AVALON CITY COUNCIL MEETING
TUESDAY, SEPTEMBER 3, 2024 — 4:30 PM
410 AVALON CANYON ROAD
AGENDA
In compliance with the Americans with Disability Act, if you need special assistance to participate in this meeting, please contact the City Clerk’s Office (310) 510-0220. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. (28 CFR 35. 102-35.104 ADA Title II). All public records relating to an agenda item on this agenda are available for the publicinspection at the time the records are distributed to all, or a majority of all, members of the City Council. Suchrecords shall be available at City Hall located at 410 Avalon Canyon Rd.
For the public’s convenience, but not participation, the meeting can be viewed:
On local cable: Catalina Broadband Solutions channel 3
Streaming on Facebook Live: www.facebook.com/CityOfAvalonOfficial Streaming on YouTube: https://www.youtube.com/CityofAvalonCA
CALL TO ORDER I PLEDGE OF ALLEGIANCE I INVOCATION I ROLL CALL
CLOSED SESSION
1. PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Title: City Manager
ANNOUNCEMENTS I WRITTEN COMMUNICATIONS
DEPARTMENT HEAD REPORTS
CITY MANAGER REPORT I CITY ATTORNEY REPORTCOUNCILMEMBER REPORTSIREQUESTS I MAYOR REPORTORAL COMMUNICATION Members of the public may address the City Council at this time. No action will be taken on nonagenda items at this meeting. Speakers should limit comments to two (2) minutes each.
CONSENT CALENDAR
1. City Council Minutes
Although the live recording is the official record of public meetings, minutes are prepared for the Council’s approval.
Recommended Action
Approve minutes from the August 20, 2024 regular City Council Meeting.
2. Warrants
Expenditures Submitted for Approval
o Warrants from the US General Fund in the amount of $598,084.21.o One payroll totaling $274,043.37.o Two electronic fund transfers totaling $53,237.16.
CITY COUNCIL AGENDA
SEPTEMBER 4, 2024
PAGE 2
Recommended Action
Approve total expenditures for August 12, 2024 through August 23, 2024 totaling $2,967,779.59.
3. Avalon City Council Policies Manual Review
The Avalon City Council Policies Manual serves as a resource for Council Members, Department Heads, City Staff and members of the public in determining the manner in which matters of the City business is conducted.
Recommended Action
Approve the revised Avalon City Council Policies Manual.
4. Adopt an Ordinance Amending Chapter 9-7, Article 10 “Antennas” of the Avalon Municipal Code and Adoption of Exemption Findings Under the California Environmental Quality Act
This ordinance was introduced and all further readings waived at the August 20, 2024 regular City Council Meeting. The proposed ordinance seeks to update and streamline the City wireless regulations for facilities outside the public right-of-way in light of numerous federal and state laws and regulations that have since taken effect, whichrestricted local control over the permitting and placement of wireless facilities.Recommended Action Introduce and waive all readings of an ordinance of the City of Avalon amending Chapter 9-7, Article 10 “Antennas” of the Avalon Municipal Code regarding wireless facilities and adoption of exemption findings under the California Environmental Quality Act.
5. OpenGov, Inc. Budget Software Renewal
The City’s procurement policy requires contracts for services, supplies, and equipment of $25,000 or more to be awarded through competitive procedures. The City solicited three vendors and received price quotes from OpenGov, Inc. and ClearGov, Inc.
Recommended Action
Approve a one-year extension with OpenGov, Inc. for its budget preparation and transparency modules for a not-to-exceed amount of $27,022.52 with the option of expending for an additional fiscal year for a not-to-exceed amount of $30,000.00.
6. Southern California Edison Community Resource Center License Agreement City Staff were contacted by representatives of Southern California Edison interested insecuring the City Council Chambers located at Avalon City Hall for use during a “Public Safety Event” such as a wildfire, windstorms or high heat event(s).
Recommended Action
Authorize the City Manager to execute a Community Resource Center License Agreement with Southern California Edison granting shared use of the City Hall City Council Chambers during a “Public Safety Event.”
CITY COUNCIL AGENDA
SEPTEMBER 4, 2024PAGE 3
7. Cost Share Agreement with Southern California Edison regarding Five Corners Comprehensive Pedestrian Proiect
Southern California Edison (SCE) owns and operates significant water and gas distribution system infrastructure within the work area of the Five Corners Comprehensive Pedestrian Project. Given that the City’s project includes street improvements and structural upgrades that impact SCE’s infrastructure, SCE proposes to relocate and replace impacted systems within the project area as part of the City’s project. Both the City and SCE will benefit from a single specification and single contract advertised and awarded by the City to execute the total scope of work outlined for construction.
Recommended Action
Authorize the City Manager to negotiate and execute an agreement with Southern California Edison establishing the terms and conditions of cost sharing for water utility and gas utility relocations and replacements associated with the Five CornersComprehensive Pedestrian Project.
GENERAL BUSINESS
8. Engineered Solution Group On-Call Engineering Services Contract Increase for Calendar Year 2024
In order to continue to efficiently move CIP projects, and other maintenance programs forward, City Staff recommend the City Council authorizes the City Manager, or his designee, to execute an amendment to the City’s On-Call Engineering Professional Services Agreement with Engineered Solution Group, increasing the contracted maximum cumulative total for calendar year 2024 by $400,000.Recommended Action Authorize the City Manager to execute an amendment to the City’s On-Call Engineering Professional Services Agreement with Engineered Solution Group (ESG), increasing the contracted maximum cumulative total for calendar year 2024 by $400,000.
9. Adoption of the Cruise Ship Wharlage Fee Increase
At the June 4, 2024 City Council Meeting, City Council provided City Staff with directionto bring back an ordinance with a proposed increase to the cruise ship wharfage rate supported by a rate analysis. City Staff prepared an analysis of its operations to determine the per passenger cruise ship wharfage fee that would adequately reimburse the City’s Harbor Fund on a cost-based and proportional basis.
Recommended ActionIntroduce and waive all readings of an ordinance repealing and replacing chapter 10-
2.402(b) of the Avalon Municipal Code, use fees for harbor cruise ship passengers, and adoption of findings under the California Environmental Quality Act.
10. Cruise Ship Annual Report for the fiscal year ended June 30, 2024 On December 20, 2022, the City Council adopted Resolution No. 22-55 re-establishing the guidelines for the approval of cruise ships visiting Avalon through December 31, 2024.
The guidelines established a framework by which cruise ships would be approved to visit Avalon as a port of call. The resolution requires an annual report as well as an annual review of the established guidelines.
CITY COUNCIL AGENDA
SEPTEMBER 4, 2024
PAGE 4
Recommended Action
Receive and file the Cruise Ship Annual Report for the fiscal year ended June 30, 2024; Adopt a resolution re-establishing the guidelines for cruise ships as outlined in the prior Resolution No. 22-55.
11. Sidewalk Vendor Ordinance Discussion
In 2019, over a series of 7 regular meetings of the City Council, the City Council developed an ordinance establishing the regulations governing operations of sidewalk vendors within the City of Avalon. The City Council and the City Manager have been contacted by a sidewalk vendor interested in expanding the scope of the sidewalk vendingordinance.
Recommended ActionDiscuss and provide direction to Staff.
ADJOURN
NOTICE OF POSTINGI, Gabrielle Morones, declare that the City Council Agenda for Tuesday, September 4, 2024 was posted on Friday, August 30, 2024 on the City’s website www.cityofavalon.com/agendacenter, and at City Hall, 410 Avalon Canyon Road.
Devin Elise Hart, Management Analyst
CITY OF AVALON CITY COUNCIL
MEETING DATE: September 3, 2024 AGENDA ITEM: I
ORIGINATING DEP: City Clerk CITY MANAGER: N’\PREPARED BY: Gabrielle Morones, Deputy City Clerk SUBJECT: City Council Minutes
RECOMMENDED ACTION(S): Approve minutes from the August 20, 2024 regular City Council Meeting.REPORT SUMMARY: Although the live recording is the official record of public meetings, minutes are prepared for the Council’s approval.
FISCAL IMPACTS: N/A.
GOAL ALIGNMENT: Not Aligned.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A.
FOLLOW UP ACTION: File minutes in the City Clerk’s office.
ADVERTISING, NOTICE AND PUBLIC CONTACT: The item was properly listed onthe posted agenda pursuant to the Brown Act.ATTACHMENTS:
1. August 20, 2024 regular City Council Meeting Minutes
AVALON CITY COUNCIL MEETING
TUESDAY, AUGUST 20, 2024
MINUTES
CALL TO ORDER-5:O0 p.m.
ROLL CALL-Present via Teleconference and In-Person: Mayor Anni Marshall,Councilmembers Lisa Lavelle, Michael Ponce, Mary Schickling and Yesenia De La Rosa. Also present: City Manager David Maistros, City Attorney Scott Campbell and City Clerk GabrielleMo rones.
WRITTEN COMMUNICATIONS-None.
CONSENT CALENDAR-There were three items on the Consent Calendar. Motion to approve items #1-#3 made by Lisa Lavelle, seconded by Mary Schickling. (All ayes)
1. City Council Minutes
Approved minutes from the July 16, 2024 regular City Council Meeting and the August 6, 2024 regular City Council Meeting.
2. Warrants
Approved warrants from the US General Fund in the amount of $1,245,332.38, one payroll totaling $290,141.18, three electronic fund transfers totaling $1,432,306.03 for a total disbursement of $2,967,779.59 for July 29, 2024 through August 9, 2024.
3. League of California Cities Annual Voting Delegate
Adopted Resolution No. 24-33 of the City Council of the City of Avalon Appointing a Voting Delegate to the 2024 Annual League of California Cities Conference.
GENERAL BUSINESS
4. First Reading of an Ordinance Amending Chapter 9-7, Article 10 “Antennas” of the Avalon Municipal Code and Adoption of Exemption Findings Under the California Environmental Quality Act
Introduced and waived all readings of an ordinance of the City of Avalon amending Chapter 9-7, Article 10 “Antennas” of the Avalon Municipal Code regarding wireless facilities and adoption of exemption findings under the California Environmental Quality Act.
Motion to approve made by Michael Ponce, seconded by Lisa Lavelle. (Ayes)
5. Sunset Bar and Grill Transportation Permit Application Approved the Transportation Permit for the Sunset Bar and Grill to utilize a commercial autoette permit to pick-up/drop-off guests to the restaurant with stated conditions.
Motion to approve made by Lisa Lavelle, seconded by Michael Ponce. (All Ayes)
CITY COUNCIL MINUTES
AUGUST 20, 2024
PAGE 2
6. Ratify Prior Action — Purchase of Pump for Pebbly Beach Lift Station Determined that an emergency existed and ratified action by the City Manager andPublic Works Director to purchase a new Flygt 6” submersible pump for the PebblyBeach Lift Station. Made the affirmative finding that the Xylem Water Solutions, Inc. has satisfied the sole source requirement as specified in the Avalon Municipal Code Section 3-4.111(b). Allocated funds from Sewer Fund 108-25-6552 for the procurement in the amount of not-to-exceed $38,500.Motion to approve made by Michael Ponce, seconded by Yesenia De La Rosa. (All Ayes)
Mayor Marshall adjourned the meeting at 6:15 p.m.
I, Gabrielle Morones, City Clerk, do hereby certify that the DVD videotape of the regular City Council Meeting on August 20, 2024, is the official record of the Council Meeting and is on fileand maintained in City Hall.Gabrielle Morones, City Clerk
CITY OF AVALON CITY COUNCIL
MEETING DATE: September 3, 2024 AGENDA ITEM: 1
ORIGINATING DEP: Finance CITY MANAGER: L(
PREPARED BY: Matthew Baker, Finance Director
SUBJECT: WarrantsRECOMMENDED ACTION(S): Approve total expenditures for August 12, 2024 through August 23, 2024 totaling $2,967,779.59.
REPORT SUMMARY: These disbursements through August 23rd are comprised of warrants from the US Bank General Account totaling $598,084.21, one payroll totaling $274,043.37, and other electronic fund transfers totaling $53,237.16.
ITEM DESCRIPTION AMOUNT DATE
GF US BANK WARRANTS CK# 38469 $ 450.00 08/13/24GE US BANK WARRANTS CK# 38470 - 38551 $ 597,634.21 08/16/24 PAYROLL $ 274,043.37 08/23/24EFT -CALPERS RETIREMENT $ 45,699.75 08/14/24 EFT -HARBOR/REC CREDIT CARD AND BANK SERVICE FEES $ 7,537.41 08/23/24 TOTAL DISBURSEMENTS $ 925,364.74
GOAL ALIGNMENT: Ongoing meeting of City obligations.
FISCAL IMPACTS: There are sufficient funds available, and the expenditures are included in the FY23-24 Budget and FY24-25 Budget.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A
FOLLOW UP ACTION: N/A
ADVERTISING, NOTICE AND PUBLIC CONTACT: Pursuant to the Brown Act.
ATTACHMENTS: Audit Certificate, Warrant Lists
CITY OF AVALON
August 12, 2024- August 23, 2024 DISBURSEMENTS
September 3, 2024
ITEM DESCRIPTION AMOUNT DATE
GF US BANK WARRANTS CK# 38469 $ 450.00 08/13/24GF US BANK WARRANTS CK# 38470- 38551 $ 597,634.21 08/16/24 PAYROLL $ 274,043.37 08/23/24EFT -CALPERS RETIREMENT $ 45,699.75 08/14/24EFT - HARBOR/REC CREDIT CARD AND BANK SERVICE FEES $ 7,537.41 08/23/24 TOTAL DISBURSEMENTS $ 925,364.74
CERTIFICATE
IN ACCORDANCE WITH SECTION 32702
OF THE GOVERNMENT CODE, I CERTIFY
THAT THE ABOVE DEMANDS ARE ACCURATEAND THAT FUNDS ARE AVAILABLE FOR PAYMENT.I CERTIFY UNDER PENALTY OF PERJURY
APPROVED AND AUDITED THIS THAT THE FOREGOING IS TRUE AND 3RD DAY OF SEPTEMBER 2024 CORRECT.
EXECUTED THIS 3RD DAY OF SEPTEMBER 2024
AUDIT COMMITTEE -MICHALE PONCE
FINANCE DIRECTOR -MATTHEW BAKER
AUDIT COMMITTEE - MARY SCHICKLING
CITY OF AVALON
WARRANT DISBURSEMENTS
September 3, 2024
CHECK DATENUMBER ISSUED AMOUNT NAME DESCRIPTION
38469 8/13/2024 450.00 CONE’,’ ISLAND WEST MOW: APRIL 2024 $ 450.00
CITY OF AVALON
WARRANT DISBURSEMENTS
September 3, 2024
COMPRESSED AIR SPECIALTIES, INCDAPEER, ROSENBLIT & LITVAK,LLPDEL MAR STEEL, INC.DEWEY PEST CDNTRDLDION & SONS MARINE FUELS INCDIDN & SONS MARINE FUELS INCEDISONEDISONLOCALITY MEDIA, INC.FUN EXPRESS, LLC GEMPLERS INC.GRAINGER
HDL COREN & CONEHERNANDEZ, TESSAHOME DEPOT CREDIT SERVICESLUPO, KARLA
JDRDAHL CONSTRUCTION
JORDAHL CONSTRUCTION
LAVELLE, LISAMAISTROS, DAVIDMARINE DIESEL SERVICES, INC.MATFHEWS INTERNATIONAL CORPORATIONMCMASTER-CARRMM INTERNET, INC.MRC SMART TECHNOLOGY SOLUTIONSNAPA AUTO PARTS SAN DIEGO COFFEE, TEA & SPICE, INC.
PEDROZA, DANIELBFT, LPPOLYDYNE, INC.
QUADIENT LEASING USA, INC.QUILL CORP
REGISTRAR-RECORDER/COUNTY CLERKRICOH USA, INC.RSG, INCRSG, INC SAGECREST PLANNING & ENVIRONMENTALSILVIA RIDS, ANORESSIRINS CLEANING SERVICESO. CALIF. ASSOC. OF GOVERNMENTSSUPERION, LLC
DESCRIPTION
FUEL: ALL DEPARTMENTS
SUPPLIES: PUBLIC WORKS
SUPPLIES: PUBLIC WORKS (WWTP)SUPPLIES: FIRE
REIMBURSMENTO/P COSTSUNIFORMS: FIRE
VOID MULTI STUB CHECK
SUPPLIES: ALL DEPARTMENTSSUPPLIES: HARBORCOMMUNICATIONS: ALL DEPARTMENTSCONTRACT SERVICES: 07/2024SWEEPER: 07/2024FREIGHT: ALL DEPARTMENTSLEGAL FEES: 07/2024 CONTRACT SERVICES: ITSUPPLIES: FIRESUPPLIES: ALL DEPARTMENTS INTERNET: ALL DEPARTMENTSLODGING: HILLSIDELODGING: SHERIFFS TRAVEL: ADMINISTRATIONTRAVEL: SHERIFF’STRAVEL: BAND JULY 4TH RENT: 08/2024
ADVERTISING: ALL DEPARTMENTSSERVICE: HARBORCONTRACT SERVICES: 07/2024 FAREBOX: 07/2024
SUPPLIES: FIRESERVICE: VEHICLESSERVICE: PUBLIC WORKS HILLSIDESERVICE: PUBLIC WORKS
VOID MULTI STUB CHECK
FUEL: HARBORUTILITIES: ALL DEPARTMENTS
UTILITIES: ALL DEPARTMENTS
SOFTWARE: FIRESUPPLIES: RECREATION
UNIFORMS: PUBLIC WORKS
SUPPLIES: PUBLIC WORKSSERVICE: FINANCE
REFUND: REPLACMENT CHECK
SUPPLIES: PUBLIC WORKSSERVICE: RECREATIONSUPPLIES: PUBLIC WORKS
TIRE DISPOSAL
REIMBURSMENT 0/P COSTSREIMBURSMENT 0/P COSTS
SERVICE: HARBORSUPPLIES: CEMETERYSUPPLIES: PUBLIC WORKSSERVICE: ITSUPPLIES: ADMINISTRATIONSUPPLIES: GARAGESUPPLIES: FIRE REIMBURSMENT 0/P COSTS
SUPPLIES: CODESUPPLIES: WWTP
POSTAGE METER LEASE
SUPPLIES: ALL DEPARTMENTSCERTIFIED RECORDINGCOPIER LEASE: PLANNINGSERVICE: SUCCESSOR AGENCYSERVICE: HOUSING AUTHORITYCONTRACT SERVICES: PLANNING REFUND: VEHICLE FEE
1ST HALF 08/2024
DUES: FY25
SOFTWARE LEASE: FINANCE
AMOUNT NAME
6,906.042,584.365,072.75
88.2050.00
3,974.68
11,140.78
1,S93.9D1,450.62
181,499.92
5,934.463,872.90
23,655.87
8,424.00
70.95 9,978.74
4,183.91
1,248.73iS11.28
97.00 90.00
1,012.00
10,494.00
603.00268.00
55,535.92
MA OIL, INCACTION SALES & METAL CD.ACTION SALES & METAL CD.AIR SOURCE INDUSTRIESALEGRIA, MICHAELALL STAR FIRE EQUIPMENT, INCAMAZON CAPITAL SERVICES, INC.
AMAZON CAPITAL SERVICES, INC.ANIXTER, INC.AT & T
CR&R INCORPORATEDCR&R INCORPORATED
AVALON FREIGHT SERVICES, LLC
BEST, BEST & KRIEGER, LLPBEYOND SOFTWARE SOLUTIONSBOUND TREE MEDICAL
CATALINA BEVERAGE COCATALINA BROADBAND SOLUTIONSCATALINA CANYON INN CATALINA CANYON INNCATALINA EXPRESSCATALINA EXPRESSCATALINA EXPRESSCATALINA ISLAND COMPANYCATALINA ISLANDERCATALINA PEST CONTROLCIRCUIT TRANSIT, INC. (12,264.00) CIRCUIT TRANSIT, INC.
CHECKNUMBER38470
38471384713847238473384743847538476
384773847838479384793848038481384823848338484
38485384863848638487384873848738488384893849038491
38491384923849338494384953849638497384983849938S003850138S023850338S04 38505
38506
38507
38S08
38508385093851038511385123851338S1438515385163851738S183851938520 38S21
38S223852338S243852S38S253852638527385283852938530
DATE
ISSUED
08/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/2024 08/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/2024 08/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/2024 08/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/2024 08/16/202408/16/202408/16/202408/16/ 202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/202408/16/2024 08/16/2024
2,236.783,707.61
15,405.00
842.00
3,230.20
57,124.38
802.25
2,500.00
500.23671.27
2,861.89
1,510.11
270.00
2,632.57
840.00
2,171.40
315.00287.70
467.47
251.23
410.55
235.90344.10222.28274.7324S.3D
1,340.82
3,007.22
7,260.00
694.30
1,056.76
7S.00
31.34 1,600.00
418.7S
20,673.15
S1.50
9,357.91
540.00
4,1OS.30
CHECK DATE
NUMBER ISSUED AMOUNT
$ 597,634.21
CITY OF AVALON
WARRANT DISBURSEMENTS
September 3, 2024
NAME DESCRIPTION
38531 08/16/2024 5,000.00 TOWNSEND PUBLIC AFFAIRS, INC CONTRACT SERVICES: ADMINISTRATION38532 08/16/2024 43.30 UNDERGROUND SERVICE ALERT/SC SERVICE: PUBLIC WORKS38533 08/16/2024 164.75 WEST MARINE PRO SUPPLIES: HARBOR38534 08/16/2024 191.94 WHITE, CHASE REIMBURSMENT 0/P COSTS38535 08/16/2024 118.57 WITMER PUBLIC SAFETY GROUP, INC. SUPPLIES: FIRE38536 08/16/2G24 793.45 WITMER PUBLIC SAFETY GROUP, INC. SUPPLIES: FIRE38537 08/16/2024 715.00 WITTMAN ENTERPRISES, LLC SERVICE: FINANCE38538 08/16/2024 5,711.70 CR&R INCORPORATED SWEEPER: 06/202438539 08/16/2024 891.95 CATALINA CANYON INN LODGING: PUBLIC WORKS HILLSIDE 38540 08/16/2024 6,600.00 LONG, DAVID CONTRACT SERVICES: FALCON38541 08/16/2024 5,155.04 CATALINA ISLAND COMPANY PARCELS: FY 202438542 08/16/2024 7,149.99 COASTLINE EQUIPMENT PUBLIC WORKS: SKID STEER PART38543 08/16/2024 - EDISON VOID MULTI STUB CHECK38544 08/16/2024 70,002.27 EDISON UTILITIES: ALL DEPARTMENTS38545 08/16/2024 6,079.80 EMPLOYMENT DEVELOPMENT DEPARTMENT UNEMPLOYMENT INSURANCE38546 08/16/2024 3,600.00 GEORGE HAMILTON JONES, INC. SERVICE: HOUSING AUTHORITY38547 08/16/2024 200.00 ISLAND FABRICATION UNIFORMS: HARBOR38548 08/16/2024 3,994.50 KEY CODE MEDIA, INC. SERVICE: ADMINISTRATION38549 08/16/2024 424.61 MATTHEWS INTERNATIONAL CORPORATION SUPPLIES: CEMETERY38550 08/16/2024 209.33 ISLAND EXPRESS HELICOPTERS INC. FREIGHT: PUBLIC WORKS38551 08/16/2024 938.00 SAND TRAP MOW: 01/2024 - 05/2024
CITY OF AVALON CITY COUNCIL
MEETING DATE: September 3, 2024 AGENDA ITEM: ________ ORIGINATING DEP: Administration CITY MANAGER:
PREPARED BY: Scott Campbell, City Attorney
SUBJECT: Avalon City Council Policies Manual Review
RECOMMENDED ACTION(S): Approve the revised Avalon City Council Policies Manual.REPORT SUMMARY: On August 6, 2024, the City Council reviewed the Avalon City CouncilPolicies Manual with the City Attorney. In addition to proposed amendments from the City Attorney’s Office, additional changes were recommended by the City Council. Amendments noted at the August 6 regular City Council meeting have been incorporated to the current draft of the policies manual.
The Avalon City Council Policies Manual serves as a resource for Council Members, Department Heads, City Staff and members of the public in determining the manner in which matters of the City business is conducted.
City Staff developed the policies manual, at the request of a member of the City Council, in 2014. The manual serves as a reference for Council Members regarding duties and responsibilities of elected and appointed officials of the City of Avalon.
As a part of best its best practices, the City intended to review the manual each election cycle.
However, due in part to timing of the 2020 General Municipal Election and the COVID-19 pandemic, the manual had not been reviewed or updated by City Council since 2018.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The recommendedchanges from Avalon City Council will not be implemented.
FOLLOW UP ACTION: None.
ADVERTISING, NOTICE AND PUBLIC CONTACT: This item was properly listed on the posted agenda pursuant to the Brown Act.
ATTACHMENTS: City of Avalon Council Policies Manua’
3.10.4 Provisions for permitting any individual or group to address the Council concerning any item on the agenda of a special meeting, or to address the Council at a regular meeting, or to otherwise addressthe Council on any subject that lies within the jurisdiction of the City Council, shall be as follows:
3.10.4.1 If a member of the public desires to speak on a matter appearing on the agenda, the member should beallowed to speak when the agenda item is beingconsidered. If a member of the public desires to speak on a matter not appearing on the agenda, the member
should speak during the period for public comments.
Two minutes will be allotted per speaker for public
comment on non-agenda items. Speakers are
requested to give their name and may give their
address. The Council cannot take action on any item
brought up at a public comment time except to refer the matter to staff and/or place it on a future agenda.
3.1 0.4.2 Three (3) minutes wW be allotted to each speaker to each subject matter;for each specific item on the
agenda.
3.10.4.3 No boisterous conduct shall be permitted at any City Council meeting. Persistence in boisterous ordisruptive conduct shall be grounds for summarytermination, by the Mayor, of that person’s privilege of address to the Council and the Mayor may take suchaction in accordance with the Ralph M. Brown Act
3.10.4.4 If members of the public provide correspondence or materials to any council member related to a matter on
the agenda, or a request to put a matter on the agenda, that council member shall provide the correspondence
and materials to the City Manager or its designee.
Such correspondence or materials shall be provided to
all members of the City Council and made available to
the public.
3.10.5 The City is required to follow certain legal requirements in connection with disclosure of information regarding City employees and personnel matters. Therefore, the Council will conduct any discussion of personnel matters in compliance with such laws. As a result, it will be the policy of the Council that no oral presentation shall include charges or complaints against any City employee, regardless of whether or not the employee is identified in thepresentation by name or by another reference, which tends to Council Policies Manual Section 3.0 Page 7 of 8
6505900000\42476694.4
City of Avalon
Council Policy
anual
65059.00000\42476694.2
Revision Date 9/03/2024
CITY OF AVALON
COUNCIL POLICIES
TABLE OF CONTENTS
1.0 PURPOSE OF COUNCIL POLICIES
1.1 Intent
1 .2 Authority
2.0 BASIS OF AUTHORITY
2.1 Basis of Authority2.2 Attendance at Meetings
2.3 Mayor2.4 Members of the City Council2.5 Election of Mayor Pro Tern2.6 Oath of Office2.7 Membership in Associations
3.0 CITY COUNCIL MEETING POLICIES, CITY COUNCIL COMMITTEE,
WORKSHOP AND REGULAR MEETING, MEETING AGENDAS AND
MINUTES3.1 City Council Meeting Place3.2 Regular City Council Meetings3.3 Council Workshops
3.4 Non-Emergency Special Council Meetings3.5 Emergency Special Meetings3.6 Adjourned Meetings3.7 Public Notification of Meetings3.8 Council Meeting Agendas
3.9 Council Meeting Minutes3.10 Council Meeting Conduct 65059.00000\42476694.2
Revision Date 9/03/2024
CITY OF AVALON
COUNCIL POLICIES
TABLE OF CONTENTS
40 COUNCIL MEMBER COMPENSATION AND RULES AND
REGULATIONS REGARDING PAYMENT OF COMPENSATION ANDEXPENSE REIMBURSEMENT
4.1 Purpose
4.2 Council Member Compensation and Reimbursement of Actual and Necessary Expenses
4.3 Authorized Meetings for Which Reimbursement of Actual and Necessary Expenses is Allowed
4.4 Authorization for Attendance at Additional Meetings4.5 Meeting Attendance Reports.4.6 Meeting and Conference Expense
5.0 COMMUNICATION ROLES OF CITY COUNCIL AND CITY STAFF
5.1 General5.2 Priorities and Commitment5.3 Procedures5.4 Council and Staff Relationships
6.0 COUNCIL ACTIONS AND DECISIONS
6.1 Possible Actions6.2 Abstentions6.3 Informal Action
7.0 RULES OF ORDER FOR COUNCIL AND COMMITTEE MEETINGS
7.1 General7.2 Obtaining the Floor7.3 Motions7.4 Decorum
7.5 Amendment of Rules of Order
65059.00000\42476694.2
Revision Date 9/03/2024
CITY OF AVALON
COUNCIL POLICIES
TABLE OF CONTENTS
8.0 TRAINING, EDUCATION AND CONFERENCES
8.1 General8.2 Policy8.3 Approval8.4 Reimbursement8.5 Reporting 65059.00000\42476694.2
1.1 Intent
1.1.1 It is the intent of the City Council of the City of Avalon to maintain a Policies Manual. Contained therein shall be a comprehensive listing of the Council’s current policies, being the rules and regulationsenacted by the Council from time to time. The Policies Manual will serve as a resource for Council, staff and members of the public indetermining the manner in which some matters of City business are to be conducted.
1.1.2 This Policies Manual constitutes a compilation of current policies of the City and shall not be deemed to alter the effective date or application of such policies. Any policies newly adopted as a resultof adoption of this Policies Manual shall be specifically identified as such by separate Council action prior to adoption of this Policies Manual.
1.2 Authority
1.2.1 If any policy or portion of a policy contained within the Policies Manual is in conflict with State or Federal law, rules or regulations having authority over the City of Avalon, said State or Federal law,rules or regulations shall prevail.
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CITY OF AVALON
COUNCIL POLICIES MANUAL
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1.0 Revision Date
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PURPOSE OF COUNCIL POLICIES
2.1 Basis of Authority
2.1.1 The City Council is the unit of authority for establishing policy within the City. Apart from their normal function as a part of this unit, Council Members have no individual authority. As individuals, Council Members may not commit the City to any policy, act or expenditure.
2.1.2 Council Members do not represent any fractional segment of the community within which the City is located, but are, rather, a part of the body, which represents and acts for the community as a whole.
Council Members must act for the good of the entire community andnot for their personal interests or agendas.
2.2 Attendance at Meetings
2.2.1 Members of the City Council shall make every effort to attend all regular and special meetings of the Council unless there is good cause for absence.
2.2.2 A vacancy shall occur if any member ceases to discharge the duty of his/her office for the period of three (3) consecutive months exceptas authorized by the City Council and except as otherwise provided by California law.
2.3 Mayor
2.3.1 The Mayor shall serve as Presiding Officer at all Council meetings only. Other than the ability to appoint members to the Planning Commission, which appointments are subject to City Council approval, he/she shall have the same rights as the other membersof the Council with voting, introducing motions, resolutions andordinances, and any discussion of questions that follow said actions.
2.3.2 In the absence of the Mayor, the Mayor Pro Tern shall serve as Presiding Officer over all meetings of the Council. If the Mayor andMayor Pro Tern are both absent, the remaining members present Council Policies Manual Section 2.0
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) CITY OF AVALON COUNCIL POLICIES MANUAL
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BASIS OF AUTHORITY
shall select one of themselves to act as the presiding officer for that particular meeting.
2.4 Members of the City Council
2.4.1 Council Members shall thoroughly prepare themselves to discuss agenda items at meetings of the City Council. Information may be requested from staff or exchanged between Council Members before meetings, except as may otherwise be limited or prohibited byCalifornia law including, but not limited to, the requirements of the Ralph M. Brown Act/Open Meeting law.
2.4.2 Information that is exchanged before meetings shall be distributed through the City Manager, and all Council Members will receive all information being distributed. Distribution of information may belimited by time and notice restrictions under the Ralph M. Brown Act/Open Meeting law.
2.4.3 Council Members shall at all times conduct themselves with courtesy to each other, to staff and to members of the public present at Council meetings.
2.4.4 Council Members shall defer to the Mayor for conduct of meetings of the Council, but shall be free to question and discuss items on the agenda. All comments should be brief and confined to the matter being discussed by the Council.
2.4.5 Council Members shall abstain from participating in consideration on any item involving a conflict of interest as set forth in the applicable provisions of California law. Unless such a conflict of interest exists, however, Council Members should not abstain from the Council’s decision-making responsibilities.
2.4.6 Requests by individual Council Members for substantive information and/or research from City staff or the City Attorney will be channeled through the City Manager.
2.5 Election of Mayor Pro Tern
At the first regularly scheduled City Council meeting in April following the regular election, the City Council shall elect a Mayor Pro Tem who shall serve a two year term.
2.6 Oath of Office
Council Members who are elected at a regular election shall take office at the first regularly scheduled City Council meeting in April following their regular electionupon administering of the oath of office. Council Members not elected at a regular Council Policies Manual Section 2.0 Page 2 of 3
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election shall be administered the oath of office in accordance with the provisions of the law. Generally the oath of office will be administered at the next regular Council meeting.
2.7 Membership in Associations
The Council Members are encouraged to ordinarily hold membership in and attend meetings of such national, state, and local associations as may exist which have applicability to the functions of the City, and shall look upon such memberships as an opportunity for in-service training.
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Section
3.0 CITY OF AVALON Revision Date
COUNCIL POLICIES MANUAL 9/312024
CITY COUNCIL MEETING POLICIES, CITY COUNCIL
COMMITTEE, WORKSHOP AND REGULAR MEETING,
MEETING AGENDAS AND MINUTES
3.1 City Council Meeting Place
3.1.1 All City Council meetings will be held at the Avalon City Hall Council Chambers located at 410 Avalon Canyon Road, Avalon California, unless otherwise noticed.
3.2 Regular City Council Meetings
3.2.1 Regular City Council meetings will be held on the first and third Tuesday of each calendar month, with open session beginning at 5:00 p.m. If a closed session is to be held at the meeting, it will be generally held at the beginning or the end of the regular meeting.
However, with consideration for parties critical to be in attendance at the closed session, the closed session may be scheduled at any time during the regular meeting as noticed pursuant to the Ralph M.
Brown Act . All discussions, actions and information provided in closed sessions are confidential, and shall remain so unless the CityCouncil votes to disclose closed session matters or if disclosure of actions is required by The Ralph M. Brown Act.
3.2.2 Regular City Council meetings will be held to conduct regular Council business. Items requiring Council action will be considered at these meetings. The City Manager and Department Heads may presentreports as needed and/or as requested by the City Council.
3.3 Council Workshops
3.3.1 Council workshops will be held on an as needed basis and shall be noticed pursuant to the requirements of The Ralph M. Brown Act.
3.4 Non-Emergency Special Council Meetings
3.4.1 Non-Emergency Special Council Meetings may be called by the City Manager or by a majority of the Council in accordance with the Ralph M. Brown Act.
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3.4.2 All Council Members, the City Manager, pertinent Department Heads, the City Attorney and the City Clerk will be notified of the Special Council Meeting and the purpose for which it is called.
Notification shall be in writing, at least twenty-four (24) hours prior to the meeting and any Special Council Meeting shall be noticed and conducted in accordance with the Ralph M. Brown Act.
3.4.3 Newspapers of general circulation in the City, organizations, and property owners who have requested notice of special meetings in accordance with the Ralph M. Brown Act (California Government Code §54950 through §54926) shall receive written notice in accordance with the Ralph M. Brown Act. The City Clerk will attempt to provide electronic notification to entities requesting such notification but such notification is not guaranteed nor will it replace written notification.
3.4.4 An agenda shall be prepared as specified for regular council meetings in Section 3.8 herein, and shall be delivered with the notice of the special meeting to those specified above.
3.4.5 Only those items of business listed in the call for the special meeting shall be considered by the Council at any Special Council meeting.
3.5 Emergency Special Meetings
3.5.1 In the event of an emergency involving matters upon which prompt action is necessary due to the disruption or threatened disruption of public facilities, the City Council may hold an emergency special meeting without complying with the twenty-four (24) hour notice required in Section 3.4.2, above. An emergency means a crippling disaster, which severely impairs public health, safety, or both, asdetermined by a majority of the members of the Council or work stoppage or other activity, which severely impairs public health,safety, or both, as determined by a majority of the members of the Council.
3.5.2 Newspapers of general circulation in the City, radio stations and television stations which have requested notice of special meetings in accordance with the Ralph M. Brown Act (California Government Code §54950 through §54926) shall be notified by at least one (1) hour prior to the emergency special meeting. In the event that telephone services are not functioning, the notice requirement of one hour is waived, but the City Manager, or his/her designee, shall notify such newspapers, radio stations, or television stations of the fact of the holding of the emergency special meeting, and of any action taken by the Council, as soon after the meeting as possible.
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3.5.3 No closed session may be held during an emergency special meeting, and all other rules governing special meetings shall be observed with the exception of the twenty-four (24) hour notice. The minutes of the emergency special meeting, a list of persons the CityManager or designee notified or attempted to notify, a copy of the roll call vote(s), and any actions taken at such meeting shall be posted for a minimum often (10) days in a public place at City Hall as soon after the meeting as possible.
3.6 Adjourned Meetings
A majority vote by the City Council may terminate any Council meeting at any place in the agenda to any time and place specified in the order of adjournment and less than a quorum may so adjourn a meeting for lack of a quorum, except that if no Council Members are present at any regular or adjourned regular meeting, the City Manager may declare the meeting adjourned to a stated time and place, andhe/she shall cause a written notice of adjournment to be given as required by The Ralph M. Brown Act.
3.7 Public Notification of Meetings
3.7.1 Agendas for upcoming City Council Meetings shall be posted in accordance with the provisions of Section 3.8.4 and 3.8.4 below and
3.5.1 above.
3.7.2 Notice of upcoming meetings may appear in such other places as the local paper, in newsletters sent out with bills and in other places available to the City.
3.8 Council Meeting Agendas
3.8.1 The City Manager, in cooperation with the City Clerk and City Attorney, shall prepare an agenda for each meeting of the City Council. Any Council Member may place an item on the regular meeting agenda at a regular Council meeting or workshop by making a written request to the City Manager.
3.8.2 This policy does not prevent the Council from taking testimony at regular and special meetings of the Council, during the public comment portion of the Council meeting, on matters that are not on the agenda, which a member of the public may wish to bring beforethe Council. However, the Council shall not discuss or take action on such matters at that meeting. However, Council Members may briefly respond to statements made or questions posed during public comment portions of a meeting. In addition, on their own initiative, or in response to questions raised by the public, Council Members may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities. Council Members may also Council Policies Manual Section 3.0 Page 3 of 8
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provide a reference to City staff or other resources for factual information, request staff to report back to the Council at a subsequent meeting concerning any matter, or take action to directstaff to place a matter of business on a future agenda.
3.8.3 At least seventy-two (72) hours prior to the time of all regular meetings, an agenda, which includes but is not limited to all matters on which there may be discussion and/or action by the Council, shallbe posted on the City Website and conspicuously for public reviewat City Hall.
3.8.4 The agenda for a special meeting shall be posted at least twenty-four (24) hours before the meeting in the same locations noted in Section3.8.3.
3.8.5 In addition to the City Website and City Hall, Council meeting agendas or, if requested, the entire agenda packet shall be provided to any person who has filed a written request for such materials perthe Ralph M. Brown Act. Such request shall be valid for one year.
3.9 Council Meeting Minutes
3.9.1 Council Meeting Minutes must be recorded for all Standing City Committee meetings, Workshops and Council meetings. Suchminutes should be concise, identifying the items considered, and any action taken.
3.9.2 If a written report is submitted for the item, then reference should be made to the written report rather than restating the report contents.
General reference should be made to discussion of an item, rather than a detailed description. Action taken should be clearly identified in terms of motions made, who made the motion and second, and the results of the voting.
3.9.3 Copies of minutes shall be made for distribution to and for approval by Council Members with the agenda at regular Council meetings.
3.9.4 An audio tape recording of regular and workshop meetings of the City Council shall generally be made.
3.9.5 Motions, resolutions or ordinances shall be recorded as having passed or failed and individual votes will be recorded unless the action was unanimous.
3.9.6 All resolutions adopted by the Council shall be numbered consecutively starting new at the beginning of each chronological year.
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3.9.7 The minutes of Council meetings shall be maintained as hereinafter outlined.
3.9.8 Content of Minutes:
• Date, place and type of each meeting;• Council Members present and absent by name;• Call to order;• Pre-adjournrnent departure of Council Members by name, or if absence takes place when any agenda items are acted upon; • Adjournment of the meeting;• Record of written notice of special meetings;• and,• Record of items to be considered at special meetings.
3.9.9 Council Actions:
• Approval or amended approval of the minutes of preceding meetings;
• Complete information as to each subject of the Council’s deliberation;
• Complete information as to each subject including the roll call record of the vote on a motion if not unanimous;
• All Council resolutions and ordinances in complete context, numbered serially for each chronological year;
• A record of all contracts entered into;• A record of all bid procedures, including calls for bids authorized, bids received, and other action taken;
• Adoption of the annual budget;• A record of the City Manager’s report to the Council;• Approval of all policies and Council-adopted regulations; and, a record of all visitors and delegations appearing before the Council. However, in accordance with the Ralph M. Brown Act, a member of the public shall not be required, as a condition to attendance, to register his or her name or to provide any other information.
3.10 Council Meeting Conduct
3.10.1 Meetings of the City Council shall be conducted by the Mayor (or Mayor Pro Tem in the Mayor’s absence, or in the absence of theMayor Pro Tern, by the Council Member selected to be the presiding officer by the remaining Council Member) in a manner consistent with the policies set forth herein.
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3.10.2 In accordance with the Ralph M. Brown Act and Resolution No. 2012- 12, all Council meetings should commence at the time stated on the agenda and should be guided by the same. The purpose of City Council meetings is to enable the Council to conduct the business of the City. As such, the following guidelines should be substantiallyfollowed, to the extent practicable, depending on the circumstances surrounding each meeting:
3.10.2.1 After the ‘Call to Order, Pledge of Allegiance, Roll Call, and Approval of Agenda”, the Council will act on the
“Consent Agenda”; approving these items with one
motion unless any are requested to be pulled fromConsent by a Council Member or a member of the public. In this case, each item pulled will be discussed and voted upon separately. The City Manager shall
have discretion to place an item on the consent
calendar. Such consent calendar items should be
those that are routine and where no controversy is
reasonably anticipated.
3.10.2.2 Each regular agenda item shall then be taken in agenda order unless the order is altered by the Mayor.
A brief report from the City Manager or other
designated staff will be given.
3.10.2.3 After hearing the staff report, the Council may ask questions of staff, discuss the issues involved, and
comment on the issues. These deliberations shall be
guided by the Mayor.
3.10.2.4 After Council deliberations are concluded or prior to Council deliberations, the Mayor shall ask the audience for public comment prior to calling for a vote.
3.10.2.5 After public comment, the Council shall vote on the matter before them and proceed to the next agendaitem.
3.10.3 The conduct of meetings shall, to the fullest possible extent, enable Council Members to:
3.10.3.1 Consider problems to be solved, weigh evidence related thereto, and make wise decisions intended to
solve the problems; and,
3.10.3.2 Receive, consider, and take any needed action with respect to reports of accomplishment of Cityoperations.
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3.10.4 Provisions for permitting any individual or group to address the Council concerning any item on the agenda of a special meeting, or to address the Council at a regular meeting, or to otherwise addressthe Council on any subject that lies within the jurisdiction of the City Council, shall be as follows:
3.1 0.4.1 If a member of the public desires to speak on a matter appearing on the agenda, the member should be
allowed to speak when the agenda item is being
considered. If a member of the public desires to speak
on a matter not appearing on the agenda, the membershould speak during the period for public comments.
Speakers are requested to give their name and may
give their address. The Council cannot take action onany item brought up at a public comment time except to refer the matter to staff and/or place it on a future agenda.
3.10.4.2 Three (3) minutes may be allotted to each speaker to each subject matter;
3.10.4.3 No boisterous conduct shall be permitted at any City Council meeting. Persistence in boisterous or
disruptive conduct shall be grounds for summary
term nation, by the Mayor, of that person’s privilege of address to the Council and the Mayor may take such
action in accordance with the Ralph M. Brown Act.
3.10.5 The City is required to follow certain legal requirements in connection with disclosure of information regarding City employees and personnel matters. Therefore, the Council will conduct any discussion of personnel matters in compliance with such laws. As a result, it will be the policy of the Council that no oral presentation shall include charges or complaints against any City employee, regardless of whether or not the employee is identified in the presentation by name or by another reference, which tends to identify. All charges or complaints against employees shall be submitted to the City Manager for investigation in writing via email or hard copy.
3.10.6 Willful disruption of any of the meetings of City Council shall not be permitted. In accordance with the Ralph M. Brown Act, if the City Council finds that there is in fact willful disruption of any meeting of the Council, they may order the room cleared and subsequently conduct the Council’s business without the audience present.
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3.10.7 In such an event, only matters appearing on the agenda may be considered in such a session.
3.10.8 After clearing the room, the City Council may permit those persons who were not responsible for the willful disruption to reenter the meeting room.
3.10.9 Duly accredited representatives of the news media, whom the City Council finds not to have participated in the disruption, shall be allowed to attend the remainder of the meeting.
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4.1 Purpose
4.1.1 This section is enacted pursuant to Government Code sections 53232.1 and 36516, to establish rules and regulations regardingpayment of compensation and reimbursement for Council Members of the City of Avalon.
4.2 Council Member Compensation and Reimbursement of Actual and Necessary Expenses
4.2.1 Council Members shall receive compensation of three hundred dollars ($300) per month. Additionally, Council Members may receive reimbursement for actual and necessary expenses incurredin the performance of their official duties for attendance at certain authorized meetings.
4.3 Authorized Meetings for Which Reimbursement of Actual and Necessary Expenses is Allowed
4.3.1 Attendance at meetings where attendance is in the best interests of the City. Such meetings include:
a) The League of California Cities’ annual meeting, meetings of the League’s Los Angeles County Division and League’s Policy Committee Meetings;b) The Contract Cities Association Fall and Spring Conferences and monthly meetings;c) Meetings of other organizations or groups where Council Members serve as representatives of the City to such meetings, suchas the Gateway COG. d) Such meetings also include meetings that come to theattention of the City Manager or the Council Member with insufficient Council Policies Manual Section 4.0
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COUNCIL POLICIES MANUAL
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4.0 Revision Date
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COUNCIL MEMBER COMPENSATION AND RULES AND
REGULATIONS REGARDING PAYMENT OF
COMPENSATION AND EXPENSE REIMBURSEMENT
time to seek Council approval at a regular Council meeting. At the City Manager’s discretion, he/she may also determine thatattendance by a Council Member at these meetings is in the best interest of the City if City Council approval is not obtained prior to the meeting.
4.4 Authorization for Attendance at Additional Meetings The following is the procedure for obtaining approval for attendance at public meetings of other organizations, seminars, conferences, and other public meetings for which a Council Member may seek reimbursement for attendance:4.4.1 At each regular Council meeting there will be an agenda items entitled “Council Member Reports and Requests /Mayor Reports and Requests.” This agenda item will allow Council Members to seek from the Council approval for attendance at upcoming meetings of other organizations, seminars, conferences, and other meetings notauthorized pursuant to Section 4.3.1. Retroactive approval of nonauthorized meetings is not allowed under the Government Code.
4.5 Meeting Attendance Reports.
4.5.1 A Council Member who has attended an authorized meeting, seminar, or conference, as provided for in Section 4.3 or 4.4 of this Policy for which the Council Member seeks reimbursement shall make a report regarding the meeting, seminar, or conference at thenext regular Council meeting following such attendance and shallmake materials obtained at such meetings, seminars and conferences available to other Council Members.
4.6 Meeting and Conference Expense
4.6.1 Council Members shall be reimbursed for all actual expenses incurred in attending any meetings or in making any trips on officialbusiness of the City when so authorized in accordance with Sections
4.3.3 and as allowed by Government Code Section 53232.2.
4.6.2 Reimbursement for the cost of the use of a personal vehicle shall be on the basis of total miles driven and at the rate specified in the Internal Revenue Service Guidelines in effect at the time of the vehicle usage.
4.6.3 Reimbursements and costs incurred by Council Members including meeting stipends shall be reported publicly as required by law.
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Section
5.0 CITY OF AVALON Revision Date
COUNCIL POLICIES MANUAL 91312024
COMMUNICATION ROLES OF CITY COUNCIL AND CITY
STAFF
5.1 General
5.1.1 The City Council of City of Avalon is committed to providing excellence in legislative leadership that result in the provision of the highest quality of services to its constituents. In order to assist in the government of the behavior between and among members of the City Council, the following rules shall be observed.
5.1.2 The specific policies based upon City Council and staff communication are premised on the City’s structure as a City Manager/City Council form of government where the City Council can act only as a body pursuant to action taken at a meeting and that individual Council Members have no individual authority to commit the City to action.
5.2 Priorities and Commitment
5.2.1 The dignity, style, values and opinions of each Council Member shall be respected.
5.2.2 Responsiveness and attentive listening in communication is encouraged.
5.2.3 The needs of the City’s constituents should be the priority of the City Council.
5.2.4 The primary responsibility of the City Council is the formulation and evaluation of policy. Routine matters and the day-to-day management and operation of the City are within the purview of the professional staff members of the City and are the primary responsibility of the City Manager.
5.2.5 Council Members should commit themselves to emphasizing the positive, avoiding double talk, hidden agendas, hearsay, malicious talk, backbiting, and other negative forms of interaction.
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5.2.6 Council Members should commit themselves to focusing on issues and not personalities. The presentation of the opinions of othersshould be encouraged. Cliques and voting blocks based on personalities rather than issues should be avoided.
5.2.7 Differing viewpoints are healthy in the decision-making process.
Individuals have the right to disagree with ideas and opinions, but without being disrespectful. Once the City Council takes action, Council Members should commit to supporting said action and not tocreate barriers to the implementation of said action.
5.3 Procedures
5.3.1 Council Members should practice the following procedures:
5.3.1.1 In seeking clarification on informational items, Council Members may directly approach professional staff
members to obtain information needed to supplement,upgrade, or enhance their knowledge to improve legislative decision-making.
5.3.1.2 In handling complaints from residents and property owners of the City, said complaints should be referreddirectly to the City Manager.
5.3.1.3 The appropriate handling of issues related to safety, concerns for safety or observed hazards is to report
them to the City Manager or to City Hall. Emergency
situations should be dealt with immediately by seekingappropriate assistance.
5.3.1.4 In seeking clarification for policy-related concerns, especially those involving personnel, legal action, landacquisition and development, finances, and programming, said concerns should be referred
directly to the City Manager.
5.3.1.5 Adjudicative Decisions. For those decisions considered to be adjudicative decisions like appeals from the
planning commission or City Manager decisions and
the granting of entitlements, the Council shall not be
biased and shall be fair and impartial and should base
its decision on the evidence and materials presented at the Council meeting. Any communications to individual
Council members should be disclosed as well as any
information a Council member is relying upon that isnot formally presented at the Council meeting.
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5.4 Council and Staff Relationships
5.4.1 When approached by City personnel concerning specific City policy, Council Members should direct inquiries to the City Manager. The chain of command should be followed.
5.4.2 The work of the City is a team effort. All individuals should work together in the collaborative process, assisting each other in conducting the affairs of the City.
5.4.3 When responding to constituent requests and concerns, Council Members should be courteous, responding to individuals in a positive manner and routing constituent questions to the City Manager who will assign any response to responsible personnel.
5.4.4 Council Members should develop a working relationship with the City Manager wherein current issues, concerns and City projects can be discussed comfortably and openly.
5.4.5 Council Members should function as a part of the whole. Issues should be brought to the attention of the Council as a whole, rather than to individual members selectively.
5.4.6 Council Members are responsible for monitoring the City’s progress in attaining its goals and objectives, while pursuing its mission.
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COUNCIL ACTIONS AND DECISIONS
6.1 Possible Actions
6.1.1 Actions by the City Council may include but are not limited to the following:
6.1.1.1 Adoption, rejection, revision or amendment of certain regulations or policies;
6.1.1.2 Adoption, rejection, revision or amendment of a resolution;
6.1.1.3 Adoption, rejection, revision or amendment of an ordinance;
6.1.1.4 Approval, rejection, revision or amendment of any contract or expenditure;
6.1.1.5 Approval, rejection, revision or amendment of any proposal which commits City funds in excess of the
amounts set forth in the Purchasing Ordinance or useof City facilities; and,
6.1.1.6 Approval, disapproval or alteration of matters, which require or may require the City or its employees to take action and/or provide services.
6.1.1.7 Resolutions, orders for the payment of money and all ordinances require a recorded majority vote of the total membership of the Council, i.e. three votes.
6.2 Abstentions
6.2.1 If a Council Member abstains from voting on a matter, the abstention cannot be counted as an affirmative vote.
6.3 Informal Action
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6.3.1 The Council may give directions, which are not formal action. Such directions do not require formal procedural process. Such directions include the Council’s directives and instructions to the City Manager.
6.3.2 The Mayor shall determine by consensus a Council directive and shall state it for clarification. Should any two Council Members challenge the statement of the Mayor, a voice vote may be requested.
6.3.3 A formal motion may be made to place a disputed directive on a future agenda for Council consideration, or to take some other action (such as refer the matter to the City Manager for review andrecommendation, etc.).
6.3.4 Informal action by the Council is still Council action and shall only occur regarding matters which appear on the agenda for the Council meeting during which said informal action is taken and for which more formal action is not required.
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7.1 General
7.1.1 Action items shall be brought before and considered by the Council by motion in accordance with this policy. These rules of order are intended to be informal and applied flexibly. The Council prefers a flexible form of meeting and, therefore, conducts its meetings under Rosenberg’s Rules of Order. The intent of these rules of order is to provide guidance for the conduct of meetings and the Council should strive to substantially comply with these rules of order.
7.1.2 If a Council Member believes order is not being maintained or procedures are not adequate, then he/she should raise a point of order - not requiring a second - to the Mayor. If the ruling of the Mayor is not satisfactory to the Council Member, then it may be appealed to the Council. A majority of the Council will govern and determinethe point of order.
7.2 Obtaining the Floor
7.2.1 Any Council Member desiring to speak should address the Mayor and, upon recognition by the Mayor, may address the subject underdiscussion.
7.3 Motions
7.3.1 Any Council Member, including the Mayor, may make or second a motion. Motions to take action on an item are generally made after staff presentation of the agenda item, public comment, and Councildeliberation has occurred. A motion shall be brought and considered as follows:7.3.1.1 A Council Member makes a motion, another Council Member seconds the motion, and the Mayor or City
Attorney may state the motion.
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COUNCIL POLICIES MANUAL
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Section
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ORDER FOR COUNCIL AND COMMITTEE
MEETINGS
7.3.2 After a motion has been made and seconded, the motion is open to discussion and debate. After such discussion, the Mayor will call for the vote.
7.3.2.1 If the public in attendance has had an opportunity to comment on the proposed action, any Council Member
may move to immediately bring the question being
debated to a vote, suspending any further debate. The
motion must be made, seconded, and approved by amajority vote of the Council.
7.3.3 Secondary Motions. Ordinarily, only one motion can be considered at a time and a motion must be disposed of before any other motions or business is considered. There are a few exceptions to this general rule, though, where a secondary motion concerning the main motionmay be made and considered before voting on the main motion.
7.3.3.1 Motion to Amend. A main motion may be amended
before it is voted on, either by the consent of theCouncil Members who moved and seconded, or by a new motion and second.
7.3.3.2 Motion to Table. A main motion may be indefinitely tabled before it is voted on by motion made to table,which is then seconded and approved by a majority vote of the Council.
7.3.3.3 Motion to Postpone. A main motion may be postponed to a certain time by a motion to postpone, which is then seconded and approved by a majority vote of the
Council.
7.3.3.4 Motion to Refer to Committee. A main motion may be referred to a Council committee for further study andrecommendation by a motion to refer to a Council committee, which is then seconded and approved by a
majority vote of the Council.
7.3.3.5 Motion to Close Debate and Vote Immediately. As provided above, any Council Member may move to
close debate and immediately vote on a main motion.
7.3.3.6 Motion to Adjourn. A meeting may be adjourned by motion made, seconded, and approved by a majority
vote of the Council before voting on a main motion.
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7.4 Decorum
7.4.1 In accordance with the Ralph M. Brown Act, the Mayor shall take whatever actions are necessary and appropriate to preserve order and decorum during Council meetings, including public hearings.The Council may eject any person or persons making personal, impertinent or slanderous remarks, refusing to abide by a request from the Mayor, or otherwise disrupting the meefing or hearing.
7.4.2 The Mayor may also declare a short recess during any meeting.
7.4.3 The Mayor shall be addressed as “Mayor (Surname)”. The Mayor Pro Tem and other councilmembers shall be addressed as “MayorPro Tem (Surname)” or “Councilmember (Surname)”.
7.4.4 Speaking over others or interrupting while others have the floor is not permitted.
7.4.5 Cell phones and pagers should be turned off or shall be set to vibrate during meetings.
7.4.6 If Council Members must take an emergency call during a meeting, the call should be taken outside of the meeting room so as to notdistract from the proceedings of the meeting.
7.4.7 Council Members are to provide advance notice to the City Clerk’s office in advance of an impending absence, unless the absence is attributable to a sudden unanticipated event. This information is necessary in order for the staff to determine in advance whether a quorum will be available for a meeting.
7.4.8 Council Members are expected to attend all regularly scheduled Council meetings, work sessions and closed sessions, and to be in their seats by the time that the meeting is scheduled to start.
7.4.9 After the Council has taken an official position on an issue, all official correspondence should reflect this position. Council Members whodisagree with a position taken by the Council are allowed to preparecorrespondence on such issues identifying the information or opinions as solely their own. No staff support, City expense or City letterhead will be used in such instance.
7.4.10 No City Council Member shall be empowered to grant any special consideration, treatment, advantage or favor to any individual, group,company or organization beyond that which is generally available to the public at large.
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7.4.11 Council Members should remember that they are only one individual member, and discretion should be used when speaking on issues, and they should refrain from making individual statements that give the appearance of advocacy whenever issues are brought before Council for which the full array of relevant facts has not yet been accumulated and evaluated.
7.4.12 All remarks from members of the public shall be addressed to the Council as a whole and not to any single member, unless in response to a question from a Council Member.
7.4.13 A person who addresses the Council under public comment for a specific agenda item or under the general public comment period of the agenda may not engage in speech or conduct (i) which is likelyto provoke others to violent or riotous behavior, (ii) which disturbs the peace of the meeting by loud and unreasonable noise, (iii) which isirrelevant or repetitive, or (iv) which disrupts, disturbs, or otherwiseimpedes the orderly conduct of any City Council meeting.
7.4.14 A person, other than members of the Council and the person who has the floor, shall not be permitted to enter into the discussion unless requested by the Mayor to speak.
7.4.15 Members of the Council shall minimize from interrupting any person who has the floor while making his or her public comments to the City Council. The Council shall wait until a person completes his or her public comments before asking questions or commenting so long as their time has not expired. The Mayor may then ask Council Members if they have comments or questions.
7.4.16 No person in the audience at a Council meeting shall engage in disorderly or boisterous conduct, including the utterance of loud,threatening or abusive language, whistling, stamping of feet or other acts which disturb, disrupt or otherwise impede the orderly conductof any Council meeting.
7.4.17 The Mayor shall request that a person speaking at the podium during a public comment period or a member of the audience who isviolating the rules of decorum, comply immediately with these rules of decorum.
7.4.18 If, after receiving a warning from the Mayor and/or the City Attorney, a person persists in violating the rules of decorum during the meeting, the Mayor may order him or her to leave the meeting aspermitted under the Brown Act. Any person so ordered removed shallbe excluded from further attendance at the meeting from which he or she has been removed, unless permission to attend is granted upon Council Policies Manual Section 7.0 Page 4 of 5
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motion adopted by a majority vote of the Council. If that person does not remove himself or herself, the Mayor may ask law enforcement to escort that person from the Council Chamber.
7.4.19 Council Members should remember that members of the public have a right to be present at meetings and express their opinions on matters before the Council. The public is encouraged to attend andparticipate in such meetings as active public participation assists the Council in the decision-making process. Council Members should be respectful of staff and members of the public in attendance, especially those with whom Council Members disagree. Council Members should focus their comments on matters raised by the public to the merits or substance of the comments themselves and not make personal attacks upon those providing the comments.
7.5 Amendment of Rules of Order
7.5.1 By motion made, seconded and approved by a majority vote, the Council may, at its discretion, at any meeting, and in accordance with California law:
a) Temporarily suspend these rules in whole or in part; b) Amend these rules in whole or in part; or,c) Both.
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Section
8.0 CITY OF AVALON Revision Date
COUNCIL POLICIES MANUAL 91312024
TRAINING, EDUCATION AND CONFERENCES
8.1 General
8.1.1 Members of the City Council are encouraged to attend educational conferences and professional meetings when the purposes of suchactivities are to improve City operation. Therefore, there is no limit to the number of Council members attending a particular conference or seminar when it is apparent that their attendance is beneficial to the City. Council members should be aware that requirements of theRalph M. Brown Act may apply depending on the circumstances of any such meeting.
8.1.2 “Junkets” (a tour or journey for pleasure at public expense), will not be permitted.
8.2 Policy
8.2.1 It is the policy of the City to encourage Council member development and excellence of performance by reimbursing expenses incurred for tuition, travel, lodging and meals. Council members will be reimbursed for their expenses as a result of training, educational courses, participation with professional organizations, and attendance at local, state and national conferences associated with the interests of the City.
8.2.2 The City Manager or his or her designee is responsible for making arrangements for Council members for conference and registration expenses. When appropriate, the City shall also reimburse a Council member for meal expenses, lodging, and travel. All expenses for which reimbursement is requested by Council members, or which are billed to the City by Council members, shall be submitted to the City Manager or his or her designee, together with validated receipts.
8.3 Approval
8.3.1 Attendance by Council members of seminars, workshops, courses, professional organization meetings, and conferences shall be Council Policies Manual Section 8.0
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approved by the City Council, in accordance with City policy, prior to incurring any reimbursable costs.
8.4 Reimbursement
8.4.1 Expenses to the City for Council member’ training, education and conferences should be kept to a minimum by utilizing
recommendations for transportation and housing accommodations put forth by the City Manager and by:
8.4.1.1 Utilizing hotel(s) recommended by the event sponsor in order to obtain discounted rates.
8.4.1.2 Council members traveling together whenever feasible and economically beneficial.
8.4.1.3 Requesting reservations sufficiently in advance, when possible, to obtain discounted airfares and hotel rates.
8.4.2 A Council member shall not attend a conference or training event for which there is an expense to the City if it occurs after they have announced their pending resignation, or if it occurs after an election in which it has been determined that they will not retain their seat on the Council. A Council member shall not attend a conference ortraining event when it is apparent that there is no significant benefitto the City.
8.5 Reporting
8.5.1 Upon returning from seminars, workshops, conferences, etc., where expenses are reimbursed by the City, Council members shall present a written report and make a verbal report during the next regular meeting of the Council. Said report should detail what was learned at the session(s) that will be of benefit to the City. Copies of materials from the session(s) shall be delivered to City Hall to be included inthe Council action record for the future use of other Council members and staff.
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CITY OF AVALON CITY COUNCIL
MEETING DATE: September 3, 2024 AGENDA ITEM: ________ ORIGINATING DEP: Planning and Building CITY MANAGER: _______ PREPARED BY: Kelly Ribuffo, Consultant Planner Bennett Givens, Associate, Best Best & Krieger
SUBJECT: Adopt an Ordinance Amending Chapter 9-7, Article 10 “Antennas and Wireless Facilities” of the Avalon Municipal Code and Adoptionof Exemption Findings Under the California Environmental Quality Act
RECOMMENDED ACTION(S): Adopt an ordinance of the City of Avalon amending Chapter 9- 7, Article 10 “Antennas and Wireless Facilities” of the Avalon Municipal Code and adoption of exemption findings under the California Environmental Quality Act.
REPORT SUMMARY: This ordinance was introduced, and all further readings were waived at the August 20, 2024 regular City Council Meeting.The City’s regulations for antennas and wireless facilities located outside the right-of-way on public and private property (AMC Chapter 9-7, Article 10) have not been updated since 1997. The proposed ordinance seeks to update and streamline the City wireless regulations for facilities outside the public right-of-way in light of numerous federal and state laws and regulations that have since taken effect, which (among other things) significantly restrictedlocal control over the permitting and placement of wireless facilities. The proposed ordinance:
A. Clarifies and sets forth types of wireless facilities that are exempt from the provisions of Article 10 such as over-the-air-reception-devices, amateur radio antennas, governmental public safety facilities and certain temporary emergency facilities; B. Sets forth three permitting processes:
a. Administrative Wireless Permit: Creates a new Administrative Wireless Permit type that is reviewed by the Planner Director or designee. No public hearing is required, and an applicant may appeal a decision to the Planning Commission who will hear the appeal de novo. Administrative Wireless Permits are required for: a) an eligiblefacilities request, (b) a proposed “collocation facility” as defined in Government Code section 65850.6(d)(1); and (c) a new small wireless facility to be placed uponan existing structure. b. Site Plan Review: Site Plan Review Approval by the Planning Commission is required for (a) a new small wireless facility that involves placement of a new orreplacement structure and (b) a new personal wireless service facility that involvesplacement upon an existing structure which (1) does not meet the definition of a small wireless facility or which will not meet the definition of a small wireless facility if and when the proposed new personal wireless service equipment is installedupon the existing facility and/or structure and (2) either (i) the structure is not an existing tower or base station (as defined for eligible facilities request purposes) or (ii) the structure is an existing tower or base station (as defined for eligible facilities request purposes) but the proposed facility does not qualify as an eligible facilities request;
c. Conditional Use Permit and Site Plan Review: Conditional Use Permit and Site Plan Review approval is required for any other type of wireless facility that does not qualify for either site plan review or an administrative wireless permit described above.
C. Updates application submittal requirements and findings of approval;D. Establishes location, design, and development standards for wireless facilities, such as aesthetics, landscaping, setbacks and lighting among other topics; a. Generally, all wireless facilities must be designed to incorporate concealment elements and screening to be a stealth facility, and must be designed in the leastvisible means possible and be aesthetically compatible with the surrounding area and structures (e.g., color, materials, size, and scale); b. Wireless facilities are preferred in the following zones/locations: Commercial (C); Special Commercial (SC); Resort Recreation (R-R); and Public (P), and prohibitedin flood plains, sensitive species areas, and on any parcel within a residential zone.
The City’s Zoning Map is attached hereto as part of Attachment 2. c. Wireless facilities are subject to the height restrictions of the underlying zone. If there are no applicable height restrictions in an underlying zone, the wirelessfacility shall not exceed fifty (50) feet. A wireless facility and any related groundmounted equipment shall comply with all setback requirements of the underlyingzone.
E. Sets forth standard conditions of approval that apply to all permits issued in accordance with Article 10, even in the event an application is deemed approved by operation of law; and
F. Creates a process for requesting and granting limited exceptions to the design, development and location standards for wireless facilities subject to Article 10.
On July 17, 2024, the Planning Commission held a duly noticed public hearing at which time written and oral evidence was considered regarding the proposed amendments. The Planning Commission adopted Planning Commission Resolution No. 24-07, which recommends adoption of the proposed ordinance by the City Council. The staff report including additional analysis of the proposed amendments and a description of the City’s authority to regulate wireless facilities under state and federal law, are included as Attachment 2 of this report.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The Avalon Municipal Code will not be amended, and wireless facilities regulations will be inconsistent with the numerous changes to applicable state and federal law since 1997.
ADVERTISING, NOTICE AND PUBLIC CONTACT: This item was properly listed on the posted agenda pursuant to the Brown Act.
ATTACHMENTS:
1. Ordinance
2. Planning Commission Staff Report (PC#2867)
ORDINANCE NO. _____ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AVALON, CALIFORNIA AMENDING CHAPTER 9-7
GENERAL STANDARDS OF DEVELOPMENTIARTICLE 10
“ANTENNAS AND WIRELESS FACILITIES” OF THE
AVALON MUNICIPAL CODE AND ADOPTION OF
EXEMPTION FINDINGS UNDER THE CALIFORNIAENVIRONMENTAL QUALITY ACT.
WHEREAS, pursuant to the authority granted to the City of Avalon (“City”) by Article XI, Section 7 of the California Constitution, the City has the police power to regulate the use of land and property within the City in a manner designated to promote public convenience and general prosperity, as well as public health, welfare, and safety; and WHEREAS, wireless communications services are essential to the public health and safety infrastructure within the City; and
WHEREAS, the City’s regulations for antennas and wireless facilities located outside the right-of-way on public and private property (AMC Chapter 9-7, Article 10) have not been updated since 1997; and
WHEREAS, the proposed ordinance will update and streamline the City’s wireless regulations for facilities outside the public right-of-way in light of numerous federal and state laws and regulations currently in effect; and
WHEREAS, establishing location, design, and development standards for wireless facilities within City will preserve, promote, and protect the welfare of its citizens by preserving the unique charm of Avalon, characterized by viewsheds, coastline access, open space and recreation opportunities, in compliance with the Avalon General Plan/Local Coastal Plan; and
WHEREAS, on July 17, 2024, the Planning Commission held a duly-noticed public hearing, at which time written and oral evidence was considered regarding the amendments to Chapter 9-7 General Standards of Development, Article 10 “Antennas and Wireless Facilities” (PC#2867); and
WHEREAS, the Planning Commission adopted Planning Commission Resolution No. 24-07 with recommendations to the City Council regarding adoption of the aforementioned amendments; and
WHEREAS, on August 20, 2024, the City Council held a duly-noticed public meeting and considered the recommendations of the Planning Commission, staff report, other supporting documents, and any public testimony concerning this ordinance; and WHEREAS, all legal prerequisites to the adoption of this ordinance have occurred.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AVALON DOES ORDAIN AS FOLLOWS:
Section 1. Incorporation of Recitals. The recitals set forth above true, correct, incorporated herein, and are adopted as the findings of the City Council in connection with the adoption of this Ordinance.
Section 2. Code Amendment. Chapter 9-7, Article 10 of the Avalon Municipal Code shall be amended to read as proposed in Exhibit A, Title 9: Planning and Zoning/Chapter9-7 General Standards of Development/Article 10 “Antennas and Wireless Facilities”.Section 3. Severability. If any section, subsection, subdivision, sentence, clause, or phrase of this Ordinance, or any part thereof is for any reason held to be unconstitutional, void, or invalid, such decisions shall not affect the validity of the remaining portion of this Resolution or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof, irrespective of the fact that any one or more section, subsection, subdivision, paragraph, sentence, clause, or phrase be declared unconstitutional, void, or invalid.
Section 4. CEQA Exemptions. The City Council finds that this proposed Ordinance is not
a “project” subject to the California Environmental Quality Act (“CEQA”), because it has no potential to result in
a direct or indirect physical change in the environment. The Ordinance does not authorize any specific development or installation on any specific piece of property within the City’s boundaries. Moreover, when and if an application for installation is submitted, the City will at that time conduct preliminary review of the application in accordance with CEQA. Alternatively, even if the Ordinance is a “project”
within the meaning of State CEQA Guidelines Section 15378, the Ordinance is exempt from CEQA on multiple grounds. First, the Ordinance is exempt from CEQA because it can be seen with certainty that there is no possibility that the Ordinance may have a significant effect on the environment. (State CEQA Guidelines, § 15061(b)(3)). This is because approval of the Ordinance will not result in the actual installation of any facilities in the City. In order to install
a facility in accordance with this Ordinance, the wireless provider would have to submit an application for installation of the wireless facility, and the City would conduct preliminary review under CEQA at that time. Moreover, in theevent that the Ordinance is interpreted so as to permit installation of wireless facilities on a particular site, the installation would be exempt from CEQA under State CEQA Guidelines sections 15302 (replacement or reconstruction), 15303 (new construction or conversion of small structures), and/or 15304 (minor alterations to land). For example, the Ordinance provides for an administrative wireless permit only for eligible facilities requests (which the City does not have discretion to deny under federal law, and which therefore are not subject to CEQA), collocation facilities, as defined in Government Code section 65850.6(d)(1) (which the City does not have discretion to deny under state law,and which therefore are not subject to CEQA), and new small wireless facilities to be placed upon an existing structure, which fall squarely within the exemption set forth inState CEQA Guidelines section 15302. For all of the foregoing reasons, the Ordinance is not subject to CEQA.
Section 5. Certification. The City Clerk of the City of Avalon shall certify the passage and adoption of this Ordinance and shall cause the same, or a summary thereof, to be
published and/or posted in the manner required by law.
Section 6. Effective Date. This Ordinance shall become effective thirty days from its adoption.
INTRODUCED at a regular meeting of the City Council of the City of Avalon on the 20th day of August, 2024, by the following vote:
AYES:
NAYS:
ABSENT:ABSTAIN:
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Avalon on this 20st day of August, 2024, by the following vote:
AYES:
NAYS:
ABSENT:ABSTAIN:
Ann H. Marshall, Mayor
ATTEST:
Gabrielle Morones, Deputy City Clerk
APPROVED AS TO FORM:
Scott Campbell
Best Best & Krieger, LLP
EXHIBIT A
TITLE 9: PLANNING AND ZONINGICHAPTER 9-7 GENERAL STANDARDS OF DEVELOPMENT/ARTICLE 10 “ANTENNAS AND WIRELESS FACILITIES” § 9-7.1001 — Purpose.
The purpose of this article is to establish a comprehensive set of zoning requirements for antennas and wireless telecommunications facilities on public and private properties.
These regulations are intended to provide for the managed development of antennas and wireless telecommunications facilities in a manner that recognizes and enhances the community benefits of wireless telecommunications technology and reasonablyaccommodates the needs of citizens and wireless telecommunications service providers in accordance with federal and state rules and regulations. At the same time, these regulations are intended to protect neighbors from potential adverse impacts of such facilities, including but not limited to noise, traffic, aesthetic and other impacts over whichthe City has purview, and to preserve the visual character of the established communitythrough appropriate design, siting, screening, maintenance, and location standards. § 9-7.1002 - Definitions.
The following words and phrases, as used in this article, are defined as follows:
(a) ADMINISTRATIVE WIRELESS PERMIT — Shall mean a permit issued and reviewed administratively by the Planning Director, or designee, pursuant to the process described in this article authorizing the placement or modification of a wireless facility of a design specified in the permit at a particular location; and the modification of any existing supportstructure to which the wireless facility is proposed to be attached. (b) ANTENNA— Shall mean any system of wires, poles, rods, reflecting discs, or similar devices used in wireless communications for the transmission or reception ofelectromagnetic waves when such system is operated or operating from a fixed location. (c) APPLICANT — Shall mean a person filing an application for placement or modificationof a wireless facility under this Article 10. (d) BASE STATION — Shall have the same meaning as provided in 47 C.F.R. § 1 .61 00(b)(1), as may be amended, which defines that term as follows:
(1) A structure or equipment at a fixed location that enables Commission-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a Tower or any equipment associated with a tower.
(i) The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
(ii) The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparableequipment, regardless of technological configuration (including Distributed Antenna Systems and small-cell networks).
(iii) The term includes any structure other than a tower that, at the time the relevant application is filed with the State or local government under this section, supports or houses equipment described in subsections I and 2 of this definition that has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support. (iv) The term does not include any structure that, at the time the relevant application is filed with the State or local government under this section, does notsupport or house equipment described in subsections I and 2 of this definition. (e) COLLOCATION — Shall for eligible facilities requests only, have the same meaning as provided in 47 C.F.R. § 1 .6100(b)(2), as may be amended, which defines that term as “[t]he mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.”
(f) DISTRIBUTED ANTENNA SYSTEM or DAS — Shall mean a network of one or more antennas and related fiber optic nodes typically mounted to or located at streetlight poles, utility poles, sporting venues, arenas, multifamily housing or convention centers which provide access and signal transfer for personal wireless service providers. A distributed antenna system also includes the equipment location, sometimes called a “hub” or “hotel” where the DAS network is interconnected with one or more wireless service provider’s facilities to provide the signal transfer services.
(g) ELIGIBLE FACILITIES REQUEST — Shall mean the same as provided in 47 C.F.R. § 1.6100(b)(3), as may be amended, which defines that term as “[a]ny request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving: (i) [c]ollocation of new transmission equipment; (ii) [r]emoval of transmission equipment; or (iii) [r]eplacement oftransmission equipment.” (h) ELIGIBLE SUPPORT STRUCTURE — Shall mean the same as provided in 47 C.F.R. § 1.6100(b)(4), as may be amended, which defines that term as “[a]ny tower or base station as defined in this section, provided that it is existing at the time the relevant application is filed with the state or local government under this section.” (i) EQUIPMENT CABINET — Shall mean a small enclosure used to house multiple items of equipment associated with a wireless facility.
(j) EXISTING — Shall mean, for purposes of an Eligible Facilities Request, the same asprovided in 47 C.F.R. § 1.6100(b)(5), as may be amended, which provides that “[a]constructed tower or base station is existing for purposes of [the FCC’s Eligible Facilities Request regulations] if it has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, provided thata tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.” (k) FEDERAL COMMUNICATIONS COMMISSION (“FCC”) — Shall mean the Federal Communications Commission or its lawful successor.
(I) MONOPOLE — Shall mean a single freestanding pole, post, or similar nonlattice structure used to support antennas and equipment associated with a wireless facility. (m) PERSONAL WIRELESS SERVICES — Shall mean the same as provided in 47 U.S.C. § 332(c)(7)(C)(i), as may be amended, which defines that term as “commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.”
(n) PLANNING DIRECTOR — Shall mean the City of Avalon’s Director of Planning and Building Department, or designee.
(o) RADIO FREQUENCY (“RF”) — Shall mean a rate of oscillation, which corresponds to the frequency of radio waves, and the alternating currents which carry radio frequency,electromagnetic, or other wireless signals. (p) ROOF-MOUNTED or BUILDING-MOUNTED ANTENNA — Shall mean an antenna directly attached or affixed to the roof of, on the wall, or elsewhere on a preexisting building, tank or similar structure other than a Tower.(q) SITE — Shall mean the same as provided in 47 C.F.R. § 1.6100(b)(6), as may be amended, which provides that “[f]or towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible supportstructures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground. The current boundaries of a site are the boundaries that existed as of the date that the original support structure or a modification to that structure was last reviewed and approved by a state or local government, if the approval of the modification occurred prior to the Spectrum Act orotherwise outside of the [eligible facilities request] process.” (r) SMALL WIRELESS FACILITY — Shall have the same meaning as “small wireless facilities” in 47 CFR 1 .6002(I), or any successor provision (which is a personal wirelessservices facility that meets the following conditions that, solely for convenience, have been set forth below):
(1) The facility:
(i) Is mounted on structures 50 feet or less in height including their antennas as defined in
. § 1.1320(d); or
(ii) Is mounted on structures no more than 10 percent taller than other adjacent structures; or
(iii) Does not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;(2) Each antenna associated with the deployment, excluding associated antenna equipment [as defined in the definition of”antenna” in 47 CFR Section 1.1320(d)], is no more than three cubic feet in volume;
(3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, is no more than 28 cubic feet in volume; (4) The facility does not require antenna structure registration under part 17 of Chapter 1 of Title 47 of the Code of Federal Regulations; (5) The facility is not located on Tribal lands, as defined under 36 C.F.R. § 800.16(x); and
(6) The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 CFR § 1.1307(b). (s) STEALTH FACILITY — Shall mean any wireless facility which is designed to blend into the surrounding environment by means of screening, concealment, or camouflageintended to make the facility look like something other than a wireless tower or base station. The antenna and related equipment are either not readily visible beyond the property on which they are located, or, if visible, appear to be part of the existing natural or built environment rather than as a wireless facility. (t) SUBSTANTIAL CHANGE — Shall mean the same as provided in 47 C.F.R. § 1 .461 00(b)(7), as may be amended, which defines that term as a substantial modification changing the physical dimensions of an eligible support structure that meets any of the following criteria:
(1) For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array withseparation from the nearest existing antenna not to exceed twenty feet, whichever isgreater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater; (i) Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings’rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenancesand any modifications that were approved prior to the passage of the Spectrum Act. (2) For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater: for other eligible support structures, it involvesadding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet:
(3) For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not toexceed four cabinets: or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre existing ground cabinets associated with the structure, or else involves installation ofground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure:
(4) It entails any excavation or deployment outside of the current site, except that, for towers other than towers in the public rights-of-way, it entails any excavation or deployment of transmission equipment outside of the current site by more than 30 feet in any direction. The site boundary from which the 30 feet is measured excludes any access or utility easements currently related to the site:
(5) It would defeat the concealment elements of the eligible support structure: or(6) It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified in (1) through(4) [which correspond to 47 CFR § 1.6100(b)(7)(i) through (iv)]. (u) TOWER — Shall mean any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, includingstructures that are constructed for personal wireless services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. Thisdefinition does not include utility poles. (v) TRANSMISSION EQUIPMENT — Shall mean the same as provided in 47 C.F.R. § 1 .6100(b)(8), as may be amended, which defines that term as “[e}quipment that facilitates transmission for any [FCC]-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, andregular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and publicsafety services, as well as fixed wireless services such as microwave backhaul.”(w) WHIP ANTENNA — Shall mean a single shaft antenna, including all mounting equipment.
(x) WIRELESS FACILITY or FACILITY — Shall mean the antennas, antenna structures, equipment, equipment cabinets, cables, and other types of installations and related appurtenances used for the provision of wireless services at a fixed location, including, without limitation, any associated tower(s), support structure(s), and base station(s). § 9-7.1003 — Exemptions.
(a) The requirements of this article do not apply to antennas or antenna structures set forth in this section, unless noted otherwise below. Each exempt facility shall fully comply with other applicable requirements of the Avalon Municipal Code and all other applicable state and federal law.
(1) Over-the-air-reception-devices (OTARD) antennas.
(i) Satellite dishes 39.37 inches (one meter) or less. Direct broadcast satellite (DBS) antennas and multipoint distribution services (MDS) antennas measuring one meter or less in diameter (or diagonal measurement) and either:(a) intended for the sole use of a person occupying the same parcel to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed wireless signals via satellite or (b) a hub or relay antennaused to receive or transmit fixed wireless services that are not classified as telecommunications services; and
(ii) Non-satellite dishes 39.37 inches (one meter) or less. A dish antenna
39.37 inches or less in diameter or diagonal measurement and (a) intended for the sole use of a person occupying the same parcel to receive video programmingservices via multipoint distribution services, including multichannel multipointdistribution services, instructional television fixed services, and local multipointdistribution services, or to receive or transmit fixed wireless signals other than viasatellite or (b) a hub or relay antenna used to receive or transmit fixed wireless services that are not classified as telecommunications services. (2) Television broadcast system (TVBS) antennas, provided: (a) the antenna is located entirely on and/or above the subject property, and (b) no portion of any groundmounted antenna is within a required front yard setback for the main building, in front of the main building, within a required side yard setback of a corner lot or adjacent to a street.
(3) Amateur radio antennas. Antennas and antenna structures constructed by or for amateur radio operators that met the following requirements:
(i) That are completely enclosed within a permitted building; or(ii) That consist of a single wire not exceeding one-fourth of an inch in diameter, and such wire antennas may be located in setback areas, provided theantenna does not extend above the maximum building height in the district; or (iii) That consist of a single ground-mounted vertical pole or whip antenna not exceeding fifty feet in height, measured from finish grade at the base of the antenna, and not located in any required setback area. Support structures or masts for pole or whip antennas shall conform to standards set out in the California Building Standards Code. A building permit may be required for the support structure or mast.
(4) Public safety facilities. Telecommunications facilities used only for public safety or other noncommercial governmental functions, including personal wireless services, used, operated, and maintained by the City, or any fire district, school district, hospital, ambulance service, governmental agency.
(5) Temporary mobile facilities. Mobile facilities placed on a site for less than seven consecutive days, provided any other necessary permits are obtained. (6) Temporary Emergency facilities. Wireless telecommunications facilities erected and operated for emergency situations, as designated by the Avalon Sheriff or City Manager, so long as the facility is removed at the conclusion of the emergency. (7) DAS. Distributed Antenna Systems or DAS installed and operated wholly within an existing structure or building.
(8) Antennas and wireless facilities within public rights-of-way. Antennas and wireless facilities placed wholly within public rights-of-way are governed by Avalon Municipal Code, Title 4, Chapter 4-9, Article 3 (Wireless Facilities in Public Rights-ofWay) and not this Article. § 9-7.1004. Permits Required; Application Requirements
(a) No wireless facility shall be constructed, erected, placed, or modified anywhere within the City without first obtaining a permit pursuant to the requirements of this article and without obtaining all permits required under any other applicable state, federal, or local laws or regulations.
(1) Administrative Wireless Permit Required. An administrative wireless permit is required for (a) an eligible facilities request, (b) a proposed “collocation facility” as definedin Government Code section 65850.6(d)(1); and (c) a new small wireless facility to be placed upon an existing structure.
(i) The Planning Director or designee shall review, process, approve, conditionally approve or deny an application for administrative wireless permit in accordance with the procedures of this section. No public hearing shall be required for an administrative wireless permit required by this article. An applicant may appeal the decision of the Planning Director to the Planning Commission providedsuch appeal is filed with the City Clerk within 15 days following the issuance of the Planning Director’s decision notification. If timely appealed, the Planning Commission shall review the application de novo.. The decision of the Planning Director, upon the expiration of such 15 days if no appeal is filed, or of the Planning Commission on appeal shall be final.
(2) Site Plan Review Approval Required. Site plan review approval is required for (a) a new small wireless facility that involves placement of a new or replacement structure and (b) a new personal wireless service facility that involves placement upon an existing structure which (1) does not meet the definition of a small wireless facility or which will not meet the definition of a small wireless facility if and when the proposed new personal wireless service equipment is installed upon the existing facility and/or structure and (2) either (i) the structure is not an existing tower or base station (as defined for eligiblefacilities request purposes) or (ii) the structure is an existing tower or base station (asdefined for eligible facilities request purposes) but the proposed facility does not qualify as an eligible facilities request. The Planning Commission shall review, process, approve,conditionally approve or deny an application for site plan review approval in accordance with the procedure in Chapter 9-8, Article 2 except to the extent modified by this Article. (3) Site Plan Review and Conditional Use Permit Required. Both a Site Plan Review and a Conditional Use Permit shall be required where the applicant is seeking to construct, place or modify a wireless facility that does not qualify under subsections (1)and (2) above. The Planning Commission shall review, process, approve, conditionally approve or deny an application for site plan review approval and conditional use permit in accordance with the procedure in Chapter 9-8, Article 4 except to the extent modified by this Article.
(b) Application Requirements. An applicant seeking to install, construct, modify, replace, or place a wireless facility shall complete and submit an application to the Planning and Building Department for review and processing, upon the form published by the Planning and Building Department, which may be updated from time to time. In addition to any requirements specified by the application form, all applications shall, at minimum, require submission of the following:
(1) Name of applicant, contact information, location of proposed site, description of the application type sought, and the name and contact information of the user! provider that will use the facility.
(2) A brief narrative accompanied by written documentation and a site plan or map together with photo simulations that explain the project. (3) A narrative and scaled map(s) that precisely disclose the geographic area(s) within the City proposed to be serviced by the proposed facility. (4) A radiofrequency (RE) environmental evaluation report certifying that the proposed wireless facility meets FCC regulations and standards for construction,maintenance and operations. (5) Payment of application fees.
(c) Consultants. The Planning Director, Planning Commission, or City Council considering the relevant permit issued pursuant to this article may require the application materials, proposed findings, and conditions to be reviewed by an independent third-partypeer review consultant. The cost of the third-party peer review shall be the responsibility of the applicant.
(d) Denials without prejudice. The denial of a permit application for an eligible facilities request shall be without prejudice. To promote efficient review and timely decisions, any application governed under this article regardless of type may be denied without prejudice by the Planning Director, Planning Commission, or City Council when the applicant fails to tender a substantive response to the City within 120 calendar days after the City hasdeemed the application incomplete in a written notice to the applicant. The Planning Director, or designee, in his or her discretion, may grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the one hundred twentieth day that shows good cause to grant the extension. Good cause for an extension shall include, without limitation, delays due to circumstances outside the applicant’s reasonable control.
§ 9-7.1005 Findings of Approval
(a) Administrative Wireless Permit:
(1) Findings for Approval for Small Wireless Facilities Subject to an Administrative Wireless Permit. No administrative wireless permit shall be approved for applicationswherein an applicant seeks to place a new small wireless facility upon an existing structure unless, on the basis of the application and other materials or evidence provided in review thereof, the following findings are made:
(i) The facility shall conform with and carry out the General Plan and any certified Local Coastal Plan for the area; and
(ii) The facility complies with all applicable requirements of this article,including all requirements for the requested permit; all application requirements; and all applicable design, location, and development standards, or has a waiver exception thereof; and
(iii) The facility meets applicable requirements and standards of federal and state law, including all applicable general orders of the California Public Utilities Commission; and
(iv) The facility is not detrimental to the public health, safety, and welfare. (2) Findings for Approval of Eligible Facilities Requests: No administrative wireless permit shall be approved for an eligible facilities request unless, on the basis of the application and other materials or evidence provided in review thereof, the following findings are made:
(i) The proposed collocation or modification meets each and every one of the applicable criteria for an eligible facilities request stated in 47 C.F.R. sections I .6100(b)(3)—(9), or any successor provisions, after application of the definitions in 47 C.F.R. section 1.6100(b). The reviewing City authority shall make an express finding for each criterion; and
(ii) The proposed facility complies with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, except to the extent preempted by 47 C.F.R. sections 1 .61 00(b)(7)(i)—(iv), or any successor provisions; and (iii) The proposed facility will comply with all generally applicable laws. (3) Findings for Approval of a proposed “collocation facility” as defined in Government Code section 65850.6(d)(1): No administrative wireless permit shall beapproved for a “collocation facility” unless, on the basis of the application and other materials or evidence provided in review thereof the application complies with therequirements for the grant of a ministerial permit under Government Code section 65850.6.
(b) Site Plan Review Under This Article. No site plan review approval shall be approved or conditionally approved pursuant to this article unless, on the basis of the applicationand other materials or evidence provided in review thereof, the following findings are made:
(1) All findings for approval required for site plan as specified in Section 9-8.203; and
(2) The facility complies with all applicable requirements of article, including all requirements for the requested permit; all application requirements; and all applicable design, location, and development standards, or has a waiver exception thereof; and (3) The proposed facility will comply with all generally applicable laws. (c) Conditional Use Permit Review Under This Article. No conditional use permit shall be approved or conditionally approved pursuant to this article unless, on the basis of theapplication and other materials or evidence provided in review thereof, the following findings are made:
(1) All findings for approval required for conditional use permit as specified in Section 9-8.404; and
(2)The facility complies with all applicable requirements of article, including all requirements for the requested permit; all application requirements; and all applicable design, location, and development standards, or has a waiver exception thereof; and (3) The proposed facility will comply with all generally applicable laws. § 9-7.1006 Location, Design and Development Standards for Wireless Facilities.
Each wireless facility subject to this article shall be designed, installed and operated in compliance with these location, design and development standards, unless specificallystated otherwise in this section. A qualifying eligible facilities request and a proposed“collocation facility” as defined in Government Code section 65850.6(d)(1) shall only be required to comply with the location, design, and development standards in subsections j, I, m, o, r, s, u, and v of this section.
(a) Visual Criteria.
(1) Generally. Wireless facilities shall be designed in the least visible means possible and be aesthetically compatible with the surrounding area and structures (e.g., color, materials, size, and scale).
(2) Materials. The materials used shall be non-reflective and non-flammable. (3) Stealth Design. All wireless facilities shall be designed to incorporate concealment elements and screening to be a stealth facility. (4) Concealment. The wireless facility and transmission equipment should be camouflaged or concealed to blend the facility with surrounding materials and colors of the support structure on which the facility is installed. Concealment elements include, but are not limited to, the following:
(i) Radio frequency (RF) transparent screening or shrouds; (ii) Matching the color of the existing support structure by painting, coating, or otherwise coloring the wireless facility, equipment, mounting brackets, andcabling; (iii) Placing cables and wires inside the pole or beneath conduit of the smallest size possible;
(iv) Minimizing the size of the site;
(v) Installing new infrastructure that matches existing infrastructure in the area surrounding the proposed site; and
(vi) Using paint of durable quality.
(5) Collocation or placement on existing structures shall be utilized to the extent technically feasible.
(b) Specific plan areas. Within any specific plan area, all wireless facilities shall be completely screened from the view of surrounding properties. Appropriate locations may include inside of attic spaces, steeples, cupolas, towers, below parapets or concealed in architectural features.
(c) Location.
(1) Preferred Locations/Zones. The City prefers installations in the following zones/locations: Commercial (C); Special Commercial (SC); Resort Recreation (R-R); and Public (P).
(2) Existing Infrastructure Preference. The City has a preference for the use of existing infrastructure.
(3) Prohibited Zones. Installations are prohibited in flood plains, sensitive species areas, and on any parcel within a residential zone.
(d) Visibility from public places. A wireless facility installed in a location readily visible from a public trail, public park, or other publicly owned outdoor recreation area shall be sitedand designed to blend in with the existing natural and/or manmade environment in sucha manner as to be effectively unnoticeable. The smallest and least visible antennas as possible should be installed which will reasonably accommodate the operator’scommunication needs. (e) Height and Setbacks. All wireless facilities (including any ground mounted communication equipment, antennas, poles, or towers) shall comply with all height restrictions of the underlying zone. If there are no applicable height restrictions in anunderlying zone, the wireless facility shall not exceed fifty (50) feet. A wireless facility and any related ground-mounted equipment shall comply with all setback requirements of the underlying zone.
(f) Accessory Equipment. Undergrounding equipment, including remote radio units that cannot be placed with the antenna in the shroud, is preferred. Vaults and pull boxes shallbe installed flush to grade. Ground-mounted equipment shall incorporate camouflaging and shrouding to match the colors, appearance, and materials of existing facilities andscreen facilities from public view as much as is technically feasible. (g) Cables and Wiring. All cables and wiring must be within the structure, or if not feasible, within conduit on the exterior of the structure. The conduit must be a color that matches facility and of the smallest size technically feasible. (h) Antennas. Antennas, antenna structures and related equipment shall incorporate architectural, landscape, color and/or other treatments to minimize potential visual impacts.(i) Natural appearance. Ground-mounted facilities shall be enclosed in cabinets, sized only for the needed equipment and screened with natural vegetation or designed as astealth facility. Examples include a water tank, artificial tree, and rocks. Existing and new landscaping materials, especially trees, shall be used where possible to screen antenna and antenna towers from off-site views.
(j) Lighting. No facility shall be illuminated unless specially required by the Federal Aviation Administration (FAA) or other government agency. Any required lighting shall be shielded to eliminate, to the maximum extent possible, impacts on the surrounding area property.(k) Standards for wall- and building-mounted facilities. (1) Roof-mounted antennas. Roof-mounted antennas shall be set back from the edge of the roof a distance at least as great as the height of the antenna or shall be completely screened so as not to be visible to the general public from ground level. (2) Wall-mounted antennas. Wall-mounted antennas shall be architecturally integrated into the building design. Wall-mounted antennas shall not exceed a total of 50 square feet per building face.
(I) Unauthorized access. All facilities shall be designed so as to be resistant to and minimize opportunities for unauthorized access, climbing, vandalism, graffiti, and other conditions which would result in hazardous conditions, visual blight, or attractive nuisances.(m) Noise standards. Wireless facilities and all accessory equipment and transmission equipment must comply with all noise regulations and shall not exceed, either individuallyor cumulatively, the applicable noise level standards in Avalon Municipal Code Chapter5-13. (n) Undergrounding. Extensions of electrical and telecommunications land lines to serve wireless telecommunications facilities shall be undergrounded. (o) Signs. No logos, decals, or advertising of any type may be affixed to any element of the wireless facility, equipment, or pole, except as required by federal or state law.
Further, the City requires that a placard or decal listing the facility owner’s name and emergency contact phone number be places in an inconspicuous area on an element of the equipment or on the pole directly below the antenna. (p) Service roads. Existing roads and easements shall be used to the extent feasible.New service roads shall be limited to a width of 10 feet, unless a wider road is deemed necessary by the City.(q) Landscaping. In addition to any landscaping used for concealment or screeningpurposes, the applicant shall propose and install additional landscaping to replace any existing landscaping displaced during construction or installation of the applicant’s facility.
Applicant must use native landscaping unless otherwise specified by the City. The applicant’s landscaping plan shall be subject to the City’s review and approval but shall, at a minimum, match the existing landscaping and foliage surrounding the installation site. (r) Compliance with laws. All wireless telecommunications facilities shall comply with the applicable provisions of this section and this article as well as the Building Code, Electrical Code, Plumbing Code, Mechanical Code, Fire Code and rules and regulations imposed by state and federal agencies. All wireless telecommunications facilities shall meet current standards and regulations of the Federal Communications Commission, California Public Utilities Commission, and any other agencies with authority to regulate wireless telecommunications service providers. If existing standards or regulations are changed, the applicant shall bring its facility into compliance with the new standards within90 days of the effective date of such standards, unless the federal or state agency mandates a different compliance schedule. Changes to approved projects are subject to review and approval by the Planning Director or other applicable City decision-making body. Failure to comply with adopted new state or federal requirements shall be grounds for permit revocation.
(s) Public health. No wireless facility shall be sited or operated in such a manner that itposes, either by itself or in combination with other such facilities, a potential threat to thepublic health. To that end, no facility or combination of facilities shall produce at any timepower densities in any inhabited area that exceed the FCC’s maximum permissible exposure (MPE) limits for electric and magnetic field strength and power density for transmitters or any more restrictive standard subsequently adopted or promulgated bythe City, county, state or federal government. Absolute compliance with FCC Office of Engineering Technology (OET) Bulletin 65, as amended, is mandatory, and any violation of this section shall be grounds for the City to immediately terminate any permit granted hereunder, or to order the immediate service termination of any nonpermitted,noncomplying facility constructed within the City. (t) Modifications. Any modifications to existing facilities or equipment or collocations shall not defeat the concealment elements of the existing structure/facility. (u) Electric Service. The City strongly encourages site operators to use flat-rate electric service when it would eliminate the need for a meter. Where meters are required, use the narrowest electric meter and disconnect available.
(v) Security. All equipment and facilities shall be installed in a manner to avoid being an attractive nuisance and to prevent unauthorized access, climbing, and graffiti.§ 9-7.1007. Standard Conditions of Approval.
All permits issued in accordance with this article, whether approved by the Planning Director, Planning Commission and/or City Council considering the application or deemed approved by the operation of law, shall be automatically subject to the conditions in this section. The Planning Director and/or the hearing body considering the application shall have discretion to modify, supplement, waive or amend these conditions on a case-bycase basis as may be necessary or appropriate under the circumstances to protect publichealth and safety or allow for the proper operation of the approved facility consistent with the goals of this article.
(a) Permit term. Except for eligible facilities requests, a permit for a wireless facility issuedin accordance with this article will automatically expire at 12:01 a.m. local time exactly 10 years and one day from the issuance date, unless the City establishes a shorter term for public safety or substantial land use reasons pursuant California Government Code § 65964(b). Any other permits or approvals issued in connection with an application subjectto this Article, which includes without limitation any permits or other approvals deemed granted or deemed-approved under federal or state law, will not extend this term limit unless expressly provided otherwise in such permit or approval or required under federal or state law.
(b) Code compliance. The permittee shall at all times maintain compliance with all applicable federal, state and local laws, regulations and other rules. (c) Inspections — Emergencies. The City or its designee may enter onto the facility area to inspect the facility upon reasonable notice to the permittee. The permittee shall cooperate with all inspections. The City reserves the right to enter or direct its designee to enter the facility and support, repair, disable or remove any elements of the facility inemergencies or when the facility threatens imminent harm to persons or property. (d) Contact information for responsible parties. The permittee shall at all times maintain accurate contact information for all parties responsible for the facility, which shall includea phone number, street mailing address and email address for at least one natural person.
All such contact information for responsible parties shall be provided to the Planning Director upon permittee’s receipt of the Planning Director written request, except in an emergency determined by the City when all such contact information for responsible parties shall be immediately provided to the Planning Director upon that person’s verbalrequest.(e) Indemnities. The permittee and, if applicable, the owner of the private property upon which the tower and/or base station is installed shall defend, indemnify and hold harmless the City of Avalon, its agents, officers, officials and employees (1) from any and all damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, law suits, writs of mandamus and other actions or proceedings brought against the City or its agents, officers, officials or employees to challenge, attack, seek to modify, set aside, void or annul the City’s approval of the permit, and (2) from any and alldamages, liabilities, injuries, losses, costs and expenses and any and all claims,demands, law suits or causes of action and other actions or proceedings of any kind or form, whether for personal injury, death or property damage, arising out of or in connection with the activities or performance of the permittee or, if applicable, the private property owner or any of each one’s agents, employees, licensees, contractors, subcontractors or independent contractors. Further, permittees shall be strictly liable for interference caused by their facilities with the City’s communications systems. Thepermittee shall be responsible for costs of determining the source of the interference, all costs associated with eliminating the interference, and all costs arising from third partyclaims against the City attributable to the interference. In the event the City becomesaware of any such actions or claims the City shall promptly notify the permittee and the private property owner, if applicable, and shall reasonably cooperate in the defense. It is expressly agreed that the City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City’s defense, and the property owner and/or permittee (as applicable) shall reimburse City for any costs and expensesdirectly and necessarily incurred by the City in the course of the defense. (f) Adverse impacts on adjacent properties. Permittee shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arisefrom the construction, operation, maintenance, modification and removal of the facility.
Any natural screening afforded by site conditions, including, but not limited to, the presence of trees, landscaping, topographical features, or structures on the site that shield the facility from view, shall be considered stealthing elements. (g) General maintenance. The site and the facility, including but not limited to all landscaping, fencing and related transmission equipment, must be maintained in a neat and clean manner and in accordance with all approved plans and conditions of approval. (h) Graffiti removal. All graffiti on facilities must be removed at the sole expense of the permittee within 48 hours after notification from the City.(I) RF exposure compliance. All facilities must comply with all standards and regulations of the FCC and any other state or federal government agency with the authority to regulate RF exposure standards. After transmitter and antenna system optimization, but prior to unattended operations of the wireless facility, permittee or its representative must provide the City documentation demonstrating compliance with all applicable RF emissions standards as certified by a licensed engineer. (j) Build-out period. This permit shall lapse one year after its date of approval unless one of the following has occurred:
(1) A building permit has been issued, substantial money has been expended, and construction diligently pursued; or
(2) A certificate of occupancy has been issued; or(3) The facility is constructed or modified as approved and in operation; or(4) The build-out period is extended by the City authority which originally approved the permit.
(k) Lapse. The permit shall automatically lapse if there is a discontinuance of the exercise of the entitlement granted by the permit for six consecutive months or more. (I) Testing. Testing of back-up generators and other noise producing equipment shall takeplace on weekdays only, and only between the hours of 8:30 am. and 4:30 p.m., except that testing is prohibited on holidays that fall on a weekday. In addition, testing is prohibited on weekend days.(m) Other approvals. The permittee shall obtain all other applicable permits, approvals, and agreements necessary to install and operate the facility in conformance with federal,state, and local laws, rules, and regulations. (n) Modifications. No changes shall be made to the approved plans without review andapproval in accordance with this article. (o) Performance and maintenance. All wireless telecommunications facilities and related equipment, including but not limited to fences, cabinets, poles and landscaping, shall be maintained in good working condition over the life of the permit. This shall include keeping the structures maintained to the visual standards established at the time of approval. Thefacility shall remain free from trash, debris, litter, graffiti and other forms of vandalism. Any damage shall be repaired as soon as practicable, and in no instance more than 10 calendar days from the time of notification by the City or after discovery by the permittee. (p) Performance bond. Prior to issuance of a building or electrical permit, the permittee shall file with the City, and shall maintain in good standing throughout the term of theapproval, a performance bond or other surety or another form of security for the removal of the facility in the event that the use is abandoned or the permit expires, or is revoked,or is otherwise terminated. The security shall be in the amount equal to 100% of the costof physically removing the wireless facility and all related facilities and equipment on thesite, based on the higher of two contractors’ quotes for removal that are provided by the permittee. The permittee shall reimburse the City for staff time associated with the processing and tracking of the bond, based on the hourly rate adopted by the City council.
Reimbursement shall be paid when the security is posted and during each administrativereview. (q) City access. The City reserves the right of its employee, agents, and designated representatives to inspect permitted facilities and property upon reasonable notice to the permittee. In case of an emergency or risk of imminent harm to persons or property within the vicinity of permitted facilities, the City reserves the right to enter upon the site of suchfacilities and to support, disable, or remove those elements of the facilities posing an immediate threat to public health and safety. The City shall make an effort to contact the permittee, prior to disabling or removing wireless facility elements. (r) Encourage consolidation. Where the wireless facility site is capable of accommodating another facility upon the same site, the owner and operator of the facility shall allowanother carrier to place its facilities and equipment thereon, provided the parties can mutually agree upon reasonable terms and conditions.(s) Interference. To the extent allowed under applicable federal rules and regulations, the operator of a wireless facility shall correct interference problems experienced by any person or entity with respect to equipment such as television, radio, computer, and telephone reception or transmission that are caused by the facility. If a federal agency with jurisdiction over such matters finds that a facility is operating in violation of federal standards, the permittee shall promptly provide the Planning Director with a copy of any notice of such violation issued by anyfederal agency and shall notifythe Planning Director once the facility comes back into compliance with applicable standards. (t) Discontinuance of use. Antennas, support structures and related equipment shall beremoved within 90 calendar days of the discontinuation of the use of a wireless facility operating under a use permit that has expired and the site shall be restored to its previouscondition. The service provider shall provide the public works and planning developmentdepartment with a notice of intent to vacate the site a minimum of 30 calendar days before vacation. For facilities located on City property, this requirement shall be included in theterms of the lease. For facilities located on other sites, the property owner is responsible for removal of all antennas, structures and related equipment within 90 calendar days of the discontinuation of the use.
(u) Compliance verification. No later than one year after commencing operation of the facility or issuance of a certificate of occupancy, whichever occurs first, and annuallythereafter, the applicant, wireless carrier, or property owner, shall have an appropriately licensed professional conduct a noise study of facility operations to verify compliance with all applicable local, state and federal regulations. In addition, a report shall also be submitted by an appropriately licensed professional to verify completion of any required site landscaping, equipment enclosures, and confirm that the facility appearance is incompliance with approved plans. These reports shall be submitted and reviewed by the Planning Director within five days of completion of the reports. Failure to submit such compliance verification, or the submission of materials verifying a lack of compliance, willconstitute grounds for the City to initiate a public hearing to consider whether permittee is fully complying with all conditions related to any permit or approval granted under this article.
(v) Conditions of Approval for Eligible Facilities Requests. In addition to the foregoingStandard Conditions of Approval, any eligible facilities request approved pursuant to this article shall be subject to the following standards of conditions unless modified by the Planning Director or City Manager.
(1) No permit term extension. The City’s grant or grant by operation of law of a zoning permit for an Eligible Facilities Request constitutes a federally mandated modification to the underlying permit or approval for the subject tower or base station.
The City’s grant or grant by operation of law of a zoning permit for an Eligible Facilities Request will not extend the permit term for any permit or other underlying regulatory approval and its term shall be coterminous with the underlying permit or other regulatoryapproval for the subject tower or base station. (2) No waiver of standing. The City’s grant or grant by operation of law of an Eligible Facilities Request does not waive, and shall not be construed to waive, any standing by the City to challenge any federal statute or regulation concerning Eligible Facilities Requests or any Eligible Facilities Request.
(3) Permit subject to conditions of underlying permit. Zoning permits for Eligible Facilities Requests shall be subject to the terms and conditions of the underlying permit for the existing tower or base station.
§ 9-7.1008. Nonconforming Facilities.
Nothing in this article shall validate any illegal or unpermitted wireless facilities installed prior to the effective date of this Article. All previously installed wireless facilities shallcomply with this Article and are required to obtain a permit issued pursuant to this Article, when applicable in accordance with Chapter 9-8, Article 7, to be considered legal and conforming.§ 9-7.1009. Revocation.
(a) Permittees shall fully comply with all conditions related to any permit or approval granted under this article or any predecessors to this article. Failure to comply with any condition of approval or maintenance of the facility in a matter that creates a public nuisance or otherwise causes jeopardy to the public health, welfare or safety shall constitute grounds for revocation, If such a violation is not remedied within a reasonable period, following written notice and an opportunity to cure, the City may schedule a public hearing before the Planning Commission to consider revocation of the permit. ThePlanning Commission revocation action may be appealed to the City Council pursuant Section 9-8.206.
(1) If the permit is revoked pursuant to this section, the permittee shall remove its facility at its own expense and shall repair and restore the site to the condition that existed prior to the facility’s installation or as required by the City within 90 days of revocation in accordance with applicable health and safety requirements. The permittee shall be responsible for obtaining all necessary permits for the facility’s removal and siterestoration. (2) At any time after 90 days following permit revocation, the City may require the facility to be removed and restoration of the premises as the City deems appropriate. The City may, but shall not be required to, store the removed facility (or any part thereof). The facility permittee shall be liable for the entire cost of such removal, repair, restoration, and storage. The City may, in lieu of storing the removed facility, convert it to the City’s use,sell it, or dispose of it in any manner deemed appropriate by the City.§ 9-7.1010. Limited Exceptions to Development, Design, and Location Standards. (a) The Planning Director, or designee, Planning Commission and/or City Council considering an application submitted for approval pursuant to this article may grant limited exceptions to the design, development and location standards for wireless facilities subject to this article, if it is determined that the applicant has established that denial ofan application or strict adherence to the design, development and location standards would:
(1) Prohibit or effectively prohibit the provision of personal wireless services, within the meaning of federal law; or
(2) Otherwise violate applicable laws or regulations; or(3) Require a technically infeasible location, design or installation of a wireless facility;
(4) Involve only minor noncompliance with a requirement, provided such noncompliance either results in no increase in visual harms to the community or provides other benefits.
(b) If the applicant requests a limited exception and the Planning Director or designee, Planning Commission, and/or City Council considering the application finds that an exception is warranted, said requirements may be waived, but only to the minimum extent required to avoid the prohibition, violation, or technically infeasible location, design or installation or minor noncompliance.
AVALON PLANNING COMMISSION
STAFF REPORT - PC#2867
Wednesday, July 17, 2024
Application File: N/A
Item No. — Public Hearing Submitted by: Bennett Givens, BBK; Kelly Ribuffo, Contract Planner A Public Hearing and consideration of a resolution recommending approval of an ordinance amending Chapter 9-7, Article 10 of the Avalon Municipal Code regarding installation and operation of antennas and wireless facilities on public and private property outside of the publicright-of-way. The proposed ordinance is exempt from environmental review per State CEQAGuidelines Sections 15378 and 15061(b)(3).
BACKGROUND
Brief Overview of State and Federal Limits on City Authority to Site Wireless Facilities:
State and federal law generally recognize and preserve local zoning authority over the placement, construction and modification ofwireless communications facilities. However, various state laws, federal laws, and Federal Communications Commission (FCC) regulations imposesignificant constraints on the exercise of local authority. Principal among them is the federal Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)) which provides that:
• Local action on applications must to be within a reasonable period of time;• Local regulations and placement decisions may not prohibit or effectively prohibit the provision of personal wireless services;
• Denials must be in writing and supported by substantial evidence;• Any consideration of RF emissions in siting decisions is prohibited if applicant meets FCC standards;
• Local agencies may not unreasonably discriminate among providers of functionally equivalent services; and
• Wireless applicants are entitled to expedited appeals to court.
Recent Updates to State and Federal Law Since 1997 Adoption ofCity’s Wireless Regulations for Facilities Outside the Public Right-of-Way:
The City’s regulations for antennas and wireless facilities located outside the right-of-way onpublic and private property (AMC Chapter 9-7, Article 10) have not been updated since 1997.
However, in 2019, the City adopted Ordinance No. 1176-19, which provided a process for approval of wireless facilities in the public rights-of-way (AMC Chapter 4-9, Article 3) following the FCC’s adoption of the Small Cell Order discussed more fully below. The proposed ordinance seeks to update and streamline the City wireless regulations for facilities outside the public right of-way in light of numerous federal and state laws and regulations that have since taken effect, which (among other things) significantly restricted local control over the permitting and placement of wireless facilities. Noteworthy features of these recent regulations include the following:
1. Ban on Moratoria: On August 2, 2018, the Federal Communications Commission (“FCC”) adopted a Third Report & Order and Declaratory Ruling, 33 FCC Rcd. 7705 (rel. Aug. 3, 2018) (“Moratoria Order”), that, among other things, contained a declaratory ruling prohibitingexpress and de facto moratoria for all personal wireless services, telecommunications services and their related facilities under 47 U.S.C. § 253(a) and directed the Wireless Telecommunications Bureau and Wireline Competition Bureau to hear and resolve all complaints on an expedited basis.
The declaratory ruling in the Moratoria Order was made effective upon release. This means that there can be no pause in accepting or processing applications to allow a city to study and address potential issues.
2. Shot Clocks and Deemed Granted Remedies: The FCC has adopted shot clocks (i.e., timelines) within which a local government must act on wireless facility applications. The most recent shot clocks have focused on applications for small wireless facilities and modificationsto existing wireless facilities. 2009 Shot Clocks: Tn 2009, the FCC adopted a Declaratory Ruling, 24 FCC Red. 18994 (rd. Nov. 18, 2009), to clarify existing federal law requiring local governments to act on wireless facility applications within a reasonable period of time. In that Declaratory Ruling, the FCCestablished two shot clocks for local action on wireless facilities applications:(l) a 60-day shotclock for collocations onto existing structures; and (2) a 150-day shot clock for all other types of wireless facility applications.
The State of California later adopted AB 57 (Gov. Code 65964.1), which that took effect on January 1, 2016, and created a “deemed granted” remedy (effective January 1, 2016 forcollocations onto existing structures and “other” applications; effective January 1, 2022 for small cells) if the local government failed to act on an application during the time period allowed under the applicable FCC shot-clocks. This “deemed granted” remedy under state law is available for any application under these shot clocks other than those proposed for placement on fire department facilities.
Eligible Facilities Requests: In 2012, Congress adopted a law (codified as 47 CFR Sec. 1455) requiring that certain applications to modify or add to existing wireless facilities must be approved at the local level. If the federal criteria are met, the City has no discretion and must approve a qualifying eligible facilities request. In 2014, the FCC adopted an implementing Order, including height and size criteria and a 60-day shot clock to process these Section 6409(a) requests or “eligible facilities requests” (29 FCC Red. 12865). More recently in 2020, the FCC adopted two separate orders to further clarify and change its rules to further facilitate these types of deployments. A failure to act within this FCC shot clock period can result in the application being deemed approved under federal law.
Small Wireless Facilities Shot Clocks: On September 26, 2018, the FCC adopted a Declaratory Ruling and Third Report and Order, 33 FCC Red. 9088 (rel. Sep. 27, 2018) (“SmallCell Order”), which, among other things:
2 • Created new shorter (60-day and 90-day) shot clocks for small wireless facilities (as defined in the Small Cell Order);
• Interpreted existing shot clock regulations to require local public agencies to issue all relevant permits and authorizations within this period; • Established a national standard for an effective prohibition related to small wireless facilities that replaced the existing “significant gap” test adopted by the United States Court ofAppeals for the Ninth Circuit; and • Provided that a failure to act within the applicable timefiame presumptively constitutes an effective prohibition.
The Small Cell Order went into effect in part on January 14, 2019, and in part on April 15, 2019. On August 12, 2020, a three-judge panel of the Ninth Circuit Court of Appeals upheld theMoratoria Order and significant portions ofthe Small Cell Order, including the shorter shot clocksand remedies for failing to meet a shot clock. (City of Portland v. United States, 969 F.3d 1020 (9th Cu. 2020) (“City ofPortland”)). On October 22, 2020, the Ninth Circuit Court of Appeals denied a petition for further Ninth Circuit review of the above-referenced panel’s decision by the entire Ninth Circuit judiciary known as “en bane” review. The Supreme Court ofthe United Statesalso denied a petition to hear an appeal.
In 2021, the California legislature enacted AB 537 amending Gov. Code 65964.1, which further expanded the reach of AB 57’s deemed granted remedy to apply to small wireless facilityapplications. Following AB 537, a deemed approved remedy is available either under state law or under federal law (for eligible facilities request applications) for each and every wireless facilityapplication type—which is triggered when the local government fails to render a final decision on a wireless facility application and issue all necessary approvals by the applicable FCC shot clock deadline.
3. Limits on Design Standards: In addition to the foregoing, the Small Cell Order placed limits on aesthetic regulations for small wireless facilities, including undergrounding.
Under the Small Cell Order, local aesthetic regulation of small wireless facilities are permissibleso long as they are reasonable, no more burdensome than those applied to other types of infrastructure deployments, objective, and published in advance (so that applicants know theapplicable small wireless facility aesthetic requirements).
In City ofPortland discussed above, the Ninth Circuit invalidated certain portions of the FCC’s Small Cell Order that imposed new rules for aesthetic standards for small wireless facilities.
Now, a city’s aesthetic regulations for small wireless facilities will not be preempted if they are (1) reasonable (technically feasible); and (2) published in advance.
4. Limits on Fees: State law requires wireless facility-related permit and/or application fees to be cost-based. The Small Cell Order declared that all small wireless facility related fees (including permit fees and rental fees for use of government-owned infrastructure, such as streetlights) must be based on a reasonable approximation ofthe local government’s costs,such that only objectively reasonable costs are factored into those fees, and fees are no higher than 3 the fees charged to similarly situated competitors in similar situations. The FCC established presumptively reasonable fee levels for small wireless facilities (called “safe harbors”) that include: non-recurring fees equal to $500 for a single application for up to five collocations, plus $100 for each additional collocation, and $1,000 for each new pole. ReculTing fees for small wireless facilities for attachment to a local govermnent’s poles are presumed reasonable if equalto $270 per facility/per year, including the fee for attachment to the infrastructure and use of thepublic right-of-way.
PROJECT DESCRIPTION AND RECOMMENDATIONS
Staff and the City Attorney’s Office reviewed the City’s existing processes and regulations governing wireless facilities outside ofthe public right-of-way and determined that various updates and amendments to the Title 9; Chapter 9-7; Article 10 “Antennas and Wireless Facilities” are warranted in order to comply with the changes in federal and state law outlined above. The proposed ordinance:
A. Clarifies and sets forth types of wireless facilities that are exempt from the provisions of Article 10 such as over-the-air-reception-devices, amateur radio antennas, governmental public safety facilities and certain temporary emergency facilities; B. Sets forth three permitting processes:
a. Administrative Wireless Permit: Creates a new Administrative Wireless Permit type that is reviewed by the Planning Director or designee. No public hearing is required, and an applicant may appeal a decision to the Planning Commission who will hear the appeal de novo. Administrative Wireless Permits are required for: a) an eligible facilities request, (b) a proposed “collocation facility” as defined in Government Code section 65850.6(d)(l); and (c) a new smallwireless facility to be placed upon an existing structure. b. Site Plan Review: Site Plan Review Approval by the Planning Commission is required for (a) a new small wireless facility that involves placement of a new orreplacement structure and (b) a new personal wireless service facility that involvesplacement upon an existing structure which (1) does not meet the definition of a small wireless facility or which will not meet the definition of a small wireless facility if and when the proposed new personal wireless service equipment is installed upon the existing facility and/or structure and (2) either (i) the structure is not an existing tower or base station (as defined for eligible facilities request purposes) or (ii) the structure is an existing tower or base station (as defined for eligible facilities request purposes) but the proposed facility does not qualify as an eligible facilities request;
c. Conditional Use Permit and Site Plan Review: Conditional Use Permit and Site Plan Review approval is required for any other type of wireless facility that doesnot qualify for either site plan review or an administrative wireless permit describedabove. 4 C. Updates application submittal requirements and findings of approval; D. Establishes location, design, and development standards for wireless facilities, such as aesthetics, landscaping, setbacks and lighting among other topics; a. Generally, all wireless facilities must be designed to incorporate concealment elements and screening to be a stealth facility, and must be designed in the least visible means possible and be aesthetically compatible with the surrounding area and structures (e.g., color, materials, size, and scale); b. Wireless facilities are preferred in the following zones/locations: Commercial (C); Special Commercial (SC); Resort Recreation (R-R); and Public (P), and prohibited in flood plains, sensitive species areas, and on any parcel within a residential zone.
The City’s Zoning Map is attached hereto as Attachment 2. c. Wireless facilities are subject to the height restrictions of the underlying zone. If there are no applicable height restrictions in an underlying zone, the wireless facility shall not exceed fifty (50) feet. A wireless facility and any related groundmounted equipment shall comply with all setback requirements of the underlying zone.
E. Sets forth standard conditions of approval that apply to all permits issued in accordance with Article 10, even in the event an application is deemed approved by operation of law; and
F. Creates a process for requesting and granting limited exceptions to the design, development and location standards for wireless facilities subject to Article 10.
GENERAL PLAN/LOCAL COASTAL PROGRAM COMPLIANCE
The Avalon General Plan recognizes that Avalon is a unique island community with limited resources, including land area. The Land Use Element set forth goals and policies which balancecommunity growth and protection of natural resources through organized development practices.
The Land Use Element is also incorporated as an integral part ofthe City’s certified Local Coastal Program (LCP) Lane Use Plan. In particular, the Land Use Plan emphasizes Avalon’s unique charm, characterized by viewsheds, coastline access, open space and recreational opportunities.
The proposed ordinance implements the following General Plan Goals and Policies:
Policy TI-i of the Land Use Element:“Use the City’s Zoning Ordinance and any applicable residential, commercial, resort, and open space design standards to guide the character of development and ensure compatibility with existing residential, commercial, resort, and open space uses.” 5 Regular review and update of the Avalon Municipal Code allows the City to adapt to changing State and federal regulations while providing the community, and potential developers, with clear direction to plan for future development projects. The proposed ordinance sets forth specific permitting processes and design standards for new wireless facilities and antennas on privateproperty. Where the City has discretion, design and development standards have been proposed to provide visual compatibility with surrounding commercial and residential development, and to limit height of building-mounted and freestanding facilities so as to preserve the low-rise character of downtown and significant vistas of the harbor and surrounding hillsides.
Therefore, the proposed ordinance is in compliance with both the Avalon General Plan and the LCP.
ENVIRONMENTAL DETERMINATION
California Environmental Quality Act:
The proposed policy is exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15378 and 1560 l(b)(3) because it has no potential to have a significant effect on the environment and is not subject to CEQA.
The proposed ordinance is not a “project” subject to the California Environmental Quality Act (“CEQA”), because it has no potential to result in a direct or indirect physical change in theenvironment. The proposed ordinance does not authorize any specific development or installationon any specific piece of property within the City’s boundaries. Moreover, when and if an application for installation is submitted, the City will at that time conduct preliminary review ofthe application in accordance with CEQA.Alternatively, even if the proposed ordinance is a “project” within the meaning of State CEQA Guidelines Section 15378, the ordinance is exempt from CEQA on multiple grounds. First, theOrdinance is exempt from CEQA because it can be seen with certainty that there is no possibilitythat the ordinance may have a significant effect on the environment. (State CEQA Guidelines, § 1 506 l(b)(3)). This is because approval ofthe ordinance will not result in the actual installation of any facilities in the City. In order to install a facility in accordance with this ordinance, the wireless provider would have to submit an application for installation of the wireless facility, and the City would conduct preliminary review under CEQA at that time.
Moreover, in the event that the proposed ordinance is interpreted so as to permit installation of wireless facilities on a particular site, the installation would be exempt from CEQA under StateCEQA Guidelines sections 15302 (replacement or reconstruction), 15303 (new construction or conversion of small structures), and/or 15304 (minor alterations to land). For example, theordinance provides for an administrative wireless permit only for eligible facilities requests (whichthe City does not have discretion to deny under federal law, and which therefore are not subject to 6 CEQA), collocation facilities, as defmed in Government Code section 65850.6(d)(1) (which the City does not have discretion to deny under state law, and which therefore are not subject toCEQA), and new small wireless facilities to be placed upon an existing structure, which fall squarely within the exemption set forth in State CEQA Guidelines section 15302. For all of the foregoing reasons, the ordinance is not subject to CEQA.
AUTHORIZING GUIDELINES
AMC Section 9-1.106 authorizes the Planning Commission to review and take action onrecommendations to the City Council on amends to the Avalon Municipal Code.
PUBLIC NOTICE
The Hearing Notice was published in Catalina Islander on July 5, 2024. The Hearing Notice was posted in three location(s) on the same date.
STAFF RECOMMENDATIONS
Staff recommends the Planning Commission adopt the attached Resolution, which will:
1. Recommend to City Council adoption of an Ordinance amending Title 9: Planning and Zoning/Chapter 9-7 General Standards ofDevelopment/Article 10 “Antennas and WirelessFacilities”.
2. Find the project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15378 and 1506 1(b)(3)and direct staff to prepare and file with the Office of Planning and Research and the Clerkof the County of Los Angeles a Notice of Exemption (NOE) as provided under PublicResources Code Section 2 1152(b) and CEQA Guidelines Section 15062.
ATTACHMENTS
1. Planning Commission Resolution No. PC 24-07
2. Zoning Map
7 RESOLUTION NO. 24-07
A RESOLUTION OF THE PLANNING COMMISSION OFTHE CITY OF AVALON RECOMMENDING APPROVAL OF AMENDMENTS TO CHAPTER 9-7 GENERAL
STANDARDS OF DEVELOPMENT/ARTICLE 10
“ANTENNAS AND WIRELESS FACILITIES” AND
FINDINGS UNDER THE CALIFORNIA ENVIRONMENTAL
QUALITY ACT
WHEREAS, pursuant to the authority granted to the City of Avalon (“City”) by Article XI, Section 7 of the California Constitution, the City has the police power to regulate the use ofland and property within the City in a manner designated to promote public convenience and general prosperity, as well as public health, welfare, and safety; and WHEREAS, the Planning Commission has authority per Avalon Municipal Code (AMC) Section 9-1.106 to review and take action on recommendations to amend municipal coderegulations; and WHEREAS, the Planning Commission reviewed the proposed Ordinance, attached as Exhibit A, and the effects and demands of such regulations and other development on the City’s resources; and
WHEREAS, on July 17, 2024, the Planning Commission held a duly-noticed public hearing, at which time written and oral evidence was considered regarding the proposedregulations for antennas and wireless facilities on public and private property outside of the public right-of-way within the jurisdiction of the City; and
WHEREAS, the Planning Commission has considered the staff report, supporting documents, public testimony, and all pertinent information submitted; and WHEREAS, all other legal pre-requisites for the consideration of the proposed municipal code regulations by the Planning Commission have occurred.
NOW THEREFORE, THE PLANNING COMMISSION OF THE CITY OF
AVALON DOES HEREBY RESOLVE AS FOLLOWS:Section 1. Incorporation of Recitals. The Planning Commission hereby finds that the foregoing recitals are true and correct and are incorporated herein as substantive findings.
Section 2. Code Amendment. Chapter 9-7, Article 10 of the Avalon Municipal Code shall beamended to read as proposed in Exhibit A, Title 9: Planning and Zoning/Chapter 9-7 General Standards of Development/Article 10 “Antennas and Wireless Facilities”.Section 3. Severability. If any section, subsection, subdivision, sentence, clause, or phrase of this Ordinance, or any part thereof is for any reason held to be unconstitutional, void, or invalid, such decisions shall not affect the validity of the remaining portion of this Resolution or any part thereof. The Planning Commission hereby declares that it would have passed each section, subsection, subdivision. paragraph. sentence, clause, or phrase thereof, iriesuecrive of the fact that any one or more section, subsection, subdivision, paragraph, sentence, clause, or phrase be declared unconstitutional, void, or invalid.
Section 4. CEQA Exemptions. The Planning Commission finds that this proposed Ordinanceis not a “project” subject to the California Environmental Quality Act (‘CEQA”), because it has no potential to result in a direct or indirect physical change in the environment. The Ordinance does not authorize any specific development or installation on any specific piece of property within the City’s boundaries. Moreover, when and if an application for installation is submitted, the City will at that time conduct preliminary review of the application in accordance with CEQA. Alternatively, even if the Ordinance is a “project” within the meaning of State CEQAGuidelines Section 15378, the Ordinance is exempt from CEQA on multiple grounds. First, the Ordinance is exempt from CEQA because it can be seen with certainty that there is no possibility that the Ordinance may have a significant effect on the environment. (State CEQA Guidelines, § 15061(b)(3)). This is because approval of the Ordinance will not result in the actual installation of any facilities in the City. In order to install a facility in accordance with this Ordinance, the wireless provider would have to submit an application for installation of the wireless facility, and the City would conduct preliminary review under CEQA at that time. Moreover, in the event thatthe Ordinance is interpreted so as to permit installation of wireless facilities on a particular site, the installation would be exempt from CEQA under State CEQA Guidelines sections 15302 (replacement or reconstruction), 15303 (new construction or conversion of small structures), and/or 15304 (minor alterations to land). For example, the Ordinance provides for anadministrative wireless permit only for eligible facilities requests (which the City does not havediscretion to deny under federal law, and which therefore are not subject to CEQA), collocationfacilities, as defined in Government Code section 65850.6(d) (1) (which the City does not havediscretion to deny under state law, and which therefore are not subject to CEQA), and new small wireless facilities to be placed upon an existing structure, which fall squarely within the exemptionset forth in State CEQA Guidelines section 15302. For all of the foregoing reasons, the Ordinance is not subject to CEQA.
BE IT FURTHER RESOLVED that a copy of this Resolution be delivered to the City of Avalon City Clerk for transmittal to the City of Avalon City Council.
PASSED, APPROVED AND ADOPTED this 17h day of July, 2024.
Chairman ______________ ATTEST:
Dave M. Maistros, City Manager
CERTIFICATE:
I, Donna Terpinitz-Romo, hereby certify that the foregoing Resolution 24-07 was adopted by the Planning Commission of the City of Avalon at a regular meeting held on the 17th day of July, 2024, by the following vote:
AYES:NOES:ABSENT:ABSTAIN:
Donna Terpinitz-Romo, Senior Administrative
Assistant
EXHIBIT A
TITLE 9: PLANNING AND ZONING/CHAPTER 9-7 GENERAL STANDARDS OF DEVELOPMENT/ARTICLE 10 “ANTENNAS AND WIRELESS FACILITIES” § 9-7.1001 — Purpose.
The purpose of this article is to establish a comprehensive set of zoning requirements for antennas and wireless telecommunications facilities on public and private properties. Theseregulations are intended to provide for the managed development of antennas and wirelesstelecommunications facilities in a manner that recognizes and enhances the community benefitsof wireless telecommunications technology and reasonably accommodates the needs of citizensand wireless telecommunications service providers in accordance with federal and state rules and regulations. At the same time, these regulations are intended to protect neighbors from potentialadverse impacts of such facilities, including but not limited to noise, traffic, aesthetic and otherimpacts over which the City has purview, and to preserve the visual character of the established community through appropriate design, siting, screening, maintenance, and location standards. § 9-7.100Z -Definitions.
The following words and phrases, as used in this article, are defined as follows:
(a) ADMINISTRATIVE WIRELESS PERMIT — Shall mean a permit issued and reviewed administratively by the Planning Director, or designee, pursuant to the process described in thisarticle authorizing the placement or modification of a wireless facility of a design specified in thepermit at a particular location; and the modification of any existing support structure to which the wireless facility is proposed to be attached.
(b) ANTENNA Shall mean any system of wires, poles, rods, reflecting discs, or similar devices used in wireless communications for the transmission or reception of electromagnetic waves when such system is operated or operating from a fixed location. (c) APPLICANT Shall mean a person filing an application for placement or modification of a wireless facility under this Article 10.
(d) BASE STATION — Shall have the same meaning as provided in 47 C.F.R. § 1.6100(b) (1), as may be amended, which defines that term as follows:
(1) A structure or equipment at a fixed location that enables Commission-licensed or authorized wireless communications between user equipment and a communications network.
The term does not encompass a Tower or any equipment associated with a tower. (1) The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well asunlicensed wireless services and fixed wireless services such as microwave backhaul. (ii) The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including Distributed Antenna Systems and small-cell networks).
(iii) The term includes any structure other than a tower that, at the time the relevant application is filed with the State or local government under this section, supports or houses equipment described in subsections 1 and 2 of this definition that has been reviewed and approved under the applicable zoning or siting process, or underanother State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.
(iv) The term does not include any structure that, at the time the relevant application is filed with the State or local government under this section, does not support or house equipment described in subsections 1 and 2 of this definition. (e) COLLOCATION Shall for eligible facilities requests only, have the same meaning as provided in 47 C.F.R. § 1.6100(b) (2), as may be amended, which defines that term as “[tjhemounting or installation of transmission equipment on an eligible support structure for thepurpose of transmitting and/or receiving radio frequency signals for communications purposes.” (f) DISTRIBUTED ANTENNA SYSTEM or DAS Shall mean a network of one or more antennas and related fiber optic nodes typically mounted to or located at streetlight poles, utilitypoles, sporting venues, arenas, multifamily housing or convention centers which provide accessand signal transfer for personal wireless service providers. A distributed antenna system alsoincludes the equipment location, sometimes called a “hub” or “hotel” where the DAS network isinterconnected with one or more wireless service provider’s facilities to provide the signaltransfer services. (g) ELIGIBLE FACILITIES REQUEST Shall mean the same as provided in 47 C.F.R. §1.6100(b) (3), as may be amended, which defines that term as “[amy request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving: (i) [clollocation of new transmission equipment; (ii) [riemoval of transmission equipment; or (iii) [r]eplacement of transmission equipment.”(h) ELIGIBLE SUPPORT STRUCTURE Shall mean the same as provided in 47 C.F.R. §1.6100(b) (4), as may be amended, which defines that term as “[amy tower or base station as defined in this section, provided that it is existing at the time the relevant application is filed with the state or local government under this section.”
(i) EQUIPMENT CABINET — Shall mean a small enclosure used to house multiple items of equipment associated with a wireless facility.
(j) EXISTING Shall mean, for purposes of an Eligible Facilities Request, the same as provided in 47 C.F.R. § 1.6100(b) (5), as may be amended, which provides that “[a] constructedtower or base station is existing for purposes of [the FCC’s Eligible Facilities Request regulations] if it has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, provided that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.” (k) FEDERAL COMMUNICATIONS COMMISSION (“FCC”) Shall mean the Federal Communications Commission or its lawful successor.
(1) MONOPOLE — Shall mean a single freestanding pole, post, or similar nonlattice structure used to support antennas and equipment associated with a wireless facility. (m) PERSONAL WIRELESS SERVICES Shall mean the same as provided in 47 U.S.C. § 332(c) (7) (C) (i), as may be amended, which defines that term as “commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.” (n) PLANNING DIRECTOR — Shall mean the City of Avalon’s Director of Planning and Building Department, or designee.
(o) RADIO FREQUENCY (“RF”) — Shall mean a rate of oscillation, which corresponds to the frequency of radio waves, and the alternating currents which carry radio frequency,electromagnetic, or other wireless signals. (p) ROOF-MOUNTED or BUILDING-MOUNTED ANTENNA — Shall mean an antenna directly attached or affixed to the roof of, on the wall, or elsewhere on a preexisting building,tank or similar structure other than a Tower. (q) SITE Shall mean the same as provided in 47 C.F.R. § 1.6100(b) (6), as may be amended, which provides that ‘[f] or towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utilityeasements currently related to the site, and, for other eligible support structures, further restrictedto that area in proximity to the structure and to other transmission equipment already deployedon the ground. The current boundaries of a site are the boundaries that existed as of the date thatthe original support structure or a modification to that structure was last reviewed and approvedby a state or local government, if the approval of the modification occurred prior to the SpectrumAct or otherwise outside of the [eligible facilities request] process.” (r) SMALL WIRELESS FACILITY Shall have the same meaning as “small wireless facilities” in 47 CFR 1.6002(1), or any successor provision (which is a personal wireless services facility that meets the following conditions that, solely for convenience, have been set forthbelow):
(1) The facility:
(i) Is mounted on structures 50 feet or less in height including their antennas as defined in. § 1.1320(d); or
(ii) Is mounted on structures no more than 10 percent taller than other adjacent structures; or
(iii) Does not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; (2) Each antenna associated with the deployment, excluding associated antenna equipment [as defined in the definition of “antenna in 47 CFR Section 1.1320(d)1, is no more than three cubic feet in volume;
(3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, is no more than 28 cubic feet in volume;
(4) The facility does not require antenna structure registration under part 17 of Chapter 1 of Title 47 of the Code of Federal Regulations;
(5) The facility is not located on Tribal lands, as defined under 36 C.F.R. § 800.16(x); and
(6) The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 CFR § 1.1307(b). (s) STEALTH FACILITY — Shall mean any wireless facility which is designed to blend into the surrounding environment by means of screening, concealment, or camouflage intended tomake the facility look like something other than a wireless tower or base station. The antennaand related equipment are either not readily visible beyond the property on which they are located, or, if visible, appear to be part of the existing natural or built environment rather than as a wireless facility.
(t) SUBSTANTIAL CHANGE Shall mean the same as provided in 47 C.F.R. §
1.46100(b) (7), as may be amended, which defines that term as a substantial modification changing the physical dimensions of an eligible support structure that meets any of the followingcriteria:
(1) For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater;
(i) Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings’ rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act.
(2) For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more thantwenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance tothe body of the structure that would protrude from the edge of the structure by more than six feet; (3) For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure; (4) It entails any excavation or deployment outside of the current site, except that, for towers other than towers in the public rights-of-way, it entails any excavation or deployment of transmission equipment outside of the current site by more than 30 feet in any direction. The site boundary from which the 30 feet is measured excludes any access or utility easements currently related to the site;
(5) It would defeat the concealment elements of the eligible support structure; or (6) It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, providedhowever that this limitation does not apply to any modification that is non-compliant only in amanner that would not exceed the thresholds identified in (1) through (4) [which correspond to47 CFR § 1.6100(b) (7) (i) through (iv)1. (u) TOWER — Shall mean any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that areconstructed for personal wireless services including, but not limited to, private, broadcast, andpublic safety services, as well as unlicensed wireless services and fixed wireless services such asmicrowave backhaul, and the associated site. This definition does not include utility poles. (v) TRANSMISSION EQUIPMENT Shall mean the same as provided in 47 C.F.R. §1.6100(b) (8), as may be amended, which defines that term as “[ej quipment that facilitates transmission for any [FCCI -licensed or authorized wireless communication service, including,but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular andbackup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as fixed wireless services such as microwave backhaul.”
(w) WHIP ANTENNA — Shall mean a single shaft antenna, including all mounting equipment.(x) WIRELESS FACILITY or FACILITY — Shall mean the antennas, antenna structures, equipment, equipment cabinets, cables, and other types of installations and related appurtenancesused for the provision of wireless services at a fixed location, including, without limitation, anyassociated tower(s), support structure(s), and base station(s). § 9-7.1003 — Exemptions.
(a) The requirements of this article do not apply to antennas or antenna structures set forth in this section, unless noted otherwise below. Each exempt facility shall fully comply with other applicable requirements of the Avalon Municipal Code and all other applicable state and federallaw. (1) Over-the-air-reception-devices (OTARD) antennas.
(i) Satellite dishes 39.37 inches (one meter) or less. Direct broadcast satellite (DBS) antennas and multipoint distribution services (MDS) antennas measuring one meter or less in diameter (or diagonal measurement) and either: (a) intended for the soleuse of a person occupying the same parcel to receive direct broadcast satellite service,including direct-to-home satellite service, or to receive or transmit fixed wireless signalsvia satellite or (b) a hub or relay antenna used to receive or transmit fixed wirelessservices that are not classified as telecommunications services; and (ii) Non-satellite dishes 39.37 inches (one meter) or less. A dish antenna 39.37 inches or less in diameter or diagonal measurement and (a) intended for the sole use of aperson occupying the same parcel to receive video programming services via multipointdistribution services, including multichannel multipoint distribution services,instructional television fixed services, and local multipoint distribution services, or to receive or transmit fixed wireless signals other than via satellite or (b) a hub or relay antenna used to receive or transmit fixed wireless services that are not classified astelecommunications services. (2) Television broadcast system (TVBS) antennas, provided: (a) the antenna is located entirely on and/or above the subject property, and (b) no portion of any ground-mounted antennais within a required front yard setback for the main building, in front of the main building, withina required side yard setback of a corner lot or adjacent to a street. (3) Amateur radio antennas. Antennas and antenna structures constructed by or for amateur radio operators that met the following requirements:
(i) That are completely enclosed within a permitted building; or(ii) That consist of a single wire not exceeding one-fourth of an inch in diameter, and such wire antennas may be located in setback areas, provided the antenna does notextend above the maximum building height in the district; or (iii) That consist of a single ground-mounted vertical pole or whip antenna not exceeding fifty feet in height, measured from finish grade at the base of the antenna, andnot located in any required setback area. Support structures or masts for pole or whipantennas shall conform to standards set out in the California Building Standards Code. Abuilding permit may be required for the support structure or mast. (4) Public safety facilities. Telecommunications facilities used only for public safety or other noncommercial governmental functions, including personal wireless services, used,operated, and maintained by the City, or any fire district, school district, hospital, ambulance service, governmental agency.
(5) Temporary mobile facilities. Mobile facilities placed on a site for less than seven consecutive days, provided any other necessary permits are obtained. (6) Temporary Emergency facilities. Wireless telecommunications facilities erected and operated for emergency situations, as designated by the Avalon Sheriff or City Manager, so longas the facility is removed at the conclusion of the emergency. (7) DAS. Distributed Antenna Systems or DAS installed and operated wholly within an existing structure or building.
(8) Antennas and wireless facilities within public rights-of-way. Antennas and wireless facilities placed wholly within public rights-of-way are governed by Avalon Municipal Code, Title 4, Chapter 4-9, Article 3 (Wireless Facilities in Public Rights-of-Way) and not this Article. § 9-7.1004. Permits Required; Application Requirements
(a) No wireless facility shall be constructed, erected, placed, or modified anywhere within the City without first obtaining a permit pursuant to the requirements of this article and without obtaining all permits required under any other applicable state, federal, or local laws orregulations. (1) Administrative Wireless Permit Required. An administrative wireless permit is required for (a) an eligible facilities request, (b) a proposed “collocation facility” as defined in Government Code section 65850.6(d) (1); and (c) a new small wireless facility to be placed upon an existing structure.
(i) The Planning Director or designee shall review, process, approve, conditionally approve or deny an application for administrative wireless permit in accordance with the procedures of this section. No public hearing shall be required for anadministrative wireless permit required by this article. An applicant may appeal thedecision of the Planning Director to the Planning Commission provided such appeal isfiled with the City Clerk within 15 days following the issuance of the Planning Director’sdecision notification. If timely appealed, the Planning Commission shall review the application de novo.. The decision of the Planning Director, upon the expiration of such 15 days if no appeal is filed, or of the Planning Commission on appeal shall be final.(2) Site Plan Review Approval Required. Site plan review approval is required for (a) a new small wireless facility that involves placement of a new or replacement structure and (b) anew personal wireless service facility that involves placement upon an existing structure which (1) does not meet the definition of a small wireless facility or which will not meet the definition of a small wireless facility if and when the proposed new personal wireless service equipment isinstalled upon the existing facility and/or structure and (2) either (i) the structure is not an existing tower or base station (as defined for eligible facilities request purposes) or (ii) the structure is an existing tower or base station (as defined for eligible facilities request purposes) but the proposed facility does not qualify as an eligible facilities request. The Planning Commission shall review, process, approve, conditionally approve or deny an application for site plan review approval in accordance with the procedure in Chapter 9-8, Article 2 except to theextent modified by this Article. (3) Site Plan Review and Conditional Use Permit Required. Both a Site Plan Review and a Conditional Use Permit shall be required where the applicant is seeking to construct, place or modify a wireless facility that does not qualify under subsections (1) and (2) above. ThePlanning Commission shall review, process, approve, conditionally approve or deny anapplication for site plan review approval and conditional use permit in accordance with the procedure in Chapter 9-8, Article 4 except to the extent modified by this Article. (b) Application Requirements. An applicant seeking to install, construct, modify, replace, or place a wireless facility shall complete and submit an application to the Planning and BuildingDepartment for review and processing, upon the form published by the Planning and BuildingDepartment, which may be updated from time to time. In addition to any requirements specifiedby the application form, all applications shall, at minimum, require submission of the following:
(1) Name of applicant, contact information, location of proposed site, description of the application type sought, and the name and contact information of the user! provider that will usethe facility. (2) A brief narrative accompanied by written documentation and a site plan or map together with photo simulations that explain the project. (3) A narrative and scaled map(s) that precisely disclose the geographic area(s) within the City proposed to be serviced by the proposed facility.
(4) A radiofrequency (RF) environmental evaluation report certifying that the proposed wireless facility meets FCC regulations and standards for construction, maintenance and operations.
(5) Payment of application fees.
(c) Consultants. The Planning Director, Planning Commission, or City Council considering the relevant permit issued pursuant to this article may require the application materials, proposed findings, and conditions to be reviewed by an independent third-party peer review consultant.
The cost of the third-party peer review shall be the responsibility of the applicant. (d) Denials without prejudice. The denial of a permit application for an eligible facilities request shall be without prejudice. To promote efficient review and timely decisions, any applicationgoverned under this article regardless of type may be denied without prejudice by the Planning Director, Planning Commission, or City Council when the applicant fails to tender a substantive response to the City within 120 calendar days after the City has deemed the application incomplete in a written notice to the applicant. The Planning Director, or designee, in his or her discretion, may grant a written extension for up to an additional 30 calendar days when theapplicant submits a written request prior to the one hundred twentieth day that shows good causeto grant the extension. Good cause for an extension shall include, without limitation, delays dueto circumstances outside the applicant’s reasonable control. § 9-7.1005 Findings of Approval
(a) Administrative Wireless Permit:
(1) Findings for Approval for Small Wireless Facilities Subject to an Administrative Wireless Permit. No administrative wireless permit shall be approved for applications wherein an applicant seeks to place a new small wireless facility upon an existing structure unless, on thebasis of the application and other materials or evidence provided in review thereof, the following findings are made:
(i) The facility shall conform with and carry out the General Plan and any certified Local Coastal Plan for the area; and
(ii) The facility complies with all applicable requirements of this article, including all requirements for the requested permit; all application requirements; and all applicable design, location, and development standards, or has a waiver exceptionthereof; and (iii) The facility meets applicable requirements and standards of federal and state law, including all applicable general orders of the California Public Utilities Commission; and
(iv) The facility is not detrimental to the public health, safety, and welfare. (2) Findings for Approval of Eligible Facilities Requests: No administrative wireless permit shall be approved for an eligible facilities request unless, on the basis of theapplication and other materials or evidence provided in review thereof, the followingfindings are made:
(i) The proposed collocation or modification meets each and every one of the applicable criteria for an eligible facilities request stated in 47 C.F.R. sections
1.6100(b) (3)—(9), or any successor provisions, after application of the definitions in 47 C.F.R. section 1.6100(b). The reviewing City authority shall make an express finding for each criterion; and
(ii) The proposed facility complies with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, except to the extent preempted by 47 C.F.R. sections
1.6100(b) (7) (i) (iv), or any successor provisions; and (iii) The proposed facility will comply with all generally applicable laws. (3) Findings for Approval of a proposed “collocation facility” as defined in Government Code section 65850.6(d) (1): No administrative wireless permit shall be approved for a “collocation facility” unless, on the basis of the application and other materials or evidence provided in review thereof the application complies with the requirements for the grant of aministerial permit under Government Code section 65850.6. (b) Site Plan Review Under This Article. No site plan review approval shall be approved or conditionally approved pursuant to this article unless, on the basis of the application and othermaterials or evidence provided in review thereof, the following findings are made:
(1) All findings for approval required for site plan as specified in Section 9-8.203; and(2) The facility complies with all applicable requirements of article, including all requirements for the requested permit; all application requirements; and all applicable design, location, and development standards, or has a waiver exception thereof; and (3) The proposed facility will comply with all generally applicable laws. (c) Conditional Use Permit Review Under This Article. No conditional use permit shall be approved or conditionally approved pursuant to this article unless, on the basis of the applicationand other materials or evidence provided in review thereof, the following findings are made:
(1) All findings for approval required for conditional use permit as specified in Section 9-
8.404; and
(2)The facility complies with all applicable requirements of article, including all requirements for the requested permit; all application requirements; and all applicable design,location, and development standards, or has a waiver exception thereof; and (3) The proposed facility will comply with all generally applicable laws. § 9-7.1006 Location, Design and Development Standards for Wireless Facilities.Each wireless facility subject to this article shall be designed, installed and operated incompliance with these location, design and development standards, unless specifically statedotherwise in this section. A qualifying eligible facilities request and a proposed “collocationfacility” as defined in Government Code section 65850.6(d) (1) shall only be required to comply with the location, design, and development standards in subsectionsj, I, m, o, r, s, u, and v of thissection. (a) Visual Criteria.
(1) Generally. Wireless facilities shall be designed in the least visible means possible and be aesthetically compatible with the surrounding area and structures (e.g., color, materials, size,and scale). (2) Materials. The materials used shall be non-reflective and non-flammable.(3) Stealth Design. All wireless facilities shall be designed to incorporate concealment elements and screening to be a stealth facility.
(4) Concealment. The wireless facility and transmission equipment should be camouflaged or concealed to blend the facility with surrounding materials and colors of the support structure on which the facility is installed. Concealment elements include, but are not limited to, the following:
(i) Radio frequency (RF) transparent screening or shrouds;(ii) Matching the color of the existing support structure by painting, coating, or otherwise coloring the wireless facility, equipment, mounting brackets, and cabling; (iii) Placing cables and wires inside the pole or beneath conduit of the smallest size possible;
(iv) Minimizing the size of the site;
(v) Installing new infrastructure that matches existing infrastructure in the area surrounding the proposed site; and
(vi) Using paint of durable quality.
(5) Collocation or placement on existing structures shall be utilized to the extent technically feasible.
(b) Specific plan areas. Within any specific plan area, all wireless facilities shall be completely screened from the view of surrounding properties. Appropriate locations may include inside of attic spaces, steeples, cupolas, towers, below parapets or concealed in architectural features. (c) Location.
(1) Preferred Locations/Zones. The City prefers installations in the following zones/locations: Commercial (C); Special Commercial (SC); Resort Recreation (R-R); and Public (P).
(2) Existing Infrastructure Preference. The City has a preference for the use of existing infrastructure.
(3) Prohibited Zones. Installations are prohibited in flood plains, sensitive species areas, and on any parcel within a residential zone.
(d) Visibility from public places. A wireless facility installed in a location readily visible from a public trail, public park, or other publicly owned outdoor recreation area shall be sited and designed to blend in with the existing natural and/or manmade environment in such a manner as to be effectively unnoticeable. The smallest and least visible antennas as possible should be installed which will reasonably accommodate the operator’s communication needs. (e) Height and Setbacks. All wireless facilities (including any ground mounted communication equipment, antennas, poles, or towers) shall comply with all height restrictions of the underlying zone. If there are no applicable height restrictions in an underlying zone, thewireless facility shall not exceed fifty (50) feet. A wireless facility and any related groundmounted equipment shall comply with all setback requirements of the underlying zone. (f) Accessory Equipment. Undergrounding equipment, including remote radio units that cannot be placed with the antenna in the shroud, is preferred. Vaults and pull boxes shall be installedflush to grade. Ground-mounted equipment shall incorporate camouflaging and shrouding tomatch the colors, appearance, and materials of existing facilities and screen facilities from public view as much as is technically feasible.
(g) Cables and Wiring. All cables and wiring must be within the structure, or if not feasible, within conduit on the exterior of the structure. The conduit must be a color that matches facility and of the smallest size technically feasible.
(h) Antennas. Antennas, antenna structures and related equipment shall incorporate architectural, landscape, color andlor other treatments to minimize potential visual impacts. (i) Natural appearance. Ground-mounted facilities shall be enclosed in cabinets, sized only for the needed equipment and screened with natural vegetation or designed as a stealth facility.
Examples include a water tank, artificial tree, and rocks. Existing and new landscaping materials,especially trees, shall be used where possible to screen antenna and antenna towers from off-siteviews. (j) Lighting. No facility shall be illuminated unless specially required by the Federal Aviation Administration (FAA) or other government agency. Any required lighting shall be shielded to eliminate, to the maximum extent possible, impacts on the surrounding area property. (k) Standards for wall- and building-mounted facilities. (1) Roof-mounted antennas. Roof-mounted antennas shall be set back from the edge of the roof a distance at least as great as the height of the antenna or shall be completely screened so as not to be visible to the general public from ground level. (2) WaIl-mounted antennas. Wall-mounted antennas shall be architecturally integrated into the building design. Wall-mounted antennas shall not exceed a total of 50 square feet perbuilding face. (I) Unauthorized access. All facilities shall be designed so as to be resistant to and minimize opportunities for unauthorized access, climbing, vandalism, graffiti, and other conditions which would result in hazardous conditions, visual blight, or attractive nuisances. (rn) Noise standards. Wireless facilities and all accessory equipment and transmission equipment must comply with all noise regulations and shall not exceed, either individually or cumulatively,the applicable noise level standards in Avalon Municipal Code Chapter 5-13. (n) Undergrounding. Extensions of electrical and telecommunications land lines to serve wireless telecommunications facilities shall be undergrounded.
(o) Signs. No logos, decals, or advertising of any type may be affixed to any element of the wireless facility, equipment, or pole, except as required by federal or state law. Further, the City requires that a placard or decal listing the facility owner’s name and emergency contact phonenumber be places in an inconspicuous area on an element of the equipment or on the poledirectly below the antenna. (p) Service roads. Existing roads and easements shall be used to the extent feasible. New service roads shall be limited to a width of 10 feet, unless a wider road is deemed necessary by the City. (q) Landscaping. In addition to any landscaping used for concealment or screening purposes, the applicant shall propose and install additional landscaping to replace any existing landscaping displaced during construction or installation of the applicants facility. Applicant must use native landscaping unless otherwise specified by the City. The applicant’s landscaping plan shall be subject to the City’s review and approval but shall, at a minimum, match the existing landscaping and foliage surrounding the installation site.
(r) Compliance with laws. All wireless telecommunications facilities shall comply with the applicable provisions of this section and this article as well as the Building Code, Electrical Code, Plumbing Code, Mechanical Code, Fire Code and rules and regulations imposed by state and federal agencies. All wireless telecommunications facilities shall meet current standards andregulations of the Federal Communications Commission, California Public Utilities Commission, and any other agencies with authority to regulate wireless telecommunications service providers. If existing standards or regulations are changed, the applicant shall bring its facility into compliance with the new standards within 90 days of the effective date of such standards, unless the federal or state agency mandates a different compliance schedule. Changes to approved projects are subject to review and approval by the Planning Director or otherapplicable City decision-making body. Failure to comply with adopted new state or federal requirements shall be grounds for permit revocation.
(s) Public health. No wireless facility shall be sited or operated in such a manner that it poses, either by itself or in combination with other such facilities, a potential threat to the public health.
To that end, no facility or combination of facilities shall produce at any time power densities in any inhabited area that exceed the FCC’s maximum permissible exposure (MPE) limits forelectric and magnetic field strength and power density for transmitters or any more restrictive standard subsequently adopted or promulgated by the City, county, state or federal government.
Absolute compliance with FCC Office of Engineering Technology (OET) Bulletin 65, asamended, is mandatory, and any violation of this section shall be grounds for the City toimmediately terminate any permit granted hereunder, or to order the immediate servicetermination of any nonpermitted, noncomplying facility constructed within the City. (t) Modifications. Any modifications to existing facilities or equipment or collocations shall not defeat the concealment elements of the existing structure/facility. (u) Electric Service. The City strongly encourages site operators to use flat-rate electric service when it would eliminate the need for a meter. Where meters are required, use the narrowestelectric meter and disconnect available. (v) Security. All equipment and facilities shall be installed in a manner to avoid being an attractive nuisance and to prevent unauthorized access, climbing, and graffiti. § 9.7.1OO7. Standard Conditions of Approval.All permits issued in accordance with this article, whether approved by the Planning Director,Planning Commission and/or City Council considering the application or deemed approved bythe operation of law, shall be automatically subject to the conditions in this section. The PlanningDirector and/or the hearing body considering the application shall have discretion to modify,supplement, waive or amend these conditions on a case-by-case basis as may be necessary orappropriate under the circumstances to protect public health and safety or allow for the proper operation of the approved facility consistent with the goals of this article. (a) Permit term. Except for eligible facilities requests, a permit for a wireless facility issued in accordance with this article will automatically expire at 12:01 a.m. local time exactly 10 yearsand one day from the issuance date, unless the City establishes a shorter term for public safety or substantial land use reasons pursuant California Government Code § 65964(b). Any other permits or approvals issued in connection with an application subject to this Article, whichincludes without limitation any permits or other approvals deemed-granted or deemed-approvedunder federal or state law, will not extend this term limit unless expressly provided otherwise in such permit or approval or required under federal or state law. (b) Code compliance. The permittee shall at all times maintain compliance with all applicable federal, state and local laws, regulations and other rules. (c) Inspections — Emergencies. The City or its designee may enter onto the facility area to inspect the facility upon reasonable notice to the permittee. The permittee shall cooperate with allinspections. The City reserves the right to enter or direct its designee to enter the facility and support, repair, disable or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property.
(d) Contact information for responsible parties. The permittee shall at all times maintain accurate contact information for all parties responsible for the facility, which shall include a phonenumber, street mailing address and email address for at least one natural person. All such contactinformation for responsible parties shall be provided to the Planning Director upon permittee’sreceipt of the Planning Director written request, except in an emergency determined by the City when all such contact information for responsible parties shall be immediately provided to the Planning Director upon that person’s verbal request.
(e) Indemnities. The permittee and, if applicable, the owner of the private property upon which the tower and/or base station is installed shall defend, indemnify and hold harmless the City ofAvalon, its agents, officers, officials and employees (1) from any and all damages, liabilities,injuries, losses, costs and expenses and from any and all claims, demands, law suits, writs ofmandamus and other actions or proceedings brought against the City or its agents, officers,officials or employees to challenge, attack, seek to modify, set aside, void or annul the City’sapproval of the permit, and (2) from any and all damages, liabilities, injuries, losses, costs andexpenses and any and all claims, demands, law suits or causes of action and other actions orproceedings of any kind or form, whether for personal injury, death or property damage, arisingout of or in connection with the activities or performance of the permittee or, if applicable, theprivate property owner or any of each one’s agents, employees, licensees, contractors,subcontractors or independent contractors. Further, permittees shall be strictly liable for interference caused by their facilities with the City’s communications systems. The permittee shall be responsible for costs of determining the source of the interference, all costs associatedwith eliminating the interference, and all costs arising from third party claims against the City attributable to the interference. In the event the City becomes aware of any such actions orclaims the City shall promptly notify the permittee and the private property owner, if applicable,and shall reasonably cooperate in the defense. It is expressly agreed that the City shall have theright to approve, which approval shall not be unreasonably withheld, the legal counsel providingthe City’s defense, and the property owner and/or permittee (as applicable) shall reimburse Cityfor any costs and expenses directly and necessarily incurred by the City in the course of the defense.
(f) Adverse impacts on adjacent properties. Permittee shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification and removal of the facility. Any natural screening afforded by site conditions, including, but not limited to, the presence of trees, landscaping, topographical features, or structures on the site that shield the facility from view, shall be considered stealthing elements.
(g) General maintenance. The site and the facility, including but not limited to all landscaping, fencing and related transmission equipment, must be maintained in a neat and clean manner andin accordance with all approved plans and conditions of approval. (h) Graffiti removal. All graffiti on facilities must be removed at the sole expense of the permittee within 48 hours after notification from the City. (i) RF exposure compliance. All facilities must comply with all standards and regulations of the FCC and any other state or federal government agency with the authority to regulate RFexposure standards. After transmitter and antenna system optimization, but prior to unattendedoperations of the wireless facility, permittee or its representative must provide the Citydocumentation demonstrating compliance with all applicable RF emissions standards as certifiedby a licensed engineer. (j) Build-out period. This permit shall lapse one year after its date of approval unless one of the following has occurred:
(1) A building permit has been issued, substantial money has been expended, and construction diligently pursued; or
(2) A certificate of occupancy has been issued; or(3) The facility is constructed or modified as approved and in operation; or(4) The build-out period is extended by the City authority which originally approved the permit.
(k) Lapse. The permit shall automatically lapse if there is a discontinuance of the exercise of the entitlement granted by the permit for six consecutive months or more. (1) Testing. Testing of back-up generators and other noise producing equipment shall take place on weekdays oniy, and only between the hours of 8:30 a.m. and 4:30 p.m., except that testing is prohibited on holidays that fall on a weekday. In addition, testing is prohibited on weekend days. (m) Other approvals. The permittee shall obtain all other applicable permits, approvals, and agreements necessary to install and operate the facility in conformance with federal, state, andlocal laws, rules, and regulations. (n) Modifications. No changes shall be made to the approved plans without review and approval in accordance with this article.
(o) Performance and maintenance. All wireless telecommunications facilities and related equipment, including but not limited to fences, cabinets, poles and landscaping, shall bemaintained in good working condition over the life of the permit. This shall include keeping the structures maintained to the visual standards established at the time of approval. The facilityshall remain free from trash, debris, litter, graffiti and other forms of vandalism. Any damage shall be repaired as soon as practicable, and in no instance more than 10 calendar days from thetime of notification by the City or after discovery by the permittee. (p) Performance bond. Prior to issuance of a building or electrical permit, the permittee shall file with the City, and shall maintain in good standing throughout the term of the approval, a performance bond or other surety or another form of security for the removal of the facility in theevent that the use is abandoned or the permit expires, or is revoked, or is otherwise terminated.
The security shall be in the amount equal to 100% of the cost of physically removing the wireless facility and all related facilities and equipment on the site, based on the higher of two contractors’ quotes for removal that are provided by the permittee. The permittee shall reimbursethe City for staff time associated with the processing and tracking of the bond, based on thehourly rate adopted by the City council. Reimbursement shall be paid when the security is postedand during each administrative review. (q) City access. The City reserves the right of its employee, agents, and designated representatives to inspect permitted facilities and property upon reasonable notice to the permittee. In case of an emergency or risk of imminent harm to persons or property within the vicinity of permitted facilities, the City reserves the right to enter upon the site of such facilities and to support, disable, or remove those elements of the facilities posing an immediate threat topublic health and safety. The City shall make an effort to contact the permittee, prior to disablingor removing wireless facility elements. (r) Encourage consolidation. Where the wireless facility site is capable of accommodating another facility upon the same site, the owner and operator of the facility shall allow another carrier to place its facilities and equipment thereon, provided the parties can mutually agree upon reasonable terms and conditions.
(s) Interference. To the extent allowed under applicable federal rules and regulations, the operator of a wireless facility shall correct interference problems experienced by any person orentity with respect to equipment such as television, radio, computer, and telephone reception ortransmission that are caused by the facility. If a federal agency with jurisdiction over suchmatters finds that a facility is operating in violation of federal standards, the permittee shallpromptly provide the Planning Director with a copy of any notice of such violation issued by anyfederal agency and shall notify the Planning Director once the facility comes back into compliance with applicable standards.
(t) Discontinuance of use. Antennas, support structures and related equipment shall be removed within 90 calendar days of the discontinuation of the use of a wireless facility operating under ause permit that has expired and the site shall be restored to its previous condition. The service provider shall provide the public works and planning development department with a notice of intent to vacate the site a minimum of 30 calendar days before vacation. For facilities located on City property, this requirement shall be included in the terms of the lease. For facilities located on other sites, the property owner is responsible for removal of all antennas, structures and related equipment within 90 calendar days of the discontinuation of the use. (u) Compliance verification. No later than one year after commencing operation of the facility or issuance of a certificate of occupancy, whichever occurs first, and annually thereafter, theapplicant, wireless carrier, or property owner, shall have an appropriately licensed professional conduct a noise study of facility operations to verify compliance with all applicable local, state and federal regulations. In addition, a report shall also be submitted by an appropriately licensedprofessional to verify completion of any required site landscaping, equipment enclosures, andconfirm that the facility appearance is in compliance with approved plans. These reports shall be submitted and reviewed by the Planning Director within five days of completion of the reports.
Failure to submit such compliance verification, or the submission of materials verifying a lack ofcompliance, will constitute grounds for the City to initiate a public hearing to consider whetherpermittee is fully complying with all conditions related to any permit or approval granted under this article.
(v) Conditions of Approval for Eligible Facilities Requests. In addition to the foregoing Standard Conditions of Approval, any eligible facilities request approved pursuant to this article shall be subject to the following standards of conditions unless modified by the Planning Director or City Manager.
(1) No permit term extension. The City’s grant or grant by operation of law of a zoning permit for an Eligible Facilities Request constitutes a federally mandated modification to theunderlying permit or approval for the subject tower or base station. The City’s grant or grant byoperation of law of a zoning permit for an Eligible Facilities Request will not extend the permitterm for any permit or other underlying regulatory approval and its term shall be coterminous with the underlying permit or other regulatory approval for the subject tower or base station. (2) No waiver of standing. The City’s grant or grant by operation of law of an Eligible Facilities Request does not waive, and shall not be construed to waive, any standing by the City to challenge any federal statute or regulation concerning Eligible Facilities Requests or any Eligible Facilities Request.
(3) Permit subject to conditions of underlying permit. Zoning permits for Eligible Facilities Requests shall be subject to the terms and conditions of the underlying permit for theexisting tower or base station.§ 9-7.1008. Nonconforming Facilities.Nothing in this article shall validate any illegal or unpermitted wireless facilities installed prior tothe effective date of this Article. All previously installed wireless facilities shall comply with thisArticle and are required to obtain a permit issued pursuant to this Article, when applicable inaccordance with Chapter 9-8, Article 7, to be considered legal and conforming. § 9-7.1009. Revocation.
(a) Permittees shall fully comply with all conditions related to any permit or approval granted under this article or any predecessors to this article. Failure to comply with any condition of approval or maintenance of the facility in a matter that creates a public nuisance or otherwise causes jeopardy to the public health, welfare or safety shall constitute grounds for revocation. If such a violation is not remedied within a reasonable period, following written notice and an opportunity to cure, the City may schedule a public hearing before the Planning Commission to consider revocation of the permit. The Planning Commission revocation action may be appealedto the City Council pursuant Section 9-8.206. (1) If the permit is revoked pursuant to this section, the permittee shall remove its facility at its own expense and shall repair and restore the site to the condition that existed prior to thefacility’s installation or as required by the City within 90 days of revocation in accordance withapplicable health and safety requirements. The permittee shall be responsible for obtaining all necessary permits for the facility’s removal and site restoration. (2) At any time after 90 days following permit revocation, the City may require the facility to be removed and restoration of the premises as the City deems appropriate. The City may, but shall not be required to, store the removed facility (or any part thereof). The facilitypermittee shall be liable for the entire cost of such removal, repair, restoration, and storage. The City may, in lieu of storing the removed facility, convert it to the City’s use, sell it, or dispose of it in any manner deemed appropriate by the City.§ 9-7.1010. Limited Exceptions to Development, Design, and Location Standards. (a) The Planning Director, or designee, Planning Commission and/or City Council considering an application submitted for approval pursuant to this article may grant limited exceptions to thedesign, development and location standards for wireless facilities subject to this article, if it isdetermined that the applicant has established that denial of an application or strict adherence to the design, development and location standards would:
(1) Prohibit or effectively prohibit the provision of personal wireless services, within the meaning of federal law; or
(2) Otherwise violate applicable laws or regulations; or(3) Require a technically infeasible location, design or installation of a wireless facility;(4) Involve only minor noncompliance with a requirement, provided such noncompliance either results in no increase in visual harms to the community or provides other benefits. (b) If the applicant requests a limited exception and the Planning Director or designee, Planning Commission, and/or City Council considering the application finds that an exception is warranted, said requirements may be waived, but only to the minimum extent required to avoid the prohibition, violation, or technically infeasible location, design or installation or minornoncompLiance. r
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CITY OF AVALON CITY COUNCIL
MEETING DATE: September 3, 2024 AGENDA ITEM:
ORIGINATING DEP: Finance CITY MANAGER: _______ PREPARED BY: Matthew Baker, Finance Director SUBJECT: OpenGov, Inc. Budget Software Renewal
RECOMMENDED ACTION(S): Approve a one-year extension with OpenGov, Inc. for its budget preparation and transparency modules for a not-to-exceed amount of $27,022.52 with the option of expending for an additional fiscal year for a not-to-exceed amount of $30,000.00.
REPORT SUMMARY: The City’s procurement policy requires contracts for services, supplies, and equipment of $25,000 or more to be awarded through competitive procedures. The City solicited three vendors and received price quotes from OpenGov, Inc. and ClearGov, Inc., which have been identified as vendors with the capability to integrate with the City’s accounting system, eFinancePlus from CentralSquare. The integration feature allows City Staff to review budget-toactual information in real-time through the online budget module without assistance from the Finance Department, which has significantly improved the efficiency of the City’s budget development process. The City inquired with CentralSquare to see whether they integrated withother vendors or offered a similar product. CentralSquare previously indicated that they did notoffer a similar product and did not identify any other vendors that integrate with the City’s accounting system similar to the two other vendors solicited. Below please find a pricing comparison for a one-year contract:
Vendor Price Quote
OpenGov, Inc. $27,022.52
ClearGov, Inc.’ $36,855.00
City Staff recommends approving a one-year extension with OpenGov, Inc with the option to extend for an additional year. The City has received excellent customer support from OpenGov, Inc. over the past five fiscal years. City Staff have become more familiar with the product’s functionality each year, which has contributed to significant efficiencies in budget development and monitoring. Changing vendors would also require additional staff time, particularly from the Finance Department, for implementation and training that were not anticipated in the current fiscal year. The City initially contracted with OpenGov in August 2018 for a five year period and extended the contract for an additional one year period in October 2023. 1 ClearGov’s quote included its digital budget book module and a one-time setup investment of $7,020.
GOAL ALIGNMENT: Fiscal responsibility, citizen engagement and public transparency.
FISCAL IMPACTS: Included in the FY2024-25 Budget in Account 10130-5005.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A
FOLLOW UP ACTION: Implement City Council decision.
ADVERTISING, NOTICE AND PUBLIC CONTACT: Pursuant to the Brown Act.ATTACHMENTS: N/A
CITY OF AVALON CITY COUNCIL
MEETING DATE: September 3, 2024 AGENDA ITEM: (P
ORIGINATING DEP: Administration CITY MANAGER: ‘U
PREPARED BY: David Maistros, City Manager
SUBJECT: Southern California Edison Community Resource Center License Agreement
RECOMMENDED ACTION(S): Authorize the City Manager to execute a Community Resource Center License Agreement with Southern California Edison granting shared use of the City Hall City Council Chambers during a “Public Safety Event.” REPORT SUMMARY: City Staff were contacted by representatives of Southern California Edison (“SCE”) interested in securing the City Council Chambers located at Avalon City Hall (410 Avalon Canyon Road) for use during a “Public Safety Event” such as a wildfire, windstorms or high heat event(s).
Per the proposed Community Resource Center License Agreement, during a Public SafetyEvent, SCE would have a shared right with the City to utilize the space to provide services such as a smart phone charging kiosk, providing water and/or snacks, staging equipmentsupplies or other materials, as well as any other public safety event activity.
The agreement, established for a five year term, may be terminated by either party with 30-day notice. If SCE uses the space, it is subject to a fixed fee of $1 500 per day for interior space, and $500 per day for exterior space.
City Staff recommend the City Council authorizes the City Manager to execute the Community Resource Center License Agreement with Southern California Edison.
FISCAL IMPACTS: Undetermined.
GOAL ALIGNMENT: Emergency response preparedness.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: Undetermined.
FOLLOW UP ACTION: Implement City Council direction.
ADVERTISING, NOTICE AND PUBLIC CONTACT: Pursuant to the Brown Act.
ATTACHMENTS: Community Resource Center License Agreement.
SOUII IIJ?N (ALliORN1A
EDISON
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COMMUNITY RESOURCE CENTER
LICENSE AGREEMENT
Between
SOUTHERN CALIFORNIA EDISON COMPANY
And
CITY OF AVALON, CA
This License Agreement, together with the exhibits attached hereto (as amended, restated, extended, renewed, modified, or supplemented from time to time, collectively, the “Agreement”is made and entered into as of this ____ day of ,2024 (the “Effective Date”) by SOUTHERN CALIFORNIA EDISON COMPANY, A California corporation (“SCE”) and the CITY OF AVALON, CA., (“Licensor”). SCE and Licensor are sometimes referred to herein individually as a “Party” and jointly as the “Parties”.
RECITALS:
A. Licensor owns or leases certain real property in the State of California and is willing to offer this real property and services for SCE’s use as a customer resource center in connection with the loss or SCE’s shutoff of power for publicsafety due to events such as wildfires, windstorms or high heat (“Public SafetyEvents”) as defined in Section 3 below, pursuant to the terms and conditions setforth in this Agreement.
B. SCE is willing to secure space and services from Licensor to use as a customer resource center in connection with Public Safety Events pursuant to the terms andconditions set forth in this Agreement.
C. The Parties desire to memorialize this mutual understanding and agreement for making certain of the availability of Licensor’s dedicated space and services to SCE in connection with Public Safety Events.
NOW, THEREFORE, for good and valuable consideration, the Parties agree as follows:
1. License Area. The dedicated space that is the subject of this Agreement is located at 410 Avalon Canyon Rd., Avalon, CA, 90704.
2. Grant of License. Subject to the terms and conditions set forth in this Agreement, Licensor grants SCE, SCE’s Representatives, and SCE’s customers the right to use the License Area as a customer resource center in connection with a Public SafetyEvent, provided such License Area has regular power service at the time of thePublic Safety Event, together with rights of ingress and egress to and from theLicense Area.
3. Use. The License Area shall be available every day from 8:00 AM to 10:00 PM for up to five (5) consecutive days per Public Safety Event. The days (includingany partial days) during which any of SCE’s Activities are occurring in or on theLicense Area are referred to herein as “Use Days.” During Use Days, SCE shall have the shared right with Licensor to use the License Area during the time period specified in this Section 3. SCE and its employees, contractors, agents, and representatives (“SCE’s Representatives”) may enter the License Area forpurposes of establishing and operating a customer resource center in the case of a Public Safety Event (“Public Safety Event Activities”). Licensor acknowledges that Public Safety Event Activities may include the following: setting up signage, providing a smart phone charging kiosk, providing water and snacks providing up-to-date information on outages to customers, and staging of equipment, supplies and materials.
4. Event Notification. SCE shall give Licensor a minimum of twenty-four (24) hours’ prior notice of the date and time that SCE needs to access and use theLicense Area to the contacts identified by Licensor in Exhibit A. Licensor mustrespond to SCE’s notice and confirm availability for access and use by SCE no later than 4 hours after receipt of SCE’s notice of a Public Safety Event.
5. Term. This License Agreement shall be for a term of five (5) years, commencing on the Effective Date and expiring five (5) years thereafer. Either Party may terminate the Agreement on Notice, which will be effective thirty (30) days after such Notice is given to the other Party.
6. License Fee. Upon the end of each month, Licensor shall send an electronic copy of the invoice to the SCE Contract Representative identified in Exhibit A for the payment of the License Fee. For the use of indoor space, including the obligations in Sections 7(a) and 7(b) and the provision of equipment in Section 8(c), SCEshall, within forty-five (45) days of Licensor’s invoice to SCE, pay Licensor afixed fee of One Thousand Five Hundred Dollars ($1,500.00) per Use Day perPublic Safety Event. For the use of outdoor space, SCE shall pay Licensor a fixedfee of Five Hundred Dollars ($500) per Use Day per Public Safety Event. If Licensor is not able to make License Area available for SCE’s use during anyportion of the time period or hours specified in Section 3, then the License Feewill be prorated accordingly. SCE shall send payment to Licensor via wire transfer or ACH.
7. Licensor’s Obligations. Licensor shall be responsible for the following:
(a) Provision of the License Area including air conditioning, heating, wireless internet access, and reasonable access to restrooms;
(b) Labor, equipment and materials to prepare the License Area and any necessary support elements upon notice of Public Safety Event includingbut not limited to setup of tables, chairs, TV monitors, refrigerators, and temporary electrical outlets as identified and required in Section 8. (c) Labor required to revert the License Area space back to the condition it was in prior to its use for the Public Safety Event, reasonable wear and tear excepted;
(d) Security personnel as needed; and(e) Incremental utility use for any extended opening hours during Public Safety event.
8. Use of License Area.
(a) As Is. To Licensor’s current actual knowledge, the License Area and the property on which the License Area resides comply with all laws, including theAmericans with Disabilities Act and other accessibility laws. SCE accepts theLicense Area “as-is,t’ “where-is” and “with-all-faults,” subject to all applicable zoning, municipal, county and state laws, ordinances, and regulations governingand regulating the use of the License Area. SCE may request Licensor to performalterations, repairs, or improvements to the License Area unrelated to applicablelaws, but SCE understands and agrees that Licensor shall not be obligated to make any such alterations, repairs or improvements at any time.(b) General Provisions. The demised License Area shall be of sufficient size to comfortably accommodate up to forty (40) people at any time. Licensor shall ensure the space is clean, with appropriate lighting and ventilation including airconditioning, heating, and access to restrooms. (c) Operation During Public Safety Event. Licensor shall have at least one point of contact on site for SCE staff with whom to coordinate Public Safety Event Activities. SCE may provide five (5) eight-foot folding tables and forty (40) folding chairs to be stored at the License Area for use only during the Public Safety Event. Licensor shall replace these tables and chairs ifthey are damaged during storage or outside of a Public Safety Event. Licensor should be responsible for providing all other necessary equipment including airconditioning, heating, adequate electrical service, two (2) refrigerators, two (2)televisions with connectivity for use by SCE and SCE Public Safety Event customers.
(d) Restoration. SCE shall exercise reasonable care in the conduct of Public Safety Event Activities in the License Area. Upon SCE’s ceasing to use the License Area in connection with a particular Public Safety Event, SCE shall remove all SCE signage, charging kiosk(s) and other supplies and materials and personal property of SCE and SCE’s Representatives.
(e) Safe Condition. Licensor shall maintain the License Area in a good, clean, safe and sanitary condition during Use Days.
(f) Lawful Use Only. SCE shall not use the License Area during Use Days ina manner that will in any way conflict with any law, statute, zoning restriction,ordinance or governmental rule or regulation or requirement relating to the use or occupancy ofthe License Area. During Use Days, SCE shall not use the License Area for any unlawful or objectionable purpose, nor shall SCE cause or maintain any nuisance in, on or about the License Area.
(g) Mechanic’s Liens. SCE shall keep the License Area free and clear of allmechanic’s liens arising, or alleged to arise, in connection with any work performed, labor or materials supplied or delivered, or similar activities performed by SCE or at SCE’s request or for SCE’s benefit. If any mechanic’s liens are placed on the License Area in connection with SCE’s use or SCE’s Activities, SCE shall diligently pursue all necessary actions to remove such liens from title, either by payment or by recording a lien release bond in the mannerspecified in California Civil Code Section 8424 or any successor statute.
9. Notices. All notices under this Agreement shall be made in accordance with Exhibit A. Notices must, unless otherwise specified herein, be in writing and may be delivered by hand delivery, first class United States mail, overnight courier service, or e-mail. Notice provided in accordance with this Section 9 will be deemed given as follows:
(a) Notice by e-mail or hand delivery will be deemed given at the close of business on the day actually received if received during business hours ona business day, and otherwise will be deemed given at the close ofbusiness on the next business day. (b) Notice by overnight United States mail or courier service will be deemed given on the next business day after such Notice was sent out; (c) Notice by first class United States mail will be deemed given two (2) business days after the postmarked date;
Notices will be effective on the date deemed given, unless a different date for theNotice to go into effect is stated in another section of this Agreement.
A Party may change its designated representatives, addresses and other contact information by providing Notice of same in accordance herewith.
All Notices, requests, invoices, statements, or payments related to this Agreement must clearly identify the fact, circumstance, request, issue, dispute or matter to which such Notice relates.
10. Limitation of Liability. In no event shall either Licensor or SCE or any of their employees, contractors, agents or representatives be liable to the other Party for any indirect, consequential, special, incidental, or punitive damages under anytheory of liability, including, but not limited to, tort, contract, breach of warranty,or strict liability in connection with this Agreement. In addition, the aggregateamount of each Party’s liability or damages to the other Party in connection withthis Agreement shall not exceed Three Thousand Dollars ($3,000). This Section 10 shall survive the expiration or earlier termination of this License Agreement.
11. Indemnity. Licensor shall indemnify, defend and hold harmless SCE and its governing body, officers, agents, and employees from and against all third-Partyclaims, losses, actions, demands, damages, costs, expenses (including, but not limited to, reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent such Claims result from Licensor’s negligence or intentional orunlawful misconduct related to Licensor’s performance of this Agreement. This Section 11 shall survive the expiration or earlier termination of this License Agreement.
12. Insurance. Throughout the Term of this Agreement, SCE, and to the extent not covered by SCE’s insurance policies, its contractors and subcontractors, shall, at its own expense, provide and maintain in effect the insurance policies and limits of coverage specified in this Section 12, and such additional coverage as may be required by applicable laws, with insurance companies which are authorized to dobusiness in the state in which the services are to be performed and which have anA.M. Best’s Insurance Rating of not less than A-, VII. The insurancerequirements specified herein do not in any way limit or relieve SCE of anyobligation assumed elsewhere in this Agreement, including its defense and indemnity obligations.
(a) Workers’ Compensation Insurance with the statutory limits required by the state having jurisdiction over SCE’s employees. Such insurance shall include a waiver or subrogation in favor of Licensor;
(b) Commercial General Liability Insurance covering all operations by or on behalf of SCE arising out of or connected with this Agreement, including coverage for bodily injury and property damage. Such insurance shall bear a per occurrence limit of One Million dollars ($1,000,000), and annualaggregate of Two Million dollars ($2,000,000). Such insurance shall (1)name Licensor as an additional insured, (2) include a waiver or subrogation in favor of the other Party, and (3) contain standard crossliability and severability of interest provisions. (c) Commercial Automobile Liability Insurance covering bodily injury and property damage with a combined single limit of One Million dollars ($1,000,000) per occurrence. Such insurance shall cover liability arising out of SCE’s use of all owned (if any), non-owned and hired vehicles, including trailers or semi-trailers, in the performance of this Agreement. (d) Certificates of Insurance.
Within fourteen (14) days after the Effective Date, and within fourteen(14) days after coverage is renewed or replaced, SCE shall furnish toLicensor certificates of insurance evidencing the coverage required in this Section 12. All deductibles and self-insured retentions applicable to the insurance in Section 12 shall be paid by SCE. SCE, or its insurance broker or agent, shall provide Licensor with at least thirty (30) days’ prior written Notice in the event of cancellation of coverage. Receipt of documents that do not comply with the requirements stated herein, shall not limit orrelieve SCE of the duties and responsibility of maintaining insurance incompliance with the requirements in this Section 12 and shall notconstitute a waiver of any of the requirements in this Section 12. (e) SCE may self-insure the insurance requirements of this Section and shall provide proof of self-insurance.
13. Miscellaneous.
(a) Governing Law. This Agreement shall in all respects be interpreted, enforced, and governed by and under the laws of the State of California. (b) No Waiver. Any waiver with respect to any provision of this Agreement shall not be effective unless in writing and signed by the Party against whom it is asserted. The waiver of any provision of this Agreement by a Party shall not be construed as a waiver of a subsequent breach or failure of the same term or condition or as a waiver of any other provision of thisAgreement. (c) Counterparts. This Agreement may be executed in identical counterpart copies, each of which shall be an original, but all of which taken together shall constitute one and the same agreement.
(d) Authority. Each Party to this Agreement warrants to the other that it has the right and authority to enter into and to perform its obligations under this Agreement, without the consent of any third Party, and that the person signing below is authorized to bind such Party.
(e) Rules of Construction. All references to time shall be in Pacific Daylight Time when California observes Daylight Savings time and Pacific StandardTime otherwise, unless otherwise stated. (0 Exhibits and Entire Agreement. Exhibit A attached to this Agreement are a part hereof and incorporated herein by this reference. This Agreement maynot be amended, except by a written agreement executed by both Parties. (g) Electronic Signatures. This Agreement may be executed by electronic signatures (e.g., using DocuSign or e-SignLive) or signatures transmitted in portable document format (“PDF”), and copies of this Agreement executed and delivered by means of electronic or PDF signatures shall have the sameforce and effect as copies hereof executed and delivered with original manually executed signatures. The Parties may rely upon electronic andPDF signatures as if such signatures were manually executed originals andagree that an electronic or PDF signature page may be introduced intoevidence in any proceeding arising out of or related to this Agreement as if it were an original manually executed signature page.
(h) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the heirs, personal representatives, successors, and assigns of each Party.
(i) Entire Agreement. This Agreement supersedes all previous oral and written agreements between and representations by or on behalf of theParties and constitutes the entire agreement of the Parties with respect to the subject matter hereof. This Agreement may not be amended, except by a written agreement executed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date set forth below each signature, effective upon the Effective Date first written above.
LICENSEE LICENSORSOUTHERN CALIFORNIA EDISON CITY OF AVALON, CA.
COMPANY, a California corporation
By:
_______________________
By:
_________________________
Name: David M. Maistros
Name: Robert A. Carbajal
Title: City Manager
Title: Senior Manager, Customer PSPS
Compliance & Strategy Date:
______________________________
Date:
EXHIBIT A
NOTICES
CITY OFA VALON (“Licensor”) SOUTHERN CALIFORNIA EDISON
COMPANY (“SCE”)
Unless otherwise specified, all Notices are Unless otherwise specified, all Notices aredeemed provided in accordance with deemed provided in accordance with Section 9 if made to the address and phone Section 9 if made to the address and phone numbers provided below: numbers provided below:
Contract Administration: Contract Administration:
Attn: David Maistros, City Manager Attn: Calvin On
Street: 410 Avalon Canyon Road/POB 707 Street: 4777 Irwindale Avenue City: Avalon, CA 90704 City: Irwindale, CA, 91010
Phone: (310) 510-0220, ext. 121 Phone: (626) 302-8467e—mail: dinaistros(ucitvo lavaloncorn e—mail: calvifl.on(a)sce.cornPayments and Invoicing: Payments and Invoicing:
Attn: AP Desk Attn: Calvin On
Street: 410 Avalon Canyon Road/POB 707 Street: 4777 Irwindale Avenue City: Avalon, CA 90704 City: Irwindale, CA, 91010
Phone: (310) 510-0220 Phone: (626) 302-8467e-mail: pdeskciyoCavalon.com e-mail: ca1vin.onsce.comACH Routing Information: N/A ACH Routing Information: N/AFinancial Institution:Branch:Address:City, State, & Zip:
Routing N urn ber:
Account Number:Wire Transfer: N/A Wire Transfer: N/ABank: Bank:Branch: Branch:ABA: ABA:ACCT: ACCT:Public Safety Event Notification Public Safety Event NotificationAttn: David Maistros, City Manager Attn: Priscilla OrtizPhone: (310) 510-0220, ext. 121 Phone: (626) 419-6973e—mail: dmaisiros(acitvofavaloncoin e—mail: priscillaortiz(ti;sce.corn with a copy to: with a copy to:
Attn: Michael Alegria, Fire Chief Attn: Calvin One—mail inalci ia a cit ofa\ a]on coni e—mail caR Lii n a scL corn
CITY OF AVALON CITY COUNCIL
MEETING DATE: September 3, 2024 AGENDA ITEM: _______ ORIGINATING DEP: Administration CITY MANAGER: ‘JL PREPARED BY: Devin Hart, Management Analyst
Robert Green law, CIP Director
SUBJECT: Cost Share Agreement with Southern California Edison regarding Five Corners Comprehensive Pedestrian Project
RECOMMENDED ACTION(S): Authorize the City Manager to negotiate and execute an agreement with Southern California Edison establishing the terms and conditions of cost sharing for water utility and gas utility relocations and replacements associated with the Five Corners Comprehensive Pedestrian Project.
REPORT SUMMARY: The City is finalizing the construction process for the Five Corners Comprehensive Pedestrian Project. The project is part of a “Complete Streets” initiative that will make improvements to the intersections of Tremont Street, Avalon Canyon Road, Country Club Drive and Sumner Avenue. Project improvements include new sidewalks, safer crossing sections, traffic calming, landscape beautification and wayfinding.Southern California Edison (SCE) owns and operates significant water and gas distribution system infrastructure within the project area. Given that the City’s project includes street improvements and structural upgrades that both directly and indirectly impact SCE’s infrastructure, SCE proposes to relocate and replace impacted systems within the project area as part of the City’s project.
Both the City and SCE will benefit from a single specification and single contract advertised and awarded by the City to execute the total scope of work outlined for construction.
A request for proposals for this project was circulated on July 3, 2024. A non-mandatory, pre bid conference was conducted on July 24. The bid deadline is September 4, 2024 at 3 p.m.
Once bids are opened and a low-bidder is identified, the City Manager and SCE will negotiate and enter into a Cost-Share Agreement that specifies the SCE contribution amount base on the contract’s bid schedule of values.
The City will be responsible for the costs associated with site work, grading, storm drain, power/communications systems, salt water system, sewer improvements and traffic control.
SCE will be responsible for the costs of new potable water and gas infrastructure. Each entity will inspect the scope of work within their purview, and if it is deemed satisfactory, sign off on all completed contractor work.
City Staff anticipate providing City Council a recommendation to award a contract for this project at the September 17, 2024. Construction is scheduled to begin November 2024.
FISCAL IMPACTS: Contingent on bid schedule of values. The project is included in the Capital Improvement Program - Project #180003, Account #10575-6547.
GOAL ALIGNMENT: Infrastructure.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The City will not have an agreement to share costs with SCE for needed improvements to water and gas systems within the Five Corners Comprehensive Pedestrian Project area.
FOLLOW UP ACTION: Negotiate and execute an agreement.
ADVERTISING, NOTICE AND PUBLIC CONTACT: Pursuant to the Brown Act.
ATTACHMENTS:
1. Draft Cost Sharing Agreement with engineer estimate
COST-SHARING AGREEMENT
THIS COST-SHARING AGREEMENT (this “Agreement”) is made as of [INSERT DATE] (the “Effective Date”), by and between (i) the City of Avalon (the “City”). and (ii) Southern California Edison (SCE) regarding the first phase of the Five Corner Comprehensive Pedestrian Project, referred to as the Five Corner Site Preparation andUtility Project (the “project”).
THE PARTIES ENTER THIS AGREEMENT on the basis ofthe following facts, understandings and intentions:
A. The parties signed a Memorandum of Understanding (MOU) dated Nov. 29, 2021, expressing their mutual interest in the project and commitment to cooperate and share costs in executing the project.
B. Subsequent to writing the MOU, the design has been completed under both parties and the City is ready to post the project for bid and intends to award a contract to the low bidder in accordance with California publiccontracting laws.
C. The parties desire to provide a more detailed agreement that specifies the rules by which costs will be shared and payments made by each party.
NOW, THEREFORE, in consideration of tile premises and the mutual covenants of the parties hereto, and for other good arid valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
I. Shared Costs.
a. As stated in the MOU, the City will be responsible for the sitework, grading, storm drain, power/communication systems, saltwater system, sewer improvements and traffic control; and SCE will be responsible for the cost of new potable water and gas infrastructure. b. The bid documents include a Bid Schedule that requires bidders to complete the following table.
The values included in each cost category represent the installed cost of each item. The grayedout data represents the engineer’s estimate for each item and is not included in the biddocuments:
ITEM ESTIMATED UNIT TOTAL CONSTRUCTION ITEMS UNIT NO. QUANTITY PRICE COST Genera! Itenis
A Mobilization I LS
B Clearing, Grubbing and Demolition 400 CY
C Contract and General Conditions I LS
Requirements
D ITEM D - Street Rehabilitation SubTotal $1,183,600
Dl Grind Existing Pavement 2-Inch Deep 25,000 SF
D2 Pavement 2-Inch Overlay 25,000 SF
D3 Curb & Gutter 6-Inch SPPWC 120-2 950 LF
D4 Curb 6-Inch or per plan SPPWC 120 900 LF
D5 Pavement 3.5-Inch AC over 6-Inch CAB 700 SF
D6 Concrete Bus Bay 500 SF
D7 Cross Gutter SSPWC 80 SFD8 Rolled Curb 24’ Wide 160 LED9 Sidewalk SPPWC I 13-2 8,000 SF Dl0 Cone Driveway 350 SF
Dl I Striping & Signage I LSD12 ADA Ramps (form work & yellow pad) 10 EA E ITEM E -City Parking Lot & Dev. Pad SubTotal $300,500 El Earthwork 500 CY —______E2 Pavement 3” over 4” CMB 6,600 SF E3 Cone Curb 6’ High 250 LFE4 Cone Curb and Gutter (6”x24’) 40 LFES Sidewalk 600 SFE6 Striping and Signage I LS E7 Catch Basin 3x3 I EAE8 15-Inch HDPE Pipe 10 LE
E9 Landscaping I LF
ElO Electrical Conduit EV Charging Stations I LS
F Item F: Electrical Infrastructure SubTotal $411,300.00 Fl Electrical Demolition I LSF2 Transformer Pad (48”x54’) 1 EA F3 Concrete handholes (17’x30”x24’) 5 EAF4 Traffic Rated Concrete Pullbox (3x5’x4’) S EAES LT Traffic Concrete Pulibox (2’6”x4’x3’6”) I EAP6 Meter Cabinets 2 EA —________ F7 Asphalt Cutting 3,000 LFF8 Ductbanks
a. Section A 200 LFb. Section B 1 10 LF
c. Section C 60 LFd. Section D 50 LFe. Section E 30 LFf. Section F 80 LF g. Section G 100 LF
h. Section H 30 LF
i. Section J 450 LF
j. Section K 30 LF
k. Section L 75 LF
I. Section M 90 LF
m. Section N 125 LFn. Section P 120 LF
F9 Grounding I LS
FlO Cables, Wiring and Equipment by SCE I LSFl I Cut Over I LS G ITEM G - Storm Drain & Utility SubTotal $2,068,550
Improy.
GI Utility adjustments (Water, Gas, etc) 1 LSG2 Twin 30-Inch HDPE Pipe 410 LFG3 Trapezoidal Channel 350 LF G4 Inlet and Outlet Structures 2 EA
G5 PreCast RCBox Conduit (3x7) 24 LF
G6 Transition Channel (RCB to TrapChan) 20 LF
G7 Guard Rail at new Road crossing 40 LFG8 Temp Inlet Catch Basin I EA G9 12-Inch HDPE Pipe 150 LF
G10 18-Inch HDPE Pipe 90 LF
G I I Additional Utilities at Road Crossing I LS
H ITEM H -Roundabout, Landscaping & Subtotal $1,678,500 Lighting
I-Il Conc Banding for Payers in Roundabouts 800 LFH2 Mountable Curb @ Roundabout perimeters 175 LF H3 Pavement Traffic & Crosswalk Payers 17,000 SFH4 Decorative Pavement Roundabouts (Art) 4,300 SFH5 Landscaping/Irrigation I LS H6 Lighting I LS
J ITEM J- SCE Water & Natural Gas Subtotal $376,450
ii 12-Inch Solid HDPE Pipe (above ground) 580 LFJ2 12-Inch Solid HDPE Pipe (buried, 4 mm 135 LF cover)
13 10-Inch Water Main (high pressure) 165 LFJ4 8-Inch Water Main (low pressure) 245 LFiS 6-Inch Water Main & Service (low 10 LF pressure)
J6 10-Inch Water Valve 8 EAJ7 8-Inch Water Valve 2 EAJ8 6-Inch Water Valve 2 EA 19 4-Inch Water Valve 4 EA
J 10 CLA Valve Vault (4x6’x 5deep) I EA
JI I Water Meter and Service Connections 3 EA112 SCE Water Tie-in Support and CutOver I LS113 4-Inch Gas Main 240 LFJ14 1.25-Inch Gas (40 LF) & 2-Inch Gas (10 50 LF LF)
J IS Gas Meter and Service Connections 3 EA116 4-Inch Gas Valve 4 EAJ 17 1 .25-Inch Gas Valve & 2-Inch Gas Valve 2 EAJ18 Anode 5 EAJ19 SCE Gas Tie-in Support and CutOver I LS J20 Gas Hot Tap Requirements I LS
c. The values in the Bid Schedule submitted by the low-bid contractor will be the basis for each party’s obligation under this contract. The City is responsible for the costs of items D, E, F, G and H. SCE is responsible for item J. Items A, B, and C will be divided between parties based onthe proportion of each party’s responsibility on the other items — i.e. the City pays(D+E-1-F-J-G+H)/(D+E+F+G+H+J) percent of items A, B and C, and vice versa for SCE. d. Any Extra Work identified in accordance with the contract will be distributed between the City and SCE based on each party’s responsible share for the extra work scope. For example, if thechange is 100% attributed to the gas valves, SCE will bear 100% of the cost. Before directingany change orders with the contractor that involves SCE’s obligations, The City will get SCE’sconcurrence on all Extra Work orders.
2. Reimbursement of Shared Costs.
a. Since the contractor is under contract with the City, in accordance with the contract, the City will pay the contractor monthly based on submitted pay estimates. b. SCE will receive a copy of each monthly pay estimate provided by the contractor. c. The City will send an invoice quarterly (January, April, July, October) to SCE for payment. The invoice will include the pay estimates covered during the previous three months and detail the final calculated amounted owed the City by SCE.
d. SCE will reimburse the City by check or other approved means within 45 days of invoice submittal.
e. The final payment will be annotated as such on the invoice, thus completing the payment obligation of SCE.
3. Books and Records.
The City shall maintain appropriate and accurate books of account and records relating to transactionsbetween SCE and the City relating to this agreement.
4. Term.
This Agreement shall commence on the Effective Date and shall be coterminous with the final payment from SCE to the City. The agreement may be modified or terminated only by mutual consent of SCE and the City.
5. Binding Nature of Agreement Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respectiveheirs, personal representatives, successors and assigns as provided in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date, coincident with the final signed date below.
For the City of Avalon: For SCE:
David Maistros Date Date
City Manager Catalina Utilities ManagerCity of Avalon Southern California Edison
CITY OF AVALON CITY COUNCIL
MEETING DATE: September 3, 2024 AGENDA ITEM: _______ ORIGINATING DEP: Administration CITY MANAGER: _______ PREPARED BY: Robert Greenlaw, CIP Director Devin Hart, Management Analyst
SUBJECT: Engineered Solution Group On-Call Engineering Services Contract Increase for Calendar Year 2024
RECOMMENDED ACTION(S): Authorize the City Manager to execute an amendment to the City’s On-Call Engineering Professional Services Agreement with Engineered Solution Group (ESG), increasing the contracted maximum cumulative total for calendar year 2024 by $400,000.
REPORT SUMMAR’Y: On January 7, 2020, the City Council authorized the City Manager to contract professional services for on-call engineering with Engineered Solution Group (ESG) for a not to exceed annual amount of $500,000. The original contract term was from January 8, 2020 to December 31, 2023, with two additional one-year renewal terms. On August 15, 2023, the City Council authorized a two year extension of the contract agreement as well as an increase in the maximum annual cumulative total for all services from $500,000 to $800,000 annually. The City has been satisfied with the services provided by ESG.
The City has several Capital Improvement Program (CIP) projects and on-going maintenance needs that require technical areas of service. Due to budget restrictions associated with COVID-19, the City delayed many of these projects. However, with the return of funding resources, the City is currently mobilized to complete a number of projects in the near future,including, but not limited to:
- Cabrillo Mole Phase II Renovation- Five Corners Pedestrian Project- South Beach Sea Wall Repair - Pebbly Beach Road Revetment Repair
- Workforce Housing Development- Comprehensive City Building Roofing Repair/Replacement Project The City utilizes the services of ESG for various civil engineering services including, but not limited to design, review, coordination, administration and construction engineering and technical support of day-to-day Public Works operations of City Staff and Capital Improvement Projects.
Many of the City’s projects have a specific timeline. In some cases, the need for services is of limited scope and timeline, making it beneficial from a cost and timing perspective to have someone “on-call.” Alternatively, a request for proposals for technical areas of engineering services could be solicited for each project and task. This option requires additional time and administrative preparation for each contract and can be cost prohibitive for certain projects that have specific timelines or require immediate services.
In order to continue to efficiently move CIP projects, and other maintenance programs, forward, City Staff recommend the City Council authorizes the City Manager, or his designee, to execute an amendment to the City’s On-Call Engineering Professional Services Agreementwith Engineered Solution Group, increasing the contracted maximum cumulative total for calendar year 2024 by $400,000.
If approved, this one-time contract increase will not result in additional budget spend. Task orders for on-call services are driven by the approved budget. Annually funds cannot be spent unless they are a part of an approved, budgeted, project or account or receive additional City Council approval in accordance with the approved budget and fiscal policies of the budget.
Task orders related to grant funds may be eligible for reimbursement or payment throughgrants, and are accounted for in the grant project’s budget.
In calendar year 2025, the budget for this contract will revert to the $800,000 sum.
FISCAL IMPACTS: Not to exceed $1,200,000 for all task orders in calendar year 2024 for all approved on-call engineer services. Funding will be allocated to the appropriate budgeted project.
GOAL ALIGNMENT: Efficient operations. Fiscal responsibility.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The City will need to procure the engineering related services for each project and task order which may take more time and cost additional funds.
FOLLOW UP ACTION: Implement City Council direction.
ADVERTISING, NOTICE AND PUBLIC CONTACT: Pursuant to the Brown Act.ATTACHMENTS:
1. Professional Services Agreement.
2. First Amendment.
CITY OF AVALON
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this jj day of January, 2020, by and between the City of Avalon, a municipal corporation organized under the laws of the State of California with its principal place of business at 410 Avalon Canyon Road, Avalon, California 90704 (“City”) and Engineered Solutions Group, a S-corporation, with its principal place ofbusiness at 1142 South Diamond Bar Boulevard, Suite 226, Diamond Bar, CA 91765(“Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”
2. RECITALS.
2.1 Consultant.Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing engineering services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for the on-call engineering services project (“Project”) as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional engineering consulting servicesnecessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, andperformed in accordance with, this Agreement, the exhibits attached hereto and incorporatedherein by reference, and all applicable local, state and federal laws, rules and regulations.
Additionally, Consultant shall comply with all Federal requirements applicable to the Services as set forth in Exhibit “A-I” attached hereto and incorporated herein by this reference.
3.1.2 Term. The term of this Agreement shall be from January 1, 2020 to December 31, 2023, unless earlier terminated as provided herein The City shall have theunilateral option, at its sole discretion, to renew this Agreement automatically for no more than two additional one-year terms.*] Consultant shall complete the Services within the term of this (BB&K 2019)
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Agreement, and shall meet any other established schedules and deadlines.
3.2 Responsibilities of Consultant.
3.2.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be underConsultant’s exclusive direction and control. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultant’s officers, employees, or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall beresponsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disabilityinsurance, and workers’ compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by reference. Consultant represents that ithas the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant’s conformance with the Schedule, City shall respond to Consultant’s submittals in a timely manner. Upon request of City, Consultant shallprovide a more detailed schedule of anticipated performance to meet the Schedule ofServices.
3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Shouldone or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. The key personnel for performance of this Agreement areas follows: Michael Thomas, Director of Engineering, Angelo Reginaldo, Principal Civil Engineer, Aristotle Bondoc, Principal Civil Engineer, JR Rhoads, Principal Water)WastewaterEngineer, Gener Detera, Principal Electrical Engineer. (BB&K 2019)
3.2.5 City’s Representative. The City hereby designates Robert Greenlaw, Public Works Director, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City’s behalf and to execute all necessary documents which enlarge theScope of Work or change the Consultant’s total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from anyperson other than the City Manager, City’s Representative or his/her designee.
3.2.6 Consultant’s Representative. Consultant hereby designates Michael Thomas, Director of Engineering, or his/her designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.
3.2.8 Standard of Caret Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standardsgenerally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services,and that such licenses and approvals shall be maintained throughout the term of this Agreement.
As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with thestandard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who failsor refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.9 Period of Performance. Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”).
Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agreesthat if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Project Milestones developed pursuant to provisions of this Agreement, it is (BB&K 2019)
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understood, acknowledged and agreed that the City will suffer damage.
3.2.10 Laws and Regulations; Employee/Labor Certification. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If Consultant performs any work knowing it to be contrary to such laws, rules and regulations, Consultant shall be solely responsible for all costs arising therefrom, Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees, agents, and volunteers free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.2.10.1 Employment Eliciibility; Consultant. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Consultant.Consultant also verifies that it has not committed a violation of any such law within the five (5)years immediately preceding the date of execution of this Agreement, and shall not violate anysuch law at any time during the term of the Agreement. Consultant shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United StatesDepartment of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Consultant shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses relatedto Consultant’s compliance with the requirements provided for in Section 3.210 or any of its subsections.
3.2.10.2 Employment Eligibility; Subcontractors, Consultants, Subsubcontractors and Subconsultants. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, consultants, sub-subcontractors and suboonsultants performing any work relating to the Project or this Agreement to make the sameverifications and comply with all requirements and restrictions provided for in Section3.2.10.1.
3.2.10.3 Employment Eligibility: Failure to Comply. Each person executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer
of Consultant, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, subsubcontractors or subconsultants to meet any of the requirements provided for in Sections
3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Consultant under Section
3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements.
3.2.10.4 Eciual Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee (B8&K 2019)
or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related toinitial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City’s Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.2.10.5 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirementsimposed by the South Coast Air Quality Management District (SCAQMD) and/or California AirResources Board (CARB). Although the SCAQMD and CARB limits and requirements are morebroad, Consultant shall specifically be aware of their application to “portable equipment”, which definition is considered by SCAQMD and CARB to include any item of equipment with a fuelpowered engine. Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its sub-consultants, or others for whom Consultantis responsible under its indemnity obligations provided for in this Agreement.
3.2.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultantshall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions, where applicable, shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to preventaccidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of allsafety measures.
3.2.11 Insurance.
3.2.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured allinsurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.2.11.2 Types of Insurance ReQuired. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligationsunder such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(B&K 2019)
(A) Commercial General Liability: Commercial General Liability insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 0001, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability):
(3) products/completed operations liability: or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement.
(B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Symbol 1), or the exact e uivalent, covering bodily injury and property damage for all activities with limits of not less _______________ combined limit for each occurrence. IfConsultant does not own any company vehicles or may not be able to purchase a Business
Automobile Insurance Policy, the requirement may be satisfied by providing either of the following:
(1)
a Personal Automobile Liability policy for the Consultant’s own vehicle stipulating “Automobile Liability Insurance with
a limit of not less than $1,000,000 each accident”: or (2) a non-owned
auto endorsement to the Commercial General Liability policy if Consultant uses vehicles of others (e.g., vehicles of employees).
(B) 1 Where the services to be provided by Consultant under this Agreement are design professional services as that term is defined under Civil Code Section 2782.8, Consultant agrees to indemnify, defend and hold harmless, the City, its officers, officials, employees and volunteers from any and all claims, demands, costs or liability that actually or allegedly arise out of, or pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant and its agents in the performance of services under this contract, but this indemnity does not apply to liability for damages for bodily injury, property damage or other loss, arising from the sole negligence, active negligence or willful misconduct by the City, its officers, official employees, and volunteers. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, then Consultant’s indemnification and defense obligations shall be reduced in proportion to the established comparative liability of the indemnified party and shall not exceed the Consultant’s proportionate percentage of fault.
As respects all acts or omissions which do not arise directly out of the performance of design professional services, including but not limited to those acts or omissions normally covered by general and automobile liability insurance, Consultant agrees to indemnity, defend and hold harmless the City, its officers officials, employees and volunteers for an against any claim,demands, losses, liability of any kind or nature arising out of or in connection with the Consultant’s performance or failure to perform under the terms of this contract, excepting those which arise out of the active negligence, sole negligence or willful misconduct of the City, its officers, officials, employees and volunteers
(C) Workers’ Compensation: Workers’ Compensation
Insurance, as required
b the State of California and Employer’s Liability Insurance with a limit of
not less than __________ per accident for bodily injury and disease. (D) Professional Liability (Errors
& Omissions): Professional
Liability insurance or Errors
& Omissions insurance appropriate to Consultant’s profession with limits of not less than Covered professional services shall specifically include all (BB&K 2019)
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work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution,testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreementand continuous coverage will be maintained or an extended reporting period will be exercised fora period of at least five (5) years from termination or expiration of this Agreement. (E) Pollution Liability: Pollution Liability insurance covering all-of the-consultant’s operations to include onsite and offsite coverage for bodily injury (ineleding-4eath ar4-+ental an uish, reperty darria e, defense costs and cleanup casts with limits—of not less than . The policy—shall--contain no
endorsements or provisions limiting contractual liability or coverage-for cross liability of claims or 6UitS by one insured against another. If coverage is written on a claims made basis, the retroactive date shsll precede tho effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised—for a period of at least three (3) years from termination or expirption of this Agreement.
3.2.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with (BB&K 2019)
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regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to “ongoing operations”; (2) exclude “contractual liability”; (3) restrict coverage to “sole” liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coveragereduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (8) Automobile Liability. (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-paymentof premium. (C) Professional Liability (Errors & Omissions): (1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowedfor non-payment of premium. (2) Contractual Liability Exclusion Deleted: This insurance shall include contractual liability applicable to this Agreement. The policy must “pay on behalf of’ theinsured and include a provision establishing the insurer’s duty to defend. (D) Workers’ Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day writtennotice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that theinsurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.2.11.4 Primary and Non-Contributinci Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any otherinsurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or beendorsed to contain such provisions.
3.2.11.5 Waiver of Subrociation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specificationsto waive their right of recovery prior to a loss. Consultant hereby waives its own right of recoveryagainst City, and shall require similar written express waivers and insurance clauses from eachof its subconsultants.
3.2.11.6 Deductibles and Self-Insured Retentions. Any deductible or self insured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and voiunteers in the same manner and to the same extent as theywould have been protected had the policy or policies not contained a deductible or self-insured retention.
(BB&K 2019)
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3.2.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shalldeliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policyshall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing thatsuch insurance coverage has been renewed or extended shall be filed with the City. If suchcoverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.2.11.8 Accernability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best’s rating of no less than A:Vll and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or anyfederal law.
3.2.11.9 Enforcement of Agreement Provisions (non estopqol).
Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.2.11.10 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
3.2.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by theCity, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceledand not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withholdamounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (BB&K 2019)
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(D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant fromliability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.2.11.12 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant’s policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these lnsurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant’s policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant tocommence work on any subcontract relating to this Agreement until it has received satisfactoryevidence of subconsultant’s compliance with all insurance requirements under this Agreement, tothe extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
3.2.12 Water Quality Management and Compliance.
3.2.12.1 Storm Water Management. Storm, surface, nuisance, or other waters may be encountered at various times during the Services. Consultant hereby acknowledges that it has investigated the risk arising from such waters, and assumes any and all risks and liabilities arising therefrom.
3.2.12.2 Compliance with Water Quality Laws, Ordinances and Regulations. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that mayimpact, or be implicated by the performance of the Services including, without limitation, allapplicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, at seq.); the California PorterCoIogne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, àr other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges.
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3.2.12.3 Standard of Care. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in Section 3.2.12.2 of this Agreement. Consultant further warrants that it, its employees and subcontractors have or will receive adequate training, as determined by the City, regarding theserequirements as they may relate to the Services.
3.2.12.4 Liability for Non-compliance.
(A) Indemnity: Failure to comply with laws, regulations, and ordinances listed in Section 3.2.14.2 of this Agreement is a violation of federal and state law.
Notwithstanding any other indemnity contained in this Agreement, Consultant agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur fornoncompliance with the laws, regulations, and ordinances listed above, arising out of or in connection with the Services, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers.
(B) Defense: City reserves the right to defend any enforcement action or civil action brought against the City for Consultant’s failure to comply with any applicable water quality law, regulation, or policy. Consultant hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and the relevant enforcement entity.
(C) Damages: City may seek damages from Consultant for
delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in Section 3.2.12.2 of this Agreement, or any other relevant water quality law, regulation, or policy.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forthin Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed $500,000 of executed task orders per fiscal year, ($500,000) without written approvalof the City Council or City Manager as applicable. Extra Work may be authorized, as describedbelow, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, orsince the start of the subsequent billing periods, as appropriate, through the date of the invoice.City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputedand approved charges thereon. If the City disputes any of Consultant’s fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed forany (BB&K 2019)
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expenses unless authorized in writing by City, or included in Exhibit “C” of this Agreement.
3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, “Extra Work” means any work whichis determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.3.5 Rate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set forth in Exhibit “C” may be adjusted each year at the time of renewal as set forth in Exhibit “C.”
3.4 Labor Code Requirements.
34.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailingwage rates and the performance of other requirements on “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shallprovide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Servicesavailable to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the project site. It is the intent of the parties to effectuate therequirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections tothe fullest extent required by law. Consultant shall defend, indemnify and hold the City, itsofficials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition,installation, or repair work, or a public works project of over $15,000 when the project is formaintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the project and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR, Any stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employeesand agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant. (BB&K 2019)
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3.4.3 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation orto undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Accounting Records.
3.5.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normalbusiness hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.6 General Provisions.
3.6.1 Termination of Acireement.
3.6.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof,at least seven (7) days before the effective date of such termination. Upon termination, Consultantshall be compensated only for those services which have been adequately rendered to City, andConsultant shall be entitled to no further compensation, Consultant may not terminate this Agreement except for cause.
3.6.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide aN finished or unfinished Documents andData and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.6.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner asit may determine appropriate, services similar to those terminated.
3.6.2 Delivery of Notices. 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:
Consultant: Engineered Solutions Group
1142 South Diamond Bar
Boulevard, Suite 226Diamond Bar, CA, 91765
ATTN: Michael Thomas
City: City of Avalon
410 Avalon Canyon Road
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Avaon, CA 90704
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ATTN: Robert Greenlaw, Public Works Director
Such notice 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 itsapplicable address. Actual notice shall be deemed adequate notice on the date actual noticeoccurred, regardless of the method of service.
3.6.3 Ownership of Materials and Confidentiality.
3.6.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans,specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to beprepared by Consultant under this Agreement (“Documents & Data”). All Documents & Data shallbe and remain the property of City, and shall not be used in whole or in substantial part byConsultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount, Consultantshall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. in addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort tonotify City and provide City with the opportunity to obtain the documents. 3,6.3.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants thatConsultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by theCity.
3.6.3.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, pràvided that any such use not within the purposes intended by this Agreementor on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project,it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmlessConsultant and its officers, directors, agents and employees from claims arising out of thenegligent use or re-use of the Documents & Data on such other project. Consultant shall beresponsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City (BB&K 2019)
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upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, aparty for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
3.6.3.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless,pursuant to the indemnification provisions of this Agreement, for any alleged infringement of anypatent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including anymethod, process, product, or concept specified or depicted.
3.6.3.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, writteninformation, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not useCity’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.6.3.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information (“Proprietary Information”) unless the City’s legal counseldetermines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.Consultant shall have five (5) working days after receipt of the Release Notice to give City writtennotice of Consultant’s objection to the City’s release of Proprietary Information. Consultant shallindemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of the Objection Notice unless either: (1) Consultant fails to fully indemnify, defend (with City’s choice of legal counsel), and hold City harmless from any legalaction brought to compel such release; and/or (2) a final and nonappealable order by a court ofcompetent jurisdiction requires that City release such information.
3.6.4 Cooperatio Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary,appropriate or convenient to attain the purposes of this Agreement.
3.6.5 Attorney’s Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney’s fees and all other costs of such action.
3.6.6 Indemnification. To the fullest extent permitted by law, Consultant shall (BB&K 2019)
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defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to propertyor persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees,subcontractors, consultants or agents in connection with the performance of the Consultant’sServices, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant’sobligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant,and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’sproportionate percentage of fault.
3.6.7 Entire Apreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations,understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
3.6.8 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County.
In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions,Consultant must comply with the claim procedures set forth in Government Code sections 900 et ci prior to filing any lawsuit against the City. Such Government Code claims and anysubsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.6.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.6.10 City’s Ripht to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
3.6.11 Successors and Assicins. This Agreement shall be binding on the successors and assigns of the parties.
3.6.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and anyassignees,hypothecates or transferees shall acquire no right or interest by reason of such attempted (BB&K 2019)
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assignment, hypothecation or transfer.
3.6.13 Construction: References: Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall beconstrued simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultantsof Consultant, except as otherwise specified in this Agreement. All references to City include itselected officials, officers, employees, agents, and volunteers except as otherwise specified in thisAgreement. The captions of the various articles and paragraphs are for convenience and easeof reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.6.14 Amendment: Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.15 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.
3.6.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.6.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisionsshall continue in full force and effect.
3.6.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solelyfor Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other considerationcontingent upon or resulting from the award or making of this Agreement. Consultant furtheragrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.6.19 Authority to Enter Açjreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the indMduals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.6.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
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3.7 Subcontracting.
3.7.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to allprovisions stipulated in this Agreement. [SiGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO
PROFESSIONAL SERVICES AGREEMENT BY AND
BETWEEN THE CITY OF AVALON AND ENGINEERED
SOLUTIONS GROUP
CITY OF AVALON Michael Thomas, P.E.
Engineered Solutions Group
By:
________________________By: ____________________
Denise A. Radde Michael Thomas
City Manager Chief Executive Officer
Attest:
City CIork\O.e
Approved as to Form:
Best Best & Krieger LLP
City Attorney
(BB&K 2019>
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SIGNATURE PAGE TO
PROFESSIONAL SERVICES AGREEMENT BY AND
BETWEEN THE CITY OF AVALON AND ENGINEERED
SOLUTIONS GROUP
CITY OF AVALON Michael Thomas P,E.
Engineered Solutions Group
By:
_______By: ______ Denise A. Radde o Michael Thomas
City Manager Chief Executive Officer
Attest:
City Clerk\0I
Approved as to Form:
Best Best & Krieger LLPCity Attorney
(BB&K 2019)
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EXHIBIT “A”
SCOPE OF SERVICES
The City of Avalon is requesting proposals for On-Call Engineering Services (“Services”). The selected consultant will perform the services outlined herein under the general direction of theCity’s Public Works Director. It is anticipated that the contract will commence January 1, 2020 for a three (3) year term. The cumulative dollar amount of executed task orders shall not exceed $500,000 per fiscal year. At the sole discretion of the City, an on-call contract may be extended for up to two (2) additional one (1) year terms following the close of the initial three (3) year term.
In general, the consultant shall perform CMI Engineering services, signed and stamped by a registered Civil Engineer in the State of California, on an “on-call” or “as-needed” basis for various civil engineering services including the design, review, coordination, administration, and construction engineering and technical support of day-to-day Public Works operations of City staff and Capital Improvement Projects.
The general engineering and technical areas of service required by City may include, but are not limited to:
• Surveying And Mapping • Environmental Documentation• Civil Engineering • CADD• Geological/Geotechnical • Utility services and rates analysis Engineering • Construction Plans and
• Coastal Engineering Specifications• Water/Wastewator/Storm • Construction Reviews and Support Water/Drainage • Construction Management
• Street And Roadway • Estimating• Traffic and Transportation • Environmental Review and Reports• Site Planning, Permitting, • Public Outreach Development, and Plan Review • Architectural
The consultant may be required to coordinate with other involved agencies. Coordination may include, but will not necessarily be limited to, the following:
• Caltrans• Federal Highway Administration• Federal and State Resource Agencies • California Coastal Commission• Regional and Local Agencies (such as Metro, Southern California Association of Governments, and Gateway Cities Council of Governments) • Regional Water Quality Control Boarda Utility Companies The consultant shall be familiar with state and federal requirements regarding consultantselection and procurement processes for Architectural and Engineering (A&E) (Attachment 1)services defined as “program management, construction management, feasibility studies(includes environmental studies and analysis), preliminary engineering, design, engineering,surveying, mapping or architectural related services,” including:
A-I On-Call EngIneering Services
Exhibit A Proposed Scope of Services
• Federal aid highway projects such as Uniform Administrative Requirements, Cost principles, and Audit Requirements for Federal Awards in 2 CFR Part 2000, and consultant contract for engineering and design requirements (Architectural and Engineering or A&E)estabHshed in 23 USC Part 112,40 USC Section 1101-1104 (Brooks Act), and 23 CFR Part 172.
• Public Contract Code (PCC) 10300-1 0334 (Goods) and 10335-10381 (non A&E Services)
• State A&E Consultant Agreement (Government Code 4525-4529.5) Caltrans Division of Local Assistance, Local Assistance Procedures Manual, Chapter 10,Consultant Selection (Attachment 2) (68&K 2018) Exhibit A”-1
EXHIBIT “A-I”
FEDERALLY REQUIRED PROVISIONS FOR SERVICES
See Attachment I
(BB&K 2018) ExhibIt A-l-1”
EXHIBIT “B”
SCHEDULE OF SERVICES
The consultant shall perform Civil Engineering services, signed and stamped by a registered Civil Engineer in the State of California, on an “on-call” or “as-needed” basis for various civil engineering services including the design, review, coordination, administration, and construction engineering and technical support of day-to-day Public Works operations of City staff and Capital Improvement Projects.
(BB&K2018) ExhibitB’-l
EXHIBIT “C”
COMPENSATION
Classification Rate
Project Manager $180Principal Engineer $160
Senior Engineer $145
DesignerlDrafter $120
Admin Services $65
1. Travel
GSA rates apply, with the following exception for Avalon, CA:Room rates will be invoiced actual costs not to exceed the amounts as follows:
Dates - - Room Rate
April through September* $350/nightOctober through March* $220/night *Will use City-negotiated rates when possible
2. Other Direct Costs:
Actual amount invoiced.
3. Sub-consultants:
Actual invoiced rate plus 10%. Fees/rates to be agreed on Task Order basis. (BB&K 2018) Exhibit C”.1
ATTACHMENT 1
CrIteria
(Based onZCFR Part Type of Procurement 200, 1201 AcquisItion Public Contract Code All contracts for the acquisition or lease of goods in Goods (PCC) 10300 -10334 an amount oft wenty- five thousand dollars ($25,000), or a higher amount, shall be made or entered into with the lowest responsible biddermeeting specifications.
Consulting services contracts are exempt from theadvertising and bidding requirementsfor contractsinan amount of less than five thousand dollars Non A&E Services PCC 10 335-10381 ($5000)
State - A&E Consultant Government Code No dollar threshold stated, therefore, all A&E Agreement 4525-45 29.5 procurements must meet the GC requirements.
Federal - A&E Consultan t 23 CFR 172 & 40 USC No dollar threshold allowed in CA, therefore, all Agreement 1100 (Brooks Act) A&E procurementsmust meet QBS. > 49 CFR Part 18 and 19 are cancelled by 2 CFR 200.> FHWA Implementation Guidance for 2 CFR 200 specifically requires that State and sub recipients willuse St at e-app roved procurement procedures. > 2 CFR 200 states that sub recipients of States shall follow such policies and procedures allowed by the State when procuring property and services under a Federal award.> 23 CFR 172 final rule for Small purchase states when a lower threshold for use of small purchaseprocedures is established in State law, regulation, or policy, the lower threshold shall apply to the use of FAHP funds.
ATTACHMENT 2
Local Assistance Procedures Manual Chapter 10
Consultant Selection
Chapter 10 Consultant Selection
Contents
Section 10.1: FEDERALLY FUNDED A&E CONTRACTS vi
10.1.1 General 1
Introduction 1
Definition of an Architectural and Engineering Consultant I Architectural and Engineering Consultants 1
Non-A&E Consultants 2
Selecting the Project 2Subcontracted Services 2
Organizational and Consultant Conflicts of Interest 2
Federal Regulation Governing Conflict of Interest (23 CFR 172.7(b)(4)) Requires that 3 Consultants Performing Work on Multiple Phases of Federal-aid Projects 3
10.1.2 Identifying & Defining a Need for Consultants 4
Appointing the Contract Administrator 5
Segmenting Consultant Work 6
Figure 10-2: Segmenting Consultant Work 7
Specify Products to be Delivered . 7
Scope of Consultant Work 7
Non-Discrimination Clause 7
Disadvantaged Business Enterprise (DBE) Participation 7Determine Type of Contract 9Determining the Project Schedule 10 Determine Method of Payment 11
Actual Cost-Plus-Fixed Fee ii
Cost Per Unit of Work 11
Specified Rates of Compensation 12
Lump Sum or Firm Fixed Price 12
10.1.3 A&E Consultant Audit and Review Process 12
Applicable Standards 13Audit Guidance Available 13Allowable Costs 14 Approval or Acceptance of Indirect Cost Rates isCognizant Letters of Approval 15 Page iof ix
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Caltrans Acceptance of Indirect Cost Rate .15
Financial Review Performed Prior to Contract Execution 16Local Agencies’ Responsibilities 17 Consultants’ Responsibilities (Both prime consultants and subconsultants) 18 Independent Office of Audits and Investigations’ Responsibilities 19 Audits and Reviews to be Performed 19
Indirect Cost Rate Audits 19
CPA Workpa per Reviews 19Contract Audits 20
Incurred Cost Audits 20
Audit Findings and Review Deficiencies 20
10.1.4 Consultant Selection Methods 22
One-Step RFP 23One-Step RFQ 23
Two-Step (RFQ Followed by RFP) 23
10.1.5 Consultant Selection Using the One-Step RFP Method 26 Appoint Consultant Selection Committee 26
Develop Technical Criteria for Evaluation of Proposals 26Develop Schedule for Consultant Selection 27 Prepare RFP 27Financial Management and Accounting System Requirements 28 Advertise for Consultants 28
Issue/Publish RFP 29
Conduct Proposer’s Conference or Answer Written Questions 29 Receive and Evaluate Technical Proposals 29
Develop Final Ranking and Notify Consultants of Results 30Negotiate Contract with Top-Ranked Consultant 30
10.1.6 Consultant Selection Using the One-Step RFQ Method 31 Appoint Consultant Selection Committee . 32
Develop Technical Criteria for Evaluation of Qualifications 32Develop Schedule for Consultant Selection 32Prepare RFQ 32 Financial Management and Accounting System Requirements 33 Advertise for Consultants 34
Issue/Publish RFQ 34Receive/Evaluate Statements of Qualifications and Develop Shortlist 34 Page ii of ix
January2019
Notify Consultants of Shortlist 35
Interview Top-Ranked Consultants ..35
Develop Final Ranking and Notify Consultants of Results 36 Conduct Scoping Meeting 36
Request Cost Proposal 36
Negotiate Contract with Top-Ranked Consultant 36
10.1.7 Consultant Selection Using the Two-Step RFQ/RFP Method 38 Combined RFQ and RFP 38Categorize work 39
Establish Minimum Qualifications 40
Issue RFQ 40
Set-Up Evaluation Process 41
Evaluate Qualifications and Add Firm to List 42
Maintain List 42Issue RFP to Pre-Qualified Consultants on List 42 Conduct Proposer’s Conference or Answer Written Questions 43 Receive and Evaluate Technical Proposals 43
Develop Final Ranking and Notify Consultants of Results 43 Request Cost Proposal and Negotiate Contract with Top-Ranked Consultant 44
10.1.8 Completing the Project 45
Develop the Final Contract 45
Review and Approval of Contracts 45Execute Contract and Issue Notice to Proceed to Consultant 46 Administer the Contract 47
Substitution of Consultant Personnel and Subconsultants 47 Invoicing (or Progress Payments) 48
Contract Amendments 48
Performance Evaluation 49Project Records 49
Retention Clauses 51
Review of Local Agency Actions 51
10.1.9 Miscellaneous Considerations 51
Agreements with Other Governmental Agencies 51
Small Purchase Contracts 51
Noncompetitive Negotiated Contracts (Sole-Source) 52Personal Services Contracts 52 Retaining a Consultant as an Agency Engineer or in Management Support Role 53 Construction Engineering Services 56
10.1.10 Program Management 56
10.1.11 References
.57
10.2 : STATE-ONLY FUNDED A&E CONTRACTS 5910.2.1 General 6010.2.2 Definition of A&E 60
10.2.3 Minimum Audit Requirements 61
A. Written Procedures 61
B. Conflict ofInterest 61
C. Records 61
D. Full
& Open competition 61
B. Selection Basis 62
F. Publication 62G. Solicitation $2
H. Cost Analysis 62
I. Negotiations 62
10.3: NON-A&E CONTRACTS 67
Determining Non-A&E 67
Example of Determining Non-A&E 67Intelligent Transportation System (ITS) Projects 68Non-Infrastructure Projects 68 Governing Regulations and Codes for non-A&E 69
Procurement of Non-A&E Consultant Contracts 69RFP Basic Requirements 69 Additional Requirements and Evaluation Criteria 70Consultant’s Proposal 70Cost Proposal Worksheet 71 DBE Consideration 71
Administrative Requirements 71
Oral Presentations Optional 72Cost-Effective/Public Interest Finding 72 Protest/Appeals/Reinstatement Procedures 72
Exhibits
Exhibits applicable to this chapter can be found at:
h ttps://dat. ca. gov/programs/localassistance/forns7jgcpj-ssistance-rocedures-manual-forms Exhibit 10-A: A&E Consultant Financial Document Review RequestExhibit 10-8: Suggested Consultant Evaluation Sheet Exhibit 10-C: A&E Consultant Contract Reviewers ChecklistExhibit 10-G: Individual A&E Task Order DBE Utilization (needs linked)Exhibit 10-H: Sample Cost Proposal (Example#1 thru #4)Exhibit 10-I: Notice to Proposers DBE InformationExhibit 10-K: ConsultantAnnual Certification of Indirect Costs and Financial Management System Exhibit 10-01: Consultant Proposal DBE CommitmentExhibit 10-02: consultant Contracts DBE CommitmentExhibit 1Q-Q: Disclosure of Lobbying ActivitiesExhibit 10-f?: A&E Sample Contract LanguageExhibit 10—S: Consultant Performance EvaluationExhibit 10-T: Conflict of Interest & Confidentiality StatementExhibit 10U: Consultant in Management Support Role Conflict of interest and confidentiality Statement Page v of ix
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Local Assistance Procedures Manual Chapter 10
Consultant Selection
SECTION 10,1: FEDERALLY FUNDED A&E CONTRACTS
Procurement Planning
j.:.
Select Project *ldentify Need for Consultant *Estimate Cost of Consultant WorkSet Project Objectives *Appoint Contract Administrator *Determine Type of Contract *Determine Project Schedule *segment Project Work (Project Specific or On-Call)*Obtain CTC Allocation/Federal *Define SOW of A&E Consultant *Determine MOP: Lump Authorization to Proceed prior to *Specify Products to be Sum; Actual Cost-Plusbeginning reimbursable work delivered Fixed-Fee; Cost Per Unit of *LAPM Exhibit 10-U: Work; or Specific Rate of
cjiyitaiitirlManaernent CompensationjppQgRo1econ1icto
Interest and confidentiality
Statement, if applicable:submit Conflict of Interest
and Scope of Work (SOW)
to DLA-HQ prior to
contract advertisement.
Figure 10-1; A&E Contract Procurement Process Workflow Diagram Page vi of ix
January 2019
A&E Architectural and Engineering
IOAI = Caltrans Independent Office of Audits and
Investigations
CT = Caltrans
DBE = Disadvantaged Business EnterpriseDLA = Division of Local AssistanceDLAE = District Local Assistance Engineer DLA-HQ = Division of Local Assistance-HeadquartersLAPG = Local Assistance Program Guidelines LAPM = Local Assistance Procedures Manual
MOP = Method of PaymentRFP = Request for Proposal
RFQ = Request for Qualifications
SOQ = Statement of QualificationsSOW = Statement/Scope of Work Local Assistance Procedures Manual Chapter 10
Consultant Selection
JJ:*:
4 5 6
*Determine
EEEE $>J]>
Solicitation Document *prepare RFP or RFQ documents *Prepare to respond to RFP/RFQ RFP or RFQ *lnclude SOW, evaluation questions
*Appoint Consultant Selection process/criteria, DBE goals, MOP 4Conduct Proposers Conference, if Committee and cost proposal format (see applicable
*Colle signed Conflict of interest jbit1OH:Sgpje Cost *Receive Proposals or SOQs forms and Confidentiality Proppsai) minimum requirement Statements (see Exhibit 1O-T: of Proposal or SOQ, Notice to confjJtofjpjest& Proposers DBE Information (seeconfidentiality Statement) from Exhibit 10-I: Notice toPjgjsersall members involved in process DBE InforrnatioJ, submittal *Determine Procurement Schedule deadline*Develop Technical Criteria *Advertise REP or REQ on public with level of importance forum (newspaper, technical
(weights) for Evaluation of publications, Web Hosting Site,Proposals or the SOQ other local websites) *lssue RFP or REQ (direct mailing,
web_posting)
Figure 10-1: A&E Contract Procurement Process Workflow Diagram- continued Page vii of ix
January 2019
A&E = Architectural and Engineering
IOAI Caltrans Independent Office of Audits andInvestigations CT = Caltrans
DBE = Disadvantaged Business EnterpriseDLA = Division of Local AssistanceDLAE District Local Assistance EngineerDLA-HQ= Division of Local Assistance-HeadquartersLAPG = Local Assistance Program GuidelinesLAPM = Local Assistance Procedures Manual MOP Method of Payment
RFP = Request for ProposalRFQ Request for QualificationsSOQ = Statement of QualificationsSOW Statement/Scope of Work Local Assistance Procedures Manual Chapter 10
Consultant Selection
Evaluation and Selection of Consultant
____________
Contract NegotIation
7 8 9
j%IJjJDZ
*Oistribute
b#i>
Proposals or SOQs to
Selection Committee members
*Send out RFPs to Short List (two- *Open and analyze cost proposal *Ensure Committee members receive step process) from the Highest Ranked firm the appropriate score sheet to use
*Conduct Interview of Short List (if
(see Exhibit 10-B:SuQqjd needed)Consultant_Evaluation Sheet) Develop Final Ranking of*Convene Selection Committee and Consultants, and notify all evaluate submittals; Perform interviewees *Review and evaluate 10-A reference checks
*Retain all original score sheets package and supporting *Develop Final Ranking or Short List and summaries documents, if applicable *Notify proposers of ranking/Short List
* Provide a copy of Standard *lssue Financial Review Letter if *Retain all original score sheets and Contract language to top applicable . ranked consultant and summaries *3 invite for negotiations er orm con ract auuits an (see Exhibit 10-R: A&E reviews, if applicable, or review of CPA audited ICR workpapers Language for standard to issue Cognizant Letter of
contract language and Approvalprovisions)
Figure 10-1: A&E Contract Procurement Process Workfiow Diagram- continued Page viii of ix
January 2019
A&E= Architectural and Engineering
IOAI Caltrans Independent Office of Audits andlrwestigationsCT Caltrans OBE Disadvantaged Business Enterprise
OLA Division of Local Assistance
DLAE = District Local Assistance Engineer
OLA-HQ = Division of Local Assistance-Headquarters
1.APG = Local Assistance Program GuidelinesLAPM = Local Assistance Procedures ManualMOP Method of PaymentRFP Request for ProposalRFQ = Request for Qualifications SOQ = Statement of QualificationsSOW Statement/Scope of Work Local Assistance Procedures Manual Chapter 10
Consultant Selection
COntatNegot1atlon
V
*Negotiate contract costs with the *FinaIize contract, cost proposal most qualLfled Consultant *Retan copy of contract Financial *prepare and retain record of cost Review Letter with acceptance, tJ.:.:
negotiations denial, or adjustment of the ICR *prlor to concurring with invoice sIn itiate CT lOAl Financial Review 5Sign and Execute contract payment related to consultant Section (LAPM1oniQ23J *Offer and conduct debriefing services, ensure that district and send documents (hLI meetings with consultant who confirms acceptance of Exhibit10-A: A&E Consultant Financial asked for one 10-C and has a copy of the Document Review Request), if *Send copies of executed contract executed consultant contract onapplicable, to Caltrans lOAl and DBE Commitment (Exhibits file and 10-01 and 10-02. Also, *Receive and analyze findings of the 10-01: Consultant Proposal OBE check IOAI database to ensure Financial Review Letter from CT Commitment and Exhibit 10-02: that LAPM Exhibit 10-K:IOAI, if any Consultant Contract DBE ultant Annual certification 5Address and resolve all findings by CojjJirnent to DLAE of Indirect Costs and Financial IOAI and incorporate into final *Close out contract procurement Management System, if contract and cost proposal process applicable, has been received by 5lf negotiations with First ranked IOAI
firm is unsuccessful, formally
terminate cost negotiations with
Consultant and begin Step 9 with
next ranked consultant *Perform Incurred Cost Audit, if *Send Exhibit 10-C to DLA-HQ for selected V
acceptance prior to award
Retain acceptance of Exhibit 10-C
from DLA-HQ
Figure 10-1: A&E Contract Procurement Process Workflow Diagram- continued Page ix of ix
January 2019
A&E = Architectural and Engineering
IOAI Caltrans Independent Office of Audits andInvestigations CT = Caltrans
OBE = Disadvantaged Business Enterprise
DLA = Division of Local Assistance
DLAE = District Local Assistance EngineerDLA-HQ = Division of Local Assistance-HeadquartersI.APG = Local Assistance Program GuidelinesLAPM = Local Assistance Procedures ManualMOP Method of PaymentRFP Request for ProposalRFQ = Request for QualificationsSOQ Statement of Qualifications SOW Statement/Scope of Work
Local Assistance Procedures Manual Chapter 10
Consultant Selection
1011 GENERAL
Introduction
A local agency may engage consultants to perform architectural, engineering, and relatedservices to develop a federal-aid funded project. Local agencies requesting federal funds to reimburse A&E Consultants must follow the selection and contracting procedures detailed in this chapter.
Definition of an Architectural and Engineering Consultant 23 Code of Federal Regulations §172 and CA State Law further defines A&E services andincludes those private consulting firms providing architectural, landscape architectural,engineering, environmental, land surveying, construction engineering, or programmanagement are termed Architectural and Engineering (A&E) Consultants.Architectural and Engineering Consultants The Brooks Act (40 USC, Section 2104) requires local agencies to award federally fundedengineering and design related contracts based on fair arid open competitive negotiations, demonstrated competence, and professional qualifications (23 Code of Federal Regulations(CFR), Part 172), at a fair and reasonable price (48 CFR 31.201-3).
Cost proposals submitted to the local agency must be sealed and shall not be included as a criterion for rating such consultants. After ranking, cost negotiations may begin with the mostqualified consultant and only their cost proposal will be opened. Should negotiations fail orresult in a price that the local agency does not consider fair and reasonable, negotiations mustbe formally terminated and the local agency must then undertake negotiations with the secondmost qualified consultant.
If the negotiations with the second most qualified firm are not successful, negotiations must beformally terminated and the local agency must then undertake negotiations with the third mostqualified consultant, and so on, until the price is determined to be fair and reasonable by the local agency.
In selecting an A&E consultant, a detailed technical proposal or qualifications proposal, and a proposed contract will be required.
Depending upon the scope of work, the required contract provisions may need to include the California State Prevailing Wages (Federal Payment of Predetermined Minimum Wage appliesonly to federal-aid construction contracts). Prevailing wages will apply if the services to be performed will involve land surveying (such as flag persons, survey party chief, rodman orchainman), materials sampling and testing (such as drilling rig operators, pile driving, crane operators), inspection work, soils or foundation investigations, environmental hazardousmaterials and so forth. California State Prevailing Wage information is available through the California Department of Industrial Relations websites below:Consultants will need to provide their Prevailing Wage Policy if their participation on theproject includes prevailing wage work. The policy will include information on the accounting Page lof 72
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Local Assistance Procedures Manual Chapter 10
Consultant Selection
treatment of delta base and delta fringe, and verify the accounting treatment is consistent every year.
• DIR FAQ website:
/OPRL/ FAQJ’revailingWage.html
• DIR Wage Determination website:
pj//yww.dir.ca.gov/ opri /DPreWageDeterrnination.htm
• Caltrans Prevailing Wage Interpretive Guidance:
http://www.dot.ca.gov,’JqJaudits/ documents/prevailing-wage-interpretive guidance.pdf
Non-A&E Consultants
Consultants other than A&E consultants may be selected using cost, cost and qualifications (best value) or other critical selection criteria. The procedures outlined in this chapter can be modified for selecting non-A&E consultants by adding a cost item to the contract proposal.For more details on non-A&E consultants, see Section 10.3 Non-A&E Contracts of this chapter.
Selecting the Project
The local agency is responsible for selecting and initiating a federal-aid financed transportation project. The decision to begin project development is influenced by the project needs, its acceptability, the timing of studies, financing, and construction. The local agency must identifythe project’s objectives including the general level of improvement or service, operatingstandards, maximum cost and the target date for project completion before commencing anyconsultant selection process.Subcontracted Services The consultant is responsible for performing the work required under the contract in a manner acceptable to the local agency. The consultant’s organization and all associated consultants and subconsuitants must be identified in the proposal. If the consultant wishes to use asubconsultant not specified in the proposal, prior written approval must be obtained from the local agency. The subcontract must contain all required provisions of the prime contract. All subawards must include adequate oversight, management, and administration of engineeringand design related consultant services and be administered in accordance with State laws andprocedures specified in 23 U.S.C. 106(g)(4) 2 CFR 200.331.
Organizational and Consultant Conflicts of Interest
In the procurement of contracts for engineering services by private consulting firms using federal-aid highway funds, local agencies must take all the steps necessary to prevent fraud,waste, and abuse. The local agency must develop and maintain a written code of conduct governing the performance of its employees (including the contract administrator) engaged in the award and administration of federal-aid highway funded contracts, including the prevention of conflicts of interest in accordance with 23 CFR 172.7(h)(4)