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C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: Proposer/Contractor Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
D. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.
Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying CONSULTANT from future proposing as non-responsible E. Termination and Replacement of DBE Subconsultants
CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless CONSULTANT or DBE subconsultant obtains the LOCAL AGENCY’s written consent. CONSULTANT shall not terminate or replace a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the LOCAL AGENCY. Unless the LOCAL AGENCY’s consent is provided, the CONSULTANT shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02: Consultant Contract DBE Commitment form.
Termination of DBE Subconsultants
After execution of the AGREEMENT, termination of a DBE may be allowed for the following, but not limited to, justifiable reasons with prior written authorization from the LOCAL AGENCY:
1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2. The LOCAL AGENCY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the LOCAL AGENCY’s bond requirements.
3. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
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6. Listed DBE is ineligible to work on the project because of suspension or debarment.
7. Listed DBE becomes bankrupt or insolvent or exhibits credit unworthiness.
8. Listed DBE voluntarily withdraws with written notice from the Contract.
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.
11. The LOCAL AGENCY determines other documented good cause.
CONSULTANT must use the following procedures to request the termination of a DBE or portion of a DBE’s work:
1. Send a written notice to the DBE of the CONSULTANT’s intent to use other forces or material sources and include one or more justifiable reasons listed above. Simultaneously send a copy of this written notice to the LOCAL AGENCY. The written notice to the DBE must request they provide any response within five (5) business days to both the CONSULTANT and the LOCAL AGENCY by either acknowledging their agreement or documenting their reasoning as to why the use of other forces or sources of materials should not occur.
2. If the DBE does not respond within five (5) business days, CONSULTANT may move forward with the request as if the DBE had agreed to CONSULTANT’s written notice.
3. Submit CONSULTANT’s DBE termination request by written letter to the LOCAL AGENCY and include:
• One or more above listed justifiable reasons along with supporting documentation. • CONSULTANT’s written notice to the DBE regarding the request, including proof of transmission and tracking documentation of CONSULTANT’s written notice • The DBE's response to CONSULTANT’s written notice, if received. If a written response was not provided, provide a statement to that effect.
The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE termination request within five (5) business days.
Replacement of DBE Subconsultants
After receiving the LOCAL AGENCY’s written authorization of DBE termination request, CONSULTANT must obtain the LOCAL AGENCY’s written agreement for DBE replacement.
CONSULTANT must find or demonstrate GFEs to find qualified DBE replacement firms to perform the work to the extent needed to meet the DBE commitment.
The following procedures shall be followed to request authorization to replace a DBE firm:
1. Submit a request to replace a DBE with other forces or material sources in writing to the LOCAL AGENCY which must include:
a. Description of remaining uncommitted work item made available for replacement DBE solicitation and participation.
b. The proposed DBE replacement firm's business information, the work they have agreed to perform, and the following:
• Description of scope of work and cost proposal
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st
• Proposed subcontract agreement and written confirmation of agreement to perform on the Contract
• Revised Exhibit 10-O2: Consultant Contract DBE Commitment
2. If CONSULTANT has not identified a DBE replacement firm, submits documentation of CONSULTANT’s GFEs to use DBE replacement firms within seven (7) days of LOCAL AGENCY's authorization to terminate the DBE. CONSULTANT may request the LOCAL AGENCY's approval to extend this submittal period to a total of 14 days. Submit documentation of actions taken to find a DBE replacement firm, such as:
• Search results of certified DBEs available to perform the original DBE work identified and or other work CONSULTANT had intended to self-perform, to the extent needed to meet DBE commitment
• Solicitations of DBEs for performance of work identified • Correspondence with interested DBEs that may have included contract details and requirements
• Negotiation efforts with DBEs that reflect why an agreement was not reached • If a DBE's quote was rejected, provide reasoning for the rejection, such as why the DBE was unqualified for the work, or why the price quote was unreasonable or excessive
• Copies of each DBE's and non-DBE's price quotes for work identified, as the LOCAL AGENCY may contact the firms to verify solicitation efforts and determine if the DBE quotes are substantially higher
• Additional documentation that supports CONSULTANT’s GFE The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE replacement request within five (5) business days.
F. Commitment and Utilization
The LOCAL AGENCY’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.
The LOCAL AGENCY shall request CONSULTANT to:
1. Notify the LOCAL AGENCY’s contract administrator or designated representative of any changes to its anticipated DBE participation
2. Provide this notification before starting the affected work
3. Maintain records including:
• Name and business address of each 1 -tier subconsultant • Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier
• Date of payment and total amount paid to each business (see Exhibit 9-F: Monthly Disadvantaged Business Enterprise Payment)
If CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.
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If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date. CONSULTANT shall submit the notifications to the LOCAL AGENCY. On work completion, CONSULTANT shall complete Exhibit 17-O: Disadvantaged Business Enterprises (DBE) Certification Status Change and submit the form to the LOCAL AGENCY within 30 days of contract acceptance.
Upon work completion, CONSULTANT shall complete Exhibit 17-F: Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it to the LOCAL AGENCY within 90 days of contract acceptance. The LOCAL AGENCY will withhold $10,000 until the form is submitted. The LOCAL AGENCY will release the withhold upon submission of the completed form.
In the LOCAL AGENCY’s reports of DBE participation to Caltrans, the LOCAL AGENCY must display both commitments and attainments.
G. Commercially Useful Function
DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying materials listed on the DBE Commitment form. The DBE value of work will only count toward the DBE commitment if the DBE performs a CUF. A DBE performs a CUF when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself.
CONSULTANT must perform CUF evaluation for each DBE working on a federal-aid contract, with or without a DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work and continue to monitor the performance of CUF for the duration of the project.
CONSULTANT must provide written notification to the LOCAL AGENCY at least 15 days in advance of each DBE's initial performance of work or supplying materials for the Contract. The notification must include the DBE's name, work the DBE will perform on the contract, and the location, date, and time of where their work will take place.
Within 10 days of a DBE initially performing work or supplying materials on the Contract, CONSULTANT shall submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9-J: Disadvantaged Business Enterprise Commercially Useful Function Evaluation. Include the following information with the submittal:
• Subcontract agreement with the DBE
• Purchase orders
• Bills of lading
• Invoices
• Proof of payment
CONSULTANT must monitor all DBE’s performance of CUF by conducting quarterly evaluations and validations throughout their duration of work on the Contract using the LAPM 9-J: DBE Commercially Useful Function Evaluation. CONSULTANT must submit to the LOCAL AGENCY ITEM 14
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these quarterly evaluations and validations by the 5th of the month for the previous three months of work.
CONSULTANT must notify the LOCAL AGENCY immediately if they believe the DBE may not be performing a CUF.
The LOCAL AGENCY will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM 9-J: DBE Commercially Useful Function Evaluation, submitted supporting information, field observations, and through any additional LOCAL AGENCY evaluations. The LOCAL AGENCY must evaluate DBEs and their CUF performance throughout the duration of a Contract. The LOCAL AGENCY will provide written notice to the CONSULTANT and the DBE at least two (2) business days prior to any evaluation. The CONSULTANT and the DBE must participate in the evaluation. Upon completing the evaluation, the LOCAL AGENCY must share the evaluation results with the CONSULTANT and the DBE. An evaluation could include items that must be remedied upon receipt. If the LOCAL AGENCY determines the DBE is not performing a CUF, the CONSULTANT must suspend performance of the noncompliant work.
CONSULTANT and DBEs must submit any additional CUF related records and documents within five (5) business days of LOCAL AGENCY’s request such as:
• Proof of ownership or lease and rental agreements for equipment • Tax records
• Employee rosters
• Certified payroll records
• Inventory rosters
Failure to submit required DBE Commercially Useful Function Evaluation forms or requested records and documents can result in withholding of payment for the value of work completed by the DBE.
If CONSULTANT and/or the LOCAL AGENCY determine that a listed DBE is not performing a CUF in performance of their DBE committed work, CONSULTANT must immediately suspend performance of the noncompliant portion of the work. LOCAL AGENCY may deny payment for the noncompliant portion of the work. LOCAL AGENCY will ask the CONSULTANT to submit a corrective action plan (CAP) to the LOCAL AGENGY within five (5) days of the noncompliant CUF determination. The CAP must identify how the CONSULTANT will correct the noncompliance findings for the remaining portion of the DBE's work. LOCAL AGENCY has five (5) days to review the CAP in conjunction with the CONSULTANT’s review. The CONSULTANT must implement the CAP within five (5) days of the LOCAL AGENCY's approval. The LOCAL AGENCY will then authorize the prior noncompliant portion of work for the DBE's committed work.
If corrective actions cannot be accomplished to ensure the DBE performs a commercially useful function on the Contract, CONSULTANT may have good cause to request termination of the DBE.
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work ITEM 14
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of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
J. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier.
The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
K. If a DBE subconsultant is decertified during the life of the AGREEMENT, the decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date of certification. Any changes should be reported to LOCAL AGENCY’s Contract Administrator within thirty (30) calendar days.
L. For projects awarded on or after March 1, 2020, but before September 1, 2023: after submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant must complete and email Exhibit 9-F:
Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to local administering agencies.
For projects awarded on or after September 1, 2023: Exhibit 9-F is no longer required. Instead, by the 15th of the month following the month of any payment(s), the CONSULTANT must now submit Exhibit 9-P to the LOCAL AGENCY administering the contract. If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.
ARTICLE XIX INSURANCE
A. Prior to commencement of the work described herein, CONSULTANT shall furnish LOCAL AGENCY a Certificate of Insurance stating that there is general comprehensive liability insurance presently in effect for CONSULTANT with a combined single limit (CSL) of not less than one million dollars ($1,000,000) per occurrence.
B. The Certificate of Insurance will provide:
1. That the insurer will not cancel the insured’s coverage without thirty (30) calendar days prior written notice to LOCAL AGENCY.
2. That LOCAL AGENCY, its officers, agents, employees, and servants are included as additional insureds, but only insofar as the operations under this AGREEMENT are concerned.
3. That LOCAL AGENCY will not be responsible for any premiums or assessments on the policy.
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C. CONSULTANT agrees that the bodily injury liability insurance herein provided for, shall be in effect at all times during the term of this AGREEMENT. In the event said insurance coverage expires at any time or times during the term of this AGREEMENT, CONSULTANT agrees to provide at least thirty (30) calendar days prior notice to said expiration date; and a new Certificate of Insurance evidencing insurance coverage as provided for herein, for not less than either the remainder of the term of the AGREEMENT, or for a period of not less than one (1) year. New Certificates of Insurance are subject to the approval of LOCAL AGENCY. In the event CONSULTANT fails to keep in effect at all times insurance coverage as herein provided, LOCAL AGENCY may, in addition to any other remedies it may have, terminate this AGREEMENT upon occurrence of such event.
ARTICLE XX FUNDING REQUIREMENTS
A. It is mutually understood between the parties that this AGREEMENT may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the AGREEMENT were executed after that determination was made.
B. This AGREEMENT is valid and enforceable only if sufficient funds are made available to LOCAL AGENCY for the purpose of this AGREEMENT. In addition, this AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or LOCAL AGENCY governing board that may affect the provisions, terms, or funding of this AGREEMENT in any manner.
C. It is mutually agreed that if sufficient funds are not appropriated, this AGREEMENT may be amended to reflect any reduction in funds.
D. LOCAL AGENCY has the option to terminate the AGREEMENT pursuant to Article VI Termination, or by mutual agreement to amend the AGREEMENT to reflect any reduction of funds.
ARTICLE XXI CHANGE IN TERMS
A. This AGREEMENT may be amended or modified only by mutual written agreement of the parties.
B. CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by LOCAL AGENCY’s Contract Administrator.
C. There shall be no change in CONSULTANT’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this AGREEMENT without prior written approval by LOCAL AGENCY’s Contract Administrator.
ARTICLE XXII CONTINGENT FEE
CONSULTANT warrants, by execution of this AGREEMENT that no person or selling agency has been employed, or retained, to solicit or secure this AGREEMENT upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing ITEM 14
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business. For breach or violation of this warranty, LOCAL AGENCY has the right to annul this AGREEMENT without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the AGREEMENT price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
ARTICLE XXIII DISPUTES
Prior to either party commencing any legal action under this AGREEMENT, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty-five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other.
A. Any dispute, other than audit, concerning a question of fact arising under this AGREEMENT that is not disposed of by agreement shall be decided by a committee consisting of LOCAL AGENCY’s Contract Administrator and (Insert Department Head or Official), who may consider written or verbal information submitted by CONSULTANT.
B. Not later than thirty (30) calendar days after completion of all deliverables necessary to complete the plans, specifications and estimate, CONSULTANT may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
C. Neither the pendency of a dispute, nor its consideration by the committee will excuse CONSULTANT from full and timely performance in accordance with the terms of this AGREEMENT.
ARTICLE XXIV INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit LOCAL AGENCY, the State, and the FHWA if federal participating funds are used in this AGREEMENT; to review and inspect the project activities and files at all reasonable times during the performance period of this AGREEMENT.
ARTICLE XXV SAFETY
A. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by LOCAL AGENCY Safety Officer and other LOCAL AGENCY representatives.
CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.
B. Pursuant to the authority contained in Vehicle Code §591, LOCAL AGENCY has determined that such areas are within the limits of the project and are open to public traffic. CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code.
CONSULTANT shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
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C. Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Article.
D. CONSULTANT must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in Labor Code §6500 and §6705, prior to the initiation of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five (5) feet or deeper.
ARTICLE XXVI OWNERSHIP OF DATA
A. It is mutually agreed that all materials prepared by CONSULTANT under this AGREEMENT shall become the property of City, and CONSULTANT shall have no property right therein whatsoever.
Immediately upon termination, City shall be entitled to, and CONSULTANT shall deliver to City, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by CONSULTANT in performing this AGREEMENT which is not CONSULTANT’s privileged information, as defined by law, or CONSULTANT’s personnel information, along with all other property belonging exclusively to City which is in CONSULTANT’s possession. Publication of the information derived from work performed or data obtained in connection with services rendered under this AGREEMENT must be approved in writing by City.
B. Additionally, it is agreed that the Parties intend this to be an AGREEMENT for services and each considers the products and results of the services to be rendered by CONSULTANT hereunder to be work made for hire. CONSULTANT acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City without restriction or limitation upon its use or dissemination by City.
C. Nothing herein shall constitute or be construed to be any representation by CONSULTANT that the work product is suitable in any way for any other project except the one detailed in this Contract.
Any reuse by City for another project or project location shall be at City’s sole risk.
D. Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27 Subpart 27.3 - Patent Rights under Government Contracts for federal- aid contracts).
E. LOCAL AGENCY may permit copyrighting reports or other agreement products. If copyrights are permitted; the AGREEMENT shall provide that the FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.
ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION CONTRACTOR A. If claims are filed by LOCAL AGENCY’s construction contractor relating to work performed by CONSULTANT’s personnel, and additional information or assistance from CONSULTANT’s personnel is required in order to evaluate or defend against such claims; CONSULTANT agrees to make its personnel available for consultation with LOCAL AGENCY’S construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
B. CONSULTANT’s personnel that LOCAL AGENCY considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from LOCAL AGENCY.
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Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT’s personnel services under this AGREEMENT.
C. Services of CONSULTANT’s personnel in connection with LOCAL AGENCY’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this AGREEMENT in order to resolve the construction claims.
ARTICLE XXVIII CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL AGENCY’s operations, which are designated confidential by LOCAL AGENCY and made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from unauthorized use and disclosure.
B. Permission to disclose information on one occasion, or public hearing held by LOCAL AGENCY relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.
C. CONSULTANT shall not comment publicly to the press or any other media regarding the AGREEMENT or LOCAL AGENCY’s actions on the same, except to LOCAL AGENCY’s staff, CONSULTANT’s own personnel involved in the performance of this AGREEMENT, at public hearings, or in response to questions from a Legislative committee.
D. CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this AGREEMENT without prior review of the contents thereof by LOCAL AGENCY, and receipt of LOCAL AGENCY’S written permission.
E. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article.
F. All information related to the construction estimate is confidential, and shall not be disclosed by CONSULTANT to any entity, other than LOCAL AGENCY, Caltrans, and/or FHWA. All of the materials prepared or assembled by CONSULTANT pursuant to performance of this Contract are confidential and CONSULTANT agrees that they shall not be made available to any individual or organization without the prior written approval of City or except by court order. If CONSULTANT or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Contract, City has the right to reimbursement and indemnity from CONSULTANT for any damages caused by CONSULTANT releasing the information, including, but not limited to, City’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.
ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two-year period, because of CONSULTANT’s failure to comply with an order of a federal court that orders CONSULTANT to comply with an order of the National Labor Relations Board.
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ARTICLE XXX EVALUATION OF CONSULTANT
CONSULTANT’s performance will be evaluated by LOCAL AGENCY. A copy of the evaluation will be sent to CONSULTANT for comments. The evaluation together with the comments shall be retained as part of the AGREEMENT record.
ARTICLE XXXI PROMPT PAYMENT
A. PROMPT PAYMENT FROM LOCAL AGENCY TO CONSULTANT
The LOCAL AGENCY shall make all project progress payment within 30 days after receipt of an undisputed and properly submitted payment request from CONSULTANT on a professional service contract. If the LOCAL AGENCY fails to pay promptly, the LOCAL AGENCY shall pay interest to the CONSULTANT, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied and pro-rated as necessary. Upon receipt of the payment request, the LOCAL AGENCY shall act in accordance with both of the following:
(1) The LOCAL AGENCY shall review each payment request as soon as feasible after receipt to verify it is a proper payment request.
(2) The LOCAL AGENCY must return any payment request deemed improper by the LOCAL AGENCY to the CONSULTANT as soon as feasible, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall include documentation setting forth in writing the reasons why it is an improper payment request.
B. PROMPT PAYMENT CERTIFICATION
For projects awarded on or after September 1, 2023: the CONSULTANT must now submit Exhibit 9-P to the LOCAL AGENCY administering the contract by the 15th of the month following the month of any payment(s). If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
The LOCAL AGENCY must verify all Exhibit 9-P information, monitor compliance with prompt payment requirements for DBE and non-DBE firms, and address any shortfalls to the DBE commitment and prompt payment issues until the end of the project. The LOCAL AGENCY must email a copy of Exhibit 9-P to [email protected] before the end of the month after receiving the Exhibit 9-P from the CONSULTANT.
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ARTICLE XXXII TITLE VI ASSURANCES
APPENDICES A - E of the TITLE VI ASSURANCES
APPENDIX A
During the performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONSULTANT) agrees as follows:
a. Compliance with Regulations: CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.
b. Nondiscrimination: CONSULTANT, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations.
c. Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be performed under a Sub- agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by CONSULTANT of the CONSULTANT’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. d. Information and Reports: CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or directives.
Where any information required of CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, CONSULTANT shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information.
e. Sanctions for Noncompliance: In the event of CONSULTANT’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or
ii. cancellation, termination or suspension of the Agreement, in whole or in part.
ITEM 14
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A&E Boilerplate Agreement Language
May 2023
f. Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.
CONSULTANT shall take such action with respect to any sub-agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.
APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4:
NOW THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the recipient will accept title to the lands and maintain the project constructed thereon in accordance with Title 23 U.S.C., the regulations for the administration of the preceding statute, and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the recipient all the right, title and interest of the U.S.
Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto the recipient and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the recipient, its successors and assigns. The recipient, in consideration of the conveyance of said lands and interest in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the recipient will use the lands and interests in lands and interest in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended [, and (3) that in the event of breach of any of the above- mentioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said lands, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].*
ITEM 14
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Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to make clear the purpose of Title VI.)
APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE
ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the recipient pursuant to the provisions of Assurance 7(a):
A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add “as a covenant running with the land”] that:
1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S.
Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations(as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non- discrimination covenants, the recipient will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.* C. With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the recipient will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the recipient and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)
APPENDIX D
CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE
ACTIVITY, FACILITY OR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by the recipient pursuant to the provisions of Assurance 7(b):
A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest ,and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, ITEM 14
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A&E Boilerplate Agreement Language
May 2023
over, or under such land, and the furnishings of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits or, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance.
B. With respect to (licenses, leases, permits, etc.) in the event of breach of any of the above of the above Non-discrimination covenants, the recipient will have the right to terminate the (license, permits, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.*
C. With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, the recipient will there upon revert to and vest in and become the absolute property of the recipient and its assigns.
APPENDIX E
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest (hereinafter referred to as the “CONSULTANT”) agrees to comply with the following non- discrimination statutes and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); • Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex;
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of ITEM 14
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public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English Proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C.1681 et seq).
ARTICLE XXXIII NOTIFICATION
All notices hereunder and communications regarding interpretation of the terms of this AGREEMENT and changes thereto, shall be effected by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows:
CONSULTANT:
,Project Manager
LOCAL AGENCY:
(LOCAL AGENCY)
(NAME) , Contract Administrator
(ADDRESS)
ARTICLE XXXIV CONTRACT
The two parties to this AGREEMENT, who are the before named CONSULTANT and the before named LOCAL AGENCY, hereby agree that this AGREEMENT constitutes the entire AGREEMENT which is made and concluded in duplicate between the two parties. Both of these parties for and in consideration of the payments to be made, conditions mentioned, and work to be performed; each agree to diligently perform in accordance with the terms and conditions of this AGREEMENT as evidenced by the signatures below.
O'Dell Engineering, a Westwood Company
Kristen Scheidt
1165 Scenic Drive, Suite A
Modesto, CA 95350
ITEM 14
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Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
ARTICLE XXXV SIGNATURES
(Name of LOCAL AGENCY) O'Dell Engineering, a Westwood Company (Signature)
(Name of Signer) Dylan Crawford
Date: Date: 04/29/2024
ITEM 14
EXHIBIT B
DISCLOSURE OF CONFLICT OF INTEREST
[Project Title]
YES* NO
1 Are you currently in litigation with the City of Ceres or any of its agents? ☐
2 Do you represent any firm, organization, or person who is in litigation with the City of Ceres? ☐
3 Do you currently represent or perform work for any clients who do business with the City of Ceres? X ☐
4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Ceres, or in a business which is in litigation with the City of Ceres? ☐
5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Ceres employee who has any significant role in the subject matter of this service? ☐
6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project?
☐
* If the answer to any question is yes, please explain in full below.
Explanation:
Signature
Date
`
Company
Address
City, State, Zip
□ Additional page(s) attached.
Exhibit B
04/29/2024
Dylan Crawford
Name
O'Dell Engineering, a Westwood Company
1165 Scenic Drive, Suite A
Modesto, CA 95350
X
X
X
X
X
Subconsultant to NV5
ITEM 14
ITEM 14
{CW135600.1}
COUNCIL AGENDA REPORT
CITY COUNCIL
Javier Lopez, Mayor
James Casey, Dist.1
Rosalinda L. Vierra, Dist. 2
Bret Silveira, Dist. 3
Daniel A. Martinez, Dist. 4
MEETING DATE: May 13, 2024
TO: Mayor and City Council
FROM: Douglas D. Dunford, City Manager
CONTACT: Nubia Goldstein, City Attorney
SUBJECT:
Resolution No. 2024 -XXX, Declaring the Intention to Annex Territory into Community Facilities District No. 3 (Public Services) and Authorizing the Levy of Special Taxes (3605 9 th Street; APN 127-025-009)
RECOMMENDED COUNCIL ACTION:
Staff recommends that the City Council adopt the Resolution of Intention to Annex Territory into Community Facilities District No. 2020-1 and Authorize the Levy of Special Taxes therein.
I. BACKGROUND:
Property owner Jorge Hernandez has submitted a petition to annex to CFD No. 3 (Public Services) in connection with the subdivision of his property at 3605 9 th Street (APN 127-
025-009). The property is expected to develop into two residential lots.
II. REASONS FOR RECOMMENDATION:
The City Council previously identified the need for a financing mechanism for maintenance and services on improvements related to new development within the City.
In response, the City Council formed Community Facilities District 3 (Public Services) (the "CFD") and approved the levy of special taxes therein. The CFD provides funding for services including, but not limited to, the provision of police protection services, fire prevention and suppression services, ambulance and paramedic services, maintenance and repair of parks, parkways and open spaces, and appurtenances related thereto (the "Services"). The Rate and Method of Apportionment ("RMA") of the CFD defines the types of property that may be levied a special tax. The City levies taxes on eligible parcels within the CFD to mitigate the added cost of providing the Services to new development.
ITEM 15
{CW135600.1}
III. FISCAL IMPACTS:
The annexation of territory into the CFD will assist in mitigating the cost of providing the Services. In Fiscal Year 2024/25, it is anticipated that the maximum special tax revenue would be $2,402 based upon full project buildout (two residential dwelling units).
IV. EXISTING POLICY / RELATIONSHIP TO STRATEGIC PLAN:
N/A
V. POLICY ALTERNATIVES:
N/A
VI. INTERDEPARTMENTAL COORDINATION:
N/A
VII. PUBLIC PARTICIPATION:
The Resolution of Intention approves the annexation boundaries and sets the Public Hearing date for June 24, 2024, during a regularly scheduled meeting of the City Council.
A ballot will be mailed to the property owner(s) within the annexation territory to vote for or against the annexation.
VIII. ENVIRONMENTAL REVIEW:
The project is exempt from CEQA.
IX. STEPS FOLLOWING APPROVAL:
The City Clerk will cause notice of the Public Hearing to be given by publication one time in a newspaper published in the area of the CFD. The publication of said notice shall be completed at least seven days before the date herein set for said hearing.
Approved by: ________________________
Douglas D. Dunford,
City Manager
Attachments:
1. Attachment A – Resolution
2. Attachment B – Petition
ITEM 15
ATTACHMENT A
RESOLUTION NO. 2024-XXX
DECLARING THE INTENTION TO ANNEX TERRITORY
INTO COMMUNITY FACILITIES DISTRICT NO. 3 (PUBLIC
SERVICES) AND AUTHORIZING THE LEVY OF SPECIAL
TAXES (3605 9TH STREET; APN 127-025-009)
THE CITY COUNCIL
City of Ceres
ANNEXATION NO. 1
WHEREAS, under the Mello- Roos Community Facilities Act of 1982 (Sections 53311 and following, California Government Code; hereafter referred to as the “Act”), the City Council of the City of Ceres (the “ City”) previously conducted proceedings to establish the City of Ceres Community Facilities District No. 3 ( Public Services) (the “District”); and
WHEREAS, this City Council has received a Petition (including Waivers) from the landowners requesting to annex territory into the District under the Act, to provide police protection services, fire prevention and suppression services, ambulance and paramedic services, maintenance and repair of parks, parkways and open spaces, and appurtenances related thereto; and
WHEREAS, under the Act, this City Council is the legislative body for the proposed annexation of territory to the District and is empowered with the authority to annex territory to the District and to levy special taxes within the annexation territory; and WHEREAS, this City Council now desires to commence proceedings to consider the annexation of territory to the District.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Ceres, does hereby resolve as follows:
1. This City Council proposes t o begin t he proceedings nec essary to annex territory to the District pursuant to the Act.
2. The name of the existi ng D istrict is City of Ce res, Co mmunity F acilities District No. 3 (Public Services).
3. A general description of the territory included in the existing District is shown on the map recorded in the office of the County Recorder for the County of Stanislaus on December 15, 2006, in Book 4 at Page 62 of Maps of Assessments and Community Facilities Districts, to which map reference is hereby made.
4. T
he territory now proposed to be annexed to the District is shown on Annexation Map No. 1 of the District on file with the City Clerk, a copy of which is attached hereto as Exhibit A , which Exhibit is , by this reference, incorporated herein . The ITEM 15
ATTACHMENT A
boundaries of which territory are hereby preliminarily approved and to which map reference is hereby made for further particulars . The City Clerk is hereby directed to record, or cause to be recorded, said Annexation Map No. 1 of the District in the office of the County Recorder of the County of Stanislaus within fifteen days of the date of adoption of this Resolution.
5. The types of services to be funded by the District and pursuant to the Act consist of those services (the “Services”) described in Resolution No. 2006- 220 entitled “A Resolution of the City Council of the City of Ceres of Intention to Establish a Community Facilities District and to Authorize the Levy of Special Taxes Pursuant to the Mello-Roos Community Facilities Act of 1982” adopted by the City Council on December 11, 2006 (the “Resolution of Intention”), which Resolution of Intention is, by this reference, incorporated herein. It is presently intended that the Services will relate to the existing territory in the District and the territory proposed to be annexed to the District.
6. Except to the extent that funds are otherwise available to the District to pay for the Services, a special tax sufficient to pay the costs thereof, secured by recordation of a continuing lien against all non- exempt real property in the District (including the property being annexed thereto), will be levied annually within the District and collected in the same manner as ordinary ad valorem property taxes, or in such other manner as this City Council shall determine, including direct billing of the affected property owners .
The rate and method of apportionment of the special tax among the parcels of real property within the District, as now in existence and following the annexation proposed herein, in sufficient detail to allow each landowner within the territory proposed to be annexed to the District to estimate the maximum amount such owner will have to pay, is described in Exhibit B hereto.
7. The special tax proposed to be levied for Services to be supplied within the proposed territory to be annexed will be equal to the special taxes levied to pay for the same Services in the District, except that a higher or lower special tax may be levied within the proposed territory to be annexed to the extent that the actual cost of providing the Services in that territory is higher or lower than the cost of providing those Services in the existing District . Notwithstanding the foregoing, the special tax may not be levied at a rate which is higher th an the maximum special tax authorized to be levied pursuant to the rate and method of apportionment of the special tax.
8. Notice is given that on Monday, June 24, 202 4, at 6:0 0 p.m. or as soon thereafter as the matter may be heard, in the regular meeting place of this City Council in the Council Chambers, 2701 Fourth Street , Ceres, California, and the same are hereby appointed and fixed as the time and place when and where this City Council, as legislative body for the District, will conduct a public hearing on the annexation of territory to the District and consider and finally determine whether the public interest, convenience, and necessity require said annexation of territory to the District and the levy of said special tax therein.
9. The City Clerk is hereby directed to cause notice of said public hearing to be given by publication one time in a newspaper published in the area of the District. The ITEM 15
ATTACHMENT A
publication of said notice shall be completed at least seven days before the date herein set for said hearing. The notice shall be substantially in the form of Exhibit C hereto.
10. This Resolution shall take effect upon its adoption.
PASSED AND ADOPTED by the Ceres City Council at a regular meeting thereof held on the 13
th day of May 2024, by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAIN: Councilmembers:
________________________________
Javier Lopez, Mayor
ATTEST:
_______________________________
Fallon Martin, City Clerk
ITEM 15
ITEM 15
ATTACHMENT B
ITEM 15
ITEM 15
ANNEXATION MAP NO. 1 OF
CITY OF CERES
COMMUNITY
FACILITIES DISTRICT NO. 3
(PUBLIC SERVICES)
FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF CERES THIS ____ DAY OF _________, 202_. ____________________________
CITY
CLERK
CITY OF CERES
STANISLAUS COUNTY, CALIFORNIA
I HEREBY CERTIFY THAT THE WITHIN MAP SHOWING THE PROPOSED BOUNDARIES OF ANNEXATION NO. 1 TO THE CITY OF CERES COMMUNITY FACILITIES DISTRICT NO. 3 (PUBLIC SERVICES), CITY OF CERES, COUNTY OF
STANISLAUS, STATE OF CALIFORNIA, WAS APPROVED BY THE CITY COUNCIL OF THE CITY OF CERES AT A REGULAR MEETING THEREOF, HELD ON THE ____ DAY OF _________, 202_, BY ITS RESOLUTION NO. _______. ____________________________
CITY CLERK
CITY OF CERES
STANISLAUS COUNTY, CALIFORNIA
FILED THIS ____ DAY OF _________, 202_, AT THE HOUR OF _____ O’CLOCK _M, IN BOOK ___ OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS AT PAGE ___ IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF STANISLAUS, STATE OF CALIFORNIA.
INSTRUMENT NUMBER: ____________
____________________________
COUNTY RECORDER
COUNTY OF STANISLAUS, CALIFORNIA
FOR PARTICULARS OF THE LINES AND DIMENSIONS OF ASSESSOR PARCELS, REFERENCE IS MADE TO THE MAPS THE ASSESSOR, COUNTY OF STANISLAUS, STATE OF CALIFORNIA.
REFERENCE IS HEREBY MADE TO THAT CERTAIN MAP ENTITLED “COMMUNITY FACILITIES DISTRICT NO. 3 (PUBLIC SERVICES) -OF THE CITY OF CERES, COUNTY OF STANISLAUS, STATE OF CALIFORNIA” FILED THE 15TH DAY OF DECEMBER 2006, IN BOOK 4 OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS AT PAGE 62 IN THE
OFFICE OF THE COUNTY RECORDER FOR THE COUNTY OF STANISLAUS, STATE OF CALIFORNIA, WHICH THIS ANNEXATION MAP AFFECTS.
CITY OF CERES
COUNTY OF ST
ANISLAUS
STATE OF CALIFORNIA
9TH ST
EL CAMINO
6TH ST
HWY 99
127-025-009-000
Sheet 1 of 1
Source: Stanislaus County GIS
Geographic Coordinate Reference: GCS North American 1983 Projection: NAD 1983 StatePlane California III FIPS 0403 Feet 9TH ST
10TH ST
HWY 99
EL CAMINO
6TH ST
DON PEDRO RD
COLLINS RD
HOLLY CI
RAILROAD AVE
LAUREL AVE
DIRK CT
VEDA DR
V I C I N I T Y M A PV I C I N I T Y M A P
Annexation Boundary
Parcels
0 75 15037.5 Feet
O
SITE
EXHIBIT A
ITEM 15
ITEM 15
CITY OF CERES
COUNTY OF STANISLAUS, CALIFORNIA
COMMUNITY FACILITIES DISTRICT NO. 3
(PUBLIC SERVICES)
RATE AND METHOD OF APPORTIONMENT
A Special Tax of Community Facilities District No. 3 o f the City of Ceres ("CFO") shall be levied on all Assessor's Parcels in the CFO and collected each Fiscal Year commencing in Fiscal Y ear 2007-08 in an amount determined through the application of the rate and method of apportionment of the Special Tax set forth below. All of the real property in the CFO, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided.
A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
"Act" means the Mello-Roc" Community Facilities Act of 1982, as amended, being Chapter 2.5, Part 1, Division 2 of Title 5 of the Government Code of the State of California.
"Administrative Expenses" means the actual or estimated costs incurred by the City, acting for and on behalf of the CFO as the administrator thereof, to determine, levy and collect the Special Taxes, including salaries of City employees and a proportionate amount of the City's general administrative overhead related thereto, and the fees of consultants and legal counsel providing services related to the administration of the CFO; t he costs of collecting installments of the Special Taxes; and any other costs required to administer the CFO as determined by the City.
"Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned assessor's parcel number.
"Assessor's Parcel Map" means an official map of the Assessor of the County designating parcels by assessor's parcel number. "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes.
"CFD" means Community Facilities District No. 3 of the City of Ceres.
EXHIBIT B
ITEM 15
"City" means the City of Ceres.
"City Clerk" means the City Clerk for the City of Ceres or his or her designee.
"City Manager" means the City Manager for the City of Ceres or his or her designee.
"Council" means the City Council of the City of Ceres, acting as the legislative body of the CFO.
"County" means the County of Stanislaus, California.
"Developed Property" means all Taxable Property for which a building permit was issued after January 1, 2006, but prior to the May 31st preceding the Fiscal Year in which the Special Tax is being levied. "Dwelling Unit" means each separate residential dwelling unit that comprises an independent f acility capable of conveyance or rental separate from adjacent residential dwelling units.
"Eligible Expenses" means that amount required in any Fiscal Year for the CFO to: (i) pay the Parks Parkways and Landscape Maintenance Requirement; (ii) pay the Police, Fire, and Paramedic Services Requirement; (iii) pay reasonable Administrative Expenses. "Fiscal Year" means the period starting July 1 and ending on the following June 30.
"Landscape Maintenance" means the labor, material, administration, personnel, equipment and utilities necessary to maintain landscaped improvements within the public right-of-ways, parkways, slopes, wetlands and other public easements throughout the City of Ceres. "Maximum Special Tax" means the maximum Special Tax, determined in accordance with Section C below, that may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property.
"Mixed Use Property" means all Assessor's Parcels that have been classified by the City to allow both Residential Property and Non Residential Property uses on each such Assessor's Parcel. "Multi-Family Property" means all A ssessor's Parcels of Developed Property for which a building permit has been issued for a residential structure consisting of two or more residential units that share common walls, including, but not limited to, duplexes, triplexes, townhomes, condominiums, and apartment units.
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"Mobile Home" means a structure, t ransportable in one or more sections, which is eight body feet or more in width and is thirty-two body feet or more in length, and whic is built on a p ermanent chassis and designed only for erection on and connection to a site-built, permanent mobile home foundation system pursuant to Section 18551 of the California Health and Safety Code, and designed to be used as a single-family dwelling when connected to the required utilities, and which is constructed with plumbing, heating, air conditioning and electrical system contained therein, and which is certified under the National Mobile Home Construction and Safety Standards Act of 1974, as amended.
"Mobile Home Park Parcel" means all Assessor's Parcels of Developed Property where two or more mobile home lots are rented or leased or held out for rent or lease to accommodate mobile homes used for human habitation. The number of Dwelling Units to be assigned to a Mobile Home Park Parcel shall be determined by the number of spaces available for the placement of Mobile Homes.
"Non-Residential Property" means all Assessor's Parcels for which a building permit(s) has been issued for a structure o r structures for non residential use.
"Operating Fund" means a fnd that shall be maintained for the CFD for each Fiscal Y ear to pay for Police, Fire, and Paramedic Services, Parks and Landscape Maintenance and Administrative Expenses.
"Parks Parkways and Landscape Maintenance Requirement" means, for any Fiscal Year in which Special Taxes are levied, the amount equal to the budgeted costs for Parks and Landscape Maintenance applicable to the CFO for such Fiscal Year.
"Police, Fire, and Paramedic Services Requirement" means, for any Fiscal Year in which Special Taxes are levied, the amount equal to the budgeted costs for Police, Fire, and Paramedic Services Requirement applicable to the CFO for such Fiscal Year.
"Public Property" means any property within the CFO boundaries that is, at the time of the CFO formation, expected to be used for any public purpose and is owned by or dedicated to the federal government, the State, the County, the City or any other public agency. "Residential Property" means all Assessor's Parcels of Developed Property for which a building permit(s) has been issued for purposes of constructing at least one residential dwelling unit.
"Special Tax" means the monetary amount levied pursuant to the provisions of sections C and D below in each Fiscal Year on each ITEM 15
Assessor's Parcel of Developed Property in the CFO to fund the Special Tax Requirement.
"State" means the State of California.
"Taxable Property" means all of the Assessor's Parcels within the boundaries of the CFO that are not exempt from the Special Tax pursuant to law or as defined below.
"Tax-Exempt Property" means an Assessor's Parcel not subject t o the Special Tax. Tax-Exempt Property includes: (i) Public Property, or (ii) Non Residential Property, or (iii) Assessor's Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement. An Assessor's Parcel previously classified as Taxable Property that is acquired by a public agency shall become Public Property if the Assessor's Parcel is no longer used as Residential Property as determined by the City in the exercise of its sole discretion. "Undeveloped Property" means, for each Fiscal Y ear, all Assessor's Parcels not classified as Developed Property or Tax-Exempt Property.
B. ASSIGNMENT TO LANO USE CATEGORIES
C.
Each Fiscal Year using t e derinitions above, all Taxable Property within the CFD shall be classified as either Developed Property or Undeveloped Property. Developed Pmperty shall be subject to Special Taxes pursuant to Sections C and D below. Once an Assessor's Parcel of Residential Property or Mixed Use Property is determined it cannot be changed except as noted in the de·finition of Tax Exempt Property.
MAXIMUM SPECIAL TAK
a. Developed Property
The Maximum Special Tax for the Fiscal Year 2007-2008 shall be $777.78 per Dwelling Unit.
Multiple Land Use Classes
In some instances an Assessor's Parcel of Developed Property may be classified as Mixed Use Property. The Maximum Special Tax that may be levied on an Assessor's Parcel classified as Mixed Use Property shall be calculated using the sum of the total number of Dwelling Units located on that Assessor's Parcel.
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b. Annual Escalation of Maximum Special Tax
The Maximum Special Tax as shown in Section C.a above
that may be levied on each Assessor's Parcel in the CFO shall be increased each Fiscal Year beginning in Fiscal Year 2008-09, and thereafter, by a factor equal to the
annual percentage change as determined by the
Consumer Price Irdex -- California, All Urban Consumers, California escalated by a rate of not more than 4 percent or less than 1 percent annually thereafter.
D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
Commencing with Fiscal Year 2007-08, and for each following Fiscal Year, the Council shall levy the CFO Special Tax at the rates established pursuant to steps 1 and 2 below. The Special Tax shall be levied each Fiscal Year as follows:
First: The Special Tax shall be levied on each Assessor's Parcel of Developed Property at 90% of the applicable Maximum Special Tax.
Second: If additional monies are needed at the discretion of the City, to satisfy the Special Tax Requirement after the first step has been completed, t he Special Tax shall be levied on each Assessor's Parcel of Developed Property at 100% of the applicable Maximum Special Tax.
E. APPEALS
Any landowner or resident who pays the Special Tax and believes that the amount of the Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such error. If following such consultation, t he CFO Administrator determines that an error has occurred, t he CFO Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action, if any by the CFO Administrator, the landowner or resident believes such error still exists, such person may file a written notice with the City Clerk of the City appealing the amount of the Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City Clerk shall forward a copy of such notice to the City Manager who shall establish as part of the proceedings and administration of the CFO, a special three member Review/Appeal Committee. The Review/Appeal Committee may establish such procedures, as it deems necessary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret this Rate and Method of Apportionment and make determinations relative to the annual administration of the Special Tax and any landowner or ITEM 15
resident appeals, as heroin specified. The decision of the Review/Appeal Committee shall be final and binding as to all persons.
F. MANNER OF COLLECTION
Special Taxes levied pursuant to Section D above shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that the CFO Administrator may directly bill the Special Tax, may collect Special Taxes at a different time or in a d ifferent manner if necessary to meet the financial obligations of the CFO or as otherwise determined appropriate by the CFO Administrator.
G. TERM OF SPECIAL TAY
Taxable Property in the CFO shall remain subject to the Special Tax in perpetuity or until the services financed by the Special Tax are no longer necessary, as determined by the Council. If the Special Tax ceases to be levied, t he Council shall direct the County Recorder to record a Notice of Cessation of Special Tax. Such notice shall state that the obligation to pay the Special Tax has ceased and that the lien imposed by the Notice of Special Tax Lien is extinguished. The Notice of Cessation of Special Tax shall additionally identify the book and page of the Book of Maps of Assessment and Community Facilities Districts where the map of the boundaries of the CFO is recorded ..
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EXHIBIT C
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the City Council of the City of Ceres will conduct a public hearing on Monday, June 24, 2024, at 6:00 p.m. or as soon thereafter as the matter may be heard, in the City Council Chambers located at 2701 Fourth Street, Ceres, California, to consider the following:
CITY OF CERES
COMMUNITY FACILITIES DISTRICT 3
(PUBLIC SERVICES)
ANNEXATION NO. 1
On May 13, 2024, the City Council, as the legislative body for the District, adopted a resolution entitled “A Resolution of the City Council of the City of Ceres, California, Declaring its Intention to Annex Territory into a Community Facilities District and to Authorize the Levy of Special Taxes” (the “Resolution of Intention”). Pursuant to the Resolution of Intention, the City Council determined that the public convenience and necessity require that certain territory, as more particularly described in the Resolution of Intention, be annexed to the existing District, all as provided in the Mello-Roos Community Facilities Act of 1982 (Sections 53311 and following, California Government Code) (the “Act”). Reference is hereby made to the Resolution of Intention, on file with the City Clerk of the City for further particulars. The following is a summary of the provisions of the Resolution of Intention.
In the Resolution of Intention, the City Council declared its intention to annex territory into Community Facilities District No. 3 (Public Services) (the “District”). The area proposed to be annexed to the District is as shown on Annexation Map No. 1, on file with the City Clerk, and identified in Exhibit A of the Resolution of Intention. The District shall fund the provision of police protection services, fire prevention and suppression services, ambulance and paramedic services, maintenance and repair of parks, parkways and open spaces, and appurtenances related thereto. It is presently intended that the services will be provided, without preference or priority, to the existing territory in the District and the territory proposed to be annexed to the District. The Resolution of Intention provides that the special taxes heretofore caused to be levied in the District shall be levied in the territory proposed to be annexed, subject to public hearing and owner consent proceedings as specified in the Act.
At the public hearing the testimony of all interested persons for and against the annexation of said territory to the District or the levying of special taxes within the territory proposed to be annexed will be heard. Any person interested may file a prote st in writing with the City Clerk.
/s/ Fallon Martin, City Clerk
Date Notice Published: _____________
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