Fountain Valley City Council
May 2, 2023

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part at its convenience. In such event CITY shall compensate CONTRACTOR, subject to deduction for previous payments and authorized deductions: (i) by reimbursing CONTRACTOR for reasonable and necessary expenditures and costs that are actually incurred in performing under this AGREEMENT, (ii) by reimbursing CONTRACTOR for reasonable and necessary expenditures made and costs actually incurred with CITY’s prior written approval in settling or discharging outstanding commitments entered into by CONTRACTOR in performing under this AGREEMENT, and (iii) by paying CONTRACTOR as a profit, insofar as a profit is realized hereunder, an amount equal to the profit on the entire AGREEMENT estimated at the time of termination, multiplied by the percentage of completion of the reasonable and necessary work on the PROJECT. In no event, however, will the compensation to CONTRACTOR exceed the total AGREEMENT price less payments previously made and less the AGREEMENT price of work not terminated. Upon receipt of any notice of termination, CONTRACTOR shall, unless the notice otherwise directs, (i) immediately discontinue the work and the placing of all orders and subcontracts in connection with this AGREEMENT, (ii) immediately cancel all existing orders and subcontracts made hereunder, and (iii) immediately transfer to CITY all materials, supplies, work-in-process, appliances, facilities, equipment, machinery, and tools acquired by CONTRACTOR in connection with the performance of this AGREEMENT.

CLAIM RESOLUTION

33. Resolution of Claims. For all claims that are Three Hundred Seventy-Five Thousand Dollars ($375,000.00) or less, the provisions of Public Contract Code Section 20104 et seq. (Article 1.5 - Resolution of Construction Claims) shall be followed.

34. Notice to Contractor of Claims. CITY shall provide notice to CONTRACTOR upon receipt of any third-party claim related to the AGREEMENT.

CONTRACT DOCUMENTS AND INTERPRETATION

35. Other Documents Included. It is further agreed by the parties hereto that the following documents are incorporated herein by reference and are to be read and construed together as the full, complete, and integrated terms of this AGREEMENT and, collectively with this AGREEMENT, may be referred to as the CONTRACT DOCUMENTS:

A. Notice Inviting Bids
B. Instructions to Bidders
C. General Provisions (incorporating portions of the Caltrans Standard Specifications)
D. Special Provisions (Construction Details)
E. Construction Provisions (Individual Bid Items)
F. Proposal
G. Construction Plans
H. City Public Works Standard Plans
I. City Request for Change Order/Change Order
J. Notice to Proceed
K. Labor and Materials Bond
L. Performance Bond
M. Final Closeout Agreement

36. Interpretation of Incorporated Documents. In the event of any conflict, inconsistency, or incongruity between the provisions of this AGREEMENT and the provisions of any document listed in Section 35 hereof, the provisions of this AGREEMENT shall prevail unless a contrary intent is shown. The parties acknowledge that the Caltrans Standard Specifications is a document that is prepared for use in state street projects and is to be used to supplement this

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AGREEMENT. As used in the those Standard Specifications, “Engineer” shall refer to CITY’s Director of Public Works-City Engineer, the Attorney General shall mean the Attorney for the City, and laws that pertain exclusively to state projects or contracts shall not apply but instead those provisions pertaining to CITY projects and CITY contracts shall be applied. To the extent the Standard Specifications provide for additional procedures that are not inconsistent with the provisions of this AGREEMENT, those additional procedures shall be interpreted to supplement this AGREEMENT.

This AGREEMENT shall be interpreted as though it had been drafted by the CITY and the CONTRACTOR equally. This AGREEMENT shall be interpreted according to the laws of the State of California.

37. Integration/No Oral Modifications. This AGREEMENT integrates all understandings of the parties. Any amendment to this AGREEMENT must be made in writing and signed by the parties with legal authority to execute the same. CONTRACTOR is aware that CITY is a general law city and that, pursuant to Government Code Section 40602, contract amendments may only be entered into by compliance with those formalities. Notwithstanding the above, requests for additional time or compensation may be made by following the procedures and using the form incorporated into this AGREEMENT. The limits of authority to enter into such amendments (change orders) shall be those provided in Section 22 of this AGREEMENT.

38. Effect of Invalidity. The invalidity in whole or in part of any provision hereof shall not affect the validity of any other provision.

MISCELLANEOUS

39. Discrimination, Minorities, Aliens. The CONTRACTOR shall not discriminate nor allow its employees, agents, principals, or subcontractors to discriminate against any employee or applicant for employment on the basis of race, religious creed, national origin, or sex.

CONTRACTOR shall take affirmative steps to hire qualified minority individuals when job opportunities occur and utilize local business firms when possible and when consistent with California Constitution Article 1, Section 31 (a) [Proposition 209].

40. Equal Employment Opportunity. CONTRACTOR shall comply with all provisions of Executive Order 11246, entitled “Equal Employment Opportunity” and amended by Executive Order 11375, and as supplemented in Department of Labor Regulations (41 CFR part 60).

41. Drug-Free Work. CONTRACTOR agrees to provide a drug-free workplace in accordance with 24 CFR part 24, sub-part F. Under 24 CFR part 24, sub-part F, the CONTRACTOR will provide certification in writing that it will provide a drug-free workplace by:
(a) Publicizing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying the action it will take against employees for violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform employees about:

1. Degrees of drug abuse in the workplace;

2. The policy of maintaining a drug-free workplace;

3. Any available drug counseling, rehabilitation, and employee assistance

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programs; and

4. The penalties which may be imposed on employees for drug abuse violations occurring in the workplace.
(c) Making it a requirement that every employee to be engaged in the performance of the AGREEMENT be given a copy of the statement required by Subsection (a); (d) Notifying employees in the statement required by Subsection (a) that as a condition of employment under the AGREEMENT the employee will:

1. Abide by the term of the statement; and

2. Notify the employer in writing of any conviction for a violation of a criminal drug statute occurring in the workplace no later than five (5) calendar days after such conviction.
(e) Notifying CITY in writing within ten (10) calendar days after receiving notice under Subsection (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employer of said convicted employee must provide notice, including conviction title, to the CITY;
(f) Taking one of the following actions, within thirty (30) calendar days of receiving notice under Subsection (d)(2), with respect to any employee who is so convicted:

1. Taking appropriate action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or

2. Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency. (g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of Sections (a), (b), (c), (d), (e), and (f).

42. Permits. The CONTRACTOR shall obtain from the CITY, County, State, or other responsible public agencies all licenses and permits, and pay all fees related thereto, necessary to complete the job.

43. Assignment. No assignment by the CONTRACTOR of this AGREEMENT or any part hereof, or of funds to be received hereunder, will be recognized by the CITY unless such assignment has had prior written approval and consent of the CITY and the Surety.

44. Safety and Site Condition. CONTRACTOR shall perform all operations with due regard for safety and in strict compliance with all applicable laws relating thereto. It shall be CONTRACTOR’s responsibility to keep the site in a clean, neat, and orderly condition. It shall also be CONTRACTOR’s duty to dust-palliate all working areas and access routes, if applicable. All operations shall be conducted by CONTRACTOR so that no fire hazards are created.

45. Utility Location. CITY acknowledges its responsibilities with respect to locating facilities pursuant to California Government Code Section 4215.

46. Trenching. If this AGREEMENT involves digging trenches or other excavations that extend deeper than four feet (4’) below the surface, CONTRACTOR shall promptly, and before the following conditions are disturbed, notify the CITY in writing, of any:

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(a) Material that the CONTRACTOR believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law.
(b) Subsurface or latent physical conditions at the site differing from those indicated. (c) Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the AGREEMENT.

The CITY shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in the CONTRACTOR’s cost of, or the time required for, performance of any part of the work shall issue a change order in accordance with the procedures described in this AGREEMENT.

In the event that a dispute arises between the CITY and the CONTRACTOR whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the CONTRACTOR’s cost of, or time required for, performance of any part of the work, the CONTRACTOR shall not be excused from any scheduled completion date provided for by the AGREEMENT but shall proceed with all work to be performed under the AGREEMENT. The CONTRACTOR shall retain any and all rights provided either by this AGREEMENT or by law which pertain to the resolution of disputes and protests between the contracting parties provided that CONTRACTOR complies with Section 22 when asserting such claim.

47. Notices. The parties hereto agree that all formal notices required by this AGREEMENT may be provided to the following persons at the following addresses by sending the same by certified or registered mail as follows:

CITY: City Clerk
Fountain Valley City Hall
10200 Slater Avenue
Fountain Valley, California 92708
CONTRACTOR: Archico Design Build Inc.
2010 N Tustin Avenue
Santa Ana, CA 92705

48. Gratuities. CONTRACTOR warrants that neither it nor any of its employees, agents, or representatives has offered or given any gratuities to CITY’s employees, agents, or representatives with a view toward securing this AGREEMENT or securing favorable treatment with respect thereto.

49. Conflict of Interest. CONTRACTOR warrants that he has no blood or marriage relationship with, and that he is not in any way associated with, any architect, engineer, or other preparer of the plans and specifications for this project.

50. Copeland "Anti-Kickback" Act. If applicable to this AGREEMENT, CONTRACTOR and its subcontractors shall comply with the provisions of the Copeland “AntiPage 274 18 PWK20201211
Kickback” Act (18 U.S.C. Section 874), as supplemented in Department of Labor regulations, which Act provides that each contractor shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of any public work, to give up any part of the compensation to which he is otherwise entitled.

51. Attorney’s Fees. In any action or proceeding brought by either party against the other party arising out of or in any way connected to this AGREEMENT, or where any provision hereof is validly asserted as a defense, the parties shall bear their own attorney’s fees, costs, and expenses. Nothing in this provision shall excuse CONTRACTOR’s duty to provide CITY with a defense at CONTRACTOR’s cost when CITY receives a complaint, petition, or other pleading from a third party requiring CITY to defend itself.

52. Assignment of Rights. Pursuant to Section 7103.5 of the Public Contract Code, in entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the contractor or subcontractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the contractor, without further acknowledgment by the parties.

53. SCAQMD and CARB Compliance. CONTRACTOR agrees to comply with all South Coast Air Quality Management District (SCAQMD) and California Air Resources Board (CARB) requirements, including, but not limited to, compliance with CARB Regulations limiting idling of self-propelled diesel-fueled on-road and off-road vehicles and equipment (25 HP and up) to no more than five (5) consecutive minutes as specified in Title 13 of the California Code of Regulations, section 2449 (d)(2), Idling.

54. Mined Construction Materials. CONTRACTOR shall not purchase mined construction material except from a mining operation that is currently identified in the list published pursuant to subdivision (b) of Section 2717 of the Public Resources Code. Refer to the current 3098 list for qualified mining operations at www.consrv.ca.gov/OMR/ab_3098_list/current_list.

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SPECIAL PROVISIONS
SECTION S-1. CONSTRUCTION DETAILS
S-1.01 SPECIFICATIONS - The work to be done shall be performed or executed in accordance with these Special Provisions, the General Provisions included herewith and the Standard Specifications, State of California, Department of Transportation, May 2018 edition, hereinafter referred to as the "Standard Specifications", or the Standard Specifications for Public Works Construction, 2018 edition, hereinafter referred to as Greenbook Specifications or the State of California Department of Transportation Standard Plans May 2006 edition unless otherwise specified; and the City of Fountain Valley Standard Plans.

S-1.02 DESCRIPTION – Under the terms of the Contract and pursuant to Section 4 of the Standard Specifications. The work covers improvements to the existing Fountain Valley Police Department Locker Rooms/Restrooms located at 10200 Slater Avenue in the City of Fountain Valley, California. The work generally consists of interior improvements to the Locker Rooms, Restrooms, Training Room and Laboratory including lockers, laboratory equipment, floor finishes, plumbing fixtures, electrical, HVAC and lighting. Exterior work includes accessibility upgrades and temporary shower and locker facilities and other miscellaneous improvements required by the contract documents, plans and specifications for Project GF 794.

S-1.03 PROMPT PAYMENT CLAUSES
Prompt Progress Payment To Subcontractors - A prime contractor or subcontractor shall pay any subcontractor not later than 10 days of receipt of each progress payment in accordance with the provision in Section 7108.5 of the California Business and Professions Code concerning prompt payment to subcontractors. The 10 days is applicable unless a longer period is agreed to in writing. Any delay or postponement of payment over 30 days may take place only for good cause and with the agency’s prior written approval. Any violation of Section 7108.5 shall subject the violating contractor or subcontractor to the penalties, sanction and other remedies of that section. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor S-1.04 CPM Schedule, Updates and Look Ahead Reports
In addition to the provisions of Technical Specifications Section 01310 and Section 8-1.06 of the Standard Specifications, add the following:

S-1.04.1 General. The Contractor must submit a proposed enhanced construction schedule to be negotiated with the Engineer for approval. Qualifications of the Contractor’s scheduler must be in accordance with S-1.04.2. The baseline schedule must be in accordance with the provisions below and must be in sufficient detail to show chronological relationship of all activities of the work. These include, but are not limited to: estimated starting and completion dates of various activities, submittal of shop drawings to the Engineer for approval, procurement of materials and scheduling of equipment.
4-Week look ahead schedules must be in accordance with S-1.04.5, and Monthly

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Schedule Updates must be in accordance with S-1.04.6
Prior to issuing the Notice to Proceed, the Engineer will schedule a Pre-Construction Meeting with the Contractor to review the proposed construction schedule and delivery dates, arrange utility coordination and clarify inspection procedures.

Prior to starting any work, the Contractor may be required to attend a Community Meeting to be scheduled by the Engineer. The meeting, to be held in the evening, will address the residents' questions and concerns regarding the work, what can be expected during construction and vehicular and pedestrian access that may be temporarily restricted during construction. Compensation for attending these meetings shall be considered a part of Mobilization or, when there is no bid item for Mobilization, shall be considered as part of the bid items of work for this contract.

Notwithstanding any other provisions of the Contract, the Contractor shall not be obligated to perform any work and the CITY shall not be obligated to accept or pay for any work performed by the Contractor prior to delivery of a Notice to Proceed. The CITY's knowledge of work being performed prior to delivery of the Notice to Proceed shall not obligate the CITY to accept or pay for such work. The Contractor must provide all required Contract bonds and evidences of insurance prior to commencing work at the site.

S-1.04.2 Qualifications
Within 5 working days from the City’s execution of the Contract, and prior to initiation of compiling the schedule, the Contractor must submit a statement of computerized CPM capability to document either that the Contractor has in-house capability qualified to use CPM technique and the required software or that the Contractor will arrange for the services of a CPM consultant so qualified. In either event the statement must identify the individual who will perform the CPM scheduling. Capability must be verified by a resume of the proposed scheduler with a detailed description of construction projects on which the individual has successfully applied computerized CPM and must include at least two projects of similar nature, scope and value not less than one-half the Total Bid Price of this project. This statement must also identify the contact persons for the referenced projects with current telephone, mailing and email contact information. Compilation of the schedule must not commence until the statement of CPM capability is approved by the Engineer.

S-1.04.3 CPM Baseline Schedule Submittal
a. The schedule must be prepared using the latest version of Microsoft Project® or approved equal.
b. Work activities must be based on the items of work, and the following:
o Contract Unit Price items must be subdivided into those portions to be constructed during each stage or phase of construction. o Lump sum items must be subdivided into those portions to be constructed during each phase or stage of construction.
o Required submittals, working and shop drawings included as activities. o Work to be performed by subcontractors must be identified and shown as work activities.
o The procurement of construction materials and equipment with long lead

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times for deliveries must be included as activities.
o Start and completion dates of each activity must be illustrated. o Completion of all work under the Contract must be within the time specified in S-1.06 of these Special Provisions and in accordance with the Plans and Specifications.
j. Original CPM Schedule: Within 5 working days from the date of the City approves the Scheduling Capabilities submittal, the Contractor must submit for review by the Engineer, six (6) colored hard copies of the CPM schedule and the computerized schedule electronic file. This submittal must already have been reviewed and approved by the Contractor’s project manager, project superintendent and project estimator prior to submission. The submittal must also include written concurrence from all Subcontractors and Vendors that each subcontractor / vendor can meet the respective activities in the schedule. k. Original CPM Schedule Review Meeting: The Contractor’s submitted CPM schedule and the City’s review comments will be discussed as part of a schedule review meeting. The Contractor must have the Project Manager, Project Superintendent, and the Project Scheduler in attendance. The Engineer’s review will be limited to the conformance to the Contract Documents. However, the review may also include:

1. Clarifications of the design intent, process, and startup requirements.

2. Directions to include activities and information missing from the submittal.

3. Directions to add missing activities and/or summary tasks, add appropriate / missing logical ties between activities and/or implement overlapping lags and/or connection types to appropriately identify work activities that can be accomplished concurrently

4. Requests to the Contractor to clarify the schedule.
l. Revisions to the Original CPM Schedule: Contractor must have revised the original CPM schedule to address all review comments from the preconstruction meeting and resubmit the Engineer’s review within 5 working days. The Engineer, within 5 working days from the date that the Contractor submitted the revised schedule will either (1) accept the schedule and activities submitted, or (2) advise the Contractor in writing to review any part or parts of the schedule which either do not meet the Contract requirements or are unsatisfactory for the Engineer to monitor the project’s progress and status or evaluate monthly payment requests by the Contractor. The Engineer may accept the schedule with conditions that the first monthly CPM schedule update be revised to correct deficiencies identified. When the schedule is accepted, it shall be considered as the “Original CPM Schedule” until an updated schedule has been submitted. The Engineer reserves the right to require that the Contractor adjust, add to, or clarify any portion of the schedule which may later be discovered to be insufficient for the monitoring of the work or approval of progress payment requests. No additional compensation will be provided for such adjustments, additions, or clarifications
m. Acceptance: Acceptance of the Contractor’s schedule by the Engineer will be based solely upon compliance with the requirements. By way of the Contractor assigning activity durations and proposing the sequence of the work, the Contractor agrees to utilize sufficient and necessary management and other resources to perform the work in accordance with the schedule. Upon submittal of a schedule update, the updated schedule shall be considered the “current” project schedule. Submission of the Contractor’s progress schedule to the City shall not relieve the Contractor of total responsibility for scheduling, sequencing,

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and pursuing the work to comply with the requirements of the Contract Documents, including adverse effects such as delays resulting from illtimed work.

S-1.04.4 CPM STANDARDS
a. Definitions: CPM, as required by this Section, shall be interpreted to be generally as outlined in the Association of General Contractors (AGC) publication, “The Use of CPM in Construction”.
b. Page Size: Individual sheets shall not exceed 11 inches by 17 inches, unless otherwise approved in advance.
c. Float Time
i. Definition: Unless otherwise provided herein, float is synonymous with total float. Total float is the period of time measured by the number of working days each non-critical path activity may be delayed before it and its succeeding activities become part of the critical path. If a non-critical path activity is delayed beyond its float period, then that activity becomes part of the critical path and controls the end date of the work. Thus, delay of a non-critical path activity beyond its float period will cause delay to the project itself.
d. Float Ownership: Neither the Owner nor the Contractor owns the float time.

The project owns the float time. As such, liability for delay of the project completion date rests with the party actually causing delay to the project completion date. For example, if Party A uses some, but not all of the float time and Party B later uses the remainder of the float time as well as additional time beyond the float time, Party B shall be liable for the costs associated with the time that represents a delay to the project’s completion date. Party A would not be responsible for any costs since it did not consume all of the float time and additional float time remained, therefore the project’s completion date was unaffected.
e. Administrative, procurement and Construction Activities: The CPM Schedule must include activities for the submittal, review and approval of all required administrative and technical project submittals, as well as activities for the procurement activities of required products and materials. These activities must be logically tied to their subsequent construction activities such that the entire submittal, review/approval, procurement and installation sequence is properly defined and can be monitored and tracked throughout the project.

S-1.04.5 4-Week Look Ahead submittals.

At or before noon each Friday during the prosecution of the work, the Contractor must submit and be prepared to discuss a 4week look ahead of the current schedule.

The 4-week look ahead will show all activities that are currently in progress or planned to occur over the next working month. Look ahead schedule shall include identification of the Contractor’s safety and quality control personnel, and City’s quality assurance personnel required to support each activity as applicable. Failure to submit timely any 4- week look ahead schedule and/or to list an activity starting in the 4 th week of any
particular look ahead report may result in that activity being delayed until it can be properly coordinated, with no resulting cost or time impact to the City.

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S-1.04.6 - Monthly Updates and Periodic CPM Schedule Submittals:
a. Following the acceptance of the Contractor’s original schedule, the Contractor must monitor the progress of the work and adjust the schedule each month to reflect actual progress and any changes in planned future activities. Each schedule update submitted must be complete including all information requested in the original schedule submittal and be in the schedule report format indicated below. Each update must continue to show all work activities including those already completed. Completed activities must accurately reflect “as built” information by indicating when the work was actually started and completed.

Each update must be submitted 10 days prior to submittal of progress payment applications.

Neither the submission nor the updating of the Contractor’s original schedule submittal nor the submission, updating, change, or revision of any other report, curve, schedule, or narrative submitted to the Engineer by the Contractor under this Contract, nor the Engineer’s review or acceptance of any such report, curve, schedule, or narrative must have the effect of amending or modifying, in any way, the Contract Times, interim milestone or milestone dates or of modifying or limiting, in any way, the Contractor’s obligations under this contract. Only a signed, fully executed Change Order can modify contractual obligations.

The monthly schedule update submittal will be reviewed with the Contractor during a weekly construction progress meeting. The goal of these meetings is to enable the Contractor and the Engineer to initiate appropriate remedial action to minimize any known or foreseen delay in the completion of the work and to determine the amount of work completed sine the last month’s schedule update. The status of the work will be determined by the percent complete of each activity in the updated CPM Schedule. These meetings are considered a critical component of the overall monthly schedule update submittal, and the Contractor must have appropriate personnel attend. At a minimum, these meetings must be attended by the Contractor’s Project Manager and General Superintendent. Within 7 working days after the monthly schedule submittal review, the Contractor must submit the revised CPM schedule, the revised CPM computerized tabulations as noted in this Section, the revised success/predecessor report, the project status report as defined below and the Contractor’s Application for Payment. Within 5 working days of receipt of the revised submittals, the Engineer will either accept or reject the monthly schedule update submittal. If accepted, the percent complete in the monthly update must be the basis for the Application for Payment to be submitted by the Contractor. If rejected, the update must be corrected and resubmitted by the Contractor before the Application for Payment for the update period will be processed.

The Contractor must highlight or otherwise identify all changes to the schedule logic or activity durations made from the previous schedule. The Contractor must modify any portions of the CPM schedule which become infeasible because of activities behind schedule or for any other valid reason.

If the Contractor decides to make a major change in the method of operations after commencing construction, or if the schedule fails to reflect the actual progress, the Contractor must submit to the Engineer a revised construction schedule in advance of beginning revised operations.

If the Contractor fails to submit an updated Construction Schedule to the Engineer on the first working day of each month, the CITY will withhold one-fifth the amount of the Contract Unit Price for each work day after the due date, up to maximum of $2,500, that each monthly schedule update is not submitted.

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S-1.04.7-Extensions of time
Prior to and required for approval of a Change Order, the Contractor must utilize a sub-network in the scheduling depicting any change in the work, purported to impact the schedule, and its effect on other activities. This sub-network must be tied to the main network with appropriate logic so that a true analysis of the critical path can be made.

The subnetwork for any purported delay must not become part of any schedule update or updated CPM baseline until and unless approved by the City.

S-1.05 REMOVAL OF ASBESTOS AND HAZARDOUS SUBSTANCES - When the presence of asbestos or hazardous substances are not shown on the plans or indicated in the specifications and the Contractor encounters materials which the Contractor reasonably believes to be asbestos or a hazardous substance has defined in Section 25914.1 of the Health and Safety Code, and the asbestos or hazardous substance has not been rendered harmless, the Contractor may continue work in unaffected areas reasonably believed to be safe, and shall immediately cease work in the affected area and report the condition to the Engineer in writing.

In accordance with Section 25914.1 of the Health and Safety Code, all such removal of asbestos or hazardous substances including any exploratory work to identify and determine the extent of the asbestos or hazardous substance will be performed by separate contract.

If delay of work in the area delays the current controlling operation, the delay will be considered a right of way delay and the Contractor will be compensated for the delay as provided in Section 8-1.09, “Right of Way Delays,” of the Standard Specifications.

S-1.06 TIME LIMIT - Pursuant to Section 8-1.06 of the Standard Specifications the Contractor shall, under the terms of the Contract for Project No. GF 794, diligently prosecute the work to completion within 340 days.

The Contractor shall be required to provide written verification from vendor(s) stating the tentative dates of delivery of all pertinent items necessary to complete work in accordance with this Contract. No work shall begin prior to the latest tentative date of delivery, as established by the written statements of the vendors. Working hours shall be from 7:00 AM to 5:00 PM Monday through Friday and excluding legal holidays.

S-1.06.1 MILESTONE #1 S-2.01 MINIMUM REQUIRED SUBMITTALS: The contractor shall provide the submittals listed in SECTION S-2 CONTROL OF MATERIALS, S-2.01 MINIMUM REQUIRED SUBMITTALS for MILESTONE #2 PHASE 1 LAB within 10 days following the Notice to Proceed, as indicated herein.

S-1.06.2 MILESTONE #2, PHASE 1 LAB: During PHASE 1 the contactor is responsible for the demolition and construction of Rooms 35, 36, 37, and 38 on the Demolition Plan AD-1.0 and Floor Plan A-1.0. All work areas must have BMPs in place to avoid disturbing any nearby offices. After construction of PHASE 1 is complete the contractor must fully furnish new proposed Rooms 35, 36, 37, and 38. PHASE 2 cannot begin until PHASE 1 is 100% complete.

PHASE 1 shall be completed within 100 WORKING DAYS of the Notice to Proceed and verification of availability of long lead items.

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S-1.06.3 MILESTONE #3, PHASE 2 TRAINING ROOM: During PHASE 2 the contractor is responsible for the demolition and construction of rooms 39, 40, 41 (not including STAIR NO. 2), 42, 44, and 45 on the Demolition Plan AD-1.0.and Floor Plan A-1.0. All work areas must have BMPs in place to avoid disturbing any nearby offices. After construction of PHASE 2 is complete the contractor must fully furnish new proposed rooms 39 and 42. PHASE 3 cannot begin until PHASE 2 is 100% complete.

PHASE 2 shall be completed within 80 WORKING DAYS after the completion of Phase 1..

S-1.06.4 MILESTONE #4, PHASE 3 MEN’S LOCKERS: During PHASE 3 the contractor is responsible for the demolition and construction of 106, 107, 108, 109, and 110 on the Demolition Plan AD-1.0.and Floor Plan A-1.0. This area contains the male lockers and showers for the police officers.

PHASE 3 cannot not begin until fully functional temporary facilities for men and women are on site per PHASE A and B. All work areas must have BMPs in place to avoid disturbing any nearby offices.

PHASE 3 shall be completed within 120 WORKING DAYS after the completion of Phase 2.

S-1.06.5 MILESTONE #5 PHASE 4 WOMEN’S LOCKERS: During PHASE 4 the contractor is responsible for the demolition, and construction of 110, 111, 112, 113, 114, 115, and 116 on the Demolition Plan AD-1.0 and Floor Plan A-1.0. This area contains the female lockers and showers for the police officers. PHASE 4 cannot not begin until fully functional temporary facilities for men and women are on site. All work areas must have BMPs in place to avoid disturbing any nearby offices. PHASE 4 may overlap with PHASE 3 so long as the equipment in existing Training Room 114 (AD-1.0) has been moved to the new Training Room 39 (A-1.0). PHASE 4 shall be completed within 120 WORKING DAYS after completion of Phase 2.

S-1.06.6 MILESTONE A, PHASE A EXTERIOR IMPROVEMENTS:

During PHASE A the contractor is responsible for the demolition and construction of the front entrance and related areas on the Demolition Plan AS-1.2 and Construction Plan AS-1.3. This is the only public entrance to the facility and must remain partially operational during construction.

Therefore, it is recommended that the contractor do this work in two parts. Part 1 to complete the stair area while leaving the existing ramp area functional. The second part when the stairs are complete, proceed with the ramp area. Access to the front entrance must be maintained throughout the project. PHASE A is expected to be complete within 60 WORKING DAYS of the Notice to Proceed.

S-1.06.7 MILESTONE B, PHASE B TEMPORARY FACILITIES:

During PHASE B the contractor is responsible for the installation of the temporary trailers for Men’s and Women’s Locker/Restrooms as shown on sheet AS-1.1 and indicated in specification 015000 TEMPORARY FACILITIES AND CONTROLS. The Contractor is responsible for all temporary utilities, to provide a complete and operational facility within 140 WORKING DAYS of the Notice to Proceed and is required to be completed prior to PHASE 3 AND 4.

S-1.06.8 MILESTONE C, PHASE C TEMP FACILITIES REMOVAL:

During PHASE B the contractor shall remove all temporary facilities, complete all work indicated following the removal of the temporary trailers and repair all surrounding areas to the condition occurring at the start of work. This includes landscaping, concrete,, asphalt, painting, utilities and building surfaces. Phase B shall be completed withing 15 WORKING DAYS following the completion of Phase 4.

SP-8
S-1.07 LIQUIDATED DAMAGES - The work shall be diligently prosecuted to completion within 340 WORKING DAYS following the Notice to Proceed. The Contractor shall pay to the City the sum of $1,235.00 per calendar day in excess of the 340 working days. The liquidated damages are calculated as follows:

Liquidated Damages = Fifteen percent x Total Estimate / Working days 15% x $2,800,000.00/340 = $1,235.00
For each of the Milestones indicated below the Liquidated Damages shall be $500.00 per calendar day, in excess of the working days established in each milestone.

MILESTONE #1, SUBMITTALS FOR PHASE 1 LAB
MILESTONE #2, PHASE 1 LAB:

MILESTONE #3, PHASE 2 TRAINING ROOM:

MILESTONE #4, PHASE 3 MEN’S LOCKER ROOM
MILESTONE #5, PHASE 4 WOMEN’S LOCKER ROOM

MILESTONE A, PHASE A EXTERIOR IMPROVEMENTS

MILESTONE B, PHASE B TEMPORARY FACILITIES

MILESTONE C, PHASE C TEMP FACILITIES REMOVAL
S-1.08 CONSTRUCTION AREA TRAFFIC CONTROL DEVICES - Pursuant to Section 12 of the Standard Specifications, City of Fountain Valley Standard Plans the contractor shall be allowed to work at each site adhering to the following travel lane requirements:

Working hours may be modified by the City Engineer if, during the course of construction, in the opinion of the City Engineer disruption to traffic creates unreasonable congestion and delay and/or safety concerns for Project No. GF 794.

Flashing arrow signs shall conform to Section 12-3.03 of the Standard Specifications and shall be solar powered. Flashing arrow signs shall be used for all lane/road closures. Contractor shall be responsible for insuring that all flashing arrow signs remain operational during weekends, holidays, and any other time that construction operations are suspended.

When entering or leaving roadways carrying public traffic, the Contractor's equipment, whether empty or loaded, shall in all cases yield to public traffic.

The Contractor shall provide and maintain all signs, barricades, pedestals, flashers, delineators and other necessary facilities for the protection of the motoring public within the limits of the construction area. Contractor shall also post proper signs to notify the public regarding detours and the condition of the roadways, all in accordance with the provisions of the Vehicle Code and the current Federal Highway Administration Manual on Uniform Traffic Control Devices (MUTCD) California Supplement. Any sign lost, stolen, damaged vandalized, removed, or otherwise altered as to form or location shall be replaced immediately at the contractor’s expense.

The Contractor shall furnish such flagmen as are necessary to give adequate warning to traffic or to the public of any dangerous conditions to be encountered. Construction shall not start until such time that all access to the construction area has been properly barricaded to the satisfaction of the Engineer or his designated representative.

Spillage resulting from hauling operations along or across any public traveled way shall be removed immediately by the Contractor at his expense.

SP-9
At the end of each day's work and at other times when construction operations are suspended, all equipment and other obstructions shall be removed from the roadway.

The Contractor shall notify the Orange County Transportation Authority, all post offices, schools, police departments, fire departments, and ambulance services of streets which will be affected by the construction 72 hours prior to starting work.

Full compensation for conforming to this article shall be considered as included in the various contract items of work involved, and no additional compensation will be allowed therefore.

S-1.09 PENALTY - WORK BY CITY FORCES BECAUSE OF NON-CONFORMANCE TO CONTRACT BY CONTRACTOR - continuous inspection shall be conducted by the Engineer or his designated representative. Deficiencies shall be called to Contractor’s attention immediately.

Should the Contractor fail to complete the scheduled daily work due to equipment failure or unsuitable materials, the City shall be entitled to recover costs incurred for additional labor costs, and any other costs involved in rescheduling the affected areas.

S-1.10 REMOVALS - The Contractor shall be responsible for removing and disposing of all interfering materials within the work limits using methods approved by the Engineer so as to accommodate the construction of various work items shown on the Plans.

SECTION S-2. CONTROL OF MATERIALS
S-2.01 MINIMUM REQUIRED SUBMITTALS – The following is a list of items that are required to be submitted, in compliance with the Plans and Specifications, for the City’s approval prior to the expiration of 10 Working Days from the Notice to Proceed. Failure to deliver submittals complying with the project specifications as indicated below may result in the assessment of liquidated damages. The submittals listed below are the minimum required submittals to be delivered by the deadline. This is not an exhaustive list of all submittals required for prosecution and acceptance of the project.

Submittal No. Description
1 Contractors General Injury and Illness Prevention Program (IIPP) 2 Injury & Illness Prevention Plan, Site specific safety plan – project specific job hazard analyses, site laydown area, delineation of construction areas & layout of minimum safety and security measures, Emergency Contact List, etc.
3 Project Manager, Superintendent and Scheduler Qualifications 4 Critical Path Method (CPM) Baseline Schedule and related supporting documents. (Reference Technical Provisions Section 01310) 5 Stormwater Pollution Prevention BMP Package – Plan and details of proposed configuration for prevention of stormwater pollution prevention, for each phase of the project.
6 Preconstruction photo and video survey
7 Temporary public toilet facilities Ref. Plan sheet AS-1.1 Temporary Facilities Site Plan, Technical Specifications Section 015000 Temporary Facilities and Controls
8 As stipulated in technical specifications

SP-10
9 -15 PHASE 2 SUBMITTALS
Division 06 – Wood, Plastics, And Composites – to include 064116 Plastic Laminated Cabinets
Division 08 – Openings to include
081416 Flush Wood Doors
081113 Hollow Metal Frames
087100 Door Hardware
088000 Glazing
Division 11-1 Equipment
115301 Laboratory Equipment
Division 22 – Plumbing - to include
22 30 00 Plumbing Equipment
22 40 00 Plumbing Fixtures
23 31 00 Ductwork
Division 23 – Heating, Ventilating, And Air-Conditioning - to include 23 33 00 Ductwork Accessories
23 34 23 Power Ventilators
23 37 00 Air Inlets and Outlets
DIVISION 26 – Electrical – to include
26 24 13 Switchboards
26 24 16 Panelboards
26 51 00 Lighting
Additional submittals as required in Appendix A -Technical Provisions.

PHASE 1 COORDINATION DRAWINGS
MPE coordination drawings as required for Phase 1 .

DEFERRED SUBMITTALS
Provide deferred submittals for Fire Alarm and Fire Sprinklers as indicated on Sheet T-1.0 TITLE SHEET AND SHEET INDEX and as required in the Specifications.

SECTION S-3. GENERAL DETAILS
S-3.01 SURVEYING - Any and all surveying necessary to complete this project shall be in accordance with Section 2-9 of the Greenbook Specifications and shall be provided by the Contractor. Any and all costs prescribed by the Greenbook Specifications and these Special Provisions relative to Surveying shall be included in the individual unit price for each bid item included herein.

SP-11
S-3.02 GUARANTY – In addition to guarantees required elsewhere, the Contractor shall and hereby does guarantee all work for a period of one (1) year after the date of acceptance of the work by the City and shall repair and replace any and all such work, together with any other work which may be displaced in so doing that may prove defective in workmanship and/or materials within the one (1) year period from date of acceptance, without expense whatsoever to the city, ordinary wear and tear and usual abuse or neglect excepted. In the event of failure to comply with the above mentioned conditions within five (5) days after being notified in writing, the City is hereby authorized to proceed to have the defects repaired and made good at the expense of the Contractor, who shall pay the cost and charges therefore immediately upon demand.

S-3.03 AS-BUILTS - Contractor shall maintain and submit “As Built” drawings to the City prior to filing of Notice of Completion. All “As Built” changes shall be maintained on one master copy and approved and initialed weekly by the City Project Manager prior to implementation in the field.

Provide “As Builts” per additional provisions contained in Appendix A – Technical Provisions.

S-3.04 BACKGROUND CHECK – Contractor shall have restricted use of the Facility and all workers shall have background checks as directed by the City and must pass to work on this project.
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19 PWK20201211
IN WITNESS WHEREOF, the parties hereto have entered into this AGREEMENT the date and year first above written.

ATTEST: CITY OF FOUNTAIN VALLEY
City Clerk Mayor
APPROVED AS TO FORM: CONTRACTOR

HARPER & BURNS LLP
Attorneys for the City Name: Archico Design Build Inc.

Address: 2010 N Tustin Avenue
Santa Ana, CA 92705
APPROVED AS TO CONTENT: By: Alan Alavi, President
Director of Public Works/City Engineer

20 PWK20201211
State of California )
County of )
On before me, ,
Date Here insert Name and Title of the Officer
Personally appeared
Name(s) of Signer(s)
,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is true and correct
WITNESS my hand and official seal.

Signature
Signature of Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not truthfulness, accuracy, or validity of that document.

21 PWK20201211

PAYMENT BOND
PAGE 1
Bond No.

CITY OF FOUNTAIN VALLEY

PAYMENT BOND
(LABOR AND MATERIAL BOND)
KNOW ALL MEN BY THESE PRESENTS:

THAT, WHEREAS, CITY OF FOUNTAIN VALLEY, a municipal corporation, by minute order of the City Council, adopted on , has awarded to
Archico Design Build Inc.
2010 N Tustin Avenue
Santa Ana, CA 92705
hereinafter designated as the “PRINCIPAL,” an AGREEMENT for the work described as follows:

Project No. 1001917002, Improvements to the Fountain Valley Police Department Project.

Said AGREEMENT is fully incorporated herein by reference.

WHEREAS, said PRINCIPAL is required by the provisions of said AGREEMENT and of the Civil Code to furnish a bond in connection with said AGREEMENT, as hereinafter set forth.

NOW, THEREFORE, WE, the undersigned CONTRACTOR, as PRINCIPAL, and (Name and Address of Surety)
hereinafter designated as the “SURETY,” duly authorized to transact business under the laws of the State of California, as SURETY, are held and firmly bound unto the City of Fountain Valley, in the penal sum of: ($ ), said sum being not less than one hundred percent (100%) of the estimated amount payable under the terms of the AGREEMENT for which payment well and truly be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that, if said PRINCIPAL or his subcontractors, or the heirs, executors, administrators, successors, or assigns thereof, shall fail to pay any person or party listed in California Civil Code Section 9554(b), including any of the persons named in Section 9100 of the Civil Code of the State of California for any materials, provisions, provender, or other supplies used in, upon, for, or about the performance of the work contracted to be done, or for any work or labor performed by any such claimant or any amounts require deducted, withheld, and paid over to the Employment Development Division from the wages of employees ofthe CONTRACTOR and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code, with respect to such work and labor, then said SURETY will pay for the same, in an amount not exceeding the sum set forth hereinabove, and in addition, in case suit is brought upon the bond, will pay a reasonable attorney’s fee to be fixed by the court. This bond shall inure to the benefit of any and all persons named in the aforesaid Civil Code Section 9100 so as to give

22 PWK20201211
a right of action to them or their assigns in any suit brought upon the bond.

PAYMENT BOND
PAGE 2
Bond No.

Further, the said SURETY, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the AGREEMENT documents or of the work to be performed thereunder shall in any way affect its obligation on this bond, and it hereby waives notice of any and all such changes, extensions of time, and alterations or modifications of the AGREEMENT documents and/or of the work to be performed thereunder.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of , 2023.

Archico Design Build Inc.
2010 N Tustin Avenue
Santa Ana, CA 92705

PRINCIPAL
By:

Company Representative
In accordance with the AGREEMENT for Project No. 1001917002, Improvements to the Fountain Valley Police Department Project, all bonds shall have been issued by an admitted surety insurer, and the CITY reserves the right to object to any such surety, in accordance with Code of Civil Procedure Section 995.660.

By signing below, SURETY certifies that the bonds are issued by admitted surety.

SURETY
By:

Company Representative
APPROVED AS TO FORM:

HARPER & BURNS LLP
Attorneys for the City
City of Fountain Valley
By /s/

23 PWK20201211

FAITHFUL PERFORMANCE BOND
PAGE 1
Bond No.

CITY OF FOUNTAIN VALLEY

FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:

THAT, WHEREAS, CITY OF FOUNTAIN VALLEY, a municipal corporation, by minute order of the City Council, adopted on , has awarded to
Archico Design Build Inc.
2010 N Tustin Avenue
Santa Ana, CA 92705
hereinafter designated as the “PRINCIPAL,” an AGREEMENT for the work described as follows:

Project No. 1001917002, Improvements to the Fountain Valley Police Department Project.

Said AGREEMENT is fully incorporated herein by reference.

WHEREAS, the said PRINCIPAL is required under the terms of said AGREEMENT to furnish a bond for the faithful performance of said AGREEMENT.

NOW, THEREFORE, WE, the undersigned CONTRACTOR, as PRINCIPAL, and (Name and Address of Surety)
hereinafter designated as the “SURETY,” duly authorized to transact business under the laws of the State of California, as SURETY, are held and firmly bound unto the City of Fountain Valley, in the penal sum of: ($ ), said sum being not less than one hundred percent (100%) of the estimated amount payable under the terms of the AGREEMENT for which payment well and truly be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that, if the above burden PRINCIPAL, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by, and well and truly keep and perform all the undertakings, terms, covenants, conditions, and agreements in the said AGREEMENT and any alteration thereof made as therein provided, on his or their part, to be kept and performed, at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City of Fountain Valley, its officers, and its agents, as therein stipulated, then this obligation shall become null and void, otherwise it shall be and remain in full force and virtue.

24 PWK20201211

FAITHFUL PERFORMANCE BOND
PAGE 2
Bond No.

In case suit is brought upon this bond, each party shall bear its own costs and attorney fees.

And the said SURETY, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the AGREEMENT or to the work to be performed thereunder or the specifications accompanying the same shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the AGREEMENT or to the work or to the specifications.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of , 2023.

Archico Design Build Inc.
2010 N Tustin Avenue
Santa Ana, CA 92705

PRINCIPAL
By:

Company Representative
Project No. 1001917002, Improvements to the Fountain Valley Police Department Project, all bonds shall have been issued by an admitted surety insurer, and the CITY reserves the right to object to any such surety, in accordance with Code of Civil Procedure Section 995.660.

By signing below, SURETY certifies that the bonds are issued by admitted surety.

SURETY
By:

Company Representative
APPROVED AS TO FORM:

HARPER & BURNS LLP
Attorneys for the City
City of Fountain Valley
By /s/

AMENDMENT NO. 4 TO CON 21-72 FOR AS-NEEDED ON-CALL CONSTRUCTION

MANAGEMENT AND INSPECTION SERVICES
THIS FOURTH AMENDMENT to CON 21-72 is made and entered into this 2nd day of May, 2023, by and between the City of Fountain Valley (hereinafter “CITY”) a municipal corporation (hereinafter “CITY”), and Interwest Consulting Group, Inc. (hereinafter “CONSULTANT”).

Recitals
WHEREAS, CITY and CONSULTANT previously entered into an Agreement for AsNeeded On-Call Construction Management and Inspection Services CON 21-72 dated November 16, 2021, (“AGREEMENT”); and
WHEREAS, the AGREEMENT was for an amount not-to-exceed $400,000.00 and expires November 15, 2024; and
WHEREAS, on January 17, 2023, CITY and CONSULTANT entered into a FIRST AMENDMENT to the AGREEMENT, to provide for additional As-Needed On-Call Construction Management and Inspection Services for the UAP Project, and agreed that the compensation provided to CONSULTANT shall be increased by an amount not to exceed $12,275.00; and WHEREAS, on February 21, 2023, CITY and CONSULTANT entered into a SECOND AMENDMENT to the AGREEMENT, to provide for additional As-Needed On-Call Construction Management and Inspection Services for the City Hall Finance Offices Project and As-Needed On-Call Construction Management and Inspection Services for Plan Check review from March to May of 2023 and agreed that the compensation provided to CONSULTANT shall be increased by an amount not to exceed $88,090.00; and
WHEREAS, on March 7, 2023, CITY and CONSULTANT entered into a THIRD AMENDMENT to the AGREEMENT, to provide for additional As-Needed On-Call Construction Management and Inspection Services for the City Hall Safety Improvements Project, and agreed that the compensation provided to CONSULTANT shall be increased by an amount not to exceed $11,930.00; and
WHEREAS, the parties do now desire to expand the scope of services called for under the AGREEMENT to provide for additional As-Needed On-Call Construction Management and Inspection Services for the Improvements to the Fountain Valley Police Department Project as described in Exhibit A, attached hereto and incorporated by this reference, and to provide CONSULTANT with additional compensation of an amount not to exceed $315,600.00; and WHEREAS, while CITY has not expended the TOTAL CONTRACT SUM provided for in the AGREEMENT, the funds remaining are insufficient for the proposed As-Needed On-Call Construction Management and Inspection Services for the Improvements to the Fountain Valley Police Department scope of work; and
WHEREAS, the parties desire to amend the AGREEMENT to increase the TOTAL CONTRACT SUM by $315,600.00 through November 15, 2024.

Now therefore, the parties do hereby agree that:

1. The compensation provided to CONSULTANT shall be increased by an amount not to exceed $315,600.00.

2. The scope of services shall include Exhibit A and compensation provided to CONSULTANT shall not exceed a TOTAL CONTRACT SUM of $827,895.00.

3. That the AGREEMENT, as amended, shall remain in effect until November 15, 2024.

4. Except as specifically stated herein, all other terms and conditions of the AGREEMENT, as amended, shall remain in full force and effect.

ATTEST: CITY OF FOUNTAIN VALLEY
______________________ ___________________________
Rick Miller, City Clerk Kim Constantine, Mayor
APPROVED AS TO FORM: CONSULTANT
__________________________ __________________________
Attorneys for the City Owner
APPROVED AS TO CONTENT:
__________________________
Hye Jin Lee, Public Works Director

EXHIBIT A

1 Jenner, Suite 160, Irvine, CA 92618
626.224.2055
September 16, 2022
Temo Galvez, PE
Deputy Director of Public Works
City of Fountain Valley
10200 Slater Avenue
Fountain Valley, CA 92708
Re: Letter Proposal to Provide Project Management and Inspection Services on Various Projects Dear Mr. Galvez,
We are pleased to present this letter proposal to the City of Fountain Valley. We understand that the City has requested that we provide a breakdown of the anticipated hours and not-to-exceed amount for Project Management and Inspection support services on the following projects:
▪ PD Locker Room Project
▪ City Hall Renovation
To provide Project Management services, we propose Tyrone Chesanek, at an hourly rate of $160. Tyrone is a well-versed public works professional with over 30 years of experience. He has overseen Street and Utility CIP, Facility and Parks CIP, Facility Maintenance, Facilities Management, Stores, Fleet Services, Environmental Program, and Streetlights. He has assisted in planning, directing, supervising, and coordinating departmental operations; assigned work activities, projects and programs; monitored workflow; reviewed and evaluated work products, methods and procedures.

To support Tyrone, we are also proposing Steve Kooyman, PE, Project Manager. Steve is a registered Civil Engineer with more than 25 years of civil engineering experience and has spent a vast amount of his career serving numerous jurisdictions throughout the Southern California region. His background has provided him with the knowledge of city engineering policies and procedures, which is a proven asset when providing technical assistance to engineers, architects, contractors, city personnel, and the public.

Justin Inducil, EIT will serve as Assistant Engineer, at an hourly rate of $125. Justin is a licensed Engineer-inTraining and recent graduate with a bachelor's degree in Civil Engineering, completing coursework in Computer-Aided Drafting, Surveying, Concrete Design, Structural Steel Design, Foundation Design, and Construction Management. Before joining Interwest, Justin worked as a Stormwater Inspector, reinforcing his knowledge, and developing practical construction experience.

Chuck Stagner will serve as inspector at an hourly rate of $165. Chuck is a construction inspector with over 35 years of experience serving municipalities in his field. He has been involved in all aspects of various public works projects and is knowledgeable of State & County Public Works regulations as well as MUTCD, SWPPP and OSHA requirements. Chuck is an accomplished professional who prides himself on providing quality, timely services in a friendly, collaborative way. Over his career, he has served as Project Manager, business owner, and a part of a team, giving him unique insight and the managerial skills to promote communication and satisfaction at all levels.

Exhibit A - 1

FEE SCHEDULE
Below we have provided a not-to-exceed amount and hours anticipated for each project.

Project Task Total
PD Locker Room Project
Tyrone & Steve Project Management/ Construction Management $115,600 Justin & Chuck Inspection $150,000
City Hall Renovation
Tyrone & Steve Project Management $15,000
Justin & Chuck Construction Management and Special Inspection $35,000 TOTAL: $315,600.00
Furthermore, we appreciate the opportunity to continue serving the City of Fountain Valley. Please contact Jim Ross at 714.742.1551 or [email protected]. should you have any questions. If you find our proposal acceptable, please provide a signed notice-to-proceed letter so we can begin work at your discretion.

Sincerely,
Avner Alkhas,
Vice President, Finance
Interwest Consulting Group
Exhibit A - 2

CITY OF FOUNTAIN VALLEY

CITY COUNCIL

COUNCIL ACTION REQUEST
To: Honorable Mayor and Agenda Date: May 2, 2023
Members of the City Council
SUBJECT: Report from the Measure HH Essential City Services Advisory Oversight Committee on FY 2021-22 Audited Measure HH Revenues and Expenditures EXECUTIVE SUMMARY:

On November 8, 2016 the residents of the City of Fountain Valley approved Measure HH – a one-cent transactions and use (i.e. “sales”) tax. Pursuant to the ballot measure, a citizen advisory committee was formed to review the expenditure of Measure HH revenues in relation to the City’s Responsible Spending Pledge.

DISCUSSION:

The Responsible Spending Pledge sets forth the City’s fiscal policy on the use of Measure HH, which states that the majority of this money should be used to:
 Maintain essential city services such as public safety and senior and youth programs  Maintain streets, sidewalks, roadways, parks and play equipment, and repair storm water systems
 Pay off, pay down, consolidate or refinance outstanding debt  Pay down unfunded liabilities; and
 Rebuild and maintain the City’s established reserve levels  Attract, develop and retain quality staff
At the March 30, 2023 Measure HH Oversight Committee meeting, Tiffany Lam, Senior Audit Manager at Davis Farr LLP (an independent auditing firm), discussed the audit of Measure HH Revenues and Expenditures for Fiscal Year 2021-22. The 2021-22 auditor’s report reflected approximately $17.1 million of revenue from Measure HH. In accordance with the Responsible Spending Pledge and 20-Year Financial Plan $5,049,000 was used to fund essential city services such as public safety, employee retention and senior and youth programs, and $375,000 was used to fund capital maintenance projects including residential road rehabilitation. An additional payment of $3 million was made to CalPERS consistent with the City’s 20-Year Financial Plan where the goal is to pay-off all outstanding debt and unfunded liabilities by 2037 when Measure HH sunsets. Additionally, $365,000 was set-aside to fund future fire apparatus. The balance of Measure HH revenue in the amount of $8.3 million was transferred to Reserves. The Measure HH Oversight Committee also reviewed the City’s 20- Year Financial Plan, which guides fiscal policy and encompasses the long-term operating and capital needs of the General Fund.

Report on 2021-22 Measure HH Revenues and Expenditures
May 2, 2023

On April 17, 2023 the Measure HH Oversight Committee met and prepared a report to City Council regarding the FY 2021-22 audited Measure HH revenues and expenditures. In addition the Committee met and prepared an addendum to update their report to reflect action taken by City Council on April 18, 2023. Oversight Committee Chair, Randy Takayama, will discuss the results of the Oversight Committee’s report (Attachment 1) and Addendum (Attachment 2) with the City Council at the May 2, 2023 City Council Meeting.

ALTERNATIVES:

Alternative No.1: Receive and File the Report from the Measure HH Essential City Services Advisory Oversight Committee on FY2021-22 Audited Measure HH Revenues and Expenditures.

Alternative No. 2:

Do not approve Alternative No. 1.

RECOMMENDATION:

Staff recommends Alternative No. 1.

Prepared by: Ryan Smith, Finance Director/City Treasurer Reviewed by: Colin Burns, City Attorney
Approved by: Maggie Le, City Manager
Attachment 1: Report from the Measure HH Essential City Services Advisory Oversight Committee on FY2021/22 Audited Measure HH Revenues and Expenditures Attachment 2: Addendum to Report from Measure HH Oversight Committee

CITY OF FOUNTAIN VALLEY www.fountainvalley.org
10200 SLATER AVE – FOUNTAIN VALLEY, CA 92708 (714) 593-4418, FAX (714) 593-4505 May 2, 2023
TO THE HONORABLE CITY COUNCIL:

The Measure HH – Essential City Services Oversight Advisory Committee was established by the City Council on April 4, 2017 after passage of Measure HH on the November 8, 2016 ballot. One of the provisions of Measure HH was the creation of an Oversight Committee to review and make recommendations to the City Council to ensure that revenues from the tax are utilized in accordance with the City’s Responsible Spending Pledge. The Responsible Spending Pledge sets forth the City’s priorities on the use of Measure HH funds, which states that the majority of this money should be used to maintain:
● Essential city services such as public safety/911 emergency response ● Keep Fire Station 2 open and maintain firefighter/paramedics ● Senior and youth programs
● Streets, sidewalks, roadways, parks and repair storm water systems ● Parks and play equipment
● Provide other essential City Services
The Pledge also states that whenever additional revenue gains are realized, City leadership should seek opportunities to:
• Pay off, pay down, consolidate, or refinance outstanding debt • Pay down unfunded liabilities; and
• Rebuild and maintain the City’s established reserve levels The purpose of this letter is to communicate that the Measure HH Oversight Committee has several concerns about the way in which Measure HH funds are being managed. We also believe it is important to be transparent with residents and admit that inaccurate financial data in 2022 exacerbated the city’s structural deficit.

This letter is divided into three sections. First, we will provide a quick summary of our concerns.

Second, we will offer more detailed support for each of our concerns. Finally, we will conclude with a list of recommended action for City Council and City Staff.

A Summary of Our Concerns

1. We believe that the City has transferred almost $15 million dollars more than is justified to maintain and rebuild our reserves. Our Capital reserve account exceeds its council establish target. As a result, transferring Measure HH funds to this account is inconsistent with the spending pledge.

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2. We believe that the City may be overcharging Measure HH for essential services, keeping fire station 2 open, and for senior and youth programs as represented on the annual report card. These increases are inconsistent with the methodology our committee has used since its inception. More importantly, the Measure HH Oversight Committee was not consulted or included in the conversation that led to these changes.

3. The City does not have a mechanism to ensure that when budget surpluses are identified, Measure HH is the first fund made whole. This allows Measure HH funds to be spent outside of the spending pledge.

4. The Measure HH Oversight Committee and City Council were given inaccurate financial forecasts on two different projections in 2022 exacerbating the City’s structural deficit. $15 Million in Reserve Transfers
To assure voters that they could trust the City to spend this new tax revenue on its intended purpose, residents were promised that if Measure HH funds exceeded the amount of our annual structural deficit they would be used for very specific projects. The City of Fountain Valley Spending Pledge states:

We also believe, that whenever additional revenue gains are realized, City leadership should seek opportunities to:
• Pay off, pay down, consolidate or refinance the City’s outstanding debt; • Pay down unfunded liabilities; and
• Rebuild and maintain the City’s established reserves levels.

The City used Measure HH funds to rebuild and maintain its established reserves.

Unfortunately, once those reserves were rebuilt, instead of using additional revenues to pay down debt and pension obligations, the City transferred Measure HH funds into capital reserves in excess of its council approved target.

This is not the first time this has happened. In fact, FY 2021-22 represents the third year our Oversight Committee has commented on this problem. Worse yet, the City is currently budgeting to do it again in FY 2022-23 where they project to transfer almost $1.5 million additional Measure HH funds into Capital Reserves.

Changes to the Report Card Done Without Collaboration
Our Committee is aware that for the purposes of the city’s accounting and budget systems, Measure HH funds are general funds and unrestricted. We also recognized early on in 2017 that the City could easily say it was using Measure HH funds on Measure HH projects by charging the entire FVPD or FVFD budget to Measure HH.

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As a result, the Committee in collaboration with the Fountain Valley Finance Department created a metric for assessing how much of the FVPD or FVFD budget should be charged to HH.

As you can see in the attached chart of expenses, it is clear that the methodology for identifying Measure HH expenses related to Public Safety have changed since FY 2020-2021. Our concern is that we were not consulted when this change took place. We are not able to determine whether the changes made to the report card are good or bad because we have not been included in the conversation.

Ensuring all Measure HH funds are used for Measure HH
The assumptions applied to our economic models and budgeting encourage conservative estimates on both our revenue and expenses. We budget to receive less revenue than we typically get and assume more expenses than we typically realize.

While we agree that this is a sound budgeting strategy, we are concerned that our processes allow more Measure HH money to be used from the general fund than is warranted. For example, when the City budgeted FY 2022-2023 we estimated that we would have an $11.8 million-dollar deficit. As a result, 11.8 million dollars was allocated from Measure HH to cover essential city services.

What happens, however, when we realize at mid- or end of year that the City’s actual structural deficit was $8.8 million? We don’t have a mechanism that “returns” the $3 million dollars of Measure HH money that the City no longer needs to cover the deficit. As a result, $3 million dollars of Measure HH can be spent outside of the restrictions connected with the spending pledge.

Bad Financial Data
Both the Measure HH Oversight Committee and City Council were given inaccurate 20-year economic forecasts that overstated our economic position by almost $100 million dollars in January of 2022. Second, City Council, when negotiating new contracts with our employee groups, was given incomplete/inaccurate information about the long-term cost of the contract negotiations in the spring of 2022. As a result, the City faced a perfect storm of overstating revenue and understating expenses. This inaccurate information exacerbated our structural deficit. This means that we have less Measure HH money to spend on debt and pension obligations than we should have had.

Recommended Action

1. The Measure HH Oversight Committee recommends reallocating the overcapitalized fund balance in our Capital Reserves to the City’s pension trust account. At a minimum, these funds should be identified as Measure HH funds to ensure that they are used consistent with the spending pledge.

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2. The Measure HH Oversight Committee recommends that the Finance Department and the Measure HH Committee meet to collaborate on the appropriate metrics for building the Measure HH report card.

3. The Measure HH Oversight Committee recommends that the City adopt an accounting process that ensures that Measure HH allocations are fully captured.

4. The Measure HH Oversight Committee recommends that City Council make a public commitment to the spending pledge. We also recommend that this action be taken each time there is a change in the membership of City Council.

5. The Measure HH Oversight Committee recommends that staff provide a public report to City Council, at a regularly agenized meeting, about the financial irregularities that occurred in early 2022 including an assessment of their impact on our structural deficit.

We are thankful for the opportunity to serve and we look forward to continuing to serve the City Council and the residents of this great city.

Respectfully submitted,
Randy Takayama, Chair
February 2021 – Present

CITY OF FOUNTAIN VALLEY

MEASURE HH ADVISORY OVERSIGHT COMMITTEE
Matt Taylor
April 2017 – Present
Stephen Schwarz
January 2021 – Present
Charles Hoyt, Vice Chair
February 2022 – Present
Al Schwerin
Alternate
March 2023-Present
Jeffrey Stone
February 2022 – Present

CITY OF FOUNTAIN VALLEY
Schedule of Measure HH Revenues and Expenditures
With Independent Accountant’s Report Thereon
For the Year Ended June 30, 2022

INDEPENDENT ACCOUNTANT’S REPORT
To the Honorable Mayor
and Members of City Council
of the City of Fountain Valley
Fountain Valley, California
We have examined management of the City of Fountain Valley’s (City) assertion that the City complied with Measure HH included in the accompanying Schedule of Measure HH Revenues and Expenditures (schedule) during the fiscal year ended June 30, 2022. The City’s management is responsible for its assertion. Our responsibility is to express an opinion on management’s assertion about the City’s compliance with the specified requirements based on our examination.

Our examination was conducted in accordance with attestation standards established by the American Institute of Certified Public Accountants. Those standards require that we plan and perform the examination to obtain reasonable assurance about whether management’s assertion is fairly stated, in all material respects. An examination involves performing procedures to obtain evidence about management’s assertion. The nature, timing, and extent of the procedures selected depend on our judgment, including an assessment of the risks of material misstatement of management’s assertion, whether due to fraud or error. We believe that the evidence we obtained is sufficient and appropriate to provide a reasonable basis for our opinion.

Our examination does not provide a legal determination on the City’s compliance with the specified requirements.

In our opinion, management’s assertion that the City complied with Measure HH reporting requirements included in the accompanying schedule is fairly stated, in all material respects.

This report is intended solely for the information and use of the City Council and management of the City of Fountain Valley, California and is not suitable for any other purpose.

Irvine, California
March 1, 2023

CITY OF FOUNTAIN VALLEY

SCHEDULE OF MEASURE HH REVENUES AND EXPENDITURES
Fiscal Year Ended June 30, 2022
Measure HH Revenues $ 17,162,175
Measure HH Expenditures:

Reoccurring Expenses Incurred on Essential City Services 5,424,000 One-Time Expenses (Additional Pension Paydown) 3,000,000 Financial Stewardship: Reserves Set-Aside in 21-22 $ 8,738,175 Measure HH provided necessary funding in Fiscal Year 2021/22 that was used for the following in accordance with the Responsible Spending Pledge:

Reoccurring Expenses Incurred on Essential City Services:

Public Safety
Maintain 911 Emergency Response Times & Keep Fire Station No. 2 open1 1,579,000
Police and Fire Pension Costs that are Legally Required to be Paid to CalPERS and Principal and Interest on the Safety Pension Obligation Bonds2 2,108,000
Total Public Safety 3,687,000
Senior & Youth Programs
Amount associated with the cost to keep the Recreation Center, Community Center & Senior Center open3
1,362,000
Employee Retention
Salary and benefit increases4
-
Capital Improvements
Includes $375,000 for residential road rehab. 375,000
Total Reoccurring Expenses5
5,424,000
One-Time Expenses:

Additional Payment to CalPERS towards unfunded pension liabilities 3,000,000 Reserves Set-Aside in 21-22:

Pension Reserves
2021-22 Contribution to Pension Trust Fund -
Increase in Capital Reserves 8,373,175
Capital Reserves - Transfer to Fleet Management Internal Service Fund Set-aside for Fire Apparatus 365,000
Total Reserves Set-Aside in 21-22 8,738,175
See accompanying notes to Schedule of Measure HH Revenues and Expenditures. 2

1 - Without Measure HH, staff would have faced the challenge of closing Fire Station No. 2, which would have been a gradual process spanning multiple years. The total cost attributable to 14-full-time equivalents (FTEs) within various classifications assigned to Fire Station No. 2 is $2,174,551.

Approximately 72.6% of the staffing cost attributable to Fire Station No. 2 has been identified as being funded from Measure HH, which equates to $1,579,000.
2 - Historically, pensions were funded over a rolling 30 year period in accordance with CalPERS funding policy. In 2013 CalPERS approved a change to pension funding, which resulted in shorter amortizations and significant increases in amounts required to be paid to CalPERS beginning in Fiscal Year 2015-16.

The City's annual pension expense was approximately $5 million through Fiscal Year 2015-16, which included $1,606,319 paid for police and fire pension costs for services rendered in prior years (excluding "normal cost" related to the accrual of benefits earned in the current year). In 2020-21, the projected expense for police and fire pension costs for services rendered in prior years is $4,509,770, which includes principal and interest expense paid on Pension Obligation Bonds attributable to police and fire.

Approximately 72.6% of the increase ($2,903,451) in pension expense over the base year equates to $2,108,000, which has been attributed to Measure HH.
3 - The Recreation and Community Services Department generally provides services that benefit the community as whole. Therefore, user fees and revenues generated by the Recreation and Community Services Department generally do not cover the full cost of programs. Therefore, the General Fund subsidizes the difference. The General Fund subsidy is estimated at approximately $1,876,609 in Fiscal Year 2021-22. Approximately 72.6% of the General Fund subsidy has been identified as being funded from Measure HH, which equates to approximately $1,362,000. 4 - Measure HH was approved by the community to allow for continuous operating and improvement of essential City services. In response to the community needs, the City Council approved negotiated adjustments to salaries and benefits for various classifications. 5 - General Fund operating revenues are $75,714,737 and operating expenditures are $63,601,239.

The net operating surplus is $12,113,498. Without Measure HH, the General Fund would have had an operating deficit of $5,048,677. Therefore, this amount has been identified as being funded from Measure HH, which has been used for reoccurring essential City services. 3

CITY OF FOUNTAIN VALLEY
Notes to the Schedule of Measure HH Revenues and Expenditures Year Ended June 30, 2022

1. BASIS OF ACCOUNTING AND MEASUREMENT FOCUS
The Measure HH Revenues and Expenditures Schedule (Schedule) is presented using the modified-accrual basis of accounting. Under the modified-accrual basis of accounting, revenues are recognized when they become both measurable and available. Revenues are considered to be available when they are collected within the current period or soon enough thereafter to pay liabilities of the current period. For this purpose, the City considers revenues to be available if they are collected within 60 days of the end of the current fiscal year. Expenditures generally are recorded when a liability is incurred, as under accrual accounting.

2. REVENUES AND EXPENDITURES
Measure HH revenues consist of the 1% transactions and use (i.e. "sales") tax approved by the voters of Fountain Valley on November 8, 2016. Measure HH became effective April 1, 2017, which provided twelve months of revenue in Fiscal Year 2021/22 in the amount of approximately $17.2 million.

Measure HH is a general-purpose tax, which means the revenues received from the tax go into the City's General Fund to maintain or enhance any lawful City program, improvement or service such as police and fire services, senior and youth programs, etc.

Without Measure HH, the General Fund's operating deficit for Fiscal Year 2021/22 would have been $5,048,677. Measure HH expenditures include the utilization of funds to maintain existing services for public safety and senior and youth programs in an amount totaling $5,424,000. In addition, Measure HH expenditures include a one-time expenditure of $3,000,000 for funding of the pension liabilities.

The remaining balance of Measure HH funds represent amounts set-aside in reserves. The reserves set-aside in Fiscal Year 2021/22 include an increase in capital reserves of $8,738,175.

The General Fund reserves set-asides have been $1,747,320 in Fiscal Year 2016/17, $6,914,942 in FY 2017/18, $9,369,018 in FY 2018/2019, $5,655,333 in FY 2019/20, $9,669,419 in FY 2020/21, and $8,738,175 in FY 2021/22. During FY 2019/20 a prepayment was made for the purchase of a fire apparatus in which the reserves set-aside was reduced by $1,199,307. Since the original contributions in FY 2017/18, the OPEB and Pension set-aside reserves have accumulated $1,103,964 in investment earnings. As of June 30, 2022 the total reserve balance was $41,998,864. 4

CITY OF FOUNTAIN VALLEY
Notes to the Schedule of Measure HH Revenues and Expenditures Year Ended June 30, 2022
Total reserves and targets are as follows as of June 30, 2022:

Short-Term/
Long-Term
Measure HH Reserves Targeted % Funded by
Reserves at 6/30/22* Reserve Measure HH
OPEB Trust Reserves $ 1,983,263 12,376,076 $10-30 Million 16% Pension Trust Reserves 11,120,701 11,120,701 $10-30 Million 100% Emergency Reserves 4,903,421 18,426,000 $14.2 Million 27% Capital Reserves 18,145,228 30,476,135 $10-15 Million 60% Capital Rsrve-Set-aside HH CIP 5,116,251 5,116,251 Shared by above 100% Fire Apparatus Reserves 730,000 730,000 $2 Million 0%
$ 41,998,864 78,245,163
* Including Measure HH and non-HH reserves set-aside and related investment income. 5

CITY OF FOUNTAIN VALLEY www.fountainvalley.org
10200 SLATER AVE – FOUNTAIN VALLEY, CA 92708 (714) 593-4418, FAX (714) 593-4505 May 2, 2023
TO THE HONORABLE CITY COUNCIL:

The Measure HH – Essential City Services Oversight Advisory Committee would like to offer an addendum to our original report to council approved at our meeting on April 17th. Specifically, we want to update our report to reflect action taken by City Council on April 18th related to Measure HH.

First, we want to acknowledge that City Council has approved the creation of the Measure HH Reserve including the transfer of $23 million dollars from our Capital Reserves. This step will ensure that residents are able to track expenditures paid for by Measure HH and is a positive step in the right direction. It is our belief that this step addresses the first concern and recommendation we outlined in our original letter.

Second, the Committee believes that the $23 million should not be spent on capital projects.

We believe that the Spending Pledge did not prioritize capital projects. Instead, the Spending Pledge prioritized paying down our debt and addressing our pension liabilities. The only way to ensure that when Measure HH expires our debt is eliminated and our pension liabilities have been managed is to dedicate all “extra” Measure HH funds to debt and pension liabilities, not new capital projects.

Third, we believe that the purchase of land for the construction of a new fire house is not consistent with the priorities established in the Spending Pledge as originally conceived. We are also concerned that the repayment of the $6 million dollars being borrowed from Measure HH Reserve to purchase new land for fire station 1 is not codified. We recommend that City Council formally commit to repaying the money to the Measure HH Reserve. We also do not believe that Measure HH funds should be funding source for the construction of the new fire house. If Measure HH money is used, the Committee would recommend that the Measure HH Reserve be repaid using income generated from or on the property housing the new fire station.

We respectively request that the remaining $17 million in the Measure HH reserves be earmarked and/or used to address our debt and pension liabilities. We would also request that as the $6 million being borrowed from the Measure HH Reserve be earmarked for debt and pension liabilities when it is repaid.

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Respectfully submitted,
Randy Takayama, Chair
February 2021 – Present

CITY OF FOUNTAIN VALLEY

MEASURE HH ADVISORY OVERSIGHT COMMITTEE
Matt Taylor
April 2017 – Present
Stephen Schwarz
January 2021 – Present
Charles Hoyt, Vice Chair
February 2022 – Present
Al Schwerin
Alternate
March 2023-Present
Jeffrey Stone
February 2022 – Present

CITY OF FOUNTAIN VALLEY

CITY COUNCIL

COUNCIL ACTION REQUEST
To: Honorable Mayor and Agenda Date: 5/2/2023
Members of the City Council
SUBJECT: Approve a Memorandum of Understanding Between the City of Fountain Valley and the Fountain Valley Community Foundation to Support the Annual Summerfest Event
Three-Year Strategic Goals
☒ Enhance the culture and environment of “A Nice Place to Live” ☐ Attract and retain revenue producing businesses
☐ Achieve fiscal stability in accordance with the 20-Year Financial Plan ☐ Attract and retain quality staff
☐ Not applicable
EXECUTIVE SUMMARY:

The City of Fountain Valley Summerfest Committee (City/Committee) desires to enter into a Memorandum of Understanding (MOU) between the City/Committee and the Fountain Valley Community Foundation (FVCF). This arrangement will continue the Summerfest event as “A party for the people, by the people” as it was originally intended. Additionally, this agreement will provide the committee with flexibility on selecting vendors and entertainment for the event. In addition to programming and logistical flexibility, this agreement will reduce the responsibilities and timelines associated with the city’s municipal procedures and end of year purchasing processes.

DISCUSSION:

Annually, the City provides a Summerfest event to celebrate the CITY’s anniversary of incorporation (June 13, 1957). Summerfest is designed to be net neutral to the City’s General Fund, with net revenues to be held in a reserve account to support the annual celebration in perpetuity. A volunteer committee, hereinafter referred to as “Committee,” comprised of community residents, assists City staff in the planning and implementation of Summerfest. Summerfest was originally referred to as, “a party for the people, by the people.”
In an effort to support the continued growth of the annual Summerfest event and allow the event flexibility as it continues to look for new and exciting recreational amenities, the

committee desires to enter into the proposed MOU with the FVCF with duties outlined as follows;

DUTIES OF THE FVCF

2.1 FVCF will process contracts with vendors selected by COMMITTEE.

FVCF will be paid 2% of the total collected/paid for all vendor contracts.

2.2 FVCF will, in collaboration with COMMITTEE, be responsible for the Summerfest Bar as outlined in the attached agreement (Attachment #1).

2.3 FVCF will provide an annual financial accounting to CITY and COMMITTEE within 60 days of the completion of Summerfest.

2.4 FVCF will maintain a Fund Account within the FVCF operating budget and provide CITY and COMMITTEE reasonable access to monthly budget reports.

DUTIES OF THE CITY/COMMITTEE

3.1 Excluding the FVCF duties listed above, CITY and COMMITTEE will be responsible for all aspects of the design, production, and execution of Summerfest.

3.2 CITY and COMMITTEE will be responsible for obtaining all necessary permits, inspections, and approvals required to host Summerfest.

3.3 CITY and COMMITTEE will provide an annual operating budget to FVCF by March 1st of each year. FVCF shall not exceed budgeted expenditure amounts.

FINANCIAL ANALYSIS:

There will be no direct impact to the City General Fund budget associated with the proposed agreement.

Annual Net Revenues will be deposited in a reserve account to be spent in accordance to the Summerfest Revenue Agreement below;
a. Minimum 50% of net revenues to be maintained in Summerfest Reserve Fund account for the sustainability of future Summerfest events; b. Maximum 25% to be dispersed in support of Internal City Departments who directly support the event (i.e. FVPD, FVFD, Public Works Departments); and
c. Maximum 25% to be dispersed in support of community projects or special events for the general benefit of the City of Fountain Valley and its residents.

The FVCF will process contracts with vendors selected by COMMITTEE. FVCF will be paid 2% of the total collected/paid for all vendor contracts. Staff anticipates the 2% payment to be approximately $3,000.

In addition, as identified in the Summerfest Bar Agreement, the FVCF will receive 20% of the net bar proceeds for operation of the beer and wine garden. Staff anticipates the 20% payment to be approximately $5,000.

ATTORNEY REVIEW:

The Attorneys for the City reviewed and concur with this Council Action Request.

ALTERNATIVES:

Alternative No.1: Approve the Memorandum of Understanding Between the City of Fountain Valley and the Fountain Valley Community Foundation to Support the Annual Summerfest Event
Alternative No. 2: Do not Approve the Memorandum of Understanding Between the City of Fountain Valley and the Fountain Valley Community Foundation to Support the Annual Summerfest Event
RECOMMENDATION:

Staff recommends that the City Council approve the Memorandum of Understanding Between the City of Fountain Valley and the Fountain Valley Community Foundation to Support the Annual Summerfest Event
Prepared by: Rob Frizzelle, Community Services Director Fiscal Review by: Ryan Smith, Finance Director
Approved by: Maggie Le, City Manager
Attachment 1: Summerfest MOU

CITY OF FOUNTAIN VALLEY

CITY COUNCIL

COUNCIL ACTION REQUEST
To: Honorable Mayor and Agenda Date: May 2, 2023
Members of the City Council
SUBJECT: A resolution of the City Council of the City of Fountain Valley ending the Level 2 Water Supply Shortage declaration and returning to Level 0 Normal Water Supply Conditions requiring public compliance with permanent water conservation practices and the State’s ban on using potable water to irrigate nonfunctional turf at commercial, industrial and institutional sites Three-Year Strategic Goals
☒ Enhance the culture and environment of “A Nice Place to Live” ☐ Attract and retain revenue producing businesses
☐ Achieve fiscal stability in accordance with the 20-Year Financial Plan ☐ Attract and retain quality staff
☐ Not applicable
EXECUTIVE SUMMARY:

The State’s water supply conditions have improved dramatically this winter as a result of frequent, heavy rainfall and record-breaking snowpacks. In response, California Governor Gavin Newsom, has issued several Executive Orders revising or terminating certain water conservation measures that were implemented during the drought emergency.

On March 24, 2023, Governor Gavin Newsom issued Executive Order N-5-23 to end the voluntary 15% water conservation target and the requirement that local water agencies implement Level 2 of their drought contingency plans while maintaining the ban on the use of potable water for the irrigation of non-functional turf at commercial, industrial, and institutional sites.

Therefore, Staff is recommending that the City Council adopt a resolution ending the declared Level 2 Water Supply Shortage and returning to Level 0 Normal Water Supply Conditions requiring public compliance with permanent water conservation practices and the State’s ban on using potable water to irrigate non-functional turf at commercial, industrial and institutional sites.

If the proposed resolution is adopted, watering will no longer be limited to 3 days per week on an assigned schedule as of May 3, 2023. The public will still be encouraged to make conservation a way of life and required to comply with the City’s permanent water conservation

Level 0 – Normal Water Supply Conditions
May 2, 2023

practices as identified in Section 14.18.040 of the Fountain Valley Municipal Code. The State’s ban on using potable water to irrigate non-functional turf at commercial, industrial and institutional sites will also remain in effect.

DISCUSSION:

History
In 2018, following the end of the 2013-2017 drought, the California Legislature modified the Urban Water Management Planning Act of 1983 (California Water Code 10610 to 10656) to include new water shortage planning requirements. More specifically, California Water Code Section 10632 now requires urban water suppliers to conduct, approve and submit an annual water supply and demand assessment beginning July 1, 2022; implement six standard water shortage levels corresponding to progressive water shortages of up to 10%, 20%, 30%, 40%, 50% and greater than 50%; and identify shortage response actions that align with each of the defined shortage levels.

On June 1, 2021, City Council adopted the City’s 2020 Urban Water Management Plan (2020 UWMP) and 2020 Water Shortage Contingency Plan (2020 WSCP) pursuant to California Water Code. Both the 2020 UWMP and the 2020 WSCP incorporated the new legislative requirements.

On June 1, 2021, City Council adopted Ordinance 1572 (Ordinance), which repealed and reenacted Chapter 14.18 of the Fountain Valley Municipal Code (FVMC) pertaining to water conservation. The Ordinance updated FVMC 14.18 to be consistent with the new requirements of California Water Code Section 10632 and the City’s 2020 UWMP Plan and 2020 WSCP including:
 Redefining the City’s water supply shortage levels to comply with the six standard levels defined by the State;
 Reassigning the water shortage contingency measures to the new standardized shortage levels to achieve required reductions;
 Requiring mandatory reductions and water shortage contingency measures at all levels to allow for enforcement; and
 Incorporating the annual water shortage assessment (commonly referred to as the annual water supply and demand assessment) required by the California Department of Water Resources (DWR) into the water shortage determination process.

FVMC 14.18.050 now defines six water supply shortage levels that are aligned with the City’s 2020 WSCP and the State’s Water Shortage Levels.

Water Supply Shortage Levels Corresponding Water Use Requirements Level 0 – Normal Water Supply
Conditions
Permanent water conservation requirements are
in place at all times to prevent waste and
unreasonable use of water
Level 1 Water Supply Shortage Requires a water use reduction of up to 10% Level 2 Water Supply Shortage Requires a water use reduction of 11-20%

Level 0 – Normal Water Supply Conditions
May 2, 2023

Level 3 Water Supply Shortage Requires a water use reduction of 21-30% Level 4 Water Supply Shortage Requires a water use reduction of 31-40% Level 5 Water Supply Shortage Requires a water use reduction of 41-50% Level 6 Water Supply Shortage
Emergency
Requires a water use reduction of greater than
50%
The City Council can declare a water supply shortage and require or impose reductions in the use of water if such reductions are necessary in order for the City to comply with water use restrictions imposed by federal, state or regional water agencies, or to respond to local or regional water shortage conditions and emergencies. Each water supply shortage level is intended to be more restrictive than the previous level(s) and has predefined water conservation/demand management measures that can be implemented to help achieve the necessary reduction. The corresponding water conservation/demand management measures shall be in addition to the City’s permanent water conservation requirements and the water conservation/demand management measures of the previous level(s).

On April 21, 2021, Governor Gavin Newsom proclaimed a state of emergency to exist in Mendocino and Sonoma counties due to drought conditions in the Russian River Watershed.

On May 10, 2021, Governor Gavin Newsom proclaimed a state of emergency to exist in the Klamath River, Sacramento-San Joaquin Delta, and Tulare Lake Watershed counties due to drought.

On July 8, 2021, Governor Gavin Newsom proclaimed a state of emergency to exist due to drought in the additional nine counties of Inyo, Marin, Mono, Monterey, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, and Santa Cruz, such that a drought state of emergency was in effect in 50 counties.

On July 8, 2021, Governor Gavin Newsom issued Executive Order N-10-21 calling on all Californians to voluntarily reduce their water use by 15 percent from their 2020 levels.

On October 19, 2021, Governor Gavin Newsom proclaimed a state of emergency to exist in the State due to drought in the remaining counties of Imperial, Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Francisco, and Ventura, such that the drought state of emergency is in effect statewide. He also directed local water suppliers to execute their urban Water Shortage Contingency Plans and agricultural Drought Plans at a level appropriate to local conditions, taking into account the possibility of a third consecutive dry year, and to ensure that Urban and Agricultural Water Management Plans were up to date and in place.

At this point in time, the City of Fountain Valley had recently adopted its 2020 UWMP and had determined that there was sufficient water supply to meet the demands of its water customers through multiple dry years. The City remained at Level 0 and continued to promote the efficient use of water through its permanent water conservation requirements (FVMC 14.18.040), a variety of programs and educational material, and Best Management Practices.

On January 4, 2022, the State Water Resources Control Board (SWRCB) adopted an emergency regulation to supplement voluntary water conservation (Resolution No. 2022-

Level 0 – Normal Water Supply Conditions
May 2, 2023

0002). The wasteful water uses prohibited by this emergency regulation were already included in the City’s permanent water conservation requirements (FVMC 14.18.040) so no action was required of the City.

On March 28, 2022, Governor Gavin Newsom issued Executive Order N-7-22 calling on all Californians to limit summertime water use and to use water more efficiently indoors and out.

Californians were also encouraged to understand and track the amount of water they use and measure their progress toward their conservation goals. He also directed the SWRCB to consider adopting additional emergency regulations by May 25, 2022, to increase water conservation.

On May 24, 2022, the SWRCB adopted an emergency regulation to reduce water demand and improve water conservation (Resolution No. 2022-0018). This emergency regulation implemented the following requirements:
 Each urban water supplier shall submit a preliminary annual water supply and demand assessment to DWR by June 1, 2022, and submit a final annual water supply and demand assessment by July 1, 2022;
 Each urban water supplier that has submitted a WSCP to DWR shall implement by June 10, 2022, at a minimum, all demand reduction actions identified in the supplier’s WSCP for a shortage level of 10-20% (Level 2); and
 The use of potable water is prohibited for the irrigation of non-functional turf at commercial, industrial, and institutional sites.

On June 21, 2022, City Council adopted Resolution Number 9835 declaring a Level 2 Water Supply Shortage with a provision to prohibit the use of potable water for irrigation of nonfunctional turf at commercial, industrial, and institutional sites in order to comply with SWRCB’s Emergency Regulation (Resolution 2022-0018).

Recent Events
The State’s water supply conditions have improved dramatically this winter as a result of frequent, heavy rainfall and record-breaking snowpacks. In response, California Governor, Gavin Newsom, has issued several Executive Orders revising or terminating certain water conservation measures that were implemented during the drought emergency.

On February 13, 2023, Governor Gavin Newsom issued Executive Order N-3-23 that expedited permitting of recharge projects to maximize the use of winter precipitation to recharge underground aquifers.

On March 10, 2023, Governor Gavin Newsom issued Executive Order N-4-23 to accelerate groundwater recharge and reduce the risk of flooding by temporarily lifting regulations and restrictions on permitting and use to enable water agencies and water users to divert flood stage water for the purpose of groundwater storage recharge between March 10, 2023, and June 1, 2023.

Level 0 – Normal Water Supply Conditions
May 2, 2023

On March 24, 2023, Governor Gavin Newsom issued Executive Order N-5-23 to end the voluntary 15% water conservation target and the requirement that local water agencies implement Level 2 of their drought contingency plans, while maintaining the ban on the use of potable water for the irrigation of non-functional turf at commercial, industrial, and institutional sites.

Compliance
As a result of the State’s improved water supply conditions and the Governor’s Executive Order (N-5-23), the City is no longer required to implement its Level 2 Water Supply Shortage restrictions, and Californians are no longer being asked to voluntarily reduce their water usage by 15%.

However, the State’s ban on the use of potable water for the irrigation of non-functional turf at commercial, industrial and institutional sites implemented by the SWRCB’s Emergency Regulation (Resolution 2022-0018) remains in effect.

Therefore, staff is recommending that the City Council adopt a resolution ending the declared Level 2 Water Supply Shortage and returning to Level 0 Normal Water Supply Conditions requiring public compliance with permanent water conservation practices and the State’s ban on using potable water to irrigate non-functional turf at commercial, industrial and institutional sites.

Water Restrictions
The City has permanent water conservation requirements, identified in Section 14.18.040 of the Fountain Valley Municipal Code, that are in effect at all times which include but are not limited to the following:
 Limits on watering hours – prohibited between 9:00 a.m. and 6:00 p.m.;  Limits on watering duration – limited to no more than 15 minutes per station per day;  Watering during and after a rainfall – prohibited during and within 48 hours after measurable rainfall;
 Watering ornamental turf on public street medians is prohibited;  Watering in a manner that causes or allows more than incidental water runoff is prohibited;
 No washing down hard or paved surfaces;
 Any new planting should be drought-tolerant plants;
 Obligation to fix leaks, breaks, or malfunctions within 72 hours of notice;  Limits on washing vehicles – prohibited except with the use of a bucket or a hose with an automatic shutoff nozzle, or at a commercial car wash that recycles water;  Swimming pools – no person shall empty and refill a swimming pool except to prevent or repair structural damage or to comply with public health regulations;  Water fountains or decorative water features are prohibited unless they recirculate water;
 Hotels/Motels must provide an option to not have towels and linens laundered daily;  Food Service Facilities are required to use water-conserving pre-rinse spray valves, serve drinking water only upon request and other miscellaneous requirements; and

Level 0 – Normal Water Supply Conditions
May 2, 2023

 Miscellaneous construction requirements.

In addition, to the City’s permanent water conservation requirements, the City will continue to comply with the State’s ban on the use of potable water for the irrigation of non-functional turf at commercial, industrial, and institutional sites, per the requirements of the emergency regulation.
“Commercial, industrial, and institutional” refers to commercial water users, industrial water users, and institutional water users as respectively defined in Water Code, section 10608.12, subdivisions (e), (i), and (j), and includes homeowners’ associations, common interest developments, community service organizations, and other similar entities but does not include the residences of these entities’ members or separate interests.

California Water Code Definitions (Section 10608.12)
Commercial Water User A water user that provides or distributes a product or service.

Industrial Water User A water user is primarily a manufacturer or processor of materials as defined by the North American Industry Classification System code sectors 31 to 33, inclusive, or an entity that is a water user primarily engaged in research and development.

Institutional Water User A water user dedicated to public service. This type of user includes, among other users, higher education institutions, schools, courts, churches, hospitals, government facilities, and nonprofit research institutions.
“Non-functional turf” means turf that is solely ornamental and not regularly used for human recreational purposes or for civic or community events. Non-functional turf does not include sports fields and turf that is regularly used for human recreational purposes or for civic or community events, such as parks and school fields.

This provision does not prohibit the use of water by commercial, industrial, and institutional sites to ensure the health of trees and other non-turf plantings or to the extent necessary to address an immediate health and safety need.

The City will continue to comply with this ban using one of or a combination of the following:
turning off irrigation to non-functional turf; replacing the non-functional turf with drought-tolerant landscaping, mulch or synthetic turf; or by converting non-functional turf to recycled water. The following is a list of the City’s non-functional turf that will be affected by this provision.

Non-functional Turf Locations at City Facilities Est. Sq. Ft.

City Hall (turf along Slater Ave., adjacent to employee parking lot) 3,800 City Hall (turf along west side of building) 3,060
Senior Center (narrow strip of turf north of fountain) 730 Senior Center (turf area between building and Bushard St.) 3,000 Fire Station No. 2 1,950
City Yard (area adjacent to Mt. Herrmann St.) 2,280
Well #8 (bordered by Edinger Ave., Richardson St. and W. Lilac Ave.) 18,180 Total 33,000

Level 0 – Normal Water Supply Conditions
May 2, 2023

The City itself will also continue to comply with all of the permanent water conservation regulations at all of the City’s properties, facilities, parks, right-of-ways, etc.

The end of the declared Level 2 Water Supply Shortage and the return to Level 0 Normal Water Supply Conditions shall be effective on May 3, 2023.

The mandatory provisions enacted by this resolution or contained in Municipal Code Chapter

14.18 do not apply to the use of recycled water. The Fountain Valley Sports Park, Mile Square Park, Baker Golf Course, Mile Square Golf Course, Green Valley Park and Hyundai Motor America utilize recycled water for landscape irrigation and are not subject to these restrictions.

Any City customer violating the mandatory provisions enacted by this resolution or contained in Municipal Code Chapter 14.18 shall be subject to the procedures and/or penalties of Municipal Code Chapter 14.18, which is available for public review at City Hall and on the City website, www.fountainvalley.org.

This declared Level 0 Normal Water Supply Conditions will remain in effect until the City of Fountain Valley City Council so determines, based on the City Council’s evaluation of water supply conditions.

Public Notification
The City will issue a press release announcing the return to Level 0 Normal Water Supply Conditions and outlining the public’s need to comply with permanent water conservation practices and the State’s ban on using potable water to irrigate non-functional turf at commercial, industrial, and institutional sites. In addition, the City’s website will be updated to reflect the current water supply level and regulations. Water customers can continue to use the City’s website to report water waste, track their own water usage, and find rebate opportunities for water-efficient devices/fixtures.

City staff will work with commercial, industrial, and institutional water customers, including HOAs, to make sure they are aware of the new regulations and turf removal rebates. Staff will also reach out to restaurants and hotels to remind them of the permanent water restrictions related to their businesses.

In addition, City staff will host booths at local events, such as Concerts in the Park, to promote water conservation and provide information on how residents can make conservation a way of life and apply for rebates.

Enforcement
The City will notify customers (through letters, door hangers, etc.) to make them aware of the violation that occurred and the possible consequences of failing to correct the violation. This will be a step-up process that focuses on education and assistance to help the customer remedy the issue. If notification and education are not successful, the City may issue an administrative citation in the amount of $100 for a first violation, $200 for a second violation and $500 for each additional violation occurring within the same calendar year. Continuing violations may be prosecuted as a misdemeanor punishable by imprisonment in the county jail for not more than 30 days and/or a fine in the amount of $1,000. Each day that a violation

Level 0 – Normal Water Supply Conditions
May 2, 2023

occurs is a separate offense. Additionally, the City may install a flow-restricting device on the water meter. Payment of the City’s charges for installing and/or removing any flow restricting device and for disconnecting and/or reconnecting service per the City’s schedule of charges is also the responsibility of the customer.

FISCAL REVIEW:

It is anticipated and desirable that customers will continue with their water conservation efforts.

If that is the case, the overall fund balance in the Water Enterprise Fund will be comparable to FY 22-23. However, if weather conditions and relaxed water restrictions lead to increased water consumption, it can be expected that revenues, as well as costs for water production, will increase.

ENVIRONMENTAL IMPACT REVIEW:

Not applicable.

ATTORNEY REVIEW:

The Attorney for the City has reviewed and approved the proposed resolution.

ALTERNATIVES:

Alternative No. 1: Adopt a resolution of the City Council of the City of Fountain Valley ending the declared Level 2 Water Supply Shortage and returning to Level 0 Normal Water Supply Conditions requiring public compliance with permanent water conservation practices and the State’s ban on using potable water to irrigate non-functional turf at commercial, industrial and institutional sites. This is the recommended action.

Alternative No. 2: Adopt a resolution of the City Council of the City of Fountain Valley ending the declared Level 2 Water Supply Shortage and returning to Level 0 Normal Water Supply Conditions requiring public compliance with permanent water conservation practices, without requiring public compliance with the State’s ban on using potable water to irrigate non-functional turf at commercial, industrial and institutional sites. This is not recommended, as Executive Order N5-23 did not end the State’s ban on the use of potable water for the irrigation of non-functional turf at commercial, industrial and institutional sites.

Alternative No. 3: Do not adopt a resolution to end the declared Level 2 Water Supply Shortage and continue enforcing the Level 2 water restrictions and provision to prohibit the use of potable water for irrigation of nonfunctional turf at commercial, industrial and institutional sites adopted on June 21, 2022. This is not recommended, as the State’s water supply conditions have improved, and the Level 2 restrictions are no longer necessary.

Level 0 – Normal Water Supply Conditions
May 2, 2023

RECOMMENDATION:

Staff recommends that the City Council approve Alternative No. 1, which is to adopt a resolution of the City Council of the City of Fountain Valley ending the declared Level 2 Water Supply Shortage and returning to Level 0 Normal Water Supply Conditions requiring public compliance with permanent water conservation practices and the State’s ban on using potable water to irrigate non-functional turf at commercial, industrial and institutional sites.

Prepared by: Christine Smith, Senior Management Analyst Reviewed by: Mark Sprague, Field Services Manager
Approved by: Hye Jin Lee, Director of Public Works
Fiscal review by: Ryan Smith, Finance Director
Approved by: Maggie Le, City Manager
Attachments:

1. Resolution

2. Executive Order N-5-23

3. SWRCB Resolution No. 2022-0018

RESOLUTION NO. __________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FOUNTAIN VALLEY ENDING THE DECLARED LEVEL 2 WATER SUPPLY
SHORTAGE AND RETURNING TO LEVEL 0 NORMAL WATER SUPPLY
CONDITIONS PER SECTION 14.18.050 OF THE CITY OF FOUNTAIN

VALLEY MUNICIPAL CODE REQUIRING PUBLIC COMPLIANCE WITH

PERMANENT WATER CONSERVATION PRACTICES AND THE
STATE’S BAN ON USING POTABLE WATER TO IRRIGATE NONFUNCTIONAL TURF AT COMMERCIAL, INDUSTRIAL AND

INSTITUTIONAL SITES
WHEREAS, the City of Fountain Valley provides a reliable water supply for the beneficial use, health, safety, and welfare of its customers; and WHEREAS, statewide drought conditions over the past years have significantly impacted the State of California's water supply situation; and WHEREAS, on April 21, 2021, California Governor Gavin Newsom issued a Proclamation declaring a State of Emergency to exist in Mendocino and Sonoma counties due to drought conditions in the Russian River Watershed; and WHEREAS, on May 10, 2021, California Governor Gavin Newsom issued a Proclamation declaring a State of Emergency to exist in the Klamath River, SacramentoSan Joaquin Delta, and Tulare Lake Watershed Counties due to drought; and WHEREAS, on June 1, 2021, the City Council of the City of Fountain Valley adopted Ordinance 1572, which updated Fountain Valley Municipal Code Chapter 14.18 pertaining to Water Conservation to be consistent with the requirements of California Water Code Section 10632 and the City’s 2020 Urban Water Management Plan and 2020 Water Shortage Contingency Plan, including redefining the City’s water supply shortage levels to comply with the six standard levels defined by the State; and WHEREAS, on July 8, 2021, California Governor Gavin Newsom issued a Proclamation declaring a State of Emergency to exist due to drought in the additional nine counties of Inyo, Marin, Mono, Monterey, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, and Santa Cruz, such that a drought state of emergency was in effect in 50 counties; and
WHEREAS, on July 8, 2021, California Governor Gavin Newsom issued Executive Order N-10-21 calling on all Californians to voluntarily reduce their water use by 15 percent from their 2020 levels; and
WHEREAS, on October 19, 2021, California Governor Gavin Newsom issued a Proclamation declaring a State of Emergency to exist in the State due to drought in the remaining counties of Imperial, Los Angeles, Orange, Riverside, San Bernardino, San

Diego, San Francisco, and Ventura, such that the drought state of emergency was in effect statewide; and
WHEREAS, on January 4, 2022, the State Water Resources Control Board (State Water Board) adopted an emergency regulation to supplement voluntary water conservation by prohibiting wasteful water uses (Resolution No. 2022-0002); and WHEREAS, on March 28, 2022, California Governor Gavin Newsom issued Executive Order N-7-22 calling on all Californians to limit summertime water use and use water more efficiently indoors and out. He also directed the State Water Board to consider adopting additional emergency regulations by May 25, 2022, to increase water conservation; and
WHEREAS, on May 24, 2022, the State Water Board adopted an emergency regulation to reduce water demand and improve water conservation (Resolution No. 2022-0018); and
WHEREAS, the State Water Board’s adopted emergency regulation requires that each urban water supplier that has submitted a Water Shortage Contingency Plan (WSCP) to the Department of Water Resources shall implement by June 10, 2022, at a minimum, all demand reduction actions identified in the supplier’s WSCP for a shortage level of 10-20% (Level 2); and
WHEREAS, the State Water Board’s adopted emergency regulation prohibits the use of potable water for the irrigation of non-functional turf at commercial, industrial, and institutional sites; and
WHEREAS, on June 21, 2022, City Council adopted Resolution Number 9835 declaring a Level 2 Water Supply Shortage with a provision to prohibit the use of potable water for irrigation of non-functional turf at commercial, industrial, and institutional sites in order to comply with the State Water Board’s Emergency Regulation; and WHEREAS, in response to improving water supply conditions resulting from above- average rain and snowfall, the Governor has revised or terminated certain water conservation measures that were implemented during the drought emergency; and WHEREAS, on February 13, 2023, California Governor Gavin Newsom issued Executive Order N-3-23 that expedited permitting of recharge projects to maximize the use of winter precipitation to recharge underground aquifers; and WHEREAS, on March 10, 2023, California Governor Gavin Newsom issued Executive Order N-4-23 to accelerate groundwater recharge and reduce the risk of flooding by temporarily lifting regulations and restrictions on permitting and use to enable water agencies and water users to divert flood stage water for the purpose of groundwater storage recharge between March 10, 2023, and June 1, 2023; and

WHEREAS, on March 24, 2023, California Gavin Newsom issued Executive Order N-5-23 to end the voluntary 15% water conservation target and the requirement that local water agencies implement Level 2 of their drought contingency plans, while maintaining the ban on the use of potable water for the irrigation of non-functional turf at commercial, industrial, and institutional sites.

NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Fountain Valley, pursuant to City of Fountain Valley Municipal Code Section 14.18.050, hereby ends the declared Level 2 Water Supply Shortage and returns to Level 0 Normal Water Supply Conditions requiring public compliance with permanent water conservation practices and the State’s ban on using potable water to irrigate non-functional turf at commercial, industrial and institutional sites.

The Permanent Water Conservation Requirements – Prohibition Against Waste identified in Section 14.18.040 of the Fountain Valley Municipal Code include but are not limited to the following permanent conservation measures:
 Limits on watering hours – prohibited between 9:00 a.m. and 6:00 p.m.  Limits on watering duration – limited to no more than 15 minutes per station per day
 Watering during and after rainfall – prohibited during and within 48 hours after measurable rainfall
 Watering ornamental turf on public street medians is prohibited  Watering in a manner that causes or allows more than incidental water runoff is prohibited
 No washing down hard or paved surfaces
 Any new planting should be drought tolerant plants
 Obligation to fix leaks, breaks or malfunctions within 72 hours of notice  Limits on washing of vehicles – prohibited except with the use of a bucket or a hose with an automatic shutoff nozzle, or at a commercial car wash that recycles water
 Swimming pools – no person shall empty and refill a swimming pool except to prevent or repair structural damage or to comply with public health regulations  Water fountains or decorative water features are prohibited unless they recirculate water
 Hotels/Motels must provide option to not have towels and linens laundered daily  Food Service Facilities are required to use water conserving pre-rinse spray valves, serve drinking water only upon request and other miscellaneous requirements
 Miscellaneous construction requirements
Additionally, in order for the City to comply with water use restrictions imposed by federal, state, or regional water agencies, and to respond to local or regional water shortage conditions and emergencies, the following provision remains in effect:

1. Non-functional Turf at Commercial, Industrial, and Institutional Sites. Using potable water to irrigate non-functional turf at commercial, industrial, and institutional sites is prohibited.

2. The use of water to ensure the health of trees and other perennial non-turf plantings or to the extent necessary to address an immediate health and safety need is not prohibited.
a. “Commercial, industrial and institutional” refers to commercial water users, industrial water users, and institutional water users as respectively defined in Water Code, section 10608.12, subdivisions (e), (i), and (j), and includes homeowners’ associations, common interest developments, community service organizations, and other similar entities but does not include the residences of these entities’ members or separate interests.
b. “Non-functional turf” means turf that is solely ornamental and not regularly used for human recreational purposes or for civic or community events. Non-functional turf does not include sports fields and turf that is regularly used for human recreational purposes or for civic or community events, such as parks and school fields.

City Council Resolution Number 9835 and any other Resolution or provision thereof in conflict herewith is hereby repealed.

The return to Level 0 – Normal Water Supply Conditions shall be effective on May 3, 2023.

The mandatory provisions enacted by this resolution or contained in Municipal Code Chapter 14.18 do not apply to the use of recycled water.

Any person violating the mandatory provisions enacted by this resolution or contained in Municipal Code Chapter 14.18 shall be subject to the procedures and/or penalties of Municipal Code Chapter 14.18, which is available for public review at City Hall and on the City website, www.fountainvalley.org.

Although drought conditions have improved this year, the Governor enacted SB 606 and AB 1668 in 2018 in Making Water Conservation a California Way of Life. Water conservation is strongly encouraged in anticipation of the next drought. #
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PASSED, APPROVED, AND ADOPTED this 2
nd day of May 2023, at a regular meeting
of the City Council of the City of Fountain Valley.

ATTEST:
________________________ ________________________
Rick Miller, City Clerk Kim Constantine, Mayor
APPROVED AS TO FORM: APPROVED AS TO CONTENT:

Harper & Burns LLP
________________________ ________________________
Attorneys for the City Hye Jin Lee, Director of Public Works

EXECUTIVE DEPARTMENT

STATE OF CALIFORNIA
EXECUTIVE ORDER N-5-23
WHEREAS on April 21, 2021, May 10, 2021, July 8, 2021, and October 19, 2021, I proclaimed States of Emergency to exist due to drought conditions; and WHEREAS the multi-year nature of the current drought, which began three years after the record-setting drought of 2012-2016, continues to have significant, immediate impacts on communities across California with vulnerable water supplies, farms that rely on irrigation to grow food and fiber, and fish and wildlife that rely on stream flows and cool water; and
WHEREAS the March 3, 2023, snow survey conducted by the Department of Water Resources and partner agencies found that most regions of the Sierra Nevada are above average for snow water content, and some regions are nearing record amounts of snow, and snow and rain has fallen across many regions of the state since then, with more precipitation forecasted; and WHEREAS improved conditions have helped rehabilitate surface water supplies, but have not abated the severe drought conditions that remain in some parts of the State, including the Klamath River basin and the Colorado River basin, and many groundwater basins throughout the State remain depleted from overreliance and successive multi-year droughts; and WHEREAS continued action by the State is needed to address ongoing consequences of the drought emergency, including groundwater supply shortages, domestic well failures, and drought-related harm to native fishes in the Klamath River and Clear Lake watersheds; and
WHEREAS the drought emergency has required a dynamic and flexible response from the State, and several provisions in my prior Proclamations and Orders have been terminated or superseded already, specifically Paragraphs 4 and 8 of my State of Emergency Proclamation dated April 21, 202 l, Paragraphs 2, 4, and 7 of my State of Emergency Proclamation dated May 10, 2021, Paragraphs 3, 4, 5, 6, and 10 of my State of Emergency Proclamation dated July 8, 2021, and Paragraph 9 of Executive Order N-7-22; and WHEREAS improved conditions warrant an even more targeted State response to the ongoing drought emergency and certain provisions in my State of Emergency Proclamations dated April 21, 202 l, May 10, 2021, July 8, 2021, and October 19, 2021, and in Executive Orders N-10-21, N-7-22, and N-3-23 provide authority that is no longer needed to mitigate the effects of the drought conditions or direct actions by state agencies, departments, and boards that have already been completed; and
WHEREAS notwithstanding the rescission of certain emergency authorities for emergency drinking water action, state agencies have existing legal authority and funding to continue expedited work to advance the human right to water, and state agencies will continue all ongoing drought resilience planning work, including through coordination with local agencies and tribes; and

WHEREAS next winter's hydrology is uncertain and the most efficient way to preserve the State's improved surface water supplies is for Californians to continue their ongoing efforts to make conservation a way of life; and WHEREAS to protect public health and safety, it is critical the State take certain immediate actions without undue delay to prepare for and mitigate the effects of the drought conditions, and under Government Code section 8571, I find that strict compliance with various statutes and regulations specified in this Order would prevent, hinder, or delay the mitigation of the effects of the drought conditions.

NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the State Constitution and statutes, including the California Emergency Services Act, and in particular, Government Code sections 8567, 8571, and 8627, do hereby issue the following Order to become effective immediately:

IT IS HEREBY ORDERED THAT:
l . The orders and provisions contained in my State of Emergency Proclamations dated April 21, 2021, May 10, 2021, July 8, 2021, and October 19, 2021, and Executive Orders N-7-22 (March 28, 2022), N-3- 23 (February 13, 2023), and N-4-23 (March l 0, 2023), remain in full force and effect, except as modified by those Proclamations and Orders and herein. State agencies shall continue to implement all directions from those Proclamations and Orders and accelerate implementation where feasible.

2. The following provisions of my State of Emergency Proclamation dated April 21, 2021, are terminated:
a. Paragraph 2;
b. Paragraphs 5-7; and
c. Paragraphs 9-14.

3. The following provisions of my State of Emergency Proclamation dated May l 0, 2021, are terminated:
a. Paragraph 1;
b. Paragraph 3;
c. Paragraph 5; and
d. Paragraphs 9-10.

4. The following provisions of my State of Emergency Proclamation dated July 8, 2021, are terminated:
a. Paragraph 2;
b. Paragraphs 7-8, except those portions of paragraph 7 withdrawing provisions of prior orders;
c. Paragraphs 11-12.

5. The following provisions of my State of Emergency Proclamation dated October 19, 2021, are terminated:
a. Paragraph 2;
b. Paragraphs 4-5;
c. Paragraph 8; and
d. Paragraph 10.

6. The following provisions of Executive Order N-10-21 are terminated:
a. Paragraph 1; and
b. Paragraph 3

7. The following provisions of Executive Order N-7-22 are terminated:
a. Paragraphs 1-3;
b. Paragraph 6; and
c. Paragraphs 14-15.

8. The following provisions of Executive Order N-3-23 are terminated:
a. Paragraph 1; and
b. Paragraph 3, except those portions of the paragraph
withdrawing provisions of prior orders.

9. Paragraph 6 of my State of Emergency Proclamation dated May 10, 2021, and Paragraph 9 of my State of Emergency Proclamation dated July 8, 2021, are withdrawn and replaced with the following text:

To ensure critical instream flows for species protection in the Klamath River and Clear Lake watersheds, the State Water Resources Control Board (Water Board) and Department of Fish and Wildlife shall evaluate the minimum instream flows and other actions needed to protect salmon, steelhead, the Clear Lake Hitch, and other native fishes in critical streams systems in these watersheds and work with water users, tribes, and other parties on voluntary measures to implement those actions. To the extent voluntary actions are not sufficient, the Water Board, in coordination with the Department of Fish and Wildlife, shall consider emergency regulations to establish minimum instream flows to mitigate the effects of the drought conditions. For purposes of state agencies carrying out or approving any actions contemplated by this paragraph, Public Resources Code, Division 13 (commencing with Section 21000) and regulations adopted pursuant to that Division are suspended. Nothing in this Paragraph affects or limits the validity of actions already taken in the Klamath and Clear Lake watersheds or ongoing under Paragraph 6 of my State of Emergency Proclamation dated May 10, 2021, or Paragraph 9 of my State of Emergency Proclamation dated July 8, 2021 .

IT IS FURTHER ORDERED that as soon as hereafter possible, this Order be filed in the Office of the Secretary of State and that widespread publicity and notice be given of this Order.

This Order is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers, employees, or any other person.

IN WITNESS WHEREOF I have hereunto set
my hand and caused the Great Seal of the
State of California to be affixed this 24th
day of March 2023.
overnor of California
ATTEST:

SHIRLEY N. WEBER, PH.D.

Secretary of State

STATE WATER RESOURCES CONTROL BOARD
RESOLUTION NO. 2022-0018

TO ADOPT AN EMERGENCY REGULATION

TO REDUCE WATER DEMAND AND IMPROVE WATER CONSERVATION
WHEREAS:

1. On April 21, May 10, July 8, and October 19, 2021, Governor Newsom issued proclamations that a state of emergency exists statewide due to severe drought conditions and directed state agencies to take immediate action to preserve critical water supplies and mitigate the effects of drought and ensure the protection of health, safety, and the environment.

2. These proclamations urge Californians to reduce their water use.

3. On March 28, 2022, Governor Newsom signed an Executive Order directing the State Water Resources Control Board (State Water Board or Board) to consider adopting emergency regulations to increase water conservation. The Executive Order includes a request that the Board require urban water suppliers to implement Level 2 of their water shortage contingency plans, establish water shortage response actions for urban water suppliers that have not submitted water shortage contingency plans, taking into consideration model actions that the Department of Water Resources, and establish a ban on the irrigation of nonfunctional turf by entities in the commercial, industrial, and institutional sectors.

4. Many Californians and urban water suppliers have taken bold steps over the years to reduce water use; nevertheless, the severity of the current drought requires additional conservation actions from urban water suppliers, residents, and the commercial, industrial, and institutional sectors.

5. Water conservation is the easiest, most efficient, and most cost-effective way to quickly reduce water demand and extend limited water supplies through this summer and into the next year, providing flexibility for all California communities.

Water saved is water available next year, giving water suppliers added flexibility to manage their systems effectively over time. The more water that is conserved now, the less likely it is that a community will experience dire shortages that may require water rationing or other emergency actions.

6. Most Californians use more water outdoors than indoors. In many areas, 50 percent or more of daily water use is for irrigation of lawns and outdoor landscaping irrigation. Outdoor water use is generally discretionary, and many irrigated landscapes would not suffer greatly from receiving a decreased amount of water.

2 7. The use of potable water to irrigate turf on commercial, industrial, or institutional properties that is not regularly used for human recreational purposes or for civic or community events can be reduced in commercial, industrial, and institutional areas to protect local water resources and enhance water resiliency.

8. Public information and awareness are critical to achieving conservation goals, and the Save Our Water campaign (SaveOurWater.com), run jointly by the Department of Water Resources (DWR) and the Association of California Water Agencies, is an excellent resource for conservation information and messaging that is integral to effective drought response.

9. SaveWater.CA.Gov is an online tool designed to help save water in communities.

This website lets anyone easily report water waste from their phone, tablet, or computer by simply selecting the type of water waste they see, typing in the address where the waste is occurring, and clicking send. These reports are filed directly with the State Water Board and relevant local water supplier.

10.Enforcement against water waste is a key tool in conservation programs. When conservation becomes a social norm in a community, the need for enforcement is reduced or eliminated.

11.On March 28, 2022, the Governor suspended the environmental review required by the California Environmental Quality Act to allow State Water Board-adopted drought conservation emergency regulations and other actions to take place quickly to respond to emergency conditions.

12.Water Code section 1058.5 grants the State Water Board the authority to adopt emergency regulations in certain drought years in order to: “prevent the waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion, of water, to promote water recycling or water conservation, to require curtailment of diversions when water is not available under the diverter’s priority of right, or in furtherance of any of the foregoing, to require reporting of diversion or use or the preparation of monitoring reports.”

13.On May 13, 2022, the State Water Board issued public notice that it will consider the adoption of the regulation at the Board’s regularly scheduled May 24, 2022 public meeting, in accordance with applicable State laws and regulations. The State Water Board also distributed for public review and comment a Finding of Emergency that complies with State laws and regulations.

14.The emergency regulation exempts suppliers from enforcing connection moratoria, if their Level 2 demand management actions call for them, because new residential connections are critical to addressing the state’s housing supply shortage. However, the Board recognizes connections for other projects may not be appropriate given the shortage conditions and urges water suppliers to carefully evaluate new development projects for their water use impacts.

3 15.Disadvantaged communities may require assistance responding to Level 2 conservation requirements, including irrigation restrictions, temporary changes to rate structures, and prohibited water uses. State shortage contingency plans aimed at increasing water conservation, and state and local agencies should look for opportunities to provide assistance in promoting water conservation. This assistance should include but not be limited to translation of regulation text and dissemination of water conservation announcements into languages spoken by at least 10 percent of the people who reside in a water supplier’s service area, such as in newspaper advertisements, bill inserts, website homepage, social media, and notices in public libraries.

16.The Board directs staff to consider the following in pursuing any enforcement of section 996, subdivision (e): before imposing monetary penalties, staff shall provide one or more warnings; monetary penalties must be based on an ability to pay determination, consider allowing a payment plan of at least 12 months, and shall not result in a tax lien; and Board enforcement shall not result in shutoff.

17.The Board encourages entities other than Board staff that consider any enforcement of this regulation to apply these same factors identified in resolved paragraph 16. Nothing in the regulation or in the enforcement provisions of the regulation precludes a local agency from exercising its authority to adopt more stringent conservation measures. Moreover, the Water Code does not impose a mandatory penalty for violations of the regulation adopted by this resolution, and local agencies retain their enforcement discretion in enforcing the regulation, to the extent authorized, and may develop their own progressive enforcement practices to encourage conservation.

THEREFORE BE IT RESOLVED THAT:

1. The State Water Board adopts California Code of Regulations, title 23, section 996, as appended to this resolution as an emergency regulation that applies to urban water suppliers, as defined by Water Code section 10617.

2. State Water Board staff shall submit the regulation to the Office of Administrative Law (OAL) for final approval.

3. If, during the approval process, State Water Board staff, the State Water Board, or OAL determines that minor corrections to the language of the regulation or supporting documentation are needed for clarity or consistency, the State Water Board Executive Director or designee may make such changes.

4 4. This regulation shall remain in effect for one year after filing with the Secretary of State unless the State Water Board determines that it is no longer necessary due to changed conditions or unless the State Water Board renews the regulation due to continued drought conditions, as described in Water Code section 1058.5.

5. The State Water Board directs State Water Board staff to work with the Department of Water Resources and the Save Our Water campaign to disseminate information regarding the emergency regulation.

6. The State Water Board directs staff to, by January 1, 2023, survey urban water suppliers on their experience protecting trees and tree cover during drought, with attention to disadvantaged communities. The survey shall inquire about challenges encountered, strategies used, costs, and successes in protecting trees.

7. Nothing in the regulation or in the enforcement provisions of the regulation precludes a local agency from exercising its authority to adopt more stringent conservation measures. Local agencies are encouraged to develop their own progressive enforcement practices to promote conservation.

CERTIFICATION
The undersigned Clerk to the Board does hereby certify that the foregoing is a full, true, and correct copy of a resolution duly and regularly adopted at a meeting of the State Water Resources Control Board held on May 24, 2022.

AYE: Chair E. Joaquin Esquivel
Vice Chair Dorene D’Adamo
Board Member Sean Maguire
Board Member Laurel Firestone
NAY: None
ABSENT: Board Member Nichole Morgan
ABSTAIN: None
Jeanine Townsend
Clerk to the Board

5 ADOPTED EMERGENCY REGULATION TEXT
Version: May 24, 2022
Title 23. Waters
Division 3. State Water Resources Control Board and Regional Water Quality Control Boards
Chapter 3.5. Urban Water Use Efficiency and Conservation Article 2. Prevention of Drought Wasteful Water Uses
§ 996. Urban Drought Response Actions
(a) As used in this section:
(1) “Commercial, industrial and institutional” refers to commercial water users, industrial water users, and institutional water users as respectively defined in Water Code, section 10608.12, subdivisions (e), (i), and (j), and includes homeowners’ associations, common interest developments, community service organizations, and other similar entities but does not include the residences of these entities’ members or separate interests.
(2) “Common interest development” has the same meaning as in section 4100 of the Civil Code.
(3) “Community service organization or similar entity” has the same meaning as in section 4110 of the Civil Code.
(4) “Homeowners’ association” means an “association” as defined in section 4080 of the Civil Code.
(5) “Non-functional turf” means turf that is solely ornamental and not regularly used for human recreational purposes or for civic or community events. Nonfunctional turf does not include sports fields and turf that is regularly used for human recreational purposes or for civic or community events. (6) “Plant factor” has the same meaning as in section 491. (7) “Separate interest” has the same meaning as in section 4185 of the Civil Code.
(8) “Turf” has the same meaning as in section 491.
(9) “Urban water supplier” has the same meaning as Water Code section 10617. (10) “Water shortage contingency plan” means the plan required by Water Code section 10632.
(b) Each urban water supplier shall submit to the Department of Water Resources a preliminary annual water supply and demand assessment consistent with section

6 10632.1 of the Water Code no later than June 1, 2022, and submit a final annual water supply and demand assessment to the Department of Water Resources no later than the deadline set by section 10632.1 of the Water Code. (c) (1) Each urban water supplier that has submitted a water shortage contingency plan to the Department of Water Resources shall implement by June 10, 2022, at a minimum, all demand reduction actions identified in the supplier’s water shortage contingency plan adopted under Water Code 10632 for a shortage level of ten (10) to twenty (20) percent (Level 2).
(2) Notwithstanding subdivision (c)(1), urban water suppliers shall not be required to implement new residential connection moratoria pursuant to this section. (3) Notwithstanding subdivision (c)(1), an urban water supplier may implement the actions identified in subdivision (d) in lieu of implementing the demand reduction actions identified in the supplier’s water shortage contingency plan adopted under Water Code section 10632 for a shortage level of ten (10) to twenty (20) percent (Level 2), provided the supplier meets all of the following:
(i) The supplier’s annual water supply and demand assessment submitted to the Department of Water Resources demonstrates an ability to maintain reliable supply until September 30, 2023.
(ii) The supplier does not rely on, for any part of its supply, the Colorado River, State Water Project, or Central Valley Project, and no more than ten (10) percent of its supply comes from critically overdrafted groundwater basins as designated by the Department of Water Resources.
(iii) The supplier's average number of gallons of water used per person per day by residential customers for the year 2020 is below 55 gallons, as reported to the Board in the Electronic Annual Report.
(d) Each urban water supplier that has not submitted a water shortage contingency plan to the Department of Water Resources shall, by June 10, 2022, and continuing until the supplier has implemented all demand reduction actions identified in the supplier’s water shortage contingency plan adopted under Water Code 10632 for a shortage level of ten (10) to twenty (20) percent (Level 2), implement at a minimum the following actions:
(1) Initiate a public information and outreach campaign for water conservation and promptly and effectively reach the supplier’s customers, using efforts such as email, paper mail, bill inserts, customer app notifications, news articles, websites, community events, radio and television, billboards, and social media. (2) Implement and enforce a rule or ordinance limiting landscape irrigation with potable water to no more than two (2) days per week and prohibiting landscape irrigation with potable water between the hours of 10:00 a.m. and 6:00 p.m. (3) Implement and enforce a rule or ordinance banning, at a minimum, the water uses prohibited by section 995. Adoption of a rule or ordinance is not required if the supplier has authority to enforce, as infractions, the prohibitions in section 995 and takes enforcement against violations.

7 (e) (1) To prevent the unreasonable use of water and to promote water conservation, the use of potable water is prohibited for the irrigation of non-functional turf at commercial, industrial, and institutional sites.
(2) Notwithstanding subdivision (e)(1), the use of water is not prohibited by this section to the extent necessary to ensure the health of trees and other perennial non-turf plantings or to the extent necessary to address an immediate health and safety need.
(3) Notwithstanding subdivision (e)(1), an urban water supplier may approve a request for continued irrigation of non-functional turf where the user certifies that the turf is a low water use plant with a plant factor of 0.3 or less, and demonstrates the actual use is less than 40% of reference evapotranspiration. (f) The taking of any action prohibited in subdivision (e) is an infraction punishable by a fine of up to five hundred dollars ($500) for each day in which the violation occurs. The fine for the infraction is in addition to, and does not supersede or limit, any other remedies, civil or criminal.
(g) A decision or order issued under this section by the Board, or an officer or employee of the Board, is subject to reconsideration under article 2 (commencing with section 1122) of chapter 4 of part 1 of division 2 of the Water Code.

Authority: Section 1058.5, Water Code.

References: Article X, Section 2, California Constitution; Sections 4080, 4100, 4110, and 4185, Civil Code; Section 8627.7, Government Code; Sections 102, 104, 105, 275, 350, 377, 491, 1122, 10608.12, 10617, 10632, and 10632.1, Water Code; Light v. State Water Resources Control Board (2014) 226 Cal.App.4th 1463; Stanford Vina Ranch Irrigation Co. v. State of California (2020) 50 Cal.App.5th 976.