Orange City Council
July 11, 2023

CONTRACT
[Well No. 28 Equipping Project (Bid No. 22-23.33)]

THIS CONTRACT (the “Contract”) is made and ente red into as of ___ ___________, 2023 (“Effective Date”) by and between the CITY OF ORANGE, a municipal corporation (“City”), and ENVIRONMENTAL CONSTRUCTION, INC., a California corporation (“Contractor”), who agree as follows.

ARTICLE 1
Work Performed

a. For and in consideration of the payments and agreements hereinafter mentioned, to be made and performed by City, and under the conditions expressed in the two (2) bonds presented to City with this Contract and incorporated herein by this reference, Contrac tor hereby agrees to and shall do all the work and furnish all the labor, materials, tools and equipment, except such as are mentioned in the specifications to be furnished by City to Contractor, necessary to complete in good workmanship and substantial manner the work (the “Work”) described in:

(1) The Construction Plans for Well No. 28 Equipping (Drawing W -698) prepared for City by Tetra Tech, Inc., approved by the “Engineer” (as defined herein below) on April 19, 2023, and consisting of sheets numbered 1 through 81, inclusive (the “Plans”);

(2) The latest edition of the "City of Orange Standard Plans and Specifications" (the “Orange Book”) with the term "Engineer," as used in the Orange Book and in this Contract, to specifically include the City Engineer (or designee);

(3) The "Standard Specifications for Public Works Construction ” (the “Greenbook”), and all amendments thereto, except the definition of “Subcontractor” in Section 1.2 (General – Terms and Definitions) of Part 1 (General Provisions) of the Greenbook, which is hereby amended in its entirety to read as follows: “Subcontractor – An individual, firm, or corporation having a direct contract with the Contractor for the performance of a part of the Work;”

(4) The “City of Orange Standard Special Provisions;”

(5) The Standard Plans; and

(6) Contractor’s Bid Proposal , which is on file with City’s Department of Public Works.

b. Contractor acknowledges that it has received the Plans from City and that a complete copy of the Plans are in its possession and are hereby specifically referred to and by such reference made a part hereof. The Orange Book, Greenbook and City of Orange Standard Special Provisions and Standard Plans are on file with City’s Public Works Director and are hereby specifically referred to and by such reference made a part hereof. Contractor hereby acknowledges that it has read, reviewed and understands the Plans, the Orange Book, the Greenbook, the Special 388
2 Provisions, the Standard Plans, and the Encroachment Permit as they relate to the Work, all of which documents shall be referred to herein collectively as the “Plans and Specifications.”

c. Contractor acknowledges the provisions of Chapter 8.28 of the Orange Municipal Code which requires, among other things, that Contractor utilize City’s exclusive solid waste hauler for the rental of bins for trash and debris removal and imposes mandatory recycling requirements for self-hauled construction and demolition waste. The terms and conditions set forth in this Contract shall control over any terms and conditions in the Plans and Specifications to the contrary.

d. The Work shall be performed in conformity with the Plans and Specifications and the Bid Proposal and all applicable laws, including any and all applicable federal and state labor laws and standards and applicable prevailing wage requirements and any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment.

e. Unless and u ntil otherwise notified in writing by City’s Public Works Director, City’s Senior Civil Engineer, Tuan Cao (“Authorized City Representative”), shall be the person to whom Contractor will report for the performance of the Work hereunder. It is understood that Contractor’s performance hereunder shall be under the direction and supervision of the Authorized City Representative or such other person as City’s Public Works Director may designate from time to time, that Contractor shall coordinate the Work hereun der with the Authorized City Representative to the extent required by the Authorized City Representative, and that all performances required hereunder by Contractor shall be performed to the satisfaction of the Authorized City Representative or City’s Public Works Director.

f. It is expressly agreed by and between the parties hereto that should there be any conflict between the terms of this instrument and Contractor’s Bid Proposal, then this instrument shall control and nothing herein shall be considered as an acceptance of the said terms of said Bid Proposal conflicting herewith.

g. Contractor agrees that it has an obligation to reset all permanent survey markers as stated in the Orange Book, Part 4, Section 400-2, “Permanent Survey Markers ,” and obtain the approval for pre- and post-construction centerline tie sheets and Corner Records from the County of Orange and deliver said approved documents to City as soon as they are received. This obligation extends to any of its subcontractors that have performed work in this regard. This subsection survives completion of the Work, the Notice of Completion, and final payment and shall be an enforceable obligation until fulfilled.

ARTICLE 2
Commencement of Work

Contractor shall commence the Work provided for in this Contract within fifteen (15) days of the date of the issuance by City of a Notice to Proceed and diligently prosecute completion of the Work within five hundred seventy (570) calendar days from such date, unless legal extension is granted in accordance with the terms set forth in the Greenbook. Time is of the essence in this 389
3 Contract. Contractor shall do all things necessary and incidental to the prosecution of Contractor's Work.

ARTICLE 3
Compensation

a. Contractor agrees to receive and accept an amount not to exceed SEVEN MILLION EIGHT HUNDRED TWELVE THOUSAND ONE HUNDRED SIXTY -ONE DOLLARS and 50/100 ($ 7,812,161.50) as compensation for furnishing all materials and doing all the Work contemplated and embraced in this Contract. Said compensation covers (1) all loss or damage arising out of the nature of the Work, from the acts of the elements; (2) any unforeseen difficulties or obstructions which may arise or be encountered in the prosecution of the Work until its acceptance by City, other than as provided below; (3) all risks of every description connected with the Work; (4) all expenses incurred by or in consequence o f the suspension or discontinuance of the Work; and (5) well and faithfully completing the Work, and for the whole thereof, in the manner and according to the Plans and Specifications, and requirements of the Authorized City Representative under them. Retention amounts shall be withheld from progress payments as required by law unless Contractor provides securities in lieu of retention.

b. In addition to the scheduled Work to be performed by the Contractor, the parties recognize that additional, unforeseen work and services may be required by the Authorized City Representative. In anticipation of such contingencies, the sum of SEVEN HUNDRED EIGHTY ONE THOUSAND TWO HUNDRED SIXTEEN DOLLARS and 15/100 ($781,216.15) has been added to the total compensation of this Contract. The Authorized City Representative may approve the additional work and the actual costs incurred by the Contractor in performance of additional work or services in accordance with such amount as the Authorized City Representative and the Contractor may agree upon in advance. Said additional work or services and the amount of compensation therefor, up to the amount of the authorized contingency, shall be memorialized in the form of a Contract Amendment approved by the City Manager on a form acceptable to the City Attorney. The Contractor agrees to perform only that work or those services that are specifically requested by the Authorized City Representative. Any and all additional work and services performed under this Contract shall be completed in such sequence as to assure their completion as expeditiously as is consistent with professional skill and care in accordance with a cost estimate or proposal submitted to and approved by the Authorized City Representative prior to th e commencement of such Work or services.

c. The total amount of compensation under this Contract, including contingencies, shall not exceed EIGHT MILLION FIVE HUNDRED NINETY -THREE THOUSAND THREE HUNDRED SEVENTY-SEVEN DOLLARS and 65/100 ($8,593,377.65).

ARTICLE 4
Licenses

Contractor represents that it and any subcontractors it may engage, possess any and all licenses which are required under state or federal law to perform the Work contemplated by this 390
4 Contract and that Contractor and subcontractors shall maintain all appropriate licenses, including a City of Orange business license, at its cost, during the performance of this Contract.

ARTICLE 5
Guarantees

a. Contractor guarantees the construction and installation of all Work included in the Plans and Specifications for which Contractor has been awarded this Contract.

b. Should any of the materials or equipment installed pursuant to this Contract prove defective or should the Work as a whole prove defective, due to faulty equ ipment, workmanship, materials furnished or methods of installations, or should said Work or any part thereof fail to function properly, as designed, due to any of the above causes within twelve (12) months after the date on which said Work is accepted by City, Contractor shall make repairs and furnish such materials and equipment as are necessary to be furnished and installed within fifteen (15) calendar days after the receipt of a demand from City.

c. Said Work will be deemed defective within the meaning of this guarantee in the event that it fails to function as originally intended either by the Plans and Specifications of this Contract or by the manufacturer(s) of the equipment incorporated into the Work.

d. In the event repairs are not made within fifteen (15) calendar days after Contractor's receipt of a demand from City, City shall have the unqualified option to make any needed repairs or replacements itself or by any other contractor. Contractor shall reimburse City, upon demand, for all expenses i ncurred in restoring said Work to the condition contemplated in this Contract, including the cost of any equipment or materials replaced.

e. It is understood that emergency repairs may, by necessity, be made by City.

Therefore, when defective equipment, materials or workmanship result in emergency repairs by City, Contractor shall reimburse City, upon demand, for all expenses incurred. Emergency repairs will be deemed as those repairs determined by City’s Director of Public Works to be necessary due to a n immediate detriment to the health, safety, welfare or convenience of the residents of City.

ARTICLE 6
Water Quality

a. The Santa Ana Regional Water Quality Control Board (“RWQCB”) has issued National Pollutant Discharge Elimination System (“NPDES”) Per mit No. R8 -2009-0030 (the “Permit”), which governs storm water and non -storm water discharges resulting from municipal activities performed by City or its contractors. In order to comply with the Permit requirements, the County of Orange has prepared a Dr ainage Area Management Plan (“DAMP”), containing Model Maintenance Procedures with Best Management Practices (“BMPs”) that City and its contractors must adhere to. The Model Maintenance Procedures contain pollution prevention and source control techniques to minimize the impact of those activities upon dry -weather urban runoff, storm water runoff, and receiving water quality. Examples include: wash water from 391
5 cleaning of sidewalks or parking lots must be collected and disposed of in the sewer or landscaped areas.

b. The Permit, the DAMP and the Model Maintenance Procedures are on file in the office of City’s Director of Public Works. Contractor hereby acknowledges that it has read, reviewed and understands the Permit, the DAMP and the Model Maintenance Procedures, as they relate to the Work and hereby shall perform the Work in conformance therewith.

ARTICLE 7
Independent Contractor; Contractor not Agent

a. At all times during the term of this Contract, Contractor shall be an independent contractor and not an employee of City. City shall have the right to control Contractor only insofar as the result of Contractor’s services rendered pursuant to this Contrac t. City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Contract. Contractor shall, at its sole cost and expense, furnish all facilities, materials and equipment which may be required for furnishing services pursuant to this Contract. Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its subcontractors, agents and employees, including compliance with social security, withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever. Contractor acknowledges that Contractor and any subcontractors, agents or employees employed by Contractor shall not, under an y circumstances, be considered employees of City, and that they shall not be entitled to any of the benefits or rights afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System be nefits, or health, life, dental, long -term disability or workers' compensation insurance benefits.

b. Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall have no authority, express or implied, to bind City to any obligation whatsoever.

ARTICLE 8
Public Work; Prevailing Wage

a. The Work which is the subject of this Contract is a “public work,” as that term is defined in Section 1720 of the California Labor Code, for which prevailing wages must be paid.

To the extent Contractor’s employees will perform any work that falls within any of the classifications for which the Department of Labor Relations of the State of California promulgates prevailing wage determinations, Contractor hereby agrees that Contractor, and any subcontractor under it, shall pay not less than the specified prevailing ra tes of wages to all such workers . The general prevailing wage determinations for crafts can be located on the website of the Department of Industrial Relations ( www.dir.ca.gov/DLSR). Additionally, to perform work under this Contract, Contractor must meet all State registration requirements and criteria, including project compliance monitoring.

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6 b. Attached hereto as Attachment No. 1 and incorporated herein by this reference is a copy of the provisions of Sections 1725.5, 1771, 1771.1, 1771.4, 1775, 1776, 1777.5, 1813 and 1815 of the California Labor Code. Contractor hereby acknowledges that it has read, reviewed and understands those provisions of the Labor Code and shall prosecute and complete the Work under this Contract in strict compliance with all of those terms and provisions.

c. Contractor shall secure the payment of compensation to its employees in accordance with the provisions of Section 3700 of the California Labor Code. Accordingly, and as required by Section 1861 of the California Labor Code, Contractor hereby certifies as follows:

“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”

d. Contractor shall indemnify, protect, defend and hold harmless City and its officers, employees, contractors and agents, with counsel reasonably acceptable to City, from and against any and all loss, liability, damage, claim, cost, expense, and/or “increase d costs” (including reasonable attorney’s fees, court and litigation costs, and fees of expert witnesses) which result or arise in any way from the noncompliance by Contractor of any applicable local, state and/or federal law, including, without limitation , any applicable federal and/or state labor laws (including, without limitation, the requirement to pay state prevailing wages). It is agreed by the parties that, in connection with the construction of the W ork which is the subject of this Contract, Contractor shall bear all risks of payment or non -payment of state prevailing wages. “Increased costs” as used in this paragraph shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be enacted, adopted or amended from time to time. The foregoing indemnity shall survive termination of this Contract.

ARTICLE 9
Equal Employment Opportunity

During the performance of this Contract, Contractor agrees as follows:

a. Contractor shall not discriminate against any employee or applicant f or employment because of race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law. Contractor shall ensure that applicants are employed and that employees are treated during employment, wi thout regard to their race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law.

Such actions shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. Contractor shall post in conspicuous places, available to employees and applicants for emplo yment, a notice setting forth provisions of this non-discrimination clause.

393
7 b. Contractor shall, in all solicitations and advertisements for employees placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration fo r employment without regard to race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law.

c. Contractor shall cause the foregoing paragraphs (a) and (b) to be inserted in all subcontracts for any Work covered by this Contract, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials.

ARTICLE 10
Conflicts of Interest

Contractor agrees that it shall not make, participate in the making, or in any way attempt to use its position as a contractor to influence any decision of City in which Contractor knows or has reason to know that Contractor, its officers, partners, or employees have a financial interest as defined in Section 87103 of the Government Code. Contractor further agrees that it shall not be eligible to work as the builder for any project for which the design work is part of this Contract.

ARTICLE 11
Indemnity

Contractor shall defend, indemnify and hold harmless City and its officers, officials, agents, and employees from and against:

a. Any and all claims, liabilities, losses, damages, penalties, costs or expenses (including reasonable attorneys' fees and court costs) which City may directly or indirectly sustain or suffer arising from or as a result of the death of any person or any accident, injury, loss or damage whatsoever caused to any person or the property of any person which shall occur on or adjacent t o the real property which is the subject of this Contract, or in connection with performance of this Contract which may be directly or indirectly caused by the acts or omissions of Contractor or its officers, employees, contractors or agents, or as a conse quence of any use, generation, manufacture, storage, disposal, release or threatened release of a hazardous waste or substance. Contractor shall not be responsible for (and such indemnity shall not apply to) any willful misconduct, negligence or breach of this Contract by City or its officers, officials, agents, and employees. The foregoing indemnity shall survive termination of this Contract.

b. Any and all claims under workers’ compensation acts and other employee benefit acts with respect to Contractor’s employees or Contractor’s subcontractor’s employees arising out of Contractor’s Work under this Contract, including any and all claims under any law pertaining to Contractor’s status as an independent contractor.

ARTICLE 12
Insurance

a. Contractor shall procure and maintain for the duration of this Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection 394
8 with the performance of the Work hereunder and the results of that Work by Contractor, its agents, representatives, employees or subcontractors. Any umbrella liability insurance that is provided as part of the general or automobile liability minimums set forth below shall be maintained for the duration of the Contract.

b. Contractor shall maintain the following minimum amount of insurance: the greater of either the limits set forth in (1) through (4), below; or all of the insurance coverage and/or limits carried by or available to Contractor.

(1) General Liability $2,000,000 per occurrence for bodily injury, personal injury and property damage. If
Commercial General Liability insurance
or other form with a general aggregate
limit is used, either the general aggregate
limit shall apply separately to this
project/location or the general aggregate
limit shall be twice the required
occurrence limit.

(2) Automobile Liability $1,000,000 per accident for bodily injury and property damage.

(3) Workers’ Compensation as required by the State of California.

(4) Employer’s Liability $1,000,000 per accident for bodily injury or disease.

c. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits which are applicable to a given loss shall be available to City. No representation is made that the minimum insurance requirements of this Contract are sufficient to cover the obligations of Contractor under this Contract.

d. Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self - insured retentions with respect to City, its officers, officials, agents and employees; or Contractor shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.

e. Each policy of general liability and automotive liability insurance shall contain, or be endorsed to contain, the following provisions:

(1) City, its officers, officials, agents, and employees are declared to be additional insureds under the terms of the policy, with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of Contractor (any auto), and with respect to liability arising out of Work or operations performed by or on behalf of Contractor, including materials, parts or e quipment furnished in connection with such Work or operations. A policy endorsement to that effect shall be provided to City along with the certificate of insurance. In lieu 395
9 of an endorsement, City will accept a copy of the policy(ies) which evidences th at City is an additional insured as a contracting party. The minimum coverage required by Subsection 12.b, above, shall apply to City as an additional insured.

(2) For any claims related to this Contract, Contractor’s insurance coverage shall be primary insurance with respect to City, its officers, officials, agents and employees. Any insurance or self-insurance maintained by City, its officers, officials, agents and employees shall be excess of Contractor’s insurance and shall not contribute with it.

(3) Coverage shall not be canceled, except after thirty (30) days’ prior written notice has been provided to City.

f. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Article 12. The endorsements shall be on forms acceptable to City. All certificates and endorsements are to be received and approved by City before the Work commences. However, failure to do so shall not operate as a waiver of these insurance requirements. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications at any time.

g. All insurance procure d and maintained by Contractor shall be issued by insurers admitted to conduct the pertinent line of insurance business in California and having a rating of Grade A or better and Class VII or better by the latest edition of Best Key Rating Guide.

h. Contractor shall immediately notify City if any required insurance lapses or is otherwise modified and cease performance of this Contract unless otherwise directed by City. In such a case, City may procure insurance or self-insure the risk and charge Contractor for such costs and any and all damages resulting therefrom by way of set-off from any sums owed Contractor.

i. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing insurance to either Contractor or City with respect to the services of Contractor herein, a waiver of any right to subrogation which any such insurer may acquire against City by virtue of the payment of any loss under such insurance.

The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all Work performed by Contractor, its employees, agents and subcontractors. Contractor shall obtain any other endorsement that may be necessary to effect this waiver of subrogation.

j. Contractor shall require and verify that all subcontractors maintain insurance meeting all of the requirements stated herein.

ARTICLE 13
Termination

City, acting through its City Manager or designee, reserves the right to terminate this Contract for any reason by giving five (5) days’ written notice of intent to terminate to Contractor. 396
10 Upon receipt of notice, Contractor shall immediately cease work, unless the notice provides otherwise. Should City terminate this Contract, City shall pay Contractor for services satisfactorily provided and all allowable reimbursements incurred to the date of termination in compliance with this Contract, unless such termination shall be for cause, in which event City may withhold any disputed compensation. City shall not be liable for any claim of lost profits.

ARTICLE 14
Maintenance and Inspection of Records

In accordance with generally accepted account ing principles, Contractor and its subcontractors shall maintain reasonably full and complete books, documents, papers, accounting records and other information (collectively, the “records”) pertaining to the costs of and completion of services performed under this Contract. During the term of this Contract and for a period of three (3) years after termination or completion of this Contract, City shall have the right to inspect and/or audit Contractor's records pertaining to the performance of this Contrac t at Contractor's office. Contractor shall make available all such records for inspection or audit at its offices during normal business hours and upon three (3) days’ notice from City, and copies thereof shall be furnished if requested.

ARTICLE 15
Compliance with Laws

a. Contractor shall be knowledgeable of and comply with all local, state and federal laws pertaining to the subject matter hereof or in any way regulating the activities undertaken by Contractor or any subcontractor hereunder.

b. Contractor represents and warrants that it:

(1) Has complied and shall at all times during the term of this Contract comply, in all respects, with all immigration laws, regulations, statutes, rules, codes, and orders, including, without limitation, the Immigration Reform and Control Act of 1986 (IRCA); and

(2) Has not and will not knowingly employ any individual to perform services under this Contract who is ineligible to work in the United States or under the terms of this Contract; and

(3) Has properly maintained, and shall at all times during the term of this Contract properly mainta in, all related employment documentation records including, without limitation, the completion and maintenance of the Form I -9 for each of Contractor’s employees; and

(4) Has responded, and shall at all times during the term of this Contract respond, in a timely fashion to any government inspection requests relating to immigration law compliance and/or Form I -9 compliance and/or worksite enforcement by the Department of Homeland Security, the Department of Labor, or the Social Security Administration.

397
11 c. Contractor shall require all subcontractors and/or subconsultants to make the same representations and warranties required by this Article 15 when hired to perform services under this Contract.

d. Contractor shall, upon request of City, provide a list of all employees working under this Contract and shall provide, to the reasonable satisfaction of City, verification that all such employees are eligible to work in the United States. All costs associated with such verification shall be borne by Contractor . Once such request has been made, Contractor may not change employees working under this Contract without written notice to City, accompanied by the verification required herein for such employees. Contractor shall require all subcontractors and/or sub-consultants to make the same verification when hired to perform services under this Contract.

e. If Contractor, or a subcontractor or subconsultant, knowingly employs an employee providing Work under this Contract who is not authorized to work in the United States, and/or fails to follow federal laws to determine the status of such employee , such shall constitute a material breach of this Contract and may be cause for immediate termination of th is Contract by City.

f. Contractor shall indemnify and hold City, its officials and employees harmless for, of and from any loss, including but not limited to fines, penalties and corrective measures, City may sustain by reason of Contractor’s failure t o comply with said laws, rules and regulations in connection with the performance of this Contract.

ARTICLE 16
Governing Law and Venue

This Contract shall be construed in accordance with and governed by the laws of the State of California and Contractor shall submit to the juri sdiction of California courts. Venue for any dispute arising under this Contract shall be in Orange County, California.

ARTICLE 17
Integration and Amendment

a. This Contract constitutes the entire agreement of the parties. No other agreement, oral or written, pertaining to the Work to be performed under this Contract shall be of any force or effect unless it is in writing and signed by both parties. Any Work performed which is inconsistent with or in violation of the provisions of this Contract shall not be compensated.

b. Amendments to this Contract must be in writing and signed by both parties. The City Manager is authorized to execute amendments to this Contract up to the amounts specified in Chapter 3.08 of the Orange Municipal Code.

ARTICLE 18
Notice

Except as otherwise provided herein, all notices required under this Contract shall be in writing and delivered personally, by e-mail, or by first class m ail, postage prepaid, to each party at the address listed below. Either party may change the notice address by notifying the other party 398
12 in writing. Notices shall be deemed received upon receipt of same or within three (3) days of deposit in the U.S. Mail, whichever is earlier. Notices sent by e-mail shall be deemed received on the date of the e-mail transmission.

“CONTRACTOR” “CITY”

Environmental Construction, Inc. City of Orange
21550 Oxnard Street, Suite 1060 300 E. Chapman Avenue Woodland Hills, CA 91367 Orange, CA 92866-1591

Attn: Farid Soroudi/President Attn: Jose Diaz/Water Manager

Telephone: (818) 449-8920 Telephone: (714) 288-2475 E-Mail: [email protected] E-Mail: [email protected]

ARTICLE 19
Claim Resolution

City and Contractor agree that the claim resolution process applicable to any claim by Contractor in connection with the Work provided herein shall be subject to the procedures set forth in California P ublic Contract Code Section 9204, attached hereto as Attachment No. 2, and incorporated herein by this reference.

ARTICLE 20
Counterparts

This Contract may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as original signatures.

[Remainder of page intentionally left blank; signatures on next page] 399
13 “CITY”

CONTRACT, BONDS AND INSURANCE
APPROVED BY:

Nathalie Adourian
Senior Assistant City Attorney

CITY OF ORANGE, a municipal corporation

By:

Daniel R. Slater
Mayor of the City of Orange

ATTEST:

Pamela Coleman, City Clerk

“CONTRACTOR”

ENVIRONMENTAL CONSTRUCTION, INC.,
a California corporation

[Note: Signature of Chairman of the By:

Board, President or Vice President is Printed Name:
required] Title:

[Note: Signature of Secretary, Assistant By:

Secretary, Chief Financial Officer or Printed Name:

Assistant Treasurer is also required] Title:

√

400

Attachment No. 1

ATTACHMENT NO. 1

CALIFORNIA LABOR CODE
SECTIONS 1725.5, 1771, 1771.1, 1771.4, 1775, 1776, 1777.5, 1813 and 1815

Section 1725.5. Registration of contractors; mandatory registration; qualifications and application; fees; exempt contractors
A contractor shall be registered pursuant to this section to be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any public work contract that is subject to the requirements of this chapter. For the purposes of this section, “contractor” includes a subcontractor as defined by Section 1722.1. (a) To qualify for registration under this section, a contractor shall do all of the following:
(1)(A) Register with the Department of Industrial Relations in the manner prescribed by the departmen t and pay an initial nonrefundable application fee of four hundred dollars ($400) to qualify for registration under this section and an annual renewal fee on or before July 1 of each year thereafter. The annual renewal fee shall be in a uniform amount set by the Director of Industrial Relations, and the initial registration and renewal fees may be adjusted no more than annually by the director to support the costs specified in Section 1771.3. (B) Beginning June 1, 2019, a contractor may register or renew according to this subdivision in annual increments up to three years from the date of registration. Contractors who wish to do so will be required to prepay the applicable nonrefundable application or renewal fees to qualify for the number of years for which they wish to preregister.
(2) Provide evidence, disclosures, or releases as are necessary to establish all of the following:
(A) Workers' compensation coverage that meets the requirements of Division 4 (commencing with Section 3200) and includes sufficient coverage for any worker whom the contractor employs to perform work that is subject to prevailing wage requirements other than a contractor who is separately registered under this section.

Coverage may be evidenced by a current and valid certificate of workers' compensation insurance or certification of self-insurance required under Section 7125 of the Business and Professions Code. (B) If applicable, the contractor is licensed in accordance with Chapter 9 (commencing with Section 7000) of the Business and Professions Code.
(C) The contractor does not have any delinquent liability to an employee or the state for any assessment of back wages or related damages, interest, fines, or penalties pursuant to any final judgment, order, or determination by a court or any federal, state, or local administrative agency, including a confirmed arbitration award. However, for purposes of this paragraph, the contractor shall not be disqualified for any judgment, order, or determination that is under appeal, provided that the contractor has sec ured the payment of any amount eventually found due through a bond or other appropriate means. (D) The contractor is not currently debarred under Section 1777.1 or under any other federal or state law providing for the debarment of contractors from public works. (E) The contractor has not bid on a public works contract, been listed in a bid proposal, or engaged i n the performance of a contract for public works without being lawfully registered in accordance with this section, within the preceding 12 months or since the effective date of the requirements set forth in subdivision (e), whichever is earlier. If a contractor is found to be in violation of the requirements of this paragraph, the period of disqualification shall be waived if both of the following are true:
401

Attachment No. 1

(i) The contractor has not previously been found to be in violation of the requirements of this paragraph within the preceding 12 months.
(ii) The contractor pays an additional nonrefundable penalty registration fee of two thousand dollars ($2,000). (b) Fees received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section. (c) A contractor who fails to pay the renewal fee required under paragraph (1) of subdivision (a) on or before the expiration of any prior period of registration shall be prohibited from bidding on or engaging in the performance of any contract for public work until once again registered pursuant to this section. If the failure to pay the renewal fee was inadvertent, the contractor may renew its registration retroactively by paying an additional nonrefundable penalty renewal fee equal to the amount of the renewal fee within 90 days of the due date of the renewal fee.
(d) If, after a body awarding a contract accepts the contractor's bid or awards the contract, the work covered by the bid or contract is determined to be a public work to which Section 1771 applies, either as the result of a determination by the director pursuant to Section 1773.5 or a court decision, the requirements of this section shall not apply, subject to the following requirements:
(1) The body that awarded the contract failed, in the bid specification or in the contract documents, to identify as a public work that portion of the work that the determination or decision subsequently classifies as a public work.
(2) Within 20 days following service of notice on the awarding body of a determination by the Director of Industrial Relations pursuant to Section 1773.5 or a decision by a court that the contract was for public work as defined in this chapter, the contractor and any subcontractors are registered under this section or are replaced by a contractor or subcontractors who are registered under this section. (3) The requirements of this section shall apply prospectively only to any subsequent bid, bid proposal, contract, or work performed after the awarding body is served with notice of the determination or decision referred to in paragraph (2).
(e) The requirements of this section shall apply to any bid proposal submitted on or after March 1, 2015, to any contract for public work, as defined in this chapter, executed on or after April 1, 2015, and to any work performed under a contract for public work on or after January 1, 2018, regardless of when the contract for public work was executed.
(f) This section does not apply to work performed on a public works project of twenty -five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.

Section 1771. Payment of general prevailing rate

Except for public works projects of one thousand dollars ($1,000) or less, not less than the g eneral prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work fixed as provided in this chapter, shall be paid to all workers employed on public works.

This section is applicable only to work performed under contract, and is not applicable to work carried out by a public agency with its own forces. This section is applicable to contracts let for maintenance work. 402

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Section 1771.1 . Registration as a contractor or subcontractor required prior to bid submission; exceptions; violations; penalties
(a) A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code , or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform publ ic work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code , provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.
(b) Notice of the requirement described in subdivision (a) shall be included in all bid invitations and public works contracts, and a bid shall not be accepted nor any contract or subcontract entered into without proof of the contractor or subcontractor's current registration to perform public work pursuant to Section 1725.5. (c) An inadvertent error in listing a subcontractor who is not registered pursuant to Section 1725.5 in a bid proposal shall not be grounds for filing a bid protest or grounds for considering the bid nonresponsive, provided that any of the following apply:
(1) The subcontractor is registered prior to the bid opening. (2) Within 24 hours after the bid opening, the subcontractor is registered and has paid the penalty registration fee specified in subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5. (3) The subcontractor is replaced by another register ed subcontractor pursuant to Section 4107 of the Public Contract Code.
(d) Failure by a subcontractor to be registered to perform public work as required by subdivision (a) shall be grounds under Section 4107 of the Public Contract Code for the contractor, with the consent of the awarding authority, to substitute a subcontractor who is registered to perform public work pursuant to Section 1725.5 in place of the unregistered subcontractor.
(e) The department shall maintain on its Internet Web site a list of contractors who are currently registered to perform public work pursuant to Section 1725.5.
(f) A contract entered into with any contractor or subcontractor in violation of subdivision (a) shall be subject to cancellation, provided that a contract for public work shall not be unlawful, void, or voidable solely due to the failure of the awarding body, contractor, or any subcontractor to comply with the requirements of Section 1725.5 or this section.
(g) If the Labor Commissioner or his or her designee determines that a contractor or subcontractor engaged in the performance of any public work contract without having been registered in accordance with this section, the contractor or subcontractor shall forfeit, as a civil penalty to the state, one hundred dollars ($100) for each day of work performed in violation of the registration requirement, not to exceed an aggregate penalty of eight thousand dollars ($8,000) in addition to any penalty registration fee assessed pursuant to clause (ii) of subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5. (h)(1) In addition to, or in lieu of, any other penalty or sanction authorized pursuant to this chapter, a higher tiered public works contractor or subcontractor who is found to have entered into a subcontract with an unregistered lower tier subcontractor to perform any public work in violation of the requirements of Section 1725.5 or this section shall be subject to forfeiture, as a civil penalty to the state, of one hundred dollars ($100) 403

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for each day the unregistered lower tier subcontractor performs work in violation of the registration requirement, not to exceed an aggregate penalty of ten thousand dollars ($10,000). (2) The Labor Commissioner shall use the same standards specified in subparagraph (A) of paragraph (2) of subdivision (a) of Section 1775 when determining the severity of the violation and what penalty to assess, and may waive the penalty for a first time violation that was unintentional and did not hinder the Labor Commissioner's ability to monitor and enforce compliance with the requirements of this chapter. (3) A higher tiered public works contractor or subcontractor shall not be liable for penalties assessed pursuant to paragraph (1) if the lower tier subcontractor's performance is in violation of the requirements of Section 1725.5 due to the revocation of a previously approved registration. (4) A subcontractor shall not be liable for any penal ties assessed against a higher tiered public works contractor or subcontractor pursuant to paragraph (1). A higher tiered public works contractor or subcontractor may not require a lower tiered subcontractor to indemnify or otherwise be liable for any penalties pursuant to paragraph (1).
(i) The Labor Commissioner or his or her designee shall issue a civil wage and penalty assessment, in accordance with the provisions of Section 1741, upon determination of penalties pursuant to s ubdivision (g) and subparagraph (B) of paragraph (1) of subdivision (h). Review of a civil wage and penalty assessment issued under this subdivision may be requested in accordance with the provisions of Section 1742 . The regulations of the Director of Industrial Relations, which govern proceedings for review of civil wage and penalty assessments and the withholding of contract payments under Article 1 (commencing with Section 1720) and Article 2 (commencing with Section 1770), shall apply. (j)(1) Where a contractor or subcontractor engages in the performance of any public work contract without having been registered in violation of the requirements of Section 1725.5 or this section, the Labor Commissioner shall issue and serve a stop order prohibiting the use of the unregistered contractor or the unregistered subcontractor on all public works until the unregistered contractor or unregistered subcontractor is registered. The stop order shall not apply to work by registered contractors or subcontractors on the public work.
(2) A stop order may be personally served upon the contractor or subcontractor by either of the following methods:
(A) Manual delivery of the order to the contractor or subcontractor personally. (B) Leaving signed copies of the order with the person who is apparently in charge at the site of the public work and by thereafter mailing copies of the order by first class mail, postag e prepaid to the con tractor or subcontractor at one of the following:
(i) The address of the contractor or subcontractor on file with either the Secretary of State or the Contractors' State License Board.
(ii) If the contractor or subcontractor has no addr ess on file with the Secretary of State or the Contractors' State License Board, the address of the site of the public work. (3) The stop order shall be effective immediately upon service and shall be subject to appeal by the party contracting with the unregistered contractor or subcontractor, by the unregistered contractor or subcontractor, or both. The appeal, hearing, and any further review of the hearing decision shall be governed by the procedures, time limits, and other requirements specified in subdivision (a) of Section 238.1. 404

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(4) Any employee of an unregistered contractor or subcontractor who is affected by a work stoppage ordered by the commissioner pursuant to this subdivision shall be paid at his or her regular hourly prevailing wage rate by that employer for any hours the employee would have worked but for the work stoppage, not to exceed 10 days.
(k) Failure of a contractor or subcontractor, owner, director, officer, or managing agent of the contractor or subcontractor to observe a stop order issued and served upon him or her pursuant to subdivision (j) is guilty of a misdemeanor punishable by imprisonment in county jail not exceeding 60 days or by a fine not exceeding ten thousand dollars ($10,000), or both.
(l) This section shall apply to any bid proposal submitted on or after March 1, 2015, and any contract for public work entered into on or after April 1, 2015. This section shall also apply to the performance of any public work, as defined in this chapter, on or after January 1, 2018, regardless of when the contract for public work was entered.
(m) Penalties received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section. (n) This section shall not apply to work performed on a public works project of twenty -five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.

Section 1771.4. Additional requirements when bidding and awarding public works contracts

(a) All of the following are applicable to all public works projects that are otherwise subject to the requirements of this chapter:
(1) The call for bids and contract documents shall specify that the project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. (2) The awarding body shall post or require the prime contractor to post job site notices, as prescribed by regulation.
(3) Each contractor and subcontractor shall furnish the records specified in Section 1776 directly to the Labor Commissioner, in the following manner:
(A) At least monthly or more frequently if specified in the contract with the awarding body. (B) In a format prescribed by the Labor Commissioner.
(4) If the contractor or subcontractor is not registered pursuant to Section 1725.5 and is performing work on a project for which registration is not required because of subdivision (f) of Section 1725.5, the unregistered contractor or subcontractor is not required to furnish the records specified in Section 1776 directly to the Labor Commissioner but shall retain the records specified in Section 1776 for at least three years after completion of the work.
(5) The department shall undertake those activities it deems necessary to monitor and enforce compliance with prevailing wage requirements.
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(b) The Labor Commissioner may exempt a public works project from compliance with all or part of the requirements of subdivision (a) if either of the following occurs:
(1) The awarding body has enforced an approved labor compliance program, as defined in Section 1771.5, on all public works projects under its authority, except those deemed exempt pursuant to subdivision (a) of Section 1771.5, continuously since December 31, 2011.
(2) The awarding body has entered into a collective bargaining agreement that binds all contractors performing work on the project and that includes a mechanism for resolving disputes about the payment of wages. (c) The requirements of paragraph (1) of subdivision (a) shall only apply to contracts for public works projects awarded on or after January 1, 2015.
(d) The requirements of paragraph (3) of subdivision (a) shall apply to all contracts for public work, whether new or ongoing, on or after January 1, 2016.

Section 1775. Penalties for violations

(a)(1) The contractor and any subcontractor under the contractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rates as determined by the director for the work or craft in which the worker is employed for any public work done under the contract by the contractor or, except as provided in subdivision (b), by any subcontractor under the contractor.
(2)(A) The amount of the penalty shall be determined by the Labor Commissioner based on consideration of both of the following:
(i) Whether the failure of the contractor or subcontractor to pay the correct rate of per diem wages was a good faith mistake and, if so, the error was promptly and voluntarily corrected when brought to the attention of the contractor or subcontractor.
(ii) Whether the contractor or subcontractor has a prior record of failing to meet its prevailing wage obligations.
(B)(i) The penalty may not be less than forty dollars ($40) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, unless the failure of the contractor or subcontractor to pay the correct rate of per diem wages was a good faith mistake and, if so, the error was promptly and voluntarily corrected when brought to the attention of the contractor or subcontractor. (ii) The penalty may not be less than eighty dollars ($80) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, if the contractor or subcontractor has been assessed penalties within the previous three years for failing to meet its prevailing wage obligations on a separate contract, unless those penalties were subsequently withdrawn or overturned. (iii) The penalty may not be less than one hundred twenty dollars ($120) for each calendar day, or portion thereof, for each worker pai d less than the prevailing wage rate, if the Labor Commissioner determines that the violation was willful, as defined in subdivision (c) of Section 1777.1. (C) If the amount due under this section is col lected from the contractor or subcontractor, any outstanding wage claim under Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 against that contractor 406

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or subcontractor shall be satisfied before applying that amount to the penalty imposed on that contractor or subcontractor pursuant to this section.
(D) The determination of the Labor Commissioner as to the amount of the penalty shall be reviewable only for abuse of discretion.
(E) The difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the contractor or subcontractor, and the body awarding the contract shall cause to be inserted in the contract a stipulation that this section will be complied with. (b) If a worker employed by a subcontractor on a public works project is not paid the general prevailing rate of per diem wages by the subcontractor, the prime contractor of the project is not liable for any penalties under subdivision (a) unless the prime contractor had knowledge of that failure of the subcontractor to pay the specified prevailing rate of wages to those workers or unless the prime contractor fails to comply with all of the following requirements:
(1) The contract executed between the contractor and t he subcontractor for the performance of work on the public works project shall include a copy of the provisions of this section and Sections 1771, 1776, 1777.5, 1813, and 1815.
(2) The contractor shall monitor the payment of the specified general prevailing rate of per diem wages by the subcontractor to the employees, by periodic review of the certified payroll records of the subcontractor. (3) Upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages, the contractor shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for work performed on the public works project. (4) Prior to making final payment to the subcontractor for work performed on the public works project, the contractor shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages to his or her employees on the public works project and any amounts due pursuant to Section 1813. (c) The Division of Labor Standards Enforcement shall notify the contractor on a public works project within 15 days of the receipt by the Division of Labor Standards Enforcement of a complaint of the failure of a subcontractor on that public works project to pay workers the general prevailing rate of per diem wages.

Section 1776. Payroll records; retention; inspection; redacted information; agencies entitled to receive nonredacted copies of certified records; noncompliance penalties; rules

(a) Each contractor and subcontractor shall keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journey man, apprentice, worker, or other employee employed by him or her in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct. (2) The employer has complied with the requirements of Sections 1771 , 1811, and 1815 for any work performed by his or her employees on the public works project. 407

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(b) The payroll records enumerated under subdivision (a) shall be certified and shall be available for inspection at all reasonable hours at the principal office of the contractor on the following basis:
(1) A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or his or her authorized representative on request. (2) A certified copy of all payroll records enumerated in subdivision (a) shall be made available for inspection or furnished upon request to a representative of the body awarding the contract and the Division of Labor Standards Enforcement of the Department of Industrial Relations. (3) A certified copy of all payroll records enumerated in subdivision (a) shall be made available upon request by the public for inspection or for copies thereof. However, a request by the public shall be made through either the body awarding the contract or the Division of Labor Standards Enforcement. If the requested payroll records have not been provided pursuant to paragraph (2), the requesting party shall, prior to being provided the records, reimburse the costs of preparation by the contractor, subcontractors, and the entity through which the request was made. The public may not be given access to the records at the principal office of the contractor.
(c) Unless required to be furnished directly to the Labor Commis sioner in accordance with paragraph (3) of subdivision (a) of Section 1771.4, the certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement or shall contain the same information as the forms provided by the division.

The payroll records may consist of printouts of payroll data that are maintained as computer records, if the printouts contain the same information as the forms provided by the division and the printouts are verified in the manner specified in subdivision (a).
(d) A contractor or subcontractor shall file a certified copy of the records enumerated in subdivision (a) with the entity that requested the records within 10 days after receipt of a written request. (e) Except as provided in subdivision (f), any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by the awarding body or the Division of Labor Standards Enforcement shall be marked or obliterated to prevent disclosure of an individual's name, address, and social security number. The name and address of the contractor awarded the contract or the subcontractor performing the contract shall not be marked or obliterated. Any copy of records made available for inspection by, or furnished to, a multiemployer Taft -Hartley trust fund ( 29 U.S.C. Sec. 186(c)(5) ) that requests the records for the purposes of allocating contributions to parti cipants shall be marked or obliterated only to prevent disclosure of an individual's full social security number, but shall provide the last four digits of the social security number. Any copy of records made available for inspection by, or furnished to, a joint labor- management committee established pursuant to the federal Labor Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be marked or obliterated only to prevent disclosure of an individual's social security number.
(f)(1) Notwithstanding any other provision of law, agencies that are included in the Joint Enforcement Strike Force on the Underground Economy established pursuant to Section 329 of the Unemployment Insurance Code and other law enforcement agencies investigating violations of law shall, upon request, be provided nonredacted copies of certified payroll records. Any copies of records or certified payroll made available for inspection and furnished upon request to the public by an agency included in the Joint Enforcement Strike Force on the Underground Economy or to a law enforcement agency investigating a violation of law shall be marked or redacted to prevent disclosure of an individual's name, address, and social security number. 408

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(2) An employer shall not be liable for damages in a civil action for any reasonable act or omission taken in good faith in compliance with this subdivision.
(g) The contractor shall inform the body awarding the contract of the location of the records enumerated under subdivision (a), including the street address, city, and county, and shall, within five working days, provide a notice of a change of location and address.
(h) The contractor or subcontractor has 10 days in which to comply subsequent to receipt of a written notice requesting the records enumerated in subdivision (a). In the event that the contractor or subcontractor fails to comply within the 10-day period, he or she shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due. A contractor is not subject to a penalty assessment pursuant to this section due to the failure of a subcontractor to compl y with this section.
(i) The body awarding the contract shall cause to be inserted in the contract stipulations to effectuate this section.
(j) The director shall adopt rules consistent with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code ) and the Information Practices Act of 1977 (Title 1.8 (commencing with Section 1798) of Part 4 of Division 3 of the Civil Code) governing the release of these records, including the establishment of reasonable fees to be charged for reproducing copies of records required by this section.

Section 1777.5. Employment of registered apprentices; wages; standards; number; apprenticeable craft or trade; exemptions; contributions; compliance program

(a)(1) This chapter does not prevent the employment upon public works of properly registered apprentices who are active participants in an approved apprenticeship program. (2) For purposes of this chapter, “apprenticeship program” means a program under the jurisdiction of the California Apprenticeship Council established pursuant to Section 3070. (b)(1) Every apprentice employed upon public works shall be paid the prevailing rate of per diem wages for apprentices in the trade to which he or she is registered and shall be employed only at the work of the craft or trade to which he or she is registered.
(2) Unless otherwise provided by a collective bargaining agreement, when a contractor requests the dispatch of an apprentice pursuant to this section to perform work on a public works project and requires the apprentice to fill out an application or undergo testing, training, an examination, or other preemployment process as a condition of employment, the apprentice shall be paid for the time spent on the required preemployment activity, including travel time to and from the required activity, if any, at the prevailing rate of per diem wages for apprentices in the trade to which h e or she is registered. Unless otherwise provided by a collective bargaining agreement, a contractor is not required to compensate an apprentice for the time spent on preemployment activities if the apprentice is required to take a preemployment drug or alcohol test and he or she fails to pass that test.
(c) Only apprentices, as defined in Section 3077, who are in training under apprenticeship standards that have been approved by the Chief of the Division of Apprenticeship Standards and who are parties to written 409

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apprentice agreements under Chapter 4 (commencing with Section 3070) of Division 3 are eligible to be employed at the apprentice wage rate on public works. The employment and training of each apprentice shall be in accordance with either of the following:
(1) The apprenticeship standards and apprentice agreements under which he or she is training. (2) The rules and regulations of the California Apprenticeship Council. (d) If the contractor to whom the contract is awarded by the state or any political subdivision, in performing any of the work under the contract, employs workers in any apprenticeable craft or trade, the contractor shall employ apprentices in at least the ratio set forth in this section and may apply to any apprenticeship program in the craft or trade that can provide app rentices to the site of the public work for a certificate approving the contractor under the apprenticeship standards for the employment and training of apprentices in the area or industry affected. However, the decision of the apprenticeship program to approve or deny a certificate shall be subject to review by the Administrator of Apprenticeship. The apprenticeship program or programs, upon approving the contractor, shall arrange for the dispatch of apprentices to the contractor. A contractor covered by an apprenticeship program's standards shall not be required to submit any additional application in order to include additional public works contracts under that program. “Apprenticeable craft or trade,” as used in this section, means a craft or trade d etermined as an apprenticeable occupation in accordance with rules and regulations prescribed by the California Apprenticeship Council. As used in this section, “contractor” includes any subcontractor under a contractor who performs any public works not e xcluded by subdivision (o).
(e) Before commencing work on a contract for public works, every contractor shall submit contract award information to an applicable apprenticeship program that can supply apprentices to the site of the public work.

The information submitted shall include an estimate of journeyman hours to be performed under the contract, the number of apprentices proposed to be employed, and the approximate dates the apprentices would be employed. A copy of this information shall also be submi tted to the awarding body, if requested by the awarding body. Within 60 days after concluding work on the contract, each contractor and subcontractor shall submit to the awarding body, if requested, and to the apprenticeship program a verified statement of the journeyman and apprentice hours performed on the contract. The information under this subdivision shall be public. The apprenticeship programs shall retain this information for 12 months. (f) The apprenticeship program supplying apprentices to the area of the site of the public work shall ensure equal employment and affirmative action in apprenticeship for women and minorities. (g) The ratio of work performed by apprentices to journeymen employed in a particular craft or trade on the public work may be no higher than the ratio stipulated in the apprenticeship standards under which the apprenticeship program operates if the contractor agrees to be bound by those standards. However, except as otherwise provided in this section, in no case shall the ratio be less than one hour of apprentice work for every five hours of journeyman work.
(h) This ratio of apprentice work to journeyman work shall apply during any day or portion of a day when any journeyman is employed at the jobsite and shall be computed on the basis of the hours worked during the day by journeymen so employed. Any work performed by a journeyman in excess of eight hours per day or 40 hours per week shall not be used to calculate the ratio. The contractor shall employ apprentices for the number of hours computed as above before the end of the contract or, in the case of a subcontractor, before the end of the subcontract. However, the contractor shall endeavor, to the greatest extent possible, to employ apprentices during the same time peri od that the journeymen in the same craft or trade are employed at the jobsite. When an hourly apprenticeship ratio is not feasible for a particular craft or trade, the Administrator 410

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of Apprenticeship, upon application of an apprenticeship program, may ord er a minimum ratio of not less than one apprentice for each five journeymen in a craft or trade classification. (i) A contractor covered by this section who has agreed to be covered by an apprenticeship program's standards upon the issuance of the approval certificate, or who has been previously approved for an apprenticeship program in the craft or trade, shall employ the number of apprentices or the ratio of apprentices to journeymen stipulated in the applicable apprenticeship standards, but in no event l ess than the 1 -to-5 ratio required by subdivision (g).
(j) Upon proper showing by a contractor that he or she employs apprentices in a particular craft or trade in the state on all of his or her contracts on an annual average of not less than one hour of apprentice work for every five hours of labor performed by journeymen, the Administrator of Apprenticeship may grant a certificate exempting the contractor from the 1-to-5 hourly ratio, as set forth in this section for that craft or trade. (k) An apprenticeship program has the discretion to grant to a participating contractor or contractor association a certificate, which shall be subject to the approval of the Administrator of Apprenticeship, exempting the contractor from the 1-to-5 ratio set forth in this section when it finds that any one of the following conditions is met:
(1) Unemployment for the previous three-month period in the area exceeds an average of 15 percent. (2) The number of apprentices in training in the area exceeds a ratio of 1 to 5. (3) There is a showing that the apprenticeable craft or trade is replacing at least one-thirtieth of its journeymen annually through apprenticeship training, either on a statewide basis or on a local basis. (4) Assignment of an apprentice to any work performed under a public works contract would create a condition that would jeopardize his or her life or the life, safety, or property of fellow employees or the public at large, or the specific task to which the apprentice is to be assigned is of a nature that tra ining cannot be provided by a journeyman.
(l) If an exemption is granted pursuant to subdivision (k) to an organization that represents contractors in a specific trade from the 1-to-5 ratio on a local or statewide basis, the member contractors shall not be required to submit individual applications for approval to local joint apprenticeship committees, if they are already covered by the local apprenticeship standards.
(m)(1) A contractor to whom a contract is awarded, who, in performing any of the work unde r the contract, employs journeymen or apprentices in any apprenticeable craft or trade shall contribute to the California Apprenticeship Council the same amount that the director determines is the prevailing amount of apprenticeship training contributions in the area of the public works site. A contractor may take as a credit for payments to the council any amounts paid by the contractor to an approved apprenticeship program that can supply apprentices to the site of the public works project. The contractor may add the amount of the contributions in computing his or her bid for the contract. (2)(A) At the conclusion of the 2002 -03 fiscal year and each fiscal year thereafter, the California Apprenticeship Council shall distribute training contributions received by the council under this subdivision, less the expenses of the Department of Industrial Relations for administering this subdivision, by making grants to approved apprenticeship programs for the purpose of training apprentices. The grant funds shall be distributed as follows:
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(i) If there is an approved multiemployer apprenticeship program serving the same craft or trade and geographic area for which the training contributions were made to the council, a grant to that program shall be made.
(ii) If there are two or more approved multiemployer apprenticeship programs serving the same craft or trade and county for which the training contributions were made to the council, the grant shall be divided among those programs based on the number of apprentices from that county registered in each program. (iii) All training contributions not distributed under clauses (i) and (ii) shall be used to defray the future expenses of the Department of Industrial Relations for the administration and enforcement of appren ticeship and preapprenticeship standards and requirements under this code. (B) An apprenticeship program shall only be eligible to receive grant funds pursuant to this subdivision if the apprenticeship program agrees, prior to the receipt of any grant funds, to keep adequate records that document the expenditure of grant funds and to make all records available to the Department of Industrial Relations so that the Department of Industrial Relations is able to verify that grant funds were used s olely for trai ning apprentices. For purposes of this subparagraph, adequate records include, but are not limited to, invoices, receipts, and canceled checks that account for the expenditure of grant funds. This subparagraph shall not be deemed to require an apprentice ship program to provide the Department of Industrial Relations with more documentation than is necessary to verify the appropriate expenditure of grant funds made pursuant to this subdivision.
(C) The Department of Industrial Relations shall verify that grants made pursuant to this subdivision are used solely to fund training apprentices. If an apprenticeship program is unable to demonstrate how grant funds are expended or if an apprenticeship program is found to be using grant funds for purposes other than training apprentices, then the apprenticeship program shall not be eligible to receive any future grant pursuant to this subdivision and the Department of Industrial Relations may initiate the process to rescind the registration of the apprenticeship program.
(3) All training contributions received pursuant to this subdivision shall be deposited in the Apprenticeship Training Contribution Fund, which is hereby created in the State Treasury. Upon appropriation by the Legislature, all moneys in the Apprent iceship Training Contribution Fund shall be used for the purpose of carrying out this subdivision and to pay the expenses of the Department of Industrial Relations. (n) The body awarding the contract shall cause to be inserted in the contract stipulations to effectuate this section. The stipulations shall fix the responsibility of compliance with this section for all apprenticeable occupations with the prime contractor.
(o) This section does not apply to contracts of general contractors or to contracts of specialty contractors not bidding for work through a general or prime contractor when the contracts of general contractors or those specialty contractors involve less than thirty thousand dollars ($30,000). (p) An awarding body that implements an approved labor compliance program in accordance with subdivision (b) of Section 1771.5 may, with the approval of the director, assist in the enforcement of this section under the terms and conditions prescribed by the director.

Section 1813. Forfeiture for violations; contract stipulation; report of violations

The contractor or subcontractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit twenty- five dollars ($25) for each worker employed in the execution of 412

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the contract by the respective contractor or subcontractor for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of this article. In awarding any contract for public work, the awarding body shall cause to be inserted in the contract a stipulation to this effect. The awarding body shall take cognizance of all violations of this article committed in the course of the execution of the contract, and shall report them to the Division of Labor Standards Enforcement.

Section 1815. Overtime

Notwithstanding the provisions of Sections 1810 to 1814, inclusive, of this code, and notwithstanding any stipulation inserted in any contract pursuant to the requirements of said sections, work performed by employees of contractors in excess of 8 hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of 8 h ours per day at not less than 1 ½ times the basic rate of pay.
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ATTACHMENT NO. 2

CALIFORNIA PUBLIC CONTRACT CODE SECTION 9204

Section 9204. Legislative findings and declarations regarding timely and complete payment of contractors for public works projects; claims process (Eff: January 1, 2017)

(a) The Legislature finds and declares that it is in the best interests of the state and its citizens to ensure that all construction business performed on a public works project in the state that is complete and not in dispute is paid in full and in a timely manner.
(b) Notwithstanding any other law, including, but not limited to, Article 7.1 (commencing with Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section 19100) of Part 2, and Article 1.5 (commencing with Section 20104) of Chapter 1 of Part 3, this section shall apply to any claim by a contractor in connection with a public works project.
(c) For purposes of this section:
(1) “Claim” means a separate demand by a contractor sent by registered mail or certified mail with return receipt requested, for one or more of the following:
(A) A time extension, including, without limitation, for relief from damages or penalties for delay assessed by a public entity under a contract for a public works project. (B) Payment by the public entity of money or damages arising fr om work done by, or on behalf of, the contractor pursuant to the contract for a public works project and payment for which is not otherwise expressly provided or to which the claimant is not otherwise entitled. (C) Payment of an amount that is disputed by the public entity. (2) “Contractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who has entered into a direct contract with a public entity for a public works project.
(3)(A) “Public entity” means, without limitation, except as provided in subparagraph (B), a state agency, department, office, division, bureau, board, or commission, the California State University, the University of California, a city, includin g a charter city, county, including a charter county, city and county, including a charter city and county, district, special district, public authority, political subdivision, public corporation, or nonprofit transit corporation wholly owned by a public a gency and formed to carry out the purposes of the public agency.
(B) “Public entity” shall not include the following:
(i) The Department of Water Resources as to any project under the jurisdiction of that department. (ii) The Department of Transportation as to any project under the jurisdiction of that department. (iii) The Department of Parks and Recreation as to any project under the jurisdiction of that department. (iv) The Department of Corrections and Rehabilitation with respect to any project under it s jurisdiction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part 3 of the Penal Code. 414

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(v) The Military Department as to any project under the jurisdiction of that department. (vi) The Department of General Services as to all other projects. (vii) The High-Speed Rail Authority.
(4) “Public works project” means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind. (5) “Subcontractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who either is in direct contract with a contractor or is a lower tier subcontractor.
(d)(1)(A) Upon receipt of a claim pursuan t to this section, the public entity to which the claim applies shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. Upon receipt of a claim, a public entity and a contractor may, by mutual agreement, extend the time period provided in this subdivision.
(B) The claimant shall furnish reasonable documentation to support the claim. (C) If the pu blic entity needs approval from its governing body to provide the claimant a written statement identifying the disputed portion and the undisputed portion of the claim, and the governing body does not meet within the 45 days or within the mutually agreed t o extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, the public entity shall have up to three days following the next duly publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide the claimant a written statement identifying the disputed portion and the undisputed portion. (D) Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. If the public entity fails to issue a written statement, paragraph (3) shall apply.
(2)(A) If the claimant disputes the public entity’s written response, or if the public entity fails to respond to a claim issued pursuant to t his section within the time prescribed, the claimant may demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requ ested, the public entity shall schedule a meet and confer conference within 30 days for settlement of the dispute. (B) Within 10 business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in d ispute, the public entity shall provide the claimant a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made with in 60 days after the public entity issues its written statement. Any disputed portion of the claim, as identified by the contractor in writing, shall be submitted to nonbinding mediation, with the public entity and the claimant sharing the associated costs equally. The public entity and claimant shall mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. If mediation is unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures outside this section. 415

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(C) For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section.
(D) Unless otherwise agreed to by the public entity and the contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.
(E) This section does not preclude a public entity from requiring arbitration of disputes under private arbitration or the Public Works Contract Arbitration Program, if mediation under this section does not resolve the parties’ dispute.
(3) Failure by the public entity to respond to a claim from a contractor within the time periods described in this subdivision or to otherwise meet the time requirements of this section shall result in the claim being deemed rejected in its entirety. A claim that is denied by reason of the public entity’s failure to have responded to a claim, or its failure to otherwise meet the time requirements of this section, shall not constitute an adverse finding with regard to the merits of the claim or the responsibility or qualifications of the claimant. (4) Amounts not paid in a timely manner as required by this section shall bear interest at 7 percent per annum. (5) If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim against a public entity because privity of contract does not exist, the contractor may present to the public entity a claim on behalf of a subcontractor or lower tier subcontractor. A subcontractor may request in writing, either on their own behalf or on behalf of a lower tier subcontractor, that the contractor present a claim for work which was performed by the subcontractor or by a lower tier subcontractor on behalf of the subcontractor. The subcontractor requesting that the claim be presented to the public entity shall furnish reasonable documentati on to support the claim. Within 45 days of receipt of this written request, the contractor shall notify the subcontractor in writing as to whether the contractor presented the claim to the public entity and, if the original contractor did not present the claim, provide the subcontractor with a statement of the reasons for not having done so. (e) The text of this section or a summary of it shall be set forth in the plans or specifications for any public works project that may give rise to a claim under this section. (f) A waiver of the rights granted by this section is void and contrary to public policy, provided, however, that (1) upon receipt of a claim, the parties may mutually agree to waive, in writing, mediation and proceed directly to the commencement of a civil action or binding arbitration, as applicable; and (2) a public entity may prescribe reasonable change order, claim, and dispute resolution procedures and requirements in addition to the provisions of this section, so long as the contractual prov isions do not conflict with or otherwise impair the timeframes and procedures set forth in this section. (g) This section applies to contracts entered into on or after January 1, 2017. (h) Nothing in this section shall impose liability upon a public entity that makes loans or grants available through a competitive application process, for the failure of an awardee to meet its contractual obligations. (i) This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date. 416

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PFAS TREATMENT FACILITIES AND PROGRAM AGREEMENT
This PFAS TREATMENT FACILITI ES AND PROGRAM AGREEMENT (the “Agreement”) is effective on the date identified in Section 10.17 (“ Effective Date ”) of the Agreement, and is between the ORANGE COUNTY WATER DISTRICT, a special governmental district organized and existing pursuant to the Orange County Water District Act, Chapter 924, Statutes of 1933, as amended (“OCWD”) on the one hand, and the Cities of Anaheim, Fullerton, Garden Grove, Orange, Santa Ana and Tustin; and the East Orange County Water District, Irvine Ranch Water District, Serrano Wat er District, and Yorba Linda Water District, (each a “Producer,” and collectively “Producers”1) on the other. OCWD and the Producers are each a “Party” and collectively “Parties” to this Agreement.

A. OCWD manages the Orange County Groundwater Basin (“ Basin”) in northern and central Orange County in order to support a variety of beneficial uses, including potable and non- potable water supply. Much of the potable water supply currently used within northern and central Orange County is pumped groundwater for use by persons and Producers within OCWD’s service area. Section 2, subdivision 6(j.) of the Orange County Water District Act (“ OCWD Act”) authorizes OCWD to “transport, reclaim, purify, treat, inject, extract, or otherwise manage and control water for the beneficial use of persons or property wit hin the district and to improve and protect the quality of the groundwater supplies within the dist rict.” Inasmuch as Orange County is located in a semi-arid area, it is essential that all reason able efforts be put forth by OCWD, in cooperation with the Producers, to protect the quality and quantity of groundwater supplies within OCWD’s boundaries.

B. A group of man-made substances known as per- and polyfluoroa lkyl substances (“PFAS”) has been used in numerous c onsumer and industrial products since the 1940s. Recent testing in the Basin has revealed that as of the Effective Date, at least eleven producers and at least 71 groundwater wells that are sources of drinking water in the Basin are impacted by PFAS.

C. Producers are governmental agencies (or a regulated public u tility) that operate public water systems for the purpo se of delivering potable water. They obtain a portion of their water supply by pumping groundwater from Water Producing Facilities within the Basin.

D. In July 2018, the State of Ca lifornia Division of Drinking W ater (“DDW ”) established a Response Level (“ RL”) of 70 parts per trillion (“ ppt”) for perfluorooctanoic acid (“PFOA”) and 70 ppt perfluorooctane sulfonate (“PFOS”), two types of PFAS. In February 2020, DDW established revised RLs of 10 parts ppt for PFOA and 40 ppt for PFOS. Assembly Bill 756, codified at Health and Safet y Code Section 116378, and effectiv e January 1, 2020, requires that community water systems, including Producers, either notify the ir customers of PFAS detections

1 “Producers” means the listed public agencies (and a regulated public utility) identified herein, and groundwater pumpers later added per Section 10.16, that extract groundwater from the Basin via “Water Producing Facilities” (as that term is defined in Section 24 of the OCWD Act), and who are adversely impacted by PFAS in one or more Water Producing Facility/Facilities they own or operate.
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exceeding RLs or remove from service drinking water sources wit h PFAS exceeding RLs.2 The revised RLs are perceived as a de facto regulation by some Producers.

E. In November 2019, the State of California Office of Environmental Health Hazard Assessment began the process of developing drinking water Publi c Health Goals (“ PHGs”) for PFOA and PFOS, the first step in the regulatory process leading to DDW setting enforceable Maximum Contaminant Levels (“MCLs”). As of the Effective Date, DDW projected establishing MCLs for PFOA and PFOS by the Fall of 2023, with PHGs projected to be established by the Summer of 2021.

F. PFAS compounds create a unique groundwater contamination iss ue that impacts many Producers. Without any actio n, PFAS impacted groundwater may migrate affecting other Water Producing Facilities and larger portions of the Basin.

G. The Parties desire that the Basin continue to provide a grou ndwater supply of suitable quality to allow for the continuation of all existing and potential beneficial uses, and that is in compliance with all state and federal standards and relev ant advisory levels. Quick and effective actions by OCWD, in concert with Producers, are neede d to remove, treat and control PFAS down to established regulatory limits while also removing them to prevent their contamination of other portions of the Basin.

H. The Parties recognize the necessity and commit to a high lev el of coordination to expeditiously design, construct and operate PFAS treatment syst ems (“Treatment Systems”) to remove PFAS from the Basin where PFAS is detected in Water Producing Facilities.

I. Until Treatment Systems are constructed, the impacted Produc ers will be purchasing greater amounts of more expensive imported water, and water in the Basin containing PFAS will not be treated so as to prevent its spread to other portions of the Basin.

J. As a result of DDW issuing revised RLs for PFOA and PFOS, an d anticipated issuance of RLs and state or federal MCLs for other PFAS, Producers have lost, or are anticipated to lose upon finalization of the RLs and/or MCLs for one or more PFAS, pumping capacity in one or more Water Producing Facilities due to the presence of PFAS. Given the magnitude of the PFAS problem within the Basin, and OCWD’s desire to improve and protect the quality of the groundwater supplies within the District so that groundwater fr om the Basin may be beneficially used, OCWD has developed, and is implementing through this Agre ement and other actions, a new program that will allow OCWD to purify and treat groundwate r containing PFAS by substantially funding, contracting and cooperating with Produce rs to develop, construct, operate, and maintain Treatment Systems such that water quality within the OCWD will be purified and improved (“Program”), and such that Producers can continue to beneficially use groundwater from the Basin after treatment for drinking water purposes. Pr oducers desire to participate in the Program.

2 DDW’s February 2020 guidance directs community water systems t o test for PFAS using EPA Method 537.1 and notes that DDW defines PFAS “as those analytes included in EPA Method 537.1.”
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K. OCWD has the authority to “cons truct, purchase, lease, or otherwise acquire, and to operate and maintain necessary waterworks and other works, m achinery, [and] facilities ... useful or necessary to … protect the quality of the common wate r supplies of [OCWD] and purposes incidental thereto.” 3 OCWD may also perform groundwater cleanup, abatement, or remedial work in cooperation with any other governmental agency, and may initiate cost recovery actions against persons responsib le for causing contamination o f the Basin, and for its costs in cleaning up or containing contamination or pollution of the Bas in.4 OCWD is also authorized under Section 2(6)(l.) of the OCWD Act to protect and improve water quality within the Basin by entering into contracts with Producers to produce more groundwater from the Basin, while taking less water from alternative non-tributary sources, where OCWD d etermines that such increased production of groundwater will result in removal of contaminants or pollutants from the Basin that otherwise would not be removed. Specifically, OCWD has authority, “for the common benefit of the district and for the purpose of managing the groundwater ba sin and managing, replenishing, regulating, and protecting the groundwater supplies within the district” to enter into an agreement with Producers to increase the production of groundwater in lieu of water from an alternative non- tributary source for the purpose of removing contaminants or po llutants from the Basin. OCWD may also “pay from district funds that portion of the cost of t he groundwater production as will encourage the production for beneficial use of polluted or contaminated groundwater, as long as that pollution or contamination is impairing the quality of the water supplies within the district and the quality of the water supplies within the district will be improved by that production.” L. OCWD has determined that cert ain portions of the Basin in th e vicinity of Producers’ Water Producing Facilities are polluted by PFAS, and that entering into this Agreement with Producers will encourage be neficial use of groundwater pol luted by PFAS that would otherwise not be used while improving the quality of water supplies within the District.

M. OCWD and the Producers mutually desire to enter into this Ag reement pursuant to the OCWD Act to document the Progr am responsibilities of the Pa rties in the construction and operation of PFAS Treatment Syste ms, systems that the Parties w ill use to treat PFAS pollution and contamination, thereby improving the quality of groundwater supplies within OCWD.

The Parties therefore agree as follows:

1. The Recitals above are deemed true and correct and are hereby incorporated in this Agreement as though fully set forth herein. The Parties agree that the actions that will be taken pursuant to this Agreement are reasonable and necessary to acco mplish the goals and objectives of the OCWD Act.

2. PURPOSE.

2.1 Facilitation of Basin-wide Treatment. OCWD and the Producers i ntend to facilitate treatment of Basin groundwater impacted by PFAS. OC WD will coordinate and fund planning and treatment pilot studies and design efforts, and fu nd the construction costs of PFAS

3 OCWD Act, Section 2, Subd. 5.
4 OCWD Act, Section 8.
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Treatment Systems in the Basin subject to the provisions of this Agreement. OCWD will also fund a portion of the operation and maintenance costs of those facilities.

2.2 PFAS Compounds and Reopener. The Parties recognize the necessi ty of and commit to a high level of coordination to expeditiously des ign, construct and operate PFAS Treatment Systems to remove PFAS from the Basin where PFAS is d etected in a Producer’s (existing or anticipated) Water Producing Facilities at or above 80% of an applicable RL or MCL.

The Parties acknowledge that additional compounds within the PF AS family may become regulated during the term of this Agreement. To the extent the Treatment Systems developed under this Agreement requires modi fication to treat PFAS that becomes regulated after the Effective Date, the Parties will, where necessary and mutually agreed upon, amend this Agreement to provide for treatment of additional compounds in the PFAS family.

3. PLANNING.

3.1 Planning Study. OCWD has retained a consultant to prepare a “ Planning Study” to evaluate the Producers’ water systems, any of their Water Producing Facilities impacted by PFAS (“Impacted Wells ”), and potential locations for c onstruction of PFAS Treatment Systems for Impacted Wells. OCWD shall cause the consultant to actively consult with Producers in connection with preparation of the Planning Study. OCWD shall cause the consultant to provide a final Planning Study report to OCWD and Producers concurrently.

3.2 Pilot Study. OCWD shall perform a PFAS treatment “ Pilot Study ” to evaluate different treatment technologies to remove PFAS from groundwater.

3.3 Treatment Systems. OCWD shall use the results of the Planning Study and the Pilot Study to reasonably determine the type and final design of the Treatment Systems to treat PFAS contamination in the groundwater produced by Impacted Well s to levels below the RL or MCL. Development of the final design of Treatment Systems will consider 30-year lifecycle costs, including but not limited to Treatment System footprint and physical setting, relative land values, the proximity to existing water infrastructure and energy sources, operational costs and limitations, and any PFAS treatment studies conducted by Producers. The Treatment Systems will be designed for a 30-year useful life. If OCWD and a Producer mutually agr ee, a Treatment System that can remove PFAS contamination down to non-detect concentrations, de pending upon site specific circumstances, may be designed and constructed.

3.4 Enhancements/Additions to Treat ment System. If Producer desire s to construct additions or enhancemen ts to the PFAS Treatment System beyond what OCWD determines is the appropriate Treatment System, then OCWD will reasonably estimate the cost of those additions or enhancements ( including planning costs, desi gn costs, capital costs and operation and maintenance [“ O&M”] costs) with assistance and input from Producer(s). For OCWD-Built facilities (defined below), OCWD shall include the additions or enhancements in the design and construction of the treatment facilities upon OCWD d etermination of feasibility of efficiently operating the Treatment Systems with the requested additions or enhancements.

Producer shall reimburse OCWD for all costs associated with the OCWD-Built addition or enhancement constructed by OCWD. For Producer Built Treatment Systems that contain additions or enhancements beyond what OCWD determines to be an appropriat e Treatment System, 420

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Producers shall have no right of r eimbursement from OCWD for Pr oducers’ costs attributable to such additions or enhancements.

3.5 Producer Assistance. Producers shall support and assist OCWD i n connection with the Planning Study, Pilot Study, and developmen t of what constitutes an appropriate Treatment System design. “ Support and assist ,” as used in this Agreement means timely providing reasonable staff time and available data/techn ical information where requested by OCWD to ensure OCWD has suffic ient information to timely complete its obligations under this Agreement.

3.6 Untested Water Producing Facilities. OCWD reserves the discret ion to delay the design and to not construct Treatment Facilities at Water Producing Facilities that have not been individually tested for PFAS, or which have not demons trated consistent exceedance of an applicable PFAS RL or MCL.

4. DESIGN AND CONSTRUCTION OF PFAS TREATMENT FACILITIES.

4.1 Funding. OCWD shall fund the reasonable cost to design and construct the Treatment System, except for necessary real property and entitl ements for siting the Treatment System as described in Section 4.4. OCWD’s funding obligations apply both to OCWD-Built or Producer-Built Treatment Systems, as defined below. OCWD’s fun ding obligations include planning, design, and construction of the Treatment Systems whe ther OCWD-Built or Producer- Built.

4.2 OCWD Construction or Reimbursement. The Producer shall elect either:

A. to have the Treatment System designed and built by OCWD (“OCWD-Built”); or
B. to be reimbursed for having the Treatment System designed an d built by the Producer (“Producer-Built”).

4.3 CEQA. In connection with the proposed Treatment System for Imp acted Wells, the Parties shall work together to determine the best pl an for and the lead agency for the purpose of complying with the California Environmental Quality Act (“ CEQA” ) . W h e r e a Producer serves as lead agency for a CEQA project, OCWD shall serve as a Responsible Agency and approve the portions of the CEQA project that OCWD will car ry out. OCWD shall fund CEQA expenses incurred in connect ion with the Treatment System whether it is a Lead Agency or a Responsible Agency. Upon a Producer’s request, OCWD shall p re p a r e n e c e s s a ry C E Q A documents for the Treatment System. OCWD shall fund any reason able CEQA mitigation cost excluding land acquisition expenses.

4.4 Property Acquisition, Entitlements.

A. Land and Rights of Way. Each Producer shall secure at its expense any land and/or right of way necessary to construct the Treatment System(s). 421

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B. Entitlements. Each Producer shall obtain at its expense all land use entitlements necessary to construct the Treatment System(s).

C. Property Conditions for OCWD-Built Treatment System. If a Producer chooses an OCWD-Built Treatment System, then OCWD will have no obligation to design or construct the Treatment System until a Producer has demonstrated it has obtained lands and land use entitlements sufficient to permit construction of the Treatment System. OCWD may begin final design work for facilities where land use entitleme nts are in the process of being obtained. If a Producer is unable to obtain the necessary enti tlements within twelve months after the completion of the preliminary design for an Impacted Well, then Producer shall reimburse OCWD for reasonable design costs associated with that location unless the twelve month deadline is extended by mutual agreement of the Parties.

4.5 OCWD-Built Facilities. The provisions of this Section 4.5 appl y to PFAS treatment facilities that a Producer elects to have OCWD design and build.

A. Design. OCWD will consult with and seek input from the Producer on the design and construction of the Treatment System, includi ng the need for any extended manufacturer’s warranties on Treat ment System components. Prod ucer shall support and assist OCWD in hiring design consultant s and designing the Treatment System, but OCWD will have the reasonable authority and disc retion in determining the Trea tment System final design. The level of treatment selected by OCWD must allow the Producer to treat regulated PFAS to comply with RLs or MCLs, unless special circumstances dictate an alter native approach. Additions or enhancements to the Treatment System are subject to section 3.4.

B. Property Rights. A Producer sha ll provide OCWD with temporary property rights over any site necessary for construction, staging, and laydown for the Treatment System project. These temporary property rights will be in the form of a license or temporary construction easement, or other property right sufficient to provide for OCWD’s control of the site during construction.

C. Advertising and Award of Construction Contracts. OCWD shall advertise, where required by the OCWD Act, and award construction contracts for construction of the Treatment System. A Producer shall support and assist OCWD in these efforts, and shall expeditiously provide any documents necessary for construction at no charge to OCWD.

D. Administration and Inspection. OCWD will administer the necessary contracts to construct the Treatment System, includin g reviewing and responding to contractor requests for informat ion or requests for clarificati on, reviewing and approving shop drawings, and filing a Notice of Completion. OCWD shall provide all construction and inspection for the Treatment System.

E. Transfer of Treatment System. Upon filing the Notice of Completion for the Treatment System, OCWD will transfer the constructed and operating Treatment System to the Producer with an appropriate legal inst rument and a quitclaim of any property rights obtained under Section 4.4. OCWD shall provide the Producer with copies of all applicable O&M manuals and record drawings for the Treatment System in OCWD’s possession. 422

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Upon the Producer’s receipt of the legal instrument and quitclaim of property rights, Producer shall be solely responsible for ensur ing the proper operation, maintenance and repair of the Treatment System. The Parties may arrange for extended warranties on any component of the Treatment System, which additional cost may be paid for by the Producer, and which extended warranty will be transferred to the Producer together with the transfer documents.

F. Warranty, Post-Construction Remedies. OCWD will make construction warranty repairs a nd modifications not attributabl e to the negligence or willful misconduct of Producer for one year after the date of filing of the Treatment System Notice of Completion. The Parties will also, to the extent they deem pru dent, jointly pursue any statutory construction defect remedies against third-party designers and contractors.

G. DDW Permit Assistance. OCWD will support and assist the Producer with technical information in modifying the Producer’s DDW operating permit to account for and authorize the new Treatment System as part of the Producer’s public water system.

4.6 Construction by Producer. The provisions of this Section 4.6 apply to PFAS treatment facilities that a Producer elects to design and build.

A. OCWD Approval of Design. The Producer shall prepare and submit to OCWD for approval a conceptual design for the Treatment Syst em. OCWD shall review and approve the design in writing within 30 days, which approval wi ll not be unreasonably withheld.

Once conceptual design for a Producer’s proposed Treatment System is approved by OCWD, the Producer will coordinate with OCW D in the planning and final design of the Treat ment System.

The Producer shall then prepare and submit the final design to OCWD for approval. OCWD shall participate in the Producer’s project meetings as necessary to obtain OCWD’s final approval of the Treatment System in an expedi tious manner so as not to dela y the Producer’s design and construction of the Treatment System. OCWD shall review and ap prove the final design, if deemed reasonable and effective, in writing, within 30 days. Such approval will not be unreasonably delayed or withheld, though OCWD shall have the right to place reasonable conditions on the final design approval.

B. Construction. Upon OCWD’s approval of the final design, the Producer shall advertise, award, and ensure timely completion o f all necessary contracts to construct the Treatment System. The Producer shall notify OCWD upon the award of the construction contract and upon recording the Notice of Completion.

5. OPERATIONS, MAINTENANCE AND REPLACEMENT.

5.1 30-Year Term. Each Producer shall operate, maintain, and repai r a Treatment System, and any related Impacted Well, for the earlier of:

A. 30 years following the filing of the Notice of Completion; or B. Until water produced from the Impacted Wells meets RLs or MCLs for PFAS.
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5.2 Operating Standards. OCWD recognizes in the normal course of operating a water system, the Treatment System and Impacted Wells may nee d to be turned off for routine maintenance, seasonal demands, emergencies, accommodating in-li eu imported water deliveries, and major repairs. Each Producer agrees to operate the Treatment System in a manner consistent with industry standards and take actions in the same manner as a reasonably prudent water system operator, with the understanding that the Treatment System fund ed by OCWD is intended to be regularly used for daily treatment of groundwater as long as PF AS exceeds an RL or MCL in the Basin in the vicinity of the w ell. The Parties understand and agree that Treatment Systems constructed or funded by OCWD are not intended to be used as “stand by” treatment systems.

5.3 Compliance, Permits, Testing, Reporting. Each Producer shall obtain and comply with any and all regulatory permits, permissions or appr ovals necessary to operate and maintain the Treatment System. P roducer shall operate and main tain the Treatment System in accordance with state and federal regulatory requirements, prev ailing industry standards, good housekeeping practices, and equipm ent manufacturer recommendati ons and requirements.

Producer shall perform required water quality testing and repor ting to verify the successful operation of the Treatment System to comply with regulatory requirements. If a Producer fails to timely perform testing and/or reporting in the future, then OCWD may in its reasonable discretion assume responsibility from a Producer for required water quality testing and/or reporting and that Producer shall timely pay OCWD all reasonable and necessary costs for that testing and reporting or such costs shall be deducted from OCWD’s reimbursement payme nts to the Producer per Section 5.4.

5.4 Post-Completion Inspection; Cost Recoupment.

A. OCWD will periodically inspect the Treatment System after the filing of the Notice of Completion, to review the adequacy of Producer O&M activities. Producer shall provide access to the Treatment System after receiving reasonable notice from OCWD.

B. To the extent OCWD finds that Producer is not adequately operating and maintaining the Treatment System in accordance with industr y standards and the manufacturer’s directions, OCWD will, in the following order:
(1) meet with the Producer in attempt to resolve the inadequate o p e r a t i on or maintenance;
(2) formally notify the Producer of its obligation to properly maintain and operate the tr eatment system and give the Producer up to 120 days to remedy any OCWD finding of
inadequate maintenance and/or improper operational
protocols;
(3) after 120 days, suspend O&M payments described in
Section 6.2 until such time as the Producer demonstrates to OCWD that it is properly operating and maintaining the
treatment system;
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(4) no sooner than 270 days from the initial formal notice, terminate this Agreement and seek to recoup, where
applicable, the cost of constructing the Treatment System and/or other applicable damages.
5 6. FINANCIAL.

6.1 Capital Costs—Payment and Reimbursement.

A. OCWD-Built Facilities—Upfront Payment. For OCWD-Built Treatment System, OCWD will pay as up-front costs all planning, design, construction, and start- up costs as described above, exce pt for the costs for property rights, land use entitlements, additions or enhancements, or as otherwise described in this Agreement.

B. Producer-Built Facilities—Reimbursement. OCWD shall reimburse the Producer for all of the Producer’s reasonable exp enses for the planning, design, construction, and start-up of Treatment System on a monthly bas is. OCWD shall pay reimbursements to the Producer within 30 days of receiving adeq uate documentation from the Producer.

C. Prior Expenditures. Within 60 days after the Effective Date, OCWD will reimburse the Producer for any previous reasonable and aut horized expenses incurred by the Producer prior to the Effective Date in evaluating or developing the design for or constructing the Treatment System for the Producer’s Impacted Wells.
(1) Authorized expenses include, but may not be limited to:
(1) design type costs, consultant s and contractor; (2) pre-purc hase of equipment and media for Treatment System; (3) equipment installed to temporarily treat for PFAS compounds which can be repurposed by the Producer into the Producer’s final Treatme nt System; (4) permitting cost; and (5) CEQA type expenses. These same expenses incurred by Producer going forward are also eligible for reimbursement. Des ign, engineering, or evaluative type expenses incurred by a Producer that may be eligible for reimbursement, as reasonably determined by OCWD in its sole discretion (with input from the Pr oducer) could include: (1) o utside consultant costs and studies incurred by the Producer and rela ted to the development and des ign of the Treatment System; (2) equipment installed to temporarily treat for PFAS compounds which can be repurposed by OCWD into a final treatment system; (3) permitting cost; and (4) CEQA type expenses.

5 Any action by OCWD to recoup its, or the Producer’s, OCWD fund ed costs for construction of the PFAS treatment system would be prorated based upon the l ength of time the treatment facilities has been in operation, and by any percentage of thir d-party cost recovery OCWD has obtained. For example, a breach by Producer in year twenty-five (25) of the thirty (30) year term of this Agreement would result in OCWD recouping significantly less than if the breach occurred in year five since twenty five years of useful life of the faci lity would have occurred, and would be further offset by any third-party cost recovery obtained by OCWD during that time. 425

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(2) Unauthorized expenses for re imbursement shall include:
(1) the Producer’s staff time; (2) direct or indirect overhead type expenses for staff; and (3) costs not primarily attributable to Treatment System design, construction and O&M.

6.2 O&M Reimbursement.

A. Reimbursement Rate. OCWD sha ll reimburse each Producer for 50% of allowable O&M costs, up to $75/acre-foot of water treated by the Treatment System.

B. O&M Unit Cost. Each Producer shall annually calculate the O&M unit cost of the Treatment System on a July 1st to June 30th fi scal year basis and submit this information by October 1st of the following fiscal year to OCWD for review and reimbursement.

The unit cost shall be calculated by dividing all appropriate and allowable O&M expenses by the Treatment System total water treated. The annual submittal by the Producer shall include all documentation and backup information necessary to support the u nit cost calculation. Each Producer shall provide any reasonable information requested by OCWD in verifying the Producer’s unit cost or other expenses for which the Producer s eeks reimbursement per this Agreement. After execution of the agreement, at the request of the Producer after the Treatment System(s) are fully operational, OCWD will make a six month progress payment by January 30th of each fiscal year based upon no more than 50% of the estimated eligible total O&M cost OCWD would normally reimburse at the end of the fiscal year as deter mined by OCWD with input from the Producer.

C. Reimbursable/Allowable Costs. Allowable O&M costs are the costs to the Producer necessarily inc urred for the regular operation and maintenance of the Treatment System, as reasonably determined by OCWD after good faith consu ltation with Producer.

Allowable O&M cost shall consider the specific site issues of each Treatment System. Examples of allowable O&M costs may include, but are not limited to:
(1) periodically replacing carbon, resin, or other adsorption media;
(2) necessary power and chemical cost to operate the Treatment System;
(3) routine maintenance of the Treatment System;
(4) periodic repair and replacement type cost items;
(5) cost of additional staff time to operate the Treatment System; (6) required water quality sampling and testing for compliance monitoring;
(7) determining and implementing compliance with new or revised PFAS regulations;
(8) additional pumping cost caused by the Treatment System; 426

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(9) disposal of waste materials generated by the Treatment System, including landfill cost s and incineration, and costs of hazardous waste disposal (if applicable);
(10) sewerage costs associated with maintenance/backwash of the Treatment System; and
(11) such other reasonable maintenance costs as are necessary to ensure the Treatment System continues to operate properly consistent with its design.

D. Non-reimbursable costs include:
(1) existing Producer staff time co sts not attributable to the PFAS Treatment Facilities;
(2) direct or indirect overhead type expenses for staff; and (3) cost resulting from a Producer’s inadequate operation and maintenance of the Treatment System.

E. Reimbursement Rate Adjustment. The $75/acre foot rate will be automatically adjusted annually each July 1 (beginning July 1, 2021) by the percentage differential based on the last two annual indices set forth in the Bureau of Labor Statistics Consumer Price Index for All Urban Consumers - Los Angeles-Long Beach-Anaheim. The maximum O&M reimbursement rate may be increased by OCWD if there are unforeseen, unique or specific circumstances of the Treatment System that, through no fault of a Producer, result in a higher cost of treatment at a Producer’s tre atment system, including increa sed costs attributable to new statutes, regulations or regulatory interpretations.

F. Submittals; Reimbursement Timing. OCWD shall reimburse each Producer its allowable O&M costs incurred by a Producer within 60 days of receiving the Producer’s annual O&M unit cost calculation and supporting info rmation as described in Section 6.2.B. via direct payment.

G. Treatment Media. OCWD may solicit and enter into a future contract with the appropriate activated carbon, resin, and/or other adsorption media manufacturers to obtain a lower price for this material than could be obtained by the individual Producer. Unless a Producer opts out in writing of this Section within 30 days o f the Effective Date, Producer will support and participate in OCWD efforts to obtain a lower cost for activated carbon and/or resin.

6.3 Grants.

A. OCWD-Sought. OCWD may seek federal, state, or other grant funding to offset costs of the PFA S program contemplated by thi s Agreement. Each Producer shall support and assist OCWD, as may be reasonably requested b y OCWD, to obtain any grants that may be used by OCWD to fund construction and/or future O&M of Treatment Systems. Grant 427

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funds received by OCWD will be used to fund OCWD’s costs of planning, design and construction of Treatment systems, unless otherwise required by the terms of that grant.

B. Producer Support to OCWD-Sought Grants. Each Producer shall support and assist OCWD in preparing any annual reports or docu ments necessary for OCWD to comply with grants received for the PFAS program. Subject to t he requirements of this Section 6.3, no provisions in this Agreement will prevent a Pro ducer from applying for grants or loans, from any source, for PFAS treatment projects in its service territory.

C. Producer-Sought Funding. A Producer may also seek third-party funding for Treatment System-related expenses. Any outside development and design type grants or funding initiated and received by a Producer will be utilized to offset OCWD’s PFAS design or construction costs for the Producer. If a Producer receives any grants or other third-party funding for operational expenses of the Treatment System, that Producer shall share those proceeds with OCWD in proportion to the percentage of O&M funded by OCWD if allowed by the grant or other third-party funding instrument.

6.4 Records Retention, Audit. The Parties shall keep and maintain all records, accounts and reports relating to this Agreement for a period of at least ten years after the date of a final judgment or final settleme nt resolving any and all litigation related to PFAS cost recovery initiated per Section 7.4 of this Agreement. The Parties will have access to these records at any time during normal business hours upon 10 calendar days’ notice. At its cost, any Party may audit the books, records and accounts of the Party relating to its performance of this Agreement, and the audited Party shall provide reasonable cooperation to the auditing Party in this regard.

7. RISK ALLOCATION.

7.1 Insurance.

A. Construction Activities. In the hiring of consultants and contractors to design and build the Treatment System, the hiring or contracting Party will have the other Party (OCWD, if Producer-Built, or the designing/building Producer, i f OCWD-Built) included as an additional indemnitee and additional insured on the same basis and with the same limits in all contracts. The hiring Party will use the higher of the two Par ties’ standard limits for the purpose of coverage requirements. For example, in connection with an O CWD-Built Treatment System, OCWD shall have Producer named a s an additional indemnitee and an additional insured in all consulting and construction cont racts related to the Producer’s Treatment System(s). In connection with a Producer-Built Treatment System, Producer shall have OCWD named as an additional indemnitee and an additional insured in all consulting and construction contracts. The hiring or contracting Party shall provide the other Party with proof of insurance, including additional insured endorsements.

B. Parties’ Coverage. Each Producer shall take out and maintain i n effect at all times during the term of this Agreement comprehen sive general liability insurance in an amount not less than $2 million per occurrence, for bodily i njury, death and property damage associated with the operation and maintenance of the Treatment Facilities and Impacted Wells, naming OCWD as an additional insured under such policy. An end orsement evidencing this 428

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insurance coverage shall be furni s h e d t o O C W D p r i o r t o O C W D o r Producer commencing construction on a Treatment System. If the Producer is, or becomes, partially or fully self-insured for its public liabilities, a letter executed by the Producer’s Chief Executive stating the Producer’s self-insured status and acknowledging its responsibility to ind emnify OCWD as required in this Agreement, may be furnished in lieu of the insurance endorsement otherwise required herein. The Producer shall provide written notice to OCWD of any change in the Producer’s insured or self- insured status within 30 days of the date of such change.

7.2 Indemnity.

A. By Producer:
(1) Each Producer shall defend, indemnify and hold OCWD, harmless from and against any and all actions, suits, claims, demands, judgments, attorney’s fees, costs, damages to person or pro perty, losses, penalties, obliga tions, expenses or liabilities (collectively, “ Claims”) that may be asserted or claimed by any third party arising o ut of the negligent or reckless performance or implementation of this Agr eement by Producer except for Claims arising out of or relating to the design or construction of a Treatment System where OCWD designed or constructed the Treatment System.
(2) Producer shall indemnify, defend and hold OCWD harmless from any liability, or regulatory enforcement attributable, in whole or in part, to Producer’s failure to properly operate and maintain the Treatment System and Impacted Wells.

B. By OCWD:
(1) OCWD shall defend, indemnify and hold each Producer harmless from and against any and all Claims that may be assert ed or claimed by any third party arising out of the negligent or reckless performance or impleme ntation of this Agreement by OCWD, except for Claims arising out of or relating to the desig n or construction of a Treatment System where the Producer designed or constructed the Treatment System.

7.3 Release and Hold Harmless.

A. Producers’ Release of OCWD.
(1) Producers, and each of them, hereby release OCWD, its officers, directors, employees, agents and representatives, fro m any and all liability, known or unknown, arising out of, or otherwise attributable to the discovery and/or presence of PFAS in the Santa Ana River, the Basin, Producers’ Water Producing Facilities, and Producers’ potable or non- potable water system, before, dur ing or after treatment. Such release shall include, but is not limited to, claims or litigation initiated by third parties against a Producer or OCWD, and any other legal, administrative, or regulatory actions associated with OCWD’s performance of its obligations under this Agreement (unless attributable to OCWD’s sole active negligence or willful misconduct during such performance).

B. OCWD’s Release of Producers.
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(1) OCWD hereby releases each Producer, their officers, directors, employees, agents and representatives, from any and all liability, known or unknown, arising out of, or otherwise attributable to the discovery and/or presence of PFAS in the Santa Ana River, the Basin, Producers’ Water Producing Facilities, and ea ch Producers’ potable or non- potable water system, before, dur ing or after treatment. Such release shall include, but is not limited to, claims or litigation initiated by third parties against a Producer or OCWD, and any other legal, administrative, or regulatory actions associated with a Producer’s performance of obligations under this Agreement (unless attributable to a Producer’s sole active negligence or willful misconduct during such performance).
(2) This release by OCWD does no t pertain in circumstances where liability results, or is alleged to result, from the failure of a Producer to properly operate and maintain the Treatment System constructed per this Agreement.

C. Producer’s Release of other Producers.
(1) Each Producer hereby releases and shall hold the other Producers harmless from liability associated with the presence of PFAS in the Basin. (2) However, this release by each Producer does not pertain to circumstances where liability results, or is alleged to result, from the failure of the other Producer(s) to properly operate and maintain the Treatment Syst em(s) constructed per this Agreement.

D. No Admission of Liability. Nothing contained herein shall be deemed an admission of liability by any Party to this Agreement.

7.4 Legal Cost Recovery Efforts.

A. OCWD anticipates commencing litigation against responsible parties, including chemical manuf acturers of PFAS, in order to recover costs from persons responsible for placing PFAS into the stream of commerce and/or the environment where it could make its way into the Basin (“ Damages”). The Producers shall suppo rt, coordinate, assist and comply with all reasonable OCWD requests regarding OCWD’s cost recovery litigation related to pursuit of Damages associated with PFAS.

B. OCWD will request each Producer that has sustained Damages to determine if intends to jointly retain counsel (“ Shared Litigation Counsel ” ) w i t h O C W D i n litigation to recover Damages. Producers who join as co-plaint iffs are “Participating Producers” in OCWD’s cost recovery efforts.

C. OCWD and Participating Producers will establish a Steering Committee and Executive Committee to direct Shared Litigation C ounsel and make litigation decisions.

D. OCWD and Participating Producers will enter into an appropriate joint prosecution/common interest agreement to hire Shared Liti gation Counsel and establish 430

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confidentiality and privilege c oncerning communications and work product of the Steering Committee and Executive Committee.

E. OCWD and Participating Producer agree that any Damages obtained in the PFAS litigation will be pooled and distributed to OCWD a nd Participating Producers proportionally to their respectiv e claimed damages, such that each Participating Producer and OCWD will recover the same percentage of their overall claimed damages in the manner shown on Exhibit A.

F. Participating Producers can decide at any time to discontinue participation in the litigation initiated by OCWD, but agree, i f applicable, to pay to Shared Litigation Counsel, in accordance with any retainer agreement n egotiated with Shared Litigation Counsel, for the withdrawing Producers share of Shared Litigation Counsel’s reasonable attorneys’ fees and cost incurred prior to the date of withdrawal (if any). Further, per the terms of any retainer agreement with Shared Litigation Counsel, the Participating Pro ducers agree to maintain as confidential, and where applicable, to return, any communications and work product obtained via the litigation.

G. OCWD believes that it is in the best interest of OCWD and Producers impacted by PFAS to jointly initiate litigation as co -plaintiffs with Shared Litigation Counsel. However, if a Producer decides to pursue or initiate separate PFAS litigation (“Separate Litigation”), Producer shall notify OCWD of such intent thirty (30) days prior to formally filing the Separate Litigation. Producer in the Separate Litigation must comply with the following:
(1) The Producer shall give OCWD t he opportunity to review and comment on Separate Litigation documents (e.g., pleadings) prior to any Separate Litigation filing. (2) No PFAS related cost incurred by OCWD, or likely to be incurred by OCWD, and related to the Producers treatment system(s) (construction and/or O&M), will be asserted in a Producer’s Separate Litigation.
(3) In order to prevent duplicative claims for the same damages in separate lawsuits, assertion of which without OCWD’s consent shall constitute a violation of this Agreement, OCWD must approve any PFAS related cost a Producer is seeking to recover prior to its assertion in Separate Litigation. However, OCWD shall not unreasonably withhold such approval, and shall consult in good faith with counsel for a Producer that wishes to initiate Separate Litigation in order to seek ways to accommodate the interests of both Parties, prior to disapproving any cost.
(4) A Producer shall closely coordinate its separate legal action with OCWD, and, where requested in good faith by OCWD, support the p ositions taken by OCWD related to PFAS in court and in political, community and business forums. (5) A Producer shall not assert claims against OCWD in any litigation related to PFAS, or otherwise knowingly take positio ns that could result in OCWD or other Producers incurring liability related to PFAS as a result of the position asserted by the Producer in the Separate Litigation.
431

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8. EXPIRATION AND TERMINATION. This Agreement expires 30 years from the Effective Date. A Producer may terminate this Agreement up on providing 90 days written notice to OCWD. However, if a Producer terminates this Agreeme nt prior to the 30 year date of expiration, the Producer shall reimburse OCWD for all of OCWD’s unrecovered costs in constructing the Treatment System using the methodology described in footnote 5, plus any other reasonable expenses incurred by OCWD as a result of the early termination.

9. NOTICE. Any notice, instrument, payment or document required to be gi ven or delivered under this Agreement shall be given or delivered by p ersonal delivery or by depositing the same in a United States Mail depository, first class postage prepaid, and addressed as set forth in Exhibit B. Notice under this Agreement may also be provided to such other address as any Party may direct in writing to the other. Service of any instrument or document given by mail will be deemed complete upon receipt if delivered personally, or forty eight (48) hours after deposit of such instrument or document in a United States mail depository, first class postage prepaid, and addressed as set forth above.

10. MISCELLANEOUS.

10.1 Further Assurances. The Parties shall execute and deliver any documents and cooperate in performing any acts necessary to further the intent of this Agreement.

10.2 Time is of the Essence. Time is of the essence in performing all obligations under this Agreement.

10.3 Counterparts. This Agreement may be executed in multiple count erparts, each of which is an original. All signatures taken together will be considered as one and the same agreement.

10.4 Force Majeure. Upon written notice by a Party, the respective duties and obligations of the Parties will b e suspended for the time perio d that performance by the Party is prevented or substantially impeded by workforce strikes; riots; fire; flood; federal, state or county regulatory action; pandemics, war; or terrorism.

10.5 Dispute Resolution. If a dispute arises between the Parties in connection with this Agreement, the Parties shall engage in a mediation before a third-party neutral.

10.6 Successors and Assigns. All of the terms, conditions and provisions of this Agreement inure to the benefit of and will be binding upon OCWD, the Producer, and their respective successors and assigns.

10.7 No Implied Waivers. If any term, condition or provision of this Agreement is breached by either Party and thereafter waived by the other Party, that waiver will be limited to the specific breach so waived, and will not be deemed either to be a continual waiver or to waive any other breach under this Agreement.

10.8 No Obligation to Third Parties . The approval, execution and pe rformance of this Agreement does not confer any rights upon any person or entity other than OCWD and the Producers. There are no third-party beneficiaries to this Agreement. Each Producer’s obligations 432

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under this Agreement are to OCWD only, unless otherwise specifi cally stated herein (e.g., requirement to release or provide notice to other Producers).

10.9 Nature of Relationship. This Agr eement does not create, and wi ll not be construed or deemed to create, any agency, partnership, joint v enture, landlord-tenant or other relationship between OCWD and any Producer except as specified in this Agreement.

10.10 Integration, Construction and Amendment. This Agreement represents the entire understanding of OCWD and each Producer as to the design and construction of PFAS treatment facilities for the Impacted Wells. No prior oral or written understanding will be of any force or effect with respect to those matters covered by this A greement. This Agreement will be construed as if drafted by both OCWD and each Producer.

10.11 Modification, Variance and Most F avored Nation Provisions. Unl ess specifically authorized herein, this Agreement may not be modified, altered or amended unless in writing signed by authorized representatives of both OCWD and all Producers, except that OCWD and any individual Producer may enter into a Producer-specific “Variance” that will be applicable only with respect to OCWD and that specific Producer. Except for where site-specific circumstances require unique con siderations, OCWD shall interpr et and administer this Agreement in a similar manner with each Producer. At least 30 days prior to approving any proposed Variance, OCWD will provide written notice of the prop o s e d V a r i a n c e t o t h e o t h e r Producers and provide each with an opportunity to opt in to the same terms of that Variance. Upon approval of any Variance, OCWD shall provide a fully-executed v ersion of the Variance to each Producer that has opted in under the Variance.

10.12 Severability. Each provision of this Agreement is severable from the whole.

If any provision of this Agreement is found contrary to law, the remainder of this Agreement will continue in full force.

10.13 Authority.

A. Producer hereby agrees that fundi ng provided by OCWD per this Agreement is in furtherance of OCWD’s purpose of treating/purifying water in the Basin to facilitate beneficial use of locally produced groundwater water in order to increase production of groundwater containing PFAS from the Basin—to levels typical prior to setting of RLs for PFAS, and that Producer’s production of water from the Basin is in lieu of Producer taking water from an alternative non-tributary source, thereby furthering OCWD’s efforts to remove or eliminate PFAS contaminants from the Basin.

B. By entering into this Agreement, each Party represents that it, and to the best of its understanding the other Parties to this Agre ement, have proper legal authority to enter into this Agreement and to fund the work described herein . Each person executing this Agreement on behalf of a Party warrants that they are: (1) duly authorized to execute and deliver this Agreement on behalf of that Party, (2) by executing this A greement, that Party is formally bound to the provisions of this Agreement, and (3) entering int o this Agreement does not violate any provision of any other Agreement to which that Party is bou nd. No individual signing this Agreement shall have individual liability under this Agreement. As a condition of entering this 433

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Agreement, all Parties expressly waive any future challenge to the legal authority of the other Parties to enter into this Agreement, or to the authority of an y other Party to fund the programs described in this Agreement.

10.14 Construction and Amendment. The terms of this Agreement will b e construed in accordance with the plain meaning of the language used and will not be construed for or against any Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The headings of sections and paragraphs of this Agreement are for convenience or reference only and will not be construed to limi t or extend the meaning of the terms, covenants and conditions of this Agreement. This Agreement may only be amended by the mutual consent of the Parties by an instrument in writing.

10.15 No Admissions. Nothing in this Agreement may be deemed an admission.

Moreover, no language that may have previously been circulated in prior drafts of this Agreement, but subsequently removed at the request of a Producer, shall be used by either Party as evidence, or in any other manner, in litiga tion currently pending in Los Angeles Superior Court between OCWD and the City of Anaheim, Yorba Linda Wate r District, Golde n State Water Company, Mesa Water District, and East Orange County Water District on t he one hand, and Irvine Ranch Water District (IRWD) on the other, Case No. BS168278 [Lead Cas e] Case No. BS175192 [Consolidated Case] (the “Litigation”), as such Litigation may be amended from time to time.

10.16 Additional Parties. Notwithstanding any other provision of this Agreement, OCWD is authorized to allow ot her groundwater pumpers in the Ba sin adversely impacted by PFAS, but not named in this Agreement, to become Parties to and execute this Agreement without obtaining the concurrence of the other Parties to this Agreemen t or otherwise modifying this Agreement (except to add an additional signature block).

10.17 Effective Date and Binding Effect . T h e d a t e O C W D e x e c u t e s t h i s Agreement shall be the Effective Date of this Agreement. Each Party executing the Agreement thereafter shall be bound by, and benefit from, the terms of this Agreement on the date that Party executes the Agreement, notwithstanding that other Parties have not yet executed the Agreement.

No Party shall be bound by this Agreement until such Party has executed this Agreement, nor shall any Party that has executed this Agreement owe any contractual duty to any Party that has not yet executed this Agreement until such other Party executes this Agreement. The timelines referenced in Sections 6.1(C) and 6.2 (G) of this Agreement shall begin to run on the date a Producer executes this Agreement if such date is after the Effective Date.

10.18 Electronic Signatures. Any Party may execute this Agreement us ing an “electronic signature,” as that term is defined in California Civil Code Section 1633.2, or a “digital signature,” as defined by California Government Code Section 16 .5. An electronic or digital signature will have full legal ef fect and enforceability. Noth ing in this Agreement requires any Party to use or accept the sub mission of any subsequent or rela ted document containing an electronic or digital signature where written notice is otherwise required by this Agreement. [SIGNATURES FOLLOW]

434
435
436
437
438
439
440
APPROVED AS TO FORM:

WOODRUFF, SPRADLIN & SMART,
APC
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David E. Kendig
City Attorney, City of Tustin
4Y
Cal ' I
Clerk of

APPROVED AS TO FORM
SONIA R. CARVALHO, City Attorney
1, ,
Assistant City Attorney
APPROVED AS TO FORM:

ATKINSON, ANDELSON, LOYA, RUUD
ROMO

CITY OF TUSTIN
Dr. Allan Bernstein, Mayor

CITY OF SANTA ANA
By:

Rxistine RiTge-
City Manager

RECOMMENDED FOR APPROVAL
Nabil Saba
Executive Director
Public Works Agency

EAST ORANGE COUNTY WATER

DISTRICT
LE
Lisa Ohlund, General Manager
Jeffrey A. Hoskinson
SIGNATURES CONTINUED]
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Exhibit A
Allocation of Recovery
Example of proportionally dividi ng damages assuming litigation, after paying Shared Litigation Counsel, results in a total damage pool of 75% of all damages ($630M) claimed by all Participating Producers (total claims of $839M). The column to the far right reflects each co-plaintiff’s hypothetical recovery.
(Total Amount Claimed in Litigation by each co-plaintiff x .75)

(Dollar amounts shown are for il lustrative purposes only and are not related to actual PFAS cost that may be incurred or damages recovered. The numbers used herein are strictly hypothetical) 445

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Exhibit B
Notice Addresses
Orange County Water District
P.O. Box 8300
18700 Ward Street
Fountain Valley, CA 92708
Attn: General Manager
Mike Markus

City of Anaheim
201 S. Anaheim Blvd., Suite 1101
Anaheim, CA 92805
Attn: Assistant General Manager of Water Services
Michael Moore

City of Fullerton
303 W. Commonwealth Ave.

Fullerton, CA 92843
Attn: Public Works Director
Meg McWade

City of Garden Grove
13802 Newhope Street
Garden Grove CA, 92843
Attn: Public Works Director
Bill Murray

City of Orange
P.O. Box 449
Orange, CA 92856
Attn: Public Works Director
Christopher Cash

City of Tustin
P.O. Box 466
Tustin, CA 92781
Attn: Water Resources Manager
Mike Grisso

446

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City of Santa Ana
220 S. Daisy, Bldg. A
Santa Ana, CA 92703
Attn: Water Resources Manager
Nabil Saba

East Orange County Water District
185 N. McPherson Road
Orange, CA 92869-3720
Attn: General Manager
Lisa Ohlund

Irvine Ranch Water District
15600 Sand Canyon Avenue
Irvine, CA 92618
Attn: General Manager
Paul Cook

Serrano Water District
18021 Lincoln Street
Villa Park, CA 92861-6446
Attn: General Manager
Jerry Vilander

Yorba Linda Water District
P.O. Box 309
Yorba Linda, CA 92885-0309
Attn: General Manager
Brett Barbre

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Agenda Item
City Council
Item #: 8.1. 7/11/2023 File #: 23-0456
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

1. SUBJECT
Introduction and First Reading of an ordinance and adoption of an urgency ordinance amending Chapter 2.80 regarding obstruction and interference with enforcement of the Orange Municipal Code and Chapter 5.54 regarding impoundment of items related to sidewalk vending; and adoption of a resolution setting impound fees related to sidewalk vendors.

2. SUMMARY
Ordinance No. 09-23 and Urgency Ordinance No. 10-23 will: (1) establish criminal sanctions for any person who obstructs, impedes, threatens, follows, intimidates, or interferes with any code compliance officer, police, fire, or City personnel engaged in the performance of their respective duties, job description and/or enforcement authority as provided in the Orange Municipal Code; and (2) update the sidewalk vendor regulations to address impounding of sidewalk vending carts, food, equipment, utensils, goods or merchandise and appeal rights related to impoundment. Resolution No. 11482 will set impound and appeal fees for impounded items.

3. RECOMMENDED ACTION

1. Introduce and conduct First Reading of Ordinance No. 09-23. An Ordinance of the City Council of the City of Orange amending Chapter 2.80 of the Orange Municipal Code regarding obstruction and interference with enforcement of the Orange Municipal Code and Chapter 5.54 regarding impoundment of items related to sidewalk vending.

2. Adopt Ordinance No. 10-23 and the findings of urgency. An Urgency Ordinance of the City Council of the City of Orange amending Chapter 2.80 regarding obstruction and interference with enforcement of the Orange Municipal Code and Chapter 5.54 regarding impoundment of items related to sidewalk vending.

3. Adopt Resolution No. 11482. A Resolution of the City Council of the City of Orange setting the amount of appeal and impoundment fees relating to sidewalk vendors.

4. FISCAL IMPACT
None.

5. STRATEGIC PLAN GOALS
City of Orange Printed on 7/6/2023Page 1 of 6
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Goal 1: Provide for a Safe Community
a. Providing staffing and resources to deliver services that ensure public safety.

6. DISCUSSION AND BACKGROUND
The City’s Sidewalk Vending Permit program was approved on April 11, 2023, by adoption of Ordinance No. 03-23, which added Chapter 5.54 to the OMC and implemented regulations to provide a licensing and permitting process for sidewalk vending and impose operational requirements for sidewalk vendors within the City in compliance with Senate Bill 946 (“SB946”),to protect the health, safety, and welfare of the community.

The Community Development Department’s Code Compliance Division has been tasked with administering, promoting, and enforcing the program contained in Chapter 5.54 of the OMC by:

1. Requiring any person who engages in sidewalk vending activity to apply for a Sidewalk Vending Permit and obtain a City Business License;

2. Developing sidewalk vending informational materials and City website content in both English and Spanish to help facilitate the process for persons applying for a sidewalk vending permit;

3. Setting limits on hours of operation and imposing noise restrictions on sidewalk vending that are not unduly restrictive;

4. Requiring sidewalk vendors to maintain sanitary conditions (e.g., proper sanitation, food preparation, and food handling to prevent food contamination, poor hygienic practices, and threat of food poisoning);

5. Imposing regulations to ensure the collection and disposal of trash and other debris to avoid any remnant pollutants on sidewalks or in gutters at the conclusion of sidewalk vending activities;

6. Preventing the discharge of grease and oil on streets and sidewalks by imposing best management practices for containing and cleaning up spills;

7. Maintaining requirements for safe paths of travel for pedestrians and to ensure compliance with the Americans with Disabilities Act and other disability access standards;

8. Ensuring sidewalk vendors possess a Seller’s Permit from the California Department of Tax and Fee Administration, or obtain additional licenses from other state and local agencies to the extent required by law such as a health permit for sidewalk vendors who sell food to the public;

9. Requiring that a sidewalk vendor submit specified information regarding their vending operation;

10. Ensuring there is no interference with the performance of police, fire, and emergency medical personnel services; and

11. Placing additional time, place, and manner restrictions, provided said restrictions are directly related to objective health, safety, or welfare concerns such as distancing from other vendors.

Since the passage of the City’s Sidewalk Vending Permit program, no person has applied for a sidewalk vending permit. Code compliance staff have received over a hundred complaints from the public by telephone, in person or through the 24/7 app regarding unlicensed and unpermitted sidewalk vendors (herein described as “illegalsidewalk vendors”)operating on the public right-of-way City of Orange Printed on 7/6/2023Page 2 of 6
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sidewalk vendors (herein described as “illegalsidewalk vendors”)operating on the public right-of-way in violation of the OMC. Staff have contacted over sixty illegal sidewalk vendors, including over thirty repeat offenders regarding violations of the City’sSidewalk Vending Permit program. Those violations relate to objective to health, safety, or welfare concerns including, but not limited to:
• Unlicensed and unpermitted vending activity
• Serving food without a health permit
• Dumping grease and oil on a sidewalk and street
• Playing loud music
• Operating late hours (between 10:00 p.m. and 1:30 a.m. of the next day) • Setting up a large customer seating area over the sidewalk • Most significantly, blocking of safe paths of travel on sidewalks for pedestrians and persons with disabilities
Illegal sidewalk vendors have refused or failed to comply with notices issued to them by code compliance officers which are printed in both English and Spanish. Moreover, they refuse to provide identification to facilitate the issuance of administrative citations or other City notices. Since sidewalk vending has been decriminalized by State law contained in SB 946, these individuals cannot be arrested for failing to provide legal identification upon request of code compliance officers or police officers for the issuance of citations or notices. Therefore, despite numerous contacts with illegal sidewalk vendors, there has been no compliance with sidewalk vending regulations contained in the OMC.

Moreover, concerns regarding the safe handling of food have required the City to enter into a contract with the Orange County Health Care Agency (“OCHCA”)to impound unsafe food, equipment and utensils, under their County authority. To date, the impoundment of unsafe food, equipment and utensils has been done with approximately fourteen (14) illegal sidewalk vendors. However, the same illegal sidewalk vendors continue to reopen and engage in unlicensed and unpermitted sidewalk vending activities throughout the City. Unfortunately, at this point, the impoundment of unsafe food, equipment and utensils is limited to the availability of the OCHCA who serves other contract cities throughout the County.

In addition, code compliance officers have observed individuals herein described as “spotters”who appear to be part of an illegal sidewalk vendors’network. These spotters sit in cars near the City Hall parking lot for numerous hours throughout the day watching the movement of code compliance vehicles operating after typical work hours. When staff leave City vehicles in the City Hall parking lot, it is our understanding that a majority of the illegal sidewalk vendors begin illegal vending activities and, conversely, when spotters see staff driving City vehicles out of the City parking lot, invariably fewer vendors are found to be operating that evening. In order to encourage more effective enforcement, staff have been required to park City vehicles at other City facilities unknown and/or unmonitored by spotters.

There have also been other, more significant, difficulties with enforcement activities, related to the safety of code compliance officers. To illustrate, on one recent occasion, a person began aggressively following a code compliance officer’s [City or personal] vehicle throughout various streets causing staff to become apprehensive of danger, as the person’sultimate intentions were unknown at the time. This person was later identified as an owner or operator of an illegal sidewalk City of Orange Printed on 7/6/2023Page 3 of 6
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unknown at the time. This person was later identified as an owner or operator of an illegal sidewalk vending location that was shut down and/or cited by the OCHCA, police, and code compliance.

Based on all of the above, City staff has identified several areas within the OMC that would benefit from revision to address the recent activities of illegal sidewalk vendors and those apparently associated with them. For example, the proposed Ordinance amends Chapter 2.80 (Enforcement of the Orange Municipal Code) establishing criminal sanctions for any person who obstructs or interferes with any code compliance officer, police, fire, or City personnel engaged in the performance of their respective duties, job description and/or enforcement authority as provided in the OMC and amends Chapter 5.54 (Regulation of Sidewalk Vendors) to update regulations related to appeals and impoundments for sidewalk vendors.

Proposed additions and revisions are further summarized below:

New Section 2.80.030 (Obstruction or Interference with Code Compliance, Police, Fire or Authorized Officers or Employees)
The proposed addition to Chapter 2.80 (Enforcement of the Orange Municipal Code) makes it unlawful for any person to obstruct, impede, threaten, follow, intimidate, or interfere in any way with any City official including a code compliance officer police officer, firefighter, or other officers or employees of this City engaged in the performance of their respective duties, job description and/or enforcement authority as provided in the OMC. Those persons violating this new Section 2.80.030 would be guilty of a misdemeanor pursuant to Section 1.08.010 and, upon conviction, may be punished by a fine of not more than $1,000.00 or by imprisonment in the County Jail for a period of not more than six months, or by both fine and imprisonment. This new provision is intended to address general concern for the safety of City officials and the effective enforcement of the OMC highlighted by recent illegal and unpermitted sidewalk vendors.

Amended Section 5.54.150.C and D (Appeal of denial or revocation of Sidewalk Vending Permit and/or Impoundment)
To accompany the addition of a new Section 5.54.160 (discussed below), revised subsections C and D of Section 5.54.160 would explicitly include within the appeal process contained in Section

5.54.150, any sidewalk vendors who have had their sidewalk vending cart, food, equipment, utensils, goods, or merchandise impounded by the City.

New Section 5.54.160 (Impoundment) and accompanying Amendment to Definitions The proposed addition of Section 5.54.160 would provide the legal authority for any City official including a City code compliance officer, police officer, firefighter, fire prevention specialist or examiner, or Orange County health inspector working on behalf of the City to impound a sidewalk vendor’svending cart, food, equipment, utensils, goods or merchandise (collectively classified as “items”)used in violation of Chapter 5.54 pursuant to the provisions of Section 2080.10 of the California Civil Code, Section 114393 of the California Health and Safety Code and/or any other applicable City, County or State law for any of the following reasons:

Food displayed, offered, or made available for sale by a sidewalk vendor who does not hold a valid and displayed health permit;
A vending cart reasonably appearing to be unattended or abandoned on public or private property for more than thirty (30) consecutive minutes without moving and a responsible person City of Orange Printed on 7/6/2023Page 4 of 6
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within 50 feet;
Items displayed, offered, or made available for sale by a sidewalk vendor who does not possess a valid applicable Sidewalk Vending Permit and a City Business License; Items from a sidewalk vendor who fails or refuses to provide identification; A sidewalk vendor who refuses or fails to remove their items from public or private property within thirty (30) consecutive minutes after being instructed to do so by a City official; Items prohibited or restricted by Federal, State, County, or City laws, ordinances, or regulations;
Items creating an imminent and substantial danger or environmental hazard to the health, safety or general welfare of the public or property at the location of the vending cart; Items from a sidewalk vendor who within a twenty-four (24) month period, has been issued three (3) or more administrative citations;
Items impounded as evidence of a crime or booked as property after an arrest of any sidewalk vendor involving any City, County, State or Federal law or regulation excluding Chapter 5.54; Forfeiture impoundment of items from a repeat offender who has engaged in sidewalk vending activities in violation of the OMC two (2) or more times within a twenty-four (24) month period; Further, new Section 5.54.160 provides processes pertaining to impoundment. It provides that any sidewalk vendor whose items are impounded will be provided with a receipt and instructions on how to retrieve their items. It also provides a sidewalk vendor with the ability to appeal the impoundment action within twenty-one calendar days of the impoundment upon payment of an appeal fee.

Additionally, it provides for the recovery of impounded items upon payment of an impound fee. Lastly, it provides that any unclaimed items will be considered abandoned and forfeited to the City. New Section 5.54.160 also provides the Community Development Director with authority to develop additional regulations for the storage and release of impounded items, as other issues may arise that may necessitate expeditious policymaking.

It should be noted that the impoundment of items that are perishable and/or could not be safely stored shall be immediately disposed of in accordance with County and State law. The proposed Ordinance also adds “impound”to the Definitions contained in Section 5.54.020 in order to ensure the complete integration of these proposed changes into Chapter 5.54.

It is important to note that SB 946 does not restrict or limit the City’s legal authority to execute impoundment actions of vending carts, unsafe food, equipment, utensils, goods, or merchandise, against sidewalk vendors, as other cities have done, as such regulation is based on objective health, safety, or welfare concerns.

In summary, this proposed Ordinance will provide additional tools to code compliance personnel and other City officials in addressing both illegal and legal sidewalk vendors who fail to comply with the City’ssidewalk vending permit program and, importantly, provides for criminal sanctions against any person who interferes or obstructs City personnel in the performance of their duties or enforcement authority.

Because of the demonstrated objective health, safety and welfare concerns, Urgency Ordinance No. 10-23 will become effective immediately and will be superseded by Ordinance No. 09-23 when it goes into effect 30 days after the second reading (adoption). A four-fifths vote of the City Council is City of Orange Printed on 7/6/2023Page 5 of 6
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Item #: 8.1. 7/11/2023 File #: 23-0456
goes into effect 30 days after the second reading (adoption). A four-fifths vote of the City Council is required for passage of the Urgency Ordinance.

7. ATTACHMENTS
· Ordinance No. 09-23 - REDLINED
· Ordinance No. 09-23 - CLEAN
· Urgency Ordinance No. 10-23
· Resolution No. 11482
City of Orange Printed on 7/6/2023Page 6 of 6
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Agenda Item
City Council
Item #: 8.1. 7/11/2023 File #: 23-0456
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

1. SUBJECT
Introduction and First Reading of an ordinance and adoption of an urgency ordinance amending Chapter 2.80 regarding obstruction and interference with enforcement of the Orange Municipal Code and Chapter 5.54 regarding impoundment of items related to sidewalk vending; and adoption of a resolution setting impound fees related to sidewalk vendors.

2. SUMMARY
Ordinance No. 09-23 and Urgency Ordinance No. 10-23 will: (1) establish criminal sanctions for any person who obstructs, impedes, threatens, follows, intimidates, or interferes with any code compliance officer, police, fire, or City personnel engaged in the performance of their respective duties, job description and/or enforcement authority as provided in the Orange Municipal Code; and (2) update the sidewalk vendor regulations to address impounding of sidewalk vending carts, food, equipment, utensils, goods or merchandise and appeal rights related to impoundment. Resolution No. 11482 will set impound and appeal fees for impounded items.

3. RECOMMENDED ACTION

1. Introduce and conduct First Reading of Ordinance No. 09-23. An Ordinance of the City Council of the City of Orange amending Chapter 2.80 of the Orange Municipal Code regarding obstruction and interference with enforcement of the Orange Municipal Code and Chapter 5.54 regarding impoundment of items related to sidewalk vending.

2. Adopt Ordinance No. 10-23 and the findings of urgency. An Urgency Ordinance of the City Council of the City of Orange amending Chapter 2.80 regarding obstruction and interference with enforcement of the Orange Municipal Code and Chapter 5.54 regarding impoundment of items related to sidewalk vending.

3. Adopt Resolution No. 11482. A Resolution of the City Council of the City of Orange setting the amount of appeal and impoundment fees relating to sidewalk vendors.

4. FISCAL IMPACT
None.

5. STRATEGIC PLAN GOALS
City of Orange Printed on 7/6/2023Page 1 of 6
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Item #: 8.1. 7/11/2023 File #: 23-0456
Goal 1: Provide for a Safe Community
a. Providing staffing and resources to deliver services that ensure public safety.

6. DISCUSSION AND BACKGROUND
The City’s Sidewalk Vending Permit program was approved on April 11, 2023, by adoption of Ordinance No. 03-23, which added Chapter 5.54 to the OMC and implemented regulations to provide a licensing and permitting process for sidewalk vending and impose operational requirements for sidewalk vendors within the City in compliance with Senate Bill 946 (“SB946”),to protect the health, safety, and welfare of the community.

The Community Development Department’s Code Compliance Division has been tasked with administering, promoting, and enforcing the program contained in Chapter 5.54 of the OMC by:

1. Requiring any person who engages in sidewalk vending activity to apply for a Sidewalk Vending Permit and obtain a City Business License;

2. Developing sidewalk vending informational materials and City website content in both English and Spanish to help facilitate the process for persons applying for a sidewalk vending permit;

3. Setting limits on hours of operation and imposing noise restrictions on sidewalk vending that are not unduly restrictive;

4. Requiring sidewalk vendors to maintain sanitary conditions (e.g., proper sanitation, food preparation, and food handling to prevent food contamination, poor hygienic practices, and threat of food poisoning);

5. Imposing regulations to ensure the collection and disposal of trash and other debris to avoid any remnant pollutants on sidewalks or in gutters at the conclusion of sidewalk vending activities;

6. Preventing the discharge of grease and oil on streets and sidewalks by imposing best management practices for containing and cleaning up spills;

7. Maintaining requirements for safe paths of travel for pedestrians and to ensure compliance with the Americans with Disabilities Act and other disability access standards;

8. Ensuring sidewalk vendors possess a Seller’s Permit from the California Department of Tax and Fee Administration, or obtain additional licenses from other state and local agencies to the extent required by law such as a health permit for sidewalk vendors who sell food to the public;

9. Requiring that a sidewalk vendor submit specified information regarding their vending operation;

10. Ensuring there is no interference with the performance of police, fire, and emergency medical personnel services; and

11. Placing additional time, place, and manner restrictions, provided said restrictions are directly related to objective health, safety, or welfare concerns such as distancing from other vendors.

Since the passage of the City’s Sidewalk Vending Permit program, no person has applied for a sidewalk vending permit. Code compliance staff have received over a hundred complaints from the public by telephone, in person or through the 24/7 app regarding unlicensed and unpermitted sidewalk vendors (herein described as “illegalsidewalk vendors”)operating on the public right-of-way City of Orange Printed on 7/6/2023Page 2 of 6
powered by Legistar™
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Item #: 8.1. 7/11/2023 File #: 23-0456
sidewalk vendors (herein described as “illegalsidewalk vendors”)operating on the public right-of-way in violation of the OMC. Staff have contacted over sixty illegal sidewalk vendors, including over thirty repeat offenders regarding violations of the City’sSidewalk Vending Permit program. Those violations relate to objective to health, safety, or welfare concerns including, but not limited to:
• Unlicensed and unpermitted vending activity
• Serving food without a health permit
• Dumping grease and oil on a sidewalk and street
• Playing loud music
• Operating late hours (between 10:00 p.m. and 1:30 a.m. of the next day) • Setting up a large customer seating area over the sidewalk • Most significantly, blocking of safe paths of travel on sidewalks for pedestrians and persons with disabilities
Illegal sidewalk vendors have refused or failed to comply with notices issued to them by code compliance officers which are printed in both English and Spanish. Moreover, they refuse to provide identification to facilitate the issuance of administrative citations or other City notices. Since sidewalk vending has been decriminalized by State law contained in SB 946, these individuals cannot be arrested for failing to provide legal identification upon request of code compliance officers or police officers for the issuance of citations or notices. Therefore, despite numerous contacts with illegal sidewalk vendors, there has been no compliance with sidewalk vending regulations contained in the OMC.

Moreover, concerns regarding the safe handling of food have required the City to enter into a contract with the Orange County Health Care Agency (“OCHCA”)to impound unsafe food, equipment and utensils, under their County authority. To date, the impoundment of unsafe food, equipment and utensils has been done with approximately fourteen (14) illegal sidewalk vendors. However, the same illegal sidewalk vendors continue to reopen and engage in unlicensed and unpermitted sidewalk vending activities throughout the City. Unfortunately, at this point, the impoundment of unsafe food, equipment and utensils is limited to the availability of the OCHCA who serves other contract cities throughout the County.

In addition, code compliance officers have observed individuals herein described as “spotters”who appear to be part of an illegal sidewalk vendors’network. These spotters sit in cars near the City Hall parking lot for numerous hours throughout the day watching the movement of code compliance vehicles operating after typical work hours. When staff leave City vehicles in the City Hall parking lot, it is our understanding that a majority of the illegal sidewalk vendors begin illegal vending activities and, conversely, when spotters see staff driving City vehicles out of the City parking lot, invariably fewer vendors are found to be operating that evening. In order to encourage more effective enforcement, staff have been required to park City vehicles at other City facilities unknown and/or unmonitored by spotters.

There have also been other, more significant, difficulties with enforcement activities, related to the safety of code compliance officers. To illustrate, on one recent occasion, a person began aggressively following a code compliance officer’s [City or personal] vehicle throughout various streets causing staff to become apprehensive of danger, as the person’sultimate intentions were unknown at the time. This person was later identified as an owner or operator of an illegal sidewalk City of Orange Printed on 7/6/2023Page 3 of 6
powered by Legistar™
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Item #: 8.1. 7/11/2023 File #: 23-0456
unknown at the time. This person was later identified as an owner or operator of an illegal sidewalk vending location that was shut down and/or cited by the OCHCA, police, and code compliance.

Based on all of the above, City staff has identified several areas within the OMC that would benefit from revision to address the recent activities of illegal sidewalk vendors and those apparently associated with them. For example, the proposed Ordinance amends Chapter 2.80 (Enforcement of the Orange Municipal Code) establishing criminal sanctions for any person who obstructs or interferes with any code compliance officer, police, fire, or City personnel engaged in the performance of their respective duties, job description and/or enforcement authority as provided in the OMC and amends Chapter 5.54 (Regulation of Sidewalk Vendors) to update regulations related to appeals and impoundments for sidewalk vendors.

Proposed additions and revisions are further summarized below:

New Section 2.80.030 (Obstruction or Interference with Code Compliance, Police, Fire or Authorized Officers or Employees)
The proposed addition to Chapter 2.80 (Enforcement of the Orange Municipal Code) makes it unlawful for any person to obstruct, impede, threaten, follow, intimidate, or interfere in any way with any City official including a code compliance officer police officer, firefighter, or other officers or employees of this City engaged in the performance of their respective duties, job description and/or enforcement authority as provided in the OMC. Those persons violating this new Section 2.80.030 would be guilty of a misdemeanor pursuant to Section 1.08.010 and, upon conviction, may be punished by a fine of not more than $1,000.00 or by imprisonment in the County Jail for a period of not more than six months, or by both fine and imprisonment. This new provision is intended to address general concern for the safety of City officials and the effective enforcement of the OMC highlighted by recent illegal and unpermitted sidewalk vendors.

Amended Section 5.54.150.C and D (Appeal of denial or revocation of Sidewalk Vending Permit and/or Impoundment)
To accompany the addition of a new Section 5.54.160 (discussed below), revised subsections C and D of Section 5.54.160 would explicitly include within the appeal process contained in Section

5.54.150, any sidewalk vendors who have had their sidewalk vending cart, food, equipment, utensils, goods, or merchandise impounded by the City.

New Section 5.54.160 (Impoundment) and accompanying Amendment to Definitions The proposed addition of Section 5.54.160 would provide the legal authority for any City official including a City code compliance officer, police officer, firefighter, fire prevention specialist or examiner, or Orange County health inspector working on behalf of the City to impound a sidewalk vendor’svending cart, food, equipment, utensils, goods or merchandise (collectively classified as “items”)used in violation of Chapter 5.54 pursuant to the provisions of Section 2080.10 of the California Civil Code, Section 114393 of the California Health and Safety Code and/or any other applicable City, County or State law for any of the following reasons:

Food displayed, offered, or made available for sale by a sidewalk vendor who does not hold a valid and displayed health permit;
A vending cart reasonably appearing to be unattended or abandoned on public or private property for more than thirty (30) consecutive minutes without moving and a responsible person City of Orange Printed on 7/6/2023Page 4 of 6
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within 50 feet;
Items displayed, offered, or made available for sale by a sidewalk vendor who does not possess a valid applicable Sidewalk Vending Permit and a City Business License; Items from a sidewalk vendor who fails or refuses to provide identification; A sidewalk vendor who refuses or fails to remove their items from public or private property within thirty (30) consecutive minutes after being instructed to do so by a City official; Items prohibited or restricted by Federal, State, County, or City laws, ordinances, or regulations;
Items creating an imminent and substantial danger or environmental hazard to the health, safety or general welfare of the public or property at the location of the vending cart; Items from a sidewalk vendor who within a twenty-four (24) month period, has been issued three (3) or more administrative citations;
Items impounded as evidence of a crime or booked as property after an arrest of any sidewalk vendor involving any City, County, State or Federal law or regulation excluding Chapter 5.54; Forfeiture impoundment of items from a repeat offender who has engaged in sidewalk vending activities in violation of the OMC two (2) or more times within a twenty-four (24) month period; Further, new Section 5.54.160 provides processes pertaining to impoundment. It provides that any sidewalk vendor whose items are impounded will be provided with a receipt and instructions on how to retrieve their items. It also provides a sidewalk vendor with the ability to appeal the impoundment action within twenty-one calendar days of the impoundment upon payment of an appeal fee.

Additionally, it provides for the recovery of impounded items upon payment of an impound fee. Lastly, it provides that any unclaimed items will be considered abandoned and forfeited to the City. New Section 5.54.160 also provides the Community Development Director with authority to develop additional regulations for the storage and release of impounded items, as other issues may arise that may necessitate expeditious policymaking.

It should be noted that the impoundment of items that are perishable and/or could not be safely stored shall be immediately disposed of in accordance with County and State law. The proposed Ordinance also adds “impound”to the Definitions contained in Section 5.54.020 in order to ensure the complete integration of these proposed changes into Chapter 5.54.

It is important to note that SB 946 does not restrict or limit the City’s legal authority to execute impoundment actions of vending carts, unsafe food, equipment, utensils, goods, or merchandise, against sidewalk vendors, as other cities have done, as such regulation is based on objective health, safety, or welfare concerns.

In summary, this proposed Ordinance will provide additional tools to code compliance personnel and other City officials in addressing both illegal and legal sidewalk vendors who fail to comply with the City’ssidewalk vending permit program and, importantly, provides for criminal sanctions against any person who interferes or obstructs City personnel in the performance of their duties or enforcement authority.

Because of the demonstrated objective health, safety and welfare concerns, Urgency Ordinance No. 10-23 will become effective immediately and will be superseded by Ordinance No. 09-23 when it goes into effect 30 days after the second reading (adoption). A four-fifths vote of the City Council is City of Orange Printed on 7/6/2023Page 5 of 6
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Item #: 8.1. 7/11/2023 File #: 23-0456
goes into effect 30 days after the second reading (adoption). A four-fifths vote of the City Council is required for passage of the Urgency Ordinance.

7. ATTACHMENTS
· Ordinance No. 09-23 - REDLINED
· Ordinance No. 09-23 - CLEAN
· Urgency Ordinance No. 10-23
· Resolution No. 11482
City of Orange Printed on 7/6/2023Page 6 of 6
powered by Legistar™
563
1 ORDINANCE NO. 09-23

AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ORANGE AMENDING CHAPTER 2.80 OF

THE ORANGE MUNICIPAL CODE REGARDING

OBSTRUCTION AND INTERFERENCE WITH

ENFORCEMENT OF THE ORANGE MUNICIPAL
CODE AND CHAPTER 5.54 REGARDING

IMPOUNDMENT OF ITEMS RELATED TO

SIDEWALK VENDING

[Pertinent provisions only]

SECTION II:

New Section 2.80.030 (Administration and Personnel - Enforcement of the Orange Municipal Code - Obstruction or Interference with Code Enforcement, Police, Fire or Authorized Officers or Employees) is hereby added to read as follows:

2.80.030 Obstruction or Interference with Code Enforcement, Police, Fire or Authorized Officers or Employees.

It shall be unlawful for any person to obstruct, impede, threaten, follow, intimidate, or interfere in any way with any City official including a code compliance officer, police officer, firefighter, or other officers or employees o f this City engaged in the performance of their respective duties, job description and/or enforcement authority as provided in the Orange Municipal Code. Such person shall be guilty of a misdemeanor pursuant to Section 1.08.010 and, upon conviction thereof, unless provision is otherwise herein made by any other applicable state law, shall be subject to a fine of not more than $1,000.00 or by imprisonment in the County Jail for a period of not more than six months, or by both fine and imprisonment.

SECTION III:

Section 5.54.020 of the Orange Municipal Code (Business Taxes and Regulation s - Regulation of Sidewalk Vendors - Definitions) is hereby revised to add the following:

“Impound” means to seize or take custody of sidewalk vending cart, equipment, utensils, food or merchandise (collectively classified as “items”) because of a violation of any applicable law or regulation.

SECTION IV:

Sections 5.54.150.C and 5.54.150.D of the Orange Municipal Code (Business Taxes and Regulations - Regulation of Sidewalk Vendor s – Ability to Pay Determination and Appeals ) are hereby amended to read as follows:

564
2 C. Appeal of denial or revocation of Sidewalk Vending Permit and/or impoundment.

1. Any person who has been denied a Sidewalk Vending Permit or who has had a Sidewalk Vending Permit revoked by the Director or designee, or has had their sidewalk vending cart, food, equipment, utensils, goods or merchandise (collectively classified as “items”) impounded pursuant to this chapter may appeal such determination to the hearing officer, by filing a request for an appeal with the City Clerk, and paying an appeal fee as set by resolution of the City Council, within 21 calendar days of service of the notice of such denial , revocation and/or impoundment. The request for an appeal shall contain, at a minimum, the following:

a. The name, current mailing address, a nd telephone number of the appellant;

b. As applicable, t he date of denial or rescission by the Director or designee, or the date of impoundment of items by a City official;

c. A statement as to all grounds for appeal in sufficient detail to enable the hearing officer, to understand the nature of the controversy; and

d. The signature of the appellant under penalty of perjury as to the contents of the request for appeal.

2. An appeal shall be scheduled for a hearing before the hearing officer within thirty 30 calendar days of the filing of the appeal unless both the appellant and the hearing officer consent to a later date.

3. The hearing officer shall give notice in writ ing to the appellant of the time and location of the appeal hearing. At the hearing, the hearing officer shall review the record of the decision for denial of a Sidewalk Vending Permit or revocation of a Sidewalk Vending Permit by the Director and/or reason for impoundment of items and hear testimony of the appellant, if any, the applicant, and any other interested party. The appeal shall be reviewed and determined on a de novo basis.

D. After the hearing, the hearing officer shall affirm, modify, or reverse the original denial or revocation and/or impoundment. When a denial or revocation and/or impoundment is modified or reversed, the hearing officer shall state the specific reasons for modification or reversal. Reversal of impoundment by the hearing officer shall result in the City returning the impounded items (excluding items that are perishable and/or co uld not be safely stored ) back to the appellant within 15 business days. Decisions on appeals shall be rendered within 30 calendar days of the close of the hearing. The hearing officer shall mail notice of a decision to the appellant.

Such notice shall be mailed within five working days after the date of the decision to the appellant.

The decision of the hearing officer shall be final.

565
3 SECTION V:

New Section 5.54.160 of the Orange Municipal Code (Business Taxes and Regulation s - Regulation of Sidewalk Vendors – Impoundment) is hereby added to read as follows:

5.54.160 Impoundment.

A. Impoundment authorization. Any City official , including a code compliance officer, police officer, firefighter, fire prevention specialist or examiner may impound a sidewalk vendor’s vending cart, food, equipment, utensils, goods or merchandise (collectively classified as “items”) used in violation o f this chapter pursuant to the provisions of Section 2080.10 of the California Civil Code, Section 114393 of the California Health and Safety Code and/or any other applicable City, county or state law for any of the following reasons:

1. Food displayed, offered, or made available for sale including equipment, or utensils used by a sidewalk vendor without holding a valid and displayed health permit from the Orange County Health Care Agency ’s Environmental Health Division in violation of county or state law;

2. Items reasonably appear to be unattended or abandoned on public or private property for more than thirty 30 consecutive minutes without moving from the exact spot it was located and reasonable attempts were made to locate the owner or responsible person(s) within the first fifty 50 feet of the items;

3. Items displayed, offered, or made available for sale by a sidewalk vendor who does not possess a valid applicable Sidewalk Vending Permit and a City Business License as required by Section 5.54.030.A;

4. Items displayed, offered, or made available for sale by a sidewalk vendor who operates in violation of this chapter; and refuses or fails to provide identification, as required by Section 5.54.100.T;

5. Operation in violation of this chapter and refusal or failure by a sidewalk vendor to remove items from public or private property within 30 consecutive minutes after being instructed to do so by a City official;

6. Items displayed, offered, or made available for sale by a sidewalk vendor who vends in a manner that blocks or obstructs the free movement of pedestrians on sidewalks and fails to maintain a minimum of forty -eight inches (48″) of accessible path of travel, without obstruction, along the sidewalk upon which the vendor is vending so as to enable persons to freely pass while walking, running, or using mobility assistance devices and/or in violation of the Federal Americans with Disabilities Act of 1990 (Public Law 101 -336) and other disability access standards;

7. Items displayed, offered, or made available for sale in violation of any applicable federal, state, county, or City laws, ordinances, and regulations, including but not 566
4 limited to illegal or counterfeit merchandise, alcohol, tobacco, cannabis, smoke or vaping products, adult-oriented material, live animals, weapons, and/or pharmaceuticals;

8. Items creating an imminent and substantial danger or environmental hazard to the health, safety or general welfare of the public or property at the location of the vending cart such as, but not limited to , discharge of oil , grease or other slippery substances on t he street or sidewalk without any effort to maintain best management practices; us ing unapproved portable cooking equipment, heating element, gas -fueled appliance, generator, or any open flame; during an urgent or emergency public safety event or incident; lack of a fire extinguisher ; using any luminaire, flashing lights or any other animated devices or sign; or using, operating or permitting any radio, loudspeaker or other machine or device for the producing or reproducing of sound;

9. Items displayed, offered, or made available for sale by a sidewalk vendor who has, within a 24 month period, been issued 3 or more administrative citations for violations of this chapter; or

10. Items impounded as evidence of a crime or booked as property after an arrest of any sidewalk vendor involving any City, county, state or federal law or regulation excluding Chapter 5.54. Such items shall be stored, and released in accordance with the procedures set forth in the California Penal Code and any other applicable state law.

B. Forfeiture impoundment authorization for repeat offenders . The City may immediately conduct a forfeiture impoundment of items from a sidewalk vendor who has been found responsible for engaging in sidewalk vending activities in violation of this chapter 2 or more times within a 24 month period (herein identified as a repeat offender) after being contacted by a City official who issued a notice of violation . An aggrieved repeat offender may appeal a City forfeiture impoundment action pursuant to the procedures set forth in this section.

C. Disposal authorization. The City may immediately dispose of impounded items that are perishable and/or cannot be safely stored.

D. Impoundment period of items held by City . The impoundment of any sidewalk vendor’s items , excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored, may be held by the City for not less than 30 nor more than 60 calendars days from the date of impoundment.

E. Impoundment notification. Upon impoundment of items under this section, the Director or designee shall do all the following:

1. Take responsibility for the storage, documentation, and disposition of the items excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored.

2. Provide the person from whom the items were taken with a receipt and instructions for the retrieval of the items excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored. The receipt and instructi ons shall 567
5 either be given to the person from whom the items were taken at the time the City official obtained the items or mailed on the next business day, by first class mail, to the person from whom the items were taken.

3. If the City official has knowledge that the person from whom the items were taken is not the owner, the Director or designee shall make reasonable efforts to identify the owner.

If the owner is identified, the Director or designee shall mail, by first class mail, a receipt and instructions for the retrieval of the items excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored.

a. The receipt and instructions shall notify the person from whom the items were taken that the items must be claimed either within (A) 30 days of impoundment pursuant to Section 114393 of the California Health and Safety Code and/or (B) 60 days of impoundment pursuant to Section 2080.10 of the California Civil Code after the City obtains possession of the items will be disposed of in accordance with the disposal provisions of this section or any other applicable county or state law. Within the applicable 30 or 60 days, the person may do one of the following:

i. Retrieve the items, excluding any items that were
immediately disposed of because they were perishable and/or could not be safely stored.

ii. Authorize in writing another person to retrieve the items, excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored.

iii. Notify the City in writing that they are unable to retrieve the items because they are in custody (e.g., jail or prison) and request the City to hold the items, excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored. If a person notifies the City that they are unable to either retrieve the items within the applicable 30 or 60 days, or have an authorized person retrieve the items, the City shall hold the items for not longer than 10 additional months, after which time the City may dispose of the items in accordance with the disposal provisions of this Code or any other applicable county or state law.

b. Pursuant to state law the City shall not be liable for damages caused by any official action performed with due care regarding the disposition of items pursuant to this section and the disposal provisions of this chapter.

F. Appeal of impoundment. An aggrieved sidewalk vendor may, within 21 calendar days of the impoundment, appeal the impoundment of their items by requesting an administrative hearing before a hearing officer in accordance with Section 5.54.150.C and, if successful in their appeal, may have their items returned, excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored and shall not be required to pay the impound fee(s). If the sidewalk vendor is successful on appeal, any appeal fee paid by the sidewalk vendor shall be refunded.

568
6 G. Recovery of impounded items and payment of impound fees. A sidewalk vendor may recover impounded items, excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored, upon paying applicable impound fees and demonstrating proper proof of ownership of the items.

H. The City Council may by resolution adopt impound fees, which shall reflect the City’s personnel, enforcement, investigation, storage, disposal and impound costs.

I. Unclaimed items. Any unclaimed items will be considered abandoned and forfeited to the City after (A) 30 days of impoundment pursuant to Section 114393 of the California Health and Safety Code and/or (B) 60 days of impoundment pursuant to Section 2080.10 of the California Civil Code or any other applicable county or state law.

J. The Director is further authorized to develop additional regulations for the storage and release of impounded items not in conflict with this chapter.

569
1 ORDINANCE NO. 09-23

AN ORDINANCE OF THE CITY COUNCIL OF

THE CITY OF ORANGE AMENDING CHAPTER

2.80 OF THE ORANGE MUNICIPAL CODE

REGARDING OBSTRUCTION AND

INTERFERENCE WITH ENFORCEMENT OF

THE ORANGE MUNICIPAL CODE AND
CHAPTER 5.54 REGARDING IMPOUNDMENT

OF ITEMS RELATED TO SIDEWALK VENDING

WHEREAS, California Constitution, Article XI, Section 7, authorizes the City of Orange (“City”) to adopt and enforce local police, sanitary, and other ordinances and regulations that are not in conflict with general laws; and

WHEREAS, the California State Legislature found and declared in Senate Bill 296, signed into law by the Governor on October 7, 2021 , that “Code Enforcement Offi cers are disproportionately at risk for threat, assault, injury and homicide due to the nature of their obligations;” and

WHEREAS, the City of Orange desires to amend the provisions of the Orange Municipal Code to impose criminal sanctions upon any person who obstructs, impedes, threatens, follows, intimidates, or interferes with any code compliance officers, police, fire, or City personnel engaged in the performance of their respective duties, job description and/or enforcement authority as provided in the Orange Municipal Code; and

WHEREAS, the City also desires to amend the provisions of the Orange Municipal Code to impose regula tions related to the impoundment of sidewalk vendor ’s vending cart, food, equipment, utensils, goods or merchandise (collectively classified as “items”) due to violations of City, county, state or federal laws relating to health, safety and welfare; and

WHEREAS, California Senate Bill 946, the California Safe Sidewalk Vending Act (“SB 946”), became effective on January 1, 2019; and

WHEREAS, SB 946 establishes requirements for local regulation of sidewalk vendors; and

WHEREAS, On April 11, 2023, the City Council adopted Ordinance No. 03 -23 implementing sidewalk vending regulations to provide a licensing and permitting process and impose operational requirements for sidewalk vendors in the City in compliance with SB 946 , to protect the health, safety, and welfare of the community; and

WHEREAS, the City Council hereby finds that to promote and protect the public health, safety and welfare, restrictions on sidewalk vending set forth in this Ordinance are necessary to:

570
2 1. Ensure no unreasonable interference with the flow of pedestrian or vehicular traffic, including ingress into or from, residences, businesses, or public buildings, or from the street to the sidewalk, by persons exiting or entering parked or standing vehicles;

2. Allow for the safe and effective performance of code compliance, police, firefighter and emergency medical personnel services in the public right-of-way;

3. Ensure that sidewalk vending activities occur only in locations where such activities would not restrict the use and enjoyment of sidewalks and pathways by any persons including persons with disabilities;

4. Ensure compliance with the Federal Americans with Disabilities Act of 1990 (Public Law 101-336) and other disability access standards;

5. Provide reasonable access to the use and maintenance of sidewalks, pathways, poles, posts, traffic signs or signals, hydrants, firefighting apparatus, mailboxes, as well as access to locations used for public transportation services;

6. Maintain sanitary conditions of items offered to the public, especially food items ; and

7. Reduce exposure to the City for personal injury or property damage claims and litigation that may be caused in whole or in part by the activities of sidewalk vending in the public right-of-way.

WHEREAS, the City Council finds that the regulations set forth herein are directly related to, and necessary to address, objective health, safety, a nd welfare concerns, including but not limited to the health, safety and welfare of vendors, their prospective customers, pedestrians, those protected by the Americans with Disabilities Act, those operating motor vehicles at intersections and in rights-of-way adjacent to sidewalks, and the public at large.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES HEREBY ORDAIN AS FOLLOWS:

SECTION I:

The Ordinance is not a “project” subject to the provisions of the California Environmental Quality Act (“CEQA”) per State CEQA Guidelines Section 15378 because it involves an organizational and administrative activity of the City of Orange that will not result in direct or indirect physical changes in the environment.

571
3 SECTION II:

New Section 2.80.030 (Administration and Personnel - Enforcement of the Orange Municipal Code - Obstruction or Interference with Code Enforcement, Police, Fire or Authorized Officers or Employees) is hereby added to read as follows:

2.80.030 Obstruction or Interference with Code Enforcement, Police, Fire or Authorized Officers or Employees.

It shall be unlawful for any person to obstruct, impede, threaten, follow, intimidate, or interfere in any way with any City official including a code com pliance officer, police officer, firefighter, or other officers or employees of this City engaged in the performance of their respective duties, job description and/or enforcement authority as provided in the Orange Municipal Code. Such person shall be guilty of a misdemeanor pursuant to Section 1.08.010 and, upon conviction thereof, unless provision is otherwise herein made by any other applicable state law, shall be subject to a fine of not more than $1,000.00 or by imprisonment in the County Jail for a period of not more than six months, or by both fine and imprisonment.

SECTION III:

Section 5.54.020 of the Orange Municipal Code (Business Taxes and Regulation s - Regulation of Sidewalk Vendors - Definitions) is hereby revised to add the following:

“Impound” means to seize or take custody of sidewalk vending cart, equipment, utensils, food or merchandise (collectively classified as “items”) because of a violation of any applicable law or regulation.

SECTION IV:

Sections 5.54.150.C and 5.54.150.D of the Orange Municipal Code (Business Taxes and Regulations - Regulation of Sidewalk Vendor s – Ability to Pay Determination and Appeals ) are hereby amended to read as follows:

C. Appeal of denial or revocation of Sidewalk Vending Permit and/or impoundment.

1. Any person who has been denied a Sidewalk Vending Permit or who has had a Sidewalk Vending Permit revoked by the Director or designee, or has had their sidewalk vending cart, food, equipment, utensils, goods or merchandise (collectively classified as “items”) impounded pursuant to this chapter may appeal such determination to the hearing officer, by filing a request for an appeal with the City Clerk, and paying an appeal fee as set by resolution of the City Council, within 21 calendar days of service of the notice of such denial , revocation and/or impoundment. The request for an appeal shall contain, at a minimum, the following:

a. The name, current mailing address, and telephone number of the appellant;

572
4 b. As applicable, t he date of denial or rescission by the Director or designee, or the date of impoundment of items by a City official;

c. A statement as to all grounds for appeal in sufficient detail to enable the hearing officer, to understand the nature of the controversy; and

d. The signature of the appellant under penalty of perjury as to the contents of the request for appeal.

2. An appeal shall be scheduled for a hearing before the hearing officer within thirty 30 calendar days of the filing of the appeal unless both the appellant and the hearing officer consent to a later date.

3. The hearing officer shall give notice in writ ing to the appellant of the time and location of the appeal hearing. At the hearing, the hearing officer shall review the record of the decision for denial of a Sidewalk Vending Permit or revocation of a Sidewalk Vending Permit by the Director and/or reason for impoundment of items and hear testimony of the appellant, if any, the applicant, and any other interested party. The appeal shall be reviewed and determined on a de novo basis.

D. After the hearing, the hearing officer shall affirm, modify, or reverse the original denial or revocation and/or impoundment. When a denial or revocation and/or impoundment is modified or reversed, the hearing officer shall state the specific reasons for m odification or reversal. Reversal of impoundment by the hearing officer shall result in the City returning the impounded items (excluding items that are perishable and/or could not be safely stored ) back to the appellant within 15 business days. Decisions on appeals shall be rendered within 30 calendar days of the close of the hearing. The hearing officer shall mail notice of a decision to the appellant.

Such notice shall be mailed within five working days after the date of the decision to the appellant.

The decision of the hearing officer shall be final.

SECTION V:

New Section 5.54.160 of the Orange Municipal Code (Business Taxes and Regulations - Regulation of Sidewalk Vendors – Impoundment) is hereby added to read as follows:

5.54.160 Impoundment.

A. Impoundment authorization. Any City official , including a code compliance officer, police officer, firefighter, fire prevention specialist or examiner may impound a sidewalk vendor’s vending cart, food, equipment, utensils, goods or merchandise (collectively classified as “items”) used in violation of this chapter pursuant to the provisions of Section 2080.10 of the California Civil Code, Section 114393 of the California Health and Safety Code and/or any other applicable City, county or state law for any of the following reasons:

1. Food displayed, offered, or made available for sale including equipment, or utensils used by a sidewalk vendor without holding a valid and displayed health permit from the 573
5 Orange County Health Care Agency’s Environmental Health Division in violation of county or state law;

2. Items reasonably appear to be unattended or abandoned on public or private property for more than thirty 30 consecutive minutes without moving from the exact spot it was located and reasonable attempts were made to locate the owner or responsible person(s) within the first fifty 50 feet of the items;

3. Items displayed, offered, or ma de available for sale by a sidewalk vendor who does not possess a valid applicable Sidewalk Vending Permit and a City Business License as required by Section 5.54.030.A;

4. Items displayed, offered, or made available for sale by a sidewalk vendor who operates in violation of this chapter; and refuses or fails to provide identification, as required by Section 5.54.100.T;

5. Operation in violation of this chapter and refusal or failure by a sidewalk vendor to remove items from public or private property within 30 consecutive minutes after being instructed to do so by a City official;

6. Items displayed, offered, or made available for sale by a sidewalk vendor who vends in a manner that blocks or obstructs the free movement of pedestrians on sidewalks and fails to maintain a minimum of forty -eight inches (48″) of accessible path of travel, without obstruction, along the sidewalk upon which the vendor is vending so as to enable persons to freely pass while walking, running, or using mobility assistance devices and/or in violation of the Federal Americans with Disabilities Act of 1990 (Public Law 101 -336) and other disability access standards;

7. Items displayed, offered, or made available for sale in violation of any applicable federal, state, county, or City laws, ordinances, and regulations, including but not limited to illegal or counterfeit merchandise, alcohol, tobacco, cannabis, smoke or vaping products, adult-oriented material, live animals, weapons, and/or pharmaceuticals;

8. Items creating an imminent and substantial danger or environmental hazard to the health, safety or general welfare of the public or property at the location of the vending cart such as, but not limited to , discharge of oil , grease or other slippery substances on t he street or sidewalk without any effort to maintain best management practices; us ing unapproved portable cooking equipment, heating element, gas -fueled appliance, generator, or any open flame; during an urgent or emergency public safety event or incident; lack of a fire extinguisher ; using any luminaire, flashing lights or any other animated devices or sign; or using, operating or permitting any radio, loudspeaker or other machine or device for the producing or reproducing of sound;

9. Items displayed, offered, or made available fo r sale by a sidewalk vendor who has, within a 24 month period, been issued 3 or more administrative citations for violations of this chapter; or

574
6 10. Items impounded as evidence of a crime or booked as property after an arrest of any sidewalk vendor involving any City, county, state or federal law or regulation excluding Chapter 5.54. Such items shall be stored, and released in accordance with the procedures set forth in the California Penal Code and any other applicable state law.

B. Forfeiture impoundment authorization for repeat offenders. The City may immediately conduct a forfeiture impoundment of items from a sidewalk vendor who has been found responsible for engaging in sidewalk vending activities in violation of this chapter 2 or more times within a 24 month period (herein identified as a repeat offender) after being contacted by a City official who issued a notice of violation . An aggrieved repeat offender may appeal a City forfeiture impoundment action pursuant to the procedures set forth in this section.

C. Disposal authorization. The City may immediately dispose of impounded items that are perishable and/or cannot be safely stored.

D. Impoundment period of items held by City. The impoundment of any sidewalk vendor’s items , excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored, may be held by the City for not less than 30 nor more than 60 calendars days from the date of impoundment.

E. Impoundment notification. Upon impoundment of items under this section, the Director or designee shall do all the following:

1. Take responsibility for the storage, documentation, and disposition of the items excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored.

2. Provide the person from whom the items were taken w ith a receipt and instructions for the retrieval of the items excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored. The receipt and instructions shall either be given to the person from whom the items were taken at the time the City official obtained the items or mailed on the next business day, by first class mail, to the person from whom the items were taken.

3. If the City official has knowledge that the person from whom the items were taken is not the owner, the Director or designee shall make reasonable efforts to identify the owner.

If the owner is identified, the Director or designee shall mail, by first class mail, a receipt and instructions for the retrieval of the items excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored.

a. The receipt and instructions shall notify the person from whom the items were taken that the items must be claimed either within (A) 30 days of impoundment pursuant to Section 114393 of the California Health and Safety Code and/or (B) 60 days of impoundment pursuant to Section 2080.10 of the California Civil Code after the City obtains possession of the items will be disposed of in accordance with the disposal provisions of this 575
7 section or any other applicable county or state law. Within the applicable 30 or 60 days, the person may do one of the following:

i. Retrieve the items, excluding any items that were
immediately disposed of because they were perishable and/or could not be safely stored.

ii. Authorize in writing another person to retrieve the items, excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored.

iii. Notify the City in writing that they are unable to retrieve the items because they are in custody (e.g., jail or pris on) and request the City to hold the items, excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored. If a person notifies the City that they are unable to either retrieve the items within the applicable 30 or 60 days, or have an authorized person retrieve the items, the City shall hold the items for not longer than 10 additional months, after which time the City may dispose of the items in accordance with the disposal provisions of this Code or any other applicable county or state law.

b. Pursuant to state law the City shall not be liable for damages caused by any official action performed with due care regarding the disposition of items pursuant to this section and the disposal provisions of this chapter.

F. Appeal of impoundment. An aggrieved sidewalk vendor may, within 21 calendar days of the impoundment, appeal the impoundment of their items by requesting an administrative hearing before a hearing officer in accordance with Section 5.54.150.C and, if successful in their appeal, may have their items returned, excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored and shall not be required to pay the impound fee(s). If the sidewalk vendor is successful on appeal, any appeal fee paid by the sidewalk vendor shall be refunded.

G. Recovery of impounded items and payment of impound fees. A sidewalk vendor may recover impounded items, excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored, upon paying applicable impound fees and demonstrating proper proof of ownership of the items.

H. The City Council may by resolution adopt impound fees, which shall reflect the City’s personnel, enforcement, investigation, storage, disposal and impound costs.

I. Unclaimed items. Any unclaimed items will be considered abandoned and forfeited to the City after (A) 30 days of impoundment pursuant to Section 114393 of the California Health and Safety Code and/or (B) 60 days of impoundment pursuant to Section 2080.10 of the California Civil Code or any other applicable county or state law.

J. The Director is further authorized to develop additional regulations for the storage and release of impounded items not in conflict with this chapter. 576
8 SECTION VI:

If any section, subdivision, paragraph, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each section, subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact that any one (or more) section, subdivision, paragraph, sentence, clause or phrase had been declared invalid or unconstitutional.

SECTION VII:

The City Clerk is hereby directed to certify the adoption of this Ordinance and cause the same to be published as required by law. This Ordinance shall take effect thirty (30) days from and after the date of its final passage.

ADOPTED this ____ day of ___________________, 2023.

Daniel R. Slater, Mayor, City of Orange

ATTEST:

Pamela Coleman, City Clerk, City of Orange

STATE OF CALIFORNIA )

COUNTY OF ORANGE )

CITY OF ORANGE )

I, PAMELA COLEMAN, City Clerk of the City of Orange, California, do hereby certify that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the ___ day of _____________, 2023, and thereafter at the regular meeting of said City Council duly held on the ___ day of ____________, 202 3 was duly passed and adopted by the following vote, to wit:
577
9 AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange

578
1 ORDINANCE NO. 10-23

AN URGENCY ORDINANCE OF THE CITY

COUNCIL OF THE CITY OF ORANGE
AMENDING CHAPTER 2.80 OF THE ORANGE

MUNICIPAL CODE REGARDING OBSTRUCTION

AND INTERFERENCE WITH ENFORCEMENT OF

THE ORANGE MUNICIPAL CODE AND
CHAPTER 5.54 REGARDING IMPOUNDMENT OF

ITEMS RELATED TO SIDEWALK VENDING

WHEREAS, California Constitution, Article XI, Section 7, authorizes the City of Orange (“City”) to adopt and enforce local police, sanitary, and other ordinances and regulations that are not in conflict with general laws; and

WHEREAS, the City Council of the City, pursuant to its police powers afforded under the California Constitution, Article XI, Section 7, California Government C ode 37100, et seq., may adopt regulations to protect the peace, health, safety and welfare of the community, and may declare that certain uses and conditions constitute a public nuisance; and

WHEREAS, California Government Code 38771 authorizes the City, through its legislative body, to declare actions and activities that constitute a public nuisance in its community; and

WHEREAS, California Government Code 36937(b) authorizes the City to adopt by a four- fifths vote an ordinance that becomes effective immediately (urgency ordinance) “For the immediate preservation of the public peace, health or safety, containing a declaration of the facts constituting the urgency;” and

WHEREAS, the California State Legislature found and declared in Senate Bill 296, signed into law by the Governor on October 7, 2021 , that “Code Enforcement Officers are disproportionately at risk for threat, assault, injury and homicide due to the nature of their obligations;” and

WHEREAS, on April 11, 2023, the City Council adopted Ordinance No. 03 -23 implementing sidewalk vending regulatio ns to provide a licensing and permitting process and impose operational requirements for sidewalk vendors in the City in compliance with SB 946 , to protect the health, safety, and welfare of the community (Sidewalk Vending Ordinance); and

WHEREAS, since the effective date of the Sidewalk Vending Ordinance , City code compliance officers have engaged in extensive education of sidewalk vendors and disseminated information regarding the process for obtaining sidewalk vendor permits; and

WHEREAS, despite these extensive efforts, no sidewalk vendors have applied for a permit; and
579
2 WHEREAS, in implementing its program to enforce the Sidewalk Vending Ordinance , code compliance staff have contacted over sixty (60) unpermitted sidewalk vendors, including over thirty (30) repeat offenders regarding violations of the City’s Sidewalk Vending Permit program. Those violations relate objective health, safety, or welfare concerns includin g, but not limited to:

• Unlicensed and unpermitted vending activity
• Serving food without a health permit
• Dumping grease and oil on a sidewalk and street
• Playing loud music
• Operating late hours (between 10 pm and 1:30 am of the next day) • Setting up a large customer seating area over the sidewalk • Most significantly, blocking of safe paths of travel on sidewalks for pedestrians and persons with disabilities; and

WHEREAS, in conjunction with the Orange County Health Care Agency (“OCHCA”) , the City has impoun ded the food, much of which was stored in unrefrigerated containers, equipment and utensils of over a dozen unpermitted sidewalk vendors , yet many of the same unpermitted sidewalk vendors have reopened and engaged in continuing unpermitted sidewalk vending activities throughout the City , putting the public health and safety at risk for the unsafe and unsanitary conditions of the vendors’ operations, food and equipment; and

WHEREAS, in conducting enforcement, code compliance officers have observed individuals described as “spotters” who appear to be part of the unpermitted sidewalk vendors’ network. These spotters sit in cars near the City Hall parking lot apparently watching the movement of code compliance veh icles, forcing City staff to park City vehicles at other City facilities unknown and/or unmonitored by spotters; and

WHEREAS, during a recent enforcement operation, a person began aggressively following a code compliance officer’s vehicle throughout various streets causing staff to involve law enforcement in contacting the driver of that vehicle . This person was later identified as an owner or operator of an unpermitted sidewalk vending location that was shut down and/or cited by the OCHCA, police, and code compliance; and

WHEREAS, code compliance staff have received numerous complaints from the public, and have observed firsthand, unpermitted sidewalk vendor operations blocking accessible path of travel across the City’s right of way, in violation of the Americans with Disabilities Act; and

WHEREAS, the demonstrated tactics and operations of unpermitted sidewalk vendors in the short period of time since adoption of Ordinance No. 03-23 have created a public nuisance and threats to the public peace, health and safety; and

580
3 WHEREAS, the City Council hereby finds that there is an urgent need to immediately promote and protect the public peace, health, safety and welfare, and the provisions set forth in this Urgency Ordinance are necessary to:

1. Ensure no unreasonable interference with the flow of pedestrian or vehicular traffic, including ingress into or from, residences, businesses, or public buildings, or from the street to the sidewalk, by persons exiting or entering parked or standing vehicles;

2. Allow for the safe and effective performance of code compliance staff, police, firefighter and emergency medical personnel services in the public right-of-way;

3. Ensure that sidewalk vending activities occur only in locations where such activities would not restrict the use and enjoyment of sidewalks and pathways by any persons including persons with disabilities;

4. Ensure compliance with the Federal Ame ricans with Disabilities Act of 1990 (Public Law 101-336) and other disability access standards;

5. Provide reasonable access to the use and maintenance of sidewalks, pathways, poles, posts, traffic signs or signals, hydrants, firefighting apparatus, mailboxes, as well as access to locations used for public transportation services;

6. Maintain sanitary conditions of items offered to the public, especially food items ; and

7. Reduce exposure to the City for personal injury or property damage claim s and litigation that may be caused in whole or in part by the activities of sidewalk vending in the public right-of-way; and

WHEREAS, the City Council finds that the regulations set forth herein are directly related to, and necessary to address, objective health, safety, and welfare concerns, including but not limited to the health, safety and welfare of vendors, their prospective customers, pedestrians, those protected by the Americans with Disabilities Act, those operating motor vehicles at int ersections and in rights-of-way adjacent to sidewalks, City staff conducting enforcement operations, and the public at large.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES HEREBY ORDAIN AS FOLLOWS:

SECTION I:

The Urgency Ordinance is not a “project” subject to the provisions of the California Environmental Quality Act (“CEQA”) per State CEQA Guidelines Section 15378 because it involves an organizational and administrative activity of the City of Orange that will not resul t in direct or indirect physical changes in the environment. 581
4 SECTION II:

The recitals and findings contained herein are true and correct, incorporated herein, and with the public record, form the basis for the adoption of this Urgency Ordinance.

SECTION III:

New Section 2.80.030 (Administration and Personnel - Enforcement of the Orange Municipal Code - Obstruction or Interference with Code Enforcement, Police, Fire or Authorized Officers or Employees) is hereby added to the Orange Municipal Code to read as follows:

2.80.030 Obstruction or Interference with Code Enforcement, Police, Fire or Authorized Officers or Employees.

It shall be unlawful for any person to obstruct, impede, threaten, follow, intimidate, or interfere in any way with any City official including a code compliance officer, police officer, firefighter, or other officers or employees of this City engaged in the performance of their respective duties, job description and/or enforceme nt authority as provided in the Orange Municipal Code. Such person shall be guilty of a misdemeanor pursuant to Section 1.08.010 and, upon conviction thereof, unless provision is otherwise herein made by any other applicable state law, shall be subject to a fine of not more than $1,000.00 or by imprisonment in the County Jail for a period of not more than six months, or by both fine and imprisonment.

SECTION IV:

Section 5.54.020 of the Orange Municipal Code (Business Taxes and Regulation s - Regulation of Sidewalk Vendors - Definitions) is hereby revised to add the following:

“Impound” means to seize or take custody of sidewalk vending cart, equipment, utensils, food or merchandise (collectively classified as “items”) because of a violation of any applicable law or regulation.

SECTION V:

Sections 5.54.150.C and 5.54.150.D of the Orange Municipal Code (Business Taxes and Regulations - Regulation of Sidewalk Vendor s – Ability to Pay Determination and Appeals) are hereby amended to read as follows:

C. Appeal of denial or revocation of Sidewalk Vending Permit and/or impoundment.

1. Any person who has been denied a Sidewalk Vending Permit or who has had a Sidewalk Vending Permit revoked by the Director or designee, or has had their sidewalk vending cart, food, equipment, utensils, goods or merchandise (collectively classified as “items”) impounded pursuant to this chapter may appeal such determination to the hearing officer, by filing a request for an appeal with the City Clerk, and paying an appeal fee as set by resolution of the 582
5 City Council, within 21 calendar days of service of the notice of such denial , revocation and/or impoundment. The request for an appeal shall contain, at a minimum, the following:

a. The name, current mailing address, and telephone number of the appellant;

b. As applicable, t he date of denial or res cission by the Director or designee, or the date of impoundment of items by a City official;

c. A statement as to all grounds for appeal in sufficient detail to enable the hearing officer, to understand the nature of the controversy; and

d. The s ignature of the appellant under penalty of perjury as to the contents of the request for appeal.

2. An appeal shall be scheduled for a hearing before the hearing officer within thirty 30 calendar days of the filing of the appeal unless both the appellant and the hearing officer consent to a later date.

3. The hearing officer shall give notice in writing to the appellant of the time and location of the appeal hearing. At the hearing, the hearing officer shall review the record of the decision for denial of a Sidewalk Vending Permit or revocation of a Sidewalk Vending Permit by the Director and/or reason for impoundment of items and hear testimony of the appellant, if any, the applicant, and any other interested party. The appeal shall be reviewed and determined on a de novo basis.

D. After the hearing, the hearing officer shall affirm, modify, or reverse the original denial or revocation and/or impoundment. When a denial or revocation and/or impoundment is modified or reversed, the hearing offi cer shall state the specific reasons for modification or reversal. Reversal of impoundment by the hearing officer shall result in the City returning the impounded items (excluding items that are perishable and/or could not be safely stored ) back to the appellant within 15 business days. Decisions on appeals shall be rendered within 30 calendar days of the close of the hearing. The hearing officer shall mail notice of a decision to the appellant.

Such notice shall be mailed within five working days after the date of the decision to the appellant.

The decision of the hearing officer shall be final.

SECTION VI:

New Section 5.54.160 of the Orange Municipal Code (Business Taxes and Regulations - Regulation of Sidewalk Vendors – Impoundment) is hereby added to read as follows:

5.54.160 Impoundment.

A. Impoundment authorization. Any City official , including a code compliance officer, police officer, firefighter, fire prevention specialist or examiner may impound a sidewalk vendor’s vending cart, food, equipment, utensils, goods or merchandise (collectively classified as 583
6 “items”) used in violation of this chapter pursuant to the provisions of Section 2080.10 of the California Civil Code, Section 114393 of the California Health and Saf ety Code and/or any other applicable City, county or state law for any of the following reasons:

1. Food displayed, offered, or made available for sale including equipment, or utensils used by a sidewalk vendor without holding a valid and displayed health permit from the Orange County Health Care Agency ’s Environmental Health Division in violation of county or state law;

2. Items reasonably appear to be unattended or abandoned on public or private property for more than thirty 30 consecutive minutes without moving from the exact spot it was located and reasonable attempts were made to locate the owner or responsible person(s) within the first fifty 50 feet of the items;

3. Items displayed, offered, or ma de available for sale by a sidewalk vendor who does not possess a valid applicable Sidewalk Vending Permit and a City Business License as required by Section 5.54.030.A;

4. Items displayed, offered, or made available for sale by a sidewalk vendor who operates in violation of this chapter; and refuses or fails to provide identification, as required by Section 5.54.100.T;

5. Operation in violation of this chapter and refusal or failure by a sidewalk vendor to remove items from public or private property within 30 consecutive minutes after being instructed to do so by a City official;

6. Items displayed, offered, or made available for sale by a sidewalk vendor who vends in a manner that blocks or obstructs the free movement of pedestrians on sidewalks and fails to maintain a minimum of forty -eight inches (48″) of accessible path of travel, without obstruction, along the sidewalk upon which the vendor is vending so as to enable persons to freely pass while walking, running, or using mobility assistance devices and/or in violation of the Federal Americans with Disabilities Act of 1990 (Public Law 101 -336) and other disability access standards;

7. Items displayed, offered, or made available for sale in violation of any applicable federal, state, county, or City laws, ordinances, and regulations, including but not limited to illegal or counterfeit merchandise, alcohol, tobacco, cannabis, smoke or vaping products, adult-oriented material, live animals, weapons, and/or pharmaceuticals;

8. Items creating an imminent and substantial danger or environmental hazard to the health, safety or general welfare of the public or property at the location of the vending cart such as, but not limited to , discharge of oil , grease or other slippery substances on t he street or sidewalk without any effort to maintain best management practices; us ing unapproved portable cooking equipment, heating element, gas -fueled appliance, generator, or any open flame; during an urgent or emergency public s afety event or incident; lack of a fire extinguisher ; using any 584
7 luminaire, flashing lights or any other animated devices or sign; or using, operating or permitting any radio, loudspeaker or other machine or device for the producing or reproducing of sound;

9. Items displayed, offered, or made available for sale by a sidewalk vendor who has, within a 24 month period, been issued 3 or more administrative citations for violations of this chapter; or

10. Items impounded as evidence of a crime or booked as property after an arrest of any sidewalk vendor involving any City, county, state or federal law or regulation excluding Chapter 5.54. Such items shall be stored, and released in accordance with the procedures set forth in the California Penal Code and any other applicable state law.

B. Forfeiture impoundment authorization for repeat offenders. The City may immediately conduct a forfeiture impoundment of items from a sidewalk vendor who has been found responsible for engaging in sidewalk vending activities in violation of this chapter 2 or more times within a 24 month period (herein identified as a repeat offender) after being contacted by a City official who issued a notice of violation . An aggrieved repeat offender may appeal a City forfeiture impoundment action pursuant to the procedures set forth in this section.

C. Disposal authorization. The City may immediately dispose of impounded items that are perishable and/or cannot be safely stored.

D. Impoundment period of items held by City. The impoundment of any sidewalk vendor’s items , excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored, may be held by the City for not less than 30 nor more than 60 calendars days from the date of impoundment.

E. Impoundment notification. Upon impoundment of items under this section, the Director or designee shall do all the following:

1. Take responsibility for the storage, documentation, and disposition of the items excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored.

2. Provide the person from whom the items were taken with a receipt and instructions for the retrieval of the items excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored. The receipt and instructi ons shall either be given to the person from whom the items were taken at the time the City official obtained the items or mailed on the next business day, by first class mail, to the person from whom the items were taken.

3. If the City official has knowledge that the person from whom the items were taken is not the owner, the Director or designee shall make reasonable efforts to identify the owner.

If the owner is identified, the Director or designee shall mail, by first class mail, a receipt and instructions for the retrieval of the items excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored. 585
8 a. The receipt and instructions shall notify the person from whom the items were taken that the items must be claimed either within (A) 30 days of impoundment pursuant to Section 114393 of the California Health and Safety Code and/or (B) 60 days of impoundment pursuant to Section 2080.10 of the California Civil Code after the City obtains possession of the items will be disposed of in accordance with the disposal provisions of this section or any other applicable county or state law. Within the applicable 30 or 60 days, the person may do one of the following:

i. Retrieve the items, excluding any items that were
immediately disposed of because they were perishable and/or could not be safely stored.

ii. Authorize in writing another person to retrieve the items, excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored.

iii. Notify the City in writing that they are unable to retrieve the items because they are in custody (e.g., jail or pris on) and request the City to hold the items, excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored. If a person notifies the City that they are unable to either retrieve the items within the applicable 30 or 60 days, or have an authorized person retrieve the items, the City shall hold the items for not longer than 10 additional months, after which time the City may dispose of the items in accordance with the disposal provisions of this Code or any other applicable county or state law.

b. Pursuant to state law the City shall not be liable for damages caused by any official action performed with due care regarding the disposition of items pursuant to this section and the disposal provisions of this chapter.

F. Appeal of impoundment. An aggrieved sidewalk vendor may, within 21 calendar days of the impoundment, appeal the impoundment of their items by requesting an administrative hearing before a hearing officer in accordance with Section 5.54.150.C and, if successful in their appeal, may have their items returned, excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored and shall not be required to pay the impound fee(s). If the sidewalk vendor is successful on appeal, any appeal fee paid by the sidewalk vendor shall be refunded.

G. Recovery of impounded items and payment of impound fees. A sidewalk vendor may recover impounded items, excluding any items that were immediately disposed of because they were perishable and/or could not be safely stored, upon paying applicable impound fees and demonstrating proper proof of ownership of the items.

H. The City Council may by resolution adopt impound fees, which shall reflect the City’s personnel, enforcement, investigation, storage, disposal and impound costs.

586
9 I. Unclaimed items. Any unclaimed items will be considered abandoned and forfeited to the City after (A) 30 days of impoundment pursuant to Section 114393 of the California Health and Safety Code and/or (B) 60 days of impoundment pursuant to Section 2080.10 of the California Civil Code or any other applicable county or state law.

J. The Director is further authorized to develop additional regulations for the storage and release of impounded items not in conflict with this chapter.

SECTION VII:

This Urgency Ordinance is intended to immediately supersede any existing provisions of the Orange Municipal Code to the extent those existing provisions are inconsistent with this Urgency Ordinance.

SECTION VIII:

If any section, subdivision, paragraph, sentence, clause, or phrase of this Urgency Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Urgency Ordinance. The Ci ty Council hereby declares that it would have passed this Urgency Ordinance, and each section, subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact that any one (or more) section, subdivision, paragraph, sentence, clause or phrase had been declared invalid or unconstitutional.

SECTION IX:

In accordance with Government Code 36937, this Urgency Ordinance shall take effect immediately in order to protect the public peace, health, safety and welfare of the community and be in effect for forty -five (45) days from the date of adoption unless otherwise repealed or extended.

ADOPTED this ____ day of ___________________, 2023.

Daniel R. Slater, Mayor, City of Orange

ATTEST:

Pamela Coleman, City Clerk, City of Orange

587
10 STATE OF CALIFORNIA )

COUNTY OF ORANGE )

CITY OF ORANGE )

I, PAMELA COLEMAN, City Clerk of the City of Orange, California, do hereby certify that the foregoing Urgency Ordinance was duly passed at the regular meeting of the City Council held on the ___ day of _____________, 2023 by the following vote, to wit:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange

588
RESOLUTION NO. 11482

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF ORANGE SETTING THE AMOUNT OF APPEAL AND

IMPOUNDMENT FEES RELATING TO SIDEWALK
VENDORS.

WHEREAS, California Constitution, Article XI, Section 7, authorizes the City of Orange (“City”) to adopt and enforce local police, sanitary, and other ordinances and regulations that are not in conflict with general laws; and

WHEREAS, On April 11, 2023, the City Council adopted Ordinance No. 03 -23 implementing sidewalk vending regulations t o provide a licensing and permitting process and impose operational requirements for sidewalk vendors in the City to comply with California Senate Bill 946, the California Safe Sidewalk Vending Act (“SB 946”) and protect the health, safety, and welfare of the community; and

WHEREAS, the City desires to amend the provisions of the Orange Municipal Code to impose regulations related to the impoundment of sidewalk vendor vending carts, food, equipment, goods and merchandise (collectively classified as “items”) due to violations of City, county, state or federal laws relating to health, safety and welfare and to set forth an appeal process for the denial of a Sidewalk Vending Permit or the impoundment of said items; and

WHEREAS, on July 11, 2023, the City adop ted Urgency Ordinance No. 10 -23 to immediately implement regulations related to the impoundment of sidewalk vending items in order to preserve objective health, public safety, and welfare concerns, including but not limited to the health, safety and welfare of vendors, their prospective customers, pedestrians, those protected by the Americans With Disabilities Act, those operating motor vehicles at intersections and in rights- of-way adjacent to sidewalks, and the public at large , and also to create an appeal process for the denial of a Sidewalk Vending Permit and the impoundment of sidewalk vending items . On that date, the City also introduced Ordinance No. 09 -23 to implement those same sidewalk vending regulations and appeal process.

NOW, THEREFORE, IT BE RESOLVED by the City Council of the City of Orange as follows:

1. An Impound Fee of $ 710.00 shall be required from any sidewalk vendor who wishes to recover impounded items (excluding any items that were immediately disposed of because they were perishable or could not be safely stored). Said Impound Fee shall be payable in full prior to recovering the items and upon demonstrating proper proof of ownership of the items. If said impoundment action is appealed and the hearing officer upholds the appeal, no Impound Fee shall be required.

2. An Administrative Appeal Fee of $85 .00 shall be required for any person who wishes to appeal any of the actions listed below before a hearing officer. If the hearing officer upholds the appeal, the Administrative Appeal Fee shall be refunded. 589

a. Denial or revocation of a Sidewalk Vending Permit.
b. Impoundment of sidewalk vending items.

3. This Resolution shall be effective immediately upon the effective date of Ordinance No. 10-23 and in no case later than the effective date of Ordinance No. 09-23.

ADOPTED this ____ day of ___________________, 2023.

Daniel R. Slater, Mayor, City of Orange

ATTEST:

Pamela Coleman, City Clerk, City of Orange

STATE OF CALIFORNIA )

COUNTY OF ORANGE )

CITY OF ORANGE )

I, PAMELA COLEMAN, City Clerk of the City of Orange, California, do hereby certify that the foregoing Resolution was duly and regularly adopted by the City Council of the City of Orange at a regular meeting thereof held on the 11th day of July 2023, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange

590
Agenda Item
City Council
Item #: 8.2. 7/11/2023 File #: 23-0428
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

1. SUBJECT
Introduction and First Reading of an ordinance adding Chapter 5.53 to Title 5 of the Orange Municipal Code establishing regulations for mobile vending vehicles on public and private property, and adoption of a resolution setting fees relating to mobile vendors and mobile vending vehicle permits.

2. SUMMARY
Ordinance No. 11-23 will establish the City’sMobile Vending Vehicle Permit Program to the extent allowed by State law and includes provisions for a permitting process, operating requirements, violations, penalties, recission of permits, and an appeals process.

3. RECOMMENDED ACTION

1. Introduce and conduct First Reading of Ordinance No. 11-23. An Ordinance of the City Council of the City of Orange adding Chapter 5.53 to Title 5 of the Orange Municipal Code (Business Taxes and Regulations) establishing regulations for mobile vending vehicles on public and private property.

2. Adopt Resolution No. 11483. A Resolution of the City Council of the City of Orange setting the amount of fees relating to mobile vendors and mobile vending vehicle permits.

4. FISCAL IMPACT
None.

5. STRATEGIC PLAN GOALS
Goal 1: Provide for a Safe Community
a. Providing staffing and resources to deliver services that ensure public safety.

6. DISCUSSION AND BACKGROUND
State law forbids cities from banning mobile vending trucks from residential areas (Barajas v. City of Anaheim, 15 Cal. App. 4th 1808). State law does, however, allow cities to enact provisions related to public safety. Public safety regulations are not the same as regulations to protect the health, safety, and welfare of the public. Section 22455 of the California Vehicle Code provides that mobile vending trucks in a residential district of a city "may vend products on a street...only after bringing the vehicle to a complete stop and lawfully parking adjacent to the curb,” and must comply with local parking City of Orange Printed on 7/6/2023Page 1 of 4
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to a complete stop and lawfully parking adjacent to the curb,” and must comply with local parking ordinances. Furthermore, Section 114315 of the California Health & Safety Code expressly allows cities to require that lunch trucks stopped for over one hour must operate within 200 feet of "an approved and readily available toilet and handwashing facility." The City of Orange currently has no mobile vending vehicle permitting program compliant with State law. Existing mobile vending vehicles such as ice cream trucks, food trucks, catering trucks, and lunch trucks are only required to obtain a City business license. Additionally, there are no regulations in place for mobile vending activities in the Orange Municipal Code. Section 22455 of the Vehicle Code provides that a City may only regulate the time, place, and manner of vending from vehicles upon any street for public safety reasons. To that end, City staff is proposing that the provisions contained in this Ordinance be adopted into the Orange Municipal Code. New Chapter 5.53 adheres to State law and addresses public safety issues the City is facing due to the operation of various food trucks on public and private property.

Mobile food vehicles are required by County Code to obtain a health permit from the Orange County Health Care Agency. The proposed mobile vending vehicle permitting program and requirements should provide the City with the necessary information regarding the vehicles, their operators (including employees), and will enable the City to regulate their mobile vending activities on public and private property.

The following are public safety concerns relating to mobile vending vehicles congregating where children regularly gather such as parks, schools, day-care facilities, and recreational facilities:
- Students/children walking out into traffic in order to purchase items from mobile vending vehicles.
- Vehicle having to take evasive action to avoid colliding with students/children pedestrians. - Residents having problems backing out of their driveways because of reduced sight visibility. - Increased residential property damage due to students loitering in the front yards of residents (broken sprinklers, worn lawns, graffiti, etc.)
- Increased trash/debris in the residential tract due to students/children littering, which is typically associated with commercial, not residential uses. Garbage attracts vermin. - Disturbances to adjoining neighborhoods as a result of mobile vending vehicle generator, engine, and mechanical equipment noise and fumes.
- Residents intimidated by the large numbers of pedestrians in the street not willing to move.

As provided by State law, the proposed Ordinance will impose reasonable time, place, and manner restrictions on mobile vending vehicles that are related to public safety concerns such as, but not limited to:
- Child safety zones around schools, day-care facilities, recreational facilities, and parks where children regularly gather;
- Vending will be prohibited on streets with speed limits of 35 mph or more; - Vending can only take place on the side of the vehicle that is facing away from traffic, and must not be done in a way that obstructs traffic or ingress and egress into properties; - Food vending vehicles must be parked within 200 feet of a restroom whenever they are City of Orange Printed on 7/6/2023Page 2 of 4
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operating in one location for an hour or more;
- Limitation on hours of operation that are not unduly restrictive to protect public peace; - Requirements to maintain sanitary conditions (i.e., proper sanitation, food preparation, and food handling to prevent food contamination, poor hygienic practices, and threat of food poisoning);
- Regulations to ensure the collection and disposal of trash and other debris to avoid any remnant pollutants on sidewalks or in gutters at the conclusion of mobile vending activities; - Requirements necessary to maintain safe paths of travel for pedestrians and to ensure compliance with the Americans with Disabilities Act and other disability access standards; - Requirements to obtain a permit and a valid business license, possess a seller’spermit from the California Department of Tax and Fee Administration, or obtain additional licenses from other state and local agencies to the extent required by law; - Requirements that mobile vendors submit information on their operations; - Requirements to ensure no interference with the performance of code compliance, police, firefighter, and emergency medical personnel services; and - Additional time, place, and manner restrictions provided said restrictions are directly related to objective public safety concerns, such as imposing a set limit on the number of mobile vendors per block or a required distance between mobile vendors and sidewalk vendors.

Because of public safety concerns outlined above, City staff has recommended the proposed Ordinance include a no mobile vending vehicle “Buffer Zone” of 500 feet from the nearest property line of any property on which a school building, day-care, or recreational facility is located, unless otherwise authorized to do so in writing by the school principal or owner of the day-care or recreational facility and with a special event permit issued by the City, if applicable. City staff has determined that a buffer zone of 500 feet will greatly enhance the safety of the students/children.

Similarly, buffer zones are proposed around City parks where children regularly gather. Staff further feels that prohibiting mobile vending vehicles on streets with speed limits of 35 mph or greater will eliminate the concerns relating to static uses being parked on certain City streets, and the conflicts that might be created between these uses and the ambient speed of the traffic on the street.

Additionally, the City may also prohibit mobile vending vehicles within the immediate vicinity of a permitted farmer’smarket or swap meet during their operating hours, such as the weekly Orange Home Grown event. The City may also restrict or prohibit mobile vending within the immediate vicinity of an area designated for a temporary special permit issued by the City, such as permit for filming, a parade, an outdoor concert, or the Street Fair.

Lastly the City can impose criminal penalties, such as misdemeanors or infractions, for violations of this proposed Mobile Vending Vehicle Program or any applicable City codes. Mobile vending violations are also punishable as administrative fines. A violation of the City’smobile vending vehicle program or applicable City code is punishable by the following administrative fines: $100 for a first violation, $200 for a second violation, and $500 for each additional violation within one year of the first violation. Any mobile vendor who has been issued an administrative citation is afforded the right to appeal as provided in the adopted administrative citation program contained in Chapter 1.10.

It is the purpose and intent of the proposed Ordinance to establish equitable, clear, and concise City of Orange Printed on 7/6/2023Page 3 of 4
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It is the purpose and intent of the proposed Ordinance to establish equitable, clear, and concise regulations applicable to businesses and persons who engage in the operation of mobile vending from vehicles in the City. These regulations are intended to provide for greater public safety by preventing traffic-related safety hazards, especially hazards to school children buying food or other products from mobile food vehicles. The regulations are also intended to preserve the public safety more fully by ensuring that mobile vending vehicles do not disturb the peace, and do not interfere with traffic, as well as ingress and egress into businesses and residences.

7. ATTACHMENTS
· Ordinance No. 11-23
· Resolution No. 11483
City of Orange Printed on 7/6/2023Page 4 of 4
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594
Agenda Item
City Council
Item #: 8.2. 7/11/2023 File #: 23-0428
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Russell Bunim, Community Development Director

1. SUBJECT
Introduction and First Reading of an ordinance adding Chapter 5.53 of the Orange Municipal Code related to regulation of mobile vending vehicles on public and private property, and adoption of a resolution setting fees relating to mobile vendors and mobile vending vehicle permits.

2. SUMMARY
Ordinance No. 11-23 will establish the City’sMobile Vending Vehicle Permit Program to the extent allowed by State law and includes provisions for a permitting process, operating requirements, violations, penalties, recission of permits, and an appeals process.

3. RECOMMENDED ACTION

1. Introduce and conduct First Reading of Ordinance No. 11-23. An Ordinance of the City Council of the City of Orange adding Chapter 5.53 to Title 5 of the Orange Municipal Code (Business Taxes and Regulations) establishing regulations for mobile vending vehicles on public and private property.

2. Adopt Resolution No. 11483. A Resolution of the City Council of the City of Orange setting the amount of fees relating to mobile vendors and mobile vending vehicle permits.

4. FISCAL IMPACT
None.

5. STRATEGIC PLAN GOALS
Goal 1: Provide for a Safe Community
a. Providing staffing and resources to deliver services that ensure public safety.

6. DISCUSSION AND BACKGROUND
State law forbids cities from banning mobile vending trucks from residential areas (Barajas v. City of Anaheim, 15 Cal. App. 4th 1808). State law does, however, allow cities to enact provisions related to public safety. Public safety regulations are not the same as regulations to protect the health, safety, and welfare of the public. Section 22455 of the California Vehicle Code provides that mobile vending trucks in a residential district of a city "may vend products on a street...only after bringing the vehicle to a complete stop and lawfully parking adjacent to the curb,” and must comply with local parking ordinances. Furthermore, Section 114315 of the California Health & Safety Code expressly allows City of Orange Printed on 7/6/2023Page 1 of 4
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ordinances. Furthermore, Section 114315 of the California Health & Safety Code expressly allows cities to require that lunch trucks stopped for over one hour must operate within 200 feet of "an approved and readily available toilet and handwashing facility." The City of Orange currently has no mobile vending vehicle permitting program compliant with State law. Existing mobile vending vehicles such as ice cream trucks, food trucks, catering trucks, and lunch trucks are only required to obtain a City business license. Additionally, there are no regulations in place for mobile vending activities in the Orange Municipal Code. Section 22455 of the Vehicle Code provides that a City may only regulate the time, place, and manner of vending from vehicles upon any street for public safety reasons. To that end, City staff is proposing that the provisions contained in this Ordinance be adopted into the Orange Municipal Code. New Chapter 5.53 adheres to State law and addresses public safety issues the City is facing due to the operation of various food trucks on public and private property.

Mobile food vehicles are required by County Code to obtain a health permit from the Orange County Health Care Agency. The proposed mobile vending vehicle permitting program and requirements should provide the City with the necessary information regarding the vehicles, their operators (including employees), and will enable the City to regulate their mobile vending activities on public and private property.

The following are public safety concerns relating to mobile vending vehicles congregating where children regularly gather such as parks, schools, day-care facilities, and recreational facilities:
- Students/children walking out into traffic in order to purchase items from mobile vending vehicles.
- Vehicle having to take evasive action to avoid colliding with students/children pedestrians. - Residents having problems backing out of their driveways because of reduced sight visibility. - Increased residential property damage due to students loitering in the front yards of residents (broken sprinklers, worn lawns, graffiti, etc.)
- Increased trash/debris in the residential tract due to students/children littering, which is typically associated with commercial, not residential uses. Garbage attracts vermin. - Disturbances to adjoining neighborhoods as a result of mobile vending vehicle generator, engine, and mechanical equipment noise and fumes.
- Residents intimidated by the large numbers of pedestrians in the street not willing to move.

As provided by State law, the proposed Ordinance will impose reasonable time, place, and manner restrictions on mobile vending vehicles that are related to public safety concerns such as, but not limited to:
- Child safety zones around schools, day-care facilities, recreational facilities, and parks where children regularly gather;
- Vending will be prohibited on streets with speed limits of 35 mph or more; - Vending can only take place on the side of the vehicle that is facing away from traffic, and must not be done in a way that obstructs traffic or ingress and egress into properties; - Food vending vehicles must be parked within 200 feet of a restroom whenever they are operating in one location for an hour or more;
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- Limitation on hours of operation that are not unduly restrictive to protect public peace; - Requirements to maintain sanitary conditions (i.e., proper sanitation, food preparation, and food handling to prevent food contamination, poor hygienic practices, and threat of food poisoning);
- Regulations to ensure the collection and disposal of trash and other debris to avoid any remnant pollutants on sidewalks or in gutters at the conclusion of mobile vending activities; - Requirements necessary to maintain safe paths of travel for pedestrians and to ensure compliance with the Americans with Disabilities Act and other disability access standards; - Requirements to obtain a permit and a valid business license, possess a seller’spermit from the California Department of Tax and Fee Administration, or obtain additional licenses from other state and local agencies to the extent required by law; - Requirements that mobile vendors submit information on their operations; - Requirements to ensure no interference with the performance of code compliance, police, firefighter, and emergency medical personnel services; and - Additional time, place, and manner restrictions provided said restrictions are directly related to objective public safety concerns, such as imposing a set limit on the number of mobile vendors per block or a required distance between mobile vendors and sidewalk vendors.

Because of public safety concerns outlined above, City staff has recommended the proposed Ordinance include a no mobile vending vehicle “Buffer Zone” of 500 feet from the nearest property line of any property on which a school building, day-care, or recreational facility is located, unless otherwise authorized to do so in writing by the school principal or owner of the day-care or recreational facility and with a special event permit issued by the City, if applicable. City staff has determined that a buffer zone of 500 feet will greatly enhance the safety of the students/children.

Similarly, buffer zones are proposed around City parks where children regularly gather. Staff further feels that prohibiting mobile vending vehicles on streets with speed limits of 35 mph or greater will eliminate the concerns relating to static uses being parked on certain City streets, and the conflicts that might be created between these uses and the ambient speed of the traffic on the street.

Additionally, the City may also prohibit mobile vending vehicles within the immediate vicinity of a permitted farmer’smarket or swap meet during their operating hours, such as the weekly Orange Home Grown event. The City may also restrict or prohibit mobile vending within the immediate vicinity of an area designated for a temporary special permit issued by the City, such as permit for filming, a parade, an outdoor concert, or the Street Fair.

Lastly the City can impose criminal penalties, such as misdemeanors or infractions, for violations of this proposed Mobile Vending Vehicle Program or any applicable City codes. Mobile vending violations are also punishable as administrative fines. A violation of the City’smobile vending vehicle program or applicable City code is punishable by the following administrative fines: $100 for a first violation, $200 for a second violation, and $500 for each additional violation within one year of the first violation. Any mobile vendor who has been issued an administrative citation is afforded the right to appeal as provided in the adopted administrative citation program contained in Chapter 1.10.

It is the purpose and intent of the proposed Ordinance to establish equitable, clear, and concise regulations applicable to businesses and persons who engage in the operation of mobile vending City of Orange Printed on 7/6/2023Page 3 of 4
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regulations applicable to businesses and persons who engage in the operation of mobile vending from vehicles in the City. These regulations are intended to provide for greater public safety by preventing traffic-related safety hazards, especially hazards to school children buying food or other products from mobile food vehicles. The regulations are also intended to preserve the public safety more fully by ensuring that mobile vending vehicles do not disturb the peace, and do not interfere with traffic, as well as ingress and egress into businesses and residences.

7. ATTACHMENTS
· Ordinance No. 11-23
· Resolution No. 11483
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1 ORDINANCE NO. 11-23

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ORANGE ADDING CHAPTER 5.53 TO TITLE 5 OF THE

ORANGE MUNICIPAL CODE (BUSINESS TAXES AND

REGULATIONS) ESTABLISHING REGULATIONS FO R

MOBILE VENDING VEHICLES ON PUBLIC AND

PRIVATE PROPERTY

WHEREAS, California Constitution, Article XI, Section 7, authorizes the City of Orange (“City”) to adopt and enforce local police, sanitary, and other ordinances and regulations that are not in conflict with general laws; and

WHEREAS, the Legislature of the State of California, in adopting section 22455 of the California Vehicle Code and 114315(a) of the California Health & Safety Code authorizes the City to adopt regulations to ensure the public safety relating to the type of vending, and the time, place and manner of vending; and

WHEREAS, mobile vending businesses such as those from which merchandise and foods are offered for purposes of retail sale while parked at the curb or on public streets pose traffic hazards and special dangers to the public safety and welfare of children and residents in the City ; and

WHEREAS, the City Council hereby declares and finds that:

1. Mobile vending vehicles that are parked and provide services to customers on streets where the speed limit is 35 mph or greater endanger public safety as drivers may have to perform quick maneuvers to avoid patrons on foot or cars slowing down to avail themselves of the mobile vending vehicles, and these conditions can increase congestion and endanger both motorists and the food trucks’ patrons.

2. Mobile vending businesses create litter and noise in residential neighborhoods and commercial corridors. If they are operated on during the hours of rest, they can disturb the quiet enjoyment of residential neighborhoods.

3. Mobile vending businesses, whi ch includes those selling food, dry goods and ice cream, attract attention in residential areas and cause residents to congregate around vehicles, often in the street, and frequently blocking or obstructing the public sidewalks.

4. Mobile vending businesses are often operated by one person who is not capable of controlling crowds, including children who may dart in and out of traffic in order to gain access to the mobile vending business. This is a particular problem near schools, parks, and recreational facilities.

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2 5. The act of looking for prospective buyers while operating a food vending vehicle may make the operator less attentive to pedestrian and vehicular traffic. When done on public roadways, this poses obvious traffic and safety risks to the publ ic, which the City seeks to prevent.

6. Mobile vendors usually have box like trucks that create line of sight problems for motorists if they are parked within 100 feet of an intersection.

7. Using horns and whistles and other attention -getting sounds, m obile vending businesses can cause noise pollution in residential areas.

8. The area around mobile vending businesses is often strewn with wrappings and discarded paper products.

9. The sound of commercial activity during the hours of rest can disturb th e quiet enjoyment of residential neighborhoods.

10. In order to operate safely within the City, mobile food vendors must obtain a health permit from the Orange County Health Care Agency; and

WHEREAS, it is the purpose and intent of the City Council in enacting this Ordinance to restrict the time, place and manner for vehicle vending in order to protect the public safety in accordance with California Vehicle Code section 22455, and to provide persons engaged in mobile vending businesses with clear and concise regulations to prevent and avoid such public safety hazards and to protect the physical environment, including aesthetics, and the quiet enjoyment of residential neighborhoods and commercial corridors.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES HEREBY ORDAIN AS FOLLOWS:

SECTION I:

The Ordinance is not a “project” subject to the provisions of the California Environmental Quality Act (“CEQA”) per State CEQA Guidelines S ection 15378 because it involves an organizational and administrative activity of the City of Orange that will not result in direct or indirect physical changes in the environment.

SECTION II:

The recitals and findings contained herein are true and correct and incorporated herein.

SECTION III:

Chapter 5.53 (Business Taxes and Regulations – Mobile Vending Vehicle Program) is hereby added to the Orange Municipal Code to read as follows:

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3 Chapter 5.53 MOBILE VENDING VEHICLE PROGRAM

5.53.010 Purpose.

5.53.020 Definitions.

5.53.030 Permit Required.

5.53.040 Exemptions.

5.53.050 Applicability of Permit Requirement to Existing Businesses.

5.53.060 Application for Mobile Vending Vehicle Permit.

5.53.070 Investigation and Findings for Mobile Vending Vehicle Permit.

5.53.080 Denial of Mobile Vending Vehicle Permit.

5.53.090 Permit Not Transferable.

5.53.100 Term of Permit and Renewal.

5.53.110 Operators of Mobile Vending Vehicles.

5.53.120 Appeals of Denial or Revocation of Mobile Vending Vehicle Permit.

5.53.130 Conditions and Restrictions Imposed on Permit: Public Safety Justification.

5.53.140 Mobile Vending Operational Regulations.

5.53.150 Prohibited Conduct and Activities for Mobile Vendors.

5.53.160 Exemption Related to City Parks.

5.53.170 Mobile Food Vehicle Vending at Active Construction Sites.

5.53.180 Private Property Use by Mobile Vendors.

5.53.190 Enforcement.

5.53.010 Purpose.

It is the purpose and intent of the City Council in establishing a Mobile Vending Vehicle Program to eliminate traffic hazards and special dangers to the public safety, to protect the physical environment, including aesthetics and the quiet enjoyment of re sidential neighborhoods and commercial corridors, and to provide persons engaged in mobile vending businesses with clear and concise regulations to prevent and avoid such public safety hazards and detrimental effects.

5.53.020 Definitions.

As used in this chapter, the following terms and phrases shall have the meaning ascribed to them in this chapter, unless the context in which they are used clearly requires otherwise. If a term or phrase is not defined in this chapter, or elsewhere in this code, the most common dictionary definition is presumed to be correct.

“Cannabis” means the substances defined in Section 5.89.010 of this code or any successor section.

“City” means the City of Orange.

“Certified Farmer’s Market” or “farmer’s market” means a location operated in accordance with Chapter 10.5 (commencing with Section 47000) of Division 17 of the Food and Agricultural 601
4 Code and any regulations adopted pursuant to that chapter, or any successor chapter.

“Civic Center” means the buildings, facilities, and parking lots or areas including City Hall location at 300 East Chapman Avenue, Orange, California, or at such other place as may be designated by the Council, fixed as the meeting place for all official meetings of the Council.

“Concessionaire” means the holder of an exclusive agreement with the City for the sale of food and/or merchandise in a City-owned park.

“Director” means the Director of Community Development, or designated representative.

“Emergency vehicle access” means the roadway, path, or other surface that provides police or fire vehicular access from the dispatched point of origin to a facility, building, parcel, park, or portion thereof. Emergency vehicle access includes, but is not limited to, fire lanes, public and private streets, parking lot lanes, access roadways, trails, and walkways.

“Fire station” means any facility where fire engines and other equipment of the Orange Fire Department are housed.

“Food” means any type of human edible substance, including any food product or beverage as provided in Health and Safety Code Section 113781 or any successor section.

“Goods” means items, personal property, merchandise, or any other similar item that is generally sold, including food and beverages.

“Major transit stop” means the portion of a site designated as the passenger loading area that contains any of the following: an existing rail transit station, a bus or rail transit service, or the intersection of two or more major bus routes with a service interval of 15 minutes or less during the morning and afternoon peak commute periods.

“Merchandise” means any goods or item(s) that can be sold and immediately obtained from a mobile vendor, which is not considered food. Items for rent shall not be considered merchandise.

Merchandise does not include services.

“Mobile food vehicle” means any vehicle, as that term is defined in the California Vehicle Code, which is equipped or primarily used for retail sales of produce and/or prepared, prepackaged, or unprepared, unpackaged food or foodstuffs of any kind, on any public street, alley or highway or private street within the City. The inventory of these vehicles is not necessarily limited to edible items and may include non-food sundries.

“Mobile vendor activities ” or “ mobile vending activities ” means actions that qualify a person as a mobile vendor or actions done in anticipation of becoming a mobile vendor such as, 602
5 but not limited to, installation, placement, or maintenance of any mobile vending vehicle on public or private property.

“Mobile vendor” means any person in charge of or driving any motorized mobile vending vehicle requiring a valid state driver license to operate, either as agent, employee, or otherwise under the direction of the owner.

“Mobile vending vehicle permit ” or “permit” means a permit established by this chapter that has been issued to an operator engaging in mobile vending activity in the City.

“Mobile vending vehicle” means any motorized vehicle as defined in the California Vehicle Code and registered with the California Department of Motor Vehicles, including but not limited to ice cream trucks, grocery trucks, food trucks, catering trucks , hot trucks, chef tr ucks, lunch trucks, wagons, food trailers, or any other fully enclosed vehicle or mobile food facility from which fruits, vegetables , merchandise, goods , beverages, prepackaged food or all foods are prepared, cooked and stored inside the vehicle, which are sold, displayed, solicited, or offered for sale or bartered or exchanged, on any portion of any public street within the City or on private property with permission of the property owner.

"Operator" means any person or entity who:

A. Owns, controls, manages, and/or leases a mobile vending vehicle; or

B. Contracts with a person(s) to drive, operate, prepare food and/or vend from a mobile vending vehicle; or

C. Drives, operates, vends and/or prepares food on or from a mobile vending vehicle.

“Owner” means any person having proprietary control of or right to proprietary control of any mobile vending vehicle.

“Park” means any area dedicated or established as a public park owned or operated by the City, including without limitation active and passive parks.

“Pathway” or “ pedestrian pathway” means a paved or improved path, or walkway used primarily for pedestrian travel, other than a sidewalk. Pathway or pedest rian pathway does not mean the grassy areas of parks.

“Permitted event” means any event that has a special event permit, park use permit, or lake use permit, including but not limited to farmer’s markets, street fairs, races, and private events.

“Person” means one or more natural persons, groups, businesses, owner, business trusts, companies, corporations, joint ventures, joint stock companies, partnerships, entities, associations, clubs, or organizations composed of two or more individuals (or the manager, lessee, agent, 603
6 servant, officer, or employee of any of them), whether engaged in business, nonprofit or any other activity.

“Police station ” means any facility where police vehicles and other equipment of the Orange Police Department are housed.

“Private property” means all property that is not public property.

“Public property” means all property owned or controlled by the City, including, but not limited to, alleys, parks, pathways, streets, parking lots, sidewalks, and trails.

“Public right-of-way” means a public easement for streets, alleys, or other uses, other than a sidewalk.

“Residential” means any area zoned exclusively as residential in the zoning code, including without limitation R1-5, R1-6, R1-7, R1-8, R1-10, R1-12, R1-15, R1-20, R1-40, R1-R, R2-6, R2- 7, R2-8, R-3, R-4, MH, and any Historic District Zone.

“Restocking” means the transfer of food, goods, or merchandise to a food vending vehicle from any other person or vehicle and includes, but is not limited to, loading and d elivery of food, goods, and merchandise.

“School” means any public or private school in which instruction is given in any or all grades, including preschool through grade 12.

“Services” means activities involving the performance of work for others or the provision of intangible items that cannot be returned once they are provided. Examples include, but are not limited to, hair braiding, face painting, massage, yoga, fortune telling, tattooing, and dog training.

“Sidewalk” means a public pav ed or hardscape sidewalk, parkway, pedestrian path, walkway, or other public right -of-way specifically designed for the exclusive use of pedestrian travel.

“Street or highway” means a public or private vehicular right-of-way other than an alley or private drive.

“Swap meet” means a location operated in accordance with Article 6 (commencing with Section 21660) of Chapter 9 of Division 8 of the Business and Professions Code, and any regulations adopted pursuant to that chapter, or any successor chapter.

“Temporary special permit” means a permit issued by the City for the temporary use of, or encroachment on, the sidewalk or other public property, including, but not limited to, an encroachment permit, special event permit, or temporary event permit, for purposes including, but not limited to, farmer ’s markets, swap meets, filming, fireworks show s, parades, athletic events, public assembles, carnivals, fairs, walks, runs and marathons, festivals, shows, seasonal or holiday events and outdoor concerts or performances.
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7 “Trail” means a paved pathway, which may consist of decomposed granite, designed to be used primarily by bicyclists, horses and other modes of transportation including Class 1 (off street) trails and riding and hiking trails as denoted in the General Plan other than primarily for pedestrian travel.

“Vend” or “ vending” means soliciting, displaying, or offering produce, prepared or unprepared food, prepackaged food and/or non -food sundries of any kind for sale or barter or exchange from a mobile vending vehicle on a public or private street, alley, highway, or public place within the city. “Vend” or “vending” includes the movement or standing of a mobile vending vehicle for the purpose of searching for, obtaining and/or soliciting retail sales or produce, prepared food, prepackaged food, or non -food sundries, including , but not limited to, goods, wares, or merchandise. “Vend” and “vending” do not include the offering of services.

5.53.030 Permit Required.

No person, either as owner, operator, agent, or any other person, shall engage , operate, conduct, maintain or advertise as a mobile vendor within the City without first applying for and receiving a City business license from the Finance Department in accordance with Chapter 5.06 and a Mobile Vending Vehicle Permit from the Community Development Department in accordance with this chapter.

5.53.040 Exemptions.

A. This chapter shall not apply to persons delivering goods, wares, merchandise, groceries, or prepared foods upon order of, or by agreement with, a customer from a fixed store, restaurant or other fixed place of business or distribution or warehouse.

B. This chapter shall not apply to mobile vendors participating in farmer’s markets, street fairs, swap meets, or any other activity or permitted events authorized by a temporary special permit or as a sidewalk vendor holding a valid Sidewalk Vending Permit pursuant to Chapter 5.54.

5.53.050 Applicability of Permit Requirement to Existing Businesses.

The provisions of this chapter, including the permit requirement, shall be applicable to all persons and businesses described herein whether the activities were established before or after the effective date of this ordinance. All such persons and businesses shall have 30 days from the effective date of this ordinance t o file a completed application for a Mobile Vending Vehicle Permit as required by this chapter. All other regulations herein shall apply on the effective date of the ordinance.

5.53.060 Application for Mobile Vending Vehicle Permit.

A. Every person, prior to engaging in, conducting, operating, maintaining, advertising, or carrying on the business as a mobile vendor shall file an application with the Community Development Department on a City -approved form. Such application shall be accompanied by a 605
8 non-refundable permit application fee in an amount established by resolution of the City Council, and shall contain, at a minimum, the following information:

1. The legal name, date of birth, current mailing address and telephone number of the operator who will be solely responsible for the Mobile Vending Vehicle Permit regardless of that person being employed or engaged by another individual or a business or us ing a mobile vending vehicle owned by another individual or a business. The operator must be at least 18 years of age and have a valid California driver license.

2. If the operator is an agent of an individual, company, partnership, corporation, or other entity, the name, current telephone, email, and business address of the principal.

3. A copy of the operator’s government-issued photo identification, California driver license or ide ntification number, social security card, individual taxpayer identification number, or municipal identification number, which shall not be available to the public and shall not be disclosed except as required to administer the permit or comply with a state law or state or federal court order.

4. The legal name, date of birth, current mailing address and telephone number of all person(s) who will be employed by the operator who will work as a mobile vendor.

5. A copy of any employee’s government -issued photo identification, California driver license or identification number, social security card, individual taxpayer identification number, or municipal identification number, which shall not be available to the public and shall not be disclosed except as required to administer the permit or comply with a state law or state or federal court order.

6. Whether the operator intends to vend food, merchandise, or both.

7. If the mobile vendor is selling food, a description of the type of food to be sold, and whether such foods are prepared onsite or are prepackaged offsite.

8. If the mobile vendor is selling merchandise, a description of the merchandise to be sold.

9. The hours of operation per day and the day(s) per week which the operator proposes for mobile vending activities.

10. A description of the general or specific location, address, map, or drawing of the area(s)/route which the operator proposes for the mobile vending vehicle.

11. Vehicle make, model, year, body type, license plate number, VIN, and proof of current vehicle registration containing the vehicle ownership.

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9 12. A description of the logo, color scheme, insignia, and any other distinguishing characteristics of the operator’s mobile vending vehicle along with atta ched color photographs showing all sides of the vehicle.

13. A maintenance plan that includes litter pickup and food waste disposal in the vicinity of the mobile vending location.

14. If the operator proposes operating a mobile food vehicle, a certification of completion of a food handler course and proof of all required approvals from the Orange County Health Care Agency Environmental Health Division including a copy of the operator's current and valid Orange County Food Facility Health Permit.

15. A copy of a current and valid business license issued pursuant to Chapter

5.06. 16. A copy of a current and valid vehicle insurance policy as required by California law, in the amount set forth in subsection 20, below, which shall be maintained during the pendency of the mobile vendor’s permit.

17. A copy of a current and valid California Department of Tax and Fee Administration seller's permit issued to the operator, which shall be maintained during the pendency of the mobile vendor's permit.

18. Submittal of two (2) high resolution color passport pho tos of the operator and its employee(s), if applicable, taken within 60 days of the application filing. The photos shall be as follows:

a. 2 x 2 inches (51 x 51 mm);

b. Head must be between 1 -1 3/8 inches (25 - 35 mm) from the bottom of the chin to the top of the head and showing the shoulder;

c. Printed on matte or glossy quality paper;

d. Not digitally changed and not blurry, grainy, or pixelated.

19. A list of any convictions of the operator and its employee(s), if applicable, of any and all felony or misdemeanor offenses for the 5 years preceding the date of the application.

20. The operator shall maintain and provide proof of comprehensive general liability insurance with minimum policy limits of one million dollars ($1,000,000) per occurrence, combined single limit coverage, and one million dollars ($1,000,000) in the aggregate against any injury, death, loss, or damage as a result of wrongful or negligent acts or omissions by the operator.

Such insurance shall name as additional insured the City, its officers, and employees, and shall further provide that the policy shall not be terminated, reduced, or cancelled without 30 days’ advance written notice to the City.
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10 21. An acknowledgment that the operator will comply with all other generally applicable local, county, state, and federal laws.

22. Certification by the operator, business owner and employees (if applicable), under penalty of perjury, that the information contained in the application is true to the best of their knowledge and belief.

23. An agreement by the operator to defend, indemnify, release and hold harmless the City, its City Council, boards, commissions, officers and employees from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorneys’ fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to the permit or the vendor's mobile vending activities.

This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, or proceeding whether incurred by the permittee or City.

24. An acknowledgement that the operator's use of pu blic property is at their own risk and that the City does not take any steps to ensure public property is safe or conducive to mobile vending activities.

25. Any other reasonable information regarding the time, place, and manner of the proposed mobile vending activities.

B. The operator and its employees, if applicable, shall also submit a complete set of fingerprints to the Chief of the Orange Police Department or designee, in a manner and form approved by the Chief of Police. The operator and its employees shall pay for any fees for the fingerprints. Pursuant to California Penal Code Sections 11105 and 13300, the City Council authorizes the Chief of Police to obtain such information as it relates to disqualifying convictions or conduct related to the crimes or offenses described in this chapter.

C. The operator must immediately notify the City in writing of any changes to the information provided in the application or this chapter after the issuance of a Mobile Vending Vehicle Permit. A Mobile Vending Vehicle Permit Change of Information Fee shall be assessed against any operator who has been issued a Mobile Vending Vehicle Permit and changes any information as provided in the application or this chapter. Said fee shall be as established by resolution of the City Council.

D. Payment of an application permit fee and renewal permit fees. Each application for a Mobile Vending Vehicle Permit shall be accompanied by an application permit fee or renewal permit fee as established by resolution of the City Council. The application permit fee and renewal permit fees are only applicable to the operator named in the application. The application permit fee and renewal permit fee are non-refundable, and may not be assigned or prorated.

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11 E. Payment of an employee application permit fee, if applicable , and renewal permit fees. For each person who will be employed or engaged in mobile vending activity for an operator of a Mobile Vending Vehicle Permit, an employee application shall be submitted and accompanied by an application permit fee or renewal permit fee as established by resolution of the City Council.

The application permit fee and renewal permit fee are non-refundable, and may not be assigned or prorated.

5.53.070 Investigation and Findings for Mobile Vending Vehicle Permit.

A. Determination of Completeness. The Director shall, within 30 calendar days, review the submission of any application for a Mobile Vending Vehicle Permit to determine if the application contains all the requisite information set forth in Section 5.5 3.060. Any application that is missing required information or that is not accompanied by the requisite fee shall be deemed incomplete and shall not be processed by the Director. In such case, the Director shall issue a Notice of Incompleteness to the operator specifying the information that is missing. Failure of the operator to submit the missing information within 30 calendar days of the Notice of Incompleteness shall be deemed an administrative withdrawal of the Mobile Vending Vehicle Permit application by the operator.

B. Investigation and findings. Upon receipt of a complete Mobile Vending Vehicle Permit application (and requisite fees), the Director shall conduct a thorough investigation of the application and shall make a determination upon the application wit hin 6 0. The Director may request supplemental investigation, information, reports, and/or recommendations pertaining to relevant zoning, building, health, safety, fire, law enforcement, or other factors from any appropriate department of the City or other appropriate agency.

C. Notwithstanding the provisions of this code, the Director shall approve the issuance of a Mobile Vending Vehicle Permit unless the Director determines that any of the following disqualifications exist:

1. The operator has failed to submit any of the information, documentation, or fees required pursuant to Section 5.53.060 of this chapter;

2. The operator does not possess all federal, state, and/or local permits, licenses, certificates, and/or approvals required to engage in the activity subject to the permit;

3. The operator has made one or more materially false, misleading, or fraudulent misstatements or misrepresentations in the application or supplemental information;

4. The operator's proposed mobile vending activity, as described in the application, is inconsistent with the standards, conditions, prohibitions, or requirements set forth in this chapter;

5. The operator has failed to demonstrate an ability to conform to the standards, conditions, prohibitions, or requirements set forth in this chapter;

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12 6. The conduct of the mobile vendor will unduly interfere with traffic or pedestrian movement, tend to interfer e with or endanger the public peace or rights of nearby residents to the quiet and peaceful enjoyment of their property, or otherwise be detrimental to the public peace, health, safety, or general welfare;

7. The conduct of the mobile vendor will unduly inte rfere with normal governmental or City operations, threaten to result in damage or detriment to public property, or result in the City incurring costs or expenditures in either money or personnel not reimbursed in advance by the vendor;

8. The conduct of such mobile vending activity will constitute a fire hazard;

9. The conduct of such mobile vending activity will require the diversion of police officers to properly police the area of such activity as to interfere with normal police protection for other areas of the City;

10. The operator has had a Mobile Vending Vehicle Permit revoked or denied within the previous year;

11. The operator has not paid all previous administrative fine(s), completed all community service, or completed any other alternative disposition associated in any way with a previous violation of this chapter;

12. The operator including its employee(s), if applicable, has been convicted of any felony or misdemeanor offense during the last 5 years prior to the date of the application involving any moral turpitude, driving under the influence of alcohol or other controlled substance; any crime involving the sale, use of, or transportation of narcotics; any crime involving reckless driving; any suspension of driver license; a criminal assault; any crime involving theft or embezzlement; or any child annoyance or sex -related crime, or is otherwise still on probation or parole for a felony or misdemeanor offense as set forth in this section;

13. The operator including its employee(s), if applicable, has been convicted of any felony offense involving the sale of a controlled substance specified in California Health and Safety Code sections 11054, 11055, 11056, 11057 or 11058 within 5 years prior to the date of the application, or is otherwise on probation or parole for any offenses set forth in this section;

14. The operator including its employee(s), if applicable, is required to register under the provisions of California Penal Code section 290 (or an equivalent section in any other State);

15. The operator has not maintained required insurance to protect the City from liability associate d with the mobile vendor’s activities, including naming of the City as an additional insured, as determined by the City's risk manager; or

16. The operator has not satisfactorily provided all additional information requested by the Director to consider the operator's application. 610
13 5.53.080 Denial of Mobile Vending Vehicle Permit.

A. If a Mobile Vending Vehicle Permit is denied pursuant to this chapter, the operator shall be notified in writing of the denial of the permit, along with the grounds for denial. The notice shall also advise the operator of the ability to appeal the denial in the manner set forth in Section

5.53.120 of this chapter. Notice shall be mailed to the operator at the address listed in the application.

B. Any operator who has been denied a Mobile Vending Vehicle Permit pursuant to this chapter shall not be eligible to re -apply for a Mobile Vending Vehicle Permit for a period of one year from the date of the written denial.

5.53.090 Permit Not Transferable.

A Mobile Vending Vehicle Permit issued pursuant to the provisions of this chapter shall not be assignable or transferable to any other entity or person. Any change in ownership, mobile operation or vending activity of an issued Mobile Vending Vehicle Permit requires the filing of an application for a new permit under this chapter.

5.53.100 Term of Permit and Renewal.

A. A Mobile Vending Vehicle Permit issued pursuant to the provisions of this chapter shall automatically expire one year from the date issued unless an earlier expiration date is noted on the permit.

B. Renewal of permit. Any operator who has been issued a Mobile Vending Vehicle Permit and seeks to continue mobile vending must renew before the Mobile Vending Vehicle Permit has expired through the same application process described in Section 5.5 3.060 of this chapter. Unless timely rene wed, any Mobile Vending Vehicle Permit issued pursuant to this chapter shall expire and become null and void at the end of its term.

C. Renewal of permit after revocation. Any operator whose Mobile Vending Vehicle Permit is revoked may not renew their permit for one year from the date it is revoked.

D. Denial of permit. Any operator who has been denied a Mobile Vending Vehicle Permit pursuant to this chapter shall not be eligible to re -apply for a Mobile Vending Vehicle Permit for a period of one year from the written denial.

5.53.110 Operators of Mobile Vending Vehicles.

A. No person, including the operator and/or its employee(s), shall engage, furnish, operate, conduct, maintain or advertise as any mobile vendor in any mobile vending vehicle if such person has been convicted during the last 5 years of any felony or misdemeanor crime involving driving under the influence of alcohol or other controlled substance; any crime involving the sale, use of, or transportation of narcotics; any crime involving reckless driving; any offense resulting 611
14 in suspension of driver’s license; a criminal assault; any crime involving theft or embezzlement; or any child annoyance or sex-related crime that requires registry as a sex offender and unless that person holds a valid driver’s license authorizing the operation of such vehicle type.

B. All operators and employees shall undergo a background investigation with the Orange Police Department and meet the qualifications prior to issuance of a Mobile Vending Vehicle Permit. If a Mobile Vending Vehicle Permit has been issued and later determined that said person was convicted of any felony or misdemeanor crimes listed above, then the Mobile Vending Vehicle Permit shall be immediately revoked unless appealed pursuant to 5.53.120.

5.53.120 Appeals of Denial or Revocation of Mobile Vending Vehicle Permit.

A. Appeal of denial or revocation of Mobile Vending Vehicle Permit.

1. Any person who has been denied a Mobile Vending Vehicle Permit or who has had a Mobile Vending Vehicle Permit revoked by the Director pursuant to the provisions of this chapter may appeal such determination to the City hearing officer, by filing a request for an appeal with the City Clerk, and tenderin g a filing and appeal fee as set by resolution of the City Council, within 21 calendar days of service of the notice of such denial or revocation. The request for an appeal shall contain, at a minimum, the following:

a. The name, current mailing address, and telephone number of the appellant;

b. The date of denial or revocation by the Director;

c. A statement as to all grounds for appeal in sufficient detail to enable the City hearing officer to understand the nature of the controversy; and

d. The signature of the appellant under penalty of perjury as to the contents of the request for appeal.

2. An appeal shall be scheduled for a hearing before the City hearing officer within 30 calendar days of the filing of the appeal along with the appeal fee unless both the appellant and the City hearing officer consent to a later date.

3. The City hearing officer shall give notice in writing to the appellant of the time and location of the appeal hearing. At the hearing, the City hearing officer shall review the record of the decision for denial of a Mobile Vending Vehicle Permit or revocation of a Mobile Vending Vehicle Permit by the Director, examine evidence and hear testimony of the appellant, if any, the operator, and any other interested party. The appeal shall be reviewed and determined on a de novo basis.

B. After the hearing, the City hearing officer shall affirm, modify, or reverse the original denial or revocation. When a denial or revocation is modified or reversed, the City hearing officer shall state the specific reasons for modification or reversal. Decisions on appeals shall be 612
15 rendered within 30 calendar days of the close of the hearing. The City hearing officer shall mail notice of a decision to the appellant. Such notice shall be mailed within 5 working days after the date of the decision to the appellant. The decision of the hearing officer shall be final.

5.53.130 Conditions and Restrictions Imposed on Permit: Public Safety Justification.

A. Mobile vendors shall adhere to all operating conditions and requirements set forth in this chapter, and all restrictions, limitations, and operating requirements set forth in this chapter shall constitute conditions upon any Mobile Vending Vehicle Permit issued pursuant to this chapter.

B. The conditions, restrictions and operating requirements set forth in this chapter are intended to protect the health, welfare and public safety of vendors, their patrons, and the general public for reasons including, but not limited to:

1. Reducing exposure to pedestrian versus vehicle contact;

2. Ensuring better visibility of drivers entering or existing driveways;

3. Protecting access to publi c rights-of-way by disabled persons to comply with the Americans with Disabilities Act;

4. Ensuring safe pedestrian pathways in areas commonly utilized by pedestrians;

5. Preventing the appearance of “marketplace” vending which is more likely to generate crowd ing on public sidewalks that would impede pedestrians and accessible use of sidewalks by disabled persons;

6. Reducing the chance pedestrians will enter vehicular right of ways or block the entrance or exit of a business;

7. Reducing the danger that children w ill enter into traffic and be injured or killed trying to reach a vendor especially near schools, day care facilities, parks and recreational facilities;

8. Reducing unnecessary or unanticipated slowing of vehicles approaching on- ramps, immediately adjacent to curb and sidewalk, or exiting freeway off-ramps where drivers are merging into oncoming traffic which is likely to cause accidents;

9. Reducing the possibility that drivers will be distracted in their line of site by a vendor in the way of oncoming traffic;

10. Causing visual distraction to the driving public such as lighting;

11. Causing excessive noise that disturbs the peace;
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16 12. Eliminating litter, refuse and food waste from the public right-of-way; and

13. Reducing the likelihood of contamination deposited into the City’s storm drain system.

5.53.140 Mobile Vending Operational Regulations.

A. Any person or operator vending from a mobile vending vehicle shall comply with the following regulations:

1. Mobile vendors shall operate in compliance with all applicable federal, state, county, and City laws, ordinances, and regulations.

2. Mobile vendors shall continuously maintain vehicle operation in compliance with safety provisions contained in the California Vehicle Code.

3. Mobile vendors shall only conduct vending operations at the location, area or route approved by the Director and shall display a City-issued Mobile Vending Vehicle Permit and business license on the right-side portion of the mobile vending vehicle. An operator who has been issued a valid Mobile Vending Vehicle Permit shall always be at the approved location, area or route while conducting mobile vending activities except as permitted by law for reasonable time away due to rest, restroom, and meal breaks. The operator and any employee(s) shall also display a photo identification issued by the City upon their person in a conspicuous manner at all times while conducting mobile vending activities.

4. Any health permit required by law for v ending any food item s shall be displayed at all times in a conspicuous place upon each mobile vending vehicle.

5. Every mobile vending vehicle shall have the name, address, and telephone number of the operator permanently affixed on both the left and right sides of th e vehicle. Such information shall be in letters and numerals not less than four inches in height and shall contrast with the color of the background upon which the letters are placed.

6. Mobile vendor operators shall comply with all applicable laws relating to the employment of minors. Any minor assisting with or engaged in mobile vending shall be accompanied by a mobile vendor with a valid vending permit. Any and all actions of the minor related to vending, including any violations committed by the minor, are attributable to the mobile vendor.

7. Every mobile vendor shall maintain the area immediately surrounding the vending area in a neat, clean, orderly, and sanitary condition. Prior to leaving any vending location, the mobile vendor shall pick up, remove, an d lawfully dispose of all byproducts (including fats, oils, and grease) and litter generated by the vending operation (whether by the vendor or customer) within 25 feet of the vending location. Mobile vendors shall not cause, permit, or suffer any litter, food, or other discarded or abandoned object to be thrown, deposited, or left in or upon any public 614
17 or private street, alley, highway, sidewalk, gutter, storm drain, inlet, catch basin, or other drainage structure, or upon any public or private land in the City.

8. Mobile vendors may place waste containers on public sidewalks , provided that a minimum of 48 inches of accessible path of travel for pedestrians is maintained.

9. Any mobile vending vehicle m ay stop for a maximum of 4 hours per stop in any commercial or industrial zone excluding residential zones but may only occupy one parking space or two parking spaces for vehicles attached with a vending trailer on public or private streets, alleys, or highways . Normal parking rates for each parking space, either wholly or partially occupied and/or posted parking restriction signage shall apply. The vendor must move at least one whole block before making another stop.

10. If applicable, a mobile vending trailer must be attached to a tow vehicle while engaging in mobile vending activities.

11. Any mobile food vehicle that is vending in the City for longer than one hour during any 24-hour period must be legally parked within 200 feet of an approved and readily available toilet and hand -washing facility, or as otherwise approved by the City and/or Orange County Health Care Agency Environmental Health Division, to ensure that restroom facilities are available to the mobile food vehicle operator and its employees. The mobile food vehicle operator must provide written evidence to the City upon demand that they have permission from an adjoining private property owner to use their restroom facilities.

12. Any mobile vending vehicle in a residential zone shall move continuously except when necessary to complet e a sales transaction but must not exceed a maximum of 10 minutes to complete the transaction.

13. Vending may only occur when the mobile vending vehicle is legally parked in a public or private street, alley, or highway . Mobile vendors shall comply with the California Vehicle Code, along with Title 10 (Vehicles and Traffic) and Title 1 2 (Streets, Sidewalks and Public Places) of this code, including all posted signage relating to parking, stopping, standing, loading/unloading zones, fire lanes, red curbs and or any other restrictions at all times.

14. Vending within the public right-of-way shall not be conducted before 7:00 a.m. or after 7:00 p.m. in any residential zone.

15. Mobile vendors shall ensure that all customer queuing, waiting areas, or lines do not block, hinder, or interfere with pedestrian thoroughfare of a minimum of 48 inches of accessible path of travel on the sidewalk in front of the mobile vending vehicle or vehicular traffic along, over, or across public or private property.

16. Mobile vendors shall discourage congregation of customers within 25 feet of the vending location.

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18 17. Mobile vending vehicles shall park in a manner which ensures that customers shall be able to order and pick up food or merchandise safely without stepping into a parking space, into a street, or into landscaped area.

18. Mobile vendors engaged in the vending of food or beverages shall have hand sanitizer located in a conspicuous location readily available for use by customers.

19. Mobile vendors shall not use any portable cooking equipment, gas -fueled appliance, or any open flame unless approved and permitted by Director, Orange City Fire Department and/or Orange County Health Care Agency Environmental Health Division.

20. Mobile vendors who vend any food, beverage, or liquid product s must implement the following best management practices:

a. Possess spill kits that are comprised of paper towels, cloth towels, cat litter, or sand at all times while vending;

b. Remove all spill materials from the public right -of-way and sidewalks once the spilled material is absorbed off the ground;

c. Capture and prevent spills leaving the area and moving into the surrounding streets from entering the storm water conveyance syst em, including curbs, gutters, and storm drains;

d. Properly dispose of grease, either by hiring and utilizing an on -site grease collector or collection system, or at an acceptable facility; and

e. Ensure that any water or rinse residue used for mobile vending activities (e.g., cooler water, ice, food preparation water) is not disposed in the curbs, gutters, streets, drains, or on any public or private property.

21. During an urgent or emergency public safety event or incident, including, but not limited to, a traffic accident, crime scene, medical emergency, gas leak, natural disaster, fire, on-site construction, sidewalk or road work or related work on a capital improvement project, the City may temporarily require the mobile vendor to relocate to another location or area if doing so is necessary to protect the public’s safety, health or welfare.

22. Mobile vendors shall present a valid government -issued photo identification, California driver license or identification card, Mobile Vending Vehicle Permit, business license, and other applicable license or permit, upon the request of any City official including a City code compliance officer, police officer, firefighter, fire prevention specialist or examiner, and Orange County health inspector authorized to enforce the provisions of this chapter.

5.53.150 Prohibited Conduct and Activities for Mobile Vendors.

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19 No person or operator vending from a mobile vending vehicle which is stopped, parked, or standing on any applicable public or private street , property, alley, highway, parking space, landscaped area, vacant lot, sidewalk, or other right-of-way shall:

A. Sell or offer to sell services, or engage in or offer to engage in any type of rental activity, including the rental of any goods or services.

B. Display merchandise or food that is not available for immediate sale.

C. Utilize outdoor wood burning ovens, charcoal, or propane barbecue grills on mobile vending vehicles unless approved by the Director, Orange City Fire Department and Orange County Health Care Agency Environmental Health Division.

D. Utilize gasoline or kerosene as part of any cooking or heating element.

E. Utilize portable generators unless approved by the Director, Orange City Fire Department and/or Orange County Health Care Agency Environmental Health Division.

F. Except as otherwise specified in this chapter, conduct mobile vending activities between the hours of 10:00 p.m. and 7:00 a.m. daily or consistent with the hours of operation of the businesses on the same street block.

G. Utilize a sidewalk vending cart as defined in Section 5.54.020.

H. Touch the pe rson(s) being offered to purchase food or merchandise without that person's consent.

I. Use any luminaire, flashing lights or any other animated devices or signs. Mobile vendors shall only utilize the minimum amount of luminaires necessary for the safe operation of the mobile vending activity as determined by the City.

J. Sell, use, or vend any of the following:

1. Live animal(s);

2. Adult-oriented material depicting, describin g, or relating to specified anatomical areas or specified sexual activities;

3. Alcohol, cannabis, marijuana, or tobacco products that contain nicotine or any product used to smoke (or “vape”) nicotine, cannabis, or marijuana;

4. Weapons, including knives, gun s, or explosive devices; airsoft guns, paintball guns, BB devices or imitation firearms;

5. Pharmaceuticals;

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20 6. Illegal or counterfeit merchandise; or

7. Any other food, merchandise or products prohibited by local, state, and federal laws.

K. Use or operate, or permit to be played, used, or operated, any radio, receiving set, musical instrument, phonograph, loudspeaker, sound amplifier, or other machine or device for the producing or reproducing of sound. Furthermore, no mobile vendor shall use, operate, or permit horns, bells, whistles, or other noisemaking devices.

L. Allow any mobile vending equipment to touch, lean against or be affixed or fastened at any time to any building, structure or above-ground structure including, but not limited to poles, trees, lampposts, parking meters, mailboxes, traffic signals, fire hydrants, benches, bus shelters, newsstands, trashcans, waste receptacles, or traffic barriers.

M. Set up a customer seating or eating area such as but not limited to equipment, tables, chairs, tents, or canopies.

N. Vend in congested areas where it may impede or block the public or create a traffic or pedestrian hazard.

O. Display flashing neon or electronic display signs or visual displays that are intended to, or do in fact, distract drivers, and draw attention to the mobile vending vehicle.

P. Attach to or receive any electrical power or other utilities from any public or private property.

Q. Install, place, fabricate, or otherwise use jacking, lifting, or static platforms whether they are hydraulic or mechanical, of any sort, within any public or private street, alley, or highway in order to level the vehicle for operation.

R. Engage in restocking of the mobile vending vehicle.

S. For public safety concerns, including but not limited to pedestrian, vehicular, public, and mobile vendor safety, no mobile vending vehicle shall stop, park, or stand to make sales transactions from the following locations , or within the number of feet designated below from the nearest portion of the following locations:

1. Within 50 feet of any street intersection;

2. Within 50 feet of any traffic control device (including traffic signals and traffic signs);

3. Within 50 feet of a fire hydrant or connection, fire lane, fire call box, or other emergency facility;

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21 4. On any designated emergency vehicle access way;

5. Within 50 feet of any driveway or driveway apron;

6. Within 50 feet of a marked crosswalk;

7. Within 50 feet of a curb return of an unmarked crosswalk or curb ramp;

8. Within 50 feet of any loading and unloading zone, parking space, or access ramp or parking space designed for individuals with disabilities;

9. Within 50 feet of a bus stop, taxi stand, bus bench, or bus shelter;

10. Within 50 feet of any entrance, fire escape or emergency exit of any business during the hours that the business is open to the public or to persons having or conducting lawful business therein;

11. Within 50 feet of another mobile vendor or sidewalk vendor;

12. Within 500 feet of any permitted certified farmer’s market, permitted swap meet, or an area designated for use pursuant to a temporary special permit, during the operating hours or duration of the certified farmer’s market, swap meet, or temporary special permit;

13. Within 500 feet of the nearest property line of any property on which a school, recreational facility, a place of worship, or a child day -care facility, unless authorized to do so in writing by the school district, owner or legal representative of the recreational facility, place of worship, or child day-care facility, and with a special event permit, if applicable;

14. Within 500 feet of the nearest property line of any private homeowners association as defined in Section 17.04.027 of this code, park or City park except at specific City parks pursuant to Section 5.53.160;

15. Within 500 feet of any property on which a private and post -secondary education, college or university building or campus is located, unless authorized to do so in writing by the private and post-secondary education, college or university, and with a special event permit, if applicable;

16. Within 50 feet of any parking lot or parking structure;

17. Within 50 feet of any railroad crossing or train tracks;

18. Within 500 feet of any major transit stop;

19. Within 25 feet of any active encroachment permit issued and displayed during the time and dates listed in the permit;

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22 20. Within 25 feet of any automated teller machine (ATM) or parking pay station;

21. Within 25 feet of any outdoor dining or patio area of a business;

22. Within 500 feet of a freeway on-ramp or off-ramp;

23. Within 500 feet of a backup City Emergency Operations Center, identified in the City's Emergency Operations Plan, during the operational period;

24. Within 500 feet of any Civic Center, Police and Fire station or facility, public utility facility, United States Postal Service office or facility, or other governmental building or facility;

25. When the p osted speed limit sign on the public or private street, alley or highway is greater than 35 miles per hour;

26. When it is parked in violation of any othe r provision of this code or the California Vehicle Code;

27. Unless it has been brought to a complete stop and parked adjacent to a curb in a lawful manner;

28. When it is open to prospective customers on the side of the vehicle other than next to the right side of the public or private street, sidewalk, alley, or highway;

29. When the prospective customer is standing or sitting in another vehicle;

30. When the prospective custom er is in that portion of the public or private street, alley or highway which is open to vehicular traffic; and

31. When the mobile food vehicle has passed a prospective customer and must drive in reverse to make or attempt a sale.

5.53.160 Exemption Related to City Parks.

The following exemption shall apply: the Director of Community Services may review and approve mobile vending activities as part of a special event permit and/or as a concessionaire conducted by a permitted mobile vendor on City property operated under the jurisdiction of the Community Services Department and promulgate rules of operation in park locations, including operation hours.

5.53.170 Mobile Food Vehicle Vending at Active Construction Sites.

A. The regulations contained in this section apply specifically to an operator who holds a valid Mobile Vending Vehicle Permit for the mobile food vehicle who solely intends on vending 620
23 food and /or drinks at an active construction site that ha s a valid City buildi ng permit in a commercial, manufacturing, industrial or residential zone

B. Vending at active construction sites. Mobile food vehicles may park on private or public property at the request and with written consent of the person who is in legal control of the property where the performance of lawful construction activity with a valid City building permit has been issued for the property. The sole purpose of the mobile food vehicle is exclusively for the sale of food and/or drinks to construction employees performing lawful construction on a private property located in a commercial, manufacturing, industrial or residential zone.

C. The following restrictions apply to such vending at active construction sites:

1. No sales of food or drinks shall be made to the general public.

2. A mobile food vehicle shall not be parked for a period of more than one hour.

3. A mobile food vehicle must either park on the construction site of the private property or immediately in front of it on the public street abiding by any an d all parking restrictions, codes or laws.

4. Nothing in this section shall be construed to excuse a valid mobile food vehicle vendor from complying with any and all of the provisions of this chapter.

5.53.180 Private Property Use by Mobile Vendors.

A. No property owner shall allow any mobile vehicle vendor operations on their property (i) unless the vendor holds a valid Mobile Vending Vehicle Permit issued by the City authorizing the vendor to operate and vend on the private property and (ii) except in compliance with the following requirements:

1. Mobile v endors shall have the private property owner’s written authorization to operate and vend on the private property in their possession at a ll times. The written authorization shall describe the approved location and operation schedule. Documentation of the private property owner’s written authorization shall be provided to code compliance upon filing of an application for a Mobile Vending Vehicle Permit and/or upon request.

2. Mobile v ending shall only be conducted on private property used for nonresidential purposes, such as in commercial, manufacturing, or industrial zones except as otherwise permitted by any other provisions of this code.

3. Only one mobile vendor is allowed on any individual private property at any given time that the mobile vending activity is in operation.

4. Mobile vendors shall only occupy parking spaces not required to meet the minimum requirements of the current permitted uses on the private property per Title 17 of this 621
24 code (Zoning), or of other off -site uses if those spaces are leased under a shared parking facility agreement with a conditional use permit. This requirement does not apply if the hours of operation for the mobile vendor and the permitted uses on the private property do not coincide.

5. Mobile v endors shall not occupy any paved area required for loading, circulation, or fire access.

6. Nothing in this section shall be construed to excuse mobile vendors from complying with any and all of the provisions of this chapter.

7. Mobile vending operations on private property beyond the requirements of this section or provisions contained in this chapter may be allowed by permit pursuant to Title 17 (Zoning). In addition, the Director may require a permit whenever it appears that mobile vending activities are having an adverse impact on the use of the property or neighboring properties, including traffic, circulation, parking availability, noise, trash, or other reasons of public safety or health.

B. This section does not apply to any private event in a commercial, manufacturing, industrial or residential zone where a mobile food vendor with a valid Mobile Vending Vehicle Permit has obtained the private property owner’s written permission to cater for a private event that is held exclusively on the private property and that is not open to the general public. No sales of food or drinks sh all be made to the general public including any persons who are attendees of the privately catered event. Nothing in this section shall be construed to exempt a valid mobile food vehicle vendor providing private catering services on private property from complying with any and all of the provisions of this chapter.

5.53.190 Enforcement.

A. Violations deemed a nuisance . It is unlawful and declared a public nuisance for any owner , operator, or person to operate, conduct, or maintain a mobile vending vehicle contrary to the provisions of this chapter.

B. Criminal penalties . Any owner or person who violates any provision of this chapter is guilty of a misdemeanor punishable by a fine of up to $1,000, or by imprisonment in the County jail not exceeding 6 months, or by both; except the City Attorney, in their discretion, may prosecute a violation of this chapter as an infraction subject to the penalties in of this code.

C. Administrative citations . Administrative citations may be issued for viol ations of the provisions of this chapter, as set forth in Chapter 1.10 of this code.

D. Civil or equitable enforcement . The City Attorney may bring a civil or equitable action to seek the abatement of any violation of this chapter.

E. Aiding, abetting, and omissions . Whenever in this chapter any act or omission is made unlawful, it shall include causing, permitting, aiding, abetting, suffering, or concealing the fact of such act or omission.
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25 F. Ongoing violations . Each and every day a violation is maintained, caused, aided, abetted, concealed, suffered, or permitted is a separate offense.

G. Remedies cumulative . The remedies, procedures, and penalties provided by this chapter are cumulative to each other and to any other remedies, procedures, and penalties available under City, state, or federal law.

SECTION IV:

If any section, subdivision, paragraph, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each section, subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact that any one (or more) section, subdivision, paragraph, sentence, clause or phrase had been declared invalid or unconstitutional.

SECTION V:

The City Clerk is hereby directed to certify the adoption of this Ordinance and cause the same to be published as required by law. This Ordinance shall take effect thirty (30) days from and after the date of its final passage.

ADOPTED this ____ day of ___________________, 2023.

Daniel R. Slater, Mayor, City of Orange

ATTEST:

Pamela Coleman, City Clerk, City of Orange

STATE OF CALIFORNIA )

COUNTY OF ORANGE )

CITY OF ORANGE )

623
26 I, PAMELA COLEMAN, City Clerk of the City of Orange, California, do hereby certify that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the ___ day of _____________, 2023, and thereafter at the regular meeting of said City Council duly held on the ___ day of ____________, 2023 was duly passed and adopted by the following vote, to wit:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange

624
RESOLUTION NO. 11483

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF ORANGE SETTING THE AMOUNT OF FEES

RELATING TO MOBILE VENDORS AND MOBILE
VENDING VEHICLE PERMITS.

WHEREAS, California Constitution, Article XI, Section 7, authorizes the City of Orange (“City”) to adopt and enforce local police, sanitary, and other ordinances and regulations that are not in conflict with general laws; and

WHEREAS, the Legislature of the State of California, in adopting section 22455 of the California Vehicle Code and 114315(a) of the California Health & Safety Code authorizes the City of Orange to adopt regulations relating to the type of vending, and the time, place and manner of vending for the public safety; and

WHEREAS, on July 11, 2023, the City introduced O rdinance No. 11 -23 to adopt a new Mobile Vehicle Vending Program to restrict the time, place and manner for vehicle vending in order to protect the public safety in accordance with California Vehicle Code section 22455, and to provide persons engaged in mo bile vending businesses with clear and concise regulations to prevent and avoid such public safety hazards and to protect the physical environment, including aesthetics, and the quiet enjoyment of residential neighborhoods and commercial corridors.

NOW, THEREFORE, IT BE RESOLVED by the City Council of the City of Orange as follows:

1. A Mobile Vending Vehicle Application Fee of $645.00 per vending cart shall be required for an application for a Mobile Vending Vehicle Permit.

2. An Employee Application Fee of $169.00 per employee shall be required of all person(s) who will be employed by the applicant for a Mobile Vending Vehicle Permit.

3. A Mobile Vending Vehicle Permit Change of Information Fee of $169.00 shall be imposed when any applicant who has been issued a Mobile Vending Vehicle Permit changes any information as provided in the application or Chapter 5.53 of the Orange Municipal Code.

4. An Administrative Appeal Fee of $85 .00 shall be required for any person who has had a Mobile Vending Permit denied or revoked and wishes to appeal said action before a hearing officer. If the hearing officer upholds the appeal, the Administrative Appeal Fee shall be refunded.

5. This Resolution shall be effective immediat ely upon the effective date of Ordinance No. 11-23.

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ADOPTED this ____ day of ___________________, 2023.

Daniel R. Slater, Mayor, City of Orange

ATTEST:

Pamela Coleman, City Clerk, City of Orange

STATE OF CALIFORNIA )

COUNTY OF ORANGE )

CITY OF ORANGE )

I, PAMELA COLEMAN, City Clerk of the City of Orange, California, do hereby certify that the foregoing Resolution was duly and regularly adopted by the City Council of the City of Orange at a regular meeting thereof held on the 11th day of July 2023, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

Pamela Coleman, City Clerk, City of Orange

626