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ClWF CARLSBAD - AGENWILL 3
DEPT. I AB# 8gyy- 1 TITLE:
CITY A MTG.
DEPT. Is CITY M
RECOMMENDED ACTION:
f
5-19-87 SOFTWARE CONTRACT
Adopt Resolution No. 9d7s/ , approving an aqreement with Sierra Compute
Systems, Inc. for purFhase and installation of land use information softwar
(Permits).
ITEM EXPLANATION
On February 17, 1987, Council adopted Resolution No. 8970, which authorized
1. Upgrade of the City's computer hardware;
2. Purchase of "Permits" software package:
3. Negotiation of a contract with Sierra Computer Systems, Inc. for
installation and maintenance of the "Permits" software; and
4. Transfer of funds to Data Processing for the hardware and software.
In accordance with that action, the attached agreement is presented for Cou
consideration. This agreement will give the City a perpetual license to
unlimited use of the "Permits" software. The agreement also provides that
Sierra Computer Systems, Inc. will install the software on the City's compb
Included with installation is assistance with conversion of existing City f
and the County Assessor's information so it will be compatible. They will
provide assistance with the creation of tables, menus, a Master Street Guic
Street Name Tables as well as installing City permit formats and fee schedL
FISCAL IMPACT :
Cost of the software license is $48,262; cost of implementation is $14,000;
a total of $62,262. Those funds were encumbered in accordance with Council
action on February 17, 1987.
EXHIBITS :
1. Resolution No. 907q , approving an agreement with Sierra Computer
Systems, Inc. for the purchase and installation of the "Permits" softwi
package.
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RESOLUTION NO. 9074
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
APPROVING AN AGREEMENT WITH SIERRA COMPUTER SYSTEMS, INC.
FOR THE PURCHASE AND INSTALLATION OF THE "PERMITS"
SOFTWARE PACKAGE
WHEREAS, the City of Carlsbad desires to purchase software designe
provide permit tracking and land use information to run on the City's Hew
Packard 3000 computer system; and
WHEREAS, City staff conducted a diligent search and analysis of av
1 land use information software packages; and
WHEREAS, City staff recommended, and Council approved, the purchas
"Permits" software package from Sierra Computer Systems , Inc. ; and
WHEREAS, Council authorized staff to negotiate an agreement for pu
and installation of the "Permits" software package; and
WHEREAS, funds in the amount of $62,262 were transferred to the Da
Processing budget to fund the purchase and implementation of the "Permits
software.
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NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of
'Carlsbad, as follows:
,I 1. That the above recitations are true and correct.
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i purchase and installation of "Permits" software is hereby approved.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Coun
the City of Carlsbad, California, held on the 19th day of May , 198
the following vote, to wit:
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AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson
NOES: None
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AGREEMENT BETWEEN
Sierra Computer Systems, Inc., hereinafter referred to as SCSI, and City of
Carlsbad, California, hereinafter referred to as City.
Executed this day of , 1987.
RECITALS
SCSI provides this "SOFTWARE" and licenses its use.
Customer Name City of Carlsbad, California
Address 1200 Elm Avenue
CityIStatelZip Carlsbad, California 92008-1989
Product Name PERMITS
SCSI Reference No. 870005P
Release No. 02
Fee $48,261.80 .
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TERMS AND CONDITIONS OF AGREENEWT
BETWEEN SCSI AND CITY
GENERAL CONDITIONS OF 'PERMITSR LICENSE
Al.00. HEADINGS.
deemed to be part of this Agreement.
Headings are for convenience only and shall not be
A2.00. MODIFICATION. No modification or variation of this Aqreement :
be valid unless in writing signed by both parties.
A3.00. SEVERABILITY. If any provision of this Agreement shall be
construed to be illegal or invalid, the legality or validity of any other
provision hereof shall not be affected thereby. Any illegal or invalid
provisions of this Aqreement shall be construed by a court of competent
jurisdiction to have the broadest scope permissible under the law of said
jurisdiction, and if no validating construction is possible, shall be severa
and all other provisions hereof shall remain in full force and effect.
A4.00. DELAYS.
.01. Neither party shall be liable, in damages or otherwise, f
any delay in the installation and implementation of the Licensed System or a
. component thereof or any service to be rendered by it hereunder, or for fail
to give notice of any delay, when such delay is due to the elements, acts of
nature, acts of civil or military authorities, acts of other party which are
provided for in this Agreement and which cause unreasonable delay in this
Agreement by the other party, any delay in transportation or delay in delivei
by its vendors beyond it reasonable or actual control, or any other causes
beyond the reasonable and actual control of the party. Each party's schedulc
performances shall be extended by a period of time equal to the time lost
because of any such delay, provided written notice has been qiven to the othc
party of such delay and its estimated duration, within five (5) days of the '
the party has actual knowledge of such delay.
02. Notwithstanding the foregoing, Ln every case, the delay or
failure to perform must be beyond the control, and without the fault or
negligence of, the party claiming excusable delay.
A5 .OO. PAYMENT.
.01. The sum of $24,130.90 shall be paid within 30 days upon
delivery of the Licensed Software. Delivery shall be the date the Software i
installed and documentation is delivered. The additional sum of $24,130.90
shall be paid 60 days after delivery and acceptance of the Licensed Software.
If, at the end of the training period, said software opera with no loss of operational capability due to software errors, for a period o
thirty (30) days from the commencement of the performance period, it shall be
deemed to have met the City's acceptance.
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.02. City aqrees to pay any tax for which it is responsible
hereunder, or which is assessed against City directly, exclusive however, (
taxes based on the income of SCSI.
reimburse SCSI therefore upon receipt by City of proof of payment acceptabl
If any such tax is paid by SCSI, to
city.
.03. This License fee does not include installation services.
These services are specified in Exhibit 'A', Installation Services.
.04.
City site and two (2) days technical traininq at City site.
This License fee does include three (3) days user traini
A6.00. PATENT AND COPYRIGHT INDEMNITY.
.01. SCSI agrees to defend, hold harmless and indemnify City
and aaainst any claim, action, liability, cost or damaoe for infrinqement 01
patent, copyright or similar property right (includinq, but not limited to,
misappropriation of trade secrets) based on any software or any other materi
furnished hereunder by SCSI. SCSI shall have the sole right to conduct the
defense of any such claim or action and all negotiations for its settlement
compromise, unless otherwise mutually agreed to in writing by the parties
heret 0.
A7.00. IMPROVEMENT AND OTHER MODIFICATIONS. Any (i) modification, chan
addition or substitution to the Licensed System made by City, (ii) any
interfacing of the Licensed System with any other program or programs by Cit:
or (iii) any change in the operating environment of the Licensed System may
degrade the performance of the Licensed System. City acknowledges that if a1
such modification, interfacing or change is made it shall be at the sole reqi
and expense of City and that SCSI shall have no responsibility for any
consequences thereof, except as provided herein.
A8.00. RELATIONSHIP TO PARTIES.
.01. At all times during the term of this Agreement, SCSI shall
an independent contractor and shall not be an officer, aqent, or employee of
City. City shall have the right to control SCSI only insofar as the result c
SCSI services rendered pursuant to this Aareement.
.02. Nothing contained in this Agreement shall he deemed to cre
a partnership or joint venture. Neither party shall incur any debts or make
commitments for the other party.
A9.00. SYSTEM SECURITY AND ACCESS.
.01. Each acknowledges that all information reoarding the
installation and implementation of a licensed system is "Confidential and
Proprietary Information". Each party agrees that it will not permit the
duplication, use or disclosure of any such Confidential and Proprietary
Information to any person (other than its own employee who must have such
information for the performance of obligations under this Agreement), unless
authorized in writing by the other party or required by law.
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.02. All financial, statistical, personnel, technical and othe
information or data relating to the City, which is designated in writina as
confidential by the City but made available to SCSI in order to carry out th
Agreement, will not be disclosed. SCSI shall also observe the same or
equivalent requirements as are applicable to the City with regard to protect
confidentiality. SCSI will instruct its personnel to keep such information
confidential. information which is or becomes publicly available, is already riqhtfully in
SCSI's possession, is independently developed by SCSI outside the scope of t
Agreement, or is rightfully obtained from third parties.
SCSI shall not be required to keep confidential any data or
A1O.OO. CITY'S INSTRUCTION.
.01. SCSI shall be responsible for ensuring that its employees
servants, and agents will, whenever on City's premises, obey all reasonable
instructions and directions issued by City.
.02. Unless otherwise agreed by the parties, SCSI personnel, w
working in City's premises, shall observe the workina hours, workinq rules ai
holiday schedules of City applicable to such City premises.
provide reasonable working space, resources and materials which are necessar
for the performance of services under this Agreement, provided, however, tha
such working space, resources and/or materials are agreed upon by City for SI
services and the use of any such working space, resources and/or materials i
arranged so as to minimize any disruption to City's normal business operatioi
A1l.OO. COMPLIANCE WITH LAWS. SCSI agrees to comply with all laws,
regulations, rules and guidelines of the Federal, State and Local jurisdictil
and any agency thereof governing SCSI and its operations, including the
Immigration and Control Act of 1986.
City aqrees to
412.00. APPLICABLE LAW.
.01. This Aureement shall be governed and construed under the I
of the State of California. Any action to enforce the provisions of this
Agreement shall be filed in a court located in the North County 3udicial District for the County of San Diego.
.02. There shall be no discrimination on the basis of race, se,
religion, or national origin against any person employed by SCSI for the
performances of services herein described.
A13.00. SOFTWARE LICENSE.
.01. SCSI grants and City accepts upon the terms and conditions
contained herein, non-exclusive, non-transferable, perpetual license to
unlimited use of "Licensed System" solely for City's own purposes. The licen
granted under this Aqreement authorizes City to use the Licensed System in
machine readable form on one CPU (object code for MENU-GEN, source and object
code for PERMITS). The Licensed System shall include in its meaninq,
documentation and technical information provided to City in written form for
in connection with the software.
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.02. SCSI warrants that it has good title to such system and t
City will have undisturbed use of the system in accordance with the terms of
this Agreement. SCSI shall keep and maintain in full force and effect durin
the term of this agreement a policy of general liability insurance. The min
limits of liability insuarnce shall not be less than $1 million.
certificate of insurance will be sent to the City.
A copy of
.03. City expressely agrees that it will not sell, lease, assi
or in any way transfer, such Licensed System or any rights herein to any per
partnership, corporation or other entity.
.04. City shall not alter, remove or conceal, any copyright, t
secret or other proprietary notice on the Licensed System.
.05. Title and ownership to the Licensed System and Intellectu Property Rights is not hereby nor in any other way transferred to City. Cit
acknowledges that SCSI retains the exclusive riqht to sell, lease, license,
assign, or otherwise transfer the Licensed System (and any module thereof) a
that SCSI may enter into similar or indentical conveyances of similar or
identical riqhts with other SCSI clients.
.06. City may not cause or permit disclosure of, or access to,
License Software in whole, in part or in any form to any person, firm,
corporation or other entity who or which are not salaried employees of the C
without the expressed prior written consent of SCSI, or as required by law.
A14.00. WARRANTIES.
.01. SCSI warrants and represents that it has full authority t
enter into this Agreement and to consummate the transact ion contemplated herc
and that this Agreement is not in conflict with any other agreement to which
SCSI is a party or by which it may be bound.
A1 5.00. WAIVER.
.01. It is expressly understood and agreed that no waiver granl
by the City for any violation of any covenant, term or condition of this
Agreement shall be construed to constitute a waiver of the same of any furtht
violation without the prior written approval of the City.
A16.00. RESOLUTION OF DISPUTES.
.01. It is anticipated that disputes between SCSI and the City
will be resolved between the parties. Disputes or questions of interpretatic
may be referred to a committee composed of representatives from SCSI and the
City. The parties agree that in attempting to resolve disputes they will act
promptly, reasonably, and in good faith.
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A17.00. NOTICE. All notices, requests, demands and other communication
shall be in writing and sent by reaistered mail, certified mail or hand
delivery, addressed to the party's principal place of business herein writte
Either party may by notice in writing, direct that future notices, requests,
demands be sent to a different address. Notices qiven by personal delivery
shall be deemed uiven at the time of actual deliverv.
SCSI - Sierra Computer Systems, Inc.
2378 W. Whitendale Avenue
Visalia, CA 93277
CITY - Information Systems Director
City of Carlsbad, California
1200 Elm Avenue
Carlsbad, CA 92008-1989
City hereby acknowledges that City has read this Agreement, understands it ai
agrees to be bound by its terms and conditions. City further agrees that it
the complete and exclusive Agreement between City and SCSI relatinu to the
subject matter of this Aqreement. City acknowledges receipt from SCSI of a
copy of this Aqreement.
SCSI
By :
Typed: ROBERT AUSHERMAN, PRESIDENT Sierra Computer Systems, Inc.
2378 W. Whitendale Avenue
Visalia, CA 93277
CITY
By :
Typed:
City of Carlsbad, California
1200 Elm Avenue
Carlsbad, CA 92008-1989
'7 APPROVED AS TO FORM:
j //+J&i\ t
By :
Typed: Vincent Biondo, 3r., Cft
City of Carlsbad, Califo
1200 Elm Avenue
Carlsbad, CA 92008-1989
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EXHIBIT A TO SOFTWARE LICENSE AGREEMENT
INSTALLATION SERVICES
A.
Software:
SCSI shall provide the followina installation services relating to t
1. Assistance in conversion of existing CITY computer files and Cou
Assessor's Data Base to a format compatible with the Software.
2. Assistance in the installation of permit formats and inspections
schedules.
3. Assist in creation of a table-driven geo-data base. Assist in
creation of a Master Street Guide and Street Name Tables used in the qeo-datq
base.
4. Assist in creation of multiple structure and site data bases.
R. SCSI shall be paid for installation services at a prevailing rate plt
reasonable expenses, in addition to the purchase price for the Software.
1. Installation services are estimated at 300 hours for a total of
' $12,500.00 dollars. The estimated expenses are $1,500.00 dollars. The total
estimated amount is $14,000.00 and shall not be exceeded except upon prior
written consent of City.
C. SCSI shall submit monthly invoices to City detailing the installation
services provided and the time and expense incurred. City shall pay such
invoices within thirty (30) days.
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JUNE 1, 1987
TO: CITY CLERK v/
FROM : Assistant City Attorney
CONFLICT OF INTEREST ON CERTAIbJ DESIGNATED EMPLOYEES UNDER
GOVERNMENT CODE SECTION 87100
This will confirm my verbal advise to you of Monday, June 1, 19l
regarding the reimbursement of expenses for certain employees wl
will make a recommendation on certain software mapping services to be provided to the City. After research and consultation wil
the attorney for the Fair Political Practices Commission it was
my opinion that the possibility of a legal conflict of interest
may be eliminated by following the following procedure:
1. Accept the offer of the bidder for reimbursement of employee expenses formally in writing by the City Manager or each responsible department. The letter
should make clear that the City retains the power to select which of its employees would attend the meeting
or site inspection. The payment would be made direct1
to the City.
2. The City would advance funds or reimburse the employee
directly for the expenses incurred in this inspection.
3. The City would bill the bidder and accept reimbursemen for the costs expended by its employees pursuant to th
written agreement above. (Authority Government Code
Section 82030(a) and (b)(2), 87100, 2 CAC Section
18702.1(c) (2).
Should you have any questions regarding the above, please do no
hesitate to contact me. a
RONALD R. BALL
Assistant City Attorney
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0 3 FPPC OPINI(. 22
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BEFORE TEE FAIR POLITICAL PIZACTICES COMMISSION
In the Matter of: 1 1
City Attorney, San Jose ) 1
Opinion requested by? 1 No. 77-003
Peter G. Stone, 1 June 9, 1977
BY TEE COMMISSION: We have been asked the followinc
From time to time, private parties in San Jose
question by Peter G. Stone, City Attorney of San Jose.
provide services to city officials in connection with their duties. For example, free air transportation in a private plane was recently provided to the city attorney in connectioi with a court appearance and to a city councilman in connectio~ with an appearance befare the Legislature. In light of this ongoing practice, the Commission has been asked whether the receipt of free air transportation and similar services must
be reported by the officials on their Statements of Economic Interests filed pursuant to San Jose's Conflict of Interest Code.
CONCLUSION
For the reasons set forth below, the councilman must report the receipt of free air transportation as a gift but the city attorney need not do so.
ANALYS IS
The Political Reform Act defines the term "gift"
ent to the extent that consideration
as:
of .** equa v or greater value is not received. . . .
Government Code Section 82028 .&'
( Emphasis added. )
1/ - \ A~L statutory referexices ate to the Government Code unless otherwise noted.
NO. 77-003 W 3 FPPC 0 ma IONS 53
Page Two
The term 'payment" is defined in Section 82044 to include: . . . a payment, distribution, transfer, loan, advance deposit, gift or other rendering of money, property, services or anything else of value, whether tangible or intangible.
The Conflict of Interest Code for the City of San Jose is, with respect to income disclosure, identical to the provision: of Section 87207(a)(l) and (4) whiqh requires that public officials disclose the receipt of gifts valued at $25 or more .
benefits are not gifts despite the broad language of Sections
82028 and 82044.
asked whether Controller Cory had received a gift from a neighbor who had assisted him in repairing his fence. providing that such. services did not constitute reportable gifts, we stated:
In any tolerable society, people lend assistance to their acquaintances and even to strangers in ways which have theoretical economic value but do not, in any real sense, represent economic trans- actions. It is absurd to suppose that the re- pairing of a fence by a neighbor, the offering of a ride, the fixing of a flat tire or hundreds of similarly friendly acts are "gifts" which must be reported under the Act,...
The providing of free air transportation in a
We have previously indicated that certain types of
In the opinion requested by Kenneth Cor p
In
I FPPC Opinions 153 (No. 75-094-B, Oct. 23, 19 Y 5), we were
private plane may in certain circumstances be of a similar character. for recreational purposes and they welcome the opportunity to take a friend on a flight. person who is utilizing the services of a ptivate plane? whether for personal or business purposes, to offer a ride to someone who is coincidentally headed for the same desti- nation. Public officials engaged in official business may
be offered air transportation under these circumstances, and we think it would be mischaracterization of both the intent and effect of the event to label it a gift if nothing more than a gesture of friendship or neighborliness is involved .
Such a situation contrasts with that, for example, where a corporation proyides a private airplane to a city official to facilitate an appearance before an administrative agency
Kany persons own or lease small aircraft pErely
It is also not uncommon for a
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3 FPPC OPINIONS 54 0
NO. 77-003 Page Three
where he offers testimony that furthers the interests of not only his cityp but also his corporate benefactor.
the corporation is :motivated by something more than casual neighborliness; it is hoping for an economic return on its expenditure of corporate time and resources .
tions which are not easily classified. think it useful to establish a mechanical formula for assess- ment of all cases, we do think that the following factors are relevant to determining whether a service provided to a public official is a nonreportable act of neighborliness or a gift, First, if it is the type of situation where one would expect the donor of the service to deduct the cost of the flight on his tax return as a business expense, we would ordinarily assume that an economic transactio merely an act of neighborliness, is involved.!’ Of course, the recipient of a trip will not ordinarily know how the donor of the’trip prepates his tax return, but the knowledge inost people have of what types of expenses qualify as busi- ness deductions can serve as a guide ia this area. For example, it is safe to assume that most expenses incurred to operate a campany-owned aircraft are considered by the owner of the plane to be business related.
has, or in the foreseeable future may have, business before the official who receives the seroice. While the absence of this factor does not necessarily mean that no gift has been made, the presence of this factor will in most cases provide strong, if not conclusive, evidence that a gift has been made. It may be that the donor has no intent of attempting to influence the officialr but the need to avoid even the appearance of possible impropriety is reason alone to require
that a service provided to an official under these circum- stances be disclosed.
the subject of an economic transaction also is an important consideration. Providing a person with an occasional ride to work is not usually an economically based transaction whereas participation in a car pool or use of a car for a long period of time generally is such a transaction. The
Clearly,
Between these two extremes lie a variety of situa- While we do not
and not
Another factor to consider is whether the donor
Finally, whether or not the service is normally
- *’ If the cost of the trip is tax deductible because the donor is attending to business of his own unrelat to that of the official, and the official is a passenger on the plane only because he shares 3 common destination with the donor and an extra seat happens to be available, the tax consequences of the trip may not be a helpful indicator.
NO. 77-003 w 3 FPPC rnZlIONS 55
Page Four
fact that the donor and the official frequently reciprocate the type of service in question or the existence of emergency circumstances also may be relevant in applying this standard..
hand, we are advised of the following. facts. The city attorn had an appointment on city business in Southern California just prior to a scheduled court appearance in San Francisco, Be determined that he could meet both obligations only if he flew to San Francisco in a private non-commercial aircraft.
He therefore requested that a friend of his provide this service. The friend made an airplane available even though he had no previous plans to fly the route that day. We are advised that the friend is a resident of San Jose and maintai
his plane at the San Jose. Municipal Airport. The city counci of San Jose sets the rates which are paid by persons who keep their airplanes at the airport.
The city councilmember flew to Sacramento to testif on a bill in which the City of San Jose had an interest. Like the city attorney, the city councilmember initiated the request for the flight and the donor of the flight had no prior plans to fly to Sacramento that day. A local construc- tion firm owned the airplane which it maintained at the San Jose Municipal Airport. In addition, the firm had busi- ness pending before the city council at the time of the flight.
councilman has received a reportable gift. We regard the city councilmember’s flight as a gift in view of the fact that the trip was made at the official’s request, the cost of
the trip was likely the subject of a tax deduction and the donor of the flight had business. pending before the city at
the time of the trip.
We believe the city attorney, on the other hand, has not recaived a reportable gift. His flight was provided by a personal friend who used his personal airplane, not a campany-owned plane, and, therefore, the flight was not the
Applying these guidelines to the situations at
In light of these facts, we conclude that only the
2’ This opinion does not modify our opinion in the matter of John Stephen Spellman, 1 FPPC Opinions 16 (No.
75-026, May 1, 1975) , in which we stated that transportation provided as part of a plant tour is not a gift because it is in the nature of “informational material,“ The Act provides that the receipt of “informational material“ need not be disclosed as a gift. Section 82028.
a
b 3 FPPC OPINIONS 56
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Nc e -003 Page Five
type that would ordinarily be considered to be tax-deductible to the donor. Moreover, an emergency of sorts existed in that Mr. Stone could not attend both hearings by traveling on a commercial airline. We do not consider the donor to have business before the city attorney merely because the city council sets the rates paid by persons who park their planes at the San Jose Hunicipal Airport, There is no indication that the owner of the plane is engaging in any special lobbyin on the issue and, more importantly, we are advised that the city manager and the airport commissioner, not the city attorr have principal resvnsibility for advising the city council on the setting of parking rates at the airport.
councilman is a gift rather than a noneconomic gesture of friendship or neighborliness, it is still possible that the gift need not be reported if it is made solely to the city. When a city official receives free air transportation from private sources for use in performing his official duties, both the city and the official have received something of value. The city receives-something of value because it saves the cost of the airline ticket it would have had to purchase for the official had he not received free transpartation.
The official may also be able to work more efficiently if private transportation shortens his trip, another possible benefit to the city.
The official , however, also receives something of value. later or return home earlier, thereby freeing him for persona. pursuits. In some situations, this may aryolve private em-
- ployment or outside business activities.- Even if no such time saving is involvedr the official enjoys the intangible benefits that ordinarily accompany private air service, such as the added comfort and convenience and avoiding the aggrava tion that often attends commercial air ttavel, In addition, the city and the official receive a joint benefit when the trip would not even occur but for the existence of the free air transportation.
There may be some situations, however, where sur- rounding circumstances show that the gift was made to the city only, without providing any significant or unusual benefit to the official. In such a case, the official would
Even though we believe that the service to the
Private transportation may allow him to leave home
- 4’ Mr. Stone informed the Commission in his letter of January 14, 1977, that the city officials in questi traveled solely in connection with city business and did not pursue any personal business activities.
w
NO. 77-003 3 FPPC OPINIONS 57 Page Six
have no reporting obligation since whatever he receives , although free of charge to both him and the city, would be analogous to reimbursement for expenses or per diem from a state or local government agency, items which are not repott- able. Section 82030(b) (2) . While no immutable guidelines can be cast for determining when a gift of this nature is a gift to the city only, and not the official, we would require it to satisfy at least the following four criteria:
1. The donor intended to donate the gift to the city and not to the official:
2. The city exercises substantial control over use of the gift:
3. The donor has not limited use of the gift to specified or high level employees, but rather has made it generally available to city personnel in connection with city business without regard to official status: and
4. The makinq and use of the gift was formal- ized in a resolution of the city council (a written public record will suffice for administrative agencies not possessinq the legislative power of adopting resolutions) which embodies the standards set forth above.
To the extent that the gift of free air transporta- tion in the instant case satisfies the above standards it
will not subject the city officials to any reporting obfi- gation pursuant to the Political Reform Act. To the extent that these standards are not satisfied, however, the official: must report the recei of such a benefit as a gift if its value is $25 or more. g It is our understanding that the free air transportation received by the San Jose city council- member did not meet these four standards. ft is therefore reportable on the official's Statement of Economic Interests
if worth $25 or more. Sections 82028 and 87302(b).
officials, the provisions of Chapter 6 of the Political Reform Act are not pertinent. However, if the officials in question are elected state officers, legislative officials, administrative officials or state candidates, lobbyists would be prohibited from making, arranging for the making or acting as agents or intermediaries in the making of gifts of $10 or more to such officials or from doing anything with
the purpse of placing such officials under a personal obliga. to either the lobbyist or his employer. See Sections 86203 and 86205 (a) . Moreover, these officials would be prohibited
from receiving such gifts.
- 5' Because the Officials in question are local
e 3 FPPC OdiNIONS 58 m NG P 403 Page Seven
To determine the value of the services, the offici' should attempt to estimate the fair market value of the trip. Section 81011; Opinion requested by Renneth Cory, I FPPC Opinions 153 (No. 75-094-3, Oct. 23, 19 /S) . We recoqni: that in the instant case, it may be difficult to estimate the value of the intangible services received. Accordingly, the filer map utilize the commercial air rate or the charter rate divided by the number of passengers as guideposts in estimating the value of the flight. If the filer believes that this amount standing alone is misleading (since the city reaps part of the benefit), he may attach an explana- tory note to his Statement of Economic Interests.
Approved by the Commission on June 9, 1977. Con- curring: Lapan, fawenstein, McAndrews and Quinn. Commissioi Remcho dissented in part.
Q&J&- 4
I Daniel H. Lowenstein Chairman
Commissioner Remcho, concurring in patt and dissenting in part
transportation for a city employee on official business is a gift to the employee and not to the city, even though it is
the city which would othtwise have to pay the plane fare. The city saves the money, but the employee has to report the savings as a gift to hh.
city attorney's airplane ride is not reportable. because I think the gift is to the city and not to the city attorney personally; the majority that if the tide were a gift to the city attorn it qualified as an act of neighborliness under the Co opinion, I PPPC Opinions 153 (No. 75494-8, Oct. 23375).
member's ride must be reported. I agree with the majority that it does not qualify as an act of neighborliness within
The majority has decided that free private air:
I respectfully disagree.
I conc~t with the majority's conclusion that the
I also concur because I believe with
I do so
I dissent from the conclusion that the city counci
3 FPPC v PINIONS S9 w No. 77-003 Page Eight
the meaning of the Cory opinion. That ride, like the city attorney's ride,-however, is in my view also a gift to the city, not the official and therefore not reportable by the official .
ride was a gift to him, the majority creates a four-part test:
In teaching the conclusion that the councilmember'
I. The donor intended to donate the gift tu the city and not to the official;
The city. exercises substantial control over use of the gift:
The donor has not limited use of the gift to
specified or high level employees, but rather has made it generally available to city per- sonnel in connection with city business with- out regard to official status; and
The making and use of the gift was formalized in a resolution of the city council (a writte public record will suffice for administrative agencies not possessing the legislative power of adopting resolutions) dich embodies the. standards set forth above.
2.
3.
4.
3 FPPC Opinions at 57.
I believe we have an obligation to provide reason- ably precise criteria, but I frankly do not find these ctite realistic, If a donot provided free air transportation to 2 candidate's campaign manager, for example, I am sure the majority wuuld insist that it be reported as a contribution to the campaignr even if (1) the donor intended it as a gift to the manager, (2) the' campaign bad no control over its use and (3) the gift was specifically limited to the use of one person. I believe the Commission would insist that it was i campaign contribution for sound reasons: It is the campaigl and the manager who saves the money.
The Commission's fourth criterion - a resolution by the city accepting the gift - does nothing more than insure that all gifts of this nature will be considered gifts.- the official. or trouble to secure a resolution.
.
They are simply not worth the time
I Nc D '-003 8 3 FPPC d)AIONS 60
Page Nine
I would do away with these criteria and merely state that the person or entity which receives the financial gain is the recipient of the gift. In this case, the city saves the cost of. air fare, so the city receives the gift, The majority concedes that it is the city which saves the cost of the airline ticket, 3 FPPC Opinions at 56, but it focuses on the "intangible .benefits that ordinarily accompan private air sersrices:"
The official, however, also receives something of value. Private transportation may allow hh to leave home later or return home earlier, thereby freeing him for personal pursuits* In sane situa- tions, this may involve private employment or outside business activities, Even if n~ sucfi-time saving is involved, the official enjoys the intang ble benefits that ordinazily accompany private air semice, such as the added comfort and convenience and avoiding the aggravation that often attends commercial air: travel. In addition, the city and the official receive a joint benefit when the trip would not even occur but for the existence of the free air transportation. (Footnote omitted,)
For: the reasons stated in my dissent in opinion requested by Annie Me Gutienez, 3 FPPC Opinions 44, 47 (No,
76-081, June 7, 157) , I would not attempt to value the intangible benefits in this case, If the travel had been donated to the official for his personal use, I would have the official report it at the charter rate divided by the number of passengers. Here, however, the tangible gift is to the city and I would not ask filgrs to. decide how much of the "intangible" benefits of air. travel went to the official well-being , how much went to the city, and how much each is worth, Nor would I consider it all a gift to the official simply because he takes soma pleasure in the private travel,
The Politicaf Reform Act was directed at financial remuneta- tion, The public is no.t semed by attention to such intangi bles as "avoiding the aggravation that often attends commerc travel I)
I recoqnize potential for abuse, I suppose someon could make a jet available at all hours to a city official tor use solely on official business, Such a luxury could well dispose its recipient kindly towards the donor, As a practical matter, however, gifts of that sort have not been a problem, As an administrative agency, this Commission has
No. 77-003 w. 3 FPPC@hIONS 61
Page Ten
a great deal of flexibility. We should decide that only intangibles with readily ascertainable commercial market value need be reported. that rule we could then reconsider our position. If we were to perceive abuses of -- Commissioner
0 8
1200 ELM AVENUE TELE
CARLSBAD, CALIFORNIA 92008 (619) 1
Qtmew@2K&& MitQ of anrlsbnil
INFORMATIONS SYSTEMS DEPARTMENT
March 23, 1987
Hewlett Packard - Neely Sales Region
1421 S. Manhatten Ave.
Fullerton, CA 92631
Attn: Geri Sessions
SOFTWARE SUPPORT SERVICES - CSSA NO. 0098152404
Please consider this letter as your purchase order for Software
Support Services in accordance with your proposal dated March 3, 1987.
The HP CSSA No. is 0098152404, and the applicable Exhibit is 18T.
The services ordered and products to be supported are as outlined in
the proposal; and, consistent with prior years, we request quarterly
invoicing.
2a* LEE RAUTENKRANZ
Information Systems Director
LR: kk
I
m a
1200 ELM AVENUE TELE
CARLSBAD, CALIFORNIA 92008 (61 9)
ct€mx=mm Mitg of Mar1s;bah
INFORMATION SYSTEMS DEPARTMENT
February 27, 1987
Bea Enos
Hewlett Packard - Neely Sales Region
1421 S. Manhatten Ave.
Fullerton, CA 92631
SOFTWARE SUPPORT SERVICES - Agreement No. 009815204
Please upgradeour software support services referenced above from
RCS to AMs, effective March 1, 1987.
If you have any questions on this, please call me at (619) 438-5641
LEE 2- RAUTENKRANZ R-
Information Systems Director
LR: kk