HomeMy WebLinkAbout07.23.2020 Finance Committee Agenda Packet
CITY OF SARATOGA
COUNCIL FINANCE COMMITTEE
JULY 23, 2020
Teleconference/Public Participation Information to Mitigate the Spread of COVID ‐19
This meeting will be entirely by teleconference. All Council members and staff will only participate
via the Zoom platform using the process described below. The meeting is being conducted in
compliance with the Governor’s Executive Order N‐29‐20 suspending certain teleconference rules
required by the Ralph M. Brown Act. The purpose of this order was to provide the safest
environment for the public, elected officials, and staff while allowing for continued operation of
the government and public participation during the COVID ‐19 pandemic.
Members of the public can view and participate in the me eting by:
1. Using the Zoom website https://us02web.zoom.us/j/85476454520 or App Webinar ID:
854 7645 4520 and raising their hand to speak on an agenda item when directed by the
Mayor.
2. Calling 1.669.900.6833 or 1.408.638.0968 and pressing *9 to raise their hand to speak
on an agenda item when directed by the Mayor.
The public will not be able to participate in the meeting in person.
As always, members of the public can send written comments prior to the meeting by
commenting online at www.saratoga.ca.us/fc prior to the start of the meeting. These emails will
be provided to the members of the Council and will become part of the official record of the
meeting.
During the meeting the Mayor will explain the process for members of the public to be recognized
to offer public comment.
In accordance with the Americans with Disabilities Act and the Governor’s Executive Order, if
you need assistance to participate in this meeting due to a disability, please contact the City
Clerk at debbieb@saratoga.ca.us or calling 408.868.1216 as soon as possible before the
meeting. The City will use its best efforts to provide reasonable accommodations to provide as
much accessibility as possible while also maintaining public safety.
TIME 2:00 p.m.
LOCATION Linda Callon Conference Room
Saratoga City Hall
13777 Fruitvale Avenue
Saratoga, CA 95070
1. CALL TO ORDER
2. ROLL CALL
Mayor Miller
Council Members: Miller, Bernald, Zhao, Kumar
3. REPORT ON POSTING OF THE AGENDA: Pursuant to Government Code Section 54954.2,
the agenda for this meeting was properly posted on: July 20, 2020.
4. ORAL & WRITTEN COMMUNICATION
Any member of the public may address the Committee about any matter not on the agenda
for this meeting for up to three minutes. Committee members may not comment on the
matter but may choose to place the topic on a future agenda.
5. APPROVAL OF FINANCE COMMITTEE MEETING MINUTES FOR April 30, 2020
4.30.2020 Finance Committee Minutes
6. OLD BUSINESS
A. None
7. NEW BUSINESS
A. Hakone Gardens Lease Agreement (Lindsay)
Staff Memo
Attachment 1 - Proposed Updated Lease
Attachment 2 - Hakone CIP 2020-21
Attachment 3 - Current Lease Summary
B. Community Funded Improvement Projects Process Policy (Furey)
FC Memo - Community Funded Projects
Community Funded Improvement Process
C. ClearGov Software (Furey)
FC Memo - ClearGov Software
ClearGov - Flyer - Overview for Local Governments
ClearGov - Flyer - Digital Budget Book Coming Soon
D. Next Finance Committee meeting (proposed date: August 27, Thursday, 2:00 PM)
8. ADJOURNMENT
CERTIFICATE OF POSTING OF THE AGENDA, DISTRIBUTION OF THE AGENDA PACKET,
COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT
I, Mary Furey, Finance & Administrative Services Director for the City of Saratoga, declare that
the foregoing agenda for the meeting of the Council Standing Finance Committee of the City of
Saratoga was posted and available for public review on July 20, 2020 at the City of Saratoga,
13777 Fruitvale Ave., Saratoga, CA 95070, and on the City’s website at www.saratoga.ca.us.
Signed this 20th day of July 2020 at Saratoga, California.
Mary Furey, Finance & Administrative Services Director
In compliance with the Americans with Disabilities Act, if you are a disabled person and need a
disability-related modification or accommodation to participate in this meeting, please contact
the City Clerk’s Office at (408) 868-1216 or by email at debbieb@saratoga.ca.us. Requests must
be made as early as possible and at least one full business day before the start of the meeting.
In accordance with the Ralph M. Brown Act, staff reports and other materials provided to the members
of the legislative body will be made available following removal of State and local shelter in place
orders in the office of the City Clerk at 13777 Fruitvale Avenue, Saratoga, CA 95070.
[28 CFR 35.102-35.104 ADA title II]
CITY OF SARATOGA
ACTION MINUTES
COUNCIL FINANCE COMMITTEE
APRIL 30, 2020
TIME 1:00 p.m.
LOCATION Linda Callon Administration Conference Room
Saratoga City Hall
13777 Fruitvale Avenue
Saratoga, CA 95070
PRESENT Council Members: Miller, Bernald
ALSO PRESENT Staff Members: Lindsay, Furey, Jaw, Cherbone, Bothelio, Pedro,
Pettipiece, Nakamoto
1. APPROVAL OF PRIOR FINANCE COMMITTEE MEETING MINUTES
A. March 12, 2020 Meeting Minutes – approved
2. ORAL & WRITTEN COMMUNICATIONS
A. None
3. OLD BUSINESS
A. None
4. NEW BUSINESS
A. FY 2019/20 Revenue Status Review
• Action Item – Mayor Miller requested staff to review/revise Sales Tax shortfall
estimate as needed prior to Budget Study Session.
B. Community Services Support Funding Requests
• Action Item – Finance Committee recommends staff bring forward
recommendation to fund requests from Council Discretionary account:
1. $20,000 to West Valley Community Services for increased service need s
2. $20,000 to SASCC for Outlook newsletter mailing
3. $20,000 to Hakone Gardens for operational funding needs
• Action Item – Finance Committee recommends SASCC quarterly payment be
made in lump sum at beginning of FY 2020/21 to assist with cash flow needs.
• Action Item – Finance Committee recommends Chamber of Commerce FY
2020/21 Car Show grant funding of $10,000 be repurposed to operational grant
due to cancellation of Chambers’ car show event.
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C. Wildfire Task Force funding request
• Action Item – Staff to revisit funding request at following Task Force meeting and
bring back to Budget Study Session for Council discussion.
•
D. Families First Coronavirus Response Act (FFCRA or Act)
• Action Item – none
E. Fee Schedule
• Action Item – Staff to bring Fee Revisions to Council Meeting as presented.
F. FY 2020/21 Budget Preview
• Action Item – Staff to continue to revise budget projections and proposed
appropriations for Budget Study Session.
• Action Item – Staff to discuss core City values in the presentation, such as how
the City has prepared to respond to recessionary times, that our values have led
us to make these fiscal preparations, and the value the City puts on retaining
Public Safety and employee services.
• Action Item – Staff to explain Proposed Budget addresses options and choices,
including the decision to not use Fiscal Reserves in this initial recession year , and
to work to retain reserves for the purposes they are intended.
• Action Item – Staff to emphasize the uncertainty of next year’s proposed budget,
and the availability of solution with many options.
• Action Item – Staff to prepare City Manager’s Budget Letter with emphasis on
how the City has prepared for a financial recession, highlight that we’ve done
what we needed to do, and that although the future remains uncertain, we have
numerous options available to address the City’s financial needs.
G. CIP Funding Reallocation recommendations:
• Action Item – Staff to bring recommendation to the Budget Study Session to
reallocate Risk Management CIP funding to:
1. $25,000 for the Art Infrastructure CIP, with Art program operational
expenses included in the Operating Budget.
2. $25,000 to the Parks, Trails, Grounds, Median Infrastructure Capital
Maintenance Project.
3. Utilize $150,000 of the LLD Fund Savings for a Quito Neighborhood
Improvement project
H. Next Finance Committee meeting date
• Scheduled for May 21, 2020 at 3:00 pm
5. ADJOURNMENT
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Memorandum
DATE:July 20, 2020
TO:Finance Committee
FROM:James Lindsay, City Manager
SUBJECT:Hakone Foundation Lease Update
Last year the City Council directed staff to update the lease agreement between the
City and the Hakone Foundation. We held several meetings with Hakone
representatives to discuss the update and are now ready to present to the Council
Finance Committee a draft for review. Hakone staff has also been provided this draft.
I am seeking input from the Committee on two substantial changes proposed in the
lease:
The amount of funding the City will contribute through June 30, 2030
towards repairs and infrastructure improvements
Insurance requirements
Infrastructure Replacement Funding
The Hakone Gardens Master Plan identifies numerous infrastructure replacement
projects such as the well pump, railings, electrical systems, retaining walls, fencing,
and arbors. Replacement projects also include but are not limited to major building
repairs such as new roofs, foundation repairs, and repairing termite damage.
After adopting the Master Plan, the City Council has budgeted funds in the Capital
Budget for replacement projects at Hakone Gardens (FY 2020/21 Hakone Gardens
infrastructure Improvements project worksheet is attached). In addition to this
Capital Project, the Council has also funded larger individual projects such as the Koi
Pond Renovation.
The updated lease provides an opportunity for the City to provide annual funding in
the the Capital Budget to continue to address the backlog of deteriorating
infrastructure at Hakone Garden.Only City owned infrastructure would be replaced
with this funding.
Insurance Requirements
The current lease agreement does not obligate Hakone Foundation to provide liability
and workers compensation coverage for their operations. This is unique as the City’s
agreements with other non-profit service partners using City facilities require the
organization provide property insurance for their effects, and liability and workers
compensation coverage for their operations. Each non-profit’s management has full
and sole oversight of their facility programs, operational uses, and employees and is
not a part of the City’s risk management system. In addition, the City requires the
non-profits to indemnify, defend and hold harmless the City of Saratoga, its officers,
employees, and agents as specified in the agreement. The insurance policies help
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give the City reasonable assurance that there will be funds available to satisfy these
obligations if necessary.
The proposed updated lease would obligate the Foundation to fund their own
insurance. Exhibit E of this new agreement, “Insurance Requirements”, identifies the
insurance coverage to be the same as what the City requires for even small vendor
contracts:
$2 million of Commercial General Liability coverage, per occurrence
$1 million of Workers Compensation insurance
And the Additional Insured Endorsement to protect the City
This level of coverage is sufficient to protect the City from most claims, is easily
obtainable, and does not present an onerous expense to the Foundation. Further, it
is a best practice for the City to implant an earnest financial interest with our
community partners to instill practices to help prevent accidents and situations which
may result in insurance claims.
Attachments:
1. Proposed updated lease
2. FY 2020/21 Hakone Gardens Infrastructure Improvements Capital Project
worksheet
3. Jun 2019 City Council memo summarizing the current lease and subsequent
amendments.
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Page 1
LEASE AGREEMENT BETWEEN
THE CITY OF SARATOGA
AND
THE HAKONE FOUNDATION
This lease agreement is made and entered into between CITY OF SARATOGA, a
Municipal Corporation, hereinafter called “City”, and THE HAKONE FOUNDATION, a not for
profit corporation organized under the laws of the State of California (hereafter "Hakone"),
located at 21000 Big Basin Way, Saratoga, California, as of the Effective Date specified below.
WHEREAS, City owns real property located in the City of Saratoga, consisting of 17 acres
located at 21000 Big Basin Way and known as Santa Clara County Assessor’s Parcels 517-36-009,
517-036-010, and 517-36-011, on which are located, various improvements collectively known as
“Hakone Japanese Gardens” (hereafter “Property,” “Premises,” or “Gardens”) and described in
more detail in the Master Plan attached hereto as Exhibit C; and
WHEREAS, the Property is currently leased by Hakone from the Cityunder that certain
lease dated May 1, 2005 and City and Hakone wish to terminate that lease and replace it with this
lease agreement; and
WHEREAS, the City and Hakone desire and intend that the Gardens be used, preserved,
maintained, developed, administered, and operated by Hakone as an authentic Japanese Garden for
the benefit, enjoyment and inspiration of the residents of Saratoga and the general public;
NOW, THEREFORE, in consideration of, and subject to, the terms and conditions
hereinafter set forth, City and Hakone agree as follows:
1.Description of Property.
City hereby agrees to lease to Hakone, and Hakone agrees to lease from City the
Premises described in the recital above on the terms set forth herein.
2.Term of Lease; Consideration.
A.This agreement becomes effective (“Effective Date”) upon _____, 2020 and its
Term shall be fifty-five (55) years beginning on the Effective Date.
B.Beginning January 1, 2021 Hakone agrees to pay City One Dollar ($1.00)
annually. Payments shall be due the first day of each year beginning January 1, 2021.
C.As further consideration for use of the Premises Hakone shall provide City with
an annual report within 90 days following the close of Hakone’s fiscal year. The annual report
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shall include attendance, programs, rental, and financial data, material alterations and
improvements, and other information reasonably requested by the City.
3.Use of Premises.
A.Hakone shall have full and unimpaired access to the Premises at all times. The
City shall have the right to enter the Premises at reasonable times for the purpose of inspecting
the same. The Premises shall be used by Hakone only for the purposes and according to the
policies described in Exhibits A-1 and A-2.
B.Subject at all times to Hakone’s exclusive right to use the Premises, the City shall
have the right to use the Premises and any part thereof for municipal activities conducted from
time to time by the City or any of its officers, officials, boards or commissions or committees. In
the event the City wishes to use part of the Premises for its occasional use it shall request such
use by providing to the Hakone not less than 10 days’ written notice of the time, date and
intended use of the premises. Hakone agrees to make all reasonable effort to accommodate the
City’s intended use. If the requested time and date is not available Hakone and the City shall
confer and reschedule the intended use at a time and date convenient for both. There shall be no
fee or other charge imposed by Hakone on the City for such event. However, the City shall
provide any additional staffing and provide cleanup for the event such that no additional burden
is placed upon Hakone as a result of the event.
C.Hakone shall not lease or sublease the whole or any part of the Premises, nor sell
or assign this lease, either voluntarily or by operation of law, nor allow the Premises to be
occupied by anyone contrary to the terms hereof, nor permit their use for any purpose other than
as hereinabove specified, nor abandon or vacate the Premises, nor fail or refuse to actively cause
the Premises to be used as hereinabove specified for the purposes of this lease, without the prior
written consent of City. Hakone shall not use the Premises in any way that will constitute waste,
nuisance, or unreasonable annoyance to owners or occupants of adjacent properties.
4.Alterations, Additions, Maintenance.
A.The City consents to alterations, changes or additions to the Premises as described
in Exhibits B and C. No other alterations, changes or additions to the Premises are permitted
except in accordance with the procedures for such actions set forth in Exhibit B.
B.During the term of this lease or any extensions thereof, Hakone shall provide
routine janitorial services, unscheduled janitorial services, and building maintenance and repair
services for the Premises except for the matters identified as City’s Maintenance Obligation in
Exhibit B.
C.Hakone, at its sole cost and expense, shall maintain, and keep the Premises and
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every part thereof in good operating condition and in compliance with all applicable federal,
state, and local laws. In addition, Hakone shall be responsible for ensuring that all landscaping
and garden art of every kind is kept and maintained in accordance with the best practices for
gardens of their kind. Nothing in this lease agreement shall preclude Hakone from contracting
with the City to perform maintenance on Hakone’s behalf.
D. All maintenance, alteration, demolition, installation, or repair work on the Premises
and any pre-construction work on the Premises that meets the definition of public work under
Labor Code sections 1771 and 1720, shall be carried out in accordance with state prevailing
wage laws including registering the contract with the Department of Industrial Relations (DIR),
requiring the contractor to register with DIR, and including required notices in the contract.
5.Taxes and Utilities.
Hakone shall pay for all utilities and services, including, but not limited to water, sewer,
electric, communications, and solid waste removal, to the Premises. The City shall pay any and
all taxes and all special assessments for public improvements as may be levied against the
Premises or any part thereof.
6.Indemnification.
Hakone shall indemnify, defend and hold harmless the City of Saratoga, its officers,
employees, and agents from and against any and all claims, demands, causes of action, orders,
decrees, or judgments for personal injury or death, damage to or loss of property or any other
damage and/or liability (including all costs and attorney's fees incurred in defending any claim,
demand or cause of action) occasioned by, growing out of, or arising or resulting from any act or
omission on the part of Hakone or any assistant(s) of Hakone in connection with the Premises,
except for any liabilities or losses adjudicated to have proximately resulted from the sole
negligence or willful misconduct of City. This provision sets forth the exclusive allocation of
liability between the parties, and no other allocation, whether in law or equity shall apply. This
provision shall survive the termination of this agreement for the full period allowed by law. The
defense and indemnification obligations of this agreement are undertaken in addition to, and
shall not in any way be limited by, the insurance obligations contained in this agreement.
7.Responsibility for Damage and Insurance.
A.Hakone shall be responsible for all loss or damage to the Premises related to
Hakone’s use thereof, howsoever caused. City shall be responsible for all loss or damage to the
Premises related to City’s use thereof, howsoever caused.
B.City shall provide property insurance coverage for the Premises on the same terms
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that all other City property is insured. City shall not provide insurance of any kind for any
Hakone’s property, nor will City provide insurance for any of Hakone’s programs or activities.
Hakone is solely responsible for insuring Hakone’s property, programs and activities in the
Premises. City's maximum liability under this paragraph shall be limited to the replacement cost
of the building with like kind and quality, excepting for destruction caused by flood, earthquake,
seismic activity, earth movement, and other natural disasters. In the event of such destruction
either party may terminate this agreement.
C.Hakone agrees to procure and maintain insurance as required by the provisions set
forth in Exhibit E and to otherwise comply with the requirements therein. Certificates of such
insurance and additional insured endorsements shall be delivered to City before execution of this
lease agreement by City. Neither insurance nor the absence thereof shall abrogate or limit the
responsibility of the Hakone for damage to the building as called for herein.
8.Dispute Resolution.
A.The parties recognize the unique nature of the uses of the Premises and the
beneficial effects to both parties of providing the Gardens to the residents of Saratoga and other
members of the public. The Parties therefore agree to cooperate in order to resolve disputes and
to assist each other in responding to public inquiries arising from implementation of this
agreement.
B.The Parties acknowledge that issues may arise that require resolution between the
Parties. The Parties agree to meet and confer to resolve such issues. The Hakone hereby
appoints Executive Director of the Hakone Foundation, or his or her designee, and the City
appoints the City Manager or his or her designee, as its representative for dispute resolution. The
party desiring to meet and confer shall notify the other party in writing (“Dispute Notice”) of the
subject matter of the dispute (“Contract Issue”) and the parties shall meet and confer at a
mutually agreed upon date, time and location not less than three nor more than ten days
following the non-requesting party’s receipt of notice.
C.If within thirty days after issuance of a Dispute Notice, the parties still have not
been able to come to a mutually satisfactory resolution, then either party may refer the matter to
mediation for informal advice and/or resolution. The parties shall mutually agree upon a
mediator to assist them in resolving their differences. If the parties are unable to agree upon a
mediator, the parties shall jointly obtain a list of seven mediators from a reputable dispute
resolution organization and alternate striking mediators on that list until one remains. A coin
toss shall determine who may strike the first name. If a party fails to notify the other party of
which mediator it has stricken within two business days, the other party shall have the option of
selecting the mediator from those mediators remaining on the list. Any expenses incidental to
mediation shall be borne equally by the parties. If either party is dissatisfied with the outcome of
the mediation, that party may then submit the matter for resolution to binding arbitration in
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accordance with subsection 9.D, below.
D.Any matter that cannot be settled by mediation may, upon the demand by either
party, be submitted to binding arbitration by an Arbitrator. The Arbitrator shall be JAMS, or if
JAMS is not then in operation or is not then available, the American Arbitration Association, and
the arbitration shall be in accordance with the Arbitrator’s then applicable rules, as amended by
the following:
1.Any demand for arbitration shall be given in writing to the other party to
this lease agreement and to the Arbitrator. The demand shall specifically describe the matter in
dispute, including the amounts in controversy and/or other relief sought. A demand for
arbitration shall be made within a reasonable time after the right to demand arbitration under the
lease agreement has arisen, and in no event shall it be made after the date when institution of
legal or equitable proceedings based on such matter in dispute would be barred by the applicable
statute of limitations. A party who files a notice of demand for arbitration shall assert in the
demand all disputes arising under the lease agreement then known to that party.
2.The matter shall be heard by one arbitrator mutually selected by the
parties, or if the parties cannot agree on a single arbitrator within ten days following the demand
for arbitration, the matter shall be heard by an arbitrator selected in accordance with the
procedure for selection of a mediator in subparagraph 9.C, above, provided, however, that the
selected arbitrator will be a former trial judge of the federal or state courts in California.
3.The arbitrator shall take reasonable steps as may be necessary to hold a
private hearing within sixty (60) days after the initial demand for arbitration and to conclude the
hearing within two (2) days thereafter. Not later than seven (7) days prior to the hearing date set
by the arbitrator each party shall submit a brief with a single proposal for settlement. Evidence
concerning the financial position of the parties, any offer made or the details of any negotiations
prior to arbitration and the cost to the parties of their representatives, selected arbitrators and
counsel shall not be permissible. The place of the arbitration hearing shall be Saratoga,
California.
4.The arbitrator may award only such relief or remedy as would be available
pursuant to judicial proceedings in a court of competent jurisdiction, including injunctive and
affirmative relief; except that the arbitrator may not award punitive damages. The decision of the
arbitrator shall be in writing.
NOTICE:
BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE “ARBITRATION OF
DISPUTES” PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS
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TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN
THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY
AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE
“ARBITRATION OF DISPUTES” PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED
TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS
VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE “ARBITRATION OF
DISPUTES” PROVISION TO NEUTRAL BINDING ARBITRATION IN ACCORDANCE
WITH THIS LEASE AGREEMENT.
City’s Initials ________________Hakone’s Initials__________________
9.Termination.
This lease may be canceled and terminated by either party at any time upon one hundred
and twenty (120) days’ notice to the other party.
10.Notices.
Any notice required or permitted to be given under this lease agreement must be in
writing and may be given by personal delivery, certified mail, or Express Mail, Federal Express
or other such express delivery service. Notices shall be deemed communicated immediately if
personally delivered. Notices shall be deemed communicated within forty-eight (48) hours from
the time of mailing if mailed by certified mail, and within twenty-four (24) hours if mailed by
express delivery service, excluding Saturdays, Sundays and holidays. Any such notice shall be
deemed sufficiently given if addressed to City or Hakone at the address specified below. Either
party may specify a different address for notice purposes, or specify that a copy of any notice
given to such party be concurrently given to another person, by giving appropriate notice to the
other party.
To City:
City Manager
City of Saratoga
13777 Fruitvale Avenue
Saratoga, CA 95070
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To Hakone:
Executive Director
Hakone Foundation
21000 Big Basin Way
Saratoga, CA 95010
11.Non-Waiver of Breach.
In the event of a breach of any term, covenant or condition of this lease agreement by
Hakone, City may with knowledge of such breach permit Hakone to continue in possession of
the Premises, but any waiver by City of any term, covenant or condition herein contained, or of
any breach thereof, shall neither vitiate the same, nor any other term, covenant or condition
contained herein, nor operate as a waiver of any other or future breach.
12.Surrender of Possession on Termination.
Upon the cancellation or termination of this lease agreement, Hakone shall surrender the
Premises in good order, condition and repair, reasonable wear and tear excepted. If Hakone
elects to remove its fixtures, it shall have the obligation at its sole cost and expense to repair any
and all damages caused in the removal of said fixtures. Hakone shall remove all trash and debris
and leave the Premises clean. Hakone hereby waives for Hakone and for all those claiming
under Hakone, all right now or hereafter existing to redeem by order or judgment of any
court or by any legal or equitable process or writ, Hakone’s right to occupancy of the
Premises after any expiration or termination of this lease agreement. If Hakone holds over
after the expiration or termination hereof, with the express or implied consent of the City,
such occupancy shall be a tenancy from month to month upon all the provisions of this
Lease pertaining to the obligations of Hakone.
13.General Provisions.
A.No officer, member or employee of City and no member of the City Council shall
have any pecuniary interest, direct or indirect, in this agreement or any proceeds related to City’s
use of the Premises.
B.This agreement shall be administered and interpreted under the laws of the State
of California. Jurisdiction of litigation arising from this agreement shall be in that state and
venue shall be in Santa Clara County, California. If any part of this agreement is found to
conflict with applicable laws, such part shall be inoperative, null and void insofar as it conflicts
with said laws, but the remainder of this agreement shall be in full force and effect.
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C.Hakone understands and agrees that there is no representation, implication, or
understanding that City will renew this agreement or authorize use of the Premises under a new
agreement following expiration or termination of this agreement. Hakone waives all rights or
claims to notice or hearing respecting any failure by City to renew or extend this agreement or
any other authorization to use the Premises except as otherwise explicitly stated herein.
D.This agreement is entered only for the benefit of the parties executing this
agreement and not for the benefit of any other individual, entity or person.
E.The provisions of this Agreement which by their nature should survive expiration
or termination of this Agreement, including but not limited to provisions regarding indemnity
and insurance shall survive such expiration or termination.
F.Both City and Hakone have drafted and reviewed this agreement, and
accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party, and shall not be employed in the interpretation of this agreement or
any amendment of it.
G.This lease agreement shall supersede in all respects any prior leases between the
City of Saratoga and The Hakone Foundation for the Premises.
H.This agreement contains the entire agreement between the parties with regard to
the matters set forth, except as otherwise specifically set forth in this agreement. This agreement
may be amended or modified only by an agreement in writing executed in the same manner as
this agreement, except for updates to Exhibit C and Exhibit D, as provided in Exhibit B.
I.Each of the exhibits listed in the Exhibit List below are a part of this agreement
and hereby incorporated herein and the rights and obligations set forth in Exhibits A and B shall
apply to the parties as is set forth at length in this agreement.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as set forth below.
City of Saratoga Hakone Foundation
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By: _________________________
James Lindsay, City Manager
Date: ________________________
ATTEST:
By: _________________________
Debbie Bretschneider, City Clerk
Date: ________________________
APPROVED AS TO FORM:
By: _________________________
Richard Taylor, City Attorney
Date: ____________________
By: _________________________
Shozo Kagoshima, Executive Director
Date: ________________________
Exhibit List
Exhibit A-1 - Purpose of Lease and Policies for the Use of Premises
Exhibit A-2 - Premises Rules of Use
Exhibit B – Alterations and Improvements
Exhibit C – Master Plan
Exhibit D -- Hakone Gardens Infrastructure Improvements from the City of Saratoga Operating
and Capital Budget
Exhibit E – Insurance Requirements
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1
Exhibit A-1
Purpose of Lease and Policies for the Use of Premises
1.Purpose.
The purpose of this lease agreement is to provide possession of the Gardens to Hakone for
Hakone to operate and manage the Gardens for public visitation and use by Saratoga residents and
others and otherwise devote the Gardens to non-profit beneficial public, charitable and educational
uses appropriate to and compatible with its character as an historical Japanese Garden and to
enhance its position as a venue for the broadening and deepening of cross-cultural ties between the
Japanese and American cultures.
2.Public Access.
Except as described below, Hakoneshall providepublic access to the Gardens, at reasonable
times and upon reasonable conditions, which may include reasonable fees for admission and private
rentals. Over the term of this lease agreement, Hakone may close the Gardens to public access for
an average of up to three months per calendar year provided that the Gardens shall be open for
public access each year during the months of March through July. During months when the
Gardens are open to public use, Hakone may close the Gardens to public access for up to 20 days
each year (no more than 10 of which may fall on a Saturday or Sunday) for private events. In
addition, on days when the Gardens are open to public use, up to 38 percent of the public use area of
the Gardens may be closed to public use for private events. During months when the Gardens are
open to public use, they shall be open at least six hours on Saturdays and Sundays and at least six
hours per day on at least four weekdays each week. Failure to make the Gardens open to public use
in accordance with this paragraph shall be considered a material breach of this lease agreement.
3.Saratoga Residents.
At least one day each quarter Hakone shall provide free admission and free parking to those
persons showing through reasonably satisfactory evidence that they reside within the City of
Saratoga and any guests accompanying them during the regular operating hours of the Gardens.
Notice of each such free admission day shall be provided to the City and to the Saratoga News or
other comparable newspaper at least 30 days in advance.
4.Caretaker’s Cottage.
There is located upon the Premises a small residential structure known as the “caretaker’s
cottage.” This structure was renovated using funds from the Federal Government, Department of
Housing and Urban Development (“HUD”). Those funds were given on the condition that the
cottage be used for low-income housing and Tenant takes the Premises subject to that condition.
In the event that HUD approves a transfer of the low-income housing obligation associated with
the cottage to a separate property and the then-current tenant of the caretakers cottage vacates the
cottage, Hakone shall have the right to use of the caretakers cottage. Hakone shall have the right
to any rental income received by the City for use of the caretakers cottage.
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5.Governance of Hakone Foundation.
A.The Hakone Foundation shall maintain its status as a non-profit foundation under
Section 501(c)(3) of the Internal Revenue Code throughout the term of this lease agreement.
B.The City shall be entitled to one seat on the executive committee of the Hakone
Foundation. Such seat shall at the sole discretion of the Citybe occupied by the Mayor of the City
of Saratoga or a Council Member selected by the Mayor.
C.Throughout the term of this lease agreement the Hakone’s Board of Trustees shall
include two members of the City Council of the City of Saratoga appointed by the City Council.
The Cityshall submit the names of the two City Council Members to the Tenant at the address to
which notices to Hakoneare given. The two Council Members shall have the same rights and
privileges as all other members of the Board of Trustees.
D.The right of the City to seats on the executive committee or Board of Trustees of the
Hakone Foundation does not in any way alter the status of the Hakone Foundation as a non-profit
foundation, or convert it into a City or governmental agency of any kind. Notwithstanding the
foregoing, the parties acknowledge and agree that nothing in this agreement shall supersede any
state law that may apply to Cityor Hakone, respectively, including, but not limited to, the Ralph M.
Brown Act.
E.The by-laws of the Hakone Foundation shall require that the Board of Trustees be
comprised of a minimum of nine (9) Trustees at all times during the term of this lease agreement.
Hakone shall make reasonable effort to provide that no less than one third of the Trustees shall be
residents of Saratoga.
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Exhibit A-2
Premises Rules of Use
1.Alcoholic beverages are allowed on the Premises subject to all applicable alcoholic
beverage control laws.
2.Smoking is not allowed on the Premises.
3.Hakone shall maintain safe exit pathways in the Premises at all times. The number of
people within any building shall not exceed the capacity designated by the City.
4.Hakone shall observe, obey and comply with all applicable City, County, State and
Federal laws including, but not limited to, the following:
a. County Health Department requirements regarding food services;
b. State of California, Department of Social Services regulations in Title 22 of the
California Code of Regulations;
c. Copyright laws and all related licensing requirements;
d. Title VII of the Civil Rights Act of 1964 and other laws prohibiting
discrimination and providing that no person shall, on the grounds of race, creed,
color, disability, sex, sexual orientation, national origin, age, religion, Vietnam
era veteran's status, political affiliation, or any other non-merit factors be
excluded from participating in, be denied the benefits of, or be otherwise
subjected to discrimination under this agreement;
e. Hakone shall submit a complete set of fingerprints of all Hakone’s personnel
(including employees, contractors, and volunteers) to the Department of Justice
along with authorization to release a criminal history summary to Hakone.
Hakone shall maintain this information in its files, provide a copy to the City
Contact, and review all criminal history summaries before using the Premises, and
ensure that no personnel pose a threat to the health, safety, or welfare of any
participant.
f. Hakone shall screen for tuberculosis, pursuant to Public Resources Code 5163, all
of Hakone’s personnel (including employees, contractors, and volunteers) who
will have supervisory or disciplinary authority over minors and the elderly in
Hakone programs at City facilities, and ensure that Hakone has on file and has
provided to the City Contact certificates showing that within the last two years
each of Hakone’s personnel has been examined and has been found to be free of
communicable tuberculosis.
5.City is not responsible for any materials stored in connection with this agreement.
6.Hakone shall provide its own personal tools; supplies and equipment at his/her own cost
and shall coordinate pertinent media activities with City Contact.
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7.Photographs or recordings taken of Hakone activities that include Hakone’s image or the
image of Hakone’s personnel may be used by City for any purpose subject to any
applicable copyright restrictions held by a third-party copyright holder.
8.Hakone and its personnel shall comply with City’s policy of maintaining a drug-free
workplace. If Hakone or any of its personnel is convicted or pleads nolo contendere to a
criminal drug statute violation occurring at the Premises, Hakone, within five days
thereafter, shall notify City.
9.Hakone shall have its personnel on the Premise at all times the facilities are being used.
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Exhibit B
Alterations and Improvements
1.Alterations.
Hakone shall make no alterations, improvements, or additions ("Alterations") to the
Premises which are not consistent with the Gardens’ character as an authentic public Japanese
garden and the Master Plan approved by the City.
2.Master Plan.
The City approved a Master Plan for the Premises, provided as Exhibit C to this
agreement. Hakone may propose to amend the Master Plan for the Premises from time to time,
subject to the City’s approval, which shall not be unreasonably withheld.
3.Hakone Gardens Capital Infrastructure Improvements.
The City approved certain Hakone Gardens Infrastructure Improvements as part of its
Operating and Capital Budget, provided as Exhibit D to this agreement. The City and Hakone
may mutually agree to modify the Exhibit D by a request made by Hakone and approved by the
City Council. The City will contribute __ dollars ($__) annually towards the repairs and
infrastructure improvements listed in Exhibit D through June 30, 2030. This funding is may not
be used for routine building and landscape maintenance and repair services for the Premises.
4.City’s Maintenance Obligation.
In addition to supporting the capital infrastructure improvements discussed above the
City shall, at its sole cost and expense, repair (or replace) and maintain the following in good
operating condition and in compliance with all applicable federal, state, and local laws:
A.All roadways and driveways leading to the Premises and upon the Premises.
B.All parking lots on the Premises.
C.All sanitary sewer pipes within the Premises up to the clean-out for each building
with service upon the Premises.
D.All water lines for potable water use within the Premises leading to each building
with service upon the Premises.
E.All electrical service up to the electrical meter upon the Premises.
F.Pruning of all non-ornamental trees in and adjacent to the roadways and
driveways leading to and upon the Premises and the parking lots on the Premises.
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G.Removal of all non-ornamental trees on the premises that are determined to
present a hazard to persons or property.
5.Ownership of Alterations and Personal Property at End of Tenancy.
Any Alterations made hereunder shall be the property of City, and remain on and be
surrendered with the Premises upon expiration or termination of this lease agreement. Hakone shall
remove all of its personal property upon expiration or within ten (10) days after termination of the
lease, and shall repair any damage to the Premises caused by such removal. If Hakone does not
remove its personal property within such time Citymay consider such property abandoned and may
retain or dispose of it in any manner that Citydeems proper at no liability to City.
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Exhibit C
Master Plan
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Exhibit D
Hakone Gardens Infrastructure Improvements
from the City of Saratoga Operating and Capital Budget
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Exhibit E
Insurance Requirements
1.Hakone shall procure and maintain insurance during the entire term of this lease
agreement against claims for injuries to persons or damages to property which in any way relate
to, arise from, or relate to use of the Premises and any acts or omissions of Hakone. This
insurance shall meet the following specifications, unless waived in writing by City’s Risk
Manager:
A.Hakone shall procure and maintain for the duration of the agreement insurance
against claims for injuries to persons or damages to property which may arise from or about the
use of the Premises by Hakone or its agents, representatives, or employees.
B.Coverage shall be at least as broad as:
1.Commercial General Liability (CGL): Insurance Services Office Form
CG 20 01 04 13 covering CGL on an “occurrence” basis, including products-completed
operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence.
2.Workers’ Compensation insurance as required by the State of California,
with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000
per accident for bodily injury or disease.
3.Any deductibles or self-insured retentions (“SIR”) must be declared to and
approved by City and shall not reduce the limits of liability. Policies containing any SIR
provision shall provide or be endorsed to provide that either the named Insured or City may
satisfy the SIR. City may require Hakone to provide proof of ability to pay losses and related
investigations, claim administration, and defense expenses within the retention.
C.All policies are to contain, or be endorsed to contain and provide a separate
Additional Insured endorsement ,with the following provisions:
1.The City, its officers, officials, employees, agents and volunteers are to be
covered as additional insureds with the maximum scope and amount of overage available under
the policy with respect to liability arising out of activities performed by or on behalf of Hakone
including materials and parts or equipment furnished in connection with such activity.
2.The Additional Insured coverage under Hakone’s policy shall be ''primary
and non-contributory" and will not seek contribution from City’s insurance or self-insurance and
shall be at least as broad as CG 20 01 04 13.
3.For any claims related to this agreement, Hakone’s insurance coverage
shall be primary insurance as respects the City, its officers, officials, employees, agents and
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volunteers.
4.The Insurance Company agrees to waive all rights of subrogation against
the City, its elected or appointed officers, officials, agents and employees for losses paid under
the terms of any policy which arise from activity of Hakone.
5.Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be canceled by either party, except after thirty (30) days’ prior written
notice (10 days for non-payment) has been given to the City.
D.The limits of insurance required in this agreement may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess insurance
shall contain or be endorsed to contain a provision that such coverage shall also apply on a
primary and non-contributory basis for the benefit of the City (if agreed to in a written
agreement) before the City's own insurance or self-insurance shall be called upon to protect it as
a named insured.
E.Insurance is to be placed with insurers with a current A.M. Best’s rating of no less
than A: VII, unless otherwise acceptable to the City. The City reserves the right to obtain a full-
certified copy of any Insurance policy and endorsements at any time. Failure to exercise this
right shall not constitute a waiver of right to exercise later.
F.Hakone shall furnish City with original certificates and amendatory endorsements
effecting coverage required by this clause on an annual basis. All certificates and endorsements
are to be received and approved by City before work related to the covered activity commences.
City reserves the right to require complete, certified copies of all required insurance policies,
including endorsements affecting the coverage required by these specifications, at any time.
Failure to exercise this right shall not constitute a waiver of right to exercise later.
G.City reserves the right to modify these requirements, including limits, based on
the nature of the risk, prior experience, insurer, coverage, or other special circumstances. City
reserves the right to modify or waive insurance requirements for certain low risk activities. Such
modifications or waivers must be in writing from the Risk Manager.
H.Any available insurance proceeds broader than or in excess of the specified
minimum insurance coverage requirements and/or limits shall be available to the City as an
additional insured. Furthermore, the requirement for coverage and limits shall be (1) the
minimum coverage and limits specified in the Agreement; or (2) the broader coverage and
maximum limits of coverage of any insurance policy or proceeds available to the named insured;
whichever is greater.
I.Hakone agrees to include with all contractors in their contracts the same
requirements and provisions of this agreement including the indemnity and insurance
requirements to the extent they apply to the scope of the contractor's work. Contractors hired by
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Hakone shall agree to be bound to Hakone and City in the same manner and to the same extent
as Hakone is bound to City under this Agreement. A copy of the indemnity and insurance
requirements from this agreement shall be furnished to all such contractors. Hakone shall require
all contractors to provide a valid certificate of insurance and the required endorsements included
in the agreement prior to commencement of any work for Hakone and will provide proof of
compliance to the City.
1258866.6
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OFFICE OF THE CITY MANAGER
Memorandum
To: Mayor Cappello & City Council
From: James Lindsay, City Manager
Date: June 13, 2019
Subject: Hakone Foundation Lease & Amendments The annual joint meeting between the City Council and Hakone Foundation Board will be held on June 19th. In preparation for that meeting, I’ve provided below a short summary of the current lease and the various lease amendments the City and the Foundation have approved over the past several years. The Council and Board may want to consider an updated lease document that would incorporate the various amendments and document any additional provisions that are desired. Current Lease
• Term May1, 2005 – April 30, 2060
• A $250,000 one-time investment by the City occurred between 2000 and 2005 to cover the cost of repair, replacement, and retrofitting of improvements identified in Section 8.1 of the lease. The Hakone Foundation, at its sole cost and expense, is required to maintain the Gardens and keep and them and the buildings in good operating condition and in compliance with all applicable laws.
• The City, at its sole cost and expense, is required to repair and maintain those improvements identified in Section 8.6 of the lease.
• Section 9.3 of the lease covers the original concept of the Hakone Master Plan to include a visitor and conference center. This section also states the Foundation shall make reasonable efforts to implement the capital improvements contained in the Master Plan Lease Amendment #1
• Modified Section 9.3 to include a commitment by the City to contribute up to $250,000 on a three-to-one match from the Foundation for the cost of constructing the visitor and conference center subject to a number of conditions to be completed by December 31, 2009. Lease Amendment #2
• Extended the condition deadline in Section 9.3 from December 2009 to December 2013. Lease Amendment #3
• Changed the nature of the City’s financial commitment from assisting construction to assisting in the preparation of the Master Plan. Lease Amendment #4
• Modified Section 23.5 of the Lease allowing the Hakone Foundational Board to be comprised of a minimum of nine Trustees.
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Memorandum
DATE:July 23, 2020
TO:Finance Committee
FROM:Mary Furey, Finance & Administrative Services Director
SUBJECT:Community Funded Improvement Project -Process Policy
Saratoga residents often make requests to the City for infrastructure improvements
in their community. City staff will follow up to determine if the work request is part
of normal Public Works maintenance operations or if the request would be a potential
capital improvement project. On occasion, staff finds that the infrastructure
improvement request is located on private land, such as a private road, and is
therefore the responsibility of the community.
When this occurs, City staff informs the requestors that the improvement project is
ultimately their responsibility to fund. Because these improvement projects can cost
multiple millions, this information is often not well received,and residents want to
know how the City is going to help them.
Staff prepared a Process Paper to provide community residents with available options
and basic instructions on how to proceed with requesting assistance from the City.
This document provides guidance on the steps the community must take to come to
a collective plan and agreement before the City can begin to assist them with a major
community infrastructure project, and an understanding of the funding requirements
to do so. This Process Paper was provided to the Via Regina residents last week and
is attached for your review.
Staff is requesting the Finance Committee provide direction on whether distributing
a Process Paper to residents for instructional purposes is sufficient, or if they would
prefer staff prepare a Council Policy to formalize the process.
Public Works staff believes other community groups will be bringing additional
improvement project requests forward in the next several years.
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C:\Users\EASYPD~1\AppData\Local\Temp\BCL Technologies\easyPDF 8\@BCL@E40EF291\@BCL@E40EF291.docx 7/13/20
COMMUNITY FUNDED IMPROVEMENT PROCESS
COMMUNITY COORDINATION
1.Residents to hold community-wide meetings to:
o Establish internal decision-making procedures
o Establish community leadership for City contact and contract authorization
o Produce community authorized documentation for elected leadership to proceed with
project, and produce project specifications
o Discuss/define improvement project, including:
Scope of project
Anticipated costs
Project urgency
o Discuss project funding options:(City does not fund private community improvements)
Community-established association to self-fund project
City-established district for annual assessments (to accumulate funds over time)
City-established district for bond issuance (to raise immediate funds)
o Discuss Community District formation if moving forward with assessments or bonds
Options: i.e.CFD, GHAD, Special Assessment District,etc.
Funding requirements to establish district (upfront costs range $50k-$150k)
o Community leadership to contact City staff once Community ready to move forward:
PW Director John Cherbone at (408)868-1241 or jcherbone@saratoga.ca.us
REQUEST TO CITY FOR ASSISTANCE
1.Community to provide Project Improvement Request to City staff, including:
o Documentation authorizing Community leadership to contact City and proceed with process
o Scope of project
o Anticipated cost of project
o Project urgency
o Improvement district boundaries, including addresses of properties
o Property owner contact information
2.City to discuss district formation preference and options with special financing district formation
consultant (i.e. NBS)and determine estimated district formation costs.
3.With assistance from consultant, City to provide community representatives with various
funding mechanism alternatives, estimated costs associated with bond issuance funding, and
estimated up-front funding requirements.
4.Community leaders to bring information back to community for direction. Community to submit
a formal request to form a community district via petition signed by at least 2/3 of homeowners
(1 signature per property).
*Note –Additional requirements may apply, depending on type of district requested
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DISTRICT FORMATION AND BOND ISSUANCE
1. Community enters into a Deposit Agreement with the City.
2. City/Community to enter into a Funding/Indemnification Agreement. Community group must
also provide commercial general liability insurance.
3. If desired, Community may retain engineer to design/prepare cost estimate for improvement.
This pre-bond issuance step is recommended to ensure proper bond sizing.
4. City assembles team of financing district formation consultant, bond counsel, etc.
5. City Council meeting #1 – Accept petition and Resolution of Intention.
6. City Council meeting #2 – Conduct public hearing on district formation.
7. Community election to form district – 2/3 vote required for certain districts
8. City Council meeting #3 – Accept election results; adopt ordinance levying special tax.
9. City Council meeting #4 – Adopt resolution approving bond documents.
10. Bond sale.
o Bond sales have many steps, with the type of bond sale dictating the process and amount of
time needed as well as the extent of bond consultant and counsel assistance. For reference,
a recent CFD bond issuance for $2.5 Million took five months and cost $400k. This was after
the district formation process, which took approximately six months to complete.
11. Bond Closing.
12. Construct/operate/maintain improvement.
Note: Project management can be contracted for or provided by City as part of improvement
project, but as District owns the improvement, the ongoing maintenance is a responsibility of
the District, not City.
REFERENCE MATERIALS
California State Legislature, Guide to Benefit Assessments in California (3rd ed. 2011):
https://sgf.senate.ca.gov/sites/sgf.senate.ca.gov/files/Assessing%20the%20Benefits%20of%20B
enefit%20Assessments%20801-S.pdf
California Mello-Roos Community Facilities Districts:
https://media.orrick.com/Media%20Library/public/files/1/1180-pdf.pdf
Chart explaining CFD v. GHAD: http://ghad.org/wp-content/uploads/2019/01/GHAD-v.-CFD.pdf
1265506.1
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Memorandum
DATE:July 23, 2020
TO:Finance Committee
FROM:Mary Furey, Finance & Administrative Services Director
SUBJECT:ClearGov Software
On May 7th, the Finance Committee participated in a webinar where ClearGov staff
demonstrated their Insights website program to committee attendees. As was
shown, the Insight software application provides an icon-and graph-based display of
demographic and financial information which would be accessible from the City’s
website. The large font and statistical driven format makes the data easy to
understand and user-friendly to navigate for all levels of City knowledge.
Subsequently, staff followed up with ClearGov for a demonstration of their other two
products, the Budget Suite program which is on online budget preparation software,
and the Digital Budget Book which builds a budget book to be displayed on the City’s
website in a similar icon and graph-based display that includes narrative and table
sections for budget document formatting in their user-friendly style.
While City staff would continue to build budget information in Excel for portions of
the budget process, the Budget Suite and Digital Budget Book will help to automate
certain tasks in the budget process and allow remote access to the software. Staff’s
understanding is that the Budget Suite and Digital Budget Book software eliminates
much of the data linking and formatting time required to produce a budget document,
and would also present the data to the public in a consistent format as ClearGov’s
Insight product.
The attached ClearGov product worksheets provide examples of these products. Staff
would like to discuss next steps.
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Modern
Budgeting &
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62
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63
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LEMONT, IL
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Finance Director
Real Communities. Real Stories.
“Before we had ClearGov,
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Community
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PUEBLO WEST, CO
“Having the budget
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- Sean O’Brien
Special Assistant
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NATICK, MA
855-553-2715
www.ClearGov.com
Info@ClearGov.com
65
Digital Budget Book
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You end up producing a dry and lengthy budget
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66
City of Clearville
Key Features
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ClearGov Insights and ClearGov Budgets
1. Export
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to present your
budget book online.
You can also print to
PDF to produce
a physical
budget book.
How it Works
www.ClearGov.com •Maynard, MA • 855-553-2715 Info@ClearGov.com
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