Newport Beach City Council
May 24, 2022

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Procedure for the determination, declaration, notification, and implementation of a water supply shortage (14.16.050)
Changes in State Water Code require the City of Newport Beach (City) to submit an annual Water Supply and Demand Assessment, beginning this year. This document is drafted and certified by the Utilities Director , with input received from our groundwater and wholesale water districts. It certifies our current known position regarding our water supply, and if necessary, our shortage response actions, compli ance, enforcement, and communications actions. The existing Municipal Code provisions for declaring a water supply shortage is a multi -step, lengthy and antiquated process. Based on a review of best practices found in other local agencies, an updated, one -stop City Council process is recommended by staff. For each shortage, Utilities staff and the City Manager will prepare a resolution outlining the communications and actions associated with each shortage level. The City Council will have the discretion to modify actions including implementation dates. This gives the City the ability to move quickly into and out of shortage levels when needed.

Proposed language for Section 14.16.050 E
“Upon the Director’s determination of the existence of a water supply shortage based on the criteria and stages defined in the City’s Water Shortage Contingency Plan, the City Council may declare a Level One to Level Six Water Supply Shortage. The City Council may also declare a Level Six Catastrophic Water Supply Shortage in accordance with California Water Code Sections 350 -352 when a sudden event poses a catastrophic threat to the water supply. The declaration of a water supply shortage shall be by resolution and the mandatory water conservation measures applicable to the declared water supply shortage level shall take effect on the date specified in the resolution.” Update on the current drought situation:

Governor Newsom recently signed Executive Order N -7-22, addressing the current drought and directing the State Water Board to adopt and implement new drought regulations. Recent discussions indicate that a one -size-fits-all, state wide drought approach may not be mandated and agencies will rely on thei r annual Water Supply Assessment and their Water Shortage Contingency P lans. This is good news since the City has made a significant investment in its sustainable groundwater system, its replenishment efforts, and its water conservation efforts. Overall, the City uses 25 percent less water today than it did 20 years ago. Staff is currently working with the groundwater and wholesale water districts to draft the City’s annual Water Supply and Demand Assessment. The draft submittal is due to the CA Department of Water Resources by June 1 and the final is due July 1.

Ordinance No. 2022-13: Amendment to Municipal Code Chapter 14.16, Water Conservation and Water Supply Shortage Program
May 24, 2022

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At this time, staff is likely to certify that the City has enough water to meet demands for next year; although no surplus exists, and its supply is threatened. Staff is expecting to bring a resolution declaring a Level One shortage, specifically declaring that no surplus water exists. The Level One will focus on additional water conservation and outreach efforts and enforcement to further r educe wasted water. Also, with the lack of surplus, customers will be required to use no more than their 2019 water usage. These efforts will further reduce the City’s overall water use, keep it compliant with State requirements, and position the City well if the drought continues or escalates further. Further details on the implementation of these measures will be brought with the resolution declaring a Level One shortage.

FISCAL IMPACT:

There is no additional fiscal impact related to the amend ment of the Newport Beach Municipal Code. The adopted budget includes sufficient funding for the promotion of water conservation and the enforcement of permanent water restrictions. If future water supply shortages are enacted, staff will bring back analysis regarding any fiscal impact.

ENVIRONMENTAL REVIEW:

Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in a physical change to the environment, directly or indirectly.

NOTICING:

The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item ). Also, a notice of this hearing was published in the Daily Pilot, twice, at least 10 days before the scheduled meeting.

ATTACHMENTS:

Attachment A – Ordinance No. 2022-13
Attachment B – Track Changes Version of Newport Beach Municipal Code Chapter 14.16 Attachment C – Public Hearing Notice

ATTACHMENT A
13 10-5ORDINANCE NO. 2022-_

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

NEWPORT BEACH, CALIFORNIA, AMENDING CHAPTER

14.16 OF THE NEWPORT BEACH MUNICIPAL CODE

PERTAINING TO WATER CONSERVATION AND SUPPLY

LEVEL REGULATIONS
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California;
WHEREAS, Chapter 14.16 of the Newport Beach Municipal Code establishes a water conservation and water supply shortage program to reduce water consumption within the City;
WHEREAS, in 2018, the California Legislature imposed additional water shortage planning requirements upon water suppliers and amended California Water Code section 10632 to mandate new elements to water suppliers' Urban Water Management Plans and Water Shortage Contingency Plans, including statewide water use prohibitions; WHEREAS, the City's adopted 2020 Urban Water Management Plan ("UWMP") includes water conservation as a necessary and effective component of providing a reliable supply of water to meet the needs of its water customers; WHEREAS, the City's adopted 2020 Water Shortage Contingency Plan ("WSCP") establishes standards and procedures regarding the implementation and enforcement of local water shortage contingency measures;
WHEREAS, the WSCP defines six water supply shortage levels corresponding to progressive ranges of up to 10, 20, 30, 40 and 50 percent shortages and a greater than 50 percent shortage, in alignment with the State Water Shortage Levels, where each level is intended to be more restrictive than the previous or lower level and imposes water conservation measures that are inclusive of those measures in the previous or lower level(s); and
WHEREAS, the City desires to update Chapter 14.16 to make it consistent with the new requirements of California Water Code section 10632 and its UWMP and WSCP. 10-6
Ordinance No. 2022-

NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows:

Section 1: Chapter 14.16 of the Newport Beach Municipal Code is hereby amended to read as follows:

Chapter 14.16

WATER CONSERVATION AND WATER SUPPLY SHORTAGE PROGRAM
Sections:

14.16.010 Findings and Purpose.

14.16.020 Definitions.

14.16.030 Applicability.

14.16.040 Permanent Mandatory Water Conservation Requirements.

14.16.050 Procedure for Declaration and Notification of Water Supply Shortage.

14.16.060 Level One Water Supply Shortage.

14.16.070 Level Two Water Supply Shortage.

14.16.080 Level Three Water Supply Shortage.

14.16.090 Level Four Water Supply Shortage.

14.16.100 Level Five Severe Water Supply Shortage.

14.16.110 Level Six Catastrophic Water Supply Shortage.

14.16.120 Exemptions.

14.16.130 Relief from Compliance.

14.16.140 Enforcement.

14.16.150 State of Emergency.

Section 14.16.010 Findings and Purpose.

A. The purpose of this chapter is to establish a water conservation and water supply shortage program that, to the greatest extent possible, will reduce water consumption within the City of Newport Beach, enable effective water supply planning, ensure reasonable and beneficial use of water, prevent waste of water, complement the City's water quality regulations and urban runoff reduction efforts, maximize the efficient use of water, minimize the effect and hardship of water shortages, and implement the City's Water Shortage Contingency Plan.

B. The water conservation and water supply shortage program created by this chapter establishes permanent water conservation requirements intended to alter 10-7
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behavior related to water use efficiency for nonshortage conditions and further establishes six levels of water supply shortage response actions to be implemented during times of a declared water shortage with increasing restrictions on water use in response to worsening drought or emergency conditions and decreasing supplies.

C. The City Council finds as follows:

1. A reliable minimum supply of water is essential to the public health, safety and welfare of the people and economy of the City and the Southern California region.

2. Wasteful water use practices constitute a potential threat to and an unacceptable diminution of the City's water supplies. The prevention of water waste is an economically and environmentally feasible way to protect, conserve, and prevent unacceptable diminution of the City's water supplies.

3. Careful water management that includes active water conservation measures, not only in times of drought but at all times, is essential to ensure a reliable minimum supply of water to meet current and future supply needs.

4. Article X, Section 2, of the California Constitution declares that the general welfare requires that water resources be put to beneficial use, that waste or unreasonable use or unreasonable method of use of water is to be prevented and that conservation of water be fully exercised with a view to the reasonable and beneficial use thereof.

5. Article XI, Section 7, of the California Constitution declares that a city or county may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws.

6. California Water Code Section 375 authorizes a water supplier to adopt and enforce a comprehensive water conservation program to reduce water consumption and conserve supplies.

7. The adoption and enforcement of the water conservation and water supply shortage program is necessary to manage the City's water supply in the short and long term and to avoid or minimize the effects of a supply shortage within the City's service area. Such a program is essential to ensure a reliable and sustainable minimum supply of water for public health, safety and welfare.

8. Recycled water is supplied in various areas throughout the City to conserve potable water. Recycled water, like potable water, must be used efficiently and is therefore included in this program.
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9. Outdoor water use is a primary source of urban runoff, which flows onto the streets, through storm drains, to the creeks, the harbor and beaches. It is therefore in the public interest to promote practices that increase water use efficiency, reduce or eliminate runoff, and further support the regulations as set forth in Chapter 14.36 (Water Quality) and related best management practices.

10. Contamination, drought, or failure of the water system infrastructure may lead to a potable water shortage emergency in the City's water supplies.

11. Normal water supply conditions, known as Level Zero, exist during periods when the City anticipates no supply reductions. The City will proceed with planned water efficiency best practices to support consumer demand reduction in line with state mandated requirements and local goals for water supply reliability. The permanent mandatory water conservation requirements in Section 14.16.040 shall be in effect to prevent waste and unreasonable use of water at all times.

Section 14.16.020 Definitions.

In this chapter, the following words and phrases shall have the following meanings:
"Base amount" means a base amount of water usage per billing period to be determined for each customer. For any particular billing period, the base amount shall be as indicated on the customer's municipal services statement for the prior billing period. For customers occupying premises for which the City's water billing history includes the year specified in the resolution declaring a water shortage, the base amount shall be the amount of water used during the same billing period in the year specified in the resolution. For customers occupying premises for which the City's water billing history does not include the same billing period in the year specified in the resolution declaring a water shortage, the base amount shall be the estimate of the water usage per billing period of similar premises and users.
"Billing unit" means the unit of water used to apply water rates for purposes of calculating water charges for a person's water usage and equals seven hundred forty-eight (7 48) gallons.
"Commercial kitchen" means a facility containing a kitchen in which food is prepared for sale, such as a restaurant, cafe, hotel, catering establishment, or other food preparation establishment.
"Customer" shall mean any person or premises using or receiving water service from the City. The term "customer" shall not include a person or premises receiving water service within the City from the Irvine Ranch Water District or from the Mesa Water District. 10-9
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"Department" shall mean the City of Newport Beach Utilities Department. "Director" shall mean the Director of the City of Newport Beach's Utilities Department or his or her designee.
"Irrigate" means the watering of any lawn, landscape, or other vegetated area. "Landscape irrigation system" means an irrigation system with pipes, hoses, spray heads, or sprinkling devices that are operated by and/or through an automated system. "MET" shall mean the Metropolitan Water District of Southern California. "Premises" means a parcel of land, or portion of a parcel, including any improvements located thereon, that are served by a City water meter. "Recycled water" means the reclamation and reuse of non-potable water and/or wastewater for beneficial use, such as irrigation.
"Water" shall mean potable water and recycled water.
"Water conservation plan" means a plan submitted by a customer for the approval of the Director, in conjunction with a request for an exemption or partial exemption that proposes the maximum feasible reduction in consumption.
"Water consumption restrictions" shall mean those provisions in this chapter that require customers to reduce the amount of water consumed during a water supply shortage in relation to the base amount.

Section 14.16.030 Applicability.

A. The provisions of this chapter shall apply to all persons, customers, and premises using water in the City, as set forth herein.

B. For the purposes of this chapter, the use of water by a tenant, employee, agent, contractor, representative or person acting on behalf of a customer shall be imputed to the customer.

Section 14.16.040 Permanent Mandatory Water Conservation Requirements.

The following prohibitions and mandatory water conservation requirements are effective at all times, including during a water supply shortage. Violations of this section will be considered waste and an unreasonable use of water.
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A. Limit on Watering Duration. No customer shall use potable water to irrigate any lawn and/or ornamental landscape area using a landscape irrigation system or a watering device that is not continuously attended unless such irrigation is limited to no more than ten (10) minutes watering per station. This restriction does not apply to the following:

1. Landscape irrigation systems that exclusively use very low-flow drip type or bubbler type irrigation systems in which no emitter produces more than two gallons of water per hour.

2. Weather based controllers or stream rotor sprinklers that meet a seventy (70) percent efficiency standard.

B. Limits on Watering Hours. No customer shall use potable water to irrigate any lawn, landscape or other vegetated area between the hours of 9:00 a.m. and 5:00 p.m.

Pacific Time on any day, except by use of hand-held bucket or similar container, or a hand-held hose equipped with a positive self-closing water shut-off nozzle or device, or for short periods for the exclusive purpose of adjusting or repairing an irrigation system.

C. No Excessive Runoff. No person shall use water to irrigate any lawn and/or ornamental landscape area in a manner that causes or allows more than incidental flow or runoff onto an adjoining sidewalk, driveway, street, alley, gutter or ditch. "Incidental flow or runoff' means a minimal amount of water that escapes the area of intended use, such as windblown overspray onto adjacent hard surfaces.

D. No Washing Down. No person shall use water to wash down hard or paved surfaces, including, but not limited to, sidewalks, walkways, driveways, parking areas, tennis courts, patios or alleys, except when necessary to alleviate safety or sanitary hazards, and then only by use of a hand-held bucket or similar container, a hand-held hose equipped with a positive self-closing water shut-off device, or a low-volume, high- pressure cleaning machine (e.g., "water broom") equipped to recycle any water used and efforts are made to vacuum the runoff or direct the runoff away from paved surfaces.

E. Obligation to Fix. No person shall permit loss or escape of water through breaks, leaks or other malfunctions in the person's plumbing or distribution system for any period of time after such escape of water should have reasonably been discovered and corrected and in no event more than three (3) days after receiving notice of the condition from the City unless other arrangements are made with the City.

F. Watering During and After Rainfall. No customer shall use potable water to irrigate lawns, groundcover, shrubbery or other ornamental landscape material during and within forty-eight (48) hours after a measurable rainfall event of at least one-fourth of one inch of rain as recorded by the National Weather Service, the closest California Irrigation 10-11
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Management Information System station, or any other reliable source of rainfall data available to the City.

G. Landscaping Connected to Dedicated Landscape Meters. All landscape irrigation systems connected to dedicated landscape meters shall include rain sensors that automatically shut off such systems during periods of rain or include evapotranspiration systems that schedule irrigation based on climatic conditions.

H. Water Fountain Recirculating Water. No customer shall operate a water fountain or other decorative water feature that does not use a recirculating water system.

I. Washing Vehicles and Equipment. No customer shall use water to clean a vehicle, including but not limited to any automobile, truck, van, bus, motorcycle, boat or trailer, whether motorized or not, except by use of a hand-held bucket or similar container or a hand-held hose equipped with a positive self-closing water shut-off nozzle or device.

1. This subsection does not apply to any commercial car washing facility.

J. Commercial Car Washes. All commercial conveyor car wash systems in commercial car washing facilities shall use operational recirculating water systems.

K. Drinking Water Served Upon Request Only. Customers operating eating or drinking establishments, including but not limited to restaurants, hotels, cafes, cafeterias, bars, or other public places where food or drinks are sold, served, or offered for sale, shall not provide drinking water to any person unless expressly requested by the person.

L. Commercial Lodging Linens. Customers operating hotel, motel, and other commercial lodging establishments shall provide persons the option of not having towels and linen laundered daily. Commercial lodging establishments must prominently display notice of this option.

M. No Single Pass Cooling Systems. No customer shall install a new single pass cooling system in a building or premises.

N. Use of Hydrants. No person shall use water from any fire hydrant for any purpose other than fire suppression or emergency aid without first obtaining a City hydrant meter account or written approval from the Director or his or her designee. Absent a meter account or Director approval, water theft and meter tampering fees shall be applied as appropriate.

0. Newly Constructed Homes and Buildings. No person shall water with potable water the landscapes outside of newly constructed homes and buildings in a manner 10-12
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inconsistent with regulations or other requirements established by the California Building Standards Commission.

P. Construction Site Requirements. The requirements of this subsection apply to persons engaged in construction activities. A permittee's refusal or failure to comply with these requirements shall constitute grounds for revocation of a construction or grading permit. In addition, the City may withhold occupancy and inspections until such time as the permit holder has complied.

1. No person shall use potable water for soil compaction or dust control in a construction site where there is an available and feasible source of recycled water or non-potable water approved by the Department of Public Health and appropriate for such use.

2. No person shall operate a hose within a construction site that is not equipped with an automatic shut-off nozzle, provided that such devices are available for the size and type of hose in use.

Q. Commercial Kitchen Requirements. No customer may operate a commercial kitchen that does not comply with the following requirements:

1. Water-Conserving Pre-Rinse Kitchen Spray Valves. Commercial kitchens shall be equipped with water-conserving kitchen spray valves.

2. Best-Available Water-Conserving Technology. Commercial kitchens shall ensure that all water-using equipment uses the best-available water-conserving technology.

3. When hosing or washing kitchen or garbage areas or other areas for sanitary reasons as required by the Department of Health, hoses shall be equipped with positive self-closing nozzles.

R. Indiscriminate Use. No person shall cause or permit the indiscriminate running of water not otherwise prohibited by this section which is wasteful and without reasonable purpose.

S. Public Health and Safety. The provisions in this section shall not be construed to limit water use that is immediately necessary to protect public health or safety. 10-13
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Section 14.16.050 Procedure for Declaration and Notification of Water Supply Shortage.

A. Upon the Director's determination of the existence of a water supply shortage based on the criteria and stages defined in the City's Water Shortage Contingency Plan, the City Council may declare a Water Supply Shortage from Level One up to Level Six.

In accordance with California Water Code Sections 350-352, the City Council may also declare a Level Six Catastrophic Water Supply Shortage in response to a disaster or sudden event that has or threatens to significantly diminish the reliability or quality of the City's water supply. The mandatory water conservation measures applicable to the level of water supply shortage shall take effect on the date specified in the resolution declaring the water supply shortage.

B. The mandatory conservation requirements that become effective following the adoption of a resolution declaring the existence of a particular level of water supply shortage shall remain in full force and effect until the resolution is repealed or until new mandatory conservation requirements become effective following the adoption of a subsequent resolution declaring the existence of a water supply shortage.

C. The City Manager shall notify and inform the public, local, regional, and state governments, and other stakeholders of the declaration of water supply shortage, the mandatory conservation requirements, and other water shortage response actions, according to the communication procedures in the City's Water Shortage Contingency Plan.

D. During the existence of a water supply shortage, the Director shall provide periodic reports to the City Council regarding compliance with the mandatory conservation requirements of the level of water supply shortage, current and anticipated allocations of water from MET, and any change in circumstances that could warrant a position of more stringent measures or relaxation of measures then in effect.

Section 14.16.060 Level One Water Supply Shortage.

A Level One Water Supply Shortage exists when the City determines a water supply shortage exists or there is no surplus water supply and an overall water use reduction of up to ten (10) percent is necessary to make more efficient use of water and appropriately respond to existing water conditions.
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A. No customer shall use potable water to irrigate any lawn, landscape or other vegetated area except on the scheduled irrigation days established for each customer by the Director. The Director shall specify for each customer four irrigation days per week during the months of April through October and two irrigation days per week during the months of November through March. This restriction does not apply to the following:

1. Maintenance of vegetation including trees and shrubs that is watered using a hand-held bucket or similar container, a hand-held hose equipped with a positive self-closing water shut-off nozzle or device, or a very low-flow drip type irrigation system when no emitter produces more than two gallons of water per hour.

2. Irrigation of food crops (including fruit trees and vegetable gardens).

3. Short periods of irrigation for the exclusive purpose of adjusting or repairing an irrigation system.

B. No customer shall use more water during any billing period than the percentage of the base amount per customer category established in the resolution declaring the Level One Water Supply Shortage, which percentage shall be in the range from one hundred (100) percent to eighty (80) percent of the base amount.

Section 14.16.070 Level Two Water Supply Shortage.

A Level Two Water Supply Shortage exists when the City determines a water supply shortage exists and an overall water use reduction of between ten (10) percent and twenty (20) percent is necessary to make more efficient use of water and appropriately respond to existing water conditions.

A. No customer shall use potable water to irrigate any lawn, landscape or other vegetated area except on the scheduled irrigation days established by the Director. The Director shall specify for each customer three irrigation days per week during the months of April through October and one irrigation day per week during the months of November through March. This restriction does not apply to the following:

1. Maintenance of vegetation, including trees and shrubs, that is watered using a hand-held bucket or similar container, a hand-held hose equipped with a positive self-closing water shut-off nozzle or device, or a very low-flow drip type irrigation system when no emitter produces more than two gallons of water per hour.

2. Irrigation of food crops (including fruit trees and vegetable gardens). 10-15
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3. Short periods of irrigation for the exclusive purpose of adjusting or repairing an irrigation system.

B. No customer shall use more water during any billing period than the percentage of the base amount per customer category established in the resolution declaring the Level Two Water Supply Shortage, which percentage shall be in the range from one hundred (100) percent to seventy (70) percent of the base amount.

Section 14.16.080 Level Three Water Supply Shortage.

A Level Three Water Supply Shortage exists when the City determines a water supply shortage exists and an overall water use reduction of between twenty (20) percent and thirty (30) percent is necessary to make more efficient use of water and appropriately respond to existing water conditions.

A. No customer shall use potable water to irrigate any lawn, landscape or other vegetated area except on the scheduled irrigation days established by the Director. The Director shall specify for each customer two irrigation days per week during the months of April through October and one irrigation day per week during the months of November through March. This restriction does not apply to the following:

1. Maintenance of vegetation, including trees and shrubs, that is watered using a hand-held bucket or similar container or hand-held hose equipped with positive self-closing water shut-off nozzle or device, or a very low-flow drip type irrigation system when no emitter produces more than two gallons of water per hour.

2. Irrigation of food crops (including fruit trees and vegetable gardens), provided that such irrigation does not exceed four days per week on a schedule established by the Director.

3. Short periods of irrigation for the exclusive purpose of adjusting or repairing an irrigation system.

B. No customer shall use more water during any billing period than the percentage of the base amount per customer category established in the resolution declaring the Level Three Water Supply Shortage, which percentage shall be in the range from ninety (90) percent to fifty (50) percent of the base amount.

C. No person shall permit loss or escape of water through breaks, leaks or other malfunctions in the user's plumbing or distribution system for more than twenty-four (24) hours after receiving notice from the City.
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Section 14.16.090 Level Four Water Supply Shortage.

Ordinance No. 2022-_

A Level Four Water Supply Shortage exists when the City determines a water supply shortage exists and an overall water use reduction of between thirty (30) percent and forty (40) percent is necessary to make more efficient use of water and appropriately respond to existing water conditions.

A. No customer shall use potable water to irrigate any lawn, landscape or other vegetated area except on the scheduled irrigation days established by the Director. The Director shall specify for each customer one irrigation day per week. This restriction does not apply to the following:

1. Maintenance of vegetation, including trees and shrubs, that is watered using a hand-held bucket or similar container or hand-held hose equipped with positive self-closing water shut-off nozzle or device, or a very low-flow drip type irrigation system when no emitter produces more than two gallons of water per hour.

2. Irrigation of food crops (including fruit trees and vegetable gardens), provided that such irrigation does not exceed three days per week on a schedule established by the Department.

3. Short periods of irrigation for the exclusive purpose of adjusting or repairing an irrigation system.

8. No customer shall use more water during any billing period than the percentage of the base amount per customer category established in the resolution declaring the Level Four Water Supply Shortage, which percentage shall be in the range from eighty (80) percent to twenty-five (25) percent of the base amount.

C. No person shall permit loss or escape of water through breaks, leaks or other malfunctions in the user's plumbing or distribution system for more than twenty-four (24) hours after receiving notice from the City.

Section 14.16.100 Level Five Severe Water Supply Shortage.

A Level Five Severe Water Supply Shortage exists when the City determines a water supply shortage exists and an overall water use reduction of between forty (40) percent and fifty (50) percent is necessary to make more efficient use of water and appropriately respond to existing water conditions.

A. No customer shall use potable water to irrigate any lawn, landscape or other vegetated area. This restriction does not apply to the following:
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1. Maintenance of vegetation, including trees and shrubs, that are watered using a hand-held bucket or similar container or a hand-held hose equipped with a positive self-closing water shut-off nozzle or device.

2. Maintenance of existing landscape to the extent necessary for fire protection.

3. Maintenance of existing landscape to the extent necessary for soil erosion control.

4. Maintenance of plant materials identified to be rare or essential to the well- being of rare animals.

5. Maintenance of landscape within active public parks and playing fields, day care centers, school grounds, cemeteries, and golf course greens, provided that such irrigation does not exceed two times per week on a schedule established by the Director.

6. Public works projects and actively irrigated environmental mitigation projects.

7. Food crops (including fruit trees and vegetable gardens); provided, that such irrigation does not exceed two times per week on a schedule established by the Director.

B. The City will not provide new potable water service, new temporary meters, or new permanent meters or issue statements of immediate ability to serve or to provide potable water service, except under the following circumstances:

1. A valid, unexpired building permit has been issued for the project;

2. The project is necessary to protect public health, safety, and welfare; or

3. The applicant provides substantial evidence of an enforceable commitment that ensures to the satisfaction of the Director the water demands for the project will be offset prior to the provision of a new water meter(s).

This restriction does not preclude the resetting or turn-on of meters to provide continuation of water service or the restoration of service that has been interrupted for a period of one year or less.

C. No customer shall use more water during any billing period than the percentage of the base amount per customer category established in the resolution declaring the Level 10-18
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Five Severe Water Supply Shortage, which percentage shall be between seventy-five (75) percent to zero (0) percent of the base amount.

D. No person shall permit loss or escape of water through breaks, leaks or other malfunctions in the user's plumbing or distribution system for more than twenty-four (24) hours after receiving notice from the City.

E. No customer may use potable water to fill or refill an ornamental lake, pond, or fountain, except to the extent needed to sustain aquatic life, provided that such animals were being actively managed within the water feature at the time of the City's declaration of the water supply shortage under this chapter.

F. No customer may use potable water to fill or refill a residential swimming pool or outdoor spa.

G. No permits for new pool construction or reconstruction shall be issued.

H. Washing of autos, trucks, trailers, boats, motorhomes and other types of vehicles and mobile equipment is prohibited, other than at a commercial car wash.

Section 14.16.110 Level Six Catastrophic Water Supply Shortage.

A Level Six Catastrophic Water Supply Shortage exists when the City determines a water supply shortage exists and an overall water use reduction of over fifty (50) percent is necessary to make more efficient use of water and appropriately respond to existing water conditions. A Level Six condition includes a disaster or sudden event such as earthquake, wildfire, power outage, or failure of any water supply or water distribution facility that has or threatens to significantly diminish the reliability or quality of the City's water supply.

All water uses except those necessary for basic health and safety are prohibited or shall be significantly reduced and all restrictions under a Level Five Severe Water Supply Shortage shall also be in effect, unless otherwise specified in the resolution declaring the water supply shortage.

Section 14.16.120 Exemptions.

A. The provisions of this chapter do not apply to uses of water necessary to protect public health and safety or for essential government services, such as public works, public utilities, police, fire and other similar emergency services.

B. Water consumption restrictions shall not be applicable to any of the following:
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1. Customers who have participated in a fuel load modification program and have received an exemption from the Director and Fire Marshal. The Director and Fire Marshal shall only grant exemptions necessary to mitigate the impacts of participation in the fuel modification zone program, such as the need to irrigate replacement vegetation.

2. Customers that operate hospitals, medical care facilities, nurseries or other businesses whose main stock and trade consists of the sale or cultivation of plants and vegetation, and businesses in which water consumption is an integral part of production or manufacturing, provided that such customers shall first submit a water conservation plan to, and obtain the approval of, the Director. This exemption does not extend to the use of potable water for the irrigation of landscape areas.

C. The Director shall approve a water conservation plan only if the plan proposes the maximum feasible reduction in consumption. As a condition of approving the water conservation plan, the Director may require the use of water conservation devices or practices as he or she deems appropriate to result in the maximum feasible reduction in consumption.

Section 14.16.130 Relief from Compliance.

A. Intent and Purpose. The City Council recognizes that water consumption can increase or decrease because of factors unrelated to wasteful water use practices. Many customers have installed water-saving devices and adopted water conservation practices that make it difficult to satisfy the water consumption restrictions required by this chapter.

This section recognizes that adjustments to the base amount may be necessary to ensure that application of this chapter to any particular customer does not produce unjust or inequitable results, especially during water supply shortage Levels One, Two, and Three.

In addition, this section recognizes unique circumstances may result in undue or disproportionate hardship as to a customer using water which is different from the impacts to water users generally. As a general rule, the Director should not grant relief to any customer for any reason in the absence of showing that the customer has achieved the maximum feasible reduction in water consumption, such as through the use of water saving devices (e.g., efficient fixtures, controllers and drought-resistant or artificial landscaping).

B. Procedures. A customer may seek relief from the provisions of this chapter by submitting an application in a form prescribed by the Department. The Director may require the submission of additional supporting documentation that he or she deems necessary to grant the application for relief. The Director shall approve or disapprove the 10-20
Ordinance No. 2022-

application for relief, in whole or in part, within thirty (30) days after it is filed and deemed complete.

C. Factors to Be Considered.

1. Relief from Water Consumption Restrictions. In determining whether relief should be granted from water consumption restrictions, the Director shall consider all relevant factors including, but not limited to, the following:
a. Whether compliance with the water conservation requirements then in effect would result in unemployment or layoff of workers; b. Whether additional persons are now living or working in the customer's premises that were not living or working in the premises during all or a portion of the billing periods used to calculate the base amount; c. For residential customers, whether the usage in the prior billing period was equivalent to or less than ten (10) billing units in a Level One condition, nine (9) billing units in a Level Two condition, eight (8) billing units in a Level Three condition, seven (7) billing units in a Level Four condition, and six (6) billing units in a Level Five Severe condition, with the thresholds doubled for customers billed on a bi-monthly basis (e.g., eighteen (18) billing units in a Level Two condition);
d. Whether the customer had, during all or a portion of the billing periods used to calculate the base amount, begun using water conservation practices that remain in use and that reduced the customer's water usage by an amount equivalent to the reduction required by the water supply shortage;
e. Whether any current or anticipated increase in production or manufacturing will require the use of additional water; f. The extent to which irrigation or watering of landscaping has been made necessary by compliance with fuel load modification programs; and g. The extent to which the customer needs to use water to mitigate any emergency health or safety hazards.

2. Relief from Requirements Other than Water Consumption Restrictions. In determining whether relief should be granted from requirements other than water consumption restrictions, the Director must find, based on the application and supporting documentation, that:
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Ordinance No. 2022-_

a. The relief does not constitute a grant of special privilege inconsistent with the limitations imposed by this chapter on other customers; b. Because of special circumstances applicable to the customer's property or its use, the strict application of this chapter would have an impact on the customer that is disproportionate to the impact on other similarly situated customers;
c. The condition or situation of the customer's premises for which the relief is sought is not common or general in nature;
d. The customer has achieved or will achieve the maximum feasible reduction in water consumption, such as through the use of water saving devices (e.g., efficient fixtures, controllers and drought-resistant or artificial landscaping); and
e. Authorizing such relief will not materially affect the ability of the City to effectuate the purpose of this chapter and will not be detrimental to the public interest.

D. Agreement. Any grant of relief under this section shall be memorialized in a written agreement detailing the specific areas of relief granted, the conditions thereunder, and any other pertinent provisions, and shall be signed by the customer and the Director.

During the effectiveness of the agreement, the customer shall have no further right to seek relief pursuant to the provisions of this section.

E. Final Decision. The Director shall notify the customer of the decision on the application for relief by mailing a notice of the decision to the customer by means of first class, postage prepaid, to the address specified on the application. Service shall be deemed to have been completed at the time of deposit in the mail.

F. Appeal of Final Decision. A customer may appeal the decision of the Director by submitting a written request within fifteen (15) days of the date of the Director's written decision. A written appeal request shall be submitted to the City Manager and include the reasons for the request and signature of the customer submitting the request. The City Manager may approve or disapprove the appeal within thirty (30) days from receipt of a request. The decision of the City Manager shall be final.

G. Willful Misrepresentation. Notwithstanding any other provision of law, no person shall make any willful misrepresentation of a material fact with respect to any application for relief submitted pursuant to this section.
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Section 14.16.140 Enforcement.

Ordinance No. 2022-

A. Responsibility-Implementation Plan. The Director shall develop an implementation plan to be used as a guideline for enforcing the provisions of this chapter.

The implementation plan shall provide the resources (staffing and equipment) required to ensure the fair and timely execution of these requirements, as well as a detailed execution strategy. In addition, the implementation plan shall ensure, so far as is reasonable under the circumstances, that persons are notified of violations and are provided an opportunity to cure the violation prior to being cited.

B. Violations. Violations of this chapter are subject to criminal, civil, and administrative fines and penalties and are enforceable under the procedures provided in Section

1.04.010 and Chapter 1.05.

C. Additional Enforcement Options. The City may impose the following requirements on a customer in the event of a continuing or willful violation:

1. Water Flow Restrictors. The City may install a water flow restrictor of approximately one gallon per minute for services up to one and one-half inches in size and comparatively sized restrictors for larger services. Prior to doing so, the City shall first provide a minimum of forty-eight (48) hours' notice of its intent to install a water flow restrictor. In the event that a customer refuses to permit the installation of a water flow restrictor following the City's election to do so, the City may terminate the customer's water service.

2. Termination of Service. The City may disconnect a customer's water service for willful violations of mandatory restrictions in this chapter.

Section 14.16.150 State of Emergency.

If the Governor of the State of California proclaims a state of emergency and thereby issues orders or other general laws that mandate adoption of regulations by the State Water Resources Control Board and/or water conservation efforts by persons, it is a violation of this section for any person to violate any such emergency order or general law lawfully adopted by the State of California.

Section 2: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance.

Section 3: If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not 10-23
Ordinance No. 2022-

affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

Section 4: The City Council finds the introduction and adoption of this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.

Section 5: Except as expressly modified in this ordinance, all other Sections, Subsections, terms, clauses and phrases set forth in the Newport Beach Municipal Code shall remain unchanged and shall be in full force and effect. 10-24
Ordinance No. 2022-

Section 6: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance shall be effective thirty (30) days after its adoption.

This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 24th day of May, 2022, and adopted on the 14th day of June, 2022, by the following vote, to-wit:

AYES: -----------------------
NAYS: -----------------------
ABSENT: -------------------- - -

KEVIN MULDOON, MAYOR
ATTEST:

LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:

CITY ATTORNEY'S OFFICE
tfb--c !{a--
ON C. HARP, CITY ATTORNEY

Chapter 14.16

WATER CONSERVATION AND WATER SUPPLY SHORTAGE PROGRAM LEVEL

REGULATIONS
Sections:

14.16.010 Findings and Purpose.

14.16.020 Definitions.

14.16.030 Applicability.

14.16.040 Permanent Mandatory Water Conservation Requirements.

14.16.050 Proce dure for Declaration and Notification of Water Supply Shortage—Continued Monitoring of Conditions.

14.16.060 Level One Mandatory Water Supply ShortageConservation Requirements.

14.16.070 Level Two Mandatory Water Supply ShortageConservation Requirements.

14.16.080 Level Three Mandatory Water Supply ShortageConservation Requirements.

14.16.090 Level Four Mandatory Water Supply ShortageConservation Requirements.

14.16.100 Level Five Severe Water Supply Shortage.

14.16.110 Level Six Catastrophic Water Supply Shortage.

14.16.1020 Exemptions.

14.16.1130 Relief from Compliance.

14.16.1240 Enforcement.

14.16.1350 State of Emergency.

Section 14.16.010 Findi ngs and Purpose.

A. The purpose of this chapter is to establish a water conservation and water supply shortage program that, to the greatest extent possible, will reduce water consumption within the City of Newport Beach, enable effective water supply planning, assure ensure reasonable and beneficial use of water, prevent waste of water, complement the City’s water quality regulations and ur ban runoff reduction efforts, maximize the efficient use of water, and minimize the effect and hardship of water shortage s, and implement the City’s Water Shortage Contingency Plan.

B. The water conservation and water supply shortage program created by this chapter establishes permanent water conser vation requirements intended to alter behavior related to water use efficien cy for nonshortage conditions and further establishes four six levels of water supply shortage response actions to be implemented

ATTACHMENT B
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during times of a declared water shortage with increasing restrict ions on water use in response to worsening drought or emergency conditions and decreasing supplies.

C. The City Council finds as follows:

1. A reliable minimum supply of water is essential to the public health, safety and welfare of the peopl e and economy of the City and the Southern California region.

2. Wasteful water use practices consti tute a potential threat to and an unacceptable diminution of the City’s wa ter supplies. The prevention of water waste is an economically and environmentally feasible way to protect, conserve, and prevent unacceptable diminution of the City's water supplies. Southern California is a semi-arid region and is largely dependent upon imported water supplies. A growing populat ion, climate change, envir onmental concerns and other factors in other par ts of the state and wester n United States make the region highly susceptible to water supply reliability issues.

3. Careful water management that in cludes active water conservation measures, not only in times of drought but at all times, is essential to ensure a reliable minimum supply of water to meet current and future supply needs.

4. Article X, Section 2, of the Califor nia Constitution declares that the general welfare requires that water resources be put to beneficial us e, that waste or unreasonable use or unreasonable me thod of use of water is to be prevented and that conservation of water be fully exercised with a view to the reasonable and beneficial use thereof.

5. Article XI, Section 7, of the California Constituti on declares that a city or county may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws.

6. California Water Code Section 375 authorizes a water supplier to adopt and enforce a comprehensive water cons ervation program to reduce water consumption and conserve supplies.

7. The adoption and enfor cement of the water conservation and water supply shortage program is necessary to manage the City’s water supply in the short and long term and to avoid or minimize the effects of a supply shortage within the City’s service area. Such a program is essential to ensure a reliable and sustainable minimum supply of water for public health, safety and welfare. 10-26

8. Recycled water is supplied in va rious areas throughout the City to conserve potable water. Recycled water, like potable water, must be used efficiently and is therefore included in this program.

9. Outdoor water use is a pr imary source of urban r unoff, which flows onto the streets, through storm drains, to t he creeks, the harbor and beaches. It is therefore in the public interest to pr omote practices that increase water use efficiency, reduce or elim inate runoff, and further suppor t the regulations as set forth in Chapter 14.36 (Water Quality) and related best management practices.

10. Contamination, drought, or failure of the water system infrastructure may lead to a potable water shortage emergency in the City’s water supplies.

11. Normal water supply conditions, known as Level Zero, exist during periods when the City anticipates no supply reductions. The City will proceed with planned water efficiency best practices to support consumer demand reduction in line with state mandated requirements and local goals for water supply reliability.

The permanent mandatory water conservation requirements in Section 14.16.040 shall be in effect to prevent waste and unreasonable use of water at all times.

Section 14.16.020 Definitions.

In this chapter, the following words and phrases shall have the following meanings:
“Base amount” means a base amount of water usage per billing period to be determined for each customer. For any particular bill ing period, the base amount shall be as indicated on the customer’s municipal services statement for the prior billing period. For customers occupying premises for which t he City’s water billing history includes 2013the year specified in the reso lution declaring a water shortage , the base amount shall be the amount of water used during the same billing period in the year specified in the resolution2013. For customers occupying premises for which the City’s water billing history does not include t he same billing period in the year specified in the resolution declaring a water shortage2013 , the base amount shall be the estimate of the water usage per billing period of similar premises and users. “Billing period” means the peri od of time for which the Cit y calculates monthly water service rates for a particular customer under Section 14.12.020. “Billing unit” means the unit of water us ed to apply water rates for purposes of calculating water charges for a person’ s water usage and equals seven hundred forty- eight (748) gallons.
“City” shall mean the City of Newport Beach.
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“City Council” shall mean the City Council of the City of Newport Beach. “Commercial kitchen” means a facility contai ning a kitchen in which food is prepared for sale, such as a restaurant, cafe, hotel, catering establishment, or other food preparation establishment.
“Customer” shall mean any person or premises using or receiving water service from the City. The term “customer” shall not include a person or premises receiving water service within the City from the Irvine R anch Water District or from the Mesa Consolidated Water District.
“Department of Public Health” shall mean the Orange County Department of Health. “Department” shall mean the City of Newport Beach Utilities Department. “Director” shall mean the Director of the City of Newport Beach’s Utilities Department or his or her designee.
“Excessive flow or runoff” shall mean fr equent and/or large am ounts of runoff from irrigation and/or other outdoor water use.
“Fire Marshal” shall mean the City of Newport Beach’s Fire Marshal or his or her designee.
“Fuel modification zone” sha ll mean combustible native or ornamental vegetation that has been modified and partially or totally replac ed with drought toler ant, fire retardant plants and maintained per Fire Code guidelines.
“Implementation plan” shall mean the plan developed by the Municipal Operations Director that provides the resources (staff ing and equipment) required to ensure the fair and timely execution of these requirements, as well as a detailed execution strategy. “Irrigate” means any exterior application of water, other than for firefighting purposes, including but not limited to the watering of any vegetation whether it be natural or planted lawn, landscape, or other vegetated area.
“Landscape irrigation system” means an irri gation system with pipes, hoses, spray heads, or sprinkling devices that are operated by and/or through an automated system. “MET” shall mean the Metropolitan Water District of Southern California. “Municipal Operations Director” shall mean the Director of the City of Newport Beach’s Municipal Operations Department or his or her designee. “Person” shall have the meaning ascribed to it by Section 1.08.120. 10-28

“Potable water” means water that is suit able for drinking and excludes recycled water from any source.
“Premises” means a parcel of land, or porti on of a parcel, includ ing any improvements located thereon, that are served by a City water meter. “Recirculating” means the reus e of existing water, by m eans of capturing/containing water used, then circulating back to point of origin.
“Recycled water” means the reclamatio n and reuse of non-potable water and/or wastewater for beneficial use, such as irrigation.
“Safety/sanitary hazards” means the conditi on that may cause or threaten to cause injury to any person or persons.
“Single pass cooling system” means equipment where water is circulated only once to cool equipment before being disposed.
“Water” shall mean potable water and recycled water.
“Water-conserving kitchen spray valve” means a dishwashing spray valve that uses 1.6 gallons of water or less per minute of use.
“Water conservation plan” means a plan submitted by a customer for the approval of the Utilities Director, in conjunction with a request for an exemption or partial exemption that proposes the maximum feasible reduction in consumption. “Water consumption restrictions” shall mean those provisions in this chapter that require customers to reduce the amount of water consumed during a water supply shortage in relation to the base amount. “Water supply shortage” means the effective period of time during which the City Council, by resolution adopted under Section 14.16.050, has declared the existence of a water supply shortage or threat ened shortage. The City Council, depending on the severity of conditions , may declare a Level One, Level Two, Level Three, or Level Four water supply shortage.

Section 14.16.030 A pplicability.

A. The provisions of this c hapter shall apply to all persons , customers, and premises using water in the City, as set forth herein.

B. For the purposes of this chapter, the use of water by a tenant, employee, agent, contractor, representative or pe rson acting on behalf of a customer may, at the City’s election, shall be imputed to the customer.
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Section 14.16.040 Permanent Mandatory Water Conservation Requirements.

The following prohibitions and mandatory water conservation requirements are effective at all times, including during a water supply s hortage. Violations of this section will be considered waste and an unreasonable use of water.

A. Limit on Watering Duration. No customer shall use potable water to irrigate any lawn and/or ornamental l andscape area using a landscape irrigation system or a watering device that is not continuously att ended unless such irrigation is limited to no more than fifteen (15) ten (10) minutes watering per station. This restriction does not apply to the following:

1. This restriction does not apply to the following unless the City has determined that recycled water is available and may be lawfully applied to the use:
a. Landscape irrigation systems that exclusiv ely use very low-flow drip type or bubbler type irrigation systems in which no emitter produces more than two gallons of water per hour.

2. or wW eather based controllers or stream rotor sprinklers that meet a seventy (70) percent efficiency standard.

B. Limits on Watering Hours. No customer s hall use potable water to irrigate any lawn, landscape or other vegetated area betw een the hours of 9:00 a.m. and 5:00 p.m.

Pacific Time on any day, except by use of hand-held bucket or similar container, or a hand-held hose equipped with a positiv e self-closing water shut-o ff nozzle or device, or for short periods for the exclusive purpose of adjusting or repairing an irrigation system.

C. No Excessive Runoff. No person shall use water to irrigate any lawn and/or ornamental landscape area in a m anner that causes or allows excessive more than incidental flow or runoff onto an adjoining sidewalk, driveway, street, alley, gutter or ditch. “Incidental flow or runoff” means a minimal amount of water that escapes the area of intended use, such as windblown overspray onto adjacent hard surfaces.

CD. No Washing Down. No person shall use water to wash down hard or paved surfaces, including, but not limited to, si dewalks, walkways, driveways, parking areas, tennis courts, patios or alleys, except when necessary to a lleviate safety or sanitary hazards, and then only by use of a hand-hel d bucket or similar container, a hand-held hose equipped with a positive self-closing water shut-off device, or a low- volume, high- pressure cleaning machine (e.g., “water broom”) equipped to recycle any water used and efforts are made to vacuum the runoff or direct the runoff away from paved surfaces.
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DE. Obligation to Fix. No person shall permit excessive use, loss or escape of water through breaks, leaks or other malfunctions in the person’s plumbing or distribution system for any period of time after such escape of water should have reasonably been discovered and corrected and in no event more than three (3)seven days after receiving notice of the condition from the City unless other arrangements are made with the City.

EF. Watering During and After Rainfall. No customer shall use potable water to irrigate lawns, groundcover, shrubbery or other ornamental landscape material during and within forty-eight (48) hours after a measurable rainfall event of at least one-fourth of one inch of rain as recorded by the Nati onal Weather Service, the closest California Irrigation Management Information System stat ion, or any other reliable source of rainfall data available to the City.

FG. Landscaping Connected to Dedicated Land scape Meters. By July 1, 2012, aA ll landscape irrigation systems connected to dedicated landscape mete rs shall include rain sensors that automatically shut off su ch systems during periods of rain or include evapotranspiration systems that schedule irrigation based on climatic conditions.

GH. Water Fountain Recirculating Water. No customer shall oper ate a water fountain or other decorative water feature that does not use a recirculating water system.

HI. Washing Vehicles and Equipment. No customer shall use water to clean a vehicle, including but not limited to any automobile, truck, van, bus, motorcycle, boat or trailer, whether motorized or not, except by use of a hand-held bucket or similar container or a hand-held hose equipped with a positive self-closing water shut-off nozzle or device.

1. This subsection does not apply to any commercial car washing facility.

IJ. Commercial Car Washes.Effective January 1, 2010, Aall new commercial conveyor car wash systems in commercial car washing facilities shall be use operational recirculating water systems.

J. By January 1, 2013, all commercial c onveyor car wash systems in commercial car washing facilities shall be operational recirculating water systems, or the customer must have secured an exemption from this requirement pursuant to Section 14.16.100.

K. Drinking Water Served Upon Request Only. Customers operating eating or drinking establishments, including but no t limited to restaurants, hotels, cafes, cafeterias, bars, or other public places wher e food or drinks are sold , served, or offered for sale, shall not provide drinking water to any person unless expressly requested by the person.
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L. Commercial Lodging Linens. Customers operating hotel , motel, and other commercial lodging establishments shall pr ovide persons the option of not having towels and linen laundered daily. Commercial lodging establishments must prominently display notice of this option.

M. No Single Pass Cooling Systems. No customer shall inst all a new single pass cooling system in a building or premises requesting new water service . This provision shall not prevent the replacement or repai r of single pass cooling systems that were installed prior to December 31, 2009.

N. Effective January 1, 2010, all new washing machines installed in commercial and/or coin-operated laundries shall be ENERGY STAR® and CEE Tier III qualified. By January 1, 2014, all washing ma chines installed in comme rcial and/or coin-operated laundries shall be ENERGY STAR® and CEE Tier III qualified.

ON. Use of Hydrants. No customer person shall use water from any fire hydrant for any purpose other than fire suppre ssion or emergency aid without first : (1) requesting and posting the appropriate fees at the City, and (2) obtaining a hydrant meter to record all water consumption for a specified projec t. obtaining a City hydrant meter account or written approval from the Director or hi s or her designee. Absent a meter account or Director approval , water theft and meter tampering fees will shall be applied as appropriate.

PO. Newly Constructed Homes and Buildings. No person shall water with potable water the landscapes outside of newly constructed homes and build ings in a manner inconsistent with regulations or other requirements est ablished by the California Building Standards Commission.

QP. Construction Site Requirements. The r equirements of this subsection apply to persons engaged in construction activities. A pe rmittee’s refusal or failure to comply with these requirements shall constitute gr ounds for revocation of a construction or grading permit. In addition, the City may withhol d occupancy and inspections until such time as the permit holder has complied.

1. No person shall use potable water fo r soil compaction or dust control in a construction site where there is an ava ilable and feasible source of recycled water or non-potable water approved by t he Department of Public Health and appropriate for such use.

2. No person shall operate a hose within a construction site that is not equipped with an automatic shut-off nozzle, provided that such devices are available for the size and type of hose in use.
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RQ. Commercial Kitchen Requirements. No customer may operate a commercial kitchen that does not comply with the following requirements:

1. Water-Conserving Pre-Rinse Kitchen Spray Valves. New or remodeled cCommercial kitchens shall be equipped wit h water-conserving kitchen spray valves. By January 1, 2010, all valves wit h water-conserving kitchen spray valves.

2. Best-Available Water-Conserving Technology. New or remodeled Ccommercial kitchens shall ensure that all water-using equipment in new or remodeled commercial kitchens uses the best-available , water -conserving technology.

3. No customer operat ing a commercial kitchen shall defrost food or allow food to be defrosted with running water.

4. Scoop sinks shall be se t at minimum water flow at all times of use and shut off during nonworking hours.

35. When hosing or washing kitchen or garbage areas or other areas for sanitary reasons as required by the De partment of Health , hoses shall be equipped with positive self-closing nozzles.

R. Indiscriminate Use. No person shall cause or permit th e indiscriminate running of water not otherwise prohibited by this sectio n which is wasteful and without reasonable purpose.

S. Public Health and Safety. The provisions in this section shall not be construed to limit water use that is immediately necessary to protect public health or safety.

Section 14.16.050 Procedure for Declaration and Notification of Water Supply ShortageContinued Monitoring of Conditions.

A. From time to time, the City Council may de clare by resolution the existence of a Level One, a Level Two, a Level Three, or a Level Four water supply shortage. In so doing, the Council shall determine that a wate r supply shortage or threatened shortage exists, due to drought or other water supply conditions, and that it is necessary to impose the mandatory conservation requirement s applicable to the particular level of water supply shortage. It will be necessary to make more efficient use of water and appropriately respond to conditions created by the water supply shortage. Prior to adopting a resolution declaring the exist ence of a water supply shortage, the City Council shall enact a resolution indicating its intention to do so, the conditions necessitating the declaration, the nature of the ma ndatory conservation restrictions 10-33

proposed to be imposed, including the spec ifics of any proposed water consumption restrictions, and the day, hour and plac e when and where persons may appear before the City Council and be heard on whether resolution declaring the water supply shortage should be enacted. The resolution of intention shall direct the City Clerk to publish said resolution at least once, within fifteen (15) days of the passage thereof, in a newspaper of general circulation in the City. Said notice shall be published at least ten (10) days prior to the date of hearing. Within ten (10) days of the adoption of a resolution declaring a water supply shortage, the City Clerk shall cause the resolution to be published or posted in t he manner required by California Water Code Section 376.Upon the Director’s determination of t he existence of a water supply shortage based on the criteria and stages defined in the City’s Water Shortage Contingency Plan, the City Council may declare a Water Supply Shortage from Level One up to Level Six.

In accordance with California Water Code Se ctions 350-352, the City Council may also declare a Level Six Catastrophic Water Suppl y Shortage in response to a disaster or sudden event that has or threatens to significantly diminish the reliability or quality of the City’s water supply. The mandatory water conservation measures applicable to the level of water supply shortage shall take effect on the date specified in the resolution declaring the water supply shortage.

B. The mandatory conservation requirement s that become effective following the adoption of a resolution declaring the exist ence of a particular level of water supply shortage shall remain in full force and effect until the resolution is repealed or until new mandatory conservation require ments become effective fo llowing the adoption of a subsequent resolution declaring the existence of a water supply shortage.

C. The City Manager shall notify and inform t he public, local, regional, and state governments, and other stakeholder s of the declaration of water supply shortage, the mandatory conservation requirements, and other water shortage response actions, according to the communication procedures in the City’s Water Shortage Contingency Plan.

DC. During the existence of a water supply shortage, the Municipal Operations Director shall provide periodic reports to the City Council regarding compliance with the mandatory conservation requirements of the level of water supply shortage, current and anticipated allocations of water from MET, and any change in circumstances that could warrant a position of more stringent measures or relaxation of measures then in effect. 10-34

Section

14.16.060 Level One MandatoryWater Supply ShortageConservation Requirements.

On the tenth day after a resolution declari ng the existence of a Level One water supply shortage becomes effective, the following mandatory wate r conservation requirements shall take effect:A Level One Water Suppl y Shortage exists when the City determines a water supply shortage exists or there is no surplus water supply and an overall water use reduction of up to ten (10) percent is necessary to make more effi cient use of water and appropriately respond to existing water conditions.

A. No customer shall use potable water to irrigate any lawn, landscape or other vegetated area except on the scheduled irrigation days established for each customer by the Municipal Operations Director. During a Level One water supply shortage, the schedule established by the Municipal Operations The Director shall specify for each customer (1) four irrigation days per week during the months of April through, May, June, July, August, September, and October and (2) two irrigation days per week during the months of November through, December, January, February, and March. Prior to the foregoing restriction becoming effective, the Municipal Operatio ns Director shall have notified the customer of the scheduled irrigation days by mail, which may be done by an indication on the customer’s municipal services statement. This restriction does not apply to the following unless the City has determined that recycled water is available and may be lawfully applied to the use:

1. Maintenance of vegetation includi ng trees and shrubs that is watered using a hand-held bucket or similar cont ainer, a hand-held hose equipped with a positive self-closing water shut-off nozzle or device, or a very low-flow drip type irrigation system when no emitter produces more than two gallons of water per hour.

2. Irrigation of food crops (including fruit trees and vegetable gardens).

3. Short periods of irrigation for t he exclusive purpose of adjusting or repairing an irrigation system.

B. No customer shall use more water dur ing any billing peri od than the percentage of the base amount per customer category established in the resolution declaring the Level One Wwater Ssupply Sshortage, which percentage shall be in the range from one hundred (100) percent to eightyninety (980) percent of the base amount.C. No person shall permit excessive use, loss or escape of water through breaks, leaks or other 10-35

malfunctions in the user’s plumbing or di stribution system for more than seventy-two (72) hours after receiving notice of the condition from the City.

D. No customer may use potable water to fill or refill an ornamental lake, pond, or fountain, more than once per week, except to the extent needed to sustain aquatic life, provided that such animals were being active ly managed within the wa ter feature at the time of the City’s initial declaration of a then continuing water supply shortage.

E. No customer may use more than one foot of potable water per week to fill or refill a residential swimming pool or outdoor spa.

Section

14.16.070 Level Two Mandatory Water Supply ShortageConservation Requirements.

A Level Two Water Supply Shortage exists when the City determines a water supply shortage exists and an overall water use r eduction of between ten (10) percent and twenty (20) percent is necessary to make more efficient use of water and appropriately respond to existing water conditions. On the tenth day after a reso lution declaring the existence of a Level Two water supply shortage becomes effective, the following mandatory water conservation requirements shall take effect:

A. No customer shall use potable water to irrigate any lawn, landscape or other vegetated area between the hours of 9:00 a.m. and 5:00 p.m. Pacific time on any day, except by use of a hand-held bucket or si milar container, a hand-held hose equipped with a positive self-closing water shut-off no zzle or device, or for short periods of irrigation for the exclusive purpose of adjusting or repairing an irrigation system.

BA. No customer shall use potable water to irrigate any lawn, landscape or other vegetated area except on the scheduled irrigation days established by the DirectorCity Council resolution. During a Level Two water supply sh ortage, the schedule established by City Council resolution The Director shall specify for each customer (1) three irrigation days per week during the months of April through, May, June, July, August, September, and October and (2) one irrigation day per week during the months of November through, December, January, February, and March. Prior to the foregoing restriction becoming effective, the City sh all notify the customer of the scheduled irrigation days by mail, which may be done by an indication on the customer’s municipal services statement. This restriction does not apply to the following unless the City has determined that recycled water is available and may be lawfully applied to the use:
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1. Maintenance of vegetation, including trees and shrubs, that is watered using a hand-held bucket or similar cont ainer, a hand-held hose equipped with a positive self-closing water shut-off nozzle or device, or a very low-flow drip type irrigation system when no emitter produces more than two gallons of water per hour.

2. Irrigation of food crops (inc luding fruit trees and vegetable gardens),provided that such irrigation does not exceed five times per week on a schedule established and posted by the City’s Municipal Operations Department.

3. Short periods of irrigation for t he exclusive purpose of adjusting or repairing an irrigation system.

BC. No customer shall use more water dur ing any billing peri od than the percentage of the base amount per customer category established in the resolution declaring the Level Two Wwater Ssupply Sshortage, which percentage shall be in the range from one hundred (100) ninety (90) percent to seventy-five (7570) percent of the base amount.

D. No person shall permit excessive use, loss or escape of water through breaks, leaks or other malfunctions in the user’s pl umbing or distribution system for more than forty-eight (48) hours after receiving notice of the condition from the City.

E. No customer may us e potable water to fill or ref ill an ornamental lake, pond, or fountain more than once every other week, except to the extent needed to sustain aquatic life, provided that such animals were being actively managed within the water feature at the time of the City’s declaration of the water supply shortage under this chapter.

F. Customers may use no more than six in ches of potable water per week to fill or refill a residential swimming pool or outdoor spa.

Section 14.16.080 Level Three Mandatory Water Supply ShortageConservation Requirements.

A Level Three Water Supply Shortage exists when the City determines a water supply shortage exists and an overall water use re duction of between twenty (20) percent and thirty (30) percent is necessa ry to make more efficient us e of water and appropriately respond to existing water conditions. On the tenth day after a reso lution declaring the existence of a Level Three water supply shortage becomes effective, the following mandatory water conservation requirements shall take effect:

A. No customer shall use potable water to irrigate any lawn, landscape or other vegetated area between the hours of 9:00 a.m. and 5:00 p.m. Pacific time, on any day, except by use of a hand-held bucket or si milar container, a hand-held hose equipped 10-37

with a positive self-closing water shut-off no zzle or device, or for short periods of irrigation for the exclusive purpose of adjusting or repairing an irrigation system.

BA. No customer shall use potable water to irrigate any lawn, landscape or other vegetated area except on the scheduled irrigation days established by the DirectorCity Council resolution . During a Level Three water s upply shortage, the schedule established by City Council resolutionThe Director shall specify for each customer (1) two irrigation days per week during the months of April through , May, June, July, August, September, and October and (2) one irrigation day per week during the months of November through , December, January, February, and March. Prior to the foregoing restriction becoming effective, the City sh all notify the custom er of the scheduled irrigation days by mail, which may be done by an indication on the customer’s municipal services statement. This restriction does not apply to the following unless the City has determined that recycled water is available and may be lawfully applied to the use:

1. Maintenance of vegetation, including trees and shrubs, that is watered using a hand-held bucket or similar c ontainer or hand-held hose equipped with positive self-closing water shut-off nozzle or device, or a very low-flow drip type irrigation system when no emitter produces more than two gallons of water per hour.

2. Irrigation of food crops (includi ng fruit trees and vegetable gardens), provided that such irri gation does not exceed fourthree days per week on a schedule established and posted by the City’s Municipal Operations DepartmentDirector.

3. Short periods of irrigation for the exclusive purpose of adjusting or repairing an irrigation system.

BC. No customer shall use more water dur ing any billing peri od than the percentage of the base amount per customer category established in the resolution declaring the Level Three Wwater Supply Ss hortage, which percentage shal l be in the range from ninety seventy-five (7590) percent to sixty fifty (6050) percent of the base amount.

CD. No person shall permit excessive use, loss or escape of water through breaks, leaks or other malfunctions in the user’s pl umbing or distribution system for more than twenty-four (24) hours after receiving notice from the City. 10-38

E. No customer may us e potable water to fill or ref ill an ornamental lake, pond, or fountain more than once every other week except to the extent needed to sustain aquatic life, provided that such animals were being actively managed within the water feature at the time of the City’s declaration of the water supply shortage under this chapter.

F. Customers may use no more than three in ches of potable water per week to fill or refill a residential swimming pool or outdoor spa.

Section 14.16.090 Level Four Water Supply Shortage.

A Level Four Water Supply Shortage exists when the City determines a water supply shortage exists and an overall water use reduc tion of between thirty (30) percent and forty (40) percent is necessary to make mo re efficient use of water and appropriately respond to existing water conditions.

A. No customer shall use potable water to irrigate any lawn, landscape or other vegetated area except on the scheduled irrigation days established by the Director. The Director shall specify for each customer one irrigation day per week. This restriction does not apply to the following:

1. Maintenance of vegetation, including trees and shrubs, that is watered using a hand-held bucket or similar container or hand-held hose equipped with positive self-closing water shut-off nozzle or device, or a very low-flow drip type irrigation system when no emitter produces more than two gallons of water per hour.

2. Irrigation of food crops (including fruit trees and vegetable gardens), provided that such irrigation does not exceed three days per week on a schedule established by the Department.

3. Short periods of irrigation for the exclusive purpose of adjusting or repairing an irrigation system.

B. No customer shall use more water during any billing period than the percentage of the base amount per customer category established in the resolution declaring the Level Four Water Supply Shortage, which per centage shall be in the range from eighty (80) percent to twenty-five (25) percent of the base amount.

C. No person shall permit loss or escape of water through brea ks, leaks or other malfunctions in the user’s plumbing or distribution system for more than twenty-four (24) hours after receiving notice from the City.
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Section 14.16.090100 Level FourFive Mandatory Severe Water Supply ShortageConservation Requirements.

A Level Five Severe Water Supply Short age exists when the City determines a water supply shortage exists and an overall water use reduction of between forty (40) percent and fifty (50) percent is necessary to make more efficient use of water and appropriately respond to existing water conditions.

On the tenth day after a resolution declaring the existence of a Level Four water supply shortage becomes effective, the following mandatory wate r conservation requirements shall take effect:

A. No customer shall use potable water to irrigate any lawn, landscape or other vegetated area. This restriction does not apply to the following categories of use unless the City has determined that recycled water is available and may be lawfully applied to the use:

1. Maintenance of vegetation, including trees and shrubs, that are watered using a hand-held bucket or similar c ontainer or a hand-held hose equipped with a positive self-closing water shut-off nozzle or device;.

2. Maintenance of existing landscape to the extent necessary for fire protection;.

3. Maintenance of existing landscape to the extent necessary for soil erosion control;.

4. Maintenance of plant materials identif ied to be rare or essential to the well- being of rare animals;.

5. Maintenance of landscape within ac tive public parks and playing fields, day care centers, school grounds, cemete ries, and golf course greens, provided that such irrigation does not exceed two times per week on a schedule established by theresolution of the City Council and posted by the Municipal Operations Director;.

6. Public works projects and actively irrigated environmental mitigation projects;.

7. Food crops (including fruit trees and vegetable gardens); provided, that such irrigation does not exceed two time s per week on a schedule established and posted by the City’s Municipal Operations DepartmentDirector. 10-40

B. The City will not (1) provide new potable water service, new temporary meters, or new permanent meters or (2) issue statements of immediat e ability to serve or to provide potable water service, except under the following circumstances:

1. A valid, unexpired building permit has been issued for the project; or

2. The project is necessary to protec t public health, safety, and welfare; or

3. The applicant provides substantial evidence of an enforceable commitment that ensures to the satisfaction of the Municipal Operations Director the water demands for the project will be offs et prior to the provision of a new water meter(s).

This restriction does not preclude the rese tting or turn-on of meters to provide continuation of water service or the restoration of service that has been interrupted for a period of one year or less.

C. No customer shall use more water dur ing any billing peri od than the percentage of the base amount per customer category established in the resolution declaring the Level FiveFour Severe Wwater Supply Sshortage, which percentage shall be less than between sixty (60) seventy-five (75) percent to zero (0) percent of the base amount.

D. No person shall permit excessive use, loss or escape of water through breaks, leaks or other malfunctions in the user’s pl umbing or distribution system for more than twenty-four (24) hours after receiving notice from the City.

E. No customer may use potable water to fill or refill an ornamental lake, pond, or fountain, except to the ext ent needed to sustain aquatic life, provided that such animals were being actively managed within the wate r feature at the ti me of the City’s declaration of the water supply shortage under this chapter.

F. No customer may use potable water to f ill or refill a residential swimming pool or outdoor spa.

G. No permits for new pool construction or reconstruction shall be issued.

H. Washing of autos, trucks, trailers, boats, motorhomes and other types of vehicles and mobile equipment is prohibited, other than at a commercial car wash.

Section 14.16.110 Level Six Catast rophic Water Supply Shortage.

A Level Six Catastrophic Water Supply S hortage exists when the City determines a water supply shortage exists and an overall water use reduction of over fifty (50) 10-41

percent is necessary to make more efficient use of water and appropriately respond to existing water conditions. A Level Six conditi on includes a disaster or sudden event such as earthquake, wildfire, power outage, or failure of any water supply or water distribution facility that has or threatens to si gnificantly diminish the reliability or quality of the City’s water supply.

All water uses except those necessary for basic health and safety are prohibited or shall be significantly reduced and all restrictions under a Level Five Severe Water Supply Shortage shall also be in effect, unless ot herwise specified in the resolution declaring the water supply shortage.

Section 14.16.1200 Exemptions.

A. The provisions of th is chapter do not apply to any of the following:
1 . U uses of water necessary to protect pub lic health and safety or for essential government services, such as public works, public utilities, police, fire and other similar emergency services.

2. The filling, operation, and maintenance of a s wimming pool that is open to the public at rates of charge deemed reasonable by the City Council.

3. The washing of refuse, sanitati on and service vehicles owned and operated by a public entity to the extent necessary to ensure public health, safety and welfare, provided that recycled water or a recirculating water system will be used where feasible.

B. Any restrictions imposed by this c hapter that require the reduction of consumption Water cons umption restrictions shall not be applicable to any of the following:

1. Customers who have participated in a fuel load modification program and have received an exemption from the Municipal Operations Director and Fire Marshal. The Municipal Operations Director and Fire Marshal shall only grant exemptions necessary to mitigate the impacts of participation in the fuel modification zone program, such as the need to irrigate replacement vegetation.

2. Customers that operate hospitals, m edical care facilities, nurseries or other businesses whose main stock and trade consists of the sale or cultivation of plants and vegetation, and businesses in which water consumption is an integral part of production or manufacturi ng, provided that su ch customers shall first submit a water conservation plan to, and obtain the approval of, the 10-42

Municipal Operations Director. This exemption does not extend to the use of potable water for the irrigation of landscape areas.

C. The Municipal Operations Director shall approve a water conservation plan only if the plan proposes the maximum feasible reduction in consumption. As a condition of approving the water conservation plan, the Municipal Operations Director may require the use of water conservation devices or practices as he or she deems appropriate to result in the maximum feasible reduction in consumption.

Section 14.16.1130 Relief from Compliance.

A. Intent and Purpose. The City Council recognizes t hat water consumption can increase or decrease because of factors unrelated to wastef ul water use practices.

Many customers have installed water-savin g devices and adopted water conservation practices that make it difficu lt to satisfy the water consum ption restrictions required by this chapter. This section recognizes that adjustments to the base amount may be necessary to ensure that application of this chapter to any particular customer does not produce unjust or inequitable results , especially during water supply shortage Levels One, Two, and Three . In addition, this section rec ognizes unique circumstances may result in undue or dispr oportionate hardship as to a person customer using water which is different from the impacts to wate r users generally. As a general rule, the Municipal Operations Director should not grant relief to any person or customer for any reason in the absence of showing that the person or customer has achieved the maximum feasible reduction in water consumption , such as through the use of water saving devices (e.g., efficient fixtures, controlle rs and drought-resistant or artificial landscaping).

B. Procedures. A person or customer may file an application for seek relief from the provisions of this chapter with the Municipal Operations Director. The application shall be submitted in writing to by submitti ng an application in a form prescribed by the Municipal Operations Department. The Municipal Operations Director may require the submission of additional supporting document ation that he or she deems necessary to grant the application for relief. The Municipal Operations Director shall approve or disapprove the application for relief , in whole or in part, within thirty (30) days after it is filed and deemed complete.

C. Factors to Be Considered.

1. Relief from Water Consumption Rest rictions. In determining whether relief should be granted from water co nsumption restrictions, the Municipal Operations Director shall consider all relevant fa ctors including, but not limited to, the following:
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a. Whether compliance with the wate r conservation requirements then in effect would result in unemployment or layoff of workers; b. Whether additional persons ar e now living or working in the customer’s premises that were not living or working in the premises during all or a portion of the billing periods used to calculate the base amount; c. For residential customers, whet her the usage in the prior billing period was equivalent to or le ss than ten (10) billing units for customers billed on a monthly basis or twenty (20) billing units for customers billed on a bi-monthly basisin a Level One condition , nine (9) billing units in a Level Two condition, eight (8) billing units in a Level Three condition, seven (7) billing units in a Level Four conditi on, and six (6) billing units in a Level Five Severe condition, with the thre sholds doubled for customers billed on a bi-monthly basis (e.g., eighteen (18) billing units in a Level Two condition);
d. Whether the customer had, during all or a portion of the billing periods used to calculate the base amount, begun using water conservation practices that remain in use and that reduced the customer’s water usage by an amount equivalent to the reduction required by the water supply shortage;
e. Whether any current or antic ipated increase in production or manufacturing will require the use of additional water; f. The extent to which irrigation or watering of landscaping has been made necessary by compliance with fuel load modification programs; and g. The extent to which the customer needs to use water to mitigate any emergency health or safety hazards.

2. Relief from All Other Requirements Other than Water Consumption Restrictions. In determining whether re lief should be granted from all requirements other than water c onsumption restrictions, the Municipal Operations Director must find, based on the application and supporting documentation, that:
a. The relief does not constitute a grant of special privilege inconsistent with the limitations imposed by this chapter on other persons and customers;
b. Because of special circumst ances applicable to the customer ’s or person’s property or its use, the strict ap plication of this chapter would 10-44

have an impact on the person or customer that is disproportionate to the impact on other similarly situated persons or customers; c. The condition or situation of the person or customer’s premises for which the relief is sought is not common or general in nature; and d. The person or customer has achieved or will achieve the maximum feasible reduction in water consumption, such as through the use of water saving devices (e.g., efficient fixtur es, controllers and drought-resistant or artificial landscaping)other than in the specific ar ea or areas from which relief is requested.; and
e. Authorizing such relief will not materially affect the ability of the City to effectuate the purpose of this c hapter and will not be detrimental to the public interest.

D. Agreement. The Municipal Operations Director is empowered to enter into an agreement with any person or customer to resolve the application for relief. The agreement Any grant of re lief under this section shall be memorialized in writing a written agreement detailing t he specific areas of relief granted, the conditions thereunder, and any other pertinent provisions, and shall be signed by the person or customer and the Director. The agreement shall fix the rights of the person or customer and the City . During the effectiveness of the agreement, the person or customer shall have no further right to seek relief pursuant to the provisions of this section.

E. Final Decision. The Municipal Operations Director shall notify the person or customer of the decision on th e application for relief by ma iling a notice of the decision to the person or customer by means of first cla ss, postage prepaid, to the address specified on the application. Service shall be deemed to have been completed at the time of deposit in the mail.

F. Appeal of Final Decision. A person or customer may appeal the decision of the Municipal Operations Director by submitting a written request within ninety fifteen (9015) days of the date of the Municipal Operations Director’s written decision. A written appeal request shall be submitted to the City Manager and include the reasons for the request and signature of the person or customer submitting the request. The City Manager may approve or disapprove the appeal within thirty (30) days from receipt of a request. The decision of the City Manager shall be final.

G. Willful Misrepresentation. Notwithstanding any other provision of law, no person shall make any willful misrepresentation of a material fact with respect to any application 10-45

for relief submitted purs uant to this section. Any violation of the provisions of this subsection shall be considered a misdem eanor, punishable as ot herwise provided in this Code.

Section 14.16.1240 Enforcement.

A. Responsibility—Imp lementation Plan. The Municipal Operations Director shall be responsible for the enforcement of this chapter. The Municipal Operations Director shall develop an implementation plan to be used as a guideline for enforcing the provisions of this chapter. The implementation plan shall provide the resources (staffing and equipment) required to ensure the fair and timely execution of these requirements, as well as a detailed execution strategy. In addition, the implementation plan shall ensure, so far as is reasonable under the circumstances , that persons are notified of violations and are provided an opportunity to cure the violation prior to being cited.

B. Violations. Violations of this chapter are subject to criminal, civil, and administrative fines and penalties and are enforceable under the procedures provided in Section 1.04.010 and Chapter 1.05.

BC. Additional Enforcement Options. In addition to the means of ensuring compliance set forth in Section 1.04.010, the The City may elect to impose the following requirements on a customer in the event of a continuing or willful violation:

1. Water Flow Restrictors. The City may install a water flow restrictor of approximately one gallon per minute for services up to one and one-half inches in size and comparatively sized restrictor s for larger services. Prior to doing so, the City shall first provide a minimum of fo rty-eight (48) hours’ notice of its intent to install a water flow restrictor. In the event that a customer refuses to permit the installation of a water flow restrictor following the City’s election to do so, the City may terminate the customer’s water service.

2. Termination of Service. The City may disconnect a customer’s water service for willful violations of mandatory restrictions in this chapter.

Section 14.16.1350 State of Emergency.

If the Governor of the Stat e of California proclaims a state of emergency and thereby issues orders or other general laws that mandate adoption of regul ations by the State Water Resources Control Board and/or water conservation efforts by personscustomers, it is a violation of this section for any customer person to violate any such emergency order or general law lawfully adopted by the State of California. 10-46

CITY OF NEWPORT BEACH

NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that on Tuesday, May 24, 2022, at 4:00 p.m., or soon thereafter as the matter shall be heard, a public hearing will be conducted in the City Council Chambers at 100 Civic Center Drive, Newport Beach. The City Council of the City of Newport Beach will consider the following application:

UPDATED MUNICIPAL CODE 14.16 WATER CONSERVATION ORDINANCE – The City is in the process of updating the water conservation ordinance as originally planned. Initial feedback was received at the November 30, 2021 City Council Study Session.

The new ordinance is recommended to be titled as the Water Conservation and Water Supply Shortage Program. The updated ordinance meets state requirements detailed in the adopted Water Shortage Contingency Plan and Urban Water Management Plan which was adopted on June 8, 2021.

Updates to the ordinance include: new permanent restriction of no landscaping watering between 9:00 a.m. and 5:00 p.m.; six water supply shortage levels; removing 2013 as the baseline water use year; and updating the procedure for determination, declaration, notification and implementation for a water supply shortage.

We encourage our customers and residents to review the draft ordinance. The draft Municipal Code 14.16 Water Conservation Ordinance and Water Supply Shortage Program will be available for public review with the agenda packet on the evening of Thursday, May 19, 2022.

NOTICE IS HEREBY FURTHER GIVEN that this action is not subject to the California Environmental Quality Act (“CEQA”) pursuant to Section 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the envi
ronment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.

All interested parties may appear and present testimony in regard to the report. Prior to the public hearing, the agenda staff report, may be reviewed at the City Clerk’s Office, at 100 Civic Center Drive, Newport Beach, California, 92660 or at the City of Newport Beach website at
www.newportbeachca.gov. Individuals not able to attend the meeting may contact the Utilities Division or access the City’s website after the meeting to review the action on this item.

For questions regarding this public hearing item, please contact the Utilities Department at 949-644-3011. /s/ Leilani I. Brown, MMC, City Clerk, City of Newport Beach

ATTACHMENT C
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11-1

NEWPORT BEACH

City Council Staff Report

COUNCIL STAFF REPORT

CITY OF
May 24, 2022
Agenda Item No. 11
ABSTRACT:

Pursuant to the City Charter of the City of Newport Beach (City), Article VI, the City Clerk is appointed by and serves at the pleasure of the City Council. The terms and conditions of the current City Clerk’s employment are defined by her Sixth Amended and Restated Employment Agreement. From time to time, the City Council and incumbents may renegotiate the employment terms, including adjustments to compensation and/or other benefits. During its Closed Sessions on November 30, 3021; March 8, 2022; March 22, 2022; April 12, 2022; and April 26, 2022, the City Council discussed the terms of the City Clerk’s employment agreement. A Seventh Amended and Restated Employment Agreement (Employment Agreement) for the City Clerk is proposed for the City Council’s consideration and approval.

RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; b) Approve and authorize the Mayor to execute a Seventh Amended and Restated Employment Agreement between the City of Newport Beach and City Clerk Leilani I.

Brown, subject to the terms and conditions approved by the City Council; c) Adopt Resolution No. 2022-33, A Resolution of the City Council of the City of Newport Beach, California, Modifying the Salary Range for the City Clerk; and d) Approve Budget Amendment No. 22-055 appropriating $1,776 from unappropriated General Fund balance to various salary and benefit accounts to implement the terms of the Agreement for the remainder of FY 2021-22.

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Grace K. Leung, City Manager - 949-644-3001,
[email protected]
PREPARED BY: Barbara J. Salvini, Human Resources Director, [email protected]
PHONE: 949-644-3259
TITLE: Resolution No. 2022 -33: Seventh Amended and Restated Employment Agreement for City Clerk
--
Resolution No. 2022-33: Seventh Amended and
Restated Employment Agreement for City Clerk
May 24, 2022

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DISCUSSION:

Leilani I. Brown has served as the City Clerk since November 22, 2008. Her employment is currently governed by a Sixth Amended and Restated Employment Agreement which was approved by the City Council on January 26, 2021. It provided for an initial annual base pay adjustment of 2%; base pay adjustments beginning the pay period which included January 1, 2022, and annually thereafter, equal to the lesser of 2% or the “Cost of Living” as defined by Government Code Section 3511.1; a one-time, lump-sum bonus of $352; and, bi -weekly City -paid contributions to her City -sponsored 457 deferred compensation account equal to 1% of Ms. Brown’s base salary which increased to 1.5% effective the pay period which included January 1, 2022.

The proposed revisions to the Seventh Amended and Restated Employment Agreement (Attachment A) provide for the following:
 Employment agreement through May 24 , 2026 which is designed to ensure a smooth transition of Council appointees over a period of time;  Compensation
o A merit adjustment of 5% in the first year, and cost -of-living adjustments tied to those received by executi ve management employees beginning on January 1, 2023, and each January thereafter, for the remaining term of the agreement.
 Deferred Compensation
o The proposed Seventh Amended and Restated Employment Agreement modifies the existing deferred compensation b enefit in that it provides for an additional 1% of City -paid deferred compensation into the City Clerk’s 457 account in the first year of the agreement only for a total City -paid contribution of 2.5% of base salary paid bi-weekly. After the first year of the agreement, the bi -weekly City -paid contribution to the City Clerk’s 457 account will equal 1.5% of base salary.

Certain other benefits for the City Clerk, such as cafeteria allowances, paid leaves, retirement and supplemental retirement plans, disabil ity, and life insurance benefits are tied to the terms and conditions outlined in the City’s Key and Management Compensation Plan. Except as referenced above and specifically identified in her proposed Seventh Amended and Restated Employment Agreement, the language contained in the City Clerk’s proposed Employment Agreement does not alter any of the previously established benefit relationships with the Key and Management Compensation Plan.

Attached for the City Council’s consideration is the Seventh Amended and Restated Employment Agreement for the City Clerk. If approved by the City Council, Human Resources and Finance staff will work together to implement the terms. Consistent with the City Council’s stated goal of transparency, the Employment Agreement also will be published on the City’s website and readily available for public review.

Resolution No. 2022-33: Seventh Amended and
Restated Employment Agreement for City Clerk
May 24, 2022

11-3
In order to implement the proposed salary adjustment for the City Clerk, the salary range needs to increase to provide sufficient movement for the incumbent. The propos ed resolution (Attachment D, Resolution No. 2022 -33), provides the necessary increase in the salary range for the City Clerk. If adopted, the annual salary range will be $111,202 to $166,789.

FISCAL IMPACT:

The detailed costing information included in Attachment C is provided on a calendar year basis. Because the effective date of the Employment Agreement is mid -fiscal year, the cost to implement the terms of the agreement for FY 2021 -22 is less than the $11,542 shown in Attachment C.

Additionally, certain pension and compensated absences costs are long term in nature and will not impact the current fiscal year’s budget. Should the City Council approve the agreement, the budgetary impact is therefore reduced to $1,776 in FY 2021-22.

Sufficient projected unappropriated General Fund balance is available to fund the required appropriations. Budget Amendment No. 22-055 appropriating $1,776 is included as Attachment B for your review.

ENVIRONMENTAL REVIEW:

Staff recommends the City Council find this action i s not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a projec t as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.

NOTICING:

The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).

ATTACHMENTS:

Attachment A – Seventh Amended and Restated Employment Agreement between the City of Newport Beach and City Clerk Leilani I. Brown
Attachment B – Budget Amendment No. 22-055
Attachment C – Estimate of Costs A ssociated with the Seventh Amended and Restated Employment Agreement for the City Clerk
Attachment D – Resolution No. 2022-33

ATTACHMENT A
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CITY OF NEWPORT BEACH

SEVENTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT

CITY CLERK
This SEVENTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement") is made effective as of May 24, 2022 and is entered into by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter City ("Employer" or "City") and LEILANI I. BROWN ("Employee"), an individual (sometimes collectively referred to herein as "the Parties").

RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.

B. Employee has been continuously employed by City as City Clerk since November 22, 2008. Employee is currently employed under a Sixth Amended and Restated Employment Agreement approved January 26, 2021 ("Employment Agreement").

C. The Parties mutually agree that they intend for this Agreement to supersede all prior Employment Agreements, and that upon execution of this Agreement, any prior Employment Agreements shall have no force or effect.

D. The Parties also mutually agree that this form of Agreement reflects the terms and conditions under which the Parties intend and desire to continue Employee's employment, and that there are no other Agreements between them; oral, written or implied.

NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows:

SECTION 1: Term
A. This Agreement shall become effective May 24, 2022 ("Effective Date") and shall terminate on May 24, 2026 subject to the City's right to terminate Employee's employment at any time as provided for in this Agreement and Section 600 of the City Charter.

B. City's election not to extend this Agreement shall not entitle Employee to Severance pursuant to Section 7 of this Agreement.

Brown Employment Agreement Page 1 of 17
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SECTION 2: Duties and Authority
A Employer agrees to continue to employ Employee as City Clerk, to exercise the powers and authority and to perform the functions and duties specified in the Newport Beach City Charter, the Newport Beach Municipal Code ("NBMC") and all relevant resolutions, rules, regulations, procedures, applicable job description(s) and state codes, as they currently or may in the future exist.

Employee shall exercise such power and authority and perform such other functions and duties, not inconsistent with this Agreement, as Employer, by its City Council, may legally assign.

SECTION 3: Compensation and Performance Evaluation
A Employer agrees to pay Employee an annual base salary of One Hundred, Sixty- Six Thousand, Seven Hundred and Eighty-Nine Dollars ($166,789) ("Base Salary"), effective on the first day of the pay period following approval of the Agreement.

B. Effective the first day of the pay period after January 1, 2023, and each year thereafter, the Base Salary shall be adjusted in accordance with the percentage cost of living adjustment, if any, approved by the City Council for Key and Management Executive Management Employees, as set forth in the Key and Management Compensation Plan ("Compensation Plan").

C. The Base Salary shall be subject to deductions and withholdings of any and all sums required for federal or state income tax, pension contributions, and all other taxes, deductions or withholdings required by then current state, federal or local law, prorated and paid on Employer's normal paydays for the City Manager, City Attorney, City Clerk and any Department Directors not covered by collective bargaining agreements ("Executive Management Employees"). Employer shall also deduct sums Employee is obligated to pay because of participation in plans or programs described in Section 4 of this Agreement. The annual Base Salary of Employee is within the approved salary range adopted by resolution of the City Council and the City Council shall adjust the salary range, as needed, to ensure that the Base Salary remains within the approved salary range.

D. Employer, by the City Council, and Employee may set mutually-agreed upon objectives for each year under this Agreement. Employer, by the City Council, may elect to conduct an evaluation of Employee's performance at any time or times during the period in which this Agreement remains in effect.

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E. Employee's compensation as discussed under this Section is not tied to the compensation of any other City employee or group of City employees, except as expressly provided in this Agreement.

SECTION 4: Employee Benefits
A. Benefit Balances Carried Over. Employee shall not have a break in employment service between the prior Employment Agreement and this Agreement. All of Employee's accrued leave and other benefit balances shall carry over as agreed, and Employee's leave and benefit balances shall continue to accrue under the terms of applicable City policies and this Agreement.

B. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key and Management Compensation Plan ("Compensation Plan"), Executive Management category, at the rate designated for Employee's years of service (9.69 hours per Pay Period). Employee's maximum accrual for Flex Leave is limited to four hundred (400) hours. No Flex Leave shall further accrue beyond said maximum. The right to sell back accumulated Flex Leave shall be consistent with the Compensation Plan, LEAVES, Section H - Leave Sell back.

C. Administrative Leave. Employee shall be entitled to eighty (80) hours of paid Administrative Leave and shall be credited with said leave the first pay period in January of each calendar year. Administrative Leave will not roll over from calendar year to calendar year and must be used each calendar year or no additional entitlement above eighty (80) hours shall arise or occur. Upon separation from employment, Employee shall be entitled to payment of any hours remaining of the eighty (80) entitled hours that were not used in the calendar year. Consistent with the Compensation Plan, there is no right to sell back any accumulated Administrative Leave.

D. Additional Benefits. Unless otherwise provided in this Agreement, Employee shall receive the same benefits as are available to Executive Management Employees under the Compensation Plan and/or Employee Policy Manual ("EPM"), including, but not limited to, cafeteria benefits, LIUNA Supplemental Pension, IRS Section 125 Flexible Spending Accounts, short-term and long-term disability plans, life insurance plans, and deferred compensation plans. This Agreement shall be deemed amended whenever the City Council adopts a resolution or takes action changing these benefits under the Compensation Plan and/or EPM.

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E. Annual Physical Exam. Employee may undergo an annual physical examination and City shall reimburse Employee for the actual cost of the examination up to a maximum of One Thousand Dollars ($1,000).

F. Automobile Allowance. Employee's duties require Employee to be available and to respond to demands of City business outside of regular business hours, including weekends. Employer shall, therefore, pay to Employee an Automobile Allowance of Four Hundred Dollars ($400) per month to respond to these demands of City business.

G. Phone Allowance. Employee shall be entitled to the same phone allowance as provided to any Executive Management Employee.

H. Deferred Compensation. Employer shall contribute to Employee's City- sponsored 457 deferred compensation account as follows: Effective June 4, 2022, Employer shall contribute Two and One-Half Percent (2.5%) of Employee's Base Salary, biweekly, towards Employee's deferred compensation account.

Effective June 3, 2023 and thereafter, Employer shall contribute a total of One and One-Half Percent (1.5%) of Employee's Base Salary, then in effect, biweekly, towards Employee's deferred compensation account.

Under federal law, there is an annual maximum contribution which may be made to an employee's defined contribution plan account. If Employee's account contributions reach the annual maximum, the City will stop making contributions for the remainder of the calendar year and will not owe Employee any additional compensation related to this Section.

City contributions to the deferred compensation account shall cease immediately upon Employee's separation from employment with the City.

I. Amendment of Benefits. Except as expressly provided under this Section 4 of this Agreement, Employee's benefits are not tied to the compensation of any other City employee or group of City employees.

J. Retirement - CalPERS. Employee contributes thirteen percent (13%) of compensation earnable towards Employee's retirement benefit, which is designated as follows: 8% of Employee/Member's total PERSable salary as the Employee/Member Contribution; and 2.42% and 2.58% as cost sharing of the Brown Employment Agreement Page 4 of 17
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Employer Contribution Rate in accordance with Government Code sections 20516(a) and 20516(f) respectively.

The Parties agree that the City will not report as special compensation the value of any Employer Paid Member Contribution. In the event the City Council adopts a Compensation Plan in which retirement contributions for non-safety members of the Key & Management Group exceeds 13%, this Agreement shall be deemed amended and Employee will be subject to the same formula or percentage contribution as it is applied to the non-safety members of the Key & Management Group covered under the Compensation Plan and for the same duration. In no event shall the Employee's retirement contribution be less than 13%. Employee retirement contributions that are in addition to the normal PERS Member Contribution shall be calculated on Base Salary, special pays, and other pays normally reported as "PERSable" compensation, and will be made on a pre-tax basis through payroll deduction, to the extent allowable by the Government Code.

SECTION 5: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non-personal, job- related nature that are reasonably necessary to Employee's service to Employer.

Employer agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to Employer's normal expense reimbursement procedures or such other procedure as may be designated by the City Council. To be eligible for reimbursement, all expenses must be supported by documentation meeting Employer's normal requirements and must be submitted within time limits established by Employer.

B. City shall reimburse Employee for expenses related to attending a reasonable number of League of Cities and other similar conferences relevant to the performance of Employee's duties.

C. The expenses to be budgeted and paid in this Section 5, Paragraphs A and B above, are exclusive of reasonable expenses related to events, participation in organizations, or attendance at events or meetings on behalf of the City as required by the City Council. Employer will separately budget and pay for membership and participation in community, civic or other organizations or events in which Employer requires Employee to participate.

Brown Employment Agreement Page 5 of 17
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SECTION 6: At-Will Employment Relationship
A. Consistent with Article VI of the City Charter, Section 600, Employee is appointed by, and serves at the pleasure of, the City Council. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employer to terminate this Agreement and the employment of Employee at any time, with or without Cause (as defined below), and with or without notice. Employer shall pay Employee for all services through the Effective Date of termination and Employee shall have no right to any additional compensation or payment, except as provided in Section 7, Severance and Benefit Payoff at Termination, and General Release Agreement, below.

B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employee to resign from Employee's employment with Employer, subject only to Employee providing a minimum of forty-five (45) calendar days prior written notice to Employer of the effective date of Employee's resignation. Upon the effective date of resignation, Employee forfeits all compensation and benefits owing for the remainder of the term of this Agreement, as well as any potential "Severance" pay per Section 7 below.

SECTION 7: Severance and Benefit Payoff at Termination, and General Release Agreement
A. Termination Without Cause. If Employer terminates this Agreement (thereby terminating Employee's employment) without Cause, as determined by the affirmative votes of a majority of the members of the City Council at a meeting of the City Council, and if Employee signs, delivers to the City Council, and does not revoke the Agreement of Separation, Severance and General Release Agreement in substantially the same form attached her~to as Exhibit A, as approved by the City Attorney to ensure all potential claims are released, then Employer shall pay Employee beginning on the effective date of termination a lump sum benefit equal to six (6) months of Employee's then applicable Base Salary and shall provide six (6) months of medical coverage as provided under the Compensation Plan, as long as Employee is already enrolled in and receiving medical coverage through the City medical benefits plan at the time of termination.

In accordance with Government Code Section 53260(a), in no event shall Employee receive a cash settlement that is greater than the monthly Base Salary of Employee multiplied by the number of months left on the unexpired term of the Agreement.

Brown Employment Agreement Page 6 of 17
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The lump sum payment described in this Section ?(A) shall be referred to herein as "Severance".

B. Termination With Cause. If Employer terminates this Agreement (thereby terminating Employee's employment) with Cause, as determined by the affirmative votes of a majority of the members of the City Council at a meeting of the City Council, Employee shall not be entitled to any additional compensation or payment, including Severance. If the City Council intends to terminate with Cause, based on a reason or reasons set forth in subparts 5 or 6 immediately below, the Council shall first deliver to Employee a written Notice of Intent to Terminate, stating the reason or reasons for the proposed termination, and providing a thirty (30) day period for Employee to cure. If, in the City Council's independent judgment, Employee cures the identified reason or reasons for Cause termination, Employee shall not be terminated therefor. As used in this Agreement, Cause shall only mean any of the following:

1. Conviction of a felony;

2. Conviction of a misdemeanor arising out of Employee's duties under this Agreement and involving a willful or intentional violation of law;

3. Conviction of any crime involving an "abuse of office or position," as that term is defined in Government Code Section 53243.4;

4. Willful abandonment of duties;

5. Repeated failure to carry out a directive or directives of the City Council made by the City Council as a body; and

6. Any grossly negligent action or inaction by Employee that materially and adversely: (a) impedes or disrupts the operations of Employer or its organizational units; (b) is detrimental to employees or public safety; or (c) violates properly established rules or procedures of Employer.

C. Municipal Elections. In no event may Employee be terminated under this Section within ninety (90) days after any municipal election for the selection or recall of one or more of the members of the City Council.

D. Resignation. If Employee resigns or otherwise terminates this Agreement (thereby terminating Employee's employment), Employee shall not be entitled to any additional compensation or payment, including Severance.

Brown Employment Agreement Page 7 of 17
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E. Upon termination (regardless of reason), Employee shall be compensated for all accrued but unused Flex Leave and unused Administrative Leave.

SECTION 8: Employee's Obligations and Hours of Work
A. Employee shall devote Employee's full energies, interests, abilities and productive time to the performance of this Agreement and utilize Employee's best efforts to promote Employer's interests. Employee's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty (40) hour workweek and may also include time outside normal office hours (including attendance at City Council meetings). Employee's Base Salary includes compensation for all hours worked and Employee shall be classified as an exempt employee for purposes of overtime and shall not be entitled to any form of compensation for overtime. In recognition of the significant time Employee will need to devote outside normal office hours to business activities of Employer and the exempt salaried nature of the employment, Employee is permitted to exercise a flexible work schedule. However, consistent with this flexibility and Employee's participation in activities out of the office, Employee will generally be expected to keep office hours at City Hall during normal business hours, subject to paragraph B of this Section below.

B. Employee is authorized to work the 9/80 schedule as defined in the City's EPM and referred to in the City's Compensation Plan.

SECTION 9: Confidentiality
A. Employee acknowledges that in the course of Employee's employment contemplated herein, Employee will be given or will have access to privileged, confidential and proprietary documents and information, relating to the City, its residents, businesses, employees, and customers ("Confidential Information").

Such Confidential Information may include, but is not limited to, all information given to or otherwise accessible to Employee that is not public information or would be exempt from public disclosure as confidential, protected, exempt or privileged information. Employee shall hold the Confidential Information in trust for City's benefit, and shall not disclose the Confidential Information to others without the express written consent of City.

B. The obligations of Employer and Employee under this Section 9 shall survive the termination of this Agreement.

Brown Employment Agreement Page 8 of 17
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SECTION 10: Outside Activities
A. Consistent with California Government Code Section 1126 et seq., Employee shall not engage in any employment, activity, consulting service or enterprise for compensation, or otherwise, which is, actually or potentially in conflict with, inconsistent, incompatible with, inimical to or which materially interferes with her duties, functionsand responsibilities to Employer.

SECTION 11: Indemnification
A. To the extent mandated by the California Government Code, the City shall defend, hold harmless, and indemnify Employee against any tort, professional liability, claim or demand, or other legal action arising out of an alleged act or omission occurring in the performance of employee's services under this Agreement. This section shall not apply to any intentional tort or crime committed by Employee, to any action outside the course and scope of the services provided by Employee under this Agreement, or any other intentional or malicious conduct or gross negligence of Employee. (California Government Code Sections 825, 995, et. seq.)
B. Notwithstanding the foregoing, and consistent with Government Code Sections 53243 through 53243.3, Employee shall be required, if convicted of a crime involving an abuse of Employee's office or position, to fully reimburse the City for:
(1) any paid leave salary offered by the City to the Employee; (2) any funds provided for the legal criminal defense of the Employee; (3) any cash settlement related to the termination that Employee may receive; and (4) any other payments received by Employee from City that in any way relate to the foregoing.

SECTION 12: Other Terms and Conditions of Employment
A. Employer may fix other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement or applicable law.

Brown Employment Agreement Page 9 of 17
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SECTION 13: Notices
A. Notice pursuant to this Agreement shall be given by depositing written notification in the custody of the United States Postal Service, postage prepaid, addressed as follows:
(1) EMPLOYER:

City of Newport Beach
c/o City Manager
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Leilani I. Brown
at the home address then shown in Employer's files
B. Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable in civil judicial practice. Notice shall be deemed given as of the date of personal service or five days after the date of mailing.

SECTION 14: General Provisions
A. Integration. This Agreement sets forth the final, complete and exclusive agreement between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the Parties are merged into this Agreement or are otherwise rendered null and void. The Parties, by mutual written agreement, may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement. The foregoing notwithstanding, Employee acknowledges that, except as expressly provided in this Agreement, Employee's employment is subject to Employer's generally applicable rules and policies pertaining to employment matters, such as those addressing equal employment opportunity, sexual harassment and violence in the workplace, as they currently or may in the future exist, and Employee's employment is, and will continue to be, at the will of the City Council.

B. Binding Effect. This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest.

C. Choice of Law. This Agreement shall be interpreted and construed pursuant to and in accordance with the laws of the State of California and all applicable City Charter provisions, Codes, Ordinances, Policies and Resolutions.

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D. Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect.

If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances.

E. Conflict with City Charter or Municipal Code. In the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the NBMC, the City Charter or the NBMC shall prevail over this Agreement.

All other City personnel ordinances, resolutions, rules, and policies shall apply to Employee in the same manner as applied to other Executive Management Employees.

F. Employee's Independent Review. Employee acknowledges that Employee has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. Employee acknowledges that Employee has made an independent judgment upon the financial and legal effects of this Agreement and has not relied upon any representation of Employer, its officers, agents or employees other than those expressly set forth in this Agreement.

Employee acknowledges that Employee has been advised to obtain and has availed oneself of legal advice with respect to the terms and provisions of this Agreement.
[Signatures on Next Page.]
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IN WITNESS WHEREOF , the parties have caused this Agreement to be executed on the dates reflected below each signature.

EMPLOYER

CITY OF NEWPORT BEACH,
A Municipal Corporation
By: __________ _
Kevin Muldoon , Mayor
Date: ----- ---- -
ATTEST:

By: ------- - ---
Eric Bryan
Deputy City Clerk
Date: ------ ----

EMPLOYEE,
An Individual
By: ------- ----
Leilani I. Brown
Date: - - ----- ---
Date: ---- ----- -
[End of Signatures]
Attachment: Exhibit A - General Release Agreement
Brown Employment Agreement Page 12 of 17
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Exhibit A

GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between LEILANI I. BROWN ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light of the following facts:

A. Employee's employment with Employer concluded on _______ _ B. Certain disputes have arisen between Employer and Employee.

C. Employer and Employee each deny any liability whatsoever to the other.

D. Employer and Employee wish to fully and finally resolve any and all disputes they may have with each other.

E. Employee is hereby informed that Employee has twenty-one (21) days from receipt of this Agreement to consider it. Employer hereby advises Employee to consult with Employee's legal counsel before signing this Agreement.

F. Employee acknowledges that for a period of seven (7) days following the signing of this Agreement ("Revocation Period"), Employee may revoke the Agreement.This Agreement shall not become effective or enforceable until the day the Revocation Period has expired.

G. Employee acknowledges that the Salary Payment referenced be Io w in paragraph 1 of this Agreement represents all compensation, including salary, accrued benefit balances and reimbursed expenses, due and payable to Employee through the date of employment termination.

Employee also acknowledges that Employer has made this Salary Payment without regard to whether Employee signs this Agreement. The Salary Payment does not constitute consideration for this Agreement.

Employee acknowledges that the Severance referenced below in Brown Employment Agreement Page 13 of 17
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paragraph 2 of this Agreement is in excess of all amounts that are due and owing to Employee as a result of Employee's employment by Employer.

1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a check or checks for all compensation owing to Employee, including salary, accrued benefit balances and reimbursed expenses ("Salary Payment") from Employer.

2. Severance. Within ten (10) days following Employee's signing, delivering to the City Council, and not revoking this Agreement during the Revocation Period, City shall pay Employee the gross amount provided for in Section 7 of the Seventh Amended and Restated Employment Agreement effective May 24, 2022, less applicable deductions, and shall provide the months of medical benefits as provided in that same Section 7 ("Severance"). Employee acknowledges that the Severance is in excess of all amounts due and owing Employeeas a result of Employee's employment by Employer.

3. General Release. In consideration of the Severance to be paid and provided to Employee, and other good and valuable consideration, Employee hereby releases and discharges Employer and its past and present City Council Members, employees, representatives and agents, from all rights, claims, causes of action, and damages, bothknown and unknown, in law or in equity, concerning and/or arising out of Employee's employment with Employer which Employee now has, or ever had, including but not limited to any rights, claims, causes of action or damages arising under Title VII of the Civil Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefits Protection Act, the Family and Medical Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the Private Attorneys General Act of 2004, the California Moore-Brown-Roberti Family Rights Act, the California Unruh Civil Rights Act, the California Fair Employmentand Housing Act, any other federal, state, or local employment practice legislation, or any federal or state common law, including wrongful discharge, breach of express or implied contract, or breach of public policy.

Nothing in this Agreement shall affect the EEOC or DFEH rights and responsibilities to enforce Title VII of the Civil Rights Act of 1964, as amended, the Fair Employment and Housing Act, or any other applicable law, nor shall anything in this Agreement be Brown Employment Agreement Page 14 of 17
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construed as a basis for interfering with Employee's protected right to file a charge with, or participate in an investigation or proceeding conducted by the EEOC or any other state, federal or local government entity; except that, if the EEOC or any other state, federal or local government entity pursues a lawful investigation or issues a complaint on Employee's behalf, Employee specifically waives and releases Employee's right, if any to recover any monetary or other benefits of any sort whatsoever arising from any such investigation, nor will Employee seek reinstatement to Employer employment.

Employee hereby waives and relinquishes all rights and benefits afforded by Section 1542 of the Civil Code of California. Employee understands and acknowledges the significance and consequences of this specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT

THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR

SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF

EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR

HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
Notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of Employer and its past and present City Council Members, employees, representatives and agents, Employee expressly acknowledges that this General Release is intended to include in its effect, without limitation, all claims which Employee does not know or suspect to exist in Employee's favor.

Employee further acknowledges that Employee has read this General Release and that Employee understands that this is a general release, and that Employee intends to be legally bound by the same.

4. Fees. Employee and Employer agree that in the event of litigation relating to this General Release Agreement, the prevailing party shall not be entitled to recover its reasonable attorneys' fees.

5. Older Workers' Benefits Protection Act. It is the intention of the parties that the releases contained in this Agreement apply to all claims of any kind against the Employer. In order to comply with the Older Workers' Benefits Protection Act (29 U.S.C. § 626(f)) and effectuate the release by Employee of any potential claims under Brown Employment Agreement Page 15 of 17
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the federal Age Discrimination in Employment Act, Employee agrees as follows: (i) Employee has carefully reviewed the foregoing Agreement, and understands the terms and conditions it contains; (ii) by entering into this Agreement, Employee is giving up potentially valuable legal rights, and Employee intends to be bound by all the terms and conditions set forth above; (iii) Employee is entering into this Agreement freely, knowingly, and voluntarily; (iv) Employee has had 21 days to consider whether to agree to the terms and conditions set forth in this Agreement; and (v) for a seven (7) day period following Employee's execution of this Agreement, Employee may revoke this Agreement by delivering a written revocation to counsel for the Employer, and this Agreement shall not become effective nor enforceable until the revocation period has expired.
[Signatures on Next Page]
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Dated ______ , 20_ By:

Dated: ______ , 20_ By:

APPROVED AS TO FORM:

CITY ATTORNEY'S OFFICE
By: -------------
Date: --------
ATTEST:

By: --------------
Newport Beach Deputy City Clerk
Date: ----------
Brown Employment Agreement

CITY OF NEWPORT BEACH
Newport Beach Mayor
Leilani I. Brown

BA#: 22-055
Department:

ONE TIME:

Requestor:

CITY MANAGER'S APPROVAL ONLY
COUNCIL APPROVAL REQUIRED City Clerk: Date
EXPLANATION FOR REQUEST:

REVENUES
Fund # Org Object Project Description Increase or (Decrease) $ Column1 -
Subtotal -$

EXPENDITURES
Fund # Org Object Project Description Increase or (Decrease) $ Column1 010 01010005 711001 CITY CLERK ADMIN - SALARIES MISCELLANEOUS 1,390.62 010 01010005 722001 CITY CLERK ADMIN - PENSION EE NORMAL COST MISC 97.34 010 01010005 723002 CITY CLERK ADMIN - PENSION ER NORMAL COST MISC 141.45 010 01010005 724001 CITY CLERK ADMIN - PENSION EE CONTRIB MISC (180.78) 010 01010005 727016 CITY CLERK ADMIN - MEDICARE FRINGES 20.16 010 01010005 728003 CITY CLERK ADMIN - COMPENSATED ABSENCES 48.67 010 01010005 727020 CITY CLERK ADMIN - DEFERRED COMP CITY CONTRIB 258.29 -
-
-
-
-
-
-
-
-
-
Subtotal 1,775.76$

FUND BALANCE
Fund # Object Description Increase or (Decrease) $
010 300000 (1,775.76)
-
-
-
-
-
Subtotal (1,775.76)$
Fund Balance Change Required
To increase salary & benefit appropriations to fund the new Agreement for the City Clerk.

Human Resources
Barbara Salvini
Approvals
Finance Director: Date
-

GENERAL FUND - FUND BALANCE CONTROL
-
-
-
-
from existing budget appropriations
from additional estimated revenues
from unappropriated fund balance
Yes
No
City of Newport Beach

BUDGET AMENDMENT
2021-22
5/16/2022

ATTACHMENT B
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-
□
'
G
-
l I I I I
1 -
I
1 G □
~
I
I
I
□
□
G
✓
L
-
-
l
1 -
-
Current Year 1 3 Year 2 Year 3 Year 4 Total Contract
Cost of Living Adjustment upon implementation 5.00%
Cost of Living Adjustment tied to K&M 2.00% 2.00% 2.00% 2.00% Other Proposals
457b Contribution 1.50% 2.50% 1.50% 1.50% 1.50%
401a Contribution 2.00%
Baseline Compensation
Base Pay $
158,847 $9,039 $11,278 $14,681 $18,151 $53,149
Supplemental Pays 4,800 - - - - -
Pension Contribution 6,627 377 471 612 757 2,217 Cafeteria Plan 20,700 - - - - -
Other City Paid Benefits 1 12,701 447 558 727 898 2,631 SubTotal $203,675 $9,864 $12,307 $16,020 $19,807 $57,997 Other Proposals
457b Contribution 2,383 1,679 1,679 1,679 1,679 6,715 401a Contribution 3,177 - - - - -
SubTotal 5,560 1,679 1,679 1,679 1,679 6,715 Total 209,235$ 11,542$ 13,986$ 17,699$ 21,486$ 64,713$ Base Salary Increase 5.69% 7.10% 9.24% 11.43%
Total Compensation Increase 2 5.52% 6.68% 8.46% 10.27%
2 Measured based on the total of all pay and benefits.
3 Costs are based on the contract year, and not the fiscal year. Therefore the budget amendment required on approval will be of a lesser amount.

Cumulative Impact on Employee Compensation
Notes
1 Includes Medicare, compensated absences, employee assistance program, phone allowances, life insurance, and retiree health savings.

City of Newport Beach
City Clerk Contract Negotiations
April 19, 2022
Key Contract Terms
Summary of Proposal Cost
No change, tied to Executive Management

ATTACHMENT C
11-22

ATTACHMENT D
33 11-23RESOLUTION NO. 2022-_

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF NEWPORT BEACH, CALIFORNIA, MODIFYING THE

SALARY RANGE FOR THE CITY CLERK
WHEREAS, Newport Beach Municipal Code Section 2.28.010 authorizes the City Council of the City of Newport Beach ("City Council") to establish terms of employment, including compensation and benefits, for City of Newport Beach ("City") employees; WHEREAS, the City Council previously adopted Resolution No. 2021-8, which revised the salary range for the City Clerk;
WHEREAS, the City Council has considered the City Clerk's employment agreement and wishes to enter into a multi-year employment agreement with the City Clerk, which will provide for annual base wage adjustments; and WHEREAS, the City Council wishes to modify the salary range for the City Clerk by the amount needed to provide enough movement to accommodate the base wage increases set forth in her employment agreement, as adjusted from year to year.

NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows:

Section 1: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution.

Section 2: The salary range for the City Clerk set forth in this resolution shall prevail over any previously adopted salary range for the City Clerk that conflicts herewith.

Section 3: The salary range for the City Clerk shall be as reflected in Exhibit A, which is attached hereto and incorporated herein by this reference. Thereafter, the salary range for the City Clerk will be adjusted by two percent (2%) at the time of the City's annual budget adoption.

Section 4: The City's Salary Schedule shall be modified as needed to be consistent with this resolution.
11-24
Resolution No. 2022-

Section 5: If any section, subsection , sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional , such decision shall not affect the validity or constitutionality of the remaining portions of this resolution . The City Council hereby declares that it would have passed this resolution , and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional .

Section 6: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines , California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment , directly or indirectly.

Section 7: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution.

ADOPTED this 24th day of May, 2022.

ATTEST:

Leilani I. Brown
City Clerk
APPROVED AS TO FORM :

CITY ATTORNEY 'S OFFICE
A--c Kc--
Aaron C. Harp
City Attorney
Kevin Muldoon
Mayor
Attachment: Exhibit A - Salary Schedule Adjustment
11-25

NEWPORT BEACH CITY COUNCIL APPOINTEE
Annual Base Salary Range
Effective June 4, 2022*
Position Range Annual Salary
Minimum Maximum
City Clerk 01 $111,202 $166,789
*The effective date is dependent upon the City Council's adoption of this Resolution at the May 24, 2022 Regular Council Meeting.

Note: This salary range will adjust 2% at the time of the City's annual budget adoption in accordance with Section 3 of this Resolution.

Exhibit A