DocuSign Envelope ID: 24B7A146-528A-48FB-9CC4-26DD6CE71499
BUSINESS LIABILITY COVERAGE FORM
(a) The preparing, approving, or
failure to prepare or approve,
maps, shop drawings, opinions,
reports, surveys, field orders,
change orders, designs or
drawings and specifications; or
(b) Supervisory, inspection,
architectural or engineering
activities.
The limits of insurance that apply to additional
insureds are described in Section D. - Limits
Of Insurance.
How this insurance applies when other
insurance is available to an additional insured
is described in the Other Insurance Condition
in Section E. - Liability And Medical Expenses
General Conditions.
No person or organization is an insured with
respect to the conduct of any current or past
partnership, joint venture or limited liability
company that is not shown as a Named Insured in
the Declarations.
D. LIABILITY AND MEDICAL EXPENSES
LIMITS OF INSURANCE
1. The Most We Will Pay
The Limits of Insurance shown in the
Declarations and the rules below fix the most
we will pay regardless of the number of:
a. Insureds;
b. Claims made or "suits" brought; or
c. Persons or organizations making claims or
bringing "suits".
2. Aggregate Limits
The most we will pay for:
a. Damages because of "bodily injury" and
"property damage" included in the
"products-completed operations hazard" is
the Products-Completed Operations
Aggregate Limit shown in the
Declarations.
b. Damages because of all other "bodily
injury", "property damage" or "personal
and advertising injury", including medical
expenses, is the General Aggregate Limit
shown in the Declarations.
This General Aggregate Limit applies
separately to each of your "locations"
owned by or rented to you.
"Location" means premises involving the
same or connecting lots, or premises
whose connection is interrupted only by a
street, roadway or right-of-way of a
railroad.
This General Aggregate limit does not
apply to "property damage" to premises
while rented to you or temporarily
occupied by you with permission of the
owner, arising out of fire, lightning or
explosion.
3. Each Occurrence Limit
Subject to 2.a. or 2.b above, whichever
applies, the most we will pay for the sum of all
damages because of all "bodily injury",
"property damage" and medical expenses
arising out of any one "occurrence" is the
Liability and Medical Expenses Limit shown in
the Declarations.
The most we will pay for all medical expenses
because of "bodily injury" sustained by any
one person is the Medical Expenses Limit
shown in the Declarations.
4. Personal And Advertising Injury Limit
Subject to 2.b. above, the most we will pay for
the sum of all damages because of all
"personal and advertising injury" sustained by
any one person or organization is the Personal
and Advertising Injury Limit shown in the
Declarations.
5. Damage To Premises Rented To You Limit
The Damage To Premises Rented To You
Limit is the most we will pay under Business
Liability Coverage for damages because of
"property damage" to any one premises, while
rented to you, or in the case of damage by fire,
lightning or explosion, while rented to you or
temporarily occupied by you with permission of
the owner.
In the case of damage by fire, lightning or
explosion, the Damage to Premises Rented To
You Limit applies to all damage proximately
caused by the same event, whether such
damage results from fire, lightning or explosion
or any combination of these.
6. How Limits Apply To Additional Insureds
The most we will pay on behalf of a person or
organization who is an additional insured
under this Coverage Part is the lesser of:
a. The limits of insurance specified in a
written contract, written agreement or
permit issued by a state or political
subdivision; or
b. The Limits of Insurance shown in the
Declarations.
Such amount shall be a part of and not in
addition to the Limits of Insurance shown in
the Declarations and described in this Section.
Form SS 00 08 04 05 Page 114
DocuSign Envelope ID: 24B7A146-528A-48FB-9CC4-26DD6CE71499 If more than one limit of insurance under this
policy and any endorsements attached thereto
applies to any claim or "suit", the most we will pay
under this policy and the endorsements is the
single highest limit of liability of all coverages
applicable to such claim or "suit". However, this
paragraph does not apply to the Medical Expenses
limit set forth in Paragraph 3. above.
The Limits of Insurance of this Coverage Part apply
separately to each consecutive annual period and to
any remaining period of less than 12 months, starting
with the beginning of the policy period shown in the
Declarations, unless the policy period is extended
after issuance for an additional period of less than 12 months. In that case, the additional period will be
deemed part of the last preceding period for purposes
of determining the Limits of Insurance.
E. LIABILITY AND MEDICAL EXPENSES
GENERAL CONDITIONS
1. Bankruptcy
Bankruptcy or insolvency of the insured or of
the insured's estate will not relieve us of our
obligations under this Coverage Part.
2. Duties In The Event Of Occurrence,
Offense, Claim Or Su it
a. Notice Of Occurrence Or Offense
You or any additional insured must see to
it that we are notified as soon as
practicable of an "occurrence" or an
offense which may result in a claim. To
the extent possible, notice should include:
(1) How, when and where the "occurrence"
or offense took place;
(2) The names and addresses of any
injured persons and witnesses; and
(3) The nature and location of any injury
or damage ansmg out of the
"occurrence" or offense.
b. Notice Of Claim
If a claim is made or "suit" is brought
against any insured, you or any additional
insured must:
(1) Immediately record the specifics of the
claim or "suit" and the date received;
and
(2) Notify us as soon as practicable.
You or any additional insured must see to
it that we receive a written notice of the
claim or "suit" as soon as practicable.
c. Assistance And Cooperation Of The
Insured
You and any other involved insured must:
Form SS 00 08 04 05
BUSINESS LIABILITY COVERAGE FORM
(1) Immediately send us copies of any
demands, notices, summonses or
legal papers received in connection
with the claim or "suit";
(2) Authorize us to obtain records and
other information;
(3) Cooperate with us in the investigation,
settlement of the claim or defense
against the "suit"; and
(4) Assist us, upon our request, in the
enforcement of any right against any
person or organization that may be
liable to the insured because of injury
or damage to which this insurance
may also apply.
d. Obligations At The lnsured's Own Cost
No insured will, except at that insured's own
cost, voluntarily make a payment, assume
any obligation, or incur any expense, other
than for first aid, without our consent.
e. Additional lnsured's Other Insurance
If we cover a claim or "suit" under this
Coverage Part that may also be covered
by other insurance available to an
additional insured, such additional insured
must submit such claim or "suit" to the
other insurer for defense and indemnity.
However, this provision does not apply to
the extent that you have agreed in a
written contract, written agreement or
permit that this insurance is primary and
non-contributory with the additional
insured's own insurance.
f. Knowledge Of An Occurrence, Offense,
Claim Or Suit
Paragraphs a. and b. apply to you or to
any additional insured only when such
"occurrence", offense, claim or "suit" is
known to:
(1) You or any additional insured that is
an individual;
(2) Any partner, if you or an additional
insured is a partnership;
(3) Any manager, if you or an additional
insured is a limited liability company;
(4) Any "executive officer'' or insurance
manager, if you or an additional
insured is a corporation;
(5) Any trustee, if you or an additional
insured is a trust; or
(6) Any elected or appointed official, if you
or an additional insured is a political
subdivision or public entity.
DocuSign Envelope ID: 24B7A146-528A-48FB-9CC4-26DD6CE71499
BUSINESS LIABILITY COVERAGE FORM
This Paragraph f. applies separately to
you and any additional insured.
3. Financial Responsibility Laws
a. When this policy is certified as proof of
financial responsibility for the future under
the provisions of any motor vehicle
financial responsibility law, the insurance
provided by the policy for "bodily injury"
liability and "property damage" liability will
comply with the provisions of the law to
the extent of the coverage and limits of
insurance required by that law.
b. With respect to "mobile equipment" to
which this insurance applies, we will
provide any liability, uninsured motorists,
underinsured motorists, no-fault or other
coverage required by any motor vehicle
law. We will provide the required limits for
those coverages.
4. Legal Action Against Us
No person or organization has a right under
this Coverage Form:
a. To join us as a party or otherwise bring us
into a "suit" asking for damages from an
insured; or
b. To sue us on this Coverage Form unless
all of its terms have been fully complied
with.
A person or organization may sue us to recover
on an agreed settlement or on a final judgment
against an insured; but we will not be liable for
damages that are not payable under the terms of
this insurance or that are in excess of the
applicable limit of insurance. An agreed
settlement means a settlement and release of
liability signed by us, the insured and the
claimant or the claimant's legal representative.
5. Separation Of Insureds
Except with respect to the Limits of Insurance,
and any rights or duties specifically assigned
in this policy to the first Named Insured, this
insurance applies:
a. As if each Named Insured were the only
Named Insured; and
b. Separately to each insured against whom
a claim is made or "suit" is brought.
6. Representations
a. When You Accept This Policy
By accepting this policy, you agree:
(1) The statements in the Declarations
are accurate and complete;
(2) Those statements are based upon
representations you made to us; and
(3) We have issued this policy in reliance
upon your representations.
b. Unintentional Failure To Disclose
Hazards
If unintentionally you should fail to disclose
all hazards relating to the conduct of your
business at the inception date of this
Coverage Part, we shall not deny any
coverage under this Coverage Part
because of such failure.
7. Other Insurance
If other valid and collectible insurance is
available for a loss we cover under this
Coverage Part, our obligations are limited as
follows:
a. Primary Insurance
This insurance is primary except when b.
below applies. If other insurance is also
primary, we will share with all that other
insurance by the method described in c.
below.
b. Excesslnsurance
This insurance is excess over any of the
other insurance, whether primary, excess,
contingent or on any other basis:
(1) Your Work
That is Fire, Extended Coverage,
Builder's Risk, Installation Risk or
similar coverage for "your work";
(2) Premises Rented To You
That is fire, lightning or explosion
insurance for premises rented to you
or temporarily occupied by you with
permission of the owner;
(3) Tenant Liability
That is insurance purchased by you to
cover your liability as a tenant for
"property damage" to premises rented
to you or temporarily occupied by you
with permission of the owner;
(4) Aircraft, Auto Or Watercraft
If the loss arises out of the maintenance
or use of aircraft, "autos" or watercraft to
the extent not subject to Exclusion g. of
Section A. -Coverages.
(5) Property Damage To Borrowed
Equipment Or Use Of Elevators
If the loss arises out of "property
damage" to borrowed equipment or
the use of elevators to the extent not
subject to Exclusion k. of Section A. -
Coverages.
Form 55 00 08 04 05 Page 116
DocuSign Envelope ID: 24B7A146-528A-48FB-9CC4-26DD6CE71499 (6) When You Are Added As An
Additional Insured To Other
Insurance
That is other insurance available to
you covering liability for damages
arising out of the premises or
operations, or products and completed
operations, for which you have been
added as an additional insured by that
insurance; or
(7) When You Add Others As An
Additional Insured To This
Insurance
That is other insurance available to an
additional insured.
However, the following provisions
apply to other insurance available to
any person or organization who is an
additional insured under this Coverage
Part:
(a) Primary Insurance When
Required By Contract
This insurance is primary if you
have agreed in a written contract,
written agreement or permit that
this insurance be primary. If other
insurance is also primary, we will
share with all that other insurance
by the method described in c.
below.
(b) Primary And Non-Contributory
To Other Insurance When
Required By Contract
If you have agreed in a written
contract, written agreement or
permit that this insurance is
primary and non-contributory with
the additional insured's own
insurance, this insurance is
primary and we will not seek
contribution from that other
insurance.
Paragraphs (a) and (b) do not apply to
other insurance to which the additional
insured has been added as an
additional insured.
When this insurance is excess, we will
have no duty under this Coverage Part to
defend the insured against any "suit" if any
other insurer has a duty to defend the
insured against that "suit". If no other
insurer defends, we will undertake to do
so, but we will be entitled to the insured's
rights against all those other insurers.
Form SS 00 08 04 05
BUSINESS LIABILITY COVERAGE FORM
When this insurance is excess over other
insurance, we will pay only our share of
the amount of the loss, if any, that
exceeds the sum of:
(1) The total amount that all such other
insurance would pay for the loss in the
absence of this insurance; and
(2) The total of all deductible and selfinsured amounts under all that other insurance.
We will share the remaining loss, if any, with
any other insurance that is not described in
this Excess Insurance provision and was not
bought specifically to apply in excess of the
Limits of Insurance shown in the
Declarations of this Coverage Part.
c. Method Of Sharing
If all the other insurance permits
contribution by equal shares, we will follow
this method also. Under this approach,
each insurer contributes equal amounts
until it has paid its applicable limit of
insurance or none of the loss remains,
whichever comes first.
If any of the other insurance does not permit
contribution by equal shares, we will
contribute by limits. Under this method, each
insurer's share is based on the ratio of its
applicable limit of insurance to the total
applicable limits of insurance of all insurers.
8. Transfer Of Rights Of Recovery Against
Others To Us
a. Transfer Of Rights Of Recovery
If the insured has rights to recover all or
part of any payment, including
Supplementary Payments, we have made
under this Coverage Part, those rights are
transferred to us. The insured must do
nothing after loss to impair them. At our
request, the insured will bring "suit" or
transfer those rights to us and help us
enforce them. This condition does not
apply to Medical Expenses Coverage.
b. Waiver Of Rights Of Recovery (Waiver
Of Subrogation)
If the insured has waived any rights of
recovery against any person or
organization for all or part of any payment,
including Supplementary Payments, we
have made under this Coverage Part, we
also waive that right, provided the insured
waived their rights of recovery against
such person or organization in a contract,
agreement or permit that was executed
prior to the injury or damage.
DocuSign Envelope ID: 24B7A146-528A-48FB-9CC4-26DD6CE71499
BUSINESS LIABILITY COVERAGE FORM
F. OPTIONAL ADDITIONAL INSURED
COVERAGES
If listed or shown as applicable in the Declarations,
one or more of the following Optional Additional
Insured Coverages also apply. When any of these
Optional Additional Insured Coverages apply,
Paragraph 6. (Additional Insureds When Required
by Written Contract, Written Agreement or Permit)
of Section C., Who Is An Insured, does not apply
to the person or organization shown in the
Declarations. These coverages are subject to the
terms and conditions applicable to Business
Liability Coverage in this policy, except as
provided below:
1. Additional Insured - Designated Person Or
Organization
WHO IS AN INSURED under Section C. is
amended to include as an additional insured
the person(s) or organization(s) shown in the
Declarations, but only with respect to liability
for "bodily injury", "property damage" or
"personal and advertising injury" caused, in
whole or in part, by your acts or omissions or
the acts or omissions of those acting on your
behalf:
a. In the performance of your ongoing
operations; or
b. In connection with your premises owned
by or rented to you.
2. Additional Insured - Managers Or Lessors
Of Premises
a. WHO IS AN INSURED under Section C. is
amended to include as an additional insured
the person(s) or organization(s) shown in the
Declarations as an Additional Insured -
Designated Person Or Organization; but only
with respect to liability arising out of the
ownership, maintenance or use of that part of
the premises leased to you and shown in the
Declarations.
b. With respect to the insurance afforded to
these additional insureds, the following
additional exclusions apply:
This insurance does not apply to:
(1) Any "occurrence" which takes place
after you cease to be a tenant in that
premises; or
(2) Structural alterations, new
construction or demolition operations
performed by or on behalf of such
person or organization.
3. Additional Insured - Grantor Of Franchise
WHO IS AN INSURED under Section C. is
amended to include as an additional insured
the person(s) or organization(s) shown in the
Declarations as an Additional Insured -
Grantor Of Franchise, but only with respect to
their liability as grantor of franchise to you.
4. Additional Insured - Lessor Of Leased
Equipment
a. WHO IS AN INSURED under Section C. is
amended to include as an additional
insured the person(s) or organization(s)
shown in the Declarations as an Additional
Insured - Lessor of Leased Equipment,
but only with respect to liability for "bodily
injury", "property damage" or "personal
and advertising injury" caused, in whole or
in part, by your maintenance, operation or
use of equipment leased to you by such
person(s) or organization(s).
b. With respect to the insurance afforded to
these additional insureds, this insurance
does not apply to any "occurrence" which
takes place after you cease to lease that
equipment.
5. Additional Insured - Owners Or Other
Interests From Whom Land Has Been
Leased
a. WHO IS AN INSURED under Section C. is
amended to include as an additional
insured the person(s) or organization(s)
shown in the Declarations as an Additional
Insured - Owners Or Other Interests From
Whom Land Has Been Leased, but only
with respect to liability arising out of the
ownership, maintenance or use of that part
of the land leased to you and shown in the
Declarations.
b. With respect to the insurance afforded to
these additional insureds, the following
additional exclusions apply:
This insurance does not apply to:
(1) Any "occurrence" that takes place
after you cease to lease that land; or
(2) Structural alterations, new
construction or demolition operations
performed by or on behalf of such
person or organization.
6. Additional Insured - State Or Political
Subdivision - Permits
a. WHO IS AN INSURED under Section C. is
amended to include as an additional
insured the state or political subdivision
shown in the Declarations as an Additional
Form SS 00 08 04 05 Page 118
DocuSign Envelope ID: 24B7A146-528A-48FB-9CC4-26DD6CE71499 Insured - State Or Political Subdivision -
Permits, but only with respect to
operations performed by you or on your
behalf for which the state or political
subdivision has issued a permit.
b. With respect to the insurance afforded to
these additional insureds, the following
additional exclusions apply:
This insurance does not apply to:
(1) "Bodily injury", "property damage" or
"personal and advertising injury"
arising out of operations performed for
the state or municipality; or
(2) "Bodily injury" or "property damage"
included in the "product-completed
operations" hazard.
7. Additional Insured -Vendors
a. WHO IS AN INSURED under Section C. is
amended to include as an additional
insured the person(s) or organization(s)
(referred to below as vendor) shown in the
Declarations as an Additional Insured -
Vendor, but only with respect to "bodily
injury" or "property damage" arising out of
"your products" which are distributed or
sold in the regular course of the vendor's
business and only if this Coverage Part
provides coverage for "bodily injury" or
"property damage" included within the
"products-completed operations hazard".
b. The insurance afforded to the vendor is
subject to the following additional exclusions:
(1) This insurance does not apply to:
(a) "Bodily injury" or "property
damage" for which the vendor is
obligated to pay damages by
reason of the assumption of
liability in a contract or agreement.
This exclusion does not apply to
liability for damages that the
vendor would have in the absence
of the contract or agreement;
(b) Any express warranty
unauthorized by you;
(c) Any physical or chemical change
in the product made intentionally
by the vendor;
(d) Repackaging, unless unpacked
solely for the purpose of inspection,
demonstration, testing, or the
substitution of parts under
instructions from the manufacturer,
and then repackaged in the original
container;
Form SS 00 08 04 05
BUSINESS LIABILITY COVERAGE FORM
(e) Any failure to make such
inspections, adjustments, tests or
servicing as the vendor has agreed
to make or normally undertakes to
make in the usual course of
business, in connection with the
distribution or sale of the products;
(f) Demonstration, installation,
servicing or repair operations,
except such operations performed
at the vendor's premises in
connection with the sale of the
product;
(g) Products which, after distribution
or sale by you, have been labeled
or relabeled or used as a
container, part or ingredient of any
other thing or substance by or for
the vendor; or
(h) "Bodily injury" or "property
damage" arising out of the sole
negligence of the vendor for its
own acts or omissions or those of
its employees or anyone else
acting on its behalf. However, this
exclusion does not apply to:
(i) The exceptions contained in
Subparagraphs (d) or (f); or
(ii) Such inspections,
adjustments, tests or servicing
as the vendor has agreed to
make or normally undertakes
to make in the usual course of
business, in connection with
the distribution or sale of the
products.
(2) This insurance does not apply to any
insured person or organization from
whom you have acquired such
products, or any ingredient, part or
container, entering into,
accompanying or containing such
products.
8. Additional Insured - Controlling Interest
WHO IS AN INSURED under Section C. is
amended to include as an additional insured
the person(s) or organization(s) shown in the
Declarations as an Additional Insured -
Controlling Interest, but only with respect to
their liability arising out of:
a. Their financial control of you; or
b. Premises they own, maintain or control
while you lease or occupy these premises.
DocuSign Envelope ID: 24B7A146-528A-48FB-9CC4-26DD6CE71499
BUSINESS LIABILITY COVERAGE FORM
This insurance does not apply to structural
alterations, new construction and demolition
operations performed by or for that person or
organization.
9. Additional Insured - Owners, Lessees Or
Contractors - Scheduled Person Or
Organization
a. WHO IS AN INSURED under Section C. is
amended to include as an additional
insured the person(s) or organization(s)
shown in the Declarations as an Additional
Insured - Owner, Lessees Or Contractors,
but only with respect to liability for "bodily
injury", "property damage" or "personal
and advertising injury" caused, in whole or
in part, by your acts or omissions or the
acts or omissions of those acting on your
behalf:
(1) In the performance of your ongoing
operations for the additional
insured(s); or
(2) In connection with "your work"
performed for that additional insured
and included within the "productscompleted operations hazard", but only if this Coverage Part provides
coverage for "bodily injury" or
"property damage" included within the
"products-completed operations
hazard".
b. With respect to the insurance afforded to
these additional insureds, this insurance
does not apply to "bodily injury", "property
damage" or "personal an advertising
injury" arising out of the rendering of, or
the failure to render, any professional
architectural, engineering or surveying
services, including:
(1) The preparing, approving, or failure to
prepare or approve, maps, shop
drawings, opinions, reports, surveys,
field orders, change orders, designs or
drawings and specifications; or
(2) Supervisory, inspection, architectural
or engineering activities.
10. Additional Insured - Co-Owner Of Insured
Premises
WHO IS AN INSURED under Section C. is
amended to include as an additional insured
the person(s) or Organization(s) shown in the
Declarations as an Additional Insured - CoOwner Of Insured Premises, but only with respect to their liability as co-owner of the
premises shown in the Declarations.
The limits of insurance that apply to additional
insureds are described in Section D. - Limits Of
Insurance.
How this insurance applies when other insurance
is available to an additional insured is described in
the Other Insurance Condition in Section E. -
Liability And Medical Expenses General
Conditions.
G. LIABILITY AND MEDICAL EXPENSES
DEFINITIONS
1. "Advertisement" means the widespread public
dissemination of information or images that
has the purpose of inducing the sale of goods,
products or services through:
a. (1) Radio;
(2) Television;
(3) Billboard;
(4) Magazine;
(5) Newspaper;
b. The Internet, but only that part of a web
site that is about goods, products or
services for the purposes of inducing the
sale of goods, products or services; or
c. Any other publication that is given
widespread public distribution.
However, "advertisement" does not include:
a. The design, printed material, information
or images contained in, on or upon the
packaging or labeling of any goods or
products; or
b. An interactive conversation between or
among persons through a computer network.
2. "Advertising idea" means any idea for an
"advertisement".
3. "Asbestos hazard" means an exposure or
threat of exposure to the actual or alleged
properties of asbestos and includes the mere
presence of asbestos in any form.
4. "Auto" means a land motor vehicle, trailer or
semi-trailer designed for travel on public
roads, including any attached machinery or
equipment. But "auto" does not include
"mobile equipment".
5. "Bodily injury" means physical:
a. Injury;
b. Sickness; or
c. Disease
sustained by a person and, if arising out of the
above, mental anguish or death at any time.
6. "Coverage territory" means:
Form SS 00 08 04 05 Page 120
DocuSign Envelope ID: 24B7A146-528A-48FB-9CC4-26DD6CE71499 a. The United States of America (including its
territories and possessions), Puerto Rico
and Canada;
b. International waters or airspace, but only if
the injury or damage occurs in the course
of travel or transportation between any
places included in a. above;
c. All other parts of the world if the injury or
damage arises out of:
(1) Goods or products made or sold by you
in the territory described in a. above;
(2) The activities of a person whose home
is in the territory described in a.
above, but is away for a short time on
your business; or
(3) "Personal and advertising injury"
offenses that take place through the
Internet or similar electronic means of
communication
provided the insured's responsibility to pay
damages is determined in the United States of
America (including its territories and
possessions), Puerto Rico or Canada, in a
"suit" on the merits according to the
substantive law in such territory, or in a
settlement we agree to.
7. "Electronic data" means information, facts or
programs:
a. Stored as or on;
b. Created or used on; or
c. Transmitted to or from
computer software, including systems and
applications software, hard or floppy disks,
CD-ROMS, tapes, drives, cells, data
processing devices or any other media which
are used with electronically controlled
equipment.
8. "Employee" includes a "leased worker".
"Employee" does not include a "temporary
worker".
9. "Executive officer'' means a person holding
any of the officer positions created by your
charter, constitution, by-laws or any other
similar governing document.
10. "Hostile fire" means one which becomes
uncontrollable or breaks out from where it was
intended to be.
11. "Impaired property" means tangible property,
other than "your product" or "your work", that
cannot be used or is less useful because:
a. It incorporates "your product'' or "your work"
that is known or thought to be defective,
deficient, inadequate or dangerous; or
Form SS 00 08 04 05
BUSINESS LIABILITY COVERAGE FORM
b. You have failed to fulfill the terms of a
contract or agreement;
if such property can be restored to use by:
a. The repair, replacement, adjustment or
removal of "your product" or "your work";
or
b. Your fulfilling the terms of the contract or
agreement.
12. "Insured contract" means:
a. A contract for a lease of premises.
However, that portion of the contract for a
lease of premises that indemnifies any
person or organization for damage by fire,
lightning or explosion to premises while
rented to you or temporarily occupied by
you with permission of the owner is
subject to the Damage To Premises
Rented To You limit described in Section
D. - Liability and Medical Expenses Limits
of Insurance.
b. A sidetrack agreement;
c. Any easement or license agreement,
including an easement or license
agreement in connection with construction
or demolition operations on or within 50
feet of a railroad;
d. Any obligation, as required by ordinance,
to indemnify a municipality, except in
connection with work for a municipality;
e. An elevator maintenance agreement; or
f. That part of any other contract or
agreement pertaining to your business
(including an indemnification of a
municipality in connection with work
performed for a municipality) under which
you assume the tort liability of another
party to pay for "bodily injury" or "property
damage" to a third person or organization,
provided the "bodily injury" or "property
damage" is caused, in whole or in part, by
you or by those acting on your behalf.
Tort liability means a liability that would be
imposed by law in the absence of any
contract or agreement.
Paragraph f. includes that part of any
contract or agreement that indemnifies a
railroad for "bodily injury" or "property
damage" arising out of construction or
demolition operations within 50 feet of any
railroad property and affecting any railroad
bridge or trestle, tracks, road-beds, tunnel,
underpass or crossing.
However, Paragraph f. does not include
that part of any contract or agreement:
DocuSign Envelope ID: 24B7A146-528A-48FB-9CC4-26DD6CE71499
BUSINESS LIABILITY COVERAGE FORM
(1) That indemnifies an architect,
engineer or surveyor for injury or
damage arising out of:
(a) Preparing, approving or failing to
prepare or approve maps, shop
drawings, opinions, reports,
surveys, field orders, change
orders, designs or drawings and
specifications; or
(b) Giving directions or instructions,
or failing to give them, if that is the
primary cause of the injury or
damage; or
(2) Under which the insured, if an
architect, engineer or surveyor,
assumes liability for an injury or
damage arising out of the insured's
rendering or failure to render
professional services, including those
listed in (1) above and supervisory,
inspection, architectural or
engineering activities.
13. "Leased worker" means a person leased to
you by a labor leasing firm under an
agreement between you and the labor leasing
firm, to perform duties related to the conduct of
your business. "Leased worker" does not
include a "temporary worker".
14. "Loading or unloading" means the handling of
property:
a. After it is moved from the place where it is
accepted for movement into or onto an
aircraft, watercraft or "auto";
b. While it is in or on an aircraft, watercraft or
"auto"; or
c. While it is being moved from an aircraft,
watercraft or "auto" to the place where it is
finally delivered;
but "loading or unloading" does not include the
movement of property by means of a mechanical
device, other than a hand truck, that is not
attached to the aircraft, watercraft or "auto".
15. "Mobile equipment" means any of the following
types of land vehicles, including any attached
machinery or equipment:
a. Bulldozers, farm machinery, forklifts and
other vehicles designed for use principally
off public roads;
b. Vehicles maintained for use solely on or
next to premises you own or rent;
c. Vehicles that travel on crawler treads;
d. Vehicles, whether self-propelled or not, on
which are permanently mounted:
(1) Power cranes, shovels, loaders,
diggers or drills; or
(2) Road construction or resurfacing
equipment such as graders, scrapers
or rollers;
e. Vehicles not described in a., b., c., or d.
above that are not self-propelled and are
maintained primarily to provide mobility to
permanently attached equipment of the
following types:
(1) Air compressors, pumps and
generators, including spraying,
welding, building cleaning,
geophysical exploration, lighting and
well servicing equipment; or
(2) Cherry pickers and similar devices
used to raise or lower workers;
f. Vehicles not described in a., b., c., or d.
above maintained primarily for purposes
other than the transportation of persons or
cargo.
However, self-propelled vehicles with the
following types of permanently attached
equipment are not "mobile equipment" but
will be considered "autos":
(1) Equipment, of at least 1,000 pounds
gross vehicle weight, designed
primarily for:
(a) Snow removal;
(b) Road maintenance, but not
construction or resurfacing; or
(c) Street cleaning;
(2) Cherry pickers and similar devices
mounted on automobile or truck
chassis and used to raise or lower
workers; and
(3) Air compressors, pumps and
generators, including spraying,
welding, building cleaning,
geophysical exploration, lighting and
well servicing equipment.
16. "Occurrence" means an accident, including
continuous or repeated exposure to substantially
the same general harmful conditions.
17. "Personal and advertising injury" means injury,
including consequential "bodily injury", arising
out of one or more of the following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
Form SS 00 08 04 05 Page 122
DocuSign Envelope ID: 24B7A146-528A-48FB-9CC4-26DD6CE71499 c. The wrongful eviction from, wrongful entry
into, or invasion of the right of private
occupancy of a room, dwelling or
premises that the person occupies,
committed by or on behalf of its owner,
landlord or lessor;
d. Oral, written or electronic publication of
material that slanders or libels a person or
organization or disparages a person's or
organization's goods, products or services;
e. Oral, written or electronic publication of
material that violates a person's right of
privacy;
f. Copying, in your "advertisement", a
person's or organization's "advertising
idea" or style of "advertisement";
g. Infringement of copyright, slogan, or title of
any literary or artistic work, in your
"advertisement"; or
h. Discrimination or humiliation that results in
injury to the feelings or reputation of a
natural person.
18. "Pollutants" means any solid, liquid, gaseous or
thermal irritant or contaminant, including smoke,
vapor, soot, fumes, acids, alkalis, chemicals and
waste. Waste includes materials to be recycled,
reconditioned or reclaimed.
19. "Products-completed operations hazard";
a. Includes all "bodily injury" and "property
damage" occurring away from premises
you own or rent and arising out of "your
product" or "your work" except:
(1) Products that are still in your physical
possession; or
(2) Work that has not yet been completed
or abandoned. However, "your work"
will be deemed to be completed at the
earliest of the following times:
(a) When all of the work called for in
your contract has been completed.
(b) When all of the work to be done at
the job site has been completed if
your contract calls for work at
more than one job site.
(c) When that part of the work done at
a job site has been put to its
intended use by any person or
organization other than another
contractor or subcontractor
working on the same project.
Form SS 00 08 04 05
BUSINESS LIABILITY COVERAGE FORM
Work that may need service, maintenance,
correction, repair or replacement, but
which is otherwise complete, will be
treated as completed.
The "bodily injury" or "property damage"
must occur away from premises you own
or rent, unless your business includes the
selling, handling or distribution of "your
product" for consumption on premises you
own or rent.
b. Does not include "bodily injury" or
"property damage" arising out of:
(1) The transportation of property, unless
the injury or damage arises out of a
condition in or on a vehicle not owned
or operated by you, and that condition
was created by the "loading or
unloading" of that vehicle by any
insured; or
(2) The existence of tools, uninstalled
equipment or abandoned or unused
materials.
20. "Property damage" means:
a. Physical injury to tangible property,
including all resulting loss of use of that
property. All such loss of use shall be
deemed to occur at the time of the
physical injury that caused it; or
b. Loss of use of tangible property that is not
physically injured. All such loss of use
shall be deemed to occur at the time of
"occurrence" that caused it.
As used in this definition, "electronic data" is
not tangible property.
21. "Suit" means a civil proceeding in which
damages because of "bodily injury", "property
damage" or "personal and advertising injury"
to which this insurance applies are alleged.
"Suit" includes:
a. An arbitration proceeding in which such
damages are claimed and to which the
insured must submit or does submit with
our consent; or
b. Any other alternative dispute resolution
proceeding in which such damages are
claimed and to which the insured submits
with our consent.
22. "Temporary worker" means a person who is
furnished to you to substitute for a permanent
"employee" on leave or to meet seasonal or
short-term workload conditions.
23. "Volunteer worker'' means a person who:
a. Is not your "employee";
DocuSign Envelope ID: 24B7A146-528A-48FB-9CC4-26DD6CE71499
BUSINESS LIABILITY COVERAGE FORM
b. Donates his or her work;
c. Acts at the direction of and within the
scope of duties determined by you; and
d. Is not paid a fee, salary or other
compensation by you or anyone else for
their work performed for you.
24. "Your product":
a. Means:
(1) Any goods or products, other than real
property, manufactured, sold, handled,
distributed or disposed of by:
(a) You;
(b) Others trading under your name;
or
(c) A person or organization whose
business or assets you have
acquired; and
(2) Containers (other than vehicles),
equipment
with such
materials, parts or
furnished in connection
goods or products.
b. Includes:
(1) Warranties or representations made at
any time with respect to the fitness,
quality, durability, performance or use
of "your product"; and
(2) The providing of or failure to provide
warnings or instructions.
c. Does not include vending machines or
other property rented to or located for the
use of others but not sold.
25. "Your work":
a. Means:
(1) Work or operations performed by you
or on your behalf; and
(2) Materials, parts or equipment
furnished in connection with such work
or operations.
b. Includes:
(1) Warranties or representations made at
any time with respect to the fitness,
quality, durability, performance or use
of "your work"; and
(2) The providing of or failure to provide
warnings or instructions.
Form SS 00 08 04 05 Page 124
SECOND AMENDMENT TO AGREEMENT FOR CONSULTANT SERVICES
THIS SECOND AMENDMENT AGREEMENT is dated for identification this 1ST day of August 2021 and is made by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and Mintier Harnish, LP, (“Consultant”), whose address is 1415 20th Street, Sacramento, CA 95811. This Agreement is made with reference to the following facts.
RECITALS
A. The Town and Consultant entered into an Agreement dated July 9, 2018 to provide Consultant Services for preparation of the General Plan update and Environmental Impact Report (Exhibit A).
B. The Town and Consultant entered into a First Amendment Agreement dated August 1, 2020 to extend the term to July 31, 2021.
C. The Town desires to extend the Agreement to March 31, 2022.
AMENDMENT
1. Time of Performance of the Second Amendment Agreement is hereby amended to provide that the term of the Agreement is for the period of August 1, 2021 through March 31, 2022.
2. All other terms and conditions of the Agreement dated July 9, 2018, remain in full force and effect.
IN WITNESS WHEREOF, the Town and Consultant have executed this Second Amendment Agreement as of the date indicated above.
Town of Los Gatos: Consultant:
_____________________________
Jim Harnish,
Mintier Harnish, LP
__________________ͺͺ_______ͺͺͺͺ____
Laurel Prevetti͕Town Manager
Department Approval:
________________________ͺͺͺͺͺͺ_____ Joel Paulson͕ Community Development Director
Approved as to Form:
________________ͺͺͺͺͺͺ_____________
Robert Schultz͕Town Attorney
Attest:
_______________________ͺͺͺͺͺͺ______
Shelley Neis, MMC, CPMC, Town Clerk
jim harnish (Aug 20, 2021 14:30 PDT)
jim harnish
ATTACHMENT 3
PREPARED BY: Joel Paulson
Community Development Director
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director
ϭϭϬ
͘DĂŝŶ^ƚƌĞĞƚ>ŽƐ'ĂƚŽƐ͕ϵϱϬϯϬභ;ϰϬϴͿϯϱϰ-ϲϴϯϮ
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 08/17/2021
ITEM NO:
DATE: August 6͕ϮϬϮϭ
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Authorize the Town Manager to execute a Second Amendment to an Agreement for Consultant Services with Mintier Harnish for preparation of the General Plan update and Environmental Impact Report ;
/ZͿ.
RECOMMENDATION:
Authorize the Town Manager to execute a Second Amendment to an Agreement for Consultant Services with Mintier Harnish for preparation of the General Plan update and Environmental Impact Report ; /ZͿ.
BACKGROUND:
On :ƵůLJϵ͕ϮϬϭϴ, the Town Council authorized the Town Manager to enter into an Agreement with Mintier Harnish for the preparation of the General Plan update and EIR. The term of the original Agreement that was executed had an expiration date of :ƵůLJϯϭ͕ϮϬϮϬ
On ƵŐƵƐƚϭ͕ϮϬϮϬ the Town approved a First Amendment to an Agreement to extend the term expiration to :ƵůLJϯϭ͕ϮϬϮϭ.
DISCUSSION:
The General Plan update and EIR have not been considered by the Planning Commission or Town Council.
Therefore, staff is requesting that the term expiration be extended to DĂƌĐŚϯϭ͕ϮϬϮϮ͘ CONCLUSION:
Staff recommends that the Town Council authorize the Town Manager to excecute a Second Amendment to an AŐƌĞĞŵĞŶƚ;ƚƚĂĐŚŵĞŶƚϭͿǁŝƚŚDŝŶƚŝĞƌ,ĂƌŶŝƐŚ so the General Plan update and EIR processes can be completed.
COORDINATION:
PAGE 2 OF 2
SUBJECT: Mintier Harnish
DATE: August 5, 2021
This report was coordinated with the Town Manager’s Office, Town Attorney’s Office, and Finance Department.
FISCAL IMPACT:
There is no Fiscal Impact as the only item being amended is the expiration of the term.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. Draft Mintier Harnish Second Amendment to an Agreement Ϯ͘ Original Agreement for Consultant Services
/,,͗Ϯϭ͘ϭϮϲ
AGR 5
IHH -
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is dated for identification this day of July 2018 and is made by and between TOWN OF LOS GATOS, a California municipal corporation, ( " Town ") and Mintier Harnish, LP, Consultant "), whose address is 1415 20th Street, Sacramento, CA 95811. This Agreement is made with reference to the following facts.
RECITALS
1. 1 Town desires to engage Consultant to provide Consultant Services for preparation of the General Plan update and Environmental Impact Report.
1. 2 Consultant represents and affirms that they are qualified and willing to perform the desired work pursuant to this Agreement
1. 3 Consultant warrants it possesses the distinct professional skills, qualifications, experience, and resources necessary to timely perform the services described in this Agreement.
Consultant acknowledges Town has relied upon these warranties to retain Consultant.
II. AGREEMENTS
2. 1 Scope of Services. Consultant shall provide the services as described in the Scope of Services attached as Exhibit A -1 and the schedule attached as Exhibit A -2.
2. 2 Term and Time of Performance. This contract will remain in effect from the date of execution through July 31, 2020.
2. 3 Compliance with Laws. Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state, and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications, and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos.
2. 4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement.
2. 5 Information / Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town' s property and shall be delivered to the Town upon the completion of Consultant' s services or at the Town' s written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any
ATTACHMENT 4 Page 195
individual or organization not employed by, or under contract with, the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town' s use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town' s risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant.
2. 6 Compensation. Compensation for Consultant' s professional services shall not exceed the 1, 174, 975 inclusive of all costs. Payment shall be made against tasks at costs as set forth in Exhibit B Fee Schedule. Consultant shall be compensated for services in addition to those described in Exhibit A -1 only if Consultant and Town execute a written amendment to this Agreement describing the additional services to be performed and the compensation to be paid for such services. Fees for additional services will be allocated from the ten percent contingency identified on Exhibit B Fee Schedule.
2. 7 Flexibility. As noted in Exhibit B Fee Schedule, the distribution of hours between firms, staff categories, and tasks are an estimate. While the total costs shall not exceed amount in Section 2. 6 above, the distribution of hours /costs may vary depending on actual execution.
2. 8 Billing. Billing shall be monthly by invoice within thirty ( 30) days of the rendering of the service and shall be accompanied by a detailed explanation of the work performed, by whom, at what rate, and on what date.
Payment shall be net thirty ( 30) days. All invoices and statements to the Town shall be addressed as follows:
Invoices:
Town of Los Gatos
Attn: Accounts Payable
P. O. Box 655
Los Gatos, CA 95031 - 0655
2. 9 Availability of Records. Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant' s offices during business hours upon written request of the Town.
2. 10 Assignability and Subcontracting. The services to be performed under this Agreement are unique and personal to the Consultant. No portion of these services shall be assigned or subcontracted without the written consent of the Town.
2. 11 Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he /she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee( s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by Consultant or is based on allegations of Consultant' s negligent performance or wrongdoing.
2. 12 Conflict of Interest. Consultant understands that its professional responsibilities are solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town' s sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town' s sole discretion, sever any such employment relationship.
2. 13 Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act.
III. INSURANCE AND INDEMNIFICATION
3. 1 Minimum Scope of Insurance.
Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him /her and his /her firm to an amount not less than: one million dollars ($ 1, 000, 000) combined single limit per occurrence for bodily injury, personal injury, and property damage.
N: \ DEV\ Agreements \ Mintier Harnish \Mintier Harnish Agreement.doa
ii. Consultant agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy insuring him / her and his / her staff to an amount not less than one million dollars ($ 1, 000, 000) combined single limit per accident for bodily injury and property damage. iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences.
iv. Consultant agrees to have and maintain, for the duration of the contract, professional liability insurance in amounts not less than one million dollars 1, 000, 000) which is sufficient to insure Consultant for professional errors or omissions in the performance of the particular scope of work under this agreement.
General Liability
The Town, its officers, officials, employees, and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of Consultant; and premises owned or used by the Consultant. This requirement does not apply to the professional liability insurance required for professional errors and omissions.
The Consultant' s insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees, and volunteers. Any insurance or self- insurances maintained by the Town, its officers, officials, employees or volunteers shall be excess of the Consultant' s insurance and shall not contribute with it.
iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, officials, employees or volunteers.
iv. The Consultant' s insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer' s liability.
3. 2 All Coverages. Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty ( 30) days' prior written notice by certified mail, return receipt requested, has
N: \ DEV \ Agreements \ Mintier Harnish \ Mintier Harnish Agreement. docx
been given to the Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk.
3. 3 Workers' Compensation. Consultant shall maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town.
Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees.
3. 4
Indemnification. The Consultant shall save, keep, hold harmless, and indemnify and defend the Town its officers, agent, employees, and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant' s officers, employees, or agents or any subconsultant.
IV. GENERAL TERMS
4. 1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.
4. 2 Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara.
4.3 Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen days ( 15) written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination.
4.4 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant.
4. 5 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney' s fees, including costs of appeal.
N: \ DEV\Agreements \ Mintier Harnish \ Mintier Harnish Agreement. doa
4. 6 Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to:
To Town:
Joel Paulson
Community Development Director
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
Fax: ( 408) 354- 7593
Phone: ( 408) 354- 6879
E - mail: ipoulson @losgatosca. aov
To Consultant:
Jim Harnish
Mintier Harnish
1415 20th Street
Sacramento, CA 95811
Phone: ( 916) 446- 0522
E - mail: iim @mintierharnish. com
or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town.
4. 7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement in respect to the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings.
4.8 Entire Agreement. This Agreement, including Exhibits A -1, A -2, and B, constitutes the complete and exclusive statement of the Agreement between the Town and Consultant.
No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party.
In WITNESS WHEREOF, the Town and Consultant have executed this Agreement.
Town of os Gatos
Laurel R. Prevetti, Town Manager
Town of Los Gatos
Department Approval:
Development Director
N: \ DEV\ Agreements \ Mintier Harnish \ Mintier Harnish Agreement. do« Robert W.
Town Attc
Scope of Work
The following section provides our work program for the preparation of the Town of Los Gatos General Plan Update. This program is designed to respond to the scope items included in the Town' s Request of Proposal RFP) and provides for the formulation of a thoughtful and user - friendly General Plan and comprehensive program -level Environmental Impact Report ( EIR) that can be used to streamline subsequent project- level proposals. The work program includes appropriate technical studies and community engagement opportunities that explore issues, opportunities, and solutions to guide the community to the year 2040.
In this work program, the term " Consultants" refers to members of the Consultant Team assembled for the project.
Details on community engagement activities are described under Task H, with placeholders shown under each task to show their relationship to the overall work program.
Task A Project Initiation
During this task, the Consultants will work with Town staff to lay the foundation for the General Plan Update, including developing tools to be used throughout the Update, meeting with the General Plan Advisory Committee (GPAC), the Planning Commission, and Town Council, and initiating the community engagement program.
Task A. l Project Scoping Meeting, Kick -off Meeting, and Town Tour The Consultants will meet with Town staff to discuss expectations for the schedule, process, and work products and to refine the scope of work to address Town comments.
Following execution ofthe contract, the Consultants and Town staff will hold a project kick -off meeting. This meeting will confirm roles and responsibilities, establish communication protocols, refine and detail the project schedule based on actual start date, and discuss the initial ideas and strategies for community engagement (which will be refined and documented under Task H. 1). Immediately following the kick off, the Consultants will tour the community with Town staff to examine key issues and opportunities that will be addressed in the General Plan Update.
Task A.2 Assemble GIS Data and Prepare Base Maps
The Consultants will work with Town staff to confirm the Planning Area and gather and format information for a Geographic Information Systems (GIS) database covering the Planning Area. The Consultants will prepare base maps suitable for reports and display presentation, including establishing a uniform legend and title block.
During the project kick -off meeting (Task A.1), the Consultants will work with Town staff to identify and obtain existing GIS resources from the Town and other identified agencies with GIS data covering the Planning Area. We will develop new GIS data and maps consistent with Town protocols and data formats to ensure easy integration into the Town's information system. At the end of the project, the Consultants will provide the Town the native files of all original data as well as project- specific GIS layers modified or created by the Consultants for the General Plan Update.
Exhibit A -1
Mintier Harnish — Los Gatos General Plan Update Scope of Work 1 1
As described in Task H. 3, the Consultants will also present selected geographic data online using ESRI ArcGIS Online and /or ESRI Story Map.
Task A.3 Existing Data Collection and Compilation
Knowledge of existing conditions within the Town of Los Gatos will give the Consultants, and the community, a more thorough understanding of how the Town can move forward and what has changed since the last General Plan was prepared. At the beginning of the Update process, and prior to initiation of public engagement, the Consultants will compile (including native format files whenever possible) the following:
Applicable plans, studies, and analysis documents that currently exist within the various departments in the Town of Los Gatos that pertain to the General Plan. Documents may include, but are not limited to:
General Plan
Specific Plans
Hazard mitigation plan
Parks, open space, trails and recreation plans
Municipal Code
Any other pertinent information, documents, plans, and other items identified by Town Staff Applicable plans, studies, and analysis documents concerning Infrastructure and utilities Geographic information system ( GIS) data
Transportation plans
Pertinent information that is contained in these documents will be reviewed and used by the Consultants to develop the Existing Conditions Background Report (see Task B) that will be provided with the General Plan Update.
The Consultants will use and rely upon these existing resources to develop the General Plan and EIR information. The scope of work and budget are based on the availability and use of secondary data and the development of planning level qualitative assessments that are typical for a general plan update. This information will be supplemented with data collected by our team as described in Task B, Existing Conditions Background Report
GPAC Meeting # 1 will be held during this task to facilitate data identification and collection ( see Task H. 5).
Engagement Activities During Task A:
Task H. 1: Community Engagement Strategy
Task H. 2: Branding and Project Logo
Task H. 3: Set Up Online Engagement
Task HA: Newsletter # 1, General Plan Update Overview
Task H -5: GPAC # 1
Task H -7: Community Workshop # 1, Project Initiation
Task H. B: Joint Study Session # 1, Introduction to the General Plan Update 2 1 Scope of Work Mintier Harnish — Los Gatos General Plan Update
Products:
Kick -off Meeting Summary (digital version)
GIS Base Maps ( digital version)
The term " digital version' is used in this scope of work as the provision of deliverables in both their native format for staff use ( e.g., MS Word, MS Excel) and a PDF format that is both print ready and bookmarked for online use.
Task B Prepare Existing Conditions Background Report
During this task, the Consultants will compile information on existing conditions within the town and Planning Area organized by the topics to be covered in the General Plan Update. The Existing Conditions Background Report ( Background Report) will focus on identifying and evaluating existing conditions and future trends that will influence the development of the General Plan Update, the EIR, and the future of the community.
Task B. l Administrative Draft Background Report
The Consultants will prepare an Administrative Draft Background Report and submit it to Town staff for review and comment. The Report will highlight current conditions and trends, and identify future opportunities and constraints, which will lay the groundwork for subsequent policy development. The report will address, at a minimum, the topics described in the request for proposals ( RFP), although some reorganization and combinations are proposed.
Land Use
Population, Employment, and Housing
Circulation and Transportation
Biological Resources
Cultural Resources
Economics
Infrastructure
Public Services
Noise
Air Quality
Safety and Hazards
Geology
Hydrology and Water Quality
During this task, the Consultants will compile information on existing conditions within the Planning Area organized by the topics identified above. This assessment will not only support the development of goals, policies, and programs, but will also serve as the setting information sections in the EIR.
Compiling existing conditions information will involve reviewing existing and draft documents ( e. g., existing General Plan elements, zoning, other plans, special studies, EIRs) and contacting appropriate agencies and organizations serving the community. The Existing Conditions Report will include maps, charts, graphs, and photographs to illustrate conditions and trends in an easy -to -read format. Each topic area of the report will address the following:
Mintier Harnish— Los Gatos General Plan Update Scope of Work 1 3
Introduction to the topic;
Key terms ( as appropriate to topic);
Regulatory setting outlining key Federal, State, and local regulations and policies that are pertinent to the topic;
A summary of existing conditions and setting;
A brief description of key constraints and opportunities; and References ( i. e., document citations, websites, and personal communications).
Land Use. The Consultants will analyze the existing General Plan land uses and adopted plans that affect development in Los Gatos. The Consultant will map and analyze existing land uses based on available GIS and / or Assessor' s data and identify opportunities and constraints for future development and reuse. The Consultants will also describe regional planning efforts affecting the town.
This section will also summarize the community character of Los Gatos neighborhoods and districts and the design characteristics of each. This will include describing architectural patterns, community gateways, and major geographic features that define the character of Los Gatos.
Population, Employment, Housing, and Fiscal Stability. The Consultants will examine the demographic, employment, and market demand data for different land uses, including retail, industrial, and office development. For the demographic information, the Consultants will use a combination of primary data from the U. S. Census of Population, the American Community Survey, the Local Employment Dynamics database, Association of Bay Area Governments ( ABAG), and the California Department of Finance. This data, supplemented by information provided by Town staff, will include measures and trends such as population, housing characteristics, income distribution, educational attainment, ethnicity, commute patterns, and tenure.
We will prepare an overview of economic characteristics and analyze the recent employment trends to verify the leading sectors in the Los Gatos economic base. This analysis will address the types of office and light industrial uses that may be attracted to Los Gatos. For the local demand component, the Consultants will analyze the retail market in Los Gatos, including household demand, business -to- business transactions, and visitor spending. Using sales data provided by the Town sales tax audit firm, we will prepare the retail leakage analysis and provide recommendations on potential commercial development opportunities. We will also prepare a projection of future market growth for Los Gatos based on anticipated household growth and trends in the regional market area. Based on this analysis, the Consultants will develop recommendations for strategic actions and policies to help support the town' s retail sector and address potential market threats related to changing market conditions.
The Consultants will also look at the current job- housing balance and use the labor force data and commute patterns to assess housing needs. We will look at how the existing labor force patterns compare with the employment base. The distribution of occupational employment and labor force by occupation can serve as an indicator for the types of housing that the labor force and job base will demand. The Consultants will also identify the existing service levels for various institutions in Los Gatos, such as education and health care facilities, and compare them with other communities. This will help assess future needs, based on population and / or employment growth.
4 1 Scope of Work Mintier Harnish — Los Gatos General Plan Update
Based on the market analysis above and factoring in the potential supply of land for different uses employment - generating and residential), we will produce a market projection that addresses future demand for different land uses, as well as forecasts that will identify a range of potential needs for different types of spaces.
The Consultants will also prepare an analysis of the Town budget and how land uses affect Town revenues and costs. This will provide a foundation for later fiscal analysis of land use alternatives or changes in development capacity through the General Plan process.
Circulation and Transportation ( Mobility). The Consultants will compile data and information on the existing transportation system, including roadways, transit services, and bicycle and pedestrian facilities. The Consultants will prepare a detailed description accompanied with maps and graphics illustrating the roadway system, bicycle and pedestrian facilities, peak hour traffic counts, pedestrian / bicycle counts, and transit routes / stops. We will use available Census and travel survey data to describe the travel behavior of Los Gatos residents and employees. Federal, State, regional, and local regulations pertaining to multimodal circulation in Los Gatos.
The Consultants will review collision data available through the California Highway Patrol' s SWITRS reports to identify specific " hot spots' that have experienced high rates of automobile, pedestrian, and /or bicyclist collisions.
The Consultants will determine existing intersection levels of service using the collected traffic volume data, intersection geometric configurations, and signal phasing (to be provided by the Town). The Consultants will conduct weekday AM and PM peak period traffic counts (vehicles, bikes, and pedestrians) for 10 key study intersections and 24 -hour counts on 20 roadway segments (for informational purposes). We will develop the exact list of locations in cooperation with Town staff. To represent typical conditions, we will collect all data during a typical non - holiday weekday and while local schools are in session.
Using transit ridership data from VTA and input from Town staff, we will map key transit trip origins and destinations and used to assess connectivity of transit service. Transit operations will include the peak load factors for bus routes serving Los Gatos.
We will map key pedestrian and bicycle origins and destinations to assess the pedestrian and bicycle network completeness. We will identify gaps in the pedestrian and bicycle networks.
Biological Resources. The Consultant will summarize sensitive habitats, principal vegetation cover types, and special- status and endangered species. This will include primary source material from the Santa Clara Valley Habitat Plan, supplemented with limited windshield surveys and review of existing biology studies completed for the town.
Cultural Resources. The Consultant will summarize historic structures and locations and conduct archeological sensitivity analyses for both prehistoric and historic sites using records maintained at the regional information center and in published research papers. The Consultant will ensure that appropriate individuals are contacted with the surrounding Native American Tribes to ensure sensitive cultural resources are documented appropriately. This section will include areas for the protection of cultural resources consistent with recent State mandates ( SB 18).
Economics. See Economics, Population, Employment, and Housing description, above.
Mintier Harnish — Los Gatos General Plan Update Scope of Work 1 5
Public Facilities, Services, and Infrastructure. The Consultant will summarize infrastructure, resources, services, and facilities related to: water supply and delivery, wastewater collection and disposal, stormwater drainage, solid waste and recycling, energy and telecommunications, law enforcement, fire protection, health care, schools and education, and government services. For each of the topical areas described, the Consultant will identify planned facility improvements and estimate future demands based on projected development compared to available capacity and planned improvements, identifying potential facility and /or service shortfalls. The Consultant will also assess if the General Plan must include information related to recent State mandates that require cities to identify service needs for unincorporated disadvantaged communities ( SB 244).
Noise. The Consultant will review existing noise data, including recent EIRs and studies, and summarize the existing noise environment in Los Gatos resulting from major roadways and highways, and stationary noise sources and activities. The Consultant will also document existing noise - sensitive areas and sites. The Consultant will also summarize current information on ground vibration. The Consultant will also update existing noise contours based on the data collected during the noise monitoring survey and traffic data developed / collected.
Air Quality. The Consultant will summarize existing air quality conditions within Los Gatos and the nearby vicinity. This will specifically include the location of existing sensitive receptors and emission sources, existing mass emissions, ambient air quality concentration data from the most applicable monitoring station( s), attainment designations, and natural factors that relate to the transport and dispersion of air pollutants. This summary will include applicable Federal, State, and local regulations, as well as thresholds of significance recommended by Bay Area Air Quality Management District ( BAAQMD) and rules for which compliance will be required.
Safety and Hazards ( including Geology). The Consultant will summarize existing natural and manmade hazards. As part of this evaluation, the Consultant will summarize the geological environment and associated hazards. This section will address Seismic Hazard Zones ( i. e., Seismic Hazards Mapping Act of 1990 and the Alquist - Priolo Earthquake Fault Zoning Act of 1972) and soil strength properties. The Consultant will describe major creeks, streams, and drainages, and will summarize the latest FEMA floodplain mapping to illustrate potential safety and development constraints. The Consultant will summarize urban and wildland fire risks, fire hazard risk areas, and fire protection resources. The Consultant will also summarize major users and producers of hazardous materials within or adjacent to the Town.
Hydrology and Water Quality. The Consultant will summarize sources of groundwater and surface water, water consumption rates, measures used to conserve water, and renewable water facilities and resources.
This section will document potential pollution sources, areas susceptible to water quality degradation, and source issues and capacity constraints.
Greenhouse Gas Emissions and Climate Change Adaptation. The Consultants will prepare a climate change background report and existing GHG inventory that includes a discussion of climate change and how the General Plan Update should address this issue, including both the reduction of GHG emissions and climate change vulnerability and adaptation. The report will briefly summarize relevant background information regarding these topics and lay out a framework for the General Plan Update to address climate change, including how the General Plan can implement the existing Sustainability Plan ( 2012) to serve as a " plan for the reduction of GHG emission" to achieve streamlining benefits per Section 15183.5 of the State CEQA Guidelines.
6 1 Scope of Work Mintier Harnish — Los Gatos General Plan Update
GHG Emissions. The Consultants will summarize relevant legislation and guidance regarding preparation of a GHG reduction strategy or climate action plan, including the five -step process of preparing an inventory ( updates since the 2012 inventory was conducted) and forecasts ( including through 2030 and the General Plan horizon year), setting new GHG targets, and developing updated and /or new GHG reduction measures.
The Consultants will also prepare an inventory of recent annual GHG emissions for communitywide activities within Los Gatos, building off of the data contained in the 2012 Sustainability Plan, using information provided by the Town, energy utilities, the traffic consultant, and other sources such as Plan Bay Area or other regional planning documents. The Consultants will prepare the inventory in accordance with established GHG inventory protocols that are appropriate for local municipalities ( e.g., Local Government Operations Protocol [ LGOP] and ICLEI Communitywide Protocol). The inventory will be focused primarily on emissions that are within the Town' s jurisdictional control or influence. The inventory will not attempt to quantify emissions that are outside the scope of the effort, such as lifecycle / carbon footprint analysis or changes in carbon sequestration or storage in natural or working lands. The inventory will serve as the reference point from which emissions forecasts and reduction targets can be prepared during later phases of the project.
Climate Change Adaptation. The Consultants will prepare a communitywide, planning -level climate change vulnerability assessment, using tools and methods established by the Governor' s Office of Planning and Research ( OPR), the California Natural Resources Agency (CNRA), and the California Energy Commission (CEC), including the Cal -Adapt web -based tool, the Adaptation Planning Guide, the 2017 General Plan Guidelines, and other resources. The assessment will examine the adverse effects of climate change relevant to Los Gatos, building on townwide work already completed as part of the Sustainability Plan and existing policies / programs contained in the existing Environment and Sustainability Element. Key issues that will be addressed include extreme heat, changes in precipitation and drought, increased risk of flooding and wildfire, and other impacts. The assessment will help inform SB 379 adaptation measures to be included in the General Plan Policy Document.
Healthy Communities. The Healthy Communities chapter will examine public health challenges facing Los Gatos and identify opportunities for improving health and well -being of residents though a variety of land use, transportation, and other built environment strategies. Our analyses will shed light on key public health issues impacted by the built environment including: obesity, chronic diseases, lack of physical activity and unhealthy eating, injuries, asthma, and health disparities. The Consultant will look at the impact of these issues on special populations such as children, youth, and seniors. The Consultant will also identify a set of healthy community indicators that will be used to describe community factors in Los Gatos that support or act as barriers to active and healthy lifestyles. The Consultant will use GIS maps and graphics to present these findings and illustrate the local " place- health" connections.
Environmental Justice. Community health, environmental justice, and social equity are emerging as important issues that communities are addressing in general plans. SB 1000 requires jurisdictions that have disadvantaged communities to adopt an environmental justice ( EJ) element or incorporate EJ policies into their general plans. Based on a review of CalEnviroscreen 3. 0, which is considered the default tool used to identify disadvantaged communities, there are not currently any areas identified that would require special treatment as part of the General Plan Update, but this fact will be documented as part of the Background Report.
Mintier Harnish — Los Gatos General Plan Update Scope of Work 1 7
Task B. 2 Public Draft Background Report
Following review by Town staff, the Consultants will revise the Background Report and provide a Public Draft document for review with the GPAC, the Planning Commission, Town Council, and community (see Tasks 1- 1. 9and H. 11).
Task B. 3 General Plan Audit Report
An initial step in the update of the General Plan will be an assessment ( audit) of the current General Plan.
This assessment will look at the current plan and revisions and additions needed to address changes in State law, the new 2017 OPR General Plan Guidelines, and contemporary planning practice and content.
In addition to meeting current requirements and planning practice, we will also work with Town staff to evaluate the existing General Plan to determine what works, what does not work, and where the plan is not providing adequate or current guidance. This will be done using our proprietary General Plan Evaluation Tool.
This Tool provides insights on the existing General Plan clarity; linkages to other plans; progress in achieving desired outcomes; and whether goals, policies, and actions should be carried forward, modified, or removed.
The results of this review will be documented in a General Plan Audit Report.
Engagement Activities During Task 8:
Task H. 3: Online Existing Conditions Story Map (digital version) Task H. 9: GPAC Meeting #2, Review Existing Conditions Report Task H. 10: Newsletter #2, Existing Conditions and Trends Task H. 11: Joint Study Session # 2, Review Existing Conditions Report Products:
Administrative Draft Background Report (8 hard copies and digital version) Public Draft Background Report ( 30 hard copies, CD, and digital version) General Plan Audit Report (digital version)
Task C Identify Issues, Opportunities, and Constraints
The objective of this task will be to work with the community on the identification of the issues, opportunities, and constraints that should be addressed as part of the General Plan Update. The items to be addressed will be identified by:
Items identified by the Town Council for the Update ( RFP page 3) Findings from the Background Report and technical input from the Consultants Input from the community (Community Workshop #2)
Input from stakeholder interviews
Updated input from the Town Council and Planning Commission 8 1 Scope of Work Mintier Harnish — Los Gatos General Plan Update
Task C. l Administrative Draft Issues, Opportunities, and Constraints Summary
The Consultants will summarize the key issues, opportunities, and constraints identified based on the findings in the Draft Background Report, input from community workshops, stakeholder interviews, and Joint Town Council / Planning Commission study sessions.
Task C.2 Public Draft Issues, Opportunities, and Constraints Summary Following review by Town staff, the Consultants will revise the Administrative Draft and prepare a Public Draft Issues, Opportunities, and Constraints Summary for review with the GPAC, the Planning Commission, Town Council, and community ( Tasks H. 12, H. 13, and H. 14).
Task C.3 Final Issues, Opportunities, and Constraints Summary Following review by the Town Council and Planning Commission, the Consultants will revise the document and prepare a final Issues, Opportunities, and Constraints Summary.
Engagement Activities During Task C:
Task H. 12: Community Workshop #2, Issues, Opportunities, and Constraints Identification Task H. 13: GPAC Meeting # 3, Review Issues, Opportunities, and Constraints Report Task H. 14: Joint Study Session #3, Review Issues, Opportunities, and Constraints Report Products:
Administrative Draft Issues, Opportunities, and Constraints Report (digital version) Public Draft Issues, Opportunities, and Constraints Report ( 30 hard copies, digital version) Final Issues, Opportunities, and Constraints Report ( digital version) Task D Development of a General Plan Vision
A General Plan vision statement and guiding principles are intended to reflect what community members value most about their community and the shared aspirations of what they envision their community being in the future. The vision statement should be inspirational and set the key values and aspirations for the General Plan' s guiding principles, goals, policies, and implementation measures. The guiding principles should provide more specific guidance that provides the fundamental rules or doctrine that the Town will use to guide General Plan goals, policies, and implementation measures.
During this task, the Los Gatos Vision Statement and Guiding Principles will be developed to guide the preparation of the General Plan Update.
Task D. l Administrative Draft Vision and Guiding Principles The Consultants will prepare the Administrative Draft Vision Statement that represents the ideal future for the community and a set of Guiding Principles that support the Vision and represent the Town' s core values.
We will base the Vision and Guiding Principles on public input gathered at the stakeholder interviews, community workshops, GPAC meetings, and Town Council /Planning Commission study sessions, as well as input from Town staff.
Mintier Harnish — Los Gatos General Plan Update Scope of Work 1 9
Task D. 2 Public Draft Vision and Guiding Principles
Following review by Town staff, the Consultants will revise the Administrative Draft and prepare a Public Draft Vision and Guiding Principles for review with the GPAC, the Planning Commission, Town Council, and community ( Tasks H. 15, H. 16, and H. 17).
Task D. 3 Final Vision and Guiding Principles
Following review by the Town Council and Planning Commission, the Consultants will revise the document and prepare the final Vision and Guiding Principles that the Town will use to guide development of the General Plan Update.
Engagement Activities During Task D:
Task H. 15: Community Workshop #3, Vision and Guiding Principles Task H. 16: GPAC Meeting #4, Review Draft Vision and Guiding Principles Task H. 17: Joint Study Session # 4, Vision and Guiding Principles Products:
Administrative Draft Vision and Guiding Principles (digital version) Public Draft Vision and Guiding Principles ( 30 hard copies, digital version) Final Vision and Guiding Principles ( digital version)
Task E Development of Alternatives
During this task, the Consultants will work with Town staff and the community to prepare, evaluate, and ultimately define a preferred policy and land use alternative that will be the basis of the General Plan Update.
This task involves developing alternative scenarios for special planning areas and other key locations in the community and evaluating the implications of each alternative. We will also evaluate each alternative based on responsiveness to the key issues, opportunities, and constraints ( from Task C) and the Vision and Guiding Principles developed in Task D.
Task E. 1 Administrative Draft Alternatives Report
Based on inputs received from the community as well as ideas from the Consultant team, the Consultants will prepare an Administrative Draft Alternatives Report for review by Town staff and the GPAC. This Report will contain a mix of land use and circulation alternatives as well as key policy alternatives. Based on the RFP, the land use and circulation alternatives may potentially address: land use mix, development options for key sites, approaches to commercial corridors, circulation options, and interactions between land use and transportation systems.
The Alternatives Report will include maps and descriptions for land use, circulation, and policy alternatives that cover each of the areas and topics identified earlier. We will group location - specific alternatives into alternative packages that achieve the Vision and Guiding Principles. The assessment conducted will include an evaluation of alternatives in terms of implications for land use and community character, economic development, fiscal health, mobility and connectivity, public facilities and services, and the natural environment. For each policy alternative, the Consultants will identify the issues for which there is clear policy choice and direction, as well as issues where choice and direction is not as clear. We will complete a 10 1 Scope of Work Mintier Harnish — Los Gatos General Plan Update
qualitative comparative assessment of the policy implications of each alternative based on clarity and congruence with key issues.
The Consultants will prepare an Alternatives Report that clearly communicates the potential implications of each alternative, supporting a more informed choice. We will base the assessment of each alternative choice primarily on a qualitative look at factors that can be used to differentiate the alternatives and their potential impacts on the community relative to achieving the Vision and Guiding Principles. There are two areas where we will provide more quantifiable information: fiscal impacts and the transportation system.
The work done at this stage is designed to help the community evaluate the alternatives presented and is not intended to be a full CEQA alternatives analysis ( which will be performed as part of a later task).
SubtaskEla Fiscal Impact Analysis
The Consultants will prepare an analysis of the fiscal and economic impact of proposed land use changes being considered as part of the General Plan Update. This may be in the form of an alternatives analysis or an analysis of the preferred land use plan, as needed in the overall process. The fiscal analysis will project Town tax revenues and other revenues normally affected by growth in population, jobs, and development. The Consultants will estimate the increases in service capacity needed to support the proposed growth levels or from changes in the land use mix. The fiscal model allows us to evaluate land uses separately to assist in identifying an optimal land use mix from the standpoint of generating sufficient tax base to support Town services.
Subtask E. Ib Transportation System Alternatives
The Consultants will develop trip generation and VMT estimates using our MainStreet tool for each of the land use alternatives. These trip generation and VMT estimates will be used in the selection of the preferred alternative. The Consultants will also provide qualitative assessments of each alternative using criteria developed in concert with Town staff to reflect Los Gatos community values. They may include items such as the availability of transportation services, the potential to increase traffic congestion, and the potential to reduce average VMT.
Task E. 2 Public Draft Alternatives Report
Following review by Town staff, the Consultants will revise the Administrative Draft and prepare a Public Draft Alternatives Report for review with the GPAC, Planning Commission, Town Council, and community Tasks H. 19, H. 20, H. 21, and H. 22).
Engagement Activities During Task E:
Task H. 18: Newsletter # 3: Alternatives
Task H. 19: Community Workshop #4, Alternative Choices
Task H. 20: GPAC Meeting #5, Review Draft Alternatives Report Task H. 21: Planning Commission Study Session # 5, Alternatives Report Task H. 22: Town Council Study Session # 5, Alternatives Report Products:
Administrative Draft Alternatives Report ( digital version) Public Draft Alternatives Report ( 30 hard copies and digital version) Mintier Harnish — Los Gatos General Plan Update Scope of Work 1 11
Task F General Plan Goals and Policy Development
Based on the extensive work resulting from the Background Report, technical studies, visioning, and alternatives planning in previous tasks, the Consultants will prepare the draft General Plan. The Consultants will prepare a General Plan document that is attractive, contemporary, and user - friendly, using extensive photos, illustrations, and maps. We are also proposing to include the development of a web -based General Plan at the end of the project.
Task F. 1 Administrative Draft General Plan
For the Update, the Consultants will address all the requirements of State law, such as complete streets, flood risk reduction, and environmental justice, using the 2017 OPR General Plan Guidelines as a guide. The Plan will reflect best practices for addressing contemporary planning issues, such as retail trends, transportation technology, and community health. It is expected that the cross - cutting topics of climate change, sustainability, resiliency, and healthy communities would be themes addressed throughout the Plan, rather than separate, standalone elements; however, we will discuss options with Town staff.
The General Plan will include an Introduction and Table of Contents, and at a minimum, will update the content of the elements that make up the current Los Gatos General Plan:
Land Use Element;
Community Design;
Transportation Element ( Circulation);
Vasona Light Rail Element;
Open Space, Parks, and Recreation Element ( Open Space); Environment and Sustainability Element ( Conservation); Noise Element;
Safety Element; and
Human Services Element.
Prior to the start of this task, and considering the results of the General Plan Audit conducted earlier, the Consultants will work with Town staff to determine the outline ( framework) for the General Plan Update. To support this, the Consultants will review with Town staff a selection of plan formats that could be used. This could include the combination of existing elements or the addition of new elements to meet current and projected needs.
As part of this task, the Consultants will develop policies and programs to reduce GHG emissions as part of an integrated GHG reduction strategy.
The current Housing Element will be integrated into the General Plan Update when the final documents are prepared at the end of the project. The Town' s current Housing Element will not be updated as part of this project.
Implementation Strategy
The Consultants will prepare a comprehensive implementation strategy that includes discrete, tangible actions the Town will undertake to implement the goals and policies. The Consultants will also review current implementation ordinances / regulations ( e. g., zoning, subdivision, historic preservation, public arts, and other 12 1 Scope of Work Mintier Harnish— Los Gatos General Plan Update
implementing ordinances) and include recommendations as a part of the implementation programs for ordinance revisions needed to maintain consistency with the General Plan.
As part of the Update, the Consultants will review and develop new objective standards that provide clear direction on application and intent.
Task F. 2 Administrative Draft Land Use and Circulation Diagrams The Consultants will prepare an updated General Plan ( Land Use) Diagram and Circulation Diagram as part of the Administrative Draft General Plan. We will update the Land Use Diagram with any changes made to the designations and locations they apply based on the preferred alternative. For the Circulation Diagram, we could use VN1Tto develop roadway standards instead of or in addition to LOS standards ( as desired).
Task F. 3 Preliminary Draft General Plan
Based on direction from Town staff, the Consultants will revise the Administrative Draft General Plan and prepare a Preliminary Draft General Plan for review and confirmation by the GPAC, Planning Commission, and Town Council. We recommend this review to confirm direction on changes to the General Plan before preparation of the EIR ( see Task H. 23 and H. 24). This approach helps reduce the potential for major changes to the Plan during or after the environmental review process.
Task F. 4 Public Draft General Plan
Based on direction from the Town Council, the Consultants will prepare the Public Draft General Plan for publication and environmental review.
Task F. 5 General Plan Consultation and Referrals
State law requires consultation with a variety of Federal, State, regional, and local agencies whenever a jurisdiction updates or amends its general plan. These statutes are located throughout the Government Code and have varying requirements for when draft and final documents must be submitted and how long agencies have to review and provide comments. We maintain a checklist of agency consultation requirements that we will use to ensure the Town provides the Public Draft General Plan to the appropriate agencies.
Engagement Activities During Task F:
Task H.23: GPAC # 6
Task H. 24: Joint Study Sessions # 5, # 6, and # 7
Task H.25: Newsletter #4, Draft General Plan
Task H.26: Community Workshop #5, Draft General Plan
Products:
Administrative Draft General Plan ( digital version)
Administrative Draft Land Use and Circulation Diagrams ( digital version) Preliminary Draft General Plan ( 30 hard copies, digital version) Public Draft General Plan ( 30 hard copies, CD, digital version) Mintier Harnish — Los Gatos General Plan Update Scope of Work 1 13
Task G Environmental Impact Report
Based on review of the RFP and our experience preparing General Plan EIRs, we recommend the preparation of a Program EIR pursuant to State CEQA Guidelines Section 15168. Although the legally- required contents of a Program EIR are technically the same as those of a Project EIR, Program EIRs are by necessity more general and may contain a broader discussion of impacts, alternatives, and mitigation measures than a Project EIR.
Use of a Program EIR provides the Town with the opportunity to consider broad policy alternatives and program -wide mitigation measures and greater flexibility to address environmental issues and /or cumulative impacts on a comprehensive basis. Once a Program EIR has been certified, subsequent activities within the program may be evaluated to determine what, if any, additional CEQA documentation needs to be prepared.
If the Program EIR addresses the program' s effects as specifically and comprehensively as possible, many subsequent activities could be found to be consistent with the Program EIR mitigation parameters and additional environmental documentation may not be required (CEQA Guidelines Section 15168(c)). In this case, the Program EIR serves a valuable purpose as the first -tier environmental analysis that will assist in streamlining and possibly exempting future projects from CEQA with the idea that the General Plan Program EIR can be used for such exemptions when projects are consistent with the General Plan Update.
Task G. l Staff Work Session on Program EIR Preparation The consultants will facilitate a work session with Town staff on preparing the Program EIR and completing the adoption process. The session, often referred to as a CEQA kickoff meeting, will cover the following topics:
Evaluating Environmental Impacts
Strategies for CEQA compliance
Coordination of environmental document with general plan preparation Developing a reasonable range of alternatives
Using new or revised policies as mitigation measures
GHG gap analysis
Completing the Process
Agency consultation
Public notice
Hearings
Adoption
Final documents
Task G. 2 Notice of Preparation
The Consultants will work with Town staff to develop a project description and will prepare a draft Notice of Preparation ( NOP) for Town staff to review. The NOP is intended to alert other public agencies about the undertaking, and to solicit their input on the scope of the study. The Consultants will submit a final PDF copy of the NOP to Town staff for posting on its website and for distribution to public agencies. It is assumed that the Town will distribute the NOP using the Town's NOP distribution list. The Consultants will review and make suggestions regarding the list. The Consultants will be responsible for filing the NOP with the State Clearinghouse / OPR.
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Task G. 3 Scoping Meeting
The Consultants will facilitate a public and agency scoping meeting associated with the release of the NOP.
The Scoping Meeting will be held during the 30 -day NOP period to introduce the community to the EIR process and obtain input on the Program EIR scope of work. It will include a brief presentation, followed by public comment and input from meeting attendees. The Consultants will prepare a summary of all input gathered, which will be included in the Draft Program EIR along with any written public comments received during the NOP comment period.
Task GA Administrative Draft Program EIR
The Consultants will prepare an Administrative Draft Program EIR ( ADPEIR) in compliance with CEQA requirements using information gathered as part of the General Plan update effort and comments on the NOP, as well as information from other relevant CECA documents completed by the Town in recent years.
The Consultants will be responsible for development of a legally- adequate and appropriate Program EIR for the General Plan.
The Consultants will prepare the ADPEIR based on the project description approved by the Town Council. The description of the environmental and regulatory setting for the General Plan EIR will be based on the Background Reports prepared for the project (see Task B), and information from other relevant CEQA documents completed by the Town in recent years, as well as any information received during the General Plan Update process. Materials will be presented in a user - friendly format.
We will introduce each topical section in the environmental analysis with a brief statement of its context in the ADPEIR and the development of the General Plan. This effort may include interpretive information for the reader to better understand how the General Plan affects the environment, as well as the sources of data used in the analysis.
The setting for each topical section will describe existing conditions relevant to the topic and provide the groundwork for impact analysis. The number of impacts to be analyzed and the depth of analysis will be determined based on areas of concern identified by the Consultants and Town staff, as well as responses to the NOP. Thresholds used to determine the significance of project impacts will be clearly stated and will include thresholds in the CECA Guidelines, Appendix G, as well as existing regulatory standards, if applicable.
Impacts will be identified, and mitigation measures will be prepared, to reduce significant impacts to a less - than- significant level, when feasible. For each potentially significant impact identified in the ADPEIR, the Consultants will identify mitigation measures or policy statements proposed by the Town as part of the General Plan Update to avoid or reduce identified impacts. Mitigation measures will be constructed as policy statements or implementation measures to facilitate incorporation into the General Plan Update.
In order to prepare an ADPEIR that meets the needs of the Town and regulatory requirements of the State, the ADPEIR will comprise the following sections:
Executive Summary. This section will provide a summary of the entire ADPEIR and include the following:
a discussion of the project objectives;
a brief description of the proposed project;
a summary of the environmental setting for the Planning Area; a summary of impacts;
Mintier Harnish — Los Gatos General Plan Update Scope of Work 115
a summary of mitigation measures ( mitigating policies or programs); a discussion of alternatives considered; and
areas of controversy, and issues remaining to be resolved.
Introduction. The ADPEIR will contain an introductory chapter that provides an overview of the project and context, summarizes CEQA requirements and the environmental review process, describes the legal purpose of the ADPEIR, outlines the environmental issues being addressed, and presents the organization of the report.
Project Description and Environmental Setting. This section will contain the Town' s objectives for the General Plan and a summary of the General Plan components. It will also outline the Planning Area boundaries and summarize existing conditions and new land uses proposed as a part of the project. We will describe the information in a mix of text, tabular, and graphic form ( i. e., maps and diagrams).
Analysis, Impacts, and Mitigation Measures. The environmental analysis section will include four main components:
Setting— description of current conditions with respect to the issue in question, including the existing regulatory environment
Impact analysis — statement of significance thresholds and discussion of potentially significant effects of the proposed project
Programmatic mitigation measures — methods by which significant effects can be reduced or eliminated, often presented as General Plan policies to be introduced back into the plan Level of significance after mitigation— discussion of whether proposed mitigation measures reduce impacts to below the adopted significance threshold We will consider adverse impacts that meet or exceed significance thresholds significant. Additionally, all impacts will be characterized in terms of short- or long -term effects and presented in a logical discussion that the public can understand. We will discuss any inconsistencies with local or regional plans.
We will discuss approaches to the impact analysis for the Program EIR with Town staff and will be consistent with the assumptions and methodologies used in recent Town - certified EIRs to the extent possible. In general, the impact analysis will focus on the issues present in the Planning Area and likely to be affected or impacted by the General Plan Update. Some issues, such as agriculture and mineral resources may not require a detailed analysis relative to other issues because they do not occur in Los Gatos or would be unaffected by the project.
Issues to be analyzed in a programmatic framework will include:
Aesthetics
Agriculture
Air Quality
Biological Resources
Cultural Resources
Geology and Soils
Greenhouse Gas Emissions
Hazards and Hazardous Materials
16 1 Scope of Work Mintier Harnish — Los Gatos General Plan Update
Hydrology and Water Quality
Land Use and Planning
Mineral Resources
Noise
Population and Housing
Public Services
Recreation
Transportation and Traffic
Tribal Resources
Utilities and Service Systems
All the mandatory CEQA sections including energy and growth inducement Greenhouse Gas Emissions Analysis
The Consultants will conduct necessary analysis to address CEQA Guidelines Section 15064. 4. The Consultants will prepare the GHG section of the ADPEIR addressing the contribution of GHG emissions generated by buildout of the General Plan and their contribution to cumulative impacts related to climate change.
Potential impacts and mitigation measures will be coordinated with the recommended targets and GHG emission reduction potential of the updated General Plan' s policies and program.
Prepare GHG Forecasts and Reduction Targets
Based on the GHG emission inventory (conducted in Task 2.2), the Consultants will prepare GHG emissions forecasts (e.g., " business -as- usual ") for communitywide sources for two future -year scenarios: 1) without applicable legislative actions; and 2) with reductions associated with implementation of adopted Federal and State legislation ( e. g., renewable energy portfolio standards, California Green Building Code standards, vehicle emissions controls, fuel efficiency standards). The Consultants will forecast GHG emissions for 2020 consistent with AB 32), 2030 ( consistent with SB 32), and 2050 ( consistent with Executive Order B- 5- 3 -05), along with the GPU buildout year (i. e., 2040).
The Consultants will also calculate GHG reduction targets required to meet the Town' s local fair share of the State' s 2020 and 2030 GHG reduction goals in AB 32 and SB 32, per guidance from GARB in the 2017 Scoping Plan Update and the 2017 General Plan Guidelines.
Quantify GHG Reduction Measures and Perform Gap Analysis The Consultants will quantify the GHG reduction potential of proposed General Plan policies and programs and conduct a " GHG reduction gap analysis" to determine whether the proposed policies and programs in the Draft General Plan can achieve the Town' s GHG reduction targets and goals.
As part of the GHG quantification process, the Consultants will evaluate and prioritize policies and actions using the following or similar criteria:
Quantified VMT or trip reduction potential;
Quantified energy conservation or fuel savings potential; Quantified renewable energy generation potential;
Quantified water efficiency and conservation potential; Mintier Harnish — Los Gatos General Plan Update Scope of Work 1 17
Quantified solid waste reduction and recycling potential; Administrative / political responsibility and feasibility, implementation costs, possible funding sources, and public and private sector implementation partners.
We will add all information, assumptions, and target indicators used to quantify GHG emissions reductions required to meet the targets into the ADPEIR as a technical appendix, creating a single, master data -set for the GHG reduction analysis. If it is determined during preparation of the ADPEIR that the identified draft policies and program are not enough to achieve the Town' s reduction targets and goals, the Consultants will increase participation rates of GHG reduction actions or identify new potential GHG reduction policies and actions to fill the gap. If needed, revised or new policies and implementation programs will be added to the General Plan and/ or recommended as mitigation measures.
Transportation Analysis
The operations of study intersections and freeway segments on SR 17 and SR 85 will be evaluated with LOS calculations during the AM and PM peak hours for the following traffic study scenarios:
Existing Conditions
Cumulative 2040 without Project
Cumulative 2040 with Updated General Plan Land Use and Circulation Element The Consultants will use transportation forecasts from the VTA' s travel demand model to determine the growth in traffic, including regional traffic growth on SR 17 and SR 85 for a plan year (2040). We will add traffic estimates from Task 3 for the preferred land use to develop traffic forecasts for Scenario 3.
We will prepare a LOS table showing operating conditions of all study intersections for each of the study scenarios, along with " Project plus mitigated conditions" ( if mitigations required and /or are feasible). We will use the Town of Los Gatos and VTA criteria to identify significant impacts to intersections and freeway segments.
Pedestrian, Bicycle, and Transit Analysis
The Circulation Element will include improvements to pedestrian, bicycle, and transit facilities and services. If bus rapid transit (BRT) is included in the Circulation Element, we will evaluate its impact at a planning level by comparing person carrying capacities and levels of service at a few selected intersections with and without its implementation.
VMT Travel Forecast Model Runs to Support Air Quality and Noise Analyses The Consultants will use the VTA' s model to provide input for the air quality and noise analyses.
For Air Quality and Greenhouse Gas Emissions Analysis:
1. Average Daily Vehicle Trips associated with existing land uses ( 2018) in Los Gatos
2. VMT associated with existing land uses in the Los Gatos
3. Average Daily Vehicle Trips associated with 2040 without Project and with Project land uses in Los Gatos (at the planning horizon)
18 1 Scope of Work Mintier Harnish — Los Gatos General Plan Update
4. VMT associated with the 2040 without Project and with Project land uses in Los Gatos — GP Plan Year
S. VMT by I -X, X -I, I- I ( excluding X -X trips), if available For Noise Analysis:
1. Daily Segment Traffic Volumes for Existing for all segments analyzed
2. Daily Segment Traffic Volumes for 2040 without Project and 2040 GP Plan Year for all segments analyzed
3. Speed limits on the segments for existing and future time frames, if available Alternatives Analysis. We will consider a range of alternatives in the ADPEIR. State CEQA Guidelines require consideration of the " No Project" Alternative. For purposes of this Program EIR, the No Project Alternative would be a continuation of the existing General Plan without any updates or additions. In addition to the No- Project" Alternative, the Consultants will consider other alternatives ( such as alternative land use scenarios) that were developed during the General Plan Update. Evaluation of alternatives will be in less detail than that for the proposed project, though the analysis will provide decision - makers and the public adequate information to decide between alternatives. This section will also identify the " environmentally superior alternative." If the " No Project" Alternative is determined to be environmentally superior, the ADPEIR will identify the environmentally superior alternative among the remaining scenarios.
For transportation impacts, the Consultants will analyze up to two project alternatives in a qualitative manner, with a discussion of trip generation and general discussion of potential impact differences compared to the preferred land use plan.
Cumulative Impacts. We will evaluate cumulative impacts based on planning documents for the Planning Area. We will also estimate and discuss the contribution of the proposed project to the overall cumulative impacts.
Other CEQA Sections. The ADPEIR will provide, in addition to the sections discussed above, all other required CEQA sections, including areas of known controversy, growth inducement effects, energy, and significant unavoidable impacts.
Task G. 5 Staff Review / Screen Check Draft Program EIR The Consultants will incorporate Town staff input into the ADPEIR and provide Town staff with digital versions of the ADPEIR in both Word and PDF formats. Town staff will conduct one review of the ADPEIR and provide consolidated comments and edits. The Consultants will incorporate appropriate revisions and prepare a Screen Check Draft Program EIR. We will provide the Screen Check version in a digital format.
Task G. 6 Draft Program EIR
Once the Town staff approves the Screen Check Draft Program EIR, the Consultants will prepare the Draft EIR for public circulation. The Consultants will prepare and distribute the required copies of the Draft Program EIR to the State Clearinghouse, including all required accompanying forms, such as the Notice of Completion NOC). The Consultants will also file the Notice of Availability ( NOA) of the Draft Project EIR with the Santa Clara County Clerk' s office. We assume that Town staff will distribute the NOA of the Draft Program EIR to responsible agencies, and interested agencies, organizations, and persons. We also assume that the Town will be responsible for required newspaper ads and other public noticing of the document' s availability, such Mintier Harnish — Los Gatos General Plan Update Scope of Work 119
as radius label mailing or onsite posting. As required by State law, the Draft Program EIR will require at least a 45 -day public review period.
Products:
Draft and Final Notice of Preparation ( digital version and submittal of copies of the NOP with the State Clearinghouse)
Scoping Meeting Materials
Administrative Draft Program EIR ( 2 hard copies and 10 CD copies to the Town) Screen Check Draft Program EIR ( digital version)
Draft Program EIR ( 30 hard copies and 30 CD copies sent to the Town and 30 hard copies of the Executive Summary and 15 CD copies of the Draft Program EIR submitted to the State Clearinghouse, NOA submitted to the County Clerk)
Task H Engagement
Task A Engagement
The following activities will occur in conjunction with the work under Task A.
Task H. l Community Engagement Strategy
Based on input from the kick -off meeting (Task A.1), the Consultants will work with Town staff to prepare a comprehensive Community Engagement Strategy that will document the outreach methods to be used throughout the project. The Strategy will describe outreach responsibilities, publicity protocols, and how the engagement will be structured to ensure comprehensive community engagement. The Strategy will be structured to be inclusive of all those who make up the " community," including residents; workers; visitors; businesses; property owners; educational institutions; civic, community, and non - profit organizations; religious, social, cultural and ethnic communities; and public agencies. In addition to being inclusive, our goal is to create meaningful opportunities for involvement throughout the development of the Update.
Task H. 2 Branding and Project Logo
The Consultants will develop a branding package for the General Plan Update. The branding package will include a project logo and style templates that we will use for all work products, the website, and publicity materials to build enthusiasm about the project and ensure that this effort is distinct in the minds of the community. We will provide the Town with up to three options from which to choose.
Task H. 3 Set Up Online Engagement
During this task, we will design and develop a project- specific website for the Los Gatos General Plan Update.
In our work on dozens of general plan projects, we have found that having a stand alone project website, with links to and from the Town' s website, provides a responsive platform for community engagement while not adding additional work for Town staff.
The Consultants will build the website on a modern, user - friendly platform that allows quick and easy updates to the website. In addition to being an important public outreach and information tool, the website will serve as an administrative record of the project. It will include all meeting announcements / materials, draft and final documents, and meeting summaries. The website will also be used to link to online 20 1 Scope of Work Mintier Harnish — Los Gatos General Plan Update
engagement opportunities, including Engagement HQ, developed during the project. This scope of work includes all needed maintenance and updates to the website for the duration of the project.
As part of the online outreach, we propose to use the Engagement HQ software tool and online mapping using ESRI ArcGIS Online and ESRI Story Map. For more information, see " Enhanced Community Engagement Tools" inset on page 41.
Task HA Newsletter # 1, General Plan Update Overview
The Consultants will prepare a newsletter that describes what a general plan is, how and why it is being updated, the project schedule, and how the public can be involved in the update. The newsletter will be used to promote engagement opportunities.
Task H. 5 Form the General Plan Advisory Committee (GPAC), GPAC Meeting # 1
The Consultants will facilitate the first meeting of the GPAC. We will first present and get consensus on the overall GPAC meeting format, rules, and operating procedures. We will summarize the community engagement strategy and get GPAC input on strategy refinements. We will also ask the GPAC members to identify key issues they feel should be addressed during the General Plan Update.
Task H. 6 Other GPAC Meetings
Six GPAC meetings, associated with specific deliverables are detailed in the Scope of Work. Budget to cover an additional 18 GPAC meetings is included and will be placed as needed.
Task H. 7 Community Workshop # 1, Project Initiation
At the beginning ofthe process, the Consultants will conduct the first community workshop. At the Town Hall, the Consultants will provide an overview of the key steps in the General Plan Update process, the opportunities the community will have for engagement, and changes in State law /regulations and other important issues that will affect the General Plan Update. During this Town Hall, the Consultants will also conduct an exercise to start the identification of issues and opportunities that should be addressed as part of the General Plan Update.
Task H. 8 Joint Study Session # 1, Introduction to the General Plan Update
At the beginning of the process, the Consultants will facilitate a Joint Study Session with the Town Council and Planning Commission. Given the significance of the General Plan Update, it will be important for the Council and Commission to meet the Consultants early in the program and to have a clear understanding of what to expect during the process. This meeting will provide a common understanding of the need for and purpose of the General Plan, the key steps in the preparation process, the strategy for community engagement, changes in State law and regulations since the last update, and other important issues affecting the General Plan preparation process. The workshop will also help establish stronger working relationships between the Consultants and Town leaders.
Engagement Products During this Task:
Community Engagement Strategy ( digital version)
Project Logo and Design Theme Alternatives ( up to 3 alternative approaches, digital version) Project Website and Engagement HQ Site Setup
Mintier Harnish — Los Gatos General Plan Update Scope of Work 1 21
GPAC # 1 Meeting Materials and summary minutes (digital version) Newsletter # 1( 100 hard copies and digital version on website) Stakeholder Interview Summary (digital version)
Joint Study Session # 1 Meeting Materials and Summary Report (digital version) Task B Engagement
The following activities will occur in conjunction with the work under Task B.
Task H. 9 GPAC Meeting # 2, Review Background Report
The Consultants will facilitate Town staff and GPAC review of the GPAC Draft Background Report.
Task H. 10 Newsletter # 2, Existing Conditions and Trends The Consultants will prepare a newsletter summarizing key findings from the Background Report and initial outreach efforts. The newsletter will be used to characterize existing conditions and trends influencing the community and promote the online engagement opportunities.
Task HA 1 Joint Study Session # 2, Review Existing Conditions Report The Consultants will facilitate a joint study session with the Town Council and Planning Commission to present the major findings from the Public Review Draft Background Report. The Consultants will facilitate a discussion with the Council members and Commissioners about the implications of the findings on the future of the community.
Engagement Products During this Task:
GPAC Meeting #2 Materials and Summary Report (digital version) Newsletter #2 ( 100 hard copies and digital version on website) Joint Study Session # 2 Meeting Materials and Summary Report (digital version) Task C Engagement
The following activities will occur in conjunction with the work under Task C.
Task H. 12 Community Workshop # 2, Issues and Opportunities Identification
The second community workshop will be a three -part event. During the first part of the event, the Consultants will provide the community with an overview of the information developed for the Background Report. This component will highlight the existing conditions and trends that will influence the future of the community. The second part of the event will involve interactive exercises designed to gain input on the issues and opportunities that the public would like to see addressed in the General Plan Update.
From the issues and opportunities discussion, workshop participants will segue to the third part of the workshop, in which the Consultants will work with smaller groups to answer questions such as: What is unique about Los Gatos that is not found anywhere else? We will work with participants to define a list of places they like to take out -of -town visitors, places they consider " public- places" ( i. e., places where people gather), and natural or manmade features that make the community unique. 22 1 Scope of Work Mintier Harnish — Los Gatos General Plan Update
Task H. 13 GPAC Meeting # 3, Review Issues and Opportunities Report The Consultants will facilitate Town staff and GPAC review of the Administrative Draft Issues and Opportunities Report.
Task H. 14 Joint Study Session # 3, Review Issues and Opportunities Report The Consultants will facilitate a joint study session with the Town Council and Planning Commission to present the major findings from the Issues and Opportunities Report. The Consultants will facilitate a discussion with the Council members and Commissioners about the implications of the findings for new or revised General Plan policies and programs and solicit input on key issues and opportunities the Update should consider, and other interests and expectations of the Council members and Commissioners.
Engagement Products During this Task.,
Community Workshop # 2 Materials and Summary Report ( 60 printed, digital versions) GPAC Meeting # 3 Materials and Summary Report (digital version) Newsletter # 2 ( 100 hard copies and digital version on website) Joint Study Session #3 Meeting Materials and Summary Report (digital version) Task D Engagement
The following activities will occur in conjunction with the work under Task D.
Task H. 15 Community Workshop # 3, Vision and Guiding Principles The third community workshop will include several interactive visioning exercises that encourage community participation and dialogue about the future of Los Gatos. There are several options for how to structure the community workshop ( e.g., open house format or small group exercises) and which exercises to conduct. The Consultants will work with Town staff prior to the workshop to identify the format that will work best for the community.
Task H. 1 b GPAC Meeting # 4, Review Draft Vision and Guiding Principles The Consultants will facilitate Town staff and GPAC review of the Draft Vision and Guiding Principles. At this meeting, the Consultants will also review the General Plan Audit Report and confirm content to be updated and new topics to be addressed.
Task H. 17 Joint Study Session # 4, Vision and Guiding Principles The Consultants will facilitate a joint study session with the Town Council and Planning Commission to present the draft Vision Statement and Guiding Principles. The purpose of the study session will be to gain consensus on these items and provide direction to the Consultants that will guide the development of the goals, policies, and implementation measures in the General Plan Update.
Engagement Products During this Task:
Community Workshop #3 Materials and Summary Report (60 printed, digital versions) GPAC Meeting #4 Materials and Summary Report (digital version) Joint Study Session # 4 Meeting Materials and Summary Report ( digital version) Mintier Harnish — Los Gatos General Plan Update Scope of Work 1 23
Task E Engagement
The following activities will occur in conjunction with the work under Task E.
Task H. 18 Newsletter # 3: Alternatives
The Consultants will prepare a newsletter that summarizes the land use and policy alternatives. We will use the newsletter to educate community members on the alternatives process and generate public interest and attendance for the upcoming community workshop.
Task H. 19 Community Workshop # 4, Alternative Choices
The Consultants will facilitate the fourth community workshop, which will focus on identifying land use and topical ( policy) choices based on previous community inputs. Policy alternatives could address items such as transportation options, healthy community updates, public facility choices, and so forth. The workshop will contain an educational component on the fiscal, transportation, environmental, and other considerations that need to be assessed with any alternatives.
The Consultants will take the input received at the community workshop to prepare preliminary land use concepts and relevant topical alternatives for further consideration.
Task H. 20 GPAC Meeting # 5, Review Draft Alternatives Report The Consultants will facilitate Town staff and GPAC review of the Draft Alternatives Report.
Task H. 21 Planning Commission Meeting
The Consultants and Town staff will facilitate a meeting with the Planning Commission to review the Alternatives Report and solicit their feedback and recommendations on a preferred land use alternative and key policy choices presented. Recommendations from the Planning Commission will be presented to the Town Council for consideration and direction.
Task H. 22 Town Council Meeting
The Consultants and Town staff will facilitate a meeting with the Town Council to review the Alternatives Report and recommendations from the Planning Commission. The purpose of this meeting will be to gain Council direction on the preferred alternatives package that will be used to create the Draft General Plan.
Engagement Products During this Task:
Newsletter # 3 ( 100 hard copies and digital version on website) Community Workshop # 4 Materials and Summary Report ( 60 printed, digital versions) GPAC Meeting #5 Materials and Summary Report (digital version) Planning Commission # 5 Meeting Materials and Summary Report ( digital version) Town Council # 5 Meeting Materials and Summary Report ( digital version) Task F Engagement
The following activities will occur in conjunction with the work under Task F.
Task H. 23 GPAC # 6: Draft General Plan
The Consultants will facilitate Town staff and GPAC review of the GPAC Draft General Plan 24 1 Scope of Work Mintier Harnish— Los Gatos General Plan Update
Task H. 24 Joint Study Sessions # 5, # 6, and #7
The Consultants will conduct up to three joint study sessions with the Town Council and Planning Commission to review and confirm the changes to the General Plan. The Planning Commission will recommend any final revisions or adjustments to the Town Council. The Town Council will then provide direction on any final revisions or adjustments to the General Plan prior to the preparation of the EIR. During one of these study sessions, a presentation on VMT will be included.
Task H. 25 Newsletter # 4, Public Draft General Plan
The Consultants will prepare a newsletter summarizing the Public Draft General Plan that provides highlights of the key features and changes in the new General Plan.
Task H. 26 Community Workshop # 5, Draft General Plan
Upon release of the Public Draft General Plan, the Consultants will facilitate an open house to present the Plan to the community. The open house could be set up in the format where residents can visit stations or booths" focused on each element ofthe Plan. Town staff and Consultants will be stationed at each booth to discuss the elements, answer questions, and gather feedback. The Consultants will promote the public review process and hearings for the General Plan.
Engagement Products During this Task.
Joint Study Session Meeting Materials and Summary Reports ( digital version) Newsletter # 4 ( 100 hard copies, digital version)
Community Workshop # 5 Materials and Summary Report ( 60 printed, digital versions) Community Workshop # 5 Display Boards
Enhanced Community Engagement Tools
Task H. 27 Online Engagement
While workshops and meetings are essential to an effective planning process, these traditional outreach methods of engagement are not enough to obtain the broad mix of inputs needed to make a plan responsive to the entire community. This is especially true for younger generations who are busy with work, family commitments, and other social engagements. Our approach to public outreach is to supplement community workshops with web -based crowd - sourcing and social media tools to attract and engage the broadest possible audience. As part of the Update program, we will offer a range of online engagement tools that allow participation in the process while at home, work, the coffee shop, or wherever inspiration strikes.
Project Website. The website will serve as the hub of project communication and information, including an overview of the project, announcements about upcoming meetings and information on past meetings and events, document library, and contact information.
Engagement HQ. In addition to the Project Website as an information portal, we also propose to use Engagement HQ software tools to develop an exciting platform for online public engagement. Engagement HQ allows us to engage with the community through surveys, opinion polls, discussion forums, photo sharing, mapping exercises, and more. It also offers analysis and reporting tools to understand who is participating and easily summarizes community inputs. During the General Plan Update, we will use this tool to poll the community on a range of topics.
Mintier Harnish — Los Gatos General Plan Update Scope of Work 1 25
If desired, the Consultants will also train Town staff to administer the site, so it can be maintained beyond the General Plan Update project as an ongoing forum for general civic engagement. We will use Engagement HQ software for active public engagement over a 12 -month period during the development of the General Plan, with the site maintained during the public review portions of the project. For more information on Engagement HQ visit: www.bangthetable.com /engagementhq Online Mapping. To help the community better understand the range of existing and future factors ( natural and manmade) that will influence the future of Los Gatos, the Consultants will prepare an online mapping tool ( ESRI Story Map). This online Story Map will provide maps of these factors (items such as wildland fire hazards, biological resources, environmental hazards, transportation connectivity) and a short description that will describe the implications of the factor shown on each map. This type of online map atlas will help support the discussion of issues and opportunities and be a component of the alternatives development.
Social Media. As part of the Update process, we will provide content for social media posts that Town staff can publish on the Town of Los Gatos Facebook ( https: / /www. facebook. com / losgatosca /), Twitter https : / /twitter.com /townlg ?lang =en), Nextdoor (https:Hnextdoor.com/ neighborhood /losgatosmain - -losgatos-- ca/), and other Town social media feeds at key points in the Update process.
Task H. 28 Ongoing Communication
Email Blasts. As part of the Update process, the Consultants will work with the Town to develop project - specific email notifications that the Town will distribute using the Town' s existing e- notification system.
Additional e- mail addresses for interested individuals that are collected by the Consultants at meetings, events, or the Project website will be provided to the Town to add to their current notification lists.
Press Releases. Prior to every community workshop, we will prepare and distribute news releases to inform media outlets serving the community about upcoming meetings and ensure accurate coverage that sets realistic expectations for what the General Plan does and does not do.
Task H. 29 Pop -up Booth for Festivals and Events
Booths at Festivals and Events. The Consultants will provide materials for Town staff to set up a " pop -up" booth at up to four sets of festivals and events in Los Gatos. The booth would feature boards and hand -outs that provide an overview of the General Plan Update, information on opportunities to get involved, and depending on which phase of the project we are in, exercises that are similar to the exercises from the most recent community workshop. It is assumed that Town staff will attend and run the booth with support from the Consultants.
Materials will be provided relative to the following four major components of the Update: 1) project overview, 2) issues and opportunities exercise, 3) alternatives exercise, and 4) draft General Plan.
Town Hall Displays. Like the booths at festivals and events, the Consultants will provide materials for Town staff to display at Town Hall. These displays will provide timely information on the Update process, provide posters on current project developments, and provide some opportunities for interactive displays designed to gain community input.
26 1 Scope of Work Mintier Harnish — Los Gatos General Plan Update
Task I Certification of the EIR and Adoption of the General Plan Update
Task 1. 1 Response to Comments
Within three weeks of receipt of all comment letters on the Draft Program EIR, the Consultants will submit a draft Response to Comments to Town staff for review. The Response to Comments document will include a list of commenters, comment letters, responses to comments, and any added or revised text of the Draft Program EIR that may be necessary. All responses will include reasoned analysis and, as necessary, will include additional analysis. The final version of the Response to Comments will be incorporated as an appendix to the Final Program EIR.
The scope and budget assume a level of effort that would include 100 hours of staff time for this task. This assumes receipt of approximately 15 to 25 comment letters. If the number of comment letters and the effort to prepare responses is greater than anticipated, the Consultants will notify Town staff immediately and discuss options to amend our scope of work and budget as necessary. Following receipt of Town staff comments, the Consultants will finalize the Response to Comments.
Task 1. 2 Mitigation, Monitoring, and Reporting Program Concurrent with the Response to Comments, the Consultants will prepare a Mitigation Monitoring and Reporting Plan ( MMRP), which will be included in the Final Program EIR. The MMRP will be provided in a format designed for use by planners, environmental monitors, or code enforcement officers. Essentially, this plan will take the form of a detailed table that describes:
Persons / agencies responsible for monitoring compliance with each condition Timing when monitoring must occur
Frequency of monitoring
Criteria to be used to determine compliance with conditions The final version of the MMRP will be incorporated as an appendix to the Final Program EIR.
Task 1. 3 Final Program EIR
The Consultants will complete the Final Program EIR after the review period has closed and all comments submitted during that period have been received. The Final Program EIR will include corrections to the Draft Program EIR ( if warranted), comments received, and responses. The Consultants will prepare a Screen Check Final Program EIR for Town staff review and confirmation followed by a Final Program EIR after incorporating comments from Town staff. The Consultants will produce print and digital copies ofthe Final Program EIR.
Within one day of Final Program EIR certification and project approval, the Consultants will submit the draft Notice of Determination ( NOD) to Town staff for delivery to the County Clerk and /or State Clearinghouse.
Task 1. 4 Planning Commission Hearing
The Consultants will attend a public hearing with the Planning Commission to review the Public Draft General Plan and Final Program EIR. The Planning Commission will consider the comments made during the public hearing and make recommendations to the Town Council.
Mintier Harnish — Los Gatos General Plan Update Scope of Work 1 27
Task 1. 5 Town Council Hearings ( 2)
The Consultants will attend two public hearings with the Town Council to review the Public Draft 2040 General Plan and Final Program EIR. At these hearings, the Town Council will consider the Planning Commission recommendations and the comments made at the Planning Commission public hearing. After the hearings, the Town Council will direct the Consultants to incorporate their recommendations and prepare the Final General Plan and Final Program EIR.
Task 1. 6 Final General Plan Documents
Following public review of the Draft Public General Plan, the Consultants will prepare the Final General Plan for adoption.
Task 1. 7 Town Council Adoption Hearing
The Consultants will attend one hearing with the Town Council for certification of the Final Program EIR and adoption of the Final General Plan.
Task 1. 8 Web -Based General Plan
The Consultants will design the Final General Plan as an interactive web -based General Plan. The web -based plan will not simply be a document that is published online, but will be a dynamic communication tool that provides transparency, accessibility, and efficiency in local government.
The web -based plan will be highly graphical and structured and designed to meet the specific needs of the Town. It will be fully searchable, allowing decision - makers and other users to quickly locate relevant information. The online format will allow cross- referenced links to related policies, programs, maps, or background information.
Products
Response to Comments ( digital version)
Mitigation, Monitoring, and Reporting Program ( digital version) Final Program EIR ( 30 hard copies and 30 CD copies to the Town) Tracking of comments and recommendations ( all meetings, digital versions) Final General Plan ( 100 hard copies, 100 CDs, digital version, 2 unbound originals for reproduction) Color Land Use Element Exhibits (100 copies, sizes and scales to be determined) Compilation CD with all milestone documents, data, and GIS files ( 3 CDs) Web - based General Plan
28 1 Scope of Work Mintier Harnish — Los Gatos General Plan Update
Task A:
Project Initiation
T' wCgT.-
Task B: Germra near_
Prepare Background
Report nM, nn pwee
Task C:
Identify Community Ia I I I I I I I I I I I I I I I I I I Opportunities,
and Constraints wa' 9 °' art
Task D:
Development of
General Plan Vision
oran Oran
Task E:
Development of
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xc`, eralcWn
General Plan Goals and A arrY
Policy Development oan oran
Task G: NT wercral, Eiaamw
Environmental
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PREPARED BY: Monica Renn
Economic Vitality Manager
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, Chief of Police, Community Development Director, and Finance Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 04/05/2022
ITEM NO: 8
DATE: March 29, 2022
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Adopt Amendments to the Town Council Late Night Entertainment Policy No. 1-03 to Clarify the Use of Public Right-of-Way and Semi-Permanent Parklets for Entertainment as Recommended by the Town Council Policy Committee RECOMMENDATION:
Adopt amendments to the Town Council Late Night Entertainment Policy No. 1-03 (Attachment 2) to clarify the use of public right-of-way and semi-permanent parklets for entertainment as recommended by the Town Council Policy Committee.
BACKGROUND:
In 2015, the Town Council held a study session focused on Economic Vitality which resulted in a series of policy and ordinance updates to allow greater flexibility for businesses in Los Gatos.
One of the updates that came from this effort was the Late Night Entertainment Policy that allowed businesses to offer entertainment by-right until 10 p.m. within their business’ premises, governed only by the Town Code. For entertainment after 10 p.m., the Policy allowed businesses to obtain a staff-level Late Night Entertainment Permit.
On June 21, 2016, the Town Council adopted the Late Night Entertainment Policy (Attachment 1) to create provisions for entertainment to be offered by businesses and community members throughout Town. The intent of the Policy was to create consistent guidelines for all businesses and provide an opportunity for those with a more restrictive Conditional Use Permit (CUP) to modify their conditions to align with the Policy.
CUPs modified or created after the adoption of this Policy include language that allows for entertainment at the premise consistent with the Entertainment Policy.
PAGE 2 OF 3
SUBJECT: Adopt Modifications to the Town’s Late Night Entertainment Policy No. 1-03 DATE: April 5, 2022
DISCUSSION:
Since the adoption of the Late Night Entertainment Policy, the economic environment has evolved dramatically. Before the COVID-19 Pandemic, businesses were striving to create an experience that drew customers into their physical locations in an effort to compete with the rising online marketplace. Then, in 2020, when the COVID-19 Pandemic mandated business shutdowns and an even more dynamic economic environment, businesses were again faced with the need to adapt their operations to remain successful.
One of the adaptions that proved to be crucial for businesses through the shutdowns was the additions of parklets using temporary krail barriers to secure public right-of-way, which then evolved into a Town subsidized semi-permanent parklet program that is currently underway.
Through 2020 and most of 2021, the Town remained extremely flexible with outdoor offerings in the parklets as indoor activities were drastically reduced, or completely closed in many cases.
As the most recent Omicron variant has tapered off and local mask and occupancy restrictions have lifted, the vibrancy and ability for businesses to return to a pre-COVID operation structure is also beginning to take shape.
With comfort levels for gatherings on the rise and with the available outdoor space of parklets, staff is aware that the Late Night Entertainment Policy, as written, may not provide the needed clarity for businesses. Thus, on March 22, 2022, staff brought the Policy to the Council Policy Committee with recommended modifications for the Committee to consider. Attachment 2 provides the redlined version of the 2016 Late Night Entertainment Policy reviewed, discussed, and recommended by the Council Policy Committee. While the intent and high-level provisions of the Policy remain the same, the draft modifications provide specific language relating to parklets and use of outdoor public right-of-way for entertainment.
The intent of the modified Policy is to continue to allow businesses to offer amplified and unamplified entertainment by-right within the private property of their business, including patios, parking lots, and other private outdoor areas, given the offerings and noise levels remain in compliance with the Entertainment Policy and Town Code. Those businesses with a semi-permanent parklet may additionally offer unamplified entertainment outdoors in their parklet space during their operating hours, in compliance with the associated Conditional Use Permit (CUP).
Should a business wish to offer amplified entertainment within their semi-permanent parklet, an approved special event permit is required. Likewise, a special event permit is required if any business or other community stakeholder would like to offer amplified entertainment within a public parklet (including Grays Lane), park, parking lot, sidewalk, or other public right-of-way area. Providing this level of review allows for event organizers to notify surrounding neighbors and eliminates the ability for multiple amplified entertainment acts to be occupying similar areas of public right-of-way simultaneously.
PAGE 3 OF 3
SUBJECT: Adopt Modifications to the Town’s Late Night Entertainment Policy No. 1-03 DATE: April 5, 2022
DISCUSSION (Continued):
Staff is not recommending modifications to the portion of the Policy that relates to the previously adopted provisions for the Late Night Entertainment permit for entertainment within a business premises after 10 p.m. The Policy further clarifies that no entertainment, amplified or unamplified, is permitted outdoors after 10 p.m.
The Council Policy Committee received public testimony from Chamber of Commerce Executive Director Catherine Somers who emphasized the importance of maintaining the opportunity for entertainment, clarifying entertainment in the parklets, and requesting that the Town consider a “minor” special event permit for amplified music in public rights-of-way. Staff was open to this suggestion and explained that a Code change would be needed to create a minor special event permit.
The Council Policy Committee discussed the recommended modifications and how they provide clarification while maintaining the original intent of the Policy to provide flexibility for businesses on a consistent and level playing field. At the conclusion of the meeting, the Council Policy Committee voted to move the recommendations forward to the Town Council for its consideration.
CONCLUSION:
Adopt recommended amendments to the Town Council Late Night Entertainment Policy No. 1- 03 to clarify the use of public right-of-way and semi-permanent parklets for entertainment as recommended by the Town Council Policy Committee.
COORDINATION:
This staff report and the recommended modifications to the Late Night Entertainment Policy No. 1-03 were drafted in collaboration with the Town Manager’s Office, Town Attorney’s Office, and Community Development and Police Departments.
FISCAL IMPACT:
There is no fiscal impact associated with the adoption of the recommended modifications.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. Late Night Entertainment Policy No. 1-03 adopted June 21, 2016
2. Redlined Late Night Entertainment Policy with recommended modifications
Title: Policy Regulating Late Night Entertainment I Policy Number: 1 - 03 Effective Date: 6122116 1 Pages: 2
Enabling Actions: I -- -- I Revised Date:
Entertainment contributes to Los Gatos' vibrancy and adds to the richness of events and gatherings, and shall not be regulated other than by Town Code. However, entertainment occurring after 10 p. m. ( " late night entertainment ") can compromise the quality of life for Town residents. Therefore, this policy has been created to establish a permitting process and regulations for late night entertainment.
For the purposes of this policy, entertainment means any activity conducted for the primary purpose of diverting or entertaining persons in a premises open to the general public. Such entertainment may include, but shall not be limited to, live musical performances, instrumental or vocal, dance acts, concerts, live shows, amplified music or sound, dancing, DJ, karaoke, jam sessions, and/ or other similar activities.
Late night entertainment is a discretionary privilege and is not to be construed to be a right of development nor run with the land. The following provisions are intended to maintain and enhance the continuing vibrancy and viability ofthe Town's public and commercial centers while providing reasonable protections to residential neighborhoods in close proximity to those areas.
POLICY AND PROCEDURES
I. Review Processes for Establishments with Late Night Entertainment
1. A late night entertainment permit shall be issued be the Town Manager. The Town Manager may refer any application for a permit to the Development Review Committee for its consideration and determination, which may be appealed to Planning Commission and Town Council. The Town Manager or other deciding body retains the right of approval or denial of each application based on its merits.
2. In determining whether to approve or deny an application for a late night entertainment permit, the following factors will be considered:
a. The proposed use of the property is essential or desirable to the public convenience or welfare;
b. The proposed use will not impair the integrity and character of the zone; ATTACHMENT 1
Page: Policy Number:
Title: Policy Regulating Late Night Entertainment 2 of 2 1 - 03 c. The proposed use would not be detrimental to public health, safety or general welfare; and
d. The proposed use of the property is in harmony with the applicable guidelines, zoning ordinances, and/ or provisions of the general plan.
3. An application and permit for late night entertainment shall be subject to all applicable requirements of the Town Code, and any permit issued pursuant to this policy shall include the following conditions:
a. The applicant shall be responsible for ensuring that noise resulting from the entertainment meets all applicable provisions of the Town' s noise ordinance. If noise complaints are received by Town Staff, the Town reserves the right to require the applicant/permittee to hire a consultant to monitor noise levels to ensure that noise levels are within the parameters established by Town Code for the zone in which entertainment is occurring.
b. Security measures, which may include the requirement that the applicant employ private security personnel, shall be undertaken and established in and around the entertainment venue to deter unlawful conduct or disturbance to adjacent residential neighborhoods.
c. Additional appropriate conditions may be included in any permit as may be determined necessary to protect the public health, safety or general welfare.
4. Any venue with a Conditional Use Permit ( CUP) that expressly prohibits entertainment will be required to obtain an amendment to its CUP in order to offer entertainment pursuant to this policy. An applicant' s request to amend an existing CUP for the express purpose of adding permitted entertainment will not open the remainder of the CUP to amendment or alteration unless specifically requested by the applicant.
5. Any permit issued pursuant to this policy may be suspended, modified or revoked by the body that approved the permit following a public hearing ifit is determined that sufficient evidence exists that the permitted entertainment is operating, or has operated, in a manner inconsistent with the requirements of its permit, or in a manner that constitutes a public nuisance.
APPROVED AS TO FORM:
Robert Schultz, Towt1_
115' ey
COUNCIL POLICY MANUAL
Title: Policy Regulating Entertainment in the Public Right-of-Way and Late Night Entertainment
Policy Number: 1-03
Effective Date: 6/22/2016 Pages: 3
Enabling Actions: Revised Date:
Approved:
ATTACHMENT 2
Small Town Service Community Stewardship Future Focus
PURPOSE
Entertainment contributes to the vibrancy of Los Gatos 'vibrancy and adds to the richness of events and gatherings and shall not be regulated other than by Town Code. However, entertainment occurring after 10 p.m. (“late night entertainment”), or when amplified in the public right-of-way can compromise the quality of life for Town residents. Therefore, this policy has been created to establish a permitting process and regulations for entertainment in the public right-of-way and late night entertainment.
For the purposes of this policy:
Entertainment means any activity conducted for the primary purpose of diverting or entertaining persons. in a premises open to the general public. Such entertainment may include, but shall not be limited to, live musical performances, instrumental or vocal, dance acts, concerts, live shows, amplified music or sound, dancing, DJ, karaoke, jam sessions, comedy acts, poetry readings, trivia/group games and/or other similar activities.
Amplified Sound means the entertainment source’s volume is increased by any electric, electronic, mechanical, battery, or motor-powered equipment.
Public Right-of-Way means any public property that is not owned by a private entity including but not limited to public streets and roadways regardless of their current status to support moving vehicles, alley ways, sidewalks, parking lots, and public parklets and planter boxes.
Semi-Permanent Parklet means a parklet that has been constructed in the public right-of-way through the Town’s Parklet Program, being operated under a public-private partnership between the Town and the adjacent business(es) with a valid operational agreement and certificate of insurance with the Town of Los Gatos.
Entertainment with amplified sound is not permitted within the public right-of-way (including public parks and open spaces, sidewalks, public parklets, parking lots, parking spaces, etc.) or within a semi-permanent parklet located in the public right-of-way without an approved special event permit subject to the provisions of the Town Code.
Title: Policy Regulating Late Night Entertainment
Page:
2 of 3
Policy Number:
1-03
Entertainment, with or without amplified sound, completely contained within the private property of a business, including indoors, private patios and private parking lots, may occur until 10 p.m., given the entertainment is compliant with the Town Code and the business’ Conditional Use Permit (CUP).
No outdoor entertainment is permitted past 10 p.m.
Late night entertainment is a discretionary privilege and is not to be construed to be a right of development nor run with the land. The following provisions are intended to maintain and enhance the continuing vibrancy and viability of the Town's public and commercial centers while providing reasonable protections to residential neighborhoods in close proximity to those areas.
POLICY AND PROCEDURES
I. Review Processes for Establishments with Late Night Entertainment
1. A late night entertainment permit shall be issued be the Town Manager. The Town Manager may refer any application for a permit to the Development Review Committee for its consideration and determination, which may be appealed to Planning Commission and Town Council. The Town Manager or other deciding body retains the right of approval or denial of each application based on its merits.
2. In determining whether to approve or deny an application for a late night entertainment permit, the following factors will be considered:
a. The proposed use of the property is essential or desirable to the public convenience or welfare;
b. The proposed use will not impair the integrity and character of the zone;
c. The proposed use would not be detrimental to public health, safety or general welfare; and
d. The proposed use of the property is in harmony with the applicable guidelines, zoning ordinances, and/or provisions of the general plan.
3. An application and permit for late night entertainment shall be subject to all applicable requirements of the Town Code, and any permit issued pursuant to this policy shall include the following conditions:
a. The applicant shall be responsible for ensuring that noise resulting from the entertainment meets all applicable provisions of the Town’s noise ordinance. If noise complaints are received by Town Staff, the Town reserves the right to require the applicant/permittee to hire a Page 243
Title: Policy Regulating Late Night Entertainment
Page:
3 of 3
Policy Number:
1-03
consultant to monitor noise levels to ensure that noise levels are within the parameters established by Town Code for the zone in which entertainment is occurring.
b. Security measures, which may include the requirement that the applicant employ private security personnel, shall be undertaken and established in and around the entertainment venue to deter unlawful conduct or disturbance to adjacent residential neighborhoods. c. Additional appropriate conditions may be included in any permit as may be determined necessary to protect the public health, safety or general welfare.
4. Any venue with a Conditional Use Permit (CUP)that expressly prohibits entertainment will be required to obtain an amendment to its CUP in order to offer entertainment pursuant to this policy. An applicant's request to amend an existing CUP for the express purpose of adding permitted entertainment will not open the remainder of the CUP to amendment or alteration unless specifically requested by the applicant.
5. Any permit issued pursuant to this policy may be suspended, modified or revoked by the body that approved the permit following a public hearing if it is determined that sufficient evidence exists that the permitted entertainment is operating, or has operated, in a manner inconsistent with the requirements of its permit, or in a manner that constitutes a public nuisance.
Approved as to Form:
___________________
Town Attorney
PREPARED BY: Meredith Johnston
Administrative Technician
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, Finance Director, and Parks and Public Works Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 03/15/2022
ITEM NO: 9
DATE: March 28, 2022
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Authorize the Town Manager to Execute an Amended and Restated Agreement Between the County of Santa Clara and the Town of Los Gatos for Weed Abatement Services
RECOMMENDATION:
Authorize the Town Manager to execute an Amended and Restated Agreement between the County of Santa Clara and the Town of Los Gatos for weed abatement services (Attachment 1).
BACKGROUND:
Pursuant to California Government Code Sections 39501 et seq., the Town has the authority to require and provide for the abatement of hazardous weeds on properties within its jurisdiction either by ordinance or pursuant to the procedures set forth in Article 2 of Chapter 13, Division 3 of Title 4 of the Government Code (commencing with Section 39560).
The Town has established, under Chapter 11, Article II of the Los Gatos Town Code, a program to abate as a public nuisance hazardous weeds and brush situated on properties in the Town.
For reasons of efficiency, economy of operations and resources, and the mutual benefit of both the Town and the County of Santa Clara (County), the County provides weed abatement services on properties in the Town and assists in administering certain parts of the Town’s weed abatement program. The Town and County entered into an “Agreement for the Abatement of Weeds by the County of Santa Clara for the Town of Los Gatos” on March 6, 1978, as subsequently amended, which provided for the abatement of weeds by the County on behalf of the Town.
PAGE 2 OF 3
SUBJECT: Authorize Town Manager to Execute the Amended and Restated Agreement Between the County of Santa Clara and the Town of Los Gatos for Weed Abatement Services
DATE: March 28, 2022
BACKGROUND (continued):
This amended and restated agreement for the abatement of weeds allows the County to fully recover its service costs in administering the Town’s weed abatement program.
DISCUSSION:
The County operates this program on a 100% cost recovery basis. It is the intent of the County to obtain full cost recovery through assessments on parcels that are in the program. This amended and restated agreement provides that, should the funding associated with the assessments fall short of the total program cost, the Town would reimburse the County for its share of the costs on a pro-rata share of the program such that the County achieves full cost recovery.
Cost overages are most likely to occur due to the County’s program personnel cost increases. It is also possible, though it has not occurred in Los Gatos, that the Town Council might waive the assessment of fees associated with a particular parcel or the Council declines to accept any fee or cost presented in the County fee schedule.
The agreement allows for cancellation by either the Town or the County at the conclusion of any weed abatement cycle.
CONCLUSION:
Authorize Town Manager to execute an Amended and Restated Agreement between the County of Santa Clara and the Town of Los Gatos for weed abatement services.
COORDINATION:
This program has been coordinated with the Santa Clara County Department of Agriculture and Environmental Management.
FISCAL IMPACT:
The County’s Weed Abatement Program administers services for 13 local agencies which operates on a 100% cost recovery basis, and it is the intent of the County to obtain cost recovery through assessments on parcels that are in the program. The estimated program cost related to each agency is based on the number of parcels per agency. For Fiscal Year 2021/22, the estimated cost is $21,599.65. Funds are provided in the Fiscal Year (FY) 2021/22 Operating Budget to cover the cost of publishing all required legal notices. If the County needs to request additional funds, this would be absorbed in the PPW budget.
PAGE 3 OF 3
SUBJECT: Authorize Town Manager to Execute the Amended and Restated Agreement Between the County of Santa Clara and the Town of Los Gatos for Weed Abatement Services
DATE: March 28, 2022
FISCAL IMPACT (continued):
Should the funding associated with the assessments fall short of the total program cost, the Town will be billed for a pro-rata share of the program such that the County achieves full cost recovery.
Attachment:
1. Amended and Restated Agreement Between the County of Santa Clara and the Town of Los Gatos for Weed Abatement Services
Agreement for Services
County of Santa Clara
Weed Abatement Services ATTACHMENT 1
AMENDED AND RESTATED AGREEMENT BETWEEN
THE COUNTY OF SANTA CLARA AND THE TOWN OF
LOS GATOS FOR WEED ABATEMENT SERVICES
THIS AGREEMENT for the Abatement of Weeds by County of Santa Clara for the Town of Los Gatos (“AGREEMENT”) is made and entered into by and among the County of Santa Clara, a political subdivision of the State of California (“COUNTY”), and the Town of Los Gatos (“TOWN”), a Town corporation, effective this __________________ (“EFFECTIVE DATE”). COUNTY and TOWN may be collectively referred to herein as the “PARTIES” and individually as a “PARTY,” unless specifically identified otherwise.
RECITALS
WHEREAS, pursuant to California Government Code Sections 39501 et seq., the TOWN has the authority to require and provide for the abatement of hazardous weeds on properties within its jurisdiction either by ordinance or pursuant to the procedures set forth in Article 2 of Chapter 13, Division 3 of Title 4 of the Government Code (commencing with Section 39560); and WHEREAS, the TOWN has duly established under Chapter 11, Article II of the Los Gatos Town Code a program to abate as a public nuisance hazardous weeds and brush situated on properties in the TOWN; and
WHEREAS, under provisions of the California Health and Safety Code and its ordinances, the County also has duly established a program to enforce the abatement of hazardous weeds; and WHEREAS, for reasons of efficiency, economy of operations and resources, and the mutual benefit of both parties, the TOWN and the COUNTY desire the COUNTY to provide weed abatement services on properties in the TOWN and to assist the TOWN in administering certain parts of the TOWN’S weed abatement program under Chapter 11, Article II of the Los Gatos Town Code, all in accordance with the terms and provisions set forth in this AGREEMENT; and WHEREAS, the TOWN may contract with COUNTY pursuant to Government Code section 51300 et seq. for the County’s performance of specified Town functions; and WHEREAS, the TOWN and COUNTY entered into an “Agreement for the Abatement of Weeds by the County of Santa Clara for the Town of Los Gatos” on March 6, 1978, as subsequently amended, which provided for the abatement of weeds by the COUNTY on behalf of the TOWN; and WHEREAS, the TOWN and COUNTY desire to enter into an amended and restated AGREEMENT for the abatement of weeds to provide for the COUNTY to fully recover its service costs in administering the TOWN’s weed abatement program and to make other clarifying changes.
NOW, THEREFORE, in consideration of their mutual promises, covenants, and agreements set forth in this AGREEMENT, the PARTIES hereby agree as follows:
SECTION 1. PURPOSE.
The purpose of this AGREEMENT is to promote efficiency and economy of operations and resources in the abatement of weeds in the TOWN and COUNTY. To achieve this end, the TOWN hereby delegates
Agreement for Services
County of Santa Clara
Weed Abatement Services ATTACHMENT 1
to the COUNTY and the COUNTY hereby accepts the responsibility of abating weeds on properties in the TOWN and administering the TOWN’s weed abatement program, set forth in Chapter 11, Article II of the Los Gatos Town Code (“PROGRAM”), subject to and in accordance with this AGREEMENT.
SECTION 2. TERM.
This AGREEMENT shall become effective as of the EFFECTIVE DATE and shall continue until the governing body of the TOWN or the COUNTY exercises the right to terminate this AGREEMENT pursuant to SECTION 18 of this AGREEMENT. This AGREEMENT supersedes and replaces the previous “Agreement for the Abatement of Weeds by the County of Santa Clara for the Town of Los Gatos” and any and all subsequent amendments thereto.
SECTION 3. SCOPE OF SERVICES; PERFORMANCE SCHEDULE.
A. The COUNTY shall perform weed abatement services on properties located in the TOWN and administer the PROGRAM (collectively, the “SERVICES”) in accordance with all applicable laws, rules, and regulations, including Chapter 11, Article II of the Los Gatos Town Code, and the provisions of this AGREEMENT, as they may be amended from time to time.
B. The COUNTY shall perform these SERVICES in accordance with the schedule set forth in EXHIBIT “A,” entitled SCHEDULE OF PERFORMANCE,” attached hereto and incorporated herein by this reference, except that SERVICES on properties owned by the TOWN shall be performed only upon written request by the TOWN.
C. The COUNTY shall attend all meetings of the TOWN Council or meetings of other TOWN committees, boards or hearing bodies at which weed abatement SERVICES, refunds of weed abatement charges, or other issues related to the SERVICES or this AGREEMENT are discussed, when the COUNTY’s attendance is requested by the TOWN.
D. Upon request by the TOWN, the COUNTY shall provide to the TOWN for its review and comment the COUNTY’s specifications and qualifications for contractors or other agents of the COUNTY obtained or hired by the COUNTY to perform weed abatement SERVICES on behalf of the COUNTY on properties located in the TOWN.
SECTION 4. NOTICES.
The COUNTY shall prepare copies of all notices required in connection with the SERVICES and cause such notices to be posted, published, mailed, and/or distributed as required by applicable law. The COUNTY shall provide copies of such notices to the TOWN for prior review and approval as set forth on EXHIBIT A, entitled “SCHEDULE OF PERFORMANCE,” or where not provided for in the SCHEDULE OF PERFORMANCE, at least thirty (30) days prior to the date that the COUNTY desires or is required to post, publish, mail, or otherwise distribute the material.
SECTION 5. HEARINGS.
The TOWN Council, or the committee, board, or other hearing body designated by the TOWN Council to conduct hearings in connection with the PROGRAM, retains the responsibility to conduct public hearings and adopt appropriate resolutions and orders in accordance with Chapter 11, Article II of the Los Gatos Town Code and this AGREEMENT, including its EXHIBIT A, “SCHEDULE OF PERFORMANCE.”
Agreement for Services
County of Santa Clara
Weed Abatement Services ATTACHMENT 1
SECTION 6. STATEMENT OF COSTS.
A. In December of each calendar year, the COUNTY shall deliver to the TOWN a schedule of all reasonable and necessary fees and costs approved and adopted by the COUNTY Board of Supervisors for administrative, enforcement, and abatement services to be provided under this AGREEMENT (“FEE SCHEDULE”). Such fees and costs shall not exceed the reasonable costs of providing such services. All fees and costs in said FEE SCHEDULE shall be recoverable by the COUNTY pursuant to this SECTION and SECTION 7 of this AGREEMENT unless within sixty (60) days of the COUNTY’s delivery of said schedule to the TOWN, the Town Council of the TOWN expressly declines to accept any fee or cost in said FEE SCHEDULE. In the event the Town Council does decline to accept any fee or cost in said FEE SCHEDULE, the COUNTY shall be relieved of any and all obligations to provide any SERVICES under this AGREEMENT for the weed abatement season associated with the disapproved fee or cost.
B. At least ten (10) days prior to the date of the public hearing before the TOWN regarding the placement of special assessment liens on properties for weed abatement charges, which meeting usually occurs before August 10 of each year, the COUNTY shall render to the TOWN a report of weed abatement SERVICES performed by the COUNTY on properties within the TOWN during the preceding twelve (12) months (“REPORT”). The REPORT shall include, without limitation, all of the following information:
1. The total number of weed abatements performed in the TOWN;
2. The total number of properties upon which weed abatements were performed in the TOWN;
3. A statement of all the costs and expenses incurred by or on behalf of the COUNTY for weed abatement SERVICES performed on properties located in the TOWN, itemized with the aggregate administrative, enforcement, and abatement expenses and costs incurred by the COUNTY on each property, which shall be in accord with the fees and costs in the FEE SCHEDULE submitted by the COUNTY to the TOWN pursuant to Section 6.A of this AGREEMENT;
4. A description of all the properties in the TOWN, by address and Assessor’s Parcel Number, on which weed abatement SERVICES were performed; and
5. Verification of the truthfulness, accuracy, and completeness of the REPORT, executed by the COUNTY employee charged with the supervision of the SERVICES.
SECTION 7. PAYMENT FOR SERVICES.
A. Except as provided in SECTIONS 7.B and 7.C, the COUNTY shall be reimbursed for SERVICES provided under this AGREEMENT by remittances from property owners for weed abatement and related costs and expenses for SERVICES performed on their respective lots and parcels of land. The TOWN Council, after hearing, shall require the costs and expenses of SERVICES performed for the current year to be entered as a special assessment on bills for taxes levied against the respective lots and parcels of land. Such special assessments shall be liens on the respective properties until paid to the COUNTY.
Agreement for Services
County of Santa Clara
Weed Abatement Services ATTACHMENT 1
B. Within 60 days of receipt of an invoice for costs and expenses incurred on TOWN-owned parcels, the TOWN shall reimburse the COUNTY for the costs of such SERVICES. Charges for SERVICES on parcels owned by the TOWN shall equal the cost of SERVICES performed by the weed abatement contractor on the TOWN-owned parcels plus 20% of said contractor service costs.
C. If the amounts submitted for collection from property owners in Santa Clara County for provision of weed abatement services by the COUNTY are inadequate to reimburse the COUNTY for its fixed costs of administering countywide services during the preceding twelve (12) months, the COUNTY may make a demand to the TOWN for its proportional share of the shortfall (less amounts offset by accrued program revenues) by September 1 of each year. The TOWN agrees to pay the COUNTY for the TOWN’s proportional share of any such shortfall within sixty (60) days of demand by the COUNTY. The TOWN’S proportional share shall be calculated based on the percentage of parcels on which weed abatement services were performed which are located in the TOWN as compared to the total number of parcels on which weed abatement services are provided. (For example, for Fiscal Year 2022, the TOWN'S parcels constitute 3.2% of the total parcels. This would result in an estimated maximum share of shortfall contribution by the TOWN of $21,599.65 for Fiscal year 2022.) The COUNTY’s demand for payment under this SECTION 7.C. shall be accompanied by a statement of the total shortfall in the COUNTY’s reimbursement for fixed program costs for the preceding twelve (12) months and of any accrued program revenues available to offset the shortfall, as well as a statement of the TOWN’s proportional share of that shortfall (minus offsets by accrued program revenues).
D. Except as provided in SECTIONS 7.B and 7.C., the TOWN has and assumes no liability for the payment of salary, wages, benefits, pensions, compensation or any other amounts to officers, agents, employees or contractors of COUNTY performing SERVICES hereunder.
SECTION 8. INDEMNIFICATION.
In lieu of and notwithstanding the pro rata risk allocation, which might otherwise be imposed between the PARTIES pursuant to Government Code Section 895.6, the PARTIES agree that all losses or liabilities incurred by PARTY shall not be shared pro rata but, instead, COUNTY and TOWN agree that, pursuant to Government Code Section 895.4, each of the PARTIES hereto shall fully indemnify and hold each of the other PARTIES, their officers, board members, employees, and agents, harmless from any claim, expense or cost, damage or liability imposed for injury (as defined in Government Code Section 810.8) occurring by reason of the negligent acts or omissions or willful misconduct of the indemnifying PARTY, its officers, employees or agents, under or in connection with or arising out of any work, authority or jurisdiction delegated to such party under this AGREEMENT. No PARTY, nor any officer, board member or agent thereof shall be responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct of the other PARTIES hereto, their officers, board members, employees, or agents, under or in connection with or arising out of any work authority or jurisdiction delegated to such other PARTIES under this AGREEMENT.
SECTION 9. RECORDS.
Each officer or department of the COUNTY performing any SERVICES pursuant to this AGREEMENT shall keep itemized and detailed work or job records covering the costs of services performed under this AGREEMENT. COUNTY shall maintain these records for a minimum period of three (3) years, or for any longer period required by law, following the performance of any SERVICES.
Agreement for Services
County of Santa Clara
Weed Abatement Services ATTACHMENT 1
SECTION 10. ENTIRE AGREEMENT.
This AGREEMENT and its Appendices (if any) constitutes the final, complete and exclusive statement of the terms of the agreement between the PARTIES. It incorporates and supersedes all the agreements, covenants and understandings between the PARTIES concerning the subject matter hereof, and all such agreements, covenants and understandings have been merged into this AGREEMENT. No prior or contemporaneous agreement or understanding, verbal or otherwise, of the PARTIES or their agents shall be valid or enforceable unless embodied in this AGREEMENT.
SECTION 11. AMENDMENTS.
This AGREEMENT may only be amended by a written instrument signed by the PARTIES.
SECTION 12. GOVERNING LAW, VENUE.
This AGREEMENT has been executed and delivered in, and shall be construed and enforced in accordance with, the laws of the State of California. Proper venue for legal action regarding this AGREEMENT shall be in the County of Santa Clara.
SECTION 13. ASSIGNMENT.
No assignment of this AGREEMENT or of the rights and obligations hereunder shall be valid without the prior written consent of the other PARTY.
SECTION 14. WAIVER.
No delay or failure to require performance of any provision of this AGREEMENT shall constitute a waiver of that provision as to that or any other instance. Any waiver granted by a PARTY shall be in writing and shall apply to the specific instance expressly stated.
SECTION 15. COMPLIANCE WITH LAWS.
COUNTY and TOWN shall comply with all applicable Federal, State, and local laws, regulations, rules, and policies in the performance of services under this AGREEMENT.
SECTION 16. THIRD PARTY BENEFICIARIES.
This AGREEMENT does not, and is not intended to, confer any rights or remedies upon any person or entity other than the PARTIES.
SECTION 17. INDEPENDENT CONTRACTORS.
The COUNTY and the TOWN agree that this AGREEMENT is by and between independent contractors.
This AGREEMENT is not intended, nor shall it be construed, to create a relationship of agent, servant, employee, partnership, joint venture, or association between the COUNTY and the TOWN.
Agreement for Services
County of Santa Clara
Weed Abatement Services ATTACHMENT 1
SECTION 18. TERMINATION
A. The COUNTY or the TOWN may terminate this AGREEMENT as of the first day of September of any year by giving notice to the other PARTY not less than thirty (30) days prior to the date of termination.
B. The Parks and Public Works Director, or his or her delegate or designee, is authorized to terminate this AGREEMENT on behalf of the TOWN.
C. The COUNTY’s Agricultural Commissioner, or his or her delegate or designee, is authorized to terminate this AGREEMENT on behalf of the COUNTY.
SECTION 19. NOTICES
Except as otherwise stated, any notice required or permitted by this AGREEMENT will be in writing and delivered as follows with notice deemed given as indicated: (a) by personal delivery when delivered personally; (b) by overnight courier upon written verification of delivery; (c) by email, telecopy, or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, upon confirmation of delivery. The PARTIES may deliver notice as follows:
TO COUNTY:
County of Santa Clara Consumer and Environmental Protection Agency 1553 Berger Drive #200, San Jose, CA 95112
Fax: 408-286-2460
Email: [email protected]
Attn: Weed Abatement Manager
TO TOWN:
Town of Los Gatos
Parks and Public Works
110 E Main St
Los Gatos, CA 95030
SECTION 20. INTERPRETATION.
The captions preceding the sections of this AGREEMENT have been inserted for convenience of reference only and such captions shall in no way define or limit the scope or intent of any provision of this AGREEMENT. This Agreement has been negotiated at arm’s length and between parties sophisticated and knowledgeable in the matters contained herein. This AGREEMENT shall be interpreted to achieve the intents and purposes of the PARTIES, without any presumption against the PARTY responsible for drafting any part of this AGREEMENT. Provisions in this AGREEMENT relating to number of days shall be calendar days, unless otherwise specified, provided that if the last day of any period to give notice, reply to a notice or to undertake any other action occurs on a Saturday, Sunday or a bank or COUNTY holiday, then the last day for undertaking the action or giving or replying to the notice shall be the next succeeding business day. The Recitals are incorporated and made a part of this AGREEMENT.
Agreement for Services
County of Santa Clara
Weed Abatement Services ATTACHMENT 1
SECTION 21. COUNTERPARTS.
This AGREEMENT may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
SECTION 22. CONTRACT EXECUTION
Unless otherwise prohibited by law or COUNTY policy, the PARTIES agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the COUNTY.
THE PARTIES TO THIS AGREEMENT hereby indicate their acknowledgement and acceptance of the terms and conditions stated herein as evidenced by the following signatures of their duly authorized representatives.
COUNTY OF SANTA CLARA TOWN OF LOS GATOS
Jeffrey V. Smith
County Executive
Dated: _______________________________
Laurel Prevetti
Town Manager
Dated: ______________________________
APPROVED AS TO FORM AND LEGALITY: Approved as to Form:
_______________________________________
Willie Nguyen Robert Schultz, Town Attorney
Deputy County Counsel
Attest:
______________________________________
Shelley Neis, MMC, CPMC, Town Clerk
Agreement for Services
County of Santa Clara
Weed Abatement Services ATTACHMENT 1
EXHIBIT “A”
SCHEDULE OF PERFORMANCE
The COUNTY shall perform the SERVICES as follows:
On or before November 15 of each year: The County shall request a resolution from the TOWN declaring that certain weeds located on
properties in the TOWN constitute a public
nuisance and setting a date for a public hearing.
Before the date of the TOWN governing body
meeting declaring weeds a nuisance subject to
abatement:
The COUNTY shall provide to the TOWN for
review and processing by the TOWN a complete
Master List of properties, including Assessor’s
Parcel Numbers, located in the TOWN upon which
hazardous weeds are growing or are likely to grow.
No later than ten (10) days prior to the day of the
TOWN hearing on objections to the notices to
destroy weeds:
The COUNTY shall post notices to destroy weeds
at property or mail notices to destroy weeds to
property owners regarding the TOWN hearing, as
directed by resolution of the TOWN Council.
No later than ten (10) days prior to the day of the
Town hearing on objections to the notices to
destroy weeds:
The COUNTY shall deliver to the TOWN a FEE
SCHEDULE listing all reasonable and necessary
fees and costs approved and adopted by the
COUNTY Board of Supervisors for administrative,
enforcement, and abatement services to be
provided under this AGREEMENT in accordance
with SECTION 6.A of this AGREEMENT.
The TOWN Council shall hold a public hearing to
hear objections to the notices to destroy weeds. By
resolution at the conclusion of the hearing, the
TOWN Council shall allow or overrule any or all
objections to the proposed abatement of weeds.
After adoption of TOWN resolution ordering the
abatement of weeds on certain properties as
public nuisances:
The TOWN shall proceed with weed abatement
work on properties located in the TOWN in
accordance with the resolution adopted by the
TOWN Council and this AGREEMENT.
At least ten (10) days prior to the date of the
public hearing before the TOWN’s governing
body regarding the placement of special
assessment liens on properties for weed
abatement charges:
Pursuant to SECTION 6.B of this AGREEMENT,
the COUNTY shall provide to the TOWN for
review and processing a complete and accurate
REPORT of costs and expenses incurred by or on
behalf of the COUNTY for weed abatement
SERVICES performed in the TOWN during the
preceding twelve (12) months under this
AGREEMENT.
On or before August 10 of each year: The COUNTY shall obtain a resolution from the TOWN to confirm the REPORT and order the
weed abatement costs to be a special assessment
against the affected properties.
Agreement for Services
County of Santa Clara
Weed Abatement Services ATTACHMENT 1
At least ten (10) days prior to the TOWN
meeting to hear objections to the REPORT:
The TOWN shall mail a notice to all property
owners identified in the REPORT, which provides
the date, time, and place of the TOWN Council’s
hearing on the REPORT at which person may
appear and object to the REPORT.
Upon adoption of resolution by the TOWN
Council confirming or amending REPORT and
ordering weed abatement costs become a special
assessment lien against the affected properties
and filing of REPORT with COUNTY Auditor:
The COUNTY shall enter each such assessment on
the COUNTY tax roll and cause such amounts to
be collected at the same time, and in the same
manner, as general TOWN taxes are collected.
Upon request by TOWN The COUNTY shall perform weed abatement SERVICES on TOWN-owned lots and parcels.
PREPARED BY: Arn Andrews
Assistant Town Manager
Reviewed by: Town Manager and Town Attorney
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 04/05/2022
ITEM NO: 10
DATE: March 29, 2022
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Approve the Senior Service Committee Request to Seek Targeted Solicitations to Host a Community Reception Per the Town Solicitation and Donation Policy
RECOMMENDATION:
Approve the Senior Service Committee request to seek targeted solicitations to host a community reception per the Town Solicitation and Donation Policy.
BACKGROUND:
On August 3, 2021, the Town Council adopted a Resolution 2021-035 establishing a Senior Service Committee for the development of a long-term vision and plan for senior service provision in Los Gatos. In addition, on September 7, 2021, the Town Council reviewed American Rescue Plan Act (ARPA) funding recommendations from the Community Health and Senior Service Commission to restore and enhance senior services in Town. As part of that discussion, Council allocated $21,500 in ARPA funding to the Saratoga Area Senior Coordinating Council (SASCC) to administer and the facilitation of senior survey in Town.
DISCUSSION:
In conjunction with SASCC and survey provider Polco, the Senior Service Committee launched the Community Assessment Survey for Older Adults (CASOA) on January 26, 2022. The survey closed on March 15, 2022, and the draft report of results is scheduled for early April. In anticipation of the survey results, the Senior Service Committee is coordinating a community reception at the Adult Recreation Center (Los Gatos Saratoga Recreation site) to engage the community in the results. Committee members desire to solicit donations (food, beverages, etc.) for the community reception and to do so, the Town Council Solicitation and Donation
PAGE 2 OF 2
SUBJECT: Approve Senior Service Committee Request to Seek Targeted Solicitations DATE: March 29, 2022
DISCUSSION (continued):
Policy 2-17 (Attachment 1) requires prior Council approval as stated below:
“Targeted solicitation is defined as the direct petition or contact of specific individuals, companies, foundations or other entities initiated by the Town Council and other elected officials, Council advisory bodies, and Town employees herein called “Town Officials” for the purpose of receiving goods, services, or other contributions for the Town. Targeted solicitation excludes the direct petition for government, private, or non-profit grants for Council-approved programs, projects, and services. Unless prior approval has been given by Council, Town Officials shall not engage in targeted solicitation activities on behalf of the Town.” CONCLUSION:
Council approval for the Senior Service Committee to seek targeted solicitations would allow the Committee to host a community event to debut the results of the Town senior survey.
COORDINATION:
This staff report was coordinated with the Town Manager and Town Attorney FISCAL IMPACT:
None.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. Solicitation and Donation Policy
Reviewed by: Town Manager, Assistant Town Manager, Community Development Director and Parks and Public Works Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 04/05/2022
ITEM NO: 11
DATE: March 30, 2022
TO: Mayor and Town Council
FROM: Robert Schultz, Town Attorney
SUBJECT: Introduction and First Reading of an Ordinance Repealing and Replacing Article III of Chapter 10 of the Los Gatos Town Code Regulating Food Service Ware by Food Facilities to Align with New State Laws
RECOMMENDATION:
Accept public comment then move for the introduction and first reading of an Ordinance (Attachment 2), by title only, repealing and replacing Article III of Chapter 10 of the Los Gatos Town Code regulating Food Service Ware.
BACKGROUND:
The Town has a substantial interest in protecting its residents, and the environment, from negative impacts associated with disposable food service ware items. Disposable (also referred to as single-use, or nonreusable) food service ware items—including cups, bowls, plates, containers, utensils, straws, cup lids, napkins, and drink stirrers and plugs —contribute to street litter, ocean pollution, wildlife harm, and greenhouse gas emissions. The production and disposal of non-reusable food service ware accessories have significant environmental impacts, including the contamination of the environment, the depletion of natural resources, use of nonrenewable polluting fossil fuels, greenhouse gas emissions, and increased clean-up and end of life management costs. Disposable plastic is especially problematic in the environment, as it breaks apart easily into small pieces and is often mistaken as food by birds, fish, and wildlife.
The small plastic items addressed in this proposed ordinance, such as straws and stirrers, are light and therefore easily transported by wind and stormwater to waterways. In fact, plastic straws and drink stirrers are among the top 10 most commonly found items on beaches nationally. Plastics in waterways and oceans break down into smaller pieces that are not biodegradable and are present in most of the world’s oceans.
PAGE 2 OF 4
SUBJECT: Introduction and First Reading of an Ordinance Repealing and Replacing Article III of Chapter 10 of the Los Gatos Town Code Regulating Food Service Ware by Food Facilities to Align with New State Laws
DATE: March 30, 2022
BACKGROUND (continued):
On December 16, 2014, the Town Council adopted the Polystyrene Foam Food Service Ware Ordinance (2235), creating the Town’s first food service ware regulations. This ordinance added Article III to Chapter 10 of the Los Gatos Town Code, prohibiting food providers from using polystyrene foam food service ware and banning retail sale of foam food service ware and foam ice chests or coolers (Attachment 1).
In 2018, California adopted Assembly Bill (AB) 1884, requiring single-use plastic straws to only be provided upon consumer request in full-service restaurants. The State expanded on this and strengthened enforcement through passage of AB 1276 in October 2021. AB 1276 prohibits food facilities from providing consumers, unless requested, certain single-use food service ware accessories and standard condiments packaged for single use. It directs the Town to authorize an enforcement agency to enforce these provisions by June 1, 2022.
On October 5, 2021, Governor Newsom signed AB 1200, prohibiting the sale or distribution of food packaging containing Per and Polyfluoroakyl Substances (PFAS) by January 1, 2023. This regulation will apply to paper, paperboard, or other natural fiber food packaging.
In 2021, the Town’s Youth Commission began working with the Town Attroney to develop a Single Use Disposable Foodware ordinance and on January 25, 2022, the Town Council adopted as one of its Ordinance and Policy Priorities the adoption of Single Use Disposable Foodware Ordinance. Single use disposable foodware and packaging (SUDs) includes plates, cutlery, cups, lids, straws, “clamshells” and other containers. Reducing the use of SUDs and/or requiring compostable products in the Town of Los Gatos is a key strategy to achieve the Town’s Zero Waste and Climate Action goals, and to address the many environmental impacts and costs associated with the use and disposal of single-use foodware and packaging.
In the Bay Area and in other parts of the state, several municipalities have adopted various forms of legislation regulating food service ware and/or food service ware accessories with the intent of reducing environmental harm caused by these items. These agencies include Palo Alto, Mountain View, Berkeley, San Francisco, Oakland, Alameda, Davis, Santa Cruz, Watsonville, and other cities. A comprehensive list of jurisdictions that have enacted policies that have restricted disposable foodware items and brought reusables into food service for onsite dining, take-out and delivery can be found at https://upstreamsolutions.org/policytracker .
Relevant legislation and existing federal, state, and local regulations align with the adoption of the draft Ordinance (Attachment 2) prepared by the Youth Commission and the Town Attorney.
PAGE 3 OF 4
SUBJECT: Introduction and First Reading of an Ordinance Repealing and Replacing Article III of Chapter 10 of the Los Gatos Town Code Regulating Food Service Ware by Food Facilities to Align with New State Laws
DATE: March 30, 2022
DISCUSSION:
The draft ordinance is applicable to food providers and addresses the landfilled waste, health impacts, and litter resulting from disposable food packaging in key areas both covered and not covered by the new State legislation. A food provider is any entity serving public food and beverages in Los Gatos regardless of whether there is a charge. Food providers include restaurants, coffee or juice shops, bakeries, mobile food trucks, caterers, event venues, corporate cafeterias, private schools, and convenience stores.
The draft ordinance provisions include:
Continue the Town’s existing polystyrene foam food ware ban. Beginning January 1, 2023, food providers may only use nonreusable food service ware (cups, bowls, plates, trays, cartons, boxes, wrappers or liners, and hinged containers, etc.) that is compostable (natural fiber-based) and third-party certified free of PFAS, with the exception of food service ware made entirely of aluminum, which is recyclable. Beginning January 1, 2023, food providers may not use the following nonreusable food service ware accessories if made from or packaged in plastic, including biologically based polymers or compostable plastic: straws, stirrers, food picks, or toothpicks.
Exceptions for plastic straws may be provided upon request to consumers for medical reasons, and health-care facilities may distribute plastic straws to patients who require them with or without a request.
Automatic exemptions are provided during an emergency, although food providers will be encouraged to maintain compliance if possible.
Temporary exemptions for certain food service ware items if the Parks and Public Works Director determines a reasonably feasible compliant alternative does not exist. Similar to the original Polystyrene Foam Food Service Ware Ordinance, food providers may apply for a one-year waiver from the requirements that food service ware be compostable and certified PFAS-free. The waiver may be granted by the Parks and Public Works Director due to exceptional circumstances, such as economic hardship or unique food packaging needs.
The ordinance’s implementation timeline is consistent with all relevant State laws and designed to give food providers enough time to prepare for the new requirements, including training
PAGE 4 OF 4
SUBJECT: Introduction and First Reading of an Ordinance Repealing and Replacing Article III of Chapter 10 of the Los Gatos Town Code Regulating Food Service Ware by Food Facilities to Align with New State Laws
DATE: March 30, 2022
DISCUSSION (continued):
staff, using up noncompliant food ware, and finding compliant food packaging. The Town with the help of the Youth Commission will concurrently provide outreach and education to businesses to assist in understanding the Ordinance.
CONCLUSION:
It is recommended that the Town Council move for the introduction and first reading of an Ordinance (Attachment 2), by title only, Repealing and Replacing Article III of Chapter 10 of the Los Gatos Town Code Regulating Food Service Ware by Food Facilities to Align with New State Laws.
COORDINATION:
This report was coordinated with the Town Manager’s Office.
FISCAL IMPACT:
There will be no fiscal impact to the Town at this time.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachment:
1. Current Ordinance
2. Draft Ordinance
- CODE
Chapter 10 - FOOD AND FOOD ESTABLISHMENTS
ARTICLE III. EXPANDED POLYSTYRENE FOAM FOOD SERVICE CONTAINER-WARE Los Gatos, California, Code of Ordinances Created: 2022-03-01 15:10:32 [EST] (Supp. No. 88) ATTACHMENT 1
ARTICLE III. EXPANDED POLYSTYRENE FOAM FOOD SERVICE CONTAINER-WARE Sec. 10.30.010. Findings and purpose.
The Town Council finds and determines that:
(1) Plastic debris and in particular expanded polystyrene foam ("EPS") is a distinctive litter concern because it is lightweight, floats, and readily travels from land to inland waterways and out to the ocean where it breaks down into small pieces which may be mistaken for food by birds and other marine wildlife.
(2) EPS disposable food service ware comprises a majority of EPS litter observed in storm drains. (3) The proposed ban of EPS disposable food service ware would require food providers to use alternative disposable food service ware that should result in a reduction of EPS litter, reduce the risk of harm to aquatic wildlife, and improve water quality in the Town of Los Gatos creeks and Southern San Francisco Bay.
This Council does, accordingly, find and declare that it should prohibit the use of expanded polystyrene foam food service container-ware.
( Ord. No. 2235, § I(Exh. A), 12-16-14 )
Sec. 10.30.015. Definitions.
[For the purposes of this article, the following words and phrases shall have the meanings respectively ascribed to them by this section.]
Customer means any person obtaining prepared food from a food provider.
Disposable food service ware or food container means a container or single-use disposable product that is used, or intended to be used, to hold prepared food. Disposable food service ware or food container includes, but is not limited to, plates, trays, cups, bowls, and hinged or lidded containers (clamshells), and includes polystyrene foam coolers or ice chests which are not wholly encapsulated or encased within a more durable material.
Disposable food service ware does not include straws, utensils or drink lids.
Food provider means any establishment, vendor, business, organization, entity, group or individual located or operating in the Town of Los Gatos that offers prepared food or beverages, regardless of whether there is a charge for the food or beverage; (1) to the public for consumption on or off its premises; (2) as a catered event; and/or (3) at cafeterias of private schools and places of employment, whether or not such establishments are open to the general public. Food provider includes, but is not limited to, Town-sponsored events, Town-permitted events, restaurants, retail food establishments, caterers, cafeterias, stores, shops, sales outlets, grocery stores, pubs, coffee shops, convenience stores, liquor stores, supermarkets, delicatessens, fraternal clubs serving the public, itinerant restaurants, mobile food vendors, vehicles or carts, or roadside stands.
Vendor means any store or business, organization, or entity that sells or offers goods or merchandise, located or operating within the Town of Los Gatos.
Polystyrene foam means the thermoplastic petrochemical material made from a styrene monomer and expanded or blown using a gaseous agent (expanded polystyrene) including, but not limited to, fusion of polymer
Created: 2022-03-01 15:10:32 [EST]
(Supp. No. 88)
spheres (expandable bead polystyrene), injection molding, form molding, and extrusion-blow molding (extruded foam polystyrene). Polystyrene foam is commonly made into disposable food service ware products. Polystyrene foam does not include clear or solid polystyrene (oriented polystyrene).
Prepared food means food or beverages that are packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the premises. Prepared food does not include (1) any raw, uncooked meat products or fruits or vegetables unless it can be consumed without further preparation; or (2) prepackaged food that is delivered to the food vendor wholly encased, contained or packaged in a container or wrapper, and sold or otherwise provided by the food vendor in the same container or packaging. ( Ord. No. 2235, § I(Exh. A), 12-16-14 )
Sec. 10.30.020. Polystyrene foam disposable food service ware prohibited.
On or after June 1, 2015, any food provider or vendor shall not dispense prepared food to a customer in a polystyrene foam food container or sell polystyrene foam coolers or ice chests which are not wholly encapsulated or encased within a more durable material.
( Ord. No. 2235, § I(Exh. A), 12-16-14 )
Sec. 10.30.025. Exemption to the polystyrene foam disposable food service ware prohibition. (a) Raw eggs and raw, butchered meat, fish, or poultry that is sold from a butcher case or a similar retail appliance.
(b) A food provider may seek an exemption from the prohibition under section 10.30.[020] due to a "unique packaging hardship" under subsection [(c)] of this section or a "financial hardship" under subsection [(d)] of this section.
(c) The food provider must demonstrate that no reasonably feasible alternative exists to a specific and unique polystyrene foam disposable food service ware in order to qualify for a "unique packaging hardship" exemption.
(d) The food provider must demonstrate both of the following to qualify for a "financial hardship" exemption:
(1) a gross income under three hundred thousand dollars ($300,000.00) on its annual income tax filing for the most recent tax year; and (2) with respect to each specific and necessary polystyrene foam disposable food service ware, that there is no feasible alternative that would cost the same or less than the polystyrene foam disposable food service ware.
(e) The food provider may submit a written application for an exemption on a form provided by the Department of Parks and Public Works. The Director of Parks and Public Works ("Director") may require the applicant to submit additional information or documentation to make a determination regarding the exemption requested. A request for exemption shall be reviewed on a case by case basis, and may be granted in whole or in part, with or without conditions, for a period of up to twelve (12) months. The national food vendor or food vendor must apply for a new exemption period no later than sixty (60) days prior to the expiration of the then current exemption period to preserve a continuous exemption status. Each application shall be reviewed anew and will be based on the most current information available. The determination of the Director shall be final and is not subject to appeal.
( Ord. No. 2235, § I(Exh. A), 12-16-14 )
Created: 2022-03-01 15:10:32 [EST]
(Supp. No. 88)
Sec. 10.30.030. Administrative penalty.
A penalty may be imposed upon findings made by the Town's code compliance officer that any food provider has provided a "disposable food service ware" or "food container" in violation of this chapter. The amount of penalty and the penalty procedures applicable to any violation of this chapter are contained in the Los Gatos Municipal Code, Article III, Section 1.30, entitled "Administrative Citations." ( Ord. No. 2235, § I(Exh. A), 12-16-14 )
Sec. 10.30.040. Severability.
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional, such portion shall be deemed to be a separate, distinct and independent provision and such decision shall not affect the validity of the remaining portion thereof. ( Ord. No. 2235, § I(Exh. A), 12-16-14 )
ORDINANCE NO.
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF LOS
GATOS REPEALING AND REPLACING ARTICLE III OF CHAPTER 10 OF
THE LOS GATOS TOWN CODE RELATED TO FOOD SERVICE WARE
WHEREAS, on December 16, 2014, the Town of Los Gatos adopted an ordinance (2235) prohibiting food providers from selling or providing prepared food using food packaging containing polystyrene foam, and vendors from selling polystyrene foam food service, currently codified as Article III of Chapter 10 of the Town Code; and WHEREAS, this ordinance continues to prohibit the sale and use of polystyrene foam food service ware and also further regulates nonreusable plastic food service ware and food service ware accessories in Los Gatos ; and
WHEREAS, on October 5, 2021, AB 1276 was signed into law by Governor Gavin Newsom.
AB 1276 restricts the distribution of single use foodware accessories (e.g., utensils, straws, stirrers, condiment packets, etc.) by restaurants and other food facilities; and WHEREAS, on October 5, 2021, AB 1200 was also signed into law by the Governor which prohibits the sale or distribution of food packaging made primarily from paper, paperboard, or other natural fiber that contains per- and polyfluoroalkyl substances (PFAS) in California beginning January 1, 2023; and
WHEREAS, Ordinance 2235 includes requirements that are well aligned with many of the requirements on foodware in AB 1276 and AB 1200; however, some discrepancies exist. As such, the Ordinance must be amended to ensure alignment with requirements in both State bills; and WHEREAS, Assembly Bill 1200 does not include a verification mechanism to assist food providers in identifying whether the food packaging contains PFAS; and WHEREAS, this ordinance, as an exercise of the Town’s police power, requires that food service ware used by a food provider in Los Gatos be certified as PFAS-free by an independent third-party certifying organization to assist Los Gatos food providersin identifying PFAS-free food service ware; and
WHEREAS, the State also recently adopted Assembly Bill 1276, which prohibits the distribution of single-use food service ware accessories and standard condiments packaged for single use by food providers except upon request by the consumer; and WHEREAS, a prohibition of plastics for specified nonreusable food service ware accessories furtherthe Town ’s goals and is more restrictive than the recently enacted State law; and ATTACHMENT 2
WHEREAS, this ordinance is consistent with the Town of Los Gatos ’s Sustainability Plan that seeksto reduce solidwaste atitssource and reduce nonreusable food service ware and packaging; and
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Chapter 10, Article III consisting of Sections 10.30.010 through 10.30.040, relating to use of polystyrene foam food service ware by food providers, is hereby repealed in its entirety and replaced by a new Article III Chapter 10 of the Los Gatos Town Code,to read as follows:
“ARTICLE III. - REGULATION OF NONREUSABLE FOOD SERVICE WARE SEC. 10.30.010. – Findings and purpose.
The Town Council finds and determines that:
a. Nonreusable food service ware, including plates, cutlery, cups, lids, straws, “clamshells” and other containers, is a major contributor to street litter, ocean pollution, marine and other wildlife harm, and greenhouse gas emissions.
b. It is in the interest of the health, safety, and welfare of all who live, work, and do business in the Town of Los Gatos that the amount of litter on public streets, parks and in other public places be reduced.
c. The production and disposal of nonreusable food service ware and foodservice ware accessories have significant environmental impacts, including the contamination of the environment, the depletion of natural resources, use of nonrenewable polluting fossil fuels, greenhouse gas emissions and increased clean-up and end-of-life management costs. d. Food service ware made from plastic polymers may last for hundreds and even thousands of years and have broad, long-lasting negative impacts, even though most food service ware is discarded after only a single use.
e. Certain synthetic chemicals known as per- and polyfluoroalkyl substances (PFAS), which are commonly used in disposable food service ware to repel water and grease, pose a public health risk as they have been linked to serious health effects. f. Nonreusable plastic and polystyrene foam food service ware breaks apart easily into small pieces, can end up as litter and is often mistaken as food by birds, fish and wildlife. Plastics in waterways and oceans break down into smaller pieces that arenot biodegradable and are present in most of the world’s oceans.
g. Polystyrene foam food service ware is a distinctive litter concern because it is
lightweight, easily windblown into streets and waterways, and floats in water until it reachesthe San Francisco Bay and ocean.
h. Eliminating the use of polystyrene foam and other noncompostable and nonrecyclable single-use food service ware items and requiring certification that food service ware is PFAS-free will maximize the operating life of landfills, lessen the economic and environmental costs of waste management for businesses and residents ofthe Town of Los Gatos and further protect the public health and safety of residents, the natural environment, waterways, and wildlife.
i. Compostable natural fiber-based food service ware can be diverted from landfill and processed into an organic soil amendment and breaks down in the environment if littered. j. Reduction of nonreusable food service ware and accessories will advance compliance with the San Francisco Bay Region Municipal Regional Stormwater NPDES Permit by helping to reduce trash and litter in the waterways, thus improving water quality in Town waterways and reduces risk of harm to wildlife.
k. The Town Council does, accordingly, find and declare that it should restrict the use of nonreusable food service ware and food service ware accessories. The Town of Los Gatos has a substantial interest in protecting its residents and the environmentfrom the negative impacts of nonreusable food service ware. This Chapter is consistent with the Town’s Zero Waste Policy and Plan.
SEC 10.30.015. - Definitions.
Unless otherwise expressly stated, whenever used in this chapter, the following terms shall have the meanings set forth below:
a. “Aluminum foil-based” means any nonreusable food service ware composed entirely of aluminum, including, but not limited to, aluminum trays, aluminum foil wrappers and aluminum foil baskets.
b. “Compostable” means that an item or material will break down or otherwise become part of usable compost in a safe and timely manner consistent with the composting facility used by the city’sfranchisee and: (1) is natural fiber-based (includingitems that are natural fiber-based and coated or lined with biologically based polymer, such as corn or other plant sources, if certified by an independent third-party certifying organization approved by the public works director or designee); or (2) made from othermaterials approved by the public works director or designee. Compostable does not include items made primarily of biologically based polymer, PLA or other “compostable”plastic, even if labeled or certified as compostable. c. “Disposable” means designed to be discarded after a single or limited number of uses and not designed or manufactured for longer-term multiple reuse.
d. “Food provider” means any establishment, vendor, business, organization, entity, group or individual located or operating in the Town of Los Gatos that offersprepared food or beverages, regardless of whether there is a charge for the food or beverage: (1) to the public for consumption on or off its premises; (2) as a catered event;and/or (3) at cafeterias of private schools and places of employment, whether or not suchestablishments are open to the general public. “Food provider” includes, but is not limited to, restaurants, retail food establishments, caterers, cafeterias, stores, shops, salesoutlets, grocery stores, delicatessens, fraternal clubs serving the public, mobile food vendors, vehicles or carts, or roadside stands. e. “Food service ware” means any products used forserving or packaging prepared food and includes, but is not limited to, cups, bowls, plates, trays, cartons, boxes, wrappers or liners, hinged or lidded containers (clamshells) and other items usedas part of food or beverage service, or in which prepared food is placed or packaged on afood provider’s premises. Food service ware does not include a food service wareaccessory.
f. “Food service ware accessory” means any otheritem used as part of a preparedfood or beverage service that accompanies food service ware such as straws, stirrers, napkins, utensils, condiment packets, cup sleeves, tops, lids, splash sticks and other similar accessory or accompanying items.
g. “Health-care facilities” means places that provide health-care services. Health-care facilities include, but are not limited to, hospitals, clinics, outpatient care centers, nursing homes, psychiatric care centers, medical offices, hospice homes, mental health and addiction treatment centers, orthopedic and other rehabilitation centers, urgent care,birth centers, etc. h. “Nonreusable” means food service ware or food service ware accessories thatare designed to be discarded after a single or limited number of uses and not designed or manufactured for sanitation and reuse over an extended period of time. i. “Perfluoroalkyl and polyfluoroalkyl substances” or “PFAS” means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom. j. “Regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS” means either of the following:
1. PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.
2. The presence of PFAS in a product or product component at or above one hundred (100) parts per million, as measured in total organic fluorine.
j. “Polystyrene foam” means a thermoplastic petrochemical material made froma styrene monomer and expanded or blown using a gaseous agent (expanded polystyrene or EPS), including, but not limited to, fusion of polymer spheres (expandablebead polystyrene), injection molding, form molding and extrusion-blow molding (extruded foam polystyrene). “Polystyrene foam” is commonly made into nonreusable food service ware products. “Polystyrene foam” does not include clear or solid polystyrene (oriented polystyrene). k. “Prepared food” means food or beverages that are served, packaged, cooked, chopped,sliced,mixed, brewed,frozen,squeezed or otherwise prepared on the premisesof a food provider for consumption, including, but not limited to, ready-to-eat, dine-in, take-out or complimentary food or beverage. “Prepared food” does not include: (1) raw eggs and raw, butchered meat, fish or poultry that is sold from a butcher case or a similarretail method; (2) prepackaged food that is delivered to the food provider wholly encased, contained or packaged in a container or wrapper, and sold or otherwise provided by the food provider in the same container or packaging; or (3) nonpolystyrenefoam prepackaged items prepared on-site, which are not made to order and sold as “grocery items.”
l. “Vendor” means any store, business, organization, or entity that sells or offersgoods or merchandise, located or operating within the Town of Los Gatos .
SEC 10.30.020. - Nonreusable food service ware requirements. a. Polystyrene foam:
1. No food provider within the Town of Los Gatos shall use, sell or otherwise provide prepared food using food service ware made from polystyrene foam.
2. Food service ware made from polystyrene foam and coolers, or ice chestsmade from polystyrene foam that are not wholly encapsulated or encased within a more durable material shall not be sold or provided by any vendor in the Town of Los Gatos . b. Certified PFAS-free and compostable:
Effective as of January 1, 2023, food providers within the Town of Los Gatos, when providing prepared food in nonreusable food service ware, must ensure it is: (1) certified as free of all regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS by an independent thirdparty certifying organization approved by the Parks and Public Works Director or designee; and (2) compostable.
SEC 10.30.025. - Plastics prohibited for nonreusable food service ware accessories.
Effective as of January 1, 2023, the following shall apply to nonreusable food serviceware accessories:
a. Food providers shall not use, provide, distribute, or sell the following nonreusable food service ware accessories if they are made from or packaged in plastic, including biologically based polymers or compostable plastic: beverage straws, drink stirrers, food picks or toothpicks. b. Exception. Food providers that customarily offer straws may maintain a small supply of plastic or compostable plastic straws to accommodate individuals who may require and request the use of plastic straws due to disability or other medical or physical conditions or circumstances. Health-care facilities may distribute plastic straws with or without a request by a patient at the discretion of the health-care facility staff based on the physical or medical needs of the patient. Nothing in this Article shall conflict with or be construed to conflict with the Americans with Disabilities Act or any other applicablelaw concerning the rights of individuals with disabilities.
SEC 10.30.030. - Exemptions.
The following are exempt from the provisions of this Article:
a. Nonreusable food service ware that is entirely aluminum foil-based. b. The Parks and Public Works Director or designee may approve temporary exemption of specific nonreusable food service ware items. if the Parks and Public Works Director or designee determines that a reasonably feasible nonreusable food service ware item that complies with this Chapter is not available at the time of evaluation, this item will be exempt from the provisions of this Article until the Parks and Public Works Director, or designee determines that a reasonably feasible alternative is readily available on the market for purchase. The Town will publicly list any items approved as temporarily exempt from the ordinance.
c. In the event of an emergency, the provisions of this Article shall be suspended until the emergency has terminated. An emergency is defined as a sudden, unexpected occurrence posing a clear and imminent dangerthatrequiresimmediate action to preventor mitigate the loss or impairment of life, health, property, or essential public services. Examples of an emergency include, but are not limited to, natural disasters, emergencies due to release of hazardous materials, emergencies associated with loss of power and/or water or emergency medical response.
SEC 10.30.035. - Waivers.
a. A food provider may apply, in writing, to the public works director or designeefor a waiver from compliance with Sec. 16.92, Nonreusable food service ware requirements, subsection (b), Certified PFAS-free and Compostable, if compliance with the Section will impose a unique hardship not generally applicable to other persons in similar circumstances, including, but not limited to, the following:
1. An undue economic hardship.
2. A suitable packaging alternative that conformsto the requirements ofthis Article does not exist for a specific usage.
3. The omission of noncompliant itemsfrom the city’s waste streams, whichcould include, but is not limited to, a city-approved on-site waste processing system. b. The Parks and Public Works Director or designee shall issue a written decision to grant ordeny a waiver and may exempt the food provider for no more than one (1) year from thedate of the decision. The Parks and Public Works Director’s or designee’s decision shall be final and is not subject to appeal.
c. The Parks and Public Works Director or designee may require independent verification ofthe basis for the requested waiver, which may include, but is not limited to, a request for supporting documentation.
SEC 10.30.045 - Penalties and enforcement.
a. Code Compliance or designee shall have primary responsibility forthe enforcement of this Article. The Parks and Public Works Director or designee is authorized to promulgate regulations and take any and all other actions reasonable and necessary to enforce this Article, including, but not limited to, entering the premises of any food provider during regular business hours to verify compliance.
b. A food provider, vendor or other entity violating or failing to comply with any requirement of this Article may be subject to enforcement and penalties pursuant to Chapter 1 Article III of the Los Gatos Town code.
c. Violation of this Article shall be deemed to constitute a public nuisance subject to all applicable civil, administrative, and criminal remedies and penalties according to the provisions and procedures contained in this Article and state law, including, but notlimited to, an action for abatement or injunctive relief.
d. The remedies and penalties provided by this Article are cumulative and in addition to any other remedies available at law or in equity.
SECTION II. CEQA FINDINGS. This Ordinance is not a project within the meaning of Section 15378 of the California Environmental Quality Act (CEQA) Guidelines because it has no potential to result in physical change in the environment, directly or indirectly. This Ordinance is also exempt under CEQA Guideline 15061(b)(3) because it can be seen with certainty that there is no possibility that the Ordinance may have a significant effect on the environment.
SECTION III. SEVERABILITY. If any section, subsection, sentence, clause, phrase or portion of this Ordinance or its application to any person or circumstance is held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of
the remaining portions of this Ordinance or its application to other persons and circumstances.
The Town Council of the Town of Los Gatos declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, or portion thereof despite the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional and, to that end, the provisions hereof are hereby declared to be severable.
SECTION IV. EFFECTIVE DATE AND PUBLICATION. This Ordinance was introduced at a regular meeting of the Town Council of the Town of Los Gatos on the 5th day of April 2022 and adopted by the following vote as an ordinance of the Town of Los Gatos at a regular meeting of the Town Council of the Town of Los Gatos on the 19th day of April 2022. This ordinance takes effect 30 days after it is adopted. In lieu of publication of the full text of the ordinance within fifteen (15) days after its passage a summary of the ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the Town Council and a certified copy shall be posted in the office of the Town Clerk, pursuant to GC 36933(c)(1).
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the ______ day of ________ 2022, by the following vote:
COUNCIL MEMBERS:
AYES
NAYS:
ABSENT:
ABSTAINING:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATED:__________________
ATTEST:
TOWN CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE: __________________
PREPARED BY: Salina Flores
Human Resources Director
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 04/05/2022
ITEM NO: 12
DATE: March 31, 2022
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Approve the Employment Agreement Between the Town of Los Gatos and Gabrielle Whelan for Appointment to Town Attorney and Authorize the Mayor to Execute the Agreement.
RECOMMENDATION:
Approve the employment agreement between the Town of Los Gatos and Gabrielle Whelan for appointment to Town Attorney and authorize the Mayor to execute the agreement (Attachment 1).
BACKGROUND:
In accordance with the Town’s Municipal Code, the Town Attorney is appointed by the Town Council. The terms and conditions of employment historically have been set forth in an employment agreement between the appointee and the Town. The employment agreement is established at the time of appointment and updated periodically on an as-needed basis.
The Town contracted with an executive search firm, Teri Black & Company, for the recruitment of the new Town Attorney. The competitive recruitment process is now complete and the Town Council selected Gabrielle Whelan from a pool of highly qualified candidates for the position.
DISCUSSION:
The attached employment agreement sets forth the terms and conditions of Gabrielle Whelan’s appointment to the position. Under the proposed agreement, Ms. Whelan commences her position as the Town Attorney on Monday, May 16, 2022. The proposed annual base salary is $249,900.
PAGE 2 OF 2
SUBJECT: Approve the Employment Agreement Between the Town of Los Gatos and Gabrielle Whelan for Appointment to Town Attorney and Authorize the Mayor to Execute the Agreement
DATE: March 31, 2022
CONCLUSION:
Approve the employment agreement between the Town and Gabrielle Whelan and authorize the Mayor to execute the agreement on behalf of the Town.
FISCAL IMPACT:
The adoption of this agreement results in no new costs to the Town. The funding to support the salary and benefits is authorized in the annual budget each fiscal year along with all other Town employee compensation and benefits.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachment:
1. Employment Agreement – Town Attorney
ATTACHMENT 1
TOWN ATTORNEY EMPLOYMENT AGREEMENT
This Agreement is made and entered into the ____ day of April 2022, by and between the Town of Los Gatos, a municipal corporation in the State of California ("TOWN"), and Gabrielle Whelan ("ATTORNEY").
RECITALS
A. The Town Council of the Town of Los Gatos desires to appoint Gabrielle Whelan to the position of Town Attorney of the Town of Los Gatos on May 16, 2022.
B. It is the desire of the Town Council to establish the terms and conditions of employment of Gabrielle Whelan as Town Attorney of the Town of Los Gatos, including the duties, salary, and benefits of employment.
C. Gabrielle Whelan desires to accept employment as Town Attorney of the Town of Los Gatos under the terms set forth herein.
NOW, THEREFORE, in consideration of the respective and mutual covenants hereinafter contained and made, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, and subject to all the terms and conditions hereof, the parties agree as follows:
SECTION I. DUTIES AND RESPONSIBILITIES:
A. Appointment as Town Attorney. TOWN hereby agrees to employ ATTORNEY in the capacity of Town Attorney for TOWN during the term of this Agreement. ATTORNEY will perform the functions and dutiesspecified in Section 2.30.505 of the Los Gatos Municipal Code for this position and perform such other legally permissible and proper duties and functions as the Town Council may from time to time assign or delegate. Legal services shall include, but not be limited to, the preparation and review of ordinances, resolutions, agreements, and contracts; legal research; attendance at Town Council meetings and other meetings upon request (such as high profile Planning Commission meetings); rendering of legal opinions to the Town Council and Town Manager; representation of the Town, members of the Town Council and other Town officers and employees in claims and litigation filed by or against the Town, except those that the Town Attorney or Town Council determine should be handled by outside counsel; and such other legal services as may be directed by Town Council or Town Manager. Consistent with other demands of the office, Attorney will use best efforts to handle general municipal and land use litigation herself to reduce costs of outside counsel.
B. Exclusive Employment. During the term of this Agreement, ATTORNEY shall be in the exclusive employ of TOWN; provided, however, that the term "exclusive employ" shall not prohibit future part-time employment which the Employee may desire to accept with appropriate prior knowledge and approval of the Town Council. "Appropriate prior knowledge and approval of the Town Council" shall mean that ATTORNEY shall give four (4) weeks written notice to the Town Council prior to accepting part-time employment and approval of the Town Council shall be deemed given unless any Town Council member states in writing that they desire a closed session to discuss the part-time employment. Such parttime employment shall not in any way conflict in time or interest with ATTORNEY's responsibilities to TOWN. Town Council shall have uncontrolled discretion in granting parttime outside employment and its determination to grant or deny part-time outside employment shall be final. Page 280
ATTACHMENT 1
SECTION 2. SALARY:
A. Initial Salary. TOWN agrees to pay ATTORNEY for her services rendered in the amount of $249,900 annually, payable in installments at the same time as other employees of TOWN are paid.
B. Performance Evaluations. The Town Council shall evaluate the ATTORNEY's performance on or before November 30, 2022, and in November annually thereafter.
C. Salary Increases. Should the Town Council, upon completion of its review of ATTORNEY's performance pursuant to this Agreement, determine that ATTORNEY has met its performance expectations; the Town Council shall increase ATTORNEY's compensation at least consistent with compensation increases granted by Town Council to other Town Management (AtWill/Unrepresented) Employees. ATTORNEY understands and agrees that she has no entitlement to an increase in compensation. Any decision to increase ATTORNEY's compensation shall be retroactive to the beginning of the pay period immediately preceding the evaluation conducted in accordance with Section 2(B) above.
SECTION 3. BENEFITS:
All provisions of the Town Code and regulations and rules of Town relating to vacation and sick leave, medical, dental, vision, retirement (2% at 60 formula, 36-month highest average salary) and pension system contributions, holidays, cash out provisions, and other fringe benefits and working conditions pertaining to Town Management (At-Will/Unrepresented) Employees as they now exist or hereafter may be amended, except as otherwise set forth herein, also shall apply to ATTORNEY. Nothing in this Agreement shall affect any vacation, personal leave, administrative leave, sick time, pension system contributions or accruals, or other benefits which ATTORNEY has accrued and is owed or attributable to ATTORNEY as of the date of this Agreement, all of which shall remain accrued, owing, and attributable to ATTORNEY until used or redeemed by ATTORNEY.
SECTION 4. HOURS OF WORK AND LEAVE BENEFITS:
A. Regular Hours. ATTORNEY's duties may involve expenditures of time in excess of eight (8) hours per day and/or forty (40) hours per week, and may also include time outside normal office hours such as attendance at Town Council and other meetings. ATTORNEY shall not be entitled to additional compensation for any work performed in excess of the TOWN's regular workweek.
B. Administrative Leave. It is recognized that ATTORNEY must devote a great deal of her time outside normal office hours without benefit of paid overtime in the conduct of TOWN business, and, to that end, ATTORNEY shall be entitled to administrative leave in an equivalent amount to that granted Town Management (At-Will/Unrepresented) Employees, which the parties agree is five (5) days per year. ATTORNEY shall be entitled to accrue, use or redeem administrative leave in whatever manner is permitted pursuant to Town policy, as same may be amended from time to time by action of the Town Council.
C. Personal Leave. ATTORNEY shall be entitled to personal leave in the amount of five (5) days per year. ATTORNEY shall be entitled to accrue, use or redeem personal leave in whatever manner is permitted pursuant to Town policy, as same may be amended from time to time by action of the Town Council.
D. Vacation Leave. ATTORNEY shall be entitled to vacation leave in the amount of
ATTACHMENT 1
25 days per year. ATTORNEY shall be entitled to accrue, use or redeem personal leave in whatever manner is permitted pursuant to Town policy, as same may be amended from time to time by action of the Town Council.
E. Sick Leave. ATTORNEY shall be entitled to sick leave in the amount of 12 days per year. ATTORNEY shall be entitled to accrue, use or redeem personal leave in whatever manner is permitted pursuant to Town policy, as same may be amended from time to time by action of the Town Council.
F. Mileage Reimbursement, Cell Phone Stipend, Holidays, Bereavement/Compassion Leave, Flexible Health Spending Account, Employee Assistance Program, and Other Fringe Benefits. ATTORNEY shall be entitled to mileage reimbursement, cell phone stipend, holidays, bereavement/compassion leave, Flexible Health Spending Account, Employee Assistance Program, and other fringe benefits as they now exist or hereafter may be amended for Town Department Directors.
SECTION 5. TECHNOLOGY:
A. Technology. TOWN agrees to budget, within the budget amount approved by the TOWN, a technology budget to assist ATTORNEY in keeping technologically current and personal productivity high. The technology improvements will be used to pay the cost of acquisition of equipment and purchase of services related to information systems, data handling, communications and productivity and shall be budgeted for the good of the Town in accordance with approved budgeting limitations. Purchases for technology improvements shall remain the property of the TOWN.
SECTION 6. ADDITIONAL EXPENSES:
A. Dues and Subscriptions. TOWN agrees to pay the professional dues and subscriptions of ATTORNEY necessary for her continuation and full participation in such national, regional, state and local associations and organizations as are necessary and desirable for her continued professional participation, growth, and advancement and for the good of TOWN in accordance with approved budgetary limitations.
B. Professional Development. TOWN agrees that attendance at State Bar Association, Santa Clara County Bar Association, League of California Cities (Attorneys Department), the Bay Area City Attorneys Association, Santa Clara County City Attorneys Association, and other professional development activities is both beneficial and expected. TOWN hereby agrees to pay the travel, lodging, and subsistence expenses of ATTORNEY for professional and official travel, lodging, meetings, and occasions, and for short courses, institutes, and seminars necessary to continue the professional development of ATTORNEY, and to adequately pursue necessary official and other functions for TOWN, in accordance with approved budgetary limitations.
C. Executive Expenses. TOWN recognizes that certain expenses of a non-personal and job-affiliated nature are incurred by ATTORNEY and hereby agrees to reimburse such expenses upon presentation of a receipt and submission of the appropriate confining purchase requisition to the Mayor and Town Finance Department, in accordance with approved budgetary limitations and subject any policies and guidelines the Town Council may impose.
SECTION 7. TERM; TERMINATION:
A. Term of Agreement. This Agreement shall commence upon execution by the parties and become effective May 16, 2022 and extend indefinitely until terminated as provided
ATTACHMENT 1
hereinafter.
B. At-Will Employment. ATTORNEY's employment with the Town is "at-will" and ATTORNEY serves at the pleasure of the Town Council. As such, a majority of the Town Council may terminate ATTORNEY's employment at any time, with or without cause pursuant to the provisions in this agreement.
C. Termination Without Cause. In the event that TOWN terminates ATTORNEY's employment for reasons other than those set forth in subsection D below, including without limitation, for no reason stated, within the term of this Agreement, or any extensions, TOWN agrees to pay ATTORNEY a cash payment equal to six (6) months of the ATTORNEY's then current salary and any benefits that are lawfully required to be continued pursuant to COBRA and other statutes. Following such six (6) month period, ATTORNEY retains the right to participate in Town health and related benefit programs, should such programs be instituted during the term of this Agreement, at ATTORNEY's own and sole expense pursuant to the terms of COBRA. ATTORNEY shall be compensated for any unused vacation leave, holidays, and other benefits then accrued consistent with Town policies. The schedule of the payment pursuant to this section shall be at the sole discretion of the ATTORNEY.
D. Termination With Cause. The TOWN may terminate ATTORNEY's employment hereunder at any time for cause. No lump sum cash payment or other severance pay shall be due ATTORNEY upon any termination for cause. For purposes of this Agreement, "cause" shall mean any of the following: (i) a gross or habitual failure to perform the functions and duties of the Town ATTORNEY or any other obligations as required by the terms of this Agreement; (ii) Any other intentional or grossly negligent action or inaction by ATTORNEY that materially and substantially:
(A) impedes or disrupts the operations of the TOWN or its organizational units; (B) is detrimental to employee or public safety; or (C) violates properly established rules or procedures of the Town causing a material and substantial adverse effect on the TOWN's interests as clearly defined and delineated by properly established Town Council action taken by the Town Council as a body, policy, regulations or ordinances of the TOWN; (iii) That ATTORNEY has been willfully and intentionally absent without leave, or has willfully and intentionally failed to report after leave of absence has expired; (iv) That ATTORNEY has willfully failed or refused to appear in obedience to lawful process or order of the Town Council or to answer questions under oath, before the TOWN Council or before a duly authorized committee of Congress of the United States or of the Legislature of the State of California, or a committee or subcommittee of said Congress or Legislature, or before any authorized court, office or tribunal, or before a Grand Jury, on any subject relating to (I) matters connected with the conduct of official business of the TOWN or of any division, department, board or commission thereof, or (2) any of the matters set forth in sections 1028 and 1028.1 of the Government Code of the State of California; or (v) That ATTORNEY has been convicted of a misdemeanor involving a crime of moral turpitude or a felony, or entry of a plea of nolo contendere with regard to a misdemeanor involving a crime of moral turpitude or a felony.
E. Voluntary Resignation. ATTORNEY may voluntarily resign her position with TOWN before expiration of the term of this Agreement by giving TOWN sixty (60) days prior written notice. No lump sum cash payment or other severance pay shall be due ATTORNEY upon any voluntary resignation.
F. Termination Based on Disability or Death. ln the event ATTORNEY is permanently disabled, as determined by ATTORNEY's duly licensed physician, or is otherwise unable to perform her duties because of sickness, accident, injury, mental incapacity or health reasons for a period of three (3) consecutive months beyond any accrued sick leave, Town may terminate this Agreement.
ATTACHMENT 1
G. Limitation on Obligation. Notwithstanding anything to the contrary herein, TOWN shall not be obligated to pay, and shall not pay, any amounts or continue any benefits under this agreement if ATTORNEY is terminated in the event ATTORNEY is convicted of a crime involving an abuse of her office or position. Any paid leave salary offered by TOWN to ATTORNEY pending an investigation shall be fully reimbursed by ATTORNEY if ATTORNEY is convicted of a crime involving an abuse of her office or position. For the purposes of this section, ''abuse of office or position" means and is limited to the definition under Government Code section 53243.4 either of the fo1lowing: (a) an abuse of public authority including but not limited to waste, fraud, and violation of the law under color of authority; or (b) a crime against public justice, including but not limited to, a crime described in Title 7 (commencing with Section 92) of Part I of the California Penal Code.
SECTION 8. GENERAL PROVISIONS:
A. Entire Agreement. This Agreement shall constitute the full, complete and exclusive agreement between the parties hereto and shall supersede all prior and contemporaneous agreements, understandings and representations regarding the subject matter hereof, whether oral or written.
B. Indemnification. TOWN agrees to defend, hold harmless and indemnify ATTORNEY against any tort, professional liability claim or demand, or other legal action, whether groundless or otherwise, arising out an alleged act or omission occurring in the performance of ATTORNEY's duties. TOWN, at its direction, is not required to indemnify ATTORNEY for any illegal or criminal acts for which a court of competent jurisdiction has determined, without possibility of appeal, was committed by ATTORNEY.
C. Bonding Requirements. TOWN shall bear full cost of the Fidelity Bond required of ATTORNEY under any law or ordinance.
D. Assignment. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by TOWN and ATTORNEY and their respective successors, assigns, heirs and executors, except that ATTORNEY may not assign this Agreement or delegate any of her obligations hereunder and may only assign her rights hereunder with the prior written consent of TOWN.
E. Severability. If any provision, or any portion thereof, contained in this Agreement is held to be unconstitutional, invalid, or unenforceable, the remainder of this Agreement or portion thereof shall be deemed severable, shall not be affected and shall remain in full force and effect.
F. Notices. Any notice required under this Agreement shall be in writing, shall be sent by personal delivery, courier or first class mail, return receipt requested, and shall be deemed effective upon receipt.
G. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without regard to its conflicts of laws principles.
H. Attorney's Fees. In the event of any dispute between the parties hereto relating to or arising out of this Agreement, the prevailing party shall be entitled to receive its reasonable attorneys' fees and costs, in addition to any other relief it may receive.
IN WITNESS WHEREOF, the Town of Los Gatos has caused this Agreement to be signed and executed in its behalf by its Mayor, and duly attested to by its Town Clerk, and the ATTORNEY has signed and executed this Agreement the day and year first above written. Page 284 ATTACHMENT 1
ATTORNEY: TOWN OF LOS GATOS:
Gabrielle Whelan Robert Rennie, Mayor
Approved As To Form:
Robert Schultz, Town Attorney
Attest:
Shelley Neis, MMC, CPMC, Town Clerk
PREPARED BY: Derek Moye
Interim Operations Captain
Reviewed by: Town Manager, Assistant Town Manager, Police Chief, and Town Attorney 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
Staff Report
MEETING DATE: 04/05/2022
ITEM NO: 13
DATE: April 5, 2022
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Introduce an Ordinance Approving a Military Equipment Funding, Acquisition, and Use Policy Pursuant to Assembly Bill 481.
RECOMMENDATION:
Introduce an ordinance (Attachment 1) approving a military equipment funding, acquisition, and use policy (Attachment 2) pursuant to Assembly Bill 481 (Attachment 4).
BACKGROUND:
On September 30, 2021, Governor Newsom signed into law several major peace officer reform bills, including Assembly Bill 481 (AB 481). AB 481 was authored by Assemblymember David Chiu (D-San Francisco) to address the funding, acquisition, and use of items deemed to be “military equipment.”
This bill requires law enforcement agencies, including the Los Gatos-Monte Sereno Police Department, “to obtain approval of the applicable governing body, by adoption of a military equipment use policy, as specified, by ordinance at a regular meeting held pursuant to specified open meeting laws, prior to taking certain actions relating to the funding, acquisition, or use of military equipment, as defined.”
Furthermore, AB 481 requires similar approval for the continued use of “military equipment” acquired by the Los Gatos-Monte Sereno Police Department prior to January 1, 2022, and allows the governing body to approve the funding, acquisition, or use of military equipment within its jurisdiction only if it determines that the military equipment meets specified standards.
PAGE 2 OF 3
SUBJECT: Proposed Military Equipment Use Ordinance
DATE: April 5, 2022
DISCUSSION:
AB 481 requires the governing body that oversees a law enforcement agency to approve an ordinance adopting a Military Equipment Use Policy at a regular meeting of the governing body held in accordance with the Brown Act (Attachment 4). The Assembly Bill has designated certain types of law enforcement equipment as "military equipment." Out of the fifteen categories of “military equipment” listed under AB 481, Los Gatos-Monte Sereno Police Department has items in four of the categories. These items include: a robot, an unmanned aerial vehicle (UAV), rifles and ammunition, noise flash diversionary devices, tear gas and munitions, and 40mm less lethal weapon and munitions (Attachment 3).
This Ordinance would add Article III to Chapter 21 of the Town Code governing the use of military equipment by the Police Department. In addition, the Ordinance outlines the Policy for military equipment funding, acquisition, and use pursuant to Assembly Bill 481. The Ordinance must be adopted before Los Gatos-Monte Sereno Police Department may request, seek funds, acquire, collaborate to deploy, use, or solicit a proposal for any type of military equipment. AB 481 outlines the requirements of the Police Department so that ongoing access to the items mentioned can continue and for the development of a future acquisition process and mandated transparency requirements. Los Gatos-Monte Sereno Police contracts with Lexipol, a public safety policy and training organization, for policy development and implementation. The proposed LGMSPD Policy 704-Military Equipment is based on a Lexipol policy and outlines purpose, scope, definitions, and categories deemed as military equipment (Attachment 2).
The Town’s Ordinance must include certain standards of approval, including:
A. The “military equipment” identified in Los Gatos-Monte Sereno Police Department Policy 704-Military Equipment is necessary because there are no reasonable alternatives that can achieve the same objectives of officer and civilian safety.
B. Los Gatos-Monte Sereno Police Department Policy 704 will safeguard the public’s welfare, safety, civil rights, and civil liberties.
C. The “military equipment” identified in Los Gatos-Monte Sereno Police Department Policy 704 is reasonably cost effective compared to available alternatives that can achieve the same objectives of officer and civilian safe.
In addition to posting the “military equipment” use policy on the law enforcement agency’s website, each agency must submit an annual “Military Equipment” Report to the governing body detailing the equipment used in the preceding year. This report must include a summary of how the equipment was used, a summary of complaints received, the result of any internal audit and actions taken in response, the total annual cost and the quantity possessed of each type of “military equipment,” and any additional equipment the agency intends to acquire in the next year.