8.29.130(c) of this Chapter. Nothing in this Chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer’s license any status or right to act as a tobacco retailer in contravention of any provision of law.
(C) Applicant submissions shall contain the following information:
(1) The name, address, and telephone number of each proprietor of the business seeking a license.
(2) The business name, address, and telephone number of the location for which a license is sought.
(3) The name and mailing address authorized by each proprietor to receive all communications and notices required by, authorized by, or convenient to the enforcement of this Chapter.
(4) Proof that the location for which a tobacco retailer’s license is sought has been issued all necessary state licenses for the sale of tobacco products.
(5) Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this Chapter or any other local, state, or federal law governing the sale of tobacco products and, if so, the dates and locations of all such violations within the previous five years.
(6) A signed affidavit affirming that the proprietor has not sold and will not sell any tobacco product without a license required by this Chapter.
(7) Such other information as the Department deems necessary for the administration or enforcement of this Chapter as specified on the application form required by this section.
(D) A licensed tobacco retailer shall inform the Department in writing of any change in the information submitted on an application for a tobacco retailer’s license within 10 business days of a change.
8.29.070 -. LICENSE ISSUANCE OR DENIAL.
(A) ISSUANCE OF LICENSE. Upon the receipt of a complete and adequate application for a tobacco retailer’s license and the license fee required by this Chapter, the Department may approve or deny the application for a license, or it may delay action for a reasonable period of time to complete any investigation of the application or the applicant deemed necessary. (B) DENIAL OF APPLICATION. The department may deny an application for a tobacco retailer’s license based on any of the following:
Item #5.5.
(1) The information presented in the application is inaccurate or false.
Intentionally supplying inaccurate or false information shall be a violation of this Chapter.
(2) The application seeks authorization for tobacco retailing at a location for which this Chapter prohibits a license to be issued; (3) The application seeks authorization for tobacco retailing for a proprietor to whom this Chapter prohibits a license to be issued; or
(4) The application seeks authorization for tobacco retailing in a manner that is prohibited pursuant to this Chapter, that is unlawful pursuant to any other Chapter of this Code, or that is unlawful pursuant to any other law.
(5) Any other any other suitable reason the granting of a license to the applicant is not consistent with the public health and welfare, including the applicant’s history of noncompliance with this Chapter and other laws relating to the sale of tobacco products.
8.28.080 - LICENSE RENEWAL AND EXPIRATION.
(A) RENEWAL OF LICENSE. A tobacco retailer’s license is invalid if the appropriate fee has not been timely paid in full or if the term of the license has expired. The term of a tobacco retailer license is 1 year. Each tobacco retailer shall apply for the renewal of their tobacco retailer’s license and submit the license fee no later than 30 days prior to the expiration of the current license. A retailer that fails to timely submit a renewal application and fee is ineligible for license renewal and must submit a new application pursuant to Section 8.29.060.
8.29.090 -. LICENSES NOT TRANSFERABLE, PAST VIOLATIONS AT RETAIL LOCATION.
(A) LICENSES NOT TRANSFERRABLE. A tobacco retailer’s license may not be transferred from one person to another or from one location to another.
A new tobacco retailer’s license is required whenever a tobacco retailing location has a change in proprietors.
(B) PAST VIOLATIONS. Notwithstanding any other provision of this Chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:
(1) the location has been transferred to new proprietor(s) in an arm’s length transaction; and
(2) the new proprietor(s) provide the City with clear and convincing evidence that the new proprietor(s) have acquired the location in an arm’s length transaction.
8.29.100 - LICENSE CONVEYS A LIMITED, CONDITIONAL PRIVILEGE.
Item #5.5.
Nothing in this Chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer’s license any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the City identified on the face of the permit. Nothing in this Chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law.
8.29.110 -. FEE FOR LICENSE.
The fee to issue or to renew a tobacco retailer’s license shall be established from time to time by resolution of the City Council. The fee shall be calculated so as to recover the total cost of administration and enforcement of this Chapter, including, but not limited to, issuing a license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this Chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.
8.29.120 -. COMPLIANCE MONITORING.
(A) Compliance with this Chapter shall be monitored by the Department. In addition, the City may designate additional persons to monitor compliance with this Chapter. All licensed premises must be open to inspection by city staff or designated persons during regular business hours. (B) The Department shall inspect each tobacco retailer at least 3 times per 12- month period to ensure compliance with this Chapter.
(C) The city of Calistoga will conduct at least one compliance check per 12- month period that involves the participation of persons between the ages of 18 and 20 to enter licensed premises to attempt to purchase tobacco products.
(D) Nothing in this section shall create a right of action in any licensee or other person against the City or its agents.
8.29.130 - SUSPENSION OR REVOCATION OF LICENSE.
(A) SUSPENSION OR REVOCATION OF LICENSE FOR VIOLATION. In addition to any other penalty authorized by law, a tobacco retailer’s license shall be suspended or revoked if the Department finds, based on a preponderance of the evidence, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee’s agents or employees, have violated any of the requirements, conditions, or Item #5.5.
prohibitions of this Chapter; such violation is determined by any court of competent jurisdiction; or the licensee has pleaded guilty, “no contest” or its equivalent, or admitted to a violation of any law designated in Section
8.29.020 above.
(1) Upon a finding by the Department of a first violation of this Chapter at a location, the license shall be suspended for 30 days. (2) Upon a finding by the Department of a second violation of this Chapter at a location within any 5-year period, the license shall be suspended for 90 days.
(3) Upon a finding by the Department of a third violation of this Chapter at a location within any 5-year period, the license shall be suspended for 1 year.
(4) Upon a finding by the Department of four or more violations of this Chapter at a location within any 5-year period, the license shall be revoked.
(B) APPEAL OF SUSPENSION OR REVOCATION. A decision of the Department to suspend or revoke a license is appealable to the Chief of Police, Building & Planning Director or their designee and any appeal must be filed in writing with the Department or Building & Planning Department within 10 days of mailing of the Department’s decision. If such an appeal is timely made, it shall stay enforcement of the appealed action. An appeal to the Chief of Police or Planning Director is not available for a revocation made pursuant to subsection (c) below.
(C) REVOCATION OF LICENSE WRONGLY ISSUED. A tobacco retailer’s license shall be revoked if the Department finds, after the licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 8.29.070 existed at the time application was made or at any time before the license issued. The decision by the Department shall be the final decision of the City.
8.29.140 -. TOBACCO RETAILING WITHOUT A VALID LICENSE.
(A) INELIGIBLE FOR LICENSE. In addition to any other penalty authorized by law, if the Department finds, or if a court of competent jurisdiction determines, based on a preponderance of evidence after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer’s license, either directly or through the person’s agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailer’s license as follows:
(1) After a first violation of this section at a location, no new license may issue for the person or the location (unless ownership of the business Item #5.5.
at the location has been transferred in an arm’s length transaction), until 30 days have passed from the date of the violation. (2) After a second violation of this section at a location within any 5-year period, no new license may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until 90 days have passed from the date of the violation.
(3) After a third or subsequent violation of this section at a location within any 5-year period, no new license may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until 5 years have passed from the date of the violation.
8.29.150 -. ADDITIONAL REMEDIES.
(A) The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity.
(B) Whenever evidence of a violation of this Chapter is obtained in any part through the participation of a person under the age of 18 years, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this Chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.
(C) Violations of this Chapter are subject to a civil action brought by the District Attorney or City Attorney, punishable by a civil fine defined in Chapter 1, Section 1.08.020.
(D) Violations of this Chapter may, in the discretion of the District Attorney or City Attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require.
(E) Violations of this Chapter are hereby declared to be public health & safety. (F) In addition to other remedies provided by this Chapter or by other law, any violation of this Chapter may be remedied by a civil action brought by the City, including administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief. (G) Tobacco products offered for sale in violation of this Chapter are subject to seizure by the Department or its designee and shall be forfeited after the licensee or any other owner of the tobacco products seized is given reasonable notice and an opportunity to demonstrate that the tobacco products were not offered for sale in violation of this Chapter. The decision by the Department may be appealed pursuant to the procedures set forth in Section 8.29.130(b). Forfeited tobacco products shall be destroyed and Item #5.5.
properly disposed of at the cost of the seller after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure section 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed after judgment in that suit becomes final.
(H) For the purposes of the civil remedies provided in this Chapter:
(1) Each day on which a tobacco product is distributed, sold, or offered for sale in violation of this Chapter shall
constitute a separate violation of this Chapter; and
(2) Each individual tobacco product that is distributed, sold, or offered for sale in violation of this Chapter shall constitute a separate violation of this Chapter.
(I) All tobacco retailers are responsible for the actions of their employees relating to the sale, offer to sell, and furnishing of tobacco products at the retail location. The sale of any tobacco product by an employee shall be considered an act of the tobacco retailer.
8.29.160 -. EXCEPTIONS.
(A) Nothing in this Chapter prevents the provision of tobacco products to any person as part of an indigenous practice or a lawfully recognized religious or spiritual ceremony or practice.
(B) Nothing in this Chapter shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing.
8.29.170 -. CONSTRUCTION & SEVERABILITY.
It is the intent of the City Council to supplement applicable state and federal law and not to duplicate or contradict such law and this ordinance shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this Chapter, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases of this Chapter, or its application to any other person or circumstance. The City Council hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.
8.29.180 - PUBLIC RECORDS.
Item #5.5.
All information provided to the Department by a licensee or license applicant pursuant to this Chapter shall be subject to disclosure under the California Public Records Act (California Government Code section 6250 et seq.) or any other applicable law.
SECTION 3. EFFECTIVE DATE.
This Ordinance shall take effect and be in force from and after 30 days after the date of enactment; provided, however, that Section 8.29.030 shall not take effect until 6 months after date of enactment.
SECTION 4. Severability.
Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable, or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable.
SECTION 5. Publication; Effective Date.
This Ordinance shall take effect and be enforced within thirty (30) days from and after the date of its adoption by the City Council at a second reading and shall be posted and published in accordance with the California Government Code.
I, YUDIANA GALVAN, INTERIM CITY CLERK of the City of Calistoga, California, do hereby certify that the foregoing Ordinance was duly PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council on the 5th day of September 2024, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST: APPROVED:
Yudiana Galvan, Interim City Clerk Donald Williams, Mayor Item #5.5.
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Available at: https://www.ncbi.nlm.nih.gov/books/NBK179276/pdf/Bookshelf_NBK179276.pdf. 3 Family Smoking Prevention and Tobacco Control Act § 3(1), Pub. L. No. 111-31, 123 Stat. 1776-1858 (2009). 4 National Academies of Sciences, Engineering, and Medicine. Public Health Consequences of E-Cigarettes. 2018.
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Cir. 2009), and order clarified, 778 F. Supp. 2d 8 (D.D.C. 2011). 12 California Tobacco Control Program. California Tobacco Facts and Figures 2018. Sacramento, CA: California Department of Public Health. 2018. Available at:
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14 California Tobacco Control Program. Story of Inequity. 2019; http://tobaccofreeca.com/story-ofinequity. Accessed May 22, 2020. 15 Cal. Bus. & Prof. Code § 22972(a)
Item #5.5.
16 Cal. Bus. & Prof. Code § 22970.1 (Finding that state tobacco excise tax revenues “have declined by hundreds of millions of dollars per year due, in part, to unlawful distributions and untaxed sales of cigarettes and tobacco products,” and that “the licensing of … retailers will help stem the tide of untaxed distributions and illegal sales of cigarettes and tobacco products.”).
17 Cal. Rev. & Tax Code § 30111 (providing that state tobacco taxes “are in lieu of all other state, county, municipal, or district taxes on the privilege of distributing cigarettes or tobacco products.”); Cal. Bus. & Prof. Code § 22964 (providing that the Stop Tobacco Access to Kids Act does not “preempt or otherwise prohibit the adoption of a local standard that imposes a more restrictive legal age to purchase or possess tobacco products.”). 18 Cal. Bus. & Prof. Code § 22971.3 (“Nothing in this division preempts or supersedes any local tobacco control law other than those related to the collection of state taxes. Local licensing laws may provide for the suspension or revocation of the local license for any violation of a state tobacco control law.”). 19 Cal. Penal Code § 308(a)(1)(A).
20 Cal. Bus. & Prof. Code §§ 22950-22964.
21 21 C.F.R. §§ 1140.14(a)(4), 1140.16(b).
22 21 C.F.R. § 1140.14(a)(2), (b)(2).
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Item #5.5.
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10.1002/hec.990.
66 Ling PM, Glantz SA. Why and How the Tobacco Industry Sells Cigarettes to Young Adults: Evidence From Industry Documents. Am J Public Health. 2002;92(6):908-916. doi: 10.2105/ajph.92.6.908. 67 Lempert LK, Glantz SA. Tobacco Industry Promotional Strategies Targeting American Indians/Alaska Natives and Exploiting Tribal Sovereignty. Nicotine Tob Res. 2019;21(7):940-948. doi: 10.1093/ntr/nty048. 68 Slater SJ, Chaloupka FJ, Wakefield M, Johnston LD, O’Malley PM. The impact of retail cigarette marketing practices on youth smoking uptake. Arch Pediatr Adolesc Med. 2007;161(5):440-445. doi: 10.1001/archpedi.161.5.440. 69 Xu X, Wang X, Caraballo RS. Is Every Smoker Interested in Price Promotions? An Evaluation of Price-Related Discounts by Cigarette Brands. J Public Health Manag Pract. 2016;22(1):20-28. doi: 10.1097/PHH.0000000000000223. 70 Xu X, Pesko MF, Tynan MA, Gerzoff RB, Malarcher AM, Pechacek TF. Cigarette price-minimization strategies by U.S. smokers. Am J Prev Med. 2013;44(5):472-476. doi: 10.1016/j.amepre.2013.01.019. 71 Cal. Health & Safety Code § 118950(b)-(c)(1). The California Supreme Court upheld this law, finding that federal law did not preempt the state law. People v. R.J. Reynolds Tobacco Co., 124 P.3d 408 (Cal. 2005). 72 Chicago Municipal Code § 4-64-905.
73 New York City Administrative Code § 17-176.1.
74 Oakland, California, Municipal Code § 5.91.040.
75 Providence, Rhode Island Municipal Code § 14-303.
76 Nat’l Ass’n of Tobacco Outlets, Inc. v. City of New York, 27 F. Supp. 3d 415 (S.D.N.Y. 2014). 77 Nat’l Ass’n of Tobacco Outlets, Inc. v. City of Providence, R.I., 731 F.3d 71 (1st Cir. 2013). 78 21 C.F.R. § 1140.16(b).
79 Schleicher NC, Johnson T, Rigdon J, et al. California Tobacco Retail Surveillance Study, 2017. Available at: https://www. cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/ResearchandEvaluation/SurveyInstrument sTrainingManualsAndProtocols/CaliforniaTobaccoRetailSurveillanceStudt2017-CTRSS%206-4.pdf. 80 Schleicher NC, Johnson T, Vishwakarma M, et al. California Tobacco Retail Surveillance Study 2018. Available at:
https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/ResearchandEvaluation/Rep Item #5.5.
orts/CaliforniaTobaccoRetailSurveillanceStudyReport-2018.pdf. 81 Henriksen L, Andersen-Rodgers E, Zhang X, et al. Neighborhood Variation in the Price of Cheap Tobacco Products in California: Results From Healthy Stores for a Healthy Community. Nicotine Tob Res. 2017;19(11):1330-1337. doi:
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82 Huang J, Chriqui JF, DeLong H, Mirza M, Diaz MC, Chaloupka FJ. Do state minimum markup/price laws work? Evidence from retail scanner data and TUS-CPS. Tob Control. 2016;25(Suppl 1):i52-i59. doi: 10.1136/tobaccocontrol-2016-053093. 83 Sonoma County, California Municipal Code § 32A-3(k). 84 Windsor, California Municipal Code § 3-11-115(l).
85 San Leandro Municipal Code § 4-36-150(k).86 Golden SD, Kim K, Kong A, et al. Simulating the Impact of a Cigarette Minimum Floor Price Law on Adult Smoking Prevalence in California. Nicotine Tob Res. 2020;ntaa046. doi: 10.1093/ ntr/ntaa046.
87 Golden SD, Farrelly MC, Luke DA, Ribisl KM. Comparing projected impacts of cigarette floor price and excise tax policies on socioeconomic disparities in smoking. Tob Control. 2016;25(Suppl 1):i60-i66. doi: 10.1136/tobaccocontrol-2016- 053230.
88 Brock B, Carlson SC, Moilanen M, Schillo BA. Effectiveness of Local Policy Efforts to Increase the Price of Cheap Cigars in Minnesota. Am J Public Health. 2017;107(1):127-129. doi: 10.2105/AJPH.2016.303517. 89 Hill S, Amos A, Clifford D, Platt S. Impact of tobacco control interventions on socioeconomic inequalities in smoking:
review of the evidence. Tob Control. 2014;23(e2):e89-97. doi: 10.1136/tobaccocontrol-2013-051110. 90 Chuang YC, Cubbin C, Ahn D, Winkleby MA. Effects of neighbourhood socioeconomic status and convenience store concentration on individual level smoking. J Epidemiol Community Health. 2005;59(7):568-573. doi: 10.1136/ jech.2004.029041.
91 Lipperman-Kreda S, Grube JW, Friend KB, Mair C. Tobacco outlet density, retailer cigarette sales without ID checks and enforcement of underage tobacco laws: associations with youths’ cigarette smoking and beliefs. Addiction. 2016;111(3):525-532. doi: 10.1111/add.13179.
92 Novak SP, Reardon SF, Raudenbush SW, Buka SL. Retail tobacco outlet density and youth cigarette smoking: a propensity-modeling approach. Am J Public Health. 2006;96(4):670-676. doi: 10.2105/AJPH.2004.061622. 93 Siahpush M, Jones PR, Singh GK, Timsina LR, Martin J. Association of availability of tobacco products with socio-economic and racial/ethnic characteristics of neighbourhoods. Public Health. 2010;124(9):525-529. doi: 10.1016/j. puhe.2010.04.010.
94 Lee JG, Sun DL, Schleicher NM, Ribisl KM, Luke DA, Henriksen L. Inequalities in tobacco outlet density by race, ethnicity and socioeconomic status, 2012, USA: results from the ASPiRE Study. J Epidemiol Community Health. 2017;71(5):487- 492. doi: 10.1136/jech-2016-208475.
95 Loomis BR, Kim AE, Goetz JL, Juster HR. Density of tobacco retailers and its association with sociodemographic characteristics of communities across New York. Public Health. 2013;127(4):333-338. doi: 10.1016/j.puhe.2013.01.013. 96 Yu D, Peterson NA, Sheffer MA, Reid RJ, Schnieder JE. Tobacco outlet density and demographics: analysing the relationships with a spatial regression approach. Public Health. 2010;124(7):412-416. doi: 10.1016/j.puhe.2010.03.024. 97 Rodriguez D, Carlos HA, Adachi-Mejia AM, Berke EM, Sargent JD. Predictors of tobacco outlet density nationwide: a geographic analysis. Tob Control. 2013;22(5):349-355. doi: 10.1136/tobaccocontrol-2011-050120. 98 Fakunle DO, Curriero FC, Leaf PJ, Furr-Holden DM, Thorpe RJ. Black, White, or Green? The Effects of Racial Composition and Socioeconomic Status on Neighborhood-Level Tobacco Outlet Density. Ethn Health. 2019;1-16. doi:
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99 Finan LJ, Lipperman-Kreda S, Abadi M, et al. Tobacco outlet density and adolescents’ cigarette smoking: a meta-analysis.
Tob Control. 2019;28:27-33. doi: 10.1136/tobaccocontrol-2017-054065. 100 Schleicher NC, Johnson TO, Fortmann SP, Henriksen L. Tobacco outlet density near home and school: Associations with smoking and norms among US teens. Prev Med. 2016;91:287-293. doi: 10.1016/j.ypmed.2016.08.027. 101 Finan LJ, Lipperman-Kreda S, Abadi M, et al. Tobacco Outlet Density and Adolescents’ Cigarette Smoking: A MetaAnalysis. Tob Control. 2019;28(1):27-33. doi: 10.1136/tobaccocontrol-2017-054065.
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102 Lovato CY, Hsu HCH, Sabiston CM, Hadd V, Nykiforuk CIJ. Tobacco Point-of-Purchase marketing in school neighbourhoods and school smoking prevalence: a descriptive study. Can J Public Health. 2007;98(4):265-270. doi:
10.17269/ cjph.98.865.
103 Ribisl KM, Luke DA, Bohannon DL, Sorg AA, Moreland-Russell S. Reducing Disparities in Tobacco Retailer Density by Banning Tobacco Product Sales Near Schools. Nicotine Tob Res. 2017;19(2):239-244. doi: 10.1093/ntr/ntw185. 104 HG, Henry KA, Scheeres A, et al. Tobacco Retail Licensing and Density 3 Years After License Regulations in Philadelphia, Pennsylvania (2012-2019). Am J Public Health. 2020;110(4):547-553. doi: 10.2105/AJPH.2019.305512. 105 Cantrell J, Pearson JL, Anesetti-Rothermel A, Xiao H, Kirchner TR, Vallone D. Tobacco Retail Outlet Density and Young Adult Tobacco Initiation. Nicotine Tob Res. 2016;18(2):130-137. doi: 10.1093/ntr/ntv036. 106 Young-Wolff KC, Henriksen L, Delucchi K, Prochaska JJ. Tobacco retailer proximity and density and nicotine dependence among smokers with serious mental illness. Am J Public Health. 2014;104(8):1454-1463. doi: 10.2105/ AJPH.2014.301917.
107 Reitzel LR, Cromley EK, Li Y, et al. The effect of tobacco outlet density and proximity on smoking cessation. Am J Public Health. 2011;101(2):315-320. doi: 10.2105/AJPH.2010.191676. 108 Luke DA, Ribisl KM, Smith C, Sorg AA. Family Smoking Prevention And Tobacco Control Act: banning outdoor tobacco advertising near schools and playgrounds. Am J Prev Med. 2011;40(3):295-302. doi: 10.1016/j.amepre.2010.11.018. 109 Fakunle DO, Milam AJ, Furr-Holden CD, Butler J, 3rd, Thorpe RJ, Jr., LaVeist TA. The inequitable distribution of tobacco outlet density: the role of income in two Black Mid-Atlantic geopolitical areas. Public Health. 2016;136:35-40. doi:
10.1016/j.puhe.2016.02.032.
110 Galiatsatos P, Kineza C, Hwang S, et al. Neighbourhood characteristics and health outcomes: evaluating the association between socioeconomic status, tobacco store density and health outcomes in Baltimore City. Tob Control. 2018;27(e1):e19-e24. doi: 10.1136/tobaccocontrol-2017-053945. 111 Berg CJ, Henriksen L, Cavazos-Rehg PA, Haardoerfer R, Freisthler B. The emerging marijuana retail environment: Key lessons learned from tobacco and alcohol retail research. Addict Behav. 2018;81:26-31. doi:
10.1016/j.addbeh.2018.01.040.
112 Feighery EC, Schleicher NC, Boley Cruz T, Unger JB. An examination of trends in amount and type of cigarette advertising and sales promotions in California stores, 2002-2005. Tob Control. 2008;17(2):93-98. doi: 10.1136/ tc.2007.022046. 113 Jernigan DH, Sparks M, Yang E, Schwartz R. Using public health and community partnerships to reduce density of alcohol outlets. Prev Chronic Dis. 2013;10:E53. doi: 10.5888/pcd10.120090. 114 Cal. Bus. & Prof. Code § 23817.5.
115 Bright Research Group for the San Francisco Tobacco-Free Project. Reducing Tobacco Retail Density in San Francisco: A Case Study. 2016. Available at: https://sanfranciscotobaccofreeproject.org/wp-content/uploads/Retail-DensityCaseStudy-1.27.16-FINAL-to-TFP.pdf. 116 Center for Public Health Systems Science. Point-of-Sale Report to the Nation: Realizing the Power of States and Communities to Change the Tobacco Retail and Policy Landscape. St. Louis, MO: Center for Public Health Systems Science at the Brown School at Washington University in St. Louis and the National Cancer Institute, State and Community Tobacco Control Research Initiative. 2016. Available at: https://cpb-us-w2.wpmucdn.com/sites.wustl.edu/dist/e/1037/ files/2017/10/Reporttothenation_2016-2mfepqr.pdf.
117 Attorneys General Call on Retail Pharmacies to Stop Selling Tobacco Products [press release]. March 28, 2014. Available at: https://news.delaware.gov/2014/03/18/attorneys-general-call-on-retail-pharmacies-to-stop-selling-tobaccoproducts. 118 Henriksen L, Schleicher NC, Barker DC, Liu Y, Chaloupka FJ. Prices for Tobacco and Nontobacco Products in Pharmacies Versus Other Stores: Results From Retail Marketing Surveillance in California and in the United States. Am J Public Health. 2016;106(10):1858-1864. doi: 10.2105/AJPH.2016.303306. 119 Jin Y, Lu B, Klein EG, Berman M, Foraker RE, Ferketich AK. Tobacco-Free Pharmacy Laws and Trends in Tobacco Retailer Density in California and Massachusetts. Am J Public Health. 2016;106(4):679-685. doi: 10.2105/ AJPH.2015.303040.
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120 Polinski JM, Howell B, Gagnon MA, Kymes SM, Brennan TA, Shrank WH. Impact of CVS Pharmacy’s Discontinuance of Tobacco Sales on Cigarette Purchasing (2012-2014). Am J Public Health. 2017;107(4):556-562. doi: 10.2105/ AJPH.2016.303612.
121 Cal. Bus. & Prof. Code § 22963
122 Prevent All Cigarettes Trafficking Act of 2009, Pub. L. No. 111-154, 124 Stat. 1087 (2009). 123 21 U.S.C. § 387f(d)(4)(A).
124 Food and Drug Administration. Report to Congress — Progress and Effectiveness of the Implementation of the Family Smoking Prevention and Tobacco Control Act. U.S. Department of Health and Human Services. 2013. Available at:
https:// www.fda.gov/downloads/tobaccoproducts/labeling/rulesregulationsguidance/ucm371271.pdf. 125 Williams RS, Derrick J, Phillips KJ. Cigarette sales to minors via the internet: how the story has changed in the wake of federal regulation. Tob Control. 2017;26(4):415-420. doi: 10.1136/tobaccocontrol-2015-052844. 126 Williams RS, Derrick J, Liebman AK, LaFleur K, Ribisl KM. Content analysis of age verification, purchase and delivery methods of internet e-cigarette vendors, 2013 and 2014. Tob Control. 2018;27(3):287-293. doi: 10.1136/tobaccocontrol2016-053616. 127 Williams RS, Derrick JC. Internet Little Cigar and Cigarillo Vendors: Surveillance of Sales and Marketing Practices via Website Content Analysis. Prev Med. 2018;109:51-57. doi: 10.1016/j.ypmed.2018.01.017. 128 FDA announces comprehensive regulatory plan to shift trajectory of tobacco-related disease, death [press release]. July 28, 2017. Available at: https://www.fda.gov/newsevents/newsroom/pressannouncements/ucm568923.htm. 129 Stebbins KR. Tobacco, politics and economics: Implications for global health. Social Science & Medicine. 1991;33(12):1317-1326. doi: 10.1016/0277-9536(91)90275-h. 130 Wang TW, Gentzke A, Sharapova S, Cullen KA, Ambrose BK, Jamal A. Tobacco Product Use Among Middle and High School Students - United States, 2011-2017. MMWR Morb Mortal Wkly Rep. 2018;67(22):629-633. doi: 10.15585/ mmwr.mm6722a3.
131 Pesko MF, Robarats AM. Adolescent Tobacco Use in Urban Versus Rural Areas of the United States: The Influence of Tobacco Control Policy Environments. J Adolesc Health. 2017;61(1):70-76. doi: 10.1016/j.jadohealth.2017.01.019. 132 Chaffee BW, Couch ET, Urata J, et al. Predictors of Smokeless Tobacco Susceptibility, Initiation, and Progression Over Time Among Adolescents in a Rural Cohort. Subst Use Misuse. 2019;54(7):1154-1166. doi: 10.1080/10826084.2018. 133 Healthy Retail SF. https://susanahennessey-lavery.squarespace.com. Accessed July 13, 2018. 134 Davis KC, Grimshaw V, Merriman D, et al. Cigarette trafficking in five northeastern US cities. Tob Control. 2014;23(e1):e62-68. doi: 10.1136/tobaccocontrol-2013-051244. 135 Kurti MK, von Lampe K, Thompkins DE. The illegal cigarette market in a socioeconomically deprived inner-city area: the case of the South Bronx. Tob Control. 2013;22(2):138-140. doi: 10.1136/tobaccocontrol-2011-050412. 136 World Health Organization. WHO Report on the Global Tobacco Epidemic, 2019: Offer Help to Quit Tobacco Use. 2019.
Available at: https://apps.who.int/iris/handle/10665/326043. 137 California Department of Public Health, California Tobacco Control Program. The #1 Preventable Cause of Death. https://tobaccofreeca.com/health/tobacco-is-the-number-one-preventable-cause-of-death. Accessed May 12, 2020. 138 Lortet-Tieulent J, Goding Sauer A, Siegel RL, et al. State-Level Cancer Mortality Attributable to Cigarette Smoking in the United States. JAMA Intern Med. 2016;176(12):1792-1798. doi: 10.1001/jamainternmed.2016.6530. 139 Campaign for Tobacco-Free Kids. The Toll of Tobacco in California. https://www.tobaccofreekids.org/problem/toll-us/ california. Accessed May 12, 2020.
140 California Tobacco Control Program. California Tobacco Facts and Figures 2016. Sacramento, CA: California Department of Public Health. 2016.
141 Kann L, McManus T, Harris WA, et al. Youth Risk Behavior Surveillance — United States, 2017. MMWR Surveill Summ. 2018;67(8):1-114 and Supplementary Tables 52-93. doi: 10.15585/mmwr.ss6708a1.
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142 Burrows, D.S. “Estimated Change in Industry Trend Following Federal Excise Tax Increase.” UCSF Library Truth Tobacco Industry Documents. Date Mod. Industry, Apr. 17, 2012: https://www.industrydocumentslibrary.ucsf.edu/tobacco/ docs/nnnw0084. Accessed May 12, 2020.
143 National Association of Convenience Stores. U.S. Convenience Store Count. Available at: https://www.convenience. org/Research/FactSheets/ScopeofIndustry/IndustryStoreCount; Statista. In-store merchandise sales of convenience stores in the United States in 2018, by product category. Available at:
https://www.statista.com/statistics/308783/usconvenience-stores-in-store-merchandise-sales-by-category (Cigarettes + Other Tobacco Products Sales = $81.056 billion).
National Association of Convenience Stores. Convenience Stores and Their Communities. 2019. Available at: https://www. convenience.org/Topics/CommunityToolkit/How-Stores-Work. 144 McLaughlin I. License to Kill?: Tobacco Retailer Licensing as an Effective Enforcement Tool. Tobacco Control Legal Consortium. 2010. Available at: http://www.publichealthlawcenter.org/sites/default/files/resources/tclc-syn-retailer2010.pdf. 145 Institute of Medicine. Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products.
Washington, DC: The National Academies Press. 2015. Available at: https://www.nap.edu/catalog/18997/public-healthimplications-of-raising-the-minimum-age-of-legal-access-to-tobacco-products. 146 Villanti AC, Johnson AL, Ambrose BK, et al. Flavored Tobacco Product Use in Youth and Adults: Findings From the First Wave of the PATH Study (2013-2014). Am J Prev Med. 2017;53(2):139-151. doi: 10.1016/j.amepre.2017.01.026. 147 California Department of Public Health, California Tobacco Control Program. 2016 Healthy Stores for a Healthy Community Survey Results-all counties. 2016. Available at: https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/ CDPH%20Document%20Library/ResearchandEvaluation/Reports/HSHCTechnicalReport2016.pdf. 148 Hersey JC, Ng SW, Nonnemaker JM, et al. Are menthol cigarettes a starter product for youth? Nicotine Tob Res. 2006;8(3):403-413. doi: 10.1080/14622200600670389.
149 Wackowski O, Delnevo CD. Menthol cigarettes and indicators of tobacco dependence among adolescents. Addict Behav. 2007;32(9):1964-1969. doi: 10.1016/j.addbeh.2006.12.023. 150 Oliver AJ, Jensen JA, Vogel RI, Anderson AJ, Hatsukami DK. Flavored and nonflavored smokeless tobacco products: rate, pattern of use, and effects. Nicotine Tob Res. 2013;15(1):88-92. doi: 10.1093/ntr/nts093. 151 Villanti AC, Johnson AL, Glasser AM, et al. Association of Flavored Tobacco Use With Tobacco Initiation and Subsequent Use Among US Youth and Adults, 2013-2015. JAMA Netw Open. 2019;2(10):e1913804. doi:
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152 Yerger VB, Przewoznik J, Malone RE. Racialized geography, corporate activity, and health disparities: tobacco industry targeting of inner cities. J Health Care Poor Underserved. 2007;18(4 Suppl):10-38. doi: 10.1353/hpu.2007.0120. 153 Kreslake JM, Wayne GF, Alpert HR, Koh HK, Connolly GN. Tobacco industry control of menthol in cigarettes and targeting of adolescents and young adults. Am J Public Health. 2008;98(9):1685-1692. doi: 10.2105/AJPH.2007.125542. 154 Henriksen L, Schleicher NC, Dauphinee AL, Fortmann SP. Targeted advertising, promotion, and price for menthol cigarettes in California high school neighborhoods. Nicotine Tob Res. 2012;14(1):116-121. doi: 10.1093/ntr/ntr122. 155 Courtemanche CJ, Palmer MK, Pesko MF. Influence of the Flavored Cigarette Ban on Adolescent Tobacco Use. Am J Prev Med. 2017;52(5):e139-e146. doi: 10.1016/j.amepre.2016.11.019. 156 Farley SM, Johns M. New York City flavoured tobacco product sales ban evaluation. Tob Control. 2017;26(1):78-84. doi:
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157 Pearlman DN, Arnold JA, Guardino GA, Boles Welsh E. Advancing Tobacco Control Through Point of Sale Policies, Providence, Rhode Island. Prev Chronic Dis. 2019;16:E129. doi: 10.5888/pcd16.180614. 158 Hoffmann D, Hoffmann I. Chapter 3: Chemistry and Toxicology. In: Smoking and Tobacco Control Monograph No. 9:
Cigars: Health Effects and Trends. National Cancer Institute; 1998. 159 National Cancer Institute. Cigar Smoking and Cancer. 2020; https://www.cancer.gov/about-cancer/causesprevention/risk/tobacco/cigars-fact-sheet. Accessed May 12, 2020. 160 Waziry R, Jawad M, Ballout RA, Al Akel M, Akl EA. The effects of waterpipe tobacco smoking on health outcomes: an updated systematic review and meta-analysis. Int J Epidemiol. 2017;46(1):32-43. doi: 10.1093/ije/dyw021.
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161 Stepanov I, Biener L, Knezevich A, et al. Monitoring tobacco-specific N-nitrosamines and nicotine in novel Marlboro and Camel smokeless tobacco products: findings from Round 1 of the New Product Watch. Nicotine Tob Res. 2012;14(3):274- 281. doi: 10.1093/ntr/ntr209.
162 National Cancer Institute. Monograph 2: Smokeless Tobacco or Health: An International Perspective. 1992. 163 Pickworth WB, Rosenberry ZR, Koszowski B. Large Cigars: Smoking Topography and Toxicant Exposure. Nicotine Tob Res. 2018;20(2):183-191. doi: 10.1093/ntr/ntw289.
164 Pickworth WB, Rosenberry ZR, Yi D, et al. Cigarillo and Little Cigar Mainstream Smoke Constituents from Replicated Human Smoking . Chem Res Toxicol. 2018;31(4):251-258. doi: 10.1021/acs.chemrestox.7b00312. 165 Yao T, Ong MK, Max W, et al. Responsiveness to cigarette prices by different racial/ethnic groups of US adults. Tob Control. 2018;27(3):301-309. doi: 10.1136/tobaccocontrol-2016-053434. 166. Levy DT, Tam J, Kuo C, Fong GT, Chaloupka F. The Impact of Implementing Tobacco Control Policies: The 2017 Tobacco Control Policy Scorecard. J Public Health Manag Pract. 2018;24(5)448-457. doi: 10.1097/PHH.0000000000000780. 167 Tessman GK, Caraballo RS, Corey CG, Xu X, Chang CM. Exposure to tobacco coupons among U.S. middle and high school students. Am J Prev Med. 2014;47(2 Suppl 1):S61-68. doi: 10.1016/j.amepre.2014.05.001. 168 Mills SD, Golden SD, Henrisksen L. Neighbourhood disparities in the price of the cheapest cigarettes in the USA. J Epidemiol Community Health. 2019;73(9):894-896. doi: 10.1136/jech-2018-210998. 169 Counter Tobacco. Disparities in Point-of-Sale Advertising and Retailer Density. Available at: https://countertobacco. org/resources-tools/evidence-summaries/disparities-in-point-of-sale-advertising-and-retailer-density. Accessed May 18, 2020.
170 Lempert LK, Glantz SA. Tobacco Industry Promotional Strategies Targeting American Indians/Alaska Natives and Exploiting Tribal Sovereignty. Nicotine Tob Res. 2018. doi: 10.1093/ntr/nty048. 171 Henriksen L, Schleicher NC, Johnson TO, Roeseler A, Zhu SH. Retail Tobacco Marketing in Rural Versus Nonrural Counties:
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172 Osman A, Queen T, Choi K, Goldstein AO. Receipt of direct tobacco mail/email coupons and coupon redemption:
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173 Cal. Penal Code § 308.3(a).
174 Gammon DG, Rogers T, Coats EM, et al. National and state patterns of concept-flavoured cigar sales, USA, 2012-2016.
Tob Control. 2019;28(4):394-400. doi: 10.1136/tobaccocontrol-2018-054348. 175 Gammon DG, Loomis BR, Dench DL, King BA, Fulmer EB, Rogers T. Effect of price changes in little cigars and cigarettes on little cigar sales: USA, Q4 2011-Q4 2013. Tob Control. 2016;25(5):538-544. doi: 10.1136/tobaccocontrol-2015-052343. 176 Jawad M, Lee JT, Glantz S, Millett C. Price elasticity of demand of non-cigarette tobacco products: a systematic review and meta-analysis. Tob Control. 2018;27(6):689-695. doi: 10.1136/tobaccocontrol-2017-054056. 177 Ringel JS, Wasserman J, Andreyeva T. Effects of public policy on adolescents’ cigar use: evidence from the National Youth Tobacco Survey. Am J Public Health. 2005;95(6):995-998. doi: 10.2105/AJPH.2003.030411.178; Katz MH. Banning tobacco sales in pharmacies: the right prescription. JAMA. 2008;300(12):1451-1453. doi: 10.1001/ jama.300.12.1451. 179 Hudmon KS, Fenlon CM, Corelli RL, Prokhorov AV, Schroeder SA. Tobacco sales in pharmacies: time to quit. Tob Control. 2006;15(1):35-38. doi: 10.1136/tc.2005.012278.
180 Golden SD, K T-M, Kong AY, et al. County-level associations between tobacco retailer density and smoking prevalence in the USA, 2012. Prev Med Rep. 2020; Mar:17:101005. doi: 10.1016/j.pmedr.2019.101005. 181 Leas EC, Schleicher NC, Prochaska JJ, Henriksen L. Place-Based Inequity in Smoking Prevalence in the Largest Cities in the United States. JAMA Intern Med. 2019;179(3):442-444. doi: 10.1001/jamainternmed.2018.5990. 182 Farley SM, Maroko AR, Suglia SF, Thorpe LE. The Influence of Tobacco Retailer Density and Poverty on Tobacco Use in a Densely Populated Urban Environment. Public Health Rep. 2019;134(2):164-171. doi: 10.1177/0033354918824330. 183 Abdel Magid HS, Halpern-Felsher B, Ling PM, et al. Tobacco Retail Density and Initiation of Alternative Tobacco Product Use Among Teens. J Adolesc Health. 2020;66(4):423-430. doi: 10.1016/j.jadohealth.2019.09.004.
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184 Cantrell J, Anesetti-Rothermel A, Pearson JL, Xiao H, Vallone D, Kirchner TR. The impact of the tobacco retail outlet environment on adult cessation and differences by neighborhood poverty. Addiction. 2015;110(1):152-161. doi:
10.1111/ add.12718.
185 Vyas P, Tsoh JY, Gildengorin G, et al. Disentangling individual and neighborhood differences in the intention to quit smoking in Asian American male smokers. Prev Med Rep. 2020;18:101064. doi: 10.1016/j.pmedr.2020.101064. 186 Shareck M, Datta GD, Vallee J, Kestens Y, Frohlick KL. Is Smoking Cessation in Young Adults Associated With Tobacco Retailer Availability in Their Activity Space? Nicotine Tob Res. 2020;22(4):512-521. doi: 10.1093/ntr/nty242. 187 Rodriguez D, Carlos HA, Adachi-Mejia AM, Berke EM, Sargent J. Retail tobacco exposure: using geographic analysis to identify areas with excessively high retail density. Nicotine Tob Res. 2014;16(2):155-165. doi: 10.1093/ntr/ntt126. 188 Myers AE, Hall MG, Isgett LF, Ribisl KM. A comparison of three policy approaches for tobacco retailer reduction. Prev Med. 2015;74:67-73. doi: 10.1016/j.ypmed.2015.01.025.
189 Luke DA, Hammond RA, Combs T, et al. Tobacco Town: Computational Modeling of Policy Options to Reduce Tobacco Retailer Density. Am J Public Health. 2017;107(5):740-746. doi: 10.2105/AJPH.2017.303685.190; Henriksen L, Schleicher NC, Ababseh K, Johnson TO, Fortmann SP. Marijuana as a ‘concept’ flavour for cigar products: availability and price near California schools. Tob Control. 2017. doi: 10.1136/tobaccocontrol-2017-053961. 191 Richter L, Pugh BS, Smith PH, Ball SA. The co-occurrence of nicotine and other substance use and addiction among youth and adults in the United States: implications for research, practice, and policy. Am J Drug Alcohol Abuse. 2017;43(2):132- 145. doi: 10.1080/00952990.2016.1193511.
192 Conway KP, Green VR, Kasza KA, et al. Co-occurrence of Tobacco Product Use, Substance Use, and Mental Health Problems Among Youth: Findings From Wave 1 (2013-2014) of the Population Assessment of Tobacco and Health (PATH) Study. Addict Behav. 2018;76:208-217. doi: 10.1016/j.addbeh.2017.08.009. 193 DiFranza JR. Best Practices for Enforcing State Laws Prohibiting the Sale of Tobacco to Minors. J Public Health Manag Pract. 2005;11(6):559-565. doi: 10.1097/00124784-200511000-00014. 194 Macinko J, Silver D. Impact of New York City’s 2014 Increased Minimum Legal Purchase Age on Youth Tobacco Use. Am J Public Health. 2018;108(5):669-675. doi: 10.2105/AJPH.2018.304340. 195 Institute of Medicine. Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products.
Washington, DC: National Academies Press. 2015.
Item #5.5.
City of Calistoga
STAFF REPORT
To: Honorable Mayor and City Council
From: Yudiana Galvan, City Clerk
Meeting: City Council - Oct 01 2024
Subject: Appointing a Councilmember Liaison to the Green Committee AGENDA TITLE:
Consider Adopting a Resolution Appointing Councilmember Eisenberg as Liaison to the Green Committee
RECOMMENDATION:
Consider Adopting the Resolution
BACKGROUND:
The City Council has established various local public advisory bodies. These advisory bodies are responsible for making recommendations on current topics and projects for the Council to consider when making a final determination. The City Council has established a liaison between the City Council and the Green Committee, Active Transportation Committee, Housing Advisory Committee and Planning Commission to create a closer connection with the City Council and their work.
The Mayor has appointed Councilmember Eisenberg to be the Council Liaison for the Green Committee.
FINANCIAL IMPACT:
No Impact
CEQA STATUS:
No Impact
ATTACHMENT(S):
Draft Resolution Liaisons
APPROVAL(S):
Laura Snideman, City Manager Approved - Sep 24 2024
Yudiana Galvan, City Clerk Approved - Sep 24 2024
Item #5.6.
RESOLUTION NO. 2024–XXX
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CALISTOGA , COUNTY OF NAPA, STATE OF CALIFORNIA CONFIRMING THE MAYOR’S APPOINTMENTS A
COUNCILMEMBER LIAISON TO THE GREEN COMMITTEE
WHEREAS, California Government Code Section 40605 states the Mayor, with the approval of the City Council, shall make appointments to boards and commissions;
WHEREAS, a Councilmember shall be appointed to each committee to act as a liaison between the committee and the Council;
WHEREAS, the Councilmember Liaison will be a positive resource to support their committee in the successful completion of their work; WHEREAS, the City has set the following guidelines for the role and purpose of the Councilmember Liaison:
Role and Purpose of a Liaison
1. The primary role of the Liaison is to facilitate communications between the Commissions and the Council.
2. The Councilmember Liaison shall bring to the Council any requests from the Committee such as: Questions raised by the Committee about their scope of work or requests to make changes to their scope of work, requests for expenditures of the City resources (funds, staff time, or other resources), requests from the Committee to place and item on a Council agenda for discussion.
3. The Liaison should work to ensure that the committee is only taking action or doing the work within the scope determined or approved by the Council.
4. The Liaison should not be an advocate for the Commission, give direction, or influence a decision of the Commission. The Liaison may, however, assist and provide information.
5. The Councilmember Liaison shall work to ensure the Council is regularly updated on the work of the Committee.
6. The Council should meet annually to discuss the work plan of each Committee and hear from each Committee's Liaison to report on the Committee's progress of the workplan, and revisit the need for the Committee to remain.
7. The Councilmember Liaison shall not take part in the Committee's deliberations or discussions unless the Committee requests the Liaison's participation, in which case the Councilmember must expressly state that he or she is only speaking for themselves and not for the entire Council.
8. The Councilmember Liaison will encourage the Committee to stay within the scope of their work and should remind the Committee of the Council direction, City policies or laws, including the Brown Act and the Public Records Act if needed.
9. Attendance to the Committee meetings is encouraged but not required and shall be at the discretion of the Councilmember. The Councilmember shall not take Item #5.6.
part in any votes or decision making of the Committee and shall not be considered per purposes of a quorum.
NOW, THEREFORE BE IT RESOLVED, by the City Council of the City of Calistoga hereby confirms the the Mayor’s appointment of:
Councilmember Eisenberg as Green Commitee Liaison
PASSED, APPROVED AND ADOPTED this 1
st day of OCTOBER 2024. I,
YUDIANA GALVAN, CITY CLERK OF THE CITY OF CALISTOGA, HEREBY CERTIFY the foregoing resolution was introduced and passed at a regular meeting of the Calistoga City Council by the following roll call vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ___________________________
Yudiana Galvan, City Clerk Donald Williams, Mayor
Item #5.6.
City of Calistoga
STAFF REPORT
To: Honorable Mayor and City Council
From: Sheli Wright, Fairgrounds Revitalization Director Meeting: City Council - Oct 01 2024
Subject: Fairgrounds Landscape Maintenance Professional Services Agreement AGENDA TITLE:
Consider adopting a Resolution authorizing the City Manager to execute a Landscape Maintenance Services Agreement with BrightView Landscape Services, Inc. for fairgrounds landscape maintenance services.
RECOMMENDATION:
Consider adopting the attached Resolution and authorize the City Manager to enter into an agreement for a period of five years commencing on December 1, 2024.
BACKGROUND:
It is the intent of the City to enter into a service agreement for landscape maintenance of its recently acquired fairgrounds property at 1407 & 1435 North Oak Street.
Services shall include mowing and blowing landscapes, general tree and shrub maintenance, irrigation and drainage maintenance.
On June 26, 2024, the City of Calistoga Public Works Department released a request for proposal(s) for landscape maintenance services at 1407 & 1435 North Oak Street (71 Acre Fairgrounds property). BrightView Landscape Services, Inc., was the unanimous choice from the landscape maintenance scoring panel due to cost and industry experience. BrightView is an industry leader in native and sustainable landscapes and a Napa County based vendor who reports that they are committed to manage the landscape in a safe, proactive and cost-effective manner with a commitment to the City and its residents.
ANALYSIS:
Due to the previous abandonment of said property(s), the first year of service of this contract will include up to $275,000 of irrigation repair and automation and $65,700 of safety tree removal.
Subsequent years will be paid at the cost ceiling of $155,877 plus Consumer Price Index.
FINANCIAL IMPACT:
Total compensation for all services provided shall not exceed Five-Hundred Six-Thousand, FiveHundred Seventy-Seven Dollars ($506,577) (“Cost Ceiling” for the first year) and One-Hundred Fifty-Five Thousand per year, plus prior year Consumer Price Index (CPI) percentage for the second through fifth years (“Cost Ceiling” for subsequent years).
CEQA STATUS:
Exempt
Item #7.1.
ATTACHMENT(S):
Resolution BrightView Landscape Services
Landscape Maintenance Services Agreement - City of Calistoga - BV signed APPROVAL(S):
Connie Cardenas, Admin. Services Director Approved - Sep 23 2024 Laura Snideman, City Manager Approved - Sep 23 2024
Yudiana Galvan, City Clerk Approved - Sep 23 2024
Item #7.1.
Attachment 1
RESOLUTION NO. 2024-XXX
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CALISTOGA, COUNTY OF
NAPA, STATE OF CALIFORNIA, AUTHORIZING THE EXECUTION OF A
CONSULTANT SERVICES AGREEMENT WITH BRIGHTVIEW LANDSCAPE SERVICES, INC.
WHEREAS, the Calistoga City Council has placed emphasis on care and preservation of their newly acquired fairgrounds property; and WHEREAS, the Calistoga City Council desires to keep this property clean with refurbished irrigation and a maintained landscape; and
WHEREAS, the Calistoga City Council wishes to enter into a five-year consultant services agreement with BrightView Landscape Services to establish a set of specific tasks and services which will be provided to the City for landscape services by BrightView Landscape Services; and
NOW, THEREFORE BE IT RESOLVED that the Calistoga City Council hereby authorizes the City Manager to execute a five-year professional services agreement with BrightView Landscape Services and further authorizes the payment of invoices for services rendered by BrightView Landscape Services in the amount of five-hundred six-thousand, five-hundred seventy-seven dollars ($506,577) (“cost ceiling” for the first year) and onehundred fifty-five thousand per year, plus prior year Consumer Price Index (CPI) percentage for the second through fifth years (“Cost Ceiling” for subsequent years).
PASSED, APPROVED AND ADOPTED this 1
st day of October 2024.
I, YUDIANA GALVAN, CITY CLERK OF THE CITY OF CALISTOGA, HEREBY CERTIFY the foregoing resolution was introduced and passed at a regular meeting of the Calistoga City Council by the following roll call vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST: APPROVED:
____________________________ ____________________________ Yudiana Galvan, City Clerk Donald Williams, Mayor
Item #7.1.
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MASTER AGREEMENT FOR CONSULTANT SERVICES
This Master Agreement for Consultant Services (the "Agreement") is made and entered into this _____________ day of October, 2024, by and between THE CITY OF CALISTOGA, a municipal corporation (hereinafter referred to as "CITY") and BrightView Landscape Services, Inc., a corporation (hereinafter referred to as "CONSULTANT"). CITY and CONSULTANT may be referred to individually as “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, CITY requires Landscape Maintenance Services in connection with the property at 1407 & 1435 North Oak Street, Calistoga, CA; WHEREAS, CONSULTANT is qualified to perform such services; and WHEREAS, CONSULTANT has agreed to provide CITY with such services on the terms and conditions set forth herein.
NOW, THEREFORE, for the considerations hereinafter set forth, CONSULTANT and CITY agree as follows:
ARTICLE 1 - SCOPE OF SERVICES
1.1. Scope of Services. CONSULTANT agrees to furnish services pursuant to a Task Order in the form set forth in Exhibit A, Task Order, which is attached hereto and incorporated herein (the "Services").
1.2. Compliance with Law. The Services shall be performed in accordance with all applicable federal, state and local laws, ordinances, rules, regulations and orders.
1.3. Time is of the Essence. CONSULTANT agrees to diligently prosecute the Services. In the performance of this Agreement, time is of the essence.
1.4. Professional Competence. CONSULTANT represents that it has the professional skills necessary to perform the Services and that it will perform the Services in a skillful and professional manner. CONSULTANT represents that it has all the necessary licenses to perform the Services and shall maintain them throughout the term of this Agreement.
CONSULTANT agrees that the Services shall be performed in the manner and according to the standards observed by a competent practitioner of the profession in which CONSULTANT is engaged, in the same or similar geographical area in which CONSULTANT practices its profession, and will prepare all work products required by this Agreement in accordance with such standards. CITY and CONSULTANT agree that CONSULTANT is in responsible charge of the Services and CITY shall have no control over the method or means of performance of the Services. Acceptance by CITY of the Services does not operate as a release of CONSULTANT from professional responsibility for the Services performed.
Item #7.1.
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1.5. Independent Contractor. CONSULTANT is an independent contractor and not an employee of CITY. CONSULTANT expressly warrants that it will not represent that it is an employee of CITY. Persons employed or utilized by CONSULTANT in the performance of the Services will not be employees or agents of CITY. CONSULTANT is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.
1.6. Confidentiality. CONSULTANT agrees to maintain in confidence and not disclose to any person, firm, governmental entity, or corporation, without CITY's prior written consent, any trade secret or confidential information, knowledge or data relating to the products, process, or operation of CITY. CONSULTANT further agrees to maintain in confidence and not to disclose to any person, firm, governmental entity, or corporation any data, information, technology, or material developed or obtained by CONSULTANT during the performance of the Services. The covenants contained in this Section 1.6 shall survive the termination of this Agreement for whatever cause.
1.7. Ownership of Material. Any reports and other material prepared by or on behalf of CONSULTANT under this Agreement (collectively, the "Documents") shall be and remain the property of CITY. All Documents not already provided to CITY shall be delivered to CITY on the date of termination of this Agreement for any reason. The Documents may be used by CITY and its agents, employees, representatives, and assigns, in whole or in part, or in modified form, for all purposes CITY may deem appropriate without further employment of or payment of any compensation to CONSULTANT.
1.8. Documentation. CONSULTANT shall keep and maintain full and complete documentation and accounting records, employee time sheets, and correspondence pertaining to the performance of the Services, and CONSULTANT shall make such documents available for review and/or audit by CITY and CITY's representatives at all reasonable times for at least four years after the termination of this Agreement or completion of the Services.
1.9. Testimony. CONSULTANT agrees to testify at CITY's request if litigation is brought against CITY in connection with the Services. Unless the action is brought by CONSULTANT or is based upon CONSULTANT's negligence, CITY will compensate CONSULTANT for the preparation and the testimony at CONSULTANT's standard hourly rates.
ARTICLE 2 - COMPENSATION
2.1. Compensation. Compensation for the Services shall be in accordance with the rate and schedules specified in a Task Order. However, in no event shall the amount the CITY pays to CONSULTANT for work done under a Task Order exceed the total compensation specified in the Task Order (“Cost Ceiling”).
2.2. Invoices. CONSULTANT shall submit monthly invoices in a form satisfactory to CITY on or before the tenth day of each month for Services provided during the preceding month. CONSULTANT shall submit time and cost records as necessary to substantiate Item #7.1.
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performance of the Services. Within 35 days after receipt of each such invoice, CITY shall verify the accuracy of the invoice, correct the charges where appropriate and as discussed and mutually agreed with CONSULTANT, and make payment to CONSULTANT in an amount equal to the amount of such invoice, as verified or corrected by CITY. No payment hereunder shall be construed as evidence of acceptance of any of CONSULTANT's work. CITY reserves the right to withhold payment from CONSULTANT on account of Services not performed satisfactorily, delays in CONSULTANT's performance of Services, or other defaults hereunder. CONSULTANT shall not stop or delay performance of the Services under this Agreement on account of payment disputes with CITY.
2.3. Status Reports. Together with each monthly invoice, CONSULTANT shall submit a status report detailing the amount expended on the Services to that date and the remaining amount to be expended before the Cost Ceiling is reached. CONSULTANT shall notify CITY in writing when payments have reached 90 percent of the Cost Ceiling.
2.4. Withholding. In lieu of holding retention, CITY shall withhold CONSULTANT's final payment under a Task Order until the Services provided under that Task Order are complete and CITY has received all Documents. CONSULTANT shall diligently continue and complete performance of the Services if the Services are not complete at the time CONSULTANT has performed services up to the Cost Ceiling.
ARTICLE 3 - TIME OF PERFORMANCE
3.1. Effective Date. This Agreement shall become effective on December 1, 2024, and shall remain in full force and effect until November 30, 2029, (the "Term"). Notwithstanding the foregoing, this Agreement may be extended for successive one-year term(s) upon mutual, written approval by the City Manager or his/her designee and CONSULTANT.
Work authorized by a Task Order shall be performed in accordance with the schedule set forth in the Task Order.
3.2. Termination. This Agreement may be terminated at any time by CITY upon written notice to CONSULTANT, and at any time by CONSULTANT upon one-hundred twenty days (120) to CITY.
3.3. Final Payment. CONSULTANT shall be entitled to compensation for Services performed up to the time of such termination, it being understood that any payments are full compensation for the Services rendered under this Agreement.
3.4. Other Remedies. Nothing in this Article 3 shall be deemed to limit the respective rights of the parties to terminate this Agreement for cause or otherwise to exercise any rights or pursue any remedies which may accrue to them.
ARTICLE 4 - DESIGNATED CONTACTS
4.1. CITY Contact. CITY designates Sheli Wright, its Fairgrounds Director, as its contact who shall be responsible for administering and interpreting the terms and conditions of this Agreement, for matters relating to CONSULTANT's performance under this Agreement, and for liaison and coordination between CITY and CONSULTANT. In the Item #7.1.
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event CITY wishes to make a change in CITY 's representative, CITY will notify CONSULTANT of the change in writing.
4.2. CONSULTANT Contact. CONSULTANT designates Adam Thouzenot as its contact, who shall have immediate responsibility for the performance of the Services and for all matters relating to performance under this Agreement. Any change in CONSULTANT's designated contact shall be subject to written approval by CITY.
ARTICLE 5 - INDEMNIFICATION AND INSURANCE
5.1. Indemnification. CONSULTANT shall, to the fullest extent allowed by law, with respect to claims, liability, loss, damage, costs, or expenses, including reasonable attorney's and expert witness fees, awards, fines, penalties, or judgments, arising out of or relating to the Services (collectively "Claims") that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT, defend, indemnify, and hold harmless CITY, its Officials, officers, employees and agents (the "CITY Parties"), except to the extent the Claims are attributable to CITY Parties' gross negligence or willful misconduct. CONSULTANT shall defend the CITY Parties as required by California Civil Code Section 2778, and with counsel reasonably acceptable to those parties. CONSULTANT shall have no right to seek reimbursement from the CITY Parties for the costs of defense.
In the event that CONSULTANT or any employee, agent, or subcontractor of CONSULTANT providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (CalPERS) to be eligible for any CalPERS benefits arising from services provided to CITY under this Agreement, CONSULTANT shall indemnify, defend, and hold CITY harmless from any and all claims, losses, liabilities, damages, taxes, expenses and costs, including without limitation, attorneys’ fees and court costs incurred, including but not limited to, the payment of any employee and/or employer contributions for CalPERS service credit on behalf of CONSULTANT or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions which would otherwise be the responsibility of CITY.
If CONSULTANT is a “design professional,” as defined in California Civil Code Section 2782.8(c), CONSULTANT shall indemnify, defend, and hold the Indemnitees harmless against Liability only to the extent such Liability arises out of, pertains to, or relates to CONSULTANT’s negligence, recklessness, or willful misconduct. In such an event, the cost to defend charged to CONSULTANT shall not exceed CONSULTANT’s proportionate percentage of fault.
The obligations contained in this Section 5.1 shall survive the termination of this Agreement for whatever cause for the full period of time allowed by law and shall not in any way be limited by the insurance requirements of this Agreement.
5.2. Health and Safety. CONSULTANT may perform part of the Services at sites which contain unknown working conditions and contaminated materials. CONSULTANT shall Item #7.1.
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be solely responsible for the health and safety of CONSULTANT's employees during the performance of the Services.
5.3. Insurance. CONSULTANT and all of CONSULTANTS employees, subcontractors, consultants and other agency shall procure, provide and maintain at all times during the performance of this Agreement, and for such additional periods as described herein, the insurance listed below with insurers licensed to do business in the State of California and with a Best's rating of no less than A:VII.
A. Commercial Automobile Liability Insurance. Commercial Automobile Liability Insurance providing bodily injury liability and property damage, to protect against all liability arising out of the use of any owned, leased, passenger or commercial automobile at a minimum amount of $1,000,000 combined single limit and $2,000,000 aggregate. Coverage shall apply to hired and non-owned autos.
B. Commercial General Liability Insurance. Commercial General Liability Insurance, with limits providing a minimum amount of $1,000,000 combined single limit coverage for each occurrence, $2,000,000 general aggregate and $2,000,000 products/completed operations aggregate. The insurance shall cover all operations including but not limited to the following: (1) premises, operations and mobile equipment liability; (2) completed operations and products liability; (3) contractual liability insuring the obligations assumed by CONSULTANT in this Agreement; (4) broad form property damage liability; (5) personal injury liability endorsement, including death; and (6) automobile bodily injury and property damage insurance, including all owned, hired and non-owned equipment.
C. Professional Liability Insurance. Professional Liability Insurance protecting against liabilities arising out of or in connection with negligent acts, errors, or omissions of CONSULTANT and all of CONSULTANTS employees, subcontractors, consultants and other agency in connection with this Agreement, at a minimum amount of $1,000,000 combined single limit coverage and $1,000,000 aggregate, on a "claims made basis" with a continuation of coverage extension for liabilities for two years from the date the Services are substantially complete. Such professional liability policies shall include coverage for liability assumed by the CONSULTANT under this Agreement.
D. Workers Compensation Insurance. Workers Compensation insurance, occupational disease insurance and employer’s liability insurance shall be required with minimum limits as required by law, covering all workplaces involved in this Agreement.
E. Policy Terms. Concurrently with execution of this Agreement, CONSULTANT shall provide CITY with Certificates of Insurance evidencing that CONSULTANT has obtained or maintains the insurance required by this Section
5.3. The Certificates shall be on forms acceptable to CITY. CONSULTANT shall also furnish CITY with original endorsements with the following documentation:
Item #7.1.
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• Precluding cancellation or reduction in coverage before the expiration of thirty (30) days after CITY shall have received written notification thereof from CONSULTANT by United States mail;
• Providing that CONSULTANT's insurance shall apply separately to each insured against whom claim is made or suit is brought, and include a “separation of insureds” or “severability” clause which treats each insured separately, except with respect to the limits of the insurer's liability (cross-liability endorsement);
• Excepting CONSULTANT’S professional liability insurance, naming CITY, its City Council, boards, commissions, committees, officers, employees and agents as additional insureds (“Additional Insureds”); and • Providing that for any claims relating to CONSULTANT's services hereunder, CONSULTANT's insurance coverage shall be primary insurance with respect to CITY, its City Council, boards, commissions, committees, officers, employees and agents, and that any insurance or self-insurance maintained by CITY for itself, its City Council, boards, commissions, committees, officers, employees and agents shall be in excess of CONSULTANT's insurance and shall not be contributory with it.
• It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverages requirements and/or limits shall be available to the Additional Insured, including but not limited to any umbrella or excess insurance.
Furthermore, the requirements for coverage and limits shall be the greater of:
(a) the minimum coverage and limits specified in this Agreement; or (b) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured.
F. Waiver of Subrogation: CONSULTANT hereby grants to CITY a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the CITY by virtue of the payment of any loss under such insurance.
CONSULTANT hereby agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer. However, the Worker’s Compensation policy required by Section 5.3(D) of this Agreement shall be endorsed with a waiver of subrogation in favor of CITY for all work performed by CONSULTANT, its employees and/or agents.
G. Material Breach. If CONSULTANT fails to maintain insurance coverage or provided insurance documentation which is required pursuant to this Agreement, it shall be deemed a material breach of this Agreement. CITY, at its sole option, may terminate this Agreement and obtain damages from CONSULTANT resulting from said breach. Alternatively, CITY may purchase the required insurance coverage, and without further notice to CONSULTANT, may deduct from sums due to CONSULTANT any premium costs advanced by CITY for such insurance. These remedies shall be in addition to any other remedies available to CITY.
Item #7.1.
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ARTICLE 6 - NOTICES
All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by facsimile or reputable overnight courier and shall be deemed received upon the earlier of: (1) if personally delivered, the date of delivery to the address of the person to receive such notice; (2) if delivered by Federal Express or other overnight courier for next business day delivery, the next business day; (3) if sent by facsimile, with the original sent on the same day by overnight courier, the date on which the facsimile is received, provided it is before 5:00 P.M. Pacific Time; or (4) if sent electronically, the date of delivery on the confirmed read receipt. Notice of change of address shall be given by written notice in the manner described in this Article 6. Rejection or other refusal to accept or the inability to deliver because of a change in address of which no notice was given shall be deemed to constitute receipt of the notice or communication sent. Unless changed in accordance herewith, the addresses for notices given pursuant to this Agreement shall be as follows:
If to CITY: City Clerk
1232 Washington Street
Calistoga, CA 94515
Email: [email protected]
Phone: 707-942-2806
If to CONSULTANT: David Moo, Business Development
4100 Paoli Loop Rd.
American Canyon, CA 94503
Email: [email protected]
Phone : 951-406-5904
ARTICLE 7 - MISCELLANEOUS
7.1. Conflict of Interest Prohibition. CITY and CONSULTANT will comply with the requirements of the CITY’s Conflict of Interest Code adopted pursuant to California Government Code §87300 et seq., the Political Reform Act (California Government Code §81000 et seq.), the regulations promulgated by the Fair Political Practices Commission (Title 2, §18110 et seq. of the California Code of Regulations), California Government Code §1090 et seq., and any other ethics laws applicable to the performance of the Services and/or this Agreement. CONSULTANT may be required to file with the CITY Clerk a completed Form 700 before commencing performance of the Services unless the CITY Clerk determines that completion of a Form 700 is not required, pursuant to CITY’s Conflict of Interest Code. Form 700 forms are available from the CITY Clerk.
CONSULTANT may not perform Services for any other person or entity that, pursuant to any applicable law or regulation, would result in a conflict of interest or would otherwise be prohibited with respect to CONSULTANT’s obligations pursuant to this Agreement.
CONSULTANT agrees to cooperate fully with CITY and to provide any necessary and Item #7.1.
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appropriate information requested by CITY or any authorized representative concerning potential conflicts of interest or prohibitions concerning CONSULTANT’s obligations pursuant to this Agreement.
CONSULTANT may not employ any CITY official, officer or employee in the performance of the Services, nor may any official, officer or employee of CITY have any financial interest in this Agreement that would violate California Government Code §1090 et seq. CONSULTANT hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of CITY. If CONSULTANT was an employee, agent, appointee, or official of CITY in the previous twelve months, CONSULTANT warrants that it did not participate in any manner in the forming of this Agreement. CONSULTANT understands that, if this Agreement is made in violation of Government Code §1090 et seq., the entire Agreement is void and CONSULTANT will not be entitled to any compensation for CONSULTANT’s performance of the Services, including reimbursement of expenses, and CONSULTANT will be required to reimburse CITY for any sums paid to CONSULTANT under this Agreement. CONSULTANT understands that, in addition to the foregoing, penalties for violating Government Code §1090 may include criminal prosecution and disqualification from holding public office in the State of California.
Any violation by CONSULTANT of the requirements of this provision will constitute a material breach of this Agreement, and the CITY reserves all its rights and remedies at law and equity concerning any such violations.
7.2. Subcontracting. CONSULTANT may subcontract portions of the Services upon the prior written approval of CITY. CONSULTANT will be solely responsible for payment of such subcontract Services. No contractual relationship will exist between any such subcontractors of CONSULTANT and CITY. CONSULTANT’s subcontractors agree to be bound to CONSULTANT and CITY in the same manner and to the same extent as CONSULTANT is bound to CITY under the Agreement. CONSULTANT’s subcontractors further agree to include the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, with any subsubcontractor to the extent they apply to the scope of the sub-subcontractor’s work. A copy of the CITY indemnity and insurance provisions will be furnished to CONSULTANT’s subcontractors upon request.
7.3. Entire Agreement. This Agreement represents the entire understanding of CITY and CONSULTANT as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may only be modified by an amendment in writing signed by each party.
7.4. No Assignment. The Services are deemed unique and neither party shall assign, transfer, subcontract or otherwise substitute its interest in this Agreement or any of its obligations hereunder without the prior written consent of the other party. As limited by this Section
7.2, this Agreement is to be binding on the successors and assigns of the parties hereto.
Item #7.1.
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7.5. Severability. If any part of this Agreement is determined to be unconstitutional, invalid or beyond the authority of either party, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement can be interpreted to give effect to the intentions of the parties.
7.6. Counterparts. This Agreement may be signed in counterparts and, when fully signed, such counterparts shall have the same effect as if signed in one document.
7.7. Choice of Law. This Agreement and all matters relating to it shall be governed by the laws of the State of California without reference to its choice of laws principles and venue shall be in the appropriate court in Napa County, California.
7.8. Waiver. No failure on the part of either Party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder. A waiver by either CITY or CONSULTANT of any breach of this Agreement shall not be binding upon the waiving party unless such waiver is in writing. In the event of a written waiver, such a waiver shall not affect the waiving party's rights with respect to any other further breach.
7.9. Mediation. In the event the parties are unable to resolve a dispute arising under this Agreement through good faith negotiations, the parties agree to submit the matter to mediation with a mutually agreeable mediator. Prior to the mediation, the parties shall exchange any documents reasonably necessary to resolve the matter to be mediated.
7.10. Interpretation. In the event this Agreement is ever construed in any dispute between the parties, it and each of its provisions shall be construed without regard to the party or parties responsible for its preparation and shall be deemed to have been prepared jointly by the parties. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement.
7.11. Authority. Each individual executing this Agreement on behalf of one of the parties represents that he or she is duly authorized to sign and deliver the Agreement on behalf of such party and that this Agreement is binding on such party in accordance with its terms.
7.12. Third Parties. Nothing contained in this Agreement shall create a contractual relationship with, or cause of action in favor of, a third party against either the CITY or CONSULTANT. CONSULTANT’s Services hereunder are being performed solely for the benefit of CITY. CITY shall be an express third-party beneficiary of all contracts between CONSULTANT and any subcontractors or subconsultants in connection with any services performed in connection with, or in furtherance of, this Agreement. ***
[Signatures on Next Page]
Item #7.1.
- 10 -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.
CITY OF CALISTOGA
By: Date
Laura Snideman, City Manager
CONSULTANT
By: Date
By: Date
Attest:
By: ___________________________
Yudiana Galvan, City Clerk
Approved As To Form
By:
Michelle Marchetta Kenyon, City Attorney
Regional Finance Manager 09/27/2024
Item #7.1.
ATTACHMENT “A”
SCOPE OF WORK
The work to be performed under the Contract consists of furnishing of all labor, insurance, materials, and equipment needed to perform Landscape Maintenance Services at the Property. The Racetrack and the 9-hole Golf Course require only standard turf mowing, weeding, and irrigation maintenance. The work does not include other landscape maintenance activities typical of fully-operational golf courses, such as preparing greens, fairways, rough, and similar. The service requires a tree crew and arborist for removal of 11 trees at the Golf Course and 13 trees in areas surrounding the Racetrack, and includes tree maintenance for surviving trees.
BRIGHTVIEW LABOR PLAN
The first year will be 11 employees dedicated to meet the landscape needs of the City of Calistoga.
There will be 7 landscape professionals, 2 Irrigators, 1 Production Manager, and 1 Account Managers. 1) Maintenance Crew – The Maintenance Crew will consist of 7 landscape professionals to handle the all the landscape maintenance of the City of Calistoga. This crew will handle all turf mowing, weed removal, as well as pruning and detail work.
2) Irrigation Crew – The first year there will be 2 irrigation technicians to handle all the irrigation needs of the contract. Aligned with the goal of actively pursuing water conservation, this irrigation technician will handle all irrigation system checks and repairs as outlined in the scope of the RFP. 3) Dedicated Production Manager – The Production Manager will be thoroughly familiar with and able to perform all aspects of the landscape maintenance. The Production Manager will oversee all crew leaders to ensure safety and quality to ensure all BrightView production standards are met. 4) Dedicated Account Manager - BrightView will provide one dedicated Account Manager as the liaison between the City of Calistoga and BrightView who is ultimately responsible for customer satisfaction.
Your Account Manager will be responsible for caring for the landscape maintenance for the City of Calistoga. Your Account Manager will be responsible for ensuring that every facet of the scope of work is adhered to safely and in excellence.
Item #7.1.
BRIGHTVIEW START UP PLAN
BrightView’s transition process is a documented action plan that involves both senior and site management by the customer and BrightView. This process starts out with the overall vision and goals of the partnership.
Implementation plans with specific details and schedules are developed. Timely meetings to review progress are scheduled for both individual sites and overall teams to ensure success.
Job start-Up Needs Evaluation
• Initial job site walk-through is done prior to job start-up to determine specific site-related needs of the customer. Site-specific issues are discussed. A site walk-through is then performed asking more sitespecific questions, which clarify the customer’s needs. • Specific goals set for upcoming year
• Daily, weekly, monthly communication process finalized Goals of Initial Site Meeting:
• Establish a weekly communication process (meetings, reports, etc.) • Clearly establish expectations using contractspecifications and current knowledge of site management
• Present schedule of operations in Gantt format
• Identify ALL special situations, issues, areas & processes • Clearly establish a base safety process and site-specific processes • Document a process for out-of-scope work (P.O., sign-off, billing) • Share emergency call process
• Set short-term improvement goals
• Benchmark existing site status, conditions, and opportunities for improvements
• At our initial kick-off meeting we will confirm communication protocols, review the contract and scope of work along with a timeline on completion of key site initiatives. Moreover, we review our safety protocols, our QSA process and scheduling, and discuss pre-approval thresholds on emergency spending. Here is what to expect in the first 6 months with BrightView at our 30-, 60-, 90-, and 180-day milestones:
• Monthly Review: Client, Account Manager, and Branch Manager • Review agreed upon first month expectations, progress on key initiatives, and lessons learned
• Implement course corrections as may be needed
• Perform site QSA with client
• Confirm site maintenance plan (key site initiatives) for next 30 days Item #7.1.
• Monthly Review: Client, Account Manager, and Branch Manager • Confirm scope alignment & expectations are being exceeded • Review details on QSA and any carryover items
• Check progress and/or completion of key site initiatives • Client Survey touch point
• Business Review: Client, Account Manager, and Branch Manager • Review 90 Day Follow-up Partnership Transition Guide
• Review details on QSA and any carryover items
• Check progress and/or completion of key site initiatives •
Item #7.1.
Oak Street (71-Acre Property)
ATTACHMENT “B”
COMPENSATION
CITY shall pay CONSULTANT for the Services on a cost reimbursement basis, up to the Cost Ceiling (as defined in Section 2.1 of the Agreement). CONSULTANT agrees to use appropriate methods to contain its fees and costs under this Agreement. Compensation shall include only the following costs, which shall all count toward the Cost Ceiling:
1. Direct Labor
Direct labor costs shall be the total number of hours worked on the job by each employee times the agreed hourly rate for such employee's labor as set forth on the attached Exhibit B-1. CITY will pay all personnel at their regular straight-time rate, including any work performed on overtime or on holidays or weekends.
2. Subconsultant Costs
Subconsultant services shall be billed at cost plus a 10 percent markup. CONSULTANT shall provide a copy of each subconsultant's invoice for which it seeks payment from CITY with any invoice in which such payment is requested.
3. Other Direct Costs
The following categories of costs are eligible for reimbursement, which shall be made at the actual cost to CONSULTANT without any additional mark-up:
a. Reasonable living and traveling expenses of employees when away from home office on business in its prosecution of the Services. CONSULTANT must have prior approval of CITY to be reimbursed for these expenses.
b. Automobile expenses for personal vehicle use, if necessary, at the IRS approved mileage rate. c. Reproduction of drawings and specifications by CONSULTANT as required under this Agreement, at rates prevailing in this community for bulk reproduction or at other reasonable rates approved by CITY. d. Special overnight delivery or messenger services.
Payments to CONSULTANT for reimbursable costs/expenses will be made only after the specific costs/expenses have been incurred and CONSULTANT has submitted substantiating documentation, such as copies of paid invoices or other documentation confirming that such costs/expenses have been incurred.
Item #7.1.
ATTACHMENT “B1”
REVISED BID
SCHEDULE CITY OF
CALISTOGA
LANDSCAPE MAINTENANCE SERVICES AT 1407 & 1435 NORTH OAK STREET (71-ACRE
PROPERTY)
ITEM DESCRIPTION ESTIMATED
QUANTITY UNITS UNIT COST AMOUNT
1 Initial Clean Up 1 LS $10,000 $10,000
2 Irrigation Repair and Automation 1 LS $275,000 $275,000 3 Low Grow Season Mowing,
Pruning, Trimming and Weeding 5 MONTHS $9,240 $46,200
4 High Grow Season Mowing
Pruning, Trimming and Weeding 7 MONTHS $13,479 $94,353
5 Hardscape Blowing and Debris
Disposal 12 MONTHS $1,277 $15,324
6 High Priority Tree Removals
Golf Course 1 LS $34,100 $34,100
7 Medium Priority Tree Removals
Fairgrounds 1 LS $31,600 $31,600
TOTAL BASE BID $506,577
Total Base Bid: Five hundred six thousand five hundred seventy-seven Written Amount
BrightView Landscape Services, Inc.
Company Name
Business Development Executive
8/22/24
Signature of Bidder
Dollars
Please Note: Please note: The above base bid is for the first year of service. It is intended that item(s) 1, 2, 6 & 7, will be completed in the first year of service, making the annual bid at $155,877 plus CPI.
Item #7.1.
Item #7.1.
Landscape Maintenance Services Agreement -
City of Calistoga
Final Audit Report 2024-09-28
Created: 2024-09-28
By: David Moo ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAAjR5Du98xzXmHqYUrd5VocVDQ0nJag8Bd "Landscape Maintenance Services Agreement - City of Calistog a" History
Document created by David Moo ([email protected]) 2024-09-28 - 1:14:56 AM GMT- IP address: 52.9.163.53
Document emailed to Melynda Rudolff ([email protected]) for signature 2024-09-28 - 1:16:17 AM GMT
Email viewed by Melynda Rudolff ([email protected]) 2024-09-28 - 1:30:54 AM GMT- IP address: 104.47.66.126
Document e-signed by Melynda Rudolff ([email protected]) Signature Date: 2024-09-28 - 1:45:56 AM GMT - Time Source: server- IP address: 52.9.163.53 Agreement completed.
2024-09-28 - 1:45:56 AM GMT
Item #7.1.
City of Calistoga
STAFF REPORT
To: Honorable Mayor and City Council
From: Rachel Stepp, Deputy City Manager
Meeting: City Council - Oct 01 2024
Subject: First reading of Amendment to Chapter 5.08 of the Calistoga Municipal Code.
AGENDA TITLE:
Consider an Ordinance of the City of Calistoga amending Chapter 5.08 of the City of Calistoga Municipal Code regarding bingo to reflect the full authority granted by the State of California Legislature.
RECOMMENDATION:
Move to introduce and waive further reading of Ordinance Number 772 amending Chapter 5.08 of the City of Calistoga Municipal Code.
BACKGROUND:
California Penal Code 326.5 sets forth regulations governing bingo. The Legislature has amended Penal Code 326.5 several times since the City enacted its bingo ordinance. The City's provisions governing bingo are antiquated and more stringent than State law.
Bingo has been used as a fundraiser by local organizations for decades. Difficulties with the current municipal code were recently brought to staff's attention. The proposed ordinance would amend Municipal Code Chapter 5.08 concerning the licensing and conduct of bingo games. The amendment to the City’s Bingo Ordinance reflects the full authority granted by the Legislature yet removes some of the challenges local non-profits may face in Calistoga without revising our code.
FINANCIAL IMPACT:
The ordinance maintains and enforces a $50 license fee for organizations hosting a bingo game.
CEQA STATUS:
The recommended action is not a project and therefore not subject to CEQA review.
ATTACHMENT(S):
Calistoga Bingo Ordinance
APPROVAL(S):
Connie Cardenas, Admin. Services Director Approved - Sep 20 2024 Laura Snideman, City Manager Approved - Sep 24 2024
Yudiana Galvan, City Clerk Approved - Sep 24 2024
Item #7.2.
Item #7.2.
4895-9761-8404 v2
ORDINANCE NO. 772
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CALISTOGA AMENDING CALISTOGA MUNICIPAL CODE TITLE 5, BUSINESS TAXES, LICENSES AND REGULATIONS, CHAPTER 5.08 BINGO
WHEREAS, the City Council of the City of Calistoga pursuant to the police powers delegated to it by the California Constitution has the authority to enact legislation that promotes the public health, safety, and general welfare of its residents; and
WHEREAS, the City of Calistoga (“City”) has the authority to adopt an ordinance authorizing the game of bingo for charitable purposes in accordance with Section 19 of Article IV of the California Constitution and Section 326.5 of the Penal Code; and WHEREAS, the Legislature has amended Penal Code 326.5 several times since the City enacted its bingo ordinance; and
WHEREAS, the City Council desires that the City’s Bingo Ordinance reflects the full authority granted by the Legislature;
NOW, THEREFORE, THE CALISTOGA CITY COUNCIL DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION ONE
Findings: The above recitals are incorporated herein as if set forth herein in full and each is relied upon independently by the City Council for its adoption of this Ordinance.
SECTION TWO
Chapter 5.08, “BINGO,” of the Calistoga Municipal Code is hereby repealed, and Chapter 5.08, “BINGO,” is enacted, to read as set forth in its entirety in Exhibit A.
SECTION THREE
The City Council hereby determines that this Ordinance is exempt from review under the California Environmental Quality Act (CEQA). Pursuant to Section 15061(b)(3) of the CEQA Guidelines, CEQA applies only to projects which have the potential for causing a significant effect on the environment. This Ordinance will not result in a significant foreseeable environmental impact.
SECTION FOUR
Severability. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional or invalid, or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance 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 Item #7.2.
4895-9761-8404 v2
the fact that any one or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective.
SECTION FIVE
Effective Date. This Ordinance shall take effect 30 days from its passage, and shall be published in accordance with the law, in a newspaper of general circulation published and circulated in the City of Calistoga.
SECTION SIX
Publication. The City Clerk is directed to cause this Ordinance to be published in the manner required by law.
THIS ORDINANCE was introduced with the first reading waived at the City of Calistoga City Council meeting on the 1st day of October, and was passed and adopted at a regular meeting of the Calistoga City Council on the 22nd day of October 2024, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST: APPROVED:
____________________________ __________________________ Yudiana Galvan, City Clerk Donald Williams, Mayor
Dated:___________________
Item #7.2.
4895-9761-8404 v2
Exhibit A:
CHAPTER 5.08
BINGO
Sections:
5.08.010 Games authorized pursuant to compliance with chapter provisions.
5.08.020 Definition.
5.08.030 Authorized organizations.
5.08.040 Minors prohibited.
5.08.050 Location requirements.
5.08.060 Games open to public required.
5.08.070 Staff requirements – Operation by authorized organization only.
5.08.080 Financial interest held by authorized organization only.
5.08.090 Establishment and use of fund.
5.08.100 Physical presence required for participation.
5.08.110 Maximum value of prizes.
5.08.130 License fee.
5.08.140 Audit.
5.08.010 Games authorized pursuant to compliance with chapter provisions.
Pursuant to the authority granted by Section 19 of Article IV of the California Constitution and Sections 326.3 through 326.5 of the California Penal Code, this chapter authorizes bingo games played for money or prizes to be played or conducted within the City. consistent with the provisions set forth in this chapter. The provisions of this article shall be interpreted to be consistent with Sections 326.3 through 326.5 of the California Penal Code. To the extent there are any inconsistencies, Sections 326.3 through 326.5 of the California Penal Code shall prevail.
5.08.020 Definition.
As used in this chapter, “bingo” shall mean a game of chance in which prizes are awarded on the basis of designated numbers or symbols that are marked or covered by the player on a tangible card in the player's possession and that conform to numbers or symbols, selected at random and announced by a live caller.
5.08.030 Authorized organizations.
Item #7.2.
4895-9761-8404 v2
Bingo may be played or conducted only by organizations exempted from the payment of the bank and corporation tax by Sections 23701a, 23701b, 23701d, 23701e, 23701f, 23701g, and 23701l of the Revenue and Taxation Code and by mobile home park associations and senior citizens organizations, and charitable organizations affiliated with a school district; and if the receipts of those games are used only for charitable purposes and for the purposes specified in this chapter.
5.08.04 Minors prohibited.
No minors shall be allowed to participate in any bingo game.
5.08.050 Location requirements.
A. An organization licensed to conduct bingo games shall conduct a bingo game only on property owned or leased by it, or property whose use is donated to the organization, and which property is used by that organization for an office or for performance of the purposes for which the organization is organized.
B. Nothing in this section shall be construed to require that the property owned or leased by the organization be used or leased exclusively by such organization.
5.08.060 Games open to public required.
All bingo games shall be open to the public, not just to the members of the authorized organization.
5.08.070 Staff requirements – Operation by authorized organization only.
A. A bingo game shall be operated and staffed only by members of the authorized organization which organized it. Such members shall not receive a profit, wage, or salary from any bingo game.
B. Only the organization authorized to conduct a bingo game shall operate such game, or participate in the promotion, supervision, or any other phase of such game.
5.08.080 Financial interest held by authorized organization only.
No individual, corporation, partnership, or other legal entity except the organization authorized to conduct a bingo game shall hold a financial interest in the conduct of such bingo game.
5.08.090 Establishment and use of fund.
A. All profits derived from a bingo game shall be kept in a special fund or account and shall not be commingled with any other fund or account. With respect to organizations exempt from payment of the bank and corporation tax by Section 23701d of the Revenue and Taxation Code, such profits shall be used only for charitable purposes.
Item #7.2.
4895-9761-8404 v2
B. With respect to all other organizations authorized to conduct bingo games pursuant to this chapter proceeds may also be used as follows:
1. For prizes;
2. A portion of the proceeds, not to exceed 20 percent of the proceeds before the deduction for prizes or $2000.00 per month, whichever is less, may be used for rental of property, overhead and administrative expenses.
5.08.100 Physical presence required for participation.
No person shall be allowed to participate in a bingo game unless the person is physically present at the time and place in which the bingo game is being conducted.
5.08.110 Maximum value of prizes.
The total value of prizes awarded during the conduct of any bingo games shall not exceed $500 in cash or kind, or both, for each separate game which is held.
5.08.130 License Required.
A. A license from the City is required to conduct a bingo game within the City. No person shall conduct a bingo game within the City without a license from the City.
B. The application for a license shall be in a form prescribed by the City and shall be accompanied by a $50.00 nonrefundable license fee for either the initial license or any renewal. The fee shall be submitted with the application for the license to conduct bingo games. If the application for a license is denied, one-half of the license fee shall be refunded to the applicant.
5.08.140 Audit.
The City Clerk is authorized to audit the records of any organization to verify compliance with this code.
Item #7.2.