City of Patterson Page 1 Updated 8/10/2023 5:30 PM
AMENDED
Agenda
City of Patterson
City Council Regular Meeting
August 15, 2023
7:00 PM
Council Chambers
1 Plaza
Patterson, CA 95363
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In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk at (209) 895-8012. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. [28 CFR 35.102-35.104 ADA Title II] The City Council agenda and supporting public documents are available for viewing in City Hall, Administration Department, 1 Plaza, 2nd Floor, Patterson, California, during normal business hours. The City Council agenda and supporting public documents are also available online on the City web site www.ci.patterson.ca.us listed under Popular Links “City Council Agendas” or please call or email the City Clerk at (209) 895-8012 or [email protected] If you wish to be notified of future City Council Meetings, please visit our web site www.ci.patterson.ca.us go to Popular Links “City Council Agendas” and Subscribe to “RSS” ═══════════════════════════════════════════════════════════════
1. Call to Order
2. Pledge of Allegiance
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3. Statements of Conflict
4. Certificates
4.1. Parks Recreation and Beautification Award
5. Presentation
5.1. CARE Team and Cambridge Academies Presentation (Cambridge Academies Executive Director, Geni Boyer)
6. Items from the Public
Any member of the audience desiring to address the Council regarding a matter on the agenda, please raise your hand or step to the podium, or if using the zoom app by pressing *9 on your cell phone at the time the item is announced by the Mayor. The public wishing to address the Council on items that do not appear on the agenda may do so; however, Council will take no action other than referring the item to staff for study and analysis and may place the item on a future agenda (Resolution 92-25)
In order that all interested parties have an opportunity to speak, any person addressing the Council will be limited to a maximum of five (5) minutes unless the Mayor grants a longer period of time (Resolution 92-25)
Please State Your Name and City for the Record.
7. Consent Calendar
All items are approved by a single action. Any item may be removed from the Consent Calendar for separate discussion upon request from a member of the Public, Staff and/or Councilmember.
7.1. Motion to Waive Readings - All Readings of Ordinances and Resolutions, Except by Title are hereby waived.
7.2. Approve Minutes of Regular Meeting - July 18, 2023 (7:00 PM)
7.3. Approve Street Closure for Farm to Fork Dinner Fundraiser event for the City of Patterson, Youth and Senior Scholarship Program, Downtown on Saturday, September 9, 2023.
7.4. Approve Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Master Agreement No. 10-5244S21 and Program Supplemental Agreement No. A193 for the Intersection at Sperry Avenue and Highway 33 Project HSIPSL-5244 (042), and Authorize the City Manager to Execute the new Master Agreement, the Program Supplement Agreement and all Future Documents for this Project on the City’s Behalf.
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7.5. Approve Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash Capture System at Salado Creek and Olive Avenue Basin and Authorizing the City Manager or his Designee to Execute the Agreement in the Amount not to Exceed $200,000.
7.6. Approve Resolution No. 2023-41 Approving a Cost-Sharing Agreement for the San Joaquin Valley Storm Water Quality Partnership (SJVSWQP); Authorizing the City Manager or his Designee to Execute the Agreement; and Authorizing the City to Partner for Stormwater Management Activities for Cost Sharing Purposes.
7.7. Approve Resolution No. 2023-42, Authorizing the Acceptance of a Caltrans Department of Transportation Clean California Grant and Appropriate Grant Funds in the Amount of $8,028 to Reimburse City Expenses for the Community Recycling Day Event and Authorizing the Finance Department to Adjust the Fiscal Year 2023-24 Budget.
7.8. Approve the First Amendment to the Stanislaus Animal Services Agency Joint Powers Agency Agreement.
7.9. Approve the Job Description for a Full-Time Public Information Officer.
8. Public Hearing
8.1. City Attorney - Consideration of Appeal No. 23-01, By Central Valley-Sierra Associates Regarding (1) Resolution No. 2023-07 of the Patterson Planning Commission Revoking Conditional Use Permit No. 17-21 For Failure to Comply with Conditions of Approval; and (2) Resolution No. 2023-06 of the Patterson Planning Commission Recommending that the Patterson City Council Adopt an Ordinance Confirming the Termination of the Development Agreement By and Between the City of Patterson and Central Valley-Sierra Associates and Authorizing the Recording of a Notice of Termination.
Staff Report: City Attorney Goldstein
Mayor: Open/Close the Public Hearing
Council: Consideration of Appeal No. 23-01, By Central Valley-Sierra Associates Regarding (1) Resolution No. 2023-07 of the Patterson Planning Commission Revoking Conditional Use Permit No. 17-21 For Failure to Comply with Conditions of Approval; and (2) Resolution No. 2023-06 of the Patterson Planning Commission Recommending that the Patterson City Council Adopt an
Ordinance Confirming the Termination of the Development Agreement By and Between the City of Patterson and Central Valley-Sierra Associates and Authorizing the Recording of a Notice of Termination.
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8.2. City Attorney - Approve First Reading and Introduction of Ordinance No. 870, Reading by Title Only, Waiving Further Reading, an Ordinance of the City Council of the City of Patterson, Confirming the Termination of the Development Agreement By and Between the City of Patterson and Central Valley-Sierra Associates and Authorizing the Recording of a Notice of Termination.
Staff Report: City Attorney Goldstein
Mayor: Open/Close the Public Hearing
Council: Motion to Approve First Reading and Introduction of Ordinance No. 870, Reading by Title Only, Waiving Further Reading.
8.3. City Attorney - Approve First Reading and Introduction of Ordinance No. 871, Reading by Title Only, Waiving Further Reading, an Ordinance of the City Council of the City of Patterson, to Approve a Fourth Amendment to the Development Agreement By and Between the City of Patterson and Nucleus Homeopathics, Inc.
Staff Report: City Attorney Goldstein
Mayor: Open/Close the Public Hearing
Council: Motion to Approve First Reading and Introduction of Ordinance No. 871, Reading by Title Only, Waiving Further Reading.
9. City Council Reports
A. Councilmember Alves
. Stanislaus Homeless Alliance (Councilmember Roque alternate) . Stanislaus County Hazardous Waste Advisory Committee (Councilmember Farinha alternate)
B. Councilmember Romero
. Westside Health Care Task Force (Councilmember Alves alternate) C. Councilmember Farinha
. San Joaquin Valley Air Pollution Control District (Councilmember Romero alternate)
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D. Mayor Pro Tem Roque
. (EDAC) Stanislaus County Economic Development Action Committee (Mayor Clauzel alternate)
. Workforce Development Board (Mayor Clauzel alternate) E. Mayor Clauzel
. Stanislaus County Mayor's Meeting
. StanCOG (Mayor Pro Tem Roque alternate)
. League of California Cities (Councilmember Farinha 1st alternate, Councilmember Alves 2nd alternate)
10. Other Matters
11. Adjournment
DECLARATION OF POSTING
I, Aracely Alegre, City Clerk of the City of Patterson, California do hereby declare that the foregoing notice was posted on the Bulletin Board at City Hall, 1 Plaza, Patterson, California on August 10, 2023.
The Agenda is also posted for public view on the Bulletin Boards of the Hammon Senior Center, 1033 W. Las Palmas, Patterson, the Patterson Branch Library, 46 N. Salado Avenue, Patterson, and the City of Patterson City Web Site www.ci.patterson.ca.us Aracely Alegre, City Clerk
City of Patterson
Direct No. (209) 895-8012
Email [email protected]
City Council Agenda Report
TO: Mayor Clauzel and Members of the City Council
FROM: Ken Irwin, City Manager
BY: Michael Clauzel,
MEETING DATE: August 15, 2023
ITEM NO: 4.1
SUBJECT: Parks Recreation and Beautification Commission Award This item is informational. No action needed.
4.1 Packet Pg. 6
City of Patterson Page 1 Updated 8/2/2023 11:45 AM
City Of Patterson
Regular Meeting Minutes
July 18, 2023
City Manager
Ken Irwin
City Attorney
Nubia Goldstein
Deputy City Attorney
Douglas White www.ci.patterson.ca.us
Mayor
Michael Clauzel
City Council
Shivaugn Alves, District A
Jessica Romero, District B
Dominic Farinha, District C
Carlos Roque, District D
City Clerk
Aracely Alegre
1. Call to Order
Attendee Name Title Status Arrived
Michael Clauzel Mayor Present
Shivaugn Alves District A Present
Jessica Romero District B Present
Dominic Farinha District C Present
Carlos Roque District D Present
City Staff Present:
1. City Manager Irwin
2. City Attorney Goldstein
3. Public Works Director Willett
4. Recreation & Community Services Director Flanders
5. Finance Director Riedeman
6. Fire Chief Gregory
7. City Engineer Ulloa
8. Community Development Director Stice
9. Human Resources Director Guillory-Jones
10. Police Chief Clayton
11. Programs Manager Johanna Ferriera
12. Senior Code Enforcement Officer Gomez
2. Pledge of Allegiance
3. Statements of Conflict
None.
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Minutes Acceptance: Minutes of Jul 18, 2023 7:00 PM (Consent Calendar) City of Patterson Page 2 Updated 8/2/2023 11:45 AM
4. Proclamations/Certificates
4.1. Certificates of Recognition FFA (Future Farmers of America) - Madison Morgan, Isabel Contreras, Miranda Pawling, Michael Costa and Kendall Imbrogno (Mayor Clauzel)
Mayor Clauzel presented the certificates to Madison Morgan, Isabel Contreras, Miranda Pawling, Michael Costa and Kendall Imbrogno and recognition to all Future Farmers of America (FFA) and 4H participants.
4.2. Proclamation - National Health Center Week (August 6, 2023 to August 12, 2023) Ms. Yamilet Valladolid (Mayor Clauzel)
Mayor Clauzel presented the National Health Centers Week proclamation to Ms.
Yamilet Valladolid.
5. Items from the Public
Kandace Weyhrauch, Patterson Resident - addressed the City Council regarding small business owners and how difficult it is to open a business in town due to the slow process. There is a need to speed things up and streamline the process for them.
Yolanda Magana, Patterson Resident - addressed the City Council regarding small business owners license process.
Would also like out-of-town business to come to town. Ms. Magana expressed her thanks to Sheriff's Department and Code Enforcement for taking care of abandoned vehicle complaints. Ms. Magana also addressed the entrance to Patteson and how there are many abandoned buildings and vehicles, overgrown weeds, unsightly. She would like to see a mural on highway 33.
Russell Fowler, Field Representative with the Office of Channce Condit - addressed the City Council regarding the upcoming Veterans Town Hall Meeting on Monday, July 24, 2023 at the Hammon Senior Center.
6. Consent Calendar
Councilmember Farinha motioned to approve the Consent Calendar Items 6.1 through 6.5. The motion was seconded by Mayor Pro Tem Roque and unanimously approved by a 5-0 roll call vote.
RESULT: ADOPTED
MOVER: Farinha
SECONDER: Roque
AYES: Clauzel, Alves, Romero, Farinha, Roque
6.1. Motion to Waive Readings - All Readings of Ordinances and Resolutions, Except by Title are hereby waived.
6.2. Approve Minutes of Regular Meeting - June 6, 2023 (7:00 PM)
6.3. Approve Minutes of Workshop - June 13, 2023 (6:30 PM)
6.4. Approve Minutes of Special Meeting - June 27, 2023 (6:30 PM)
6.5. Approve Resolution No. 2023-34 Approving a Deferred Improvement Agreement with D Davis 2003 Revocable Trust and Scott Davis, Property Owners, for 317 S. 2nd Street.; Authorizing the City Manager to Execute the Agreement; and Authorizing the City Clerk to Record the Deferred Improvement Agreement.
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Minutes Acceptance: Minutes of Jul 18, 2023 7:00 PM (Consent Calendar) City of Patterson Page 3 Updated 8/2/2023 11:45 AM
7. Presentation
7.1. City Manager - Presentation by Moss Adams LLP regarding the City's Strategic Plan Update (Colleen Rozillis, Partner)
Colleen Rozillis, Moss Adams partner, reviewed her presentation.
At 7:31 p.m. Mayor Clauzel opened the item to public comments. There were no public comments.
7.2. Presentation by a representative of the Downtown Revitalization Committee (DRC) to solicit City Council support for design and funding for specific improvements and enhancements within the downtown core area (Community Development Director Stice)
Downtown Revitalization Committee Member Tim Benefield reviewed his presentation.
City Council addressed the following:
- Has this been communicated to the Patterson Township Historical Society staff - Lighting for the downtown center circle
- Discussion of Downtown revitalization plan
- Landscaping
By consensus, City Council approved to proceed with small project.
8. Public Comment/Action Item
8.1. Fire Department - Authorize Staff to abate Public Nuisance, by removing Weeds, Dirt, Rubbish, and/or Rank Growth pursuant to the provisions of Ordinance No. 243 and Ordinance No. 704, as defined in Chapter 6.16 of the Patterson Municipal Code-Property Maintenance; Authorize Staff to begin bid process using licensed contractors (Resolution No. 2023-33 Clean-Up Process)
Fire Chief Gregory reviewed his report.
At 7:44 p.m. Mayor Clauzel opened the item to public comments. There were no public comments.
Councilmember Alves moved to approve Resolution No. 2023-33 (Clean-Up Process). The motion was seconded by Mayor Pro Tem Roque and unanimously approved by a 5-0 roll call vote.
RESULT: APPROVED
MOVER: Alves
SECONDER: Roque
AYES: Clauzel, Alves, Romero, Farinha, Roque
9. Public Hearing
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Minutes Acceptance: Minutes of Jul 18, 2023 7:00 PM (Consent Calendar) City of Patterson Page 4 Updated 8/2/2023 11:45 AM
9.1. Public Works Department - Hold the Public Hearing, Take Public Comment, and Approve the Resolution Nos. 2023-35, 2023-36, and 2023-37 Ordering the Levy and Collection of Assessments for the City’s Benefit Assessment Districts (BADs), Landscape Maintenance Districts (LMDs), and CSA No. 15 for Fiscal Year 2023/24
Public Works Director Willett reviewed his report.
At 7:46 p.m. Mayor Clauzel opened the Public Hearing. There were no public comments.
Councilmember Farinha moved to Approve Resolution Nos. 2023-35, 2023-36, and 2023-37. The motion was seconded by Councilmember Alves and unanimously approved by a 5-0 roll call vote.
RESULT: APPROVED
MOVER: Farinha
SECONDER: Alves
AYES: Clauzel, Alves, Romero, Farinha, Roque
10. City Staff Reports
10.1. Finance - Adopt Resolution No. 2023-01 of the Board of Directors of the Patterson Public Financing Authority Authorizing the Issuance and Sale of Refunding Special Tax Revenue Bonds.
At 7:48 p.m. the Patterson City Council adjourned to the Patterson Public Financing Authority.
Secretary Alegre called roll call.
All members present.
1. Member Roque - Present
2. Member Alves - Present
3. Member Romero - Present
4. Member Farinha - Present
5. Chair Clauzel - Present
Finance Director Riedeman and Consultant Ken Dieker, Del Rio Advisors, LLC, reviewed their presentation and report.
City Council addressed the following:
-Fees
-How are Mello-Roos affected?
- When will the refunds be reflected?
Mr. Dieker addressed City Council’s concerns.
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Minutes Acceptance: Minutes of Jul 18, 2023 7:00 PM (Consent Calendar) City of Patterson Page 5 Updated 8/2/2023 11:45 AM
At 7:59 p.m. Mayor Clauzel opened the item to public comments. There were no public comments.
Member Farinha moved to Adopt Resolution No. 2023-01. The motion was seconded by Member Romero and approved by a 5-0 roll call vote.
At 8:00 p.m. the Patterson Public Financing Authority adjourned to the Patterson City Council meeting.
11. City Council Reports
A. Appoint/Reappoint (3) Member to the Economic Strategic Commission for the Term 2023 - 2025 (Mayor Clauzel, Councilmember Romero)
11.A.1.Appoint/Reappoint Three (3) Member to the Economic Strategic Commission Term 2023 - 2025 (Mayor Clauzel, Councilmember Romero)
Mayor Clauzel recommended the appointment of Ken Buehner, Jerimiah Ramirez and Michael Sidhu to the Economic Strategic Commission for the terms of April 2023 through April 2025.
Mayor Pro Tem Roque moved to approve the recommended members. The motion was seconded by Councilmember Farinha and unanimously approved by a 5-0 roll call vote.
RESULT: APPROVED
MOVER: Roque
SECONDER: Farinha
AYES: Clauzel, Alves, Romero, Farinha, Roque
B. Councilmember Alves
. Stanislaus Homeless Alliance (Councilmember Roque alternate) Councilmember Alves provided an update on the following:
- Presentation by Jenny Boyer from Cambridge Academies regarding future projects. - Point-In-Time (PIT) homeless count down from 85 to 60 homeless individuals - Community Assessment Response and Engagement (CARE) team meeting to discuss homeless issues . Stanislaus County Hazardous Waste Advisory Committee (Councilmember Farinha alternate)
C. Councilmember Romero
. Westside Health Care Task Force (Councilmember Alves alternate) Nothing to report.
7.2 Packet Pg. 11
Minutes Acceptance: Minutes of Jul 18, 2023 7:00 PM (Consent Calendar) City of Patterson Page 6 Updated 8/2/2023 11:45 AM
D. Councilmember Farinha
. San Joaquin Valley Air Pollution Control District (Councilmember Romero alternate)
Nothing to report.
E. Mayor Pro Tem Roque
. (EDAC) Stanislaus County Economic Development Action Committee (Mayor Clauzel alternate)
Mayor Pro Tem Roque provided an update on requests for Spanish translation services, information on housing for Stanislaus County Economic Development Action Committee (EDAC) meetings. . Workforce Development Board (Mayor Clauzel alternate) F. Mayor Clauzel
. Stanislaus County Mayor's Meeting
Mayor Clauzel provided an update on the following:
- Upcoming Mayors' Night Out at John Thurman Field on Friday, September 1, 2023 . StanCOG (Mayor Pro Tem Roque alternate)
Mayor Clauzel provided an update regarding the following:
- StanCOG meeting with Executive Director Rosa Park to discuss Highway 132 expansion project, I-5 interchange project
. League of California Cities (Councilmember Farinha 1st alternate, Councilmember Alves 2nd alternate)
Nothing to report.
12. Other Matters
Councilmember Alves discussed the following:
- Expressed her gratitude to the Fire and Police Departments for keeping the city safe during the Fourth of July Holiday.
- Illegal fireworks violation reporting program
Mayor Clauzel discussed the following:
- Reduction in the number of fireworks leading up to the 4th July holiday. - August is Family Fun Month.
- August 1, 2023 is National Night Out at the North Park. - Farmers Market moved to Tuesday, August 1st, 2023 to be at the same time as National Night Out at the North Park.
- Monday, July 24, 2023 at 10:00 a.m., Veterans Town Hall meeting at the Hammon Senior Center open to the public.
13. Adjournment
There being no further business, the regular meeting of the City Council of the City of Patterson of July 18, 2023 was adjourned at 8:12 p.m.
Approved by the Patterson City Council on August 15, 2023.
7.2 Packet Pg. 12
Minutes Acceptance: Minutes of Jul 18, 2023 7:00 PM (Consent Calendar) City Council Agenda Report
TO: Mayor Clauzel and Members of the City Council
FROM: Ken Irwin, City Manager
BY: Juliene Flanders, Recreation & Community Services Director MEETING DATE: August 15, 2023
ITEM NO: 7.3
SUBJECT: Approve Street Closure for Farm to Fork Dinner Fundraiser event for the City of Patterson, Youth and Senior Scholarship Program, Downtown on Saturday, September 9, 2023.
RECOMMENDATION
Motion to Approve Street Closure for Farm to Fork Dinner Fundraiser event for the City of Patterson, Youth and Senior Scholarship Program, Downtown on Saturday, September 9, 2023.
BACKGROUND
The City of Patterson Recreation and Community Services Department will be hosting their Annual Farm to Fork Dinner, fundraiser for the City of Patterson’s Youth and Senior Scholarship Program. This event will take place at the Downtown Circle, on Saturday, September 9, from 6:00 pm - 9:00 pm.
The request for street closures is as follows:
EVENT
Saturday, September 9, 2023
Time: 6:00 pm - 9:00 pm
Set up starting at 6:00 am - 6:00 pm, Dismantle 9:00 pm - 11:00 pm Street Closures during Event:
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From the Alley on N. Del Puerto to Plaza
From the Alley on N. Third to Plaza
From the Alley on N. Salado to Plaza
From the Alley on W. Las Palmas to Plaza
From the Alley on S. Del Puerto to Plaza
From the Alley on S. Third to Plaza
From the Alley on S. Salado to Plaza
Las Palmas to Plaza
Plaza
Please refer to the attached map.
ANALYSIS
This is a City Sponsored event, to raise funds for the Recreation Youth and Senior Scholarship Program. This program provides funding for youth and seniors to participate in recreation activities if they qualify financially. The Recreation Department will oversee the event.
Insurance and Endorsement - Provided by the City
Special Event Application
Site Street Closure Map
FISCAL IMPACT
This event is included in the FY 23/24 Recreation budget under Farm to Fork, and will provide revenue for the City of Patterson Youth and Senior Scholarship Program.
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure)
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure)
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure)
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure)
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure)
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure)
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure)
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure)
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure)
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure)
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure)
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure)
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure)
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Attachment: Farm_to_Fork (Farm to Fork Fundraiser Event Street Closure) City Council Agenda Report
TO: Mayor Clauzel and Members of the City Council
FROM: Ken Irwin, City Manager
BY: Fernando Ulloa, City Engineer
MEETING DATE: August 15, 2023
ITEM NO: 7.4
SUBJECT: Approve Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Master Agreement No. 10-5244S21 and Program Supplemental Agreement No. A193 for the Intersection at Sperry Avenue and Highway 33 Project HSIPSL-5244 (042), and Authorize the City Manager to Execute the new Master Agreement, the Program Supplement Agreement and all Future Documents for this Project on the City’s Behalf.
RECOMMENDATION
Motion to Approve Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Master Agreement No. 10-5244S21 and Program Supplemental Agreement No. A193 for the Intersection at Sperry Avenue and Highway 33 Project HSIPSL-5244 (042), and Authorize the City Manager to Execute the new Master Agreement, the Program Supplement Agreement and all Future Documents for this Project on the City’s Behalf.
BACKGROUND
The City of Patterson has been approved to receive $175,500 of funding for design services through the Highway Safety Improvement Program (HSIP) for the Intersection at Sperry Avenue and Highway 33 Project. The project is located at the intersection of Sperry Avenue and Highway-33. This intersection improvements will consist of installing a new traffic signal with paved shoulder widening, left turn lanes, roadway signing and striping. The Railroad crossing improvements will include at-grade railroad crossing improvements on the side street approach less than 110 feet to the east. This is in an effort to maintain and improve roadway safety within the City of Patterson. This project will be a coordinated effort between the City, Caltrans and CFNR Railroad.
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However, in order to receive funds from Caltrans, the City Council must authorize an official to execute a new master agreement and a Program Supplemental Agreement. These agreements set forth the requirements for use of the State funds. Caltrans requires that this type of agreement be executed for each project by the agency receiving the funds. Once the agreement is signed, Caltrans will issue an “Authorization to Proceed” which allows the City to proceed with the work for the project.
ANALYSIS
Attached for your review and approval are the new Master Agreement and the Program Supplemental Agreement with the Resolution that will need to be approved by the City Council.
If approved, the City Manager will execute the agreements and submit them along with the resolution to Caltrans.
FISCAL IMPACT
This item does not carry any fiscal impacts with it. Each phase of work will be brought before the Council at a later date with a clear financial breakdown and request for contract approval.
7.4 Packet Pg. 30
1 1
2 RESOLUTION NO. 2023-40
3 4 APPROVE RESOLUTION NO. 2023-40, APPROVING THE STATE DEPARTMENT 5 OF TRANSPORTATION (CALTRANS) MASTER AGREEMENT NO. 10-5244S21 & 6 PROGRAM SUPPLEMENTAL AGREEMENT NO. A193 FOR THE INTERSECTION 7 AT SPERRY AVENUE AND HIGHWAY 33 PROJECT HSIPSL-5244 (042), AND 8 AUTHORIZE THE CITY MANAGER TO EXECUTE THE NEW MASTER
9 AGREEMENT, THE PROGRAM SUPPLEMENT AGREEMENT AND ALL FUTURE 10 DOCUMENTS FOR THIS PROJECT ON THE CITY’S BEHALF
11 WHEREAS, the City of Patterson has been approved to receive $175,500 of 12 funding through the Highway Safety Improvement Program (HSIP) for a new traffic signal 13 at the Intersection at Sperry Avenue and Highway 33. 14 WHEREAS, the new traffic signal is a part of a continuing effort to maintain and 15 improve roadway safety within the City of Patterson ; and 16 WHEREAS, in order to receive funds from Caltrans, the City Council must 17 authorize an official to execute a Master Agreement and a Program Supplemental 18 Agreement. This agreement sets forth the requirements for use of State funds. 19 Caltrans requires that this type of agreement be executed for each project by the 20 agency receiving the funds; and
21 WHEREAS, once the agreement is signed, Caltrans will issue an “Authorization 22 to Proceed” which allows the City to proceed with the work for the project. 23 WHEREAS, this item does not carry any fiscal impacts with it. The total funding 24 for the project is $175,500 Each phase of work will be brought before the Council at a 25 later date with a clear financial breakdown and request for contract approval. 26 NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of 27 Patterson does hereby:
28 1. Approve the State Department of Transportation (Caltrans) Master Agreement No. 29 10-5244S21 and Program Supplemental Agreement No. A193 for the Intersection 30 at Sperry Avenue and Highway 33 Project.
31 2. Authorizes the City Manager to execute the agreement, conduct all negotiations, 32 execute and submit all documents including, but not limited to applications,
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Attachment: Resolution No. 2023-40 Approving the State Department of Transportation (Caltrans) Agreement (Resolution No. 2023-40, 2 1 agreements, reports, insurance, payment requests and so on, which may be 2 necessary for the completion of the aforementioned project on behalf of the City. 3 The foregoing resolution was passed by the City Council at a regular meeting held on the 15
th 4 day of August 2023, _______________ who moved its
5 adoption, which motion was duly seconded by _______________, and the 6 resolution adopted by the following roll call vote:
7 AYES:
8 NOES:
9 EXCUSED:
10 11 APPROVED:
12 13
14 15
16 Michael Clauzel
17 Mayor of the City of Patterson
18 19 ATTEST:
20 21
22 23 __________________________________________
24 Aracely Alegre
25 City Clerk of the City of Patterson
26 27
28 29
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Attachment: Resolution No. 2023-40 Approving the State Department of Transportation (Caltrans) Agreement (Resolution No. 2023-40, 3 1
2 3
4 5 I hereby certify that the foregoing is a full, correct and true copy of a resolution 6 passed by the City Council of the City of Patterson, a Municipal Corporation of the County 7 of Stanislaus, State of California, at a regular meeting held on the 15th day of August 8 2023, and I further certify that said resolution is in full force and effect and has never been 9 rescinded or modified.
10 DATED:
11 12 ____________________________
13 City Clerk of the City of Patterson
14 15
16 7.4.a
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Attachment: Resolution No. 2023-40 Approving the State Department of Transportation (Caltrans) Agreement (Resolution No. 2023-40, 10 City of Patterson
-------- ---------------------------------------------- District Administering Agency
Agreement No. 10-5244S21
This AGREEMENT, is entered into effective this _______ day of __________, 20___, by and between the City of Patterson, hereinafter referred to as "ADMINISTERING AGENCY," and the State of California, acting by and through its Department of Transportation (Caltrans), hereinafter referred to as "STATE", and together referred to as "PARTIES" or individually as a "PARTY."
RECITALS:
1. WHEREAS, the Legislature of the State of California has enacted legislation by which certain State funds are made available for use on local transportation related projects of public entities qualified to act as recipients of these state funds; and
2. WHEREAS, ADMINISTERING AGENCY has applied to the California Transportation Commission (CTC) and/or STATE for funding from a State-funded program (herein referred to as STATE FUNDS), as defined in the Local Assistance Program Guidelines (LAPG) and/or in the respective CTC Guidelines, for use on local authorized transportation related projects as a local administered project(s), hereinafter referred to as "PROJECT"; and
3. WHEREAS, said PROJECT will not receive any federal funds; and
4. WHEREAS, before STATE FUNDS will be made available for PROJECT, ADMINISTERING AGENCY and STATE are required to enter into an agreement to establish terms and conditions applicable to the ADMINISTERING AGENCY when receiving STATE FUNDS for a designated PROJECT facility and to the subsequent operation and maintenance of that completed facility.
NOW, THEREFORE, the PARTIES agree as follows:
MASTER AGREEMENT
ADMINISTERING AGENCY-STATE AGREEMENT
STATE-FUNDED PROJECTS
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement)
ARTICLE I - PROJECT ADMINISTRATION
1. This AGREEMENT shall have no force or effect with respect to any program project unless and until a project- specific Program Supplement to this AGREEMENT for state funded projects, hereinafter referred to as "PROGRAM SUPPLEMENT", has been fully executed by both STATE and ADMINISTERING AGENCY.
2. The State approved project-specific allocation notification letter and approved CTC allocation documentation designate the party responsible for implementing PROJECT, type of work, and location of PROJECT for projects requiring CTC allocation by PROJECT component of work.
3. The PROGRAM SUPPLEMENT sets out special covenants as a condition for the ADMINISTERING AGENCY to receive STATE FUNDS from/through STATE for designated PROJECT. The PROGRAM SUPPLEMENT shall also show these STATE FUNDS that have been initially encumbered for PROJECT along with the matching funds to be provided by ADMINISTERING AGENCY and/or others. Execution of PROGRAM SUPPLEMENT by the PARTIES shall cause ADMINISTERING AGENCY to adopt all the terms of this AGREEMENT as though fully set forth therein in the PROGRAM SUPPLEMENT. Unless otherwise expressly delegated in a resolution by the governing body of ADMINISTERING AGENCY, and with written concurrence by STATE, the PROGRAM SUPPLEMENT shall be approved and managed by the governing body of ADMINISTERING AGENCY.
4. ADMINISTERING AGENCY agrees to execute and return each project-specific PROGRAM SUPPLEMENT. The PARTIES agree that STATE may suspend future allocations, encumbrances and invoice payments for any on- going or future STATE FUNDED PROJECT performed by ADMINISTERING AGENCY if any project-specific PROGRAM SUPPLEMENT is not returned, unless otherwise agreed by STATE in writing.
5. ADMINISTERING AGENCY further agrees, as a condition to the release and payment of STATE FUNDS encumbered for the PROJECT described in each PROGRAM SUPPLEMENT, to comply with the terms and conditions of this AGREEMENT and all the agreed-upon Special Covenants or Remarks incorporated within the PROGRAM SUPPLEMENT, and Cooperative/Contribution Agreement where appropriate, defining and identifying the nature of the specific PROJECT.
6. STATE FUNDS will not participate in any portion of PROJECT work performed in advance of the effective date of allocation by CTC, or by STATE for allocations delegated to STATE by CTC, for said PROJECT.
7. Projects allocated with STATE FUNDS will be administered in accordance with the current CTC STIP Guidelines, applicable chapter(s) of the LAPG, LAPM and/or any other instructions published by STATE.
8. ADMINISTERING AGENCY agrees to ensure compliance with all relevant State laws and requirements for work related to PROJECT, including the California Environmental Quality Act (CEQA).
9. ADMINISTERING AGENCY's eligible costs for preliminary engineering work includes all preliminary work directly related to PROJECT up to contract award for construction, including, but not limited to, environmental studies and permits (E&P), preliminary surveys and reports, laboratory work, soil investigations, the preparation of plans, specifications and estimates (PS&E), advertising for bids, awarding of a contract and project development contract administration.
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement)
10. ADMINISTERING AGENCY's eligible costs for construction engineering include actual inspection and supervision of PROJECT construction work; construction staking; laboratory and field testing; and the preparation and processing of field reports, records, estimates, final reports, and allowable expenses of employees/consultants engaged in such activities.
11. Unless the PARTIES agree otherwise in writing, ADMINISTERING AGENCY's employees or its contracted engineering consultant shall be responsible for all PROJECT engineering work.
12. ADMINISTERING AGENCY shall not proceed with final design of PROJECT until final environmental approval of PROJECT. Final design entails the design work necessary to complete the PS&E and other work necessary for a construction contract but not required earlier for environmental clearance of that PROJECT.
13. If PROJECT is not on STATE-owned right-of-way, PROJECT shall be constructed in accordance with Chapter 11 of the LAPM that describes minimum statewide design standards for local agency streets and roads. The design standards for projects off the National Highway System (NHS) allow STATE to accept either the current Caltrans Highway Design Manual standards, the current FHWA-adopted American Association of State Highway and Transportation Officials (AASHTO) A Policy on Geometric Design of Highways and Streets standards, or the approved geometric design standards of ADMINISTERING AGENCY. Additionally, for projects off the NHS, STATE will accept ADMINISTERING AGENCY-approved standard specifications, standard plans, materials sampling and testing quality assurance programs that meet the conditions described in the then current Local Assistance Procedures Manual.
14. If PROJECT involves work within or partially within STATE-owned right-of-way, that PROJECT shall also be subject to compliance with the policies, procedures and standards of the STATE Project Development Procedures Manual and Highway Design Manual and where appropriate, an executed cooperative agreement between STATE and ADMINISTERING AGENCY that outlines the PROJECT responsibilities and respective obligations of the PARTIES. ADMINISTERING AGENCY and its contractors shall each obtain an encroachment permit through STATE prior to commencing any work within STATE rights-of-way or work which affects STATE facilities.
15. When PROJECT is not on the State Highway System (SHS) but includes work to be performed by a railroad, the contract for such work shall be prepared by ADMINISTERING AGENCY or by STATE, as the PARTIES may hereafter agree. In either event, ADMINISTERING AGENCY shall enter into an agreement with the railroad providing for future maintenance of protective devices or other facilities installed under the contract.
16. ADMINISTERING AGENCY shall comply with the provisions of sections 4450 and 4454 of the California Government Code, as well as other Department of General Services guidance, if applicable, for the contract PS&E for the construction of buildings, structures, sidewalks, curbs and related facilities for accessibility and usability. Further requirements and guidance are provided in Title 24 of the California Code of Regulations.
17. ADMINISTERING AGENCY shall provide a full-time public employee to be in responsible charge of each PROJECT. ADMINISTERING AGENCY shall provide or arrange for adequate supervision and inspection of each PROJECT. ADMINISTERING AGENCY may utilize consultants to perform supervision and inspection work for PROJECT with a
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement) fully qualified and licensed engineer. Utilization of consultants does not relieve ADMINISTERING AGENCY of its obligation to provide a full-time public employee to be in responsible charge of each PROJECT.
18. Unless otherwise provided in the PROGRAM SUPPLEMENT, ADMINISTERING AGENCY shall advertise, award, and administer the PROJECT construction contract or contracts.
19. The cost of maintenance, security, or protection performed by ADMINISTERING AGENCY or contractor forces during any temporary suspension of PROJECT or at any other time may not be charged to the PROJECT.
20. ADMINISTERING AGENCY shall submit PROJECT-specific award information to STATE's District Local Assistance Engineer, within sixty (60) days after contract award.
21. ADMINISTERING AGENCY shall submit the final report documents that collectively constitute a "Final Project Expenditure Report", LAPM Exhibit 17-M, within one hundred eighty (180) days of PROJECT completion. Failure by ADMINISTERING AGENCY to submit a "Final Project Expenditure Report", within 180 days of project completion will result in STATE imposing sanctions upon ADMINISTERING AGENCY in accordance with the Local Assistance Procedures Manual.
22. ADMINISTERING AGENCY shall comply with the Americans with Disabilities Act (ADA) of 1990 that prohibits discrimination on the basis of disability and all applicable regulations and guidelines issued pursuant to the ADA.
23. The Governor and the Legislature of the State of California, each within their respective jurisdictions, have prescribed certain nondiscrimination requirements with respect to contract and other work financed with public funds. ADMINISTERING AGENCY agrees to comply with the requirements of the FAIR EMPLOYMENT PRACTICES ADDENDUM, attached hereto as Exhibit A and further agrees that any agreement entered into by ADMINISTERING AGENCY with a third party for performance of work connected with PROJECT shall incorporate Exhibit A (with third party's name replacing ADMINISTERING AGENCY) as parts of such agreement.
24. ADMINISTERING AGENCY shall include in all contracts and subcontracts awarded when applicable, a clause that requires each subcontractor to comply with California Labor Code requirements that all workers employed on public works aspects of any project (as defined in California Labor Code sections 1720-1815) be paid not less than the general prevailing wage rates predetermined by the Department of Industrial Relations as effective at the date of contract award by the ADMINISTERING AGENCY.
ARTICLE II - RIGHTS-OF-WAY
1. No contract for the construction of a STATE FUNDED PROJECT shall be awarded until all necessary rights of way have been secured. Prior to the advertising for construction of PROJECT, ADMINISTERING AGENCY shall certify and, upon request, shall furnish STATE with evidence that all necessary rights-of-way are available for construction purposes or will be available by the time of award of the construction contract.
2. The furnishing of rights of way by ADMINISTERING AGENCY as provided for herein includes, and is limited to, the following, unless the PROGRAM SUPPLEMENT provides otherwise.
(a) Expenditures of capital and support to purchase all real property required for
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement) PROJECT free and clear of liens, conflicting easements, obstructions and encumbrances, after crediting PROJECT with the fair market value of any excess property retained and not disposed of by ADMINISTERING AGENCY. (b) The cost of furnishing of right-of-way as provided for herein includes, in addition to real property required for the PROJECT, title free and clear of obstructions and encumbrances affecting PROJECT and the payment, as required by applicable law, of damages to owners of remainder real property not actually taken but injuriously affected by PROJECT.
(c) The cost of relocation payments and services provided to owners and occupants pursuant to Government Code sections 7260-7277 when PROJECT displaces an individual, family, business, farm operation or nonprofit organization. (d) The cost of demolition and/or the sale of all improvements on the right-of-way after credit is recorded for sale proceeds used to offset PROJECT costs. (e) The cost of all unavoidable utility relocation, protection or removal. (f) The cost of all necessary hazardous material and hazardous waste treatment, encapsulation or removal and protective storage for which ADMINISTERING AGENCY accepts responsibility and where the actual generator cannot be identified, and recovery made.
3. ADMINISTERING AGENCY agrees to indemnify and hold STATE harmless from any liability that may result in the event the right-of-way for a PROJECT is not clear as certified by ADMINISTERING AGENCY, including, but not limited to, if said right-of-way is found to contain hazardous materials requiring treatment or removal to remediate in accordance with Federal and State laws. ADMINISTERING AGENCY shall pay, from its own non- matching funds, any costs which arise out of delays to the construction of PROJECT because utility facilities have not been timely removed or relocated, or because rights-of-way were not available to ADMINISTERING AGENCY for the orderly prosecution of PROJECT work.
ARTICLE III - MAINTENANCE AND MANAGEMENT
1. ADMINISTERING AGENCY will maintain and operate the property acquired, developed, constructed, rehabilitated, or restored by PROJECT for its intended public use until such time as the parties might amend this AGREEMENT to otherwise provide.
With the approval of STATE, ADMINISTERING AGENCY or its successors in interest in the PROJECT property may transfer this obligation and responsibility to maintain and operate PROJECT property for that intended public purpose to another public entity.
2. Upon ADMINISTERING AGENCY's acceptance of the completed construction contract or upon contractor being relieved of the responsibility for maintaining and protecting PROJECT, ADMINISTERING AGENCY will be responsible for the maintenance, ownership, liability, and the expense thereof, for PROJECT in a manner satisfactory to the authorized representatives of STATE and if PROJECT falls within the jurisdictional limits of another Agency or Agencies, it is the duty of ADMINISTERING AGENCY to facilitate a separate maintenance agreement(s) between itself and the other jurisdictional Agency or Agencies providing for the operation, maintenance, ownership and liability of PROJECT. Until those agreements are executed, ADMINISTERING AGENCY will be responsible for all PROJECT operations, maintenance, ownership and liability in a manner satisfactory to the authorized representatives of STATE. If, within ninety (90) days after receipt of notice from STATE that a PROJECT, or any portion thereof, is not
7.4.b
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement) being properly operated and maintained and ADMINISTERING AGENCY has not satisfactorily remedied the conditions complained of, the approval of future STATE FUNDED PROJECTS of ADMINISTERING AGENCY will be withheld until the PROJECT shall have been put in a condition of operation and maintenance satisfactory to STATE. The provisions of this section shall not apply to a PROJECT that has been vacated through due process of law with STATE's concurrence.
3. PROJECT and its facilities shall be maintained by an adequate and well-trained staff of engineers and/or such other professionals and technicians as PROJECT reasonably requires. Said operations and maintenance staff may be employees of ADMINISTERING AGENCY, another unit of government, or a contractor under agreement with ADMINISTERING AGENCY. All maintenance will be performed at regular intervals or as required for efficient operation of the complete PROJECT improvements.
4. ADMINISTERING AGENCY shall comply with all applicable law, including but not limited to, all applicable legal authority regarding construction standards.
ARTICLE IV - FISCAL PROVISIONS
1. All contractual obligations of STATE are subject to the appropriation of resources by the Legislature and the allocation of resources by the CTC.
2. STATE'S financial commitment of STATE FUNDS will occur only upon the execution of this AGREEMENT, the execution of each project-specific PROGRAM SUPPLEMENT and/or STATE's approved finance letter.
3. ADMINISTERING AGENCY agrees, as a minimum, to submit invoices in arrears for reimbursement of allowable PROJECT costs at least once every six months commencing after the STATE FUNDS are encumbered on either the project-specific PROGRAM SUPPLEMENT or through a project-specific finance letter approved by STATE. STATE reserves the right to suspend future allocations and invoice payments for any on-going or future STATE FUNDED project performed by ADMINISTERING AGENCY if PROJECT costs have not been invoiced by ADMINISTERING AGENCY for a sixmonth period
4. Invoices shall be submitted on a standardized billing summary template, in accordance with Chapter 5 of the LAPM to claim reimbursement by ADMINISTERING AGENCY. For construction invoices, pay estimates must be included.
5. ADMINISTERING AGENCY must retain at least one copy of supporting backup documentation for allowable costs incurred and claimed for reimbursement by ADMINISTERING AGENCY. ADMINISTERING AGENCY agrees to submit supporting backup documentation with invoices if requested by State. Acceptable backup documentation includes, but is not limited to, agency's progress payment to the contractors, copies of cancelled checks showing amounts made payable to vendors and contractors, and/or a computerized summary of PROJECT costs.
6. Payments to ADMINISTERING AGENCY can only be released by STATE as reimbursements of actual allowable PROJECT costs already incurred and paid for by the ADMINISTERING AGENCY.
7. Indirect Cost Allocation Plans/Indirect Cost Rate Proposals (ICAP/ICRP), Central Service Cost Allocation Plans and related documentation are to be prepared and provided to the Inspector General - Independent Office of Audits and Investigations for review and approval prior to ADMINISTERING AGENCY seeking reimbursement of
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement) indirect cost incurred within each fiscal year being claimed for reimbursement.
ICAPs/ICRPs must be prepared in accordance with the requirements set forth in 2 CFR, Part 200, Chapter 5 of the LAPM, and the ICAP/ICRP approval procedures established by STATE.
8. STATE will withhold the greater of either two (2) percent of the total of all STATE FUNDS encumbered for each PROGRAM SUPPLEMENT or $40,000 until ADMINISTERING AGENCY submits the Final Report of Expenditures for each completed PROGRAM SUPPLEMENT PROJECT.
9. The estimated total cost of PROJECT, the amount of STATE FUNDS obligated, and the required matching funds may be adjusted by mutual consent of the PARTIES with a finance letter, and an allocation notification letter when applicable. STATE FUNDING may be increased to cover PROJECT cost increases only if such additional funds are available and the CTC and/or STATE concurs with that increase in the form of an allocation and finance letter.
10. When such additional STATE FUNDS are not available, ADMINISTERING AGENCY agrees that any increases in PROJECT costs must be defrayed with ADMINISTERING AGENCY's own funds.
11. ADMINISTERING AGENCY shall use its own non-STATE FUNDS to finance the local share of eligible costs and all PROJECT expenditures or contract items ruled ineligible for financing with STATE FUNDS. STATE shall make the final determination of ADMINISTERING AGENCY's cost eligibility for STATE FUNDED financing with respect to claimed PROJECT costs.
12. ADMINISTERING AGENCY will reimburse STATE for STATE's share of costs for work performed by STATE at the request of ADMINISTERING AGENCY. STATE's costs shall include overhead assessments in accordance with section 8755.1 of the State Administrative Manual.
13. STATE FUNDS allocated by the CTC and/or STATE are subject to the timely use of funds provisions approved in CTC Guidelines and State procedures approved by the CTC and STATE.
14. STATE FUNDS encumbered for PROJECT are available for liquidation only for a limited period from the beginning of the State fiscal year when those funds were appropriated in the State Budget. STATE FUNDS not liquidated within these periods will be reverted unless a Cooperative Work Agreement (CWA) is submitted by ADMINISTERING AGENCY and approved by the California Department of Finance in accordance with Section 16304 of the Government Code. The exact date of fund reversion will be reflected in the STATE signed PROJECT finance letter.
15. Payments to ADMINISTERING AGENCY for PROJECT-related travel and subsistence (per diem) expenses of ADMINISTERING AGENCY forces and its contractors and subcontractors claimed for reimbursement or as local match credit shall not exceed rates authorized to be paid to rank and file STATE employees under current California Department of Human Resources (CalHR) rules unless a Cooperative Work Agreement (CWA) is submitted by ADMINISTERING AGENCY and approved by the California Department of Finance in accordance with Government Code section 16304. If the rates invoiced by ADMINISTERING AGENCY are in excess of CalHR rates, ADMINISTERING AGENCY is responsible for the cost difference, and any overpayments inadvertently paid by STATE shall be reimbursed to STATE by ADMINISTERING AGENCY on demand.
7.4.b
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement)
16. ADMINISTERING AGENCY agrees to comply with California Government Code 4525- 4529.14. Administering Agency shall undertake the procedures described in California Government Code 4527(a) and 4528(a). Administering Agency shall also comply with 2 CFR Part 200 Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards, excluding 2 CFR Part 200.318-200.326.
17. ADMINISTERING AGENCY agrees and will assure that its contractors and subcontractors will be obligated to agree that Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allowability of individual PROJECT cost items. Every recipient and sub-recipient receiving PROJECT funds under this AGREEMENT shall comply with Federal administrative procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards, excluding 2 CFR Part 200.318-200.326Governments. ADMINISTERING AGENCY agrees to comply with the provisions set forth in 23 CFR Parts 140, 645 and 646 when contracting with railroad and utility companies.
18. Every recipient and sub-recipient receiving PROJECT funds under this AGREEMENT shall comply with 2 CFR 200 excluding 2 CFR Part 200.318-200.326, 48 CFR Chapter 1, Part 31, LAPM, Public Contract Code (PCC) 10300- 10334 (procurement of goods), PCC 10335-10381 (non-A&E services), California Government Code 4525-4529.5 including 4527(a) and 4528(a), and other applicable STATE regulations.
19. Any PROJECT costs for which ADMINISTERING AGENCY has received payment or credit that are determined by subsequent audit to be questioned, disallowed, or unallowable under 2 CFR, Part 200, 48 CFR, Chapter 1, Part 31, 23 CFR Parts 140, 645 and 646, LAPM, Public Contract Code (PCC) 10300-10334 (procurement of goods), PCC 10335-10381 (non-A&E services), California Government Code 4525-4529.5 including 4527(a) and 4528(a), and other applicable STATE regulations are subject to repayment by ADMINISTERING AGENCY to STATE and may result in STATE imposing sanctions on ADMINISTERING AGENCY as described in Chapter 20 of the Local Assistance Procedures Manual.
20. Should ADMINISTERING AGENCY fail to refund any moneys due upon written demand by STATE as provided herein or should ADMINISTERING AGENCY breach this AGREEMENT by failing to complete PROJECT without adequate justification and approval by STATE, then, within thirty (30) days of demand, or within such other period as may be agreed to in writing between the PARTIES hereto, STATE, acting through the State Controller, the State Treasurer, the CTC or any other public entity or agency, may intercept, withhold and demand the transfer of an amount equal to the amount paid by or owed to STATE for each PROJECT, from future apportionments, or any other funds due ADMINISTERING AGENCY from the Highway Users Tax Fund or any other sources of funds, and/or may also withhold approval of future STATE FUNDED projects proposed by ADMINISTERING AGENCY.
21. Should ADMINISTERING AGENCY be declared to be in breach of this AGREEMENT or otherwise in default thereof by STATE, and if ADMINISTERING AGENCY is constituted as a joint powers authority, special district, or any other public entity not directly receiving funds through the State Controller, STATE is authorized to obtain reimbursement from whatever sources of funding are available, including the withholding or transfer of funds, from those constituent entities comprising a joint powers authority or by bringing of an action against ADMINISTERING AGENCY or its constituent member entities, to recover all funds provided by STATE hereunder.
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement)
22. ADMINISTERING AGENCY acknowledges that the signatory party represents the ADMINISTERING AGENCY and further warrants that there is nothing within a Joint Powers Agreement, by which ADMINISTERING AGENCY was created, if any exists, that would restrict or otherwise limit STATE's ability to recover STATE FUNDS improperly spent by ADMINISTERING AGENCY in contravention of the terms of this AGREEMENT.
ARTICLE V
AUDITS, THIRD PARTY CONTRACTING, RECORDS RETENTION AND REPORTS
1. STATE reserves the right to conduct technical and financial audits of PROJECT work and records and ADMINISTERING AGENCY agrees, and shall require its contractors and subcontractors to agree, to cooperate with STATE by making all appropriate and relevant PROJECT records available for audit and copying as required by paragraph three (3) of Article V.
2. ADMINISTERING AGENCY, its contractors and subcontractors shall establish and maintain a financial management system and records that properly accumulate and segregate reasonable, allowable, and allocable incurred PROJECT costs and matching funds by line item for the PROJECT. The financial management system of ADMINISTERING AGENCY, its contractors and all subcontractors shall conform to Generally Accepted Accounting Principles, enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices sent to or paid by STATE.
3. ADMINISTERING AGENCY, ADMINISTERING AGENCY's contractors and subcontractors, and STATE shall each maintain and make available for inspection and audit by STATE, the California State Auditor, or any duly authorized representative of STATE or the United States, all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, the costs of administering those various contracts, and ADMINISTERING AGENCY shall furnish copies thereof if requested. All of the above-referenced parties shall make such AGREEMENT and PROGRAM SUPPLEMENT materials available at their respective offices at all reasonable times during the entire PROJECT period and for three (3) years, or 35 years for Prop 1B funds, from the date of final payment to ADMINISTERING AGENCY.
4. ADMINISTERING AGENCY shall not award a construction contract over $25,000 on the basis of a noncompetitive negotiation for work to be performed under this AGREEMENT without the prior written approval of STATE. All contracts awarded by ADMINISTERING AGENCY intended or used as local match credit must meet the requirements set forth in this AGREEMENT regarding local match funds.
5. ADMINISTERING AGENCY shall comply with Chapter 10 (commencing with Section 4525) Division 5 of Title 1 of the Government Code and shall undertake the procedures described in California Government Code 4527(a) and 4528(a). Administering Agency shall comply with Chapter 10 of the LAPM for AE Consultant Contracts.
6. ADMINISTERING AGENCY shall comply with Government Code Division 5 Title 1 sections 4525-4529.5 and shall undertake the procedures described in California Government Code 4527(a) and 4528(a) for procurement of professional service contracts. Administering Agency shall follow Public Contract Code Section 10335- 10381 for other professional service contracts.
7.4.b
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement)
7. Any subcontract entered into by ADMINISTERING AGENCY as a result of this AGREEMENT shall contain all of the provisions of Article IV, FISCAL PROVISIONS, and this ARTICLE V, AUDITS, THIRD-PARTY CONTRACTING, RECORDS RETENTION AND REPORTS and shall mandate that travel and per diem reimbursements and third- party contract reimbursements to subcontractors will be allowable as PROJECT costs only after those costs are incurred and paid for by the subcontractors.
8. To be eligible for local match credit, ADMINISTERING AGENCY must ensure that local match funds used for a PROJECT meet the fiscal provisions requirements outlined in ARTICLE IV in the same manner that is required of all other PROJECT expenditures.
9. Except as provided in this Article, this AGREEMENT is solely between and for the benefit of the PARTIES and there are no third-party beneficiaries.
ARTICLE VI - MISCELLANEOUS PROVISIONS
1. ADMINISTERING AGENCY agrees to use all PROJECT funds reimbursed hereunder only for transportation purposes that are in conformance with Article XIX of the California State Constitution and other California laws.
2. ADMINISTERING AGENCY shall conform to all applicable State and Federal statutes and regulations, and the Local Assistance Program Guidelines and Local Assistance Procedures Manual as published by STATE and incorporated herein, including all subsequent approved revisions thereto applicable to PROJECT unless otherwise designated in the project-specific executed PROJECT SUPPLEMENT.
3. This AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute enacted by the State Legislature or adopted by the CTC that may affect the provisions, terms, or funding of this AGREEMENT in any manner.
4. ADMINISTERING AGENCY and the officers and employees of ADMINISTERING AGENCY, when engaged in the performance of this AGREEMENT, shall act in an independent capacity and not as officers, employees or agents of STATE.
5. Each project-specific PROGRAM SUPPLEMENT shall separately establish the terms and funding limits for each described PROJECT funded under this AGREEMENT and that PROGRAM SUPPLEMENT. No STATE FUNDS are obligated against this AGREEMENT.
6. ADMINISTERING AGENCY certifies that neither ADMINISTERING AGENCY nor its principals are suspended or debarred at the time of the execution of this AGREEMENT, and ADMINISTERING AGENCY agrees that it will notify STATE immediately in the event a suspension or a debarment occurs after the execution of this AGREEMENT.
7. ADMINISTERING AGENCY certifies, by execution of this AGREEMENT, that no person or selling agency has been employed or retained to solicit or secure this AGREEMENT upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by ADMINISTERING AGENCY for the purpose of securing business. For breach or violation of this warranty, STATE has the right to annul this AGREEMENT without liability, pay only for the value of the PROJECT work actually performed, or in STATE's discretion, to deduct from the price of PROGRAM SUPPLEMENT consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee.
7.4.b
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement)
8. In accordance with Public Contract Code section 10296, ADMINISTERING AGENCY hereby certifies under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against ADMINISTERING AGENCY within the immediate preceding two (2) year period because of ADMINISTERING AGENCY's failure to comply with an order of a federal court that orders ADMINISTERING AGENCY to comply with an order of the National Labor Relations Board.
9. ADMINISTERING AGENCY shall disclose any financial, business, or other relationship with STATE that may have an impact upon the outcome of this AGREEMENT or any individual PROJECT encompassed within a PROGRAM SUPPLEMENT. ADMINISTERING AGENCY shall also list current contractors who may have a financial interest in the outcome of a PROJECT undertaken pursuant to this AGREEMENT. These disclosures shall be delivered to STATE in a form deemed acceptable by the STATE prior to execution of this AGREEMENT.
10. ADMINISTERING AGENCY hereby certifies that it does not have, nor shall it acquire, any financial or business interest that would conflict with the performance of any PROJECT initiated under this AGREEMENT.
11. ADMINISTERING AGENCY certifies that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any STATE employee. For breach or violation of this warranty, STATE shall have the right, in its sole discretion, to terminate this AGREEMENT without liability, to pay only for PROJECT work actually performed, or to deduct from a PROGRAM SUPPLEMENT price or otherwise recover the full amount of such rebate, kickback, or other unlawful consideration.
12. Any dispute concerning a question of fact arising under this AGREEMENT that is not disposed of by agreement shall be decided by the STATE's Contract Manager, who shall be identified to ADMINISTERING AGENCY at the time of execution of this AGREEMENT and, as applicable , any time that Contract Manager changes during the duration of this AGREEMENT who may consider any written or verbal evidence submitted by ADMINISTERING AGENCY. The decision of the Contract Manager, issued in writing, shall be conclusive and binding on the PARTIES on all questions of fact considered and determined by the Contract Manager.
13. Neither the pendency of a dispute nor its consideration by the Contract Manager will excuse the ADMINISTERING AGENCY from full and timely performance in accordance with the terms of this AGREEMENT and each PROGRAM SUPPLEMENT.
14. Neither STATE nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by ADMINISTERING AGENCY under or in connection with any work, authority or jurisdiction of ADMINISTERING AGENCY arising under this AGREEMENT. It is understood and agreed that ADMINISTERING AGENCY shall fully defend, indemnify and save harmless STATE and all of its officers and employees from all claims and suits or actions of every name, kind and description brought forth under, including but not limited to, tortious, contractual, inverse condemnation or other theories or assertions of liability occurring by reason of anything done or omitted to be done by ADMINISTERING AGENCY under this AGREEMENT.
15. Neither ADMINISTERING AGENCY nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by STATE, under or in connection with any work, authority or
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement) jurisdiction arising under this AGREEMENT. It is understood and agreed that STATE shall fully defend, indemnify and save harmless the ADMINISTERING AGENCY and all of its officers and employees from all claims, suits or actions of every name, kind and description brought forth under, including but not limited to, tortious, contractual, inverse condemnation and other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE under this AGREEMENT.
16. In the event of (a) ADMINISTERING AGENCY failing to timely proceed with effective PROJECT work in accordance with the project-specific PROGRAM SUPPLEMENT; (b) failing to maintain any applicable bonding requirements; and (c) otherwise materially violating the terms and conditions of this AGREEMENT and/or any PROGRAM SUPPLEMENT, STATE reserves the right to terminate funding for that PROJECT upon thirty (30) days' written notice to ADMINISTERING AGENCY.
17. No termination notice shall become effective if, within thirty (30) days after receipt of a Notice of Termination, ADMINISTERING AGENCY either cures the default involved or, if the default is not reasonably susceptible of cure within said thirty (30) day period the ADMINISTERING AGENCY proceeds thereafter to complete that cure in a manner and time line acceptable to STATE.
18. Any such termination shall be accomplished by delivery to ADMINISTERING AGENCY of a Notice of Termination, which notice shall become effective not less than thirty (30) days after receipt, specifying the reason for the termination, the extent to which funding of work under this AGREEMENT and the applicable PROGRAM SUPPLEMENT is terminated and the date upon which such termination becomes effective, if beyond thirty (30) days after receipt. During the period before the effective termination date, ADMINISTERING AGENCY and STATE shall meet to attempt to resolve any dispute. In the event of such termination, STATE may proceed with the PROJECT work in a manner deemed proper by STATE. If STATE terminates funding for PROJECT with ADMINISTERING AGENCY for the reasons stated in paragraph sixteen (16) of ARTICLE VI, STATE shall pay ADMINISTERING AGENCY the sum due ADMINISTERING AGENCY under the PROGRAM SUPPLEMENT and/or STATE-approved finance letter prior to termination, provided, however, ADMINISTERING AGENCY is not in default of the terms and conditions of this AGREEMENT or the project-specific PROGRAM SUPPLEMENT and that the cost of any PROJECT completion to STATE shall first be deducted from any sum due ADMINISTERING AGENCY.
19. In the case of inconsistency or conflicts with the terms of this AGREEMENT and that of a project-specific PROGRAM SUPPLEMENT and/or Cooperative Agreement, the terms stated in that PROGRAM SUPPLEMENT and/or Cooperative Agreement shall prevail over those in this AGREEMENT.
20. Without the written consent of STATE, this AGREEMENT is not assignable by ADMINISTERING AGENCY either in whole or in part.
21. No alteration or variation of the terms of this AGREEMENT shall be valid unless made in writing and signed by the PARTIES, and no oral understanding or agreement not incorporated herein shall be binding on any of the PARTIES.
7.4.b
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement) City of Patterson
City of Patterson
IN WITNESS WHEREOF, the parties have executed this AGREEMENT by their duly authorized officer.
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
________________________________
Chief, Office of Project Management ________________________________ Oversight
Division of Local Assistance
Representative Name & Title
(Authorized Governing Body
Representative)
By______________________________ By______________________________ Date______________________________ Date______________________________ ________________________________
7.4.b
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement)
EXHIBIT A - FAIR EMPLOYMENT PRACTICES ADDENDUM
1. In the performance of this Agreement, ADMINISTERING AGENCY will not discriminate against any employee for employment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. ADMINISTERING AGENCY will take affirmative action to ensure that employees are treated during employment without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Such action 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. ADMINISTERING AGENCY shall post in conspicuous places, available to employees for employment, notices to be provided by STATE setting forth the provisions of this Fair Employment section.
2. ADMINISTERING AGENCY, its contractor(s) and all subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, 12900 et seq.), and the applicable regulations promulgated thereunder (Cal. Code Regs., Title 2, 11000, et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code section 12900(a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full. Each of the ADMINISTERING AGENCY'S contractors and all subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreements, as appropriate.
3. ADMINISTERING AGENCY shall include the nondiscrimination and compliance provisions of this clause in all contracts and subcontracts to perform work under this AGREEMENT.
4. ADMINISTERING AGENCY will permit access to the records of employment, employment advertisements, application forms, and other pertinent data and records by STATE, the State Fair Employment and Housing Commission, or any other agency of the State of California designated by STATE, for the purposes of investigation to ascertain compliance with the Fair Employment section of this Agreement.
5. Remedies for Willful Violation:
(a) STATE may determine a willful violation of the Fair Employment provision to have occurred upon receipt of a final judgment to that effect from a court in an action to which ADMINISTERING AGENCY was a party, or upon receipt of a written notice from the Fair Employment and Housing Commission that it has investigated and determined that ADMINISTERING AGENCY has violated the Fair Employment Practices Act. (b) For willful violation of this Fair Employment Provision, STATE shall have the right to terminate this Agreement either in whole or in part, and any loss or damage sustained by STATE in securing the goods or services thereunder shall be borne and paid for by ADMINISTERING AGENCY and by the surety under the performance bond, if any, and STATE may deduct from any moneys due or thereafter may become due to ADMINISTERING AGENCY, the difference between the price named in the Agreement
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement) and the actual cost thereof to STATE to cure ADMINISTERING AGENCY's breach of this Agreement.
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Attachment: Master Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) Agreement) 00000A193
FOR STATE FUNDED PROJECTS NO 10-5244S21
1023000247
June 23, 2023
10-STA-0-PAT
HSIPSL-5244(042)
5244
This Program Supplement, effective , hereby adopts and incorporates into the Administering Agency-State Agreement No. 10-5244S21 for State Funded Projects which was entered into between the ADMINISTERING AGENCY and the STATE with an effective date of and is subject to all the terms and conditions thereof. This PROGRAM SUPPLEMENT is executed in accordance with Article I of the aforementioned Master Agreement under authority of Resolution No. approved by the ADMINISTERING AGENCY on (See copy attached).
The ADMINISTERING AGENCY further stipulates that as a condition to the payment by the State of any funds derived from sources noted below encumbered to this project, Administering Agency accepts and will comply with the Special Covenants and remarks set forth on the following pages.
Intersection at Sperry Avenue and Highway 33.
Traffic Related - Other 0.0(MILES)
Estimated Cost State Funds Matching Funds
CITY OF PATTERSON
By ________________________________ By ________________________________ Title _______________________________
Date _______________________________
Attest _______________________________ Date _______________________________ Division of Local Assistance
I hereby certify upon my personal knowledge that budgeted funds are available for this encumbrance:
Accounting Officer _______________________ Date _______________ PROGRAM SUPPLEMENT NO.
to
ADMINISTERING AGENCY-STATE AGREEMENT
Adv. Project ID Date:
Location:
Project Number:
E.A. Number:
Locode:
PROJECT LOCATION:
TYPE OF WORK: LENGTH:
LOCAL OTHER
$195,000.00 $19,500.00 $0.00
Chief, Office of Project Implementation
STATE OF CALIFORNIA
Department of Transportation
$175,500.00
STATE $175,500.00
1. A. This PROJECT has received STATE funds from Highway Safety Improvement Program (HSIP). The ADMINISTERING AGENCY agrees to administer the PROJECT in Program Supplement 10--524-A193- SERIAL 1Page of 3
6/23/2023
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Attachment: Program Supplement Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans)
SPECIAL COVENANTS OR REMARKS
10-STA-0-PAT
HSIPSL-5244(042)
accordance with the Highway Safety Improvement Program (HSIP) Guidelines, the Local Assistance Procedures Manual (LAPM), the Local Assistance Program Guidelines (LAPG), and this PROGRAM SUPPLEMENT.
B. The STATE funds for this PROJECT may be provided under one or more phases, which are Preliminary Engineering (PE), Right-of-Way (R/W) and Construction (Con).
A phase-specific fund allocation is required, in addition to other requirements, before reimbursable work can occur for the phase identified. Each allocation will be assigned an effective date and identify the amount of funds allocated per phase. Unless otherwise determined, the effective date of the phase-specific allocation will constitute the start of reimbursable expenditures for the phase. The STATE funds available for reimbursement will be limited to the amount allocated by the STATE for the phase.
C. At the time of the first fund allocation approval for the Project, this PROGRAM SUPPLEMENT, a STATE-approved Allocation Letter and STATE Finance Letter are prepared to allow reimbursement of eligible PROJECT expenditures for the phase allocated.
D. STATE and ADMINISTERING AGENCY agree that any additional fund allocations made after the execution of this PROGRAM SUPPLEMENT, for the phase that has been authorized in the first fund allocation approval or for a new phase, will be encumbered on this PROJECT by use of a STATE-approved Allocation Letter and a STATE Finance Letter and are subject to the terms and conditions thereof.
E. This PROJECT is subject to the delivery requirements enacted by the HSIP guidelines. The delivery requirements may be accessed at: https://dot.ca.gov/programs/local-assistance/fedand-state-programs/highway-safety-improvement-program/delivery-requirements-statusapproved-projects.
F. Award information shall be submitted by the ADMINISTERING AGENCY to the District Local Assistance Engineer immediately after project contract award and prior to the submittal of the ADMINISTERING AGENCY'S first invoice for the construction contract. Failure to do so will cause a delay in the State processing of invoices for the construction phase.
G. The ADMINISTERING AGENCY shall invoice STATE for PE, R/W and CON costs no later than 180 days after the end of expenditure the phase. For construction costs, the ADMINISTERING AGENCY has 180 days after project completion or contract acceptance to make the final payment to the contractor, prepare the final Report of Expenditures and final invoice, and submit to STATE for verification and payment.
Program Supplement 10--524-A193- SERIAL Page 2 of 3
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Attachment: Program Supplement Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans)
SPECIAL COVENANTS OR REMARKS
10-STA-0-PAT
HSIPSL-5244(042)
H. ADMINISTERING AGENCY agrees to submit the final report documents that collectively constitute a "Report of Expenditures" within one hundred eighty (180) days of PROJECT completion. Failure of ADMINISTERING AGENCY to submit a "Final Report of Expenditures" within 180 days of PROJECT completion will result in STATE imposing sanctions upon ADMINISTERING AGENCY in accordance with the current LAPM provisions.
I. ADMINISTERING AGENCY agrees to comply with the requirements in 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (applicable to Federal and State Funded Projects).
J. By executing this PROGRAM SUPPLEMENT, ADMINISTERING AGENCY agrees to provide the STATE, upon request, with the information related to the PROJECT for the purpose of project evaluation or other purposes.
K. The ADMINISTERING AGENCY shall construct the PROJECT in accordance with the scope of work presented in the application and approved by the State. Any changes to the approved PROJECT scope without the prior expressed approval of the State are ineligible for reimbursement and may result in the entire PROJECT becoming ineligible for reimbursement.
Program Supplement 10--524-A193- SERIAL Page 3 of 3
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Attachment: Program Supplement Agreement (Resolution No. 2023-40, Approving the State Department of Transportation (Caltrans) City Council Agenda Report
TO: Mayor Clauzel and Members of the City Council
FROM: Ken Irwin, City Manager
BY: Mike Willett, Public Works Director
MEETING DATE: August 15, 2023
ITEM NO: 7.5
SUBJECT: Approve Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash Capture System at Salado Creek and Olive Avenue Basin and Authorizing the City Manager or his Designee to Execute the Agreement in the Amount not to Exceed $200,000.
RECOMMENDATION
Motion to Approve Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash Capture System at Salado Creek and Olive Avenue Basin and Authorizing the City Manager or his Designee to Execute the Agreement in the Amount not to Exceed $200,000.
BACKGROUND
The State Water Resources Control Board (Water Board) issued a letter to the City dated June 1, 2017, regarding the Statewide Trash Provisions (Trash Provisions), which establish a water quality objective for trash and prohibition of trash discharge to surface waters of the State under the City’s existing Stormwater Phase II MS4 Permit (Order No. 2013-0001-DWQ) within the timeframe specified by the Trash Provisions (December 2030). The Trash Provisions allow for two methods of compliance for Phase II MS4 permittees that are referred to as Track 1 and Track
2. Track 1 consists of installing, operating, and maintaining Full Capture Systems for the storm drain network that capture runoff from the Priority Land Uses.
Track 2 consists of installing, operating, and maintaining any combination of Full Capture Systems, Multi-Benefit Projects, other Treatment Controls, and/or Institutional Controls.
Trash Provisions are implemented in two phases. The initial phase consisted of preparing a Preliminary Jurisdictional Map and selecting the compliance method (i.e., Track 1 or Track 2).
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The deadline for submittal of the City’s implementation Plan was December 1, 2018. The second step was to prepare an implementation plan that consists of finalizing the Jurisdictional Map and preparing subsequent information that is dependent upon the compliance method that is selected.
The city contracted Stantec Consulting, Storm Drainage Consulting firm who prepared the City’s Storm Drainage Master Plan, to assist with completing the necessary trash assessments, jurisdictional map, and implementation plan. The City selected Track 1 and is required to comply with the Trash Amendment provisions by December 2030.
ANALYSIS
The city selected Track 1, indicating the intent to install, operate, and maintain Full Capture Systems for the storm drain network that captures runoff from the Priority Land Uses, refer to Jurisdictional Land Use Map. In August 2017, Stantec prepared the Preliminary Jurisdictional Map and in November 2018, Stantec prepared the Updated Jurisdictional Map.
The City’s approach to comply with the Full Trash Capture is to implement consolidated trash removal at the Olive Avenue Basin and near Salado Creek / Highway 33. In December 2020, Stantec completed an alternatives analysis and conceptual design for Full Trash Capture at the Olive Avenue Basin. The attached scope and fee are prepared to provide Basis of Design Report for the installation of Regional Full Trash Capture equipment to comply with the State’s 13267 Compliance Orders dated June 1, 2017. The design will consist of capturing trash from stormwater runoff (1-year, 1-hour storm event) in compliance with the California State Water Resources Control Board.
Stantec will assist with preparation of the Basis of Design Report for the new full trash capture facilities to be sited near where an existing coarse debris rack is located in Salado Creek downstream of the Highway 33 and California Northern Railroad (CNRR) crossings prior to entering a 96” CIP SD that extends northeast along Olive Ave and discharging to the San Joaquin River. The new full trash capture equipment will match with the existing channelization and surrounding infrastructure and include provisions for bypassing higher flowrates. Up to three alternatives will be evaluated.
Staff is recommending Stantec Consulting Services, Inc. for this project due to their familiarity with the City’s current storm drainage system and because they developed and completed the City’s Storm Drainage Master Plan in February 2018 and provided assistance with the trash assessment, jurisdictional map, and implementation plan submitted and approved by the State in 2018.
FISCAL IMPACT
The city has allocated sufficient funds as part of the FY 23/24 budget to cover these costs. The costs are allocated under expense account 415-000-7574 for this design phase. The city is working towards design to be able to seek grant funding for this project. The city submitted a Notice of Intent and preliminary grant application to the State in April 2023 to explore all available funding options and is pending a meeting with the State Water Board.
Attachments: Proposal from Stantec Consulting Services, Inc.
7.5 Packet Pg. 53
Priority Land Uses Jurisdictional Map 2017
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Stantec Consulting Services Inc.
2250 Douglas Blvd, Suite 260, Roseville CA 95661
April 24, 2023
File: 184082009
Attention: Sonia Delgado
City of Patterson, Public Works Department
1 Plaza, 2nd Floor
Patterson, CA 95363
Via email: [email protected]
Dear Ms. Delgado,
Reference: Proposal for Professional Services
Full Trash Capture System at Salado Creek near Highway 33 Stantec Consulting Services Inc. (Stantec) is pleased to offer this proposal for professional services related to the above-referenced project. We understand the State Water Resources Control Board (Water Board) issued a letter to the City of Patterson (City) dated June 1, 2017 regarding the Statewide Trash Provisions (Trash Provisions), which establish a water quality objective for trash and prohibition of trash discharge to surface waters of the State. The Water Board does not anticipate amending the existing Phase II MS4 Permit (Order No. 2013-0001-DWQ) within the timeframe specified by the Trash Provisions.
Stantec started assisting the City with compliance with the Trash Provisions in 2017 by first working with the City to select the compliance method (i.e., Track 1 or Track 2). The City selected Track 1, indicating the intent to install, operate, and maintain Full Capture Systems for the storm drain network that captures runoff from the Priority Land Uses. In August 2017, Stantec prepared the Preliminary Jurisdictional Map and in November 2018, Stantec prepared the Updated Jurisdictional Map.
The City’s approach to comply with the Full Trash Capture is to implement consolidated trash removal at the Olive Avenue Basin and near Salado Creek / Highway 33. In December 2020, Stantec completed an alternatives analysis and conceptual design for Full Trash Capture at the Olive Avenue Basin.
The following scope and fee are prepared per your request to provide Basis of Design Report for the installation of a Regional Full Trash Capture equipment to comply with the State’s 13267 Compliance Orders dated June 1, 2017. The design will consist of capturing trash from stormwater runoff (1-year, 1- hour storm event) in compliance with the California State Water Resources Control Board.
Stantec will prepare the Basis of Design Report for the new full trash capture facilities to be sited near where an existing coarse debris rack is located in Salado Creek downstream of the Highway 33 and California Northern Railroad (CNRR) crossings prior to entering a 96” CIP SD that extends northeast along Olive Ave and discharging to the San Joaquin River. Maintenance of the existing trash rack here is limited by City’s access via a privately-owned mini-storage facility where the trash is raked and removed. The new full trash capture equipment will match with the existing channelization and surrounding infrastructure and include provisions for bypassing higher flowrates. Up to three alternatives will be evaluated. One alternative
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash April 24, 2023
Sonia Delgado
Reference: Proposal for Professional Services Full Trash Capture System at Salado Creek near Highway 33 to be considered include utilizing the parcel just upstream of Highway 33 on the south side of Salado Creek.
Also to be considered is the impact of removing large woody debris further upstream in the City’s system.
In addition to trash compliance the Storm Drainage Master Plan had identified several deficiencies at this location as follows:
• FEMA FIS shows Salado Creek below DMC is 710 cfs
• Capacity of channel leading up to Hwy 33 is 866 cfs
• Capacity of 96” CIP to San Joaquin River is 538 cfs
• CNRR is a significant restriction in the capacity and frequent flooding is experienced upstream of the crossing
Per the City’s request, Stantec’s scope of services for the Basis of Design Report will focus on the development of three conceptual alternatives for trash compliance facilities in this area along with a comparative evaluation of benefits and costs of each alternative. However, this study is not intended to satisfy the full scope of the drainage deficiency identified in the Storm Drainage Master Plan. The Draft Basis of Design Report will provide the evaluation of the alternatives. After review and discussion of the Draft and Final Basis of Design Report will be provided that includes the recommended alternative for final design efforts.
Stantec believes that since we have developed and completed a Storm Drainage Master Plan in February 2018 and updated jurisdictional map in November 2018, we are in a good position to continue to help the City comply with the State’s Trash Provisions in an efficient manner.
Task 1 – Project Management and Coordination
Subtask 1.1:Meetings
Unless otherwise determined by the City, all meetings will be held virtually via Microsoft Teams. The following are the consolidated meetings Stantec proposes per the nature of the project scope. Note that the second City council meeting is included in Task 300.
• Kick-off meeting (1)
• Two progress meetings with City staff (2)
• Coordination with State regulators to obtain approval on the city’s implementation plan and selecting a full trash capture equipment (as required)
Subtask 1.2:Project Management
Project management task includes overall coordination and communication with the City as well as managerial oversight of the Stantec team. Oversight of the project team will include internal coordination of the design tasks, administration, budget, and schedule monitoring for the project. Monthly progress reports will be submitted to the City with our invoices to summarize the progress made during the invoice cycle, tasks to be complete in the next invoice cycle, and any outstanding issues.
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash April 24, 2023
Sonia Delgado
Reference: Proposal for Professional Services Full Trash Capture System at Salado Creek near Highway 33 Task 1 Deliverables
Kick-off meeting (agenda and meeting notes PDF to City PM) Two progress meetings to discuss City review comments on the Draft and Final Draft work products (agenda and meeting notes PDF to City PM)
Conference call with State (agenda and meeting notes PDF to City PM) Monthly progress summary and invoices (PDF to City PM) Task 2 – Basis of Design
Stantec will coordinate and work with the City staff and property owners in collecting necessary data for the project. Data includes as-built survey around the proposed alternative locations, utility, and property boundary information readily available and other relevant information. Data will be reviewed and analyzed for the design. Stantec will also review City provided data such as as-built drawings, regulatory documents, property boundary and other related documents. Below subtasks will be conducted as part of the Basis of Design.
Subtask 2.1:Data Review
Stantec will review all relevant documents provided by the City. These may include but not limited to detention basin drawings, geotechnical report, as-built drawings, existing stormwater collection system, property boundary, and available AutoCAD files.
Subtask 2.2:Field Investigation
A field investigation is recommended to determine the correct existing facility layout and sizing. During our site reconnaissance, Stantec will conduct a field investigation and assessment of the following locations:
1. Existing trash rack site and nearby facilities
2. Accessible upstream locations of Salado Creek (west of Highway 33) where alternate trash facilities may be located
3. Other locations as determined through the Data Review The field investigation will include topographic survey of Salado Creek from approximately 500 feet upstream of the inlet of the existing 96” CIP SD that extends northeast along Olive Ave to the previously mentioned inlet and will include survey of the HWY 33 bridge, the CNRR bridge, the coarse debris rack entering the 96” inlet, and the 96” inlet. It is assumed that the field investigation will be complete in a single day by up to three Stantec staff, including surveyors.
Subtask 2.3:Basis of Design Report
After completing the field assessment Stantec will analyze the data and prepare a Basis of Design Report (BDR) that will summarize the design parameters, preliminary hydrologic and hydraulic analysis, preliminary
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash April 24, 2023
Sonia Delgado
Reference: Proposal for Professional Services Full Trash Capture System at Salado Creek near Highway 33 design layout of the Full Trash Capture Device and recommendation of Full Trash Capture Device. The BDR will be brief in nature.
A Draft Basis of Design Report will be developed to provide the scoring process and evaluation of three alternatives. In addition to life-cycle costs, factors such as access, flood risk reduction, and community benefits will be considered in the scoring and evaluation. It is assumed the sites and locations will be presented as exhibits on one 11x17 plan graphic for each alternative. After review and discussion of the City’s review of the Draft a Final Draft Basis of Design Report will be developed that includes resolution of City comments on the Draft BDR and the recommended alternative for final design efforts.
Stantec will provide City and Water Board with an electronic copy for the Final Draft BDR in PDF version for its review. Approximately in one month from the submittal date, Stantec will coordinate a conference call with the City and Water Board to discuss the project outline as well as and capture any comments that everyone has. Comments from this conference call and other City comments on the Final Draft BDR will be incorporated in the Final BDR.
Assumptions:
One field visit by the team’s staff will be required
The input data for the Master Plan HEC-HMS model will be sufficient to develop an existing conditions hydrologic model.
All outfalls modeled will be free outfalls; there is no anticipated backwater during the modeled event.
The rational method may be used to calculate peak flows for the local treatment alternative in lieu of the existing conditions HEC-HMS model.
Opinions of Probable Cost will be commensurate with the level of design complete (assumed to be AACE Class 4)
Water Board will provide feedback on Basis of Design Memorandum within one month (as applicable)
Task 2 Deliverables
Basis of Design Memorandum (PDF Draft, Final Draft, and Final to City PM) One conference call with City and Water Board (meeting agenda and notes in PDF to City PM)
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash April 24, 2023
Sonia Delgado
Reference: Proposal for Professional Services Full Trash Capture System at Salado Creek near Highway 33 Project Timeline and Fee Schedule
Based on this Scope of Services, Stantec estimates the schedule as depicted below. This schedule can and will be updated as needed to meet City requested project implementation and execution schedule.
Stantec’s fee for preparing the Basis of Design Report for the City’s Full Trash Capture Device Design Services Project is $175,370. A detailed breakdown of the cost per listed tasks, sub-tasks and optional services is attached as Exhibit A.
Stantec is prepared to commence work upon receipt of an executed Professional Services Agreement.
Please let us know if you have any questions or concerns.
Regards,
Stantec Consulting Services Inc.
Sarah McIlroy, PE, QSD Jim Rasmus, PE, BCEE, ENV SP
Vice President Practice Leader
Phone: 916.717.9635 Phone: 858.633.4218
[email protected] [email protected]
Attachment: Fee Proposal, Professional Services Agreement, Standard Rate Table Description Estimated Timeline
Notice to Proceed (Signed Agreement) May 2023
Task 1 – Project Management & Coordination May 2023 to December 2023 Task 2 – Basis of Design Draft - May to July 2023
Final Draft – September 2023
Final – December 2023
(Assumes feedback from Water Board within one month)
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash Technical Lead
Project Manager
Senior Surveyor
Survey Technician
Project Engineer
Hydrology & Hydraulics
H&H Lead
Expenses
Name Rasmus, Jim McIlroy,
Sarah
Stinchfield,
Konrad
Rancadore,
Brett
Zukowski,
Jonny Archer, Claire Jacobsma, Andrea Project Summary Hours Labour Expense Total Project Billing Rate $275 $276 $238 $150 $220 $211 $250 $1.1 Fixed Fee 0 0 0 0 Total Units (T&M) 116 104 20 24 116 276 84 $1,500 Time & Material 740 173,720 1,650 175,370 Task Code Task Name Units Task Type Hours Labour Expense Total 1 Time & Material 112 29,272 0 29,272
1.1 Meetings 16 16 16 8 8 64 16,024 0 16,024
1.2 Project Management 48 48 13,248 0 13,248
2 Basis of Design Time & Material 628 144,448 1,650 146,098
2.1 Data Review 40 16 20 8 8 92 23,504 0 23,504
2.2 Field Investigation 20 8 20 24 8 1,500 80 17,756 1,650 19,406
2.3 Hydrology 108 32 140 30,788 0 30,788
2.4 Hydraulics 112 24 136 29,632 0 29,632
2.5 Basis of Design Report 40 16 80 32 12 180 42,768 0 42,768 Project Management and Coordination
FEE ESTIMATE - Patterson Full Trash Capture Conceptual Design
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting
PROFESSIONAL SERVICES AGREEMENT
C:\Users\smcilroy\OneDrive - Stantec\Documents\Patterson\Generic Professional Services Agreement - EN.dotm This Agreement is made and entered into effective April 24, 2023 (the “Agreement Date”) by and between:
“Client”
Name: City of Patterson
Address: 1 Plaza, 2nd Floor; Patterson CA 95363
Phone: 209-895-8064
Representative: Sonia Delgado Email: [email protected] “Stantec”
Name: Stantec Consulting Services Inc.
Address: 2250 Douglas Blvd, Roseville CA 95661
Phone: 916-717-9635
Representative: Sarah McIlroy Email: [email protected] Project Name (the “Project”):
Conceptual Design for Full Trash Capture System at Salado Creek DESCRIPTION OF WORK: Stantec shall render the services described in Attachment “A” (hereinafter called the “Services”) in accordance with this Agreement. Stantec may, at its discretion and at any stage, engage subconsultants to perform all or any part of the Services. The Client and Stantec by written amendment to this Agreement may from time to time make changes to the Services. All changed work shall be carried out under this Agreement. The time for completion of the Services shall be adjusted accordingly.
COMPENSATION: Charges for the Services rendered will be made in accordance with the Contract Price indicated in Attachment “A”, or, if no Contract Price is indicated, in accordance with Stantec’s Schedule of Fees and Disbursements in effect from time to time as the Services are rendered.
Invoices shall be paid by the Client in the currency of the jurisdiction in which the Services are provided without deduction or setoff upon receipt. Failure to make any payment when due is a material breach of this Agreement and will entitle Stantec, at its option, to suspend or terminate this Agreement and the provision of the Services. Interest will accrue on accounts overdue by 30 days at the lesser of 1.5 percent per month (18 percent per annum) or the maximum legal rate of interest. The Client will make payment by Electronic Funds Transfer when requested by Stantec.
REPRESENTATIVES: Each party shall designate in the space provided above a representative who is authorized to act on behalf of that party and receive notices under this Agreement. Such representatives have complete authority to act on behalf of their principals in respect to all matters arising under this Agreement.
NOTICES: All notices, consents, and approvals required to be given hereunder shall be in writing and shall be given to the representatives of each party. All notices required by this Agreement to be given by either party shall be deemed to be properly given and received within two (2) business days if made in writing to the other party by certified mail or email, addressed to the regular business address of such party as identified above.
CLIENT’S RESPONSIBILITIES: The Client shall provide to Stantec in writing, the Client's total requirements in connection with the Project, including the Project budget and time constraints. The Client shall make available to Stantec all relevant information or data pertinent to the Project which is required by Stantec to perform the Services. Stantec shall be entitled to rely upon the accuracy and completeness of all information and data furnished by the Client, including information and data originating with other consultants employed by the Client whether such consultants are engaged at the request of Stantec or otherwise. Where such information or data originates either with the Client or its consultants then Stantec shall not be responsible to the Client for the consequences of any error or omission contained therein.
When required by Stantec, the Client shall engage specialist consultants directly to perform items of work necessary to enable Stantec to carry out the Services. Whether arranged by the Client or Stantec, these services shall be deemed to be provided under direct contracts to the Client unless expressly provided otherwise.
The Client shall give prompt consideration to all documentation related to the Project prepared by Stantec and whenever prompt action is necessary shall inform Stantec of Client’s decisions in such reasonable time so as not to delay the schedule for providing the Services.
When applicable, the Client shall arrange and make provision for Stantec’s entry to the Project site as well as other public and private property as necessary for Stantec to perform the Services. The Client shall obtain any required approvals, licenses and permits from governmental or other authorities having jurisdiction over the Project so as not to delay Stantec in the performance of the Services.
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash PROFESSIONAL SERVICES AGREEMENT Page 2
C:\Users\smcilroy\OneDrive - Stantec\Documents\Patterson\Generic Professional Services Agreement - EN.dotm STANTEC’S RESPONSIBILITIES: Stantec shall furnish the necessary qualified personnel to provide the Services. Stantec represents that it has access to the experience and capability necessary to and agrees to perform the Services with the reasonable skill and diligence required by customarily accepted professional practices and procedures normally provided in the performance of the Services at the time when and the location in which the Services were performed.
This undertaking does not imply or guarantee a perfect Project and in the event of failure or partial failure of the product or the Services, Stantec will be liable only for its failure to exercise diligence, reasonable care, and professional skill. This standard of care is the sole and exclusive standard of care that will be applied to measure Stantec’s performance. There are no other representations or warranties expressed or implied made by Stantec. In particular, but not by way of limitation, no implied warranty of merchantability or fitness for a particular purpose shall apply to the Services provided by Stantec nor shall Stantec warrant or guarantee economic, market or financial conditions, proforma projections, schedules for public agency approvals, or other factors beyond Stantec’s reasonable control. Stantec does not warrant the Services to any third party and the Client shall indemnify and hold harmless Stantec from any demands, claims, suits, or actions of third parties arising out of Stantec’s performance of the Services.
In performing the Services under this Agreement, Stantec shall operate as and have the status of an independent contractor and shall not act as or be an employee of the Client.
TERMINATION: Stantec may terminate this Agreement without cause upon thirty (30) days’ notice in writing. If either party breaches this Agreement, the non-defaulting party may terminate this Agreement after giving seven (7) days’ notice to remedy the breach. On termination of this Agreement, the Client shall forthwith pay Stantec for the Services performed to the date of termination. Non-payment by the Client of Stantec’s invoices within 30 days of Stantec rendering same is agreed to constitute a material breach of this Agreement and, upon written notice as prescribed above, the duties, obligations, and responsibilities of Stantec are terminated.
SUSPENSION OF SERVICES: If the project is suspended for more than thirty (30) calendar days in the aggregate, Stantec shall be compensated for services performed and charges incurred prior to receipt of notice to suspend and, upon resumption, an equitable adjustment in fees to accommodate the resulting demobilization and remobilization costs. In addition, there shall be an equitable adjustment in the project schedule based on the delay caused by the suspension.
If the Project is suspended for more than ninety (90) days, Stantec may, at its option, terminate this agreement upon giving notice in writing to the Client.
ENVIRONMENTAL: Except as specifically described in this Agreement, Stantec’s field investigation, laboratory testing and engineering recommendations will not address or evaluate pollution of soil or pollution of groundwater.
Where the Services include storm water pollution prevention (SWPP), sedimentation or erosion control plans, specifications, procedures or related construction observation or administrative field functions, Client acknowledges that such Services proposed or performed by Stantec are not guaranteed to provide complete SWPP, sedimentation or erosion control, capture all run off or siltation, that any physical works are to be constructed and maintained by the Client’s contractor or others and that Stantec has no control over the ultimate effectiveness of any such works or procedures. Except to the extent that there were errors or omissions in the Services provided by Stantec, Client agrees to indemnify and hold Stantec harmless from and against all claims, costs, liabilities, or damages whatsoever arising from any storm water pollution, erosion, sedimentation, or discharge of silt or other deleterious substances into any waterway, wetland or woodland and any resulting charges, fines, legal action, cleanup, or related costs.
In the prosecution of work, Stantec will take reasonable precautions to avoid damage to subterranean structures or utilities. However, it is the responsibility of the Client to provide Stantec with assistance in locating underground structures and utilities in the vicinity of any construction, exploration, or investigation. Stantec shall also rely upon third party sources in order to determine the existence and location of any underground structures and utilities of any kind. The Client acknowledges and agrees that Stantec may rely on such third-party advice, so long as such third party is, in Stantec’s opinion, a reasonable source for such information, without any requirement that Stantec shall make an independent evaluation or investigation of such underground structures and utilities. In the event that the information supplied by third parties in incorrect, the Client acknowledges that Stantec shall not be responsible for any damages done to any such underground structures or utilities. If neither party can confirm the location of such structures and utilities, the Client agrees to accept all liabilities, costs, expenses and damages, whether direct, indirect, economic, punitive, incidental, special, exemplary or consequential, associated with the repair, replacement or restoration of any damages to such structures and utilities caused by Stantec or its subcontractor(s) or subconsultant(s) in the performance of the Services and the Client agrees to defend, indemnify and hold Stantec harmless from any such damages.
BUILDING CODES, BYLAWS AND OTHER PUBLIC REGULATIONS: Stantec shall, to the best of its ability, interpret building codes, by-laws, and other public regulations as they apply to the Project and as they are published at the time Services commence. Furthermore, Stantec shall observe and comply with all applicable laws, ordinances, codes, and regulations of government agencies, including federal, state, provincial, municipal, and local governing bodies having jurisdiction over the conduct of the Services (“LAWS”). However, it is expressly acknowledged and agreed by the Client that as the Project progresses such building codes, by-laws, other public regulations, and LAWS may change or the interpretation of any public authority may differ from the interpretation of Stantec, through no fault of Stantec, and any extra costs
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash PROFESSIONAL SERVICES AGREEMENT Page 3
C:\Users\smcilroy\OneDrive - Stantec\Documents\Patterson\Generic Professional Services Agreement - EN.dotm necessary to conform to such changes or interpretations during or after execution of the Services will be paid by the Client.
Stantec shall continue to provide equal employment opportunity to all qualified persons and to recruit, hire, train, promote and compensate persons in all jobs without regard to race, color, religion, sex, age, disability or national origin or any other basis prohibited by applicable laws.
COST AND SCHEDULE OF CONSTRUCTION WORK: In providing opinions of probable cost and project schedule, it is recognized that neither the Client nor Stantec has control over the costs of labor, equipment, or materials, or over the Contractor’s methods of determining prices or time. The opinions of probable cost or project duration are based on Stantec’s reasonable professional judgment and experience and do not constitute a warranty, express or implied, that the Contractors’ bids, project schedules, or the negotiated price of the Work or schedule will not vary from the Client’s budget or schedule or from any opinion of probable cost or project schedule prepared by Stantec. Exact costs and times will be determined only when bids have been received for the Project and when the construction work has been performed and payments finalized.
ADMINISTRATION OF CONSTRUCTION CONTRACTS: When applicable, Stantec shall provide field services during the construction of the Project only to the extent that such Services are included and defined in this Agreement. The performance of the construction contract is not Stantec’s responsibility nor are Stantec’s field services rendered for the construction contractor's benefit.
It is understood and agreed by the Client and Stantec that only work which has been seen during an examination by Stantec can be said to have been appraised and comments on the balance of any construction work are assumptions only.
When field services are provided by Stantec, the authority for general administration of the Project shall reside with Stantec only to the extent defined in this Agreement. In such case, Stantec shall coordinate the activities of other consultants employed by the Client, only to the extent that Stantec is empowered to do so by such other consultants’ contracts with the Client.
Stantec shall not be responsible for any contractor’s failure to carry out the work in accordance with the contract documents nor for the acts or omissions of any contractor, subcontractor, any of their agents or employees, or any other persons performing any of the work in connection with the Project. When field services are provided, no acceptance by Stantec of the work or services of a construction contractor or other consultants, whether express or implied, shall relieve such construction contractor or other consultants from their responsibilities to the Client for the proper performance of such work or services and further, Stantec shall not be responsible to the Client or to the construction contractor or to the other consultants for the means, methods, techniques, sequences, procedures and use of equipment of any nature whatsoever, whether reviewed by Stantec or not, which are employed by the construction contractor or the other consultants in executing, designing, or administering any phases of the Project, or for placing into operation any plant or equipment or for safety precautions and programs incidental thereto.
When field services are provided, Stantec will not be designated as the party responsible for the compliance by others on the construction work site with the purposes or requirements of applicable environmental, occupational health and safety, or similar legislation. The Client shall designate a responsible party, other than Stantec, for the coordination and performance of environmental, occupational health and safety activities on the construction work site as required by applicable legislation and associated regulations.
JOBSITE SAFETY: Neither the professional activities of Stantec, nor the presence of Stantec or its employees and subconsultants at a construction site, shall relieve the Client and any other entity of their obligations, duties and responsibilities with respect to job site safety. Subject only to applicable legislation, Stantec and its personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions.
INDEMNITY: The Client releases Stantec from any liability and agrees to defend, indemnify, and hold Stantec harmless from any and all claims, damages, losses, and/or expenses, direct and indirect, or consequential damages, including but not limited to attorney’s fees and charges and court and arbitration costs, arising out of, or claimed to arise out of, the performance of the Services, excepting liability arising from the negligence or willful misconduct of Stantec.
LIMITATION OF LIABILITY: It is agreed that, to the fullest extent possible under the applicable law, the total amount of all claims (including any and all costs associated with such claims such as attorney and expert fees and interest) the Client may have against Stantec under this Agreement or arising from the performance or non-performance of the Services under any theory of law, including but not limited to claims for negligence, negligent misrepresentation and breach of contract, shall be strictly limited to the lesser of the fees paid to Stantec for the Services or $500,000. No claim may be brought against Stantec in contract or tort more than two (2) years after the cause of action arose. As the Client’s sole and exclusive remedy under this Agreement any claim, demand or suit shall be directed and/or asserted only against Stantec and not against any of Stantec’s employees, officers, or directors.
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash PROFESSIONAL SERVICES AGREEMENT Page 4
C:\Users\smcilroy\OneDrive - Stantec\Documents\Patterson\Generic Professional Services Agreement - EN.dotm Stantec’s liability with respect to any claims arising out of this Agreement shall be absolutely limited to direct damages arising out of the Services and Stantec shall bear no liability whatsoever for any consequential loss, injury or damage incurred by the Client, including but not limited to claims for loss of use, loss of profits and loss of markets.
In no event shall Stantec’s obligation to pay damages of any kind exceed its proportionate share of liability for causing such damages.
DOCUMENTS: All documents prepared by Stantec or on behalf of Stantec in connection with the Project are instruments of service for the execution of the Project. Stantec retains the property and copyright in these documents, whether the Project is executed or not. Payment to Stantec of the compensation prescribed in this Agreement shall be a condition precedent to the Client's right to use documentation prepared by Stantec. These documents may not be used for any other purpose without the prior written agreement of Stantec. The Client shall have a permanent non-exclusive, royaltyfree license to use any concept, product or process which is patentable or capable of trademark, produced by or resulting from the Services rendered by Stantec in connection with the Project, for the life of the Project. The Client shall not use, infringe upon, or appropriate such concepts, products or processes without the express written agreement of Stantec. In the event Stantec’s documents are subsequently reused or modified in any material respect without the prior consent of Stantec, the Client agrees to indemnify Stantec from any claims advanced on account of said reuse or modification.
Any document produced by Stantec in relation to the Services is intended for the sole use of Client. The documents may not be relied upon by any other party without the express written consent of Stantec, which may be withheld at Stantec’s discretion. Any such consent will provide no greater rights to the third party than those held by the Client under the contract and will only be authorized pursuant to the conditions of Stantec’s standard form reliance letter.
Stantec cannot guarantee the authenticity, integrity or completeness of data files supplied in electronic format (“Electronic Files”). Client shall release, indemnify, and hold Stantec, its officers, employees, consultants, and agents harmless from any claims or damages arising from the use of Electronic Files. Electronic files will not contain stamps or seals, remain the property of Stantec, are not to be used for any purpose other than that for which they were transmitted, and are not to be retransmitted to a third party without Stantec’s written consent.
PROJECT PROMOTION: Where the Client has control or influence over construction signage, press releases and/or other promotional information identifying the project (“Project Promotion”), the Client agrees to include Stantec in such Project Promotion.
FORCE MAJEURE: Any default in the performance of this Agreement caused by any of the following events and without fault or negligence on the part of the defaulting party shall not constitute a breach of contract: labor strikes, riots, war, acts of governmental authorities, unusually severe weather conditions or other natural catastrophe, disease, epidemic or pandemic, or any other cause beyond the reasonable control or contemplation of either party. Nothing herein relieves the Client of its obligation to pay Stantec for services rendered.
GOVERNING LAW: This Agreement shall be governed, construed, and enforced in accordance with the laws of the jurisdiction in which the majority of the Services are performed.
DISPUTE RESOLUTION: If requested in writing by either the Client or Stantec, the Client and Stantec shall attempt to resolve any dispute between them arising out of or in connection with this Agreement by entering into structured non-binding negotiations with the assistance of a mediator on a without prejudice basis. The mediator shall be appointed by agreement of the parties. The Parties agree that any actions under this Agreement will be brought in the appropriate court in the jurisdiction of Governing Law, or elsewhere by mutual agreement. Nothing herein however prevents Stantec from any exercising statutory lien rights or remedies in accordance with legislation where the project site is located.
ATTORNEYS FEES: In the event of a dispute hereunder, the prevailing party is entitled to recover from the other party all costs incurred by the prevailing party in enforcing this Agreement and prosecuting the dispute, including reasonable attorney’s and expert’s fees, whether incurred through formal legal proceedings or otherwise.
ASSIGNMENT AND SUCCESSORS: The Client shall not, without the prior written consent of Stantec, assign the benefit or in any way transfer the obligations of this Agreement or any part hereof. This Agreement shall inure to the benefit of and be binding upon the parties hereto, and except as otherwise provided herein, upon their executors, administrators, successors, and assigns.
PROTECTION OF PRIVACY LAWS: The parties acknowledge that information relating to an identified or identifiable person (“Personal Information”) may be exchanged in the course of this Project pursuant to this Agreement.
The party disclosing Personal Information (the “Disclosing Party”) warrants that is has all necessary authorizations and approvals required to process and disclose the Personal Information and to enable the party receiving the Personal Information (the “Receiving Party”) to process it in performing the Services. The Disclosing Party will provide the Receiving Party with written notice containing the details of what Personal Information will be provided.
The Receiving Party will comply with any reasonable instruction from the Disclosing Party in respect of such Personal Information and implement appropriate technical and organization measures to protect the Personal Information against unauthorized or unlawful processing and accidental loss, theft, use, disclosure, destruction and/or damage.
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash PROFESSIONAL SERVICES AGREEMENT Page 5
C:\Users\smcilroy\OneDrive - Stantec\Documents\Patterson\Generic Professional Services Agreement - EN.dotm The Receiving Party shall be permitted, upon prior written consent of the Disclosing Party, to transfer Personal Information outside the jurisdiction if required for performance of the Services provided that such transfers are in accordance with relevant and applicable requirements under applicable legislation. The Receiving Party shall provide the Disclosing Party with full cooperation and assistance in meeting its obligations under applicable privacy legislation, including in relation to the security of processing, the notification of Personal Information breaches, the notification of requests from individuals and Personal Information protection impact assessments.
On termination of this Agreement, the Receiving Party shall cease processing Personal Information and shall delete and destruct or return to the Disclosing Party (as the Disclosing Party may require) all Personal Information held or processed by the Receiving Party on the Disclosing Party’s behalf. It is understood however, that the Receiving Party may need to keep a copy of all Personal Information for legal purposes and therefore it will continue to take reasonable steps to protect the Personal Information as outlined herein and will proceed with the destruction of the Personal Information within a reasonable period of time if there is no longer any legal justification to keep the Personal Information.
Nothing herein relieves either party from their responsibilities for compliance with applicable privacy legislation.
ENTIRE AGREEMENT: This Agreement constitutes the sole and entire agreement between the Client and Stantec relating to the Project and supersedes all prior agreements between them, whether written or oral respecting the subject matter hereof and no other terms, conditions, or warranties, whether express or implied, shall form a part hereof. This Agreement may be amended only by written instrument signed by both the Client and Stantec. All attachments referred to in this Agreement are incorporated herein by this reference; however, in the event of any conflict between attachments and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall take precedence.
SEVERABILITY: If any term, condition, or covenant of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall be binding on the Client and Stantec.
CONTRA PROFERENTEM: The parties agree that in the event this Agreement is subject to interpretation or construction by a third party, such third party shall not construe this Agreement or any part of it against either party as the drafter of this Agreement.
BUSINESS PRACTICES: Each Party shall comply with all applicable laws, contractual requirements and mandatory or best practice guidance regarding improper or illegal payments, gifts or gratuities, and will not pay, promise to pay or authorize the payment of any money or anything of value, directly or indirectly, to any person (whether a government official or private individual) or entity for the purpose or illegally or improperly inducing a decision or obtaining or retaining business in connection with this Agreement or the Services.
THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THIS AGREEMENT CONTAINS LIMITATION OF LIABILITY PROVISIONS RESTRICTING RIGHTS FOR THE RECOVERY OF DAMAGES.
The Parties, intending to be legally bound, have made, accepted, and executed this Agreement as of the Agreement Date noted above.
City of Patterson Stantec Consulting Services Inc.
Print Name and Title Print Name and Title
Signature Signature
Print Name and Title Print Name and Title
Signature Signature
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash
PROFESSIONAL SERVICES AGREEMENT
ATTACHMENT “A”
C:\Users\smcilroy\OneDrive - Stantec\Documents\Patterson\Generic Professional Services Agreement - EN.dotm Attached to and forming part of the Agreement BETWEEN:
City of Patterson
(Hereinafter called the “Client”)
- and -
Stantec Consulting Services Inc.
(Hereinafter called “Stantec”)
EFFECTIVE: April 24, 2023
This Attachment details the Services, Contract Time, Contract Price, Additional Conditions and Additional Attachments forming part of the above-described Agreement.
SERVICES: Stantec shall perform the following Services:
See attached letter proposal dated April 24, 2023
(Hereinafter called the “Services”)
CONTRACT TIME: Commencement Date: April 24, 2023
Estimated Completion Date: April 24, 2024
CONTRACT PRICE: Subject to the terms below, Client will compensate Stantec as follows:
See attached letter proposal dated April 24, 2023
Project specific charges, such as subconsultants; travel, accommodations, and meals; project-specific printing of deliverables; consumables; usage charges for specialized field equipment and company-owned, leased, or rented project vehicles; external testing lab charges and other external services charges; specialized computer software costs; and other significant project-specific expenses will be invoiced in addition to labor fees and to the FRD.
Where not stated as being included in the fees, project specific subconsultant, contractor, lab and other similar third-party charges will be charged as invoiced to Stantec with a ten percent (10%) markup.
Unless otherwise noted, the fees in this agreement do not include any value added, sales, or other taxes that may be applied by Government on fees for services. Such taxes will be added to all invoices as required.
Where the Services or services conditions change, Stantec shall submit to the Client in a timely manner, documentation of the revisions to Attachment “A” adjusting the Contract Services Time and Price as required.
Unless otherwise specified, charges for Services are based on Stantec’s hourly billing rate table (“Rate Table”), attached hereto. The Rate Table is subject to escalation from time to time. At a minimum, effective each January 1 during the term of this Agreement, Stantec’s charges for Services shall escalate by either (a) the most current Consumer Price Index year over year percentage increase, not seasonally adjusted, for the preceding July, all items, as published by Statistics Canada (for Projects in Canada) plus 1.0%, or (b) the most current Consumer Price Index for All Urban Consumers (CPI-U) year over year percentage increase, not seasonally adjusted, for the preceding July, as published by the U.S. Bureau of Labor Statistics plus 1.0% (for all other projects).
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash
PROFESSIONAL SERVICES AGREEMENT
ATTACHMENT “A” Page 2
C:\Users\smcilroy\OneDrive - Stantec\Documents\Patterson\Generic Professional Services Agreement - EN.dotm
ADDITIONAL
CONDITIONS:
The following additional conditions shall be read in conjunction with and constitute part of this Agreement:
[Click and insert additional items. If none, type 'No additional conditions' or similar wording.] COVID-19: The parties acknowledge the ongoing COVID-19 pandemic and agree that the CONTRACT PRICE and CONTRACT TIME are based on what is currently understood. Where conditions change, the parties may have further discussions to manage and mitigate the impact of this evolving situation on the Project.
ADDITIONAL
ATTACHMENTS:
The following additional attachments shall be read in conjunction with and constitute part of this Agreement:
Rate Table
INSURANCE
REQUIREMENTS:
Before any services are provided under this agreement, Stantec shall procure, and maintain insurance coverage during the term of this agreement.
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash SCHEDULE OF BILLING RATES – 2023
Billing
Level
Hourly
Rate Description
3 4
5 $122
$129
$145
Junior Level position
Independently carries out assignments of limited scope using standard procedures, methods and techniques
Assists senior staff in carrying out more advanced procedures Completed work is reviewed for feasibility and soundness of judgment Graduate from an appropriate post-secondary program or equivalent Generally, one to three years experience
6 7
8 $150
$164
$170
Fully Qualified Professional Position
Carries out assignments requiring general familiarity within a broad field of the respective profession
Makes decisions by using a combination of standard methods and techniques Actively participates in planning to ensure the achievement of objectives Works independently to interpret information and resolve difficulties Graduate from an appropriate post-secondary program, with credentials or equivalent Generally, three to six years experience
9 10
11 $178
$187
$200
First Level Supervisor or first complete Level of Specialization Provides applied professional knowledge and initiative in planning and coordinating work programs
Adapts established guidelines as necessary to address unusual issues Decisions accepted as technically accurate, however may on occasion be reviewed for soundness of judgment
Graduate from an appropriate post-secondary program, with credentials or equivalent Generally, five to nine years experience
12 13
14 $211
$220
$238
Highly Specialized Technical Professional or Supervisor of groups of professionals Provides multi-discipline knowledge to deliver innovative solutions in related field of expertise
Participates in short and long range planning to ensure the achievement of objectives Makes responsible decisions on all matters, including policy recommendations, work methods, and financial controls associated with large expenditures Reviews and evaluates technical work
Graduate from an appropriate post-secondary program, with credentials or equivalent Generally, ten to fifteen years experience with extensive, broad experience 15 16
17 18
$250
$267
$275
$276
Senior Level Consultant or Management
Recognized as an authority in a specific field with qualifications of significant value Provides multidiscipline knowledge to deliver innovative solutions in related field of expertise
Independently conceives programs and problems for investigation Participates in discussions to ensure the achievement of program and/or project objectives
Makes responsible decisions on expenditures, including large sums or implementation of major programs and/or projects
Graduate from an appropriate post-secondary program, with credentials or equivalent Generally, more than twelve years experience with extensive experience Note: Rates subject to 4% escalation at end of calendar year. 323
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Attachment: Salado Creek Agreement_near_Hwy_33_ (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash 0’
0” ¼” ½” ¾” 1”
625’ 1250’ 1875’ 2500’
SCALE 1” = 2500’ IF BAR DOES NOT MEASURE 1”
THEN DRAWING IS NOT TO SCALE
CALIFORNIA AQUEDUCT
CALIFORNIA AQUEDUCT
DELTA MENDOTA CANAL
DELTA MENDOTA CANAL
City Of Patterson
For Internal Use 8-22-2017
DATE: September 2017
Preliminary Jurisdictional Map
Order No. 2013-001-DWQ
Legend
Areas of Existing
Development Acreage
High Density Residential
Commercial
Mixed Urban
Industrial
P Existing Drainage Pump Stations
Existing Storm Drains
Existing Open Channels and Ditches
Existing Detention Basins
City Limits
Parcels
Existing Creeks
!(B Bus Stops
5 5
#
Area Acres
1 66.
7 2 25.3
3 41.
7 4 44.8
5 53.1
6 8.9
7 13.1
8 33.1
9 1.0
10 1.3
11 1.6
12 2.3
13 4.8
14 20.3
15 163.1
16 54.
7 17 15.3
18 106.
2 19 16.7
20 11.2
21 3.4
22 8.9
Total 697.7
Priority Land Use Area with
Existing Development
Existing Catch Basins
V:\1840\active\184010229\graphics\patterson_jurisdictonal_map_internal.ai mlm 8-8-2017 GIS: V:\1840\active\184010229\graphics\gis\mxd\patterson_jurisdictional_map_internal.mxd mlm 8-8-2017
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Attachment: City_of_Patterson_Jurisdictional_Map_2017 (Consulting Agreement with Stantec Consulting Services, Inc. for Design of Full Trash City Council Agenda Report
TO: Mayor Clauzel and Members of the City Council
FROM: Ken Irwin, City Manager
BY: Mike Willett, Public Works Director
MEETING DATE: August 15, 2023
ITEM NO: 7.6
SUBJECT: Approve Resolution No. 2023-41 Approving a Cost-Sharing Agreement for the San Joaquin Valley Storm Water Quality Partnership (SJVSWQP); Authorizing the City Manager or his Designee to Execute the Agreement; and Authorizing the City to Partner for Stormwater Management Activities for Cost Sharing Purposes.
RECOMMENDATION
Motion to Approve Resolution No. 2023-41Approving a Cost-Sharing Agreement for the San Joaquin Valley Storm Water Quality Partnership (SJVSWQP); Authorizing the City Manager or his Designee to Execute the Agreement; and Authorizing the City to Partner for Stormwater Management Activities for Cost Sharing Purposes.
BACKGROUND
The State Water Resources Control Board (SWRCB) Municipal Storm Water Program manages National Pollutant Discharge Elimination System (NPDES) permits for Phase I (servicing municipalities over 100,000 people) & II Permit (servicing municipalities less than 100,000 people) Programs. Agencies under the State Stormwater Program have the option to contribute to a regional storm water program to collaborate on public outreach activities in order to meet the permit requirements and reduce their individual program costs and increase levels of service through cost sharing.
The San Joaquin Valley Storm Water Quality Partnership (SJVSWQP) began in 2006 as a partnership with four San Joaquin Valley cities, and the County of San Joaquin. The partnership plans and implements various mandates to ensure compliance with stormwater regulations.
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Since 2006, the partnership has grown and now covers additional cities and counties. As of 2023, the partnership has grown from six to twenty-one agencies and includes participation of various stormwater consulting firms that have expertise in regulations and compliance. The partnership has been highly successful over the years, and this has helped agencies to manage their stormwater programs more effectively and efficiently. Some examples of accomplishments of this partnership include:
Standardizing Outreach & Education Materials (on-going) Group Subscriptions & Membership to California Association Stormwater Quality Association (CASQA)
Radio Ads
Multi-Agency Construction Standards Manuals (as needed to comply with regulations) Advertising & Printing of Materials (as needed)
Consultant Services (as needed to comply with requirements) Regional Stormwater Trainings (Annual)
Partnership Website (sjvswqp.org )
Special Programs & Events
Pyrethroids Management Plan & Program Implementation
ANALYSIS
Attached for review and approval is the updated Cost Sharing Agreement that was developed for the growing partnership. In 2014 a Letter of Agreement was signed by the city but requires an update. This new agreement would allow the partnership to continue to expand the cost sharing efforts as the partnership grows and new requirements are mandated by the State.
The Cost-Sharing Agreement will establish updated membership dues for the partnership, program administration costs, cost sharing minimum and maximum annual contributions, and shared costs for typical items such as 1) Consulting Services, 2) Group Subscriptions, 3) Special Programs or Events, Printing, Advertising, and sets the methodology for the cost sharing which is based by population.
The attached agreement is the FINAL DRAFT and has been reviewed by all participating agencies and their management and legal teams. If approved, the agencies will finalize, print, and execute the agreement.
FISCAL IMPACT
The City’s share cost for the partnership membership dues, partnership cost sharing, and special stormwater program implementation are budgeted and funded every year in the Sewer Fund (605-791).
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RESOLUTION NO. 2023-41
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PATTERSON,
APPROVING AND AUTHORIZING THE EXECUTION OF A COST SHARING
AGREEMENT BY THE CITY MANAGER OR HIS DESIGNEE WITH THE SAN JOAQUIN VALLEY STORM WATER QUALITY PARTNERSHIP (“SJVSWQP”) FOR
PARTICIPATION IN STORM WATER MANAGEMENT ACTIVITIES
WHEREAS, the State Water Resources Control Board (SWRCB) Municipal Storm Water Program manages National Pollutant Discharge Elimination System (NPDES) permits for Phase I (servicing municipalities over 100,000 people) & II Permit (servicing municipalities less than 100,000 people) Programs. Agencies under the State Stormwater Program have the option to contribute to a regional storm water program to collaborate on public outreach activities in order to meet the permit requirements and reduce their individual program costs and increase levels of service through cost sharing; and
WHEREAS, the SJVSWQP began in 2006 as a partnership with San Joaquin Valley agencies to collaborate on the implementation of various mandates to ensure compliance with stormwater regulations; Since then, the partnership has grown and now covers additional agencies and counties. As of 2023, the partnership has grown to over 21 agencies and continues to become more valuable and resourceful; and
WHEREAS, the SJVSWQP has been successful over the years, and continues to assist agencies to manage their stormwater programs more effectively and efficiently; and WHEREAS, the Cost-Sharing Agreement will establish updated membership dues for the partnership, program administration costs, cost sharing minimum and maximum annual contributions, and shared costs for typical items such as 1) Consulting Services, 2) Group Subscriptions, 3) Special Programs or Events, Printing, Advertising, and sets the methodology for the cost sharing which is based by population; and
WHEREAS, the City of Patterson along with other agencies in the partnership wish to continue the partnership to accomplish the following through the Cost Share Agreement:
• Standardizing Outreach & Education Materials
• Group Subscriptions & Membership to California Association Stormwater Quality Association (CASQA)
• Radio Ads
• Multi- Agency Construction Standards Manuals (as needed to comply with regulations) • Regional Partnership (i.e., Pyrethroids Management Program) • Advertising & Printing of Materials (as needed)
• Consultant Services (as needed to comply with requirements) • Regional Stormwater Trainings
• Partnership Website (www.sjvswqp.org )
• Special Programs & Events as necessary
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Attachment: Resolution No. 2023-41 Approve_Cost_Share_Agreement_for_SJVSWQP (Approve Resolution No. 2023-41 Approving a Cost- NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Patterson that said City Council authorizes the approval and execution by the City Manager or his Designee of the San Joaquin Valley Storm Water Quality Partnership Cost-Share Agreement; and The foregoing resolution was passed by the City Council at a regular meeting held on the 15th day of August 2023, by , who moved its adoption, which motion was duly seconded by , and
the resolution adopted by the following roll call vote:
AYES:
NOES:
EXCUSED:
APPROVED:
Michael Clauzel
Mayor of the City of Patterson
ATTEST:
Aracely Alegre
City Clerk of the City of Patterson
I hereby certify that the foregoing is a full, correct, and true copy of a resolution passed by the City Council of the City of Patterson, a Municipal Corporation of the County of Stanislaus, State of California, at a regular meeting held on the 15th day of August 2023, and I further certify that said resolution is in full force and effect and has never been rescinded or modified.
DATED:
City Clerk of the City of Patterson
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Attachment: Resolution No. 2023-41 Approve_Cost_Share_Agreement_for_SJVSWQP (Approve Resolution No. 2023-41 Approving a Cost- Stormwater
Program
Partnership
“Working Together to Protect Rainwater”
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Attachment: Stormwater_Partnership_Presentation_-_Council_8-15-23 (Approve Stormwater –What is it & Why does it Matter?
• Stormwater is “Rainwater” that runs off from land or impervious surfaces without percolating into the ground.
• It’s the rainwater that flows directly to water bodies through a municipal separate storm drainage system without treatment.
• Patterson’s storm drainage system is composed of drain inlets, storm lines, and storm basins that drain directly to Salado Creek and into the San Joaquin River. • Stormwater is part of the larger water supply picture. • Conserving Water is important, but so is Protecting & Collecting Rainwater for beneficial purposes • Recharging groundwater
• Irrigating our parks, properties and public landscaping • Creating beautiful public spaces
• Help reduce flooding
• Sustaining waterways and wildlife during the dry season • Stormwater is a valuable resource and provides multiple benefits. 2 7.6.b
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Attachment: Stormwater_Partnership_Presentation_-_Council_8-15-23 (Approve Stormwater Regulations
• Environmental Protection Agency (EPA) Clean Water Act 1972 that prohibits pollutants from entering waters of the U.S. (Federal)
• National Pollutant Discharge Elimination System (NPDES) regulates storm water discharges (State)
• Stormwater MS4 Phase II Permit (Local), which requires: • NPDES Permit (Adopted 2003, re-adopted in 2013) • Storm Water Management Plan & Program (SWMP)
• Application Requirements (Submit Guidance Documents to the State via Storm Water Multiple Application & Report Tracking System (SMARTS).
• Program Management (Includes an Enforcement Response Plan) • Education & Outreach (Public & Staff)
• Public Involvement & Participation (Development & Implementation of Activities) • Illicit Discharge Detection and Elimination (Detect, Investigate & Eliminate Illicit Discharges) • Construction (Construction Site Inventory, Construction Plan Review/Approval, Inspection & Enforcement)
• Pollution Prevention / Good Housekeeping
• Post Construction
• Monitoring
• Program Effectiveness and Assessment
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Attachment: Stormwater_Partnership_Presentation_-_Council_8-15-23 (Approve Background of SJVSWQP
• Overwhelming regulations and limited resources available • San Joaquin Valley Storm Water Quality Partnership (SJVSWQP) • Partnership was established 2003 mainly covering the San Joaquin Valley area.
• Started with collaboration from 6 Cities
• City of Patterson partnered up since 2004/05
• Since then, the partnership has grown – currently over 21 municipalities covering San Joaquin, Stanislaus, and Merced Counties. Sometimes as far as Sacramento County.
• Stormwater professionals (consultants, vendors, engineers, etc.) • Successful cooperation and partnership continues to grow! 4 7.6.b
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Attachment: Stormwater_Partnership_Presentation_-_Council_8-15-23 (Approve Purpose
• In accordance with Stormwater regulations (federal, state, and local) and Stormwater Management Plans, each agency is required to reduce pollution from its storm drainage system.
• Many agencies have limited resources due to limited funding sources allocated to implement program(s) and ensure compliance. • The partners are communities that have populations of 100,000 or less and that are regulated by the State’s Municipal Separate Storm System (MS4) Phase II permit regulations that became effective on March 23, 2003.
• Letter of Agreement in place for the partnership, but moving to a Cost-Sharing Agreement in 2023.
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Attachment: Stormwater_Partnership_Presentation_-_Council_8-15-23 (Approve Vision
• Work together to comply with the new Stormwater Permit criteria effectively. • Work together on the Public Outreach Activities, e.g., radio ads, brochures, newsletter articles, etc. • Keep updating short/long term goals on stormwater quality improvement and its applications. • Participate in local public outreach and education programs, e.g., Earth Day events, school activities, community clean-up events, regional trainings, etc.
• Serve the Public in the most optimized and effective way by sharing resources and keeping costs down through cost-sharing.
• Working together to achieve the goals on the Better Environment with our efforts, experiences, and knowledge. • Share information and ideas in order to collaborate, discuss, address similar stormwater issues on a regional level.
6 7.6.b
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Attachment: Stormwater_Partnership_Presentation_-_Council_8-15-23 (Approve Partnership Efforts
• Standardizing Outreach & Education Materials (on-going) • Multi-Agency Post Construction/Low Impact Development Standards Manual (Adopted 2015)
• Radio Ads (Annual)
• Advertising & Printing of Materials (As needed)
• Consultant Services
• Special Programs & Events • Clean up Events
• Pyrethroids Management Plan & Program Implementation (2021/22) • Regional Trainings (Annual)
• Website (www.sjvswqp.org) • Working together to re-design the partnership website that can be a centralized Hub of stormwater program information for all participating agencies.
• City of Patterson lead agency for this project.
7 7/31/2023 Add a footer
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Attachment: Stormwater_Partnership_Presentation_-_Council_8-15-23 (Approve Current & Upcoming Program Activities
• State is currently updating MS4 Phase II Permit (August 2023) • Staff to bring more information on new upcoming requirements under new permit.
New permit will add new requirements. Last permit adoption 2003. • Currently working on Trash Implementation Program (ways to control trash), Pyrethroids Management Program (ways to control pesticides), and compliance. • Continue the implementation of Stormwater Management Plan & Multi-Agency Stormwater Resources Plan with existing resources.
• Continue to utilize partnership as a cost-effective way to ensure compliance with stormwater regulations.
• Seek grant opportunities to expand program and improve our storm drainage system to help address flooding, remove trash, and improve our water quality and recharge groundwater.
• Continue to implement Low Impact Development (LID) for new development. • Continue participating in the Delta Regional Monitoring Program (RMP) • Patterson represents the partners on the Executive Committee and Board of Directors 8 7.6.b
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Attachment: Stormwater_Partnership_Presentation_-_Council_8-15-23 (Approve Questions?
Collaborating to Ensure Stormwater Compliance in the Most Cost Effective Way!
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Attachment: Stormwater_Partnership_Presentation_-_Council_8-15-23 (Approve
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Attachment: SJVSWQP_Cost_share_agreement_FINAL_DRAFT_8-15-23 (Approve Resolution No. 2023-41 Approving a Cost-Sharing
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Attachment: SJVSWQP_Cost_share_agreement_FINAL_DRAFT_8-15-23 (Approve Resolution No. 2023-41 Approving a Cost-Sharing
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Attachment: SJVSWQP_Cost_share_agreement_FINAL_DRAFT_8-15-23 (Approve Resolution No. 2023-41 Approving a Cost-Sharing
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Attachment: SJVSWQP_Cost_share_agreement_FINAL_DRAFT_8-15-23 (Approve Resolution No. 2023-41 Approving a Cost-Sharing
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Attachment: SJVSWQP_Cost_share_agreement_FINAL_DRAFT_8-15-23 (Approve Resolution No. 2023-41 Approving a Cost-Sharing
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Attachment: SJVSWQP_Cost_share_agreement_FINAL_DRAFT_8-15-23 (Approve Resolution No. 2023-41 Approving a Cost-Sharing
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Attachment: SJVSWQP_Cost_share_agreement_FINAL_DRAFT_8-15-23 (Approve Resolution No. 2023-41 Approving a Cost-Sharing
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Attachment: SJVSWQP_Cost_share_agreement_FINAL_DRAFT_8-15-23 (Approve Resolution No. 2023-41 Approving a Cost-Sharing
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Attachment: SJVSWQP_Cost_share_agreement_FINAL_DRAFT_8-15-23 (Approve Resolution No. 2023-41 Approving a Cost-Sharing
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Attachment: SJVSWQP_Cost_share_agreement_FINAL_DRAFT_8-15-23 (Approve Resolution No. 2023-41 Approving a Cost-Sharing
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Attachment: SJVSWQP_Cost_share_agreement_FINAL_DRAFT_8-15-23 (Approve Resolution No. 2023-41 Approving a Cost-Sharing
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Attachment: SJVSWQP_Cost_share_agreement_FINAL_DRAFT_8-15-23 (Approve Resolution No. 2023-41 Approving a Cost-Sharing
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Attachment: SJVSWQP_Cost_share_agreement_FINAL_DRAFT_8-15-23 (Approve Resolution No. 2023-41 Approving a Cost-Sharing City Council Agenda Report
TO: Mayor Clauzel and Members of the City Council
FROM: Ken Irwin, City Manager
BY: Mike Willett, Public Works Director
MEETING DATE: August 15, 2023
ITEM NO: 7.7
SUBJECT: Approve Resolution No. 2023-42, Authorizing the Acceptance of a Caltrans Department of Transportation Clean California Grant and Appropriate Grant Funds in the Amount of $8,028 to Reimburse City Expenses for the Community Recycling Day Event and Authorizing the Finance Department to Adjust the Fiscal Year 2023-24 Budget.
RECOMMENDATION
Motion to Approve Resolution No. 2023-42, Authorizing the Acceptance of a Caltrans Department of Transportation Clean California Grant and Appropriate Grant Funds in the Amount of $8,028 to Reimburse City Expenses for the Community Recycling Day Event and Authorizing the Finance Department to Adjust the Fiscal Year 2023-24 Budget.
BACKGROUND
The City of Patterson will host the second of its two times per year, Community Recycling Day Event, on August 26, 2023. The event will be held in the Aquatics Center Parking Lot, at 1033 W. Las Palmas Avenue and will include recycling opportunities for household hazardous waste, e-waste, tires, mattresses, and paper shredding. Partners of the event include Bertolotti Disposal, Stanislaus County, Greater Valley Conservation Corps, Stericycle, Clean California (Caltrans).
The Clean California initiative is a multiyear clean-up effort led by Caltrans to keep roads and waterways free of litter, create thousands of jobs, and transform state and local public spaces through beautification efforts. As part of the litter collection component, Caltrans is supporting community events where the public can dispose of household waste safely and properly for free.
Caltrans refers to these events as Dump Day events. The City of Patterson’s Community Recycling Day Event qualifies for a grant opportunity that pays for City expenses incurred to
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host the event. These fees include advertising, labor, hauling materials and other recycling vendor services.
ANALYSIS
Caltrans and the City of Patterson agree to provide free Dump Day events for City of Patterson residents as part of the Clean California initiative. Parties are authorized to enter into a cooperative agreement for improvements to the State Highway System per the California Streets and Highways Code, Sections 114 and 130 and attached as Attachment “A”.
FISCAL IMPACT
There is no direct fiscal impact to the city and this grant has no match requirements. All grant funds received are revenues that are utilized for eligible costs incurred for the City’s Community Recycling Day Event. The total grant award amount is $8,028, per estimate attached as Exhibit “A” to the agreement. The grant revenue of $8,028 will be appropriated in the City of Patterson FY 2023-24 Budget for eligible costs.
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RESOLUTION NO. 2023-42
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PATTERSON,
AUTHORIZING THE ACCEPTANCE OF A CALTRANS DEPARTMENT OF
TRANSPORTATION CLEAN CALIFORNIA GRANT AND APPROPRIATE GRANT FUNDS IN THE AMOUNT OF $8,028 TO REIMBURSE CITY EXPENSES FOR THE
COMMUNITY RECYCLING DAY EVENT AND AUTHORIZING THE
FINANCE DEPARTMENT TO ADJUST THE FISCAL YEAR 2023-24 BUDGET WHEREAS, the City of Patterson will host the second of its two times per year, Community Recycling Day Event, on August 26, 2023. The event will be held in the Aquatics Center Parking Lot, at 1033 W. Las Palmas Avenue and will include recycling opportunities for household hazardous waste, e-waste, tires, mattresses, and paper shredding. Partners of the event include Bertolotti Disposal, Stanislaus County, Greater Valley Conservation Corps, Stericycle, Clean California (Caltrans); and
WHEREAS, the Clean California initiative is a multiyear clean-up effort led by Caltrans to keep roads and waterways free of litter, create thousands of jobs, and transform state and local public spaces through beautification efforts. As part of the litter collection component, Caltrans is supporting community events where the public can dispose of household waste safely and properly for free. Caltrans refers to these events as Dump Day events. The City of Patterson’s Community Recycling Day Event qualifies for a grant opportunity that pays for City expenses incurred to host the event. These fees include advertising, labor, hauling materials and other recycling vendor services; and
WHEREAS, Caltrans and the City of Patterson agree to provide free Dump Day events for City of Patterson residents as part of the Clean California initiative. Parties are authorized to enter into a cooperative agreement for improvements to the State Highway System per the California Streets and Highways Code, Sections 114 and 130 and attached as Attachment “A”; and WHEREAS, there is no direct fiscal impact to the city and this grant has no match requirements. All grant funds received are revenues that are utilized for eligible costs incurred for the City’s Community Recycling Day Event. The total grant award amount is $8,028, per estimate attached as Exhibit “A” to the agreement. The grant revenue of $8,028 will be appropriated in the City of Patterson FY 2023-24 Budget for eligible costs.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Patterson that said City Council authorizes the acceptance of a Caltrans Department of Transportation Clean California Grant and appropriate grant funds in the amount of $8,028 to reimburse City expenses for the Community Recycling Day Event and authorizes the Finance Department to adjust the Fiscal Year 2023-24 Budget.
The foregoing Resolution was passed by the City Council at a regular meeting held on the 15 th day of August 2023, by , who moved its adoption, which motion was duly seconded by , and
the resolution adopted by the following roll call vote:
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Attachment: Resolution No. 2023-42 Caltrans_Grant_Application (Resolution No. 2023-42, CaltranTransportation Clean California Grant) AYES:
NOES:
EXCUSED:
APPROVED:
Michael Clauzel
Mayor of the City of Patterson
ATTEST:
Aracely Alegre
City Clerk of the City of Patterson
I hereby certify that the foregoing is a full, correct, and true copy of a resolution passed by the City Council of the City of Patterson, a Municipal Corporation of the County of Stanislaus, State of California, at a regular meeting held on the 15 th day of August 2023, and I
further certify that said resolution is in full force and effect and has never been rescinded or modified.
DATED:
City Clerk of the City of Patterson
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Attachment: Resolution No. 2023-42 Caltrans_Grant_Application (Resolution No. 2023-42, CaltranTransportation Clean California Grant)
DUMP DAY EVENT AGREEMENT
THIS AGREEMENT is made this Monday, 10th day of July 2023, by and between the State of California, acting by and through the Department of Transportation, hereinafter referred to as CALTRANS; and the City/County of Patterson, hereinafter referred to as “LOCAL AGENCY”; and collectively referred to as “PARTIES.”
The Clean California initiative is a multiyear clean-up effort led by CALTRANS to keep roads and waterways free of litter, create thousands of jobs, and transform state and local public spaces through beautification efforts. As part of the litter collection component, CALTRANS is proposing free dump day events where the public can dispose of household waste safely and properly for free (Dump Day events).
CALTRANS and LOCAL AGENCY, agree to provide free Dump Day events for LOCAL AGENCY’s residents as part of the Clean California initiative.
PARTIES are authorized to enter into a cooperative agreement for improvements to the State Highway System per the California Streets and Highways Code, Sections 114 and 130.
PARTIES MUTALLY AGREE TO DO THE FOLLOWING:
1. PARTIES shall publicize Dump Day events by informing the public that they may dispose of certain household waste items safely and properly for free, at the following locations and dates:
August 26th between 8am-12pm or until full at the Hammon Senior Center, 1033. W Las Palmas, Patterson, Ca
2. CALTRANS agrees to reimburse the LOCAL AGENCY 100% (100 percent) of cost for, including but not limited to labor, equipment and/or dumping fees expended for Dump Day events (Dump Day Costs) up to the maximum Contract Sum stated in this Agreement.
3. CALTRANS has agreed to reimburse LOCAL AGENCY, an amount not to exceed $8,028.00to fulfill its obligations under this AGREEMENT as represented in estimate attached as Exhibit “A”.
4. CALTRANS’ obligations under this AGREEMENT are subject to the appropriation of resources by the Legislature and the State Budget Act authority.
5. Based on the amount of trash collected during the Dump Day events, LOCAL AGENCY shall send its invoices to CALTRANS within 45 days of the Dump Day event for the latter’s share of the Dump Day Costs.
ATTACHMENT “A”
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Packet Pg. 100 Attachment: Attachment Approved_Caltrans_Grant_Agreement (Resolution No. 2023-42, CaltranTransportation Clean California Grant)
6. LOCAL AGENCY shall send invoices to the Caltrans District Clean CA District 10 Coordinator. The itemized invoice shall contain the following:
(a) STATE’s Clean California Program Code: CLEANCADMP;
(b) AGREEMENT number;
(c) Date(s) of services;
(d) Location of services;
(e) Number of hours and hourly rates;
(f) Receipts for trash disposal;
(g) Receipts for equipment, materials, and supplies; and (h) LOCAL AGENCY’s Performance Report that includes tonnage and/or cubic yard measurement of litter/debris disposed.
CALTRANS
Sam Sherman, Acting D10 Clean California Coordinator
Calif Dept of Transportation
District 10 - Clean California
P.O. Box 2048
Stockton, CA 95201
Mobile Phone: (209) 482-2575
Email: [email protected]
CITY OF PATTERSON
Michael Renfrow, Management Analyst
1 Plaza
Patterson, Ca, 95363
Office Phone: (209) 895-8060
Email: [email protected]
7. Upon review and approval of invoice by the District Clean California Coordinator, CALTRANS shall pay LOCAL AGENCY within forty-five (45) calendar days of receipt of invoices. Payment will be made in accordance with the CA Prompt Payment Act, and within the time specified in Chapter 4.5, sections 927-927.13 of the Government Code.
8. When publicizing the Dump Day events, PARTIES shall inform the public that no hazardous materials will be accepted at the Transfer Stations/Landfills. However, if LOCAL AGENCY accepts hazardous materials, it shall do so at its own risk and responsibility and CALTRANS shall not pay disposal fees for such hazardous material.
9. Participating members of the public will be responsible for legally transporting waste to the Dump Day event.
10. LOCAL AGENCY shall provide the necessary equipment, tools, personal protective equipment, materials, supplies and products necessary to perform the services under this
7.7.b
Packet Pg. 101 Attachment: Attachment Approved_Caltrans_Grant_Agreement (Resolution No. 2023-42, CaltranTransportation Clean California Grant) AGREEMENT including refuse intake inspection by staff qualified to identify hazardous materials, transportation, loading and unloading, and handling of Dump Day refuse.
11. CALTRANS does not accept nor take any responsibility for generation of any waste streams, including hazardous materials, associated with the Dump Day event(s).
12. All services performed by LOCAL AGENCY pursuant to this AGREEMENT are intended to be performed in accordance with all applicable Federal, State and LOCAL AGENCY laws, ordinances, and regulations. In case of a conflict between Federal, State and LOCAL AGENCY laws, ordinances, or regulations, the order of precedence applicability of these laws shall be Federal, State and then LOCAL AGENCY laws and regulations, respectively.
13. The total amount CALTRANS will reimburse to LOCAL AGENCY pursuant to this AGREEMENT shall not exceed $8,028.00 (“Contract Sum”). Costs incurred by LOCAL AGENCY for PROJECT work under this AGREEMENT in excess of the Contract Sum will be borne by LOCAL AGENCY. It is understood and agreed that this AGREEMENT fund limit is an estimate, and that CALTRANS will only reimburse the actual cost of services rendered as authorized by the CALTRANS Contract Manager or designee at or below the fund limitation amount set forth in this AGREEMENT.
14. This AGREEMENT may only be amended or modified by mutual written agreement of the PARTIES.
15. This AGREEMENT will end on June 30, 2024. This AGREEMENT may be terminated by the PARTIES upon mutual written agreement. In the event of a termination CALTRANS will reimburse LOCAL AGENCY all allowable, authorized, and noncancellable obligations and costs incurred by LOCAL AGENCY prior to the termination.
16. Neither CALTRANS nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by LOCAL AGENCY, its contractors, sub-contractors, general public, and/or its agents under or in connection with any work (including hazardous materials), authority, or jurisdiction conferred upon LOCAL AGENCY under this AGREEMENT. It is understood and agreed that LOCAL AGENCY, to the extent permitted by law will defend, indemnify, and save harmless CALTRANS and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories and assertions of liability occurring by reason of anything done or omitted to be done by LOCAL AGENCY, its contractors, sub-contractors, general public, and/or its agents under this AGREEMENT. PARTIES will continue to work together to plan future events.
PARTIES are authorized to enter into this AGREEMENT and have delegated to the undersigned the authority to execute this AGREEMENT on behalf of the respective agencies and hereby covenant to have followed all the necessary legal requirements to validly execute this
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Packet Pg. 102 Attachment: Attachment Approved_Caltrans_Grant_Agreement (Resolution No. 2023-42, CaltranTransportation Clean California Grant) AGREEMENT. By signing below, the PARTIES each expressly agree to execute this AGREEMENT electronically.
____________________ July 10, 2023_ ____________________ July 10, 2023 Jose Alicea Date Michael Renfrow Date
Acting Deputy District Director-Maintenance City of Patterson Caltrans District 10 Management Analyst
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Packet Pg. 103 Attachment: Attachment Approved_Caltrans_Grant_Agreement (Resolution No. 2023-42, CaltranTransportation Clean California Grant) EXHIBIT "A"
ITEM NO. DESCRIPTION DUTIES QUANTITY UNIT RATE COST
1 CITY STAFF
A. MANAGEMENT ANALYST ADMINISTRATION 24 HOURS $65.00 $1,560.00 B. COMPLIANCE SPECIALIST ADMINSTRATION/REPORTS 24 HOURS $50.00 $1,200.00 C. PUBLIC WORKS SUPERVISOR SUPERVISION 6 HOURS $40.00 $240.00 D. MAINTENANCE WORKER II TRAFFIC CONTROL 6 HOURS $40.00 $240.00 $3,240.00
2 GREATER VALLEY CONSERVATION CORPS STAFF
A. LEAD EWASTE/TIRES/MATTRESSES 16 HOURS $34.00 $544.00 B. CORPSMEMBERS EWASTE/TIRES/MATTRESSES 48 HOURS $28.00 $1,344.00 C. VEHICLES EWASTE/TIRES/MATTRESSES 2 EACH $100.00 $200.00 $2,088.00
ITEM NO. DESCRIPTION SERVICES QUANTITY UNIT RATE COST
1 BERTOLOTTI DISPOSAL MATTRESS RECYCLING 75 LUMP SUM $10.00 $750.00 2 FINK ROAD LAND FILL MATTRESS RECYCLING 75 LUMP SUM $10.00 $750.00 3 ABS DIRECT, INC. UTILITY INSERTS/ADVERTISING 1 LUMP SUM $700.00 $700.00 4 STERICYCLE PAPER SHREDDING 1 LUMP SUM $1,250.00 $1,250.00 5 TBD TBD 0 LUMP SUM $0.00 $0.00
6 TBD TBD 0 LUMP SUM $0.00 $0.00
$2,700.00
GRAND TOTAL $8,028.00
SUBTOTAL
SUBTOTAL
CITY OF PATTERSON COMMUNITY RECYCLING DAY ESTIMATED COSTS
PERSONNEL
SUBTOTAL
NOTES:
VENDOR
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Packet Pg. 104 Attachment: Exhibit_A-Caltrans_Grant_Budget (Resolution No. 2023-42, CaltranTransportation Clean City Council Agenda Report
TO: Mayor Clauzel and Members of the City Council
FROM: Ken Irwin, City Manager
BY: Ken Irwin, City Manager
MEETING DATE: August 15, 2023
ITEM NO: 7.8
SUBJECT: Approve the First Amendment to the Stanislaus Animal Services Agency Joint Powers Agency Agreement.
RECOMMENDATION
Motion to Approve the First Amendment to the Stanislaus Animal Services Agency Joint Powers Agency Agreement.
BACKGROUND
The Joint Powers Agency (JPA) Agreement establishing the Stanislaus Animal Services Agency (SASA) was made and entered into by and among the cities of Patters, Ceres, Hughson, Modesto, Waterford, and the County of Stanislaus on October 27, 2009. Under the powers and functions of the JPA agreement, SASA JPA board members are authorized to act on behalf of SASA in all matters necessary to carry out the SASA’s purposes. This includes the authority to employ staff, enter into contracts, acquire property, cooperate with other agencies, incur debts, accept funding, sue and be sued, adopt bylaws, and do all other acts that are reasonable and necessary to achieve SASA’s goals. The Board’s authority is broad and comprehensive, and it allows the Board to take all necessary steps to ensure that SASA is able to fulfill its mission.
ANALYSIS
On March 16, 2023, the JPA board voted to direct County staff to bring a draft amendment to section 3.3 of the SASA JPA Agreement with respect to the Agency’s manner of exercising its powers currently subject to the restrictions applicable to the City of Modesto being replaced by restrictions applicable to the County of Stanislaus. The proposed draft amendment was presented to the SASA JPA board and unanimously approved on May 18, 2023.
7.8 Packet Pg. 105
The attached First Amendment to the JPA Agreement updates the following section as follows, with the previous verbiage stricken for clarification on what has been removed.
3.3 Powers and Functions. The Agency shall have the common power of the Member Agencies to plan, establish, and exercise all government functions necessary to provide animal services for the benefit of the Member Agencies. Pursuant to Government Code Section 6509, the Agency’s manner of exercising such powers shall be subject to those restrictions applicable to the City of Modesto County of Stanislaus.
The terms of the original agreement remain in effect unless they conflict with this amendment.
The signatures of the parties to this agreement may be on separate pages or in counterparts, which, when attached to this amendment, constitute one complete amendment.
The SASA JPA Agreement First Amendment was approved by the County of Stanislaus Board of Supervisors at its regular meeting on June 20, 2023. The amendment will be fully executed upon 2/3 approval of the JPA Board members.
FISCAL IMPACT
There is no fiscal impact associated with the recommended Board action.
7.8 Packet Pg. 106
FIRST Amendment
To
Stanislaus Animal Services Agency Joint Powers Agency Agreement This First Amendment to the Stanislaus Animal Services Agency Joint Powers Agency Agreement (“Agreement”) dated October 27, 2009 by and between the cities of Ceres, Hughson, Modesto, Patterson, Waterford and the County of Stanislaus, (“County”), hereinafter referred to as “Parties”, is made and entered into and will be effective as of the date approved by 2/3 majority of the parties to the agreement.
WHEREAS section 3.3 of the Agreement, states in part that pursuant to Government Code section 6509, the Agency’s manner of exercising such powers shall be subject to those restrictions applicable to the City of Modesto;
WHEREAS the Stanislaus Animal Services Agency Board ( “Board”) has voted that this proposed draft amendment be brought before the Parties to the effect that the Agency’s manner of exercising its powers currently subject to the restrictions applicable to the City of Modesto be replaced by restrictions applicable to the County of Stanislaus;
WHEREAS this Amendment is for the benefit of the Joint Powers Agency; WHEREAS Section 6.11 of the Agreement allows the parties to amend the Agreement upon mutual consent of a 2/3 majority of the parties to the Agreement provided the amendment is in written form and executed with the same formalities as the Agreement and attached to the original Agreement to maintain continuity; NOW, THEREFORE, the parties agree to amend the Agreement as follows:
1. Section 3.3 of the Agreement is hereby deleted in its entirety and replaced by the following:
3.3 Powers and Functions. The Agency shall have the common power of the Member Agencies to plan, establish and exercise all government functions necessary to provide animal services for the benefit of the Member Agencies. Pursuant to Government Code Section 6509, the Agency's manner of exercising such powers shall be subject to those restrictions applicable to the City of Modesto County of Stanislaus. The Agency Board is authorized to do the following in the name of the Agency:
(a) Employ an Executive Director as the chief administrative officer of the Agency. (b) Employ agents and employees and contract for professional services and employee services from another public agency. The Agency Board may appoint sufficient personnel to act in a staff capacity for the Agency, which may include staff from Member Agencies and may hire and retain consultants, Personal Services Contractors, and others, as determined to be necessary to accomplish the purposes of this Agreement.
(c) Make and enter into contracts authorized in the Agency budget. (d) Acquire, hold and convey real and personal property, including leasehold interests, and exercise the power to acquire real property by eminent domain.
(e) Cooperate with other agencies, counties and other local public and non profit groups or private agencies and participate in joint projects as necessary. (f) Incur debts, obligations and liabilities, which shall be the sole responsibility of Agency and shall not be a debt, obligation or liability of Member Agencies.
7.8.a
Packet Pg. 107 Attachment: JPA_First_Amendment (Stanislaus Animal Services JPA Agreement) (g) Accept contributions, grants or loans from any public or private agency or individual, or the United States, the State of California or any department, instrumentality or agency thereof, for the purposes of financing its activities.
(h) Sue and be sued, in its own name only, but not in the name or stead of any Member Agency. (i) Adopt Bylaws to govern or regulate the conduct of meetings, designate Agency officers, and other affairs of the Agency not otherwise specified in this Agreement. (j) Do all other acts reasonable and necessary to carry out the purposes of this agreement.
2. All other terms and conditions of the Agreement shall remain in full force and effect to the extent they are not in conflict with this Amendment.
3. The signatures of the Parties to this Amendment may be executed and acknowledged on separate pages or in counterparts which, when attached to this Amendment, shall constitute one complete Amendment.
IN WITNESS WHEREOF, the parties or their duly authorized representatives have executed this Amendment No. 1, to be effective as of the date approved by 2/3 majority of the parties to the agreement. - Signatures on Following Pages7.8.a
Packet Pg. 108 Attachment: JPA_First_Amendment (Stanislaus Animal Services JPA Agreement)
7.8.a
Packet Pg. 109 Attachment: JPA_First_Amendment (Stanislaus Animal Services JPA Agreement) FIRST Amendment
To
Stanislaus Animal Services Agency Joint Powers Agency Agreement
CITY OF CERES
By:
Mayor
Attest:
By:
City Clerk
Approved as to Form:
By:
City Attorney
7.8.a
Packet Pg. 110 Attachment: JPA_First_Amendment (Stanislaus Animal Services JPA Agreement) FIRST Amendment
To
Stanislaus Animal Services Agency Joint Powers Agency Agreement
CITY OF HUGHSON
By:
Mayor
Attest:
By:
City Clerk
Approved as to Form:
By:
City Attorney
7.8.a
Packet Pg. 111 Attachment: JPA_First_Amendment (Stanislaus Animal Services JPA Agreement) FIRST Amendment
To
Stanislaus Animal Services Agency Joint Powers Agency Agreement
CITY OF WATERFORD
By:
Mayor
Attest:
By:
City Clerk
Approved as to Form:
By:
City Attorney
7.8.a
Packet Pg. 112 Attachment: JPA_First_Amendment (Stanislaus Animal Services JPA Agreement) FIRST Amendment
To
Stanislaus Animal Services Agency Joint Powers Agency Agreement
CITY OF PATTERSON
By:
Mayor
Attest:
By:
City Clerk
Approved as to Form:
By:
City Attorney
7.8.a
Packet Pg. 113 Attachment: JPA_First_Amendment (Stanislaus Animal Services JPA Agreement) FIRST Amendment
To
Stanislaus Animal Services Agency Joint Powers Agency Agreement
CITY OF MODESTO
By:
Mayor
Attest:
By:
City Clerk
Approved as to Form:
By:
City Attorney
7.8.a
Packet Pg. 114 Attachment: JPA_First_Amendment (Stanislaus Animal Services JPA Agreement) City Council Agenda Report
TO: Mayor Clauzel and Members of the City Council
FROM: Ken Irwin, City Manager
BY: Marie Guillory Jones, Director of Human Resources
MEETING DATE: August 15, 2023
ITEM NO: 7.9
SUBJECT: Approve the Job Description for a Full-Time Public Information Officer.
RECOMMENDATION
Motion to Approve the Job Description for a Full-Time Public Information Officer.
BACKGROUND
The new classification of Public Information Officer (PIO) was requested by staff and approved by the City Council as a part of the fiscal year 2023-24 budget development and approval process. This position was authorized as part of the general fund and all other funds budget with the adoption of Resolution 2023-38, previously approved by Council on June 27, 2023. The Public Information Officer classification is an exempt classification, designated as “confidential” reporting to the Program Manager in the City Manager’s office.
ANALYSIS
Currently the City of Patterson does not have a Public Information Officer. With the City of Patterson’s continued growth and development, this position will allow dedicated staff to focus on the development and implementation of the City’s communication and media platforms. This will include social media, email marketing and communications, and increasing exposure of positive media relations. This position will serve as the main point of contact for the City Manager’s office for official statements. Based on the expected business and growth of the City, multiple ongoing projects, and future projects, which includes infrastructure, development, and community-based programs and activities, it has been determined that the office of the City Manager would benefit from adding a communications, media, and web-based position to focus on effective public information dissemination, as well as development and enhancement of communication-based programs for the City.
7.9 Packet Pg. 115
AMENDED ITEM
FISCAL IMPACT
There is no fiscal impact associated with this item. Council is only approving the job description. Appropriation for salary was included in the current fiscal year 2023-24 budget.
7.9 Packet Pg. 116
JOBDESCRIPTION
City of Patterson
Human Resources
PUBLIC INFORMATION OFFICER
Class specifications are intended to present a descriptive list of the range of duties performed by employees in the class. Specifications are not intended to reflect all duties performed within the job.
Under general supervision of the Program Manger or a senior-level manager, plan, develop, implement, and facilitate the City’s communication and media platforms; performs a wide variety of marketing related duties; effectively implement social media strategy, email marketing planning; performs communications work related to planning, organizing, implementing public information, media relations, and communications programs; increases positive media exposure; designs and monitors web content; creates public information materials; supports assigned department or manager in public relations, communications, and marketing; and performs other related duties as required and/or assigned.
The Public Information Officer is a single position job classification. Incumbents in this class are responsible for various website, social media, and public information projects; writing, developing, and designing public information materials and maintaining media files and records; overall responsibility for maintaining effective public information and communication programs and overseeing the City’s information and media platforms.
Receives general direction from the Program Manager or other senior manager.
Exercises no direct supervision over others but may provide technical and functional direction and training to office support staff.
Typical essential duties may include, butarenotlimited to,the following:
Create and update web pages, prepares brochures, articles, photographs, videos, advertisements, and other materials in accordance with established policies and procedures.
Assist with the design, maintenance, and update of the city websites; participate in the development of media image and outreach efforts; assist with managing and monitoring of social media sites for content.
Develop marketing materials and promotional campaigns to inform, educate, and market city policies, projects, and city services; coordinate projects related to public outreach, communication, and special events.
Assist with the development and issuance of official City statements for various media platforms.
Prepare press releases, fact sheets and other reports; develop educational materials and communication programs;
JOB SUMMARY
SUPERVISION RECEIVED AND EXERCISED
ESSENTIAL DUTIES
7.9.a
Packet Pg. 117 Attachment: Public Information Officer (Approve the Job Description for a Full-Time Public Information Officer) research, prepare, and disseminate various publications, such as brochures, pamphlets, and newsletters for media outlets, distribution to the public, employees, organizations, and businesses.
Develop and maintain records and statistics related to communication programs and citizen engagement; maintain and archive press releases, photographs, videos, and other pertinent information.
Conduct community survey’s and analyze results; prepare written, illustrative, and statistical reports.
Support other departments and City staff in the development of publications, promotional materials and public outreach as assigned.
Organize, coordinate, and manage events and community activities; proactively address issues and misinformation through communication.
Develop and maintain positive relations with media outlets, and a wide range of civic and community organizations; and serve as the main point of contact.
Respond to and resolves difficult and sensitive citizen complaints and inquiries.
Serve as a liaison with employees, the public, community groups and other organizations; provide information and assistance regarding assigned program and service areas; respond to and resolve inquiries and complaints.
Participate in crisis management planning and assist with developing of crisis communication plan and written materials.
May represent the City before news media, public and private sector businesses, and officials; speak at workshops, panel discussions or other various City events.
Perform related duties as required and/or assigned.
Knowledge of: Modern principles, practices, methods and techniques of marketing, public information dissemination, media relations, video production, and community engagement programs; best practices for social media and digital content including techniques of graphic design and associated software related to website design, maintenance, photography, video production and image editing; practices and methods for data, video and records retention and archives; structure and organization of public sector agencies; pertinent federal, state, and local laws, codes and regulations; methods and techniques for record keeping and report preparation and writing; modern office procedures, methods and computer equipment; applicable software programs; oral presentation techniques and practices; strong writing and oral communication skills; techniques practices in writing clear, structured, articulate and persuasive articles and reports.
Ability to: Perform professional marketing and public information duties to educate, inform or market city related programs and services; effectively use social media, video, computer and related design software programs to perform a variety of communication task; research, analyze, organize, edit, write and design informational material for publication and presentation; prepare website content, illustrations, charts, graphs, brochures for presentation and dissemination; assist with planning and coordination of community outreach and programs; respond to inquiries, complaints, or requests for service or defer as appropriate; interpret, explain and apply applicable laws, codes and regulations; read, interpret and record data accurately; work independently and as an active team member; make sound decisions within established guidelines and authority; assist assigned departments with social media content and communication programs; follow written and oral directions; communicate clearly and concisely, both orally and in writing; prepare clear and concise documents and reports; analyze, interpret, summarize data in an effective and useful manner; establish and maintain effective working relationships.
KNOWLEDGE, SKILLS, AND ABILITIES
7.9.a
Packet Pg. 118 Attachment: Public Information Officer (Approve the Job Description for a Full-Time Public Information Officer) Must be 18 years of age or older.
Must successfully pass a pre-employment medical examination, including a drug screen, fingerprint, background check and reference check.
Must be able to provide proof of U.S. citizenship or legal right to work in the United States.
Any combination of education, training, and experience which would likely provide the required knowledge, skills, and abilities; would normally include:
Education: Equivalent to a BA/BS degree from an accredited college or university with major course work in Communications, Journalism, Marketing, Graphic Design, Public Relations, or related field.
Experience: Three (3) years of progressively responsible work experience in marketing, graphic design, community relations, or related area. Experience in a public agency is desirable.
License or Certificate: Possession of avalidClassCCalifornia Driver’sLicense atthe time of appointment.
Mental Requirements: The mental demands described here are representative of those that must be met by an employee to successfully perform the essential functions of this job: While performing the duties of this job, the employee is regularly required to review documents related to department operations; observe, identify and problem solve office operations and procedures; understand, interpret and explain department policies and procedures; explain operations and problem solve office issues for the public and with staff.
Physical Requirements: The physical demands described here are representative of those that must be met by an employee to successfully perform the essential functions of this job: While performing the duties of this job, the employee is regularly required to sit at a desk for extended periods of time; intermittently twist and bend to reach office equipment; use finger dexterity, simple grasping and fine manipulation to write or use a keyboard, file, and answer the phones; is frequently required to walk, talk and hear to receive and communicate information; and the employee is occasionally required to climb or balance, stoop, kneel, crouch or crawl; and may be expected to lift and/or move up to 25 pounds.
Environmental Conditions: The work environment characteristics described here are representative of those employee encounters while performing the essential functions of thisjob: While performing the duties of thisjob, the employee regularly works in an office environment, but at times ma y be required to attend special events.
The noise level in the workenvironment ismoderately low. There may be intermittent interruptions from phones, public inquiries, and other staff.
FLSA Status: Exempt - Confidential
Approved: August 2023
NECSSARY SPECIAL REQUIREMENTS
EXPERIENCE and CERTIFICATIONS
MENTAL AND PHYSICAL REQUIREMENTS
7.9.a
Packet Pg. 119 Attachment: Public Information Officer (Approve the Job Description for a Full-Time Public Information Officer) City Council Agenda Report
TO: Mayor Clauzel and Members of the City Council
FROM: Ken Irwin, City Manager
BY: Nubia Goldstein, City Attorney
MEETING DATE: August 15, 2023
ITEM NO: 8.1
SUBJECT: Consideration of Appeal No. 23-01, By Central Valley-Sierra Associates Regarding (1) Resolution No. 2023-07 of the Patterson Planning Commission Revoking Conditional Use Permit No. 17-21 For Failure to Comply with Conditions of Approval; and (2) Resolution No. 2023-06 of the Patterson Planning Commission Recommending that the Patterson City Council Adopt an Ordinance Confirming the Termination of the Development Agreement By and Between the City of Patterson and Central Valley-Sierra Associates and Authorizing the Recording of a Notice of Termination.
RECOMMENDATION
Consideration of Appeal No. 23-01, By Central Valley-Sierra Associates Regarding (1) Resolution No. 2023-07 of the Patterson Planning Commission Revoking Conditional Use Permit No. 17-21 For Failure to Comply with Conditions of Approval; and (2) Resolution No. 2023-06 of the Patterson Planning Commission Recommending that the Patterson City Council Adopt an Ordinance Confirming the Termination of the Development Agreement By and Between the City of Patterson and Central Valley-Sierra Associates and Authorizing the Recording of a Notice of Termination.
BACKGROUND
I. SUMMARY OF APPEAL
Central Valley-Sierra Associates (“CVSA”) is company that operates a cannabis business in the City of Patterson (“City”) pursuant to a Development Agreement (“DA”) CVSA entered into with the City in 2017. After struggling to make the Public Benefit payments to the City for the first few years of its operations, as required by the DA, and working with the City initially to
8.1 Packet Pg. 120
defer some of those amounts, CVSA has since made some payments but continues to accrue a large delinquent Public Benefit amount. CVSA has not made any payments on the delinquent amount since June 2021 and currently owes a total of $1,374,250 to the City, which is the subject of this dispute.
A. Planning Commission Resolutions Passed July 13, 2023 Following a public hearing held on July 13, 2023, the City of Patterson Planning Commission (“Planning Commission”) passed Resolution No. 2023-07 revoking CVSA’s Conditional Use Permit (“CUP”) No. 17-21. The Planning Commission’s decision was based on the following reasons: (1) CVSA’s continued failure to make Public Benefit Amount payments to the City as they become due and payable, pursuant to Section 4.3 of the DA By and Between the City and CVSA, constitutes “full and sufficient grounds” for revocation; (2) upon termination of the DA by its own terms on or about July 4, 2022, CVSA was no longer in compliance with City requirements for the continued operation of the cannabis business (PMC section 6.56.030); and (3) the terminated DA and uncured Public Benefit default violates the CUP’s Conditions of Approval, including Conditions No. 1, No. 3, and No. 5.
Also, on July 13, 2023, following a public hearing, the Planning Commission passed Resolution No. 2023-06 recommending that the City Council adopt an Ordinance to confirm the termination of the DA as described above. Section 9.1. of the DA provides that upon termination of the DA, the City shall record a notice of such termination (“Notice of Termination”), and the DA shall be of no force or effect.
B. CVSA’s Appeal
On July 14, 2023, CVSA timely submitted its Application for Appeal, No. 23-01, and the required fee to the Community Development Department. (Exhibit A.) The Application states that CVSA intends to appeal the above two Planning Commission decisions to the City Council, and CVSA requests the City Council to take action to: (1) “reverse the Planning Commission’s decision to revoke the CUP”; (2) “ignore the recommendation to adopt an ordinance confirming termination” of the DA; and (3) “Instruct City Staff to engage in good faith talks with Appellant to (i) settle any outstanding issues, and (ii) amend the DA to replace the onerous financial obligations of Section 4.2 with the requirement to pay taxes solely with respect to the gross receipts of the cannabis business in accordance with the voter-passed initiative, Measure Y.” CVSA’s application states that the grounds for its appeal are “(1) The Planning Commission’s decision to revoke the CUP hinges on the finding of breach of the DA, which must be determined by the City Council; (2) “the breach in question relates to [] Section 4.2 of the DA, which is unenforceable by reason of being: an unconstitutional tax, an unconstitutional taking in violation of the Fifth Amendment, and against public policy against predatory and unconscionable terms; and (3) because Section 4.2 is an unenforceable provision of the DA, the City Council cannot find that the Appellant is in breach of its obligations for failing to abide by such provision.”
II. BACKGROUND
8.1 Packet Pg. 121
CVSA has long struggled with its Public Benefit payments and negotiated various agreements with the City. The full history of the negotiations, agreements, and payment history between the City and CVSA is as follows.
2017:
On December 5, 2017 the City adopted Ordinance No. 812 approving the DA for the operation of a cannabis dispensary business located at 100 West Las Palmas Avenue, Suite H, Patterson CA 95363, Assessor’s Parcel Number 131-003-012 (the “Site”). On December 21, 2017, the Planning Commission voted to adopt Resolution 2017-14, approving CUP No. 17-21, associated with CVSA’s application for a cannabis dispensary (the “Project”) to be located at the Site.
Section 4.2 of the DA requires CVSA to pay to the City certain amounts to offset the impacts to City infrastructure, services, and neighborhoods, commensurate with the private benefits conferred on CVSA (the “Public Benefit Amount”). CVSA failed to make the required Public Benefit Amount payments (the “Delinquent Public Benefit Amount”) by the agreed-upon terms, resulting in a default pursuant to Sections 4.3 and 8.1(a). 2018:
CVSA was scheduled to make its first Public Benedit payment on February 1, 2018 in the amount of $10,000. However, CVSA at the time was unable to open its business to the public and sought a deferral from the City for a portion of the Public Benefit Amount until CVSA could open its business to the public.
On August 18, 2018, the City sent CVSA a side letter (“First Side Letter”) agreeing to a deferral for a portion of the Public Benefit Amount until CVSA could open the Project (“Deferred Benefit Fee”) (Exhibit __ [First Side Letter].) At this point, CVSA owed $70,000 to the City in Public Benefit payments. Under the terms of the First Side Letter, as approved by the City Council, CVSA agreed to pay $35,000 (50% of that amount) in full by September 28, 2018, and pay the remaining amount in monthly payments over 12 months once the business opens to the public. CVSA agreed to the terms of the First Side Letter and executed it on November 29, 2018. 2019:
As of April 23, 2019, CVSA still had not opened the Project or made any payment on the Deferred Benefit Fee. As of that date, CVSA owed a total of $195,000 with a resulting Deferred Benefit Fee of $97,500. CVSA requested a deferral for a portion of that Deferred Benefit Fee.
The City Council agreed to the deferral, and on May 30, 2019, the City and CVSA entered into a second side letter (“Second Side Letter”) wherein CVSA agreed to pay 50% of the Deferred Benefit Fee ($48,750), within 60 days of opening the Project. CVSA further agreed and acknowledged that the Deferred Benefit Fee in the Initial Side Letter and the Public Benefit Amount shall be paid in full. CVSA accepted the terms and executed the Second Side Letter on May 30, 2019. (Exhibit __ [Second Side Letter].)
2020:
8.1 Packet Pg. 122
On June 7, 2020, the business opened to the public. (See Exhibit __ [July 31, 2013 letter from A.
Almaz].)
On October 28, 2020, the City Attorney sent a default notice to CVSA, explaining that the City has calculated the Developer’s outstanding Public Benefit Amount to be at $645,000. (Exhibit __ [October 28, 2020 letter].) By that date, CVSA had paid a total of $70,750 of the Public Benefit Amount. Based on CVSA’s partial payments and non-payments, the total Public Benefit Amount due by that date was $574,250. This is despite Developer’s license renewal documents showing Developer’s annual income at that time to be $700,000. The letter stated that CVSA’s failure to remit the required payments of the Public Benefit Amount to the City constitutes a default of the Agreement pursuant to section 8.1(a), subjecting CVSA to potentially substantial penalties for nonperformance under the DA.
The letter gave CVSA 10 days from the date of the letter to cure its default, after which the City would institute proceedings to terminate the DA and revoke the CUP, pursuant to the terms of the DA. CVSA did not cure the default as required.
2021:
On June 29, 2021, CVSA paid $25,000 to the City, and to date has made no further payments.
On October 21, 2021, the City wrote to CVSA and stated that CVSA was currently in default of the DA. (Exhibit __ [October 21, 2021 letter].) At this point, the total Public Benefit Amount owed was $799,250, and CVSA had paid a total of $95,750 toward the total Public Benefit Amount due. The City offered to settle the delinquent Public Benefit Amount for $79,925, or 10% of the total owed, as a full and complete satisfaction of the debt, together with CVSA’s agreement to be subject to the City’s cannabis tax on an ongoing basis, to establish a new Public Benefit schedule and to amend the DA to reflect these terms. CVSA never accepted this offer, remained in default of the DA, and made no further payments toward the Delinquent Public Benefit amount.
2022:
On June 17, 2022, following discussions between the City and CVSA in an attempt to the resolve the default and bring the Project current, City wrote a letter to CVSA and offered (a second time) to settle the entire Delinquent Public Benefit Amount for $79,925 and cure CVSA’s default, and provided 10 days’ notice that if the default was not cured during that period, the City would commence proceedings to revoke the CUP and terminate the DA. (Exhibit __ [June 17, 2022 letter].) CVSA did not accept the City’s offer but proposed a counteroffer with additional terms.
Thus, the City and CVSA did not reach an agreement to resolve the Delinquent Public Benefit Amount or to extend the term of the DA, and CVSA failed to cure the default. The DA, by its own terms, expired on or about July 4, 2022.
2023:
In or around January 2023, CVSA engaged a new company, Catalyst Cannabis Company
8.1 Packet Pg. 123
(“Catalyst”) to assist with operation and management of the Project. Catalyst and the City engaged in further discussions but did not reach an agreement to resolve the Delinquent Public Benefit Amount, cure the default, or extend the term of the DA. On March 29, 2023, City sent notice to CVSA of its intent to revoke the CUP, pursuant to Section 8.1(b) of the DA, and received no response within the required 10 days. (Exhibit __ [March 29, 2023 letter].) III. AMOUNTS DUE
As of today’s date, the total accounting of the Delinquent Public Benefit is as follows:
$1,470,000: Total Public Benefit Amounts due as of July 31, 2023. ($95,750): Total Amount CVSA has paid to date as of July 31, 2023. $1,374,250: Public Benefit Amount currently due from CVSA.
IV. ALTERNATIVE ACTIONS
The City Council’s options are:
Affirm Planning Commission Resolutions 2023-07, revoking the CUP issued to CVSA, and 2023-06, Recommending that City Council Adopt an Ordinance Confirming Termination of the DA and Authorizing the Recording of a Notice of Termination; Reverse Planning Commission Resolutions 2023-07, revoking the CUP issued to CVSA, and 2023-06, Recommending that City Council Adopt an Ordinance Confirming Termination of the DA and Authorizing the Recording of a Notice of Termination; Continue the Appeal to a later date, with direction to staff for further action, if any.
ATTACHMENTS
1. Application for Appeal, No. 23-01, from CVSA, dated July 14, 2023
2. First Side Letter, from K. Irwin, dated August 10, 2018
3. Second Side Letter, from K. Irwin, dated April 23, 2019
4. Letter from CVSA attorney A. Almaz, dated July 13, 2023
5. Default Notice to CVSA, from N. Goldstein, dated October 28, 2020
6. Letter and Offer to Settle, from K. Irwin, dated October 21, 2021
7. Letter and Second Offer to Settle, from K. Irwin, dated June 17, 2022
8. Letter re Intent to Revoke CUP and Terminate DA, from N. Goldstein, March 29, 2023 V. FISCAL IMPACT
The City would lose potential tax revenue due to the closing of the cannabis dispensary at the Site, which would result from termination of the Development Agreement with CVSA.
8.1 Packet Pg. 124
Application for Appeal
CENTRAL VALLEY - SIERRA ASSOCIATES, INC. #>3-0/
[email protected]
Email
Appealing to:
Planning Commission
Ig City Council
$605.00
APPLICANT:
BY: I
JUL 1'42023
6/0
Community Development Department
1 Plaza, PO Box 667
Patterson, CA 95363
Ph. 209.895.8020
Fax 209.895.8019
www.ci.patterson.ca.us
Decision You Are Appealing:
(1) Decision by Planning Commission to revoke Conditional Use Permit No. 17-21 ("CUP") for failure to comply with conditions of approval; and
(2) Recommendation to City Council to adopt an ordinance confirming termination of the Development Agreement ("DA") between City and Catalyst, and authorizing the recording of a notice of termination of the DA.
Specific Action Appellant Wants Taken:
( 1 ) Reverse the Planning Commission's decision to revoke the CUP; (2) Ignore the recommendation to adopt an ordinance confirming termination; and (3) Instruct City Staff to engage in good faith talks with Appellant to (i) settle any outstanding issues, and (ii) amend the DA to replace the onerous financial obligations of Section 4.2 with the requirement to pay taxes solely with respect to the gross receipts of the cannabis business in accordance with the voter-passed initiative, Measure Y.
What are the grounds in which the Appellant relies in taking the appeal:
(1) The Planning Commission's decision to revoke the CUP hinges on the finding of breach of the DA, which must be determined by the City Council; (2) the breach in question relates to an Section 4.2 of the DA, which is unenforceable by reason of being: (i) an unconstitutional tax, an unconstitutional taking in violation of the Fifth Amendment, and against public policy against predatory and unconscionable terms; and (3) because Section 4.2 is an unenforceable provision of the DA, the City Council cannot find that the Appellant is in breach of its obligations for failing to abide by such provision.
FEE:
Applicant Name
100 W LAS PALMAS AVE, PATTERSON, CA 95363
Add ress/City/State/Zip:
909 210 7031
Phone Number
DATE:
CDD/PLANNING DIVISION
8.1.a
Packet Pg. 125 Attachment: Exhibit 1 - Application for Appeal No. 23-01 from CVSA dated July 14, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates) I
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07/14/2023 City of Patterson Application for Appeal Fee $605.00 From: Central Valley - Sierra Associates
To: City of Patterson
TO THE
ORDER
OF
City of Patterson
1 Plaza
Patterson, CA 95363
52861209
07/14/2023
Central Valley - Sierra Associates
100 W. Las Palmas Suite
H
Patterson, CA 95363
07/14/2023
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8.1.a
Packet Pg. 126
Attachment: Exhibit 1 - Application for Appeal No. 23-01 from CVSA dated July 14, 2023 (Appeal No. 23- City of Patterson
Administration Department
1 Plaza
P.O. Box 667
Patterson, California 95363
Phone (209) 895-8010 Fax (209) 895-8019
www.ci.patterson.ca.us
August 10, 2018
Central Valley – Sierra Associates
Attn: Sadie Schut
100 West Las Palmas Avenue, Suite H
Patterson, CA 95363
Re: Cannabis Development Agreement – Public Benefit Amount Payment Dear Ms. Schut:
This correspondence constitutes a side letter (“Side Letter”) concerning the development agreement (“Original Agreement”) between the City of Patterson (“City”) and Central Valley – Sierra Associates (“Developer”), relating to the Developer’s operation of a cannabis dispensary business (the “Project”).
Background
On November 7, 2017, the Patterson City Council (the “City Council”) adopted Ordinance No. 806 to establish a Cannabis Business Pilot Program, which allows for the regulation of cannabis businesses within the City pursuant to a development agreement and a conditional use permit. On December 5, 2017, the City Council adopted Ordinance No. 807 to establish zoning limitations and requirements for all cannabis businesses.
On December 5, 2017, the City Council approved Ordinance No. 812 which authorized Developer to operate the Project in exchange for the monthly payment of a “Public Benefit Amount.” Pursuant to Section 4.2 of the Original Agreement, Developer was scheduled to remit their first Public Benefit Amount on February 1, 2018 (“Public Benefit Due Date”), in the amount of Ten Thousand Dollars ($10,000) (the “Tier 1 Amount,” as defined in the Original Agreement).
Developer has yet to open their business to the public. Developer now seeks a deferral for a portion of their Public Benefit Amount until Developer opens its business to the public (“Deferral”).
Pursuant to the terms approved by the City Council, this Side Letter provides the City’s agreement to allow the Deferral, which is calculated upon the date of this Side Letter (the “Effective Date”), under the conditions outlined herein.
Analysis
I. Deferral Payment
Developer acknowledges and agrees that fifty percent (50%) of the Tier 1 Amount equals Five Thousand Dollars ($5,000) per month (“Deferral Payment”). City agrees to allow Developer to pay the Deferral Payment
8.1.b
Packet Pg. 127 Attachment: Exhibit 2 - First Side Letter From K. Irwin dated August 10, 2018 (Appeal No. 23-01, By Central Valley-Sierra Associates) 2 from the Public Benefit Due Date until Developer opens their business to the public. The chart below summarizes the current relevant amounts to the Deferral Payment:
Public Benefit Due Date Deferral Payment Number of Months in Deferral
Total Due as of the
Effective Date
February 1, 2018 $5,000 per month 7 $35,000
Developer acknowledges and agrees that Developer will be responsible for paying the Deferral Payment amount, each month, for every month that Developer fails to open their business to the public. In order to catch up on the amount of Thirty Five Thousand Dollars ($35,000), Developer must pay that amount in full by September 28, 2018. Ongoing payments for the Deferral Payment amounts will be due on the first day of each month.
II. Effect of Deferral
Developer acknowledges and agrees that fifty percent (50%) of the Tier 1 Amount equals Five Thousand Dollars ($5,000) per month (the “Remainder Amount”). Developer acknowledges and agrees to pay the Remainder Amount in twelve (12) monthly equal payments once their business opens to the public. Developer agrees and acknowledges that the Remainder Amount shall be paid, in addition to any Public Benefit Amount then due and payable.
All other terms and provisions of the Original Agreement shall remain in full force and effect. If any terms or provisions of this Side Letter conflicts with terms and provisions of the Original Agreement, the terms and provisions of this Side Letter shall control.
Sincerely,
Ken Irwin
City Manager
8.1.b
Packet Pg. 128 Attachment: Exhibit 2 - First Side Letter From K. Irwin dated August 10, 2018 (Appeal No. 23-01, By Central Valley-Sierra Associates)
ACKNOWLEDGMENT AND ACCEPTANCE
Developer acknowledges receipt ofthe foregoing Side Letter and agrees to act under and pursuant to the terms and conditions ofthe Side Letter.
DEVELOPER:
Central Valley - Sierra Associates
Cvrtrni vmmj -<§&rt it/ten*Joj^s
(name)
Date:
3 8.1.b
Packet Pg. 129 Attachment: Exhibit 2 - First Side Letter From K. Irwin dated August 10, 2018 (Appeal No. 23-01, By Central Valley-Sierra Associates) 8>\de bsBer *v
City of Patterson
Office of the City Manager
g
m
1 Plaza
P.O. Box 667
Patterson, California 95363
Bus. (209) 895-8015
Main (209) 895-8010
Email [email protected]
April 23, 2019
Central Valley - Sierra Associates
Attn: Sadie Schut
PO Box 135
Patterson, CA 95363
Re: Cannabis Development Agreement - Deferred Benefit Fee Payment Dear Ms. Schut:
This correspondence constitutes a side letter ("Side Letter") concerning the development agreement ("Development Agreement"), executed on January 1 , 20 1 8, between the City ofPatterson ("City") and Central Valley - Sierra Associates ("Developer"), relating to the Developer's operation of a cannabis dispensary business (the "Project").
Background
On November 7, 20 1 7, the Patterson City Council ("City Council") adopted Ordinance No. 806 to establish a Cannabis Business Pilot Program, which allows for the regulation of cannabis businesses within the City pursuant to a development agreement and a conditional use permit. On December 5, 201 7, the City Council adopted Ordinance No. 807 to establish zoning limitations and requirements for all cannabis businesses.
On December 5, 201 7, the City Council approved Ordinance No. 8 1 2 which authorized Developers to operate the Project in exchange for the monthly payment of a "Public Benefit Amount." Pursuant to Section 4.2 of the Development Agreement, executed on January 1, 2018, Developer was scheduled to remit their first Public Benefit Amount on February 1 , 201 8 ("Public Benefit Due Date"), in the amount ofTen Thousand Dollars ($10,000) (the "Tier 1 Amount." as defined in the Original Agreement).
On November 19, 2018, Developer executed a side letter ("Initial Side Letter") agreeing to a deferral for a portion ofthe Public Benefit Amount, in the amount of Five Thousand Dollars ($5,000) per month until the Developer opens the Project ("Deferred Benefit Fee").
As ofApril 23, 201 9, Developer has yet to open their Project nor made any payment on the Deferred Benefit Fee. Developer owes a total of One Hundred Ninety-Five Thousand Dollars ($195,000) with a resulting Deferred Benefit Fee of Ninety-Seven Thousand Five Hundred Dollars ($97,500). Developer now seeks a deferral for a portion of the Deferred Benefit Fee.
Pursuant to the terms approved by the City Council, this Side Letter provides the City's agreement to allow the deferral of a portion of the Deferred Benefit Fee, under the conditions outlined herein.
8.1.c
Packet Pg. 130 Attachment: Exhibit 3 - Second Side Letter from K. Irwin dated April 23, 2019 (Appeal No. 23-01, By Central Valley-Sierra Associates) Deferral Payment
Developer acknowledges and agrees that fifty percent (50%) ofthe Deferred Benefit Fee equals Forty-Eight Thousand Seven Hundred and Fifty Dollars ($48,750). City agrees to allow Developer to pay half of the Deferred Benefit Fee ($48,750) prior to opening its Project Developer acknowledges and agrees that fifty percent (50%) ofthe Deferred Benefit Fee equals Forty-Eight Thousand Seven Hundred and Fifty Dollars ($48,750) (the "Remainder Amounts. Developer acknowledges and agrees to pay the Remainder Amount within 60 days ofopening its Project. Developer agrees that ifthe payment is made after 60 days ofopening the Project, the Developer shall pay a penalty fee often percent (10%) ofall monies owed. "All monies owed" includes the Deferred Benefit Fee described in the Initial Side Letter, and all other Public Benefit Amount payments owed as described in the Development Agreement Developer agrees and acknowledges that the Remainder Amount shall be paid, in addition to any Public Benefit Amount agreed to in the Development Agreement, and the Deferred Benefit Fee amount agreed to in the Initial Side Letter, then due and payable.
All other terms and provisions ofthe Development Agreement and the Initial Side Letter shall remain in full force and effect Ifany terms or provisions ofthis Side Letter conflicts with the terms and provisions ofthe Development Agreement or the Initial Side Letter, the terms and provisions ofthis Side Letter shall control.
Sincerely,
Ken Irwin
City Manager
2 8.1.c
Packet Pg. 131 Attachment: Exhibit 3 - Second Side Letter from K. Irwin dated April 23, 2019 (Appeal No. 23-01, By Central Valley-Sierra Associates)
ACKNOWLEDGMENT AND ACCEPTANCE
Developer acknowledges receipt ofthe foregoing Side Letter and agrees to act under and pursuant to the terms and conditions ofthe Side Letter.
DEVELOPER:
Central Valley - Sierra Associates
qjntvn i v/a 1 y \ m
(name)
A
Date:
3 8.1.c
Packet Pg. 132 Attachment: Exhibit 3 - Second Side Letter from K. Irwin dated April 23, 2019 (Appeal No. 23-01, By Central Valley-Sierra Associates) CENTRAL VALLEY – SIERRA ASSOCIATES
401 Pine Avenue, Long Beach, CA 90802
Phone: (909) 210-7031 | Email: [email protected]
July 13, 2023
SENT VIA ELECTRONIC MAIL
Ken Irwin, City Manager
[email protected]
Dear City Manager,
By way of introduction, my name is Anthony Almaz, counsel for Central Valley – Sierra Associates (“CVSA”), a cannabis retail dispensary owned and operated by Sadie Schut. CVSA has been informed that the City of Patterson (the “City”) is scheduled to consider adopting the following resolutions (1) revoking Conditional Use Permit No. 17-21 (“CUP”) for Failure to Comply with Conditions of Approval; and (2) recommending that City Council adopt an ordinance confirming the termination of the Development Agreement (“DA”) between the City and Catalyst and authorizing the recording of a notice of termination of the DA. As you are well aware, this resolution comes as a result of the City’s belief that CVSA has failed to satisfy its obligation to pay the “Public Benefits” agreement pursuant to the DA.
In response, we believe the City has acted in extreme bad faith in its dealings with CVSA. Specifically, the facts and history of the City’s dealings demonstrate that the City has imposed obligations on CVSA and the other cannabis businesses that can be classified – at a minimum – as any of the following: (1) an unconstitutional business tax, (2) and “Taking” in violation of the Fifth Amendment, or (3) predatory and damaging lending practices.
Here is a brief background of the “Public Benefit” arrangements. On December 5, 2017, the City Council adopted Ordinance No. 812 approving the DA by and between the City and CVSA to allow Developer to operate a commercial cannabis retail business (the “Project”). Although no formal inquiry was made on the true economic costs to the City related to the business, the DA called for the following payments made to compensate the City for the expenses incurred related to the Project:
1. A payment equal to the greater of ten thousand dollars ($10,000.00) or five percent (5%) of the Business Gross Receipts, beginning the earlier of (i) the issuance of the CUP, or (ii) six (6) months from the effective date of the DA, then,
2. On the thirteenth (13th) month following the issuance of the CUP, a payment equal to the greater of $25,000.00 or five percent (5%).
Notably, these “Public Benefit” payments were required to be paid irrespective of whether the business received a CUP or began operations. In any case, a first payment was due by no later than October 1, 2018.
However, recognizing that there were substantial flaws in this financial arrangement, including the fact that CVSA had not commenced operations, on October 16, 2018, the City empowered the City Manager to enter
8.1.d
Packet Pg. 133 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates)
into “Side Letter” arrangements with CVSA in an attempt to provide relief. However, the Side Letter was nothing more than a payment deferral plan on past debt and required CVSA to continue to accrue debts to the City until the business opened – at which point, CVSA would be required to increase its required Public Benefits payments to satisfy its unpaid Public Benefits payment.
Under this payment plan, CVSA would need to open its business immediately in order to generate the income needed to repay the debt. However, due to a lack of communication by the City and unnecessary delays in permitting, CVSA was not able to open within the anticipated time frame (Note: any delay in opening the business would only financially benefitted the City). As such, on May 30, 2019, the parties entered into a Second Side Letter requiring CVSA to pay fifty percent (50%) of the Deferred Benefit Fee ($48,750) within sixty (60) days of opening the Project, and to agree to have paid in full the initial Deferred Benefit Fee from the Side Letter by the opening date. This was entered into knowing full well that, on November 6, 2018, the citizens of the City granting City Council to impose a standard business tax at a rate of up to fifteen percent (15%) of the gross receipts on a cannabis business.
CVSA was finally able to open the business on June 7, 2020, at which time, they were indebted to the City by well over one hundred thousand dollars ($100,000.00) (although its unclear what the exact amount was as the City has yet to provide an accounting).
After finally opening, and as a result of the confusing language of the First and Second Side Letter, it was entirely unclear how much CVSA owed the City. Like any business, CVSA had a slow start and was only able to make good faith payments to the City on its Public Benefits payments.
Then, on October 21, 2020, the City finally put in place a new tax program pursuant to Measure Y requiring that all cannabis businesses pay a business tax equal to “the greater of seven thousand dollars ($7,000.00) or seven percent (7%) of its gross receipts.” Yet again, the City sought to extract a minimum tax on a business regardless of whether or not it sold zero dollars ($0) or five hundred thousand dollars ($500,000.00).
After finally passing a more reasonable – yet unconstitutional tax – the City’s attorney sent CVSA Default Notice stating that, as of October 21, 2020, CVSA had incurred six hundred forty-five thousand dollars ($645,000.00) of debt to the City and has only paid a total of seventy thousand seven hundred and fifty dollars ($70,750.00) of that debt. According to the letter, this was despite “[CVSA’s] . . . showing that [CVSA] had annual income to be seven hundred thousand dollars ($700,000.00).” So, according to the City’s attorney, the City was entitled to nearly all the revenues generated by CVSA during that time, irrespective of the incredible expenses associated with running a dispensary.
Since then, all attempts to reason with the City and to work out a proper payment plan that reflects the economic realities have failed. Now, rather than looking at whether the City’s actions have made it impossible for this business to recover from its obligations, the City instead wishes to end the business once and for all.
8.1.d
Packet Pg. 134 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates)
Although it is unclear why the City has taking this incredibly harsh stance against one of its own businesses, what is clear is that the actions, policies, and programs established by the City did nothing more than create the false hope of a thriving business, using means that can only be described as both unconstitutional and predatory.
. . . .
With this in mind, we now implore the City to work with us in good faith to resolve these matters, including an entire forgiveness of all debts that were unconstitutionally imposed on the business by the City.
Should you have any questions, I can be reached by phone at (909) 210-7031 or via email at [email protected]
Respectfully Submitted,
Anthony Almaz
Counsel
8.1.d
Packet Pg. 135 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates) $0.00
DEVELOPMENT AGREEMENT
RECITALS
{CW049135.4}
Attn: City Clerk
City of Patterson
P.O. Box 667
1 Plaza
Patterson, CA 95363
SPACE ABOVE THIS LINE FOR RECORDER'S USE
Recording Fee Exempt per Government Code §6103
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL
TO:
THIS DEVELOPMENT AGREEMENT (“Agreement”) is made and entered into this 5th day of December, 2017, by and between the CITY OF PATTERSON, a municipal corporation of the State of California (“City”) and CENTRAL VALLEY - SIERRA ASSOCIATES, a California nonprofit mutual benefit corporation (“Developer”). City and Developer may be referred to herein individually as a “Party” or collectively as the “Parties.” There are no other parties to this Agreement.
A. On October 9, 201 5, Governor Jerry Brown signed three bills into law (Assembly Bill 266, Assembly Bill 243, and Senate Bill 643) which are collectively referred to as the Medical Cannabis Regulation and Safety Act (“MCRSA”). MCRSA establishes a statewide regulatory system for the cultivation, processing, transportation, testing, manufacturing, and distribution of medical marijuana to qualified patients and their primary caregivers.
C. On June 27, 2017, Governor Jerry Brown signed into law the Medicinal and AdultUse Cannabis Regulation and Safety Act (“MAUCRSA”), which creates a single regulatory scheme for both medicinal and adult-use cannabis businesses.
MAUCRSA retains the provisions in MCRSA and AUMA that granted local jurisdictions control over whether businesses engaged in Commercial Cannabis B. On November 8, 2016, California voters enacted Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, also known as the Adult Use of Marijuana Act (“AUMA”), which establishes a comprehensive system to legalize, control, and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedical cannabis, including cannabis products, for use by adults 21 years and older, and to tax the growth and retail sale of cannabis for nonmedical use.
DEVELOPMENT AGREEMENT
CITY OF PATTERSON
& CENTRAL VALLEY-SIERRA ASSOCIATES
Stanislaus, County Recorder
Lee Lundriqan Co Recorder Office
DOC- 2018-0017054-00
Monday, MAR 12, 2018 14:02:09
Ttl Rd $0.00 Rcpt # 0004098009
AKN/R2/1-64
020189001705400064
8.1.d
Packet Pg. 136 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates) Section 4.2. Public Benefit.
No Public Benefit Due
Collectively, these amounts shall be known as the “Public Benefit (c)
{CW049135.4}
Any failure or refusal of Developer to provide any statement or report to City, the State Taxing Authority, or any other State Licensing Authority, as required within the time required, or to pay such sums due hereunder when the same are due and payable in accordance with the provisions of this Agreement, may constitute full and sufficient grounds for the revocation or suspension of the Conditional Use Permit.
Section 4.4. Records. Developer shall keep records of all Commercial Cannabis Activity in accordance with Chapter 16 (commencing with Section 26160) of Division 10 monitoring compliance with any permits issued or approvals granted or the performance of any conditions (each a “Ministerial Fee” and collectively, the “Ministerial Fees”). $10,000 or 5% of Gross Receipts from
Operations each month, whichever is
greater (“Tier 1 Amount”).
$25,000 or 5% of Gross Receipts from
Operations each month, whichever is
greater (“Tier 2 Amount”).
DEVELOPMENT AGREEMENT
CITY OF PATTERSON
& CENTRAL VALLEY-SIERRA ASSOCIATES
(b)
Amount”.
Developer shall file an applicable statement that complies with the California State Board of Equalization, California Department of Tax and Fee Administration, or either’s successor agency (the “State Taxing Authority”) for sales tax purposes showing the true and correct amount of Gross Receipts from Operations of the Project during the applicable time period. Developer shall provide a copy of such statement to City upon request by City.
Section 4.3. Reporting. Developer shall provide City with copies of any reports provided to a State Licensing Authority within forty-five (45) days of that submission.
Effective Date
First (1st) Business Day of 1st Month
Following Issuance of the Conditional Use
Permit, or of sixth (6th) Month from
Effective Date, whichever is first. _
1st Business Day of the Thirteenth (13th)
Month Following Issuance of the
Conditional Use Permit Through the End of
the Term.
(a) The Parties acknowledge and agree that this Agreement confers substantial private benefits upon Developer that will place burdens upon City infrastructure, services, and neighborhoods. Accordingly, the Parties intend to provide consideration to City to offset these impacts that commensurate with the private benefits conferred on Developer (the “Public Benefit”). In consideration of the foregoing, Developer shall remit to City as follows:
8.1.d
Packet Pg. 137 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates) [SIGNATURES ON FOLLOWING PAGE]
“DEVELOPER” “CITY”
Date: , 2018
Approved to as Form
{CW049 135.1}
costs, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which such Party may be entitled.
IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the Effective Date of the Agreement, as defined above.
By:
Sadie Schut
Its: CEO
CITY OF PATTERSON, CA
a California Municipal Corporation
1 , 201#
CENTRAL VALLEY-SIERRA
ASSOCIATES, a California nonprofit
mutual benefit corporation
Zdic jcbux
CITY OF PATTERSON,
& CENTRAL VALLEY-SIERRA ASSOCIATES
Date:JCxoUCk(U 9)
Attest:
Maricela L. Vela
City Clerk
{CW049 135.1} {CW049 1 35. 1 } {CW049 1 35. 1 }
DEVELOPMENT AGREEMENT
(p) Calculation of Time Periods. All time referenced in this Agreement shall be calendar days, unless the last day falls on a legal holiday, Saturday, or Sunday, in which case the last day shall be the next business day.
By:
Ken Irwin
City Manager
By: Z '
Tom P. Hallinan
City Attorney
8.1.d
Packet Pg. 138 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates) any permits issued or approvals granted or the performance Operations
(c)
{CW049135 4}
DEVELOPMENT AGREEMENT
CITY OF PATTERSON
& CENTRAL VALLEY-SIERRA ASSOCIATES
(b)
Amount”.
Effective Date
First (1st) Business Day of 1st Month
Following Issuance of the Conditional Use
I Permit, or of sixth (6th) Month from
I Effective Date, whichever is first.
I 1st Business Day of the Thirteenth (13th)
I Month Following Issuance of the
I Conditional Use Permit Through the End of
| the Term.
monitoring compliance with ; ' Of any conditions (each a "Ministerial Fee" and collectively, the "Ministerial Fees”)- Section 4.2. Public Benefit.
(a) The Parties acknowledge and agree that this Agreement confers substantial private benefits upon Developer that will place burdens upon City infrastructure, services, and neighborhoods. Accordingly, the Parties intend to provide consideration to City to ?, seJ these impacts that commensurate with the private benefits conferred on Developer (the Public Benefit”). In consideration of the foregoing, Developer shall remit to City as No Public Benefit Due.
$10,000 or 5% of Gross Receipts from
Operations each month, whichever is
greater ("Tier 1 Amount”).
$25,000 or 5% of Gross Receipts from
Operations each month, whichever is
greater (“Tier 2 Amount ).
Collectively, these amounts shall be known as the "Public Benefit (c) Developer shall file an applicable statement that complies with the California State Board of Equalization, California Department of Tax and Fee Administration, or either’s successor agency (the “State Taxing Authority”) for sales tax purposes showing the true and correct amount of Gross Receipts from Operations of the Project during the applicable time period. Developer shall provide a copy of such statement to City upon request by City.
Section 4.3. Reporting. Developer shall provide City with copies of any reports provided to a State Licensing Authority within forty-five (45) days of that submission.
Any failure or refusal of Developer to provide any statement or report to City, the State Taxing Authority, or any other State Licensing Authority, as required within the time required, or to pay such sums due hereunder when the same are due and payable in accordance with the provisions of this Agreement, may constitute full and sufficient grounds for the revocation or suspension of the Conditional Use Permit.
Section 4.4. Records. Developer shall keep records of all Commercial Cannabis Activity in accordance with Chapter 16 (commencing with Section 26160) of Division 10
8.1.d
Packet Pg. 139 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates) \
August 10,2018
Re:
Background
Analysis
Deferral Payment I.
Cannabis Development Agreement - Public Benefit Amount Payment Dear Ms. Schut:
Developer acknowledges and agrees that fifty percent (50%) of the Tier 1 Amount equals Five Thousand Dollars ($5,000) per month (“Deferral Payment”). City agrees to allow Developer to pay the Deferral Payment Pursuant to the terms approved by the City Council, this Side Letter provides the City’s agreement to allow the Deferral, which is calculated upon the date of this Side Letter (the “Effective Date”), under the conditions outlined herein.
Pursuant to Section 4.2 ofthe Original Agreement, Developer was scheduled to remit their first Public Benefit Amount on February 1 , 20 1 8 (“Public Benefit Due Date”), in the amount ofTen Thousand Dollars ($ 1 0,000) (the “Tier 1 Amount,” as defined in the Original Agreement).
Developer has yet to open their business to the public. Developer now seeks a deferral for a portion oftheir Public Benefit Amount until Developer opens its business to the public (“Deferral”).
On November 7, 20 1 7, the Patterson City Council (the “City Council”) adopted Ordinance No. 806 to establish a Cannabis Business Pilot Program, which allows for the regulation of cannabis businesses within the City pursuant to a development agreement and a conditional use permit. On December 5, 2017, the City Council adopted Ordinance No. 807 to establish zoning limitations and requirements for all cannabis businesses.
Central Valley - Sierra Associates
Attn: Sadie Schut
100 West Las Palmas Avenue, Suite H
Patterson, CA 95363
City ofPatterson
Administration Department
1 Plaza
P.O. Box 667
Patterson, California 95363
Phone (209) 895-8010 Fax (209) 895-8019
www.ci.patterson.ca.us
On December 5, 20 1 7, the City Council approved Ordinance No. 8 12 which authorized Developer to operate the Project in exchange for the monthly payment of a “Public Benefit Amount.” This correspondence constitutes a side letter (“Side Letter”) concerning the development agreement (“Original Agreement”) between the City of Patterson (“City”) and Central Valley - Sierra Associates (“Developer”), relating to the Developer’s operation of a cannabis dispensary business (the “Project”).
8.1.d
Packet Pg. 140 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates) Public Benefit Due Date Deferral Payment
February 1, 2018 $5,000 per month
II. Effect of Deferral
Sincerely,
2 Ken Irwin
City Manager
Developer acknowledges and agrees that Developer will be responsible for paying the Deferral Payment amount, each month, for every month that Developer fails to open their business to the public. In order to catch up on the amount of Thirty Five Thousand Dollars ($35,000), Developer must pay that amount in full by September 28, 20 18. Ongoing payments for the Deferral Payment amounts will be due on the first day ofeach month.
Total Due as of the
Effective Date
$35,000
Number of Months
in Deferral
7 All other terms and provisions ofthe Original Agreement shall remain in full force and effect. Ifany terms or provisions ofthis Side Letter conflicts with terms and provisions ofthe Original Agreement, the terms and provisions ofthis Side Letter shall control.
Developer acknowledges and agrees that fifty percent (50%) of the Tier 1 Amount equals Five Thousand Dollars ($5,000) per month (the “Remainder Amount”). Developer acknowledges and agrees to pay the Remainder Amount in twelve (12) monthly equal payments once their business opens to the public. Developer agrees and acknowledges that the Remainder Amount shall be paid, in addition to any Public Benefit Amount then due and payable.
from the Public Benefit Due Date until Developer opens their business to the public. The chart below summarizes the current relevant amounts to the Deferral Payment:
8.1.d
Packet Pg. 141 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates) April 17, 2019
Dear Ms. Schut,
The Development Agreement establishes potential consequences for Central Valley's failure to pay any outstanding Public Benefit Amounts, including the assessment of a non-performance penalty. Central Valley's failure to comply with the terms of the Development Agreement may also delay or ultimately At this time Central Valley is in default of the Development Agreement and the deferral agreement. By not signing the deferral agreement, you are currently required to pay the full amount prescribed in the Development Agreement. To get back into good standing, Central Valley would need to pay the fees in full. If you prefer to sign the deferral agreement I will be comfortable letting you pay the deferral amount. The current non-deferred amount is $195,000 and the deferred amount owed is $97,500. At a minimum the deferred Public Benefit fee accompanying the signed deferral side letter will be required prior to obtaining a business license and opening business.
The site will also need to be inspected for the minimum compliance with Public Safety, ADA requirement, and a landscape plan will need to be submitted for review.
After careful consideration, we are unable to consider your request for forgiveness for the amount you owe for the past 6 months. On June 19, 2018, an agenda item was brought to City Council regarding the Public Benefit Fee for them to consider deferring the Public Benefit fee for the businesses that had not yet began business. This was due to the unavailability of vacant buildings or buildings that required major tenant improvements. At that time, they were strongly opposed to deferring more than 50% of the Public Benefit fee prior to the individual businesses opening their operations. As I had explained in my email to you on Nov 28, 2018, the Council was not interested in further cuts to the Public Benefit fee.
A resolution was passed that night that allowed the business to pay a deferred amount of 50% of the negotiated fee from the Development Agreement (DA) codified by a side letter to the DA. After the Business opened, they would be required to pay 100% of the Public Benefit fee plus would have to make up the deferred amount within one year of opening.
Central Valley Sierra Associates
Attn: Ms. Sadie Schut
PO Box 135
Patterson, CA 95363
City of Patterson
Office of the City Manager
1 Plaza
P.O. Box 667
Patterson, California 95363
Bus. (209) 895-8015
Main (209) 895-8010
Email kirwin@,ci.patterson.ca.us
As you are aware, the Patterson City Council ("City Council") approved a development agreement ("Development Agreement") by and between the City of Patterson (the "City") and Central Valley - Sierra Associates ("Central Valley") for the operation of a cannabis dispensary.
8.1.d
Packet Pg. 142 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates) Sincerely,
2 The City's goal is to work with you to ensure compliance with the terms of the Development Agreement and is not assessing a non-performance penalty at this time. Please feel free to contact Kevin in the Finance Department if you have any questions regarding your payment amount. bar any subsequent City approvals necessary for the project, or ultimately result in the possible suspension or revocation of the project's CUP or termination of the Development Agreement.
If Central Valley fails to make the necessary Public Benefit payments, the City may exercise all options available under the Development Agreement, including, but not limited to, initiating the process of revoking the project's CUP and terminating the Agreement.
Ken Irwin
City Manager
8.1.d
Packet Pg. 143 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates) churchwellwhite.com
October 28, 2020
VIA CERTIFIED MAIL/RETURN RECEIPT REQUESTED
Re: Development Agreement: Default: Notice
Dear Ms. Schut:
Failure to Pay Public Benefit
{CW098395 4)
In consideration for Developer's vested right to operate the Project, the Developer is required to pay the City a "Public Benefit Amount” due on the first business day of any applicable month. Pursuant to section 4.2 of the Agreement, Developer is obligated to This communication is formal notice that Developer is in default of the Agreement for the reason specified below. In the event the Developer fails to rectify the breach by the end of the Cure Period discussed below, the City will take the necessary steps to terminate the Agreement and revoke the Project's Conditional Use Permit ("CUP").
Archie Norris, PLC
2033 North Main Street, Suite 800
Walnut Creek, CA 94596
Sadie Schut
Central Valley - Sierra Associates
100 West Las Palmas Avenue, Suite H
Patterson, CA 95363
1414 K Street, 3'd Floor
Sacramento, CA 95814
T 916 468 0950 I F 916 468 0951
Nubia I Goldstein
T 916 468 0946
Nubia@churchwellwhite com
On December 5, 2017, the Patterson City Council ("City Council”) adopted Ordinance No. 812 approving the development agreement (the “Agreement”) by and between the City of Patterson (the "City”) and Central Valley - Sierra Associates, a California nonprofit mutual benefit corporation (the "Developer") to allow Developer to operate a commercial cannabis retail business (the "Project”) at 100 West Las Palmas Avenue, Suite H, Patterson, CA 95363 (the "Property").
Churchwell White LLP
8.1.d
Packet Pg. 144 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates) {CW098395 4}
In addition to the Public Benefit Amount, the City is entitled to impose a NonPerformance Penalty of one percent (1%) to all past due payments, pursuant to section
4.5 of the Agreement, and an additional ten percent (10%) penalty for failing to comply with the Side Letter ("Non-Performance Penalties”). Bringing Developer into compliance with the Agreement forces the City to accrue considerable costs, and is a primary consideration when deciding whether to apply the Non-Performance Penalties. Although the City has not yet imposed the Non-Performance Penalties, it still remains an option. Further, section 4.6 of the Agreement imposes an additional On November 29, 2018, Developer executed a side letter ("Initial Side Letter") agreeing to a deferral for a portion of the Public Benefit Amount until Developer opens the Project ("Deferred Benefit Fee”). On May 30, 2019, the City and Developer entered into a second side letter ("Side Letter") wherein Developer agreed to pay Fifty Percent (50%) of the Deferred Benefit Fee, Forty-Eight Thousand Seven Hundred and Fifty Dollars ($48,750), within sixty (60) days of opening the Project. Developer further agreed and acknowledged that the Deferred Benefit Fee in the Initial Side Letter and the Public Benefit Amount shall be paid in full.
make minimum payments to the City of Ten Thousand Dollars ($10,000) or five percent (5%) of gross receipts, whichever is greater, from operations for the first twelve (12) months. On the first (1st) day of the thirteenth (13th) month of operation through the end of the Agreement, Developer is required to pay the City Twenty-Five Thousand Dollars ($25,000) or five percent (5%) of gross receipts, whichever is greater, from all operations.
Sadie Shut
October 28, 2020
Pursuant to section 4.2 of the Agreement, the City has calculated the Developer's outstanding Public Benefit Amount to be at six hundred and forty-five thousand dollars ($645,000.00). As of October 21, 2020, Developer has paid a total of seventy thousand seven hundred and fifty dollars ($70,750.00) of the Public Benefit Amount Based on Developer's partial payments and non-payments, the total Public Benefit Amount due to date is five hundred and seventy-four thousand and two hundred and fifty dollars ($574,250.00). This is despite Developer's license renewal documents showing Developer's annual income to be seven hundred thousand dollars ($700,000).
Developer's failure to remit the required payments of the Public Benefit Amount to the City constitutes a default of the Agreement pursuant to section 8.1(a).
8.1.d
Packet Pg. 145 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates) Cure Period
Kind regards,
Churchwell White LLP
/s/ Nubia I. Goldstein
Nubia I. Goldstein
cc: Ken Irwin, City Manager (via email)
{CW098395 4)
Sadie Shut October 28, 2020
Non-Performance Penalty of eighteen percent (18%) per annum for failure to pay the one percent (1%) Non-Performance Penalty.
Developer has ten (10) calendar days of this notice (the "Cure Period”) to cure Developer's failure to pay the outstanding Public Benefit Amount in full. Once the Cure Period lapses and Developer has not made the required payment, the City may institute procedures to terminate the Agreement and revoke the CUP.
If you have any questions or concerns regarding the contents of this letter, please do not hesitate to contact me.
8.1.d
Packet Pg. 146 Attachment: Exhibit 4 - Letter from CVSA Attorney A. Almaz date July 13, 2023 (Appeal No. 23-01, By Central Valley-Sierra Associates) churchwellwhite.com
1414 K Street, 3rd Floor
Sacramento, CA 95814
T 916.468.0950 | F 916.468.0951
{CW098395.4}
October 28, 2020
VIA CERTIFIED MAIL/RETURN RECEIPT REQUESTED
Sadie Schut
Central Valley – Sierra Associates
100 West Las Palmas Avenue, Suite H
Patterson, CA 95363
Archer Norris, PLC
2033 North Main Street, Suite 800
Walnut Creek, CA 94596
Re: Development Agreement: Default: Notice
Dear Ms. Schut:
On December 5, 2017, the Patterson City Council (“City Council”) adopted Ordinance No. 812 approving the development agreement (the “Agreement”) by and between the City of Patterson (the “City”) and Central Valley – Sierra Associates, a California nonprofit mutual benefit corporation (the “Developer”) to allow Developer to operate a commercial cannabis retail business (the “Project”) at 100 West Las Palmas Avenue, Suite H, Patterson, CA 95363 (the “Property”).
This communication is formal notice that Developer is in default of the Agreement for the reason specified below. In the event the Developer fails to rectify the breach by the end of the Cure Period discussed below, the City will take the necessary steps to terminate the Agreement and revoke the Project’s Conditional Use Permit (“CUP”).
Failure to Pay Public Benefit
In consideration for Developer’s vested right to operate the Project, the Developer is required to pay the City a “Public Benefit Amount” due on the first business day of any applicable month. Pursuant to section 4.2 of the Agreement, Developer is obligated to Nubia I. Goldstein
T: 916.468.0946
[email protected]
8.1.e
Packet Pg. 147 Attachment: Exhibit 5 - Default Notice to CVSA, from N. Goldstein, dated October 28, 2020 (Appeal No. 23-01, By Central Valley-Sierra Sadie Shut
October 28, 2020
{CW098395.4}
make minimum payments to the City of Ten Thousand Dollars ($10,000) or five percent (5%) of gross receipts, whichever is greater, from operations for the first twelve (12) months. On the first (1st) day of the thirteenth (13th) month of operation through the end of the Agreement, Developer is required to pay the City Twenty-Five Thousand Dollars ($25,000) or five percent (5%) of gross receipts, whichever is greater, from all operations.
On November 29, 2018, Developer executed a side letter (“Initial Side Letter”) agreeing to a deferral for a portion of the Public Benefit Amount until Developer opens the Project (“Deferred Benefit Fee”). On May 30, 2019, the City and Developer entered into a second side letter (“Side Letter”) wherein Developer agreed to pay Fifty Percent (50%) of the Deferred Benefit Fee, Forty-Eight Thousand Seven Hundred and Fifty Dollars ($48,750), within sixty (60) days of opening the Project. Developer further agreed and acknowledged that the Deferred Benefit Fee in the Initial Side Letter and the Public Benefit Amount shall be paid in full.
Pursuant to section 4.2 of the Agreement, the City has calculated the Developer’s outstanding Public Benefit Amount to be at six hundred and forty-five thousand dollars ($645,000.00). As of October 21, 2020, Developer has paid a total of seventy thousand seven hundred and fifty dollars ($70,750.00) of the Public Benefit Amount.
Based on Developer’s partial payments and non-payments, the total Public Benefit Amount due to date is five hundred and seventy-four thousand and two hundred and fifty dollars ($574,250.00). This is despite Developer’s license renewal documents showing Developer’s annual income to be seven hundred thousand dollars ($700,000).
Developer’s failure to remit the required payments of the Public Benefit Amount to the City constitutes a default of the Agreement pursuant to section 8.1(a).
In addition to the Public Benefit Amount, the City is entitled to impose a NonPerformance Penalty of one percent (1%) to all past due payments, pursuant to section
4.5 of the Agreement, and an additional ten percent (10%) penalty for failing to comply with the Side Letter (“Non-Performance Penalties”). Bringing Developer into compliance with the Agreement forces the City to accrue considerable costs, and is a primary consideration when deciding whether to apply the Non-Performance Penalties. Although the City has not yet imposed the Non-Performance Penalties, it still remains an option. Further, section 4.6 of the Agreement imposes an additional
8.1.e
Packet Pg. 148 Attachment: Exhibit 5 - Default Notice to CVSA, from N. Goldstein, dated October 28, 2020 (Appeal No. 23-01, By Central Valley-Sierra Sadie Shut
October 28, 2020
{CW098395.4}
Non-Performance Penalty of eighteen percent (18%) per annum for failure to pay the one percent (1%) Non-Performance Penalty.
Cure Period
Developer has ten (10) calendar days of this notice (the “Cure Period”) to cure Developer’s failure to pay the outstanding Public Benefit Amount in full. Once the Cure Period lapses and Developer has not made the required payment, the City may institute procedures to terminate the Agreement and revoke the CUP.
If you have any questions or concerns regarding the contents of this letter, please do not hesitate to contact me.
Kind regards,
Churchwell White LLP
/s/ Nubia I. Goldstein
Nubia I. Goldstein
cc: Ken Irwin, City Manager (via email)
8.1.e
Packet Pg. 149 Attachment: Exhibit 5 - Default Notice to CVSA, from N. Goldstein, dated October 28, 2020 (Appeal No. 23-01, By Central Valley-Sierra City of Patterson
Office of the City Manager
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VIA EMAIL AND REGULAR MAIL
October 21,2021
Sadie Schut
Central Val ley-Sierra Associates
100 West Las Palmas Avenue, Suite H
Patterson,CA 95363
Re:Cannabis Development Agreement - Central Valley-Sierra Associates Dear Sadie Schut.
This correspondence concems the development agreement ("Development Asreement") between the City of Patterson feily) and Central Valley-Sierra Associates ("Develooer"), approved and adopted by the Patterson City Council in December 2017, for the operation of a cannabis retail business located at 100 West Las Palmas Avenue, Suite H, Patterson,CA 95363 (the "Proiect").
Developer is cunently in default of the terms set forth in the Development Agreement. As detailed below, there are several outstanding matters that need to be addressed.'Ihe City is implementing significant changes to the City's cannabis program that will apply to the Project, including amending the Development Agreement to include payment of a cannabis business tax as a requirement ibr the Project, a schedule to bring each operator current on their respective delinquent Public Benefit payments, and a timeline for completion of any construction or tenant improvements necessary for each cannabis business, ifapplicable.
To this end, this letter outlines the necessary changes to the Project's entitlements, including the Development Agreement, with the goal of bringing Developer back in good standing and enable the Project to operate under mutually beneficial terms.
Project Approval and Public Benefit
The Patterson City Council approved and adopted the Development Agreement in 2017. Under the terms of the Development Agreement, Developer is required to pay a monthly public benefit to City ("the Public Benefit"). Since the adoption of the Development Agreement and the subsequent land use entitlements for the Project, Developer and City have entered into alternative payment schedules of the Public Benefit at Developer's request. Developer requested and was granted a deferral ofhalfofthe amounts due until such time as the business opened to the public, with the remaining amounts due in twelve (12) equal payments after opening.
8.1.f
Packet Pg. 150 Attachment: Exhibit 6 - Letter and Offer to Settle, from K. Irwin, dated October 21, 2021 (Appeal No. 23-01, By Central Valley-Sierra Associates) The City's agreement to defer the Public Benefit was predicated on Developer's assurances that the defened amounts would be paid as agreed upon and that the Public Benefit would be paid on time moving forward. Developer has paid $95,750 to the City as payment toward the total Public Benefit due. However, as of the date of this letter, Developer is delinquent in Public Benefit payments in the amount of $799,250. Developer's failure to remit the required Public Benefit at the agreed upon time to the City has resulted in an overdue Public Benefit amount, (the "Delinquent Public Benefit"). Repayment of the Delinquent Public Benefit is critical to the Project's ability to continue operating.
Cannabis Business Tax
In 2018, City voters passed Measure Y authorizing the levy ofa tax on cannabis businesses at the rate of up to fifteen percent (15%) of gross receipts. Until recently, the City Council has not imposed a tax on cannabis businesses since Measure Y was adopted, but instead solely relied on the Public Benefit established in the operative development agreements for each cannabis business to collect revenue. The City Council adopted a resolution in July 2021, establishing a tax rate for all cannabis business operations, including retailers, cultivation, and manufacturing based on monthly gross receipts. The tax rate for retail is set at a rate ofseven percent (7%o); the tax rate for manufacturing is five percent (5%); and the tax rate for cultivation is two and a halfpe rcent (2.5%o).
Development Agreement Revisions and Repayment
Developer must agree to the following items within the specified timeframe in order to extinguish the Delinquent Public Benefit and bring the Project back to good standing:
1. Developer agrees to pay City Seventy nine thousand nine hundred twenty five dollars ($79,925) to offset the entire Delinquent Public Benefit (the "Adiusted Public Benefit').
Payment shall be made in full within sixty (60) calendar days of the date Developer executes the required Acknowledgement and Acceptance form attached to this letter. The new Adjusted Public Benefit is calculated as 107o of the total Delinquent Public Benefit.
2. Upon Developer's payment, City acknowledges full and complete satisfaction of the Delinquent Public Benefit. City agrees to waive the remainder of the Delinquent Public Benefit amount through September 30,2021.
3. City shall process and Developer shall agree to execute an amendment to the Development Agreement to address the following:
a. The Adjusted Public Benefit constitutes City and Developer's final compromise as to the Delinquent Public Benefit. In the event Developer fails to make the Adjusted Public Benefit payment by the due date, it shall constitute a breach of the Development Agreement and condition of approval for the Project and City may in its sole discretion begin the necessary proceedings to terminate the Development Agreement and revoke the Conditional Use Permit for the Project. Developer shall waive the notice and cure provisions associated with any such delinquency set forth in the Development Agreement.
8.1.f
Packet Pg. 151 Attachment: Exhibit 6 - Letter and Offer to Settle, from K. Irwin, dated October 21, 2021 (Appeal No. 23-01, By Central Valley-Sierra Associates) b. Developer will be subject to City's cannabis business tax on an ongoing basis. The amended Development Agreement will establish a new Public Benefit payment schedule requiring a monthly minimum payment of $7,000, or a 7Vo tax rate of Developer's gross receipts, whichever is higher. The new Public Benefit shall become effective on the first business day following adoption of the amended Development Agreement.
Your prompt attention to this matter is required. You must submit an executed Acknowledgement and Acceptance form by November 30,2021to give City stalf suflicient time to begin the process of amending the Development Agreement. The City's goal is for the Project to reach its full potential. However, the Project has not complied with its financial obligations to date. If the City does not receive an executed Acknowledgment and Acceptance form, we will initiate the proceedings to terminate the Development Agreement and revocation ofthe Project's Conditional Use Permit under the tenns ofthe Project approvals.
Please feel free to contact me or the City Attomey if you have any questions or concems.
Nubia I. Goldstein, City Attomey
Sincerely, ) ./r %/
Ken Irwin
City Manager
8.1.f
Packet Pg. 152 Attachment: Exhibit 6 - Letter and Offer to Settle, from K. Irwin, dated October 21, 2021 (Appeal No. 23-01, By Central Valley-Sierra Associates)
ACKNOWLEDGMENT AND ACCEPTANCE
Developer acknowledges receipt of the foregoing letter and agrees to act under and pursuant to the terms and conditions set forth herein.
DEVELOPER:
Central Valley-Sierra Associates
(name)
Date:
8.1.f
Packet Pg. 153 Attachment: Exhibit 6 - Letter and Offer to Settle, from K. Irwin, dated October 21, 2021 (Appeal No. 23-01, By Central Valley-Sierra Associates)
VIA EMAIL AND REGULAR MAIL
June 17, 2022
Re: Cannabis Development Agreement - Central Valley - Sierra Associates Dear Ms. Schut:
Development Agreement Revisions and Repayment
Sasha Brodsky
Attorney at Law
1362 Pacific Avenue, Suite 219
Santa Cruz, CA 95060
Central Valley - Sierra Associates
100 West Las Palmas Avenue, Suite H
Patterson, CA 95363
Attention: Sadie Schut
This correspondence concerns the development agreement (“Development Agreement'’) between the City of Patterson (“City”) and Central Valley-Sierra Associates (“Developer”), approved and adopted by the Patterson City Council in December 2017, for the operation of a cannabis retail business located at 100 West Las Palmas Avenue, Suite H, Patterson CA 95363 (the “Project”).
Following several discussions and based on Mr. Brodsky’s emails dated March 10, 2022 and December 6, 202 1 , you have requested a modification to the City’s proposal to bring your Project current and resolve all outstanding issues with the Project’s delinquent public benefit. After careful consideration, the City will not grant your request for any reduction or deferral of payment for the delinquent public benefit amount owed.
While the City will not agree to your proposed reduction and payment modifications, this letter outlines the necessary changes to the Project’s entitlements, including the Development Agreement, with the goal of bringing your Project back in good standing and enable the Project to continue operations.
You must agree to the following items within the specified timeframe in order to extinguish the delinquent public benefit and bring the Project back to good standing:
R 1
City of Patterson
Office of the City Manager
I Plaza
P.O. Box 667
Patterson. Cali torn ia 95363
Bus. (209) 895-8015
Main (209) 895-8010
Email k irwin@c i. patterson ,ca. us
1 . To offset the entire delinquent amount (the “Adjusted Public Benefit”), you must agree to pay City Seventy-Nine Thousand Nine Hundred Twenty-Five Dollars ($79,925.00). Payment shall be made in full within ten (10) calendar days of the date you execute the required Acknowledgement and Acceptance form attached to this letter. Further, you must pay the City seven percent (7%) of gross
8.1.g
Packet Pg. 154 Attachment: Exhibit 7 - Letter and Second Offer to Settle, from K. Irwin, dated June 17, 2022 (Appeal No. 23-01, By Central Valley-Sierra
2. 3.
a.
b.
Please feel free to contact me or the City Attorney if you have any questions or concerns.
Sincerely,
CC: Nubia 1. Goldstein, City Attorney
2 Ken Irwin
City Manager
receipts from operating the Project starting from the date of the previous offer letter dated October 21, 2021 to date. Full payment of this amount shall be made within thirty (30) calendar days of the date you execute the required Acknowledgement and Acceptance form.
Upon payment, City acknowledges full and complete satisfaction of the Adjusted Public Benefit.
City agrees to waive the remainder of the delinquent public benefit amount to date.
The Adjusted Public Benefit constitutes the final compromise as to the delinquent public benefit. In the event you fail to make the Adjusted Public Benefit payment by the due date, it shall constitute a breach of the Development Agreement and condition of approval for the Project and City may in its sole discretion begin the necessary proceedings to terminate the Development Agreement and revoke the Conditional Use Permit for the Project. You shall waive the notice and cure provisions associated with any such delinquency set forth in the Development Agreement.
As detailed in the letter dated September 21, 2021, you are currently in default of the terms set forth in the Development Agreement. In the event you fail to rectify the breach within 10 calendar days as outlined in this letter, the City will take the necessary steps to terminate the Development Agreement and revoke the Project’s Conditional Use Permit (“CUP”).
City shall process and you shall agree to execute an amendment to the Development Agreement to address the following:
You will be subject to City’s cannabis business tax on an ongoing basis. The amended Development Agreement will establish a new public benefit payment schedule requiring a monthly minimum payment of $7,000 or a 7% tax rate of Developer’s gross receipts, whichever is higher. The new public benefit shall become effective on the first business day following adoption of the amended Development Agreement.
Your prompt attention to this matter is required. You must submit an executed Acknowledgement and Acceptance form by July 5, 2022 to give City staff sufficient time to begin the process of amending the Development Agreement. The City’s goal is for the Project to reach its full potential. However, the Project has not complied with its financial obligations to date. If the City does not receive an executed Acknowledgment and Acceptance form, we will initiate the proceedings to terminate the Development Agreement and revocation ofthe Project’s Conditional Use Permit under the terms of the Project approvals.
8.1.g
Packet Pg. 155 Attachment: Exhibit 7 - Letter and Second Offer to Settle, from K. Irwin, dated June 17, 2022 (Appeal No. 23-01, By Central Valley-Sierra
ACKNOWLEDGMENT AND ACCEPTANCE
DEVELOPER:
Central Valley - Sierra Associates
(name)
Date:
3 Developer acknowledges receipt ofthe foregoing letter and agrees to act under and pursuant to the terms and conditions set forth herein.
8.1.g
Packet Pg. 156 Attachment: Exhibit 7 - Letter and Second Offer to Settle, from K. Irwin, dated June 17, 2022 (Appeal No. 23-01, By Central Valley-Sierra whitebrennerllp.com
1414 K Street, 3
rd Floor
Sacramento, CA 95814
T 916.468.0950 | F 916.468.0951
{CW127336.5}
March 29, 2023
VIA U.S. CERTIFIED MAIL RETURN RECIEPT
Sasha Brodsky, Esq.
Attorney at Law
1362 Pacific Avenue
Santa Cruz, CA 95060
Central Valley – Sierra Associates
100 West Las Palmas Avenue, Suite H
Patterson, CA 95363
Attention : Sadie Schut
Re.: Central Valley – Sierra Associates Development Agreement Dear Ms. Schut and Mr. Brodsky:
This is to advise that due to Central Valley-Sierra Associates’ (“CVSA”) longstanding default of the terms set forth in the development agreement (“Development Agreement”) between the City of Patterson (“City”) and CVSA, which expired in July 2022, the City will be taking action to confirm the expiration of the Development Agreement and revoke the Conditional Use Permit (“CUP”) issued to CVSA.
As you know, on December 5, 2017, the Patterson City Council (“City Council”) adopted Ordinance No. 812 approving the Development Agreement to allow CVSA to operate a commercial cannabis retail business at 100 West Las Palmas Avenue, Suite H, Patterson, CA 95363 (the “Project”). Under Section 1.7 of the Development Agreement, the initial term of the Development Agreement commenced on January 4, 2018, the date Ordinance 812 took effect. Under the terms of the Development Agreement, CVSA was required to pay a monthly public benefit to the City (the “Public Benefit Amount").
Following the adoption of the Development Agreement and the subsequent land use entitlements for the Project, CVSA and City entered into alternative payment schedules of the Public Benefit Amount at CVSA's request. CVSA requested and was granted a deferral of half the amounts due until such time as the business opened to the public (“Deferral Payment”), with the remaining amounts due in twelve (12) equal payments after opening.
Nubia I. Goldstein
T: 916.468.0946
[email protected]
8.1.h
Packet Pg. 157 Attachment: Exhibit 8 - Letter re Intent to Revoke CUP and Terminate DA, from N. Goldstein, March 29, 2023 (Appeal No. 23-01, By Central Sasha Brodsky, Esq.
Sadie Schut
March 29, 2023
{CW127336.5}
The City's agreement to defer the Public Benefit Amount was predicated on CVSA's assurances that the Deferral Payment would be paid as agreed upon and that the Public Benefit Amount would be paid on time moving forward. CVSA's failure to remit the required Public Benefit Amount at the agreed upon time to the City resulted in an overdue Public Benefit Amount (the “Delinquent Public Benefit Amount”) and constitutes a default of the Development Agreement pursuant to section 8.1(a).
Following several discussions and through emails from Mr. Brodsky dated December 6, 2021, and March 10, 2022, CVSA requested a reduction in amounts due and modification of City’s proposal to bring the Project current and resolve those outstanding issues with the Delinquent Public Benefit Amount owed.
On June 17, 2022, the City sent CVSA a letter declining CVSA’s proposed reduction and payment modifications to the Delinquent Public Benefit Amount. This letter also made an offer to resolve the entire Delinquent Public Benefit Amount for $79,925, subject to certain specified terms and conditions. The letter requested a response from CVSA within 10 calendar days, pursuant to Section 8.1(a) of the Development Agreement. In emails to the City following this letter, CVSA tried to amend this proposal. The most recent correspondence from Mr. Brodsky, dated December 19, 2022, proposed a counteroffer that included a payment plan and schedule, among other terms.
The City Council has rejected this counteroffer. Moreover, the Development Agreement expired on July 4, 2022. Section 1.7 of the Development Agreement provides that “the Initial Term and the Conditionally Extended Terms, if granted, shall not exceed fifty-hour (54) months, unless otherwise extended pursuant to the terms of this Agreement.” (Development Agreement, Sec. 1.7.) The City and CVSA have never agreed to an extension of the 54-month period, and the Development Agreement.
For the reasons explained above, the City has determined that it will no longer entertain discussions to resolve this delinquency and it will not be renewing or reinstating the Development Agreement with CVSA. This will provide notice that the City will be taking action to confirm the expiration of the Development Agreement and revoke the Project’s CUP under the terms of the Project approvals. Once a revocation hearing for the CUP is scheduled, the City will provide notice of the hearing in accordance with Section 8.1(c), Patterson Municipal Code section 18.14.050, and California Government Code sections 65090 and 65094.
Please contact me or City Manager Ken Irwin if you have any questions.
8.1.h
Packet Pg. 158 Attachment: Exhibit 8 - Letter re Intent to Revoke CUP and Terminate DA, from N. Goldstein, March 29, 2023 (Appeal No. 23-01, By Central Sasha Brodsky, Esq.
Sadie Schut
March 29, 2023
{CW127336.5} Regards,
White Brenner LLP
Nubia I. Goldstein
JSM/CA
Cc: Ken Irwin, City Manager
8.1.h
Packet Pg. 159 Attachment: Exhibit 8 - Letter re Intent to Revoke CUP and Terminate DA, from N. Goldstein, March 29, 2023 (Appeal No. 23-01, By Central Sasha Brodsky, Esq.
Sadie Schut
March 29, 2023
{CW127336.5}
DECLARATION OF SERVICE
I am a citizen of the United States, over the age of 18 years, and not a party to or interested in this action. I am employed by White Brenner LLP and my business address is 1414 K Street, 3rd Floor, Sacramento, CA 95814. On this day, I caused to be served the following document(s):
February 3, 2023 Notice of Intent to Seek Inspection and Abatement Warrant XX By United States Certified Mail Return Receipt. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses set forth below and deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid.
Jeffrey Smith and Michelle Smith
6212 Don Carlos Avenue
Riverbank, CA 95367
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 3, 2023, at Sacramento, California. ___________________________________
Patrick R. Barbieri
8.1.h
Packet Pg. 160 Attachment: Exhibit 8 - Letter re Intent to Revoke CUP and Terminate DA, from N. Goldstein, March 29, 2023 (Appeal No. 23-01, By Central City Council Agenda Report
TO: Mayor Clauzel and Members of the City Council
FROM: Ken Irwin, City Manager
BY: Nubia Goldstein, City Attorney
MEETING DATE: August 15, 2023
ITEM NO: 8.2
SUBJECT: Approve First Reading and Introduction of Ordinance No. 870, Reading by Title Only, Waiving Further Reading, an Ordinance of the City Council of the City of Patterson, Confirming the Termination of the Development Agreement By and Between the City of Patterson and Central ValleySierra Associates and Authorizing the Recording of a Notice of Termination.
RECOMMENDATION
Motion to Approve First Reading and Introduction of Ordinance No. 870, Reading by Title Only, Waiving Further Reading, an Ordinance of the City Council of the City of Patterson, Confirming the Termination of the Development Agreement By and Between the City of Patterson and Central Valley-Sierra Associates and Authorizing the Recording of a Notice of Termination.
BACKGROUND
Following consideration and recommendations from the City Planning Commission (“Planning Commission”), on December 5, 2017 the City adopted Ordinance No. 812 approving the Development Agreement (“DA”) for the operation of a cannabis dispensary business located at 100 West Las Palmas Avenue, Suite H, Patterson CA 95363, Assessor’s Parcel Number 131- 003-012 (the “Site”). On December 21, 2017, the Planning Commission voted to adopt Resolution 2017-14, approving Conditional Use Permit No. 17-21 (the “CUP”), associated with CVSA’s application for a cannabis dispensary (the “Project”) to be located at the Site.
Section 4.2 of the DA requires CVSA to pay to the City certain amounts to offset the impacts to City infrastructure, services, and neighborhoods, commensurate with the private benefits conferred on CVSA (the “Public Benefit Amount”), pursuant to the terms stated therein. CVSA failed to make the required Public Benefit Amount payments (the “Delinquent Public Benefit
8.2 Packet Pg. 161
Amount”) by the agreed-upon terms, resulting in a default of the DA, pursuant to Section 4.3 and
8.1(a).
On June 17, 2022, following discussions between the City and CVSA in an attempt to the resolve the default and bring the Project current, City wrote a letter to CVSA, in accordance with Section
8.1 of the DA, which specifies the nature of the default and the manner in which the default may be cured, included an offer to settle the Delinquent Public Benefit Amount and cure CVSA’s default, and provided 10 days’ notice that if the default was not cured during that period, the City would commence proceedings to revoke the CUP and terminate the DA. CVSA did not accept the City’s offer but proposed a counteroffer with additional terms. The parties did not reach a resolution.
In or around January 2023, CVSA engaged a new company, Catalyst Cannabis Company (“Catalyst”) to assist with operation and management of the Project. Catalyst and the City engaged in further discussions but did not reach an agreement to resolve the Delinquent Public Benefit Amount, cure the default, or extend the term of the DA.
Thus, the City and CVSA ultimately did not reach an agreement to resolve the Delinquent Public Benefit Amount or to extend the term of the DA, and CVSA failed to cure the default. The DA, by its own terms, expired on or about July 4, 2022.
ANALYSIS
Under Section 9.3 of the Development Agreement, the City has no further obligation to comply with the DA, or any portion thereof, upon its termination. The City’s obligations to CVSA stopped as of July 4, 2022, when the DA terminated pursuant to Section 1.7. On March 29, 2023, City sent notice to CVSA of its intent to revoke the CUP, pursuant to Section 8.1(b) of the DA, and no response was received within the required 10 days.
Section 9.1. of the DA provides that upon termination, the City shall record a notice of such termination (“Notice of Termination”), and the DA shall be of no force or effect. Section 9.3. provides that termination of the DA does not eliminate the City’s right to seek any applicable and available remedies or damages based on acts or omissions occurring before termination, including recovery of the Delinquent Public Benefit Amounts due as of the termination date.
On July 13, 2023, the Planning Commission adopted Resolution No. 2023-07, revoking the CUP associated with this Project, No. 17-21, for failure to comply with Conditions of Approval. The Planning Commission found that the DA terminated on July 4, 2022, that CVSA was in default of the DA at the time of termination and had failed to cure the default. Also on July 13, 2023, following a public hearing, the Planning Commission passed Resolution No. 2023-06 recommending that the City Council adopt an Ordinance to confirm the termination of the DA.
With the CUP now revoked, the cannabis dispensary can no longer legally operate.
This Ordinance will (1) confirm that the DA was terminated on July 4, 2022; (2) authorize staff to record a Notice of Termination, drafted in accordance with the requirements stated in the DA; and (3) confirm that the DA shall be of no force or effect except as otherwise set forth therein.
The proposed Notice of Termination is attached as Exhibit A.
8.2 Packet Pg. 162
The City Council’s options are:
1. Introduce the Ordinance No. 870 for a first reading;
2. Continue introduction of the Ordinance No. 870 for a first reading to the next regular City Council meeting with changes or revisions as provided by the City Council;
3. Reject the introduction of Ordinance No. 870 for first reading.
RECOMMENDED ACTION
Waive first reading, read by title only, and introduce an ordinance confirming the termination of the development agreement by and between the City and CVSA and authorizing the recording of a Notice of Termination.
ATTACHMENTS
Proposed Ordinance No. 870
Proposed Notice of Termination
FISCAL IMPACT
The City would lose potential tax revenue due to the closing of the cannabis dispensary at the Site, which would result from termination of the Development Agreement with CVSA.
8.2 Packet Pg. 163
ORDINANCE NO. 870
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PATTERSON
CONFIRMING THE TERMINATION OF THE DEVELOPMENT AGREEMENT BY
AND BETWEEN THE CITY OF PATTERSON AND CENTRAL VALLEY-SIERRA
ASSOCIATES AND AUTHORIZING THE RECORDING OF A NOTICE OF
TERMINATION
WHEREAS, on December 5, 2017 the City adopted Ordinance No. 812 approving a Development Agreement (the “Agreement”) between the City of Patterson (the “City”) and Central Valley-Sierra Associates (the “Operator”) for the operation of a cannabis dispensary business (the “Project”) located at 100 West Las Palmas Avenue, Suite H, Patterson CA 95363, Assessor’s Parcel Number 131-003-012 (the “Site”); and
WHEREAS, Section 4.2 of the Agreement requires Operator to pay to the City certain amounts to offset the impacts to City infrastructure, services, and neighborhoods, commensurate with the private benefits conferred on Operator (the “Public Benefit Amount”), pursuant to the terms stated in Section 4.2 of the Development Agreement; and WHEREAS, Section 4.3 of the Agreement requires that any failure by Operator to make any Public Benefit Amount payments to the City as they become due and payable in accordance with the terms of the Agreement “may constitute full and sufficient grounds for the revocation” of the Conditional Use Permit (“CUP”) associated with the Project; and WHEREAS, the Operator failed to make the required Public Benefit Amount payments (the “Delinquent Public Benefit Amount”) by the agreed-upon terms, resulting in a default of the Agreement, pursuant to Section 4.3 and 8.1(a); and
WHEREAS, on June 17, 2022, following unsuccessful discussions to resolve the default and bring the Project current, City gave written notice to Operator specifying the nature of the default and the manner in which the default may be cured, included an offer to settle the Delinquent Public Benefit Amount and cure Operator’s default, and provided 10 days’ notice that if the default was not cured during that period, the City would commence proceedings to revoke the CUP and terminate the Development Agreement with Operator; and
WHEREAS, Operator failed to cure any of the material defaults of the Agreement within the required timeframe, and City and Operator did not reach an agreement to resolve the Delinquent Public Benefit Amount, cure the default, or extend the term of the Development Agreement; and
WHEREAS, since approximately January 2023, Operator has engaged a new company, Catalyst Cannabis Company (“Catalyst”) to assist with operation and management of the Project, and City and Catalyst also did not reach an agreement to resolve the Delinquent Public Benefit Amount, cure the default, or extend the term of the Agreement; and
8.2.a
Packet Pg. 164 Attachment: Ordinance No. 870 (CVSA) Terminating Development Agreement (Reading and Introduction of Ordinance No. 870 DA Termination
WHEREAS, the Agreement, by its own terms, expired on or about July 4, 2022, pursuant to Section 9.1, and has not been renewed, updated, extended, reactivated, or made current, and remains expired; and
WHEREAS, pursuant to Section 9.3 of the Agreement, the termination of the Agreement eliminated any further obligation of City to comply with the Agreement or any part of it; and WHEREAS, on March 29, 2023, City sent a notice to Operator of its intent to initiate proceedings to confirm the expiration of the Agreement and revoke the CUP associated with the Project; and
WHEREAS, on July 13, 2023, following a public hearing, the City of Patterson Planning Commission (“Planning Commission”) adopted Resolution No. 2023-07, revoking CUP No. 17- 21 for failure to comply with Conditions of Approval, and found that the Agreement had terminated on July 4, 2022, and that CVSA was in default of the Agreement at the time of its termination and had failed to cure the default; and
WHEREAS, also on July 13, 2023, following a public hearing, the Planning Commission passed Resolution No. 2023-06 recommending that the City Council adopt an Ordinance to confirm the termination of the Agreement on the ground that the cannabis dispensary can no longer legally operate without a valid CUP; and
WHEREAS, Patterson Municipal Code section 6.56.030 requires any cannabis business allowed in the City to obtain a development agreement and a conditional use permit; and WHEREAS, the City Council of the City of Patterson, based on its independent review and analysis of staff’s recommendations, oral and written testimony, and the record as a whole, finds, after due study, deliberation, and public hearing, and based on its independent judgment, that Operator has not demonstrated good faith compliance with the terms of the Development Agreement, and the Term of the Development Agreement, as defined in Section 1.7, expired in 2022, has not been extended, reinstated, or reactivated.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PATTERSON DOES ORDAIN AS FOLLOWS:
SECTION 1. The City Council of the City of Patterson (the “City Council”) hereby affirms that the Development Agreement by and Between the City of Patterson and Central Valley-Sierra Associates, recorded in the Office of the Stanislaus County Recorder as Document No. 2018- 0017054-00, terminated on July 4, 2022, upon expiration of the Term, in accordance with Sections
1.7 and 9.1 of the Development Agreement.
8.2.a
Packet Pg. 165 Attachment: Ordinance No. 870 (CVSA) Terminating Development Agreement (Reading and Introduction of Ordinance No. 870 DA Termination
SECTION 2. The City Council instructs the City Attorney to record a written notice of termination (“Notice of Termination”) in substantial conformance with the Notice of Termination attached as Exhibit F to the Development Agreement, upon adoption of this Ordinance.
SECTION 2. Notice of the public hearing on the confirmation of termination of the Development Agreement was published in a newspaper of general circulation, printed and published in the City; and notices of the public hearing on the termination of the Development Agreement were mailed to all interested parties and property owners within three hundred (300) feet of the property, according to the most recent assessor’s roll.
SECTION 3. If any section, subdivision, sentence, clause, phrase, or portion of this Ordinance is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions thereof.
SECTION 4. This Ordinance shall become effective thirty (30) days from and after its final passage and adoption, provided it is published in a newspaper of general circulation at least fifteen (15) days prior to its effective date or a summary of the Ordinance is published in a newspaper of general circulation at least five (5) days prior to adoption and again at least fifteen (15) days prior to its effective date.
The foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Patterson, held on the 15
th day of August 2023, by __________________, who moved its introduction, which motion was duly seconded by ___________________. Said Ordinance was given a second reading at a regular meeting of the City Council held on the ___, day of __________, 2023, and after such reading, _________________ moved its adoption, seconded by , and said Ordinance was thereupon adopted by the following roll call vote:
AYES:
NOES:
EXCUSED:
APPROVED:
___________________________
Michael Clauzel
Mayor of the City of Patterson
ATTEST:
____________________________
Aracely Alegre
City Clerk of the City of Patterson
8.2.a
Packet Pg. 166 Attachment: Ordinance No. 870 (CVSA) Terminating Development Agreement (Reading and Introduction of Ordinance No. 870 DA Termination {CW129879.5}
EXHIBIT A
Notice of Termination
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Patterson
1 Plaza
Patterson, CA 95363
Attention: City Clerk
SPACE ABOVE THIS LINE FOR RECORDER’S USE
Recording Fee Exempt per Government Code §
6103
NOTICE OF TERMINATION AND RELEASE OF DEVELOPMENT AGREEMENT DATE: _________________, 20___
PARTIES: CITY OF PATTERSON, a California municipal corporation 1 Plaza
Patterson, California 95363
CENTRAL VALLEY-SIERRA ASSOCIATES, a California nonprofit mutual benefit corporation
235 North San Joaquin Street
Stockton, CA 95202
THIS NOTICE OF TERMINATION AND RELEASE (the “Release”) is being executed by the City of Patterson, a California municipal corporation (“City”), with reference to the following.
A. By Instrument No. 2018-001-0017054-00, which was recorded in the Official Records of Stanislaus County, California, on March 12, 2018, City recorded a development agreement between City and Central Valley-Sierra Associates, dated December 5, 2017 (the “Development Agreement”), relating to the development and operation of a cannabis dispensary.
B. Pursuant to Sections 1.7 and 9.1 of the Development Agreement, the term of the Development Agreement expired on July 4, 2022.
C. Pursuant to Section 9.1 of the Development Agreement, once terminated, the Development Agreement has no further force or effect, unless otherwise set forth in the Development Agreement.
8.2.b
Packet Pg. 167 Attachment: (CVSA) Notice of Termination of DA (Reading and Introduction of Ordinance No. 870 DA Termination Central Valley-Sierra {CW129879.5}
NOW, THEREFORE, City hereby terminates, cancels, and otherwise releases Developer and Developer’s heirs, executives, administrators, successors, and assigns from their obligations in the Development Agreement on this ____ (day) of _____ (month), 2023, and relinquishes any right it may hereafter have to enforce any of the terms and provisions set forth in the Development Agreement, unless otherwise set forth in the Development Agreement. This termination, cancellation, and release shall be effective upon the recordation of this Release in the office of the County Recorder for the County of Stanislaus, State of California.
CITY OF PATTERSON,
a California municipal corporation
By:
City Manager
8.2.b
Packet Pg. 168 Attachment: (CVSA) Notice of Termination of DA (Reading and Introduction of Ordinance No. 870 DA Termination Central Valley-Sierra City Council Agenda Report
TO: Mayor Clauzel and Members of the City Council
FROM: Ken Irwin, City Manager
BY: Nubia Goldstein, City Attorney
MEETING DATE: August 15, 2023
ITEM NO: 8.3
SUBJECT: Approve First Reading and Introduction of Ordinance No. 871, Reading by Title Only, Waiving Further Reading, an Ordinance of the City Council of the City of Patterson, to Approve a Fourth Amendment to the Development Agreement By and Between the City of Patterson and Nucleus Homeopathics, Inc.
RECOMMENDATION
Motion to Approve First Reading and Introduction of Ordinance No. 871, Reading by Title Only, Waiving Further Reading, an Ordinance of the City Council of the City of Patterson, to Approve a Fourth Amendment to the Development Agreement By and Between the City of Patterson and Nucleus Homeopathics, Inc.
BACKGROUND
Following consideration and recommendations from the City of Patterson (the “City”) Planning Commission (“Planning Commission”), on December 5, 2017, the City Council approved Ordinance No. 815, which authorized the City of Patterson (the “City”) and Nucleus Homeopathics, Inc. (the “Developer”) to enter into a development agreement for the operation of a cannabis manufacturing business (the “Project”) located at 100 West Las Palmas Avenue, Suite G, Patterson, CA 95373, identified as Stanislaus County Assessor’s Parcel Number 131-003-017 (the “Development Agreement”). On January 4, 2018, Ordinance 815 took effect and the initial term of the Development Agreement commenced.
Since that time, the City has approved three separate amendments to the Development Agreement. On July 17, 2018, the City Council approved Ordinance No. 820 approving the First Amendment to the Development Agreement, adding a distribution license to the Developer’s Authorized License. On December 4, 2018, the City Council approved Ordinance No. 835,
8.3 Packet Pg. 169
approving the Second Amendment to the Development Agreement to add a cannabis cultivation license to Developer’s Authorized License. On April 21, 2020, the City Council approved Ordinance No. 842, approving the Third Amendment to the Development Agreement to authorize continued operations of the Project at an alternative location located at 240 Park Center Drive, Patterson, CA 95363 (the “Alternative Site”).
Section 4.2 of the Development Agreement requires Developer to pay to the City certain amounts to offset the impacts to City infrastructure, services, and neighborhoods, commensurate with the private benefits conferred on Developer (the “Public Benefit Amount”), pursuant to the terms stated in that section. Developer failed to remit multiple required Public Benefit Amount payments, resulting in an overdue Public Benefit Amount (the “Delinquent Public Benefit Amount”) and a default of the Development Agreement pursuant to Section 8.1.
On May 23, 2023, following a period of discussions between the City and Developer in an attempt to resolve the default and bring the Project current, the City and Developer reached a resolution to settle the Delinquent Public Benefit Amount, cure the default, and bring the Project current and back into good standing.
ANALYSIS
Under the May 23, 2023, agreement, Developer agreed to pay One Hundred Nine Thousand Dollars ($109,000.00) to the City to offset the entire outstanding Public Benefit Amount, due in full by June 2, 2023. The City received this amount in full by the deadline, and now acknowledges full and complete satisfaction of the past due amount. Developer and the City further agreed that the Development Agreement would be amended. Section 1.9 requires that the Development Agreement may only be amended by mutual consent of the Parties, and all amendments must be in writing. Major amendments, which would include the proposed amendment here, must be approved by the City Council.
On July 13, 2023, the Planning Commission adopted Resolution No. 2023-05, recommending that the City Council adopt this Ordinance to approve a Fourth Amendment to the Development Agreement between the City of Patterson and Nucleus Homeopathics, Inc. This Ordinance will approve a Fourth Amendment to the Development Agreement, which will include the following terms:
1. The Adjusted Public Benefit payment of One Hundred Nine Thousand Dollars ($109,000.00) constitutes City’s and Developer’s final compromise as to the Delinquent Public Benefit amounts due as of the effective date of the Amendment.
2. The Amendment will establish a new Public Benefit payment schedule requiring a monthly minimum payment of Seven Thousand Dollars ($7,000.00), or a five percent (5%) tax rate of Developer’s gross receipts, whichever is higher. The new Public Benefit shall become effective on the first business day following the conclusion of the Project’s first quarter of operation.
3. Developer will be subject to the City’s cannabis tax on an ongoing basis.
8.3 Packet Pg. 170
4. Developer shall ensure the Project is open and operational within twelve (12) months of the effective date of the Amendment. In the event the Project requires additional time to become operational, Developer and the City may extend this period to eighteen (18) months upon Developer’s showing that progress is being made to the City’s satisfaction. Any failure of Developer to meet these conditions shall constitute a breach under Section 8.1 of the Development Agreement.
The City Council’s options are:
1. Introduce the Ordinance No. 871 for a first reading;
2. Continue introduction of the Ordinance No. 871 for a first reading to the next regular City Council meeting with changes or revisions as provided by the City Council; or
3. Reject the introduction of the Ordinance No. 871 for first reading.
RECOMMENDED ACTION
Approve First Reading and Introduction of Ordinance No. 871, Reading by Title Only, Waiving Further Reading, to Approve a Fourth Amendment to the Development Agreement By and Between the City of Patterson and Nucleus Homeopathics, Inc.
ATTACHMENTS
1. Proposed Ordinance No. 871
2. Proposed Fourth Amendment to Development Agreement
FISCAL IMPACT
The City would gain potential tax revenue when the cannabis dispensary opens at the Site, as well as public benefit payments received pursuant to the terms of the proposed Fourth Amendment.
8.3 Packet Pg. 171
1 ORDINANCE NO. 871
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PATTERSON
APPROVING THE FOURTH AMENDMENT TO THE DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF PATTERSON AND NUCLEUS HOMEOPATHICS, INC.
WHEREAS, to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the California Legislature adopted Government Code section 65864 et seq. (the “Development Agreement Statute”), which authorizes the City and an individual with an interest in real property to enter into a development agreement that establishes certain development rights in real property that is subject to a development agreement application; and
WHEREAS, on December 5, 2017, the City Council approved Ordinance No. 815, which authorized the City of Patterson (the “City”) and Nucleus Homeopathics, Inc. (the “Developer”) to enter into a development agreement for the operation of a cannabis manufacturing business (the “Project”) located at 100 West Las Palmas Avenue, Suite G, Patterson, CA 95373, identified as Stanislaus County Assessor’s Parcel Number 131-003-017 (the “Development Agreement”); and WHEREAS, on July 17, 2018, the City Council approved Ordinance No. 820 approving the First Amendment to the Development Agreement adding a distribution license to the Developer’s Authorized License; and
WHEREAS, on December 4, 2018, the City Council approved Ordinance No. 835 approving the Second Amendment to the Development Agreement to add a cannabis cultivation license to Developer’s Authorized License; and
WHEREAS, on April 21, 2020, the City Council approved Ordinance No. 842 approving the Third Amendment to the Development Agreement to authorize continued operations of the Project at an alternative location located at 240 Park Center Drive, Patterson, CA 95363 (the “Site”); and
WHEREAS, Section 4.2 of the Development Agreement requires Developer to pay to the City certain amounts to offset the impacts to City infrastructure, services, and neighborhoods, commensurate with the private benefits conferred on Developer (the “Public Benefit Amount”); and
WHEREAS, Developer failed to remit multiple required Public Benefit Amount payments, resulting in an overdue Public Benefit Amount (the “Delinquent Public Benefit Amount”) and a default of the Development Agreement pursuant to Section 8.1(a); and
8.3.a
Packet Pg. 172 Attachment: Ordinance No. 871 Approving 4th Amendment to Nucleus Homeopathics, Inc. Development Agreement (Approve First Reading 2 WHEREAS, on May 23, 2023, the City and Developer reached a resolution (the “Resolution”) to settle the Delinquent Public Benefit Amount, cure the default, and bring the Project current and back into good standing; and
WHEREAS, Section 1.9 provides that the Development Agreement may only be amended by mutual consent of the Parties, that all amendments must be in writing, and that major amendments must be approved by the City Council; and
WHEREAS, the agreement between the City and Developer requires a Fourth Amendment to the Development Agreement to update its terms, and to confirm and memorialize the terms of the Resolution; and
WHEREAS, on July 13, 2023, the Planning Commission adopted Resolution No. 2023- 05 recommending that the Patterson City Council adopt an ordinance to approve a Fourth Amendment to the Development Agreement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PATTERSON ORDAINS AS FOLLOWS:
SECTION 1. The City Council approves the Fourth Amendment to the Development Agreement by and between the City and Developer to modify Section 4.2, subdivision (a) to acknowledge receipt of Developer’s Delinquent Public Benefit payment and resolution of Developer’s past-due Public Benefit Amounts, and to set a Public Benefit amount of Seven Thousand Dollars ($7,000.00), or five percent (5%) of Developer’s gross receipts from operations, whichever is higher, due to the City on the first business day of each month going forward, effective the first business day following the conclusion of the Project’s first quarter of operation; to remove the current Section 4.7 and replace it with new language stating that Developer will be subject to the City’s cannabis tax on an ongoing basis; and to add a new Section 2.13 to the Development Agreement, requiring Developer to ensure the Project is open and operational within twelve (12) months of the effective date of the Fourth Amendment and, should the Project require additional time to become operational, allowing an extension of this period to eighteen (18) months upon Developer’s showing that progress is being made to the City’s satisfaction.
SECTION 2. The City shall review the Development Agreement and Amendment, taken together, for compliance with its terms and conditions not less than once every twelve (12) months from the effective date of the Development Agreement.
SECTION 3. Notice of the public hearing on the Ordinance was published in the Patterson Irrigator, a newspaper of general circulation; and notices of the public hearing on the proposed Amendment were mailed to all interested parties and property owners within three hundred (300) feet of the property, according to the most recent assessor’s roll.
SECTION 4. Environmental impacts for the Amendment have been reviewed and assessed by the City pursuant to CEQA (Public Resources Code section 21000 et seq.). The
8.3.a
Packet Pg. 173 Attachment: Ordinance No. 871 Approving 4th Amendment to Nucleus Homeopathics, Inc. Development Agreement (Approve First Reading 3 Amendment is not a “project” under CEQA since the Amendment does not cause a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.
SECTION 5. If any section, subsection, sentence, clause, phrase, or word of this Ordinance is for any reason held by a court of competent jurisdiction to be unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining portions of the Ordinance. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more section(s), subsection(s), sentence(s), clause(s), phrase(s), or word(s) be declared invalid.
SECTION 6. This Ordinance shall become effective thirty (30) days from and after its final passage and adoption, and publication of the Ordinance shall occur in a newspaper of general circulation at least fifteen (15) days prior to its effective date, or a summary of the Ordinance published in a newspaper of general circulation at least five (5) days prior to adoption and again at least fifteen (15) days prior to its effective date.
The foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Patterson, held on the 15
th day of August 2023, by __________________, who moved its introduction, which motion was duly seconded by ___________________. Said Ordinance was given a second reading at a regular meeting of the City Council held on the ___, day of __________, 2023, and after such reading, _________________ moved its adoption, seconded by , and said Ordinance was thereupon adopted by the following roll call vote:
AYES:
NOES:
EXCUSED:
APPROVED:
_________________________
Michael Clauzel
Mayor of the City of Patterson
ATTEST:
___________________________
Aracely Alegre
City Clerk of the City of Patterson
8.3.a
Packet Pg. 174 Attachment: Ordinance No. 871 Approving 4th Amendment to Nucleus Homeopathics, Inc. Development Agreement (Approve First Reading Fourth Amendment to the Development Agreement
City of Patterson &
Nucleus Homeopathics, Inc.
{CW129858.5} Page 1 of 6
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Patterson
P.O. Box 667
Patterson, CA 95363
Attention: City Clerk
Recording Fee Exempt (Gov. Code § 6103) SPACE ABOVE THIS LINE FOR RECORDER'S USE APN: 020-095-001
FOURTH AMENDMENT TO THE
DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF PATTERSON AND NUCLEUS HOMEOPATHICS, INC.
(Amendment to Recorded Document No. 2018-0031381-00)
Ordinance No. 815, Adopted on December 5, 2017 (Original Development Agreement) Ordinance No. 820, Adopted July 17, 2018 (First Amendment) Ordinance No. 835, Adopted December 4, 2018 (Second Amendment) Ordinance No. 842, Adopted April 21, 2020 (Third Amendment) Ordinance No. ___, Adopted __________________, 2023 (Fourth Amendment)
8.3.b
Packet Pg. 175 Attachment: Fourth DA Amendment - Nucleus Homeopathics (CW129858-5xDCB25) (Approve First Reading and Introduction of Ordinance No.
Fourth Amendment to the Development Agreement
City of Patterson &
Nucleus Homeopathics, Inc.
{CW129858.5} Page 2 of 6
FOURTH AMENDMENT TO THE DEVELOPMENT AGREEMENT
THIS FOURTH AMENDMENT TO THE DEVELOPMENT AGREEMENT (“Fourth Amendment”) is made and entered into as of this _______________, 2023, by and between the CITY OF PATTERSON, a California municipal corporation (“City”), and NUCLEUS HOMEOPATHICS, INC., a California corporation (“Developer”). City and Developer may be referred to herein individually as a “Party” or collectively as the “Parties.” There are no other parties to this Agreement.
RECITALS
A. To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the California Legislature adopted Government Code section 65864 et seq. (the “Development Agreement Statute”), which authorizes the City and an individual with an interest in real property to enter into a development agreement that establishes certain development rights in real property that is subject to a development agreement application.
B. On December 5, 2017, the City Council approved Ordinance No. 815, which authorized the Parties to enter into a development agreement for the operation of a cannabis manufacturing business (the “Development Agreement”) located at 100 West Las Palmas Avenue, Suite G, Patterson, CA 95363, identified as Stanislaus County Assessor’s Parcel Number 131-003-017.
C. City recorded the Development Agreement in the Office of the Stanislaus County Recorder as Document No. 2018-0031381-00.
D. City recorded the First Amendment to the Development Agreement in the Office of the Stanislaus County Recorder as Document No. 2018-0058583-00 (“First Amendment”). The First Amendment added a distribution license to Developer’s Authorized License in order to transport cannabis products between cannabis businesses pursuant to MAUCRSA.
E. City recorded the Second Amendment to the Development Agreement in the Office of the Stanislaus County Recorder as Document No. _________________ (“Second Amendment”). The Second Amendment added cannabis cultivation and a microbusiness to Developer’s Authorized License.
F. City recorded the Third Amendment to the Development Agreement in the Office of the Stanislaus County Recorder as Document No. _________________ (“Third Amendment”). The Third Amendment allows Developer to continue its cannabis business in an alternative location within the City.
G. The Development Agreement, at Section 4.2, requires Developer to pay to the City certain amounts to offset the impacts to City infrastructure, services, and
8.3.b
Packet Pg. 176 Attachment: Fourth DA Amendment - Nucleus Homeopathics (CW129858-5xDCB25) (Approve First Reading and Introduction of Ordinance No.
Fourth Amendment to the Development Agreement
City of Patterson &
Nucleus Homeopathics, Inc.
{CW129858.5} Page 3 of 6
neighborhoods, commensurate with the private benefits conferred on Developer (the “Public Benefit Amount”).
H. On May 23, 2023, after Developer had failed to remit certain required Public Benefit Amount payments, resulting in an overdue Public Benefit Amount (the “Delinquent Public Benefit Amount”) and a default of the Development Agreement, Developer and the City reached a resolution to settle the Delinquent Public Benefit Amount, cure the default, and bring the Project current, subject to certain terms that would necessitate this Fourth Amendment to the Development Agreement (the “Fourth Amendment”).
I. On July 13, 2023, after a properly noticed public hearing, the Planning Commission reviewed this Fourth Amendment and provided its recommendations to the City Council.
J. Pursuant to Government Code sections 65867 and 65868, the City Council held duly noticed and properly conducted public hearings on August 15, 2023, and _________, 2023, regarding this Fourth Amendment. Pursuant to Government Code section 65867.5, the City Council found the provisions of this Fourth Amendment to be consistent with the City’s General Plan, and authorized execution of this Fourth Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:
AGREEMENT
1. Recitals. The above recitals are incorporated by this reference and made a part of this Fourth Amendment.
2. Effect of Amendment. Except as provided herein, the defined terms used in this Fourth Amendment shall have the same meaning as the terms in the Development Agreement. Unless expressly amended by this Fourth Amendment, all unaltered terms and provisions of the Development Agreement shall remain in effect as provided therein.
If any terms, provisions, or definitions in this Fourth Amendment conflict with terms, provisions, or definitions in the Development Agreement, the terms, provisions, and definitions in this Fourth Amendment shall control. All references in the Development Agreement to the “Agreement” shall be deemed to refer to the Development Agreement and this Fourth Amendment.
3. Effective Date. This Fourth Amendment shall be effective (the “Amendment Effective Date”) only after (a) thirty (30) days have passed from the City Council’s adoption of the ordinance approving this Fourth Amendment; and (b) all Parties have executed this Fourth Amendment. This Fourth Amendment shall be recorded by the City in the County of Stanislaus within ten (10) days following the Amendment Effective Date.
8.3.b
Packet Pg. 177 Attachment: Fourth DA Amendment - Nucleus Homeopathics (CW129858-5xDCB25) (Approve First Reading and Introduction of Ordinance No.
Fourth Amendment to the Development Agreement
City of Patterson &
Nucleus Homeopathics, Inc.
{CW129858.5} Page 4 of 6
4. Amendments to the Development Agreement.
A. Section 4.2., subparagraph (a) of the Development Agreement is hereby removed in its entirety and replaced with the following language, which shall read as follows:
Section 4.2. Public Benefit
(a) The Parties acknowledge and agree that this Agreement confers substantial private benefits upon Developer that will place burden upon City infrastructure, services, and neighborhoods. Accordingly, the Parties intend to provide consideration to City to offset these impacts that commensurate with the private benefits conferred upon Developer (the “Public Benefit”). In consideration of the foregoing, Developer shall remit to City as follows:
(i) As of the Amendment Effective Date, Developer has paid to City in full all outstanding Public Benefit amounts due and owing for the full time period before the Amendment Effective Date.
(ii) Effective the first business day following the conclusion of the Project’s first quarter of operation, a Public Benefit amount of Seven Thousand Dollars ($7,000.00), or five percent (5%) of Developer’s gross receipts from operations, whichever is higher, shall be due and payable to the City on the first business day of each month going forward.
B. Section 4.7. of the Development Agreement is hereby removed in its entirety and replaced with the following language, which shall read as follows:
Section 4.7. City Tax. Developer will be subject to the City’s cannabis tax on an ongoing basis.
C. A new Section 2.13 shall be added to the Development Agreement, Article 2, Development of Property, and it shall read as follows:
Section 2.13. Schedule to Open Project. Developer shall ensure the Project is open and operational within twelve (12) months of the Amendment Effective Date. In the event the Project requires additional time in order to become operational, Developer and City may agree in writing to extend this period to eighteen (18) months upon Developer’s showing that progress is being made to the City’s satisfaction. Developer’s failure to comply with the terms of this Section shall constitute a default as defined in Section 8.1.
8.3.b
Packet Pg. 178 Attachment: Fourth DA Amendment - Nucleus Homeopathics (CW129858-5xDCB25) (Approve First Reading and Introduction of Ordinance No.
Fourth Amendment to the Development Agreement
City of Patterson &
Nucleus Homeopathics, Inc.
{CW129858.5} Page 5 of 6
5. Third Party Legal Challenge. In the event that legal action or special proceedings are commenced by any person or entity challenging this Fourth Amendment, the Parties agree to cooperate with each other as set forth herein. City may elect to tender the defense of any lawsuit filed and related to this Fourth Amendment, with legal counsel satisfactory to City. Developer will indemnify, hold City harmless from and defend City from all costs and expenses incurred in the defense of such lawsuit, including, but not limited to, damages, attorneys’ fees, and expenses of litigation awarded to the prevailing party or parties in such litigation. Developer shall pay all litigation fees to City within thirty (30) days of receiving a written request and accounting of such fees and expenses from City. Unless prevented by law or court order, City shall continue to process any applications related to this Fourth Amendment and the Development Agreement, and any delay or failure to process such approvals or to take such other actions shall be considered a default by City of this Fourth Amendment and the Development Agreement.
6. Counterparts. This Fourth Amendment may be executed in several counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
7. Authority. The Parties and their signatories below warrant and represent that they have the power and authority to enter into this Fourth Amendment and the names, titles, and capacities herein stated on behalf of any entities, persons, states or firms represented or purposed to be represented by such entities, persons, states or firms and that all former requirements necessary or required by state or federal law in order to enter into this Fourth Amendment have been fully complied with. Further, by entering into this Fourth Amendment, each Party represents that this Fourth Amendment has not caused any breach of the terms or conditions of any other contract or agreement to which such Party is obligated.
[SIGNATURES ON FOLLOWING PAGE]
8.3.b
Packet Pg. 179 Attachment: Fourth DA Amendment - Nucleus Homeopathics (CW129858-5xDCB25) (Approve First Reading and Introduction of Ordinance No.
Fourth Amendment to the Development Agreement
City of Patterson &
Nucleus Homeopathics, Inc.
{CW129858.5} Page 6 of 6
IN WITNESS WHEREOF, this Fourth Amendment has been entered into by and between Developer and City as of the Amendment Effective Date, as defined above.
CITY
CITY OF PATTERSON, a California
municipal corporation
By:
Ken Irwin, City Manager
Date:
Attest:
By:
Aracely Alegre, City Clerk
Approved to as Form
By:
Nubia I. Goldstein
City Attorney
DEVELOPER
NUCLEUS HOMEOPATHICS, INC., a
California corporation
By:
Its:
Date:
8.3.b
Packet Pg. 180 Attachment: Fourth DA Amendment - Nucleus Homeopathics (CW129858-5xDCB25) (Approve First Reading and Introduction of Ordinance No.
Third Amendment to the Development Agreement
City of Patterson &
{CW129858.5} Nucleus Homeopathics, Inc.
California All-Purpose Acknowledgment
State of California )
)
County of )
On , before me , a Notary
Public, personally appeared who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
Witness my hand and official seal.
(Signature)
(Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
8.3.b
Packet Pg. 181 Attachment: Fourth DA Amendment - Nucleus Homeopathics (CW129858-5xDCB25) (Approve First Reading and Introduction of Ordinance No.
Third Amendment to the Development Agreement
City of Patterson &
{CW129858.5} Nucleus Homeopathics, Inc.
California All-Purpose Acknowledgment
State of California )
)
County of )
On , before me , a Notary
Public, personally appeared who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
Witness my hand and official seal.
(Signature)
(Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
8.3.b
Packet Pg. 182 Attachment: Fourth DA Amendment - Nucleus Homeopathics (CW129858-5xDCB25) (Approve First Reading and Introduction of Ordinance No.