OFFICE OF THE CITY ATTORNEY i 1200 THIRO AVENUE, SUITE1620 SAN DIEGO, CALIFORNIA 92101-4178 CITY OF SAN DIEGO TELEPHONE (619) 236?6220 FAX (619) 236-7215 Michael J. Aguirre CITY ATTORNEY June 20, 2005 REPORT TO THE COMMITTEE ON GOVERNMENT EFFICIENCY AND OPENNESS ENFORCEMENT OF CHARTER SECTION 225 INTRODUCTION In 1992, the San Diego City Charter [Charter] was amended to add section 225 ?Mandatory Disclosure of Business Interests.? This section imposes a mandatory disclosure of the name and identity of any and all persons who are involved in transacting business with the City. A failure to fully disclose the required information shall be grounds for denial of any application or proposed transaction, and ?may result in forfeiture of any and all rights and privileges that have been granted.? The Charter section states: Section 225: Mandatory Disclosure of Business Interests No right, title or interest in the City's real or personal property, nor any right, title or interest arising out of a contract, or lease, may be granted or bargained pursuant to the City's general municipal powers or otherwise, nor any franchise, right or privilege may be granted pursuant to Section 103 or 103.1 of this Charter, unless the person applying or bargaining therefor makes a full and complete disclosure of the name and identity of any and all persons directly or indirectly involved in the application or proposed transaction and the precise nature of all interests of all persons therein. Any transfer of rights, privileges or obligations arising from a franchise, right or privilege granted under Charter Section 103 or 103.1, or any transfer of any right, title or interest in the City?s real or personal property, or any right, title or interest arising out Of a contract, or lease, which may be granted or bargained pursuant to the City's general municipal powers or otherwise, shall also require a full and complete disclosure as set forth above. Failure to fully disclose all of the information enumerated above shall be grounds for denial of any application or proposed transaction or transfer and may result in forfeiture of any and all rights and privileges that have been granted heretofore. REPORT To THE COMMITTEE ON - -2- 1 June 20, 2005 GOVERNMENT EFFICIENCY AND I OPENNESS For purposes of this Charter section, the term "person" means any natural person, joint venture, joint stock company, partnership, association, ?rm, club, company, corporation, business trust, organization or entity. (Emphasis added). According to the ballot argument, the Charter section 225 requirements arose out of concerns by the Mayor and members of the City Council that they should be given certain information with regard to persons proposing to transact business with the City. The measure passed with more than 86% of voters approving the amendment. Shortly after the enactment 0f Charter section 225, this Of?ce prepared a draft Council Policy to provide guidelines on implementation. It is not clear why the policy was never formally reviewed and adopted. Nonetheless, the City has been requiring disclosure for some contracts and real property transactions but compliance does not appear to be standardized throughout the City. DISCUSSION A. Current Compliance In response to a request made by Councilmember Frye at a City Council meeting, the City Manager?s Of?ce, through its Council Liaison, has been providing the City Council with information regarding the ownership of companies doing business with the City before such items of business appear on the docket. For example, a March 14, 2005, memorandum detailing the ownership information for various items appearing on the March 14?15, 2005, docket is attached for your review. (See Attachment 1). When one of those items (the matter of renaming the San Diego Sports Arena) came before the City Council at that meeting, supporting - information from the City Manager stated that the ?the naming rights entity must not be in violation of Charter Section 225 or Council Policy 000?04.? A copy of the minutes from the March 14, 2005, meeting re?ecting that statement is attached. (See Attachment 2). Additionally, the Engineering and Capital Projects Department presently requires each company seeking to contract with the City fora public works project exceeding $250,000 to submit a pre-quali?cation questionnaire disclosing a variety of information regarding of?cers and owners of the company. For example, in the case of corporations, the questionnaire seeks the name, position, number of years with the corporation, ownership percentage, and taxpayer identi?cation number for every of?cer of the company and for every person who owns at least ten percent of the corporation?s stock. The questionnaire also requires the disclosure of every company such persons have been aSSOCiated with over the past ?ve years. If the company is a subsidiary, parent, or holding company, then information regarding that business relationship must be disclosed. A copy of the pre?quali?cation questionnaire is attached. (See Attachment 3). There also is some degree of Charter section 225 compliance with regard to contracts for the lease of City real property. Attached are excerpts from several such contracts. One contract contains language stating that ?Pursuant to City Charter section 225, the City Manager must review and approve every person or entity which will have a ?nancial interest in this lease.? REPORT TO THE COMMITTEE ON 7 June 20, 2005 GOVERNMENT EFFICIENCY AND OPENNESS Another contract states: ?All assignees and sublessees will be subject [to] review by the City, in accordance with City Charter Section 225, and shall be of good moral character with no prurient interests.? (See Attachment 4). Our Office has also been advised by the Real Estate Assets Department that the disclosure of information required by Charter section 225 occurs when reviewing proposals or during lease negotiations that result from the issuance of request for proposals, and that disclosure requirements become incorporated into the contract. The above are only examples as this Of?ce did not do a City?wide survey of compliance with Charter section 225. However, it appears that there is a lack of uniformity and guidance with regard to the scope of the requirements and the methods of obtaining compliance. For this reason, and as addressed in the following paragraphs, we recommend that the City Council adopt a Council Policy establishing appropriate guidelines for ensuring compliance with Charter section 225. B. 1992 Proposed Council Policy Shortly after Charter section 225 went into effect in 1992, our Of?ce drafted a Memorandum of Law in response to an inquiry from the Property Department (now the Real Estate Assets Department) with regard to how the requirements of Charter section 225 would impact real property transactions. In the MOL, our Of?ce confirmed that in accordance with Charter section 225, the City Council must be given the name and identity of all persons involved in the proposed transaction and the precise nature of all such interests. 1992 City Att?y MOL 430. (See Attachment 5). The MOL also identified a problem with a literal interpretation of Charter section 225. ?The above language taken literally would require thedisclosure of the 6name and identity? of all the stockholders of General Motors tOgether with the ?precise nature of all interests" of such stockholders in any proposed contracts General Motors may desire to enter into with the City. Obviously, it is neither practical nor desirable to interpret the Charter section to require such information.? 1992 City Att?y MOL at 431. At that time, our Office drafted a proposed Council Policy to address concerns regarding how much information would be required of parties transacting business with the City. That draft Council Policy, which is a part of the attached 1992 MOL, proposes thresholds of financial interest that would have to be met before disclosure is required. For example, it would require disclosure from a person who owns an interest representing five percent or more of the total ownership of an entity doing business with the City if that interest was worth $10,000 or more. It would also require disclosure from any person that could reasonably anticipate benefiting from the transaction in the amount of $10,000 or more. Under the proposed Council Policy, the disclosures would be made for contracts of any type requiring City Council approval. REPORT To THE COMMITTEE ON June 20,? 2005 GOVERNMENT EFFICIENCY AND OPENNESS It is not clear the extent to which any action or discussion took place with regard to the language we proposed in 1992. It is clear only that it was never adopted as an of?cial Council Policy. Nonetheless, it appears that some disclosures are being made to the City Council. To ensure consistent compliance with Charter section 225, we recommend that the procedures be formalized through a new Council Policy. CONCLUSION Charter section 225 requires the disclosure of the name and identity of any person directly or indirectly involved in a transaction with the City. If interpreted literally, this Charter section would require an impractical amOunt of disclosure of individual interests, including information regarding each individual shareholder in any large company that transacts business With the City. This does not appear to be the intent of the disclosure requirements. Nonetheless, the disclosures must be made to the extent that the City Council can determine the identity of persons that have signi?cant interests in. the business transaction. The proposed Council Policy drafted by our Of?ce in 1992 may be an appropriate starting point for discussion of these issues. This Of?ce is ready to assist in the drafting of such guidelines and to provide advice on the appropriate level of disclosure after the committee?s discussion on the Charter section requirements. Respect?illy submitted, . WW: MICL . AGUIRRE City Attorney :jb Attachments 5 ATTACHMENT 1 "-11 15:45 OFFICE CITY Ell: ED CITY CityufSan mega MEMORANDUM DATE: March 14, 2005 T0: Honorable Maynr and City Council FROM: Ed Plank? Council Liaiwn SUBJECT: Ownership Infurmatian Supplemental item 3406 .. at .r The itbllowing information is being provided regarding with the: City of San Diego in the form leases, ur agreEment the: Cauncil dacket of'March l4 15, 2005. I . Item Nag Subject Name of Firm Ownefship 101 Award Furnish Planter Americas, Mike Pres- Sndium Dcholarite 12.5%? 1.1in I in Solutimzlp a Gary Pittman, CFC) Kent Slaphmm?m, VP General Council Jam! Bradley, VP Human Resmurces Ron Cioral VP ,4 Sales Marketing: Mme: 102 Award of Cuntrucl Furnish Kemimn Cmnpanies. LEWWCE ?jerst?dl Femaus Inc. Me! Blah-13? Ops, Mgr. Spence Wolff, VP Marketing - Brian Wadeski, Cums! lmgistica 15:45 Mayi?ir and City Cnuncil March 14,2005 memhip Inlhmation l"?lEiEf?EI OFFICE Ell: SD CITY 105 Televisng Sewer Mains; Tran Consulting Inli'irmation requested. Annual Cn'ntracl Emension Engineers 107 Tami; Order for MEC Weszcm Snlutinnsi lnc. William LRobertsom Analyticai Systems, Inc Chairman Patrick Cir. McCannmation . tu pmsidem Vincent A. Lainey: Privately held. 12 F'rst Amendment. ankan Engineering Rich?lrd Consultant Agreammit with Frasiid?n Dukkcn Engin?ering for SR- I V. I63 and Friars Rnad inwi 13 Agreement with BRG ERG C(?msulting, Inc. Patricia A. Butler; mic. Consulting Inc. fer President CEO Eric? I .i e? i? Frasid?nt CQD Landfill Privately held. 8406 Sports Arena Naming, Rights I Pay Cine, Inc. Mar? Agrcamcnt Blair Doug Manchegtcr John Board of Dir?ctms: Sal Berni, President I Rim Hahn Marc Guild; ldradgc Ted ATTACHMENT 2 Minutes of the Council of the City of San Diego for the Regular Meeting of Monday, March 14, 2005 Page 49 ITEM-S406: Sports Arena Naming Rights Agreement. (Midway/Paci?c Highway Corridor Community Area. District 2.) CITY RECOMMENDATION: Adopt the following resolution: ADOPTED AS RESOLUTION R-300235 Approving renaming the San Diego Sports Arena to ?ipayOne Center?; Approving the identi?cation signage as set forth in Section 4.2 of the Naming Rights Agreement between Arena Group 2000, LR, and I Pay One, Inc. Approving the form of the Naming Rights Agreement. CITY MANAGER SUPPORTING INFORMATION: Arena Group 2000, LP. 2000") is the operator of the San Diego Sports Arena ("Sports Arena"), under an Operating Sublease Agreement ("Operating Sublease"). Pursuant to Resolution No. 296247 dated April 2, 2002, the Mayor and Council authorized the City Manager to execute a fourth amendment to the Operating Sublease with AG 2000 which allows AG 2000 to enter into a naming rights agreement for the Sports Arena provided the following requirements are met: 0 The identity of the naming rights entity and the identification signage shall be subject to prior written consent of the City, pursuant to City Council resolution. 0 The form of the naming rights agreement shall be subject to the reasonable approval of the City. - 0 Consideration to the City will be 10% of the gross revenue derived from the naming rights agreement. a The naming rights entity must not be in violation of Charter Section 225 or Council Policy 000?04. Accordingly, AG 2000 has submitted the Naming Rights Agreement ("Agreement") entered into with I Pay One, Inc is a discount real estate brokerage ?rm, headquartered in Carlsbad. The following is an outline of the terms of the Agreement: Minutes of the Council of the City of San Diego for the Regular Meeting of Monday, March 14, 2005 Page 50 0 Minimum term ?ve years, maximum term to coincide with the expiration of the Operating Sublease (May 7, 2017). The Sports Arena will be known as the "ipayOne Center". 0 The name and associated logo will be featured throughout the arena and on signage located in the arena parking lot, (The location of Signage is speci?ed in Section 4.2 of the Agreement. The ipayOne logo is also attached). 0 1P1 will pay AG 2000 $200,000 in the ?rst year of the Agreement; $500,000 in the second year; $600,000 in the third, fourth and ?fth years; and $500,000 every year thereafter. FISCAL IMPACT: The City will receive $20,000 in the ?rst year of the Agreement $5 0,000 in the second year; $60,000 in the third, fourth and ?fth years; and $50,000 every year thereafter. Herring/Grif?th/GJ Staff: Gary Jones - (619) 236-6264 FILE LOCATION: MEET COUNCIL ACTION: (Time duration: 4:08 pm. 4:46 pm.) MOTION BY ZUCCHET TO ADOPT. Second by Maienschein. Passed by the following vote: Peters-yea, Zucchet?yea, Atkins-yea, Young-yea, Maienschein?yea, Frye?not present, Madaffer-nay, Inzunza?yea, Mayor Murphy?yea. ITEM- S407: Retention of Outside Counsel in the Matter Related to De Anza Harbor and Resort. (Mission Bay Community Area. District 6.) CITY RECOMMENDATION: Adopt the following resolution: TRAILED TO TUESDAY, MARCH 15, 2005 ATTACHMENT 3 CITY OF SAN DIEGO Engineering and Projects QUESTIONNAIRE - PEASE I (Revised March, 2003) PHASE 1' Complete Part I before proceeding'to Part II . PART ESSENTIAL REQUIREMENTS FOR Firm Name Firm Address Phone and Fax Numbers 1. Date Does the Contractor possess a valid and current California Contractor?s license for the project, or projects, for Which it intends to submit a bid? Yes NO Does the Contractor haVe a liability insurance policy with a policy limit of at least $1,000,000 per occurrence and $1,000,000 aggregate (will vary dependent upon. project size)? Yes NO Does the Contractor have a current workers? compensation insurance policy as required by the Labor Code or is legally self-insured pursuant to Labor Code section 3700 et. seq? DYes No 13 Not Applicable - Contractor has no employees Have you attached a copy of your most recent Compiled, Reviewed or Audited Financial Statements, including accompanying notes and supplemental information? Yes No NOTE: The Accountant?s/Auditor?s Report must be dated Within the last twelVe (12) months. Also, see the ?General Information? page of this packet for the type of Financial Statements required. . Have you attached a letter of bond-ability con?rming name, address and telephone number of a contact for a California admitted surety company? The letter must also aggregate bonding capacity totals. ineiude both sir?late an? Yes No NOTE: This letter should be provided by the surety company or an authorized agent. A letter from an authorized agent must include a power of attorney and notary acknOWledgment. Contractor will be immediately disquali?ed if the answer to any of questions 1 through 5 is This document is not a public record. -1- NOT For purposes of this'questionnaire, ?Person? is defined as individuals who constitute the management of a corporate or other legal entity. Additionally, it includes any individual or other legal entity that: directly or indirectly g. through an a?iliate), submits o?ersforor is awarded, or reasonably may be expected to submit o?ers for or be awarded, a contract, or a subcontract under a contract; or, conducts b?uS'iness, or reasonably may be expected to conduct business, with the City as an agent or representative of another person. 6. In the last ?ve years, has any Person in your ?rm had their Contractors license revoked? Yes No 7. In the last ?ve (5) years, has your firm, or any Person, been convicted of a crime involving the awarding of a contract of a government (local, state or federal) construction project, or the bidding or performance of a government contractthe last ?ve (5) years, has your ?rm, or any Person, been ?defaulted? or ?terminated? by an owner (other than for convenience of the project owner) or has your surety completed a contract for your ?rm? 1 Yes No 9. At the time of submitting this pre-quali?cation form, is your ?rm, or any Person, ineligible to bid on or be awarded any public works contract, or perform as a subcontractor on a public works contract? Yes .. No If the answer is ?Yes?, state the beginning and ending dates of the period of debarment . or non?responsibility: - 10. Has your ?rm, or any Person, ever been found guilty in a criminal action, for making any 1 false claim or material misrepresentation to any public agency or entity? Yes N0 11. In the last ten (10) years, has your ?rm, or any Person, ever been convicted of a crime involving any federal, state or local law related to construction, including acts of dishonesty? Yes No Contractor will be immediately disquali?ed if the answer to either questions ?Yes?. If the answer to question 9 is ?Yes?, and if debarment would be the sole reason for denial of pre-quali?cation, any pre?quali?cation issued will exclude the debarment period. This document is not a public record. -2- PHASE I ORGANIZATION, HISTORY, ORGANIZATIONAL PERFORMANCE, PART II: I COMPLIANCE WITH CIVIL AND CRINIINAL LAWS A. Current Organization and Structure of the Business. or Firms that Are Corporations: la. 7 Date incorporated: lb. Under the laws of what state: lc. Is the Status of your corporation still valid? 1d. Provide all the'following information for each Person who is either an of?cer of the Corporation (president, vice president, seeretary, treasurer) or the owner of at least ten percent of the corporation?s stock: Name Position Years with Co. Ownership Taxpayer Identi?cation le. Identify every construction ?rm'that any. Person listed above has been associated with (as owner, general partner, limited partner 0r of?cer) in the last ?ve (5) years. NOTE: For this question, ?owner? and ?partner? refer to ownership of ten percent or more of the business, or ten percent or more of its stock if the business is a corporation. - Name Construction Firm Date of Participation With Firm This document is not a public record. . For Firms That Are Partnership's; Date of formation: 1a. lb. Under the laws of what state: lc. Is the stays _of yonrpar'tnership still valid? I ld. Provide all the following information for each PerSOn who oWns ten or more of the ?rm: Name Position Years with Co. Ownership Taxpayer Identi?cation 1e. Identify every construction ?rm that any Person listed above has been associated with (as owner, general partner, limited partner or of?cer) in the last ?ve (5) years. NOTE: For this question, ?fewer? and ?partner? refer to ownership often percent or more of the business, or ten percent or more of its stOCk, if the business is a corporation. Name Construction Firm Date of Participation with Firm This document is not a public record. For Firms With a Joint Venture License: la. Date of commencement of joint venture lb. Is the status of your joint venture still valid? 10. Provide all of the following information for each ?rm that is a member of the joint venture that expects to bid on one or more projects: . Name of Firm Ownership of Joint Venture ld. Provide all the following information for each Person who owns ten percent or more of the joint venture: Name Position Years with Co. I 0/0 Ownership Taxpayer Identi?cation NOTE: New joint ventures are not excluded from forming on a project by project basis a?er the pre-qualification process. HoweVera in such cases, all parties to the joint venture must have individually pre-quali?ed in order to bid with the City of San Diego as a joint venture. This document is not a public record. -5- For Firms That Are Sole Proprietorshins: 1a. Date of commencement of business 1b. - Social Security number of company owner 1c. Identify every construction ?rm that the business owner has been associated with (as owner, general partner, limited partner or of?cer) in the last ?ve (5) years. Name Construction Firm Date of Participation with Firm This document is not a public record. -5- History of the Business and Organizational Performance In the last ?ve (5) years, have there been any changes in ownership of the ?rm? Yes I E1 No (If Yes, explain on a separate signed page) NOT A corporation Whose shares are pu?blically traded is not required to answer this question. Is the ?rm a subsidiary, parent, holding Company or Person of another construction ?rm? Yes El NO (If Yes, explain on a separate signed page) NOTE: Include information about other ?rms if one ?rm owns ?fty percent or . more of another, or if a Person of your ?rm holds a similar position in another firm. Are any Persons in your ?rm associated with any other construction ?rms? Yes Cl No (If Yes, explain on a separate signed page) NOTE: Include information about other ?rms if any Person in your ?rm holds a similar position in another ?rm. State your ?rm?s gross revenues for the last three (3) years: Year Ended Gross Revenue How many years has your ?rm been doing business in California as a contractor under your present business name and license number? years Is your ?rm currently in bankruptcy proceedings? Yes NO (If Yes, attach a copy of the bankruptcy petition, showing the case number, and the date on which the petition was ?led.) This document is not a public record. Yes If your ?rm is not Currently in bankruptcy proceedings, has your ?rm ?led for bankruptcy in the last ?ve (5) years? . No (If Yes, please attach a copy of the bankruptcy petition showing the case number and the date on which the petition was ?led, a copy of the Bankruptcy Court?sdischarge order, or if no discharge order was issued, any other document that ended the case.) Licenses 9. 10. ll. 12. 13. List all California contraCtor license numbers, classi?cations and expiration dates held by your ?rm and its Persons: If any of your ?rm"s license(s) are held in the name of a corporation or partnership, list the names of the qualifying individual(s) listed on the CSLB records Who meet(s) the experience and examination requirements for each license. In the last ?ve (5) years, has your ?rm changed names or license numbers? Yes No . .. (If Yes, explain on a separate signed page, including the reason for the change) In the last ?ve (5)years, has any Person your operated a construction ?rm under any other name(If Yes, list and explain on a separate signed page.) In the last ?ve (5) years, has any California State Licensing Board (CSLB) license held by your ?rm for its Responsible Managing Employee (RME) or Responsible Managing Of?cer (RMO) been suspended orrevoked? I Yes No (If Yes, explain on a separatesigned page) . This document is not a public record. -8- Disputes. 14.. 15. 16. In the last ?ve (5) years, has your ?rm been assessed and paid liquidated damages after completion of a project under construction contract with either a public or private owner because of a delay not contemplated during the bid process? Yes No . (If Yes, explain on a separate signed page, identifying all such projects by owner, owner?s address, the date of completion of the project, amount of liquidated damages assessed and all other information necessary to fully explain the assessment of liquidated damages.) In the last ?ve (5) years, has your ?rm, or any ?rm associated with your ?rm?s Persons, been debarred, disquali?ed, removed or otherwise prevented frombidding on, or completing, any government agency or public works project for any reason? Yes El No . - (If Yes, explain on a separate signed page. State whether the ?rm involved was the ?rm applying for pie-qualification here or another ?rm. identify by, name of the company, the Person in your ?rm who was associated with that company, the year of the event, the owner of the project and the basis for the action.) NOTE: ?Associated with? refers to another construction ?rm in which a Person in your firm held a similar position, as listed in response to Question 1 in Part II of this farm. In the last ?ve (5) years, has your ?rm been denied an award Of a public works contract based on a ?nding by a public agency that your ?rm was not a responsible bidder as de?ned in San Diego Municipal Code Section 22.3003 7 Yes No I I . (If Yes, explain on a separate signed page. Identify the year of the event, the owner, the project and the basis for the ?nding by the public agency.) NOTE: Questions 17 and 18 refer only to disputes between your ?rm and the owner of a project. Do not include information about disputes between your ?rm and the supplier, another contractor, or, subcontractor. Do not include information about ?pass-through? disputes in which the actual dispute is between apsub-contractor and a project owner. 17. In the last ?ve years, have a up at i concerning your ?rm?s work on a construction project? been ii Yes No a (If Yes, on separate signed pages, identify the complaint(s) by providing the project name, date of the complaint, name of the plaintiff, a brief description of the nature of the complaint, the court in which the case was ?led and a brief description of the status of the complaint. pending or, if resolved, of the resolution.) This document is not apublic rec'ord. -9- 18the last five (5) years, has your ?rm ?led a complaint in court against a project owner concerning work on a project or payment for a contraCt? Yes I No (If Yes, on separate signed pages, identify the complaint(s) by providing the project name, date of the complaint, name of the entity (or entities) against whom the complaint was filed, a brief description of the nature of the complaint, the court in which the case was ?led and a brief description of the status of the claim pending or, if resolved, of the resolution.) In the last five (5) years, has any surety company made any payments, on your firm?s behalf, to satisfy any claims made against a performance or payment bond issued in connection with a construction project, either public or private? Yes No (If yes, explain on separate signed pages) Has your firm, or'any Person, ever been found liable in a civil action for making any false claim or material misrepresentation to any public agency or entity? Yes No (If Yes, explain on separate signed pages) Compliance with Safety, Workers Compensation, Prevailing Wage, Apprentice Laws and EEO. In the last five (5) years, has CAL OSHA cited and assessed penalties against your firm for any ?serious?, ?willful? or ?repeated? violations of its safety or health regulations? Yes No '(If Yes, explain on separate signed pages) NOTE: If you have ?led an appeal of a'citation, and the Occupational Health Appeals Board has not yet ruled on the appeal, you must answer ?Yes? to this question. In the last ?ve (5) years, hasthe Federal Occupational Safety and Health Administration cited and assessed penalties against your firm? Yes No . I (If Yes, attach a separate signed page describing; each citation) . In the last fiVe (5) years, has the EPA or any Air Quality Management District or any Regional Water Quality Control Board cited and assessed penalties against your firm? Yes No (If Yes, explain on separate signed pages) This'document is not a public record. -10; 24. 25. 26. 27. 28. How often do you'hold documented safety meetings for construction employees and ?eld supervisors during the course of a project? List your ?rm?s Experience Modi?cation Rate (EMR) - California Workers? compensation insurance - for each of the past three (3) premium years: Current year: Last year: Two years ago: NOTE: If yOur EMR for any of these years rated 1.00 or higher, you may attach a letter of explanation. - In the last ?ve (5) years, was there any occasion(s) which your ?rm was required, by a compliance agency, to pay either back wages or penalties for your own ?rm?s failure to comply with the state?s prevailing wage laws? Yes No (If Yes, eXplain on separate signed pages) NOTE: This question refers only to your own firm?s Violation of prevailing wage laws, not to Violations of the prevailing wage laws by a subcontractor. In'the last ?ve (5) years, was there any occasion(s) which your ?rm was required, by a compliance agency, to pay either back wages or penalties for failure to comply with the Federal Davis-Bacon prevailing wage requirements? Yes No (If Yes, explain on separate signed pages) If your ?rm operates its own State~approved apprenticeship program: Identify the craft(s) which your ?rm provided apprenticeship training in the past year. . I i State the year in which each apprenticeship program was approved, and attach. evidence of the most recent California Apprenticeship Council approval(s) of your apprenticeship pro gram(s). (0) State the number of individuals who were employed by your ?rm as apprentices at any time during the past three (3) years in each apprenticeship, and the number of persons who, during the past three (3) years, completed apprenticeships in each craft(s) while employed by your ?rm. This document is not a public record. -11- 29. 30. Provide the name, address and telephone number of the apprenticeship program sponsor(s) approved by the California Division of Apprenticeship Standards that will provide apprentices to your company for use on any public works project for which you are awarded a prevailing wage contract by the City of San Diego. In the last ?ve (5) years, was your ?rm found in violation of any provision of California apprenticeship laws or regulations, or the laws pertaining to the use of apprentices on public works? Yes No . (If Yes, provide the date(s)' of such ?ndings, and attach copies of the ?nal Non-Discrimination 31. List all instances Within the past ten (10) years where a ?nding of discrimination was made against your ?rm or any of its Persons in a legal or administrative proceeding alleging that the ?rm discriminated against its employees, subcontractors, vendors, or suppliers, and a description of the status or resolution of that complaint, including any remedial action taken. This document is not a public record. -12- PART RECENT CONSTRUCTION PROJECTS COMPLETED 32', Using the form provided, please provide the following information for: l. The two (2) largest public work projects completed within the last five years; and, 2. The ?ve (5) largest projects, not including the two listed above, completed Within the last five years. . Names, references and phone numbers must be current and veri?able. References will be contacted and interviewed. If the City is not able to contact a reference at the given phone number, that reference will not be used or considered in theevaluation. Project Name Location Owner . Owner Contact (name and phone number) Architect or Engineer Architect or Engineer Contact (name and phone number) Construction Manager (name and phone number) . Description of Proj ect,'Scope of Work Performed Performed Work as Prime Contractor or Sub Contractor Total Value of ConstructiOn (including change orders) Original Scheduled Completion Date . (Actual Completion Date Time Extension Granted (number of days) I, the undersigned, certify and declare that I have read the preequali?cation questionnaire and all its contents. In further declare, under penalty of perjury, that I have answered, or caused to be answered, all questions, based on my knowiedge and belief, and that theyvvare true and correct. Name and Title - Date If this form is completed by someone other than the above Signer, please print name and title here: Name Title This document is not a public record. ~13- Firm Name RECENT CONSTRUCTION PROJECTS COMPLETED Names, references and phone numbers must be current and verifiable References will be contacted and interviewed I (If the City is not able to contact a reference at the given phone number, that reference will not be used or considered in the eValuation.) Copy this sheet as necessary and provide the following information regarding: l. The two (2) largest public work projects completed Within the last ?ve years; and, 2. The ?ve (5) largest projects, not including the two previously listed, completed Within the last ?ve years. Project Name: Location: Owner: Contact: Phone: Architect 7 or Engineer: Contact: Phone Construction Manager: 1 Phone: Description of Project, Scope of Work Performed: Performed Work as: Prime Contractor Sub CO?ntractor Total Value of Construction (including change orders):* Original Scheduled Actual Date Completion Date: Of Completion: Extension Time Granted (number of Days): *Verifiable dollar amounts Will be used as part of the bidding capacity calculation. Note: The Citv ofScm Diego reserves the right to check all other sources available. ATTACHMENT 4 gt; 4.4 security instrument to assure the payment of a promissory note or notes of LESSEE, upon the express condition that: a. The principal amount of the applicable promissory note or notes shall not exceed eighty of the value of interest in the fair market value of the Premises, as determined by an appraisal prepared at expense by an independent M.A.I. appraiser (or equivalent), reasonably approved by and, b. LESSEE pays additional consideration to CITY as applicable, and as hereinafter set forth in Article 4.7, Additional Consideration to CITY. In the event any such approved deed of trust or mortgage or other security-type instrument should at any time be in default and be foreclosed or transferred in lieu of foreclosure, CITY will accept the approved mortgagee or bene?ciary thereof as its new tenant under this lease with all the rights, privileges, and duties granted and imposed in this lease. Upon prior written approval by CITY, an approved mortgagee or bene?ciary may assign this lease. Any deed of trust, mortgage, or other security instrument shall be subject to all of the terms, covenants, and conditions of this lease and shall not be deemed to amend or alter any of the terms, covenants, or conditions hereof. Pursuant to City Charter'Section 225, the City Manager must review and approve every person or entity which will have a ?nancial interest in this lease. The City Manager's approval will not be unreasonably withheld, provided that the assignee is of a good character and reputation in the community. If the Lease is subsequently assigned to an entity other than Bartell Hotels?or is not an intra~farnily assignment to a Bartell Hotels affiliate company, then any encumbrances on the premises are subject to the sole and absolute discretion of the City Manager to approve, disapprove or condition any such proposed encumbrance, including but not limited to amending the lease to provide the current rents and provisions. Defaults and Remedies, a. Default. In the event that: l. LESSEE shall default in the performance of any covenant or condition - required by this lease to be performed by LESSEE and shall fail to cure said default within thirty (30) days following written notice thereof from or if any such default is not curable within thirty (3 0) days, and LESSEE shall fail to commence to cure the default(s) within said thirty-day period and diligently pursue such cure to completion; or SECTION 4: ASSIGNMENT 4.1 Time is of Essence; Provisions Binding on Successors. Time is of the essence of all of the terms, covenants, and conditions of this lease, and, except as otherwise provided herein, all of the terms, covenants, and conditions of this lease shall apply to, bene?t, and bind the successors and assigns of the respective parties, jointly and individually. 4.2 Assignm' ent and Subletting. LESSEE shall not assign this lease or any interest therein and shall not sublet the premises or any part thereof, or any right or . privilege appurtenant thereto, or suffer any other person, except employees, agents, and guests of LESSEE, to use or occupy the premises or any part thereof, without the prior written consent of the City Manager in each instance. Such may? consent shall not be unreasonably withheld. All assignees and sublessees will be subject review by the City, in accordance with City Charter Section 225, and shall $.55 be of good moral character with no prurient interests. A consent to assignment, subletting, occupation, or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation, or use by another person. Any such assignment or subletting without such consent shall be void and shall, at the option of CITY, terminate this lease. This lease shall not, nor shall any interest therein, be assignable as to the interest of LES SEE by Operation of law, without the written consent of the City Manager. Subject to Section 4.7 herein, "Assignment" for the purposes of this clause shall include any transfer of any ownership interest in this lease by LESSEE or by any partners, principals, or stockholders, as the case may be, from the original LESSEE, its general partners, or principals. In addition, "Assignment" shall not include intro?corporate transfers or assignments where there is no ?nancial consideration. Approval of any assignment or sublease shall be conditioned upon the assignee or sublessee agreeing in writing that it will assume the rights and obligations thereby assigned or subleased and that it will keep and perform all covenants, conditions, and provisions of this agreement which are applicable to the rights acquired. The City Manager shall require, as a condition to approval of any sublease of the majority portion of the leasehold or any assignment, that the LESSEE pay additional consideration to CITY, as hereinafter set forth in Section 7.21, Additional Consideration, commencing at the effective date of such proposed sublease of the majority portion of the leasehold or assignment and shall ?irther require that this lease or the requested sublease otherwise be revised to comply with standard CITY lease requirements that are then current. 4.3 Encumbrance. Subject to prior consent by CITY, which shall not be unreasonably withheld, LES SEE may encumber this lease, its leasehold estate, and its improvements thereon by deed of trust, mortgage, chattel mortgage, or other -15- ATTACHMENT 5 .0430 I OFFICE OF 10mg M. KAHENY THE CITY ATTORNEY CITY ADMDIISTRATION BUILDING CITY OF SAN DIEGO 202 STREET TEDL mm ATTORNEY . SAN DIEGO, CALIFORNIA 92101-3863 (mom mowers) . Wv- Wltt: TELEPHONE (519) 236-6220 was Cm? ATTORNEY FAX (619) 236-7215 H. . 5341011 cm DEPUTY CITY TED BROMFIELD Emcxc.omnmn Cm DEPUTY cm ATTORNEYS MEMORANDUM OF LAW I . - DATE: July 16, 1992 To: Jim Spotts, Director, Property Department City Attorney SUBJECT: Section 225 of the City Charter - Mandatory Disclosure of Business Interests By memorandum dated June 17, 1992, copy attached as Attachment 1, you asked several questions regarding interpretation and application of Section 225 of the Charter to Property Department transactions. A copy of Charter Section 225' as it appeared on the ballot for the recent election is-attached to your memorandum. My understanding is that the ballot language for the new Charter section arose out of certain concerns on the part of the Mayor and members of the City Council that they should be given certain information with regard to persons proposing to transact. . businesswith-athecity.- - The new Charter section basically requires that the City Council be given "the name and identity of . . . all persons . . . involved in the . . . proposed transaction and the precise nature of all {such} interests . . The Charter section further specifies that failure to fully disclose the required information "shall be grounds for denial of any . . . proposed transaction . . . and may result in forfeiture of any and all rights and privileges that have been granted heretofore." The section proceeds to define "persons" as "any natural person, joint Venture, joint-stock company, partnership, association, firm, club, company, corporation, business trust, Organization or entity." 048;: . if: mug-1r- Jim Spotts July 16, 1992 The above language taken literally would require the disclosure of the "name and identity" of all the stockholders of General Motors together with "the precise nature of all interests" of such stockholders in any proposed contracts General Motors may desire to enter into with the City. Obviously, it is neither practical nor desirable to interpret the Charter section to require such information. It is clear from the argument on the ballot in favor of the 3p% . proposition (there was no argument againSt the propOSition) that is to "give the Mayor and City Council the right to know the identities and backgrounds of persons wanting to do the City." . . Rather than address the particular questions raised by your memorandum, it seems more efficient in light of the above discussion to propose language for a potential Council Policy in which will provide guidelines to the City Manager as well as the non~managerial departments as to what information must actually be provided in connection with any transaction which must be approved by the Mayor and Council. Therefore, I have attached a first draft of a potential Council Policy. Please review the policy and make any suggested modifications and we can begin the process of clearing the policy through the various City departments and then take it to the City Council for review, any revisions the Council may desire, and approval. to the California Secretary of State. The City Council certified the results on July 13th. While the?exact date of filing by the. Secretary of State is unknown, you should assume that the filing will occur during the week of July 20th. JOHN w. WITT, City Attorney BY Harold O. Valderh Deputy City Attorney Attachments 2 radian} while; .251? Sm. up, . saw. Jimwaltz; . Oil 32 Va. CITY OF SAN DIEGO 0 A FILE: June 17, 1992 To; Harold O. y'lderhaug, Deputy City Attorney, via Maureen A. Stapletpnj??gsistant City Manager FRom; James L. Spotts, Property Director 1, SUBJECT: Section 225 of the City Charter - Mandatory Disclosure of Business Interests --. Proposition IE regarding' mandatory' disclosure of business interests was approved by the voters on June 2, 1992.- A copy of the Proposition is attached. we need clarification and direction.asix>its interpretation and application to Property Department matters. In addition, we have the following specific questions: 1. The section requires the name, identity, and nature of interest of certain people or entities with which we do business. - a. What type or level of identification is required?? b. What types of interests? must? we identify? For example, must we identify all limited partners in a limited partnership? .All of the stockholders of a small company if revealed. to have only a minor interest of one percent per person? All of the stockholders of Security Pacific where we sublease ?space?_ All of the stockholders cf where we have a franchise agreement? 2. Does this charter section apply to all.Propertijepartment contracts, for example, right of entry permits, options to lease, leases, exchange agreements, easement contracts, sales contracts, . purchase agreements, short?term agreements and.permits that are executed by the department and house rental agreements? 3. The section specifies that persons directly or indirectly involved must be identified. What does_ indirectly. involved mean? - 4. The section specifies that failure to fully discloSe the.v information required shall be grounds for denial of any application or proposed transaction or transfer and may ATTACHMENT 1 g: 8 sj result in forfeiture of any and all rights and privileges that have been granted heretofore. a. Are we obligated to deny a contract if required information is not disclosed? If we find out after the agreement has been fully executed and the subject of the agreement implemented? 7 b. Is the provision regarding forfeiture enforceable?? c. Who is empowered to deny an application for a proposed transaction? The Council, the City Manager, Property staff and/or City Attorney? Is it advisable that any portion of the charter section be. lir? included in our_agreements, contracts, or If so, which portion(s) and which contract(s)? if When does this Charter section become effective? 1? i operty Director, Attachment - - cc: Robert J. Collins, Deputy Director i' Richard D. Greenleaf, Deputy Director' it Mary Louise Groarke, Supervising Property Agent anvI? woman-m 4 ?numb-cw. a 1mm.? I . . . CITY OF SAN DIEGO Proposition?E (This proposition will appear on the ballot in the following form.) A: Adds Section 225 to the City Charter to require that all pers ing to do business with the City fully disclose the name and identity of all persons involved in the proposed transaction and the nature of their inter- . est therein, if that proposed transaction could result in a contract, lease, or franchise. Provides for potential forfeiture oi rights for failure to fully dis- close. De?nes "person" broadly for purposes of this Section. AMENDS THE CHARTER OF THE OF SAN BY ADDING SECTION 225. - ons propos- Pnoeoseo CHARTER The portions ofthe charter to be deleted are printed in strike-th type and the portions to be added are underlined. . SECTION 225] MANDATORY pgsmess personal propert right, title or interest arising out Of a contract, or lease, may be granted or bargained Msuant to the City?s general municipal powers or 0th erwise, nor apy franchise, right or privilege may be granted pursuant to Section 103 or 103.1 of this CharterI unless the person applying or bargaining therefor makes a tilt and com lete disclosure of the name and identity Of any and all persons directly or indirectly involved in the application or proposed transaction andthe p_recise nature of all interests Of all persons thereip: No right, title or interest in the City?s real or y, nor any franchise, right 103 or 103.1 ,?Or any transfer Of any ?ght, title or interest in the City?s real or personal?operty, oranmht, titlepr interest arising out Of a contract, or leaseI which may be granted or bargained - oursuant to the CiW?sgeneral municipal powers or otherwise, shall also reglie 3 full and complete disclosure as set forth above; A Failure to fully disclose all of the information enumerated?above shali.be }r_ounds for denial Of any application or proposed transaction or transfer and nay result in forfeiture of any and all rights and privileges that have been ranted For purposes of this Charter sectiorL the term jgerson?-means any natural ierson, joint venture, joint stock compa_ny, partnership, association, firm, club, ompany. corporation, business trust, organization or entity -. . A i . i-iBSU-iti- nu .5251?- anno? an. Inc-4n- Fir-"f 1517's;- ear-.4 p: backgrounds of persons wanting to do business with the City, ?Vote? Yes on El -3 ARGUMENT QF EROPOSHWON Would you enter into a business agreement with "someone you didn't know? Or even wore perhaps not know his or' her name? I -- ., Of course not. I I t. Loophoi rtoo often the San Diego City CounCil is forced into just that kind oivpredicamen Etuttheasystem allow anonymous ?limited partners" to potentially receive millions in taxpayer dolie without the Council having the bene?t of knowing who the partners are. or exactly what they do with the money._ I I . . a San Diegans have a right to know how, and with whom, their tax dollars are being spent. This charter amendment gives the Mayor and City Councilthe right to know the identities a - i . Please give the Council the tools it needs to protect taxpayer's money. 'i VALERIE Councilmember, District 6 MAUREEN Mayor . ARGUMENT . . No argument against the proposition v?vas filed in?the Office of the City Clerk. I ?5 '33! NW wmwv',? "2551? ~r I :u ~53: 5L5 -. 1,51COUNCIL POLICY ooO~3o COMPLIANCE WITH CHARTER SECTION 225 - MANDATORY DISCLOSURE OF BUSINESS INTERESTS PURPOSE It is the intention of the City Council to establish a uniform7 procedure for the City's managerial and non-managerial departments, in compliance with the requirements of.Charter Section 225, which section requires disclosure of business interests by persons doing business with the City, EQLIQX A. Any pers0n proposing to enter into a contract of any nature with the City, including leases, franchiSes, salesn agreements, and all other contracts involving real or personal property and personal services requiring City Council approval, shall make a full and complete disclOSure of. the. name and identity an ?page-s- ?aha-?nae a financial interest in any such contract, together with the precise nature of such interests of all such persons. For the purposes of this policy and as provided for in Charter Section 225 the word "perSon" means any natural person, joint venture, joint stock company, partnership, association, firm, club, company, corporation, business trust, organization or entity. swan-Iv- 4 3 For the purposes of this policy and for said Charter section the term~"financial interest" shall mean any person who owns an interest representing five percent or more of the total ownership of the person or entity proposing to do business with the City, if such five percent or greater percentage 'interest has a value of $10,000 or more.' Any person having such a financial interest shall be identified by name and by, ?mi city and state or country of residence, together with a disclosure of their percentage of ownership interest in the . person or entity inVolved. In the case of individuals who do not have an ownership interest of five percent or greater but who nevertheless may reasonably anticipate benefiting to the extent of $10,000 or more from the contract proposed with the City, such individuals shall likewise provide their full name and resident city and state or country, together with an explanation of their financial interest in the contract. The City Manager (or the non~managerial department head) shall, with each applicable item on the Council docket, submit a separate document identifying the item on the, docket and containing the above specified information. In order to avoid a cloud upon the validity of any contraCt entered into by the City the City Council, by adopting this Council Policy, expressly finds that, upon receipt of 13 informatiOn substantively in accord with the above requirements, or upon City Council approval of any contract even though SOme of the information required hereby has not been presented to the City Council, that the requirements of . Section 225 regarding disclosure have been met and that the contract is not void or voidable unless the City proves in a .. court of law that there was fraud or misrepresentation or' ?the intentional Withhelding of information required by this policy in connection with the disclosure of financial l, interests made to the Council. Hov:ps:07/17/92