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MODESTO CITY COUNCIL
www.modestogov.com
AGENDA
City of Modesto
CITY COUNCIL MEETING
Chambers, Basement Level
Tenth Street Place, 1010 10th Street
Modesto, California
Tuesday, December 13, 2022 at 5:30 PM
*Roll Call - Councilmembers Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
* Some Councilmembers may be participating in the meeting remotely via teleconferencing or other electronic means consistent with the AB 361.
“Wordly” can translate into 25+ different languages! To access written translation during the meeting, please scan the QR Code or click this link https://attend.wordly.ai/join/RJDY-6364.
"Wordly" puede traducir a más de 25 idiomas diferentes! Para acceder a la traducción durante la reunión, por favor escanee el código QR o haga clic en el enlace https://attend.wordly.ai/join/RJDY-6364.
THIS MEETING WILL BE PHYSICALLY OPEN TO THE PUBLIC AND BY ZOOM
VIDEO CONFERENCING AND TELEPHONE
In order to minimize the spread of the COVID-19 virus, this meeting will be conducted pursuant to AB 361, which amended the Brown Act’s teleconferencing provisions.
You may observe a livestream of the meeting at http://media.modestogov.com. You may also participate in the meeting as indicated below.
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PARTICIPATING IN CITY COUNCIL MEETINGS IN CONFORMANCE WITH AB 361
The City of Modesto is providing alternatives to view Council meetings and provide public comments. If you wish to make either a general public comment or to comment on a specific agenda item, you may use one of the following options:
SUBMITTING COMMENTS BY E-MAIL
Written comments may be submitted via email to: [email protected] (include Agenda Item Number in the subject line). All comments will be shared with the Councilmembers and placed in the record, but will not be read aloud during the meeting. Written comments must be received by 3:00 p.m. on the day of the meeting.
VIRTUAL PARTICIPATION BY ZOOM VIDEO
CONFERENCING AND TELEPHONE
Joining the City Council meeting via Zoom
The City of Modesto is now offering the ability to view and participate in Council meetings via telephonic conferencing via “Zoom” video conferencing computer technology. The meeting may be accessed through the use of Zoom using the following options:
Enter the following link into an Internet Browser
https://us02web.zoom.us/j/86945970570,
Enter the following link into an Internet Browser https://zoom.us/ and using the Webinar ID 869 4597 0570
Passcode 84326
To use Zoom, please visit: https://zoom.us/ and either sign-up for a free Zoom account or continue as a guest. Once you have downloaded the app onto your mobile device, joined from your web browser, or downloaded the Zoom software on your computer you will be ready for the upcoming Council meeting.
Joining the City Council meeting via Telephone
If you don’t have a smart phone or computer to access the meeting via Zoom, you can participate by phone, by calling 1-877-853-5257 (Toll Free) or 1-888-475-4499 (Toll Free) and enter the Webinar ID 869 4597 0570 Passcode 84326
Providing Public Comment on Zoom and by Telephone
The Mayor will request public comment during the Public Comment periods on the meeting agendas and during each Public Hearing and Regular Calendar Item on the Council Agenda.
Once the Mayor has announced the public comment period, please do one of the following.
USING A COMPUTER OR SMART PHONE APP:
Click on the “Raise Hand” feature in the webinar controls. This will notify City staff that you have raised your hand.
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City staff will unmute your microphone when it is your turn to provide public comment.
A prompt will appear to confirm you would like to be unmuted and then you will have three minutes to provide public comment.
Once your public comment has ended, you will be muted again.
USING A REGULAR PHONE (not using a computer or smart phone APP):
Dial *9 (star 9), this will notify City staff that you have “raised your hand” for public comment.
City staff will unmute your microphone when it is your turn to provide public comment.
You will hear “you are unmuted” and then you will have three minutes to provide public comment.
Once your public comment has ended, you will be muted again. If your phone is unmuted, and you are unable to be heard, the host may ask that you Dial *6 to toggle mute on/off in Zoom.
Additional Zoom resources/support
Please visit Zoom’s website support page on helpful tips to prepare for the meeting:
https://support.zoom.us/hc/en-us/categories/201146643
Pledge of Allegiance to the Flag
Invocation: Dallas Jackson, Renew Church
City Clerk’s Announcements
Declaration of Conflicts of Interest
Reports from Closed Session
ACKNOWLEDGEMENTS AND PRESENTATIONS
1. Presentations of Certificate of Achievement for Excellence in Financial Reporting and Popular Annual Financial Reporting Award by Government Finance Officers Association (GFOA) for Fiscal Year ending June 30, 2021, and Presentation for Distinguished Budget Presentation Award by GFOA for Fiscal Year 2022-23 Budget. (Funding Source: Not Applicable)
FINANCE; DeAnna Christensen, 209-577-5387, [email protected]
2. Presentation of eye glasses collected during Second Chance Week. (Funding Source:
Not Applicable)
PUBLIC WORKS; Myriah Hill, 209-521-4801, [email protected] - 3 -
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PUBLIC COMMENT PERIOD
Please refer to special public comment instructions above.
Three-minute time limit per speaker
Only interested persons in the audience may present these matters. Under State law, Councilmembers may respond to matters being presented under this item only as follows:
a. Briefly respond to statements made or questions raised. b. Ask a question for clarification.
c. Provide a reference to staff or other resources for factual information. d. Request staff to report back at a subsequent meeting. e. Finally, a Councilmember or the Council itself may take action to direct staff to place a matter of business on a future agenda.
CONSENT ITEMS – ROLL CALL VOTE REQUIRED
Information concerning the consent items listed below has been forwarded to each Councilmember prior to this meeting for study. Unless some member of the audience or Councilmember has a question concerning an item and asks that it be withdrawn from the consent list, the Council approves the items at one time. The action taken by the Council in approving consent items is set forth in the explanation of this individual item.
Any and all of the following agenda items are subject to action by the Modesto City Council.
This Agenda is on file at the Modesto-Stanislaus Library Reference Room, 1500 I Street, Modesto, in the City Clerk’s Office, Sixth Floor, 10th Street Place, and is available on the City’s Web site at www.modestogov.com.
In accordance with the requirements of Title II of the Americans with Disabilities Act (“ADA”) of 1990, the Fair Employment & Housing Act (“FEHA”), the Rehabilitation Act of 1973 (as amended), Government Code section 11135 and other applicable codes, the City of Modesto (“City”) will not discriminate against individuals on the basis of disability in the City’s services, programs, or activities. For more information, please visit the City of Modesto website at https://www.modestogov.com/865/Americans-with-Disabilities-Act-ADA In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk (209) 577-5396. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.
CONSENT
An item may be removed from consent and discussed at the request of an audience member or Councilmember.
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Consent
3. Consider approving the Minutes from the December 6, 2022 Council Meeting. (Funding Source: Not Applicable)
Staff Recommendation:
Motion approving the Minutes from the December 6, 2022 Council Meeting.
CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] Consent
4. Consider approving final adoption of Ordinance 3752-C.S. repealing Title 5, “Sanitation and Health,” Chapter 11 “Organic Waste Disposal” of the Modesto Municipal Code in its entirety, and repealing and replacing Title 5, Chapter 5, “Solid Waste” of the Modesto Municipal Code. (Funding Source: Not Applicable) Staff Recommendation:
Motion approving final adoption of Ordinance 3752-C.S. repealing Title 5, “Sanitation and Health,” Chapter 11 “Organic Waste Disposal” of the Modesto Municipal Code in its entirety, and repealing and replacing Title 5, Chapter 5, “Solid Waste” of the Modesto Municipal Code.
CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] Consent
5. Consider approving a resolution continuing to authorize remote teleconference meetings pursuant to Assembly Bill 361. (Funding Source: Not Applicable) Staff Recommendation:
Resolution continuing to authorize remote teleconference meetings of the City of Modesto pursuant to Assembly Bill 361.
CITY ATTORNEY; Jose Sanchez, 209-577-5284, [email protected] Consent
6. Consider approving a resolution authorizing the City Manager to execute Agreements with the California Department of Tax and Fee Administration (“CDTFA”) for implementation of a Local Transactions and Use Tax; and the Resolution authorizing the examination of the Sales, Use, and Transactions Tax Records for the City. (Funding Source: General Fund)
Staff Recommendation:
Resolution of the City Council of the City of Modesto authorizing the City Manager or his designee to execute Agreements with the California Department of Tax and Fee Administration for implementation of a Local Transactions and Use Tax.
Resolution of the City Council of the City of Modesto, authorizing the examination of Sales or Transactions and Use Tax Records.
CITY ATTORNEY; Jose Sanchez, 209-577-5284, [email protected] Consent
7. Consider approving a Third Amendment to the Legal Services Agreement with Nossaman LLP to adjust rates and extend the term of the Agreement for one remaining year. (Funding Source: Streets Capital Facility Fees, Regional Measure L) - 5 -
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Staff Recommendation:
Resolution approving a Third Amendment to the Legal Services Agreement with Nossaman LLP to adjust the blended hourly rate from $425 to $438 and extending the term of the Agreement to December 31, 2023, to continue to provide Eminent Domain Legal Services for State Route 132 West Freeway/Expressway Phase 1 Project, with no increase to the not to exceed amount of $2,000,000 for the Agreement and authorizing the City Manager, or his designee, to execute the Amendment.
CITY ATTORNEY; Jose Sanchez, 209-577-5284, [email protected] Consent
8. Consider approving a Second Amendment to the Legal Services Agreement with Rivera, Hewitt Paul, LLP in the amount of $255,000, for a total Agreement amount not to exceed $400,000 for continued representation. (Funding Source: General Liability Insurance Fund)
Staff Recommendation:
Resolution approving a Second Amendment to the Legal Services Agreement with Rivera Hewitt Paul, LLP in the amount of $255,000, for a total Agreement amount not to exceed $400,000, for continued representation in police litigation matters and authorizing the City Manager or his designee, to execute the Amendment.
CITY ATTORNEY; Jose Sanchez, 209-577-5284, [email protected] Consent
9. Consider accepting a Cannabis Equity Assessment Report, adopting a Cannabis Equity Program, and approving the submission of a Grant Application for the Governor’s Office of Business and Economic Development Cannabis Equity Grant Program for Local Jurisdictions. (Funding Source: General Fund)
Staff Recommendation:
Resolution accepting the City of Modesto Cannabis Equity Assessment Report. Resolution adopting a City of Modesto Cannabis Equity Program and authorizing the City Manager, or designee, to take all actions as may be required to implement this resolution and program, including but not limited to the establishment of internal controls, administrative functions, and application submittal processes as necessary.
Resolution authorizing the City Manager, or designee, to apply for a State of California Cannabis Equity Grant Program for Local Jurisdictions, for the purpose of funding a Cannabis Equity Program and to complete and submit the Grant Application and any subsequent application with the Governor’s Office of Business and Economic Development in relation thereto.
CED; Sean Rando, 209-577-5473, [email protected]
Consent
10. Consider adopting Section 24 (Davis Bacon Labor Standards) and Section 25 (Minority Business Enterprise and Women Business Enterprise) and amending Section 6 (Homeowner Rehabilitation Program Policies) of the Housing and Urban Development - 6 -
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Policies & Procedures Manual. (Funding Source: Not Applicable) Staff Recommendation:
Resolution approving the adoption of Section 24 (Labor Standards) and Section 25 (MBE/WBE) and the amendment of the Section 6 (Homeowner Rehabilitation Program Policies), within the Housing and Urban Development Policies & Procedures Manual.
CED; Jessica Hill, 209-577-5321, [email protected]
Consent
11. Consider approving an Agreement with Catholic Charities Diocese of Stockton to provide Environmental Justice Outreach component of the Affordable Housing and Sustainable Communities Grant application in an amount not to exceed $175,000 for the next three years for Archway Commons Phase II. (Funding Source: Affordable Housing and Sustainable Communities)
Staff Recommendation:
Resolution approving an Agreement with Catholic Charities Diocese of Stockton to provide the Environmental Justice Outreach component of the Affordable Housing and Sustainable Communities Grant application in an amount not to exceed $175,000 for the next three years for Archway Commons Phase II and authorizing the City Manager or designee to execute the Agreements.
Resolution amending the Fiscal Year 2022-23 Multi-Year Fund Budget to establish applicable revenue and expense budgets for the Catholic Charities Environmental Justice Program Agreement to be funded with the Affordable Housing and Sustainable Communities Grant (AHSC) and authorizing the City Manager or his designee, to take the necessary steps to implement the provisions of this resolution.
CED; Jessica Hill, 209-577-5321, [email protected]
Consent
12. Consider approving a No-Cost Third Amendment to extend the term of Agreement to June 30, 2023, for the Construction Zone Enhanced Enforcement Program (COZEEP) Agreement No. 19R465000 with the State of California, Department of Highway Patrol for the State Route 132 West Freeway/Expressway Phase 1 Project. (Funding Source:
Not Applicable)
Staff Recommendation:
Resolution approving a No-Cost Third Amendment to extend the completion date to June 30, 2023, for the Construction Zone Enhanced Enforcement Program (COZEEP) Agreement No. 19R465000 with the State of California, Department of Highway Patrol for the State Route 132 West Freeway/Expressway Phase 1 Project, and authorizing the City Manager, or his designee, to execute the Third Amendment.
CED; John Rawles, 209-577-5253, [email protected]
Consent
13. Consider approving an Outside Service Agreement for Water Service for property - 7 -
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located at 4524 Tully Road in Modesto (APN: 046-012-005). (Funding Source: Water Fund)
Staff Recommendation:
Resolution approving an Outside Service Agreement with Pastor Of Holy Family Church, a California Corporation to connect to the City of Modesto’s existing water system for the property located at 4524 Tully Road in Modesto (APN: 046-012-005), and authorizing the City Manager, or his designee, to execute the Outside Service Agreement.
CED; Toby Wells, 209-571-5542, [email protected]
Consent
14. Consider accepting an informational report for the October 2022 Accounts Payable Payment Register and Void Report. (Funding Source: Not Applicable) Staff Recommendation:
Motion accepting an informational report for the October 2022 Accounts Payable Payment Register and Void Report.
FINANCE DEPARTMENT; Maria Garnica, 209-577-5249,
[email protected]
Consent
15. Consider accepting the Monthly Investment Report for August 2022. (Funding Source:
Various Funds)
Staff Recommendation:
Motion accepting the Monthly Investment Report for August 2022.
FINANCE DEPARTMENT; Calogero Maniscalco, 209-577-5219,
[email protected]
Consent
16. Consider approving a two-year Retail and Legal Advertising Contract with the McClatchy Company LLC dba Modesto Bee in the amount not to exceed $125,000. (Funding Source: General Fund, Solid Waste Fund, Water Fund, Wastewater Fund, Community Facility District Funds, Landscaping Districts, and Housing Urban Development Funds)
Staff Recommendation:
Resolution approving a two-year Retail and Legal Advertising Contract with the McClatchy Company LLC dba Modesto Bee in the amount not to exceed $125,000; and authorizing the City Manager or his designee to execute the Agreement.
FINANCE DEPARTMENT; Cynthia Kline, 209-577-5412, [email protected] Consent
17. Consider approving the purchase of two Aerial Trucks from Terex Utilities Inc., Watertown, SD for a total amount not to exceed $751,900 (Funding Source: Fleet Replacement Fund)
Staff Recommendation:
Resolution approving the Competitive Bidding Process from Sourcewell with - 8 -
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Terex Utilities Inc., Watertown, SD for two Aerial Trucks for a total amount not to exceed $751,900; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order; and authorizing the Purchasing Manager or her designee to execute any Change Orders not to exceed 15% of the total purchase price.
FINANCE DEPARTMENT; Cynthia Kline, 209-577-5412, [email protected] Consent
18. Consider approving an Agreement with RTI International for Evaluation Services for the Board of State and Community Corrections California Violence Intervention and Prevention Grant Program in an amount not to exceed $154,955 over three years. (Funding Source: Police Grants)
Staff Recommendation:
Resolution approving an Agreement with RTI International for Evaluation Services for the Board of State and Community Corrections California Violence Intervention and Prevention Grant Program in an amount not to exceed $154,955 over three years; and authorizing the City Manager, or his designee, to execute the Agreement.
POLICE DEPARTMENT; Jessica Smart, 209-572-9500, [email protected] Consent
19. Consider approving a Pre-Qualified Hydrogeological Services Consultant List; and two On-Call Hydrogeological Services Agreements in a combined total amount not to exceed $450,000 over a three-year period. (Funding Source: Various Capital Improvement Program Projects)
Staff Recommendation:
Resolution approving an On-Call Agreement for Hydrogeological Services with Luhdorff & Scalmanini, Consulting Engineers, Woodland, CA, for one year, with two one-year extension options, for an annual amount not to exceed $75,000, and a total amount not to exceed $225,000 over three years, and authorizing the City Manager, or his designee to execute the Agreement. Resolution approving an On-Call Agreement for Hydrogeological Services with West Yost Associates, Davis, CA, for one year, with two one-year extension options, for an annual amount not to exceed $75,000, and a total amount not to exceed $225,000 over three years, and authorizing the City Manager, or his designee to execute the Agreement.
Resolution approving a Prequalified Consultant List for Hydrogeological Services, for various Capital Improvement Program Projects for a period of one year, with the option of two additional one-year extensions at the written approval of the Utilities Department Director.
UTILITIES; Robert Davalos, 209-571-5869, [email protected] Consent
20. Consider approving an Agreement with West Monroe, Inc., Los Angeles, CA, for Consulting Services for the Advanced Metering Infrastructure (AMI) Project in an amount not to exceed $484,275. (Funding Source: Water Fund) - 9 -
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Staff Recommendation:
Resolution approving an Agreement with West Monroe, Inc., Los Angeles, CA, for Consulting Services for the Advanced Metering Infrastructure Project in the amount of $440,250, plus $44,025 in additional services, if needed, for a total amount not to exceed $484,275; and authorizing the City Manager, or his designee, to execute the Agreement.
Resolution amending the Fiscal Year 2022-23 Multi-Year Program budget in the amount of $535,000 to be transferred into the project from Water Fund Reserves in order to fund the Advanced Metering Infrastructure Project.
UTILITIES; Robert Davalos, 209-571-5869, [email protected] Consent
21. Consider approving an Agreement with Carollo Engineers, Inc., Walnut Creek, CA, for Engineering Services for the East Morris Sewer Replacement Project for a total amount not to exceed $1,980,000. (Funding Source: Wastewater Fund) Staff Recommendation:
Resolution approving an Agreement with Carollo Engineers, Inc., Walnut Creek, CA, for Engineering Services for the East Morris Sewer Replacement Project in the amount of $1,800,000, plus $180,000 in additional services, if needed, for a total amount not to exceed $1,980,000; and authorizing the City Manager, or his designee, to execute the Agreement.
UTILITIES; Cristian Ciotau, 209-577-5260, [email protected] Consent
22. Consider approving the plans and specifications for the Jennings Command Center and Hahn Liftstation Restroom Project, accepting the bid, and awarding a contract to Harris Builders Inc, of Hilmar, CA, for a total amount not to exceed $623,619. (Funding Source: Wastewater Fund)
Staff Recommendation:
Resolution approving Plans and Specifications for the Jennings Command Center and Hahn Liftstation Restroom Project, accepting the bid, and approving a Construction Contract with Harris Builders Inc, of Hilmar, CA, in the amount of $542,277 plus $81,342 for contingency (if needed) for a total amount not to exceed $623,619 and authorizing the City Manager, or his designee, to execute the Agreement.
Resolution authorizing an increase in the Director’s authority to issue Change Orders for the Jennings Command Center and Hahn Liftstation Restroom Project from 10% ($54,228) to 15% ($81,342) of the construction contract price of $542,277 with Harris Builders Inc, of Hilmar, CA.
Resolution amending the Fiscal Year 2022-2023 Capital Improvement Program Budget in the amount of $841,619 to be transferred into the project from Wastewater Reserves to fully fund the construction, contingency, construction administration and design support during construction for the Jennings Command Center and Hahn Liftstation Restroom Project and authorizing the City Manager, or his designee, to implement the provisions of this Resolution.
UTILITIES; Cristian Ciotau, 209-577-5260, [email protected] - 10 -
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COUNCIL COMMENTS & REPORTS
CITY MANAGER COMMENTS & REPORTS
UNFINISHED BUSINESS
23. Consider an Ordinance establishing the City of Modesto Community Police Review Board (CPRB), approving the associated Bylaws, and approving the proposed Scope of Work to retain services for an Independent Police Auditor (IPA) through a Request for Proposal (RFP) process. (Funding Source: Not Applicable) Motion introducing and waiving the first reading of an Ordinance adding Section 2-3.908, “Community Police Review Board,” to Chapter 3, “Administrative Departments,” of Title 2, “Administration,” of the Modesto Municipal Code to establish The City Of Modesto Community Police Review Board (CPRB).
Resolution approving Community Police Review Board Bylaws. Resolution approving the proposed Scope of Work for Independent Police Auditor Services.
CITY MANAGER; Allison Van Guilder, 209-577-5228, [email protected]
HEARINGS
Published in the Modesto Bee on December 2, 2022.
24. Hearing to consider accepting the Capital Facilities Fees Annual Report for Fiscal Year 2021-22 and making findings related to each of the fee categories. (Funding Source:
Capital Facilities Fees)
Staff Recommendation:
Resolution accepting the Capital Facilities Fees Annual Report for Fiscal Year 2021-22 and making findings related to each of the fee categories.
CED; Jessica Hill, 209-577-5321, [email protected]
Published in the Modesto Bee on December 2, 2022.
25. Hearing to consider accepting the Fiscal Year 2021-22 Annual Report of Funds Held for Future Improvements and making findings related to each security on file. (Funding Source: Developer Deposits)
Staff Recommendation:
Resolution accepting the Fiscal Year 2021-22 Annual Report of Funds Held for Future Improvements and making findings related to each security on file.
CED; Jessica Hill, 209-577-5321, [email protected]
MATTERS TOO LATE FOR THE AGENDA
These may be presented by members of the City Council and staff upon determination by a majority vote that an emergency exists, as defined by State law, or by a 2/3 vote that (1) there is a need to take immediate action, and (2) that the need for action came to the City’s attention after the agenda was posted.
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ADJOURNMENT
CLOSED SESSION
Please take notice that a special Closed Session meeting of the Council of the City of Modesto has been called pursuant to Section 2-1.02 of the Modesto Municipal Code to be convened on
TUESDAY, DECEMBER 13, 2022 at 4:15 PM
and after the regularly scheduled meeting in the Tenth Street Place, Chambers Conference Room, Basement Level, 1010 Tenth Street, Modesto, California.
Any and all of the following agenda items are subject to action being taken by the Modesto City Council. The business to be considered at said City Council meeting shall consist of a Closed Session concerning the following:
CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: City of Modesto, et al. v. The Dow Chemical Company, et al. (PCE) Superior Court of the State of California
Case No: CGC-98-999345 and CGC-98-999643
Posted pursuant to Government Code Section 54954.2 on the bulletin board at Tenth Street Place on
at by
date time signature
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MODESTO CITY COUNCIL
www.modestogov.com
MINUTES
City of Modesto
CITY COUNCIL MEETING
Chambers, Basement Level
Tenth Street Place, 1010 10th Street
Modesto, California
Tuesday, December 06, 2022 at 5:30 PM
Roll Call – Present: Councilmembers Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
Absent: None
Pledge of Allegiance to the Flag
Invocation: Pat Nagle, Redeemer Church
City Clerk’s Announcements: None
Declaration of Conflicts of Interest: None
Reports from Closed Session: City Attorney Sanchez reported that no reportable action was taken on the Closed Session items.
PUBLIC COMMENT PERIOD
Jerry Thompson spoke in support of lifting the ban on cruising. He also commented on the rich history of cruising.
Ramon Rodriguez spoke about the shooting of Paul Chavez, Jr. He also spoke about accountability and use of force.
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Steve spoke about the shooting of Paul Chavez, Jr and Officer Muncy. Gavin Bruce, spoke about the shooting of Paul Chavez, use of force and the Modesto Police Department.
Patrick Thomas spoke about the press release issued by the District Attorney regarding Paul Chavez, Jr.
Karen Sutherland commented about the shootings of Paul Chavez and spoke about Officer Muncy and asked for justice for Paul and Trevor Seever. Alissa Hagar spoke about the shooting of her brother Paul Chavez, Jr.. She further commented about Officer Muncy and Chief Gillespie. In addition, she spoke about the youth being the future generation of the community. Teresa Clutter spoke about the shooting of her son-in-law, Paul Chavez, Jr. She commented about what has occurred since his death.
Brittony Estrella Chavez commented on the death of her husband Paul Davis Chavez, Jr. She also commented on the statement issued by the District Attorney. Darlene Ruiz, Trevor Seever’s mother stated she is here in support of the Chavez family and stated that de-escalation is needed. She spoke in support of Forward Together.
Marla Seever, Trevor Seever’s aunt, spoke in support of the family of Paul Chavez.
She also commented about the Modesto Police Department. Ray Ruiz, Trevor Seever’s step father, commented regarding the shooting of Paul Chavez and Officer Muncy. He spoke in support of the City having an independent police auditor.
Anna spoke about the 26 seconds it took for the shooting of Paul Chavez and commented on the District Attorney’s statement.
CONSENT ITEMS – ROLL CALL VOTE REQUIRED
ACTION CONSENT ITEMS 1-22; (Wright/Williams; 7/0)
CONSENT
Consent
1. Consider approving the Minutes from the November 1, 2022 Council Meeting. (Funding Source: Not Applicable)
Motion approving the Minutes from the November 1, 2022 Council Meeting.
CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] #3..
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ACTION: (Wright/Williams; 7/0) Motion approving the Minutes from the November 1, 2022 Council Meeting.
Consent
2. Consider approving the 2023 Calendar of regularly scheduled City Council and Council Standing Committee meetings. (Funding Source: Not Applicable) Resolution approving the 2023 City Calendars of regularly scheduled City Council and Council Standing Committee meetings.
CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] ACTION: (Wright/Williams; 7/0) Resolution 2022-454 approving the 2023 City Calendars of regularly scheduled City Council and Council Standing Committee meetings.
Consent
3. Consider approving the Mayor’s appointments to the City of Modesto Standing Committees, and City Council Liaison Committees; and appointment of a Vice Mayor for the 2023 calendar year. (Funding Source: Not Applicable) Motion approving the selection of Council Member Ricci as Vice Mayor. Motion approving the appointments to the Standing Committees and City Council Liaison Committees.
CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] ACTION: (Wright/Williams; 7/0) Motion approving the selection of Council Member Ricci as Vice Mayor.
ACTION: (Wright/Williams; 7/0) Motion approving the appointments to the Standing Committees and City Council Liaison Committees.
Consent
4. Consider approving a resolution continuing to authorize remote teleconference meetings pursuant to Assembly Bill 361. (Funding Source: Not Applicable) Resolution continuing to authorize remote teleconference meetings of the City of Modesto pursuant to Assembly Bill 361.
CITY ATTORNEY; Jose Sanchez, 209-577-5284, [email protected] ACTION: (Wright/Williams; 7/0) Resolution 2022-455 continuing to authorize remote teleconference meetings of the City of Modesto pursuant to Assembly Bill 361.
Consent
5. Consider approving the recommended Budget adjustments to Fiscal Year 2022-23 Annual Operating and Capital Improvement Program Budgets. (Funding Source:
Various Funds)
#3..
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Resolution amending Fiscal Year 2022-23 Annual Operating and Capital Improvement Project Fund Budgets and authorizing the City Manager, to make the necessary steps to implement the provisions of this Resolution.
BUDGET; Steve Christensen, 209-577-5390, [email protected] ACTION: (Wright/Williams; 7/0) Resolution 2022-456 amending Fiscal Year 2022- 23 Annual Operating and Capital Improvement Project Fund Budgets and authorizing the City Manager, to make the necessary steps to implement the provisions of this Resolution.
Consent
6. Consider approving a Third Amendment to the Joint Exercise of Powers Agreement with the County of Stanislaus, amending sections 8.1.3, 8.1.4 and 8.3.3 concerning Membership and Alternate Members Appointed to Serve as a Staff Member Commissioners on the Consolidated Emergency Dispatch Agency Commission, and appointing the Deputy City Manager of Operations to serve as the City of Modesto Staff Member Commissioner, and Deputy City Manager of Support as their Alternate, to the Consolidated Emergency Dispatch Agency Commission. (Funding Source: Not Applicable)
Resolution approving a Third Amendment to the Joint Exercise of Powers Agreement with the County of Stanislaus, amending sections 8.1.3, 8.1.4 and
8.3.3 concerning Membership and Alternate Members Appointed to Serve as Staff Member Commissioners on the Consolidated Emergency Dispatch Agency Commission and authorizing the City Manager, or his designee to execute the Amendment, and appointing the Deputy City Manager of Operations to serve as the City of Modesto Staff Member Commissioner, and Deputy City Manager of Support as their Alternate, to the Consolidated Emergency Dispatch Agency Commission.
CITY MANAGER; Scotty Douglass, 209-577-9149, [email protected] ACTION: (Wright/Williams; 7/0) Resolution 2022-457 approving a Third Amendment to the Joint Exercise of Powers Agreement with the County of Stanislaus, amending sections 8.1.3, 8.1.4 and 8.3.3 concerning Membership and Alternate Members Appointed to Serve as Staff Member Commissioners on the Consolidated Emergency Dispatch Agency Commission and authorizing the City Manager, or his designee to execute the Amendment, and appointing the Deputy City Manager of Operations to serve as the City of Modesto Staff Member Commissioner, and Deputy City Manager of Support as their Alternate, to the Consolidated Emergency Dispatch Agency Commission.
Consent
7. Consider accepting an informational report for the September 2022 Accounts Payable Payment Register and Void report. (Funding Source: Not Applicable) Motion accepting an informational report for the September 2022 Accounts Payable Payment Register and Void report.
FINANCE DEPARTMENT; Maria Garnica, 209-577-5249, [email protected] #3..
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ACTION: (Wright/Williams; 7/0) Motion accepting an informational report for the September 2022 Accounts Payable Payment Register and Void report.
Consent
8. Consider accepting an informational report on the July and August 2022 Grant Applications and Awards. (Funding Source: Not Applicable) Motion accepting an informational report for the July and August 2022 Grant Applications and Awards.
FINANCE DEPARTMENT; Maria Garnica, 209-577-5249,
[email protected]
ACTION: (Wright/Williams; 7/0) Motion accepting an informational report for the July and August 2022 Grant Applications and Awards.
Consent
9. Consider accepting the Monthly Investment Report for July 2022. (Funding Source:
Various Funds)
Motion accepting the Monthly Investment Report for July 2022.
FINANCE DEPARTMENT; Calogero Maniscalco, 209-577-5219,
[email protected]
ACTION: (Wright/Williams; 7/0) Motion accepting the Monthly Investment Report for July 2022.
Consent
10. Consider approving a Purchasing Agreement for Concrete Boxes, Covers, Valves and Fittings to Ferguson Waterworks, Modesto CA, Iconix Waterworks, McClellan CA, and to American AVK, Minden, NV for a total amount not to exceed $3,825,000 over five years. (Funding Source: Water and Wastewater Funds) Resolution approving the Award of Bid and Purchasing Agreements for Concrete Boxes, Covers, Valves, Hydrants and Fittings to Ferguson Waterworks, Modesto CA, Iconix Waterworks, McClellan CA, and American AVK, Minden, NV for a one–year Agreement with four one-year extension options, for a total estimated annual amount not to exceed $765,000, and a total amount not to exceed $3,825,000 over five years; and authorizing the Director of Finance, or her designee to execute the Purchasing Agreements.
FINANCE DEPARTMENT; Cynthia Kline, 209-577-5412, [email protected] ACTION: (Wright/Williams; 7/0) Resolution 2022-458 approving the Award of Bid and Purchasing Agreements for Concrete Boxes, Covers, Valves, Hydrants and Fittings to Ferguson Waterworks, Modesto CA, Iconix Waterworks, McClellan CA, and American AVK, Minden, NV for a one–year Agreement with four one-year extension options, for a total estimated annual amount not to exceed $765,000, and a total amount not to exceed $3,825,000 over five years; and authorizing the Director of Finance, or her designee to execute the Purchasing Agreements.
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Consent
11. Consider approving an Agreement with InfoSend Inc., for Forms, Printing, and Mailing Services, for a total amount not to exceed $12,051,699 over eight years. (Funding Source: Various Funds)
Resolution approving an Agreement with InfoSend Inc., by utilizing the City of Oceanside Agreement for Forms, Printing, and Mailing Services, for a three year Agreement with five one-year extension options, for an annual estimated amount of $1,506,642 and a total amount not to exceed $12,051,699 over eight years; and authorizing the City Manager, or his designee, to execute the Agreement.
FINANCE DEPARTMENT; Jeni Martin, 209-571-5892, [email protected] ACTION: (Wright/Williams; 7/0) Resolution 2022-459 approving an Agreement with InfoSend Inc., by utilizing the City of Oceanside Agreement for Forms, Printing, and Mailing Services, for a three year Agreement with five one-year extension options, for an annual estimated amount of $1,506,642 and a total amount not to exceed $12,051,699 over eight years; and authorizing the City Manager, or his designee, to execute the Agreement.
Consent
12. Consider approving a One-Time Purchase using the Competitive Bid Process from The National Association of State Procurement Officials (NASPO) ValuePoint for eight LifePak15 Monitors from Stryker Medical, Chicago, IL for a total amount not to exceed $353,624. (Funding Source: General Fund)
Resolution approving a One-Time Purchase using the Competitive Bid Process from The National Association of State Procurement Officials (NASPO) ValuePoint for eight LifePak15 Monitors from Stryker Medical, Chicago, IL for a total cost not to exceed $353,624; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.
FIRE DEPARTMENT; Alan Ernst, 209-572-9590, [email protected] ACTION: (Wright/Williams; 7/0) Resolution 2022-460 approving a One-Time Purchase using the Competitive Bid Process from The National Association of State Procurement Officials (NASPO) ValuePoint for eight LifePak15 Monitors from Stryker Medical, Chicago, IL for a total cost not to exceed $353,624; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.
Consent
13. Consider approving an Agreement with Sloan Sakai Yeung & Wong, LLP, Emeryville, CA to conduct a Compensation Study in an amount not to exceed $54,000. (Funding Source: Various Funds)
Resolution approving an Agreement with Sloan Sakai Yeung & Wong, LLP, Emeryville, CA to conduct a Compensation Study in an amount not to exceed $54,000 for a term of December 6, 2022 to December 6, 2023 and authorizing the City Manager, or his designee, to execute the Agreement.
HUMAN RESOURCES; Christina Alger, 209-571-5126, [email protected] #3..
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ACTION: (Wright/Williams; 7/0) Resolution 2022-461 approving an Agreement with Sloan Sakai Yeung & Wong, LLP, Emeryville, CA to conduct a Compensation Study in an amount not to exceed $54,000 for a term of December 6, 2022 to December 6, 2023 and authorizing the City Manager, or his designee, to execute the Agreement.
Consent
14. Consider approving an Amendment to Lease Agreement for the Modular Building at Dryden Golf Course and approving the increase of a Purchase Order with Williams Scotsman, Inc., Fresno, California, for a revised total amount not to exceed $95,000. (Funding Source: Golf Fund)
Resolution approving the Amendment to Lease Agreement for the Modular Building at Dryden Golf Course and approving the increase of a Purchase Order with Williams Scotsman, Inc., Fresno, California, for a revised total amount not to exceed $95,000; and authorizing the City Manager, or his designee, to execute the Amendment.
PRN; Laurie Smith, 209-577-5347, [email protected]
ACTION: (Wright/Williams; 7/0) Resolution 2022-462 approving the Amendment to Lease Agreement for the Modular Building at Dryden Golf Course and approving the increase of a Purchase Order with Williams Scotsman, Inc., Fresno, California, for a revised total amount not to exceed $95,000; and authorizing the City Manager, or his designee, to execute the Amendment.
Consent
15. Consider approving the First Amendment to the City of Modesto Pandemic Recovery Strategy – Modesto Forward Grant Agreement with the Modesto Convention and Visitors Bureau, Inc., for the Year 2 allocation of $250,000 in American Rescue Plan Act funding. (Funding Source: American Rescue Plan Act Funds) Resolution approving the First Amendment to the City of Modesto Pandemic Recovery Strategy – Modesto Forward Grant Agreement with the Modesto Convention and Visitors Bureau, Inc., for the Year 2 allocation of $250,000 in American Rescue Plan Act funding, and authorizing the City Manager, or his designee, to execute the First Amendment and carry out the necessary steps to implement the spending plan for the second allocation.
PRN; Laurie Smith, 209-577-5347, [email protected]
ACTION: (Wright/Williams; 7/0) Resolution 2022-463 approving the First Amendment to the City of Modesto Pandemic Recovery Strategy – Modesto Forward Grant Agreement with the Modesto Convention and Visitors Bureau, Inc., for the Year 2 allocation of $250,000 in American Rescue Plan Act funding, and authorizing the City Manager, or his designee, to execute the First Amendment and carry out the necessary steps to implement the spending plan for the second allocation.
Consent
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16. Consider approving the Fourth Amendment to Agreement with The Baseball Club of Modesto, as Successor in Interest to HWS Baseball IV, LLC, to revise the expiration date in the Accelerated Termination Provision from December 31, 2022 to December 31, 2023. (Funding Source: CIP Project 101019/General Fund) Resolution approving the Fourth Amendment to Agreement with The Baseball Club of Modesto, as Successor in Interest to HWS Baseball IV, LLC, to revise the expiration date in the Accelerated Termination Provision from December 31, 2022 to December 31, 2023, and authorizing the City Manager, or his designee to execute the Fourth Amendment to Agreement.
PRN; Laurie Smith, 209-577-5347, [email protected]
ACTION: (Wright/Williams; 7/0) Resolution 2022-464 approving the Fourth Amendment to Agreement with The Baseball Club of Modesto, as Successor in Interest to HWS Baseball IV, LLC, to revise the expiration date in the Accelerated Termination Provision from December 31, 2022 to December 31, 2023, and authorizing the City Manager, or his designee to execute the Fourth Amendment to Agreement.
Consent
17. Consider approving the Purchase and Sale Agreement for certain real property located at approximately 1300 Scenic Drive, Stanislaus County Assessor’s Parcel Number 034- 018-014, for $795,000, plus $20,000 in anticipated closing costs. (Funding Source:
Parks and Air Quality Capital Facility Fee Fund)
Resolution approving the Purchase and Sale Agreement for certain real property located at approximately 1300 Scenic Drive, Stanislaus County Assessor’s Parcel Number 034-018-014, for $795,000, plus $20,000 in anticipated closing costs; and authorizing the City Manager, or his designee, to execute any documents necessary to carry out the purpose of this Resolution.
PRN; Laurie Smith, 209-577-5347, [email protected]
ACTION: (Wright/Williams; 7/0) Resolution 2022-465 approving the Purchase and Sale Agreement for certain real property located at approximately 1300 Scenic Drive, Stanislaus County Assessor’s Parcel Number 034-018-014, for $795,000, plus $20,000 in anticipated closing costs; and authorizing the City Manager, or his designee, to execute any documents necessary to carry out the purpose of this Resolution.
Consent
18. Consider approving an Agreement with HDR Engineering, Inc. to conduct a Feasibility Study for the City’s Compost Facility at 7001 Jennings Road, for a total amount not to exceed $97,055. (Funding Source: Compost Facility Improvement Fund) Resolution approving an Agreement with HDR Engineering, Inc., Northern California Area, to conduct a Feasibility Study for the City’s Compost Facility at 7001 Jennings Road for a total amount not to exceed $97,055, and authorizing the City Manager, or his designee, to execute the Agreement.
PUBLIC WORKS; Rosene Salmo, 209-577-5453, [email protected] #3..
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ACTION: (Wright/Williams; 7/0) Resolution 2022-466 approving an Agreement with HDR Engineering, Inc., Northern California Area, to conduct a Feasibility Study for the City’s Compost Facility at 7001 Jennings Road for a total amount not to exceed $97,055, and authorizing the City Manager, or his designee, to execute the Agreement.
Consent
19. Consider approving the Plans and Specifications for the Rebid Upgrade Traffic Signals - 2017 Project, accepting the bid, and awarding a contract to St. Francis Electric, LLC of San Leandro, CA for a total amount not to exceed $935,567. (Funding Source:
Congestion Mitigation Air Quality Grant)
Resolution approving the Plans and Specifications for the Rebid Upgrade Traffic Signals - 2017 Project, accepting the bid, and awarding a Contract to St.
Francis Electric, LLC of San Leandro, CA, in the amount of $850,515, plus $85,052 for contingency (if needed), for a total amount not to exceed $935,567, and authorizing the City Manager, or his designee, to execute the Agreement.
PUBLIC WORKS; James Ashby, 209-571-5116, [email protected] ACTION: (Wright/Williams; 7/0) Resolution 2022-467 approving the Plans and Specifications for the Rebid Upgrade Traffic Signals - 2017 Project, accepting the bid, and awarding a Contract to St. Francis Electric, LLC of San Leandro, CA, in the amount of $850,515, plus $85,052 for contingency (if needed), for a total amount not to exceed $935,567, and authorizing the City Manager, or his designee, to execute the Agreement.
Consent
20. Consider accepting the Upgrade Advanced Traffic Management System 2017 Project as complete. (Funding Source: Congestion Mitigation and Air Quality) Resolution accepting the Upgrade Advanced Traffic Management System 2017 Project as complete.
PUBLIC WORKS; James Ashby, 209-571-5116, [email protected] ACTION: (Wright/Williams; 7/0) Resolution 2022-468 accepting the Upgrade Advanced Traffic Management System 2017 Project as complete.
Consent
21. Consider accepting the Modesto Modular Building Relocation Project as Complete, authorizing all necessary steps to file with the County Recorder, releasing securities, and releasing payments totaling $484,537 to Harris Builders, Inc., of Hilmar, CA. (Funding Source: Community Development Block Grant Funds (CDBG)) Resolution accepting the Modesto Modular Building Relocation Project as Complete, authorizing all necessary steps to file with the County Recorder, releasing securities, and releasing payments totaling $484,537 to Harris Builders Inc., Hilmar, CA.
UTILITIES; Pete Kambel, 209-577-5444, [email protected] #3..
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ACTION: (Wright/Williams; 7/0) Resolution 2022-469 accepting the Modesto Modular Building Relocation Project as Complete, authorizing all necessary steps to file with the County Recorder, releasing securities, and releasing payments totaling $484,537 to Harris Builders Inc., Hilmar, CA.
Consent
22. Consider approving an Agreement with HSQ Technology, Hayward, CA, for the procurement of parts, service, licenses and support for the Miser and Supervisor Control and Data Acquisition System, for two years, with three one-year extension options, for an annual estimated amount of $145,000 and a total not to exceed $725,000 over five years. (Funding Source: Water and Wastewater Funds) Resolution approving an Agreement with HSQ Technology, Hayward, CA, for the Procurement of Parts, Service, Licenses and Support for two years, with three one-year extension options, for an annual estimated amount of $145,000 and a total amount not to exceed $725,000 over five years, and authorizing the Director of Finance, or her designee, the ability to add parts based on the department’s needs, ensuring the total amount does not exceed the authorized total and authorizing the City Manager, or his designee, to execute the Agreement.
UTILITIES; Jason Farnsworth, 209-577-6255, [email protected] ACTION: (Wright/Williams; 7/0) Resolution 2022-470 approving an Agreement with HSQ Technology, Hayward, CA, for the Procurement of Parts, Service, Licenses and Support for two years, with three one-year extension options, for an annual estimated amount of $145,000 and a total amount not to exceed $725,000 over five years, and authorizing the Director of Finance, or her designee, the ability to add parts based on the department’s needs, ensuring the total amount does not exceed the authorized total and authorizing the City Manager, or his designee, to execute the Agreement.
COUNCIL COMMENTS & REPORTS
Councilmember Williams acknowledged the Parks and Recreation Department for putting on a successful Celebration of Lights Ceremony despite the inclement weather. He further thanked all those that assisted and participated in the parade and tree lighting. He also invited the public to attend the 2022 Modesto Spirit of Giving 5K Run on Saturday, December 10, 2022.
Councilmember Escutia-Braaton thanked all staff and volunteers who helped make the Parade of Lights a successful and enjoyable event. She attended the League Leaders Workshop; and attended an event that celebrated the McHenry Avenue widening project. She invited the public to attend the Annual SMBU Christmas Posada Toy Giveaway on Wednesday, December 7, 2022.
Councilmember Ricci stated that he echoed the sentiments of fellow councilmembers about the Christmas Parade. He was thrilled to be able to ride with the cruising coalition at the parade.
Cruising is part of the City's culture and Modesto needs to embrace it. He is excited Forward #3..
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Together is coming to the Council. He also addressed a recent Facebook post of his regarding the hiring of an auditor. He commented about homelessness in the community, and he is pushing to find new measures to deal with this issue. He further commented on abandoned commercial properties that are attracting blight and other criminal activity. As a City, they need to do something about it.
Councilmember Alvarez thanked everyone who helped organize the Christmas Parade. He also thanked the Modesto Cruisers Council and the Impalas Car Club for their generosity, professionalism and service to the community. He also acknowledged the tireless work of Nasson Sanchez, of the Cruiser’s Council for his contributions to the community at large.
Mayor Zwahlen reported that she was recently honored to participate in the Healthy Room Project that the City’s law enforcement officers organize. She also welcomed the new Councilmembers and is thrilled to have a full Council. The new councilmembers are in their office, working hard, learning and talking to the residents. She is looking forward to a lot of great work ahead.
CITY MANAGER COMMENTS & REPORTS
City Manager Lopez acknowledged the Parks and Recreation Department for their tremendous amount of effort to put on the Holiday Parade.
HEARINGS
Published in the Modesto Bee on November 23, 2022 & November 29, 2022.
23. Public Hearing to consider an Ordinance repealing Title 5, “Sanitation and Health,” Chapter 11 “Organic Waste Disposal” of the Modesto Municipal Code in its entirety, repealing and replacing Title 5, Chapter 5 “Solid Waste” of the Modesto Municipal Code, approving an updated Cash Security Deposit Schedule for Self-Haul charges, establishing an annual 9.9% Franchise Fee in accordance with Assembly Bill 939 and rescinding Resolution No. 98-113. (Funding Source: Not Applicable) Motion introducing and waiving the First Reading of an Ordinance repealing Title 5, “Sanitation and Health,” Chapter 11 “Organic Waste Disposal” of the Modesto Municipal Code in its entirety, and repealing and replacing Title 5, Chapter 5, “Solid Waste” of the Modesto Municipal Code. Resolution updating the Schedule of Cash Security Deposits to be charged to residents and businesses for Self-Haul of Solid Waste in the City of Modesto, establishing an annual 9.9% Franchise Fee in accordance with Assembly Bill 939, and rescinding Resolution No. 98-113.
PUBLIC WORKS; Rosene Salmo, 209-577-5453, [email protected] ACTION: (Ricci/Bavaro; 7/0) Motion introducing and waiving the First Reading of an Ordinance 3752-C.S. repealing Title 5, “Sanitation and Health,” Chapter 11 “Organic Waste Disposal” of the Modesto Municipal Code in its entirety, and repealing and replacing Title 5, Chapter 5, “Solid Waste” of the Modesto Municipal Code. #3..
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ACTION: (Escutia-Braaton/Zwahlen; 6/1;Wright Noes;) Resolution 2022-471 updating the Schedule of Cash Security Deposits to be charged to residents and businesses for Self-Haul of Solid Waste in the City of Modesto, establishing an annual
9.9% Franchise Fee in accordance with Assembly Bill 939, and rescinding Resolution No. 98-113.
NEW BUSINESS
24. Consider approving a Resolution authorizing the City of Modesto to utilize the services of Mark Murphy on an interim basis to fulfill the duties of Traffic Engineer for a limited duration of up to six months or until the recruitment is completed, whichever is first. (Funding Source: Surface Transportation Funds)
Resolution authorizing the City of Modesto to utilize the services of Mark Murphy on an interim basis to fulfill the duties of Traffic Engineer for a limited duration of up to six (6) months or until the recruitment is completed, whichever is first; and authorizing the City Manager, or his designee, to take the necessary steps to implement the provisions of the action.
HUMAN RESOURCES; Christina Alger, 209-571-5126, [email protected] ACTION: ACTION: (Williams/Wright; 7/0) Resolution 2022-472 authorizing the City of Modesto to utilize the services of Mark Murphy on an interim basis to fulfill the duties of Traffic Engineer for a limited duration of up to six (6) months or until the recruitment is completed, whichever is first; and authorizing the City Manager, or his designee, to take the necessary steps to implement the provisions of the action.
MATTERS TOO LATE FOR THE AGENDA
None
ADJOURNMENT
This meeting adjourned at 6:53 PM.
Closed Session matters heard before the meeting.
CLOSED SESSION
CONFERENCE WITH REAL PROPERTY NEGOTIATORS:
(Pursuant to Section 54956.8 of the Government Code)
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Property: 131 9th Street, Modesto, CA 95351, APN: 103-006-002 Property Owners: Varni Bros Corporation
Negotiating Parties:
For City: Will Wong, Director of Utilities
Jose M. Sanchez, City Attorney
For Owner: Property Owner
Under Negotiation: Price and Terms
CONFERENCE WITH LEGAL COUNSEL — ANTICIPATED LITIGATION
One Case (Pursuant to Section 54956.9(d)(4) of the Government Code)
CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Two Cases (Pursuant to Section 54956.9(a) of the Government Code) Name of case(s): Benito Chavez v. City of Modesto
California Workers Compensation Appeals Board
Nos. ADJ13097362, ADJ13097376, ADJ13097365,
ADJ13097371, ADJ13096784
Ron Keyes v. City of Modesto
California Workers Compensation Appeals Board
Nos. ADJ15382869, ADJ13830244, ADJ14260996,
ADJ15382869
Attest:____________________________
Diane Nayares-Perez, City Clerk
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1 ORDINANCE NO. 3752-C.S
EFFECTIVE DATE: January 12, 2023
ORDINANCE NO. 3752-C.S.
ORDINANCE REPEALING TITLE 5, “SANITATION AND HEALTH,” CHAPTER 11 “ORGANIC WASTE DISPOSAL” OF THE MODESTO MUNICIPAL CODE IN ITS ENTIRETY, AND REPEALING AND REPLACING TITLE 5, CHAPTER 5, “SOLID WASTE” OF THE MODESTO MUNICIPAL CODE
WHEREAS, the accumulation, collection, removal and disposal of solid waste must be controlled by the City for the protection of the public health, safety, and welfare; and WHEREAS, the Modesto Municipal Code currently regulates solid waste in the City of Modesto; and
WHEREAS, it is the intent of the City Council to continue protecting the public health, safety, and welfare of the public by efficiently and safely regulating the disposal of solid waste, and by implementing reasonable measures to prevent illegal dumping within the City; and WHEREAS, pursuant to the City’s police powers authorized in Article XI, Section 7 of the California Constitution, the City has the power to enact regulations for the preservation of public health, safety and welfare of its residents and community. And, pursuant to Government Code section 38771, the City has the power, through its City Council to declare actions and activities that constitute a public nuisance; and
WHEREAS, Solid Waste staff has reviewed the Modesto Municipal Code and recommends repealing Title 5, “Sanitation and Health,” Chapter 11 “Organic Waste Disposal” of the Modesto Municipal Code in its entirety, and repealing and replacing Title 5, Chapter 5, “Solid Waste” of the Modesto Municipal Code.
NOW, THEREFORE, the City Council of the City of Modesto does ordain that Title 5, “Sanitation and Health,” Chapter 5, “Solid Waste” of the Modesto Municipal Code is replaced as follows:
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2 ORDINANCE NO. 3752-C.S
EFFECTIVE DATE: January 12, 2023
TITLE 5 - SANITATION AND HEALTH
Chapter 5- SOLID WASTE
Article 1. Solid Waste
5-5.101 Declaration of Policy.
The accumulation, collection, removal and disposal of solid waste must be controlled by the City for the protection of the public health, safety and welfare. The Council finds that to give effect to this policy, a comprehensive system for the periodic collection, removal and disposal of solid waste from all premises in the City is essential and benefits all occupants of premises in the City, and, therefore, all such occupants are required to provide for removal or collection of solid waste from all premises in the City in accordance with the provisions of this chapter. 5-5.102 Penalty Provisions.
A violation of any provision of this chapter shall be punishable as an infraction as set forth in Section 1-2.01 of this Code, except where provisions of this chapter specifically make such violation a misdemeanor.
5-5.103 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
(a) "AB 341" means Assembly Bill 341 of 2011 approved by the Governor of the State of California on October 5, 2011, which amended Sections 41730, 41731, 41734, 41735, 41736, 41800, 42926, 44004, and 50001 of, and added Sections 40004, 41734.5, and 41780.01 and Chapter 12.8 (commencing with Section 42649) to Part 3 of Division 30 of, and added and repealed Section 41780.02 of, the Public Resources Code, as amended, supplemented, superseded and replaced from time to time.
a) "AB 1826" means Assembly Bill 1826 of 2014 approved by the Governor of the State of California on September 28, 2014, which added Chapter 12.9 (commencing with Section 42649.8) to Part 3 of Division 30 of the Public Resources Code, as amended, supplemented, superseded, and replaced from time to time. (b) "Administrative Citation" means a document issued by an enforcement officer to a person violating the provisions of Modesto Municipal Code or applicable state codes. (c) "Annexation" means the legal process of including new territory within the incorporated boundaries of the City.
(d) “Backhaul” means generating and transporting organic waste to a destination owned and operated by the generator using the generator’s own employees and equipment. (e) "Black container" means the container used for the purpose of storage and collection of Garbage.
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3 ORDINANCE NO. 3752-C.S
EFFECTIVE DATE: January 12, 2023
(f) “Blue Container’ means the container used for the purpose of storage and collection of source separated recyclable materials.
(g) "Bulky items" means discarded: furniture; carpets; mattresses; household appliances including refrigerators, ranges, washers, dryers, water heaters, and dishwashers and other similar items (commonly known as "white goods");
i. Bulky items does not include electronic equipment such as stereos, televisions, computers, and VCRs and other similar items (commonly known as "brown goods"); clothing; tires; and any motor vehicle or any subassembly, component or part thereof.
(h) “Bulky Item Collection Program” means a program for customers of residential and multifamily units to participate twice annually by appointment in the collection of Bulky Items (i) "CalRecycle" means California's Department of Resources Recycling and Recovery, which is the Department designated with responsibility for developing, implementing, and enforcing SB 1383 Regulations.
(j) "California Code of Regulations" or "CCR" means the State of California Code of Regulations. CCR references in this ordinance are preceded with a number that refers to the relevant Title of the CCR (e.g., "14 CCR" refers to Title 14 of CCR). (k) "Cannery or food processing waste" means the solid residues resulting from canning/food processing operations, which is segregated by the generator and which is collected for reuse. (l) “Cart” means a wheeled container provided by the hauler and intended for automated solid waste collection, which is a type approved by the CITY and has a capacity of 96 gallons with an attached, tight-fitting lid.
(m)"Collection" means the collection and transport of solid waste. (n) "Collection routes" means streets or areas designated for collection on a particular day/schedule.
(o) "Collection vehicle" means any vehicle used by the collector for the collection of solid waste. (p) "Collector" or “Hauler” means a person or firm authorized by a valid service agreement with the City of Modesto to collect solid waste within the City limits. (q) "Commercial" or “Commercial Business” means occurring in a business zone. means a firm, partnership, proprietorship, joint-stock company, corporation, or association, whether forprofit or nonprofit, strip mall, industrial facility, or a multifamily residential dwelling with 5 or more units, or as otherwise defined in 14 CCR Section 18982(a)(6). (r) "Commercial Edible Food Generator" includes a Tier One or a Tier Two Commercial Edible Food Generator as defined herein or as otherwise defined in 14 CCR Section 18982(a)(73) and (a)(74). For the purposes of this definition, Food Recovery Organizations and Food Recovery Services are not Commercial Edible Food Generators pursuant to 14 CCR Section 18982(a)(7).
(s) "Commercial Waste Generator" means a business subject to subdivision (a) of Section 42649.2 of the Public Resources Code.
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4 ORDINANCE NO. 3752-C.S
EFFECTIVE DATE: January 12, 2023
(t) "Compliance Review" means a review of records by the City to determine compliance with this ordinance.
(u) "Community Composting" means any activity that composts green material, agricultural material, food material, and vegetative food material, alone or in combination, and the total amount of feedstock and Compost on-site at any one time does not exceed 100 cubic yards and 750 square feet, as specified in 14 CCR Section 17855(a)(4); or, as otherwise defined by 14 CCR Section 18982(a)(8).
(v) "Compost" has the same meaning as in 14 CCR Section 17896.2(a)(4), which stated, as of the effective date of this ordinance, that "Compost" means the product resulting from the controlled biological decomposition of organic solid wastes that are source separated from the municipal solid waste stream, or which are separated at a centralized facility. (w) "C&D" means construction and demolition debris.
ii. Recyclable and non-recyclable waste building materials, packaging and rubble resulting solely from construction, remodeling, repair and demotion operations on any house, residential property, commercial building, pavement or other structure for which the City requires a building or demolition permit issue.
iii. Rock, concrete, asphalt and dirt.
iv. Construction and Demolition Debris may include materials that have been Source Separated.
(x) "Construction and demolition sites" means sites where construction or demolition activities are taking place.
(y) "Container Contamination" or "Contaminated Container" means a container, regardless of color, that contains Prohibited Container Contaminants, or as otherwise defined in 14 CCR Section 18982(a)(55).
(z) "Customer" means any person, firm or corporation receiving service under the provisions of this chapter.
(aa) "Designee" means an entity that the City contracts with or otherwise arranges to carry out any of the City's responsibilities of this ordinance as authorized in 14 CCR Section 18981.2.
A designee may be a government entity, a hauler, a private entity, or a combination of those entities.
(bb) "Designated collection location" means Any container designated by posted signs, marked or labeled as a container for a specified material type. And any place where an authorized collector has contracted to collect Solid Waste or material segregated from other waste material, including the curbside of a Residential Premises or the service alley of a Commercial Business.
(cc) Designated recycling collection location" means the location where an authorized recycling collector has agreed with a customer to pick up segregated recyclable materials as approved by the Public Works Director.
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(dd) "Bin" means a container, watertight and with a cover, designed for direct dumping into a collection vehicle, and constructed in standard sizes with a minimum of one (1) cubic yard in capacity, as approved by the Public Works Director, and furnished by a collector. (ee) "Disposal" means the final disposition of solid waste at a solid waste facility. (ff) "Drop box container" means a metal box designed for loading upon a vehicle for transportation to a solid waste facility, with a minimum of ten (10) cubic yards' capacity, of a design approved by the Public Works Director, and furnished by a collector. (gg) "Edible Food" means food intended for human consumption, or as otherwise defined in 14 CCR Section 18982(a)(18). For the purposes of this ordinance or as otherwise defined in 14 CCR Section 18982(a)(18), "Edible Food" is not Solid Waste if it is recovered and not discarded. Nothing in this ordinance or in 14 CCR, Division 7, Chapter 12 requires or authorizes the recovery of edible food that does not meet the food safety requirements of the California Retail Food Code.
(hh) "Enforcement Action" means an action of the City to address non-compliance with this ordinance including, but not limited to, issuing administrative citations, fines, penalties, or using other remedies.
(ii) "Excluded Waste" means hazardous substance, hazardous waste, infectious waste, designated waste, volatile, corrosive, medical waste, infectious, regulated radioactive waste, and toxic substances or material that facility operator(s), which receive materials from the City and its generators, reasonably believe(s) would, as a result of or upon acceptance, transfer, processing, or disposal, be a violation of local, State, or Federal law, regulation, or ordinance, including: land use restrictions or conditions, waste that cannot be disposed of in Class III landfills or accepted at the facility by permit conditions, waste that in City's, or its designee's reasonable opinion would present a significant risk to human health or the environment, cause a nuisance or otherwise create or expose City, or its designee, to potential liability; but not including de minimis volumes or concentrations of waste of a type and amount normally found in single-family or multi-family solid waste after implementation of programs for the safe collection, processing, recycling, treatment, and disposal of batteries and paint in compliance with Sections 41500 and 41802 of the California Public Resources Code. (jj) "Exclusive Service Agreement" means an agreement held by the City for the collection of commercial and residential garbage/recyclables and containerized organic waste. As of the effective date of this ordinance, the City holds exclusive service agreements with Bertolotti Disposal Service and Gilton Solid Waste Management.
(kk) "Finance Director" means the Finance Director of the City of Modesto or his/her designee.
(ll) "Food Distributor" means a company that distributes food to entities including, but not limited to, supermarkets and grocery stores, or as otherwise defined in 14 CCR Section 18982(a)(22).
(mm) "Food Facility" has the same meaning as in Section 113789 of the Health and Safety Code.
(nn) "Food Recovery" means actions to collect and distribute food for human consumption that otherwise would be disposed, or as otherwise defined in 14 CCR Section 18982(a)(24). #4..
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(oo) "Food Recovery Organization" means an entity that engages in the collection or receipt of edible food from commercial edible food generators and distributes that edible food to the public for food recovery either directly or through other entities or as otherwise defined in 14 CCR Section 18982(a)(25), including, but not limited to:
v. A food bank as defined in Section 113783 of the Health and Safety Code; vi. A nonprofit charitable organization as defined in Section 113841 of the Health and Safety code; and,
vii. A nonprofit charitable temporary food facility as defined in Section 113842 of the Health and Safety Code.
b. A food recovery organization is not a commercial edible food generator for the purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12 pursuant to 14 CCR Section 18982(a)(7). If the definition in 14 CCR Section 18982(a)(25) for Food Recovery Organization differs from this definition, the definition in 14 CCR Section 18982(a)(25) shall apply to this ordinance. (pp) "Food Recovery Service" means a person or entity that collects and transports edible food from a commercial edible food generator to a food recovery organization or other entities for food recovery, or as otherwise defined in 14 CCR Section 18982(a)(26). A food recovery service is not a commercial edible food generator for the purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12 pursuant to 14 CCR Section 18982(a)(7). (qq) "Food Scraps" means all food such as, but not limited to, fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese, and eggshells. Food Scraps excludes fats, oils, and grease when such materials are source separated from other food scraps.
(rr) "Food-Soiled Paper" is compostable paper material that has come in contact with food or liquid, such as, but not limited to, compostable paper plates, paper coffee cups, napkins, pizza boxes, and milk cartons.
(ss)"Food Waste" means food scraps and food-soiled paper. (tt) "Garbage" means any solid, semisolid, cooking oil, non-organic garbage, diapers and soiled bathroom tissue, animal feces, animal litter and bedding, feminine hygiene products, plastic bags, styrofoam, or contained gaseous discarded material that is not excluded by this chapter or by regulations adopted pursuant to this chapter. Garbage does not include materials that are separated and set aside for Recycling or Composting and does not include Hazardous Material.
b) “Green container" means the container used for the purpose of storage and collection of source separated organic waste.
c) "Hauler Route" means the designated itinerary or sequence of stops for each segment of the City's collection service area, or as otherwise defined in 14 CCR Section 18982(a)(31.5).
d) "Hazardous materials, Hazardous substance or hazardous wastes" means all substances defined as hazardous waste, acutely hazardous waste, or extremely hazardous waste by the State of California in the Health and Safety Codes or in #4..
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future amendments to or recodifications of such statutes, or identified and listed as hazardous waste by the U.S. Environmental Protection Agency pursuant to the Federal Resource Conservation and Recovery Act and all future amendments thereto.
e) "Household hazardous waste" means hazardous waste generated at a residential location within the City. It includes but not limited to, leftover household products that can catch fire, react, or explode under certain circumstances, or that are corrosive or toxic as household hazardous waste. Products, such as paints, cleaners, oils, batteries, and pesticides can contain hazardous ingredients and require special care when you dispose of them.
f) "Illegal dumping" means the willful, intentional or negligent depositing, throwing, dropping, placing or dumping of solid waste or hazardous materials on public or private property that is not expressly designated for the purpose of disposal or dumping of solid or hazardous materials. "Illegal dumping" does not include littering, discarding or dropping small quantities of solid waste ordinarily carried on or about the person, or escaping from trash containers or garbage carts including but not limited to, beverage containers and closures, packaging, wrappers, wastepaper, newspapers and magazines.
g) "Industrial areas" means areas which are zoned industrial by the City's Zoning Code as defined in Title 10 of the Modesto Municipal Code.
h) "Industrial waste" means solid waste produced by any person, firm or corporation engaged in the business of processing or manufacturing agricultural products, animals, poultry, goods, wares or other products or materials, who processes or manufactures the same for the purpose of wholesale in processed or manufactured form, and shall include cannery/food processing waste. Industrial garbage also means garbage produced by any person, firm or corporation engaged in the business of building construction and/or building demolition.
i) "Industrial waste collector" means an agent or employee of the City, or any person, or the employees thereof, with whom an agreement shall have been entered under the terms of this chapter for the collection of industrial waste. j) "Initial term and any extensions" means the term of a service agreement and any extensions beyond that time period as established by the City Council. k) "Inspection" means a site visit where the City reviews records, containers, and an entity's collection, handling, recycling, or landfill disposal of organic waste or edible food handling to determine if the entity is complying with requirements set forth in this ordinance, or as otherwise defined in 14 CCR Section 18982(a)(35). l) "City" means the City of Modesto.
m) "Enforcement Official" means the City Manager, Public Works Director, or their authorized designee(s) who is/are responsible for enforcing the ordinance. n) "Local Education Agency" means a school district, charter school, or county office of education that is not subject to the control of city or county regulations related to Solid Waste, or as otherwise defined in 14 CCR Section 18982(a)(40). #4..
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o) "Large green waste" means shrubbery, brush, tree limbs, tree branches, tree trimmings and similar material, excluding tree limbs larger than six (6) feet in length or six (6) inches in diameter, and any single piece of large green waste weighing more than fifty (50) pounds.
p) “Litter” means all solid waste which has been improperly discarded or which has migrated by wind or equipment away from the operations area. Litter includes, but is not limited to, convenience food, beverage, and other product packages or containers constructed of steel, aluminum, glass, paper, plastic, and other natural and synthetic materials, thrown or deposited on the lands and waters of the state. q) "Multi-Family Residential Dwelling" or "Multi-Family" means of, from, or pertaining to residential premises with five (5) or more dwelling units. Multi-family premises do not include hotels, motels, or other transient occupancy facilities, which are considered commercial businesses.
r) "Non-Organic Recyclables" means non-putrescible and non-hazardous recyclable wastes including but not limited to bottles, cans, metals, plastics and glass, or as otherwise defined in 14 CCR Section 18982(a)(43).
s) "Notice of Violation (NOV)" means a notice that a violation has occurred that includes a compliance date to avoid an action to seek penalties, or as otherwise defined in 14 CCR Section 18982(a)(45) or further explained in 14 CCR Section 18995.4. and Title 5 Chapter 5 of the Modesto Municipal Code. t) "Organic container" means an organic container to be used for the source separation, storage and collection of small green waste and organic waste. u) Organic waste" means solid wastes containing material originated from living organisms and their metabolic waste products including, but not limited to, inedible food, small green waste, and pruning waste, lumber, wood, paper products, printing and writing paper, and cardboard.
v) “Organic waste disposal reduction target” is the statewide target to reduce the disposal of organic waste by 75 percent by 2025, based on the 2014 organic waste disposal baseline, set forth in Section 39730.6 of the Health and Safety Code. w) "Organic waste generator" means a person or entity that is responsible for the initial creation of organic waste, or as otherwise defined in 14 CCR Section 18982(a)(48). x) "Paper Products" include, but are not limited to, paper janitorial supplies, cartons, wrapping, packaging, file folders, hanging files, corrugated boxes, tissue, and toweling, or as otherwise defined in 14 CCR Section 18982(a)(51). y) "Place" or "Premises" means every dwelling house, dwelling unit, multiple-dwelling building, trailer or mobile home park, store, restaurant, rooming house, hotel, motel, hospital, office building, department store; manufacturing, processing or assembling shop or plant; warehouse; and every other property or building where any person resides or any business or activity is carried on or conducted within the City of Modesto.
z) "Printing and Writing Papers" include, but are not limited to, copy, xerographic, watermark, offset, forms, computer printout paper, white wove envelopes, manila #4..
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envelopes, book paper, note pads, writing tablets, newsprint, and other uncoated writing papers, posters, index cards, calendars, brochures, reports, magazines, and publications, or as otherwise defined in 14 CCR Section 18982(a)(54). aa) "Prohibited Container Contaminants" means the following:
(a) Discarded materials placed in an organic container that are not identified as acceptable source separated organic waste for the City's green container organic container.
(b) Discarded materials placed in the black container that are identified as acceptable source separated green container organic waste or blue container recycling waste. (c) Discarded materials placed in the blue container that are not identified as acceptable source separated recyclable materials for the blue container recycling waste.
(d) Excluded waste as defined in 5-11.102(p) placed in any container. bb) "Property value" means a worth to the extent that a person will collect the materials involved with compensation to the owner or producer, or at no cost to the owner or producer.
cc) "Public Works Director" means the Public Works Director of the City of Modesto and/or their duly authorized agent.
dd) "Recovered organic waste products" means products made from California, landfilldiverted recovered organic waste processed at a permitted or otherwise authorized facility, or as otherwise defined in 14 CCR Section 18982(a)(60). ee) "Recovery" means any activity or process described in 14 CCR Section 18983.1(b), or as otherwise defined in 14 CCR Section 18982(a)(49). ff) “Recyclables” means domestic, commercial or industrial materials which are segregated from other waste material. Recyclables are by-products which may have an economic value if recycled, which may be source separated, set aside, handled, packaged or offered for collection by the residence/business. Recyclables include, but are not limited to, glass, clean cardboard, plastics, metal, bi-metal, aluminum, and other materials.
gg) "Recycled-Content Paper" means paper products and printing and writing paper that consists of at least 30 percent, by fiber weight, postconsumer fiber, or as otherwise defined in 14 CCR Section 18982(a)(61).
hh) "Recycling" means the process of collecting, sorting, cleansing, treating, reconstituting, and/or marketing recyclable materials which would otherwise be disposed of in a landfill. The collection, transport or disposal of Solid waste which is not intended for, or capable of being, reused, shall not be construed to be Recycling. ii) "Recycling center" means a facility or site which accepts segregated or commingled recyclable materials for the purpose of recycling and shall include a facility or site established pursuant to the California Beverage Container Recycling and Litter Reduction Act, California Public Resources Code, Section 14500 et seq. #4..
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In order to be a recycling center, the facility or site must be in conformance with all applicable federal, state and local laws and regulations. jj) "Recycling collector" means a person, firm, organization or company which the City has authorized to provide recycling service in the City. kk) "Recycling container" means any container provided by an authorized Collector to a Customer for the purpose of segregating recyclable materials for collection by collector. Recycling containers shall be clearly marked to indicate purpose and to warn that theft of the container, theft of its contents, or diversion for uses other than by the collector are punishable under this Code.
ll) "Removal" means transportation and disposal of Solid waste by noncustomers in accordance with the provisions of this chapter.
mm) "Residential premises" means any dwelling unit; the occupant of which places his/her solid waste in a standard container.
nn) "Route Review" means a visual inspection of containers along a Hauler Route for the purpose of determining container contamination and may include mechanical inspection methods such as the use of cameras, or as otherwise defined in 14 CCR Section 18982(a)(65).
oo) "Rubbish" means nonputrescible, useless, unused, unwanted or discarded material or debris, either compostable or noncompostable, which by their presence may injuriously affect the health, safety and comfort of persons and property in the vicinity thereof.
pp) "SB 1383" or “SB 1383 Regulations” or “SB 1383 Regulatory” means Senate Bill 1383 of 2016 approved by the Governor on September 19, 2016, which added Sections 39730.5, 39730.6, 39730.7, and 39730.8 to the Health and Safety Code, and added Chapter 13.1 (commencing with Section 42652) to Part 3 of Division 30 of the Public Resources Code, establishing methane emissions reduction targets in a Statewide effort to reduce emissions of short-lived climate pollutants as amended, supplemented, superseded, and replaced from time to time. qq) "Salvageable waste" means matter and material which will be reused and which has a property value.
rr) "Self-Hauler" means a person, who hauls solid waste, organic waste or recyclable material they have generated to a Transfer/processing station. Self-hauler also includes a person who back-hauls waste, or as otherwise defined in 14 CCR Section 18982(a)(66). Back-haul means generating and transporting organic waste to a destination owned and operated by the generator using the generator's own employees and equipment, or as otherwise defined in 14 CCR Section 18982(a)(66)(A).
ss) "Service area" means the area of the City to be served by a collector as described in the service agreement between City and Collector.
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tt) "Single-Family" or "Single-family dwelling" means of, from, or pertaining to any residential premises with fewer than five (5) units.
uu) "Small green waste" means leaves, weeds, grass clippings, vines, twigs and other similar soft vegetative materials, and woody prunings from trees no longer than two (2) foot length or six (6) inches in diameter, except that small green waste shall not include large green waste or leaves separated and set out for collection between November 1 and December 31 of each year pursuant to Article 11 of Chapter 7 of Title 4 of this Code.
x) "Solid waste" means all putrescible and nonputrescible solid, semisolid and liquid waste accumulated or delivered for collection and disposal within the City and includes, but is not limited to, garbage, recycling, organics, rubbish, ashes, industrial wastes, demolitions and construction wastes and bulky waste. (a) Solid waste does not include:
(a) Hazardous waste, as defined in the California Public Resources Code Section 40141.
(b) Infectious waste fecal matter such as: blood, body fluids, sharps waste, and human specimens.
(c) Medical waste regulated pursuant to the State Medical Waste Management Act (Part 14 (commencing with Section 117600) of Division 104 of the State Health and Safety Code). Untreated medical waste shall not be disposed of in a solid waste landfill, as defined in State Public Resources Code Section 40195.1. Medical waste that has been treated and deemed to be solid waste shall be regulated pursuant to Division 30 of the State Public Resources Code.
(d) Radioactive waste regulated pursuant to the State Radiation Control Law (Chapter 8 (commencing with Section 114960) of Part 9 of Division 104 of the State Health and Safety Code).
(e) Recyclable materials when recycled
(f) Sewage
(g) Abandoned automobiles.
ww)"Solid Waste Enforcement Officer" means the Solid Waste Enforcement Officer of the City of Modesto.
xx) "Solid Waste Enforcement Supervisor" means the Solid Waste Enforcement Supervisor of the City of Modesto.
yy) “Solid Waste Enclosure” means a walled structure with a solid cover for the storage of Solid Waste with a drainage system connected to the sanitary sewer and wash system that are adequate to accommodate anticipated waste generated at the Premises.
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zz) “Solid Waste Room” means an enclosed and ventilated space with a drainage system connected to the sanitary sewer and wash system that are adequate to accommodate anticipated waste generated at the Premises.
aaa) “Source Separation” or “Source Separated” means materials, including commingled recyclable materials, that have been separated or kept separate from the Solid Waste stream, at the point of generation, for the purpose of additional sorting or processing those materials for recycling or reuse in order to return them to the economic mainstream in the form of raw material for new, reused, or reconstituted products, which meet the quality standards necessary to be used in the marketplace, or as otherwise defined in 14 CCR Section 17402.5(b)(4). For the purposes of the ordinance, Source Separated shall include separation of materials by the generator, property owner, property owner’s employee, property manager, or property manager’s employee into different containers for the purpose of collection such that Source Separated materials are separated from Black Container Waste/Mixed Waste or other Solid Waste for the purposes of collection and processing. bbb) “Source Separated Blue Container for Recyclables” means Source Separated Recycling that is intended for the separate collection of recycling by the generator, excluding Organic Waste and garbage.
ccc) “Source Separated Green Container for Organic Waste” means Source Separated Organic Waste that can be placed in a Green Container that is specifically intended for the separate collection of Organic Waste by the generator, excluding Source Separated recyclables, garbage, carpets, and textiles.
ddd) “Source Separated Recyclable Materials” means Source Separated Non-Organic Recyclables and Source Separated Blue Container Organic Waste. eee) "Standard container" means a black , blue or, green, plastic cart, watertight and with a close-fitting cover, of not more than ninety (90) gallons' net capacity of a design satisfactory to the Public Works Director, or such other disposal unit approved by the Public Works Director, and supplied by the solid waste collector to its residential and commercial customers. The Public Works Director shall make the determination of what size container a residential and commercial customer receive. fff) "State" means the State of California.
ggg) "Swill" means all classes of putrescible, animal, fish, fowl, fruit or vegetable matter, and shall include matter or substances used in the preparation, cooking, dealing in or storage of meats, fowl, fish, fruits and vegetables that are subject to immediate decay and the attraction of flies or rodents, and having a property value. hhh) "Swill collector" means an agent or employee of the City, or any person, or the agents, assignees, or employees thereof, with whom an agreement shall have been entered under the terms of this chapter for the collection of swill. iii) "Tier One Commercial Edible Food Generator" means a commercial edible food generator that is one of the following:
1) Supermarkets with a full-line, self-service retail store with gross annual sales of two million dollars ($2,000,000), or more, and which sells a line of dry #4..
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grocery, canned goods, or nonfood items and some perishable items, or as otherwise defined in 14 CCR Section 18982(a)(71).
2) Grocery stores with a total facility size equal to or greater than ten thousand (10,000) square feet defined as a store primarily engaged in the retail sale of canned food; dry goods; fresh fruits and vegetables; fresh meats, fish, and poultry; and any area that is not separately owned within the store where the food is prepared and served, including a bakery, deli, and meat and seafood departments, or as otherwise defined in 14 CCR Section 18982(a)(30). 3) Food service provider defined as an entity primarily engaged in providing food services to institutional, governmental, commercial, or industrial locations of others based on contractual arrangements with these types of organizations, or as otherwise defined in 14 CCR Section 18982(a)(27). 4) Food distributor defined as a company that distributes food to entities including, but not limited to, supermarkets and grocery stores, or as otherwise defined in 14 CCR Section 18982(a)(22).
5) Wholesale food vendor defined as a business or establishment engaged in the merchant wholesale distribution of food, where food (including fruits and vegetables) is received, shipped, stored, prepared for distribution to a retailer, warehouse, distributor, or other destination, or as otherwise defined in 14 CCR Section 189852(a)(76).
jjj) "Tier Two Commercial Edible Food Generator" means a commercial edible food generator that is one of the following:
(a)Restaurant with two hundred fifty (250) or more seats, or a total facility size equal to or greater than five thousand (5,000) square feet. (b) Hotel with an on-site food facility and two hundred (200) or more rooms. (c)Health facility with an on-site food facility and one hundred (100) or more beds.
(d) Large venue defined as a permanent venue facility that annually seats or serves an average of more than two thousand (2,000) individuals within the grounds of the facility per day of operation of the venue facility. For purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12, a venue facility includes, but is not limited to, a public, nonprofit, or privately owned or operated stadium, amphitheater, arena, hall, amusement park, conference or civic center, zoo, aquarium, airport, racetrack, horse track, performing arts center, fairground, museum, theater, or other public attraction facility. For purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12, a site under common ownership or control that includes more than one (1) large venue that is contiguous with other large venues in the site, is a single large venue. If the definition in 14 CCR Section 18982(a)(39) differs from this definition, the definition in 14 CCR Section 18982(a)(39) shall apply to this ordinance.
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(e)Large event defined as an event, including, but not limited to, a sporting event or a flea market, that charges an admission price, or is operated by a local agency, and serves an average of more than two thousand (2,000) individuals per day of operation of the event, at a location that includes, but is not limited to, a public, nonprofit, or privately owned park, parking lot, golf course, street system, or other open space when being used for an event. If the definition in 14 CCR Section 18982(a)(38) differs from this definition, the definition in 14 CCR Section 18982(a)(38) shall apply to this ordinance. (f) A State agency with a cafeteria with two hundred fifty (250) or more seats or total cafeteria facility size equal to or greater than five thousand (5,000) square feet.
(g) A local education agency facility with an on-site food facility.
If the definition in 14 CCR Section 18982(a)(74) of Tier Two Commercial Edible Food Generator differs from this definition, the definition in 14 CCR Section 18982(a)(74) shall apply to this ordinance.
kkk) "Term" means the length of an agreement entered under the terms of this chapter. lll) "Transfer/processing station" means a facility or site where solid wastes are transferred from hauling vehicles to transfer vehicles and the solid waste or a portion thereof may undergo incidental processing, recycling or further handling before transport to a disposal facility or other waste handling facility, and includes a facility or site where solid wastes are subject to processing operations involving reduction, separation, resource recovery or conversion. The facility or site is operating pursuant to a solid waste facility permit issued pursuant to Chapter 3 of Part 4 of Division 30 of the California Public Resources Code; and the facility or site is in conformance with all applicable federal, state and local laws and regulations including without limitation the applicable provisions of the Modesto Zoning Code contained in Modesto Municipal Code.
5-5.104 Responsibility for compliance.
The primary responsibility for proper handling of solid waste generated or accumulated on any premises shall be on the generator of the solid waste. Should the generator refuse, neglect or fail to provide for the proper handling of solid waste in accordance with this chapter, the owner of the premises within or upon which the solid waste has been generated or accumulated shall provide for proper handling of the solid waste in accordance with the provisions of this chapter. 5-5.105 Segregation and Disposition of Solid Waste Materials.
Every producer of solid waste must segregate garbage, recycling, and organics ,industrial garbage, rubbish, and/or swill, and dispose of the materials as provided in this chapter. 5-5.106 Illegal Dumping, Depositing or Burying Solid Waste. (a) It is unlawful and shall constitute an abatable nuisance for any person to place garbage, recycling, organic waste, large green waste, small green waste, hazardous waste, and bulky #4..
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items as defined in Sections 5-5.103(tt) 5-5.103 (aaaa), 5-5.103 (nnn), 5-5.103(hhh), 5-
5.103(nnnn), 5-5.103(ww), and 5-5.103(g), upon any public property or private property without the consent of the property owner, unless approved by the Public Works Director.
This section does not apply to:
a. customers participating in the Bulky Item Collection Program as defined in Section 5-
5.103(h)
b. customers participating in the green waste and leaf collection as defined in Title 4, Chapter 7, Article 11 of the Modesto Municipal Code.
c. garbage, green waste, recycling, organic waste or hazardous waste dropped off at a permitted solid waste or composting facility approved for such use. d. Intent to remove the garbage, recycling organic waste or hazardous waste shall not constitute a defense to this offense.
(b) It is unlawful for any person to place hazardous waste as defined in Section 5-5.103(ww), into any waste container, street, alley or public right-of-way. (c) It is unlawful for any person to place garbage, recycling, organics, large green waste, small green waste, or hazardous waste as defined in Sections 5-5.103 (tt), 5-5.103(aaaa), 5-
5.103(nnn), 5-5.103(hhh), 5-5.103(nnnn), and 5-5.103(ww), into any garbage, recycling, or organic container without the permission or consent of the person owning, renting or having legal control of that container.
(d) Persons operating leaf blowers are to ensure that leaves, dirt and other debris are not blown onto public properties or public-right-of-way. All leaves, dirt and other debris generated by the leaf blower shall be removed and deposited into the appropriate containers. (e) The penalty for failure to comply with Section 5-5.106 is as follows:
a. One thousand dollars ($1,000.00) for the first violation b. Fifteen hundred dollars ($1,500.00) for a second violation within a twelve (12) month period of the first violation; and
c. Two thousand dollars ($2,000.00) for a third violation within a twelve (12) month period of the second violation, and for each successive violation within the same twelve (12) month period.
5-5.107 Explosives or Hazardous Materials.
No person shall deposit in any container used for solid waste, any explosive, highly flammable, radioactive or otherwise hazardous material or substance. A violation of this section shall be punishable as a misdemeanor or administrative fine. The penalty for failure to comply with Section 5-5.107 is as follows:
a. One thousand dollars ($1,000.00) plus the cost of disposal for the first violation b. Fifteen hundred dollars ($1,500.00) plus the cost of disposal for a second violation within a twelve (12) month period of the first violation; and c. Two thousand dollars ($2,000.00) plus the cost of disposal for a third violation within a twelve (12) month period of the second violation, and for each successive violation within the same twelve (12) month period.
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5-5.108 Accumulation of Garbage, Recycling, or Organic Waste Every person occupying premises, every owner of any property, and every owner of multiple-dwelling buildings shall keep the same in a clean and sanitary condition, and shall not cause, suffer, or permit any garbage, recycling, or organic waste to accumulate on such premises or property for a period in excess of two (2) calendar weeks; or cause, suffer, or permit any rubbish to accumulate on their premises for a period in excess of one (1) calendar month; provided, however, that this provision shall not be construed to prohibit any person from keeping building materials on any premises or property during the period of active construction, reconstruction, or repair of a building or structure thereon under a current valid building permit; nor the neat storage of clean recyclables intended to be taken by the occupant to a recycling center, nor the keeping of wood, neatly piled, upon such premises for household use; nor the composting of grass or trimmings in a manner allowed pursuant to the Composting Regulations of the State of California. 5-5.109 Garbage, Recycling, Organic Waste, and Swill Collection Requirements.
1. Collection or removal of garbage, recycling, and organic waste shall be made at least every other week
2. Collection of swill shall be made daily.
3. Collectors shall transfer the contents of all containers into the correct collection vehicle provided therefore without spilling any contents.
5-5.110 Containers Required.
(1) It shall be unlawful for any person occupying any premises within the City, or for any person, controlling or maintaining any premises within the City where solid waste is generated, produced, or accumulated, to fail or neglect to provide a sufficient number of each approved type of standard containers for receiving and holding, without leakage or escape of odors, all solid waste produced, generated, or accumulated upon such premises, except as hereinafter provided; and all such persons shall deposit all such solid waste in the correct containers, and all such containers shall be at all times kept in a good, usable and sanitary condition.
(2) Containers shall be kept continuously closed except when solid waste is being placed therein or removed therefrom, and shall at all times be closed against the access of flies, rodents, animals, and odors to the contents thereof.
(3) It shall be unlawful for any person to place anything other than garbage and rubbish in a black container or detachable container used for garbage. (4) It shall be unlawful for any person to place anything other than recycling in a blue container or detachable container used for recycling.
(5) It shall be unlawful for any person to place anything other than small green waste or organic waste in a green container or detachable container used for organic waste. (6) No standard container shall exceed one hundred (100) pounds in weight when filled for collection or removal, except when detachable or drop box containers are used. 5-5.111 Number of Containers Required.
All places or premises within the City shall have sufficient containers of the approved type to hold all garbage, recycling and organic waste generated, produced or accumulated on the place or premises In #4..
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determining the sufficiency of the number of containers required, the following minimum standards shall apply.
(a) single family dwellings as defined in 5-5.103 (mmmm) :
a. one (1) black standard container per dwelling unit for garbage b. one (1) blue standard container per dwelling unit for recyclables c. one (1) green standard container per dwelling unit for organic waste d. Authorization for a lesser number may be authorized by the Public Works Director or his/her designee.
(b) Multi-Family Residential Dwelling as defined in 5-5.103(jjj) and Motel, hotel, trailer park, or mobile home park:
a. One (1) container per building equivalent to one (1) black standard container per dwelling unit for garbage
b. One (1) container per building equivalent to one (1) blue standard container per dwelling unit for recyclables,
c. One (1) container per building equivalent to one (1) green standard container per dwelling unit for small green waste and organic waste
d. Authorization for a lesser number may be authorized by the Public Works Director or his/her designee.
(c) Commercial place or business:
a. One (1) container per building equivalent to one (1) black standard container per dwelling unit for garbage
b. One (1) container per building equivalent to one (1) blue standard container per dwelling unit for recyclables,
c. One (1) container per building equivalent to one (1) green standard container per dwelling unit for small green waste and organic waste
d. Authorization for a lesser number of any container(s) may be authorized by the Public Works Director or his/her designee.
e. Customers responsible for solid waste removal or collection services for multiple-dwelling buildings, commercial and industrial places or premises may arrange for the use of bins and/or drop box containers instead of standard containers. These arrangements shall be made with the collector on the basis of charges established for this purpose.
5-5.112 Shared Solid Waste Containers- Contract required. a) No person shall store Residential Solid Waste on any Premises other than the Residential Premises where the Residential Solid Waste was generated except in accordance with a contract issued pursuant to this Section.
b) No person shall collect Garbage, Organics, or Recyclables from a container shared by two (2) or more Multi-Family Dwelling units unless the Public Works Director has issued #4..
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a contract pursuant to this Section authorizing the Residential Premises to share that container.
c) The Public Works Director may issue a contract to authorize two (2) neighboring households to share Garbage, Organic, and Recyclable containers if all of the following conditions are satisfied:
a. The Owners of the adjacent residential property, or the Owners' agents, apply to the Director, in writing, for a contract to share Garbage, Organic, and recyclables containers.
b. The application for the contract includes a written statement signed by the responsible party of each of the affected households, or the Owner's agents, designating which of the responsible parties will assume full responsibility for the payment of all charges for Solid Waste collection services made available to the affected household, designating which of the responsible party shall be responsible for the maintenance of the containers and the area in which the containers are placed, and designating, by address and assessor's parcel number, which of the affected households shall be subject to the special assessment procedures.
c. The Director has determined that placement of Garbage, Organics, and Recyclable Materials in the shared containers can be accomplished without transporting the Garbage, Organics, or Recyclable Materials on or across any public street (excluding alleys between the affected Premises). d. The Director has determined that space constraints at the households makes it difficult to site Garbage, Organic Materials, or Recyclables containers in such numbers and such sizes as will accommodate the volume of Garbage, Organic Materials, or Recyclable Material generated at the Premises. e. The Director has determined that the level of service is sufficient to sustain the number of people residing at the household.
f. The Director has determined that there is a financial hardship of the non-billed customer.
g. The accounts requesting the shared service are in good standing with the City and Haulers.
d) No person shall store Commercial Solid Waste on any Premises other than the Commercial Premises where the Commercial Solid Waste was generated except in accordance with a contract issued pursuant to this Section. e) The Public Works Director may issue a contract to authorize up to four (4) neighboring commercial businesses to share Garbage, Organic, and Recyclable containers if all of the following conditions are satisfied:
a. The Owners of the adjacent Commercial Business, or the Owners' agents, apply to the Director, in writing, for a contract to share Garbage, Organic, and recyclables containers.
b. The application for the contract includes a written statement signed by the responsible party of each of the affected commercial business, or the Owner's agents, designating which of the responsible parties will assume full responsibility for the payment of all charges for Solid Waste collection services made available to the affected commercial business, designating which of the responsible party shall be responsible for the maintenance of the containers and the area in which #4..
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the containers are placed, and designating, by address and assessor's parcel number, which of the affected commercial business shall be subject to the special assessment procedures.
c. The Director has determined that placement of Garbage, Organics, and Recyclable Materials in the shared containers can be accomplished without transporting the Garbage, Organics, or Recyclable Materials on or across any public street (excluding alleys between the affected Premises). d. The Director has determined that space constraints at the commercial business makes it difficult to site Garbage, Organic Materials, or Recyclables containers in such numbers and such sizes as will accommodate the volume of Garbage, Organic Materials, or Recyclable Material generated at the Premises. e. The Director has determined that the level of service is sufficient to sustain the size of the commercial business.
f. The Director has determined that there is a financial hardship of the non-billed customer.
g. The accounts requesting the shared service are in good standing with the City and Haulers.
f) The Director may impose conditions on the contract issued pursuant to subsection a. or subsection b., as determined by the Director to be consistent with the purposes and provisions of this Chapter. Such conditions may include, but are not limited to, restrictions on the number of containers, restrictions on the size or capacity of containers, and restrictions on the placement of the containers.
g) Upon written notice to the Owners of the dwellings or commercial businesses, or to the Owners' agents, the Director may revoke any contract to share Garbage, Organics, Recyclables containers given pursuant to subsection a. or b. above if the Director finds any of the following conditions exists:
a. The ownership of any of the affected Dwellings has changed. b. The space constraints which made it difficult to site Garbage, Organics, Recyclables containers sufficient to accommodate the volume of Garbage, Organics, and Recyclables generated at the Residential Premises no longer exist. c. The sharing of containers is not in conformance with the conditions of the contract.
d. The bill for collection services made available at the Premises remains delinquent for more than ninety (90) days.
e. The Solid Waste generated or accumulated on any of the Premises is not handled in conformance with the requirements of this Chapter or applicable law. 5-5.113 Enclosures required.
a) All Solid Waste, Recyclable, or Organics produced on a Commercial Premises, or MultiFamily Dwellings with a Solid Waste Enclosure or Solid Waste Room shall be stored in the Solid Waste Enclosure or Solid Waste Room when such material is not set out for collection by an authorized Collector.
b) All Commercial Premises, or Multi-Family Dwellings constructed, enlarged, or structurally altered after January 1, 2023 shall have a Solid Waste Enclosure or Solid Waste Room. For the purposes of this Section, "structurally altered" means any change in the supporting members of a building, such as bearing walls, columns, beams, or girders.
The Director may grant waiver to this requirement.
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c) The development permit application shall show the proposed path of travel for the authorized collector to access a Solid Waste Enclosure, Solid Waste Room, or the material generated at the Premises when set out for collection. The path of travel must accommodate the required width, turning radius, and overhead clearances of the collector's vehicle. The Director may require alterations to the development application to accommodate the travel and collection activities conducted by a collector vehicle. d) The development permit application shall show the Solid Waste Enclosure or Solid Waste Room shall have sufficient capacity to accommodate containers for, at a minimum, Garbage, Recycling, and Organics Material, and containers shall be appropriately sized to accommodate the expected material that will be generated for the Commercial Premises at the proposed frequency of collection, which must be no less than allowed in Section 5-
5.113.
e) The enclosure(s) shall be secured to prevent unauthorized collection, tampering, and unlawful placement of garbage, organics, or recyclable materials, but must be accessible to collection personnel during herein before stated collection hours. Additional charges may be assessed, as determined by the solid waste collection company, for additional trips to service a previously locked enclosure.
f) Each development project, as that term is defined in Public Resources Code section 42905, for which an application for a building permit has been submitted after the effective date of this chapter, shall conform to the requirements of the model ordinance adopted by the California integrated waste management board and required by the California Solid Waste Reuse and Recycling Access Act of 1991. 5-5.114 Requirements for Single-Family Generators
Single-family generators shall comply with the following requirements except single-family generators that meet the self-hauler requirements in Section 5-5-130:
a) Shall subscribe the City’s Solid Waste collection system and shall source separate their waste as follows:
1) Generator shall place only garbage, and/or rubbish, in the black container. 2) Generator shall place only source separated organic waste in the green container. 3) Generator shall place only source separated recyclables in the blue container. b) It shall be unlawful to place anything other than the approved source separated material into a Black Container, Green Container, or Blue Container. c) City shall have the right to review the number and size of a generator's containers to evaluate adequacy of capacity provided for each type of collection service for proper separation of materials and containment of materials; and, single-family generators shall adjust its service level for its collection services as requested by the City.
Generators may additionally manage their organic waste by preventing or reducing their organic waste, managing organic waste on site, and/or using a community composting site pursuant to 14 CCR Section 18984.9(c). (Ord. No. 3740-C.S., § 2, effective 12-23-21) #4..
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5-5.115 Requirements for Commercial Businesses, Mobile Homes, Motels, Hotels and MultiFamily Dwelling Generators Generators that are commercial businesses shall:
(a) Subscribe to City's three (3) container collection services and comply with requirements of those services; except commercial businesses that meet the self-hauler requirements in Section 5-5.130 or granted a waiver from the public works director. a. City shall have the right to review the number and size of a generator's containers and frequency of collection to evaluate adequacy of capacity provided for each type of collection service for proper separation of materials and containment of materials; and, commercial businesses shall adjust their service level for their collection services as requested by the City. b. Generator shall place garbage in the container designated for garbage c. Generator shall place only source separated organic waste in the container designated for organic waste.
d. Generator shall place only source separated recyclables in the blue container. (b) Supply and allow access to adequate number, size and location of collection containers with sufficient labels or colors (conforming with subsections (d)(1) and (d)(2) below) for employees, contractors, tenants, and customers, consistent with City's black container, green container, and blue container collection service in accordance with Section 5-5.109 or, if self-hauling, per the commercial businesses' instructions to support its compliance with its self-haul program, in accordance with Section 5-5.130. (c) Excluding multi-family residential dwellings, provide containers for the collection of source separated containers in all indoor and outdoor areas where disposal containers are provided for customers, for materials generated by that business. Such containers do not need to be provided in restrooms. If a commercial business does not generate any of the materials that would be collected in one (1) type of container, then the business does not have to provide that particular container in all areas where disposal containers are provided for customers. Pursuant to 14 CCR Section 18984.9(b), the containers provided by the business shall have either:
(1) A body or lid that conforms with the container colors provided through the collection service provided by City, with either lids conforming to the color requirements or bodies conforming to the color requirements or both lids and bodies conforming to color requirements. A Commercial Business is not required to replace functional containers, including containers purchased prior to January 1, 2022, that do not comply with the requirements of the subsection prior to the end of the useful life of those containers, or prior to January 1, 2036, whichever comes first.
(2) Container labels that include language or graphic images, or both, indicating the primary material accepted and the primary materials prohibited in that container, or containers with imprinted text or graphic images that indicate the primary materials accepted and primary materials prohibited in the #4..
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container. Pursuant 14 CCR Section 18984.8, the container labeling requirements are required on new containers commencing January 1, 2022. (d) To the extent practical through education, training, Inspection, and/or other measures, prohibit employees and tenants from placing materials in a container not designated for those materials per the City's black container, green container and blue container collection service or, if self-hauling, per the Commercial Businesses' instructions to support its compliance with its self-haul program, in accordance with Section 5-5.130.
(e) All premises shall periodically inspect black container, green container and blue container for contamination and inform employees and tenants if containers are contaminated and of the requirements to keep contaminants out of those containers pursuant to 14 CCR Section 18984.9(b)(3).
(f) Annually provide information to employees, contractors, tenants, and customers about organic waste recovery requirements and about proper sorting of source separated black container, green container and blue container. (g) Provide City approved education information before or within fourteen (14) days of occupation of the premises to new tenants that describes requirements to keep source separated black container, green container and blue container and the location of containers and the rules governing their use at each property. (h) Provide or arrange access for City or its agent to their properties during all Inspections conducted in accordance with Section 5-5.150 of this ordinance to confirm compliance with the requirements of this ordinance.
(i) If a commercial business requests to self-haul, meet the Self-Hauler requirements in Section 5-5.130 of this ordinance.
(j) Nothing in this section prohibits a generator from preventing or reducing waste generation, managing organic waste on site, or using a Community Composting site pursuant to 14 CCR Section 18984.9(c).
(k) Commercial Businesses that are Tier One or Tier Two Commercial Edible Food Generators shall comply with Food Recovery requirements, pursuant to Section 5-
5.122.
5-5.116 Organic Waste Waivers for Commercial Business Generators. (a) De minimis waivers - City may waive a commercial business' obligation (including multifamily residential dwellings) to comply with some or all of the organic waste requirements of this ordinance if the Commercial Business provides documentation that the business generates below a certain amount of organic waste material as described below.
Commercial Businesses requesting a de minimis waiver shall:
a. Submit an application specifying the services that they are requesting a waiver from and provide documentation as noted below.
b. Provide documentation that either:
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i. The Commercial Business' total Solid Waste collection service is two cubic yards or more per week and organic waste subject to collection in a Green Container comprises less than 20 gallons per week per applicable container of the business' total waste; or, ii. The Commercial Business' total Solid Waste collection service is less than two cubic yards per week and organic waste subject to collection in a Green Container comprises less than 10 gallons per week per applicable container of the business' total waste. c. Notify City if circumstances change such that Commercial Business's organic waste exceeds threshold required for waiver, in which case waiver will be rescinded. d. Provide written verification of eligibility for de minimis waiver every five years, if City has approved de minimis waiver.
(b) Physical Space Waivers - City may waive a Commercial Business' or property owner's obligations (including Multi-Family Residential Dwellings) to comply with some or all of the organic waste collection service requirements if the City has evidence from its own staff, a hauler, licensed architect, or licensed engineer demonstrating that the premises lacks adequate space for the collection containers required for compliance with the organic waste collection requirements.
A Commercial Business or property owner may request a physical space waiver through the following process:
a. Submit an application form specifying the type(s) of collection services for which they are requesting a compliance waiver.
b. Provide documentation that the premises lacks adequate space for Green Containers including documentation from its hauler, licensed architect, or licensed engineer.
c. Provide written verification to City that it is still eligible for physical space waiver every five (5) years, if City has approved application for a physical space waiver. d. Review and Approval of Waivers will be completed by the Public Works Director and/or their designated agent.
5-5.117 Recycling Waste Waivers for Commercial Business Generators. a) City may waive a commercial business' obligation (including multi-family residential dwellings) to comply with some or all of the recycling waste requirements of this ordinance if the Commercial Business provides documentation that the business donates or sells recycling materials or the premises lacks adequate space for blue recycling containers including documentation from its hauler.
b) Provide written verification to City that it is still eligible for physical space waiver every five (5) years, if City has approved application for a physical space waiver. c) Review and Approval of Waivers will be completed by the Public Works Director and/or their designated agent.
5-5.118 Mandatory Solid Waste, Recyclable Materials, and Organic Materials Collection. #4..
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a) The Owner of a Commercial Premises or the Generator of Solid Waste at such Premises or the agent of the Owner or Generator shall subscribe to and pay for Solid Waste, Recyclable Materials, and Organic Materials collection services provided by a Solid Waste Collector authorized to provide Commercial Solid Waste collection services pursuant to Section 5-5.111
b) The minimum level of service to which the Owner, Generator or agent shall subscribe shall be the number and size of Solid Waste containers suitable for Garbage collection and the frequency of collection which is necessary for the removal and disposal of all Solid Waste generated at the Premises, which shall be not less than one (1) time per week. c) The minimum level of service necessary for the collection of all Solid Waste, Recyclable Materials, and Organic Materials generated at any Commercial Premises in a seven (7)-day period shall be determined by the Owner, Generator or agent and the Solid Waste Collector.
In the event the Owner, Generator or agent and the Solid Waste Collector do not agree on the minimum level of service necessary, such determination shall be made by the Director or the Health Officer and shall be a minimum of thirty-two (32) gallons of Recycling collection service and thirty-two (32) gallons of organics Recycling collection service for every one (1) cubic yard of Solid Waste generated per week. In other words, for every two (2) cubic yards of Solid Waste generated per week, there must be at least sixty-four (64) gallons of Recycling collection service and sixty-four (64) gallons or organics Recycling collection service per week. The Director or their designee may grant exemptions to this requirement if the business can demonstrate that they do not produce thirty-two (32) gallons of Organic Material or thirty-two (32) gallons of Recycling per week. d) The Director or their designee shall have the right to review the number and size of a Commercial Premises' containers and frequency of collection to evaluate adequacy of capacity provided for each type of collection service for proper separation and containment of materials. The responsible party of the commercial business shall adjust their service level for their collection services as requested by the Director or their designee. e) Nothing in this Chapter prohibits an Owner or a Generator of a commercial business from preventing or reducing discarded materials generation, managing Organic Material on site, or using a Community Composting site pursuant to 14 CCR Section 18984.9(c). 5-5.119 Ashes, stable matter and contaminated matter.
a) No person shall place or keep hot ashes, hot cinders or any burning matter in any garbage, organic or recyclables container.
b) No person shall place or keep other ashes or cinders, stable matter, or solid waste described in Section 5-5.103 (0000) in any garbage container unless such material is first wrapped in paper or other material.
5-5.120 Prohibited Storage Location of Containers.
(a) Garbage, recycling, and organic standard containers shall not be placed or allowed to remain in or on any street or alley public right-of-way, except within twenty-four (24) hours prior to and following service day or as otherwise authorized by the Public Works Director. #4..
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(b) Garbage, recycling, organic, rubbish, swill, and industrial garbage containers shall not be placed or allowed to remain in or on any street right-of-way, except on service day between the hours of service as defined in Section 5-5.126. Unless otherwise authorized by the Public Works Director.
(c) Container shall be stored inside of an enclosure or solid waste room at all times expect on collection day
5-5.121 Container Collection Locations.
(a) On single-family premises, standard garbage containers, organic, and recycling containers shall be placed by the customer on the premises and when subject to collection may be collected by the collector as follows:
a) Where alley service exists, immediately adjacent to the property and accessible from the alley without the necessity of entering the premises.
b) Where alley service does not exist, containers shall be placed in front of or on the side of the property from where the contents were generated, on the abutting asphaltic portion of the street next to the curb, or the edge of the driveway apron, or such other location as approved by the Public Works Director.
c) The Public Works Director may close alleys to service as needed due to safety concerns and/or size restrictions for collection vehicles.
d) All containers shall be placed no more than four (4) feet from an area where the collection vehicle can reasonably park. All residential containers set out for collection shall have the necessary clearance from obstructions on either side of the container as well as overhead clearance needed for the collection vehicle to empty contents of the container without causing damage to public or private property. In case of dispute, an acceptable residential container location shall be as determined by the Public Works Director.
e) All containers should be screened from public view, except within twenty-four (24) hours prior to and following service day, in a manner approved by the Public Works Director.
(b) Standard containers and bins for solid waste service to multifamily-dwellings, commercial and industrial premises shall be placed in a location no greater than fifty (50) feet from the nearest point where the collector's vehicle can reasonably be parked. Drop box containers shall be located as agreed upon between the customer and the collector. In case of dispute, the location shall be as determined by the Public Works Director. (c) Containers for solid waste may be placed on premises at locations other than described in this section if the customer is handicapped or disabled and the location is approved by the Public Works Director.
5-5.122 Requirements for Commercial Edible Food Generators. (a) Tier One Commercial Edible Food Generators must comply with the requirements commencing January 1, 2022, and Tier Two Commercial Edible Food Generators must #4..
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comply with the requirements of this section commencing January 1, 2024, pursuant to 14 CCR Section 18991.3.
(b) Large Venue or Large Event operators not providing food services, but allowing for food to be provided by others, shall require Food Facilities operating at the Large Venue or Large Event to comply with the requirements of this Section, commencing January 1, 2024. (c) Commercial Edible Food Generators shall comply with the following requirements:
(1) Arrange to recover the maximum amount of Edible Food that would otherwise be disposed.
(2) Contract with or enter into a written agreement with Food Recovery Organizations or Food Recovery Services for: (i) the collection of Edible Food for Food Recovery; or, (ii) acceptance of the Edible Food that the Commercial Edible Food Generator self-hauls to the Food Recovery Organization for Food Recovery. (3) Shall not intentionally spoil Edible Food that is capable of being recovered by a Food Recovery Organization or a Food Recovery Service.
(4) Allow City's designated Solid Waste Enforcement Officer/Supervisor or designated third party enforcement entity to access the premises and review records pursuant to 14 CCR Section 18991.4.
(5) Keep records that include the following information, or as otherwise specified in 14 CCR Section 18991.4:
a. A list of each Food Recovery Service or organization that collects or receives its Edible Food pursuant to a contract or written agreement established under 14 CCR Section 18991.3(b).
b. A copy of all contracts or written agreements between the Commercial Edible Food Generator and a Food Recovery Service or organization.
c. A record of the following information for each of those Food Recovery Services or Food Recovery Organizations:
i. The name, address and contact information of the Food Recovery Service or Food Recovery Organization.
ii. The types of food that will be collected by or self-hauled to the Food Recovery Service or Food Recovery Organization. iii. The established frequency that food will be collected or selfhauled. iv. The quantity of food, measured in pounds recovered per month, collected or self-hauled to a Food Recovery Service or Food Recovery Organization for Food Recovery.
(6) No later than April 1 of each year commencing no later than April 1, 2023 for Tier One Commercial Edible Food Generators and April 1, 2025 for Tier Two Commercial Edible Food Generators, provide an annual Food Recovery report to the City that includes the following information:
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a. The name, address and contact information of the Food Recovery Service or Food Recovery Organization.
b. The types of food that will be collected by or self-hauled to the Food Recovery Service or Food Recovery Organization.
c. The established frequency that food will be collected or selfhauled. d. The quantity of food, measured in pounds recovered per month, collected or self-hauled to a Food Recovery Service or Food Recovery Organization for Food Recovery.
(d) Nothing in this ordinance shall be construed to limit or conflict with the protections provided by the California Good Samaritan Food Donation Act of 2017, the Federal Good Samaritan Act, or share table and school food donation guidance pursuant to Senate Bill 557 of 2017 (approved by the Governor of the State of California on September 25, 2017, which added Article 13 [commencing with Section 49580] to Chapter 9 of Part 27 of Division 4 of Title 2 of the Education Code, and to amend Section 114079 of the Health and Safety Code, relating to food safety, as amended, supplemented, superseded and replaced from time to time).
5-5.123 Requirements for Food Recovery Organizations and Services. (a) Food Recovery Services collecting or receiving Edible Food directly from Commercial Edible Food Generators, via a contract or written agreement established under 14 CCR Section 18991.3(b), shall maintain the following records, or as otherwise specified by 14 CCR Section 18991.5(a)(1):
(1) The name, address, and contact information for each Commercial Edible Food Generator from which the service collects Edible Food.
(2) The quantity in pounds of Edible Food collected from each Commercial Edible Food Generator per month.
(3) The quantity in pounds of Edible Food transported to each Food Recovery Organization per month.
(4) The name, address, and contact information for each Food Recovery Organization that the Food Recovery Service transports Edible Food to for Food Recovery. (b) Food Recovery Organizations collecting or receiving Edible Food directly from Commercial Edible Food Generators, via a contract or written agreement established under 14 CCR Section 18991.3(b), shall maintain the following records, or as otherwise specified by 14 CCR Section 18991.5(a)(2):
(1) The name, address, and contact information for each Commercial Edible Food Generator from which the organization receives Edible Food. (2) The quantity in pounds of Edible Food received from each Commercial Edible Food Generator per month.
(3) The name, address, and contact information for each Food Recovery Service that the organization receives Edible Food from for Food Recovery. #4..
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(c) Food Recovery Organizations and Food Recovery Services shall inform generators about California and Federal Good Samaritan Food Donation Act protection in written communications, such as in their contract or agreement established under 14 CCR Section 18991.3(b).
(d) Food Recovery Organizations and Food Recovery Services that have their primary address physically located in the City and contract with or have written agreements with one or more Commercial Edible Food Generators pursuant to 14 CCR Section 18991.3(b) shall report to the City it is located in the total pounds of Edible Food recovered in the previous calendar year from the Tier One and Tier Two Commercial Edible Food Generators they have established a contract or written agreement with pursuant to 14 CCR Section 18991.3(b) no later than April 1, of each year.
(e) Food Recovery Capacity Planning
(1) Food Recovery Services and Food Recovery Organizations. In order to support Edible Food Recovery capacity planning assessments or other studies conducted by the County, City, special district that provides solid waste collection services, or its designated entity, Food Recovery Services and Food Recovery Organizations operating in the City shall provide information and consultation to the City, upon request, regarding existing, or proposed new or expanded, Food Recovery capacity that could be accessed by the City and its Commercial Edible Food Generators. A Food Recovery Service or Food Recovery Organization contacted by the City shall respond to such request for information within 60 days, unless a shorter timeframe is otherwise specified by the City.
5-5.124 Requirements for Haulers and Facility Operators. (a) Requirements for Haulers
(1) Exclusive Service Agreement haulers providing Residential, Commercial, or Industrial organic waste collection services to generators within the City's boundaries shall meet the following requirements and standards as a condition of approval of a contract, agreement, or other authorization with the City to collect organic waste:
(a) Through written notice to the City annually on or before April 1, of each year identify the facilities to which they will transport organic waste including facilities for Source Separating.
(b) Transport Source Separated Green Container organic waste, to the City of Modesto Composting Facility, operation, activity, or property that recovers organic waste as defined in 14 CCR, Division 7, Chapter 12, Article 2.
(c) Obtain approval from the City to haul organic waste, unless it is transporting Source Separated organic waste to a Community Composting site or lawfully transporting C&D in a manner that complies with 14 CCR Section 18989.1.
(2) Exclusive Service Agreement hauler authorization to collect organic waste shall comply with education, equipment, signage, container labeling, container color, #4..
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contamination monitoring, reporting, and other requirements contained within its service agreement, permit, license, or other agreement entered into with City. (b) Requirements for Facility Operators and Community Composting Operations (1) Owners of facilities, operations, and activities that recover organic waste, including, but not limited to, Compost facilities, in-vessel digestion facilities, and publicly-owned treatment works shall, upon City request, provide information regarding available and potential new or expanded capacity at their facilities, operations, and activities, including information about throughput and permitted capacity necessary for planning purposes. Entities contacted by the City shall respond within 60 days.
(2) Community Composting operators, upon City request, shall provide information to the City to support organic waste capacity planning, including, but not limited to, an estimate of the amount of organic waste anticipated to be handled at the Community Composting operation. Entities contacted by the City shall respond within sixty (60) days.
5-5.125 Spillage of Solid Waste.
All solid waste collected and transported by any person over public streets in the City shall be secured during the hauling thereof so as to prevent spillage or blowing. 5-5.126 Furnishing of Bins and Drop Box Containers.
Any agreement entered into by the City for garbage, recycling, or organic waste collection shall provide for the availability of approved bins and drop box containers by the collector on a rental basis. The collector shall be responsible for the general repair and upkeep of all bins and drop box containers. The customer shall maintain all rented bins and drop box containers in sanitary condition at all times.
5-5.127 Hours of Collection.
(a) No collections shall be made in residential districts (single family and multi-family dwellings), as shown on the Zoning Map of the City of Modesto, or at schools, churches, hospitals, offices or commercial establishments in or adjacent to said residential district except between the hours of 6:00 a.m. and 6:00 p.m. year-round. (b) Collections may be made in commercial areas when not adjacent to residential areas between the hours of 6:00 a.m. and 9:00 p.m. Monday through Sunday. (c) No collection shall be made from premises in residential or commercial areas other than described in subsections (a) and (b) of this section except when prior approval has been given by the Public Works Director.
5-5.128 Collection Equipment.
All collections shall be made with vehicles of a design approved by the Public Works Director.
All collections shall be made as quietly as possible, and use of any unnecessarily noisy trucks or equipment is prohibited. All vehicles shall be maintained and operated to avoid unnecessary blowing, leakage and spillage.
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5-5.129 Agreement to Collect Solid Waste.
(a) It shall be unlawful for any person or entity to engage in the business of collecting garbage, recycling, organic waste, or bulky items within the City unless such person or entity is an employee or agent of the City, or is a party to an agreement approved by the Council pursuant to this chapter, or is the employee of such a party. (b) It shall be unlawful for any commercial or industrial establishment to enter into any agreement for collection of garbage, recycling, or organic waste unless such person or entity is party to an agreement approved by the council pursuant to this chapter or is the employee of such a party unless otherwise approved by the Public Works Director. (c) It shall be unlawful for any person to interfere in any manner with the lawful operations of such a collector or their authorized agents or assignees. (d) The City may provide in any agreement pursuant to this chapter that the collector may assign a portion or portions of the solid waste collection services for which that person or entity is so contracted to one (1) or more agents or assignees upon approval of the City Council. The collector shall be responsible for the operation and conduct of such agents or assignees.
5-5.130 Self-Haul Requirements. (Contract Required)
Notwithstanding the provisions of Section 5-5.129:
a) Any person may remove or may cause to be removed from premises occupied by that person or under their control, all solid waste created or produced on such premises if all of the following conditions have been met or will be complied with:
1. Removal shall be made only by the owner or occupant personally, or by employees of such owner or occupant.
2. All vehicles used in carrying out removal shall be owned by or under the exclusive control of the owner or occupant, and such vehicles and activities shall meet all the requirements of this chapter and all other laws and ordinances of the State of California and the City relating to solid waste disposal.
3. All vehicles used in the transportation of garbage, organics, and recycling, shall be covered to prevent blowing, spillage, or leakage of material. b) Every Self-Hauler, shall Source Separate their Recyclable Materials and Organic Materials (materials that City otherwise requires Generators to separate for collection in the City's Recyclable Materials and Organic Materials collection program) generated onsite from Solid Waste in a manner consistent with 14 CCR Section 18984.1 or 18984.2 as applicable, and the City's collection program.
c) Self-Haulers shall deliver their materials to facilities as described below:
a. Source Separated Recyclable Materials shall be delivered to a facility that recovers those materials
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b. Source Separated Organic Material to a facility, operation, activity, or property that processes or recovers Source Separated Organic Material c. Garbage shall be disposed of at facility or transfer facility or operation that processes or disposes of garbage
d. Manure shall be disposed of at a facility that manages manure in conformance with 14 CCR Article 12 and such that the manure is not landfilled, used as alternative daily cover (ADC), or used as alternative intermediate cover (AIC). d) Self-Haulers that are Owners or responsible parties of commercial businesses or multifamily Premises shall keep records of the amount of Recyclable Materials, Organic Material, and garbage delivered to each facility, operation, activity, or property that processes or recovers Recyclable Materials and Organic Material and processes or disposes of Solid Waste or shall keep records of Solid Waste delivered to High Diversion Organic Waste Processing Facilities. These records shall be subject to inspection by the City or its designee. The records shall include the following information:
a. Delivery receipts and weight tickets from the entity accepting the Recyclable Materials, Organic Materials, and Garbage.
b. The amount of material in cubic yards or tons transported by the Generator or responsible party to each entity.
e) If the material is transported to an entity that does not have scales on-site or employs scales incapable of weighing the Self-Hauler's vehicle in a manner that allows it to determine the weight of materials received, the Self-Hauler is not required to record the weight of material but shall keep a record of the entities that received the Recyclable Materials, Organic Materials, and garbage.
f) Self-Haulers shall retain all records and data required to be maintained by this Section for no less than five (5) years after the Recyclable Materials, Organic Materials, and/or garbage was first delivered to the facility accepting the material. g) Self-Haulers that are commercial businesses or multi-family Premises shall provide copies of records required by this Section to City if requested by the Director or their designee and shall provide the records at the frequency requested by the Director. h) A single-family Generator or single-family responsible party that self-hauls recyclable materials, organic material, or garbage is not required to record or report information in subsections c and d.
i) Persons removing solid waste in excess of normal annual residential volume (defined herein as three thousand (3,000) pounds per year) shall comply with the following additional requirements:
a. No waste shall be permitted to leak, blow, litter or fall from any vehicle engaged in such removal.
b. All removal shall be done safely and quietly with due regard to the property of others.
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c. No person shall remove solid waste from any location within two hundred (200) feet of a public or private elementary, junior high, or high school, where such school is shown on an official map of the City, as designated by the Public Works Director, during the forty-five (45) minutes before the commencement of the regular school day and forty-five (45) minutes following the conclusion of the regular school day, where such locations are accessible to and used by children as routes to or from school.
d. Persons engaged in solid waste removal pursuant to these requirements shall be responsible for any damage in excess of normal wear and tear to the City's driving surfaces, whether or not paved, resulting from the illegal weight of, or any leakage or spillage of oils, fluids or solids by vehicles used in such solid waste removal.
e. Vehicles used shall comply with CHP and D.O.T. regulations and shall be thoroughly washed and disinfected inside the collection body following each use. f. No driver shall operate a vehicle as in subsection (b)(3)(v) of this section, without a valid and appropriate driver's license.
g. All vehicles as in subsection (b)(3)(v) of this section shall be clearly identified with the name and local telephone number of its operator affixed thereto. h. Garbage shall be disposed of at a permitted transfer facility or at the Fink Road Sanitary Landfill. If disposed of outside of Stanislaus County, the county where disposal occurs shall have an export agreement with the City of Modesto. i. Organic waste, large green waste and small green waste shall be separated from garbage and taken to a permitted composting facility or such other locations as defined in 5-5.123 as directed by the Public Works Director. j. Insurance requirements as specified from time to time by the City's Risk Manager shall be complied with.
j) A cash security deposit shall be deposited with the City in an amount set from time to time by Council resolution, to ensure prompt removal of solid waste in the event it is not removed from the premises on a regular weekly basis by a noncustomer owner or person in control of the premises. A security deposit shall be made for each separate residential property or business location owned or controlled by a noncustomer, based on the frequency and volume of past collection. Events requiring City to use a noncustomer's deposit for solid waste removal shall be treated as a public nuisance subject to immediate abatement and charged to such noncustomer. Conduct requiring City to expend noncustomer deposit moneys shall constitute a misdemeanor. k) Persons engaged in solid waste removal shall procure and retain a receipt from a permitted solid waste facility for each week they remain a noncustomer of a collector and display all such receipts for the preceding one-quarter (¼) calendar year upon reasonable request by appropriate City authority. Failure to show proof of solid waste disposal for each week that a person is a noncustomer shall constitute a public health and safety risk sufficient to permit City to administratively require such person to become a customer. #4..
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l) Any producer of industrial garbage or swill, or their employees, may transport the same upon or through any street or public place of the City for disposal at a permitted disposal facility or site.
m) It shall be unlawful for any person acting as an employee of a producer of industrial garbage or swill to collect or transport such industrial garbage or swill from more than one (1) industrial producer thereof.
n) Any person engaged in the business of gardening or tree trimming, or building demolition, or construction cleanup work, including both yards and building interiors, is authorized to remove small green waste, rubbish or salvageable waste produced as an incident to such business. It shall be unlawful to dispose of small green waste, organic waste and recyclable waste. These materials shall be taken to an approved recycling or compost facility locations as defined in 5-5.123 unless otherwise approved by the Public Works Director.
5-5.131 Rate-Setting for Solid Waste Collection Services. (a) The City shall not engage in rate-making with respect to charges for solid waste collection service, except to set maximum rates as set forth in subsection (b) of this section. (b) Inasmuch as collectors granted service agreements will have no competition with respect to customers who do not wish to be noncustomers, the City Council reserves the right to set maximum rates that may be charged for any solid waste collection services offered by collectors having agreements with the City specifying that the collector has an exclusive service agreement with respect to such service or services. No collector may charge differing rates within the same class of solid waste customer. (c) The City shall review and set the maximum rates annually or more often if requested by collectors authorized under service agreement.
5-5.132 Collection of Solid Waste and Industrial Waste.
The privilege of engaging in the businesses of collecting solid waste, industrial waste or swill is conditioned on entering into a contractual relationship with the City to provide some or all of these services.
5-5.133 Fee for Collection of Swill.
The fee for the privilege of engaging in the business of collecting swill in the City shall be the sum of twenty-five dollars ($25.00) per calendar quarter, or fraction thereof, payable in advance. 5-5.134 Collectors Delinquent Fees.
(a) Penalty: To all fees not paid within thirty (30) days following the close of the preceding quarter there shall be added a penalty of five (5) percent of the amount of fees due per month or fraction thereof until paid. The maximum penalty imposed on any one (1) #4..
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delinquency occurring heretofore or hereafter shall not exceed twenty-five (25) percent of the amount of service agreement fees due.
(b) Interest: In addition to any penalties imposed by this section, delinquent service agreement fees heretofore or hereafter occurring shall be subject to interest at the rate of seven (7) percent per annum until paid.
5-5.135 Collection Agreement Proposals.
Proposals to enter into a collection agreement with the City pursuant to this chapter shall be submitted in writing to the City Clerk. The City shall charge a reasonable fee, as determined by a resolution adopted by the City Council, to the proponent of a proposal to cover the City's costs associated with the due diligence in consideration of the proposal. Each proposal shall contain the following information:
(a) Name and Address of the Proponent. If the proponent is a firm or partnership, names of all owners and partners of all classes, limited and general, shall be listed. If the proponent is a corporation, the names and titles of each of the officers and directors shall be listed, and in addition the names of all stockholders owning, holding or controlling five (5) percent or more of corporate stock shall be listed; (b) The types of services offered;
(c) The number, kind and capacity of the vehicles and other equipment to be used for such purposes;
(d) A financial statement showing the proponent's financial status and their financial ability to conduct the collection operation proposed in their proposal; (e) Proposed consideration to the City if agreement is reached. 5-5.136 Procedure to Enter into Agreement.
Upon receipt of a proposal to enter into an agreement hereunder, the Council shall pass a resolution declaring its intention to consider the proposal, setting forth notice of the day, hour and place, when and where any and all persons may appear before the Council and be heard thereon. The time fixed for such hearing shall be not less than ten (10) days nor more than thirty (30) days after the date of the passage of said resolution.
5-5.137 Protests May Be Filed.
At any time not later than the hour set for the hearing to consider a proposal, any person interested may make written protest stating objections against the proposed agreement. Such protest must be signed by the protestant and delivered to the City Clerk.
5-5.138 Hearing.
At the time set for the hearing, the Council shall proceed to hear the matter, and all persons shall be given opportunity to be heard. The Council may adjourn said hearing from time to time. 5-5.139 Competitive Bids.
The Council may in its discretion, in lieu of considering proposals for agreements, advertise for competitive bids for agreements specified by the City.
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5-5.140 Entering Agreements.
Upon consideration of a proposal or bid for an agreement, the Council may enter into an agreement with any proponent or bidder it determines to be best qualified to render proper and efficient collection service.
The Council also has the right to reject all bids and proposals.
Every agreement entered into by the Council pursuant to the provisions of this chapter shall cover the following matters:
(a) The name and address of the person, firm or corporation with whom the agreement is made;
(b) The type of collection service authorized;
(c) Whether the agreement is exclusive or nonexclusive; limited or unlimited; (d) The term of the agreement, which in no case shall be longer than ten (10) years; (e) Such other conditions as the Council may provide.
5-5.141 Limit on Number of Agreements.
In order to preserve the health, safety and welfare of the people in the City, the Council hereby retains the authority to limit the number of agreements for the collection of solid waste, swill, and industrial waste which will be made under this chapter.
5-5.142 Insurance.
Each collector engaging in the collection of solid waste and industrial waste shall provide the Finance Director with evidence of insurance coverage in the amount and form as approved by the City's Risk Manager. Such amounts shall be set forth from time to time by resolution of the City Council and shall be the same for all collectors.
5-5.143 Faithful Performance Bond by Solid Waste Collectors.
Each party other than City to an agreement to collect solid waste pursuant to the provisions of this chapter shall file with the City Clerk a faithful performance bond or other form of security satisfactory to the City in an amount required by the agreement, and said amount shall be the same for all collectors. Said bond or security shall be conditioned upon the faithful performance of all of the terms and conditions of said agreement and the provisions of this chapter, insofar as they are applicable to said collector.
5-5.144 Assignment of Agreements.
No agreement entered into by the Council with a collector pursuant to the provisions of this chapter and no ownership interest in any party to such an agreement can be sold, gifted, transferred, leased, assigned, mortgaged, pledged, hypothecated, or otherwise encumbered or disposed of, in whole or in part, directly or indirectly, whether voluntarily or by operation of law, or through any stock transfer, transfer in trust, change in control, consolidation or merger of any company or corporation, without the prior written consent of the City Council granted after a public hearing in accordance with the procedures specified in Sections 5-5.131 through 5-5.143 of this chapter. The Council may grant or deny such a request, and may impose such conditions #4..
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as it may deem to be in the public interest including, but not limited to, conditions requiring acceptance of amendments to this service agreement and the payment to City of a reasonable transfer fee in an amount to be determined by the City Council sufficient to cover the City's costs associated with the transfer. Any attempted disposition made without such consent shall be void. (a) Proof of Financial Responsibility. In the event of any assignment duly authorized by the Council, the assignee shall assume the liability and responsibilities of the collector. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale or similar document, a duly executed copy of which shall be filed in the office of the City Clerk with thirty (30) days after any such transfer or assignments. Consent of the Council may not be unreasonably refused; provided, the proposed assignee shall demonstrate to the City Council the financial responsibility as required by all the provisions of this chapter and the service agreement. (b) Hypothecation. Prior consent of the Council shall be required for a transfer in trust, mortgage or other hypothecation, in whole or in part, to secure an indebtedness, when such indebtedness hypothecations shall equal or exceed fifty (50) percent of the independently appraised market value of the property used by collector in its operation.
Such consent shall not be unreasonably withheld.
(c) Acquisitions of Interest. In the event the collector is a corporation, it shall notify the Council when ownership of more than thirty (30) percent of the voting stock of the collector is acquired by a person or group of persons acting in concert, none of whom already own twenty (20) percent or more of the voting stock, singly or collectively.
Any such acquisition shall require the approval of the Council which approval shall not be unreasonably withheld. Failure to comply with this provision shall be grounds for the termination of the service agreement pursuant to the provisions of this chapter and the service agreement.
(d) Bankruptcy. In the event that collector should become insolvent or if proceedings in bankruptcy shall be instituted by or against collector, or if collector shall be adjudged bankrupt or insolvent by any court, or if a receiver or trustee in bankruptcy or a receiver of any property of collector shall be appointed in any suit or proceeding brought by or against collector, or if collector shall make an assignment for the benefit of creditors, and during the pendency of said proceeding the collector fails to maintain service levels as required herein or by any other applicable law, City may initiate termination of the service agreement.
5-5.145 Termination of Agreements.
Any agreement entered by the Council pursuant to the provisions of this chapter may be terminated by the Council, if after conducting a public hearing on said termination, the Council finds and determines that the person doing business by virtue of such agreement has failed to comply with any of its material terms, or this chapter, has failed to render satisfactory collection services, or without cause in accordance with the provisions of the agreement. (a) Termination for Cause. The City further reserves the right to terminate the service agreement or impose liquidated damages in the event of any of the following:
(1) If collector practices, or attempts to practice, any fraud or deceit upon the City.
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(2) If collector becomes insolvent, unable, or unwilling to pay its debts, or upon listing of an order for relief in favor of collector in a bankruptcy proceeding.
(3) If collector fails to provide or maintain in full and in effect, any or all of the bonds and/or coverages required by its service agreement with the City.
(4) If collector willfully and materially violates any orders or rulings of any regulatory body having jurisdiction over collector relative to its service agreement with the City, provided that the collector may contest any such orders or rulings by appropriate proceedings conducted in good faith, in which case no breach of the service agreement shall be deemed to have occurred.
(5) If collector ceases to provide collection services as required by the service agreement over all or a substantial portion of its service area for a period of seven (7) days or more, for any reason within the control of the collector.
(6) If the collector willfully fails and/or refuses to provide City with required information, reports, and/or test results related to vehicle incidents or other incidents where such tests are conducted as part of an investigation of an incident, in a timely manner as provided in its service agreement.
(7) Any other act or omission by the collector, which materially violates the terms, conditions, or requirements of its service agreement.
(b) Process for Imposing Damages for Termination. The Solid Waste Manager may file a complaint with the Public Works Director charging a failure of collector to comply with the provisions of this chapter or the service agreement. (1) Upon issuance of the Solid Waste Manager's complaint, the Public Works Director shall conduct a factual investigation thereof and render a decision relative to the justification for complaint, in writing, within ten (10) days following the decision.
(2) If the Public Works Director determines that the collector's performance pursuant to its service agreement with the City has not been in conformity with the provisions of either the service agreement, the requirements of this chapter, or the requirements of the California Integrated Waste Management Board, including, but not limited to, the laws governing transfer, storage, or disposal of special wastes, the Public Works Director may advise collector in writing of such deficiencies. The Public Works Director may set a reasonable time within which correction of all such deficiencies is to be made. Unless otherwise specified, a reasonable time for correction shall be thirty (30) days from the receipt by the collector of such written notice. The Public Works Director shall review the #4..
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collector's response and notify the collector of his/her decision, in writing.
(3) A decision or order of the Public Works Director shall be final and binding on collector if the collector fails to file a "Notice of Appeal" with the City Manager within thirty (30) days of receipt of the Director's decision. Within ten (10) working days of receipt of a Notice of Appeal, the City Manager shall either refer the appeal to the City Council for proceedings in accordance with subsection (b)(4) of this section, or refer the matter to a hearing officer. (4) The City Council shall set the appeal on the matter referred by the City Manager for hearing within sixty (60) days from receipt by the City Manager of the appeal or referral. At the hearing, the City Council shall consider the report of the Public Works Director indicating the deficiencies, and shall give the collector, or its representatives and any other interested person, a reasonable opportunity to be heard.
(5) Based on the evidence presented at the public hearing, the Council shall determine whether the service agreement should be terminated, liquidated damages imposed, or both. The City Council may also find in favor of collector. The decision of the City Council shall be final and binding. Collector's performance under the service agreement is not excused during the period of time prior to the City Council's final determination as to whether such performance is deficient.
(c) Remedies—Liquidated Damages. The City Council may, at its discretion, assess liquidated damages not to exceed the sum of five thousand dollars ($5,000.00) per day, for each calendar day that service is not provided by collector in accordance with the service agreement for a period not to exceed forty-five (45) days. (d) Additional Remedies. In addition to liquidated damages, above, the City shall have the following rights:
(1) To Rent or Lease Equipment from Collector. The City may rent or lease equipment from collector for the purpose of collecting, transporting, and disposing of solid waste which collector is obligated to collect, transport, and dispose of pursuant to its service agreement, for a period not to exceed six (6) months.
(2) To Contract with Others to Perform the Services. The City may contract others to perform the services otherwise to be performed by collector hereunder, or perform such services itself. (3) To Obtain Injunctive Relief. In the event of a breach under the terms of the service agreement by collector, City may suffer irreparable injury and incalculable damages sufficient to support injunctive relief, to enforce the provisions of the service agreement and to enjoin the breach thereof.
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(4) To Reduce the Service Area. If at the time of the annual review the total number of unresolved complaints exceeds two and one-half tenths (2.5) of one (1) percent of the total annual stops for the prior year, the City Council may determine whether it is appropriate to decrease the service area of collector because of poor performance and authorize another collector to provide services. The maximum reduction in service area for poor performance under this provision shall be ten (10) percent for each occurrence.
(5) To Invoke Eminent Domain. Nothing set forth in a service agreement entered into between City and collector shall be deemed or construed to impair or affect, in any way, to any extent, the right of the City to acquire the property of the collector, either by purchase or through the exercise of the right of eminent domain, at fair market value, or be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the City's right of eminent domain.
(6) To Collect and Bill Collector. Should collector fail to provide collection services as stipulated in its service agreement, within twenty-four (24) hours of a request being communicated by the City to collector to do so, the City may collect and dispose of same and collector shall be liable for all expenses incurred including, but not limited to, disposal, operating, administration, and legal costs.
Reimbursement to City for such expenses will be paid by collector within thirty (30) days after date of invoice.
(7) To Conduct Inspections. At all reasonable times during any normal business hours, the collector shall permit the City's authorized representatives to examine all property of the collector, and to examine and copy any and all records kept or maintained by the collector under its control which pertain to the service agreement. (e) Force Majeure. Collector shall not be in default under its service agreement in the event that any of the services provided by the collector under the terms of the agreement are temporarily interrupted or discontinued for any of the following reasons:
riots, wars, sabotage, civil disturbances, insurrections, explosion, natural disasters such as floods, earthquakes, landslides, fires, strikes, lockouts, other labor disturbances or other catastrophic events which are beyond the reasonable control of collector. Other catastrophic events do not include the financial inability of the collector to perform or failure of the collector to obtain any necessary permits or licenses from other governmental agencies or the right to use the omissions of the collector. In the event a labor disturbance interrupts collection services as required by a service agreement, City may elect to exercise its rights under the service agreement. 5-5.146 Customer May Contract for Excess Collection.
Any owner or occupant of any premises may contract with a City collector, or their agents or assignees, for special haul services for the removal of solid waste or rubbish in excess of services provided by the collector under regular collection fees. #4..
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5-5.147 Collection of Solid Waste Charges.
Any agreement entered into by the Council pursuant to the provisions of this chapter for the collection of solid waste, except industrial waste, shall specify that all charges for solid waste service shall be collected solely by the collector or by the City pursuant to contract with a collector. The City may contract with a collector to perform customer billing and collection services. Nevertheless, such a contract shall not obligate the City to, and the City shall not, use its police power to collect bills remaining overdue or unpaid. 5-5.148 Records Required.
Each collector pursuant to the provisions of this chapter shall maintain detailed records of all receipts and expenditures received or incurred in the operation of such business, including all fees collected for services rendered. Records shall be kept and made available to the City for review for at least five (5) years. All records shall be kept and maintained at the approved location per the service agreement. The City, its officers and employees shall be entitled to inspect, audit and copy such books and records upon notice at all reasonable times. 5-5.149 Annual Financial Report by Solid Waste Collectors.
Each collector of solid waste or industrial waste pursuant to the provisions of this chapter shall file each year with the Finance Director a detailed financial statement, including a balance sheet and profit and loss statement. Said statement shall be filed on or before the date set forth in said agreement for the fiscal or calendar year specified in said agreement. Any collector who fails to file said statement on or before said date shall pay a penalty of one hundred dollars ($100.00) a day for each calendar day, or part thereof, until said statement is filed. This section shall not apply to swill collectors.
5-5.150 Inspection.
a) The Solid Waste Enforcement Officer, the Solid Waste Enforcement Supervisor and/or the Public Works Director may, from time to time, inspect all premises within the City to determine compliance with and to enforce the provisions of this chapter. b) City representatives and/or its designated entity, including Designees are authorized to conduct Inspections and investigations, at random or otherwise, of any collection container, collection vehicle loads, or transfer, processing, or disposal facility for materials collected from generators, or source separated materials to confirm compliance with this ordinance by organic waste generators, commercial businesses (including multifamily residential dwellings), property owners, commercial edible food generators, haulers, self-haulers, food recovery services, and food recovery organizations, subject to applicable laws. This section does not allow City to enter the interior of a private residential property for inspection.
c) Regulated entity shall provide or arrange for access during all inspections (with the exception of residential property interiors) and shall cooperate with the City's employee or its designated entity/designee during such inspections and investigations. Such inspections and investigations may include confirmation of proper placement of materials #4..
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in containers, edible food recovery activities, records, or any other requirement of this ordinance described herein. Failure to provide or arrange for:
i. Access to an entity's premises;
ii. Access to records for any inspection or investigation is a violation of this ordinance and may result in penalties described.
d) Any records obtained by the City during its inspections, and other reviews shall be subject to the requirements and applicable disclosure exemptions of the Public Records Act as set forth in Government Code Section 6250 et seq. e) City representatives, its designated entity, and/or designee are authorized to conduct any inspections, or other investigations as reasonably necessary to further the goals of this ordinance, subject to applicable laws.
f) City shall receive written or verbal complaints from persons regarding an entity that may be potentially non-compliant with SB 1383 Regulations, including receipt of anonymous complaints.
5-5.151 Enforcement.
(a) Violation of any provision of this ordinance shall constitute grounds for issuance of a notice of violation and/or assessment of a fine by the Enforcement Official or representative.
Enforcement actions under this ordinance are issuance of an administrative citation and assessment of a fine. The City's procedures on imposition of administrative fines are hereby incorporated in their entirety, as modified from time to time, and shall govern the imposition, enforcement, collection, and review of administrative citations issued to enforce this ordinance and any rule or regulation adopted pursuant to this ordinance, except as otherwise indicated in this ordinance.
(b) Other remedies allowed by law may be used, including civil action or prosecution as misdemeanor or infraction. City may pursue civil actions in the California courts to seek recovery of unpaid administrative citations. City may choose to delay court action until such time as a sufficiently large number of violations, or cumulative size of violations exist such that court action is a reasonable use of City staff and resources. (c) Responsible Entity for Enforcement.
(1) Enforcement pursuant to this ordinance may be undertaken by the Enforcement Official, which may be the City Manager, the Public Works Director, and/or their designated entity, legal counsel, or combination thereof. (2) Enforcement may also be undertaken by a Stanislaus County Enforcement Official, designated by the City, in consultation with Enforcement Official. a. Enforcement Official(s) and/or County Agency Enforcement Official, will interpret ordinance; determine the applicability of waivers, if violation(s) have occurred; implement enforcement actions; and, determine if compliance standards are met. b. Enforcement Official(s) and County Enforcement Official may issue notices of violation(s).
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(d) Process for Enforcement.
(1) Enforcement Officials or County Enforcement Officials and/or their designee will monitor compliance with the ordinance randomly and through compliance reviews, route reviews, investigation of complaints, and an inspection program. (2) City may issue an official notification to notify regulated entities of its obligations under the ordinance.
(3) For incidences of prohibited container contaminants found in containers, City will issue a notice of violation to any generator found to have prohibited container contaminants in a container. Such notice will be provided via a cart tag or other communication upon identification of the prohibited container contaminants after determining that a violation has occurred. If the City observes prohibited container contaminants in a generator's containers on more than one (1) occasion within a twelve (12) month period, the City may assess contamination penalties on the generator. (4) With the exception of violations of generator contamination of container contents addressed under subsection (d)(3) above, City shall issue a notice of violation requiring compliance within sixty (60) days of issuance of the notice. Absent compliance by the respondent within the deadline set forth in the notice of violation, City shall commence an action to impose penalties, via an administrative citation and fine, pursuant to Section 1-6.305.
(5) Absent compliance by the respondent within the deadline set forth in the notice of violation, City shall commence an action to impose penalties, via an administrative citation.
Notices shall be sent to "owner" at the official address of the owner maintained by the tax collector for the City or if no such address is available, to the owner at the address of the dwelling or commercial property or to the party responsible for paying for the collection services, depending upon available information.
(e) Compliance Deadline Extension Considerations. The City may extend the compliance deadlines set forth in a notice of violation if it finds that there are extenuating circumstances beyond the control of the respondent that make compliance within the deadlines impracticable, including the following:
(1) Acts of God such as earthquakes, wildfires, flooding, and other emergencies or natural disasters;
(2) Delays in obtaining discretionary permits or other government agency approvals; or,
(3) Deficiencies in organic waste recycling infrastructure or edible food recovery capacity and the City is under a corrective action plan with CalRecycle pursuant to 14 CCR Section 18996.2 due to those deficiencies.
(f) Appeals Process. Persons receiving an administrative citation containing a penalty for an uncorrected violation may request a hearing to appeal the citation within twenty (20) calendar days of the mailing of the citation. A hearing will be held only if it is requested within the time prescribed and consistent with City's procedures in the City's codes for #4..
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appeals of administrative citations. Evidence may be presented at the hearing. The City will appoint a hearing officer who shall conduct the hearing and issue a final written order. (g) Education Period for Non-Compliance. City will conduct inspections, route reviews or waste evaluations, and compliance reviews, depending upon the type of regulated entity, to determine compliance, and if City determines that organic waste generator, self-hauler, hauler, Tier One Commercial Edible Food Generator, food recovery organization, food recovery service, or other entity is not in compliance, it shall provide educational materials to the entity describing its obligations under this ordinance and a notice that compliance is required and that violations may be subject to administrative civil penalties. (h) Civil Penalties for Non-Compliance. Prior to or beginning on January 1, 2024, If the City determines that an organic waste Generator, self-hauler, hauler, Tier One or Tier Two Commercial Edible Food Generator, food recovery organization, food recovery service, or other entity is not in compliance with this ordinance, it shall document the noncompliance or violation, issue a notice of violation, and take enforcement action as needed. 5-5.152 Application of Other Provisions of this Code.
Except for the provisions of Article 3 thereof, the provisions of Chapter 1 of Title 6 of this Code shall not apply to collectors under the provisions of this chapter. 5-5.153 Collection.
(a) It shall be unlawful and punishable as an infraction for any person, other than an authorized curbside recycling collector, or its employees or agents, to remove salvageable waste which has been placed at a designated collection location. Placement of salvageable waste at a designated collection location shall constitute consent to its collection by an authorized recycling collector.
(b) Theft of containers or diversion of said containers to uses other than their designated purpose shall be punishable as an infraction.
5-5.154 Mandatory Commercial Recycling (AB341)
(a) Per Public Resources Code Section 42649.2, the owner or operator of a business that contracts for solid waste services and generates more than four (4) cubic yards of total solid waste per week or is a multifamily residential dwelling of five (5) units or more shall arrange for recycling services, consistent with state or local laws or requirements, including a local ordinance or agreement, applicable to the collection, handling, or recycling of solid waste, to the extent that these services are offered and reasonably available from a local service provider.
(b) A commercial waste generator shall take either of the following actions:
(1) Separate specified recyclable materials from solid waste and subscribe to a basic level of recycling service that includes the collection of those recyclable materials or specific provisions for authorized self-hauling.
(2) Subscribe to an alternative type of recycling service that may include mixed waste processing that yields diversion results comparable to source separation. #4..
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44 ORDINANCE NO. 3752-C.S
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5-5.155 Mandatory Commercial Organic Recycling AB1826
Per California Public Resources Code §§ 42649 et seq., the owner or operator of a business shall comply with all state statutes and regulations, as those may be amended from time to time, specifically for commercial organic recycling in the manner specified below:
(a) A commercial waste generator shall take one of the following actions:
(1) Source separate organic waste materials from solid waste and subscribe to a basic level of recycling service that includes the collection of organic and green waste materials.
(2) Recycle its organic waste onsite
(3) Partake in specific provisions for authorized self-hauling its own organic waste for recycling to a permitted composting facility or donation of edible food
(4) Sell or donate its organic waste by subscribing to a service that may include mixed waste processing that specifically recycles organic waste that yields diversion results comparable to source separation.
(5) Backhaul material to a central or corporate location to be collected for organic processing.
(6) When arranging for gardening or landscaping services, the contract or work agreement between a business subject to this section and a gardening or landscaping service shall require that the organic waste generated by those services be managed in compliance with this chapter.
5-5.156 Residential Bulky Item Collection Program.
The City, through the Public Works Director, may establish a Bulky Item Collection Program, to receive requests for and provide for the collection of certain bulky items from residential customers of the City who shall request such service.
(a) Bulky items consist of items which are too large or heavy to be prepared for regular solid waste collection, and may include the following: furniture and large appliances such as washers, dryers, stoves, refrigerators, freezers, and air conditioners; carpet and padding; water heaters or tanks; doors; automotive fenders, bumpers, hoods and seats; toilets and toilet tanks, tubs and sinks; and bicycles, tricycles, swing sets, portable pools, pool covers, and pool heaters.
(b) Items unacceptable for bulky item collection include, but are not limited to, glass, liquids, tires, engine parts, large and small green waste, hazardous waste, items over eight (8) feet in length; items weighing in excess of five hundred (500) pounds; building materials from private contractors; lumber/wood, tree trimmings, and Christmas trees.
(c) No bulky item will be collected on private property. All bulky items shall be placed in the street no more than twelve (12) hours before the scheduled bulky item collection appointment. Bulky items shall be placed adjacent to the property which #4..
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requested the bulky item collection, and must be a minimum of five (5) feet away from any fixed object or parked vehicle. There shall be only one (1) bulky item collection location for each residence.
(d) Only bulky items present at the residential customer's service address at the time the bulky item collection is scheduled, may be placed on the street for collection. (e) Any person found to be in violation of this section, shall be subject to the penalty provisions of Sections 5-5.106(e) and 1-2.01 of this Code. 5-5.157 Multi-Family Bulky Item Collection Program.
The City, through the Public Works Director, may establish a Bulky Item Collection Program, to receive requests for and provide for the collection of certain bulky items from multi-family customers of the City who shall request such service.
(a) Bulky items consist of items which are too large or heavy to be prepared for regular solid waste collection, and may include the following: furniture and large appliances such as washers, dryers, stoves, refrigerators, freezers, and air conditioners; carpet and padding; water heaters or tanks; doors; automotive fenders, bumpers, hoods and seats; toilets and toilet tanks, tubs and sinks; and bicycles, tricycles, swing sets, portable pools, pool covers, and pool heaters.
(b) Items unacceptable for bulky item collection include, but are not limited to, glass, liquids, tires, engine parts, large and small green waste, hazardous waste, items over eight (8) feet in length; items weighing in excess of five hundred (500) pounds; building materials from private contractors; lumber/wood, tree trimmings, and Christmas trees.
(c) No bulky item will be collected on private property, unless prior authorization has been received by the Public Works Director. All bulky items shall be placed in the street no more than twelve (12) hours before the scheduled bulky item collection appointment. Bulky items shall be placed adjacent to the property which requested the bulky item collection, and must be a minimum of five (5) feet away from any fixed object or parked vehicle. There shall be only one (1) bulky item collection location for each multi-family dwelling.
(d) Only bulky items present at the multi-family service address at the time the bulky item collection is scheduled.
(e) Any person found to be in violation of this section, shall be subject to the penalty provisions of Sections 5-5.106(e) and 1-2.01 of this Code.
Article 2. Unauthorized Entry into Waste Containers.
5-5.201 Definitions.
The following words and phrases, whenever used in this article, shall be construed as defined in this section: (a) "Waste container(s)" means any and all containers defined or identified in Article 1 of this chapter, including but not limited to automated collection container, carts, bins, and drop box container.
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5-5.202 Unauthorized Entry into Waste Containers.
(a) The City Council recognizes that there is an increasing problem both nationally and locally involving persons who forage waste containers.
The City Council finds that there is risk to the public health and safety when:
(1) Waste is strewn about;
(2) Waste containers are left open to animals;
(3) Waste containers and lids are left in roadways or walkways. (b) The City Council further finds that entry into waste containers by unauthorized individuals may subject owners to public nuisance liabilities for which they have no remedy unless provided by an addition to the Modesto Municipal Code.
(c) The Council hereby finds that an ordinance is needed for the preservation of the public peace, health, safety and general welfare of the residents of the City of Modesto based upon the finding of facts declared by the City Council hereinabove stated. 5-5.203 Unlawful Search and Entry—Penalty.
(a) It shall be unlawful for any person, except the owner or someone with the owner's consent or authorized City, County, State, or Federal personnel, or employees of the solid waste company that owns the waste container, in the performance of their duties, to rummage, explore, tamper with, move, remove, tip, deface, destroy, scavenge or otherwise search a waste container or the contents thereof.
(b) Any and each violation of subsection (a) of this section shall constitute a separate and distinct offense punishable as provided in Section 5-5.205 of this chapter. #4..
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5-5.204 Public Nuisance.
Rummaging, exploring, scavenging, or otherwise searching a waste container is a violation of the provisions of this article and is hereby declared a public nuisance.-5.205 Violation and Penalty. (a) Any person in violation of this article shall be guilty of a misdemeanor and shall be punishable by a fine of not more than five hundred dollars ($500.00) or imprisonment in the Stanislaus County jail for not more than six (6) months, or both. (b) Any person that continues in violation of this article shall be guilty of a separate and distinct offense for each and every violation.
SECTION 3. SEVERABILITY.
If any portion of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid, unenforceable, or unconstitutional by a court of competent jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability, or unconstitutionality shall not affect the validity or enforceability of the remaining portions of the Ordinance, or its application any other person or circumstance. The City Council or the City of Modesto hereby declares that it would have adopted each section, sentence, clause, or phrase of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses, or phrases of this Ordinance be declared invalid, unenforceable, or unconstitutional.
SECTION 4. EFFECTIVE DATE.
This Ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.
SECTION 5. PUBLICATION.
At least two (2) days prior to its final adoption, copies of this Ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in the Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this Ordinance, the date of its introduction and the places where this Ordinance is posted. #4..
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48 ORDINANCE NO. 3752-C.S
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The foregoing ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 6th day of December, 2022, by Councilmember Ricci, who moved its introduction and passage to print, which motion being duly seconded by Councilmember Bavaro, was upon roll call carried and ordered printed and published by the following vote:
AYES: Councilmembers: Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED: _____________________________
SUE ZWAHLEN, Mayor
ATTEST:
By: _________________________________
DIANE NAYERES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
By: _________________________________
JOSE M. SANCHEZ, City Attorney
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49 ORDINANCE NO. 3752-C.S
EFFECTIVE DATE: January 12, 2023
FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the 13th day of December, 2022, Councilmember ?? moved its final adoption, which motion being duly seconded by Councilmember ??, was upon roll call carried and the ordinance adopted by the following vote:
AYES: Councilmembers: Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED: ________________________
SUE ZWAHLEN, MAYOR
ATTEST: ___________________________________
DIANE NAYARES-PEREZ, City Clerk
Effective Date: January 12, 2023
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CITY OF MODESTO
ORDINANCE NO. 3752-C.S.
The following Ordinance was introduced by the City Council of the City of Modesto at the meeting of December 6, 2022:
ORDINANCE REPEALING TITLE 5, “SANITATION AND HEALTH,” CHAPTER 11 “ORGANIC WASTE DISPOSAL” OF THE MODESTO MUNICIPAL CODE IN ITS ENTIRETY, AND REPEALING AND REPLACING TITLE 5, CHAPTER 5, “SOLID WASTE” OF THE MODESTO MUNICIPAL CODE
Copies of the above-mentioned ordinance are posted at the following locations:
Tenth Street Place, 1010 10th Street
Maddux Youth Center, 615 Sierra Drive
Senior Citizen Center, 211 Bodem Street
Diane Nayares-Perez
City Clerk
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
December 13, 2022
Date: December 8, 2022
TO: Mayor & City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jose M. Sanchez, City Attorney
CONTACT: Jose M. Sanchez, City Attorney, 209-577-5284, [email protected] DESCRIPTION:
Consider approving a resolution continuing to authorize remote teleconference meetings pursuant to Assembly Bill 361. (Funding Source: Not Applicable) STRATEGIC PLAN ELEMENT:
This item is related to the 2020-2025 Strategic Plan goal of promoting trust and engagement.
BACKGROUND:
On March 4, 2020, Governor Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the State prepare for a broader spread of the novel coronavirus disease 2019 (“COVID-19”). On March 19, 2020, the City Council adopted Resolution Number 2020-140, ratifying the proclamation of a local emergency by the Director of Emergency Services due to COVID-19.
All meetings of the City Council and the City’s other legislative bodies are open and public, as required by the Ralph M. Brown Act, Government Code section 54950 et seq., so that any member of the public may attend, participate, and watch the City’s legislative bodies conduct their business. On March 17, 2020, in response to the COVID-19 pandemic, Governor Newsom issued Executive Order N-29-20 suspending certain provisions of the Ralph M. Brown Act in order to allow local legislative bodies to conduct meetings telephonically or by other means in order to slow the spread of COVID-19. As a result of Executive Order N-29-20, staff set up virtual meetings for all City Council meetings and other City legislative bodies. On June 11, 2021, Governor Newsom issued Executive Order N-08-21, which, effective September 30, 2021, ended the provisions of Executive Order N-29-20 that allowed local legislative bodies to conduct meetings telephonically or by other means.
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City Council, December 13, 2022
Assembly Bill 361-Continued Remote Teleconference Meetings
DISCUSSION:
On September 16, 2021, the Governor signed Assembly Bill (AB) 3611 (2021) which allows for local legislative bodies to continue to conduct meetings via teleconferencing under specified conditions and includes a requirement that the City Council make specified findings. AB 361 took effect immediately. In addition to other circumstances, the City and its legislative bodies will be allowed to continue to meet remotely during a declared state of emergency when state or local health officials have imposed or recommended measures to promote social distancing, or when the Council finds that meeting in person would present imminent risks to the health or safety of attendees.
On Tuesday, September 28, 2021, the City Council adopted Resolution No. 2021-370, finding that a state of emergency exists and that the County of Stanislaus Health Officer had imposed and recommended social distancing measures for residents within the City. On Tuesday, October 5, 2021, the City Council held their first meeting in accordance with the requirements of Government Code section 54953(e).
In order to continue to hold remote meetings, the City Council must reconsider the state of emergency and declare every 30 days that either (i) the state of emergency continues to directly impact the ability of the members to meet safely in person, or (ii) State or local officials continue to impose or recommend measures to promote social distancing.
The City has reconsidered the state of emergency, as declared by the Governor, which continues in existence. In addition, health officials continue to recommend measures to slow the spread of COVID-19. State of California health officials recommend community members to wear a mask when they might be around unvaccinated people, especially in any indoor public place; along with other recommendations that promote social distancing in indoor spaces. These measures can be found here: https://covid19.ca.gov/holidays/.
The proposed resolution includes the necessary findings in order for the City Council and the other legislative bodies of the City to continue holding remote teleconference meetings pursuant to AB 361.
FISCAL IMPACT:
There is no cost associated with this item.
COMMITTEE RECOMMENDATION:
This agenda item was not presented to a Council Committee.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution continuing to authorize remote teleconference meetings of the City of Modesto pursuant to Assembly Bill 361.
1 Assembly Bill No. 361 - An act to add and repeal Section 89305.6 of the Education Code, and to amend, repeal, and add Section 54953 of, and to add and repeal Section 11133 of, the Government Code, relating to open meetings, and declaring the urgency thereof, to take effect immediately. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB361 #5..
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City Council, December 13, 2022
Assembly Bill 361-Continued Remote Teleconference Meetings
Approved by:
Jose M. Sanchez, City Attorney
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Assembly Bill 361
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12/13/2022/CAO/JSanchez/Item 1 2022-
MODESTO CITY COUNCIL
RESOLUTION NO. 2022-
RESOLUTION CONTINUING TO AUTHORIZE REMOTE
TELECONFERENCE MEETINGS OF THE CITY OF MODESTO PURSUANT TO ASSEMBLY BILL 361
WHEREAS, the City of Modesto (the “City”) is committed to preserving and promoting public access and participation in meetings of the legislative bodies; and WHEREAS, all meetings of the City are open and public, as required by the Ralph M.
Brown Act (Cal. Gov. Code 54950 – 54963), so that any member of the public may attend, participate, and watch the City conduct their business; and WHEREAS, on March 4, 2020, Governor Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the State prepare for a broader spread of the novel coronavirus disease 2019 (“COVID-19”); and WHEREAS, on March 19, 2020, the City Council adopted Resolution Number 2020-140, ratifying the proclamation of a local emergency by the Director of Emergency Services due to COVID-19; and
WHEREAS, on March 17, 2020, in response to the COVID-19 pandemic, Governor Newsom issued Executive Order N-29-20 suspending certain provisions of the Ralph M. Brown Act in order to allow local legislative bodies to conduct meetings telephonically or by other means; and
WHEREAS, on June 11, 2021, Governor Newsom issued Executive Order N-08- 21, which, effective September 30, 2021, repealed the provisions of Executive Order N29-20 that allowed local legislative bodies to conduct meetings telephonically or by other means; and
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12/13/2022/CAO/JSanchez/Item 2 2022-
WHEREAS, on September 16, 2021, Governor Newsom signed Assembly Bill 361 (2021) (“AB 361”), which allows for remote teleconferencing participation in meetings by members of a legislative body without compliance with the requirements of Government Code section 54953(b)(3), subject to the existence of certain conditions; and WHEREAS, a required condition of AB 361 is that a state of emergency is declared by the Governor pursuant to Government Code section 8625, proclaiming the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions as described in Government Code section 8558; and
WHEREAS, AB 361 further requires that state or local officials have imposed or recommended measures to promote social distancing, or, that the legislative body meeting in person would present imminent risks to the health and safety of attendees; and WHEREAS, on September 28, 2021, the City Council adopted Resolution No. 2021-370 authorizing remote teleconference meetings pursuant to AB361 (Government Code section 54953(e)); and
WHEREAS, the City is required to make certain findings every thirty (30) days to continue teleconferencing under Government Code section 54953(e)(3), including reconsideration of the state of emergency declared by the Governor pursuant to Government Code section 8625, and whether State or local officials continue to impose or recommend measures to promote social distancing; and WHEREAS, the City Council has considered the circumstances of the Governor’s state of emergency proclamation pursuant to Government Code section 8625, which remains active; and
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12/13/2022/CAO/JSanchez/Item 3 2022-
WHEREAS, on March 8, 2022, the County of Stanislaus Board of Supervisors terminated the Declaration of a Local Health Emergency that was issued on March 11, 2020; and
WHEREAS, State of California health officials recommend masks to be worn when individuals might be around unvaccinated people, especially while indoors; and WHEREAS, the City Council, acting for itself and for the benefit of all of the City’s commissions, committees, and other bodies (collectively referred to as the “Legislative Bodies”), does hereby find that the Legislative Bodies shall continue to conduct their meetings without compliance with Government Code section 54953(b)(3), as authorized by Government Code section 54953(e), and that the Legislative Bodies shall continue to comply with the requirements to provide the public with access to the meetings as prescribed in Government Code section 54953(e)(2) as a consequence of the ongoing state of emergency and the continued social distancing measures required by local officials.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MODESTO DOES HEREBY RESOLVE AS FOLLOWS:
Section 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference.
Section 2. Consideration of State of Emergency. The City Council has considered the conditions of the state of emergency declared pursuant to Government Code section 8625, and determined that such emergency conditions continue to be present in the City. #5..
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12/13/2022/CAO/JSanchez/Item 4 2022-
Section 3. Continued Social Distancing Measures by State and Local Officials.
The City Council finds that the State of California Health Officer’s recommended measures to promote social distancing remain in effect.
Section 4. Remote Teleconference Meetings. The City Council finds that the conditions continue to exist pursuant to Government Code section 54953(e)(3) to allow Legislative Bodies to use teleconferencing to hold public meetings in accordance with Government Code section 54953(e)(2) to ensure members of the public have continued access to safely observe and participate in local government meetings.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 13th day of December, 2022, by Councilmember____, who moved its adoption, which motion being duly seconded by______, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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Assembly Bill No. 361
CHAPTER 165
An act to add and repeal Section 89305.6 of the Education Code, and to amend, repeal, and add Section 54953 of, and to add and repeal Section 11133 of, the Government Code, relating to open meetings, and declaring the urgency thereof, to take effect immediately.
[Approved by Governor September 16, 2021. Filed with
Secretary of State September 16, 2021.]
legislative counsel’s digest
AB 361, Robert Rivas. Open meetings: state and local agencies:
teleconferences.
(1) Existing law, the Ralph M. Brown Act requires, with specified exceptions, that all meetings of a legislative body of a local agency, as those terms are defined, be open and public and that all persons be permitted to attend and participate. The act contains specified provisions regarding the timelines for posting an agenda and providing for the ability of the public to directly address the legislative body on any item of interest to the public.
The act generally requires all regular and special meetings of the legislative body be held within the boundaries of the territory over which the local agency exercises jurisdiction, subject to certain exceptions. The act allows for meetings to occur via teleconferencing subject to certain requirements, particularly that the legislative body notice each teleconference location of each member that will be participating in the public meeting, that each teleconference location be accessible to the public, that members of the public be allowed to address the legislative body at each teleconference location, that the legislative body post an agenda at each teleconference location, and that at least a quorum of the legislative body participate from locations within the boundaries of the local agency’s jurisdiction. The act provides an exemption to the jurisdictional requirement for health authorities, as defined. The act authorizes the district attorney or any interested person, subject to certain provisions, to commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that specified actions taken by a legislative body are null and void.
Existing law, the California Emergency Services Act, authorizes the Governor, or the Director of Emergency Services when the governor is inaccessible, to proclaim a state of emergency under specified circumstances.
Executive Order No. N-29-20 suspends the Ralph M. Brown Act’s requirements for teleconferencing during the COVID-19 pandemic provided that notice and accessibility requirements are met, the public members are allowed to observe and address the legislative body at the meeting, and that a legislative body of a local agency has a procedure for receiving and swiftly
92 #5..
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resolving requests for reasonable accommodation for individuals with disabilities, as specified.
This bill, until January 1, 2024, would authorize a local agency to use teleconferencing without complying with the teleconferencing requirements imposed by the Ralph M. Brown Act when a legislative body of a local agency holds a meeting during a declared state of emergency, as that term is defined, when state or local health officials have imposed or recommended measures to promote social distancing, during a proclaimed state of emergency held for the purpose of determining, by majority vote, whether meeting in person would present imminent risks to the health or safety of attendees, and during a proclaimed state of emergency when the legislative body has determined that meeting in person would present imminent risks to the health or safety of attendees, as provided.
This bill would require legislative bodies that hold teleconferenced meetings under these abbreviated teleconferencing procedures to give notice of the meeting and post agendas, as described, to allow members of the public to access the meeting and address the legislative body, to give notice of the means by which members of the public may access the meeting and offer public comment, including an opportunity for all persons to attend via a call-in option or an internet-based service option, and to conduct the meeting in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body. The bill would require the legislative body to take no further action on agenda items when there is a disruption which prevents the public agency from broadcasting the meeting, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments, until public access is restored. The bill would specify that actions taken during the disruption are subject to challenge proceedings, as specified.
This bill would prohibit the legislative body from requiring public comments to be submitted in advance of the meeting and would specify that the legislative body must provide an opportunity for the public to address the legislative body and offer comment in real time. The bill would prohibit the legislative body from closing the public comment period and the opportunity to register to provide public comment, until the public comment period has elapsed or until a reasonable amount of time has elapsed, as specified. When there is a continuing state of emergency, or when state or local officials have imposed or recommended measures to promote social distancing, the bill would require a legislative body to make specified findings not later than 30 days after the first teleconferenced meeting pursuant to these provisions, and to make those findings every 30 days thereafter, in order to continue to meet under these abbreviated teleconferencing procedures.
Existing law prohibits a legislative body from requiring, as a condition to attend a meeting, a person to register the person’s name, or to provide other information, or to fulfill any condition precedent to the person’s attendance.
92 Ch. 165 — 2 —
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This bill would exclude from that prohibition, a registration requirement imposed by a third-party internet website or other online platform not under the control of the legislative body.
(2) Existing law, the Bagley-Keene Open Meeting Act, requires, with specified exceptions, that all meetings of a state body be open and public and all persons be permitted to attend any meeting of a state body. The act requires at least one member of the state body to be physically present at the location specified in the notice of the meeting.
The Governor’s Executive Order No. N-29-20 suspends the requirements of the Bagley-Keene Open Meeting Act for teleconferencing during the COVID-19 pandemic, provided that notice and accessibility requirements are met, the public members are allowed to observe and address the state body at the meeting, and that a state body has a procedure for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, as specified.
This bill, until January 31, 2022, would authorize, subject to specified notice and accessibility requirements, a state body to hold public meetings through teleconferencing and to make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the state body. With respect to a state body holding a public meeting pursuant to these provisions, the bill would suspend certain requirements of existing law, including the requirements that each teleconference location be accessible to the public and that members of the public be able to address the state body at each teleconference location. Under the bill, a state body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically would satisfy any requirement that the state body allow members of the public to attend the meeting and offer public comment. The bill would require that each state body that holds a meeting through teleconferencing provide notice of the meeting, and post the agenda, as provided. The bill would urge state bodies utilizing these teleconferencing procedures in the bill to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to existing law, as provided.
(3) Existing law establishes the various campuses of the California State University under the administration of the Trustees of the California State University, and authorizes the establishment of student body organizations in connection with the operations of California State University campuses.
The Gloria Romero Open Meetings Act of 2000 generally requires a legislative body, as defined, of a student body organization to conduct its business in a meeting that is open and public. The act authorizes the legislative body to use teleconferencing, as defined, for the benefit of the public and the legislative body in connection with any meeting or proceeding authorized by law.
This bill, until January 31, 2022, would authorize, subject to specified notice and accessibility requirements, a legislative body, as defined for purposes of the act, to hold public meetings through teleconferencing and 92 — 3 — Ch. 165
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to make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the legislative body. With respect to a legislative body holding a public meeting pursuant to these provisions, the bill would suspend certain requirements of existing law, including the requirements that each teleconference location be accessible to the public and that members of the public be able to address the legislative body at each teleconference location.
Under the bill, a legislative body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically would satisfy any requirement that the legislative body allow members of the public to attend the meeting and offer public comment. The bill would require that each legislative body that holds a meeting through teleconferencing provide notice of the meeting, and post the agenda, as provided. The bill would urge legislative bodies utilizing these teleconferencing procedures in the bill to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to existing law, as provided.
(4) This bill would declare the Legislature’s intent, consistent with the Governor’s Executive Order No. N-29-20, to improve and enhance public access to state and local agency meetings during the COVID-19 pandemic and future emergencies by allowing broader access through teleconferencing options.
(5) This bill would incorporate additional changes to Section 54953 of the Government Code proposed by AB 339 to be operative only if this bill and AB 339 are enacted and this bill is enacted last.
(6) The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.
This bill would make legislative findings to that effect. (7) Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect. (8) This bill would declare that it is to take effect immediately as an urgency statute.
The people of the State of California do enact as follows:
SECTION 1. Section 89305.6 is added to the Education Code, to read:
89305.6. (a) Notwithstanding any other provision of this article, and subject to the notice and accessibility requirements in subdivisions (d) and (e), a legislative body may hold public meetings through teleconferencing 92 Ch. 165 — 4 —
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and make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the legislative body.
(b) (1) For a legislative body holding a public meeting through teleconferencing pursuant to this section, all requirements in this article requiring the physical presence of members, the clerk or other personnel of the legislative body, or the public, as a condition of participation in or quorum for a public meeting, are hereby suspended.
(2) For a legislative body holding a public meeting through teleconferencing pursuant to this section, all of the following requirements in this article are suspended:
(A) Each teleconference location from which a member will be participating in a public meeting or proceeding be identified in the notice and agenda of the public meeting or proceeding.
(B) Each teleconference location be accessible to the public. (C) Members of the public may address the legislative body at each teleconference conference location.
(D) Post agendas at all teleconference locations.
(E) At least one member of the legislative body be physically present at the location specified in the notice of the meeting.
(c) A legislative body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically, consistent with the notice and accessibility requirements in subdivisions (d) and (e), shall have satisfied any requirement that the legislative body allow members of the public to attend the meeting and offer public comment. A legislative body need not make available any physical location from which members of the public may observe the meeting and offer public comment.
(d) If a legislative body holds a meeting through teleconferencing pursuant to this section and allows members of the public to observe and address the meeting telephonically or otherwise electronically, the legislative body shall also do both of the following:
(1) Implement a procedure for receiving and swiftly resolving requests for reasonable modification or accommodation from individuals with disabilities, consistent with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), and resolving any doubt whatsoever in favor of accessibility.
(2) Advertise that procedure each time notice is given of the means by which members of the public may observe the meeting and offer public comment, pursuant to paragraph (2) of subdivision (e).
(e) Except to the extent this section provides otherwise, each legislative body that holds a meeting through teleconferencing pursuant to this section shall do both of the following:
(1) Give advance notice of the time of, and post the agenda for, each public meeting according to the timeframes otherwise prescribed by this article, and using the means otherwise prescribed by this article, as applicable.
92 — 5 — Ch. 165
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(2) In each instance in which notice of the time of the meeting is otherwise given or the agenda for the meeting is otherwise posted, also give notice of the means by which members of the public may observe the meeting and offer public comment. As to any instance in which there is a change in the means of public observation and comment, or any instance prior to the effective date of this section in which the time of the meeting has been noticed or the agenda for the meeting has been posted without also including notice of the means of public observation and comment, a legislative body may satisfy this requirement by advertising the means of public observation and comment using the most rapid means of communication available at the time. Advertising the means of public observation and comment using the most rapid means of communication available at the time shall include, but need not be limited to, posting such means on the legislative body’s internet website.
(f) All legislative bodies utilizing the teleconferencing procedures in this section are urged to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the otherwise applicable provisions of this article, in order to maximize transparency and provide the public access to legislative body meetings.
(g) This section shall remain in effect only until January 31, 2022, and as of that date is repealed.
SEC. 2. Section 11133 is added to the Government Code, to read:
11133. (a) Notwithstanding any other provision of this article, and subject to the notice and accessibility requirements in subdivisions (d) and (e), a state body may hold public meetings through teleconferencing and make public meetings accessible telephonically, or otherwise electronically, to all members of the public seeking to observe and to address the state body.
(b) (1) For a state body holding a public meeting through teleconferencing pursuant to this section, all requirements in this article requiring the physical presence of members, the clerk or other personnel of the state body, or the public, as a condition of participation in or quorum for a public meeting, are hereby suspended.
(2) For a state body holding a public meeting through teleconferencing pursuant to this section, all of the following requirements in this article are suspended:
(A) Each teleconference location from which a member will be participating in a public meeting or proceeding be identified in the notice and agenda of the public meeting or proceeding.
(B) Each teleconference location be accessible to the public. (C) Members of the public may address the state body at each teleconference conference location.
(D) Post agendas at all teleconference locations.
(E) At least one member of the state body be physically present at the location specified in the notice of the meeting.
(c) A state body that holds a meeting through teleconferencing and allows members of the public to observe and address the meeting telephonically 92 Ch. 165 — 6 —
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or otherwise electronically, consistent with the notice and accessibility requirements in subdivisions (d) and (e), shall have satisfied any requirement that the state body allow members of the public to attend the meeting and offer public comment. A state body need not make available any physical location from which members of the public may observe the meeting and offer public comment.
(d) If a state body holds a meeting through teleconferencing pursuant to this section and allows members of the public to observe and address the meeting telephonically or otherwise electronically, the state body shall also do both of the following:
(1) Implement a procedure for receiving and swiftly resolving requests for reasonable modification or accommodation from individuals with disabilities, consistent with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), and resolving any doubt whatsoever in favor of accessibility.
(2) Advertise that procedure each time notice is given of the means by which members of the public may observe the meeting and offer public comment, pursuant to paragraph (2) of subdivision (e).
(e) Except to the extent this section provides otherwise, each state body that holds a meeting through teleconferencing pursuant to this section shall do both of the following:
(1) Give advance notice of the time of, and post the agenda for, each public meeting according to the timeframes otherwise prescribed by this article, and using the means otherwise prescribed by this article, as applicable.
(2) In each instance in which notice of the time of the meeting is otherwise given or the agenda for the meeting is otherwise posted, also give notice of the means by which members of the public may observe the meeting and offer public comment. As to any instance in which there is a change in the means of public observation and comment, or any instance prior to the effective date of this section in which the time of the meeting has been noticed or the agenda for the meeting has been posted without also including notice of the means of public observation and comment, a state body may satisfy this requirement by advertising the means of public observation and comment using the most rapid means of communication available at the time. Advertising the means of public observation and comment using the most rapid means of communication available at the time shall include, but need not be limited to, posting such means on the state body’s internet website.
(f) All state bodies utilizing the teleconferencing procedures in this section are urged to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the otherwise applicable provisions of this article, in order to maximize transparency and provide the public access to state body meetings.
(g) This section shall remain in effect only until January 31, 2022, and as of that date is repealed.
SEC. 3. Section 54953 of the Government Code is amended to read:
92 — 7 — Ch. 165
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54953. (a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.
(b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all otherwise applicable requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivisions (d) and (e). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4) For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.
Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations.
(c) (1) No legislative body shall take action by secret ballot, whether preliminary or final.
(2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.
(3) Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1, during the open meeting in which the final action is to be taken. This paragraph shall not affect the public’s right under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
92 Ch. 165 — 8 —
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(d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority members from regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
(3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter
2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members.
(e) (1) A local agency may use teleconferencing without complying with the requirements of paragraph (3) of subdivision (b) if the legislative body complies with the requirements of paragraph (2) of this subdivision in any of the following circumstances:
(A) The legislative body holds a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing.
(B) The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(C) The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote, pursuant to subparagraph (B), that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(2) A legislative body that holds a meeting pursuant to this subdivision shall do all of the following:
(A) The legislative body shall give notice of the meeting and post agendas as otherwise required by this chapter.
(B) The legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3. 92 — 9 — Ch. 165
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In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment. The agenda shall identify and include an opportunity for all persons to attend via a call-in option or an internet-based service option. This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment.
(C) The legislative body shall conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body of a local agency. (D) In the event of a disruption which prevents the public agency from broadcasting the meeting to members of the public using the call-in option or internet-based service option, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments using the call-in option or internet-based service option, the body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call-in option or internet-based service option is restored. Actions taken on agenda items during a disruption which prevents the public agency from broadcasting the meeting may be challenged pursuant to Section 54960.1.
(E) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time.
This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment. (F) Notwithstanding Section 54953.3, an individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third-party internet website or online platform to participate. (G) (i) A legislative body that provides a timed public comment period for each agenda item shall not close the public comment period for the agenda item, or the opportunity to register, pursuant to subparagraph (F), to provide public comment until that timed public comment period has elapsed.
(ii) A legislative body that does not provide a timed public comment period, but takes public comment separately on each agenda item, shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comment, including time for members of the public to register pursuant to subparagraph (F), or otherwise be recognized for the purpose of providing public comment. (iii) A legislative body that provides a timed general public comment period that does not correspond to a specific agenda item shall not close the public comment period or the opportunity to register, pursuant to subparagraph (F), until the timed general public comment period has elapsed. 92 Ch. 165 — 10 —
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(3) If a state of emergency remains active, or state or local officials have imposed or recommended measures to promote social distancing, in order to continue to teleconference without compliance with paragraph (3) of subdivision (b), the legislative body shall, not later than 30 days after teleconferencing for the first time pursuant to subparagraph (A), (B), or (C) of paragraph (1), and every 30 days thereafter, make the following findings by majority vote:
(A) The legislative body has reconsidered the circumstances of the state of emergency.
(B) Any of the following circumstances exist:
(i) The state of emergency continues to directly impact the ability of the members to meet safely in person.
(ii) State or local officials continue to impose or recommend measures to promote social distancing.
(4) For the purposes of this subdivision, “state of emergency” means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act (Article 1 (commencing with Section 8550) of Chapter 7 of Division 1 of Title 2).
(f) This section shall remain in effect only until January 1, 2024, and as of that date is repealed.
SEC. 3.1. Section 54953 of the Government Code is amended to read:
54953. (a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency in person, except as otherwise provided in this chapter. Local agencies shall conduct meetings subject to this chapter consistent with applicable state and federal civil rights laws, including, but not limited to, any applicable language access and other nondiscrimination obligations.
(b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all otherwise applicable requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body 92 — 11 — Ch. 165
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shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivisions (d) and (e). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4) For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.
Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations.
(c) (1) No legislative body shall take action by secret ballot, whether preliminary or final.
(2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.
(3) Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1, during the open meeting in which the final action is to be taken. This paragraph shall not affect the public’s right under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
(d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority members from regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
(3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter 92 Ch. 165 — 12 —
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2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members.
(e) (1) A local agency may use teleconferencing without complying with the requirements of paragraph (3) of subdivision (b) if the legislative body complies with the requirements of paragraph (2) of this subdivision in any of the following circumstances:
(A) The legislative body holds a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing.
(B) The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(C) The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote, pursuant to subparagraph (B), that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(2) A legislative body that holds a meeting pursuant to this subdivision shall do all of the following:
(A) The legislative body shall give notice of the meeting and post agendas as otherwise required by this chapter.
(B) The legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3.
In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment. The agenda shall identify and include an opportunity for all persons to attend via a call-in option or an internet-based service option. This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment.
(C) The legislative body shall conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body of a local agency. (D) In the event of a disruption which prevents the public agency from broadcasting the meeting to members of the public using the call-in option or internet-based service option, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments using the call-in option or internet-based service option, the body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call-in option or internet-based service option is restored. Actions taken on agenda items during a disruption which prevents the public agency from broadcasting the meeting may be challenged pursuant to Section 54960.1.
(E) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for 92 — 13 — Ch. 165
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the public to address the legislative body and offer comment in real time.
This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment. (F) Notwithstanding Section 54953.3, an individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third-party internet website or online platform to participate. (G) (i) A legislative body that provides a timed public comment period for each agenda item shall not close the public comment period for the agenda item, or the opportunity to register, pursuant to subparagraph (F), to provide public comment until that timed public comment period has elapsed.
(ii) A legislative body that does not provide a timed public comment period, but takes public comment separately on each agenda item, shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comment, including time for members of the public to register pursuant to subparagraph (F), or otherwise be recognized for the purpose of providing public comment. (iii) A legislative body that provides a timed general public comment period that does not correspond to a specific agenda item shall not close the public comment period or the opportunity to register, pursuant to subparagraph (F), until the timed general public comment period has elapsed. (3) If a state of emergency remains active, or state or local officials have imposed or recommended measures to promote social distancing, in order to continue to teleconference without compliance with paragraph (3) of subdivision (b), the legislative body shall, not later than 30 days after teleconferencing for the first time pursuant to subparagraph (A), (B), or (C) of paragraph (1), and every 30 days thereafter, make the following findings by majority vote:
(A) The legislative body has reconsidered the circumstances of the state of emergency.
(B) Any of the following circumstances exist:
(i) The state of emergency continues to directly impact the ability of the members to meet safely in person.
(ii) State or local officials continue to impose or recommend measures to promote social distancing.
(4) For the purposes of this subdivision, “state of emergency” means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act (Article 1 (commencing with Section 8550) of Chapter 7 of Division 1 of Title 2).
(f) This section shall remain in effect only until January 1, 2024, and as of that date is repealed.
SEC. 4. Section 54953 is added to the Government Code, to read:
54953. (a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting 92 Ch. 165 — 14 —
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of the legislative body of a local agency, except as otherwise provided in this chapter.
(b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivision (d). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4) For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.
Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations
(c) (1) No legislative body shall take action by secret ballot, whether preliminary or final.
(2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.
(3) Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1, during the open meeting in which the final action is to be taken. This paragraph shall not affect the public’s right under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
(d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, 92 — 15 — Ch. 165
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members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority members from regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
(3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter
2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members.
(e) This section shall become operative January 1, 2024.
SEC. 4.1. Section 54953 is added to the Government Code, to read:
54953. (a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, in person except as otherwise provided in this chapter. Local agencies shall conduct meetings subject to this chapter consistent with applicable state and federal civil rights laws, including, but not limited to, any applicable language access and other nondiscrimination obligations.
(b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the 92 Ch. 165 — 16 —
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legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivision (d). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location.
(4) For the purposes of this section, “teleconference” means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.
Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations.
(c) (1) No legislative body shall take action by secret ballot, whether preliminary or final.
(2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.
(3) Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1, during the open meeting in which the final action is to be taken. This paragraph shall not affect the public’s right under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation.
(d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority members from regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section.
(3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint 92 — 17 — Ch. 165
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powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter
2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members.
(e) This section shall become operative January 1, 2024.
SEC. 5. Sections 3.1 and 4.1 of this bill incorporate amendments to Section 54953 of the Government Code proposed by both this bill and Assembly Bill 339. Those sections of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2022, but this bill becomes operative first, (2) each bill amends Section 54953 of the Government Code, and (3) this bill is enacted after Assembly Bill 339, in which case Section 54953 of the Government Code, as amended by Sections 3 and 4 of this bill, shall remain operative only until the operative date of Assembly Bill 339, at which time Sections 3.1 and 4.1 of this bill shall become operative.
SEC. 6. It is the intent of the Legislature in enacting this act to improve and enhance public access to state and local agency meetings during the COVID-19 pandemic and future applicable emergencies, by allowing broader access through teleconferencing options consistent with the Governor’s Executive Order No. N-29-20 dated March 17, 2020, permitting expanded use of teleconferencing during the COVID-19 pandemic.
SEC. 7. The Legislature finds and declares that Sections 3 and 4 of this act, which amend, repeal, and add Section 54953 of the Government Code, further, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:
This act is necessary to ensure minimum standards for public participation and notice requirements allowing for greater public participation in teleconference meetings during applicable emergencies.
SEC. 8. (a) The Legislature finds and declares that during the COVID-19 public health emergency, certain requirements of the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code) were suspended by Executive Order N-29-20. Audio and video teleconference were widely used to conduct public meetings in lieu of physical location meetings, and public meetings conducted by teleconference during the COVID-19 public health emergency have been productive, have increased public participation by all members of the public regardless of their location in the state and ability to travel to physical meeting locations, have protected the health and safety of civil servants and the public, and have reduced travel costs incurred by members of state bodies and reduced work hours spent traveling to and from meetings.
92 Ch. 165 — 18 —
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(b) The Legislature finds and declares that Section 1 of this act, which adds and repeals Section 89305.6 of the Education Code, Section 2 of this act, which adds and repeals Section 11133 of the Government Code, and Sections 3 and 4 of this act, which amend, repeal, and add Section 54953 of the Government Code, all increase and potentially limit the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
(1) By removing the requirement that public meetings be conducted at a primary physical location with a quorum of members present, this act protects the health and safety of civil servants and the public and does not preference the experience of members of the public who might be able to attend a meeting in a physical location over members of the public who cannot travel or attend that meeting in a physical location. (2) By removing the requirement for agendas to be placed at the location of each public official participating in a public meeting remotely, including from the member’s private home or hotel room, this act protects the personal, private information of public officials and their families while preserving the public’s right to access information concerning the conduct of the people’s business.
SEC. 9. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect.
The facts constituting the necessity are:
In order to ensure that state and local agencies can continue holding public meetings while providing essential services like water, power, and fire protection to their constituents during public health, wildfire, or other states of emergencies, it is necessary that this act take effect immediately.
O
92 — 19 — Ch. 165
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
December 13, 2022
Date: December 6, 2022
TO: Mayor & City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jose M. Sanchez, City Attorney
SUBJECT: Resolutions Authorizing Agreements with the California Department of Tax and Fee Administration for Implementation of a Local Transactions and Use Tax and Authorizing the Examination of Transactions (Sales) and Use Tax Records CONTACT: Jose M. Sanchez, City Attorney, 209-577-5284, [email protected] DESCRIPTION:
Consider approving a Resolution authorizing the City Manager to execute Agreements with the California Department of Tax and Fee Administration (“CDTFA”) for implementation of a Local Transactions and Use Tax; and the Resolution authorizing the examination of the Sales, Use, and Transactions Tax Records for the City. (Funding Source: General Fund) STRATEGIC PLAN ELEMENT:
This action supports the City’s Strategic Commitment to provide effective, responsive, and transparent government.
BACKGROUND:
On November 8, 2022, the Modesto voters approved Measure H, a one-cent transactions and use (sales) tax for general City services and on November 29, 2022, by Resolution No. 2022- 453 the Modesto City Council certified the election results. Measure H is expected to provide the City with approximately $39 million annually in additional sales tax revenue into its General Fund.
DISCUSSION:
The California Department of Tax and Fee Administration (CDTFA) is the state agency responsible for overseeing the collection and reporting of all sales taxes throughout the state. In its role as administrator, CDTFA collects sales taxes from retailers throughout the state and remits these revenues to cities, counties, and special districts, as applicable. In order for CDTFA to administer and collect the new tax, it is necessary for the City to complete several administrative steps, including entering into agreements with the CDTFA. Execution of those agreements and other documents will allow CDFTA to administer and collect the new tax for the City.
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City Council, December 13, 2022
Resolutions Authorizing Agreements with the California Department of Tax and Fee Administration for Implementation of a Local Transactions and Use Tax and Authorizing the Examination of Transactions (Sales) and Use Tax Records
FISCAL IMPACT:
Measure H is expected to provide the City with approximately $39 million annually in additional sales tax revenue into its General Fund. The City will not begin to see revenue from the sales tax ballot measure until April 2023. The first year of revenue from the Measure is estimated to be $9.75M.
The preparatory agreement with CDTFA requires the City to pay the costs for CDTFA preparatory work necessary to administer the City’s sales tax. Those include costs of developing procedures, programming for data processing, developing and adopting appropriate regulations, designing and printing forms, developing instructions for the CDTFA’s staff and for taxpayers, and other appropriate and necessary preparatory costs to administer a sales tax ordinance. The preparatory agreement limits those costs to a not-to-exceed $175,000. The administration agreement requires the City to pay the ongoing costs for CDTFA to administer the City’s sales tax. Such amounts are set by law using the calculation method described in the Revenue & Taxation Code section 7273 and will be deducted from the taxes collected by CDTFA for the City.
COMMITTEE RECOMMENDATION:
This item was not presented to a Council Committee.
RECOMMENDED COUNCIL ACTION:
Resolution of the City Council of the City of Modesto authorizing the City Manager or his designee to execute Agreements with the California Department of Tax and Fee Administration for implementation of a Local Transactions and Use Tax.
Resolution of the City Council of the City of Modesto, authorizing the examination of Sales or Transactions and Use Tax Records.
Approved by:
Diane Nayares-Perez, City Clerk
Joseph P. Lopez, City Manager
Attachment:
1. Resolution Authorizing Agreements with CDTFA for Implementation of a Local Transaction and Use Tax
2. Resolution Authorizing the Examination of Transactions (Sales) and Use Tax Records
3. Exhibit A to the Resolution - City Preparatory Agreement
4. Exhibit B to the Resolution - City Administration Agreement 5244650.2
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MODESTO CITY COUNCIL
RESOLUTION NO. 2022-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MODESTO AUTHORIZING
CITY MANAGER OR HIS DESIGNEE TO EXECUTE AGREEMENTS WITH THE
CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION FOR
IMPLEMENTATION OF A LOCAL TRANSACTIONS AND USE TAX
WHEREAS, on June 28, 2022, the City Council approved Ordinance No. 3746- C.S. amending the City Municipal Code and providing for a local transactions and use tax; and WHEREAS, the California Department of Tax and Fee Administration (Department) administers and collects the transactions and use taxes for all applicable jurisdictions within the state; and
WHEREAS, the Department will be responsible to administer and collect the transactions and use tax for the City; and
WHEREAS, the Department requires that the City enter into a “Preparatory Agreement” and an “Administration Agreement” prior to implementation of said taxes, and Whereas, the Department requires that the City Council authorize the agreements; NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Modesto that the “Preparatory Agreement” attached as Exhibit A and the “Administrative Agreement” attached as Exhibit B are hereby approved and the City Manager or his designee are hereby authorized to execute each agreement.
BE IT FURTHER RESOVLED, that the City Manager, or his designee are authorized to execute any and all other agreements or documents necessary to carry out the provisions of this resolution.
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2 * * * * * *
The foregoing resolution was introduced and adopted at a regular meeting of the City Council of the City of Modesto held on December 13, 2022, by the following vote, to wit:
AYES:
NOES:
ABSENT:
DATED:
ATTEST: (s) (s)
Diane Nayares-Perez, City Clerk Sue Zwahlen, Mayor
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MODESTO CITY COUNCIL
RESOLUTION NO. 2022-XX
RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF MODESTO, AUTHORIZING THE
EXAMINATION OF SALES OR TRANSACTIONS AND
USE TAX RECORDS
WHEREAS, pursuant to Resolution Number No. 2022- of the City of Modesto (City), and Revenue and Taxation Code section 7270, the District entered into a contract with the California Department of Tax and Fee Administration (Department) to perform all functions incident to the administration and collection of transactions and use taxes; and
WHEREAS, the Board of the District deems it desirable and necessary for authorized officers, employees and representatives of the District to examine confidential sales or transactions and use tax records of the Department pertaining to transactions and use taxes collected by the Department for the District pursuant to that contract; and
WHEREAS, Section 7056 of the California Revenue and Taxation Code sets forth certain requirements and conditions for the disclosure of Department records, and Section 7056.5 of the California Revenue and Taxation Code establishes criminal penalties for the unlawful disclosure of information contained in, or derived from, the sales or transactions and use tax records of the Department;
NOW, THEREFORE, THE CITY COUNCIL OF CITY OF MODESTO HEREBY RESOLVES AS FOLLOWS:
Section 1. That the Director of Finance, Revenue Collection and Compliance Manager, Accounting Manager and Senior Financial Analyst or other officer or employee of the City designated in writing by the City Manager to the California Department of Tax and Fee Administration is hereby appointed to represent the District with authority to examine sales or transactions and use tax records of the Department pertaining to transactions and use taxes collected for the District by the Department pursuant to the contract between the District and the Department.
Section 2. The information obtained by examination of Department records shall be used only for purposes related to the collection of District transactions and use taxes by the Department pursuant to that contract.
Section 3. That MuniServices LLC is hereby designated to examine the sales or transactions and use tax records of the Department pertaining to transactions and use taxes collected for the District by the Department. The person or entity designated by this section meets all of the following conditions, which are also included in the contract between the District and the MuniServices LLC:
a) has an existing contract with the District to examine those sales or transactions and use tax records; #6..
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b) is required by that contract to disclose information contained in, or derived from, those sales or transactions and use tax records only to the officer or employee authorized under Section 1 of this resolution to examine the information.
c) is prohibited by that contract from performing consulting services for a retailer during the term of that contract;
d) is prohibited by that contract from retaining the information contained in, or derived from those sales or transactions and use tax records, after that contract has expired.
BE IT FURTHER RESOLVED that the information obtained by examination of Department records shall be used only for purposes related to the collection of District transactions and use taxes by the Department pursuant to the contract between the District and the Department.
Section 4. That MuniServices LLC is hereby designated to examine the sales or transactions and use tax records of the Department pertaining to any petition or appeal for the reallocation/redistribtuion of sales or transactions and use taxes that was filed by MuniServices LLC on behalf of the District pursuant to the contract between the MuniServices LLC and District. The person or entity designated by this section meets all of the following conditions, which are also included in the contract between the District and the MuniServices LLC:
a) has an existing contract with the District to examine those sales or transactions and use tax records; b) is required by that contract to disclose information contained in, or derived from, those sales or transactions and use tax records only to the officer or employee authorized under Section 1 of this resolution to examine the information.
c) is prohibited by that contract from performing consulting services for a retailer during the term of that contract;
d) is prohibited by that contract from retaining the information contained in, or derived from those sales or transactions and use tax records, after that contract has expired.
Section 5.
That this resolution supercedes all prior resolutions of the Board of the District adopted pursuant to subdivision (b) of Revenue and Taxation Code section 7056.
Introduced, approved and adopted this 13th day of December 2022.
ATTEST: (s) ___________________________
Sue Zwahlen, Mayor
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I, Diane Nayares-Perez, City Clerk of the City of Modesto, California, DO HEREBY CERTIFY that the foregoing resolution was duly introduced, approved and adopted by the City Council of the City of Modesto, at a regular meeting of said Council held on the 13th day of December, 2022, by the following roll-call vote:
Ayes: (Names of Board Members)
Noes: (Names of Board Members)
Absent: (Names of Board Members)
(s)________________________________
Diane Nayares-Perez, City Clerk
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1 AGREEMENT FOR PREPARATION TO ADMINISTER AND OPERATE
CITY'S TRANSACTIONS AND USE TAX ORDINANCE
In order to prepare to administer a transactions and use tax ordinance adopted in accordance with the provision of Part 1.6 (commencing with Section 7251) of Division 2 of the Revenue and Taxation Code, the City of Modesto, hereinafter called City, and the CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION, hereinafter called Department, do agree as follows:
1. The Department agrees to enter into work to prepare to administer and operate a transactions and use tax in conformity with Part 1.6 of Division 2 of the Revenue and Taxation Code which has been approved by a majority of the electors of the City and whose ordinance has been adopted by the City.
2. City agrees to pay to the Department at the times and in the amounts hereinafter specified all of the Department's costs for preparatory work necessary to administer the City's transactions and use tax ordinance. The Department's costs for preparatory work include costs of developing procedures, programming for data processing, developing and adopting appropriate regulations, designing and printing forms, developing instructions for the Department's staff and for taxpayers, and other appropriate and necessary preparatory costs to administer a transactions and use tax ordinance.
These costs shall include both direct and indirect costs as specified in Section 11256 of the Government Code.
3. Preparatory costs may be accounted for in a manner which conforms to the internal accounting and personnel records currently maintained by the Department. The billings for costs may be presented in summary form. Detailed records of preparatory costs will be retained for audit and verification by the City.
4. Any dispute as to the amount of preparatory costs incurred by the Department shall be referred to the State Director of Finance for resolution, and the Director's decision shall be final.
5. Preparatory costs incurred by the Department shall be billed by the Department periodically, with the final billing within a reasonable time after the operative date of the ordinance. City shall pay to the Department the amount of such costs on or before the last day of the next succeeding month following the month when the billing is received.
6. The amount to be paid by City for the Department's preparatory costs shall not exceed one hundred seventy-five thousand dollars ($175,000) (Revenue and Taxation Code Section 7272.) #6..
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2 7. Communications and notices may be sent by first class United States mail.
Communications and notices to be sent to the Department shall be addressed to:
California Department of Tax and Fee Administration
P.O. Box 942879 MIC: 27
Sacramento, California 94279-0027
Attention: Administrator
Local Revenue Branch
Communications and notices to be sent to City shall be addressed to:
City of Modesto
Finance Department
PO Box 642
Modesto, CA 95353
Attn: Director of Finance
8. The date of this agreement is the date on which it is approved by the Department of General Services. This agreement shall continue in effect until the preparatory work necessary to administer City's transactions and use tax ordinance has been completed and the Department has received all payments due from City under the terms of this agreement.
CITY OF MODESTO CALIFORNIA DEPARTMENT OF TAX
AND FEE ADMINISTRATION
By By
(Signature) Administrator
Local Revenue Branch
Joseph P. Lopez
City Manager
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AGREEMENT FOR STATE ADMINISTRATION
OF CITY TRANSACTIONS AND USE TAXES
The City Council of the City of Modesto has adopted, and the voters of the City of Modesto (hereafter called “City” or “District”) have approved by the required majority vote, the City of Modesto Transactions and Use Tax Ordinance (hereafter called “Ordinance”), a copy of which is attached hereto. To carry out the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code and the Ordinance, the California State Department of Tax and Fee Administration, (hereinafter called the “Department”) and the City do agree as follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, wherever the following terms appear in the Agreement, they shall be interpreted to mean the following:
1. "District taxes" shall mean the transactions and use taxes, penalties, and interest imposed under an ordinance specifically authorized by Revenue and Taxation code Section 7285.9, and in compliance with Part 1.6, Division 2 of the Revenue and Taxation Code.
2. "City Ordinance" shall mean the City's Transactions and Use Tax Ordinance referred to above and attached hereto, Ordinance No. 3746-C.S., as amended from time to time, or as deemed to be amended from time to time pursuant to Revenue and Taxation Code Section 7262.2.
ARTICLE II
ADMINISTRATION AND COLLECTION
OF CITY TAXES
A. Administration. The Department and City agree that the Department shall perform exclusively all functions incident to the administration and operation of the City Ordinance. #6..
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2 B. Other Applicable Laws. City agrees that all provisions of law applicable to the administration and operation of the Department Sales and Use Tax Law which are not inconsistent with Part 1.6 of Division 2 of the Revenue and Taxation Code shall be applicable to the administration and operation of the City Ordinance. City agrees that money collected pursuant to the City Ordinance may be deposited into the State Treasury to the credit of the Retail Sales Tax Fund and may be drawn from that Fund for any authorized purpose, including making refunds, compensating and reimbursing the Department pursuant to Article IV of this Agreement, and transmitting to City the amount to which City is entitled.
C. Transmittal of money.
1. For the period during which the tax is in effect, and except as otherwise provided herein, all district taxes collected under the provisions of the City Ordinance shall be transmitted to City periodically as promptly as feasible, but not less often than twice in each calendar quarter.
2. For periods subsequent to the expiration date of the tax whether by City’s self-imposed limits or by final judgment of any court of the State of California holding that City’s ordinance is invalid or void, all district taxes collected under the provisions of the City Ordinance shall be transmitted to City not less than once in each calendar quarter.
3. Transmittals may be made by mail or electronic funds transfer to an account of the City designated and authorized by the City. A statement shall be furnished at least quarterly indicating the amounts withheld pursuant to Article IV of this Agreement.
D. Rules. The Department shall prescribe and adopt such rules and regulations as in its judgment are necessary or desirable for the administration and operation of the City Ordinance and the distribution of the district taxes collected thereunder.
E. Preference. Unless the payor instructs otherwise, and except as otherwise provided in this Agreement, the Department shall give no preference in applying money received for state sales and use taxes, state-administered local sales and use taxes, and district transactions and use taxes owed by a taxpayer, but shall apply moneys collected to the satisfaction of the claims of the State, cities, counties, cities and counties, redevelopment agencies, other districts, and City as their interests appear. #6..
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3 F. Security. The Department agrees that any security which it hereafter requires to be furnished by taxpayers under the State Sales and Use Tax Law will be upon such terms that it also will be available for the payment of the claims of City for district taxes owing to it as its interest appears.
The Department shall not be required to change the terms of any security now held by it, and City shall not participate in any security now held by the Department.
G. Records of the Department.
When requested by resolution of the legislative body of the City under section 7056 of the Revenue and Taxation Code, the Department agrees to permit authorized personnel of the City to examine the records of the Department, including the name, address, and account number of each seller holding a seller’s permit with a registered business location in the City, pertaining to the ascertainment of transactions and use taxes collected for the City. Information obtained by the City from examination of the Department's records shall be used by the City only for purposes related to the collection of transactions and use taxes by the Department pursuant to this Agreement.
H. Annexation. City agrees that the Department shall not be required to give effect to an annexation, for the purpose of collecting, allocating, and distributing District transactions and use taxes, earlier than the first day of the calendar quarter which commences not less than two months after notice to the Department. The notice shall include the name of the county or counties annexed to the extended City boundary. In the event the City shall annex an area, the boundaries of which are not coterminous with a county or counties, the notice shall include a description of the area annexed and two maps of the City showing the area annexed and the location address of the property nearest to the extended City boundary on each side of every street or road crossing the boundary.
ARTICLE III
ALLOCATION OF TAX
A. Allocation. In the administration of the Department's contracts with all districts that impose transactions and use taxes imposed under ordinances, which comply with Part 1.6 of Division 2 of the Revenue and Taxation Code:
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4 1. Any payment not identified as being in payment of liability owing to a designated district or districts may be apportioned among the districts as their interest appear, or, in the discretion of the Department, to all districts with which the Department has contracted using ratios reflected by the distribution of district taxes collected from all taxpayers.
2. All district taxes collected as a result of determinations or billings made by the Department, and all amounts refunded or credited may be distributed or charged to the respective districts in the same ratio as the taxpayer's self-declared district taxes for the period for which the determination, billing, refund or credit applies.
B. Vehicles, Vessels, and Aircraft. For the purpose of allocating use tax with respect to vehicles, vessels, or aircraft, the address of the registered owner appearing on the application for registration or on the certificate of ownership may be used by the Department in determining the place of use.
ARTICLE IV
COMPENSATION
The City agrees to pay to the Department as the State's cost of administering the City Ordinance such amount as is provided for by law. Such amounts shall be deducted from the taxes collected by the Department for the City.
ARTICLE V
MISCELLANEOUS PROVISIONS
A. Communications. Communications and notices may be sent by first class United States mail to the addresses listed below, or to such other addresses as the parties may from time to time designate. A notification is complete when deposited in the mail. #6..
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5 Communications and notices to be sent to the Department shall be addressed to:
California State Department of Tax and Fee Administration P.O. Box 942879
Sacramento, California 94279-0027
Attention: Administrator
Local Revenue Branch
Communications and notices to be sent to the City shall be addressed to:
City of Modesto
Finance Department
PO Box 642
Modesto, CA 95353
Attn: Director of Finance
Unless otherwise directed, transmittals of payment of District transactions and use taxes will be sent to the address above.
B. Term. The date of this Agreement is the date on which it is approved by the Department of General Services. The Agreement shall take effect on ______________. This Agreement shall continue until December 31 next following the expiration date of the City Ordinance, and shall thereafter be renewed automatically from year to year until the Department completes all work necessary to the administration of the City Ordinance and has received and disbursed all payments due under that Ordinance.
C. Notice of Repeal of Ordinance. City shall give the Department written notice of the repeal of the City Ordinance not less than 110 days prior to the operative date of the repeal. #6..
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6 ARTICLE VI
ADMINISTRATION OF TAXES IF THE
ORDINANCE IS CHALLENGED AS BEING INVALID
A. Impoundment of funds.
1. When a legal action is begun challenging the validity of the imposition of the tax, the City shall deposit in an interest-bearing escrow account, any proceeds transmitted to it under Article II. C., until a court of competent jurisdiction renders a final and non-appealable judgment that the tax is valid.
2. If the tax is determined to be unconstitutional or otherwise invalid, the City shall transmit to the Department the moneys retained in escrow, including any accumulated interest, within ten days of the judgment of the trial court in the litigation awarding costs and fees becoming final and non-appealable.
B. Costs of administration. Should a final judgment be entered in any court of the State of California, holding that City's Ordinance is invalid or void, and requiring a rebate or refund to taxpayers of any taxes collected under the terms of this Agreement, the parties mutually agree that:
1. Department may retain all payments made by City to Department to prepare to administer the City Ordinance.
2. City will pay to Department and allow Department to retain Department's cost of administering the City Ordinance in the amounts set forth in Article IV of this Agreement.
3. City will pay to Department or to the State of California the amount of any taxes plus interest and penalties, if any, that Department or the State of California may be required to rebate or refund to taxpayers.
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7 4. City will pay to Department its costs for rebating or refunding such taxes, interest, or penalties. Department's costs shall include its additional cost for developing procedures for processing the rebates or refunds, its costs of actually making these refunds, designing and printing forms, and developing instructions for Department's staff for use in making these rebates or refunds and any other costs incurred by Department which are reasonably appropriate or necessary to make those rebates or refunds. These costs shall include Department's direct and indirect costs as specified by Section 11256 of the Government Code.
5. Costs may be accounted for in a manner, which conforms to the internal accounting, and personnel records currently maintained by the Department. The billings for such costs may be presented in summary form. Detailed records will be retained for audit and verification by City.
6. Any dispute as to the amount of costs incurred by Department in refunding taxes shall be referred to the State Director of Finance for resolution and the Director's decision shall be final.
7. Costs incurred by Department in connection with such refunds shall be billed by Department on or before the 25th day of the second month following the month in which the judgment of a court of the State of California holding City's Ordinance invalid or void becomes final. Thereafter Department shall bill City on or before the 25th of each month for all costs incurred by Department for the preceding calendar month. City shall pay to Department the amount of such costs on or before the last day of the succeeding month and shall pay to Department the total amount of taxes, interest, and penalties refunded or paid to taxpayers, together with Department costs incurred in making those refunds.
CITY OF MODESTO CALIFORNIA STATE DEPARTMENT OF
TAX AND FEE ADMINISTRATION
By By
(Signature) Administrator
Local Revenue Branch
Joseph P. Lopez
City Manager
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
December 13, 2022
Date: November 22, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jose M. Sanchez, City Attorney
Jaylen French, Director of Community & Economic Development Department SUBJECT: Third Amendment to Nossaman LLP Legal Services Agreement CONTACT: Jose M. Sanchez, City Attorney, 209-577-5284, [email protected] DESCRIPTION:
Consider approving a Third Amendment to the Legal Services Agreement with Nossaman LLP to adjust rates and extend the term of the Agreement for one remaining year. (Funding Source:
Streets Capital Facility Fees, Regional Measure L)
STRATEGIC PLAN ELEMENT:
This item supports the City’s 2020-2025 Strategic Plan Goals to build a high-performance organization and improve community safety.
BACKGROUND:
On September 4, 2018, by Resolution No. 218- 381, Council approved a Legal Services Agreement with Nossaman LLP of Los Angeles, California for Eminent Domain Legal Services for State Route 132 West Freeway/Expressway Phase 1 Project in an amount not to exceed $2,000,000.
State Route (SR) 132 is an east-west highway that extends from I-580 in the Central Valley, south of the City of Tracy, to SR 49 in the foothills of the Sierra Mountains, terminating in the town of Coulterville. SR 132 is a vital link through the Central Valley, serving local traffic from these communities and providing for regional traffic between the Bay Area and the mountains for the movement of traffic and goods and services and provides access to the recreational areas east of Modesto via SR 49.
The purpose of the Project is to improve regional and interregional circulation, relieve traffic congestion along existing SR 132, and enhance safety and operations for the existing and proposed transportation network.
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City Council, December 13, 2022
Third Amendment to Nossaman LLP Legal Services Agreement