on the reporting/anatylis.
' Pr^ovides insight and actionabre recommendations regarding operationarefficiencies.
¡ Recornmendations .regarding technology initíatives and upgrades to keeporganization up-to-date and iecure.
' Provide creative and ínnovative sorutions to the unique chafienges of thernunicipality which can be solved with teclrnòrãöical innovaiion andapplication.
Page 31 of 125
\egs
tive Team wiltsupport the Ma their duties.ny of the diüng dutiesaccounti
prosram n any parkins "o.ijrilÍl'tiiTv.vs'sÐ,,,r.=.,ç,^*ffiili",riilrrilî:iiflr:i?fi,.,ii;
Accounting Manager - TBD
Manage PARIS (parking Accounts Receivable Software)
Prepare Monthly Client Financial Reports
I nterface with Corporate Accounting Departm ent
Supervise Banking, Credit Card processing
Prepare Payroll& payrolt Reports
Perform Daify Audits of Revenue Reports & Bank Deposits
Manage Accounts payable process
Perform Ambassador & Event Cashier Audits
Assist Wíth parking Tícket Collectjons
o
¡
a
a
a
Bookkeeper/Auditor - TBD
a
a
a
a
Mana ge ment/Office Schedu le
Mond¡y Tuc$ay llìledneday Thursay
lWa-5$0p Z:ffia-5l00p t;0tla.SI{tp t00a.5;00p i$h-5:@p
1ft00a-8tr¡ t0tra-B:ffip t0:ffi¡.8;00p t0ú0a.eq 10ú0a-Súû!
5:00a-4S0p 6l00a-{:Np 6fla.4tþ 6fl0a.4,f0p 5úh-4100¡
[:Oa-5r00p Srú0a^S:00p SrCI{h.Stþ 8;&-IS0p 8Sh.5fÐp
7f)0a - 4ilOpm 700a - 4:flprn 700a . 4ú0pm 7tra.4û0pn 7:00a. 41ffi¡m
9tra - 3t0pm gr00a . t:Mpm gffa.t;00pm g:0ûa -3l00pm 9f0a . 3:ffipm
Pase 32 of 125
\l.IS
:H:äå1iiljJ"ï::ff:î:îïlîil:?j"":lr":j the parkins facirities shourd ír be necessary forsomeone to travelfrom one faoility to anot"her.
Cashiers
fhere a¡e two garages in which weConvention centér Gãrage, ñ; þ t'h; and the
at Garage #8, we would ıtiil star rùL-oã of users
to 6:00pm, our ûffice crerk wour¿ ¡L scrreoured to work the 3:00pm
get the traffic out of the ga nion. nlring our vísit, we noticed *ffi"i:build up fairly quickly at the
open which helped move the and your current.cont¡actor had both bootl¡sgarage fairly quickly.
At the convention center Garage, we have one of the three ambassadors scheduted to workprimarily at this facitÍty t
available to help at tÉe
ïhe Ambassador and Cashier schedules are as foflows:
Maintenance Staff
our five full-time maintenance staff members will primarily be responsibte for the cleaníng ofthe parking facilities, however, flr"v wii särye many othei functions. ïhey will be trained tomake repairs to the revenu€
note' you will notice that two of the shifts are_ scheduled for four days instead of the normalfive day work week' we have ¡e"om" io realize in other parking operations that we are able
Ambassador & Cashiãr Schedufe
Monday Tuesday Wednesday Thursday Fridav Saturday Sunday*t 6;30â -3ßop
#2 ilgoa-6$0p il30a-6r00p 1tl30a-6:00¡ 1tJ0a-&00p t1:30a_6.fl)p#3(€onv"€rr,l B,.ioa-ggnp Br0r.sr3t¡ B:30a.5i0p 8s0a.s30p ssoa-s¡30p
6;00a -130¡ 6.fXìa -t30p 6:00a.?.30p 6t0a _2t0p 6fr0a-zÏhp
2á5p-6ll5p ZiSp-frlisq e15p-6:i5p Zf5p-6r¡p elsp-6jt5p
3fl0p . 6ú0p B;fl(jp - 500p 3:00¡- 6j00p 3;00p _5il0p 3Ì00! " 6:00p
2;30p - 5:30p 230p. 630p 23ftp - 6É0p zgoD - 6s0Í 2B0p . 6¡0p
Page 34 of 125
Event Gashiers/Flaggefs
Maintenance Schedule
Honday Tue$ay Wednesday Thur$ay Friday
6,{H}p- 3ú0a 6:00p. 3{th
7:00a _ 4f@
400p.3110a
6tÐp . 3r00a 5úþ- 3úh
6{Ðp" 3rWa 6:00p-3:fÐa 6.00p- 3,Jl0a
7:0fla -4:fl0p 7.ffia .4ú0p 7$0a. 4r00p tfEa . 4100¡
4rfÐp.3ú0a 4il0p-3:flfta 4lt10¡.3:0h
6r00p-3:ftla 6t0p.3:00a 6r{t0p-3:00a
Pðge 35 of 125
these locations âs traff¡c is building up to ensure patrons are paying the parking charge, lf apatron chooses not to pay, a violation notice will be issued through our V¡olatiın and
Ticketing System (VAT.S.) that we have proposed. lf a particular tocalîon is seeing a high
amount of traffic, we will have the ability to pre-colleci with our VATS event handheldã.
Alihough a few of these facilities listed below will also heve automated pay stations, we
believe these locations require cashiers for pre-collecling to help with ne íow of traffic. ln
dealing with event traffic in other cities, the only problems that typicany occur can be
attributed from traffic lacking up, patrons getting upset about the wait äilO tt¡án proceeding to
park at a competitors facílity. By having cashiers pre-cotlect, we believe we can increase the
nurnber of vehicles enterìng the garage in a much shorter perÍod of time. in addition, by
speeding up the flow of traffic and reducing the amount of iraffic on the street, we can bring
additional patrons into the complex who currentfy park in other surounding Jots due to hear{traffic on the street. lt is Republic Parking System's policy not to have surrounding
competing facilities with our Municipal contracts, Therefore, all of the work and effort we do
will be for the City of Fresno and not private owners.
To also help wlth the flow of traffic into tl"re facilities, we have íncluded traffic directors in our
budget. Although the number needed is determined by the size of the event, we only have
three in the budget but realize there will be times when we may need four or five on the
schedule. Each traffìc director will be scheduled to work five (5) hôurs per night and wilf help
with both the incoming and outgoing traftic. lt will be the traffic dîrector's iesponsibility to
keep the traffìc moving in an orderly fashion to prevent back-ups frorn occurring. Al oitne
traffic directors will be canying two-way radios so everyone is always aware of any problems
that are_ occurring throughout the structure. Once the facilities clotest to the venue are full,
the traffic directors will then be sent to other locations further out to help draw in customers.
During the shows, it would be the traffic directo/s duties to walk the entire complex and help
with hash pick-up,
ln working with different event venues around the country, it is our opinion that people make
their decision on where to park based on the amount of time it takes to enter and exit the
facility. fn many tases, our survey results have shown that people feel the most important
aspect in determining if they had a good parking experience was how fast they were able to
exit the facility at the end of an event.
S¡reèial Er¡ent Staffing Scfredr¡te
Traffic
Cast¡iens D;rectors
Ga!'age tP7 Z 2
stâd¡¡,¡r¡-¡ l-Õt Z O
Page 36 of 125
I
2
J
4
5
6
8
9
10
11
1,2
13
1,4
15
i6
t7
IB
19
20
2I
22
23
24
25
26
27
28
PROOF OF SERVICE
I, the undersigned, cleclale: I ani employed in the City and Count¡'of Fresno, California; I am
over the age of eighteen years. My business addrcss is 2125 Kern Street, Suite I 01, Fresno, Califbrnia
93721.
On the date indicated below, I served, in the manner indicated below, the within:
LETTER DATED SEPTEMRER 12, 2014 -RE: FORMAL pROTEST To *NoTICE oF
STAF'F DE,TERMINATION OF CONTRACT AW,A.RD" TO RE,PIIRI,IC PARKING
SCHEDULE FOR AWARD ON SBPTEMBEB 25. 2014., (RFP For Parking Facilities
Management Ser.vices - No. 9261)
EXHIBITS 1- 6
on the interested parties in said actìon by, placing true copies thereof enclosed in a sealed envelopc as
required, a¡rd addressed as follows:
Bruce Rudd
City Manager
Oftlce of City Manager:
2600 Fiesno Street
Gary V/atahira
Purchasing Manager
City of Frcsno
2600I.-resno Street
Fresno, CA93721-3602Fresno. CA9372l-3602
(B), Regul.ar - Express Mail) I causcd such envelopes with postage thereon fully prepaid to be
placed in the U.S. mail at San Francisco. California.
I @y Personal Delivery) I cause such envelope(s) to be delivered by hanct to the office(s) of the
addressee(s). By Ana R. Luna
(lly Facsimile) I caused a tnre copy thereof via facsimile to the addresses noted on the
attached service at the þ-AX number noteel after each party's address and such copies to be sent
vi,ith same day service
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct. Bxecuted on septembet 12,2014,at Fresno, calif-'o¡nia.
Proot'of Sen,icc
City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-440 Agenda Date:10/9/2014 Agenda #:2-B
REPORT TO THE CITY COUNCIL
October 9, 2014
FROM:KEVIN R. MEIKLE, Director of Aviation
Airports Department
SUBJECT
Actions pertaining to On-Airport Non-Exclusive Rental Car Concession Agreements at Fresno
Yosemite International Airport (Council District 4) - Airports Department
1.Adopt a finding of Categorical Exemption pursuant to Article 19, Section 15301(a) and
(d)/Class 1 (Existing Facilities) of the California Environmental Quality Act (CEQA) Guidelines
to authorize Concession Agreements with Avis/Budget Car Rental, LLC, Enterprise Rent A Car
of Sacramento, LLC, and The Hertz Corporation at Fresno Yosemite International Airport (FAT)
2.Approve On-Airport Non-Exclusive Rental Car Concession Agreements between the City
and Avis/Budget Car Rental, LLC (Avis), Enterprise Rent A Car of Sacramento, LLC,
(Enterprise), and The Hertz Corporation (Hertz)
RECOMMENDATION
Adopt a finding of Categorical Exemption to authorize Concession Agreements with Avis,
Enterprise and Hertz (RACs)at FAT and approve Concession Agreements between the City and
RACs.
EXECUTIVE SUMMARY
The new RAC concession agreements were negotiated with the three parent companies that are
currently operating seven brands at FAT.The new agreements will enable additional brands to be
brought in to the airport without the need to expand facilities,which will provide customers more
choices and is expected to enhance revenues to FAT.The new agreements will be for a term of
five (5)years and include a mutual option for a second five-year term.Leased space at FAT will
be rented at City of Fresno adopted Master Fee Schedule (MFS)rates,and the concession
privilege fee will be 10%of gross revenues subject to a Minimum Annual Guarantee (MAG)of
$542,965.95 for Avis,$731,886.46 for Enterprise,and $859,488.47 for Hertz.The previous
concession agreements with Avis,Enterprise and Hertz expired on August 31,2014,and are in a
holdover status.
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File #:ID#14-440 Agenda Date:10/9/2014 Agenda #:2-B
BACKGROUND
The existing RAC concession agreements are with the three incumbent parent companies (Avis,
Enterprise,and Hertz)that collectively operate seven brands at FAT.These brands are Avis,Budget,
Dollar,Enterprise,Hertz,Alamo,and National.They initially operated at FAT under individual
agreements that were executed in 2009.Industry consolidation has since reduced to three,the
number of parent companies operating these and several other RAC brands.These three parent
companies (RACs),along with their various family brands,represent 95%of the airport rental car
industry nationwide.
A Request for Proposals (RFP)conducted by Purchasing was canceled when it was verified that only
these RACs expressed an interest in proposing.A direct negotiation process was then conducted
with the RACs as a group.The outcome of the negotiation was a changed agreement model,from
single brand agreements to multiple brand agreements,wherein the RACs will be able to operate
more brands out of the same physical space to better serve the market.This concept enables an
expansion of customer choices and price points without the need for physical expansion of space.In
addition,revenues to Airports will be protected at current levels through MAGs and 100%rental of
space.The percent of gross revenue paid to Airports,which is guaranteed at the low end by the
MAG,has increased above the current level.The space rental rates remain unchanged as approved
in the MFS.The benefits of these changes will be to provide greater choices for visitors to Fresno
and other customers, while increasing revenue potential for Airports.
The decision to cancel the RFP and negotiate directly was made in consultation with Purchasing,the
City Attorney’s Office and an industry consultant.Consideration was given to,(i)reducing the
number of airport rental car operators to just three parent companies,all of whom are incumbents;(ii)
increasing the potential for improved customer services by providing for the opportunity to add
additional brands;and (iii)enhancing Airports Department revenues.In addition,prior to canceling
the RFP,a solicitation for letters of interest from any rental car company desiring to operate at FAT
was advertised nationwide to verify that there were indeed no other potential proposers or interest.
No responses were received and the verification was made.This process validated that FAT already
has essentially the entire rental car industry represented at the airport,and a desire by the RACs to
stay and provide additional choices for the traveling public.
The concession agreements have been reviewed and approved as to form by the City Attorney.
ENVIRONMENTAL FINDING
This lease falls within the Class 1 Categorical Exemptions set forth in California Environmental
Quality Act (CEQA)Guidelines,Sections 15301(a)and (d)(Existing Facilities),as it involves minor or
no alteration of existing leasehold structures with no expansion of use,and will not result in any
significant negative effects relating to traffic,noise,air quality or water quality.None of the
exceptions to Categorical Exemptions set forth in the CEQA Guidelines,Section 15300.2 apply to this
project.
LOCAL PREFERENCE
The City’s Local Preference Ordinance (FMC 4-108)does not apply because this item did not go
through the competitive bidding process.
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File #:ID#14-440 Agenda Date:10/9/2014 Agenda #:2-B
FISCAL IMPACT
The first year revenue from these concession agreements is anticipated to be;(i)$62,350 for counter
rental space (which is subject to future MFS adjustments);(ii)$304,460.50 for the rental car
ready/return area (which is subject to annual adjustments based on the Consumer Price Index (CPI)),
and;(iii)at least a concession MAG of $2,134,340.88 (which is subject to annual adjustments),for a
total estimated first year revenue of at least $2,501,151.38.Total projected revenue for the full five (5)
year term is $12,505,756.90,not including CPI and MAG adjustments.All revenue will be deposited
into the Airports Enterprise Fund and will contribute to the operation and maintenance of FAT.In
addition,this business activity will continue to provide an economic benefit to the City and FAT
through increased brand selection for airport patrons.There is no impact to the General Fund from
this item.
Attachments:
- Rental Car Concession Agreements
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City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-462 Agenda Date:10/9/2014 Agenda #:
REPORT TO THE CITY COUNCIL
October 9, 2014
FROM:Department of Public Utilities
SUBJECT
HEARING to consider a Resolution of Public Use and Necessity for Acquisition of Permanent Utility
Easements and Temporary Construction Easements from APNs 580-040-02S owned by Frances M.
Ricchiuti &Patrick V.Ricchiuti,Co-Trustees of the Frances M.Ricchiuti Family Trust and Patrick V.
Ricchiuti,Trustee,The Ricchiuti GST Nonexempt QTIP Trust;580-020-20S and 580-020-22S owned
by Leonard and Nicholas Verni;580-050-01S owned by Patrick Vincent Ricchiuti,Trustee of the
Patrick Vincent Ricchiuti Family Trust;and 580-020-21 and 580-020-23 owned by George C.
Goshgarian,Kathleen A.Goshgarian,Michael Morales,Leonard Verni,Nicholas Verni,Steven G.
Fogg Family Partnership,and Christopher T.Lum as Sole Trustee of the Steven C.Y.Lum and
Catherine J. Lum Trust.
1.*RESOLUTION -That the Public Interest and Necessity Require and Authorize Eminent Domain
for Acquisition of Permanent Utility Easements and Temporary Construction Easements from Real
Property:APNs 580-040-02S,580-020-20S,580-020-22S,580-050-01S,580-020-21,580-020-23,
located in the County of Fresno. (Requires 5 Affirmative Votes)
(Continue to October 23, 2014 @ 11:00 a.m.)
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City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-416 Agenda Date:10/9/2014 Agenda #:
REPORT TO THE CITY COUNCIL
October 9, 2014
FROM:JENNIFER K. CLARK, ACIP, Director
Development and Resource Management
THROUGH:MIKE SANCHEZ, Assistant Director
Development Services Division
BY: BRUCE BARNES, Project Manager
Development Services Division
SUBJECT
CONTINUED HEARING to Consider Rezone Application No. R-13-014 and related Environmental
Assessment No. R-13-014/TPM 2013-03 filed by Mike Hamzy on behalf of Niko Real Estate Fund,
LLC for property located on the west side N. Winery Avenue between E. Washington and E.
McKenzie Avenues (Council District 7)
(Continued from June 26, 2014 Council meeting)
1.Consider the Finding of Conformity for Environmental Assessment No. R-13- 014/TPM 2013-03
2. BILL- (For introduction and adoption) - Amending the Official Zone Map to reclassify the subject
property from the R-A (Single Family Residential Agricultural) zone district to the R-1 (Single Family
Residential) zone district
RECOMMENDATIONS
Staff recommends that the City Council take the following actions:
1.ADOPT the Finding of Conformity prepared for Environmental Assessment No.R-13-014/TPM
2013-03;
2.ADOPT BILL approving Rezone Application No.R-13-014 to amend the Official Zone Map to
reclassify the subject property from the R-A (Single Family Residential Agricultural)zone district
to the R-1 (Single Family Residential)zone district.If approved,Rezone Application will facilitate
approval of a proposed residential subdivision of an approximately 0.41 acre portion of the 0.61
acre subject property into three parcels in accordance with Tentative Parcel Map No. 2013-03.
EXECUTIVE SUMMARY
This matter was first considered by the City Council on June 26,2014,and pertains to a 0.61 acre lot
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File #:ID#14-416 Agenda Date:10/9/2014 Agenda #:
This matter was first considered by the City Council on June 26,2014,and pertains to a 0.61 acre lot
(26,520 square feet).Rezone Application No.R-13-14 proposes to rezone said property from the R-
A district (Residential-Agricultural zone district,minimum lot size of 36,000 square feet)to R-1
(Single-Family Residential zone district,minimum lot size of 5,000 square feet).Upon discussion of
the matter the council decided to refer the matter back to staff.
Approval of the rezone will allow the owner to complete the processing of a Tentative Parcel Map
creating a 3-lot subdivision and a remainder lot with an existing house which equates to density of
6.5 units per acre.During the meeting of June 26,2014,Council discussed options but took no
action.The proposed R-1 zoning is consistent with the current 2025 General Plan land use
designation of medium density residential,and the proposed Tentative Parcel Map would be deemed
consistent under this scenario.The only Tentative Parcel Map staff could approve would be for a 3-lot
subdivision with a remainder lot with an existing house.Allowing a 1-lot or a 2-lot subdivision would
make the project inconsistent with the required minimum density of 4.99 units per acre which the
City’s ordinance does not allow.
BACKGROUND
(See original staff report date June 26, 2014 for more project information-Exhibit 4)
The 2025 General Plan designates property as medium density residential planned land use
designation which has a density range of 4.99-10.37 units/acre.The proposed R-1 zone district is
consistent with this designation.Comparatively,a 2-lot subdivision would only create 4.92 units per
acre which is prohibited under section 12-607 of the Fresno Municipal Code.Therefore,a project
proposing fewer than 4 total lots would necessitate a general plan amendment to facilitate this option.
Land Use Plans and Policies
Objective C-15 of the 2025 Fresno General Plan states as follows:“Provide infill opportunities that
will revitalize the built-up urban core communities and neighborhoods of Fresno,provide residential
development for diverse population,and improve the overall quality of the urban environment.”The
proposed project fulfills this objective.Currently there is a single family home on a 0.60 acre parcel.
By rezoning the property consistent with the General Plan’s land use designation of Medium Density
Residential to R-1 (Single Family Residential zone district),the applicant will be able to create three
additional home sites.Therefore,it is staff’s opinion that the proposed project is consistent with the
general plan objectives and policies.
Economic Feasibility
The developer prepared a cost estimate based on the City’s requirements for the Tentative Parcel
Map which included both the construction costs and the fees charged by the City and other agencies
(see Attachment 1).The cost of construction remains the same whether a 1-lot subdivision,2-lot
subdivision or 3-lot subdivision is built.The developer’s representative estimated the cost to create a
1-lot subdivision would be $189,033.Clearly,the estimated cost can easily be distributed with more
lots being created.Therefore,from the applicant’s perspective it would be much more economically
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lots being created.Therefore,from the applicant’s perspective it would be much more economically
feasible to create a 3-lot subdivision than it would be to create a 1-lot or 2-lot subdivision.
Planning Commission
The Fresno City Planning Commission considered Rezone Application No R-13-014 and the related
environmental documents at its regular meeting held on May 21,2014.The Planning Commission
reviewed the staff report in accordance with the policies of the 2025 General Plan and the Roosevelt
Community Plan and called for speakers in support and in opposition to the proposed project.There
were several speakers in opposition to the rezone who based concerns about the number of lots
being created and the size of the lots.The applicant’s engineer spoke in favor of the project and
stated that three lots were needed in order to spread the cost of the improvements (curbs,gutters,
sidewalks,street lights,etc.)and the required fees (school fees,flood control fees,etc.)over three
lots rather than one or two lots.While sympathetic to the concerns of those in opposition,the
Planning Commission noted the project is an infill project and it is consistent with the 2025 General
Plan.The Planning Commission then voted unanimously to recommend approval of the Rezone to
the City Council.
ENVIROMENTAL FINDING
The Development and Resource Management Department staff have prepared an initial study and
environmental checklist and evaluated the proposed development in accordance with the land use
and environmental policies and provisions of the 2025 Fresno General Plan,the related Master
Environmental Impact Report (MEIR)No.10130 (SCH #2001071097),and Mitigated Negative
Declaration (MND)No.A-09-02 (SCH #2009051016).The subject property has been proposed to
be developed at an intensity and scale that is permitted by the Medium Density Residential planned
land use designated for the subject site.Thus,the proposed project will not facilitate an additional
intensification of uses beyond that which already exists or would be allowed by the above-noted
planned land use designation.Moreover,it is not expected that the future development will adversely
impact existing City service systems or the traffic circulation system that serves the subject property.
These infrastructure findings have been verified by the Public Works and Public Utilities
Departments.It has been further determined that all applicable mitigation measures of MEIR No.
10130 and MND No.A-09-02 have been applied to the project necessary to assure that the project
will not cause significant adverse cumulative impacts,growth inducing impacts,and irreversible
significant effects beyond those identified by MEIR No.10130 and MND No.A-09-02 as provided by
CEQA Section 15177(b)(3).
Therefore,the project proposal has been determined to be within the scope of the MEIR and MND as
defined by Section 15177 of the CEQA Guidelines and staff has properly published a Finding of
Conformity to MEIR No.10130 dated January 13,2012.In addition,after conducting a review of the
adequacy of the MEIR pursuant to Public Resources Code Section 21157.6(b)(1),the Development
and Resource Management Department,as lead agency,finds that no substantial changes have
occurred with respect to the circumstances under which the MEIR was certified and the MND
adopted;and,that no new information,which was not known and could not have been known at the
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File #:ID#14-416 Agenda Date:10/9/2014 Agenda #:
adopted;and,that no new information,which was not known and could not have been known at the
time that the MEIR was certified as complete or the MND was adopted, has become available.
A public notice of the attached Finding of Conformity for Environmental Assessment Application No.
R-13-014/TPM 2013-03 was published on April 4,2014,with no comments or appeals received to
date.
LOCAL PREFERNCE
This project is not subject to a bidding process.
FISCAL IMPACT
Affirmative action by the City Council will result in timely deliverance of the review and processing of
the application as is reasonably expected by the applicant/customer.Prudent financial management
is demonstrated by the expeditious completion of this land use application inasmuch as the
applicant/customer has paid to the City a fee for the processing of this application and that fee is,in
turn, funding the respective operations of the Development and Resource Management Department.
Attachments
1)Per-Lot Cost Comparisons
2)Letters in Opposition to Project
3)Ordinance Bill
4)Staff Report 6-26-14
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City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-446 Agenda Date:10/9/2014 Agenda #:
REPORT TO THE CITY COUNCIL
October 9, 2014
FROM:JENNIFER K. CLARK, AICP, Director
Development and Resource Management Department
THROUGH:MIKE SANCHEZ, Assistant Director
Development and Resource Management Department
BY:SOPHIA PAGOULATOS, Supervising Planner
WILL TACKETT, Supervising Planner
Development Services Division
SUBJECT
Consider an appeal filed by Councilmember Caprioglio, appealing the Planning Commission’s action
to approve Conditional Use Permit No. C-13-092 and related Vesting Tentative Tract Map No.
6033/UGM, and environmental findings, by Jeffrey T. Roberts of Granville Homes, Inc, for property
located on the northeast corner of North Fowler and East Clinton Avenues (Council District 4)
1.RESOLUTION - Denying the appeal and approving Conditional Use Permit No. C-13-092
2.RESOLUTION - Denying the appeal and approving Vesting Tentative Tract Map No.
6033/UGM
(Continued from September 25, 2014)
RECOMMENDATIONS
Staff recommends the City Council take the following action:
1.ADOPT the Mitigated Negative Declaration for the Conditional Use Permit No. C-13-092 and
Vesting Tentative Tract Map No. T-6033 prepared for Environmental Assessment No. A-11-003, R-
11-003, C-13-092, T6033 dated March 21, 2014.
2.ADOPT RESOLUTION denying appeal and approving Conditional Use Permit Application No.C-
13-092 and related Vesting Tentative Tract Map No.6033/UGM pertaining to approximately
31.87acres of property located on the northeast corner of North Fowler and East Clinton Avenues.
EXECUTIVE SUMMARY
Jeffrey T.Roberts,on behalf of Granville Homes,Inc.,filed Conditional Use Permit Application No.C-13-092 and Vesting
Tentative Tract Map No.6033/UGM pertaining to approximately 31.87acres of property located on the northeast corner of
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File #:ID#14-446 Agenda Date:10/9/2014 Agenda #:
Tentative Tract Map No.6033/UGM pertaining to approximately 31.87acres of property located on the northeast corner of
North Fowler and East Clinton Avenues.Vesting Tentative Tract Map No.6033/UGM proposes to subdivide the property
into a 169-unit single family residential subdivision at a density of 5.3 dwelling units per acre.Conditional Use Permit No.
C-13-092 proposes a development with public streets and modified property development standards for all of the
proposed lots.
This project was considered by the Fresno City Planning Commission at its regular meeting on April 16,2014.The
conditions of approval at that time allowed for modified property development standards for lot size,lot coverage and yard
(setback)requirements.Thirty-five lots were proposed with 7-foot garage setbacks,however the conditions of approval
required 18-foot garage setbacks.The Fresno Municipal Code (FMC)requires a minimum garage setback of 20 feet
which can be reduced to 18 feet dependent upon the style of garage door.The Planning Commission approved staff’s
recommendation,which required an 18-foot garage setback on all public streets for this project.The option was also
provided to make the streets private,thus allowing garage setbacks of less than 18 feet,however this option was not
chosen by the applicant.
On June 19,2014,an appeal of the Commission’s decision regarding the subject applications was filed by
Councilmember Caprioglio.In response to the appeal,the Planning Commission’s action is set aside and a City Council
public hearing was scheduled and noticed in accordance with Sections 12-401-B and 12-401-C-2 of the FMC.Staff
recommends denial of the appeal and approval of the project as approved by the Planning Commission.Staff also
supports approval of garage setbacks less than 18 feet on private streets.
BACKGROUND
Fresno City Planning Commission Action
This project was considered by the Fresno City Planning Commission at its regular meeting on April 16,2014.The
conditions of approval at that time allowed for modified property development standards including 15-foot front and 15-
foot and 10-foot rear yards (standard rear yard is 20 feet),3-foot interior side yards (standard is 5 feet),and 8-foot street
side yards (standard is 10 feet).Thirty-five lots were proposed with 7-foot garage setbacks,however the conditions of
approval required 18-foot garage setbacks.
The FMC requires a minimum garage setback of 20 feet which can be reduced to 18 feet dependent upon the style of
garage door.Staff recommends an 18-foot setback on all public streets for this project but is supportive of garage
setbacks of less than 18 feet on private streets governed by a homeowners association.The homeowners association
would be responsible for liability and enforcement on private streets.
After a complete hearing on April 16,2014,the Commission recommended approval of the subject applications and the
conditions of approval proposed by staff,including the requirement for a minimum 18-foot setback from garage to back of
sidewalk on public streets.
Analysis
The reasons for requiring the 18-foot garage setbacks on public streets are the following:
1.Pedestrian Safety:the 18-foot garage setback (driveway)provides enough room for a vehicle to park in the
driveway without blocking the sidewalk in violation of the California Building Code and Americans with Disabilities
Act (ADA);vehicles parked on the sidewalk would force pedestrians to walk in the street.Moreover,driveways
less than 18 feet in length do not provide adequate visibility to the driver backing out of the garage,thereby
jeopardizing pedestrian safety.
2.Other Design Options Available:while it is acknowledged that the 35 lots in question are smaller lots with more
design challenges,there are many other options available (as discussed at the City Council Workshop held on
August 21,2014)to achieve the same densities and maintain an attractive,safe and pedestrian-friendly
streetscape. For example:
a.Recessed garages (18 feet) with reduced front setbacks for remainder of façade;
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b.Alley loaded option with garages located in rear;
c.Shared driveways/auto court concept, similar to cul-de-sac but with private drives;
d.Cluster housing;
e.Tandem-parked garages (designed to park two cars end-to-end rather than adjacent to one another).
3.Streetscape Design:the 7-8 foot garage setbacks proposed in T-6033/C-13-092 result in a streetscape that is
dominated by garages.The garage is the widest element of the facade,and in half of the plans protrudes about
10 feet closer to the sidewalk than the living area of the dwelling.
4.Municipal Resources:the City does not have the resources to enforce the parking issues that would result from
such a design, nor does it have the resources to assume the liability related to reduced pedestrian safety.
The applicant has provided a conditional use permit exhibit (Exhibit D)which depicts eight typical lots showing lot
dimensions,minimum yard setbacks and potential house placement.Of the eight typical lots,four show garages with an
18-foot setback to sidewalk,while the remaining show garages with a 7’-8’setback to sidewalk.The four typical lots with
a proposed 7’-8’setback from garage to sidewalk are shown in Exhibit D,page 3.The rear yard setbacks of the potential
house placement are currently at 25’,24’,20’and 14’.Should the applicant be required to provide an 18-foot setback
from garage to sidewalk,it will necessitate moving the houses 10 feet to the rear,which will result in rear yard setbacks of
15’,14’,10’and 4’,respectively.Only the plan with that would result in the 4-foot rear yard setback would be non-
compliant with the setbacks allowed through the conditional use permit;all of the other plans would comply.Alternatively,
the homes could be re-designed to fit the lots.
The proposed lot sizes are smaller than traditional lots,requiring a different perspective to traditional lot design.Neither
the City Code nor the General Plan require small lots in this location.
Streets and Access Points
The Public Works Department,Traffic Engineering Division has reviewed the proposed project and potential traffic related
impacts for the proposed applications and has determined that the streets adjacent to and near the subject site will be
able to accommodate the quantity and kind of traffic which may be potentially generated subject to the requirements
stipulated within the memoranda from the Traffic Engineering Division dated April 10,2014.These requirements
generally include:(1)The provision of a minimum two points of vehicular access to major streets for any phase of the
development;(2)Street improvements,(including,but not limited to,construction of concrete curbs,gutters,pavement,
underground street lighting systems;and,(3)Payment of applicable impact fees,including,but not limited to,the Traffic
Signal Mitigation Impact (TSMI) Fee, and the Fresno Major Street Impact (FMSI) Fee.
Notice of City Council Meeting
The Development and Resource Management Department mailed notices of this City Council hearing to surrounding
property owners within 500 feet of the subject property.
Land Use Plan and Policies
The subject site is designated for medium density residential planned land uses by the 2025 Fresno General Plan and
the McLane Community Plan.
The objectives and policies of the 2025 Fresno General Plan encourage the development of master planned communities
in an attempt to maximize the efficient use of the land. Policy C-8-g states: Support the planning and development of
master planned/mixed use communities such as the Dominion Project.
Additionally, Objective C-10 states: Promote the development of more compact pedestrian friendly, single-family
residential projects to aid in the conservation of resources such as land, energy, and materials.
Conditional Use Permit Application Findings (Planned Development)
Conditional Use Permit Application No.C-13-092 proposes the development of a 169-lot single family residential planned
development.The planned development will provide modified property development standards.Based upon analysis of
the conditional use permit application and subject to the applicant’s compliance with the Conditions of Approval dated
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the conditional use permit application and subject to the applicant’s compliance with the Conditions of Approval dated
April 16, 2014, staff concludes that the following required findings of Section 12-405-A-2 of the FMC can be made.
1.All applicable provisions of this Code are complied with and the site of the proposed use is adequate in size and
shape to accommodate said use,and accommodate all yards,spaces,walls and fences,parking,loading,
recycling areas, landscaping, and other required features; and,
Conditional Use Permit Application No.C-13-092 will comply with all applicable codes,including,landscaping,
walls, etc., given that the special conditions of project approval will ensure that all conditions are met.
2.The site for the proposed use relates to streets and highways adequate in width and pavement type to carry the
quantity and kind of traffic generated by the proposed use; and,
The Public Works,Traffic Engineering Division reviewed the proposed project and assessed the adjacent streets
to ensure that the proposal would not have significant impacts on traffic and the surrounding community.
3.The proposed use will not be detrimental to the public welfare or injurious to property or improvements in the area
in which the property is located.The third finding shall not apply to uses which are subject to the provision of
Section 12-306-N-30 of the FMC.
The site is vacant and with the adoption of the 2025 Fresno General Plan,the city analyzed the impacts of converting
vacant land into urban uses and determined that it is necessary to convert land within the sphere of influence in an
attempt to provide housing,growth,employment opportunities,etc.The Development and Resource Management
Department has determined that the proposed use will not be detrimental to the public welfare or be injurious to property
or improvements in the area in which the property is located if developed in accordance with the various
conditions/requirements established through the related vesting tentative tract map application review and conditional use
permit application review processes.
Vesting Tentative Tract Map Findings
The Subdivision Map Act (California Government Code §§66400,et seq.)requires that a proposed
subdivision not be approved unless the map,together with its design and improvements,is found to
be consistent with the General Plan and any applicable specific plan (Finding No. 1 below).
State law further provides that the proposed subdivision map be denied if any one of the Finding Nos.
2 -5 below is made in the negative.In addition,State law requires that a subdivision be found to
provide for future passive and natural heating or cooling opportunities in the subdivision development
(Finding No. 6 below).
1.The proposed subdivision map,together with its design and improvements,is consistent with
the City's 2025 General Plan and the McLane Community Plan,because the plans designate
the site for medium density residential planned land uses and the project design meets the
density and zoning ordinance criteria for development.
2.This site is physically suitable for the proposed type and density of development,because
conditions of approval will ensure adequate access and drainage on and off the site;and,that
development shall occur in accordance with adopted standards,goals,objectives,and policies
for development in the City of Fresno.
3.The proposed subdivision design and improvement is not likely to cause substantial and
considerable damage to the natural environment,including fish,wildlife or their habitat,
because the area is not known to contain any unique or endangered species and the
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urbanized nature of the area in which the site is located.
4.The proposed subdivision design and improvements are not likely to cause serious public
health and safety problems,because the conditions of approval have shown and will insure
that the subdivision conforms with City health and safety standards.
5.The proposed subdivision design will not conflict with public easements within or through the
site,because conditions of approval will assure noninterference with any existing or proposed
public easements.
6.The design of the subdivision provides,to the extent feasible,for future passive and natural
heating or cooling opportunities in the subdivision,because of the appropriate use and
placement of landscaping plant materials and because of the orientation of the proposed lots.
The subdivision map,based on the required findings for approval and subject to the recommended
conditions of approval,and the standards and policies of the 2025 Fresno General Plan and McLane
Community Plan,complies with applicable zoning and subdivision requirements.Based upon the
plans and information submitted by the applicant and the recommended conditions of project
approval, staff has determined that these findings can be made.
ENVIRONMENTAL FINDINGS
An environmental assessment initial study was prepared for this project in accordance with the
requirements of the California Environmental Quality Act (CEQA)Guidelines (see Exhibit G).This
process included the distribution of requests for comment from other responsible or affected
agencies and interested organizations.
Preparation of the environmental assessment necessitated a thorough review of the proposed project
and relevant environmental issues and considered previously prepared environmental and technical
studies pertinent to the McLane Community Plan area,including the Master Environmental Impact
Report (MEIR)No.10130 for the 2025 Fresno General Plan (SCH#2001071097)and Mitigated
Negative Declaration (MND)No.A-09-02 (SCH#2009051016).These environmental and technical
studies have examined projected sewage generation rates of planned urban uses,the capacity of
existing sanitary sewer collection and treatment facilities,and optimum alternatives for increasing
capacities;groundwater aquifer resource conditions;water supply production and distribution system
capacities;traffic carrying capacity of the planned major street system;and student generation
projections and school facility site location identification.
The proposed amendment of the adopted 2025 Fresno General Plan has been determined to not be
fully within the scope of MEIR No.10130 as provided by the CEQA,as codified in the Public
Resources Code (PRC)Section 21157.1(d)and the CEQA Guidelines Section 15177(c).It has been
further determined that all applicable mitigation measures of MEIR No.10130 and MND No.A-09-02
have been applied to the project,together with project specific mitigation measures necessary to
assure that the project will not cause significant adverse cumulative impacts,growth inducing impacts
and irreversible significant effects beyond those identified by MEIR No.10130 or MND No.A-09-02
as provided by CEQA Section 15178(a).In addition,pursuant to Public Resources Code,Section
21157.6(b)(1),staff has determined that no substantial changes have occurred with respect to the
circumstances under which the MEIR was certified and that no new information,which was not
known and could not have been known at the time that the MEIR was certified as complete,hasCity of Fresno Printed on 12/16/2022Page 5 of 6
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known and could not have been known at the time that the MEIR was certified as complete,has
become available.Therefore,it has been determined based upon the evidence in the record that the
project will not have a significant impact on the environment and that the filing of a mitigated negative
declaration is appropriate in accordance with the provisions of CEQA Section 21157.5(a)(2)and
CEQA Guidelines Section 15178(b)(1) and (2).
Based upon the attached environmental assessment and the list of identified mitigation measures,
staff has determined that there is no evidence in the record that the project may have a significant
effect on the environment and has prepared a draft mitigated negative declaration for this project.A
public notice of the attached mitigated negative declaration finding for Environmental Assessment
Application No. A-11-003/R-11-003/C-13-092/T-6033/UGM was published on March 21, 2014.
LOCAL PREFERENCE
N/A.
FISCAL IMPACT
Affirmative action by the Council will result in timely deliverance of the review and processing of the
application as is reasonably expected by the applicant/customer.Prudent financial management is
demonstrated by the expeditious completion of this land use application inasmuch as the
applicant/customer has paid to the city a fee for the processing of this application and that fee is,in
turn, funding the respective operations of the Development and Resource Management Department.
Attachments:Exhibit A:Vicinity Map
Exhibit B:Aerial Photograph
Exhibit C:Vesting Tentative Tract Map No. T-6033/UGM
Exhibit D:Exhibits for C-13-092
Exhibit E:Conditions of Approval for C-13-092
Exhibit F:Conditions of Approval for T-6033
Exhibit G Environmental Assessment
Exhibit H:Planning Commission Resolutions
Exhibit I:City Council Resolutions
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City of Fresno
Staff Report
2600 Fresno Street
Fresno, CA 93721
www.fresno.gov
File #:ID#14-451 Agenda Date:10/9/2014 Agenda #:
REPORT TO THE CITY OF FRESNO, THE SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY OF THE CITY OF FRESNO AND THE FRESNO
REVITALIZATION CORPORATION
October 9, 2014
FROM:MARLENE MURPHEY, Executive Director
SUBJECT
City Council, Successor Agency Board, FRC Board consider approving:
Actions pertaining to public improvements within the Central City Commercial Redevelopment Project
1.Findings of Categorical Exemption pursuant to Sections 15301 (Existing Facilities), item (c) of
the CEQA Guidelines, related to the construction of publically owned improvements in the area
generally described as Hedges Avenue between Abby and Effie, Effie Avenue between Hedges and
Hammond, and Hammond Avenue between Effie and Abby.
2.RESOLUTION - Of the City of Fresno, the Successor Agency and the Fresno Revitalization
Corporation making the necessary findings under section 33445 of the community redevelopment
law, authorizing the installation of public improvements within the Central City Commercial
redevelopment project area for street improvements including curb, gutter, paving and sidewalks.
3.Award of construction contract to Central Valley Asphalt as the lowest responsive and
responsible bidder in the amount of $252,831.88 (Bid File No.3291) for the construction of publically
owned improvements in the area generally described as Hedges Avenue between Abby and Effie,
Effie Avenue between Hedges and Hammond, and Hammond Avenue between Effie and Abby.
EXECUTIVE SUMMARY
This project will install concrete improvements and paving on Hedges Avenue between Abby and
Effie,on Effie Avenue between Hedges and Hammond,and on Hammond Avenue between Effie and
Abby.Improvements will include concrete curb and gutter,construction of sidewalk and drive
approaches and re-construction of roadway.The project will cost $252,831.88 as bid by Central
Valley Asphalt the lowest responsive and responsible bidder.
These improvements will enhance both traffic and pedestrian safety on North Abby,East Hedges,
North Effie and East Hammond Avenues.Construction of the first phase of public improvements in
this area have already been completed at the intersection of Abby and Hedges Avenues.
BACKGROUND
In 2011,the Redevelopment Agency Board approved an MOU with Apple Valley Farms and adopted
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In 2011,the Redevelopment Agency Board approved an MOU with Apple Valley Farms and adopted
a resolution authorizing the Agency to budget funds totaling $385,000 to install all appropriate public
improvements to increase safety and enhanced commercial traffic circulation in the Abby/Hedges
commercial area including curbs, gutters, drive approaches, paving, and storm drains.
Pursuant to Redevelopment Law Section 33445 and the Council adopted Ordinance No.99-46 and
Resolution 1657 that addressed the development of public improvements pursuant to the
Redevelopment Plan for the Central City Commercial Redevelopment Area,the Agency has made
findings that constructing the Project will improve both public and traffic safety through the
construction of concrete curb,gutter,drive approaches and sidewalks.It will enhance the safety of
both pedestrian and vehicular travel throughout this area.
Staff recommends that the City Council,the Successor Agency Board and the Fresno Revitalization
Corporation approve the attached Joint Resolution and award a construction contract to Central
Valley Asphalt in the amount of $252,831.88 for the construction of publically owned improvements.
Funding for this project has been approved in ROPS 14-15a.
CEQA FINDING
Staff has performed a preliminary environmental assessment of this project and has determined that
it falls within the Class 1 Categorical Exemption set forth in CEQA Guidelines,section 15301(c)as
this contract is for the repair/replacement of existing public infrastructure on North Abby,East
Hedges, North Effie and East Hammond Avenues.
Attachments:Joint Resolution
Bid Evaluation
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City Council Resolution No. _________
Successor Agency Resolution No. _________
Fresno Revitalization Corp Resolution No. __________
Abby & Hedges Street Improvements, Phase II
Central City Commercial Redevelopment Area
Page 1
CITY COUNCIL RESOLUTION NO. _________
SUCCESSOR AGENCY RESOLUTION NO. _________
FRESNO REVITALIZATION CORP RESOLUTION NO. _________
A JOINT RESOLUTION OF THE CITY OF FRESNO, THE
SUCCESSOR AGENCY TO THE REDEVELOPMENT
AGENCY, AND THE FRESNO REVITALIZATION
CORPORATION MAKING CERTAIN FINDINGS
PURSUANT TO SECTION 33445 OF THE COMMUNITY
REDEVELOPMENT LAW, AUTHORIZING THE
SUCCESSOR AGENCY’S INSTALLATION OF PUBLIC
IMPROVEMENTS WITHIN THE CENTRAL CITY
COMMERCIAL REDEVELOPMENT PROJECT AREA FOR
STREET IMPROVEMENTS AND OTHER ASSOCIATED
ROADWAY CONSTRUCTION WORK ON HEDGES
AVENUE BETWEEN ABBY AND EFFIE, ON EFFIE
AVENUE BETWEEN HEDGES AND HAMMOND, AND ON
HAMMOND AVENUE BETWEEN EFFIE AND ABBY.
WHEREAS, on July 19, 1999, the Council of the City of Fresno (the “Council”) by
Ordinance No. 99-46, adopted the redevelopment plan (the “Plan”) for the Central City Commercial
Revitalization Redevelopment Project (the “Project Area”), pursuant to the Community
Redevelopment Law of California (Health & Safety Code Sections 33000 et. seq.) (the "Law"); and
WHEREAS, on March 3, 2011, the Agency adopted Resolution 1776, approving the Five-
Year Implementation Plan for the Project Area (the “Implementation Plan”); and
WHEREAS, on January 26, 2012, the Council adopted Resolution 2012- 12, electing to have
the City of Fresno serve as the Successor Agency to the Redevelopment Agency of the City of
Fresno (“RDA”) upon the dissolution of the RDA; and
City Council Resolution No. _________
Successor Agency Resolution No. _________
Fresno Revitalization Corp Resolution No. __________
Abby & Hedges Street Improvements, Phase II
Central City Commercial Redevelopment Area
Page 2
WHEREAS, the Successor Agency is engaged in activities necessary to carry out the Plan,
and the Plan authorizes the RDA, and by extension the Successor Agency, to: (i) install, construct or
reconstruct public improvements or facilities to eliminate blight, (ii) cause or provide for installing
or constructing utilities and other public improvements necessary to carry out the Plan, and (iii)
specifically includes street improvements associated with plan implementation; and
WHEREAS, June 29, 1999, by Council Resolution No. 99-45 and Agency Resolution No.
1657, relating to the Plan, Council adopted a Program Environmental Impact Report that addressed,
among other things, the development of new public improvements pursuant to the Plan, and
demolition of existing improvements; and
WHEREAS, the existing condition of Abby and Hedges Avenues hinder traffic circulation
and the proposed project will include concrete curb and gutter, sidewalk and drive approaches and
reconstruction of roadway; and
WHEREAS, the Project improvements will alleviate traffic hindrances that have plagued this
area, improve the traffic flow and increase public safety on Abby and Hedges (the “Project”); and
WHEREAS, the Successor Agency has performed a preliminary environmental assessment
of the project and determined that it falls within the Class 1 of the CEQA Guidelines, section 15301,
as this project involves the repair and replacement of existing infrastructure, and none of the
exceptions set forth in CEQA Guidelines, section 15300.2 apply to this Project; and
WHEREAS, the inability of the City to undertake this Project without the involvement of the
Successor Agency relates to the limited funding ability of the City’s General Fund; and
City Council Resolution No. _________
Successor Agency Resolution No. _________
Fresno Revitalization Corp Resolution No. __________
Abby & Hedges Street Improvements, Phase II
Central City Commercial Redevelopment Area
Page 3
WHEREAS, pursuant to Section 33445 of the Redevelopment Law the Successor Agency,
with the consent of the Council and upon certain Council determinations, may pay for the cost to
install and construct publicly owned improvements within and outside the Project Area; and
WHEREAS, the City of Fresno, the Successor Agency, and the Fresno Revitalization
Corporation, after due consideration, believe that the Successor Agency’s costs, estimated at
$252,831.88, to construct the Project, is in the best interests of the City and health, safety, and
welfare of employees, businesses, property, and visitors to the Project Area, and is consistent with
the public purposes and provisions of applicable state and local laws; and will improve the quality
of life for residents, visitors to, and businesses and properties within the Project Area, consistent
with the Plan.
NOW, THEREFORE, BE IT RESOLVED by the City of Fresno, the Successor Agency,
and the Fresno Revitalization Corporation as follows:
1. Based upon substantial evidence provided in the record before it, the City of
Fresno, the Successor Agency, and the Fresno Revitalization Corporation find and determine the
following:
Finding No. 1.1: Constructing the Project within the Project Area will help
improve the traffic circulation, streetscapes and image of the Project Area, is necessary to achieve
the purposes of, and is consistent with, the Plan, and will benefit the Project Area.
Finding No. 1.2: Installing the Project will help eliminate blight within the Project
Area in the immediate vicinity of the Project, and within the overall Project Area, by increasing
City Council Resolution No. _________
Successor Agency Resolution No. _________
Fresno Revitalization Corp Resolution No. __________
Abby & Hedges Street Improvements, Phase II
Central City Commercial Redevelopment Area
Page 4
efficient traffic flow, and improving traffic safety and enhancing the area for private investment
and upgrading and improving the image of the area.
Finding No. 1.3: The Project is consistent with the Implementation Plan.
Finding No. 1.4: Using tax increment for the Project is essential and necessary, as
no other reasonable means of financing the Project are available to the City of Fresno.
2. The Council consents to the Successor Agency expending tax increment to install
and construct the Project, and consents to the Successor Agency award of a contract for the
Project.
********
City Council Resolution No. _________
Successor Agency Resolution No. _________
Fresno Revitalization Corp Resolution No. __________
Abby & Hedges Street Improvements, Phase II
Central City Commercial Redevelopment Area
Page 5
CLERK'S CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF FRESNO )
CITY OF FRESNO )
I, YVONNE SPENCE, City Clerk, hereby certify that the City of Fresno, the Successor
Agency, and the Fresno Revitalization Corporation, adopted the foregoing resolution at a joint
public meeting held on the ______ day of October, 2014, and that the same was passed by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
YVONNE SPENCE
City Clerk and Ex-Officio Clerk
of the Successor Agency
By
Deputy
APPROVED AS TO FORM:
Douglas Sloan
City Attorney and Ex-Officio Attorney
to the Successor Agency
By ____________________
Sr. Deputy