The WSCP calls for the City to monitor the water supply and/or demand conditions on a weekly basis and enact the various Drought Response Stages as appropriate. There are three evaluation criteria that can trigger the Drought Response Stages: well production capacity, average groundwater elevation, and drought conditions (as maintained by California Department of Water Resources).
There WSCP has six distinct stages, each of which includes escalations in monitoring, communications to residents, usage restrictions, and enforcement.
The penalties for violating the provisions enacted in accordance with the WSCP will be subject to the same enforcement proceedings as any other violation of the Municipal Code. Any individual variances to the WSCP require an application and approval by Council resolution.
PUBLIC NOTICE
In accordance with Gov. Code Section 36933(c)(1), a Pre-Adoption Summary of Ordinance 2023-02 was published in The Fresno Business Journal on July 7, 2023, which is at least five (5) days prior to the July 18th City Council meeting at which the Ordinance will be considered for adoption. If adopted, a post-adoption summary of Ordinance 2023-02 will be published within fifteen (15) days of adoption in accordance with Gov. Code Section 36933(c)(1).
ENVIRONMENTAL REVIEW
The Project is statutorily exempt from CEQA pursuant to California Water Code §10652 because CEQA does not apply to the preparation and adoption of a water shortage contingency plan or to the implementation of the actions taken pursuant to such plans. Because this Project comprises of City of Fowler’s water shortage contingency plan and involves its implementation, no CEQA review is required.
GENERAL PLAN CONSISTENCY
This action is consistent with:
Policy SAF-2
Continue to implement the Fresno County Multi-Hazard Mitigation Plan to address disasters such as earthquakes, drought, flooding, hazardous material spills, water contamination, epidemics, fires, extreme weather, major transportation accidents, and terrorism.
Action Item SAF-2a
Review and revise, as necessary, the Municipal Code to ensure effective organization, responsiveness, and continuity of government during declared emergencies.
Water Shortage Contingency Plan
July 18, 2023
FISCAL IMPACT
Staff does not anticipate any direct fiscal impact due to this ordinance. If the Water Shortage Contingency Plan drought stage tiers are enacted, additional staff hours may be spent in communicating the drought stage tier requirements and subsequent code enforcement tasks.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments
- Ordinance No. 2023-02
- Resolution No. 2660
- Water Shortage Contingency Plan
ORDINANCE NO. 2023-02
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FOWLER AMENDING SECTIONS 6-4.1107 AND 6-4.1112 OF ARTICLE 11, OF CHAPTER 4, OF TITLE 6 AND TO ADD ARTICLE 14 TO CHAPTER 4, OF TITLE 6 OF THE FOWLER MUNICIPAL
CODE, TO PROVIDE CLARIFYING LANGUAGE, AND TO PROVIDE
ENFORCEMENT OF WATER CONTINGENCY PLANS; AND TO FIND THAT THIS
ORDINANCE IS STATUTORILY EXEMPT FROM CEQA REVIEW PURSUANT TO WATER CODE SECTION 10652.
WHEREAS, the state legislature passed Senate Bill 552 in 2021 which amended the California Water Code to include provisions requiring that certain water suppliers develop and maintain a Water Shortage Contingency Plan; and
WHEREAS, the City of Fowler wishes to amend language within Section 6-4.1107 and Section 6-4.1112, as well as to add Article 14 to Chapter 4, of Title 6 of the Fowler Municipal Code, to provide enforcement of Water Contingency Plans within the City of Fowler and to bring the City’s water contingency plans into compliance with current state law requirements.
THE CITY COUNCIL OF THE CITY OF FOWLER DOES ORDAIN AS FOLLOWS:
SECTION 1. Section 6-4.1107, of Article 11, of Chapter 4, of Title 6 of the Fowler Municipal Code is hereby amended to read as follows::
6-4.1107 – Wasting water – Water schedule.
(a) Water Waste Prevention Standards. In the use of water supplied by the City, no customer shall do or permit any of the following:
(1) Water any lawn except by the use of a hose held in the persons hand or a sprinkling device.
(2) Keep, maintain, operate, or use any water connection, hose, sprinklers, faucet, hydrant, pipe, outlet, or plumbing fixture which is not tight and free from leakage. (3) Willfully or negligently waste water.
(4) Flood or sprinkle any part of the premises of another in a manner that causes property damage or deterioration.
(5) Flood any street, drain, gutter, or property.
(6) Flood or sprinkle the premises of another so as to prevent the normal use thereof or unreasonably wet objects thereon which should not be subjected to a spray of water except as naturally caused by the elements or by action of the owner of the object. (7) Sprinkle or irrigate any yard, ground, premise, or vegetation unless the watering device used is controlled by an automatic shut-off device, or a person is in immediate attendance, of the hose or watering device.
(8) Wash any privately owned motor vehicle, trailer, or boat except from a bucket or in a commercial car wash, provided a hose equipped with a shutoff nozzle may be used for a quick rinse.
(9) Wash or rinse with a hose or watering device any sidewalk, driveway, parking area, tennis court, patio, or any other exterior paved area, except in a manner which prevents the bulk of the runoff water from entering the street and instead diverts such water to the other productive purposes such as landscape irrigation. (b) Exception to Water Waste Standards. The prohibited uses of water provided for by this section are not applicable to the uses of water necessary for public health and safety or for essential government services such as police, fire, and other similar emergency services. (c) Lawn Sprinkler Systems. Lawn sprinkler systems shall be properly designed, installed, maintained, and operated to prevent wastage of water.
(d) Watering Schedule. In addition to the requirements of subsections (a), (b) and (c) of this section, the following watering restrictions shall apply:
(1) Summer Watering Schedule (3 days per week). Between June 1 and September 30, no watering shall occur on Mondays or between the hours of 9:00 a.m. and 6:00 p.m. on any day. The following watering schedule shall apply:
(i) Customers with odd-numbered street addresses, ending in 1, 3, 5, 7, or 9, are allowed to water on Tuesdays, Thursdays and Saturdays. (ii) Customers with even-numbered street addresses, ending in 0, 2, 4, 6, or 8, are allowed to water on Wednesdays, Fridays and Sundays. (2) Winter, Spring, Fall Watering Schedule (2 days per week). Between October 1 and May 31, no watering shall occur on Mondays, Thursdays, or Fridays, but watering is allowed anytime of the day. The following watering schedule shall apply:
(i) Customers with odd-numbered street addresses, ending in 1, 3, 5, 7, or 9, are allowed to water on Tuesdays and Saturdays.
(ii) Customers with even-numbered street addresses, ending in 0, 2, 4, 6, or 8, are allowed to water on Wednesdays and Sundays.
(3) Exceptions to Watering Schedule. Exemptions from the odd/even watering schedule requirements are available upon written request and approval by the Public Works Director, or his/her designee, and subject to such terms and conditions imposed by the Public Works Director, or his/her designee. Exemptions available from the odd/even watering schedule include but are not necessarily limited to any of the following:
(i) Any person owning or operating a commercial or business enterprise whose economic well-being is dependent upon irrigation of a lawn, grass or turf owned, leased or operated by it.
(ii) Employees and agents of the City, in such instances wherein lawn, grass or turf used for play fields or areas owned and operated by the City require more frequent irrigation to prevent unreasonable damage thereto. (iii) Owners and lessees (their employees and agents) of lands newly sodded or grass seeded which requires irrigation to prevent loss of new sod, seed or immature turf or grasses.
(iv) Owners and lessees (their employees and agents) of properties with multiple addresses or properties landscaped with areas of two (2) acres or larger. The owner(s) of such properties shall be required to submit a proposed watering schedule to the Water Department for approval, modification, or denial. (4) Definition. For purposes of this section, watering shall mean the watering of landscaping, the washing of sidewalks, driveways, and similar areas, the washing of privately owned motor vehicles, trailers, or boats, or any other watering for private purposes that are similar in nature and would ordinarily be expected to be restricted by this section.
(e) Conditions of Service—Remedy for Violations. The provisions of this section are conditions of service. Each use of water by a customer that is inconsistent with the provisions of this section is an incident of water wastage. Where water wastage seriously effects the general service, the City may discontinue the service if such conditions are not corrected. In addition to discontinuing water services: (a) a customer may be responsible for payment of a water wastage fine approved by a resolution of the City Council; and (b) the City shall have the option of installing a water flow restrictor device for sixth and subsequent incidences of water wastage. The City shall provide the customer with written notice of intent to install a flow restrictor a minimum of forty-eight (48) hours in advance of installation.
(f) The customer shall be responsible for payment of the City's charges for installing and removing any flow restrictor device and for disconnection and reconnecting service. The charge for installing or removing any flow restrictor device must be paid to the City before the device is removed.
(g) In accordance with the Water Shortage Contingency Plan the City Manager or his/her designee may enact the drought response stages. If enacted, the drought response stage requirements will supersede the requirements of subsection (d) of this section.
SECTION 2. Section 6-4.1112 of Article 11, of Chapter 4, of Title 6 of the Fowler Municipal Code is hereby amended to read as follows:
6-4.1112 – Drought and water shortage regulations.
Notwithstanding anything to the contrary in this article, and in addition to anything set forth in this article, during any declared State of Emergency by the State, or City or Federal government related to drought or potable water conditions that mandate water conservation in the City, State or Federal regulations that mandate water conservation in the City, or during local water shortages, the City Council may by resolution adopt additional water restrictions, including restrictions on the days and times of day for outdoor watering and mandatory water usage limits, and impose penalties on the customer for violations of those additional restrictions. The penalties shall be added to the customer's account. A violation of the additional restrictions shall also be deemed a violation of the Municipal Code.
SECTION 3. Article 14 is hereby added to Chapter 4, of Title 6 of the Fowler Municipal Code to read as follows:
Article 14. – Water Shortage Contingency Plan
6-4.1401 – Water Shortage Contingency Plan
The provisions of the most current Water Shortage Contingency Plan adopted by Resolution by the City Council, shall apply within the City of Fowler commencing on July 18, 2023. A copy of the most current version of the Water Shortage Contingency Plan shall be retained on file in the offices of the City Clerk and available on the City’s website at all times.
6-4.1402 - Enforcement.
A violation of the provisions of the Water Shortage Contingency Plan shall be deemed a violation of the Fowler Municipal Code subject to the same enforcement proceedings and penalties as any other violation of the Municipal Code.
SECTION 4. The City Council has determined that this ordinance is statutorily exempt from the California Environmental Quality Act (CEQA) pursuant to California Water Code section 10652, since this ordinance involves the preparation and adoption of water contingency plans.
SECTION 5. This Ordinance shall take effect thirty (30) days after its adoption.
SECTION 6. The City Clerk is further directed to cause this ordinance or a summary of this ordinance to be published once in a newspaper of general circulation published and circulated within the City of Fowler, within fifteen (15) days after its adoption. If a summary of the ordinance is published, then the City Clerk shall cause a certified copy of the full text of the proposed ordinance to be posted in the office of the City Clerk at least five (5) days prior to the City Council meeting at which the ordinance is adopted and again after the meeting at which the ordinance is adopted. The summary shall be approved by the City Attorney. * * * * * * * * * *
The foregoing ordinance was introduced at a regular meeting of the City Council held on June 20, 2023, and was adopted at a regular meeting of said Council held on July 18, 2023, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
APPROVED:
___________________________
Daniel Parra, Mayor
ATTEST:
____________________________
Angela Vasquez, City Clerk
RESOLUTION NO. 2660
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CITY OF FOWLER
ADOPTING A WATER SHORTAGE CONTINGENCY PLAN
WHEREAS, California State Senate Bill 552 (2021) requires small water suppliers serving 1,000 to 2,999 service connections to have a Water Shortage Contingency Plan; and WHEREAS, Ordinance 2023-02 requires the adoption of a Water Shortage Contingency Plan; and
WHEREAS, the City of Fowler does not currently have a Water Shortage Contingency Plan; and
WHEREAS, a Water Shortage Contingency Plan is included as Exhibit A.
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Fowler that the water Shortage Contingency Plan as shown in Exhibit A is hereby adopted and the City Manager is directed to implement said plan.
PASSED, APPROVED AND ADOPTED this 18th day of July 2023, at a regular meeting of the Fowler City Council by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
APPROVED:
___________________________
Daniel T. Parra, Mayor
ATTEST:
____________________________
Angela Vasquez, City Clerk
F:\Clerk Records\City Council\07.18.23 Packet\6-J Contingency Plan 20230713 Draft City of Fowler WSCP.docx City of Fowler
Water Shortage Contingency Plan
July 2023
DRAFT
F:\Clerk Records\City Council\07.18.23 Packet\6-J Contingency Plan 20230713 Draft City of Fowler WSCP.docx Report Prepared for:
City of Fowler
128 South 5th Street
Fowler, CA 93625
Public Water System No.: 1010006
Contact:
Public Works Director
(559) 834-3113
Plan Effective Date: XXX XX, 2023
Report Prepared by:
Provost & Pritchard Consulting Group
Heather Bashian, PE
Brittney Darnell
Contact:
Heather Bashian, PE
559-449-2700
COPYRIGHT 2023 by PROVOST & PRITCHARD CONSULTING GROUP
ALL RIGHTS RESERVED
Provost & Pritchard Consulting Group expressly reserves its common law copyright and other applicable property rights to this document. This document is not to be reproduced, changed, or copied in any form or manner whatsoever, nor are they to be assigned to a third party without first obtaining the written permission and consent of Provost & Pritchard Consulting Group In the event of unauthorized reuse of the information contained herein by a third party, the third party shall hold the firm of Provost & Pritchard Consulting Group harmless, and shall bear the cost of Provost & Pritchard Consulting Group's legal fees associated with defending and enforcing these rights.
Water Shortage Contingency Plan
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Table of Contents
1 Declaration of Policy, Purpose, and Intent...........................................................................................1
1.1 Water System Information .........................................................................................................1 2 Public Involvement...............................................................................................................................1 3 Public Education...................................................................................................................................1 4 Coordination with Water Planning Groups..........................................................................................1 5 Authorization........................................................................................................................................2 6 Application ...........................................................................................................................................2 7 Definitions............................................................................................................................................2 8 Summary of Drought Response Stages and Response Actions............................................................3 9 Drought Response Triggers..................................................................................................................4 10 Drought Response Stages.....................................................................................................................4
10.1 Notification .................................................................................................................................5
10.2 Public Safety Contacts.................................................................................................................5
10.3 Support Services Contacts ..........................................................................................................6
10.4 Response Actions by Water Shortage Level ...............................................................................6
10.4.1 Level 1: Up to 10% Reduction of Normal Water Supply (Watch) ..............................6
10.4.2 Level 2: Up to 20% Reduction of Normal Water Supply (Warning)...........................7
10.4.3 Level 3: Up to 30% Reduction of Normal Water Supply (Acute)................................7
10.4.4 Level 4: Up to 40% Reduction of Normal Water Supply (Critical)..............................8
10.4.5 Level 5: (Up to 50% Reduction of Normal Water Supply), Emergency ......................8
10.4.6 Level 6: Greater than 50% Reduction of Normal Water Supply (Catastrophic).........9
10.5 Catastrophic Water Allocation Plan............................................................................................9
10.6 Catastrophic Replacement Water Supply for Water Outages..................................................10
10.7 Catastrophic Notification of Emergency Service Providers......................................................11 11 Enforcement.......................................................................................................................................11
11.1 Penalties, Charges, Other Enforcement or Prohibitions...........................................................11 12 Variances............................................................................................................................................11 Water Shortage Contingency Plan
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List of Tables
Table 9-1. Stage Initiation and Termination Triggers ...................................................................................4 Table 10-1. Public Safety Contacts................................................................................................................5 Table 10-2. Support Services Contacts .........................................................................................................6 Table 10-3. Single Family Residential Water Allocation Plan........................................................................9 Water Shortage Contingency Plan
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Abbreviations
City ............................................................................................................................................City of Fowler DDW........................................................................................................SWRCB, Division of Drinking Water DWR ............................................................................................................Department of Water Resources FCOES ..................................................................................County of Fresno, Office of Emergency Services GSP..............................................................................................................Groundwater Sustainability Plan IRWM ............................................................................................ Integrated Regional Water Management KBWA .................................................................................................................Kings Basin Water Authority MWELO....................................................................................Model Water Efficient Landscape Ordinance PWS.................................................................................................................................public water system SKGSA................................................................................. South Kings Groundwater Sustainability Agency SWRCB.................................................................................................State Water Resources Control Board WSCP or Plan.............................................................................................Water Shortage Contingency Plan Water Shortage Contingency Plan
City of Fowler
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1 Declaration of Policy, Purpose, and Intent
Senate Bill 552 requires small water suppliers serving 1,000 to 2,999 service connections to have a Water Shortage Contingency Plan (WSCP or Plan). This plan establishes requirements at the local level to help the City of Fowler (City) reduce the risk of inadequate water supply amid a water shortage event.
In order to conserve the available water supply and protect the integrity of public water system (PWS) supply facilities, the City hereby adopts the following regulations and restrictions on the delivery and consumption of water through this plan. This Plan is prepared with particular regard for domestic water use, sanitation, and fire protection, to protect and preserve public health, welfare, and safety and minimize the adverse impacts of water supply shortage or other water supply emergency conditions Water uses regulated or prohibited under this WSCP are considered to be non-essential and continuation of such uses during times of water shortage or other emergency water supply condition are deemed to constitute a waste of water subjecting the offender(s) to penalties as defined in Section 11 of the WSCP.
1.1 Water System Information
The City provides water to a community of approximately 7,000 residents, through metered residential, commercial, institutional, and industrial water services. The City obtains its water from six groundwater wells.
In 2022, the water system utilized 503.3 million gallons. The maximum monthly usage typically occurs in July with a production of 61.9 million gallons. Total well capacity is estimated to be 5,935 gpm. 2 Public Involvement
The WSCP was presented and adopted by resolution at a regular City Council meeting on July 18, 2023. 3 Public Education
The City will regularly provide the public with information about the WSCP, including information about the conditions under which each stage of the WSCP is to be initiated or terminated and the drought response measures to be implemented in each stage. Detailed information on public education is provided in Section 11 of the WSCP.
4 Coordination with Water Planning Groups
The service area of the City is located within the Kings Subbasin and is a member of the South Kings Groundwater Sustainability Agency (SKGSA) and the Kings Basin Water Authority (KBWA) Integrated Regional Water Management (IRWM) Group. The SKGSA works cooperatively with other Groundwater Sustainability Agencies within Kings Subbasin for water planning purposes. The SKGSA’s Groundwater Sustainability Plan (GSP) and the Kings Basin IRWM Plan were considered in the development of the WSCP.
A copy of the final WSCP was adopted and posted on our website on https://fowlercity.org for public and local agency stakeholder review and use.
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5 Authorization
The City Manager, or designee, is hereby authorized and directed to implement the applicable provisions of the WSCP upon determination that such implementation is necessary to protect public health, safety, and welfare. The City Manager, or designee, shall have the authority to initiate or terminate drought or other water supply emergency response measures as described in this WSCP. 6 Application
The provisions of this WSCP shall apply to all persons, customers, and property utilizing water provided by the City. The terms “person” and “customer” as used in the WSCP may include individuals, corporations, partnerships, associations, and all other legal entities. 7 Definitions
For the purposes of this WSCP, the following definitions shall apply:
• Aesthetic water use: water use for ornamental or decorative purposes such as fountains, reflecting pools, and water gardens.
• Commercial and Institutional water use: water use which is integral to the operations of commercial and non-profit establishments and governmental entities such as schools, hospitals, clinics, retail establishments, hotels and motels, restaurants, and office buildings. • Conservation: those practices, techniques, and technologies that reduce the consumption of water, reduce the loss or waste of water, improve the efficiency in the use of water or increase the recycling and reuse of water so that a supply is conserved and made available for future or alternative uses.
• Customer: any person, company, or organization using water supplied by City. • Domestic water use: water use for personal needs or for household or sanitary purposes such as drinking, bathing, heating, cooking, sanitation, or for cleaning a residence, business, industry, or institution.
• Even number address: street addresses ending in 0, 2, 4, 6, or 8 and locations without addresses. • Industrial water use: the use of water in processes designed to convert materials of lower value into forms having greater usability and value.
• Landscape irrigation use: water used for the irrigation and maintenance of landscaped areas, whether publicly or privately owned, including residential and commercial lawns, gardens, golf courses, parks, rights-of-way, and medians.
• Non-essential water use: water uses that are not essential nor required for the protection of public, health, safety, and welfare, including:
o irrigation of landscape areas, including parks, athletic fields, and golf courses, except otherwise provided under this WSCP;
o personal use of water to wash any motor vehicle, motorbike, boat, trailer, airplane or other vehicle (not applicable to a commercial car wash); o use of water to wash down any sidewalks, walkways, driveways, parking lots, tennis courts, or other hard-surfaced areas;
o use of water to wash down buildings or structures for purposes other than immediate fire protection (not applicable to construction uses);
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o flushing gutters or permitting water to run or accumulate in any gutter or street, except to comply with storm water pollution or dust control requirements during construction activities;
o use of water in a fountain or pond for aesthetic or scenic purposes except where necessary to support aquatic life;
o failure to repair a controllable leak(s) within a reasonable period after having been given notice directing the repair of such leak(s); and
• Odd numbered address: street addresses ending in 1, 3, 5, 7, or 9. 8 Summary of Drought Response Stages and
Response Actions
The City Manager, or designee, shall monitor water supply and/or demand conditions on a weekly basis and shall determine when conditions warrant initiation or termination of each stage of the WSCP, that is, when the specified “triggers” are reached.
The triggering and termination criteria described in subsequent sections of this document are based on one or more of the following:
• Groundwater well production capacities relative to total well production capacity of the water system current at the time of triggering evaluation;
Groundwater level decline in greater amounts than anticipated in the SKGSA’s GSP; • Projected drought conditions on Department of Water Resources (DWR) California Water Watch Tool (https://cww.water.ca.gov);
• County, State or Federal Drought Emergency Orders; or • Emergencies such as fire, earthquake, etc. resulting in potential water outages.
The response actions described in subsequent sections of this document are based on the following general precepts:
• Conservation techniques employed include progressively implementing stricter water use policies, primarily focused on outdoor irrigation and increasingly restrictive water use in business functions.
In natural disaster type scenarios, water supplies are limited based on a per capita per day scenario.
• Public notification vehicles include notices via the City’s website, billing inserts, social media posts, and potentially house-to-house outreach depending on severity and immediacy of the water shortage occurrence.
• The City may coordinate with the County of Fresno, SKGSA, and the State Water Resource Control Board’s (SWRCB) Division of Drinking Water (DDW), when necessary. In the event of severe water shortages, the City may also coordinate with County of Fresno, Offices of Emergency Services (FCOES), community partners and critical users.
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9 Drought Response Triggers
The following table describes the requirements for initiating and terminating each Stage.
Table 9-1. Stage Initiation and Termination Triggers
Stage
Stage Initiation Requirements (Triggers) Stage Termination Well Production Requirements Capacity [1] Average Groundwater
Elevation
Drought
Conditions [2]
1: Watch Decrease by up to 10% Decline by up to 10% Moderate Each Stage may be terminated when all
initiation triggers
have ceased for 10
consecutive days.
Upon each Stage
being terminated,
the prior Stage is
automatically
initiated unless
otherwise specified.
2: Warning Decrease by up to 20% Decline by up to 20% Severe 3: Acute Decrease by up to 30% Decline by up to 30% Extreme 4: Critical Decrease by up to 40% Decline by up to 40%
State or Federal
Drought
Emergency
Declared
5: Emergency Decrease by up to 50% Decline by up to 50% 6: Catastrophic [3] Decrease by more than
50%
Decline by more than
50%
Notes:
[1] The baseline well production is the normal, average water supply available from the City’s wells. Causes of decrease include but are not limited to natural disasters, droughts, and contamination. [2] Drought conditions as shown on the DWR California Water Watch drought maps [3] Stage 6: Catastrophic triggers may also include earthquakes, fire emergencies, or other direct threat to water infrastructure resulting in a decrease of water supply by more than 50%. 10 Drought Response Stages
Demand reduction measures are strategies intended to decrease water demand to close the gap between supply and demand. The City will identify a variety of demand reductions actions to offset supply shortages. Demand reduction actions available to the City that may be considered during water shortage conditions are summarized in subsections below. Although it is difficult to estimate the volume of savings for each action, the City expects to meet required reductions through a combination of response actions in conjunction with outreach and communication efforts to the extent necessary to mitigate any impacts from a water shortage.
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10.1 Notification
The City Manager, or designee, shall notify the public by means of one or more of the following methods:
Method 1. Notification on the City website and social media Method 2. Public notice in the Fresno Bee
Method 3. Notice on local English and Spanish-speaking radio stations Method 4. Email to customer listing
Method 5. Direct mailing distributed in the next billing packet Method 6. Phone call to critical water users
Method 7. Door to door notification, if immediate action is required Method 8. County Emergency messaging text or bulletin alert, if necessary
10.2 Public Safety Contacts
The City Manager, or designee, shall notify directly the following individuals and entities of restrictions or water shortages, as defined in the subsections below, as appropriate for each response stage.
Table 10-1. Public Safety Contacts
Organization or
Department Name & Title Telephone Email
Fresno County Fire Dustin Hale, Fire Chief (559) 493-4300 City of Fowler Wilma Tucker, City
Manager (559) 834-3113 [email protected]
County Office of
Emergency Services
Emergency Response
Team
(559) 600-3271
(559) 600-3111 [email protected]
State Water
Resources Control
Board
Sudarshan Poudyal,
District Engineer (559) 447-3038 [email protected] Critical Water Users:
Fowler Unified
School District
District Staff (559) 834-6080 [email protected] Critical Water Users:
Dycora Transitional
Health
Facility Director (559) 834- 2542
Critical Water Users:
The Harvest at
Fowler
Facility Director (559) 834-5692
South Kings GSA Karnig Kazarian,
Chairman of the Board (559) 834-3113 [email protected] Water Shortage Contingency Plan
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10.3 Support Services Contacts
The following is a list of support services that may be appropriate for a water shortage emergency.
Table 10-2. Support Services Contacts
Organization or
Department Name & Position Telephone Email
Community Service
Partner: Self-Help
Enterprises, Inc.
Tami McVay,
Director Emergency
Services
(559) 802-1671 [email protected]
Well Pump Technician Gary Whisenhunt,
Lead Water Operator (559) 318-1598 [email protected] Well Drilling Company Bob Herman, Drilling
Manager (559) 381-6438 [email protected]
10.4 Response Actions by Water Shortage Level
The first step in a demand reduction program is to prohibit wasteful practices and provide enforcement methods. The following section describes prohibitions and the water shortage level in which they may be enacted. The City Manager, or their designee, can elect to choose all or a portion of each measure, as they deem appropriate.
10.4.1 Level 1: Up to 10% Reduction of Normal Water Supply (Watch) Stage 1 addresses water shortages of up to 10% reduction in water usage.
Best Management Practices for Supply Management:
• Community information and notification campaign begins utilizing billing inserts. • City staff will monitor groundwater well production capacity and notify City Manager of any decline.
• City staff will decrease flushing from regular flushing routine to and, only as-needed basis, for color or other water quality issues.
• Initiate a water loss audit, according to the process defined in the Water Code, to evaluate potential areas for limiting water loss.
Voluntary Water Use Restrictions for Reducing Demand:
• A public information campaign is enacted in which the water shortage situation is explained along with potential upcoming levels of the water shortage, and what may be expected in the future.
Information about methods to save water is sent to customers along with the notice for voluntary conservation of water.
Notification Methods and Frequency
• Methods 1, 4, and 5 to be utilized on a monthly basis Water Shortage Contingency Plan
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10.4.2 Level 2: Up to 20% Reduction of Normal Water Supply (Warning) Stage 2 addresses water shortages of 10-20% reduction and requires a mandatory demand reduction effort. All actions listed below are in addition to the previous stage unless a stricter restriction applies and is noted.
Best Management Practices for Supply Management:
• Community information and notification campaign continues, increasing to utilize social media posts.
• Increase groundwater level monitoring to weekly.
Mandatory Water Use Restrictions for Reducing Demand:
• Enforcement of water waste continues and includes water use restriction compliance. City may use the enforcement measures discussed in Section 11 of this WSCP.
Notification Methods and Frequency
• Methods 1, 4, and 5 to be utilized on a monthly basis • Develop online tool for water waste complaint filing and response program.
10.4.3 Level 3: Up to 30% Reduction of Normal Water Supply (Acute) Stage 3 addresses water shortage of 30% reduction and requires a mandatory demand reduction effort.
All actions listed below are in addition to the previous stage unless a stricter restriction applies and is noted.
Best Management Practices for Supply Management:
• Community information and notification campaign continues, increasing to utilize radio and newspaper announcements.
• Prepare analysis for mitigation of water supply loss if decline continues.
Mandatory Water Use Restrictions for Reducing Demand:
• Dwellings or establishments with even-numbered street addresses shall water only on Wednesday and Sunday between the hours of 6 p.m. and 9 a.m.
• Dwellings or establishments with odd-numbered street addresses shall water only on Tuesday and Saturday between the hours of 6 p.m. and 9 a.m.
• Monday, Thursday, and Friday are non-watering days, unless a variance is approved. • Water waste patrols will be expanded to ensure the above conservation measures are being enforced.
• Pool covers are encouraged.
• No new potable connections are allowed unless the developer can offset the new expected water use by a one-to-one water savings in existing development.
Notification Methods and Frequency
• Methods 1 through 6 to be utilized on a monthly basis Water Shortage Contingency Plan
City of Fowler
Provost & Pritchard Consulting Group • June 2023 8
10.4.4 Level 4: Up to 40% Reduction of Normal Water Supply (Critical) Stage 4 addresses water shortage of 40% reduction require a mandatory demand reduction effort. All actions listed below are in addition to the previous stage unless a stricter restriction applies and is noted.
Best Management Practices for Supply Management:
• Community information and notification campaign continues utilizing all forms of notification available, including door-to-door efforts.
• Increase frequency and quantity of meter testing and repairs. • Prepare engineering documents to construct improvements to mitigate water supply loss. Seek emergency funding to construct improvements.
Mandatory Water Use Restrictions for Reducing Demand:
• For Level 4 and above implementation, a resolution that provides the specifics for a rationing program and additional water penalties must be adopted. • A public information campaign will be implemented to communicate the significance of the measures to the public.
• Dwellings or establishments with even-numbered street addresses can water landscapes on Sunday only between the hours of 6 p.m. and 9 a.m.
• Dwellings or establishments with odd-numbered street addresses can water landscapes on Saturday only between the hours of 6 p.m. and 9 a.m.
• Monday, Tuesday, Wednesday, Thursday, and Friday are non-watering days, unless a variance is approved .
• No new water service connections are allowed except where required by State law or specifically authorized by City Council.
• No new building permits are issued for swimming pools.
Notification Methods and Frequency
• Methods 1 through 6 to be utilized on a monthly basis, as appropriate
10.4.5 Level 5: Up to 50% Reduction of Normal Water Supply (Emergency) Stage 5 addresses water shortage of 50% reduction and requires a mandatory demand reduction effort.
All actions listed below are in addition to the previous stage unless a stricter restriction applies and is noted.
Best Management Practices for Supply Management:
• Upon securing funding, execute construction processes to construct improvements to mitigate water supply loss.
Mandatory Water Use Restrictions for Reducing Demand:
• Dwellings or establishments with even-numbered addresses can use drip-irrigation systems or hand water edible crops, trees and large shrubs to minimally maintain their viability on Sunday only, between the hours of 6 p.m. and 9 a.m.
Water Shortage Contingency Plan
City of Fowler
Provost & Pritchard Consulting Group • June 2023 9
• Dwellings or establishments with odd-numbered addresses can use drip-irrigation systems or hand water edible crops, trees and large shrubs to minimally maintain their viability on Saturday only, between the hours of 6 p.m. and 9 a.m.
• All non-essential water use is prohibited.
Notification Methods and Frequency
• Methods 1 through 6 to be utilized on a monthly or weekly basis, as appropriate • Methods 7 and 8 to be utilized as appropriate
10.4.6 Level 6: Greater than 50% Reduction of Normal Water Supply (Catastrophic)
Stage 6 addresses water shortage of greater than 50% reduction and requires a mandatory system wide rationing. All actions listed below are in addition to the previous stage unless a stricter restriction applies and is noted.
Best Management Practices for Supply Management:
• Water used data is frequently reviewed and users found exceeding 50% of their normal water use may have their water service interrupted and be subject to fines.
Mandatory Water Use Restrictions for Reducing Demand:
• All outdoor applications of irrigation other than for trees and edible crops specifically for personal consumption shall be eliminated.
Notification Methods and Frequency
• Methods 1 through 6 to be utilized on a weekly basis, as appropriate • Methods 7 and 8 to be utilized as appropriate
10.5 Catastrophic Water Allocation Plan
In the event that water shortage conditions threaten public health, safety, and welfare, the City Manager, or designee, is hereby authorized to allocate water according to the following water allocation plan:
Single Family Residential Customers
The allocation to residential water customers residing in a single-family dwelling shall be as follows:
Table 10-3. Single Family Residential Water Allocation Plan Persons per Household Gallons per Month
1 or 2 1,410 – 2,820
3 or 4 4,230 – 5,640
5 or 6 7,050 – 8,460
7 or greater Requires written verification of any household usage greater than 9,000 gallons per month. Allowable usage
will be calculated using 47 gallons per person per day.
Water Shortage Contingency Plan
City of Fowler
Provost & Pritchard Consulting Group • June 2023 10
Master-Metered Multi-Family Residential Customers
The allocation to residential water customers billed from a master meter which jointly measures water to multiple permanent residential dwelling units (e.g., apartments, mobile homes, etc.) shall be allocated at the same proportion as single-family residential customers.
Commercial Customers
A monthly water allocation shall be established by the City Manager, or designee, for each non-residential, non-industrial commercial water customer who uses water for processing purposes. The allocation to nonresidential, non-industrial commercial water customers shall be as follows: 40% of monthly water usage and no irrigation. All restaurants shall only provide water upon request, hotels must only wash linens upon exit of customers, and all commercial customers must post drought conservation messaging.
Industrial Customers
A monthly water allocation shall be established by the City Manager, or designee, for each industrial water customer who uses water for processing purposes.
10.6 Catastrophic Replacement Water Supply for
Water Outages
In the event that water outages occur, the following is the plan to provide alternative water for customers to meet public health need.
Source of Alternative Water Supply: Bottled Water or Tanks/Hauled Water via Self-Help Enterprises and SWRCB Funded programs
Distribution of Alternative Water Supply: Tanks or bottled water pickup locations will be established at locations in the City.
Special Considerations for residents that
are elderly, disabled, or lack
transportation:
Residents that meet these definitions may contact
the City for delivery of bottled water to their home.
Special Considerations for sanitation: Portable toilets and showers will be set up at the tank/bottled water locations. Toilets will be available all hours; showers will be available 6 a.m. to 8 p.m.,
daily.
Public Notification Regarding Access to
Alternative Water Supplies (multiple
communication methods
recommended):
Public Notifications will occur via social media posts
and radio announcements, in both English and
Spanish, on multiple sites, including the City’s
website.
Water Shortage Contingency Plan
City of Fowler
Provost & Pritchard Consulting Group • June 2023 11
10.7 Catastrophic Notification of Emergency Service
Providers
If adequate water supply will potentially become unavailable for fire response, medical services, public services, etc. then emergency providers will be notified as soon as possible to ensure that adequate planning, response and assistance may be provided. Please see Table 10-1 for emergency providers. 11 Enforcement
The City Manager, or designee, will be responsible for evaluating available data on a consistent basis and adequately determining the proper water shortage level, progress made on conservation efforts, and if the appropriate level of water consumption reduction is being met.
Section 10 above outlines the various water conservation measures during each water shortage level, as well as the various enforcements. The penalties for each level are also outlined in this section and can vary depending on the activated Water Shortage Level. Enforcement of various water conservation strategies is carried out by staff members of the water utility including water wastage patrols.
11.1 Penalties, Charges, Other Enforcement or
Prohibitions
No person shall knowingly or intentionally allow the use of water from this water system for residential, commercial, industrial, agricultural, governmental, or any other purpose in a manner contrary to any provision of this WSCP, or in an amount in excess of that permitted by the drought response stage in effect at the time pursuant to action taken by the City Manager, or designee, in accordance with provisions of this Plan. Per Article 14 of Chapter 4 of the City’s Municipal Code, a violation of this WSCP is subject to the same enforcement proceedings and penalties as any other violation of the Municipal Code.
The City may, at its discretion, require the customer to repair any defects in their water system following second offense, and will perform a water loss audit on the customer’s water system to determine repairs needed. The City may, at its discretion, terminate water service, following third offense in accordance with Article 11 of Chapter 4 of the City’s Municipal Code. 12 Variances
Article 12 of Chapter 4 of the City’s Municipal Code outlines the procedures for gaining a variance from this WSCP. This Article states that when any person, by reason of special circumstances, is of the opinion that any of the provisions of this WSCP is unjust or inequitable as applied to their premises, they may make a written application to the Council stating the special circumstances, citing the provision complained of, and requesting the suspension or modification of that provision as applied to their premises.
If such application is approved, the City Council, by resolution, may suspend or modify the provision complained of, as applied to such premises, to be effective as of the date of the application and continuing during the period of the special circumstances.
Water Shortage Contingency Plan
City of Fowler
Provost & Pritchard Consulting Group • June 2023 12
Additionally, the Council may initiate, on its own motion, a variance when it finds that by reason of special circumstances any provision of the WSCP should be suspended or modified as applied to a particular premises and, by resolution, may order such suspension or modification for such premises during the period of such special circumstances, or any part thereof.
Maximum practical reduction: No relief shall be granted to any customer for any reason in the absence of a showing by the customer that the customer has achieved the maximum practical reduction in water consumption in the customer’s residential, commercial, industrial, institutional, agricultural, or governmental water consumption, as applicable.
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 6-K
REPORT TO THE CITY COUNCIL
July 18, 2023
FROM SOO HO PARK, City Engineer
SUBJECT
APPROVE an amendment in the amount of $8,140 to the City’s Agreement with DTA Finance for the Water Rate Study and Formation of Citywide Community Facilities District.
EXECUTIVE SUMMARY
This amendment provides for an additional water rate study iteration, beyond the scope of the initial contract, at the request of the City Staff.
BACKGROUND
On February 1, 2022, City Council awarded a contract in the amount of $68,500 to David Taussig Associates, Inc. dba DTA for a Water Rate Study and Formation of Citywide Community Facilities District. After considering a uniform water rate structure for both residential and industrial water users, the City Staff assessed the latest proposed rate structure would result in the industrial rate users assuming a larger than equitable share of the water rate increase.
Therefore, to develop a more equitable rate structure, this amendment will add an additional water rate study iteration to recommend a unique water rate structure for industrial rate users.
PUBLIC NOTICE
This item does not require a public hearing and was noticed as a part of the City Council Agenda.
Amendment to DTA Water Rate Study
July 18, 2023
ENVIRONMENTAL REVIEW
This action does not constitute a “project” pursuant to the California Environmental Quality Act.
GENERAL PLAN CONSISTENCY
This action is consistent with:
General Plan Goal PF-1
Fowler provides reliable public facilities, utilities, and community services that meet the needs of the existing community and planned growth.
General Plan Goal ED-3
Fowler invests in necessary infrastructure, resources, and beautification to ensure the success of economic development strategies.
General Plan Policy PF-17
Continue to establish development fees and user rates that are sufficient to operate, maintain, and upgrade (for current and future regulatory requirements) the City’s water, wastewater, and stormwater infrastructure.
FISCAL IMPACT
The Amendment would result in an additional $8,140 for the added item to the project scope.
The project is funded through the Water Department.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments
- First Amendment to the Agreement
- Professional Services Agreement (February 1, 2022)
CITY OF FOWLER
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") is entered into between the City of Fowler, a California general law city ("City") and David Taussig and Associates, Inc. dba DTA ("Consultant") with respect to the following recitals, which are a substantive part of this Agreement. This Agreement shall be effective on February 1, 2022 ("Effective Date").
RECITALS
A. City desires to obtain water rate study and community facilities district formation services ("Services") more fully described in Exhibit A, which is attached hereto and incorporated by reference.
B. Consultant is engaged in the business of furnishing the Services and hereby warrants and represents that Consultant is qualified, experienced, and capable of performing the Services, and possesses any required licenses, certifications, security/bonding, and/or training necessary to perform the Services.
C. City desires to retain Consultant, and Consultant desires to provide the City with the Services, on the terms and conditions as set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual agreements herein, City and Consultant agree as follows:
AGREEMENT
1. Scope of Services. Consultant shall perform the Services described in the Recitals and detailed in Exhibit A. Changes in the scope of Services, including the work performed and/or deliverables produced, shall be made in writing and particularly describe the changes in Services, including payment/costs and schedule/term, as applicable.
2. Priority and Conflicts; Exclusions. If the terms and requirements of this Agreement conflict with Exhibit A, this Agreement shall control. No contractual terms and/or conditions found in Exhibit A shall purport to waive, disclaim, or limit Consultant’s liability, indemnification obligations, warranties, damages for breach or delay, or any security, bonding, or insurance requirements, and any such provisions shall have no force or effect with respect to this Agreement and the Services performed by Consultant.
3. Term of Agreement; Commencement of Services; Schedule. Consultant shall begin performing the Services upon notice from the City on or after the Effective Date, unless otherwise instructed by City, and continue with the Services until June 30, 2024 (“Completion Date”). This Agreement may be terminated prior to the Completion Date pursuant to Section 17 herein.
4. Payment for Services. City shall pay Consultant for the Services performed pursuant to this Agreement on a “time-and-materials” basis according to rate(s) set forth in Exhibit A. The total amount paid by City to Consultant for the Services shall not exceed sixty eight thousand five hundred dollars ($68,500).
The foregoing is inclusive of all labor, equipment, materials, costs and expenses, taxes, and overhead. City shall pay Consultant for Services satisfactorily performed pursuant to this Agreement. Consultant shall submit monthly invoices to City containing detailed billing information regarding the Services provided and unless otherwise specified in Exhibit A, City shall tender payment to Consultant within thirty (30) days after receipt of invoice.
2 5. Independent Contractor Status. Consultant and its subcontractors, if any, shall perform the Services as independent contractors and not as officers, employees, agents or volunteers of City. Consultant is engaged in an independently established trade, occupation, or business to perform the Services required by this Agreement and is hereby retained to perform work that is outside the usual course of City’s business.
Consultant is free from the control and direction of City in connection with the manner of performance of the work. Nothing contained in this Agreement shall be deemed to create any contractual relationship between City and Consultant's employees or subcontractors, nor shall anything contained in this Agreement be deemed to give any third party, including but not limited to Consultant's employees or subcontractors, any claim or right of action against City.
6. Consultant Representations; Standard of Care; Compliance with Law. Consultant represents that Consultant and any subcontractors utilized by Consultant are and will be qualified in the field for which Services are being provided under this Agreement and Consultant and any subcontractors are now, and will be throughout their performance of the Services under this Agreement, properly licensed, certified, secured/bonded, trained, and/or otherwise qualified and authorized to perform the Services required and contemplated by this Agreement, as may be required by law. Consultant and its subcontractors shall utilize the standard of care and skill customarily exercised by members of their profession, shall use reasonable diligence and best judgment while performing the Services, and shall comply with all applicable laws, regulations, and industry standards, including without limitation applicable law for properly safeguarding any financial data and information obtained from City necessary to perform the Services.
7. [Reserved]
8. Subcontractor Provisions. Consultant shall include in its written agreements with its subcontractors, if any, provisions which: (a) impose upon the subcontractors the obligation to provide to City the same insurance and indemnity obligations that Consultant owes to City; (b) make clear that City intends to rely upon the reports, opinions, conclusions and other work product prepared and performed by subcontractors for Consultant; and (c) entitle City to impose upon subcontractors the assignment rights found elsewhere in this Agreement.
9. Power to Act on Behalf of City. Consultant is not acting as an agent of City and shall not have any right, power, or authority to create any obligation, express or implied, or make representations on behalf of City except as may be expressly authorized in advance in writing from time to time by City and then only to the extent of such authorization.
10. Record Keeping; Reports. Consultant shall keep complete records showing the type of Services performed. Consultant shall be responsible and shall require its subcontractors to keep similar records. City shall be given reasonable access to the records of Consultant and its subcontractors for inspection and audit purposes. Consultant shall provide City with a working draft of all reports upon reasonable request by City and of all final reports prepared by Consultant under this Agreement.
11. Ownership and Inspection of Documents. All data, tests, reports, analyses, documents, records, conclusions, opinions, recommendations and other work product generated by or produced for Consultant or its subcontractors in connection with the Services, regardless of the medium, including physical drawings and materials recorded on computer discs or other electronic devices ("Work Product"), shall be and remain the property of City. City shall have the right to use, copy, modify, and reuse the Work Product as it sees fit. Upon City's request, Consultant shall make available for inspection and copying all such Work Product and all Work Product shall be turned over to City promptly at City's request or upon termination of this Agreement, whichever occurs first. Consultant shall not release any Work Product to third parties without prior written approval of City. This obligation shall survive termination of this Agreement and shall survive for four (4) years from the date of expiration or termination of this Agreement. Notwithstanding the above, computer 3 software (including without limitation financial models, compilations of formulas and spreadsheet models), prepared by Consultant are Instruments of Service of Consultant and shall remain the property of Consultant.
Consultant shall likewise retain all common law, statutory and other reserved rights, including the copyright thereto.
12. Confidentiality. All Work Product prepared and performed by and on behalf of Consultant in connection with the Services performed pursuant to this Agreement shall be kept confidential and shall be disclosed only to City, unless otherwise provided by law or expressly authorized by City. Consultant shall not disclose or permit the disclosure of any confidential information acquired during performance of the Services, except to its agents, employees and subcontractors who need such confidential information in order to properly perform their duties relative to this Agreement. Consultant shall also require its subcontractors to be bound to these confidentiality provisions.
13. [Reserved]
14. Conflicts of Interest. Consultant warrants that neither Consultant nor any of its employees have an improper interest, present or contemplated, in the Services which would affect Consultant’s or its employees’ performance of the Services and the Work Product produced. Consultant further warrants that neither Consultant nor any of its employees have real property, business interests or income that will be affected by the Services. Consultant covenants that no person having any such interest, whether an employee or subcontractor shall perform the Services under this Agreement. During the performance of the Services, Consultant shall not employ or retain the services of any person who is employed by the City or a member of any City Board or Commission.
15. Non-liability of Officers and Employees. No officer or employee of City shall be personally liable to Consultant, or any successors in interest, in the event of a default or breach by City for any amount which may become due Consultant or its successor, or for any breach of any obligation under the terms of this Agreement.
16. City Right to Employ Other Consultants. This Agreement and performance of the Services are nonexclusive and City reserves the right to employ other consultants in connection with the Services while this Agreement is in effect.
17. Termination of Agreement. This Agreement shall terminate as provided in Section 3, unless terminated earlier pursuant to the following:
a. Termination by City: For Convenience. City may at its discretion terminate this Agreement for convenience and without cause upon ten (10) days prior written notice to Consultant. Upon receipt of a termination notice pursuant to this subsection, Consultant shall promptly discontinue all Services affected, unless the notice directs otherwise.
b. Termination by City or Consultant: For Cause. Either party may terminate this Agreement upon ten (10) days prior written notice to the other party of a material breach, and a failure within that time period to cure or commence reasonable steps to cure the breach. c. Compensation to Consultant Upon Termination. Consultant shall be paid compensation for Services satisfactorily performed prior to service of the written notice of termination. As to any phase partially performed but for which the applicable portion of Consultant's compensation has not become due, Consultant shall be paid the reasonable value of its Services provided. However, in no event shall such payment when added to any other payment due under the applicable part of the work exceed the total compensation of such part as specified Section 4. In the event of termination due to Consultant’s failure to perform in accordance 4 with the terms of this Agreement through no fault of City, City may withhold an amount that would otherwise be payable as an offset to City's damages caused by such failure. d. Effect of Termination. Upon termination of this Agreement, Consultant shall: (i) promptly discontinue all Services affected, unless the notice of termination directs otherwise; and (ii) deliver or otherwise make available to the City, without additional compensation, all Work Product and/or deliverables accumulated by the Consultant in performing this Agreement, whether completed or in process. Consultant may not refuse to provide such Work Product for any reason whatsoever. e. Non-Appropriation; Lack of Available Funds. The parties acknowledge that the Services to be performed under this Agreement are expected to extend beyond the City’s budgeted fiscal year. If, during the term of this Agreement, or any renewal term, as applicable, the City budget does not appropriate sufficient funds for this Agreement, then City may elect to terminate this Agreement, at its sole discretion, by giving thirty (30) days' prior written notice of termination to Consultant. Upon termination of the Agreement under this section, the City shall have no further liability to pay any funds to the Consultant or to furnish any other consideration under this Agreement, and the Consultant shall not be obligated to perform any provisions of this Agreement or to provide services intended to be funded pursuant to this Agreement. If partial funds are appropriated or provided, the City shall have the option to either terminate this Agreement with no liability to the City or offer an amendment to the Consultant to reflect the reduced amount. The City represents and warrants that (i) as of the Effective Date, it has appropriated the funds for this Agreement for the current fiscal year and (ii) it shall not use the foregoing right to terminate for non-appropriation as a means to terminate for convenience. Consultant’s assumption of risk of possible non-appropriation is part of the consideration for this Agreement. City budget decisions are subject to the discretion of the City Council.
18. Insurance. Consultant shall satisfy the insurance requirements set forth in Exhibit B.
19. Indemnity and Defense. Consultant hereby agrees to indemnify, defend and hold the City, its officials, officers, employees, agents, and volunteers harmless from and against all claims, demands, causes of action, actions, damages, losses, expenses, and other liabilities, (including without limitation reasonable attorney fees and costs of litigation) of every nature arising out of or in connection with the alleged or actual acts, errors, omissions or negligence of Consultant or its subcontractors relating to the performance of Services and the safeguarding of any financial data and information obtained from City necessary to perform the Services described herein to the fullest extent permitted by law, unless the injuries or damages are the result of City's sole negligence or willful misconduct, subject to any limitations imposed by law. Consultant and City agree that said indemnity and defense obligations shall survive the expiration or termination of this Agreement for any items specified herein that arose or occurred during the term of this Agreement.
20. Taxes. Consultant agrees to pay all taxes, licenses, and fees levied or assessed by any governmental agency on Consultant incident to the performance of Services under this Agreement, and unemployment and workers’ compensation insurance, social security, or any other taxes upon the wages of Consultant, its employees, agents, and representatives. Consultant agrees to obtain and renew an annual business license from City and pay the applicable business license fee to City during the term of this Agreement.
21. Assignment. Neither this Agreement nor any duties or obligations hereunder shall be assignable by Consultant without the prior written consent of City. In the event of an assignment to which City has consented, the assignee shall agree in writing to personally assume and perform the covenants, obligations, and agreements herein contained. In addition, Consultant shall not assign the payment of any monies due Consultant from City under the terms of this Agreement to any other individual, corporation or entity. City retains the right to pay any and all monies due Consultant directly to Consultant. 5 22. Form and Service of Notices. Any and all notices or other communications required or permitted by this Agreement or by law to be delivered to, served upon, or given to either party to this Agreement by the other party shall be in writing and shall be deemed properly delivered, served or given by one of the following methods:
a. Personally delivered to the party to whom it is directed. Service shall be deemed the date of delivery.
b. Delivered by e-mail to a known address of the party to whom it is directed provided the e-mail is accompanied by an acknowledgment of receipt by the other party. Service shall be deemed the date of acknowledgement.
c. Delivery by a reliable overnight delivery service, ex., Federal Express, receipted, addressed to the addressees set forth below the signatories to this Agreement. Service shall be deemed the date of delivery. d. Delivery by deposit in the United States mail, first class, postage prepaid. Service shall be deemed delivered seventy-two (72) hours after deposit.
23. Entire Agreement. This Agreement, including the Exhibits and any other attachments, represents the entire Agreement between City and Consultant and supersedes all prior negotiations, representations or agreements, either written or oral with respect to the subject matter herein. This Agreement may be amended only by written instrument signed by both City and Consultant.
24. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
25. [Reserved]
26. Severability. In the event any term or provision of this Agreement is declared to be invalid or illegal for any reason, this Agreement will remain in full force and effect and will be interpreted as though such invalid or illegal provision were not a part of this Agreement. The remaining provisions will be construed to preserve the intent and purpose of this Agreement and the parties will negotiate in good faith to modify any invalidated provisions to preserve each party’s anticipated benefits.
27. Applicable Law and Interpretation and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. The language of all parts of this Agreement shall, in all cases, be construed as a whole, according to its fair meaning, and not strictly for or against either party. This Agreement is entered into by City and Consultant in the County of Fresno, California. Consultant shall perform the Services required under this Agreement in the County of Fresno, California.
28. Amendments and Waiver. This Agreement shall not be modified or amended in any way, and no provision shall be waived, except in writing signed by the parties hereto. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement.
29. Third Party Beneficiaries. Nothing in this Agreement shall be construed to confer any rights upon any party not a signatory to this Agreement.
6 30. Execution in Counterparts. This Agreement may be executed in counterparts such that the signatures may appear on separate signature pages. A copy or an original, with all signatures appended together, shall be deemed a fully executed Agreement.
31. Alternative Dispute Resolution. If a dispute arises out of or relating to this Agreement, or the alleged breach thereof, and if said dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by non-binding mediation before resorting to litigation. The mediator shall be mutually selected by the parties, but in case of disagreement, the mediator shall be selected by lot from among two nominations provided by each party. All costs and fees required by the mediator shall be split equally by the parties, otherwise each party shall bear its own costs of mediation. If mediation fails to resolve the dispute within thirty (30) days, either party may pursue litigation to resolve the dispute.
Demand for mediation shall be in writing and delivered to the other party to this Agreement.
A demand for mediation shall be made within reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for mediation be made after the date when institution of legal or equitable proceedings based on such a claim, dispute or other matter in question would be barred by California statues of limitations.
32. Non-Discrimination. Consultant shall not discriminate based on any protected class under federal or State law in the provision of the Services or with respect to any Consultant employees or applicants for employment. Consultant shall ensure that any subcontractors are bound to this provision. A protected class includes, but is not necessarily limited to race, color, national origin, ancestry, religion, age, sex, sexual orientation, marital status, and disability.
33. Performance Requirements. Notwithstanding, and in addition to the provisions of, Section 17 of this Agreement, if the Services performed hereunder are not in conformity with the requirements of this Agreement and other pertinent documents, City shall have the right to require Consultant to correct the work in conformity with the requirements of this Agreement at no additional increase in the payment to Consultant. Consultant shall promptly correct the work rejected by City for failing to conform to the requirements of the Agreement.
Remedy for non-compliance or non-performance shall commence within 24 hours of notice. City shall also have the right to require Consultant to take all necessary steps to ensure future performance of the Services in conformity with the requirements of this Agreement. In the event Consultant fails to correct the work or fails to take necessary steps to ensure future performance of the Services in conformity with the requirements of this Agreement, City shall have the right to immediately terminate this Agreement for default.
34. Licensing. Consultant shall also obtain and maintain a City of Fowler Business License prior to commencing performance of the Services.
35. Prevailing Wages; Apprenticeship. When the Services constitute a public work under the Labor Code, the Services shall be performed in accordance with the provisions of Section 1770 et seq. of the Labor Code of the State of California, and all other applicable provisions concerning public works projects, which are hereby incorporated by reference and made a part hereof. Consultant shall be responsible for the payment of prevailing wages in accordance with State and Federal law, if applicable. Consultant shall further be responsible for ensuring any subcontractors comply with any requirements for the payment of prevailing wages in accordance with State and Federal law, if applicable. Consultant shall comply with all requirements and obligations relating to apprentices, apprenticeships, and/or apprenticeable crafts or trades, as applicable, including but not limited to Labor Code section 1775.5. Consultant shall register with the Department of Industrial Relations, if required.
Now, therefore, the City and Consultant have executed this Agreement on the date(s) set forth below.
8 EXHIBIT A
Scope of Services
9 EXHIBIT B
Insurance Requirements
Prior to commencement of the Services, Consultant shall take out and maintain at its own expense the insurance coverage required by this Exhibit C. Consultant shall cause any subcontractor with whom Consultant contracts for the performance of Services pursuant to this Agreement to take out and maintain equivalent insurance coverage. Said insurance shall be maintained at all times during Consultant’s performance of Services under this Agreement, and for any additional period specified herein. All insurance shall be placed with insurance companies that are licensed and admitted to conduct business in the State of California and are rated at a minimum with an "A:VII" by A.M. Best Company, unless otherwise acceptable to the City. a. Minimum Limits of Insurance. Consultant shall maintain the following types of insurance with limits no less than specified:
(i) Professional Liability Insurance (Errors and Omissions) in an amount not less than $1,000,000.00 per occurrence or claim and $1,000,000 in the aggregate. Said insurance shall be maintained for an additional period of five years following the earlier of completion of Consultant’s Services under this Agreement or termination of this Agreement.
(ii) General Liability Insurance (including operations, products and completed operations coverages) in an amount not less than $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement or the general aggregate limit shall be twice the required occurrence limit.
(iii) Worker's Compensation Insurance as required by the State of California. (iv) Automobile Liability Insurance in an amount not less than $1,000,000 per accident for bodily injury and property damage.
(v) Umbrella or Excess Liability. In the event Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents and volunteers.
If Consultant maintains higher limits than the minimums shown above, the City shall be entitled to coverage at the higher limits maintained.
b. Other Insurance Provisions. The general liability policy is to contain, or be endorsed to contain, the following provisions:
(i) For any claims related to the Services performed pursuant to this Agreement, the Consultant's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. 10 (ii) Each insurance policy required by this section shall be endorsed to state that the City shall receive written notice at least thirty (30) days prior to the cancellation, non-renewal, or material modification of the coverages required herein.
(iii) Consultant grants to the City a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
(iv) Any deductibles or self-insured retentions must be declared to and approved by the City of Fowler. The City may require the Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
c. Evidence of Coverage. Consultant shall deliver to City written evidence of the above insurance coverages, including the required endorsements prior to commencing Services under this Agreement; and the production of such written evidence shall be an express condition precedent, notwithstanding anything to the contrary in this Agreement, to Consultant's right to be paid any compensation under this Agreement. City's failure, at any time, to object to Consultant's failure to provide the specified insurance or written evidence thereof (either as to the type or amount of such insurance), shall not be deemed a waiver of City's right to insist upon such insurance later. d. Maintenance of Insurance. If Consultant fails to furnish and maintain the insurance required by this section, City may (but is not required to) purchase such insurance on behalf of Consultant, and the Consultant shall pay the cost thereof to City upon demand, and City shall furnish Consultant with any information needed to obtain such insurance. Moreover, at its discretion, City may pay for such insurance with funds otherwise due Consultant under this Agreement.
e. Subcontractors. If the Consultant should subcontract all or any portion of the work to be performed in this Agreement, the Consultant shall cover the subcontractor, and/or require each subcontractor to adhere to all the requirements contained herein. Similarly, any cancellation, lapse, reduction or change of subcontractor’s insurance shall have the same impact as described above. f. Special Risks or Circumstances. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
g. Indemnity and Defense. Except as otherwise expressly provided, the insurance requirements in this section shall not in any way limit, in either scope or amount, the indemnity and defense obligations separately owed by Consultant to City under this Agreement.