Item 9.e.
City Council
Consideration of Adoption of a Resolution Declaring a Continued Local Emergency Related to the Ongoing Storm Events
April 11, 2023
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Adopt the Resolution declaring a continued local emergency related to the ongoing storm events, beginning in December 2022 and continuing through the present; or
2. Provide other direction to staff.
ADVANTAGES:
Adoption of the Resolution will satisfy the requirement of the Arroyo Grande Municipal Code regarding the periodic review of the declared local emergency related to the severe winter storms and support the City’s efforts to obtain assistance from County, State, and federal emergency response resources to recover from the disaster.
DISADVANTAGES:
No disadvantages have been identified to adopting the Resolution.
ENVIRONMENTAL REVIEW:
No environmental review is required for this item. Adopting the Resolution continuing a local emergency is not a project subject to the California Environmental Quality Act (“CEQA”) because that declaration in itself has no potential to result in either a direct, or reasonably foreseeable indirect, physical change in the environment. (State CEQA Guidelines, §§ 15060, subd. (b)(2)-(3), 15378.)
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with Government Code Section 54954.2.
Attachments:
1. Proposed Resolution
ATTACHMENT 1
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF ARROYO GRANDE DECLARING A CONTINUED
LOCAL EMERGENCY WITHIN THE CITY OF ARROYO
GRANDE (MARCH 2023 AND ONGOING STORM EVENTS
BEGINNING DECEMBER 27, 2022)
WHEREAS, on January 18, 2023, in accordance with Section 8.12.060 of the Arroyo Grande Municipal Code, the City Manager, in her capacity as the Director of Emergency Services Director, proclaimed a local emergency within the City commencing on or about 8:00 am on January 4, 2023, due to the storm events that began on December 27, 2022; and
WHEREAS, the City Council ratified the emergency proclamation through adoption of Resolution No. 5259 at its regular meeting on January 24, 2023; and WHEREAS, Arroyo Grande Municipal Code Section 8.12.065(C) provides that the City Council is to review the need for a continuing emergency declaration at regularly scheduled meetings at least every twenty-one (21) days until the emergency is terminated; and
WHEREAS, the City Council has adopted Resolutions declaring a continued local emergency related to the ongoing storm events on February 14, 2023, February 28, 2023, March 14, 2023, March 28, 2023; and
WHEREAS, pursuant to the provisions of Government Code section 8558(b), on January 4, 2023, the Governor of the State of California issued a Proclamation of a State of Emergency (“Governor’s Proclamation”) related to severe winter storms and a series of atmospheric river systems that struck California, bringing high winds, substantial precipitation, and river, stream and urban flooding; and WHEREAS, on January 8, 2023, the President of the United States declared that an emergency exists in the State of California relating to severe winter storms, flooding, landslides, and mudslides, and enabling public agencies in impacted counties that suffered damage or losses from the storms eligible to apply for federal disaster assistance; and
WHEREAS, on January 9, 2023, the County Administrative Officer of San Luis Obispo issued a Proclamation of Local Emergency relating to severe winter storms and a series of atmospheric river systems that struck San Luis Obispo County, bringing high winds, substantial precipitation, and river, stream and urban flooding; and
RESOLUTION NO.
PAGE 2
WHEREAS, on January 17, 2023, the Department of Homeland Security amended the major disaster declaration issued in January 14, 2023 related to the January 2023 storm events to add San Luis Obispo County as an affected county, enabling Arroyo Grande residents who had damage or losses from the storms to apply for Federal Emergency Management Agency (FEMA) disaster assistance; and
WHEREAS, on March 11, 2023, in accordance with Section 8.12.060 of the Arroyo Grande Municipal Code, the City Manager, in her capacity as the Director of Emergency Services Director, proclaimed a local emergency within the City commencing on or about March 9, 2023, in response to the latest series of atmospheric river systems and the damage to the City due to the storm events that began on December 27, 2022; and WHEREAS, the City Council ratified the emergency proclamation through adoption of Resolution No. 5273 at its regular meeting on March 14, 2023; and WHEREAS, the City Manager’s March 11, 2023 proclamation followed a County of San Luis Obispo issued Proclamation of Local Emergency on March 10, 2023 for the entire County due to severe storms; and
WHEREAS, on March 10, 2023, President Biden approved a California Emergency Declaration beginning on March 9, 2023, ordering Federal assistance to supplement State, tribal and local response efforts; and
WHEREAS, the ongoing atmospheric rivers are causing significant flooding of City infrastructure and streets, as well as homes in Arroyo Grande; and WHEREAS, adopting this Resolution continuing a local emergency is not a project subject to the California Environmental Quality Act (“CEQA”) because the continued declaration in itself has no potential to result in either a direct, or reasonably foreseeable indirect, physical change in the environment. (State CEQA Guidelines, §§ 15060, subd. (b)(2)-(3), 15378.); and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Arroyo Grande, that:
1. The recitals set forth herein are true, correct and incorporated by reference.
2. A local emergency is declared to continues to exist throughout the City of Arroyo Grande (see Resolution No. 5259), and the City has been undertaking, and will continue through termination of this emergency to undertake necessary measures and incur necessary costs, which are directly related to the damage caused by the severe winter storms and are taken in furtherance of; the Governor’s Proclamation of a State of Emergency on January 4, 2023; the
RESOLUTION NO.
PAGE 3
President of the United States’ Declaration of a National Emergency on January 8, 2023; and related orders and directives.
3. A local emergency is declared to continue to exist throughout the City of Arroyo Grande (see Resolution Nos. 5269 and 5273) resulting from subsequent storm events, and the City has been undertaking, and will continue in effect through termination of this emergency, to undertake necessary measures and incur necessary costs, which are directly related to the damage caused by the severe winter storms and are taken in furtherance of the Governor’s Proclamation of a State of Emergency on January 4, 2023; the President of the United States’ approval of a California Emergency Declaration beginning January 8, 2023; the County of San Luis Obispo’s Proclamation of a Local Emergency on March 10, 2023; and related orders and directives.
On motion of Council Member___________, seconded by Council Member ________, and by the following roll call vote, to wit:
AYES:
NOES:
ABSENT:
the foregoing Resolution was passed and adopted this 11th day of April, 2023.
RESOLUTION NO.
PAGE 4
CAREN RAY RUSSOM, MAYOR
ATTEST:
JESSICA MATSON, CITY CLERK
APPROVED AS TO CONTENT:
WHITNEY McDONALD, CITY MANAGER
APPROVED AS TO FORM:
ISAAC ROSEN, INTERIM CITY ATTORNEY
Item 9.f.
MEMORANDUM
TO: City Council
FROM: Whitney McDonald, City Manager
BY: Aleah Bergam, Management Analyst
SUBJECT: Consideration of Agreement with Best Best & Krieger for City Attorney Services and Appointment of Isaac Rosen as the Arroyo Grande City Attorney
DATE: April 11, 2023
SUMMARY OF ACTION:
Appointment of Isaac Rosen, of Best Best & Krieger, as the City Attorney.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
The services provided by Best Best & Krieger will be within the scope of the adopted FY 2022-23 budget of $290,000.
RECOMMENDATION:
Approve the Agreement with Best Best & Krieger for City Attorney Services and appoint Isaac Rosen as the City Attorney.
BACKGROUND:
The City Attorney is the City’s chief legal officer and is responsible for the proper administration and coordination of all City legal affairs. The City Council directly appoints the City Attorney, which has been a contract-City Attorney since the City’s incorporation.
The law firm of Carmel & Naccasha, LLP, had contracted with the City to provide its City Attorney services from 2004 – January 24, 2023. On January 24, 2023, the City Council approved an agreement with Best Best & Krieger for interim City Attorney Services until a Request for Proposals process could be completed and a new permanent City Attorney appointed by the City Council.
Item 9.f.
City Council
Consideration of Agreement with Best Best & Krieger for City Attorney Services and Appointment of Isaac Rosen as the Arroyo Grande City Attorney April 11, 2023
ANALYSIS OF ISSUES:
On January 3, 2023, City staff published a Request for Proposals (RFP) (Attachment 2) for a permanent City Attorney. After reviewing a competitive pool of proposals, the top three firms were invited to participate in an interview with the City Council at a Special Council Meeting on March 20, 2023. Best, Best & Krieger was selected as the preferred appointee and an agreement for City Attorney services (Attachment 1) is ready for approval by Council.
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Approve the agreement and appoint Isaac Rosen, of Best Best & Krieger, as the City Attorney; or
2. Provide other direction to staff.
ADVANTAGES:
Appointing a City Attorney ensures the City has the necessary legal expertise required to conduct City business.
DISADVANTAGES:
No disadvantages have been identified.
ENVIRONMENTAL REVIEW:
Appointing Isaac Rosen of Best Best & Krieger as City Attorney is not a project subject to the California Environmental Quality Act (“CEQA”) because it has no potential to result in either a direct, or reasonably foreseeable indirect, physical change in the environment. (State CEQA Guidelines, §§ 15060, subd. (b)(2)-(3), 15378.) PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with Government Code Section 54954.2.
Attachments:
1. Proposed Agreement
2. Request for Proposals for City Attorney Services
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ATTACHMENT 1
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LEGAL SERVICES AGREEMENT
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
BETWEEN
CITY OF ARROYO GRANDE
AND
BEST BEST & KRIEGER LLP
1. PARTIES AND DATE
This Agreement is made and entered into as of the day of April, 2023, by and between the City of Arroyo Grande, a California municipal corporation (“Client”) and Best Best & Krieger LLP, a limited liability partnership engaged in the practice of law (“BB&K”).
2. RECITALS
2.1 Client wishes to engage the services of BB&K as its City Attorney to perform all necessary legal services for the Client on the terms set forth below.
3. TERMS.
3.1 Term. The term of this Agreement shall commence on April ____, 2023 and shall continue in full force and effect until terminated in accordance with Section 3.12.
3.2 Scope of Services. BB&K shall serve as City Attorney and shall perform legal services (“Services”) as may be required from time to time by the Client as set forth by this Agreement, unless otherwise agreed to by the Client and BB&K. As part of the Services to be performed hereunder, BB&K shall be responsible for the following:
3.2.1 Preparation for, and attendance at, regular meetings of the Client;
3.2.2 Provision of legal counsel at such other meetings as directed by the Client;
3.2.3 Preparation or review of Client ordinances and resolutions, together with such staff reports, orders, agreements, forms, notices, declarations, certificates, deeds, leases and other documents as requested by the Client;
3.2.4 Rendering to the officers and employees of the Client legal advice and opinions on all legal matters affecting the Client, including new legislation and court decisions, as directed by the Client;
3.2.5 Researching and interpreting laws, court decisions and other legal authorities in order to prepare legal opinions and to advise the Client on legal matters pertaining to Client operations, as directed by the Client;
3.2.6 Performing legal work pertaining to property acquisition, property disposal, public improvements, public rights-of-way and easements, as directed by the Client;
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3.2.7 Responding to inquiries and review for legal sufficiency ordinances, resolutions, contracts, and administrative and personnel matters, as directed by the Client;
3.2.8 Representing and assisting on litigation matters, as directed by the Client.
Such services shall include, but shall not be limited to, the preparation for and making of appearances, including preparing pleadings and petitions, making oral presentations, and preparing answers, briefs or other documents on behalf of the Client, and any officer or employee of the Client, in all federal and state courts of this State, and alternative dispute resolution officer, and before any governmental board or commission, including reviewing, defending or assisting any insurer of the Client or its agents or attorneys with respect to any lawsuit filed against the Client or any officer or employee thereof, for money or damages.
ADDITIONAL SERVICES FOR AN ADDITIONAL FEE
3.2.9 BB&K’s Project 5 Program. Provides participants with memoranda summarizing new changes in case law under the California Environmental Quality Act (“CEQA”), an annually updated set of CEQA notices and forms to aid participants in meeting CEQA’s requirements, an annually updated set of Local CEQA Guidelines and a draft Resolution for adopting Local CEQA Guidelines, memoranda summarizing pending and recently passed CEQA legislation, and other CEQA resources and materials. Memoranda, forms, and guidelines are provided to participating agencies via the CEQA Guidelines Client Portal, a secure website providing an on-demand and continually updating library of CEQA resources. By providing our Project 5 Program updates to a large pool of participants, BB&K is able to divide the overall cost of the products among all participants and charge only a fraction of the total costs to the individual client agencies.
3.2.10 BB&K’s Advanced Records Center Services. Through its new Advanced Records Center (“ARC”), BB&K combines its legal acumen and experience with cutting-edge technology to provide comprehensive and cost-effective support for non-routine records-related matters. Specifically, at the Client’s option, the ARC team will assist Client with non-routine Public Records Act Processing and Policy Drafting, if needed.
3.2.11 BB&K Trainings. Best Best & Krieger LLP offers a variety of trainings to public agency and private business leadership and staff on topics required by law, as well as preventative and educational legal topics. The trainings are interactive and can be given onsite, via live webinar or virtual on-demand. Some of our most popular trainings include AB 1234 Ethics, Workplace Civility and Sexual Harassment Avoidance Training, The Brown Act “Open Meetings Law,” Crystalizing Your Agency’s CPRA Policies & Procedures and SB 1343 Sexual Harassment Avoidance Training for Non-Supervisors.
3.2.12 BB&K’s Election Law Center Subscription Services. Participants in BB&K’s Election Law Center will be given access to up-to-date election document templates, including resolutions and other mandatory election documents. The annual subscription also gives participants access to BB&K’s Election Law Center hotline, which participants can use for guidance on day-to-day election law questions that arise during campaign and election season.
3.3 Designated City Attorney. Isaac Rosen shall be designated as City Attorney, and shall be responsible for the performance of all Services under this Agreement, including the
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supervision of Services performed by other members of BB&K. To the extent Isaac Rosen is unable to attend meetings required of the City Attorney, including City Council meetings, a BB&K team member of equivalent or additional experience shall serve temporarily for Isaac Rosen. Scott Shapses shall be designated as Assistant City Attorney to provide back-up support to Isaac Rosen. . No change in these assignments shall be made without the consent of the Client.
3.4 Time of Performance. The Services of BB&K shall be performed expeditiously in the time frames and as directed by the Client.
3.5 Assistance. The Client agrees to provide all information and documents necessary for the attorneys at BB&K to perform their obligations under this Agreement.
3.6 Independent Contractor. BB&K shall perform all legal services required under this Agreement as an independent contractor of the Client and shall remain, at all times as to the Client, a wholly independent contractor with only such obligations as are required under this Agreement.
Neither the Client, nor any of its employees, shall have any control over the manner, mode or means by which BB&K, its agents or employees, render the legal services required under this Agreement, except as otherwise set forth. The Client shall have no voice in the selection, discharge, supervision or control of BB&K’s employees, representatives or agents, or in fixing their number, compensation, or hours of service.
3.7 Fees and Costs. BB&K shall render and bill for legal services in the following categories and at rates set forth in Exhibit “A” and in accordance with the BB&K Billing Policies set forth in Exhibit “D”, both of which are attached hereto and incorporated herein by reference.
In addition, the Client shall reimburse BB&K for reasonable and necessary expenses incurred by it in the performance of the Services under this Agreement. Authorized reimbursable expenses shall include, but are not limited to, printing and copying expenses, mileage expenses at the rate allowed by the Internal Revenue Service, toll road expenses, long distance telephone and facsimile tolls, computerized research time (e.g. Lexis or Westlaw), research services performed by BB&K’s library staff, extraordinary mail or delivery costs (e.g. courier, overnight and express delivery), court fees and similar costs relating to the Services that are generally chargeable to a client.
However, no separate charge shall be made by BB&K for secretarial or word processing services.
3.8 Billing. BB&K shall submit monthly to the Client a detailed statement of account for Services. The Client shall review BB&K’s monthly statements and pay BB&K for Services rendered and costs incurred, as provided for in this Agreement, on a monthly basis.
3.9 Annual Reviews. The Client and BB&K agree that a review of performance and the compensation amounts referenced in this Agreement should occur at least annually.
3.10 Insurance. BB&K carries errors and omissions insurance with Lloyd’s of London.
After a standard deductible, this insurance provides coverage beyond what is required by the State of California. A declaration page containing information about BB&K’s errors and omissions insurance policy is available upon Client’s request.
3.11 Attorney-Client Privilege. Confidential communication between the Client and BB&K shall be covered by the attorney-client privilege. As used in this article, “confidential communication” means information transmitted between the Client and BB&K in the course of
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the relationship covered by this Agreement and in confidence by a means that, so far as the Client is aware, discloses the information to no third persons other than those who are present to further the interests of the Client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which BB&K is consulted, and includes any legal opinion formed and advice given by BB&K in the course of this relationship.
3.12 Termination of Agreement and Legal Services. This Agreement and the Services rendered under it may be terminated at any time upon thirty (30) days’ prior written notice from either party, with or without cause. In the event of such termination, BB&K shall be paid for all Services authorized by the Client and performed up through and including the effective date of termination. BB&K shall also be reimbursed for all costs associated with transitioning any files or other data or documents to a new law firm or returning them to the Client.
3.13 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.14 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Luis Obispo County.
3.15 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both parties.
3.16 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise.
3.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.18 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.19 Delivery of Notices. All notices permitted or required under this Agreement notices shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Client: City of Arroyo Grande
300 E. Branch Street
Arroyo Grande, CA 93420
Attention: Ms. Whitney McDonald
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BB&K: Best Best & Krieger LLP
300 S. Grand Ave., 25th Floor
Los Angeles, CA 90071
Attention: Isaac Rosen
3.20 Indemnification.
(A) BB&K agrees to indemnify City / Agency, its officers, employees and agents against, and will hold and save each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein “claims or liabilities”) that may be asserted or claimed by any person, firm or entity arising from the negligent acts or omissions of BB&K hereunder, or arising from BB&K’s negligent performance of any term, provision, covenant or condition of this Agreement, except to the extent such claims or liabilities arise from the negligence or willful misconduct of City, its officers, agents or employees.
(B) City acknowledges BB&K is being appointed as City Attorney pursuant to the authority of Government Code Section 36505, and has the authority of that office. Accordingly, the City is responsible pursuant to Government Code Section 825 for providing a defense for the City Attorney for actions within the scope of its engagement hereunder. Therefore, City agrees to undertake its statutory duty and indemnify BB&K, its officers, employees and agents against and will hold and save each of them harmless from, any and all claims or liabilities that may be asserted or claims by any person, firm or entity arising out of or in connection with the work, operations or activities of BB&K within the course and scope of its performance hereunder, but nothing herein shall require City to indemnify BB&K for liability arising from its own negligence or alleged negligence. In connection herewith:
(i) City will promptly provide a defense and pay any judgment rendered against the City, its officers, agency or employees for any such claims or liabilities arising out of or in connection with such work, operations or activities of City hereunder; and (ii) In the event BB&K, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against City for such damages or other claims solely arising out of or in connection with the work operation or activities of City hereunder, City agrees to pay to BB&K, its officers, agents or employees any and all costs and expenses incurred by attorney, its officers, agents or employees in such action or proceeding, including, but not limited to, legal costs and attorneys’ fees.
IN WITNESS WHEREOF, the Client and BB&K have executed this Agreement for City Attorney Legal Services as of the date first written above. (SIGNATURES CONTAINED ON FOLLOWING PAGE)
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SIGNATURE PAGE TO
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
BETWEEN
CITY OF ARROYO GRANDE
AND
BEST BEST & KRIEGER LLP
CITY OF ARROYO GRANDE:
By:
CAREN RAY RUSSOM
MAYOR
Date: April , 2023
ATTEST:
By:
JESSICA MATSON
CITY CLERK
Date: April___, 2023
BEST BEST & KRIEGER LLP:
By:
ISAAC ROSEN
OF COUNSEL
Date: April , 2023
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A-1
EXHIBIT A
TO
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
BETWEEN
CITY OF ARROYO GRANDE
BEST BEST & KRIEGER LLP
BILLING ARRANGEMENTS
1. Basic Legal Services - Description. Basic legal services shall include all services provided to Client that are not otherwise specifically identified below as either Special Legal Services, Third Party Reimbursable Legal Services, or Public Finance Legal Services (“Basic Legal Services”).
2. Basic Legal Services – Rates. The Client shall pay for Basic Legal Services at the following rates:
Attorneys $205
Paralegals, Law Clerks, Analysts $155
Other titles may be used in our legal services. Please refer to section 6 of this Exhibit for those other personnel titles and rates.
3. Special Legal Services - Description. Special Legal Services shall include the following types of services:
A. Litigation and formal administrative or other adjudicatory hearing matters B. Labor relations and employment matters
C. Non-routine real estate matters (e.g. CC&R’s, deed or title work) D. Land acquisition and disposal matters (including pre-condemnation) E. Successor Agency and housing matters
F. Taxes, fees and charges matters (e.g. Prop. 218 & Mitigation Fee Act) G. Public construction disputes
H. Non-routine contract negotiation matters (including non-BB&K model agreements and franchise agreements)
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A-2
I. Non-routine land use and development matters (including general plan updates, Williamson Act issues, annexations and development agreements) J. Environmental matters (e.g. CEQA, NEPA, endangered species) K. Water law matters
L. Tax and ERISA related matters
M. Toxic substances matters (e.g. CERCLA, RCRA)
N. Complex public utility matters (e.g. electric, natural gas, telecommunications, water, rail or transit that involve state or federal regulatory issues) O. Renewable energy and energy efficiency project contracts and power purchase agreements
P. Intergovernmental Relations and Advocacy efforts (e.g. legislative and regulatory representation) at the federal and state level.
Q. Non-routine election law matters, including election law litigation.
R. PRA Policy drafting including reviewing, assessing, and updating records-related policies to reflect current legal standards and best practices.
S. Other matters mutually agreed upon between BBK and the City Manager.
4. Special Legal Services – Rates. The Client shall pay for Special Legal Services at the following rates:
Attorneys $325
Paralegal, Law Clerks, Analysts $165
Other titles may be used in our legal services. Please refer to section 6 of this Exhibit for those other personnel titles and rates.
5. Agreement Regarding Rate Categories. If BB&K believes that a matter falls within the Special Legal Services, Third Party Reimbursable Legal Services, or Public Finance Legal Services rate categories, BB&K shall seek approval from the City Manager or his/her designee.
The City Manager’s or her designee’s approval of such a request from BB&K shall not be unreasonably withheld.
6. Other Billing Personnel. Additional billing personnel may be employed in the provision of legal services by BB&K. If, as, and when BB&K employs additional or different billing personnel, BB&K shall do so with prior written approval from the City Manager. The titles of other billing personnel include, but are not limited to the following:
Government Affairs/Advocacy
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A-3
Consultants
Administrative Assistants
(for docketing and audit letter responses)
If, as, and when BB&K employs additional or different billing personnel, this Agreement may be supplemented by written administrative memoranda, providing for the categories and billing rates for such personnel, which memoranda may be approved by the City Manager.
7. Annual Adjustments.
The above rates and retainer amounts will be adjusted annually using the cost of living index. At the start of the Client’s fiscal year, July 1, 2024, and every July thereafter during the term of this Agreement, rates and amounts shall be increased for the change in the cost of living for the most recently published twelve (12) month period, as shown by the U.S. Department of Labor in its All Urban Consumers Index set forth in the Los Angeles-Long Beach-Anaheim, CA, area provided, however, that such adjustment shall never be lower than zero percent (0%) nor more than four percent (4%). In addition to the automatic rate increases, either BB&K or the Client may initiate consideration of a rate increase at any time.
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B-1
EXHIBIT B
TO
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
BETWEEN
CITY OF ARROYO GRANDE
AND
BEST BEST & KRIEGER LLP
THIRD PARTY REIMBURSABLE BILLING POLICIES
1. Third Party Reimbursable Legal Services - Description. Third Party Reimbursable Legal Services shall include legal services provided to the City for which the City receives reimbursement from a developer or other third party. These reimbursable legal services include, but are not limited to, negotiation and review of development agreements, planning entitlements, review of CC&Rs; establishment of financing districts (i.e., Community Facilities Districts; Assessment Districts; Landscape and Lighting Maintenance Districts); the processing of land use/environmental projects for which the City is entitled to reimbursement, as well as defending any challenges to project entitlements or any dispute or litigation related to such reimbursable legal services.
2. Third Party Reimbursable Legal Services - Rates. The Client shall pay for Third Party Reimbursable Legal Services at BB&K’s then current published standard private client rates, minus ten percent (10%). Upon execution of this Agreement, BB&K shall provide a copy of its published rate schedule to the Client. BB&K shall also provide annual written updates to the Client when changes are made to the published rate schedule.
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C-1
EXHIBIT C
TO
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
BETWEEN
CITY OF ARROYO GRANDE
AND
BEST BEST & KRIEGER LLP
PUBLIC FINANCE & BOND BILLING POLICIES
1. Public Finance & Bond Rates. BB&K will provide bond counsel, special counsel or disclosure counsel services at the request of the Client. Such bond counsel and special counsel services include the preparation of all legislative approvals and legal documentation relating to the appropriate sale and delivery of the bonds, notes or other obligations. BB&K will also prepare such closing certificates and legal opinions necessary for the delivery of the bonds. As disclosure counsel, we will prepare the disclosure documents for the Client and conduct the necessary due diligence related to the transaction. Our fees will be determined based upon the type of financing and the expected involvement of the attorneys involved. We will provide the Client with a detailed description of our services and our fees and reimbursable costs upon the Client’s request.
Notwithstanding the foregoing, in those cases where the fees are reimbursable by a third party, at BB&K’s option it may proceed on an hourly basis and utilize the Third Party Reimbursable Legal Services category provided for in this Amendment, including with respect to services rendered for the formation of, or annexation to, a CFD (of either the City or other local public agency), as well as the negotiation and preparation of funding agreements and joint financing agreements. Legal services related to the Client’s compliance with its continuing disclosure covenants and provide such necessary advice on the Client’s compliance shall be billed as Special Legal Services, above.
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D-1
EXHIBIT D
TO
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
BETWEEN
CITY OF ARROYO GRANDE
AND
BEST BEST & KRIEGER LLP
BB&K BILLING POLICIES
Our century of experience has shown that the attorney-client relationship works best when there is mutual understanding about fees, expenses, billing and payment terms. Therefore, this statement is intended to explain our billing policies and procedures. Clients are encouraged to discuss with us any questions they have about these policies and procedures. Clients may direct specific questions about a bill to the attorney with whom the client works or to our Accounts Receivable Department ([email protected]). Any specific billing arrangements different from those set forth below will be confirmed in a separate written agreement between the client and the firm.
INVOICE AND PAYMENT OPTIONS
Best Best & Krieger strives to meet our clients’ needs in terms of providing a wide variety of invoice types, delivery and payment options. Please indicate those needs including the preferred method of invoice delivery (Invoice via Email; or USPS). In addition, [email protected] can provide a W-9 upon request and discuss various accepted payment methods.
FEES FOR ELECTRONICALLY STORED INFORMATION (“ESI”) SUPPORT AND
STORAGE
BBK provides Electronically Stored Information (“ESI”) services for matters requiring ESI support – typically litigation or threatened litigation matters. BBK provides services for basic ESI processing and storage at the following rates per month based on the number of gigabytes of data (“GB”) processed and stored:
1GB -250GB: $10 per GB
251GB - 550GB: $8 per GB
551GB - 750GB: $6 per GB
751GB - 1TB: $4 per GB
The amount BBK charges for basic processing and storage of ESI allows BBK to recover the costs of providing such services, plus a net profit for BBK. BBK believes that the rates it charges for processing and storage are lower than comparable services available from third party vendors in the market. If you wish to contract separately with a third party vendor for processing and storage costs, please notify BBK in writing. BBK also provides advanced ESI processing services at hourly rates for personnel in its Litigation Support Group. A copy of BBK’s current rates for such services will be provided upon request. BBK shall not incur costs for ESI support on a particular matter without first confirming by email or written correspondence with the client that the client agrees such services are necessary for the matter at hand.
65501.00001\41118060.2
D-2
FEES FOR PROFESSIONAL SERVICES
Unless a flat fee is set forth in our engagement letter with a client, our fees for the legal work we will undertake will be based in substantial part on time spent by personnel in our office on that client’s behalf. In special circumstances which will be discussed with the client and agreed upon in writing, fees will be based upon the novelty or difficulty of the matter, or the time or other special limitations imposed by the client.
Hourly rates are set to reflect the skill and experience of the attorney or other legal personnel rendering services on the client’s behalf. All legal services are billed in one-tenth of an hour (0.10/hour) or six-minute increments. Our attorneys are currently billed at rates from $235 to $895 per hour, and our administrative assistants, research assistants, municipal analysts, litigation analysts, paralegals, paraprofessionals and law clerks are billed at rates from $175 to $315 per hour for new work. These rates reflect the ranges in both our public and our private rates.
These hourly rates are reviewed annually to accommodate rising firm costs and to reflect changes in attorney status as lawyers attain new levels of legal experience. Any increases resulting from such reviews will be instituted automatically and will apply to each affected client, after advance notice.
Non-Attorney Personnel: BBK may employ the services of non-attorney personnel under the supervision of a BBK attorney in order to perform services called for in the legal services agreement. The most common non-attorney personnel utilized are paralegals. Other types of nonattorney personnel include, but are not limited to, case clerks, litigation analysts, and specialty consultants. The client agrees that BBK may use such non-attorney personnel to perform its services when it is reasonably necessary in the judgment of the responsible BBK attorney. Hourly fees for non-attorney personnel will be charged at the rate then in effect for such personnel. A copy of BBK’s current rates and titles for non-attorney personnel will be provided upon request.
FEES FOR OTHER SERVICES, COSTS AND EXPENSES
We attempt to serve all our clients with the most effective support systems available.
Therefore, in addition to fees for professional legal services, we also charge separately for some other services and expenses to the extent of their use by individual clients. These charges include but are not limited to, mileage at the current IRS approved rate per mile, extraordinary telephone and document delivery charges, copying charges, computerized research, court filing fees and other court-related expenditures including court reporter and transcription fees. No separate charge is made for secretarial or word processing services; those costs are included within the above hourly rates.
We may need to advance costs and incur expenses on your behalf on an ongoing basis.
These items are separate and apart from attorneys’ fees and, as they are out-of-pocket charges, we need to have sufficient funds on hand from you to pay them when due. We will advise the client from time to time when we expect items of significant cost to be incurred, and it is required that the client send us advances to cover those costs before they are due.
ADVANCE DEPOSIT TOWARD FEES AND COSTS
Because new client matters involve both a substantial undertaking by our firm and the establishment of client credit with our accounting office, we require an advance payment from clients. The amount of this advance deposit is determined on a case-by-case basis discussed first with the client, and is specified in our engagement letter.
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Upon receipt, the advance deposit will be deposited into the firm’s client trust account.
Our monthly billings will reflect such applications of the advance deposit to costs and not to attorney’s fees (unless otherwise noted in our accompanying engagement letter). At the end of engagement, we will apply any remaining balance first to costs and then to fees. We also reserve the right to require increases or renewals of these advanced deposits.
By signing the initial engagement letter, each client is agreeing that trust account balances may be withdrawn and applied to costs as they are incurred and to our billings, when we issue our invoice to the client. If we succeed in resolving your matter before the amounts deposited are used, any balance will be promptly refunded.
MONTHLY INVOICES AND PAYMENT
Best Best & Krieger LLP provides our clients with monthly invoices for legal services performed and expenses incurred. Invoices are due and payable upon receipt.
Each monthly invoice reflects both professional and other fees for services rendered through the end of the prior month, as well as expenses incurred on the client’s behalf that have been processed by the end of the prior month. Processing of some expenses is delayed until the next month and billed thereafter.
Our fees are not contingent upon any aspect of the matter and are due upon receipt. All billings are due and payable within ten days of presentation unless the full amount is covered by the balance of an advance held in our trust account.
It is our policy to treat every question about a bill promptly and fairly. It is also our policy that if a client does not pay an invoice within 60 days of mailing, we assume the client is, for whatever reason, refusing to pay. We reserve the right to terminate our engagement and withdraw as attorney of record whenever our invoices are not paid. If an invoice is 60 days late, however, we may advise the client by letter that the client must pay the invoice within 14 days or the firm will take appropriate steps to withdraw as attorney of record. If the delay is caused by a problem in the invoice, we must rely upon the client to raise that with us during the 14-day period. This same policy applies to fee arrangements which require the client to replenish fee deposits or make deposits for anticipated costs.
From time to time clients have questions about the format of the bill or description of work performed. If you have any such questions, please ask them when you receive the bill so we may address them on a current basis.
CHANGES IN FEE ARRANGEMENTS AND BUDGETS
It may be necessary under certain circumstances for a client to increase the size of required advances for fees after the commencement of our engagement and depending upon the scope of the work. For example, prior to a protracted trial or hearing, the firm may require a further advance payment to the firm’s trust account sufficient to cover expected fees. Any such changes in fee arrangements will be discussed with the client and mutually agreed in writing.
Because of the uncertainties involved, any estimates of anticipated fees that we provide at the request of a client for budgeting purposes, or otherwise, can only be an approximation of potential fees.
BEST BEST & KRIEGER LLP
REQUEST FOR PROPOSAL
FOR
CITY ATTORNEY SERVICES
DEADLINE FOR PROPOSALS: February 6, 2023
Attachment 2
City of Arroyo Grande
RFP: City Attorney Services
Contents
GENERAL INFORMATION.......................................................................................................................... 2 Schedule of Proposal activities (ALL TIMES PACIFIC)................................................................................2 DISCRETION AND LIABILITY WAIVER...................................................................................................... 3 OUTLINE OF SERVICES TO BE PROVIDED............................................................................................. 4 FORMAT OF PROPOSAL............................................................................................................................5 EVALUATION OF PROPOSALS..................................................................................................................8 FINAL COMMENTS......................................................................................................................................8 ATTACHMENT A - SAMPLE CITY CONTRACT..........................................................................................9
City of Arroyo Grande
RFP: City Attorney Services
GENERAL INFORMATION
The City of Arroyo Grande is located on California’s central coast, approximately half way between Los Angeles and San Francisco, and has a population of approximately 18,441. The City is a General Law city, operating under the City Council/City Manager form of government.
Arroyo Grande is a full-service city, with police, streets, engineering, planning, building, parks, recreation, water, and sewer services. Fire services are provided through the Five Cities Fire Authority, a joint powers authority established between the City of Arroyo Grande, the City of Grover Beach, and the Oceano Community Services District.
The City Attorney is appointed by and serves at the will and pleasure of the City Council. The City
Manager, who is also appointed by the City Council, is responsible for the day-to-day operations, as well as establishing and maintaining effective operations.
The City’s budget for FY 2022-23 is $48.3 million, of which $23.3 million represents the City’s General Fund. Actual expenditures for legal services, including special legal services, for FY 2020-21 was $250,625 and for FY 2021-22 was $262,145. The City’s FY 2022-23 Annual Budget includes an appropriation of $290,000 for legal services. The City is represented in water law and labor matters, as well as tort defense, by special counsel.
The City of Arroyo Grande is requesting interested full-service law firms with experience advising and representing California municipalities to submit proposals to provide legal services to the City of Arroyo Grande. An individual from the firm will be designated as the City Attorney, with other firm attorneys to be available as appropriate. The firm must possess a broad knowledge of municipal law, including open meetings laws, contracts, planning and land use, real estate, revenue laws, the Public Records Act, and code enforcement. Familiarity with labor law, state and federal court practice, tort defense, workers’ compensation, and water law is also expected, although the City retains the right to continue retaining specialized counsel.
The City will select and negotiate with the qualified firm(s) whose competitive proposals are responsive to this RFP and are in the best interest of the City. Any competitive proposal submitted in response to this RFP must provide sufficient detail and information to complete an evaluation of its merits. The instructions contained herein must be followed in order for competitive proposals to be considered responsive to this RFP. The City reserves the right to reject any, or all proposals.
Schedule of Proposal activities (ALL TIMES PACIFIC)
Schedule
Distribution of RFP January 3, 2023
Deadline for submission of questions to be
addressed at the Pre-Proposal Zoom meeting
January 20, 2023
Optional Pre-Proposal Zoom meeting January 23, 2023 1:00 pm Proposal submission February 6, 2023 5:00 pm
Proposal review February 7 – February 17, 2023
Notification to all proposers By February 22, 2023
Oral presentations, as needed Week of February 27, 2023 Contract approval by City Council March 28, 2023
Services to commence By April 1, 2023
City of Arroyo Grande
RFP: City Attorney Services
The City has made every effort to include sufficient information within this Request for Proposal for a firm to prepare a responsive, comprehensive proposal. In order to achieve an equitable dissemination of information, a pre-proposal zoom meeting will be held to allow all interested firms/consultants to ask questions for the mutual benefit of all involved. The timing of the proposal process is subject to change, depending on the needs of the City, but is anticipated as follows:
a) Distribution of Request for Proposals: January 3, 2023 b) Optional Pre-proposal Zoom meeting: City staff will meet collectively with firm/ representatives seeking additional information about the proposal process and the RFP. All firms interested in submitting a proposal are encouraged to attend the pre-proposal teleconference. The Zoom is scheduled for January 23, 2023, beginning at 1:00 pm (PST).
Zoom log in information can be obtained by contacting Aleah Bergam at [email protected] no later than January 22, 2023. Additionally, any questions to be addressed at the zoom meeting should be submitted via email to Aleah Bergam at [email protected] no later than January 20, 2023. c) Proposal Submission: Proposals must be clearly marked and delivered directly to the City Manager’s Office no later than 5:00 pm, February 6, 2023. Late submissions after the deadline will not be accepted. A total of one (1) hard copy and an electronic version of the identical proposal must be submitted and labeled as follows:
City of Arroyo Grande
Attention: Whitney McDonald, City Manager
City Attorney Services RFP
300 East Branch Street
Arroyo Grande, CA 93420
For the electronic submission, email Aleah Bergam at [email protected] no later than February 1, 2023 to receive a Dropbox invitation for the electronic proposal upload. d) Proposal Review: A review committee will evaluate each proposal submitted. It is anticipated that the review process will be completed by February 17, 2023. e) Notification to all proposers: We anticipate sending written notification to all firms regarding the outcome of the review and contract award process by February 22, 2023. f) Oral Presentations, as needed: During the notification to all proposers, finalists will be notified to schedule an oral interview during the week of February 27-March 3, 2023. Oral Interviews will take place either in person or via Zoom. g) Notification to finalists: All finalists will be notified of final decision by March 28, 2023.
Upon written request, we will provide a copy of the successful proposal once the contract is executed.
DISCRETION AND LIABILITY WAIVER
The City reserves the right to exercise discretion, and apply its judgment with respect to all proposals submitted.
City of Arroyo Grande
RFP: City Attorney Services
The City reserves the right to reject all proposals, either in part or in its entirety, or to request and obtain, from one or more of the consulting firms submitting proposals, supplementary information as may be necessary for City staff to analyze the proposals.
The consultant, by submitting a response to this RFP, waives all right to protest or seek any legal remedies whatsoever regarding any aspect of this RFP. Although, it is the City’s intent to choose only a small number of most qualified legal teams to interview with the City, the City reserves the right to choose any number of qualified finalists.
This RFP does not commit the City to award a contract, to defray any costs incurred in the preparation of a proposal pursuant to this RFP, or to procure or contract for work.
All proposals submitted in response to this RFP become the property of the City and public records and, as such, may be subject to public review. The City reserves the right to cancel, in part or in its entirety, this RFP including, but not limited to: selection procedures, submittal date, and submittal requirements. If the City cancels or revises the RFP, all interested firms will be notified using email.
OUTLINE OF SERVICES TO BE PROVIDED
Basic Services
Basic services, for the purpose of this proposal, shall include those legal services generally understood within the field of municipal law to fall within the category of “general counsel” work, and shall include, but not necessarily limited to, the following:
1. Routine legal advice, telephone, and personal consultations with the City Council, City Manager, and department heads, or authorized representatives.
2. Assistance in the preparation and review of ordinances, resolutions, agreements, contracts, forms, notices, certificates, deeds, and other documents required by the City.
3. Attendance at all City Council regular and special meetings, study sessions, and closed sessions. Regular City Council meetings are held on the second and fourth Tuesday of each month, beginning at 6:00 p.m. and may be preceded by a closed session typically beginning at 5:00 p.m.
4. Serve as legal counsel to the Successor Agency and other such bodies as may be created and represented by or for the City Council, and which meet regularly or periodically or on an as-needed basis.
5. Attendance at Planning Commission regular meetings, special meetings, and study sessions, as needed. The Planning Commission meets the first and third Tuesday of each month, beginning at 6:00 p.m.
6. Attendance at all other board, commission, and committee meetings upon request.
7. Attendance at weekly executive staff meetings, and other meetings with City staff upon request.
8. Legal advice and opinions concerning legal matters that affect the City.
9. Guidance on City personnel matters, including employee disciplinary and grievance matters.
10. Legal work pertaining to property acquisitions, property disposals, public improvements, easement dedications, and right-of-way abandonments.
11. Legal advice and opinions concerning municipal revenue issues, including Proposition 218, Mitigation Fee Act, and general and special tax matters.
12. Enforcement of City codes, zoning regulations, and building standards through administrative and judicial actions.
City of Arroyo Grande
RFP: City Attorney Services
13. Monitoring of pending and current state and federal legislation and court decisions, as appropriate.
14. Perform City prosecutor functions on the Arroyo Grande Municipal Code violations and code enforcement operations.
15. Coordination, monitoring, and reporting of outside legal counsel work, as needed, and as directed by the City Council and City Manager.
16. Provide established regular office hours at City Hall, preferably once a week for approximately three (3) hours.
Special Services
The law firm selected by the City will also be required to furnish special legal services on an “asneeded” basis when directed by the City Manager. The City retains the right to use the services of separate legal counsel for special services as it has historically, including water law and labor counsel.
Special services may include, but are not limited to: research, preparation and follow-through on various matters including public financing, public contracts and construction, law enforcement, including Pitchess motions, and matters involving litigation affecting the City, such as California Environmental Quality Act litigation. This may also include collection of performance bonds on construction contracts and pursuing litigation to collect damages due to the City. Additionally, this may include litigation related to general liability and land use decisions.
FORMAT OF PROPOSAL
Transmittal Letter: The letter should provide a summary of the proposal, concisely describing the services provided. The letter should be addressed to Whitney McDonald.
Firm Profile: Please respond to the following questions:
1) Please describe your firm’s qualifications for providing City legal services. Include in your Response:
a) The overall capabilities, qualifications, training, and areas of expertise for each of the partners/principals and associates that may be assigned to work with the City, including but not limited to:
i) Name of individual(s) with resumes;
ii) Length of employment with firm;
iii) Specialization;
iv) Legal training;
v) Scholastic honors and professional affiliations;
vi) Date of admittance to California Bar;
vii) Years of practice;
viii)Municipal or other local public sector experience; ix) Knowledge of, and experience with California Municipal Law; x) Years and statement of other types of clientele represented; xi) Litigation experience and track record;
xii) Knowledge and practice of law relating to land use and planning, California Environmental Quality Act (CEQA), National Environmental Protection Act (NEPA), general plans, real estate, environmental issues, hazardous waste, and other related law;
xiii)Experience in the area of personnel, workers’ compensation, general liability, and employee relations;
xiv)Experience in the area of contracts and franchises;
City of Arroyo Grande
RFP: City Attorney Services
xv) Experience in the area of municipal revenue generation, including Proposition 218, Mitigation Fee Act, and tax mechanisms;
xvi)Experience in the preparation and review of ordinances and resolutions; xvii) Experience in the area of the Public Records Act, the Brown Act, Political Reform Act and the Elections Code; and
xviii) If the firm, or any of the attorneys employed by the firm, have ever been successfully sued for malpractice, been the subject of complaints filed with the State Bar, or had discipline imposed by the State Bar, please provide information on the nature of the incident, the dates on which the matter began and was concluded, and the results of the situation.
b) Specify the individual that you propose for appointment as City Attorney and reasons for recommendation.
c) Specify the individual(s), if any, that you would propose as Assistant or Deputy City Attorney, and/or who would be designated as competent, substitute/backup legal representation for the City in the event of the absence or unavailability of the City Attorney.
d) Describe how you would structure the working relationship between the City Attorney and the City Council, City Manager, Department Heads, and other members of staff. e) Specify intended office location and accessibility to the City’s needs, including proposal for hours and day(s) of week for regular established office hours at City Hall. f) Describe systems/mechanisms that would be established to ensure timeliness of response to City Council and City Staff.
g) Define the standard time frames for response by the City Attorney to direction and/or inquiry from the City Council/City Manager.
h) Describe systems/mechanisms that would be established for monthly reporting of status of projects, requests, and litigation.
i) Describe the process for transmittal of requests and other material to City Attorney. j) Describe the staffing of your office. Include any changes you would propose, now or in the future, should you be awarded a contract to provide legal services to the City. k) Describe your preference for method of payment and your procedure for billing of work and expenses and any other accounting requirements.
l) It is anticipated that the City will contractually require monthly-itemized statements for all services and will subject these statements to audit at least annually. Describe how you would provide for this reporting.
m) Describe the computer resources currently utilized within your office. It will be a requirement that the City Attorney utilize Microsoft Word for word-processing for all documents.
n) The City will require the firm with which a contract is established, prior to commencement of work, to provide evidence of appropriate professional liability insurance, errors and omissions insurance, and workers compensation insurance coverage as needed. Describe how you would provide same and in what coverage amounts. Such coverage must be provided by an insurance company(ies) authorized to do business in the State of California. Certificates must name the City as an Additional Insured and shall provide that contractor's policy is primary over any insurance carried by the City and that the policy will not be cancelled or materially changed without thirty (30) days prior notice in writing to the City. The successful firm must agree, if awarded a contract as a result of its proposal, to indemnify and hold harmless the City, its officers, agents, and employees from any and all claims and losses accruing or resulting to persons engaged in the work contemplated by its proposal, or to persons who may be injured or damaged by the firm, or its agents in the performance of the work. Prior to commencement of any work, these and other provisions will be established contractually.
City of Arroyo Grande
RFP: City Attorney Services
2) Additionally, please describe your firm’s qualifications and individual(s), if any, which you would propose to provide the following special legal services:
a) Code enforcement, including prosecution of Municipal Code citations; b) Labor and employment, including disability law rights and obligations, workers’ compensation, employee relations and negotiations and employee discrimination claims; c) Public financing;
d) Public contracts and construction.
3) Specify the individual(s), if any, that you would propose as serving as a police liability/litigation specialist. This will include Pitchess motions. Please describe your range of experience in these matters.
Current Practices/Conflict of Interest
1. Please list any political contributions of money, in-kind services, or loans made to any member of a City Council within the last three years by the applicant law firm and all of its attorneys (including the attorney being proposed to represent the City of Arroyo Grande).
2. Please list all public clients for which you or your firm currently provide services, or are under retainer.
3. Please list all public clients for which you or your firm previously provided services for over the last five years.
4. Please list all current or former clients residing in, having an interest in a business, or owning an interest in property within the City of Arroyo Grande within the past three years.
5. For the firm, and/or the proposed City Attorney, please specify current or known future professional commitments so the City may evaluate your continuing availability for providing legal services to the City.
Additional Information: Describe any other information not previously mentioned that the consultant believes should be given consideration. This could include any additional tasks not included in the Required Services section above.
References: Please provide three (3) professional and three (3) personal references for the individual recommended for appointment as the City Attorney. Include with each, the name, address, and work telephone number of the reference.
Pricing: Provide a fee schedule for providing legal services within the scope of work as outlined in the proposal and beyond. The fee schedule should include the following:
i. The proposed hourly rate for Basic Services, which, for the purpose of this proposal, shall include those legal services generally understood within the field of municipal law to fall within the category of “general counsel” work as described in the Basic Services section above.
ii. The proposed hourly rates for Special Services, which, for the purpose of this proposal, shall include those legal services generally understood within the field of municipal law to fall within the category of special municipal services, also described above under the Special Services section.
iii. Type and unit rates for reimbursement of expenses; for example, rate for mileage, reproduction of documents or word processing charges.
Addenda
The City may modify, clarify or interpret the Request for Proposals by sending an addendum to each Firm/Individual(s) that has been issued a proposal package. Any such addendum shall become a part of the package and of any contract awarded. The City is not responsible for any other explanation or interpretation.
City of Arroyo Grande
RFP: City Attorney Services
EVALUATION OF PROPOSALS
Proposals will be evaluated based on the following criteria:
1. Depth and breadth of experience and expertise in the practice of law, most specifically in those areas most often encountered in municipal government operations;
2. Capability to perform legal services promptly and in a manner that permits the City Council and staff to meet established deadlines and to operate in an effective and efficient manner;
3. Degree of availability for quick response to inquiries that arise out of day-to-day operating questions or problems;
4. Degree to which firm and individual attorneys stay current through continued professional development and active communication with practitioners in the municipal law field;
5. Communication skills;
6. Cost of services; and
7. Other qualifications/criteria as deemed appropriate by the City Council.
Proposals will be screened and ranked by the City staff and/or City Council Subcommittee.
During the evaluation process, the City reserves the right, where it may serve the City’s best interest, to request additional information or clarification from proposing firms, or to allow corrections of errors or omissions. References and qualifications of the top firms will be verified.
The City Council will conduct interviews of the top candidates and make the final selection.
The successful Proposer will be required to enter into a Consultant Services Agreement with the City of Arroyo Grande. Please provide a proposed form of agreement for the services. For reference, the City’s currently used Consultant Services Agreement (Attachment A) is included with this RFP. The contract will require that the law firm selected as City Attorney maintain general liability, automobile, workers’ compensation and errors and omissions insurance. The contract will also contain provisions requiring the selected law firm to indemnify the City and providing that the City Attorney is an independent contractor serving at the will and pleasure of the City Council. Provisions will also be included in the contract allowing the City Council to terminate the agreement, at its sole and entire discretion, upon the provision of notice.
FINAL COMMENTS
The City reserves the right to reject any and all proposals, cancel all or part of this RFP, waive any minor irregularities and to request additional information from proposing firms. By requesting proposals, the City is in no way obligated to award a contract or pay expenses of the proposing consultant in connection with the preparation or submission of a proposal.
The City’s decision to award a contract will be based many factors including but not limited to service, cost, experience, and quality. No single factor, such as cost, will determine the final decision to award.
The City of Arroyo Grande appreciates the efforts all the consultants have put forth in responding to the Request for Proposal.
City of Arroyo Grande
RFP: City Attorney Services
ATTACHMENT A - SAMPLE CITY CONTRACT
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT FOR CONSULTANT SERVICES (“Agreement”), is made and effective as of _________________ 2023, between ____________________ (“Consultant”), and the CITY OF ARROYO GRANDE, a Municipal Corporation (“City”).
In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:
1. TERM
This Agreement shall commence on ____________________, 2023 and shall remain and continue in effect until ____________________________, 2023, unless sooner terminated pursuant to the provisions of this Agreement.
2. SERVICES
Consultant shall perform the tasks described and comply with all terms and provisions set forth in Exhibit “A”, attached hereto and incorporated herein by this reference.
3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of his/her ability, experience and talent, perform all tasks described herein. Consultant shall employ, at a minimum generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder in meeting its obligations under this Agreement.
4. AGREEMENT ADMINISTRATION
City’s ____________________ shall represent City in all matters pertaining to the administration of this Agreement. ____________________shall represent Consultant in all matters pertaining to the administration of this Agreement.
5. PAYMENT
The City agrees to pay the Consultant in accordance with the payment rates and terms set forth in Exhibit “B”, attached hereto and incorporated herein by this reference.
6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE (a) The City may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the Consultant at
City of Arroyo Grande
RFP: City Attorney Services
least ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise.
If the City suspends or terminates a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement. (b) In the event this Agreement is terminated pursuant to this Section, the City shall pay to Consultant the actual value of the work performed up to the time of termination, provided that the work performed is of value to the City. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the City pursuant to Section 5.
7. TERMINATION ON OCCURRENCE OF STATED EVENTS
This Agreement shall terminate automatically on the occurrence of any of the following events:
(a) Bankruptcy or insolvency of any party;
(b) Sale of Consultant’s business; or
(c) Assignment of this Agreement by Consultant without the consent of City. (d) End of the Agreement term specified in Section 1.
8. DEFAULT OF CONSULTANT
(a) The Consultant’s failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Consultant. If such failure by the Consultant to make progress in the performance of work hereunder arises out of causes beyond the Consultant’s control, and without fault or negligence of the Consultant, it shall not be considered a default.
(b) If the City Manager or his/her delegate determines that the Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall cause to be served upon the Consultant a written notice of the default. The Consultant shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
9. LAWS TO BE OBSERVED. Consultant shall:
(a) Procure all permits and licenses, pay all charges and fees, and give all notices which may be necessary and incidental to the due and lawful prosecution of the services to be performed by Consultant under this Agreement;
City of Arroyo Grande
RFP: City Attorney Services
(b) Keep itself fully informed of all existing and proposed federal, state and local laws, ordinances, regulations, orders, and decrees which may affect those engaged or employed under this Agreement, any materials used in Consultant’s performance under this Agreement, or the conduct of the services under this Agreement;
(c) At all times observe and comply with, and cause all of its employees to observe and comply with all of said laws, ordinances, regulations, orders, and decrees mentioned above;
(d) Immediately report to the City’s Contract Manager in writing any discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders, and decrees mentioned above in relation to any plans, drawings, specifications, or provisions of this Agreement.
(e) The City, and its officers, agents and employees, shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this Section.
10. OWNERSHIP OF DOCUMENTS
(a) Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by City that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to the representatives of City or its designees at reasonable times to such books and records; shall give City the right to examine and audit said books and records; shall permit City to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. (b) Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the City and may be used, reused, or otherwise disposed of by the City without the permission of the Consultant. With respect to computer files, Consultant shall make available to the City, at the Consultant’s office and upon reasonable written request by the City, the necessary computer software and hardware for purposes of accessing, compiling, transferring, and printing computer files.
11. INDEMNIFICATION
City of Arroyo Grande
RFP: City Attorney Services
(a) Indemnification for Professional Liability. When the law establishes a professional standard of care for Consultant’s Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all losses, liabilities, damages, costs and expenses, including attorney’s fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subContractors or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this agreement. (b) Indemnification for Other Than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorneys fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subContractors of Consultant.
(c) General Indemnification Provisions. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subContractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this agreement. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this agreement or this section.
12. INSURANCE
Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit “C” attached hereto and incorporated herein as though set forth in full.
13. INDEPENDENT CONSULTANT
(a) Consultant is and shall at all times remain as to the City a wholly independent Consultant. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant’s officers, employees, or agents, except
City of Arroyo Grande
RFP: City Attorney Services
as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. (b) No employee benefits shall be available to Consultant in connection with performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder.
14. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure was or is used against or in concert with any officer or employee of the City of Arroyo Grande in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of the City of Arroyo Grande will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling the City to any and all remedies at law or in equity.
15. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the project during his/her tenure or for one year thereafter, shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in connection with the project performed under this Agreement.
16. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
(a) All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without City’s prior written authorization. Consultant, its officers, employees, agents, or subContractors, shall not without written authorization from the City Manager or unless requested by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena.
City of Arroyo Grande
RFP: City Attorney Services
(b) Consultant shall promptly notify City should Consultant, its officers, employees, agents, or subContractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the City. City retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by Consultant.
However, City’s right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
17. NOTICES
Any notice which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice:
To City: City of Arroyo Grande
City Manager
300 E. Branch Street
Arroyo Grande, CA 93420
To Consultant: _____________________________
_____________________________
_____________________________
_____________________________
18. ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part thereof, without the prior written consent of the City.
19. GOVERNING LAW
The City and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the superior or federal district court with jurisdiction over the City of Arroyo Grande.
City of Arroyo Grande
RFP: City Attorney Services
20. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party’s own independent investigation of any and all facts such party deems material.
21. TIME
City and Consultant agree that time is of the essence in this Agreement.
22. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL
Consultant is bound by the contents of the City’s Request for Proposal, Exhibit “D”, attached hereto and incorporated herein by this reference, and the contents of the proposal submitted by the Consultant, Exhibit “E”, attached hereto and incorporated herein by this reference. In the event of conflict, the requirements of City’s Request for Proposals and this Agreement shall take precedence over those contained in the Consultant’s proposals.
23. CONSTRUCTION
The parties agree that each has had an opportunity to have their counsel review this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement or any amendments or exhibits thereto. The captions of the sections are for convenience and reference only, and are not intended to be construed to define or limit the provisions to which they relate.
24. AMENDMENTS
Amendments to this Agreement shall be in writing and shall be made only with the mutual written consent of all of the parties to this Agreement.
25. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder.
City of Arroyo Grande
RFP: City Attorney Services
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.
CITY OF ARROYO GRANDE CONSULTANT
By:__________________________ By:____________________________ Caren Ray Russom, Mayor
Its:____________________________
Attest: (Title)
_____________________________
Jessica Matson, City Clerk
Approved As To Form:
_____________________________
Timothy J. Carmel, City Attorney
City of Arroyo Grande
RFP: City Attorney Services
EXHIBIT A
SCOPE OF WORK
City of Arroyo Grande
RFP: City Attorney Services
EXHIBIT B
PAYMENT SCHEDULE
City of Arroyo Grande
RFP: City Attorney Services
EXHIBIT C
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, Consultant will maintain insurance in conformance with the requirements set forth below. Consultant will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, Consultant agrees to amend, supplement or endorse the existing coverage to do so. Consultant acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to City in excess of the limits and coverage required in this agreement and which is applicable to a given loss, will be available to City.
Consultant shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office “Commercial General Liability” policy from CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits are subject to review but in no event less than $1,000,000 per occurrence.
Business Auto Coverage on ISO Business Auto Coverage from CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement may be satisfied by a non-owned auto endorsement to the general liability policy described above. If Consultant or Consultant’s employees will use personal autos in any way on this project, Consultant shall provide evidence of personal auto liability coverage for each such person.
Workers Compensation on a state-approved policy form providing statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident or disease.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements, shall provide coverage at least as broad as specified for the underlying coverages. Any such coverage provided under an umbrella liability policy shall include a drop down provision providing primary coverage above a maximum $25,000 selfinsured retention for liability not covered by primary but covered by the umbrella.
Coverage shall be provided on a “pay on behalf” basis, with defense costs payable in addition to policy limits. Policy shall contain a provision obligating insurer at the time insured’s liability is determined, not requiring actual payment by the insured first. There shall be no cross liability exclusion precluding coverage for claims or suits by one
City of Arroyo Grande
RFP: City Attorney Services
insured against another. Coverage shall be applicable to City for injury to employees of Consultant, subContractors or others involved in the Work. The scope of coverage provided is subject to approval of City following receipt of proof of insurance as required herein. Limits are subject to review but in no event less than $_____________ per occurrence.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designated to protect against acts, errors or omissions of the Consultant and “Covered Professional Services” as designated in the policy must specifically include work performed under this agreement. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer’s duty to defend. The policy retroactive date shall be on or before the effective date of this agreement.
Insurance procured pursuant to these requirements shall be written by insurer that are admitted carriers in the state California and with an A.M. Bests rating of A- or better and a minimum financial size VII.
General conditions pertaining to provision of insurance coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability coverage required herein to include as additional insureds City, its officials employees and agents, using standard ISO endorsement No. CG 2010 with an edition prior to 1992. Consultant also agrees to require all Consultants, and subContractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall prohibit Consultant, or Consultant’s employees, or agents, from waiving the right of subrogation prior to a loss. Consultant agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all Consultants and subContractors to do likewise.
3. All insurance coverage and limits provided by Consultant and available or applicable to this agreement are intended to apply to the full extent of the policies.
Nothing contained in this Agreement or any other agreement relating to the City or its operations limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.
City of Arroyo Grande
RFP: City Attorney Services
5. No liability policy shall contain any provision or definition that would serve to eliminate so-called “third party action over” claims, including any exclusion for bodily injury to an employee of the insured or of any Consultant or subcontractor.
6. All coverage types and limits required are subject to approval, modification and additional requirements by the City, as the need arises. Consultant shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect City’s protection without City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Consultant’s general liability policy, shall be delivered to City at or prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, City has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests under this or any other agreement and to pay the premium. Any premium so paid by City shall be charged to and promptly paid by Consultant or deducted from sums due Consultant, at City option.
8. Certificate(s) are to reflect that the insurer will provide 30 days notice to City of any cancellation of coverage. Consultant agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will “endeavor” (as opposed to being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance coverage required to be provided by Consultant or any subContractor, is intended to apply first and on a primary, noncontributing basis in relation to any other insurance or self insurance available to City.
10. Consultant agrees to ensure that subContractors, and any other party involved with the project who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subContractors and others engaged in the project will be submitted to City for review.
11. Consultant agrees not to self-insure or to use any self-insured retentions or deductibles on any portion of the insurance required herein and further agrees that it will not allow any Consultant, subContractor, Architect, Engineer or other entity or person in any way involved in the performance of work on the project contemplated by this agreement to self-insure its obligations to City. If Consultant’s existing coverage includes a deductible or self-insured retention, the deductible or self-insured retention must be declared to the City. At the time the City shall review options with the
City of Arroyo Grande
RFP: City Attorney Services
Consultant, which may include reduction or elimination of the deductible or self-insured retention, substitution of other coverage, or other solutions.
12. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City will negotiate additional compensation proportional to the increase benefit to City.
13. For purposes of applying insurance coverage only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any insurance requirements in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard.
15. Consultant will renew the required coverage annually as long as City, or its employees or agents face an exposure from operations of any type pursuant to this agreement. This obligation applies whether or not the agreement is canceled or terminated for any reason. Termination of this obligation is not effective until City executes a written statement to that effect.
16. Consultant shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Consultant’s insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages.
17. The provisions of any workers’ compensation or similar act will not limit the obligations of Consultant under this agreement. Consultant expressly agrees not to use any statutory immunity defenses under such laws with respect to City, its employees, officials and agents.
18. Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive.
City of Arroyo Grande
RFP: City Attorney Services
19. These insurance requirements are intended to be separate and distinct from any other provision in this agreement and are intended by the parties here to be interpreted as such.
20. The requirements in this Section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impairs the provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Consultant for the cost of additional insurance coverage required by this agreement.
Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
22. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the work performed under this agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City.
Item 9.g.
MEMORANDUM
TO: City Council
FROM: Whitney McDonald, City Manager
BY: Isaac Rosen, Interim City Attorney
SUBJECT: Consider Opting into Settlement Agreements with Distributors of Opioids; Walgreens Co., Walmart Inc., CVS Health Corporation/CVS Pharmacy Inc., and Opioid Manufacturers Teva Pharmaceuticals Industries LTD and Allergan Finance LLC/Allergan Limited DATE: April 11, 2023
SUMMARY OF ACTION:
Consideration of opting into settlement agreements with distributors of opioids and opioid manufacturers to provide funding to the City to support opioid-related issues within the City.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
California is to receive approximately $1.8 billion from the settlements and is required to distribute these funds pursuant to intrastate allocation agreements for the new settlements. The City of Arroyo Grande has been allocated 0.024% of the 70% of the approximate $1,800,000,000. The City can opt into these five settlements and potentially receive up to $302,400 in direct funding. This amount will be disbursed over a period of 15 years, with payments decreasing as each settlement finishes paying out. The first payments are scheduled to occur in the latter half of 2023.
RECOMMENDATION:
1) Opt into settlement agreement with opioid distributor, Walgreens Co., and direct the City Manager to execute any documents necessary to implement the action; 2) Opt into settlement agreement with opioid distributor, Walmart, Inc. and direct the City Manager to execute any documents necessary to implement the action; 3) Opt into settlement agreement with opioid distributor, CVS Health Corporation/CVS Pharmacy, Inc. and direct the City Manager to execute any documents necessary to implement the action; 4) Opt into settlement agreement with opioid manufacturer, Teva Pharmaceutical Industries Ltd., and direct the City Manager to execute any documents necessary to implement the action; 5) Opt into settlement agreement with opioid manufacturer, Allergan Finance, LLC/Allergan Limited and direct the City Manager to execute any documents necessary
Item 9.g.
City Council
Consider Opting into Settlement Agreements with Distributors of Opioids; Walgreens Co., Walmart Inc., CVS Health Corporation/CVS Pharmacy Inc., and Opioid Manufacturers Teva Pharmaceuticals Industries LTD and Allergan Finance LLC/Allergan Limited
April 11, 2023
to implement the action; and 6) Make findings that adopting the Resolution opting-into the settlement agreements is not a project subject to the California Environmental Quality Act (“CEQA”) because the adoption in itself has no potential to result in either a direct, or reasonably foreseeable indirect, physical change in the environment. (State CEQA Guidelines, §§ 15060, subd. (b)(2)-(3), 15378.)
BACKGROUND:
Last year, litigation brought by states and cities across the United States against the three largest pharmaceutical distributors of opioid painkillers, Amerisource Bergen, Cardinal Health, and McKesson (the “Distributors”), and the opioid painkiller manufacturer, Janssen (owned by Johnson & Johnson) (“J&J”), resulted in two proposed settlements totaling approximately $26 billion dollars. The City has previously opted into the Distributors and the J&J Settlements and has started receiving payments.
Between November and December 2022, five additional parties (the “New Parties”) have entered into National Opioid Settlements with terms identical to the Distributors/J&J Settlements. The deadline to opt into the settlements with the New Parties is April 18, 2023.
ANALYSIS OF ISSUES:
A. Allocation of Funds
Additional litigation brought by states and cities across the United States against the New Parties has resulted in a proposed settlement totaling approximately $20.2 billion dollars.
The proposed settlement is broken into five separate deals: (1) the Walgreens Settlement (Exhibit A); (2) the Walmart Settlement (Exhibit B); (3) the CVS Settlement (Exhibit C); (4) the Teva Settlement (Exhibit D); and the Allergan Settlement (Exhibit E). The estimated total nationwide payout and payment schedule are outlined below:
Defendant Estimated Max Payout
(100% Participation)
Years
Walgreens $5,522,528,766 15 years
Walmart $3,011,242,061 Primarily paid within 3
years, but if participation
levels are not met until
Item 9.g.
City Council
Consider Opting into Settlement Agreements with Distributors of Opioids; Walgreens Co., Walmart Inc., CVS Health Corporation/CVS Pharmacy Inc., and Opioid Manufacturers Teva Pharmaceuticals Industries LTD and Allergan Finance LLC/Allergan Limited
April 11, 2023
later, payment can extend
over 6 years
CVS $5,002,083,578 10 years
Teva $4,246,567,371.76 6 years
Allergan $2,372,972,184.12 7 years
Of the amounts above, California is to receive approximately $1.8 billion and is to distribute these funds pursuant to intrastate allocation agreements for the new settlements.
As outlined in the Intrastate Allocation Agreements, Settlement Fund payments due to the State of California are allocated as follows: 15% to the State Fund; 70% to the California Abatement Accounts Fund; and 15% to the California Subdivision Fund. This results in the State receiving 15% of the payments allocated to California and local subdivisions receiving the remaining 85%. The percentages paid out to the California Subdivision Fund is reserved for entities that participated in the litigation of the claims giving rise to the settlement agreements. The percentages paid out to local subdivisions that did not litigate but choose to opt into the settlements comes from the share of the settlement proceeds that are placed in the California Abatement Accounts Fund (70% of the total allocated to the State). Essentially, this means that the City of Arroyo Grande, if it chooses to opt into the settlement, is entitled to receive a percentage share from the California Abatement Accounts Fund.
The City of Arroyo Grande has been allocated 0.024% of the 70% of the approximate $1,800,000,000 total settlement amount, which is equal to $302,400.00. It should be noted that this amount is the maximum amount that the City can receive from these settlements. In order to encourage maximum participation, the amount of funds to be paid to each government entity is tied to the overall amount of government entities that opt into the settlements. The more government entities opt in, the higher the amount that the City will receive. The final amount to be received by the City will be finalized after the April 18th deadline when the total participation in the settlements can be determined. This total amount will be disbursed over a period of 15 years, with payments decreasing as each settlement finishes paying out. The first payments are scheduled to occur in the latter half of 2023. After the receipt of these initial payments, further payments will be received annually thereafter.
Item 9.g.
City Council
Consider Opting into Settlement Agreements with Distributors of Opioids; Walgreens Co., Walmart Inc., CVS Health Corporation/CVS Pharmacy Inc., and Opioid Manufacturers Teva Pharmaceuticals Industries LTD and Allergan Finance LLC/Allergan Limited
April 11, 2023
The default distribution of funds in the settlement agreements provides that the funds will go directly to the county in which a city is located. A city can elect to have its funds delivered directly to the city by providing notice in the settlement agreements. Additionally, a city within a county may opt in or out of direct payment at any time, and it may also elect direct payment of only a portion of its share, with the remainder going to the county, by providing notice to the settlement fund administrators at least sixty days prior to a payment date.
In deciding whether to allow a city’s funds to go directly to the county in which a city is located, a city should consider the following: (1) whether the amount of money is substantial enough for the city to handle it on its own; (2) whether the city offers the services and has the employees to spend the money in accordance with its prescribed uses; and (3) whether the city wants to engage in the reporting requirements over the course of the next sixteen years (fifteen years of distribution and an additional year following final distribution).
B. Use of Received Funds
Similar to the Distributor and J&J Settlements, funds received from these additional settlements must be used for future opioid remediation or abatement. For instance, participating subdivisions may use funds for areas such as services to treat opioid use disorder; support people in treatment and recovery; connect people to care; address needs of criminal justice-involved persons; address the needs of pregnant or parenting women and their families, including babies with neonatal abstinence syndrome; prevent over-prescribing and ensure appropriate prescribing and dispensing of opioids; prevent misuse of opioids; prevent overdose deaths and other harms; provide leadership, planning, and coordination of programs; provide training; and conduct research.
The Intrastate Allocation Agreements (Exhibit F) also provide spending limitations in addition to those provided in the settlement agreements. Under the Intrastate Allocation Agreements, no less than 50% of the funds received in each calendar year must be used for one or more of the following High Impact Abatement Activities:
(1) the provision of matching funds or operating costs for substance use disorder facilities within the Behavioral Health Continuum Infrastructure Program;
(2) creating new or expanded Substance Use Disorder (“SUD”) treatment infrastructure;
Item 9.g.
City Council
Consider Opting into Settlement Agreements with Distributors of Opioids; Walgreens Co., Walmart Inc., CVS Health Corporation/CVS Pharmacy Inc., and Opioid Manufacturers Teva Pharmaceuticals Industries LTD and Allergan Finance LLC/Allergan Limited
April 11, 2023
(3) addressing the needs of communities of color and vulnerable populations (including sheltered and unsheltered homeless populations) that are disproportionately impacted by SUD;
(4) diversion of people with SUD from the justice system into treatment, including by providing training and resources to first and early responders (sworn and non-sworn) and implementing best practices for outreach, diversion and deflection, employability, restorative justice, and harm reduction; and/or
(5) interventions to prevent drug addiction in vulnerable youth.
In addition to these requirements, there is also a time limit on the spending of received funds. If funds are not expended or encumbered within five years of receipt and in accordance with the settlement agreements and the Intrastate Allocation Agreements, the funds are required to be transferred back to the State.
C. Management of Funds
Each county and city that receives payment of funds from the settlements must prepare written reports at least annually regarding the use of those funds until the funds are fully expended and for one year thereafter. Each county and city will need to track all deposits and expenditures. These reports will also include a certification that all funds received have been used in compliance with the allocation agreements. The California Department of Healthcare and Services (“DHCS”) may review these reports in order to determine compliance with the settlement agreements and the Intrastate Allocation Agreement.
If the DHCS determines that a participating subdivision’s use of abatement funds is inconsistent with the settlement agreements or Intrastate Allocation Agreements, the parties are required to meet and confer. If the meet and confer process does not provide a resolution, the DHCS may conduct an audit, which can lead to a court action if the matter is still not resolved after an audit.
D. Opting In
The City must opt into the settlements by April 18, 2023, which requires the City to release its claims against the New Parties. If the City takes no action, it will have opted out of the settlements and its designated funds will flow to the State. The City would still have the opportunity to bring its own action against the New Parties.
Item 9.g.
City Council
Consider Opting into Settlement Agreements with Distributors of Opioids; Walgreens Co., Walmart Inc., CVS Health Corporation/CVS Pharmacy Inc., and Opioid Manufacturers Teva Pharmaceuticals Industries LTD and Allergan Finance LLC/Allergan Limited
April 11, 2023
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Opt into the settlements and elect to receive the payments directly (subject to the use and reporting requirements);
2. Opt into the settlements, but allow the County to receive the payments (City would not be responsible for any use/reporting requirements and the money would stay within the County); Provide other direction to staff;
3. Do not opt-into the settlements; or
4. Provide other direction to staff.
ADVANTAGES:
Approval of the settlement agreements will provide funding for training, programs, and interventions to avoid drug overdoses and addiction in the City.
DISADVANTAGES:
Approval of the settlement agreements will increase reporting requirements for the City elects to retain the funding rather than allocate it to the County. However, should reporting requirements prove to become too onerous, the City may allocate its funding to the County to support its addiction programs.
ENVIRONMENTAL REVIEW:
No environmental review is required for this item. Adopting the Resolution opting-into the settlement agreements is not a project subject to the California Environmental Quality Act (“CEQA”) because the adoption in itself has no potential to result in either a direct, or reasonably foreseeable indirect, physical change in the environment. (State CEQA Guidelines, §§ 15060, subd. (b)(2)-(3), 15378.)
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with Government Code Section 54954.2.
Attachments:
1. Proposed Resolution
2. Exhibit A – Walgreens Settlement Agreement
3. Exhibit B – Walmart Settlement Agreement
4. Exhibit C – CVS Settlement Agreement
5. Exhibit D – Teva Settlement Agreement
6. Exhibit E – Allergan Settlement Agreement
7. Exhibit F – Sample CA Allocation Agreement
8. Exhibit G – Sample Participation Agreement
ATTACHMENT 1
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ARROYO GRANDE CALIFORNIA AUTHORIZING THE
CITY MANAGER TO ENTER INTO THE SETTLEMENT
AGREEMENTS WITH WALGREENS CO., WALMART, INC.,
CVS HEALTH CORPORATION/CVS PHARMACY INC.,
TEVA PHARMACEUTICAL INDUSTRIALS LTD., AND
ALLERGAN FINANCE LLC/ALLERGAN LIMITED, AGREE
TO THE TERMS OF THE STATE-SUBDIVISION
AGREEMENTS, AND AUTHORIZE ENTRY INTO THE
STATE-SUBDIVISION AGREEMENTS WITH THE
ATTORNEY GENERAL
WHEREAS, the United States is facing an ongoing public health crisis of opioid abuse, addiction, overdose, and death, forcing the State of California and California counties and cities to spend billions of dollars each year to address the direct consequences of this crisis; and,
WHEREAS, pending in the U.S. District Court for the Northern District of Ohio is a multidistrict litigation (“MDL”) being pursued by numerous public entity plaintiffs against the manufacturers and distributors of various opioids based on the allegation that the defendants’ unlawful conduct caused the opioid epidemic; and, WHEREAS on or about November 14, 2022, a proposed nationwide tentative settlement was reached between the plaintiffs in the MDL and Walmart Inc. (“Walmart”); and,
WHEREAS on or about November 22, 2022, a proposed nationwide tentative settlement was reached between the plaintiffs in the MDL and Teva Pharmaceutical Industries Ltd. and all of its respective past and present direct or indirect parents, subsidiaries, divisions, affiliates, joint ventures, predecessors, successors, assigns, including but not limited to Teva Pharmaceuticals USA, Inc., Actavis LLC (f/k/a Actavis Inc.), Actavis Elizabeth LLC, Actavis Kadian LLC, Actavis Pharma, Inc. (f/k/a Watson Pharma, Inc.), Actavis Kadian LLC, Actavis Laboratories UT, Inc. (f/k/a Watson Laboratories, Inc. – Utah), Actavis Mid Atlantic LLC, Actavis Totowa LLC, Actavis Laboratories FL, Inc. (f/k/a Watson Laboratories, Inc. – Florida), Actavis South Atlantic LLC, Warner Chilcott Company LLC, and Watson Laboratories, Inc., and Anda Inc. (collectively, “Teva”); and,
WHEREAS on or about November 22, 2022, a proposed nationwide tentative settlement was reached between the plaintiffs in the MDL and Allergan Finance, LLC (f/k/a Actavis, Inc., which in turn was f/k/a Watson Pharmaceutics, Inc.) and Allergan Limited (f/k/a Allergan plc, which, in turn, was f/k/a Actavis plc)(collectively, “Allergan”); and,
RESOLUTION NO.
PAGE
2 WHEREAS, on or about December 9, 2022, a proposed nationwide tentative settlement was reached between the plaintiffs in the MDL and CVS Health Corporation and CVS Pharmacy, Inc. and all of their past and present direct and indirect parent and subsidiaries (collectively, “CVS”); and,
WHEREAS, on or about December 9, 2022, a proposed nationwide tentative settlement was reached between the plaintiffs in the MDL and Walgreen Co. (“Walgreens”); and,
WHEREAS, CVS, Teva, Walgreens, Walmart, and Allergan shall be referred in this Resolution as “Settling Defendants”; and
WHEREAS, as part of the settlements with the Settling Defendants, local subdivisions, including certain cities, that are not plaintiffs in the MDL may participate in the settlements in exchange for a release of the Settling Defendants; and, WHEREAS, copies of the proposed terms of those proposed nationwide settlements have been set forth in the Master Settlement Agreements with the Settling Defendants; and,
WHEREAS, copies of the Master Settlement Agreements have been provided to the City Council with this Resolution; and,
WHEREAS, the Settlement Agreements provide, among other things, for the payment of a certain sum to settling government entities in California including to the State of California and Participating Subdivisions upon occurrence of certain events as defined in the Settlement Agreements (“California Opioid Funds”); and, WHEREAS, California local governments in the MDL have engaged in extensive discussions with the State Attorney General’s Office (“AGO”) as to how the California Opioid Funds will be allocated, which has resulted in the Proposed California StateSubdivision Agreements Regarding Distribution and Use of Settlement Funds (“Allocation Agreements”) from the settlements with the Settling Defendants; and, WHEREAS, copies of the Allocation Agreements for all of the settlements with the Settling Defendants have been provided with this Resolution; and, WHEREAS, the Allocation Agreements allocate the California Opioid Funds as follows: 15% to the State Fund; 70% to the Abatement Accounts Fund; and 15% to the Subdivision Fund. For the avoidance of doubt, all funds allocated to California from the Settlements shall be combined pursuant to the Allocation Agreements, and 15% of total from each settlement shall be allocated to the State of California (the “State of California Allocation”), 70% to the California Abatement Accounts Fund (“CA Abatement Accounts Fund”), and 15% to the California Subdivision Fund (“CA Subdivision Fund”); and,
RESOLUTION NO.
PAGE
3 WHEREAS, under the Master Settlement Agreements, certain local subdivisions that did not file a lawsuit against the Settlement Defendants may qualify to participate in the settlements and obtain funds from the Abatement Account Fund; and, WHEREAS, the City is eligible to participate in the Settlement and become a CA Participating Subdivision; and,
WHEREAS, the funds in the CA Abatement Accounts Fund (the 70% allocation) will be allocated based on the allocation model developed in connection with the proposed negotiating class in the National Prescription Opiate Litigation (MDL No. 2804), as adjusted to reflect only those cities and counties that are eligible, based on population or litigation status, to become a CA Participating Subdivision (those above 10,000 in population). The percentage from the CA Abatement Accounts Fund allocated to each CA Participating Subdivision is set forth in Appendix 1 to the Allocation Agreements and provided to the City Council with this Resolution. The City’s share of the CA Abatement Accounts Fund will be a product of the total in the CA Abatement Accounts Fund multiplied by the City’s percentage set forth in Appendix 1 of the Allocation Agreements (the “Local Allocation”); and,
WHEREAS, a CA Participating Subdivision that is a city will be allocated its Local Allocation share as of the date on which it becomes a Participating Subdivision. The Local Allocation share for a city that is a CA Participating Subdivision will be paid to the county in which the city is located, unless the city elects to take a direct election of the settlement funds, so long as: (a) the county is a CA Participating Subdivision, and (b) the city has not advised the Settlement Fund Administrator that it requests direct payment at least 60 days prior to a Payment Date; and,
WHEREAS, it the intent of this Resolution is to authorize the City to enter into the Master Settlement Agreements with the Settling Defendants by executing the Participation Agreements and to enter into the Allocation Agreements by executing the signature pages to those agreements.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this reference.
SECTION 2. The City Manager is authorized to settle and release the City’s claims against the Settling Defendants in exchange for the consideration set forth in the Settlement Agreements and Allocation Agreements, including taking the following measures:
1. The execution of the Participation Agreements with the Settling Defendants and any and all documents ancillary thereto.
RESOLUTION NO.
PAGE
4 2. The execution of the Proposed California State-Subdivision Agreement Regarding Distribution and Use of Settlement Funds with the Settling Defendants by executing the signature pages to those Allocation Agreements.
3. Notify the Settlement Fund Administrator that the City requests a direct payment under the Allocation Agreements at least 60 days prior to the Payment Date in the Settlement Agreements.
SECTION 3. CEQA. That the City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. (State CEQA Guidelines §§ 15060, subd. (b)(2)-(3), 15378.)
SECTION 4. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 5. Effective Date. This Resolution shall become effective immediately.
On motion of Council Member ________, seconded by _________, and by the following roll call vote, to wit:
AYES:
NOES:
ABSENT:
the foregoing Resolution was passed and adopted this 11th day of April, 2023.
RESOLUTION NO.
PAGE
5 CAREN RAY RUSSOM, MAYOR
ATTEST:
JESSICA MATSON, CITY CLERK
APPROVED AS TO CONTENT:
WHITNEY McDONALD, CITY MANAGER
APPROVED AS TO FORM:
ISAAC ROSEN, INTERIM CITY ATTORNEY
ATTACHMENTS 2-6
The following attachments are available as a link:
Attachment 2: Exhibit A - Walgreens Settlement Agreement Attachment 3: Exhibit B - Walmart Settlement Agreement
Attachment 4: Exhibit C - CVS Settlement Agreement
Attachment 5: Exhibit D - Teva Settlement Agreement
Attachment 6: Exhibit E - Allergan Settlement Agreement
1 Proposed California State-Subdivision Agreement
Regarding Distribution and Use of
Settlement Funds – Distributor Settlement
1. Introduction
Pursuant to the Distributor Settlement Agreement, dated as of July 21, 2021, and any revision thereto (the “Distributor Settlement Agreement”), including Section V and Exhibit O, the State of California proposes this agreement (the “CA Distributor Allocation Agreement”) to govern the allocation, distribution, and use of Settlement Fund payments made to California pursuant to Sections IV and V of the Distributor Settlement Agreement.1 For the avoidance of doubt, this
agreement does not apply to payments made pursuant to Sections IX or X of the Distributor Settlement Agreement.
Pursuant to Exhibit O, Paragraph 4, of the Distributor Settlement Agreement, acceptance of this CA Distributor Allocation Agreement is a requirement to be an Initial Participating Subdivision.
2. Definitions
a) CA Participating Subdivision means a Participating Subdivision that is also (a) a Plaintiff Subdivision and/or (b) a Primary Subdivision with a population equal to or greater than 10,000. For the avoidance of doubt, eligible CA Participating Subdivisions are those California subdivisions listed in Exhibit C (excluding Litigating Special Districts) and/or Exhibit I to the Distributor Settlement Agreement. b) Janssen Settlement Agreement means the Janssen Settlement Agreement dated July 21, 2021, and any revision thereto.
c) Litigating Special District means a school district, fire protection district, health authority, health plan, or other special district that has filed a lawsuit against an Opioid Defendant. Litigating Special Districts include Downey Unified School District, Elk Grove Unified School District, Kern High School District, Montezuma Fire Protection District (located in Stockton, California), Santa Barbara San Luis Obispo Regional Health Authority, Inland Empire Health Plan, Health Plan of San Joaquin, and LA Care Health Plan.
d) Plaintiff Subdivision means a Subdivision located in California, other than a Litigating Special District, that filed a lawsuit, on behalf of the Subdivision and/or through an official of the Subdivision on behalf of the People of the State of California, against one or more Opioid Defendants prior to October 1, 2020. 1 A parallel but separate agreement (the “CA Janssen Allocation Agreement”) will govern the allocation, distribution, and use of settlement fund payments under the Janssen Settlement Agreement. An eligible Subdivision may elect to participate in either the Distributor Settlement or the Janssen Settlement, or in both.
ATTACHMENT 7
2 e) Opioid Defendant means any defendant (including but not limited to Johnson & Johnson, Janssen Pharmaceuticals, Inc., Purdue Pharma L.P., Cardinal Health, Inc., AmerisourceBergen Corporation, and McKesson Corporation) named in a lawsuit seeking damages, abatement, or other remedies related to or caused by the opioid public health crisis in any lawsuit brought by any state or local government on or before October 1, 2020.
3. General Terms
This agreement is subject to the requirements of the Distributor Settlement Agreement, as well as applicable law, and the Distributor Settlement Agreement governs over any inconsistent provision of this CA Distributor Allocation Agreement. Terms used in this CA Distributor Allocation Agreement have the same meaning as in the Distributor Settlement Agreement unless otherwise defined herein.
Pursuant to Section V(D)(1) of the Distributor Settlement Agreement, (a) all Settlement Fund payments will be used for Opioid Remediation, except as allowed by Section V(B)(2) of the Distributor Settlement Agreement; and (b) at least seventy percent (70%) of Settlement Fund payment amounts will be used solely for future Opioid Remediation.
4. State Allocation
The Settlement Fund payments to California,2
pursuant to the Distributor Settlement Agreement,
shall be allocated as follows: 15% to the State Fund; 70% to the Abatement Accounts Fund; and 15% to the Subdivision Fund. For the avoidance of doubt, all funds allocated to California from the Settlement Fund shall be combined pursuant to this CA Distributor Allocation Agreement, and 15% of that total shall be allocated to the State of California (the “State of California Allocation”), 70% to the California Abatement Accounts Fund (“CA Abatement Accounts Fund”), and 15% to the California Subdivision Fund (“CA Subdivision Fund”).
A. State of California Allocation
Fifteen percent of the total Settlement Fund payments will be allocated to the State and used by the State for future Opioid Remediation.
B. CA Abatement Accounts Fund
i. Allocation of CA Abatement Accounts Funds
a) Seventy percent of the total Settlement Fund payments will be allocated to the CA Abatement Accounts Fund. The funds in the CA Abatement Accounts Fund will be
2 For purposes of clarity, use of the term “California” refers to the geographic territory of California and the state and its local governments therein. The term “State” or “State of California” refers to the State of California as a governmental unit.
3 allocated based on the allocation model developed in connection with the proposed negotiating class in the National Prescription Opiate Litigation (MDL No. 2804), as adjusted to reflect only those cities and counties that are eligible, based on population or litigation status, to become a CA Participating Subdivision. The percentage from the CA Abatement Accounts Fund allocated to each CA Participating Subdivision is set forth in Appendix 1 in the column entitled abatement percentage (the “Local Allocation”). For the avoidance of doubt, Litigating Special Districts and California towns, cities, and counties with a population less than 10,000 are not eligible to receive an allocation of CA Abatement Accounts Funds.
b) A CA Participating Subdivision that is a county, or a city and county, will be allocated its Local Allocation share as of the date on which it becomes a Participating Subdivision, and will receive payments as provided in the Distributor Settlement Agreement. c) A CA Participating Subdivision that is a city will be allocated its Local Allocation share as of the date on which it becomes a Participating Subdivision. The Local Allocation share for a city that is a CA Participating Subdivision will be paid to the county in which the city is located, rather than to the city, so long as: (a) the county is a CA Participating Subdivision, and (b) the city has not advised the Settlement Fund Administrator that it requests direct payment at least 60 days prior to a Payment Date. A Local Allocation share allocated to a city but paid to a county is not required to be spent exclusively for abatement activities in that city, but will become part of the county’s share of the CA Abatement Accounts Funds, which will be used in accordance with Section 4.B.ii (Use of CA Abatement Accounts Funds) and reported on in accordance with Section 4.B.iii (CA Abatement Accounts Fund Oversight).
d) A city within a county that is a CA Participating Subdivision may opt in or out of direct payment at any time, and it may also elect direct payment of only a portion of its share, with the remainder going to the county, by providing notice to the Settlement Fund Administrator at least 60 days prior to a Payment Date. For purposes of this CA Distributor Allocation Agreement, the Cities of Los Angeles, Oakland, San Diego, San Jose and Eureka will be deemed to have elected direct payment if they become Participating Subdivisions.
e) The State will receive the Local Allocation share of any payment to the Settlement Fund that is attributable to a county or city that is eligible to become a CA Participating Subdivision, but that has not, as of the date of that payment to the Settlement Fund, become a Participating Subdivision.
f) Funds received by a CA Participating Subdivision, and not expended or encumbered within five years of receipt and in accordance with the Distributor Settlement Agreement and this CA Distributor Allocation Agreement shall be transferred to the State; provided however, that CA Participating Subdivisions have seven years to expend or encumber CA Abatement Accounts Funds designated to support capital outlay projects before they must be transferred to the State. This provision shall not apply to the Cost Reimbursement Funds, which shall be controlled by Appendix 2.
4 ii. Use of CA Abatement Accounts Funds
a) The CA Abatement Accounts Funds will be used for future Opioid Remediation in one or more of the areas described in the List of Opioid Remediation Uses, which is Exhibit E to the Distributor Settlement Agreement.
b) In addition to this requirement, no less than 50% of the funds received by a CA Participating Subdivision from the Abatement Accounts Fund in each calendar year will be used for one or more of the following High Impact Abatement Activities:
(1) the provision of matching funds or operating costs for substance use disorder facilities within the Behavioral Health Continuum Infrastructure Program; (2) creating new or expanded Substance Use Disorder (“SUD”) treatment infrastructure; (3) addressing the needs of communities of color and vulnerable populations (including sheltered and unsheltered homeless populations) that are disproportionately impacted by SUD;
(4) diversion of people with SUD from the justice system into treatment, including by providing training and resources to first and early responders (sworn and non-sworn) and implementing best practices for outreach, diversion and deflection, employability, restorative justice, and harm reduction; and/or
(5) interventions to prevent drug addiction in vulnerable youth. c) The California Department of Health Care Services (“DHCS”) may add to this list (but not delete from it) by designating additional High Impact Abatement Activities. DHCS will make reasonable efforts to consult with stakeholders, including the CA Participating Subdivisions, before adding additional High Impact Abatement Activities to this list. d) For the avoidance of doubt, and subject to the requirements of the Distributor Settlement Agreement and applicable law, CA Participating Subdivisions may form agreements or ventures, or otherwise work in collaboration with, federal, state, local, tribal or private sector entities in pursuing Opioid Remediation activities funded from the CA Abatement Accounts Fund. Further, provided that all CA Abatement Accounts Funds are used for Opioid Remediation consistent with the Distributor Settlement Agreement and this CA Distributor Allocation Agreement, a county and any cities or towns within the county may agree to reallocate their respective shares of the CA Abatement Accounts Funds among themselves, provided that any direct distribution may only be to a CA Participating Subdivision and any CA Participating Subdivision must agree to their share being reallocated.
5 iii. CA Abatement Accounts Fund Oversight
a) Pursuant to Section 5 below, CA Participating Subdivisions receiving settlement funds must prepare and file reports annually regarding the use of those funds. DHCS may regularly review the reports prepared by CA Participating Subdivisions about the use of CA Abatement Accounts Funds for compliance with the Distributor Settlement Agreement and this CA Distributor Allocation Agreement. b) If DHCS determines that a CA Participating Subdivision’s use of CA Abatement Accounts Funds is inconsistent with the Distributor Settlement Agreement or this CA Distributor Allocation Agreement, whether through review of reports or information from any other sources, DHCS shall send a request to meet and confer with the CA Participating Subdivision. The parties shall meet and confer in an effort to resolve the concern.
c) If the parties are unable to reach a resolution, DHCS may conduct an audit of the Subdivision’s use of the CA Abatement Accounts Funds within one year of the request to meet and confer, unless the parties mutually agree in writing to extend the meet and confer time frame.
d) If the concern still cannot be resolved, the State may bring a motion or action in the court where the State has filed its Consent Judgment to resolve the concern or otherwise enforce the requirements of the Distributor Settlement Agreement or this CA Distributor Allocation Agreement. However, in no case shall any audit be conducted, or motion be brought, as to a specific expenditure of funds, more than five years after the date on which the expenditure of the funds was reported to DHCS, in accordance with this agreement.
e) Notwithstanding the foregoing, this Agreement does not limit the statutory or constitutional authority of any state or local agency or official to conduct audits, investigations, or other oversight activities, or to pursue administrative, civil, or criminal enforcement actions.
C. CA Subdivision Fund
i. Fifteen percent of the total Settlement Fund payments will be allocated to the CA Subdivision Fund. All funds in the CA Subdivision Fund will be allocated among the Plaintiff Subdivisions that are Initial Participating Subdivisions. The funds will be used, subject to any limits imposed by the Distributor Settlement Agreement and this CA Distributor Allocation Agreement, to fund future Opioid Remediation and reimburse past opioid-related expenses, which may include fees and expenses related to litigation, and to pay the reasonable fees and expenses of the Special Master as set forth in Appendix 2.
6 The CA Subdivision Funds will be allocated as follows:
a) First, funds in the CA Subdivision Fund shall be used to pay the Special Master’s reasonable fees and expenses in accordance with the procedures and limitations set forth in Appendix 2 to this document;
b) Second, funds will be allocated to Plaintiff Subdivisions that are Initial Participating Subdivisions that have been awarded Costs, as defined by and in accordance with the procedures and limitations set forth in Appendix 2 to this document. c) Funds remaining in the CA Subdivision Fund, which shall consist of no less than 50% of the total CA Subdivision Fund received in any year pursuant to Appendix 2, Section 2.c.v, will be distributed to Plaintiff Subdivisions that are Initial Participating Subdivisions, in relative proportion to the Local Allocation. These funds shall be used to fund future opioid-related projects and to reimburse past opioid-related expenses, which may include fees and expenses related to litigation against any Opioid Defendant.
D. Provision for State Back-Stop Agreement
On August 6, 2021, Judge Dan Polster of the U.S. District Court, Northern District of Ohio, Eastern Division, issued an order (ECF Docket Number 3814) (“MDL Fees Order”) in the National Prescription Opiate Litigation (MDL No. 2804) “cap[ping] all applicable contingent fee agreements at 15%.” Private counsel representing Plaintiff Subdivisions should seek its contingency fees and costs from the Attorney Fee Fund or Cost Funds under the Distributor Settlement Agreement and, if applicable, the Janssen Settlement Agreement.
A Plaintiff Subdivision may separately agree to use its share of the CA Subdivision Fund to pay for fees or costs incurred by its contingency-fee counsel (“State Back-Stop Agreement”), pursuant to Exhibit R, section I(R), of the Distributor Settlement Agreement and the MDL Fees Order, so long as such contingency fees do not exceed a total contingency fee of 15% of the total gross recovery of the Plaintiff Subdivision pursuant to the Distributor Settlement, and if applicable, the Janssen Settlement, inclusive of contingency fees from the national Attorney Fee Fund and this State Back-Stop Agreement. Before seeking fees or litigation costs and expenses from a State Back-Stop Agreement, private counsel representing Plaintiff Subdivisions must first seek contingency fees and costs from the Attorney Fee Fund or Cost Funds created under the Distributor Settlement Agreement and, if applicable, the Janssen Settlement Agreement. Further, private counsel may only seek reimbursement for litigation fees and costs that have not previously been reimbursed through prior settlements or judgments.
To effectuate a State Back-Stop Agreement pursuant to this section, an agreement in the form of Appendix 3 may be entered into by a Plaintiff Subdivision, private counsel, and the California Office of the Attorney General. The California Office of the Attorney General shall, upon the request of a Plaintiff Subdivision, execute any agreement executed by a Plaintiff Subdivision and its private counsel if it is in the form of Appendix 3. The California Office of the Attorney
7 General will also consider requests from Plaintiff Subdivisions to execute and enter into agreements presented in other forms.
For the avoidance of doubt, this agreement does not require a Plaintiff Subdivision to request or enter into a State Back-Stop Agreement, and no State Back-Stop Agreement shall impose any duty or obligation on the State of California or any of its agencies or officers, including without limitation the Attorney General.
5. State and Subdivision Reporting
a) DHCS will prepare an annual written report regarding the State’s use of funds from the settlement until those funds are fully expended and for one year thereafter. These reports will be made publicly available on the DHCS web site.
b) Each CA Participating Subdivision that receives payments of funds from the settlement will prepare written reports at least annually regarding the use of those funds, until those funds are fully expended and for one year thereafter. These reports will also include a certification that all funds that the CA Participating Subdivision has received through the settlement have been used in compliance with the Distributor Settlement Agreement and this CA Distributor Allocation Agreement. The report will be in a form reasonably determined by DHCS. Prior to specifying the form of the report DHCS will confer with representatives of the Plaintiff Subdivisions.
c) The State and all CA Participating Subdivisions receiving CA Abatement Accounts Funds will track all deposits and expenditures. Each such subdivision is responsible solely for the CA Abatement Accounts Funds it receives. A county is not responsible for oversight, reporting, or monitoring of CA Abatement Accounts Funds received by a city within that county that receives direct payment. Unless otherwise exempt, Subdivisions’ expenditures and uses of CA Abatement Accounts Funds and other Settlement Funds will be subject to the normal budgetary and expenditure process of the Subdivision. d) Each Plaintiff Subdivision receiving CA Subdivision Funds will track all deposits and expenditures, as required by the Distributor Settlement Agreement and this CA Distributor Allocation Agreement. Among other things, Plaintiff Subdivisions using monies from the CA Subdivision Fund for purposes that do not qualify as Opioid Remediation must identify and include in their annual report, the amount and how such funds were used, including if used to pay attorneys’ fees, investigation costs, or litigation costs. Pursuant to Section V(B)(2) of the Distributor Settlement Agreement, such information must also be reported to the Settlement Fund Administrator and the Distributors.
e) In each year in which DHCS prepares an annual report DHCS will also host a meeting to discuss the annual report and the Opioid Remediation activities being carried out by the State and Participating Subdivisions.
8 6. Miscellaneous
a) The State or any CA Participating Subdivision may bring a motion or action in the court where the State has filed its Consent Judgment to enforce the requirements of this CA Distributor Allocation Agreement. Before filing such a motion or action the State will meet and confer with any CA Participating Subdivision that is the subject of the anticipated motion or action, and vice versa.
b) Except as provided in the Distributor Settlement Agreement, this CA Distributor Allocation Agreement is not enforceable by any party other than the State and the CA Participating Subdivisions. It does not confer any rights or remedies upon, and shall not be enforceable by, any third party.
c) Except as provided in the CA Distributor Allocation Agreement, if any provision of this agreement or the application thereof to any person, entity, or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this agreement, or the application of such provision to persons, entities, or circumstances other than those as to which it is invalid or unenforceable, will not be affected thereby, and each other provision of this agreement will be valid and enforceable to the fullest extent permitted by law. d) Except as provided in the Distributor Settlement Agreement, this agreement shall be governed by and interpreted in accordance with the laws of California.
APPENDIX 1
DISCLAIMER: The allocation percentages herein are estimates only and should not be relied on for decisions regarding legal rights, releases, waivers, or other decisions affecting current or potential legal claims. Percentages shown in the Plaintiff Subdivision Percentage column may change pursuant to Section 4.C. of the California State-Subdivision Agreement Regarding Distribution and Use of Settlement Funds—Distributor Settlement, whereas the percentages shown in the Abatement Percentage column should not change. Participating Subdivisions, underlying calculations, and the calculated allocation percentages are subject to change. Regarding the column herein entitled “Abatement Percentage,” pursuant to Section 4.B.e., the State of California will receive the Local Allocation share of any payment to the Settlement Fund that is attributable to a county or city that is eligible to become a CAParticipating Subdivision, but that has not, as of the date of that payment to the Settlement Fund, become a Participating Subdivision.
Regarding the column herein entitled “Plaintiff Subdivision Percentage,” payments allocated to a Plaintiff Subdivision, which is not an Initial Participating Subdivision, will be re-allocated among the Plaintiff Subdivisions that are Initial Participating Subdivisions.
Regarding the column herein entitled “Abatement Percentage,” the annotation of “100%” refers to one-hundred percent (100%) of the California Abatement Account Funds received, pursuant to Section 4.B. Regarding the column herein entitled “Plaintiff Subdivision Percentage,” the annotation of “100%” refers to one-hundred percent (100%) of the California Subdivision Funds received, pursuant to Section 4.C. Regarding the column herein entitled “Weighted Allocation Percentage,” the annotation of “100%” refers to onehundred percent (100%) of the combined and weighted allocation of the Abatement Percentage and the Plaintiff Subdivision Percentage.
APPENDIX 1
100.000% 100.000% 100.000%
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage County Alameda County Alameda 2.332% 2.853% 2.4237952%
City Alameda Alameda 0.069% 0.0570162%City Albany Alameda 0.013% 0.0107768%City Berkeley Alameda 0.152% 0.1249656%City Dublin Alameda 0.033% 0.040% 0.0338810%City Emeryville Alameda 0.023% 0.0185765%City Fremont Alameda 0.108% 0.0888576%City Hayward Alameda 0.117% 0.0966218%City Livermore Alameda 0.054% 0.0446740%City Newark Alameda 0.026% 0.0217626%City Oakland Alameda 0.486% 0.595% 0.5055601%City Piedmont Alameda 0.014% 0.0114064%City Pleasanton Alameda 0.067% 0.0554547%City San Leandro Alameda 0.039% 0.0321267%City Union City Alameda 0.043% 0.0352484% County Amador County Amador 0.226% 0.277% 0.2349885%County Butte County Butte 1.615% 1.975% 1.6783178% City Chico Butte 0.216% 0.264% 0.2246499%City Oroville Butte 0.079% 0.0646595% County Calaveras County Calaveras 0.226% 0.277% 0.2351644%County Colusa County Colusa 0.059% 0.0489221%County Contra Costa County Contra Costa 2.102% 2.571% 2.1844585% City Antioch Contra Costa 0.037% 0.0301879%City Brentwood Contra Costa 0.026% 0.0215339%City Clayton Contra Costa 0.002% 0.0018060%City Concord Contra Costa 0.055% 0.0456676%City Danville Contra Costa 0.010% 0.0082255%City El Cerrito Contra Costa 0.023% 0.0189024%City Hercules Contra Costa 0.010% 0.0078273%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage City Lafayette Contra Costa 0.006% 0.0046030%City Martinez Contra Costa 0.012% 0.0098593%City Moraga Contra Costa 0.004% 0.0031007%City Oakley Contra Costa 0.010% 0.0079416%City Orinda Contra Costa 0.005% 0.0038157%City Pinole Contra Costa 0.013% 0.0110909%City Pittsburg Contra Costa 0.053% 0.0436369%City Pleasant Hill Contra Costa 0.013% 0.0106309%City Richmond Contra Costa 0.146% 0.1201444%City San Pablo Contra Costa 0.018% 0.0148843%City San Ramon Contra Costa 0.021% 0.0176459%City Walnut Creek Contra Costa 0.026% 0.0212132% County Del Norte County Del Norte 0.114% 0.140% 0.1189608%County El Dorado County El Dorado 0.768% 0.939% 0.7980034% City Placerville El Dorado 0.015% 0.0127642%City South Lake Tahoe El Dorado 0.081% 0.0665456% County Fresno County Fresno 1.895% 2.318% 1.9693410%
City Clovis Fresno 0.065% 0.0536211%City Coalinga Fresno 0.012% 0.0098554%City Fresno Fresno 0.397% 0.3270605%City Kerman Fresno 0.005% 0.0042534%City Kingsburg Fresno 0.008% 0.0066167%City Mendota Fresno 0.002% 0.0019387%City Orange Cove Fresno 0.004% 0.0035607%City Parlier Fresno 0.008% 0.0069755%City Reedley Fresno 0.012% 0.0098804%City Sanger Fresno 0.018% 0.0146135%City Selma Fresno 0.015% 0.0127537% County Glenn County Glenn 0.107% 0.131% 0.1116978%County Humboldt County Humboldt 1.030% 1.260% 1.0703185%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage City Arcata Humboldt 0.054% 0.0447660%City Eureka Humboldt 0.117% 0.143% 0.1216284%City Fortuna Humboldt 0.032% 0.0266837% County Imperial County Imperial 0.258% 0.315% 0.2679006% City Brawley Imperial 0.011% 0.0087986%City Calexico Imperial 0.019% 0.0152799%City El Centro Imperial 0.158% 0.1302522%City Imperial Imperial 0.006% 0.0048791% County Inyo County Inyo 0.073% 0.089% 0.0754413%County Kern County Kern 2.517% 3.079% 2.6159145% City Arvin Kern 0.006% 0.0046425%City Bakersfield Kern 0.212% 0.1747198%City California City Kern 0.009% 0.0070820%City Delano Kern 0.030% 0.0249316%City McFarland Kern 0.003% 0.0025644%City Ridgecrest Kern 0.015% 0.0120938%City Shafter Kern 0.013% 0.0103417%City Tehachapi Kern 0.009% 0.0073580%City Wasco Kern 0.008% 0.0069861% County Kings County Kings 0.293% 0.2413469%
City Avenal Kings 0.007% 0.0056335%City Corcoran Kings 0.013% 0.0107032%City Hanford Kings 0.027% 0.0226038%City Lemoore Kings 0.016% 0.0131900% County Lake County Lake 0.795% 0.6545389%
City Clearlake Lake 0.041% 0.050% 0.0426253%City Lakeport Lake 0.021% 0.026% 0.0222964% County Lassen County Lassen 0.319% 0.391% 0.3320610%
City Susanville Lassen 0.027% 0.0219295%
County Los Angeles County Los Angeles 13.896% 16.999% 14.4437559%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage City Agoura Hills Los Angeles 0.005% 0.0040024%City Alhambra Los Angeles 0.042% 0.0343309%City Arcadia Los Angeles 0.033% 0.0267718%City Artesia Los Angeles 0.001% 0.0005100%City Azusa Los Angeles 0.026% 0.0210857%City Baldwin Park Los Angeles 0.027% 0.0218520%City Bell Los Angeles 0.008% 0.0068783%City Bellflower Los Angeles 0.002% 0.0014485%City Bell Gardens Los Angeles 0.014% 0.0114301%City Beverly Hills Los Angeles 0.065% 0.0534897%City Burbank Los Angeles 0.100% 0.0823132%City Calabasas Los Angeles 0.006% 0.0048948%City Carson Los Angeles 0.019% 0.0159805%City Cerritos Los Angeles 0.005% 0.0039682%City Claremont Los Angeles 0.010% 0.0082584%City Commerce Los Angeles 0.000% 0.0002971%City Compton Los Angeles 0.044% 0.0361882%City Covina Los Angeles 0.028% 0.0229127%City Cudahy Los Angeles 0.001% 0.0006020%City Culver City Los Angeles 0.055% 0.0449894%City Diamond Bar Los Angeles 0.001% 0.0006993%City Downey Los Angeles 0.052% 0.0429994%City Duarte Los Angeles 0.003% 0.0027261%City El Monte Los Angeles 0.031% 0.038% 0.0318985%City El Segundo Los Angeles 0.033% 0.0268020%City Gardena Los Angeles 0.034% 0.0278088%City Glendale Los Angeles 0.166% 0.1366586%City Glendora Los Angeles 0.016% 0.0134411%City Hawaiian Gardens Los Angeles 0.005% 0.0040549%City Hawthorne Los Angeles 0.050% 0.0407833%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage City Hermosa Beach Los Angeles 0.018% 0.0145307%City Huntington Park Los Angeles 0.023% 0.0190667%City Inglewood Los Angeles 0.059% 0.0489195%City La Cañada Flintridge Los Angeles 0.003% 0.0025565%City Lakewood Los Angeles 0.005% 0.0039971%City La Mirada Los Angeles 0.010% 0.0081572%City Lancaster Los Angeles 0.045% 0.0369689%City La Puente Los Angeles 0.002% 0.0012999%City La Verne Los Angeles 0.024% 0.0194190%City Lawndale Los Angeles 0.002% 0.0017731%City Lomita Los Angeles 0.004% 0.0031940%City Long Beach Los Angeles 0.439% 0.3614151%City Los Angeles Los Angeles 2.715% 3.321% 2.8218811%City Lynwood Los Angeles 0.016% 0.0134345%City Malibu Los Angeles 0.002% 0.0019269%City Manhattan Beach Los Angeles 0.032% 0.0260686%City Maywood Los Angeles 0.004% 0.0035528%City Monrovia Los Angeles 0.031% 0.0254455%City Montebello Los Angeles 0.030% 0.0250670%City Monterey Park Los Angeles 0.031% 0.0256677%City Norwalk Los Angeles 0.031% 0.0258228%City Palmdale Los Angeles 0.046% 0.0375827%City Palos Verdes Estates Los Angeles 0.006% 0.0053102%City Paramount Los Angeles 0.011% 0.0091483%City Pasadena Los Angeles 0.146% 0.1200524%City Pico Rivera Los Angeles 0.022% 0.0183333%City Pomona Los Angeles 0.111% 0.0911933%City Rancho Palos Verdes Los Angeles 0.002% 0.0012645%City Redondo Beach Los Angeles 0.062% 0.0506992%City Rosemead Los Angeles 0.003% 0.0028260%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage City San Dimas Los Angeles 0.003% 0.0022016%City San Fernando Los Angeles 0.013% 0.0104837%City San Gabriel Los Angeles 0.018% 0.0147726%City San Marino Los Angeles 0.009% 0.0073791%City Santa Clarita Los Angeles 0.022% 0.0178167%City Santa Fe Springs Los Angeles 0.031% 0.0257531%City Santa Monica Los Angeles 0.158% 0.1298513%City Sierra Madre Los Angeles 0.006% 0.0048646%City Signal Hill Los Angeles 0.010% 0.0084884%City South El Monte Los Angeles 0.005% 0.0039603%City South Gate Los Angeles 0.020% 0.0166272%City South Pasadena Los Angeles 0.012% 0.0095334%City Temple City Los Angeles 0.005% 0.0039498%City Torrance Los Angeles 0.112% 0.0919820%City Walnut Los Angeles 0.006% 0.0047305%City West Covina Los Angeles 0.049% 0.0404521%City West Hollywood Los Angeles 0.013% 0.0108517%City Whittier Los Angeles 0.032% 0.0260581% County Madera County Madera 0.349% 0.427% 0.3630669%
City Chowchilla Madera 0.012% 0.0097332%City Madera Madera 0.039% 0.0318441% County Marin County Marin 0.564% 0.690% 0.5861325%
City Larkspur Marin 0.015% 0.0124697%City Mill Valley Marin 0.020% 0.0168401%City Novato Marin 0.028% 0.0229824%City San Anselmo Marin 0.009% 0.0078062%City San Rafael Marin 0.089% 0.0729823% County Mariposa County Mariposa 0.084% 0.103% 0.0876131%County Mendocino County Mendocino 0.439% 0.536% 0.4558394% City Ukiah Mendocino 0.039% 0.0317153%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage County Merced County Merced 0.551% 0.674% 0.5724262%
City Atwater Merced 0.024% 0.0195846%City Livingston Merced 0.006% 0.0045873%City Los Banos Merced 0.020% 0.0165142%City Merced Merced 0.061% 0.0500762% County Modoc County Modoc 0.065% 0.080% 0.0678250%County Mono County Mono 0.023% 0.029% 0.0242606%County Monterey County Monterey 0.908% 1.111% 0.9437083% City Greenfield Monterey 0.006% 0.0050552%City King City Monterey 0.005% 0.0037355%City Marina Monterey 0.017% 0.0144098%City Monterey Monterey 0.041% 0.0336540%City Pacific Grove Monterey 0.009% 0.0074842%City Salinas Monterey 0.094% 0.0776576%City Seaside Monterey 0.023% 0.0191772%City Soledad Monterey 0.007% 0.0060870% County Napa County Napa 0.288% 0.352% 0.2994325%
City American Canyon Napa 0.017% 0.0136869%City Napa Napa 0.078% 0.0642783% County Nevada County Nevada 0.441% 0.539% 0.4579827%
City Grass Valley Nevada 0.024% 0.0197805%City Truckee Nevada 0.003% 0.0023843% County Orange County Orange 4.364% 5.339% 4.5363576%
City Aliso Viejo Orange 0.014% 0.0113841%City Anaheim Orange 0.554% 0.678% 0.5759282%City Brea Orange 0.086% 0.0708897%City Buena Park Orange 0.087% 0.0714352%City Costa Mesa Orange 0.124% 0.152% 0.1288366%City Cypress Orange 0.033% 0.0271937%City Dana Point Orange 0.001% 0.0005560%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage City Fountain Valley Orange 0.055% 0.0455980%City Fullerton Orange 0.137% 0.168% 0.1425744%City Garden Grove Orange 0.213% 0.1752482%City Huntington Beach Orange 0.247% 0.302% 0.2568420%City Irvine Orange 0.139% 0.170% 0.1442350%City Laguna Beach Orange 0.047% 0.058% 0.0493043%City Laguna Hills Orange 0.014% 0.0115457%City Laguna Niguel Orange 0.001% 0.0007071%City Laguna Woods Orange 0.001% 0.0006546%City La Habra Orange 0.060% 0.073% 0.0621049%City Lake Forest Orange 0.012% 0.0101249%City La Palma Orange 0.012% 0.0095439%City Los Alamitos Orange 0.008% 0.0069190%City Mission Viejo Orange 0.014% 0.0117560%City Newport Beach Orange 0.179% 0.1470134%City Orange Orange 0.150% 0.1231320%City Placentia Orange 0.029% 0.035% 0.0298912%City Rancho Santa Margarita Orange 0.001% 0.0006296%City San Clemente Orange 0.008% 0.010% 0.0086083%City San Juan Capistrano Orange 0.008% 0.0065510%City Santa Ana Orange 0.502% 0.614% 0.5213866%City Seal Beach Orange 0.020% 0.0165891%City Stanton Orange 0.035% 0.0291955%City Tustin Orange 0.073% 0.0600341%City Westminster Orange 0.104% 0.127% 0.1082721%City Yorba Linda Orange 0.044% 0.0362223% County Placer County Placer 1.045% 1.278% 1.0861002%
City Auburn Placer 0.017% 0.0141114%City Lincoln Placer 0.031% 0.0255599%City Rocklin Placer 0.076% 0.0625485%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage City Roseville Placer 0.196% 0.1616559%
County Plumas County Plumas 0.205% 0.251% 0.2128729%County Riverside County Riverside 4.534% 5.547% 4.7128296% City Banning Riverside 0.017% 0.0143848%City Beaumont Riverside 0.021% 0.0171135%City Blythe Riverside 0.012% 0.0096714%City Canyon Lake Riverside 0.000% 0.0001761%City Cathedral City Riverside 0.067% 0.0553614%City Coachella Riverside 0.021% 0.0173054%City Corona Riverside 0.147% 0.1207083%City Desert Hot Springs Riverside 0.024% 0.0200433%City Eastvale Riverside 0.000% 0.0002747%City Hemet Riverside 0.051% 0.0421792%City Indio Riverside 0.056% 0.0457794%City Jurupa Valley Riverside 0.001% 0.0008991%City Lake Elsinore Riverside 0.021% 0.0172949%City La Quinta Riverside 0.063% 0.0516732%City Menifee Riverside 0.032% 0.0260909%City Moreno Valley Riverside 0.137% 0.1130348%City Murrieta Riverside 0.048% 0.059% 0.0497423%City Norco Riverside 0.016% 0.0134542%City Palm Desert Riverside 0.083% 0.0682465%City Palm Springs Riverside 0.076% 0.0629862%City Perris Riverside 0.009% 0.0076774%City Rancho Mirage Riverside 0.052% 0.0431098%City Riverside Riverside 0.268% 0.2206279%City San Jacinto Riverside 0.010% 0.0085936%City Temecula Riverside 0.022% 0.0180086%City Wildomar Riverside 0.008% 0.0062500% County Sacramento County Sacramento 3.797% 4.645% 3.9465887%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage City Citrus Heights Sacramento 0.057% 0.0465312%City Elk Grove Sacramento 0.130% 0.1066994%City Folsom Sacramento 0.108% 0.0890850%City Galt Sacramento 0.017% 0.0143704%City Rancho Cordova Sacramento 0.008% 0.0067679%City Sacramento Sacramento 0.721% 0.882% 0.7496530% County San Benito County San Benito 0.106% 0.130% 0.1101417% City Hollister San Benito 0.027% 0.0225355%
County San Bernardino County San Bernardino 3.259% 3.987% 3.3878124% City Adelanto San Bernardino 0.008% 0.0066640%City Apple Valley San Bernardino 0.025% 0.0207360%City Barstow San Bernardino 0.015% 0.0122056%City Chino San Bernardino 0.064% 0.0525893%City Chino Hills San Bernardino 0.001% 0.0006388%City Colton San Bernardino 0.031% 0.0253443%City Fontana San Bernardino 0.112% 0.0920543%City Grand Terrace San Bernardino 0.006% 0.0051051%City Hesperia San Bernardino 0.035% 0.0291522%City Highland San Bernardino 0.004% 0.0029061%City Loma Linda San Bernardino 0.009% 0.0071188%City Montclair San Bernardino 0.039% 0.0322108%City Ontario San Bernardino 0.179% 0.1472934%City Rancho Cucamonga San Bernardino 0.084% 0.0689431%City Redlands San Bernardino 0.057% 0.0469150%City Rialto San Bernardino 0.073% 0.0603206%City San Bernardino San Bernardino 0.178% 0.1461880%City Twentynine Palms San Bernardino 0.002% 0.0012605%City Upland San Bernardino 0.052% 0.0424460%City Victorville San Bernardino 0.033% 0.0269400%City Yucaipa San Bernardino 0.016% 0.0128772%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage City Yucca Valley San Bernardino 0.003% 0.0021228%
County San Diego County San Diego 5.706% 6.980% 5.9309748% City Carlsbad San Diego 0.128% 0.1050485%City Chula Vista San Diego 0.189% 0.231% 0.1961456%City Coronado San Diego 0.044% 0.0359095%City El Cajon San Diego 0.113% 0.0933582%City Encinitas San Diego 0.061% 0.074% 0.0630289%City Escondido San Diego 0.145% 0.1192204%City Imperial Beach San Diego 0.014% 0.0118283%City La Mesa San Diego 0.055% 0.068% 0.0575593%City Lemon Grove San Diego 0.022% 0.0183911%City National City San Diego 0.080% 0.0656808%City Oceanside San Diego 0.213% 0.1753428%City Poway San Diego 0.062% 0.0511040%City San Diego San Diego 1.975% 2.416% 2.0531169%City San Marcos San Diego 0.089% 0.0733897%City Santee San Diego 0.033% 0.0268401%City Solana Beach San Diego 0.017% 0.0138564%City Vista San Diego 0.052% 0.0425144% Consolidated San Francisco San Francisco 3.026% 3.702% 3.1457169% County San Joaquin County San Joaquin 1.680% 2.055% 1.7460399% City Lathrop San Joaquin 0.009% 0.0075394%City Lodi San Joaquin 0.053% 0.0439484%City Manteca San Joaquin 0.054% 0.0443454%City Ripon San Joaquin 0.013% 0.0104219%City Stockton San Joaquin 0.313% 0.383% 0.3256176%City Tracy San Joaquin 0.084% 0.0692047% County San Luis Obispo County San Luis Obispo 0.816% 0.999% 0.8484126% City Arroyo Grande San Luis Obispo 0.024% 0.0199053%City Atascadero San Luis Obispo 0.029% 0.0240680%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage City El Paso de Robles (Paso Robles) San Luis Obispo 0.043% 0.0353456%City Grover Beach San Luis Obispo 0.017% 0.0137881%City Morro Bay San Luis Obispo 0.020% 0.0160922%City San Luis Obispo San Luis Obispo 0.077% 0.0637841% County San Mateo County San Mateo 1.074% 1.313% 1.1159599% City Belmont San Mateo 0.021% 0.0169860%City Burlingame San Mateo 0.019% 0.0152537%City Daly City San Mateo 0.044% 0.0363880%City East Palo Alto San Mateo 0.013% 0.0103982%City Foster City San Mateo 0.020% 0.0166101%City Half Moon Bay San Mateo 0.004% 0.0031638%City Hillsborough San Mateo 0.013% 0.0110029%City Menlo Park San Mateo 0.015% 0.0126209%City Millbrae San Mateo 0.013% 0.0105836%City Pacifica San Mateo 0.016% 0.0130625%City Redwood City San Mateo 0.056% 0.0463511%City San Bruno San Mateo 0.021% 0.0172161%City San Carlos San Mateo 0.013% 0.0108885%City San Mateo San Mateo 0.052% 0.0425841%City South San Francisco San Mateo 0.043% 0.0353943% County Santa Barbara County Santa Barbara 1.132% 1.385% 1.1768968% City Carpinteria Santa Barbara 0.001% 0.0008938%City Goleta Santa Barbara 0.004% 0.0028969%City Lompoc Santa Barbara 0.047% 0.0389379%City Santa Barbara Santa Barbara 0.122% 0.1004559%City Santa Maria Santa Barbara 0.058% 0.0479179% County Santa Clara County Santa Clara 2.404% 2.941% 2.4987553% City Campbell Santa Clara 0.014% 0.0112566%City Cupertino Santa Clara 0.008% 0.0066824%City Gilroy Santa Clara 0.025% 0.0202891%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage City Los Altos Santa Clara 0.013% 0.0103338%City Los Gatos Santa Clara 0.013% 0.0103220%City Milpitas Santa Clara 0.036% 0.0298120%City Morgan Hill Santa Clara 0.015% 0.0124619%City Mountain View Santa Clara 0.041% 0.0334608%City Palo Alto Santa Clara 0.039% 0.0323080%City San Jose Santa Clara 0.294% 0.360% 0.3054960%City Santa Clara Santa Clara 0.067% 0.0549723%City Saratoga Santa Clara 0.004% 0.0034161%City Sunnyvale Santa Clara 0.053% 0.0434069% County Santa Cruz County Santa Cruz 0.783% 0.957% 0.8135396% City Capitola Santa Cruz 0.020% 0.0168191%City Santa Cruz Santa Cruz 0.143% 0.1180348%City Scotts Valley Santa Cruz 0.015% 0.0126525%City Watsonville Santa Cruz 0.063% 0.0520136% County Shasta County Shasta 1.095% 1.339% 1.1380191%
City Anderson Shasta 0.024% 0.0198896%City Redding Shasta 0.284% 0.2334841%City Shasta Lake Shasta 0.004% 0.0031993% County Siskiyou County Siskiyou 0.228% 0.279% 0.2373393%County Solano County Solano 0.760% 0.6260795% City Benicia Solano 0.031% 0.0253903%City Dixon Solano 0.016% 0.0130849%City Fairfield Solano 0.109% 0.0897317%City Suisun City Solano 0.021% 0.0176183%City Vacaville Solano 0.119% 0.0976497%City Vallejo Solano 0.167% 0.1373644% County Sonoma County Sonoma 1.218% 1.490% 1.2661290%
City Healdsburg Sonoma 0.032% 0.0266929%City Petaluma Sonoma 0.081% 0.0667507%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage City Rohnert Park Sonoma 0.041% 0.0340759%City Santa Rosa Sonoma 0.184% 0.1519070%City Sonoma Sonoma 0.022% 0.0183438%City Windsor Sonoma 0.016% 0.0129298% County Stanislaus County Stanislaus 1.722% 1.4182273%
City Ceres Stanislaus 0.041% 0.0340260%City Modesto Stanislaus 0.217% 0.1788759%City Newman Stanislaus 0.006% 0.0046964%City Oakdale Stanislaus 0.018% 0.0145531%City Patterson Stanislaus 0.015% 0.0126590%City Riverbank Stanislaus 0.010% 0.0085699%City Turlock Stanislaus 0.065% 0.0531966% County Sutter County Sutter 0.306% 0.374% 0.3179548%
City Yuba City Sutter 0.074% 0.0606242%
County Tehama County Tehama 0.213% 0.261% 0.2216654%
City Red Bluff Tehama 0.014% 0.0117771%
County Trinity County Trinity 0.082% 0.101% 0.0855476%County Tulare County Tulare 0.809% 0.990% 0.8410949% City Dinuba Tulare 0.014% 0.0116929%City Exeter Tulare 0.004% 0.0032479%City Farmersville Tulare 0.003% 0.0027879%City Lindsay Tulare 0.007% 0.0057111%City Porterville Tulare 0.021% 0.0171845%City Tulare Tulare 0.037% 0.0302273%City Visalia Tulare 0.066% 0.0545872% County Tuolumne County Tuolumne 0.486% 0.594% 0.5047621%County Ventura County Ventura 2.192% 2.681% 2.2781201% City Camarillo Ventura 0.002% 0.0012815%City Fillmore Ventura 0.002% 0.0020294%City Moorpark Ventura 0.008% 0.0067337%
APPENDIX 1
Participating
Subdivision
Classification
Participating Subdivision County Abatement Percentage Plaintiff Subdivision Percentage Weighted Allcation Percentage City Oxnard Ventura 0.156% 0.190% 0.1617338%City Port Hueneme Ventura 0.021% 0.0174145%City San Buenaventura (Ventura) Ventura 0.085% 0.0702181%City Santa Paula Ventura 0.014% 0.0119072%City Simi Valley Ventura 0.065% 0.0533043%City Thousand Oaks Ventura 0.022% 0.0179902% County Yolo County Yolo 0.357% 0.437% 0.3713319%
City Davis Yolo 0.055% 0.0451747%City West Sacramento Yolo 0.066% 0.0544321%City Woodland Yolo 0.058% 0.0477904% County Yuba County Yuba 0.214% 0.262% 0.2225679%
City Marysville Yuba 0.014% 0.0112079%
1 APPENDIX 2
Cost Reimbursement Procedure
1. Additional defined terms:
a) Costs means the reasonable amounts paid for the attorney and other City Attorney and County Counsel staff time for individuals employed by a Plaintiff Subdivision at the contractual rate, inclusive of benefits and overhead, together with amounts paid for court reporters, experts, copying, electronic research, travel, vendors, and the like, which were paid or incurred (i) prior to July 21, 2021 in litigation against any Opioid Defendant and/or (ii) in negotiating and drafting this CA Distributor Allocation Agreement. Costs does not include attorneys’ fees, costs, or expenses incurred by private contingency fee counsel. No part of the CA Abatement Accounts Fund will be used to reimburse Costs. b) First Claims Date means October 1, 2023 or when all applications for reimbursement of Costs, in whole or in part, from funds available under Section X and Exhibit R of the Distributor Settlement Agreement or Section XI and Exhibit R of the Janssen Settlement Agreement, have been finally determined under the provisions of those agreements, whichever comes first.
c) Special Master means a retired judicial officer or former public lawyer, not presently employed or retained by a Plaintiff Subdivision, who will aggregate, review, and determine the reasonable Costs to be awarded to each Plaintiff Subdivision that submits a claim for reimbursement of Costs. The Special Master will be selected by a majority vote of the votes cast by Plaintiff Subdivisions, with each such subdivision having one vote. d) Plaintiff Subdivision Committee means the committee of Plaintiff Subdivisions that will review and approve the invoices submitted by the Special Master reflecting his or her reasonable time and expenses.
2. Cost Reimbursement to Plaintiff Subdivision
a) Purpose. Substantial resources have been expended to hold Opioid Defendants accountable for creating and profiting from the opioid crisis, and this effort has been a significant catalyst in creating a National Opioid Settlement with Distributors, Johnson & Johnson, and others.
b) Claims Procedure.
i. If a Plaintiff Subdivision is eligible to seek reimbursement of Costs, in whole or in part, from funds available under Section X or Exhibit R of the Distributor Settlement Agreement or Section XI or Exhibit R of the Janssen Settlement Agreement, it must first make a timely application for reimbursement from such funds. To allow sufficient time for determination of those applications, no claim for
2 Costs to the CA Subdivision Fund under this Agreement may be made before the First Claims Date.
ii. A Plaintiff Subdivision that wishes to be reimbursed from the CA Subdivision Fund must submit a claim to the Special Master no later than forty-five (45) days after the First Claims Date. The Special Master will then compile and redistribute the aggregated claim totals for each Plaintiff Subdivision via email to representatives of all the Plaintiff Subdivisions. A claim for attorney and staff time must list, for each attorney or staff member included in the claim, the following information: name, title, total hours claimed, hourly rate (including, if sought, benefits and share of overhead), and narrative summarizing the general nature of the work performed by the attorney or staff member. For reimbursement of “hard” costs, the subdivision may aggregate across a category (e.g., total for travel costs). It is the intention of the Plaintiff Subdivisions that submission of documents related to reimbursement of Costs does not waive any attorney-client privilege or exemptions to the California Public Records Act.
iii. The Special Master may request, at his or her sole option, additional documents or details to assist in the final award of Costs.
iv. The Special Master will review claims for reasonableness and will notify each Plaintiff Subdivision of the final determination of its claim, and will provide a list of all final awards to all Plaintiff Subdivisions by email or, upon request, via First Class U.S. Mail. Any Plaintiff Subdivision may ask the Special Master to reconsider any final award within twenty-one (21) days. The Special Master will make a final determination on any such reconsideration request within thirty (30) days of receipt. v. Any decision of the Special Master is final and binding, and will be considered under the California Arbitration Act, Code of Civil Procedure section 1280 et seq. as a final arbitration award. Nothing in this agreement is intended to expand the scope of judicial review of the final award for errors of fact or law, and the Parties agree that they may only seek to vacate the award if clear and convincing evidence demonstrates one of the factors set forth in Code of Civil Procedure, section 1286.2, subdivision (a). Plaintiff Subdivisions will have fourteen (14) days after all final awards are made, together with any final determination of a request for reconsideration, to seek review in the Superior Court of California, pursuant to Code of Civil Procedure, section 1285, where the State has filed its Consent Judgment. vi. The Special Master will prepare a report of Costs that includes his or her fees and expenses at least ninety (90) days before the Payment Date for each Annual Payment. The Special Master’s preparation of a report of Costs does not discharge a Plaintiff Subdivision’s reporting requirement under Section V.B.2 of the Distributor Agreement.
vii. A member of the Plaintiff Subdivision Committee, which is a CA Participating Subdivision, will submit to the Settlement Fund Administrator and the Distributors a
3 report of the fees and expenses incurred by the Special Master pursuant to Section V.B.2 of the Distributor Agreement.
c) Claims Priority and Limitation.
i. The Special Master will submit invoices for compensation of reasonable fees and expenses to the Plaintiff Subdivision Committee no later than ninety (90) days prior to the Payment Date for each Annual Payment. The Plaintiff Subdivision Committee will promptly review and, if reasonable, approve the Special Master’s invoice for compensation. The Plaintiff Subdivision Committee will submit approved invoices to the Settlement Fund Administrator for payment. The Special Master’s approved invoices have priority and will be paid first from the CA Subdivision Fund before any award of Costs, subject to the limitation in Section 2.c.v below. ii. Final Awards of Costs that do not exceed seventy-five thousand dollars ($75,000.00) will be paid next in priority after the Special Master’s approved invoices.
iii. Final Awards of Costs in excess of seventy-five thousand dollars ($75,000.00) will be paid proportionally from the funds remaining in that year’s Annual Payment. iv. Any claim for Costs that is not paid in full will be allocated against the next year’s distribution from the CA Subdivision Fund, until all approved claims for Costs are paid in full.
v. In no event will more than 50% of the total CA Subdivision Fund received in any year be used to pay Costs or the Special Master’s approved invoices. vi. In no event shall more than $28 million of the total CA Subdivision Funds paid pursuant to the Distributor Settlement Agreement and the Janssen Settlement Agreement be used to pay Costs.
d) Collateral Source Payments and Third-Party Settlement. i. In the event a Plaintiff Subdivision is awarded compensation, in whole or in part, by any source of funds created as a result of litigation against an Opioid Defendant for its reasonable Costs, it will reduce its claim for Costs from the CA Subdivision Fund by that amount. If a Plaintiff Subdivision has already received a final award of Costs from the CA Subdivision Fund, it will repay the fund up to the prior award of Costs via a payment to the Settlement Fund Administrator or notify the Settlement Fund Administrator that its allocation from the next and subsequent Annual Payments should be reduced accordingly. If the Plaintiff Subdivision is repaying any prior award of Costs, that repayment will occur as soon as is feasible after the Plaintiff Subdivision’s receipt of Cost funds from the collateral source, but no more than 90 days after its receipt from the collateral source. The Settlement Fund Administrator will add any repaid Costs to the CA Subdivision Fund.
4 ii. In the event a Plaintiff Subdivision reaches a monetary settlement or compromise against any Opioid Defendant outside of the National Opioid Settlement, the monetary portion of such settlement, net of fees paid to outside contingency fee counsel and of funds earmarked strictly for abatement, will be credited against its Costs and the subdivision will be ineligible to recover those credited Costs from the CA Subdivision Fund. Plaintiff Subdivisions negotiating monetary settlements or compromises against any Opioid Defendant outside of the National Opioid Settlement will negotiate for funds to repay any Costs it previously received from the CA Subdivision Fund or for Costs it otherwise might be eligible to claim from the CA Subdivision Fund. If such a settlement is paid after all final approved claims for Costs by all Plaintiff Subdivisions are satisfied in full, the settling subdivision will reimburse the CA Subdivision Fund in that amount by making payment to the Settlement Fund Administrator to add to the CA Subdivision Fund in a manner consistent with the repayments described in section 2.d.i above.
APPENDIX 3
CALIFORNIA-SUBDIVISION BACKSTOP AGREEMENT
On August 6, 2021, Judge Polster of the US District Court for the Northern District of Ohio issued an Order (the Order), docket number 3814, in In Re National Prescription Opiate Litigation, MDL 2804, addressing contingent attorney fee contracts between political subdivisions eligible to participate in the Distributors Settlement and their counsel.
In light of the Order, and at the request of [SUBDIVISION], the [SUBDIVISION], its counsel [COUNSEL], and the California Attorney General, on behalf of the State of California, are entering into this California-Subdivision Backstop Agreement (Backstop Agreement). [SUBDIVISION] and [COUNSEL] intend this Backstop Agreement to constitute a State BackStop Agreement as that term is used in the Order and in Exhibit R (Agreement on Attorneys’ Fees, Expenses and Costs) of the Distributor Settlement Agreement.
Pursuant to this Backstop Agreement, [SUBDIVISION] may, subject to the limitations of the Distributor Settlement Agreement and CA Distributor Allocation Agreement, as well as any other limitations imposed by law, use funds that it receives from the Distributor Settlement CA Subdivision Fund to pay a contingent fee to [COUNSEL]. Any such payment from [SUBDIVISION] to [COUNSEL], together with any contingency fees that [COUNSEL] may receive from the national Attorney Fee Fund, will not exceed a total contingency fee of [PERCENTAGE NOT TO EXCEED 15%] of the total gross recovery of [SUBDIVISION] from the Distributors Settlement.
[COUNSEL] certify that they first sought fees and costs from the Attorney Fee Fund created under the Distributor Settlement Agreement before seeking or accepting payment under this backstop agreement. [COUNSEL] further certify that they are not seeking and will not accept payment under this backstop agreement of any litigation fees or costs that have been reimbursed through prior settlements or judgments.
The Attorney General is executing this agreement solely because the definition of “State BackStop Agreement” in Exhibit R of the Distributor Settlement Agreement requires such agreements to be between “a Settling State” and private counsel for a participating subdivision. Neither the California Attorney General nor the State of California have any obligations under this Backstop Agreement, and this Backstop Agreement does not require the payment of any state funds to [SUBDIVISION], [COUNSEL], or any other party.
[DATE] [SUBDIVISION SIGNATURE BLOCK]
[DATE] [COUNSEL SIGNATURE BLOCK]
[DATE] [ATTORNEY GENERAL SIGNATURE BLOCK]
SAMPLE
EXHIBIT K
Subdivision and Special District Settlement Participation Form Will your subdivision or special district be signing the settlement participation forms for the Allergan and Teva Settlements at this time?
[ ] Yes [ ] No
Governmental Entity: San Bernardino County State: CA
Authorized Signatory:
Address 1:
Address 2:
City, State, Zip:
Phone:
Email:
The governmental entity identified above (“Governmental Entity”), in order to obtain and in consideration for the benefits provided to the Governmental Entity pursuant to the Agreement dated November 22, 2022 (“Allergan Settlement”), and acting through the undersigned authorized official, hereby elects to participate in the Allergan Settlement, release all Released Claims against all Released Entities, and agrees as follows.
1. The Governmental Entity is aware of and has reviewed the Allergan Settlement, understands that all terms in this Election and Release have the meanings defined therein, and agrees that by this Election, the Governmental Entity elects to participate in the Allergan Settlement as provided therein.
2. Following the execution of this Settlement Participation Form, the Governmental Entity shall comply with Section III.B of the Allergan Settlement regarding Cessation of Litigation Activities.
3. The Governmental Entity shall, within fourteen (14) days of the Reference Date and prior to the filing of the Consent Judgment, file a request to dismiss with prejudice any Released Claims that it has filed. With respect to any Released Claims pending in In re National Prescription Opiate Litigation, MDL No. 2804, the Governmental Entity authorizes the MDL Plaintiffs’ Executive Committee to execute and file on behalf of the Governmental Entity a Stipulation of Dismissal With Prejudice substantially in the form found at https://nationalopioidsettlement.com.
4. The Governmental Entity agrees to the terms of the Allergan Settlement pertaining to Subdivisions and Special Districts as defined therein.
5. By agreeing to the terms of the Allergan Settlement and becoming a Releasor, the Governmental Entity is entitled to the benefits provided therein, including, if applicable, monetary payments beginning after the Effective Date.
6. The Governmental Entity agrees to use any monies it receives through the Allergan Settlement solely for the purposes provided therein.
1 ATTACHMENT 8
SAMPLE
7. The Governmental Entity submits to the jurisdiction of the court in the Governmental Entity’s state where the Consent Judgment is filed for purposes limited to that court’s role as provided in, and for resolving disputes to the extent provided in, the Allergan Settlement.
8. The Governmental Entity has the right to enforce the Allergan Settlement as provided therein.
9. The Governmental Entity, as a Participating Subdivision or Participating Special District, hereby becomes a Releasor for all purposes in the Allergan Settlement, including, but not limited to, all provisions of Section V (Release), and along with all departments, agencies, divisions, boards, commissions, Subdivisions, districts, instrumentalities of any kind and attorneys, and any person in their official capacity whether elected or appointed to serve any of the foregoing and any agency, person, or other entity claiming by or through any of the foregoing, and any other entity identified in the definition of Releasor, provides for a release to the fullest extent of its authority. As a Releasor, the Governmental Entity hereby absolutely, unconditionally, and irrevocably covenants not to bring, file, or claim, or to cause, assist in bringing, or permit to be brought, filed, or claimed, or to otherwise seek to establish liability for any Released Claims against any Released Entity in any forum whatsoever. The releases provided for in the Allergan Settlement are intended to be broad and shall be interpreted so as to give the Released Entities the broadest possible bar against any liability relating in any way to Released Claims and extend to the full extent of the power of the Governmental Entity to release claims. The Allergan Settlement shall be a complete bar to any Released Claim.
10. The Governmental Entity hereby takes on all rights and obligations of a Participating Subdivision or Participating Special District as set forth in the Allergan Settlement.
11. In connection with the releases provided for in the Allergan Settlement, each Governmental Entity expressly waives, releases, and forever discharges any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States or other jurisdiction, or principle of common law, which is similar, comparable, or equivalent to § 1542 of the California Civil Code, which reads:
General Release; extent. A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
A Releasor may hereafter discover facts other than or different from those which it knows, believes, or assumes to be true with respect to the Released Claims, but each Governmental Entity hereby expressly waives and fully, finally, and forever settles, releases and discharges, upon the Effective Date, any and all Released Claims that may exist as of such date but which Releasors do not know or suspect to exist, whether through ignorance, oversight, error, negligence or through no fault whatsoever, and which, if known, would materially affect the Governmental Entities’ decision to participate in the Allergan Settlement.
12. Nothing herein is intended to modify in any way the terms of the Allergan Settlement, to which the Governmental Entity hereby agrees. To the extent this Settlement Participation Form is interpreted differently from the Allergan Settlement in any respect, the Allergan Settlement controls.
2
SAMPLE
I have all necessary power and authorization to execute this Settlement Participation Form on behalf of the Governmental Entity.
Signature:
Name:
Title:
Date:
3
Item 9.h.
MEMORANDUM
TO: City Council
FROM: Whitney McDonald, City Manager
BY: Jessica Matson, Legislative & Information Services Director/City Clerk SUBJECT: Consideration of Cancellation of July 11, 2023 City Council Meeting DATE: April 11, 2023
SUMMARY OF ACTION:
Cancellation of the July 11, 2023 City Council meeting.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
There is minimal cost savings due to reduced staff time associated with agenda and meeting preparation.
RECOMMENDATION:
Cancel the regularly scheduled Council meeting of July 11, 2023.
BACKGROUND:
On August 14, 2007, the City Council considered the concept of establishing a policy of designating a summer month for cancellation of Council meetings. The purpose was to designate a month that would be “dark” from Council meetings in the summer so the City Council and staff could coordinate their vacations during this period. Staff recommended the month of July because it was the only full month in which school is not in session and because it includes the July 4th holiday.
ANALYSIS OF ISSUES:
The City Council meets twice a month on the second and fourth Tuesdays. When the Council considered the policy of designating a summer month for cancellation, concerns were expressed regarding the impact on other meeting agendas and potential delays to important items. Therefore, it was suggested that one meeting be cancelled in July as a compromise. The City Council concurred and a policy was established to cancel the first meeting in July of each year. The policy was reviewed in October 2022 as part of the City Council Handbook update. The updated Council Handbook was approved and it is recommended that this policy be observed this year by cancelling the July 11 th meeting.
Item 9.h.
City Council
Consideration of Cancellation of July 11, 2023 City Council Meeting April 11, 2023
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Cancel the July 11, 2023 City Council Meeting;
2. Cancel the July 25, 2023 City Council Meeting;
3. Do not cancel any meetings in July 2023;
4. Direct staff to make changes to the current policy; or
5. Provide other direction to staff.
ADVANTAGES:
Cancelling the July 11, 2023 meeting provides the City Council and staff an opportunity to plan a vacation during the summer months without being absent from a meeting or being concerned about missing an item that is important for their vote or input.
DISADVANTAGES:
Cancellation of a regular meeting may result in heavier agendas at the prior and following meetings.
ENVIRONMENTAL REVIEW:
No environmental review is required for this item.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with Government Code Section 54954.2.
Item 9.i.
MEMORANDUM
TO: City Council
FROM: Michael Martinez, Chief of Police
BY: David Culver, Police Commander
SUBJECT: Receive and File Annual Military Equipment Report Pursuant to California AB 481; Review and Consider Renewal of Ordinance No. 714 DATE: April 11, 2023
SUMMARY OF ACTION:
Annual update regarding the Police Department’s ongoing use of military equipment as defined in Assembly Bill 481 (AB 481) and codified in Government Code sections 7070 through 7075;Gov. Code 7071(e)(1) requires a motion to approve the renewal of Ordinance No. 714 to authorize continued use of the specified equipment listed in the Police Department’s Military Equipment Report.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
The Arroyo Grande Police Department is currently in possession of items categorized as military equipment following the Council’s adoption of Ordinance No. 714 Military Equipment Use Policy. The fiscal impacts associated with Ordinance No. 714 for FY 2022-23 include purchasing specialized equipment, annual training costs, and replacement of munitions totaling $15,245.71. The cost of maintaining the current inventory and purchasing new equipment in 2023 is outlined in the Police Department’s Military Equipment Report.
RECOMMENDATION:
Receive and file the “Military Equipment Use Inventory Report” in accordance with California Assembly Bill 481 and make a motion to approve the renewal of Ordinance No. 714.
BACKGROUND:
On September 30, 2021, Assembly Bill 481 (AB 481) was codified in Government Code sections 7070 through 7075 and required the governing body of a law enforcement agency to adopt a “Military Equipment Use” Policy (“Policy”) no later than May 1, 2022.
The Police Department complied with AB 481 in the development of a policy, holding a community meeting, and making the Policy documents available on their website prior to
Item 9.i.
City Council
Annual Update on Military Equipment Pursuant to California AB 481 April 11, 2023
the Council adopting the Policy via Arroyo Grande City Ordinance No. 714 on April 12, 2022 (Attachment 3).
AB 481 requires the City Council to review, at least annually, the Ordinance adopting the Military Equipment Use Policy, and vote on whether to renew the ordinance to allow the Police Department to continue to use the equipment covered by the Policy. AB 481 also requires the Police Department to present an annual report to the City Council that covers:
1) the use of the equipment; 2) any complaint(s) or concern(s) regarding the use of the equipment; 3) results of any internal audits on the use of the equipment; 4) the annual costs for the equipment, including acquisition, personnel, training, storage, and other ongoing costs, as well as the source from which the funds will be provided for this purpose; 5) the quantity of each type of military equipment possessed by the agency; and 6) if the Police Department intends to purchase additional equipment in the following year, the quantity sought for each type of equipment.
The procedural requirements of AB 481 for the Council to approve the Annual Military Equipment report are defined by California Government Code Section 7072 as follows:
A law enforcement agency that receives approval of a military equipment use policy pursuant to Section 7071 shall submit to the governing body an annual military equipment report for each type of military equipment approved by the governing body within one year of approval, and annually thereafter for as long as the military equipment is available for use. The law enforcement agency shall also make each annual military equipment report required by this section publicly available on its internet website for as long as the military equipment is available for use.
ANALYSIS OF ISSUES:
AB 481 was introduced to increase transparency and accountability for the funding, acquisition, and use of military equipment by state and local law enforcement agencies.
The legislation includes a broad definition of what constitutes “military equipment,” including items such as drones that are commonly used in everyday society by members of the public and have been effectively deployed for many years by law enforcement agencies to respond to emerging threats, civil unrest, and mass casualty events.
Furthermore, several of the items the bill defines as “military equipment” are not necessarily used by the military but are less-than-lethal, standard issue equipment for peace officers. While possession of such equipment does not warrant its use in common circumstances, this essential equipment is deployed based on the situational necessity to effectively de-escalate intense situations or bring volatile conditions and critical incidents to a safe resolution.
Staff reviewed department records and determined there were no complaints or concerns raised regarding the use of the City’s military equipment in 2022. Staff’s internal audit of
Item 9.i.
City Council
Annual Update on Military Equipment Pursuant to California AB 481 April 11, 2023
equipment use determined there were no violations of the Policy (AGPD Policy #709) or any other departmental policy. Included herewith as Attachment 2 is an Annual Military Equipment Report, prepared pursuant to the requirements of Government Code section 7072.
New Equipment for 2023
Staff has reviewed the equipment needs for the Police Department and determined there is a need to purchase more unmanned aircraft system (UAS) (specifically, four “DJI Mavic Minis”), more specifically identified in the 2023 Military Equipment Inventory included as Attachment 1, and which would fall under the Military Equipment Use Policy. The DJI Minis UAS are available through commercial retail stores selling to the public.
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. 1) Receive and file Annual Military Equipment Report pursuant to California AB 481; and 2) Review and make a motion to renew Ordinance No. 714;
2. Do not move to approve the renewal of Ordinance No. 714 or accept the annual Military Equipment Report; or
3. Provide alternative direction to staff.
ADVANTAGES:
Taking the recommended action will comply with State law requirements and will promote transparency involving Police Department acquisitions, use, and/or purchases of equipment identified and defined in AB 481. The equipment outlined in this report is essential to law enforcement’s mission.
DISADVANTAGES:
No disadvantages are identified.
ENVIRONMENTAL REVIEW:
No environmental review is required for this item.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with Government Code Section 54954.2. In accordance with AB 481, the proposed Military Equipment Use Policy was also posted on the Police Department’s website, www.agpd.org, on March 16, 2023.
Attachments:
1. 2022 Military Equipment Inventory
2. 2023 Annual Military Equipment Report
3. Ordinance No. 714
ARROYO GRANDE POLICE DEPARTMENT
2022 MILITARY EQUIPMENT INVENTORY
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ATTACHMENT 1
1. Unmanned Aircraft System (UAS): An unmanned aircraft along with the associated equipment necessary to control it remotely.
Agency cost of maintaining the UAV (training and software) program in 2022: $750.00 a) Description, quantity, capabilities, and purchase cost of current UAS:
i. DJI MAVIC ENTERPRISE Advanced, cost: $6,900 each, quantity: 2. UAS that has a color and inferred camera as well as audible speaker and light. Capable of video recording, weighs 909 grams, and has approx. 30 minutes of flight time. b) Purpose
To be deployed when its view would assist officers or incident commanders with the following situations, which include but are not limited to:
i. major collision investigations.
ii. search for missing persons.
iii. natural disaster management.
iv. crime scene photography.
v. SWAT, tactical, or other public safety and life preservation missions. vi. In response to specific requests from local, state, or federal fire authorities for fire response and/or prevention.
c) Authorized Use
Only assigned operators who have completed the required training shall be permitted to operate the DJI Mavic during approved missions.
d) Expected Life Span
All UAS equipment, 3-5 years.
e) Fiscal Impact
Annual maintenance and battery replacement cost is approximately $200. f) Training
All Department UAS operators are licensed by the Federal Aviation Administration for UAS operation. In addition, each operator must attend a department training and ongoing quarterly training.
g) Legal and Procedural Rules
Use is established under FAA Regulation 14 CFR Part 107, and the City of Arroyo Grande UAS policy. It is the policy of the AGPD to utilize UAS only for official law enforcement
ARROYO GRANDE POLICE DEPARTMENT
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ATTACHMENT 1
purposes, and in a manner that respects the privacy of our community, pursuant to State and Federal law.
2. 40 MM Launchers and Rounds: 40MM Launchers are utilized by department personnel as a less lethal tool to launch impact rounds.
This platform was maintained at no cost to the city during the 2022 calendar year. a) Description, quantity, capabilities, and purchase cost 1) DEFENSE (LMT) TECHNOLOGY, 40MM SINGLE SHOT LAUNCHER, cost: $1000, quantity:
9. The 40MM Single Launcher is a tactical single shot launcher that features an expandable ROGERS Super Stock and an adjustable Integrated Front Grip (IFG) with light rail. It will fire standard 40mm less lethal ammunition, up to 4.8 inches in cartridge length. It will launch a 40MM less lethal round up to 131 feet. This less lethal platform replaced the Bean Bag shotgun and is authorized to be used by patrol personnel. The launcher is orange in color and has a holographic red dot sighting system.
2) BYRNA SDI. The 40mm BIP is a blunt impact kinetic energy round. Cost: $22 per round, quantity: 50. The patented technology involves an internal energy absorption system, as well as a collapsible gel head. BIPs have an effective minimal optimal range of 6.6 feet (2m), though are operational at point blank. In independent party Blunt Trauma Testing of several 40mm Impact rounds, the BIP round had the lowest impact force response. The Viscous criterion (VC) was used as an indicator of injury severity, the higher (VC) value the higher the risk of injury. The BIP Peaked at (0.10) while the other rounds peaked at (.012-.097) The BIP has been designed utilizing ballistic technologies, which allow for consistent in-flight stability throughout an almost flat trajectory.
These rounds have repeatedly shown effectiveness and reliability at ranges up to 150 feet (45m)
3) DEFENSE TECHNOLOGY, FERRETT 40MM LIQUID BARRICADE PENETRATOR ROUND, cost: $23, quantity: 15. A 40MM round used to penetrate barriers, such as windows, hollow core doors, wallboard and thin plywood. Upon impacting the barrier, the nose cone ruptures and instantaneously delivers a small chemical payload inside of a structure or vehicle. In a tactical deployment situation, the 40mm Ferret is primarily used to dislodge barricaded subjects from confined areas. Its purpose is to minimize the risks to all parties through pain compliance, temporary discomfort and/or incapacitation of potentially violent or dangerous subjects. This is for use by SWAT team members only.
ARROYO GRANDE POLICE DEPARTMENT
2022 MILITARY EQUIPMENT INVENTORY
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ATTACHMENT 1
b) Purpose
To limit the escalation of conflict and preserve lives where the employment of lethal force is prohibited or undesirable.
c) Authorized Use
Situations for use of the less lethal weapon systems may include, but are not limited to:
i. Self-destructive, dangerous and/or combative individuals. ii. Riot/crowd control and civil unrest incidents.
iii. Circumstances where a tactical advantage can be obtained. iv. Potentially vicious animals.
v. Training exercises or approved demonstrations.
d) Training
Sworn members utilizing 40MM less lethal chemical agents or impact rounds are trained in there use by POST certified less lethal and chemical agent instructors. e) Lifespan
Defense Technology LMT- 25 years.
BYRNA SDI. The 40mm BIP- 5 years.
Model 2262 Liquid Barricade Penetrator round- 5 years. f) Fiscal Impact
Annual maintenance is approximately $25 for each launcher.
Estimated cost of 40mm rounds for 2023 is $500.
g) Legal and Procedural Rules
Use is established under AGPD policy 308.8. It is the policy of the AGPD to utilize the 40mm only for official law enforcement purposes, and pursuant to State and Federal law, including those regarding the use of force.
3. Distraction Devices: A distract device is ideal for distracting dangerous suspects during assaults, hostage rescue, room entry or other high-risk arrest situations.
This platform was maintained at no cost to the city during the 2022 calendar year. a) Description, quantity, capabilities, and purchase cost 1) Defense Technology #8901, Cost $50 Quantity: 6. The Distraction Device® Reload utilizes a standard military-style M201A1 type fuze and produces 175 dB of sound output at 5 feet and 6-8 million candelas for 10 milliseconds. This reload is for use in the Distraction Device low roll body.
ARROYO GRANDE POLICE DEPARTMENT
2022 MILITARY EQUIPMENT INVENTORY
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ATTACHMENT 1
b) Purpose
To produce atmospheric over-pressure and brilliant white light and, as a result, can cause shortterm (6 - 8 seconds) physiological/psychological sensory deprivation to give officers a tactical advantage.
c) Authorized Use
i. Diversionary Devices shall only be used:
ii. By officers who have been trained in their proper use. iii. In hostage and barricaded subject situations.
iv. In high risk warrant (search/arrest) services where there may be extreme hazards to officers.
v. During other high-risk situations where their use would enhance officer safety. vi. During training exercises.
d) Lifespan
Until used.
e) Fiscal Impact
No annual maintenance.
f) Training
Prior to use, officers must attend diversionary device training that is conducted by Post certified instructors.
g) Legal and Procedural Rules
Use is established under AGPD policy 408. It is the policy of the AGPD to utilize diversion devices only for official law enforcement purposes, and pursuant to State and Federal law regarding the use of force.
4. Rifles: Guns that are fired from shoulder level, having a long spirally grooved barrel intended to make bullets spin and thereby have greater accuracy over a long distance.
Agency cost of maintaining the Patrol Rifle program in 2022: $9,873.21 Agency cost of maintaining the Patrol Rifle ammunition in 2022: $4,292.50 a) Description, quantity, capabilities, and purchase cost 1) Sig Sauer, MCX Virtus Patrol Semi-Automatic Rifle. Cost $2,000, quantity 27, officially designated Rifle, Caliber 5.56 NATO. Standard issued service weapon. (10 new Rifles were purchased with expected delivery in 2023, the new rifles were purchased after receiving a $7,720 credit for department owned weapons on longer in service)
ARROYO GRANDE POLICE DEPARTMENT
2022 MILITARY EQUIPMENT INVENTORY
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ATTACHMENT 1
2) Remington .223 CALIBER 55 GRAIN RIFLE ROUND, quantity 500 rounds. cost: $0.51 per round. Remington ammo made by PMC. This full metal jacket rounds are used for training and CA POST required qualification.
3) Hornady Black 5.56 Nato 75 GRAIN HD SBR RIFLE ROUND, quantity 4000 rounds. Cost $0.85 per round. 5.56 Nato 75 gr InterLock HD SBR Hornady Black is designed specifically for 10.5"-11.5" SBR’s by using proprietary propellant technology and a bullet designed with technology from industry leading Critical Duty FlexLock bullets. This round provides exceptional ammunition performance in SBR’s suppressed or unsuppressed, with virtually no flash or residue, dramatically reduced sound signature, will not foul or overheat suppressors, uniform velocity and accuracy, and provides controllable rate of fire in automatic platforms. Designed to meet the requirements of the FBI protocol, this round is the optimum choice for 10.5"-11.5" barreled 5.56 rifles. This is the Duty round for standard issue patrol rifles.
b) Purpose
To be used as precision weapons to address a threat with more precision and/or greater distances than a handgun, if present and feasible.
c) Authorized Use
Only members that are POST certified are authorized to use a rifle. d) Lifespan
1) Sig Sauer, MCX Virtus Patrol Semi-Automatic Rifle - no expiration. 2) Remington .223 CALIBER 55 GRAIN RIFLE ROUND - no expiration. 3) Hornady Black 5.56 Nato 75 GRAIN HD SBR RIFLE ROUND - no expiration. e) Fiscal Impact
Annual maintenance is approximately $50 for each rifle. Annual Ammunition cost is accounted for in current department budget. Rifle ammunition accounts for approximately $4500 annually.
f) Training
Prior to using a rifle officers must be certified by POST instructors in the operation of the rifle.
Additionally, all members that operate any rifle are required to pass a range qualification 4 times a year.
g) Legal and Procedural Rules
Use is established under AGPD policy 312 and 432. It is the policy of the AGPD to utilize rifles only for official law enforcement purposes, and pursuant to State and Federal law regarding the use of force. All Rifles deployed by Arroyo Grande Police Department are owned by the Police Department.
ARROYO GRANDE POLICE DEPARTMENT
2022 MILITARY EQUIPMENT INVENTORY
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ATTACHMENT 1
5. Chemical Agent and Smoke Canisters: Canisters that contain chemical agents that are released when deployed.
This platform was maintained at no cost to the city during the 2022 calendar year.
As of 2023 all current inventories of Chemical Agent and Smoke Canisters have expired and will be disposed of in 2023. Arroyo Grande Police Department has no plans to continue the use of or maintain inventory levels of this identified military item.
a) Description, quantity, capabilities, and purchase cost 1) DEFENSE TECHNOLOGY, Han-Ball CS GRENADE, #519, cost: $48, quantity: 10. The HanBall™ CS Grenade is an outdoor use grenade expelling its payload in approximately 15- 20 seconds. The rubber ball round has an overall size of 4.8 in. tall, including the fuse head, and 3.1 in. diameter. This devise is for use by members of the SWAT team in a tactical environment.
2) DEFENSE TECHNOLOGY Rubber Ball Blast Grenade, Inert. Cost $ 50, quantity 2. The Inert Rubber Blast Ball Grenade can be used effectively in both training and crowd management situations. It simulates the dispersion of Riot Control Agents from a CS, CN, or OC Blast Ball in a training environment, but without the actual chemical exposure. Deployed in crowd management /custodial situations to deliver light/sound stimuli from a rubber ball style grenade without chemical agent exposure. This devise is for use by members of the SWAT team in a tactical environment. b) Purpose
To limit the escalation of conflict where employment of lethal force is prohibited or undesirable.
Situations for use of the less lethal weapon systems may include, but are not limited to:
i. Self-destructive, dangerous and/or combative individuals. ii. Riot/crowd control and civil unrest incidents.
iii. Circumstances where a tactical advantage can be obtained. iv. Potentially vicious animals.
v. Training exercises or approved demonstrations.
vi. Authorized Use
vii. Only officers who have received POST certification in the use of chemical agents are authorized to use these agents.
c) Training
Sworn members utilizing chemical agent canisters are certified by POST less lethal and chemical agent instructors.
d) Lifespan
5 years from manufacturing date.
e) Fiscal Impact
No annual maintenance.
ARROYO GRANDE POLICE DEPARTMENT
2022 MILITARY EQUIPMENT INVENTORY
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ATTACHMENT 1
f) Legal and Procedural Rules
Use is established under the AGPD use of force policy 300. It is the policy of the AGPD to utilize chemical agents only for official law enforcement purposes, and pursuant to State and Federal law, including those regarding the use of force.
6. PepperBall Launcher: A device that discharges irritant projectiles.
Agency had no cost of maintaining PepperBall Launcher in 2022.
Agency cost of maintaining PepperBall projectiles in 2022: $330 a) Description, quantity, capabilities, and purchase cost 1) PepperBall FTC CARBINE, cost: $590, quantity 4. The FTC is a high-capacity, semiautomatic launcher that is reliable and accurate, it features a hopper that can hold up to 180 rounds and a flexible air source configuration. PepperBall® is the most versatile non-lethal system available, allowing officers to deploy it in a wide range of situations.
PepperBall's many uses include:
1. Anti-riot
2. Combative suspects
3. Vehicle interdiction
4. Non-compliant individuals
2) PepperBall LIVE-X PROJECTILE, cost: $3 per projectile. The Live Projectile contains a concentrated amount of PAVA pepper powder. Discharged from a PepperBall Launcher, the projectile has a velocity of 280-350 FPS. The projectile has a direct impact of 60ft and an area of saturation of 150+ft. The projectile contains 5% PAVA Powder. 3) PepperBall Glass Breaker Cost $2.50 per Projectile, Quantity 60. A solid polymer projectile used for breaking out residential windows and side-glass of automobiles. Not for use on humans or animals.
4) PepperBall INERT round. Cost $1 per projectile. Containing a harmless, scented powder, this projectile is best suited for training, qualifications, and direct impact when chemical exposure is not desired.
b) Purpose
To limit the escalation of conflict where employment of lethal force is prohibited or undesirable.
Situations for use of the less lethal weapon systems may include but, are not limited to:
i. Self-destructive, dangerous and/or combative individuals. ii. Riot/crowd control and civil unrest incidents.
iii. Circumstances where a tactical advantage can be obtained.
ARROYO GRANDE POLICE DEPARTMENT
2022 MILITARY EQUIPMENT INVENTORY
8 | P a g e
ATTACHMENT 1
iv. Potentially vicious animals.
v. Training exercises or approved demonstrations.
c) Authorized Use
Only those officers who have been trained in the use of PepperBall launchers are authorized to use the PepperBall launchers.
d) Training
Sworn members utilizing PepperBall launchers and projectiles are trained in there use by PepperBall certified less lethal and chemical agent instructors. e) Lifespan
i. PepperBall FTC Carbine- 20 years
ii. PepperBall Live-X Projectile- 3 years
iii. PepperBall Glass Breaker- 20 years
iv. PepperBall INERT Projectile- 3 years
f) Fiscal impact
Annual maintenance is approximately $25 for each PepperBall launcher.
Estimated cost for projectiles in 2023 is $300
g) Legal and Procedural Rules
Use is established under AGPD policy 308.6.1. It is the policy of the AGPD to utilize PepperBall only for official law enforcement purposes, and pursuant to State and Federal law, including those regarding the use of force.
MAINTENANCE OF MILITARY USE SUPPLY LEVELS
When munitions stock for "military equipment" have reached significantly low levels, or have been exhausted, the Department may order replacement stock based upon current approved city operational budget in a calendar year without city council approval to maintain essential availability for the Department’s needs. The purchase of this would be included in the annual report.
ARROYO GRANDE POLICE DEPARTMENT
2023 ANNUAL MILITARY EQUIPMENT REPORT,
Prepared Pursuant to Government Code § 7072
1 | P a g e
ATTACHMENT 2
In accordance with Government Code section 7072, the Arroyo Grande Police Department hereby submits for City Council review and approval the following annual military equipment report.
1. A summary of how the military equipment was used and the purpose of its use.
All military equipment owned by the Department, which is detailed in Exhibit A to the Department’s Military Equipment Use Policy, was used exclusively for the purposes designated by that Policy. In general, those purposes include: 1) use of unmanned aircraft systems when they would assist officers or incident commanders in viewing urgent situations including collisions, missing persons, and crime scenes, among other things; 2) use of 40 mm impact round launchers and rounds to limit the escalation of conflict and preserve lives where the employment of lethal force is prohibited or undesired; 3) use of distraction devices to produce atmospheric over-pressure and brilliant white light and, as a result, cause short‐term (6 ‐ 8 seconds) physiological/psychological sensory deprivation to give officers a tactical advantage; 4) use of patrol rifles as precision weapons to address a threat from a greater distance than handguns when feasible; the patrol rifles provide officers with a higher probability of stopping a treat and protecting the public 5) use of chemical agents and smoke canisters to limit the escalation of conflict where lethal force is prohibited or undesirable; and 6) use of PepperBall launchers and projectiles to limit escalation of conflict where lethal force is prohibited or undesirable.
In 2022, the AGPD used items from Categories 1, 2, 4, and 6 for their stated purpose. These categories were use in operational deployments and during training actives to ensure officers are prepared to deploy the equipment in the safest manner for the protection of life. All officers received quarterly training and must complete a standard qualification course. All officers have completed a Patrol Rifle Course certified by the State of California Commission on Peace Officer Standards and Training. To support further Department operations, the AGPD plans to purchase four new unmanned aircraft systems (the “DJI Mavic Mini”) in 2023. AGPD also plans to maintain the patrol rifles program in 2023 and will report on the program as part of its next AB 481 annual update to the Council. Finally, AGPD would like to note that as of 2023, all current inventories of Category 5 (chemical agents and smoke canisters) have expired and will be disposed of – the Department does not plan to continue the use of, or otherwise maintain, inventory levels of this category.
2. A summary of any complaints or concerns received concerning the military equipment.
The Department did not receive any complaints or citizen outreach concerning the Department’s Military Equipment Use Policy or ongoing use of said equipment.
3. The results of any internal audits, any information about violations of the military equipment use policy, and any actions taken in response.
There were no violations of the Policy, and accordingly, no audits or actions took place in response.
4. The total annual cost for each type of military equipment, including acquisition, personnel, training, transportation, maintenance, storage, upgrade, and other ongoing costs, and from what source funds will be provided for the military equipment in the calendar year following submission of the annual military equipment report.
Costs associated with military equipment in 2022 totaled $15,245.71. This breaks down as follows:
ARROYO GRANDE POLICE DEPARTMENT
2023 ANNUAL MILITARY EQUIPMENT REPORT,
Prepared Pursuant to Government Code § 7072
2 | P a g e
ATTACHMENT 2
$750 for use of the Department’s two Unmanned Aerial Systems (UAS, or drones) for search and arrest of offenders, traffic collision investigations, special event security, fire department support, and firework response.
No cost in 2022 for use of the Department’s nine 40 mm launchers and munitions; these items were used during personnel training, but were not deployed during field patrol operations in 2022. Current stock of duty munitions in this category is 50. $9,873.21 to maintain the Patrol Rifle program in 2022, and $4,292.50 to purchase patrol rifle ammunition in 2022, for use of the Department’s 27 patrol rifles during field patrol operations and personnel training. Current approximate stock of duty rifle rounds is 4,000, and training rounds is 500.
No cost in 2022 for use of the Department’s six distraction devices; these were not needed for field patrol operations or personnel training.
No cost in 2022 for use of the Department’s 12 chemical agent and smoke canisters; these have now expired, and use will be discontinued by the Department in 2023. $330 for projectiles for use with the Department’s four PepperBall launchers. Current approximate stock of duty rounds is 300.
The Department anticipates spending approximately the same amount to use and maintain its current inventory in 2023, and also anticipates spending approximately $2,000 to purchase four new UAS (the DJI Mavic Mini), to equip new pilots to be added to the Department’s UAS team. The cost of maintaining the current inventory and purchasing the four new UAS will be sought during the review of the City’s Fiscal Year budget for 2023.
5. The quantity possessed for each type of military equipment.
The quantity for each type of military equipment used in 2022 is listed in Attachment 1 (Inventory List) to the Military Equipment Use Policy, available on the City’s website and in person at the Department.
6. If the law enforcement agency intends to acquire additional military equipment in the next year, the quantity sought for each type of military equipment.
The Department intends to spend approximately $2,000 in 2023 to acquire four new UAS (the DJI Mavic Mini). These are miniature UAS that can record video, with approximately 25 minutes of flight time. The purpose of acquiring these new UAS is to equip new pilots that the Department plans to add to its UAS team, to facilitate more readily available UAS operations by patrol officers. The smaller profile of the DJI Mavic Minis is beneficial in indoor or confined space deployments. By providing an aerial view perspective, drones have proven to be a valuable tool for reducing risk of harm to officers and suspects, and in providing public protection.
In addition, when munitions for any stock identified as military equipment have reached significantly low levels or have been exhausted, the Department may order replacement stock based upon current approved city operational budget in a calendar year without City Council approval to maintain essential availability for the Department’s needs. Any such purchases will be included in the following year’s AB 481 report.
ATTACHMENT 3
Item 9.j.
MEMORANDUM
TO: City Council
FROM: Bill Robeson, Assistant City Manager/Public Works Director SUBJECT: Consider Adoption of Resolutions Ordering the Preparation and Filing of Annual Engineer’s Reports for the Parkside Village Assessment District, Grace Lane Assessment District, and Landscaping and Lighting District No. 1, Within Tract 1769, for Fiscal Year DATE: April 11, 2023
SUMMARY OF ACTION:
Adoption of the Resolutions will authorize preparation of the Annual Engineer’s Reports for the Parkside Village, Grace Lane, and Tract 1769 Assessment Districts, as required by the California Landscape and Lighting Act of 1972.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
For Fiscal Year (FY) 2022-2023 the total budgets for the three subject Assessment Districts were as follows:
Parkside Village Assessment District $ 38,900
Grace Lane Assessment District $ 19,435
Landscaping and Lighting Assessment District No. 1 (Tract 1769) $ 5,900 It is anticipated that the FY 2023-2024 will be similar in total budget amounts.
RECOMMENDATION:
1) Adopt Resolutions ordering the preparation and filing of Annual Engineer’s Reports for the Parkside Village Assessment District, Grace Lane Assessment District, and Landscaping and Lighting Assessment District No. 1, within Tract 1769, for FY 2023-24. 2) Determine that adopting the resolutions ordering the Engineer’s reports is not a project subject to the California Environmental Quality Act (“CEQA”) because it has no potential to result in either a direct, or reasonably foreseeable indirect, physical change in the environment. (State CEQA Guidelines, §§ 15060, subd. (b)(2)-(3), 15378.)
Item 9.j.
City Council
Consider Adoption of Resolutions Ordering the Preparation and Filing of Annual Engineer’s Reports for the Parkside Village Assessment District, Grace Lane Assessment District, and Landscaping and Lighting District No. 1, Within Tract 1769, for Fiscal Year
April 11, 2023
BACKGROUND:
The California Landscape and Lighting Act of 1972 (California Streets and Highways Code section 22500 et seq., the “Act”) allows local governmental agencies to form assessment districts for the purpose of financing the costs and expenses of landscaping and lighting public areas. Accordingly, the City of Arroyo Grande formed the following three separate assessment districts in compliance with the Act:
Tract Number Assessment District Name Date formed
Tract 2310 Parkside Village Assessment District November 8, 2005 Tract 2236 Grace Lane Assessment District November 28, 2006 Tract 1769 Landscape and Lighting District No. 1 May 12, 1992 The Act requires that the City complete the following process each fiscal year in order to levy and collect assessments:
1. Adopt a Resolution describing any proposed new improvements or any substantial changes in existing improvements and ordering preparation and filing of an Engineer’s Report.
2. Approve the Engineer’s Report and adopt a Resolution of Intention. The Resolution of Intention declares the City Council’s intention to levy and collect assessments under the subject assessment districts for the upcoming fiscal year. It also states whether the assessment is proposed to change from the previous year and sets a date, hour, and place for a public hearing.
3. Conduct the public hearing affording all interested parties the opportunity to hear and be heard.
4. Adopt a Resolution confirming the assessment, which constitutes the levy of the assessments for FY 2023-24.
Upon fulfillment of these requirements, the City must submit the Resolution confirming the assessments to the County of San Luis Obispo for inclusion on the FY 2023-24 property tax roll.
ANALYSIS OF ISSUES:
The first step in the statutorily prescribed process contained in the Act requires that the City adopt a Resolution describing any proposed new improvements or any substantial changes in existing improvements and ordering the preparation and filing of an Engineer’s Report. The subject assessment districts are largely responsible for covering expenses related to maintaining the public landscaping within the defined boundaries of the separate districts.
No new improvements or substantial changes in existing improvements are proposed for any of the assessment districts for FY 2023-24.
Item 9.j.
City Council
Consider Adoption of Resolutions Ordering the Preparation and Filing of Annual Engineer’s Reports for the Parkside Village Assessment District, Grace Lane Assessment District, and Landscaping and Lighting District No. 1, Within Tract 1769, for Fiscal Year
April 11, 2023
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Adopt Resolutions ordering the preparation and filing of Annual Engineer’s Reports for the Parkside Village Assessment District, Grace Lane Assessment District and Landscaping and Lighting Assessment District No. 1, within Tract 1769, for FY 2023-24; or
2. Modify and adopt the Resolutions; or
3. Do not adopt the Resolutions; or
4. Provide other direction to staff.
ADVANTAGES:
Adoption of the Resolutions describing the existing improvements and ordering the preparation and filing of an Engineer’s Report will be in compliance with California Streets and Highways Code, Section 22622 and is the first step required in the levy of assessments.
DISADVANTAGES:
No disadvantages for this proposed action have been identified.
ENVIRONMENTAL REVIEW:
No environmental review is required for this item. Adopting the resolutions is not a project subject to the California Environmental Quality Act (“CEQA”) because it has no potential to result in either a direct, or reasonably foreseeable indirect, physical change in the environment. (State CEQA Guidelines, §§ 15060, subd. (b)(2)-(3), 15378.) PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with Government Code Section 54954.2.
Attachments:
1. Proposed Resolution – Grace Lane
2. Proposed Resolution – Parkside Village
3. Proposed Resolution – Landscaping and Lighting District No. 1 – Tract 1769
ATTACHMENT 1
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF ARROYO GRANDE ORDERING THE PREPARATION
AND FILING OF THE ANNUAL ENGINEER’S REPORT
FOR THE GRACE LANE ASSESSMENT DISTRICT FOR
FISCAL YEAR 2023-2024
WHEREAS, the owner (Vista Roble, LLC) of Lots 1 through 19, Tract 2236, petitioned the City to form a maintenance assessment district, commonly referred to as the Grace Lane Assessment District to provide a means to finance the costs of maintenance, operation, and service of certain specified improvements; and WHEREAS, on November 28, 2006, the City Council of the City of Arroyo Grande adopted Resolution No. 3976 ordering the formation of the Grace Lane Assessment District under Part 2 of Division 15 of the California Streets and Highways Code section 22500 et seq. (Landscape and Lighting Act of 1972), which allows local governmental agencies to form assessment districts for the purpose of financing the costs and expenses of landscaping and lighting public areas; and
WHEREAS, the said improvements in the Grace Lane Assessment District include, but are not limited to: 1) a pedestrian trail across the open space property (Lot B) including, but not limited to, the existing informal hiking trail currently passing through Lot B, signage, fencing; 2) common areas and facilities, including but not limited to the open space parcels and drainage facilities; 3) open space and maintenance thereof in accordance with fuel modification specifications as described in Mitigation Measure No. 15 in Resolution No. 3732 of the City Council of the City of Arroyo Grande; and 4) a private drive and associated improvements for Lots 16 through 19; and WHEREAS, in order to levy and collect an annual assessment for the Grace Lane Assessment District, it is necessary for the City to comply with Streets and Highways Code, Section 22620 et seq.; and
WHEREAS, Streets and Highways Code Section 22622 requires the City to adopt a Resolution that generally describes any proposed new improvements or any substantial changes in existing improvements and order the preparation and filing of an engineer’s report; and
WHEREAS, the City Council, at its meeting of April 11, 2023, received a report from the Public Works Director advising the City Council that no new improvements or substantial changes in existing improvements are proposed for the Grace Lane Assessment District.
RESOLUTION NO.
PAGE 2
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Arroyo Grande, as follows:
1. The foregoing recitals are true and correct and are incorporated herein.
2. Pursuant to Streets and Highways Code Section 22622, the City Council determines that no new improvements or any substantial changes in existing improvements are proposed within the boundaries of the Grace Lane Assessment District in Fiscal Year 2023-24.
3. The City Council orders the preparation and filing of an Engineer’s Report for the Grace Lane Assessment District in accordance with Streets and Highways Code Section 22565 et seq.
On motion of Council Member , seconded by Council Member , and by the following roll call vote, to wit:
AYES:
NOES:
ABSENT:
the foregoing Resolution was passed and adopted this 11th day of April, 2023.
RESOLUTION NO.
PAGE 3
CAREN RAY RUSSOM, MAYOR
ATTEST:
JESSICA MATSON, CITY CLERK
APPROVED AS TO CONTENT:
WHITNEY McDONALD, CITY MANAGER
APPROVED AS TO FORM:
ISAAC ROSEN, INTERIM CITY ATTORNEY
ATTACHMENT 2
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF ARROYO GRANDE ORDERING THE PREPARATION
AND FILING OF THE ANNUAL ENGINEER’S REPORT
FOR THE PARKSIDE VILLAGE ASSESSMENT DISTRICT
FOR FISCAL YEAR 2023-2024
WHEREAS, the owner (Parkside Village, LLC) of Lots 1 through 67, Tract 2310, requested the City form an assessment district, commonly referred to as the Parkside Village Assessment District to provide a means to finance the costs of maintenance, operation, and service of certain specified improvements; and WHEREAS, on November 8, 2005, the City Council of the City of Arroyo Grande adopted Resolution No. 3888 ordering the formation of the Parkside Village Assessment District under Part 2 of Division 15 of the California Streets and Highways Code section 22500 et seq. (Landscape and Lighting Act of 1972), which allows local governmental agencies to form assessment districts for the purpose of financing the costs and expenses of landscaping and lighting public areas; and
WHEREAS, the said improvements in the Parkside Village Assessment District include but are not limited to: landscaping bordering Farroll Road, Bakeman Road Entrances, behind and along Bakeman Lots 10, 11, 12 and 13 of Phase 1, mini park pedestrian pathway easement and drainage basin; fencing, gates and walls bordering Farrol Road, Bakeman Road Entrances, behind and along Bakeman Lots 10, 11, 12 and 13, park and drainage basin; the pathway easement, lighting and all improvements between lots 1, 2, and 3 between Dixson Street and the mini park, the mini park and all improvements to include walkways, play area, benches and basketball court on Lot 24; the drainage retention basin and all improvements including the water separator on Lot 25 and French drains along the East boundary of Tract 2310-2; and WHEREAS, in order to levy and collect an annual assessment for the Parkside Village Assessment District, it is necessary for the City to comply with Streets and Highways Code, Section 22620 et seq.; and
WHEREAS, Streets and Highways Code Section 22622 requires the City to adopt a Resolution that generally describes any proposed new improvements or any substantial changes in existing improvements and order the preparation and filing of an engineer’s report; and
WHEREAS, the City Council, at its meeting of April 11, 2023, received a report from the Public Works Director advising the City Council that no new improvements or substantial changes in existing improvements are proposed for the Parkside Village Assessment District.
RESOLUTION NO.
PAGE 2
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Arroyo Grande, as follows:
1. The foregoing recitals are true and correct and are incorporated herein.
2. Pursuant to Streets and Highways Code Section 22622, the City Council determines that no new improvements or any substantial changes in existing improvements are proposed within the boundaries of the Parkside Village Assessment District in Fiscal Year 2023-24.
3. The City Council orders the preparation and filing of an Engineer’s Report for the Parkside Village Assessment District in accordance with Streets and Highways Code Section 22565 et seq.
On motion of Council Member , seconded by Council Member , and by the following roll call vote, to wit:
AYES:
NOES:
ABSENT:
the foregoing Resolution was passed and adopted this 11th day of April, 2023.
RESOLUTION NO.
PAGE 3
CAREN RAY RUSSOM, MAYOR
ATTEST:
JESSICA MATSON, CITY CLERK
APPROVED AS TO CONTENT:
WHITNEY McDONALD, CITY MANAGER
APPROVED AS TO FORM:
ISAAC ROSEN, INTERIM CITY ATTORNEY
ATTACHMENT 3
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF ARROYO GRANDE ORDERING THE PREPARATION
AND FILING OF THE ANNUAL ENGINEERS REPORT
FOR THE ARROYO GRANDE LANDSCAPING AND
LIGHTING ASSESSMENT DISTRICT NO. 1, WITHIN
TRACT 1769, FOR FISCAL YEAR 2023-2024
WHEREAS, the property owners of Arroyo Grande, Tract 1769, petitioned the City to form a landscaping and lighting assessment district, commonly referred to as Landscaping and Lighting Assessment District No. 1, within Tract 1769, to provide means to finance the costs of maintenance, operation, and service of certain specified improvements; and
WHEREAS, on May 12, 1992, the City Council of the City of Arroyo Grande adopted Resolution No. 2932 ordering the formation of Arroyo Grande Landscaping and Lighting Assessment District No. 1, within Tract 1769, under Part 2 of Division 15 of the California Streets and Highways Code section 22500 et seq. (Landscape and Lighting Act of 1972), which allows local governmental agencies to form assessment districts for the purpose of financing the costs and expenses of landscaping and lighting public areas; and
WHEREAS, said improvements in the Landscaping and Lighting Assessment District No. 1 include but are not limited to: landscaping and ornamental vegetation in the public rights of way; and
WHEREAS, in order to levy and collect an annual assessment for Landscaping and Lighting Assessment District No. 1, it is necessary for the City to comply with Streets and Highways Code, Section 22620 et seq.; and
WHEREAS, Streets and Highways Code Section 22622 requires the City to adopt a Resolution that generally describes any proposed new improvements or any substantial changes in existing improvements and order the preparation and filing of an engineer’s report; and
WHEREAS, the City Council, at its meeting of April 11, 2023, received a report from the Public Works Director advising the City Council that no new improvements or substantial changes in existing improvements are proposed for Landscaping and Lighting Assessment District No. 1, within Tract 1769.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Arroyo Grande, as follows:
1. The foregoing recitals are true and correct and are incorporated herein.
RESOLUTION NO.
PAGE 2
2. Pursuant to Streets and Highways Code Section 22622, the City Council determines that no new improvements or any substantial changes in existing improvements are proposed within the boundaries of Landscaping and Lighting Assessment District No. 1, within Tract 1769 in Fiscal Year 2023-24.
3. The City Council orders the preparation and filing of an engineer’s report for Landscaping and Lighting Assessment District No. 1, within Tract 1769, in accordance with Streets and Highways Code Section 22565 et seq.
On motion of Council Member , seconded by Council Member , and by the following roll call vote, to wit:
AYES:
NOES:
ABSENT:
the foregoing Resolution was passed and adopted this 11th day of April, 2023.
RESOLUTION NO.
PAGE 3
CAREN RAY RUSSOM, MAYOR
ATTEST:
JESSICA MATSON, CITY CLERK
APPROVED AS TO CONTENT:
WHITNEY McDONALD, CITY MANAGER
APPROVED AS TO FORM:
ISAAC ROSEN, INTERIM CITY ATTORNEY
Item 9.k.
MEMORANDUM
TO: City Council
FROM: Bill Robeson, Assistant City Manager/Public Works Director Nicole Valentine, Administrative Services Director
BY: Steve Kahn, Interim City Engineer
SUBJECT: Consideration of a Resolution for Funding Road Repair Consistent with the Road Repair and Accountability Act of 2017 (SB1) for Fiscal Year 2023-24
DATE: April 11, 2023
SUMMARY OF ACTION:
Adopting the Resolution enables the City to be eligible for Senate Bill 1 (SB1) funding for road repair projects during Fiscal Year 2023-24.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
The City’s allocation of SB1 funding for FY 2023-24 is projected to be $453,246. This funding will be utilized to maintain the City’s street system. With this allocation, and the City’s Gas Tax funding of $539,190, the total funding available from the State for street and road maintenance is $992,436.
RECOMMENDATION:
1) Adopt a Resolution approving use of funding from SB1 for the 2023 Pavement Management Program in Fiscal Year 2023-24; 2) Authorize the Director of Administrative Services to submit the Resolution to the California Transportation Commission (CTC); and 3) Make findings that adopting the Resolution is not a project subject to the California Environmental Quality Act (“CEQA”) because the adoption in itself has no potential to result in either a direct, or reasonably foreseeable indirect, physical change in the environment. (State CEQA Guidelines, §§ 15060, subd. (b)(2)-(3), 15378.) BACKGROUND:
On April 28, 2017, the Governor signed SB1, known as the Road Repair and Accountability Act of 2017. SB1 increases gasoline and diesel taxes and vehicle registration fees to address deferred maintenance on the State highway system and the local street and road system. These additional taxes are deposited by the State Controller
Item 9.k.
City Council
Consideration of a Resolution for Funding Road Repair Consistent with the Road Repair and Accountability Act of 2017 (SB1) for Fiscal Year 2023-24 April 11, 2023
into the Road Maintenance and Rehabilitation Account (RMRA). A portion of this funding is apportioned by formula to eligible cities and counties, including Arroyo Grande, pursuant to California Streets and Highways Code (SHC) Section 2032(h) and are to be used for basic road maintenance, rehabilitation, and critical safety projects on the local streets and roads system.
Because SB1 emphasizes accountability and transparency in transportation funding, programming and use of the new funds is contingent on recipient cities and counties providing annual project reporting. Per SHC Section 2034(a)(1), prior to receiving any RMRA funding, cities and counties must submit a list of projects, adopted by Resolution, to be funded with the RMRA funds.
ANALYSIS OF ISSUES:
SHC Section 2030(b) provides a number of example projects and uses for RMRA funding that include, but are not limited to, the following:
Road Maintenance and Rehabilitation
Safety Projects
Railroad Grade Separations
Complete Streets Components, including active transportation purposes, pedestrian and bicycle safety projects, transit facilities, and drainage and storm water capture projects in conjunction with any other allowable project Traffic Control Devices
Matching funds to State or federal funds for projects under this subdivision Pursuant to SHC Section 2037, a city or county may spend its apportionment of RMRA funds on transportation priorities other than those outlined in SHC Section 2030 if the city’s or county’s average Pavement Condition Index (PCI) meets or exceeds 80. The City of Arroyo Grande’s current PCI is estimated to be 54.
The City maintains its 67.5 miles of streets through two mechanisms: The City’s in-house street crew that provides daily efforts to keep the condition of streets from declining, and capital projects to provide long term maintenance. Based on the SHC, the City can use its RMRA funds for either of these services. Historically, the City has utilized its RMRA funds to augment the City’s pavement management program for upcoming roadway rehabilitation projects as opposed to allocating the funds to the City’s in-house street maintenance program. This has been staff’s recommendation to Council due to uncertainties that would be created by a decline in RMRA revenues or a possible repeal of SB1. In these events, it would be less impactful to cut a specific project or a portion thereof than to reduce the City’s in-house street maintenance program that addresses constant, immediate short- and medium-term street safety issues (e.g., debris removal, potholes, skin patching, re-striping, storm water and drainage repairs, etc.).
Item 9.k.
City Council
Consideration of a Resolution for Funding Road Repair Consistent with the Road Repair and Accountability Act of 2017 (SB1) for Fiscal Year 2023-24 April 11, 2023
In accordance with California Streets and Highway Code (SHC) Section 2036, the City must maintain its existing commitment of local funds for street purposes to remain eligible for allocations of RMRA funds. This commitment is generally referred to as Maintenance of Effort (MOE). In order to receive these RMRA funds, each year the City must expend from its General Fund for street purposes in an amount not less than the annual average of General Fund expenditures during fiscal years (FY) 2009-10, FY 2010-11 and FY 2011- 12, as reported to the State Controller’s Office, pursuant to SHC Section 2151. For the City of Arroyo Grande, the amount of annual expenditures that must be spent from the General Fund for street purposes is $1,431,971. The City complies with this requirement using General Fund and Local Sales Tax Fund.
Additionally, SHC Section 2034(a)(1) details the requirement that cities and counties must comply with when submitting its list of proposed projects to the CTC to be funded with RMRA funds each fiscal year. The requirements include:
1. The proposed project must be adopted by Resolution by the City Council at a regular public meeting;
2. A description and the location of each proposed project;
3. A proposed schedule for the project’s completion; and
4. The estimated useful life of the improvement.
The State has provided an estimate for the amount of FY 2023-24 RMRA funding available to the City of Arroyo Grande as $453,246. It is recommended these RMRA funds be used to augment the City’s pavement management program. The City updated its Pavement Management Program Report and its findings in April 2022. A list of streets and recommended rehabilitation has not yet been identified for the City’s next annual pavement management project. Therefore, it is recommended that the Resolution state that specific sections and limits of roadways on which treatment will be applied will be prioritized and selected during the project development phase of the project based on identified needs.
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Adopt a Resolution approving a project to be funded by SB1 in Fiscal Year 2023-24;
2. Do not approve a Resolution approving a project to be funded by SB1 in Fiscal Year 2023-24 and request further information;
3. Modify staff’s recommendation and adopt a Resolution approving a project to be funded by SB1 in Fiscal Year 2023-24; or
4. Provide other direction to staff.
Item 9.k.
City Council
Consideration of a Resolution for Funding Road Repair Consistent with the Road Repair and Accountability Act of 2017 (SB1) for Fiscal Year 2023-24 April 11, 2023
ADVANTAGES:
Submitting an adopted resolution to the CTC will allow the City to receive RMRA funds.
The funding will help to protect the City’s investment in its roadway system and maintain the roadways before they deteriorate beyond routine maintenance.
DISADVANTAGES:
None identified at this time.
ENVIRONMENTAL REVIEW:
Make findings that adopting the Resolution is not a project subject to the California Environmental Quality Act (“CEQA”) because the adoption in itself has no potential to result in either a direct, or reasonably foreseeable indirect, physical change in the environment. (State CEQA Guidelines, §§ 15060, subd. (b)(2)-(3), 15378.) PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with Government Code Section 54954.2.
Attachment:
1. Proposed Resolution
ATTACHMENT 1
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ARROYO GRANDE ADOPTING A PROJECT FOR FISCAL YEAR
2023-24 FUNDED BY SENATE BILL 1: THE ROAD REPAIR AND
ACCOUNTABILITY ACT OF 2017
WHEREAS, Senate Bill 1 (SB 1), the Road Repair and Accountability Act of 2017 (Chapter 5, Statutes of 2017) was passed by the California Legislature and signed into law by the Governor in April 2017 to address the significant multi-modal transportation funding shortfalls statewide; and
WHEREAS, SB 1 includes accountability and transparency provisions that will ensure the residents of the City of Arroyo Grande (“City”) are aware of the projects proposed for funding in the community and which projects have been completed with such funding each fiscal year; and WHEREAS, the City must adopt by resolution a project proposed to receive funding from the Road Maintenance and Rehabilitation Account (RMRA), created by SB 1, which must include a description and the location of each proposed project, a proposed schedule for the project’s completion, and the estimated useful life of the improvement; and WHEREAS, it is anticipated that the City will receive an estimated $453,246 in RMRA funding in Fiscal Year 2023-24 from SB1; and
WHEREAS, this is the sixth year in which the City is receiving SB 1 funding and the funding will enable the City to continue essential road maintenance and rehabilitation projects, safety improvements, repairing and replacing aging bridges, and increasing access and mobility options for the traveling public that would not have otherwise been possible without SB 1 funding; and
WHEREAS, the City has undergone a process to ensure public input into the community’s transportation priorities/the project list; and
WHEREAS, the City uses its Pavement Management System and collaboration of the City’s various Departments to develop the SB 1 project list to ensure revenues are being used on the most high-priority and cost-effective projects that also meet the community’s priorities for transportation investment; and
WHEREAS, the funding from SB1 will help the City maintain and rehabilitate its approximately
67.5 miles of streets/road throughout the City this year and numerous similar projects into the future; and
WHEREAS, the 2021 California Statewide Local Streets and Roads Needs Assessment found that the City’s streets and roads are in an at-risk condition and this revenue will help the City to maintain the overall quality of its road system and will help to keep the City’s streets and roads from falling into a poor condition; and
RESOLUTION NO.
PAGE 2
WHEREAS, the SB1 project list and overall investment in local streets and roads infrastructure with a focus on basic maintenance and safety, investing in complete streets infrastructure, and using cutting-edge technology, materials and practices, will have significant positive co-benefits statewide.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Arroyo Grande hereby:
1. Finds that the foregoing recitals are true, correct and incorporated herein by this reference.
2. Approves the following newly proposed project that will be funded in-part or solely with fiscal year 2023-24 Road Maintenance and Rehabilitation Account revenues:
Project Title: 2023 Annual Pavement Rehabilitation Project, PW 2023-01 Project Description: This project will resurface pavement on City streets as identified in the City's Pavement Management Program as available funding allows. Pavement Condition Index (PCI) and other factors will be used to prepare a recommendation of priority street segments to receive pavement rehabilitation. This project will also upgrade pedestrian facilities to meet accessibility requirements, if applicable, and may include bike lane striping and crosswalk enhancements.
Project Location: Various City streets to be determined Summer of 2023 following the adoption of the Fiscal Years 23-25 Budget. Staff from various City departments reviews the pavement management data and streets recommendation list, considers public input, and makes a further recommendation to the City Council for the final approval of the scope of each annual pavement rehabilitation project.
Estimated Project Schedule: Project development in Summer/Fall 2023; bidding in Winter 2023-24, and construction in Spring/Summer 2024.
Estimated Project Useful Life: The useful life of pavement resurfacing projects varies greatly depending on the type of surface treatment utilized: a slurry seal/microsurface project has a useful life of about 10 years, whereas a hot mix asphalt overlay has a useful life of about 25 years.
3. Determine that this Resolution is not a project subject to the California Environmental Quality Act (“CEQA”) because the adoption in itself has no potential to result in either a direct, or reasonably foreseeable indirect, physical change in the environment. (State CEQA Guidelines, §§ 15060, subd. (b)(2)-(3), 15378.)
RESOLUTION NO.
PAGE 3
On motion of Council Member , seconded by Council Member , and on the following roll call vote, to wit:
AYES:
NOES:
ABSENT:
The foregoing Resolution was passed and adopted this 11 th day of April, 2023.
RESOLUTION NO.
PAGE 4
CAREN RAY RUSSOM, MAYOR
ATTEST:
________________________________________
JESSICA MATSON, CITY CLERK
APPROVED AS TO CONTENT:
________________________________________
WHITNEY MCDONALD, CITY MANAGER
APPROVED AS TO FORM:
________________________________________
ISAAC ROSEN, INTERIM CITY ATTORNEY
Item 10.a.
MEMORANDUM
TO: City Council
FROM: Brian Pedrotti, Community Development Director
BY: Patrick Holub, Associate Planner
SUBJECT: Consideration of Architectural Review 23-006; Painting of a New Wall Mural; Location – 101 West Branch Street; Applicant – Alyssa Manno, Visit SLO CAL
DATE: April 11, 2023
SUMMARY OF ACTION:
Receive public comment and make a recommendation to the Arroyo Grande Public Art Review Panel pertaining to a request for a public art project, for a mural proposed at 101 Branch Street in the Village Core Downtown.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
Staff time will be necessary to attend future meetings of the Arroyo Grande Public Art Review Panel. All requisite time, supplies and materials for the preparation of the mural will be provided by the applicant. The applicant has executed a memorandum of understanding with the property owner that will require the property owner to perform any necessary maintenance activities in the future.
RECOMMENDATION:
Receive public comment and make a recommendation to the Arroyo Grande Public Art Review Panel.
BACKGROUND:
In 2002, the City Council approved measures to promote art in the community, establish a uniform process for the review and selection of public art on public and private property that would be reflective of the community, and to identify general guidelines and selection criteria to promote creativity and freedom of expression, but also compatibility with the character, design, and environment of the surrounding area. The recommendations were prepared with the assistance of the San Luis Obispo County Arts Council.
Item 10.a.
City Council
Consideration of Architectural Review 23-006; Painting of a New Wall Mural; Location – 101 West Branch Street; Applicant – Alyssa Manno, Visit SLO CAL April 11, 2023
In 2004, the City Council adopted a resolution approving Public Art Guidelines (“Guidelines”) and an ordinance incorporating those Guidelines by reference into the Municipal Code as part of the Design Guidelines and Standards for Mixed Use Districts.
Additionally, in 2006, the City Council approved an Art Donation Program that created a process by which an artist, or an individual or group commission an artist, may donate, gift or bequeath public art to the City to be located in a City owned public place. . In 2011, the Public Art Guidelines were amended regarding the Art in Public Places Program and limited the process to public art projects on private property. During this update, public art on private property was defined as art that is displayed in an open area that is freely available to the general public or public accessibility is provided based upon the characteristics of the artwork or its placement on the site. Projects on public property would be considered by the City Council, with the recommendation of the former Parks and Recreation Commission if on park property.
In October 2021, the Guidelines were again amended again to: (1) limit the purview of the Guidelines to public art proposals on non-residentially zoned private property; (2) make clerical changes to account for changes to the City’s advisory bodies and those that provide consultation to the Council on public art projects; (3) change the consulting body that makes recommendations to the City Council from the San Luis Obispo County Arts Council (SLOCAC) to the Arroyo Grande Public Art (AGPA); and (4) establishing a seven (7) member Public Art Panel for the purpose of approving proposed art projects. The currently adopted Guidelines have been included as Attachment 1.
Five (5) public art projects have been approved to date. The first public art piece approved was the mural at 303 E. Branch Street on May 2, 2014, and second was the Japanese Lantern sculpture located at the Peoples Self Help Housing apartments at 150 South Courtland Street. The third approved public art piece is located at 126 South Mason Street and 127 Short Street. That installation consists of two Chumash art pieces. The fourth approved public art project was the repainting of the Strother Park basketball court, located at 1150 Huasna Road. The most recent public art project involved the painting of four (4) City-owned utility boxes located throughout the City.
ANALYSIS OF ISSUES:
The applicant, Visit SLO CAL, is proposing to paint a new mural on the northwestern (Branch Street) elevation of the building (Attachment 2). Visit SLO CAL’s mission is to promote tourism in San Luis Obispo County through marketing, advertising, public relations, group sales, promotions, events and sponsorship branding the region as a choice destination for regional, national and international travelers alike.
The proposed mural is part of Visit SLO CAL’s Mural Trail project, which was created with the intention of highlighting public art in San Luis Obispo County, along with encouraging visitors to travel throughout the county by creating a trail map of murals featured on Visit
Item 10.a.
City Council
Consideration of Architectural Review 23-006; Painting of a New Wall Mural; Location – 101 West Branch Street; Applicant – Alyssa Manno, Visit SLO CAL April 11, 2023
SLO CAL’s website. Visit SLO CAL will be creating three murals on three different business walls in the county to add to the public art collection and encourage visitation across the County. The mural artwork highlights the migration of the monarch butterflies through the region.
Murals will be located in Arroyo Grande, Cambria, and the City of San Luis Obispo. Each mural will be funded and donated by Visit SLO CAL, which has commissioned mural artists Canned Pineapple Co. to paint the murals. Each of the murals are on privately owned property and the property owners each are expected to sign a Memorandum of Understanding (MOU) which details the agreement for the project between the property owner and Visit SLO CAL. These MOUs include agreements that the artwork will not be altered by the property owner and that the property owner is responsible for the necessary cleaning and maintenance of the mural. Included below is a statement from Buddy Norton, Canned Pineapple Co. artist, detailing his inspiration for the mural artwork:
“I based the overarching concept off the loose inspiration of the migration of the monarch butterfly while tying in subtle nods to the city’s where these pieces will live. Everything we choose for these pieces was something that either migrates or carries the spirit of something coming and going. The Monarch butterflies, wildflowers, strawberries, water, fish, surf, and sun were all things we thought held that and represented the coming and going of life on the central coast. We plan on caring out that theme with color as well having a dark and light yin and yang flow to everything.
I wanted each wall to have a unique look while at the same time carrying on the themes of the lager project so that it was obvious, they all were connected. Each wall has Monarch Butterflies on them in different ways. We wanted it to feel as if the butterfly was taking you on a journey from wall-to-wall landing in each town’s unique environment.
With the artwork for Arroyo Grande, we wanted to tie in the unique richness of the farming community with the Monarch Butterfly concept. Drawing flowers to resemble windmills, Strawberry’s for the seasonal excitement as well as the festival, which I remember going to as a kid.”
Review Process Under Public Art Guidelines
In accordance with the City’s Guidelines, public art projects shall be considered by the City Council, with community input as part of a public hearing, and in consultation with Arroyo Grande Public Art Panel. The panel selection for this project includes the following, to date:
Two representatives from the property owner: Orhan Tolu and Eliad Becker Two representatives from AGPA: Shirley Horacek and Kathryn Phelan
Item 10.a.
City Council
Consideration of Architectural Review 23-006; Painting of a New Wall Mural; Location – 101 West Branch Street; Applicant – Alyssa Manno, Visit SLO CAL April 11, 2023
One representative from the Architectural Review Committee: Vacant – to be appointed at 4/17 ARC meeting
One representative from the Chamber of Commerce: Kassi Dee One representative from the South County Historical Society: Vivian Krug The intent of establishing this review process is to ensure that public art projects are sensitive to community concerns, while also avoiding government censorship of art. The Guidelines are applicable to public art projects proposed to be located on nonresidentially zoned private property or by a private owner in the adjacent public right of way. The Guidelines and criteria also apply to public art projects on City property. All donations for Public Art are required to be considered and approved by the City Council.
The following criteria are used in the selection of public art:
1. Relationship to the social, cultural and historical identity of the area. If the public art is proposed to be located in the Village Core Downtown or Village Mixed Use Districts, the art piece shall be representative or evocative of the turn of the century historical period;
2. Evaluation of artistic excellence;
3. Appropriateness of scale, form, material, content and design relative to the immediate and general neighborhood;
4. Relationship to the social, cultural and historical identity of the area;
5. Appropriateness of proposed materials as regards to structural and surface integrity, protection against vandalism, public safety and weathering;
6. Ease of maintenance;
7. Appropriateness of proposed method of installation of artwork and safety and structural factors involved in installation;
8. Artist’s experience in working on comparable projects.
After completion of the public hearing by the Council, the project will then be forwarded for review and consultation by the Arroyo Grande Public Art Review Panel to make the required findings above.
Historic Character
In 2011, Page & Turnbull, an architectural and historic preservation firm from San Francisco, completed the City of Arroyo Grande Historic Context Statement (HCS) and survey report. The project provided a framework for the documentation and evaluation of historic resources in Arroyo Grande. It included a city-wide historic context statement, summarizing the history and development of Arroyo Grande, and an intensive level architectural survey of the properties in the Village Commercial Core along Branch Street.
A survey of the subject property was completed in conjunction with this report.
The property building where the Project is proposed to be located, was constructed in 1907 during the “Village of Arroyo Grande (1862-1910)” period of Arroyo Grande’s history
Item 10.a.
City Council
Consideration of Architectural Review 23-006; Painting of a New Wall Mural; Location – 101 West Branch Street; Applicant – Alyssa Manno, Visit SLO CAL April 11, 2023
and is an example of commercial development during that period. According to the report, the property is eligible for listing on the National Register and California Register for its association “with the early commercial development of the Village Core” and “as one of the few brick commercial blocks in the Village Core” that “embodies distinctive characteristics of the building type and possesses high artistic value.” At the request of the applicant, Page & Turnbull prepared a letter of opinion that evaluates whether the painting of a mural would be detrimental to any of the historic features or elements of the building (Attachment 3). This letter identifies the character defining features of the building and provides guidance consistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring & Reconstructing Historic Buildings. This report indicates Page & Turnbull’s professional opinion that the proposed mural will not have an impact on the character, materials, or historic status of the building at 101 W. Branch Street.
Staff would like to clarify that Page & Turnbull’s letter references a second mural proposed to be located on the southwest exterior façade of the building facing the parking lot. That second mural is not currently being proposed by Visit SLO CAL but represents future plans by Arroyo Grande Public Art to paint a second mural on the building in the future.
When an application is submitted, that second mural would require separate ARC and City Council review.
April 3, 2023, Architectural Review Committee (ARC) Meeting On April 3, 2023, the ARC met to review the proposed mural. At that meeting, feedback was generally positive, although the ARC suggested minor changes be made to the appearance to the mural. Those changes included: including more warm tones in the color scheme; telling more of a local message; and replacing some of the imagery with imagery more historically tied to the City. The applicant has been responsive to the feedback and has made changes to the imagery consistent with the ARC’s suggestions.
Minutes from the ARC meeting are included as Attachment 4.
ALTERNATIVES:
1. Conduct the public hearing to receive public comment and make a recommendation to the Arroyo Grande Public Art Review Panel; or
2. Provide other direction to staff.
ADVANTAGES:
A recommendation to the Arroyo Grande Public Art Review Panel will facilitate the installation of a new mural aimed at driving tourism activity in the City and the region.
Item 10.a.
City Council
Consideration of Architectural Review 23-006; Painting of a New Wall Mural; Location – 101 West Branch Street; Applicant – Alyssa Manno, Visit SLO CAL April 11, 2023
DISADVANTAGES:
No disadvantages identified.
ENVIRONMENTAL REVIEW:
The action is exempt from CEQA on the basis that it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. Alternatively, the action is categorically exempt under the Class 4 exemption, which applies to minor public or private alterations in the condition of land, water, and/or vegetation where the project does not involve removal of healthy, mature, scenic trees except for forestry and agricultural purposes. (State CEQA Guidelines, § 15304.)
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with Government Code Section 54954.2.
Attachments:
1. Arroyo Grande Public Art Guidelines and Public Art Donation Program
2. Proposed Mural
3. Page & Turnbull Letter of Opinion
4. April 3, 2023 ARC Draft Minutes
RESOLUTION NO. 5118
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARROYO
GRANDE AMENDING THE PUBLIC ART GUIDELINES AND PUBLIC
ART DONATION PROGRAM
WHEREAS, in 2002 the City Council approved measures to promote art in the community, establish a uniform process for the review and selection of public art on public and private property that would be reflective of the community but limit City Government involvement, and identify general guidelines and selection criteria to promote creativity and freedom of expression, but also compatibility with the character design and environment of the surrounding area; and
WHEREAS, in 2004 the City Council adopted a Resolution approving Public Art Guidelines and an Ordinance incorporating them by reference into the Municipal Code as part of the Design Guidelines and Standards for Mixed Use Districts; and WHEREAS, in 2011 the City Council amended the Design Guidelines and Standards for Mixed Use Districts to establish standalone Public Art Guidelines and a Public Art Donation Program; and
WHEREAS, the City Council considered substantive and clerical amendments to the Public Art Guidelines and Public Art Donation Program on October 12, 2021; and WHEREAS, the City Council finds that this project is consistent with the City' s General Plan, Development Code, and the environmental documents associated therewith, and that the project is exempt under per Sections 15061( b)( 3) and 15378 of the California Environmental Quality Act (CEQA) Guidelines.
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Arroyo Grande that the Public Art Guidelines and Public Art Donation Program are hereby amended as shown in Exhibit A, attached hereto and incorporated herein by this reference.
On motion of Council Member Storton, seconded by Council Member George, and by the following roll call vote, to wit:
AYES: Council Members Storton, George, Barneich, Paulding, and Mayor Ray Russom NOES: None
ABSENT: None
The foregoing Resolution was approved this 12th day of October, 2021.
Attachment 1
RESOLUTION NO. 5118
PAGE 2
Cii 4all"
CAREN RAT1TSSOM, MAYOR
ATTEST:
JESSICA MATSON, CITY CLERK
APPROVED AS TO CONTENT:
pie
WHITNEY a ONALD, C MANAGER
APPROVE AS TO FORM:
nn
TIMOTHY J. CARMEL, CITY ATTORNEY
CITY OF ARROYO GRANDE PUBLIC ART
EXHIBIT " A"
Public Art Guidelines
And
Public Art Donation Program
Adopted by City Council
Resolution No. 3787
October 12, 2004
Ordinance No. 557
October 26, 2004
Amended by City Council
Resolution No. 4411
November 8, 2011
Amended by City Council
Resolution No.
2021
2004, 2011, 2021 City of Arroyo Grande
All Rights Reserved
CITY OF ARROYO GRANDE PUBLIC ART
PUBLIC ART GUIDELINES
Purpose
The purpose of these Guidelines is to create a framework to facilitate and encourage property owners to provide outdoor public art on their property, or, if approved by the Director of Community Development, in the adjacent public right- of-way. For purposes of these Guidelines Public Art" shall mean art located on non-residentially zoned private property that is displayed in an open area that is freely available to the general public or public accessibility is provided based upon the characteristics of the artwork or its placement on the site. Artwork may include freestanding pieces ( e. g., a sculpture or water fountain) or may be integrated into its surroundings as an architectural element ( e. g., relief sculpture embedded in pavement or a wall, a mosaic or mural on a wall, decorative railings or lighting).
These Guidelines are intended to assist artists, citizens and City officials and staff to understand the City's goals regarding art that is displayed in a manner that is available and accessible to the general public. The City recognizes that art and artistic expression is a protected activity and these Guidelines are not intended to unduly restrict creative expression or limit the types of public art possible. Rather, they are intended to facilitate and encourage the best possible combination of sites and artwork, and help to guide what is essentially a form of communication between the artist and the community.
Process
These Guidelines are applicable to public art projects proposed to be located on non- residentially zoned private property or by a private owner in the adjacent public right of way. The guidelines and criteria contained herein shall also apply to public art projects on City property. All Public Art shall be considered and approved by the City Council, in consultation with Arroyo Grande Public Art, and with the recommendation of the Recreation Department Director if the art is proposed to be placed on park property, and is subject to the Public Art Donation Program to the extent applicable.
Public Art Panel
In order to solicit community input and involvement for the consideration and promotion ofpublic art on private property in the City, a Public Art Panel has been established to review all public art.
The 7 member panel is made up of the following representatives to be convened as needed ( a minimum of 6 members shall be residents or business owners in Arroyo Grande):
2 representatives from the property owner.
2 representatives designated by Arroyo Grande Public Art. 1 representative from the Architectural Review Committee. 1 representative from the South County Chambers of Commerce. 1 representative from the Historical Society.
CITY OF ARROYO GRANDE PUBLIC ART
The Public Art Panel will convene to approve public art by a majority vote after the piece or plans are presented at a public hearing held by the City Council for the purpose of obtaining community input. Arroyo Grande Public Art shall act in an advisory capacity to the Public Art Panel.
Guidelines
The following guidelines developed by the San Luis Obispo County Arts Council are intended to facilitate and encourage Public Art that is proposed to be placed on non-residentially zoned private property or by a property owner on adjacent public right of way within the City:
1. Public art shall be of high artistic quality.
2. Public art shall be compatible with the immediate site and neighborhood in terms of social and cultural characteristics, architectural scale, materials, land use and geographical and environmental context.
3. Public art shall not impede pedestrian or vehicle traffic or conflict with public or private easements.
4. Consideration shall be given to any public safety or public health concerns related to, or created by, the artwork.
5. Public art shall be constructed of durable, high- quality materials and require minimal or no maintenance.
6. Public art shall be securely installed.
7. A wide variety of artistic expression is encouraged. However, expressions of profanity or vulgarity are inappropriate.
Selection Criteria
The following are considerations for the selection of public art
1. Relationship to the social, cultural and historical identity ofthe area
2. Evaluation of artistic excellence;
3. Appropriateness of scale, form, material, content and design relative to the immediate neighborhood;
4. Appropriateness of proposed materials as regards to structural and surface integrity, protection against vandalism, public safety and weathering;
5. Ease of maintenance;
CITY OF ARROYO GRANDE PUBLIC ART
6. Appropriateness of proposed method of installation and artwork and safety and structural factors involved in installation;
7. Artist' s experience in working on comparable projects.
The City or Public Art Panel may consider a revolving art program for a proposed location on an ongoing basis.
Location
Public art is allowed in any district and is strongly encouraged in the Village Downtown, Village Mixed Use, Gateway Mixed Use, Fair Oaks Mixed Use and Public Facility Districts. Promotion of public art visible from intersections within these districts as well as proximate to public gathering areas, plazas and public parking areas is highly recommended.
PUBLIC ART DONATION PROGRAM
Purpose
Public art can provide aesthetic, cultural and economic benefits to the community. The City of Arroyo Grande Public Art Donation Program is a means by which an artist, or an individual or group commissioning an artist, may donate, gift or bequeath public art to the City of Arroyo Grande for location in a City-owned public place.
Definition
Public art can be defined as" The engagement of an artist with a public place involving original, creative work by an individual or a group." This includes functional and original works of art that also serve as capital improvements, such as, but not limited to seating, fountains, lighting, and free standing art forms. Pre- fabricated manufactured items such as benches, fountains etc. are not considered public art.
Proposal
Proposals should include:
1. A donor application form ( See Attachment 1)
2. The artist or donor' s name,
3. Title of the work and artist statement
4. Description of the work( such as a photograph, artist' s rendering or computer generated image)
5. The materials and size of the work
6. A preferred public location
7. A statement from the donor and artist that the art is free of encumbrances
CITY OF ARROYO GRANDE PUBLIC ART
8. The artist' s resume if available
9. Estimated value of donated work
10. Recommended manner of installation
11. Estimated maintenance cost
Process
The following steps will result in the review and decision regarding a proposal:
I. The proposal would be submitted to the Community Development Department to review it to:
a. Determine ongoing and General Plan consistency, accuracy and appropriateness. b. Insure it would not create an undue risk or a safety problem. c. Consider maintenance requirements
d. Determine durability
e. Identify any engineering concerns
2. The proposal will be reviewed by the Recreation Department Director if placement is proposed on a park property.
3. Recommendations will be forwarded to the City Council for review and action during a public hearing. The Council would have final approval ofthe donation.
Guidelines for Review of the Proposal
The following guidelines would be used for review ofart donations:
1. Public art shall be of high artistic quality.
2. Public art shall be compatible with the immediate site and neighborhood in terms of social and cultural/ historical characteristics, architectural scale, materials, land use and geographical and environmental context.
3. Public art shall not impede pedestrian or vehicle traffic or conflict with public or private easements.
4. Consideration shall be given to any public safety or public health concerns related to or created by the artwork.
5. Public art shall be constructed of durable, high- quality materials and require minimal or no maintenance.
6. Public art shall be securely installed.
7. A wide variety of artistic expression is encouraged. However, expressions of profanity or vulgarity are inappropriate.
Display of Public Art
1. A contract shall be executed between the artist and the City establishing the terms of theproposed installation.
2. Artwork shall be displayed to include the artwork title, artist' s name, patron' s name if applicable and date of completion. The materials used and a short explanation of the work could be included as an option. Plaques will not be used for advertising purposes.
3. Prior to accepting the project, the Community Development Department shall receive from the artist or donor a set of plans, specifications, and a copy of a maintenance record, which identifies maintenance, installation and removal instructions. The transportation, installation and adjunct costs( such as engineering, a base for the artwork or other installation elements) related to artwork are the responsibility ofthe donor.
4. Once the art piece is installed ( by the donor under the supervision of City staff with the artist' s installation direction and donor installation funding), it will require inspection and sign off by a City Building Inspector.
5. Following inspection, the artwork shall become the property of the City. A publicized dedicati ceremony shall be held to present the art piece to the community.
Attachment 1
PUBLIC ART DONATION APPLICATION FORM
The Donor/ owner must complete and sign this application form. If the Donor/ owner is not the artist who created the artwork, the artist must also sign this application.
Artist/ Donor( Name, address and phone #)
Title of Work:
Description of Work (attach drawings or photographs or other graphic depiction):
Materials/ Size:
Proposed location ( inside or outside, location should be specific, for example, " at the entry of xyz park, or on the northwest corner of x street and y street) Maintenance Requirements:
An appraisal or other evidence of the Value of the proposed public artwork:
By signing this application below and in consideration for participating in the City' s Public art program, the artist/ owner hereby acknowledges and assigns the right to the City to collect any royalty payment provided by Civil Code section 986. Except as provided above, the artist/ owner further acknowledges and waives, for himself and his successors in interest, to the greatest extent allowed by law, any rights the artist/ owner may have under California Civil Code sections 986, 987, 988 and 989, or other applicable law.
The artist/ owner further acknowledges and understands that upon completion and installation of artwork, and upon its acceptance by the City Council, the work shall become the property of the City without any right of reversion in the artist/ owner. The City retains the right to remove or relocated the artwork in its sole discretion, as the interest of the public welfare, heath and safety may be required.
If the artwork is damaged, defaced, altered or destroyed by human acts, by acts of nature or otherwise, the City retains the right to remove, restore, repair or replace the artwork at any time in keeping with the artist' s original design intent, without consulting the artist, or his or her heirs or assigns. The City will make reasonable efforts to contact the artist, or if unavailable, another design professional, to advise or assist in ay restoration work.
The artist/ owner agrees to an alternate site should the City Council determine a more appropriate location.
I have read, understood and accept the terms of this Application and represent that I am the of the artwork, which is the subject of this application.
Owner, artist, or owner and artist:
Signature
Print Name
Date:
I have read, understood and accept the terms of this Application and represent that I am the of the artwork, which is the subject of this application.
Owner, artist, or owner and artist:
Signature
Print Name
OFFICIAL CERTIFICATION
I, JESSICA MATSON, City Clerk of the City of Arroyo Grande, County of San Luis Obispo, State of California, do hereby certify under penalty of perjury, that the attached Resolution No. 5118 was passed and adopted at a regular meeting of the City Council of the City of Arroyo Grande on the 12th day of October, 2021.
WITNESS my hand and the Seal of the City of Arroyo Grande affixed this 15th day of October, 2021.
JESSICA MATSON, CITY CLERK
Arroyo Grande
Sidewalk
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170 MAIDEN LANE, 5TH FLOOR SAN FRANCISCO, CALIFORNIA 94108 TEL 415-362-5154 Imagining change in historic environments through
design, research, and technology
MEMORANDUM
DATE March 16, 2023 PROJECT
NUMBER
23044
TO Alyssa Manno,
Partner Engagement Manager
PROJECT 101 W. Branch Street, Arroyo
Grande Letter of Opinion
OF Visit SLO CAL FROM Clare Flynn, Cultural Resources
Planner
Christina Dikas, Project Manager
REGARDING 101 W. Branch Street, Arroyo Grande Letter of Opinion This letter of opinion has been prepared for Visit SLO CAL to address proposed plans to paint two murals on the exterior of the building located at 101 W. Branch Street (APN 007-481-001) in Arroyo Grande. The letter of opinion summarizes the historic significance of the property based on existing documentation, outlines the EXLOGLQJȇVFKDUDFWHU-defining features, describes the proposed mural project, and provides DQRSLQLRQDERXWZKHWKHUWKHSURMHFWZLOOLPSDFWWKHEXLOGLQJȇVKLVWRULF character, materials, or ability to remain eligible for listing in the National Register and California Register. It also provides guidance related to painting murals on historic building exteriors and outlines best practice guidelines for compliance with the 6HFUHWDU\RIWKHΔQWHULRUȇV6WDQGDUGV for Rehabilitation.
Figure 1. Aerial image showing 101 W. Branch Street. Source: Google Maps, 2023. Edited by Page & Turnbull. 101 W. Branch
Street
ATTACHMENT 3