CITY OF PLEASANT HILL
CITY COUNCIL MEETING AGENDA - REVISED
FEBRUARY 7, 2022
REGULAR MEETING – 7:00 PM
VIA TELECONFERENCING
Watch on YouTube at: www.pleasanthillca.org/councilmeeting To provide comments via teleconference, click on the meeting link and enter the meeting ID and Passcode:
Meeting link: www.zoom.us
Meeting ID: 989 0198 6966
Passcode: 484527
The meeting ID and Passcode will change each meeting. See more information on Public Participation Options below.
City Council Meeting Agenda Page 1 February 7, 2022
City Offices, 100 Gregory Lane, Pleasant Hill, CA 94523 Telephone (925) 671-5267 MAYOR MICHAEL G. HARRIS COUNCILMEMBER KEN CARLSON
VICE MAYOR TIMOTHY FLAHERTY COUNCILMEMBER SUE NOACK
COUNCILMEMBER MATTHEW RINN
The meeting will be held via teleconference as allowed pursuant to City Council Resolution No. 63-21.
Options for observing the meeting and participating in public comment are provided below.
Public Communication. The public is welcome to address the City Council on items on the Consent Calendar or other items not listed on the agenda but within the Council’s jurisdiction during the general Public Comment period. There is an opportunity for the public to comment on other agenda items at the time they are discussed.
Public Participation Options
1) Watch the Meeting via Youtube Livestream
Watch the meeting live on YouTube at: www.pleasanthillca.org/councilmeeting. 2) Submit Written Comments Before the Meeting
Send written comments to [email protected] (comments received by 4:00 p.m. on the day of the meeting will be provided to the City Council before the meeting). 3) If You Wish to Make a Public Comment During the Meeting When the Mayor invites the public for general comment or comments on specific agenda items, please use the "Raise hand" feature in Zoom (or press *9 if connecting via telephone only) which will alert staff that you wish to speak, and you will be invited to speak when it is your turn. Note that there may be multiple hearing items on the same agenda. There are two ways to join the meeting and make a public comment during the meeting:
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a. Go to www.Zoom.us using your computer and entering the Meeting ID and Passcode provided near the top of this page. You will be placed into the meeting as an Attendee. You will not be seen or heard until it is your turn to speak.
b. Or by calling (669) 900-6833 and enter the Meeting ID and Passcode. Dial *9 to virtually “Raise Hand” in Zoom
We ask that you state your name and city of residence for the record when you start your comments.
When you are making a Public Comment during the meeting, please:
1) Try to be in a room or space without a lot of background noise. 2) Mute your microphone until it is your turn to speak, then mute your speakers while speaking. 3) Have a strong, reliable internet connection or cell phone signal.
If, due to a disability, a reasonable accommodation is needed to participate in this meeting, please contact the ADA Coordinator 24 hours in advance of the meeting at (925) 671-5221 or via California Relay at 711.
Materials related to an item on this agenda submitted to the Council after distribution of the agenda packet are available for public inspection by contacting the City Clerk’s office at [email protected] or calling 925-671-5221.
City Council Meeting Recordings and Broadcasts.
Recorded City Council meetings are broadcast on Comcast Channel 28, Wave Channel 29, and AT&T U-Verse Channel 99 on the Wednesday following the meeting. Video recordings are generally available within 48 hours of the meeting, and may be viewed on the City’s website at www.pleasanthillca.org/MeetingVideos and selecting “City Council” from the meeting groups.
Agendas are Available for Review on the City Hall official noticing bulletin board (100 Gregory Lane), at the Pleasant Hill Police Department (330 Civic Drive), the Pleasant Hill Senior Center (233 Gregory Lane), and on the City’s website at www.pleasanthillca.org/agendas. Agenda packets will be available to the public on the City’s website at the same time as they are made available to the City Council.
1. CALL TO ORDER
2. ROLL CALL
3. PRESENTATIONS
3.1 Proclamation Designating the Month of February as Black History Month
3.2 Introduction of New Commission on Aging Commissioners Belinda Danielson and Michael MacDonald
4. CITY MANAGER COMMENTS:
(Brief updates on pending City business without discussion by the City Council.) City Council Meeting Agenda Page 3 February 7, 2022
5. COUNCIL ANNOUNCEMENTS AND REPORTS
5.1 Reports from Councilmembers on Meetings or Conferences Attended at City Expense (A) Contra Costa Mayors Conference Hosted via Teleconference on February 3, 2022 (B) Other Meetings Attended at City Expense
5.2 Announcements from Councilmembers
6. PUBLIC COMMENT:
The public is welcome at this time to address the City Council on items on the Consent Calendar or other items not listed on the agenda but within the Council’s jurisdiction. There is an opportunity for the public to comment on other agenda items at the time they are discussed.
Comments are limited to three minutes per speaker. To participate in the teleconferenced meeting, please see the Public Participation Options above.
7. CONSENT CALENDAR: All matters listed under “Consent Calendar” are considered by the Council to be routine and will be enacted by one motion. There will be no separate Council discussion of these items unless requested by a Councilmember prior to the time Council votes on the motion to adopt.
7.1 Approve Minutes for the Regular City Council Meeting of January 24, 2022
7.2 Approve Checks Dated: January 21, 2022; January 28, 2022
7.3 Affirm Resolution No. 63-21 Approving Continued Teleconferencing of the Meetings of All City Legislative Bodies Pursuant to the Provisions of AB 361
7.4 Approve Appointment Recommendations to the Contra Costa County Iron Horse Corridor Advisory Committee and the John Muir Community Health Fund Board of Directors
7.5 Adopt Ordinance No. ___ Amending Chapter 9.45 of the Pleasant Hill Municipal Code to Prohibit the Sale of Flavored Tobacco Products and Electronic Smoking Devices
7.6 Adopt Resolution No. ___-22 Directing the Preparation and Filing of the 2022/2023 Annual Report for Assessment District No. 20 (Commercial Area Landscape and Lighting) and Adopt Resolution No. ___-22 Requesting Consent from the City Of Concord for Ordering of Improvements and Assessments of Costs for Benefited Property in Assessment District No. 20
7.7 Adopt Resolution No. ___-22 Directing the Preparation and Filing of the FY 2022/2023 Annual Report for Assessment District No. 22
8. ADMINISTRATION AND FINANCE
8.1 Adopt Resolution No. ___-22 Approving the Agreement with Stay Pleasant Hill to Serve as the Owners' Association for the Pleasant Hill Tourism Improvement District and Authorizing the City Manager to Execute the Agreement
9. PUBLIC WORKS AND COMMUNITY DEVELOPMENT
9.1 Adopt Resolution __-22 Authorizing the City Manager to Execute an Agreement with Tesla, Inc. to Purchase a Solar Power System for the New Pleasant Hill Library and Authorizing Staff to Facilitate Library Move-in, Utilities, and Technology (Low Voltage Systems) City Council Meeting Agenda Page 4 February 7, 2022
10. ADJOURNMENT
Next City Council Meeting: March 7, 2022
CITY COUNCIL STAFF REPORT
Meeting Date: February 07, 2022
TO: THE HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBJECT: APPROVE MINUTES FOR THE REGULAR CITY COUNCIL MEETING OF JANUARY 24, 2022
RECOMMENDED CITY COUNCIL ACTION
Approve the minutes.
ATTACHMENT(S):
January 24, 2022 – Tentative Minutes
Prepared by: Carol Wu, City Clerk
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MINUTES OF THE
REGULAR MEETING – CITY COUNCIL
January 24, 2022
City Council Meeting Minutes Page 1 January 24, 2022
Mayor Harris called a Regular Meeting of the City Council to order at 7:00 PM via teleconference, complete proceedings of which were electronically recorded. The meeting agenda was posted on the City Hall outdoor bulletin board at 100 Gregory Lane, Pleasant Hill, CA on January 20, 2022, by Deputy City Clerk Juanita Davalos.
1. CALL TO ORDER
2. ROLL CALL
Attendee Name Title Status
Michael G. Harris Mayor Present
Timothy M. Flaherty Vice Mayor Present
Ken Carlson Councilmember Present
Sue Noack Councilmember Present
Matthew Rinn Councilmember Present
3. PRESENTATIONS
3.1 Annual Report on the Activities of the Commission on Aging by Commission Chair Quy Tran
Quy Tran, Chairperson, Pleasant Hill Commission on Aging, acknowledged Commission members. Mr. Tran reported that the Commission met its mission objectives and had a successful 2021. He described the changing demographics in Pleasant Hill and said that seniors preferred to age in place. Mr. Tran reported on the activities and events organized by the Commission, and provided statistics on the Senior Van usage.
Mayor Harris thanked Mr. Tran and the Commissioners for their accomplishments.
Councilmember Noack thanked the Commission for creating Zoom events for the seniors.
4. CITY MANAGER COMMENTS:
June Catalano, City Manager, reported that:
A free COVID-19 booster shot clinic for the community will be held on Wednesday, January 26, 2022 at the Pleasant Hill Community Center, and the Senior Van Service will be offering rides to the clinic.
Ms. Catalano introduced Erick Cheung as the City’s new Finance Manager. Mr. Cheung provided brief remarks regarding his professional background. Councilmember Noack commented that she worked with Mr. Cheung on the County Connection, and is pleased to have him join the City staff.
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Attachment: January 24, 2022 Tentative Minutes (Minutes) City Council Meeting Minutes Page 2 January 24, 2022
5. COUNCIL ANNOUNCEMENTS AND REPORTS
5.1 Reports from Councilmembers on Meetings or Conferences Attended at City Expense
None
5.2 Announcements from Councilmembers
Councilmember Noack reported her participation at the (virtual) Library Town Hall meeting and said that the meeting is archived for the community to view. She announced that the (virtual) General Plan Advisory Committee meeting will be held on January 26, 2022 from 6:30 p.m. to 8:30 p.m.
Councilmember Carlson reported his participation at the (virtual) Community Conversation on LGBTQ issues and thanked the Civic Action Commission Diversity Subcommittee for hosting the event.
Mayor Harris reported his participation at the Library Town Hall meeting and at the Community Conversation on LGBTQ issues.
Mayor Harris commented on the recent passing of Bill Carlson, Councilmember Carlson’s father.
6. PUBLIC COMMENT
Mayor Harris opened public comment.
Andrew (no last name given) said that he is calling on behalf of three stores regarding the tobacco ban.
Mayor Harris invited him to call back when agenda item 9.2 will be heard.
Mayor Harris closed public comment.
7. CONSENT CALENDAR
Motion (Noack/Rinn) to Approve all consent items, carried as follows:
AYES: Carlson, Flaherty, Noack, Rinn, Harris
7.1 Approve Minutes for the Regular City Council Meeting of January 10, 2022
7.2 Approve Checks Dated: January 7, 2022; January 14, 2022
7.3 Approve Appointment Recommendations to the Commission on Aging
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Attachment: January 24, 2022 Tentative Minutes (Minutes) City Council Meeting Minutes Page 3 January 24, 2022
7.4 Adopt Resolution No. 3-22 Accepting AB 1600 Report on Development Impact Fees for Fiscal Year Ended June 30, 2021
7.5 Adopt Resolution No. 4-22 Awarding the Construction Contract for the Gregory Gardens Storm Drain Rehabilitation Project No. 03-21 and Authorizing the City Manager to Execute a Construction Contract with Kerex Engineering, Inc.
7.6 Adopt Resolution No. 5-22 Authorizing the City Manager to Execute a Professional Services Agreement with Pakpour Consulting Group, Inc., for Inspection Services for the Gregory Gardens Storm Drain Rehabilitation Project No. 03-21
7.7 Adopt Resolution No. 6-22 Authorizing the Submittal of a Grant Application for the FY 2021-2022 SB1383 Local Assistance Grant Program
8. ADMINISTRATION AND FINANCE
8.1 Public Hearing and Adopt Resolution No. 7-22 Declaring Results of Majority Protest Proceedings and Renewing the Pleasant Hill Tourism Improvement District
Zach Seal, Economic Development Manager introduced item 8.1. to renew the Pleasant Hill Tourism Improvement District (PHTID) for an additional five years.
Councilmember Noack reported that she is working with Janet Coleson, City Attorney, on some revisions to the Owners’ Association Agreement between the City and Stay Pleasant Hill for the City Council’s consideration.
Mayor Harris opened public comment.
There was no public comment.
Mayor Harris closed public comment.
Councilmember Noack said that the revisions would include that the City would receive audited financial statements on an annual basis and the right to inspect the books and records.
Councilmember Rinn asked about the removal of the deadline. Ms. Coleson responded that the deadline was removed in error.
Councilmember Noack asked about the timeline to form the new management company. Mr.
Seal said that Stay Pleasant Hill will be formed as soon as the State approves the Articles of Incorporation. Mr. Seal noted that the Owners’ Association Agreement will be brought back for approval by the City Council.
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Attachment: January 24, 2022 Tentative Minutes (Minutes) City Council Meeting Minutes Page 4 January 24, 2022
Motion (Noack/Rinn) to Approve item 8.1, carried as follows:
AYES: Carlson, Flaherty, Noack, Rinn, Harris
8.2 Update on Pleasant Hill Crime Statistics by Chief of Police Bryan Hill Chief Bryan Hill, Pleasant Hill Police Department, presented an overview of the 2021 crime statistics in Pleasant Hill. Chief Hill said that the overview is not in lieu of police department’s annual update. He reported that Part 1 crimes, which include property crimes, outpaced violent crimes. Chief Hill said that property crimes decreased in 2021 compared to 2020, and was trending lower over a ten-year period.
Chief Hill reported that there were 60 violent crime incidents in 2021. He noted an overall decrease in violent crimes compared to 2020 and violent crimes trending lower over a ten-year period. Chief Hill commented that the Pleasant Hill Police Department is trying to share as much information to the community as frequently as possible. He said that the department’s website has information regarding calls for service and crime reporting.
Mayor Harris asked about causes for crime reduction in 2021. Chief Hill said that the reduction was due to increased staffing and increased use of technology.
Mayor Harris thanked Chief Hill and members of the police department.
Councilmember Rinn asked about the categorization of stolen vehicles, which was answered by Chief Hill. Chief Hill reported that the large majority of crimes are committed by people from outside of the community.
Councilmember Noack thanked Chief Hill and the police department’s social media group for keeping the public aware of the police department’s activities.
Councilmember Carlson thanked the police department for their hard work, especially during the pandemic.
9. PUBLIC WORKS AND COMMUNITY DEVELOPMENT
9.1 Public Hearing and Adopt Resolution No.8-22 Approving a Development Plan Permit, Use Permit, Minor Subdivision and Architectural Review Permit (PLN 21-0294) for the 490 Golf Club Road Project (Choice in Aging – Adult Day Care, Choice in Learning – Child Day Care, and Satellite Affordable Housing Association – 81 Unit Affordable Senior Housing) at 490 Golf Club Road (Assessor Parcel Number 153-030-004)
Troy Fujimoto, City Planner, explained the different permits involved in the project. Mr.
Fujimoto provided an overview of the project background and description. He showed aerial photos of the existing conditions, and of the proposed site, landscape, and open space plans. Mr.
Fujimoto also showed slides on the proposed buildings and their projected elevations. He
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Attachment: January 24, 2022 Tentative Minutes (Minutes) City Council Meeting Minutes Page 5 January 24, 2022
summarized the recommendations and conditions from the Architectural Review Commission (ARC) and the Planning Commission (PC).
Vice Mayor Flaherty asked about Open Space Plan the grey area. Mr. Fujimoto responded that the grey area is the future footprint of the medical clinic and assisted living building, which will be built as a later project. Mr. Fujimoto said that the project’s final phase would need to be approved by the City Council.
Marge Cortes, Choice in Aging, Senior Project Manager, introduced Debbie Toth, CEO of Choice in Aging, and the project team members.
Ms. Toth introduced the Aging in Place Campus and said the goal is to create an environment that would support the entire person. Ms. Toth provided the background on Choice in Aging. She discussed the challenges of aging and the need to incorporate joy.
Soo Im, Perkins Eastman, Architect, expounded on the “Aesthetics of Joy” and the need to combat the stigma of aging. Ms. Im showed the site context and adjacencies, and the Aging in Place campus plan and site massing.
Willa Caughey, Bay Tree Design, described the proposed landscape plan and fencing.
Councilmember Noack asked about the parking logistics for Choice in Learning. Ms. Im said that drivers would form a queue and drop off their children without having to park. Ms. Toth expounded on how the drop off system would work.
Councilmember Rinn commented that the drop off procedure at another school was efficient.
Mayor Harris opened public comment.
Ken Housfeld, Pleasant Hill, expressed his support for the project and thanked Ms. Toth and her team.
Mayor Harris closed public comment.
Councilmember Carlson said he was impressed with the quality of the design and that he is excited about the project.
Mayor Harris thanked staff, Ms. Toth, and her team for the presentation. He said that the campus will be a major asset for the community.
Motion (Noack/Carlson) to Approve item 9.1, carried as follows:
AYES: Carlson, Flaherty, Noack, Rinn, Harris
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Attachment: January 24, 2022 Tentative Minutes (Minutes) City Council Meeting Minutes Page 6 January 24, 2022
9.2 Public Hearing and Introduce Ordinance No. ___ Amending Chapter 9.45 of the Pleasant Hill Municipal Code to Prohibit the Sale of Flavored Tobacco Products and Electronic Smoking Devices
Janet Coleson, City Attorney, summarized the changes made to the ordinance requested by the Councilmembers at the last City Council meeting.
Chief Bryan Hill, Pleasant Hill Police Department, introduced Officer Brett Botelho to deliver the presentation on vaping devices.
Officer Botelho discussed the popularity of using tobacco and nicotine items, and electronic smoking devices. He listed the common products on the market and explained how they are consumed. Officer Botelho commented on the marketing of flavored tobacco products to youth and cited the statistics of usage by young people. Officer Botelho provided a definition of Electronic Smoking Devices and showed the different styles available to consumers. He also explained how tobacco prevention education is presented and the consequences for offences.
Vice Mayor Flaherty asked where the teenagers are getting the devices and if any studies show that banning the products would result in a decrease in usage. Officer Botelho responded that the devices are mostly being provided by older siblings. He said that he is not aware of any studies regarding usage and banning the products.
Mayor Harris opened public comment.
Mayor Harris reported that the City Council received written public comment on the item from the following:
The American Petroleum and Convenience Store Association; Lauren Powers; and
Kain Nabhi
The following members of the public called in to comment on the item:
Rina S. Khoury, General Counsel for Fumari
Ken Housfeld, Pleasant Hill
Andrew (no last name given), on behalf of three Pleasant Hill smoke shops Jaime Rojas, Jr., National Association of Tobacco Outlets Nolan Spence, San Diego
Niamh
George Johnson, Hookah pip manufacturer
Eileen Housfeld, Pleasant Hill
Mark (no last name given), Pleasant Hill store owner
Mayor Harris closed public comment.
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Attachment: January 24, 2022 Tentative Minutes (Minutes) City Council Meeting Minutes Page 7 January 24, 2022
Martin de los Angeles, Best Best & Krieger, summarized the changes to the ordinance for the City Council’s consideration.
Councilmember Carlson and Mr. de los Angeles discussed impact of ordinance versus state and federal laws.
Councilmember Noack asked about hookah usage in the City ordinance and Mr. de los Angeles said that there is no restriction on hookah businesses.
Vice Mayor Flaherty asked about outreach efforts to local businesses that sell tobacco and vaping products. He also asked about the enforcement provisions in place. Vice Mayor Flaherty reported that he spoke with Jaime Rojas about the studies that Mr. Rojas referenced in his public comment. Ms. Coleson said that illegal sales of tobacco and vaping products are considered municipal code violations and would be subject to administrative penalties.
Mr. Seal responded that businesses that sell predominately or exclusively flavored tobacco or vaping products were contacted the week before the meeting.
Councilmember Noack reported that sting operations showed that tobacco and vaping products were sold to underage buyers, which was confirmed by Chief Hill.
Vice Mayor Flaherty expressed supporting enforcement of flavored tobacco products, but he expressed concern about banning all vaping devices. He also expressed concern that imposing a ban on local retailers would create a financial hardship. Vice Mayor Flaherty recommended that the retailers should have the opportunity to sell off their products and allow them until January 2023 to change business plans
.
Councilmember Noack said that she first supported the vaping store since it was supposed to aid in smoking cessation. She noted that vaping usage has increased in high schools and has moved into the middle schools. Councilmember Noack said that she is fine with extending the deadline to January 2023.
Mayor Harris expressed his agreement with Councilmember Noack.
Vice Mayor Flaherty expressed his concern over the lack of enforcement and suggested that the City Council consider stronger enforcement possibilities. Ms. Coleson commented that the violations will be treated as any other violation of the Municipal Code.
Councilmember Noack made a motion to approve item 9.2 with the extended timeframe of January 2023.
Motion (Noack/Carlson) to Approve item 9.2, carried as follows:
AYES: Carlson, Flaherty, Noack, Rinn, Harris
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Attachment: January 24, 2022 Tentative Minutes (Minutes) City Council Meeting Minutes Page 8 January 24, 2022
10. ADJOURNMENT
Mayor Harris adjourned the meeting in memory of Bill Carlson at 9:43 P.M. The next regular meeting will be held on Monday, February 7, 2022, beginning at 7:00 PM.
CAROL W. WU, CITY CLERK RECORDER
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Attachment: January 24, 2022 Tentative Minutes (Minutes)
CITY COUNCIL STAFF REPORT
Meeting Date: February 07, 2022
TO: THE HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBJECT: APPROVE CHECKS DATED: JANUARY 21, 2022; JANUARY 28, 2022
RECOMMENDED CITY COUNCIL ACTION
Approve the check register.
ATTACHMENT(S):
Check Register
Prepared by: Sabrina Kwan, Accounting Technician II
Approved by: Erick Cheung, Finance Manager
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CITY COUNCIL STAFF REPORT
Meeting Date: February 07, 2022
TO: THE HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBJECT: AFFIRM RESOLUTION NO. 63-21 APPROVING CONTINUED
TELECONFERENCING OF THE MEETINGS OF ALL CITY
LEGISLATIVE BODIES PURSUANT TO THE PROVISIONS OF AB 361
SYNOPSIS
On September 15, 2021, the Governor signed into law AB 361, an urgency measure which allows for the continuation of teleconferenced meetings. On October 4, 2021, the City Council adopted Resolution No. 63-21 approving continued teleconferencing of the meetings of all of the City’s legislative bodies pursuant to the provisions of AB 361; since then, the City Council has continuously affirmed the resolution within the 30-day deadline to continue teleconferencing under AB 361. Staff recommends the City Council once again affirm Resolution No. 63-21 approving continued teleconferenced (“remote”) meetings of all City legislative bodies through March 9, 2022 pursuant to the provisions of AB 361.
DISCUSSION
Background
In September 2021, the Governor signed into law AB 361, an urgency measure (i.e. it became effective immediately) which largely continues his Executive Orders allowing for remote meetings under “relaxed” provisions of the Brown Act in response to the COVD-19 pandemic.
The provisions still require that members of the public have the ability to view, listen, and comment on items on the agenda.
On October 4, 2021, the City Council adopted Resolution No. 63-21 approving the continuation of remote meetings for all of the City’s legislative bodies pursuant to the provisions of AB 361.The City Council affirmed the resolution at all of its regular meetings in November and December 2021, and again on January 10, 2022, to continue to meet the 30-day deadline.
Analysis
AB 361 contains several requirements in order to continue the use of remote meetings. These include:
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There must be a state of emergency declared under the California Emergency Services Act. This effectively means the Governor must have declared the emergency. During that State of Emergency, either State or local officials have imposed or recommended measures to promote social distancing, or determined that meeting in person would present an imminent risk to the health or safety of attendees. In order to continue to utilize remote meetings, the Council must take formal action within 30 days of the first AB 361 meeting, reconsider the factors above every 30 days, and adopt specified findings that the facts relied upon still exist.
The State of California is still under an emergency declaration regarding COVID-19, and both State and local health officials continue to recommend social distancing to help stop the spread of the virus. Resolution No. 63-21, adopted October 4, 2021 by the City Council, applies to all of the City’s legislative bodies (as defined by the Brown Act). The City Council last affirmed the resolution on January 10, 2022; this remote meeting allowance expires February 9, 2022 unless the City Council takes formal action to reconsider the factors and affirm the specified findings in the resolution. The next regular meeting of the City Council is scheduled for February 28, 2022 (due to the City holiday on the third Monday in February), which falls after the February 9th expiration. Staff therefore recommends the City Council vote to affirm Resolution No. 63-21 as the formal action of its reconsideration of the factors listed and adoption of the specified findings that the facts relied upon still exist, thereby extending the allowance to March 9, 2022.
The City will continue to monitor State and local recommendations and guidelines and update the findings every 30 days, in compliance with AB 361.
FISCAL IMPACT
None
PUBLIC CONTACT
Public contact was made through posting of the City Council agenda on the City’s official notice bulletin board, at the Pleasant Hill Senior Center, and at the Pleasant Hill Police Department.
The agenda and staff report are posted on the City’s web page.
RECOMMENDED CITY COUNCIL ACTION
Staff recommends the City Council vote to affirm Resolution No. 63-21 as the formal action of its reconsideration of the factors listed and adoption of the specified findings that the facts relied upon still exist.
ALTERNATIVES TO RECOMMENDED ACTION
The Council could not affirm the resolution and provide direction to staff.
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ATTACHMENT(S):
Resolution No. 63-21
Prepared by: Danielle K. Habr, City Clerk
Approved by: June Catalano, City Manager
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RESOLUTION NO. 63-21
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PLEASANT HILL
APPROVING CONTINUED TELECONFERENCING OF THE MEETINGS OF ALL CITY LEGISLATIVE BODIES PURSUANT TO THE PROVISIONS OF AB 361 WHEREAS, in response to the COVID- 19 pandemic, the Governor adopted a series of Executive Orders allowing the legislative bodies of local governments to meet remotely via teleconference so long as other provisions of the Brown Act were followed; and WHEREAS, on September 15, 2021, the Governor signed into law as an urgency measure, AB 361, which allows for the continued use of remote meetings by local legislative bodies subject to certain conditions, which must be reconsidered every 30 days; and WHEREAS, on behalf of all legislative bodies for the City of Pleasant Hill, the City Council has considered the current state of health guidance related to public meetings in Contra Costa County and finds it necessary to continue with remote meetings to promote public health and safety.
NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of Pleasant Hill that, that the City Council approves continued teleconferencing of public meetings of all City legislative bodies based on the following findings required by Government Code Section 549539( e), as amended by AB 361:
The entire State of California remains under a proclaimed state of emergency as declared by the Governor of the State of California related to the COVID- 19 pandemic.
The California Department of Public Health continues to require the use of face coverings in indoor settings in order to help stop the spread of the virus.
The Health Officer for Contra Costa County published “ Recommendations for Safely Holding Public Meetings” on September 20, 2021, which “ strongly recommend” online meetings, that local agencies should provide options for the public to participate without having to attend meetings in person, and that social distancing should be used, including six feet of spacing between all in attendance.
The City does not currently have the ability to offer “ hybrid” participation options for the public and given the constraints of the City Council Chamber, social distancing is difficult without severely limiting space for members of the public to attend.
BE IT FURTHER RESOLVED, that this determination by the Pleasant Hill City Council shall apply to all of the City’s legislative bodies, as defined by the Ralph M. Brown Act.
Signatures on the Following Page]
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Attachment: Resolution No. 63-21 (Teleconferencing Under AB 361 - 2/7/22 - 3/9/22) ADOPTED by the City Council of the City of Pleasant Hill at a regular meeting held on the 4th day of October, 2021, by the following vote:
AYES: Carlson, Flaherty, Harris, Rinn, Noack
NOES: None
ABSENT: None
ABSTAIN: None
SUSAN A. NOACK, Mayor
ATTEST:
DANIELLE K. HABR, City Clerk
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Attachment: Resolution No. 63-21 (Teleconferencing Under AB 361 - 2/7/22 - 3/9/22) 100 Gregory Lane, Pleasant Hill, CA 94523-3323 – (925) 671-5270 www.pleasanthillca.org
MEMORANDUM
TO: City Councilmembers
FROM: Vice Mayor Tim Flaherty, Chair
Councilmember Ken Carlson
DATE: February 7, 2022
SUBJECT: Approve Appointment Recommendations to the Contra Costa County Iron Horse Corridor Advisory Committee and the John Muir Community Health Fund Board of Directors
The City Council is requested to approve the following recommendations for appointment:
CITY BOARDS/COMMITTEES/
COMMISSIONS
TERM
Contra Costa County Iron Horse Corridor
Advisory Committee (Recommend to Contra
Costa County Board of Supervisors to Ratify)
Usama Faradj February 2022 through January 2024
John Muir Community Health Fund Board
An (Joseph) Vu Through December 2024
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CITY COUNCIL STAFF REPORT
Meeting Date: February 07, 2022
TO: THE HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBJECT: ADOPT ORDINANCE NO. ___ AMENDING CHAPTER 9.45 OF THE
PLEASANT HILL MUNICIPAL CODE TO PROHIBIT THE SALE OF
FLAVORED TOBACCO PRODUCTS AND ELECTRONIC SMOKING
DEVICES
SYNOPSIS
The proposed ordinance amending Pleasant Hill Municipal Code Chapter 9.45 (“Tobacco Products and Electronic Smoking Devices”) to prohibit the sale of flavored tobacco products and electronic smoking devices was introduced and a public hearing was held on January 24, 2022.
After conducting a public hearing and accepting testimony, the City Council unanimously introduced the ordinance with a modified effective date of January 1, 2023. The proposed ordinance is now submitted for second reading and consideration for adoption by the City Council.
PUBLIC CONTACT
Public contact was made through posting of the City Council agenda on the City’s official notice bulletin board, at the Pleasant Hill Library, and at the Pleasant Hill Police Department. The agenda and staff report are posted on the City’s web page.
In January 2022, staff began an outreach process to local retailers on potential flavored tobacco and electronic smoking device regulations. Staff identified the four businesses in the City that sell exclusively or predominantly tobacco and/or vaping products, and contacted each of those businesses by phone and email. Staff informed these retailers of the City’s proposed ordinance, shared the date and time of the January 24th City Council meeting, and answered their questions about the proposed ordinance. Subsequent to the introduction of the ordinance on January 24th, correspondence was received and is attached.
RECOMMENDED CITY COUNCIL ACTION
Adopt the ordinance.
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ATTACHMENT(S):
Proposed Ordinance
Correspondence
Prepared by: Janet E. Coleson, City Attorney
Approved by: June Catalano, City Manager
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1 ORDINANCE NO. ___
AN ORDINANCE OF THE CITY OF PLEASANT HILL AMENDING
CHAPTER 9.45 (“TOBACCO PRODUCTS AND ELECTRONIC SMOKING DEVICES”)
OF THE PLEASANT HILL MUNICIPAL CODE TO PROHIBIT THE SALE OF FLAVORED
TOBACCO PRODUCTS AND ELECTRONIC SMOKING DEVICES
WHEREAS, the U.S. Center for Disease Control and Prevention estimates that approximately 480,000 people die each year in the United States due to smoking, and more than 16 million people are living with disease caused by smoking;1and WHEREAS e-cigarette use among youth in the United States has skyrocketed to what the U.S. Surgeon General and the U.S. Food and Drug Administration (“FDA”) have called “epidemic” levels; and
WHEREAS, studies have shown that electronic smoking devices contain high levels of toxic chemicals; and
WHEREAS, the U.S. Surgeon General has reported a more than a 900% increase in the use of electronic smoking devices among middle school and high school students between 2011 and 2015;
2 and
WHEREAS, federal data shows that e-cigarette use among middle and high school students more than doubled from 2017 to 2019, with five million youths reportedly having used e-cigarettes in 2019; and
WHEREAS, state data shows that one in eight California high school students currently use tobacco products, with the most used product among all students being electronic smoking devices and flavored tobacco products; and
WHEREAS, electronic smoking devices often mimic conventional tobacco products in shape, size, and color, with the user exhaling a smoke-like vapor similar in appearance to the exhaled smoke from cigarettes and other conventional tobacco products; and WHEREAS, the liquid nicotine solutions consumed in electronic smoking devices are marketed in a variety of flavors that appeal to youth including cotton candy, bubble gum, and fruit; and
WHEREAS, the FDA and the U.S. Surgeon General have stated that flavored tobacco products in electronic smoking devices help establish smoking habits in youth that can lead to long-term addiction;3and
1 U.S. Department of Health and Human Services. “The Health Consequences of Smoking—50 Years of Progress. A Report of the Surgeon General” (2014). https://www.ncbi.nlm.nih.gov/books/NBK179276/pdf/Bookshelf_NBK179276.pdf 2 Office of the Surgeon General. “Surgeon General’s Advisory on E-cigarette Use Among Youth” (2018). https://ecigarettes.surgeongeneral.gov/documents/surgeon-generals-advisory-on-e-cigarette-use-among-youth-2018.pdf 3 Id.
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 2 WHEREAS, traditional tobacco products including cigarettes, cigarillos, and chewing tobacco are also sold in flavors (such as menthol and wintergreen) that appeal to young people, with data from the National Youth Tobacco survey indicating that over two-fifths of U.S. middle school and high school smokers report using flavored cigarillos or flavored cigarettes; and WHEREAS, the smoking of tobacco and the use of electronic cigarettes are forms of air pollution and area danger to public health as well as a material public nuisance; and WHEREAS, a local prohibition against the sale of flavored tobacco products and against the sale of all electronic smoking devices is an effective means to reduce the availability of these products to youth, thereby protecting the public health by discouraging tobacco initiation and continued use; and
WHEREAS, the federal Family Smoking Prevention Tobacco Control Act, enacted in 2009, prohibited candy and fruit-flavored cigarettes, largely because these flavored products were marketed to youth and young adults, and younger smokers were more likely to have tried these products than older smokers; and
WHEREAS, the California Legislature has recognized the danger of tobacco use and has made reducing youth access to tobacco products a high priority; and WHEREAS, State law contains various tobacco control laws including: the prohibition against the sale or furnishing of tobacco products and smoking paraphernalia to minors (Cal. Pen.
Code, § 308); the sale or furnishing of electronic smoking devices to minors (Cal. Health & Safety Code, § 119405); and the sale of loose or single cigarettes; and WHEREAS, State law requires tobacco retailers check the identification of tobacco purchasers who appear to be under 21 years of age (Cal. Bus. & Prof. Code, § 22956); and WHEREAS, State law prohibits the sale or distribution of free or nominal-cost cigarettes or smokeless tobacco products (or coupons, coupon offers, or rebate offers for such products) on public grounds or on private grounds that are open to the public (Cal. Health & Safety Code, § 118950); and
WHEREAS, most recently in August 2020, the California Legislature passed and Governor Newsom signed into law Senate Bill 793 (SB 793), a broad legislation prohibiting the sale of most flavored tobacco products (codified at Cal. Health & Safety Code, § 104559.5); and WHEREAS, Section 104559.5(g) also specifically allows adoption of a local ordinance that imposes greater restrictions on the access to tobacco products than the restrictions imposed by state law, and provides that a stricter local ordinance shall govern in the case of any inconsistency between the local ordinance and state law; and
WHEREAS, while SB 793 has been placed on the November 8, 2022 ballot through a qualifying referendum, municipalities continue to retain the authority to adopt local ordinances restricting the sale of flavored tobacco and/or electronic cigarettes; and
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 3 WHEREAS, federal law also expressly grantsstate and local governments the right to enact measures that are more restrictive than those in the federal law; 4 and
WHEREAS, despite local, state, and federal efforts to limit youth access to tobacco, flavored tobacco products and electronic smoking devices, minors are still able to access these products; and
WHEREAS, the failure of retailers to comply with tobacco control laws and other smoking laws, particularly laws prohibiting sale to minors, presents an imminent threat to the public health, safety, and welfare of the residents of Pleasant Hill; and WHEREAS, flavored tobacco products, including liquid solutions for electronic smoking devices and traditional flavored products, are commonly sold to young people by California retailers. For example, statewide, California retailers violate the federal prohibition against underage tobacco sales at a rate of 19.1%.5 Convenience stores have a violation rate of 25.3%, while small markets have a rate of 24.8%;
6 and
WHEREAS, the accessibility of these products in retailers such as vape shops, pharmacies, and convenience stores, and lower costs of some of the products relative to conventional cigarettes made possible by social media promotion from retailers and coupons, discounts, and other promotional materials make these products more easily available to youth; and WHEREAS, the California Constitution, Article XI, Section 7, provides cities and counties with the authority to enact ordinances to protect the health, safety, welfare, and morals of their citizens; and
WHEREAS, the City of Pleasant Hill has a substantial interest in promoting compliance with federal, state, and local laws prohibiting the sale or furnishing tobacco products and electronic cigarette products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and in protecting children from being lured into illegal activity through adult misconduct; and
WHEREAS, in 2019, Contra Costa County adopted Ordinance No. 2019-34 prohibiting, in unincorporated county areas, the sale of (1) any e-liquid or electronic smoking device that is required to obtain, but has not yet obtained, a premarket review order from the FDA pursuant to the federal Family Smoking Prevention and Tobacco Control Act, and (2) any flavored tobacco product or menthol cigarette; and
WHEREAS, in January 2020, the Governing Board of the Mt. Diablo Unified School District adopted Resolution No. 19/20-32 opposing the use and sale of e-cigarettes and electronic vaping devices, agreeing to adopt district policies and take other actions to prohibit such devices, and urging cities within the school district to prohibit the sale, manufacture, and distribution of
4 21 U.S.C. § 387p(a)(1) (2009).
5 California Department of Public Health, California Tobacco Control Program. “California Tobacco Facts and Figures 2019” (2019).
6 Id.
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 4 flavored tobacco products and electronic vaping devices due to the harmful impacts on public health including on both youth and adult smokers; and
WHEREAS, the City seeks to ensure compliance with state laws relating to tobacco retailing and discourage violations of tobacco-related laws, particularly those that prohibit the sale or distribution of smoking and tobacco products to minors; and WHEREAS, based upon the recitals above, the City Council finds that the proposed amendments to Pleasant Hill Municipal Code Chapter 9.45 (“Tobacco Products and Electronic Smoking Devices”) are necessary for the protection of the public health, safety, and welfare.
NOW, THEREFORE, the City Council of the City of Pleasant Hill does ordain as follows:
Section 1. Section 9.45.030 (“Definitions”) of Article I (“Regulation of Smoking”) of Chapter 9.45 of the Pleasant Hill Municipal Code is amended by revising the definition of “electronic smoking device” as follows:
Electronic smoking device means any device or delivery system that can be used to deliver to a person in aerosolized or vaporized form, nicotine, tetrahydrocannabinol, or any other cannabinoid, including but not limited to an electronic cigarette, electronic cigar, electronic pipe, electronic hookah, or vape pen. Electronic smoking device includes any component, part, or accessory of such a device, including but not limited to a cartridge that is used during the operation of the device.
Section 2. Section 9.45.030 (“Definitions”) of Article I (“Regulation of Smoking”) of Chapter 9.45 of the Pleasant Hill Municipal Code is amended by revising the definition of “smoking” as follows:
Smoking means engaging in an act that generates smoke, such as, for example: inhaling, exhaling, burning, igniting, operating, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation.
Section 3. Section 9.45.030 (“Definitions”) of Article I (“Regulation of Smoking”) of Chapter 9.45 of the Pleasant Hill Municipal Code is amended by revising the definition of “tobacco product” as follows:
Tobacco product means:
1. Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and snuff.
2. Any electronic smoking device that contains nicotine or can be used to deliver nicotine in aerosolized or vaporized form.
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 5 3. Any component, part, or accessory of a tobacco product, whether or not it is sold separately.
4. Tobacco product does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for that approved purpose.
Section 4. Section 9.45.030 (“Definitions”) of Article I (“Regulation of Smoking”) of Chapter 9.45 of the Pleasant Hill Municipal Code is amended by deleting the definition of “electronic smoking device retailer” as shown in strike-through as follows:
Electronic smoking device retailer means any person who sells, offers for sale, or does or offers to exchange for any form of consideration electronic smoking devices and/or electronic smoking device paraphernalia. Electronic smoking device retailing shall mean the doing of any of these things. This definition is without regard to the quantity of electronic smoking devices and/or electronic smoking device paraphernalia sold, offered for sale, exchanged, or offered for exchange.
Section 5. Section 9.45.030 (“Definitions”) of Article I (“Regulation of Smoking”) of Chapter 9.45 of the Pleasant Hill Municipal Code is amended to include the following definitions, but shall remain otherwise unchanged:
Adult means an individual twenty-one years of age or older.
Adult only business means any retailer or business that allows entry only by adults onto the entire premises of the business or retailer, or that require minors to be accompanied by a parent, guardian, or another adult in order to enter the entire premises of the business or the retailer. Adult only business does not include any retailer or business that only prohibits minors from entering certain sections, divisions, or a part of the premises that is marked or otherwise restricted as adult only and allows minors to otherwise enter the remainder of its premises unaccompanied by a parent, guardian or another adult.
Characterizing flavor means a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice; provided, however, that a tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.
Cigar means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than three pounds per thousand.
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 6 Constituent means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.
Consumer means a person who purchases a tobacco product for consumption and not for sale to another.
Distinguishable means perceivable by an ordinary consumer by either the sense of smell or taste.
E-liquid means any substance that is intended to be consumed in aerosolized or vaporized form using an electronic smoking device, regardless of the nicotine content of the substance.
Flavored tobacco product means any tobacco product that contains a constituent that imparts a characterizing flavor. Menthol cigarettes are included in the definition of a flavored tobacco product for the purposes of this chapter. A tobacco product whose labeling or packaging contains text or an image indicating that the product imparts a characterizing flavor is presumed to be a flavored tobacco product.
Hookah means a type of waterpipe, used to smoke shisha or other tobacco products, with a long flexible tube for drawing aerosol through water. Components of a hookah may include heads, stems, bowls, and hoses.
Hookah tobacco business means a tobacco retailer, a smoking lounge or bar that is engaged in the retail sale of shisha tobacco products, hookah, and hookah smoking accessories, or the serving of those products and accessories for onsite smoking.
Labeling means written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.
Loose leaf tobacco consists of cut or shredded pipe tobacco, usually sold in pouches, excluding any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes, including roll-your-own cigarettes.
Little cigar means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than three pounds per thousand. Little cigar includes, but is not limited to, any tobacco product known or labeled as “small cigar” or “little cigar.”
Menthol cigarettes means cigarettes as defined by federal law that have a characterizing flavor of menthol, mint, or wintergreen, including cigarettes advertised, labeled, or described by the manufacturer as possessing a menthol characterizing flavor.
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 7 Package or packaging means a pack, box, carton, or container of any kind, or any wrapping, in which a tobacco product is sold or offered for sale to a consumer.
Person means any individual, firm, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or other legal entity.
Shisha tobacco product means a tobacco product smoked or intended to be smoked in a hookah. Shisha tobacco product includes, and may be referred to as, hookah tobacco, waterpipe tobacco, maassel, narghile, and argileh. Shisha tobacco product does not include any electronic devices, such as an electronic hookah, electronic cigarette, or electronic tobacco product.
Smoke means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization, when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the byproducts, except when the combusting or vaporizing material contains no tobacco, marijuana, or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. Smoke includes, but is not limited to, tobacco and marijuana smoke and gases, particles, e-liquids, and vapors from electronic smoking devices as defined in this chapter. Any vapor produced during vaporization of marijuana for medical purposes in a multi-unit residence is not included within this definition.
Section 6. Subsection B of Section 9.45.050 (“Smoking prohibition”) of Article I (“Regulation of Smoking”) of Chapter 9.45 of the Pleasant Hill Municipal Code is amended as shown in strike-through as follows:
B. Places of employment. In addition to the prohibitions on the use of tobacco in places of employment set forth in California Labor Code section 6404.5, within the city of Pleasant Hill, no employer shall knowingly or intentionally permit, and no person shall engage in, the use of any electronic smoking device in an enclosed space at a place of employment.
Enclosed space includes lobbies, lounges, waiting areas, elevators, stairwells, and restrooms that are a structural part of the building. For purposes of this subsection B and in order to determine compliance with the requirements of California Labor Code section 6404.5:
Place of employment does not include an electronic smoking device retailer, provided there is no smoking of any tobacco product in other than an enclosed area in or attached to any electronic smoking device retailer and the enclosed area shares no common air space, ventilation, air conditioning or heating system with the remainder of said retailer.
Place of employment does not include an enclosed area in or attached to any tobacco retailer, provided the enclosed area shares no common air space, ventilation, air conditioning or heating system with the remainder of said retailer.
Section 7. Section 9.45.100 (“Vending machines”) of the Pleasant Hill Municipal Code is hereby repealed and reserved.
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 8 9.45.100 Reserved.
Section 8. Section 9.45.110 (“Distribution of free samples and coupons”) of Article I (“Regulation of Smoking”) of Chapter 9.45 of the Pleasant Hill Municipal Code is hereby amended as follows:
No person, firm, association or corporation in the business of selling tobacco products for commercial purposes, or agent or employee thereof, shall in the course of such business distribute, or direct, authorize, or permit any agent or employee to distribute, any of the following on or in a public street, sidewalk, park, playground or building: (A) any tobacco product; or (B) coupons, certificates, or other written material which may be redeemed for tobacco products without charge.
Section 9. Section 9.45.120 (“Out-of-package sales”) of Article I (“Regulation of Smoking”) of Chapter 9.45 of the Pleasant Hill Municipal Code is hereby amended as follows:
No person shall sell or offer for sale any tobacco product not in the original packaging provided by the manufacturer.
Section 10. Article II (“Restricting the Advertising and Promotion of Tobacco Products, Electronic Smoking Devices and Electronic Smoking Device Paraphernalia to Minors”) of Chapter
9.45 of the Pleasant Hill Municipal Code is amended as shown in underline/strike-through as follows:
Article II. Restricting the Advertising and Promotion of Tobacco Products to Minors
9.45.200 Purpose.
The purpose of this article is to promote the welfare of minors by discouraging the commercial exploitation of potential underage tobacco users and by discouraging actions that promote the unlawful sale of tobacco products to minors, as well as the unlawful purchase or possession of tobacco products by minors.
9.45.210 Definitions.
This article incorporates the definitions set forth in PHMC § 9.45.030. In addition, as used in this article:
Advertising display sign means a sign, billboard, signboard, poster, placard, freestanding sign, pennant, banner, graphic display, mural, or similar device that is used to advertise or promote a product. It includes a sign which is temporary or permanent, placed on or affixed to the ground, sidewalk, a pole or post, fence, or a building, or displayed in the window or door of a commercial establishment.
Chief of police means the city chief of police or his or her designee.
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 9 Mobile billboard means an advertising display sign which is placed on or affixed to a vehicle if the vehicle is parked within a public right-of-way or on private property and is used primarily to advertise a product. (See Prohibited signs, PHMC § 18.60.060.) Offering for sale means that tobacco products are actually sold and/or displayed in the retail establishment.
Promotion means a display of any logo, brand name, character, graphic, artwork, colors, scenes, or designs that are a recognized image of a particular product brand that calls the public’s attention to the product brand.
Publicly visible location means an outdoor location that is visible from any street, sidewalk, or other public thoroughfare, or a location inside a commercial establishment that is in or adjacent to a window or doorway and is visible from any street, sidewalk, or other public thoroughfare. To be considered publicly visible, an inside location must be within one foot of a window or doorway.
Self-service display means the open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-toperson transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
9.45.220 Administration.
This article shall be administered by the chief of police. The chief may develop guidelines to ensure implementation of this article.
9.45.230 Restrictions on the advertising of tobacco products – Exceptions.
A. Restriction. No person shall place or maintain, or cause or allow to be placed or maintained, any advertising or promotion of tobacco products on an advertising display sign in a publicly visible location within 1,600 feet of the perimeter of: a public or private elementary, middle or secondary school; or a public playground or playground area in a public park (e.g., a public park with equipment such as swings and seesaws, baseball diamonds or basketball courts).
B. Exceptions. Subsection A of this section does not apply to advertising or promotion for tobacco products which are:
1. Located inside a commercial establishment, unless the advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from a street, sidewalk or other public thoroughfare;
2. On vehicles, other than mobile billboards;
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 10 3. On any sign located inside or immediately outside a commercial establishment if the sign provides notice that the establishment sells tobacco products, so long as the sign does not promote any brand of tobacco product; or
4. On tobacco product packaging.
9.45.240 Sale and distribution of promotional items related to tobacco products prohibited.
A. No manufacturer, distributor, or retailer of tobacco products may market, license, distribute, sell, or cause to be marketed, licensed, distributed or sold any item or service to a minor which bears the brand name (alone or in conjunction with any other word), logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of tobacco product.
B. No person in the business of selling or otherwise distributing tobacco products for commercial purposes shall, in the course of such business, distribute, or direct, authorize or permit any agent or employee to distribute, any of the following on a public street or sidewalk, in a public park or playground, or on any other public ground or in a public building: (1) a tobacco product; or (2) a coupon, certificate, or other written material which may be redeemed for tobacco products without charge.
9.45.250 Self-service displays prohibited.
It is unlawful for a person to sell, permit to be sold, offer for sale, or display for sale any tobacco product by means of a self-service display, rack, counter top or shelf that allows a self-service customer access to a tobacco product. All tobacco products shall be offered for sale exclusively by means of seller assistance. Tobacco products shall be located exclusively in a locked case, located behind counters out of reach from customers, or in a similar location that is inaccessible to customers, requiring seller assistance for the customer to obtain access to the products.
9.45.260 Violations.
A. Chief of police review. A private citizen or a city officer or employee may submit a written complaint to the chief of police concerning any advertising or promotion prohibited by this article. The chief will review and, if determined to be appropriate, act upon the complaint in a timely manner. The chief may serve written notice requiring correction of any violation of this article upon the person responsible for the business or for the advertising display sign or promotion or self-service display prohibited by this article. Any notice issued shall specify a date by which the violation must be corrected. The notice shall be served by (1) personal service or by (2) certified and first class mail.
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 11 B. Correction. The person responsible shall correct the violation within the time specified in the notice.
C. Each display and each day a separate offense. Each separate display of advertising or promotion prohibited by this article is considered a separate violation. Each day a violation continues is considered a separate violation.
D. Each business location a separate entity. For purposes of determining liability, each individual franchise or business entity is deemed a separate entity.
9.45.270 Additional remedies – Disclaimers.
A. Intent as to additional legal restrictions and remedies. Nothing in this article is intended to alter the obligations or restrictions that apply to any person under any other law governing signs, billboards, advertising or any other matter covered by this article. The remedies set forth in this article are not exclusive. If any action prohibited by this article is also unlawful under any other law, the penalties and remedies under other laws may be pursued in addition to those provided in this chapter.
B. Disclaimers. By prohibiting the advertising or promotion of the products regulated herein in outdoor or publicly visible locations, prohibiting the distribution of certain promotional items and self-service displays of enumerated products, the city is only promoting the general welfare. It is not assuming, nor is it imposing upon its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.
Section 11. Section 9.45.300 (“Retailer license requirement – Generally”) of Article III (“Retail Licenses”) of Chapter 9.45 of the Pleasant Hill Municipal Code is amended as shown in strike-through as follows:
A. License required. It is unlawful for a person or retailer who, within the last 12 months, has been determined to be in violation of a provision of this chapter, or applicable state or federal law governing the sale and distribution of any tobacco product, electronic smoking device or electronic smoking device paraphernalia, to sell or offer for sale any tobacco product within the city without first obtaining and maintaining a retailer’s license from the city.
It is unlawful for any retailer who is required to have a retailer’s license pursuant to this article to sell or offer for sale any tobacco products if the license has been suspended under PHMC § 9.45.360.
A retailer’s license shall be obtained from the chief of police.
B. Term of license – Obligation to maintain. A license is valid for three years, and a person or retailer subject to this license requirement must maintain the license during the three-year period. If there are no further violations of any laws regulating the sale or distribution of tobacco products in that three-year period, a retailer’s license will no longer be required.
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 12 Section 12. Section 9.45.310 (“Retailer license – Application procedure”) of Article III (“Retail Licenses”) of Chapter 9.45 of the Pleasant Hill Municipal Code is amended as shown in strike-through as follows:
An application for a retailer’s license shall be submitted in the name of the person or retailer who, following a finding of violation as specified in PHMC § 9.45.300, proposes to conduct retail tobacco sales on the business premises. The application shall be signed by the person or retailer or its authorized agent. The application shall be submitted on a form provided by the city and shall contain the following information:
A. The name, address, and telephone number of the applicant; B. The business name, address, and telephone number where the tobacco product, is to be sold; and
C. Such other information as the chief of police determines is reasonably necessary for implementation of this article.
Section 13. Section 9.45.340 (“Retailer license – Display”) of Article III (“Retail Licenses”) of Chapter 9.45 of the Pleasant Hill Municipal Code is amended as follows:
The license must be prominently displayed at the location where tobacco retail sales are conducted.
Section 14. Section 9.45.360 (“Retailer license – Suspension”) of Article III (“Retail Licenses”) of Chapter 9.45 of the Pleasant Hill Municipal Code is amended as follows:
A. Suspension of license. In order to discourage violations of law, a retailer’s license may be suspended if the chief of police finds that the licensee or his or her employee has violated any law regulating the sale or distribution of tobacco products, electronic smoking devices or electronic smoking paraphernalia. (See PHMC § 9.45.300.A.) The chief may suspend the license only after giving the licensee notice and a reasonable opportunity to be heard on the matter. The chief shall put his or her findings in writing.
B. Time period of suspension.
1. The first time that the chief finds a violation occurred, the license to sell tobacco products may be suspended for up to 60 days.
2. After the second time that the chief finds a violation occurred within a 12-month period, the license to sell tobacco products may be suspended for up to 120 days.
3. After the third and each subsequent time that the chief finds a violation occurred within a 12-month period, the license to sell tobacco products may be suspended for up to one year.
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 13 C. Appeal of suspension. A decision of the chief to suspend a retailer’s license may be appealed to the city manager or his or her designee.
Section 15. Article IV entitled “Sales of Flavored Tobacco Products and Sales of Electronic Smoking Devices Prohibited” is hereby added to Chapter 9.45 of the Pleasant Hill Municipal Code to read as follows:
Article IV. Sales of Flavored Tobacco Products and Sales of Electronic Smoking Devices Prohibited
9.45.400 Sale or offer for sale of flavored tobacco products prohibited.
A. No person or tobacco retailer shall sell, or offer to sell, any flavored tobacco product.
B. There shall be a rebuttable presumption that a tobacco retailer in possession of four or more flavored tobacco products, including but not limited to individual flavored tobacco products, packages of flavored tobacco products, or any combination thereof, possesses such flavored tobacco products with intent to sell or offer for sale.
C. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees, in the course of their agency or employment, has:
1. Made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor including, but not limited to, text, color, and/or images on the product’s labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor; or
2. Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.
D. The provisions of this section shall not apply to loose leaf tobacco or cigars.
9.45.410 Sale or offer for sale of electronic smoking devices and electronic smoking device paraphernalia prohibited.
No person or tobacco retailer shall sell, or offer to sell, any electronic smoking device or electronic smoking device paraphernalia.
9.45.420 Exemption.
Notwithstanding any other provision of this article, hookah tobacco businesses with valid retailer’s licenses issued pursuant to this chapter shall be exempt from the requirements of this chapter provided that such businesses qualify as an adult only business and operate in
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 14 accordance with all relevant state and local laws relating to the sale of tobacco products and tobacco paraphernalia.
9.45.430 Public nuisance.
Any violation of this article is hereby declared a public nuisance.
9.45.440 No conflict with federal or state law.
Nothing in this article shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law.
9.45.450 Enforcement.
The city may enforce this article by any means authorized in PHMC Chapter 1.25, including an administrative citation under PHMC Chapter 1.35.
Section 16. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the Ordinance.
The City Council hereby declares that it would have passed this Ordinance and each section, subsection, sentence, clause, and phrase thereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses, or phrases be declared invalid or unconstitutional.
Section 17. Any provision of the Pleasant Hill Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to the extent necessary to implement the provisions of this Ordinance.
Section 18. The City Council finds that adoption of this Ordinance is exempt from the California Environmental Quality Act (“CEQA”) because its provisions will not result in a direct or reasonably foreseeable indirect physical change in the environment (CEQA Guidelines Section 15060(c)(2)), and it can be seen with certainty that there is no possibility that the ordinance will have a significant impact on the environment (CEQA Guidelines Section 15061(b)(3)).
Section 19. This Ordinance shall become effective on January 1, 2023.
Section 20. Within fifteen days after the passage of this Ordinance, the City Clerk shall cause it to be posted in the three places designated by resolution of the City Council.
The foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Pleasant Hill on the 24th day of January, 2022.
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 15 ADOPTED and ordered posted at a meeting of the City Council of the City of Pleasant Hill, held on the 7th day of February, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
MICHAEL G. HARRIS, OD, Mayor
ATTEST:
______________________________________
DANIELLE K. HABR, City Clerk
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Attachment: Proposed Ordinance (Ordinance Prohibiting Flavored Tobacco) 1 Janet Coleson
From: Jen Grand-Lejano <[email protected]>
Sent: Tuesday, February 1, 2022 4:17 PM
To: [email protected]; [email protected] Cc: Brian Davis; Amaya Wooding; Jimmy Ancira; Mayra Lopez; Blythe Young Subject: RE: Flavored Tobacco ordinance concerns - American Cancer Society CAUTION - EXTERNAL SENDER.
Hi Mayor Harris and City Attorney Coleson,
Thank you Mayor Harris for your time on our call today to give a preview of our concerns with the ordinance. I’m working in coalition with local public health org LGBTQ Minus Tobacco who were kind enough to draft a summary of our concerns below. The Contra Costa Tobacco Prevention Project Director, Mayra Lopez, is also copied to provide TA on the County’s ordinance which is stronger than what is being considered in Pleasant Hill. Below is a summary of our concerns with the ordinance, chiefly around loopholes in weight-based cigar definitions and the unmotivated exemption for flavored hookah.
Cigar definition issues
The 1/24/22 version of the ordinance uses a weight-based definition to differentiate little cigars and cigars. The cutoff is 3 pounds per thousand – anything above that is considered a cigar and exempted from the flavored tobacco sales ban.
However, this definition also exempts many cheap, flavored cigarillo products that are popular with youth, such as Swisher Sweet, White Owl, Splitarillos, and Black & Mild.
Alameda County public health staff have received communication directly from Marlboro parent company Altria saying that Black & Mild products weigh 4.3 pounds per thousand. Alameda County staff then went out to retailers and measured other cigarillo products, all of which weighed over 3 pounds per thousand.
Considering that it is 5 for 99 cent flavored products like Swisher Sweets and Splitarillos that youth are drawn to, SB 793 used a definition of “premium cigar” based on price and manufacturing process. That definition is “any cigar that is handmade, is not mass produced by use of mechanization, has a wrapper that is made entirely from whole tobacco leaf, and has a wholesale price of no less than twelve dollars ($12). A premium cigar does not have a filter, tip, or nontobacco mouthpiece and is capped by hand.” While Unincorporated Contra Costa County uses the same weight-based definitions for cigars and little cigars as the 1/24/22 version, that policy has no exemptions for flavored tobacco products of any kind.
Flavored Hookah
The 1/24/22 version of the ordinance introduces an exemption to flavored hookah that is not based on the health concerns surrounding the product. California youth who use hookah overwhelmingly prefer flavors (82.5%). Like vaping, hookah use makes youth more likely to use cigarettes and marijuana.
While the hookah industry has pushed a narrative that hookah is a historical cultural product, the truly historical form of the product is unflavored. The World Health Organization says “waterpipe tobacco smoking was popular among older men in the Middle East who used primarily the harsh non-flavoured tobacco, which was repulsive to youth. However, the introduction of flavoured tobacco in the early 1990’s rapidly escalated the use among young people, starting in the
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Attachment: Correspondence (Ordinance Prohibiting Flavored Tobacco) 2 Middle East” (See: https://apps.who.int/iris/bitstream/handle/10665/179523/WHO_NMH_PND_15.4_eng.pdf (-> secure-web.cisco.com) ) In the United States, hookah is disproportionately used by Black and Hispanic students, who like youth users are then more likely to vape and smoke cigarettes or marijuana.
Unincorporated Contra Costa gives no special treatment to hookah and in fact bans hookah lounges because of indoor secondhand smoke concerns. Pleasant Hill likewise has no hookah lounges and therefore no reason to give special treatment to another hazardous flavored tobacco product.
Other features of county policy
There are additional provisions like a minimum pack size for cigarillos, a cap on the number of retailers, and a minimum price for cigars that are present in Unincorporated Contra Costa County’s tobacco retail ordinance but absent from the 1/24/22 version. The relevant parts of the County municipal code are Chapters 445-6 and 445-10.
Please let us know if you have any questions.
Jen
Jen Grand-Lejano
Government Relations Director, CA - Northern California m: (925) 639.9130
American Cancer Society Cancer Action Network, Inc.
fightcancer.org | 1.800.227.2345
This message (including any attachments) is intended exclusively for the individual to whom it is addressed and may contain proprietary, protected, or confidential information. If you are not the named addressee, you are not authorized to read, print, copy, or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately.
From: Jen Grand-Lejano
Sent: Friday, January 28, 2022 4:28 PM
To: [email protected]
Subject: Flavored Tobacco meeting request - American Cancer Society Hi Mayor Harris,
I’m reaching out from the American Cancer Society Cancer Action Network, where I specialize in local flavored tobacco policy to protect youth, and I’d love to meet to discuss and provide some technical assistance. We’re concerned that the ordinance that just passed 1st reading with an exemption for flavored hookah tobacco doesn’t align with Council’s intention to address the issue of youth tobacco use. Also, there’s an issue with the definition of little cigar/cigarillo which would unintentionally exempt many popular products, which are certainly very attractive to youth and sold cheaply with fruity flavors to target them and communities of color.
Might you be available to meet briefly in the next week to discuss? Thank you,
Jen
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Attachment: Correspondence (Ordinance Prohibiting Flavored Tobacco) 3 Links contained in this email have been replaced. If you click on a link in the email above, the link will be analyzed for known threats. If a known threat is found, you will not be able to proceed to the destination. If suspicious content is detected, you will see a warning.
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Attachment: Correspondence (Ordinance Prohibiting Flavored Tobacco) 1 Danielle Habr
From: Zach Seal
Sent: Thursday, February 3, 2022 7:17 AM
To: CityCouncilPH
Cc: June Catalano; Danielle Habr; Geoff Gillette; Juanita Davalos Subject: FW: Flavored Tobacco Products and Electronic Smoking Devices - Introduction of City Ordinance
Mayor Harris and Councilmembers:
Please see the email below from Ravinder Kaur, the owner of Cigarettes Outlet.
Zach
From: Ravinder Kaur <[email protected]>
Sent: Thursday, January 27, 2022 6:28 PM
To: Zach Seal <[email protected]>
Subject: Re: Flavored Tobacco Products and Electronic Smoking Devices ‐ Introduction of City Ordinance Dear Mayor Harris, Vice Mayor Flaherty, and Council-members, I am the owner of Cigarettes Outlet and have been in business for about ten years now, and my business is widely known within the Pleasant Hill local community.
As a family business, we have diligently followed any city ordinance or California legislation passing that relates to our business these past years. Never have we: sold tobacco products to a minor or an adult that sought to give tobacco-related products to a minor. As we have diligently followed every rule that has been handed to us, we urge you not to pass this ordinance as it will not only significantly impact our business, but businesses like the Blue Cave, Legends Smoke Shop, OAKS Smoke Shop, and Ashland Smokeshop. These are a few of many businesses in Pleasant Hill that this ordinance will affect.
A part of the American dream is to have a free market and the right to consume. My family and I thoroughly believe this ordinance infringes the right of adults to choose what products they would like to consume and affect the market these businesses are in. While we believe this city ordinance has good-faith-based reasons to reduce the number of underage smokers, the same could be achieved without such strict ruling to ban flavored tobacco completely. Other policies enacted that are less challenging and detrimental to tobacco-related businesses could be enacted. Such as proper education to children about smoking products or the Pleasant Hill Police sending undercover decoys to smoke shops to ensure businesses are checking adequate identification.
Cigarettes Outlet is ready to comply with any other means asides from this strict ordinance. Thank you for your time.
Sincerely,
Ravinder Kaur
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Attachment: Correspondence (Ordinance Prohibiting Flavored Tobacco) 2 On Thu, Jan 20, 2022 at 9:26 PM Zach Seal <[email protected]> wrote:
Hi Ravinder:
I wanted to follow up on the message I left for you this afternoon regarding the January 24th City of Pleasant Hill City Council meeting where the Council will be considering an ordinance that would prohibit the sale of flavored tobacco products and electronic smoking devices, including flavored vaping juices, flavored cigarettes (including menthol cigarettes), and vaping devices.
You can view the meeting notice and staff report for the ordinance at the link below. Scroll down to Item #2 under “9. Public Works and Community Development”
http://pleasanthillca.iqm2.com/Citizens/Detail_Meeting.aspx?ID=1899 Many thanks,
Zach
Zach Seal
Economic Development Manager
City of Pleasant Hill
100 Gregory Lane
Pleasant Hill, CA 94523
Office (925) 671-5213
Mobile (510) 219-1541
[email protected]
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Attachment: Correspondence (Ordinance Prohibiting Flavored Tobacco)
CITY COUNCIL STAFF REPORT
Meeting Date: February 07, 2022
TO: THE HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBJECT: ADOPT RESOLUTION NO. ___-22 DIRECTING THE PREPARATION AND FILING OF THE 2022/2023 ANNUAL REPORT FOR ASSESSMENT DISTRICT NO. 20 (COMMERCIAL AREA LANDSCAPE AND
LIGHTING) AND ADOPT RESOLUTION NO. ___-22 REQUESTING
CONSENT FROM THE CITY OF CONCORD FOR ORDERING OF
IMPROVEMENTS AND ASSESSMENTS OF COSTS FOR BENEFITED
PROPERTY IN ASSESSMENT DISTRICT NO. 20
SYNOPSIS
An assessment district is a financial mechanism that allows for the levy of assessments on a specific geographic area or parcels of real estate which have been identified as receiving a direct and special “benefit” from a public improvement or service. Assessment District No. 20 (AD 20) enables the City to provide landscape maintenance and street lighting at an enhanced level along certain commercial streets. These landscape and lighting improvements are considered to be of direct benefit to the properties within AD 20 boundaries. The funding for the maintenance and services is provided through annual assessments paid by benefiting property owners of parcels located within AD 20. A total of 17 properties within AD 20’s boundaries are located in the City of Concord. The City annually requests consent from the City of Concord to grant the authority to levy assessments on these benefiting properties.
In order for the City to continue to levy and collect assessments within AD 20 for the upcoming fiscal year 2023 (FY 2022/2023) that begins on July 1, 2022, the District Engineer must prepare an Annual Report. The Annual Report must include a description of the improvements to be made during the fiscal year; an estimate of costs to maintain the improvements; an allocation of costs to each parcel; confirmation of each benefiting parcel and levy of assessments; current expenditures; and proposed budget for services. Staff recommends the City Council adopt the proposed resolution directing the District Engineer to prepare and file the FY 2022/2023 Annual Report for AD 20; and adopt the proposed resolution requesting consent from the City of Concord for ordering improvements and assessments of costs for benefitted properties within AD 20.
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DISCUSSION
Background
AD 20 was formed in 1988 pursuant to the provisions of the Landscape and Lighting Act of 1972, which is part of the California Streets and Highways Code. AD 20 was amended in 1999 by creating a new zone (Zone 6) that includes the Downtown area (see attached map). The District enables the City to collect assessments from property owners in order to provide landscape maintenance and street lighting at an enhanced level and quality along certain commercial streets.
These services are considered to be of direct benefit to the properties within AD 20’s boundaries.
The costs to provide these services have been paid annually by the benefiting property owners.
There are 17 properties within AD 20’s boundaries that are located in the City of Concord. Eight of these properties are located east of Contra Costa Boulevard and south of Sun Valley Boulevard. The Sun Valley Mall Shopping Center contains six properties. The remaining three properties are east of Contra Costa Boulevard and south of Concord Avenue at the on-ramp to Interstate 680. The City of Concord has granted the City of Pleasant Hill authority to levy assessments on these properties since AD 20 was established. This authority must be requested and granted annually. A resolution requesting consent from the City of Concord for FY 2022/2023 is attached.
Analysis
The collecting of assessments from properties within the boundaries of AD 20 will ensure continued maintenance of lighting and landscape improvements. The maintenance activities include weekly mowing and edging of turf; maintenance and repair of irrigation systems; pruning; debris removal; graffiti removal; streetlight repair, weeding, as well as utility charges for water and electricity. In order for the City to continue to levy and collect assessments within AD 20 in FY 2022/23, the City Council must approve an Annual Report prepared by the District Engineer that includes descriptions of the improvements to be made during the fiscal year, an estimate of costs, and the levy of assessments upon the benefiting properties.
The City issued a Request for Proposals and selected Harris & Associates, Inc. (Harris) in December 2019 as the Engineer of Work to conduct the specialized analysis required by state law for inclusion in the Annual Report for AD 20. Staff was satisfied with the annual reports that Harris produced for the FY2020/2021 and FY 2021/2022 assessment cycles. Accordingly, staff accepted the firm’s proposal to prepare the Annual Report for FY 2022/2023 and submit the assessments to the County Auditor for placement on the Property Tax Roll. A not-to-exceed fee of $16,748 will provide for these services.
Once the FY 2022/2023 Annual Report is complete, the City Council will review the report, and if appropriate, approve a resolution announcing the intent to levy assessments for the current year.
The resolution accomplishes the following: announces the City’s intent to levy and collect assessments within the District; sets the date and time of a public hearing for the District; and preliminarily approves the Annual Report.
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FISCAL IMPACT
The cost of preparing all necessary reports required for the levy and collection of assessments will be borne by the property owners within AD 20. The not-to-exceed amount for the engineering services specified in the Scope of Services and Compensation attachment is $16,748, which will be paid by the Assessment District.
PUBLIC CONTACT
Public contact was made through posting of the City Council agenda on the City’s official notice bulletin board, at the Pleasant Hill Senior Center and at the Pleasant Hill Police Department. The agenda and staff report are posted on the City’s web page.
RECOMMENDED CITY COUNCIL ACTION
Adopt the proposed resolutions.
ALTERNATIVES TO RECOMMENDED ACTION
The City Council may choose not to adopt the resolutions directing Harris & Associates, Inc. to prepare and file the FY 2022/23 Annual Report and requesting consent from the City of Concord and provide direction to staff; however, this might jeopardize renewal of AD 22 for the upcoming fiscal year. If AD 22 were not renewed for FY 2023, there would be a loss of approximately $405,300 in assessment revenues that fund the maintenance activities within the boundaries of AD 20. The City would then need to fund these maintenance activities or maintenance would be suspended entirely.
ATTACHMENT(S):
Proposed Resolution
Proposed Resolution (City of Concord)
Boundary Map
Harris & Associates Scope of Services and Compensation
Prepared by: Danielle K. Habr, Principal Management Analyst/City Clerk Reviewed by: Ananthan Kanagasundaram, Acting City Engineer Ethan Bindernagel, Community Development Director/Assistant City Manager Approved by: June Catalano, City Manager
7.6 Packet Pg. 73
RESOLUTION NO. ____-22
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PLEASANT HILL DIRECTING THE PREPARATION AND FILING OF FISCAL YEAR 2022/2023 ANNUAL REPORT FOR ASSESSMENT DISTRICT NO. 20 (COMMERCIAL AREA LANDSCAPE AND LIGHTING) WHEREAS, on August 1, 1988, by Resolution No. 75-88, the City Council of the City of Pleasant Hill ordered the formation of and levied the first assessment within Assessment District No. 20, City of Pleasant Hill, Contra Costa County, State of California (the "District"), pursuant to the provisions of the Landscape and Lighting Act of 1972 (commencing at Section 22500 of the California Streets and Highways Code herein referred to as "the Act"); and
WHEREAS, the District was amended in 1999 by creating a new zone (Zone 6) that includes the Downtown area; and
WHEREAS, Section 22620 et seq., of the Act provides for the levy of annual assessments after the formation of the District; and
WHEREAS, within the District, the existing and proposed improvements and any substantial changes proposed to be made to existing improvements are generally described as the installation, servicing and maintenance of public landscape and street lighting; and NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Pleasant Hill that Harris and Associates, Inc. is designated as Engineer of Work for purposes of the District, and is hereby ordered to prepare and file the Annual Report for FY 2022/2023 that begins July 1, 2022, in accordance with Section 22565 et seq. of the Act.
ADOPTED by the City Council of the City of Pleasant Hill at a regular meeting held on the 7 th
day of February, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
___________________________________
MICHAEL G. HARRIS, OD, Mayor
ATTEST:
DANIELLE K. HABR, City Clerk
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Attachment: Proposed Resolution (AD 20 Annual Report 2022/2023) RESOLUTION NO. -22
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PLEASANT HILL
REQUESTING CONSENT FROM THE CITY OF CONCORD FOR ORDERING OF
IMPROVEMENTS AND ASSESSMENTS OF COSTS FOR BENEFITED PROPERTY IN ASSESSMENT DISTRICT NO. 20 (COMMERCIAL AREA LANDSCAPE AND LIGHTING) WHEREAS, the City Council has conducted proceedings for Assessment District No. 20 (the "District") and by Resolution No. 75-88 adopted August 1, 1988, ordered improvements generally described as installation, servicing and maintenance of public landscape and street lighting within the territory shown on the boundary map of the District, and levied assessments for improvements beginning with the fiscal year 1988/1989 and in each fiscal year thereafter, all pursuant to the Landscape and Lighting Act of 1972, Section 22500, and following, of the California Streets and Highways Code (the "Act"); and
WHEREAS, by its Resolution No. ___-22, the Council has directed the filing of an Annual Report for the District for Fiscal Year 2022/2023. A map of the boundaries of the District is on file in the office of the City Clerk and reference is hereby made to such map for further particulars; and
WHEREAS, the proposed assessments will be imposed exclusively to finance the installation, servicing and maintenance of public landscape and street lighting; and WHEREAS, the improvements to be made are of such a character that they will directly and particularly affect property not only within the boundaries of the City of Pleasant Hill, but also incorporated territory within the City of Concord described on Exhibit A, and the purposes sought to be accomplished can best be accomplished by a single comprehensive scheme of work.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Pleasant Hill that:
1. The public interest, convenience and necessity will be served by the making of improvements and the levying of assessments.
2. Request is hereby made of the City Council of the City of Concord, being the legislative body having jurisdiction over incorporated territory in which a portion of the improvements are to be made and the assessments are to be levied, to grant to this Council its consent, expressed by resolution, to the ordering of the improvements, and to the assessment of the costs thereof upon the property benefited, and the assumption of jurisdiction for the said purposes, and to the making of such changes and modifications as may be proper or advisable in the manner provided by law.
3. The City Clerk is directed to file with the City Clerk of the City of Concord a certified copy of this resolution, together with a copy of the form of Resolution of Intention (Form) and a copy of the boundary map.
[Signatures on Following Page]
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Attachment: Proposed Resolution (City of Concord) (AD 20 Annual Report 2022/2023) ADOPTED by the City Council of the City of Pleasant Hill at a regular meeting of the Council held on the 7thday of February, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
___________________________________
MICHAEL G. HARRIS, OD, Mayor
ATTEST:
DANIELLE K. HABR, City Clerk
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Attachment: Proposed Resolution (City of Concord) (AD 20 Annual Report 2022/2023) EXHIBIT “A”
TO
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PLEASANT HILL
REQUESTING CONSENT FROM THE CITY OF CONCORD FOR ORDERING OF
IMPROVEMENTS AND ASSESSMENTS OF COSTS FOR BENEFITED PROPERTY IN ASSESSMENT DISTRICT NO. 20 (COMMERCIAL AREA LANDSCAPE AND LIGHTING)
CITY OF PLEASANT HILL COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA ASSESSMENT DISTRICT NO. 20
(COMMERCIAL AREA LANDSCAPE AND LIGHTING)
FISCAL YEAR 2022/2023
TERRITORY WITHIN THE CITY OF CONCORD
PARCEL SITUS
127-032-035-9 1130 CONTRA COSTA BLVD
127-032-038-3 1212 CONTRA COSTA BLVD
127-032-039-1 1200 CONTRA COSTA BLVD
127-032-042-5 1000 SUN VALLEY BLVD
127-032-043-3 1050 CONTRA COSTA BLVD
127-032-044-1 1090 CONTRA COSTA BLVD
127-032-045-8 1100 CONTRA COSTA BLVD
127-032-046-6 1150 CONTRA COSTA BLVD
153-230-007-4 715 CONTRA COSTA BLVD
153-230-021-5 410 SUN VALLEY MALL
153-230-022-3 1053 SUN VALLEY BLVD
153-230-023-1 901 SUNVALLEY BLVD
153-230-024-9 CONTRA COSTA BLVD
153-230-025-6 1001 SUN VALLEY BLVD
153-250-003-8 625 CONTRA COSTA BLVD
153-250-008-7 627 CONTRA COSTA BLVD
153-250-009-5 605 CONTRA COSTA BLVD
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Attachment: Proposed Resolution (City of Concord) (AD 20 Annual Report 2022/2023) RESOLUTION NO. __-22
(FORM)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PLEASANT HILL
TO ORDER IMPROVEMENTS, LEVY ASSESSMENTS AND PROVIDE FOR HEARING AND NOTICE IN ASSESSMENT DISTRICT NO. 20 (COMMERCIAL AREA LANDSCAPE AND LIGHTING) FISCAL YEAR 2022/2023
WHEREAS, on February 7, 2022, the City Council adopted Resolution No. ___-22, a Resolution directing preparation and filing of the Fiscal Year (FY) 2022/2023 Annual Report for maintenance of Assessment District No. 20 (Commercial Area Landscape and Lighting) (the "District"); and
WHEREAS, pursuant to this Resolution, the City has directed Harris & Associates, Inc. as Engineer of Work for Assessment District No. 20 to prepare a report in accordance with Section 22565 et seq., of the California Streets and Highways Code (the "Report"); and WHEREAS, the Report has been made, filed with the City Clerk and duly considered by the City Council; and
WHEREAS, it is the intention of the City Council to levy and collect assessments within the District for FY 2022/2023 in order to accomplish the installation, servicing and maintenance of public landscape and street lighting; and
WHEREAS, no new or substantial changes in improvements are proposed to be made in the FY 2022/2023; and
WHEREAS, the individual assessments for FY 2022/2023 are not proposed to be increased over the amount levied in the previous year; and
WHEREAS, the proposed assessments will be imposed exclusively to finance the maintenance costs and operation expenses of sidewalks and streets; and WHEREAS, the District consists of the lots and parcels shown on the assessment diagram of the District on file with the City Clerk of the City and reference is hereby made to such diagram for further particulars; and
WHEREAS, reference is hereby made to the report for a full and detailed description of the improvements, the boundaries of the District and the proposed assessments upon assessable lots and parcels of land within the District.
NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of Pleasant Hill that:
1. The Report is hereby deemed sufficient and preliminarily approved and the Report shall stand as the Engineer's Report for all subsequent proceedings under and pursuant to this Resolution.
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Attachment: Proposed Resolution (City of Concord) (AD 20 Annual Report 2022/2023)
2. It is the intent of the City Council to levy and collect assessments within Assessment District No. 20 to accomplish the improvements as follows: “The installation, servicing and maintenance of public landscape and street lighting within the boundaries of Assessment District No. 20".
3. Notice is hereby given that on ________________, at 7:00 p.m., the City Council will hold a public hearing at its regular meeting place at 100 Gregory Lane, Pleasant Hill, California, on the question of ordering of the proposed improvements and the levying of the proposed assessments for FY 2022/2023 that beings on July 1, 2022. Prior to the conclusion of the hearing, any interested person may file a written protest with the City Clerk, or having previously filed a protest, may file a written withdrawal of that protest. A written protest shall state all grounds of objection. A protest by a property owner shall contain a description sufficient to identify the property owned by such owner.
4. The City Clerk is directed to give notice of the public hearing by publishing this Resolution in accordance with Section 6061 of the Government Code.
ADOPTED by the City Council of the City of Pleasant Hill at a regular meeting of the Council held on the day of , 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
___________________________________
MICHAEL G. HARRIS, OD, Mayor
ATTEST:
DANIELLE K. HABR, City Clerk
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Attachment: Proposed Resolution (City of Concord) (AD 20 Annual Report 2022/2023) Engineer’s Report
Assessment District No. 20
City of Pleasant Hill Fiscal
Year 2022/23
DISTRICT ASSESSMENT DIAGRAM
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Attachment: AD 20 Boundary Map (AD 20 Annual Report 2022/2023)
SCOPE OF SERVICES AND COMPENSATION
Assessment District No. 20
Fiscal Year 2022/2023
Task 1. Kick-off meeting to review prior year and plan for upcoming year.
Task 2. Update parcel databases to identify any new parcels or development changes.
Task 3. Meet with City Staff to review and update budgets and improvement plans.
Task 4. Prepare Engineer’s Report and Review with City Staff.
Task 5. Prepare City Council Staff Reports and necessary Resolutions.
Task 6. Coordinate with City Clerk for published notices.
Task 7. Attend City Council meetings (up to two meetings).
Task 8. Make any modifications to the Engineer’s Report as directed by Council.
Task 9. Submit Tax Rolls to County.
Task 10. Respond to property owner inquiries throughout the year.
The tables on the following pages provide a breakdown of the Harris personnel assigned to the project, the number of hours devoted to each task by personnel, and the estimated fees by task and total for each District.
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Attachment: Harris & Associates Scope of Services and Compensation (AD 20 Annual Report 2022/2023) Hourly Rates effective January 1, 2022 through December 31, 2022 and are subject to a 3% annual escalation factor on January 1st each year thereafter.
Total Total
$260/hr $200/hr $185/hr Estimated Estimated
Hours Hours Hours Hours Fee
Annual Administration
Task 1: Annual Kick-off Meeting to review prior year and plan for upcoming year 3.00 3.00 $ 555.00 Task 2: Update parcel database 3.50 3.50 $ 647.50
Task 3: Meet with staff to review and update budgets and improvement plans 12.00 12.00 $ 2,220.00 Task 4: Prepare Engineer's Report and Review with City Staff 1.00 1.50 40.00 42.50 $ 7,960.00 Task 5: Prepare draft City Council staff reports and resolutions 8.00 8.00 $ 1,480.00 Task 6: Coordinate with City Clerk for publishing of required notices 1.00 1.00 $ 185.00 Task 7: Attend City Council Meetings (up to 2 meetings) 8.00 8.00 $ 1,480.00 Task 8: Make Modifications as directed by City Council 2.00 2.00 $ 370.00 Task 9: Submit Tax Roll to County in the required format 8.00 8.00 $ 1,480.00 Task 10: Respond to property owner questions throughout the year 2.00 2.00 $ 370.00 Total Assessment District Administration Services - AD 20 1.00 1.50 87.50 90.00 $16,747.50 ASSESSMENT DISTRICT 20
Principal-inCharge
Assessment
Engineer
QA/QC
Project
Manager
Project
Supervisor
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Attachment: Harris & Associates Scope of Services and Compensation (AD 20 Annual Report 2022/2023)
CITY COUNCIL STAFF REPORT
Meeting Date: February 07, 2022
TO: THE HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBJECT: ADOPT RESOLUTION NO. ___-22 DIRECTING THE PREPARATION AND FILING OF THE FY 2022/2023 ANNUAL REPORT FOR
ASSESSMENT DISTRICT NO. 22
SYNOPSIS
An assessment district is a financial mechanism that allows for the levy of an assessment on a specific geographic area or parcels of real estate, which have been identified as receiving a direct and special "benefit" from a public improvement or service. Assessment District No. 22 (AD 22) enables the City to provide landscape maintenance and street lighting at an enhanced level within the scenic easements in the Grayson Woods and Gallery Walk Subdivisions. These landscape and lighting improvements are considered to be of direct benefit to the properties within AD 22’s boundaries. The funding for the maintenance and services is provided through annual assessments paid by the benefiting property owners of parcels located within AD 22.
In order for the City to continue to levy and collect assessments within AD 22 for the upcoming fiscal year (FY 2022/2023) that begins on July 1, 2022, the District Engineer must prepare an Annual Report. The Annual Report must include a description of the improvements to be made during the fiscal year; an estimate of costs to maintain the improvements; an allocation of costs to each parcel; confirmation of each benefiting parcel and levy of assessments; current expenditures; and proposed budget for services. Staff recommends the City Council adopt the proposed resolution directing the District Engineer to prepare and file the FY 2022/2023 Annual Report for Assessment District 22.
DISCUSSION
Background
AD 22 (Grayson Woods) was formed in 1997 pursuant to the provisions of the Landscape and Lighting Act of 1972, which is part of the California Streets and Highways Code. AD 22 was amended in 2002 to include Subdivision 8304, Gallery Walk. AD 22 enables the City to collect assessments from property owners in order to provide landscape maintenance and street lighting at an enhanced level and quality within the Grayson Woods and Gallery Walk Subdivisions (see maps). These services are considered to be of direct and special benefit to the properties within the
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AD 22 boundaries. The costs for providing these services have been paid annually by the benefiting property owners.
Analysis
The collecting of assessments from properties within the boundaries of AD 22 will ensure continued maintenance of lighting and landscape improvements. Since July of 2007, City staff has provided maintenance services for Grayson Woods (previously contracted out to a private landscape company), and City staff continues to provide maintenance services for Gallery Walk, funded through the collection of assessments. The maintenance activities include weekly mowing and edging of turf; maintenance and repair of irrigation systems; pruning; debris removal; graffiti removal; streetlight repair; maintenance and weeding, as well as utility charges for water and electricity.
In order for the City to continue to levy and collect assessments within AD 22 for FY 2022/2023, the City Council must approve an Annual Report prepared by the District Engineer that includes descriptions of the improvements proposed during the fiscal year, an estimate of costs, and the levy of assessments upon the benefiting properties. The City issued a Request for Proposals and selected Harris & Associates, Inc. (Harris) in December 2019 as the Engineer of Work to conduct the specialized analysis required by state law for inclusion in the Annual Report for AD
22. Staff was satisfied with the annual reports that Harris produced for the FY 2020/2021 and FY 2021/2022 assessment cycles. Accordingly, staff accepted the firm’s proposal to prepare the Annual Report for FY 2022/2023 and submit the assessments to the County Auditor for placement on the Property Tax Roll. A not-to-exceed fee of $9,995 will provide for these services.
Once the FY 2022/2023 Annual Report is complete, the City Council will review the report, and if appropriate, approve a resolution announcing the intent to levy assessments for the current year.
The resolution accomplishes the following: announces the City’s intent to levy and collect assessments within the District; sets the date and time of a public hearing for the District; and preliminarily approves the Annual Report.
FISCAL IMPACT
The cost of preparing all necessary reports required for the levy and collection of assessments will be borne by the property owners within the AD 22 boundaries. The not-to-exceed amount for the engineering services specified in the Scope of Services and Compensation attachment is $9,995, which will be paid by the Assessment District.
PUBLIC CONTACT
Public contact was made through posting of the City Council agenda on the City’s official notice bulletin board, at the Pleasant Hill Senior Center and at the Pleasant Hill Police Department. The agenda and staff report are posted on the City’s web page.
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RECOMMENDED CITY COUNCIL ACTION
Adopt the proposed resolution.
ALTERNATIVES TO RECOMMENDED ACTION
The City Council may choose not to adopt the resolution directing Harris & Associates, Inc. to prepare and file the FY 2022/2023 Annual Report and provide direction to staff; however, this might jeopardize renewal of AD 22 for the upcoming fiscal year. If AD 22 were not renewed for FY 2022/2023, there would be a loss of approximately $58,561 in collected assessments that fund the maintenance activities within the boundaries of the district. The City would then need to fund these maintenance activities or maintenance would be suspended entirely.
ATTACHMENT(S):
Proposed Resolution
Boundary Maps
Harris & Associates Scope of Services and Compensation
Prepared by: Danielle K. Habr, Principal Management Analyst/City Clerk Reviewed by: Ananthan Kanagasundaram, Acting City Engineer Ethan Bindernagel, Community Development Director/Assistant City Manager Approved by: June Catalano, City Manager
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RESOLUTION NO. -22
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PLEASANT HILL DIRECTING THE PREPARATION AND FILING OF FISCAL YEAR 2022/2023 ANNUAL REPORT FOR ASSESSMENT DISTRICT NO. 22 (GRAYSON WOODS AND GALLERY WALK) WHEREAS, on December 1, 1997, by Resolution No. 88-97, the City Council of the City of Pleasant Hill ordered the formation of and levied the first assessment within Assessment District No. 22, City of Pleasant Hill, Contra Costa County, State of California (the "District"), pursuant to the provisions of the Landscape and Lighting Act of 1972 (commencing at Section 22500 of the California Streets and Highways Code) (herein referred to as "the Act"); and WHEREAS, the District was amended in 2002 to include Subdivision 8304, Gallery Walk; and WHEREAS, Section 22620 et seq., of the Act provides for the levy of annual assessments after the formation of the District; and
WHEREAS, within the District, the existing and proposed improvements and any substantial changes proposed to be made to existing improvements are generally described as the installation, servicing and maintenance of public landscape and street lighting; and NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Pleasant Hill that Harris & Associates, Inc. is designated as Engineer of Work for purposes of the District and is hereby ordered to prepare and file the Annual Report for Fiscal Year 2022/2023 in accordance with Section 22565 et seq. of the Act.
ADOPTED by the City Council of the City of Pleasant Hill at a regular meeting held on the 7 th day of February, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
___________________________________
MICHAEL G. HARRIS, OD, Mayor
ATTEST:
DANIELLE K. HABR, City Clerk
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Attachment: Proposed Resolution (AD 22 Annual Report 2022/2023) M
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Warhol Way
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W Hookston Rd
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PLEASANT HILL ASSESSMENT DISTRICT 22
GALLERY WALK
¹
Legend
District Parcels
Landscaped Area
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Attachment: Boundary Maps (AD 22 Annual Report 2022/2023) Golf Links St
Iron
Hill St
Grayson Rd
Reliez Valley Rd
PLEASANT HILL ASSESSMENT DISTRICT 22
GRAYSON WOODS
¹
Legend
District Parcels
City Boundary
Landscaped Area
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Attachment: Boundary Maps (AD 22 Annual Report 2022/2023)
SCOPE OF SERVICES AND COMPENSATION
Assessment District 22
Fiscal Year 2022/2023
Task 1. Kick-off meeting to review prior year and plan for upcoming year.
Task 2. Update parcel databases to identify any new parcels or development changes.
Task 3. Meet with City Staff to review and update budgets and improvement plans.
Task 4. Prepare Engineer’s Report and Review with City Staff.
Task 5. Prepare City Council Staff Reports and necessary Resolutions.
Task 6. Coordinate with City Clerk for published notices.
Task 7. Attend City Council meetings (up to two meetings).
Task 8. Make any modifications to the Engineer’s Report as directed by Council.
Task 9. Submit Tax Rolls to County.
Task 10. Respond to property owner inquiries throughout the year.
The tables on the following pages provide a breakdown of the Harris personnel assigned to the project, the number of hours devoted to each task by personnel, and the estimated fees by task and total for each District.
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Attachment: Harris & Associates Scope of Services and Compensation (AD 22 Annual Report 2022/2023) Hourly Rates effective January 1, 2021 through December 31, 2021 and are subject to a 3% annual escalation factor on January 1 st
each year thereafter.
Total Total
$260/hr $200/hr $185/hr Estimated Estimated
Hours Hours Hours Hours Fee
Annual Administration
Task 1: Annual Kick-off Meeting to review prior year and plan for upcoming year 2.00 2.00 $ 370.00 Task 2: Update parcel database 1.00 1.00 $ 185.00
Task 3: Meet with staff to review and update budgets and improvement plans 8.00 8.00 $ 1,480.00 Task 4: Prepare Engineer's Report and Review with City Staff 1.00 1.50 16.00 18.50 $ 3,520.00 Task 5: Prepare draft City Council staff reports and resolutions 8.00 8.00 $ 1,480.00 Task 6: Coordinate with City Clerk for publishing of required notices 1.00 1.00 $ 185.00 Task 7: Attend City Council Meetings (up to 2 meetings) 4.00 4.00 $ 740.00 Task 8: Make Modifications as directed by City Council 1.00 1.00 $ 185.00 Task 9: Submit Tax Roll to County in the required format 8.00 8.00 $ 1,480.00 Task 10: Respond to property owner questions throughout the year 2.00 2.00 $ 370.00 Total Assessment District Administration Services - AD 22 1.00 1.50 51.00 53.50 $ 9,995.00 ASSESSMENT DISTRICT 22
Principal-inCharge
Assessment
Engineer
QA/QC
Project
Supervisor
Project
Manager
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Attachment: Harris & Associates Scope of Services and Compensation (AD 22 Annual Report 2022/2023)
CITY COUNCIL STAFF REPORT
Meeting Date: February 07, 2022
TO: THE HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBJECT: ADOPT RESOLUTION NO. ___-22 APPROVING THE AGREEMENT
WITH STAY PLEASANT HILL TO SERVE AS THE OWNERS'
ASSOCIATION FOR THE PLEASANT HILL TOURISM
IMPROVEMENT DISTRICT AND AUTHORIZING THE CITY
MANAGER TO EXECUTE THE AGREEMENT
SYNOPSIS
A resolution approving an Owners’ Association Agreement for Stay Pleasant Hill to serve as the owners’ association and manage the Pleasant Hill Tourism Improvement District (PHTID), effective on April 1, 2022 and continuing for five years until March 31, 2027, unless terminated earlier in accordance with the terms of the Agreement, and authorizing the City Manager to execute the agreement.
DISCUSSION
Background
On January 24, 2022, the City Council approved the renewal of the PHTID for five additional years, extending the district through March 31, 2027. The PHTID will generate approximately $700,000 annually for the marketing and promotion of the City’s hotels and attractions. In addition to increasing hotel usage, PHTID will also give a boost to all of the City’s businesses by bringing additional visitors into the City to shop and eat at the City’s local businesses, and by marketing for many of our establishments through www.Staypleasanthill.com, the Stay Pleasant Hill Social Media platforms, as well as hard copy materials.
Timeline
April 1, 2017 PHTID formed with a five-year term (expires March 31, 2022).
November 2021 Petition to Renew the PHTID beyond March 31, 2022 signed by majority of City hotel owners.
December 6, 2021 Resolution of Intent to Renew the PHTID adopted by City Council with amended five-year extension term.
December 9, 2021 Written notices mailed to all hotels in the City that would be subject to the assessment, as required by Streets and Highways Code § 36623 in order to form or extend a TID.
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December 20, 2021 City Council allowed public testimony on proposed PHTID renewal and reached consensus on formation of the Stay Pleasant Hill nonprofit corporation and City/Stay Pleasant Hill owners’ association agreement.
January 24, 2022 Public hearing and approval of a Resolution to Renew the PHTID for five additional years and approval of the PHTID Management District Plan.
February 7, 2022 Resolution to approve an agreement for Stay Pleasant Hill to serve as the Owners’ Association and manage the Pleasant Hill Tourism Improvement District (PHTID).
Owners’ Association Agreement between the City and Stay Pleasant Hill Streets and Highways Code section 36651 requires a contract between the City and the owners’ association that would manage the PHTID services that are described in the Management District Plan (attached). The Owners’ Association Agreement (attached) between the City and Stay Pleasant Hill outlines the terms in which Stay Pleasant Hill will provide the services for the PHTID. For example, Stay Pleasant Hill will prepare an annual report each year which includes:
Improvements and activities to be provided for that fiscal year. An estimate of the cost of providing the improvements and the activities for that fiscal year.
The method and basis of levying assessments.
The estimated amount of any surplus or deficit revenues to be carried over from a previous fiscal year.
The Agreement also enables the City to audit assessments, collections, and uses, and allows for termination of the agreement in the event that either party defaults in its obligations under the agreement.
Drafts of the Owners’ Association Agreement have been included in previous staff reports during the PHTID renewal process, and feedback from the City Council is reflected in the attached Agreement.
FISCAL IMPACT
No direct fiscal impacts as all costs associated with the management of Stay Pleasant Hill will be covered by the PHTID. Because the activities of the PHTID that will be managed by Stay Pleasant Hill are intended to increase visitation to the City, an increase in transient occupancy tax (TOT) and sales tax collection is expected.
PUBLIC CONTACT
Public contact was made through posting of the City Council agenda on the City’s official notice bulletin board, at the Pleasant Hill Senior Center and at the Pleasant Hill Police Department. The agenda and staff report are posted on the City’s web page.
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RECOMMENDED CITY COUNCIL ACTION
Adopt the proposed resolution approving an Owners’ Association Agreement for Stay Pleasant Hill to serve as the owners’ association and manage the Pleasant Hill Tourism Improvement District (PHTID) and authorizing the City Manager to execute the agreement.
ALTERNATIVES TO RECOMMENDED ACTION
The Council could choose not to adopt the attached Resolution for Stay Pleasant Hill to serve as the owners’ association and manage the PHTID. Staff does not recommend this option.
ATTACHMENT(S):
Proposed Resolution
Exhibit 1 - Owners’ Association Agreement – clean copy with Stay Pleasant Hill signature Owners’ Association Agreement – redline version reflecting Council direction 2022-2027 PHTID Management District Plan
Prepared by: Zach Seal, Economic Development Manager
Approved by: June Catalano, City Manager
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1 RESOLUTION NO. ___-22
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PLEASANT HILL
APPROVING AN AGREEMENT WITH STAY PLEASANT HILL TO SERVE AS THE OWNERS’ ASSOCIATION FOR THE PLEASANT HILL TOURISM IMPROVEMENT
DISTRICT AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT WHEREAS, the Property and Business Improvement District Law of 1994 (Streets and Highways Code §36600, et seq.) authorizes the City to establish business improvement districts upon petition by a weighted majority of the lodging business owners located within the boundaries of the district; and
WHEREAS, on March 20, 2017, the City Council, approved Resolution No. 29-17 establishing the Pleasant Hill Tourism Improvement District (PHTID) for a five (5) year term, beginning April 1, 2017, and continuing through March 31, 2022; and WHEREAS, at its meeting of January 24, 2022 the City Council held a public hearing and adopted Resolution No. 7-22 renewing the PHTID for a five-year term beginning April 1, 2022 and approving the Management District Plan; and
WHEREAS, Stay Pleasant Hill (Contractor) was designated in both the Resolution and the Management District Plan (MDP) as the Owners’ Association in accordance with Streets and Highways Code section 36614.5. The Contractor manages the day-to-day operations of the programs identified in the MDP including the provision of annual reports with audited financial statements due to the City by the end of October each year.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Pleasant Hill, that the City Manager is hereby authorized to execute the agreement (Exhibit 1) with Stay Pleasant Hill to serve as the Owners’ Association of the Pleasant Hill Tourism Improvement District.
ADOPTED by the City Council of the City of Pleasant Hill at a regular meeting held on the 7
th day of February, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
___________________________________
MICHAEL G. HARRIS, OD, Mayor
ATTEST:
DANIELLE K. HABR, City Clerk
8.1.a
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Attachment: Proposed Resolution (TID Owners Agreement)
1 AGREEMENT FOR SERVICES
This Agreement, dated _______________, is by and between the City of Pleasant Hill, a California municipal corporation, hereinafter referred to as the “City,” and Stay Pleasant Hill, a California non-profit corporation, hereinafter referred to as “Contractor,” collectively referred to as the “Parties.”
RECITALS
A. On March 20, 2017, the City Council adopted Resolution number 29-17, creating the Pleasant Hill Tourism Business Improvement District, hereinafter “PHTID,” in accordance with the provisions of the Property and Business Improvement District Law of 1994, Streets and Highways Code section 36600 et seq., hereinafter the “1994 Law.”
B. On January 24, 2022 the City Council adopted Resolution number 7-22, hereinafter the “Resolution,” renewing the PHTID in accordance with the provisions of the 1994 Law.
C. Pursuant to the 1994 Law and the Resolution, the City is authorized to levy and collect an annual assessment from lodging businesses in the PHTID for the purpose of sales promotion and marketing projects, programs, and activities that benefit lodging businesses located and operating within the boundaries of the PHTID.
D. The City Council approved a management district plan, hereinafter the "PHTID Management District Plan,” designating Contractor to serve as the Owners’ Association for the PHTID in accordance with Streets and Highways Code section 36612 and as the entity responsible for managing the operations of the PHTID.
E. Streets and Highways Code section 36651 requires a contract between the City and the Owners’ Association for provision of PHTID services if the management district plan designates an owners’ association. The PHTID Management District Plan designates Contractor as the Owners’ Association to administer and implement the PHTID’s activities and improvements.
F. Contractor has represented to the City that it possesses the labor, professional skills, and expertise to administer and implement the activities and improvements of the PHTID described in the PHTID Management District Plan.
G. Contractor is willing to provide services to the City on the terms and conditions set forth in this Agreement.
AGREEMENT
Now, therefore, the Parties agree as follows:
1. Engagement. City hereby retains Contractor to provide the services described in Exhibit A, attached hereto and incorporated herein, and Contractor accepts such engagement.
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Attachment: Exhibit 1 - Owners Association Agreement (TID Owners Agreement)
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Attachment: Exhibit 1 - Owners Association Agreement (TID Owners Agreement)
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Attachment: Exhibit 1 - Owners Association Agreement (TID Owners Agreement)
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Attachment: Exhibit 1 - Owners Association Agreement (TID Owners Agreement)
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Attachment: Exhibit 1 - Owners Association Agreement (TID Owners Agreement)
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Attachment: Exhibit 1 - Owners Association Agreement (TID Owners Agreement)
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Attachment: Exhibit 1 - Owners Association Agreement (TID Owners Agreement)
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Attachment: Exhibit 1 - Owners Association Agreement (TID Owners Agreement)
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Attachment: Exhibit 1 - Owners Association Agreement (TID Owners Agreement)
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Attachment: Exhibit 1 - Owners Association Agreement (TID Owners Agreement) 1 AGREEMENT FOR SERVICES
This Agreement, dated _______________, is by and between the City of Pleasant Hill, a California municipal corporation, hereinafter referred to as the “City,” and Stay Pleasant Hill, a California non-profit corporation, hereinafter referred to as “Contractor,” collectively referred to as the “Parties.”
RECITALS
A. On March 20, 2017, the City Council adopted Resolution number 29-17, creating the Pleasant Hill Tourism Business Improvement District, hereinafter “PHTID,” in accordance with the provisions of the Property and Business Improvement District Law of 1994, Streets and Highways Code section 36600 et seq., hereinafter the “1994 Law.”
B. On ________________, January 24, 2022 the City Council adopted Resolution number ___, 7- 22, hereinafter the “Resolution,” renewing the PHTID in accordance with the provisions of the 1994 Law.
C. Pursuant to the 1994 Law and the Resolution, the City is authorized to levy and collect an annual assessment from lodging businesses in the PHTID for the purpose of sales promotion and marketing projects, programs, and activities that benefit lodging businesses located and operating within the boundaries of the PHTID.
D. The City Council approved a management district plan, hereinafter the "PHTID Management District Plan,” designating Contractor to serve as the Owners’ Association for the PHTID in accordance with Streets and Highways Code section 36612 and as the entity responsible for managing the operations of the PHTID.
E. Streets and Highways Code section 36651 requires a contract between the City and the Owners’ Association for provision of PHTID services if the management district plan designates an owners’ association. The PHTID Management District Plan designates Contractor as the Owners’ Association to administer and implement the PHTID’s activities and improvements.
F. Contractor has represented to the City that it possesses the labor, professional skills, and expertise to administer and implement the activities and improvements of the PHTID described in the PHTID Management District Plan.
G. Contractor is willing to provide services to the City on the terms and conditions set forth in this Agreement.
AGREEMENT
Now, therefore, the Parties agree as follows:
1. Engagement. City hereby retains Contractor to provide the services described in Exhibit A, attached hereto and incorporated herein, and Contractor accepts such engagement.
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Packet Pg. 105 Attachment: Owners Association Agreement – redline (TID Owners Agreement) 2 2. Term. Upon the execution of this Agreement by the Parties, this Agreement shall be effective as of April 1, 2022 (“Effective Date”) and continue for five years until March 31, 2027 (“Term”), unless terminated earlier in accordance with the terms of this Agreement.
3. Use of Funds. Funds received by Contractor pursuant to this Agreement shall only be expended for the purposes stated in the Resolution as authorized by the 1994 Law, and shall only be expended in accordance with this Agreement, the PHTID Management District Plan, and each annual report prepared by Contractor pursuant to Streets and Highways Code section 36650, as approved by the City Council.
4. Annual Report. By October 30th of each yearOn an annual basis, Contractor shall submit to the City Council the report required by Streets and Highways Code section 36650 and the PHTID Management District Plan, hereinafter "the Annual Report." The Annual Report based on the prior calendar year shall be prepared and submitted to the City Council by October 30th of each year this Agreement is in effect.
Each Annual Report shall include an audited financial statement.
5. Disbursement of Funds. So long as Contractor is not in default of this Agreement, City shall disburse all collected PHTID assessments to Contractor for funding the projects, programs, and activities pursuant to this Agreement; provided, however, that City may retain an amount equal to two percent (2%) of the collected assessments each month to cover its costs of collection and administration of the PHTID. Disbursements shall be made in such manner as the Parties shall mutually agree upon in writing.
6. Taxes. Payment of all applicable federal, state and local taxes shall be Contractor’s sole responsibility.
7. Disestablishment. Per the 1994 Law, a resolution disestablishing the PHTID may only be adopted if (1) the City Council finds there has been misappropriation of funds, malfeasance, or a violation of law in connection with the management of the district and a noticed hearing on disestablishment is held, or (2) in the thirty-day period following any anniversary of the district’s formation, owners paying fifty percent or more of the assessment file a written protest with the City and a hearing on disestablishment is held.
In the event the City disestablishes the PHTID, Contractor shall be entitled to retain PHTID revenues only for paying the Contractor’s current liabilities of the PHTID. Pursuant to the 1994 Law, Contractor shall refund to City any remaining PHTID revenues or any revenues derived from the sale of assets acquired with PHTID revenues to enable distribution of the revenues to the owners which paid the assessment.
Contractor agrees that City has and reserves the right to deny the transfer of PHTID revenues and/or suspend, terminate or abandon the execution of any work by the Contractor in accordance with this Agreement for misfeasance, nonfeasance, or gross malfeasance, or criminal conduct as determined by a court of competent jurisdiction. Any retention of PHTID revenues by Contractor shall comply with the 1994 Law.
8. Termination. In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of thirty (30) calendar days, or if more than thirty (30) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within thirty (30) calendar days after receipt of
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Packet Pg. 106 Attachment: Owners Association Agreement – redline (TID Owners Agreement) 3 written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non-defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. If the PHTID is disestablished, the City may terminate this Agreement immediately by providing the Contractor notice that the PHTID has been disestablished.
9. Indemnification. To the fullest extent permitted by law, Contractor shall hold harmless, defend and indemnify the City, its City Council, employees and agents from and against any and all claims, losses, damages, liabilities and expenses, including but not limited to reasonable attorneys’ fees, arising out of or resulting from the performance of services under this Agreement, provided that any such claim, loss, damage, liability or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of property, including the loss there from, or to any violation of federal, state or municipal law or regulation, and (2) is caused by an adjudicated negligent act, omission or willful misconduct of Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by any party indemnified hereunder. The City may participate in the defense of any such claim without relieving Contractor of any obligation hereunder. In no event shall Contractor be required to indemnify the City for any claim, loss, damage, liability, or expense that arises due to the City's sole or active negligence or willful misconduct.
10. Insurance. Insurance coverage in a minimum amount set forth herein shall not be construed to relieve Contractor for liability in excess of such coverage, nor shall it preclude City from taking such other action as is available to it under any other provisions of this Agreement or otherwise in law.
A. Contractor affirms that it is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of the Code and Contractor further assures that it will comply with such provisions before commencing the performance of work under this Agreement. Contractor shall furnish to City certificate(s) of insurance evidencing Worker’s Compensation Insurance coverage to cover its employees, and Contractor shall require all subcontractors similarly to provide Workers’ Compensation Insurance as required by the Labor Code of the State of California for all of Contractor’s and subcontractors’ employees. Contractor shall provide Workers' Compensation insurance, as applicable, at Contractor's own cost and expense. Neither Contractor nor its carrier shall be entitled to recover from City any costs, settlements, or expenses of Workers' Compensation claims arising out of this Agreement.
B. Contractorshall furnish to City certificates of insurance with Automobile Liability/General Liability Endorsements evidencing at a minimum the following:
(1) Combined single limit bodily injury liability and property damage liability - $2,000,000 each occurrence.
(2) Vehicle / Bodily Injury combined single limit vehicle bodily injury and property damage liability - $1,000,000 each occurrence.
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Packet Pg. 107 Attachment: Owners Association Agreement – redline (TID Owners Agreement) 4 11. Independent Contractor. No relationship of employer and employee is created by this Agreement; it being understood and agreed that Contractor is an Independent Contractor. Contractor is not the agent or employee of the City in any capacity whatsoever, and the City shall not be liable for any acts or omissions by Contractor nor for any obligations or liabilities incurred by Contractor.
A. Contractor shall have no claim under this Agreement or otherwise, for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, retirement benefits, social security, disability, Workers’ Compensation, unemployment insurance benefits, civil service protection, or employee benefits of any kind.
B. Contractor shall be solely liable for and obligated to pay directly all applicable payroll taxes (including federal and state income taxes) or contributions for unemployment insurance or old age pensions or annuities which are imposed by any governmental entity in connection with labor used or which are measured by wages, salaries or other remuneration paid to its officers, agents or employees and agrees to indemnify and hold City harmless from any and all liability which City may incur because of Contractor’s failure to pay such amounts.
C. In carrying out the work contemplated herein, Contractor shall comply with all applicable federal and state Workers’ Compensation and liability laws and regulations with respect to the officers, agents and/or employees conducting and participating in the work; and agrees that such officers, agents, and/or employees will be considered Independent Contractors and shall not be treated or considered in any way as officers, agents and/or employees of City.
D. Contractor agrees to perform its work and functions at all times in strict accordance with all applicable federal, state, county and city laws, resolutions, regulations, titles, departmental procedures and currently approved methods and practices in the field; and that the sole interest of City is to ensure that said service shall be performed and rendered in a competent, efficient, timely and satisfactory manner and in accordance with standards required by the City.
12. Conformity with Law. In performing services under this Agreement, Contractor shall observe and comply with all applicable laws, resolutions, codes and regulations of governmental agencies, including federal, state, municipal, and local governing bodies, having jurisdiction over the scope of services, including all applicable provisions of the California Occupational Safety and Health Act. Contractor shall indemnify and hold City harmless from any and all liability, fines, penalties and consequences from any of Contractor’s failures to comply with such laws, resolutions, codes and regulations.
13. Licenses. At all times during the Term of this Agreement, Contractor shall have in full force and effect all licenses required of it by law for the performance of the services described in this Agreement.
14. Copyrights. All copyright and other use rights in any and all proposals, plans, specifications, designs, drawings, sketches, renderings, models, reports and related documents (including computerized or electronic copies), respecting in any way the subject matter of this Agreement, shall remain the property of the Contractor as instruments of service. However, Contractor understands and agrees City shall have free access to all such copyright and other use rights materials with the right to make and retain
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Packet Pg. 108 Attachment: Owners Association Agreement – redline (TID Owners Agreement) 5 copies of all proposals, plans, specifications, designs, drawings, sketches, renderings, models, reports and related documents (including computerized or electronic copies).
15. Maintenance of Records; Access to Recordsudits and Records Access.
A. Record Maintenance: Contractor shall establish and maintain financial and performance records with respect to all matters covered by this Agreement in sufficient detail and in a manner sufficient to conform to generally accepted accounting principles so as to allow audit of the expenditure of City funds received by Contractor. Contractor shall retain such financial and performance records for a period of three (3) years. Contractor shall maintain all documents and records in accordance with the California Public Records Act, Government Code section 6250 et seq.
B. Documentation of Costs: All costs shall be supported by properly executed payrolls, time records for personnel, invoices, agreements or vouchers, or other official documentation evidencing in complete and proper detail the nature and propriety of the charges.
C. Certified Statement: By October 30th of each year during the Term hereof, Contractor shall furnish to City a statement in writing, certified by Contractor and a Certified Public Accountant to be correct, showing in detail how the funds received pursuant to this Agreement were expended and whether the funds were expended for a purpose authorized by this Agreement for the prior calendar year.
DC. The City may, in its sole discretion, inspect any and all documents related to Contractor expenditures and revenues require an audit to confirm that Contractor expenditures have if the City determines in its sole discretion that Contractor expenditures have not been consistent with the PHTID Management District Plan, the 1994 Law, or any other applicable laws. Any such reviewaudit(s) shall be undertaken by City or its representative(s) at mutually agreed upon reasonable times and in conformance with generally accepted auditing standards. Contractor agrees to fully cooperate with any such reviewaudit(s). Any such audits shall be paid for with PHTID funds.
16. Conflicts of Interest. Contractor covenants that it presently has no interest, and shall not have any interest, direct or indirect, which would conflict in any manner with performance of services required under this Agreement.
17. Notices. All notices, requests, demands, or other communications under this Agreement shall be in writing. Notices shall be given for all purposes as follows:
A. Personal delivery: When personally delivered to the recipient, notices are effective on delivery.
B. First Class Mail: When mailed first class to the last address of the recipient known to the party giving notice, notice is effective three (3) mail delivery days after deposit in a United States
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Packet Pg. 109 Attachment: Owners Association Agreement – redline (TID Owners Agreement) 6 Postal Service office or mailbox. Certified Mail: When mailed certified mail, return receipt requested, notice is effective on receipt, if delivery is confirmed by a return receipt.
C. Overnight Delivery: When delivered by overnight delivery with charges prepaid or charged to the sender’s account, notice is effective on delivery, if delivery is confirmed by the delivery service.
D. Addresses for purpose of giving notice are as follows:
To City:
City Manager
100 Gregory Lane
Pleasant Hill, CA 94523
To Contractor:
President and Chief Executive Officer
91 Gregory Lane, Suite 11
Pleasant Hill, CA 94523
E. Any correctly addressed notice that is refused, unclaimed, or undeliverable because of an act or omission of the party to be notified shall be deemed effective as of the first date that said notice was refused, unclaimed, or deemed undeliverable by the postal authorities, messenger, or overnight delivery service.
F. Any party may change its address by giving the other party notice of the change in any manner permitted by this Agreement.
18. Equal Employment Opportunity Practices Provisions. Contractor certifies that it is in compliance with the Equal Employment Opportunity Requirement of Executive Order 11246, as amended by Executive Order 11375 and supplemented I 45CFR, Part 60, Title VII of the Civil Rights Act and any other federal or state laws pertaining to equal employment opportunity and that it shall not discriminate against any employee or applicant for employment on the basis of race, color, religion, age, sex, national origin, ancestry, marital status, political affiliation or physical or mental condition, in matters pertaining to recruitment, hiring, training, upgrading, transfer, compensation or termination.
A. Contractor shall, in all solicitations or advertisements for applicants for employment placed as a result of this Agreement, state that it is an “Equal Opportunity Employer” or that all qualified applicants will receive consideration for employment without regard to their race, creed, color, disability, sex, sexual orientation, national origin, age, religion, Vietnam era Veteran’s status, political affiliation, or any other non-merit factor.
B. Contractor shall, if requested to so do by the City, certify that it has not, in the performance of this Agreement, discriminated against applicants or employees because of their race, creed, color, disability, sex, sexual orientation, national origin, age, religion, Vietnam era Veteran’s status, political affiliation, or any other non-merit factor.
C. If requested by the City, Contractor shall provide the City with access to copies of all of its records pertaining or relating to its employment practices, except to the extent such records or portions of such records are confidential or privileged under state or federal law.
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Packet Pg. 110 Attachment: Owners Association Agreement – redline (TID Owners Agreement) 7 D. Nothing contained in this Agreement shall be construed in any manner so as to require or permit any act which is prohibited by law.
E. Contractor shall include the provisions set forth in this Section in each of its subcontracts.
19. Time of Essence. Time is of the essence in respect to all provisions of this Agreement that specify a time for performance; provided, however, that the foregoing shall not be construed to limit or deprive a party of the benefits of any grace or use period allowed in this Agreement.
20. Choice of Law. This Agreement, and any dispute arising from the relationship between the Parties hereto, shall be governed by the laws of the State of California. The venue for any litigation arising out of or in connection to this Agreement shall be the County of Contra Costa.
21. Advertising or Publicity. Contractor shall not use, reproduce or copy the seal of the City and shall not represent the City in an official capacity as spokesperson or officer or agent or use the name City of Pleasant Hill, or the names of the City’s officers, directors, employees or agents, in advertising or publicity releases or otherwise without securing the prior written consent of the City in each instance unless set forth in this Agreement. Nothing in this Section prohibits Contractor from using the name Pleasant Hill Tourism Improvement District or City of Pleasant Hill for regional identification for promotion and marketing of the PHTID.
22. Entire Agreement. This Agreement, including all attachments, exhibits, and any other documents specifically incorporated into this Agreement, shall constitute the entire agreement between City and Contractor relating to the subject matter of this Agreement. As used herein, Agreement refers to and includes any documents incorporated herein by reference and any exhibits or attachments. This Agreement supersedes and merges all previous understandings, and all other agreements, written or oral, between the Parties and sets forth the entire understanding of the Parties regarding the subject matter thereof. This Agreement may not be modified except by a written document signed by both Parties.
23. Subcontracting/Assignment. Contractor shall not subcontract, assign or delegate any portion of this Agreement or any duties or obligations hereunder without the City’s prior written approval.
A. Neither party shall, on the basis of this Agreement, contract on behalf of or in the name of the other party. Any agreement that violates this Section shall confer no rights on any party and shall be null and void.
B. Contractor may use subcontractors to provide any portions of the service identified in Exhibit A without prior written consent of the City.
C. Contractor shall remain fully responsible for compliance by its subcontractors with all the terms of this Agreement, regardless of the terms of any agreement between Contractor and its subcontractors.
24. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the
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Packet Pg. 111 Attachment: Owners Association Agreement – redline (TID Owners Agreement) 8 remaining provisions, or portions of them, will not be affected, unless an essential purpose of this Agreement would be defeated by the loss of the illegal, unenforceable, or invalid provision.
25. Waiver. City and Contractor agree that waiver by City or Contractor of any default or violation of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent default or violation of the same or any other term or condition.
26. Force Majeure. No party shall be considered to be in default in the performance of any of its obligations under this Agreement (other than obligations to make payments for bills rendered pursuant to this Agreement) when a failure of performance shall be due to uncontrollable force. The term “uncontrollable force” shall mean any cause beyond the control of the party unable to perform such obligations, including, but not limited to, failure of or threat of failure of facilities, flood, earthquake, storm, drought, fire, pestilence, lightning and other natural catastrophes, epidemic, war, riot, civil disturbance or disobedience, strike, labor dispute, labor or material shortage, sabotage, government priorities, restraint by court order or public authority and action or non-action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, which by the exercise of due diligence such party could not reasonably have been expected to avoid and which by exercise of due diligence has been unable to overcome.
27. Authority and Effective Date. Contractor and Contractor’s signators represent that the signators hold the positions set forth below their signatures and that the signators are authorized to execute this Agreement on behalf of Contractor and to bind Contractor hereto. City and City's signators represent that the signators hold the positions set forth below their signatures and that the signators are authorized to execute this Agreement on behalf of City and to bind City hereto.
The effective date of this Agreement shall be April 1, 2022 (“Effective Date”). In the event Contractor fails to set forth a date of execution opposite the name(s) of Contractor’s signator(s), Contractor hereby authorizes City, by and through its representative, to insert the date of execution by Contractor’s signator(s) as the date this Agreement, as executed by Contractor, is received by City.
IN WITNESS THEREOF, the Parties hereto have executed or approved this AGREEMENT on the dates below their signatures.
City of Pleasant Hill
By____________________________________
____________________________________
(print name)
Title:__________________________________
Date:_________________________________
Stay Pleasant Hill
By_______________________________________
____________________________________
(print name)
Title:__________________________________
Date:_________________________________
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Packet Pg. 112 Attachment: Owners Association Agreement – redline (TID Owners Agreement) 9 EXHIBIT A
Scope of Services
Contractor shall provide the following services:
1. Contractor will conduct the day to day operations of the PHTID.
2. Contractor shall cooperate with City and City staff in the performance of all work hereunder.
3. Contractor will provide projects, programs and activities that benefit businesses within the PHTID in accordance with the PHTID Management District Plan attached hereto and any subsequent amendments thereto.
4. Contractor shall perform responsibilities under the Property and Business Improvement District Law of 1994 (the “Law”) including but not limited to:
a. Preparation of the Annual Report required by the Law, which shall include:
Any proposed changes in the boundaries of the improvement district or in any benefit zones or classification of businesses within the district. The improvements and activities to be provided for that fiscal year. An estimate of the cost of providing the improvements and the activities for that fiscal year.
The method and basis of levying the assessment in sufficient detail to allow each business owner to estimate the amount of the assessment to be levied against his or her business for that fiscal year.
The estimated amount of any surplus or deficit revenues to be carried over from a previous fiscal year.
The estimated amount of any contributions to be made from sources other than assessments levied pursuant to this part.
In addition, the Annual Report shall include:
Details of the accomplishments of the district during the previous fiscal year. An overview of the budgeted versus actual expenditures and revenue for the previous fiscal year.
b. The Annual Report for the prior calendar year shall be prepared and submitted to the City Council by October 30th of each year this Agreement is in effect.
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Packet Pg. 113 Attachment: Owners Association Agreement – redline (TID Owners Agreement) 10 5. Contractor shall develop and maintain financial records related to receipt and/or expenditure of all funds received from City.
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Packet Pg. 114 Attachment: Owners Association Agreement – redline (TID Owners Agreement) PHTID Management District Plan
January 24, 2022
1 2022-2027
Prepared pursuant to the Property and Business Improvement District Law of 1994, Streets and Highways Code section 36600 et seq. January 24, 2022
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Packet Pg. 115 Attachment: 2022-2027 PHTID Management District Plan (TID Owners Agreement) PHTID Management District Plan
January 24, 2022
2 Contents
I. OVERVIEW.............................................................................................................................................3 II. BACKGROUND.....................................................................................................................................5 III. BOUNDARY ...........................................................................................................................................6 IV. ASSESSMENT BUDGET AND SERVICES....................................................................................7 A. Annual Service Plan............................................................................................................ 7 B. Annual Budget .................................................................................................................... 9 C. California Constitutional Compliance .............................................................................. 10 D. Assessment........................................................................................................................ 12 E. Penalties and Interest ........................................................................................................ 13 F. Time and Manner for Collecting Assessments................................................................. 13 V. GOVERNANCE...................................................................................................................................14 A. Owners’ Association......................................................................................................... 14 B. Brown Act and California Public Records Act Compliance ............................................ 14 C. Annual Report................................................................................................................... 15 APPENDIX 1 – LAW........................................................................................................................................16 APPENDIX 2 – ASSESSED BUSINESSES .................................................................................................27 Prepared by
Civitas
(800)999-7781
www.civitasadvisors.com
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Packet Pg. 116 Attachment: 2022-2027 PHTID Management District Plan (TID Owners Agreement) PHTID Management District Plan
January 24, 2022
3 I. OVERVIEW
Developed by the City of Pleasant Hill Economic Development Department and lodging businesses in Pleasant Hill, the Pleasant Hill Tourism Improvement District (“PHTID”) is an assessment district proposed to provide specific benefits to payors, by funding sales, marketing, and communications efforts for assessed businesses. This approach has been used successfully in other destination areas throughout the country to provide the benefit of additional room night sales directly to payors. In 2017, the PHTID was formed pursuant to the Property and Business Improvement District Law of 1994 (“94 Law”) for a five (5) year term. This effort seeks to renew the PHTID for a five (5) year term pursuant to the provisions of the 94 Law.
Location: The PHTID includes all lodging businesses, existing and in the future, available for public occupancy located within the boundaries of the City of Pleasant Hill (“City”), as shown on the map in Section III.
Services: The PHTID is designed to provide specific benefits directly to payors by increasing awareness and demand for room night sales. Sales, marketing, and communications programs will increase demand for overnight tourism and market payors as tourist, meeting, and event destinations, thereby increasing demand for room night sales.
Budget: The total PHTID annual assessment budget for the initial year of its five (5) year operation is anticipated to be approximately $710,000. A similar budget is expected to apply to subsequent years, but this budget is expected to fluctuate as room sales do and if the assessment rate is increased pursuant to this Plan.
Cost: The initial annual assessment rate is three percent (3%) of gross short-term room rental revenue. Based on the benefit received, assessments will not be collected on:
stays of more than twenty-nine (29) consecutive days; a person as to whom, or an occupancy as to which, it is beyond the power of the city to impose the assessment; and by any state officer or employee of the federal government or a foreign government who is exempt by reason of express provision of federal law or international treaty.
In years 2024 through 2026, the assessment rate may be subject to an annual increase during the five (5) year term. At the discretion of the Stay Pleasant Hill Board, the assessment rate may be increased to a maximum rate of five percent (5%) of gross short-term room rental revenue for assessed lodging businesses. However, the increase in any year shall not exceed one percent (1%) of gross short-term room rental revenue. The assessment rate may also be decreased by the Stay Pleasant Hill Board by up to a maximum of one percent (1%) per year, but shall not drop below the initial assessment rate of three percent (3%) of gross short-term room rental revenue. Any increase or decrease authorized by the Stay Pleasant Hill Board shall be included in the Annual Report described in Section V.
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Packet Pg. 117 Attachment: 2022-2027 PHTID Management District Plan (TID Owners Agreement) PHTID Management District Plan
January 24, 2022
4 Collection: The City shall continue to be responsible for collecting the assessment on a quarterly basis (including any delinquencies, penalties, and interest) from each lodging business located within the boundaries of the PHTID. The City shall take all reasonable efforts to collect the assessments from each lodging business.
Duration: The PHTID will have a five (5) year life, beginning April 1, 2022, or as soon as possible thereafter and end five (5) years from its start date. Once per year, beginning on the anniversary of PHTID renewal, there is a thirty (30) day period in which owners paying fifty percent (50%) or more of the assessment may protest and initiate a City Council hearing on PHTID termination.
Management: Stay Pleasant Hill (“SPH”) will serve as the PHTID’s Owners’ Association. The Owners’ Association is charged with managing funds and implementing programs in accordance with this Plan and must provide annual reports to the City Council.
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Packet Pg. 118 Attachment: 2022-2027 PHTID Management District Plan (TID Owners Agreement) PHTID Management District Plan
January 24, 2022
5 II. BACKGROUND
TIDs are an evolution of the traditional Business Improvement District. The first TID was formed in West Hollywood, California in 1989. Since then, over 100 California destinations have followed suit. In recent years, other states have begun adopting the California model – Montana, South Dakota, Washington, Colorado, Texas and Louisiana have adopted TID laws. Several other states are in the process of adopting their own legislation. The cities of Wichita, Kansas and Newark, New Jersey used an existing business improvement district law to form a TID. And, some cities, like Portland, Oregon and Memphis, Tennessee have utilized their home rule powers to create TIDs without a state law.
California’s TIDs collectively
raise over $300 million
annually for local destination
marketing. With competitors
raising their budgets, and
increasing rivalry for visitor
dollars, it is important that
Pleasant Hill lodging
businesses continue to invest
in stable, lodging-specific
sales, marketing and
communications programs.
TIDs utilize the efficiencies of
private sector operation in the market-based promotion of tourism districts. TIDs allow lodging business owners to organize their efforts to increase demand for room night sales. Lodging business owners within the TID pay an assessment and those funds are used to provide services that increase demand for room night sales.
In California, most TIDs are formed pursuant to the Property and Business Improvement District Law of 1994. This law allows for the creation of a benefit assessment district to raise funds within a specific geographic area. The key difference between TIDs and other benefit assessment districts is that funds raised are returned to the private non-profit corporation governing the district.
There are many benefits to TIDs:
• Funds must be spent on services and improvements that provide a specific benefit only to those who pay;
• Funds cannot be diverted to general government programs; • They are customized to fit the needs of payors in each destination; • They allow for a wide range of services;
• They are designed, created, and governed by those who will pay the assessment; and • They provide a stable, long-term funding source for tourism promotion. 1 2 4 6 9 12 19 25 29 32 38
46 61 64 70 75
88 95 99101104109110
0 20
40 60
80 100
120
19891995200020012002200320042005200620072008200920102011201220132014201520162017201820192020 Number of Districts Operating in
California
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Packet Pg. 119 Attachment: 2022-2027 PHTID Management District Plan (TID Owners Agreement) PHTID Management District Plan
January 24, 2022
6 III. BOUNDARY
The PHTID will include all lodging businesses, existing and in the future, available for public occupancy located within the boundaries of City of Pleasant Hill.
Lodging business means: any structure or any portion of any structure that is occupied or intended or designated for occupancy by transients for dwelling, lodging, or sleeping purposes, including any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging-house, rooming- house, apartment-house, dormitory, public or private club, recreational vehicle park, mobile home or house trailer at a fixed location or other similar structure or portion therefor. The term “lodging business” as used herein only includes businesses designed for occupancy for periods of less than twenty-nine (29) days.
The boundary, as shown in the map below, currently includes seven (7) lodging businesses. A complete listing of lodging businesses within the PHTID can be found in Appendix 2.
Martinez
Concord
Walnut Creek
Lafayette Walnut Creek
Taylor Blvd
Boyd Rd
Pleasant Hill Rd
Gregory Ln
Me
Viking Dr rcury Way
Contra Costa Blvd
Grayson Rd
Oak Park Blvd
Contra Costa Canal Trl
Ruth Dr
Lucille Ln
Paso Nogal
Devon Ave
Buskirk Ave
Chilpancingo Pkwy
Iron Horse
Hookston Rd
Ardith Dr
Kiki Dr
Norse Dr
Paso Nogal Rd
Doris Dr
C el ave al nd Rd
Mayhew Way
Soule Ave
Shirley Dr
Doray Dr
Gladys Dr
Elderwood Dr
Roberta Ave
Gail Dr
45 Elliot Dr
Mazie Dr
Kahrs Ave
Mary Dr
Belle Ave
Putnam Blvd
Hamilton Dr
Apol ol Way
Beth Dr
Coggins Dr
Sylvia Dr
Sherman Dr
Madeira Way
Ellinwood Dr
Marta Dr
Pleasant Valley Dr
Oakvue Rd
Byron Dr
Vessing Rd
Buttner Rd
Santa Lucia Dr
Rose Ln
Little Ln
Slater Ave
Strand Ave
Twinview Pl
P
Crescent Plz
rice Ln
Starlyn Dr
Shetland Dr
Pleasant View Dr
Peggy Dr
Eloise Ave
Fernwood Dr 3rd Ave S
Marlee Rd
Barnett Cir
Wendell Ln
Violet Way
Daisy Pl
Tempe Ct
Capri Ln
Contra Costa Blvd
Slater Ave
Pleasant Hill City Limits
§¨¦680
§¨¦680
¬«4
¬«242
Pleasant Hill TID
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Packet Pg. 120 Attachment: 2022-2027 PHTID Management District Plan (TID Owners Agreement) PHTID Management District Plan
January 24, 2022
7 IV. ASSESSMENT BUDGET AND SERVICES
A. Annual Service Plan
Assessment funds will be spent to provide specific benefits conferred or privileges granted directly to the payors that are not provided to those not charged, and which do not exceed the reasonable cost to the City of conferring the benefits or granting the privileges. The privileges and services provided with the PHTID funds are sales, marketing and communications programs available only to assessed businesses.
A service plan assessment budget has been developed to deliver services that benefit the assessed businesses. A detailed annual assessment budget will be developed and approved by SPH. The table below illustrates the initial annual assessment budget allocations. The total initial assessment budget is $710,000.
Although actual revenues will fluctuate due to market conditions, the proportional allocations of the assessment budget shall remain the same. However, the SPH Board shall have the authority to adjust assessment budget allocations between the categories by no more than fifteen percent (15%) of the total assessment budget per year. A description of the proposed improvements and activities for the initial year of operation is below. The same activities are proposed for subsequent years. In the event of a legal challenge against the PHTID, any and all assessment funds may be used for the costs of defending the PHTID.
Each budget category includes all costs related to providing that service. For example, the sales, marketing, and communications budget includes the cost of staff time dedicated to overseeing and implementing the sales, marketing, and communications program. Staff time dedicated purely to administrative tasks is allocated to the administrative portion of the budget. The costs of an individual Sales, Marketing,
and
Communications,
$532,500, 75%
City Fee, $14,200,
2%
Contingency &
Reserve
$35,500, 5%
Administration &
Operations,
$127,800 18%
INITIAL ANNUAL ASSESSMENT BUDGET - $710,000
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Packet Pg. 121 Attachment: 2022-2027 PHTID Management District Plan (TID Owners Agreement) PHTID Management District Plan
January 24, 2022
8 staff member may be allocated to multiple budget categories. The staffing levels necessary to provide the services below will be determined by the SPH on an as-needed basis.
Sales, Marketing & Communications
A sales, marketing and communications program will promote assessed businesses as tourist, meeting, and event destinations. The sales, marketing and communications program will have a central theme of promoting Pleasant Hill as a desirable place for overnight visits. The program will have the goal of increasing overnight visitation and room night sales at assessed businesses, and may include the following activities:
• Marketing efforts to increase awareness and optimize internet presence to drive overnight visitation and room sales to assessed businesses, including public relations, online and social media campaigns, updating and maintaining website, print, television, digital and radio advertising;
• Attendance of trade shows, professional industry conferences and affiliation events to promote assessed businesses;
• Sales blitzes for assessed businesses;
• Familiarization tours of assessed businesses;
• Development of a strategic plan to benefit assessed businesses, including branding and destination management;
• Preparation and production of collateral promotional materials such as brochures, flyers and maps featuring assessed businesses;
• Lead generation activities designed to attract tourists and group events to assessed businesses; • Director of Sales and General Manager meetings to plan and coordinate tourism promotion efforts for assessed businesses;
• Comprehensive and integrated way finding signage systems, including signage to parking lots and decks, designed to create a visitor experience that will bring repeat visits to assessed businesses;
• Transportation programs connecting assessed businesses and local music venues, sports venues, and other attractions, to increase overnight visitation and room sales at assessed businesses;
• Art and cultural projects to attract overnight visitors to assessed businesses; • Local destination marketing programs designed to drive overnight visitation and room sales to assessed businesses;
• Destination product development programs and improvements designed to drive overnight visitation and room sales to assessed businesses; and
• Sports and outdoor recreation marketing programs designed to drive overnight visitation and room sales to assessed businesses.
Administration and Operations
The administration and operations portion of the budget shall be utilized for administrative staffing costs, office costs, advocacy, and other general administrative costs such as insurance, legal, and accounting fees.
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Packet Pg. 122 Attachment: 2022-2027 PHTID Management District Plan (TID Owners Agreement) PHTID Management District Plan
January 24, 2022
9 Contingency/Reserve
The budget includes a contingency line item to account for uncollected assessments, if any. If there are contingency funds collected, they may be held in a reserve fund or utilized for other program, administration, or renewal costs at the discretion of Stay Pleasant Hill. Policies relating to contributions to the reserve fund, the target amount of the reserve fund, and expenditure of monies from the reserve fund shall be set by the SPH Board. Contingency/reserve funds may be spent on PHTID programs or administrative and renewal costs in such proportions as determined by the SPH Board. The reserve fund may be used for the costs of renewing the PHTID.
City Collection Fee
The City of Pleasant Hill shall retain a fee equal to two percent (2%) of the amount of assessment collected, to cover its costs of collection and administration.
B. Annual Budget
The total 5-year improvement and service plan assessment budget is projected at approximately $710,000 annually, or $5,070,440 through 2027 if maximum assessment increases are made by the SPH board. A similar budget is expected to apply to subsequent years, but this budget is expected to fluctuate as room sales do and if the assessment rate is increased. If the maximum annual assessment increases are adopted by the Owners’ Association upon approval, the annual budget will increase as illustrated in the table below. The initial annual assessment rate is three percent (3%) of gross shortterm room rental revenue for lodging businesses and cannot be increased in years 2022 and 2023. In years 2024 through 2026, the assessment rate may be increased to a maximum rate of five percent (5%) of gross short-term room rental revenue for assessed lodging businesses. However, the increase in any year shall not exceed one percent (1%) of gross short-term room rental revenue. The assessment rate may also be decreased by the Stay Pleasant Hill Board by up to a maximum of one percent (1%) per year but shall not drop below the initial three percent (3%) of gross short-term room rental revenue.
The table below demonstrates the maximum with the assumption that the rates will be increased in annually from 2024 through 2026 as it is a required disclosure, it is not the anticipated course of action.
Alternate courses of action may be taken in regards to implementing the assessment rate increase other than what is demonstrated in the chart below, within the parameters of this Management District Plan.
Additionally, a three percent (3%) annual increase in the total budget is shown, to account for estimated increased room night sales as a result of PHTID efforts. This three percent (3%) annual increase is a conservative estimate based on the effects of similarly sized TID budgets.
The table below demonstrates the maximum cost of improvements and services over the PHTID’s five (5) year term.
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Packet Pg. 123 Attachment: 2022-2027 PHTID Management District Plan (TID Owners Agreement) PHTID Management District Plan
January 24, 2022
10 Estimated Annual Budget If
Maximum Assessment Rates are Adopted 2024-2027
Year Sales, Marketing
and
Communications
Administration City Fee Contingency/Reserve Total
2022-23 $532,500 $127,800 $14,200 $35,500 $710,000
2023-24 $548,475 $131,634 $14,626 $36,565 $731,300
2024-25 $753,220 $180,773 $20,086 $50,215 $1,004,294
2025-26 $969,771 $232,745 $25,861 $64,651 $1,293,028
2026-27 $998,864 $239,727 $26,636 $66,591 $1,331,818
Total $3,802,830 $912,679 $101,409 $253,522 $5,070,440
The table below demonstrates the annual improvement and service plan budget with the assumption that the rates will not be increased during the district’s five (5) year term. Additionally, a three percent (3%) annual increase in the total budget is shown to account for estimated increased room night sales as a result of PHTID efforts.
Estimated Annual Budget If Maximum Assessment
Rates Are Not Adopted 2022-2027
Year Sales, Marketing
and
Communications
Administration City Fee Contingency/Reserve Total
2022-23 $532,500 $127,800 $14,200 $35,500 $ 710,000
2023-24 $548,475 $131,634 $14,626 $36,565 $ 731,300
2024-25 $564,929 $135,583 $15,065 $37,662 $ 753,239
2025-26 $581,877 $139,651 $15,517 $38,792 $ 775,837
2026-27 $599,333 $143,840 $15,982 $39,956 $ 799,111
Total $2,827,114 $678,508 $ 75,390 $ 188,475 $3,769,467 A. California Constitutional Compliance
The PHTID assessment is not a property-based assessment subject to the requirements of Proposition 218. Courts have found Proposition 218 limited the term ‘assessments’ to levies on real property.1 Rather, the PHTID assessment is a business-based assessment, and is subject to Proposition 26.
Pursuant to Proposition 26 all levies are a tax unless they fit one of seven exceptions. Two of these exceptions apply to the PHTID, a “specific benefit” and a “specific government service.” Both require that the costs of benefits or services do not exceed the reasonable costs to the City of conferring the benefits or providing the services.
1 Jarvis v. the City of San Diego 72 Cal App. 4th 230
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11 1. Specific Benefit
Proposition 26 requires that assessment funds be expended on, “a specific benefit conferred or privilege granted directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of conferring the benefit or granting the privilege.”2 The services in this Plan are designed to provide targeted benefits directly to assessed businesses, and are intended only to provide benefits and services directly to those businesses paying the assessment. These services are tailored not to serve the general public, businesses in general, or parcels of land, but rather to serve the specific businesses within the PHTID. The activities described in this Plan are specifically targeted to increase demand for room night sales for assessed lodging businesses within the boundaries of the PHTID and are narrowly tailored. PHTID funds will be used exclusively to provide the specific benefit of increased demand for room night sales directly to the assessees. Assessment funds shall not be used to feature non-assessed lodging businesses in PHTID programs, or to directly generate sales for non-assessed businesses. The activities paid for from assessment revenues are business services constituting and providing specific benefits to the assessed businesses.
The assessment imposed by this PHTID is for a specific benefit conferred directly to the payors that is not provided to those not charged. The specific benefit conferred directly to the payors is an increase in demand for room night sales. The specific benefit of an increase in demand for room night sales for assessed lodging businesses will be provided only to lodging businesses paying the district assessment, with sales, marketing and communications programs promoting lodging businesses paying the PHTID assessment. The sales, marketing, and communications programs will be designed to increase room night sales at each assessed lodging businesses. Because they are necessary to provide the sales, marketing, and communications programs that specifically benefit the assessed lodging businesses, the administration and contingency services also provide the specific benefit of increased demand for room night sales to the assessed lodging businesses.
Although the PHTID, in providing specific benefits to payors, may produce incidental benefits to non-paying businesses, the incidental benefit does not preclude the services from being considered a specific benefit. The legislature has found that, “A specific benefit is not excluded from classification as a ‘specific benefit’ merely because an indirect benefit to a nonpayor occurs incidentally and without cost to the payor as a consequence of providing the specific benefit to the payor.”3
2. Specific Government Service
The assessment may also be utilized to provide, “a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product.”4 The legislature has recognized that sales, marketing and communications services like those to be provided by the PHTID are government services within the meaning of Proposition 265. Further, the legislature has determined that “a specific government service is not excluded from classification as a ‘specific 2 Cal. Const. art XIII C § 1(e)(1)
3 Government Code § 53758(a)
4 Cal. Const. art XIII C § 1(e)(2)
5 Government Code § 53758(b)
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12 government service’ merely because an indirect benefit to a nonpayor occurs incidentally and without cost to the payor as a consequence of providing the specific government service to the payor.”6
3. Reasonable Cost
PHTID services will be implemented carefully to ensure they do not exceed the reasonable cost of such services. The full amount assessed will be used to provide the services described herein. Funds will be managed by SPH, and reports submitted on an annual basis to the City. Only assessed lodging businesses will be featured in marketing materials, receive sales leads generated from PHTID-funded activities, be featured in advertising campaigns, and benefit from other PHTID-funded services. Nonassessed lodging businesses will not receive these, nor any other, PHTID-funded services and benefits.
The PHTID-funded programs are all targeted directly at and feature only assessed businesses. It is, however, possible that there will be a spill over benefit to non-assessed businesses. If non-assessed lodging businesses receive incremental room nights, that portion of the promotion or program generating those room nights shall be paid with non-PHTID funds. PHTID funds shall only be spent to benefit the assessed businesses and shall not be spent on that portion of any program which directly generates incidental room nights for non-assessed businesses.
B. Assessment
The initial annual assessment rate is three percent (3%) of gross short-term room rental revenue for lodging businesses. Based on the benefit received, assessments will not be collected on: stays of more than twenty-nine (29) consecutive days; a person as to whom, or an occupancy as to which, it is beyond the power of the city to impose the tax; and by any state officer or employee of the federal government or a foreign government who is exempt by reason of express provision of federal law or international treaty.
In years 2024 through 2026, the assessment may be subject to an increase during the five (5) year term.
At the discretion of the Stay Pleasant Hill Board, the assessment rate may be increased to a maximum rate of five percent (5%) of gross short-term room rental revenue for assessed lodging businesses.
However, the increase in any year shall not exceed one percent (1%) of gross short-term room rental revenue. The assessment rate may also be decreased by the Stay Pleasant Hill Board by up to a maximum of one percent (1%) per year but shall not drop below the initial three percent (3%) of gross short-term room rental revenue. Any increase or decrease authorized by the Stay Pleasant Hill Board shall be included in the Annual Report described in Section V.
The term “gross room rental revenue” as used herein means the consideration charged, whether or not received, for the occupancy of space in a hotel, valued in money, whether to be received in money, goods, services, labor or otherwise, including all receipts, cash, credits and property and services of any kind or nature, without any deduction therefrom whatsoever. Gross room rental revenue shall not include any federal, state or local taxes collected, including but not limited to transient occupancy taxes.
The assessment is levied upon and a direct obligation of the assessed lodging business. However, the assessed lodging business may, at its discretion, pass the assessment on to transients. The amount of assessment, if passed on to each transient, shall be disclosed in advance and separately stated from the amount of rent charged and any other applicable taxes, and each transient shall receive a receipt for 6 Government Code § 53758(b)
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13 payment from the business. If the PHTID assessment is identified separately it shall be disclosed as the “PHTID Assessment.” As an alternative, the disclosure may include the amount of the PHTID assessment and the amount of the assessment imposed pursuant to the California Tourism Marketing Act, Government Code §13995 et seq. and shall be disclosed as the “Tourism Assessment.” The assessment is imposed solely upon, and is the sole obligation of the assessed lodging business even if it is passed on to transients. The assessment shall not be considered revenue for any purpose, including calculation of transient occupancy taxes.
Bonds shall not be issued.
C. Penalties and Interest
The PHTID shall reimburse the City of Pleasant Hill for any costs and fees (including, but not limited to, both City staff time as reasonably calculated by the City, as well as any attorney’s fees) associated with collecting unpaid assessments. If sums in excess of the delinquent PHTID assessment are sought to be recovered in the same collection action by the City, the PHTID shall bear its pro rata share of such collection costs. Assessed businesses which are delinquent in paying the assessment shall be responsible for paying:
1. Original Delinquency: Any lodging business which fails to remit any assessment imposed within the time required shall pay a penalty of ten percent (10%) of the amount of the assessment in addition to the amount of the assessment.
2. Continued Delinquency: Any lodging business which fails to remit any delinquent remittance on or before a period of thirty (30) days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of ten percent (10%) of the amount of the assessment in addition to the amount of the assessment and the ten percent (10%) penalty first imposed.
3. Fraud: If the City determines in its sole reasonable discretion that the nonpayment of any remittance due under this section is due to fraud and/or intent to mislead the City, a penalty of twenty-five percent (25%) of the amount of the assessment shall be added thereto in addition to the penalties stated in subsections 1 and 2 of this section.
4. Interest: In addition to the penalties imposed, any lodging business which fails to remit any assessment imposed shall pay interest at the rate of one half of one percent (0.5%) per month or fraction thereof on the amount of the assessment, exclusive of penalties, from the date on which the remittance first became delinquent until paid.
5. Penalties Merged with Assessment: Every penalty imposed and such interest as accrues under the provisions of this section shall become a part of the assessment required to be paid under this section.
D. Time and Manner for Collecting Assessments
The PHTID assessment will be implemented beginning April 1, 2022 or as soon as possible thereafter, and end five (5) years from its start date. The City will be responsible for collecting the assessment on a quarterly basis (including any delinquencies, penalties, and interest) from each lodging business. The City shall take all reasonable efforts to collect the assessments from each lodging business. The City shall forward the assessments collected, less the two percent (2%) collection fee, to the Owners’ Association.
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14 V. GOVERNANCE
A. Owners’ Association
The City Council, through adoption of this Management District Plan, has the right, pursuant to Streets and Highways Code §36651, to identify the body that shall implement the proposed program, which shall be the Owners’ Association of the PHTID as defined in Streets and Highways Code §36612. The City Council has determined that Stay Pleasant Hill (“SPH”) shall serve as the Owners’ Association for the PHTID. The City shall enter into a contract with Stay Pleasant Hill for administration of the PHTID. The City reserves the right to conduct regular financial and/or operational audits, as reasonably determined to be appropriate by the City in the City’s sole discretion, of the Owners’ Association. Any such City audits will receive the full and unqualified cooperation and assistance of the Owners’ Association, and upon request by City will be paid for in whole or in part with PHTID funds. Consistent with law, and for good cause as reasonably demonstrated to the satisfaction of the City Council, the City Council at a noticed public hearing may designate a different qualified private nonprofit entity as the Owners’ Association of the PHTID, to replace either SPH, or any subsequent designated Owners’ Association.
SPH as the new Owners’ Association, will appoint a new Board of Directors, comprised of seven (7) members. The members of the SPH Board shall include:
• One (1) representative of the Hyatt hotel;
• One (1) representative of the Marriot hotel;
• One (1) representative of the Homewood Suites by Hilton hotel; • One (1) representative of the Sonesta hotel;
• One (1) representative of a lodging business not affiliated with a national brand; • One(1) representative of the Pleasant Hill Chamber of Commerce; and • One (1) representative of the City of Pleasant Hill.
In the event of changes in hotel ownership or brand affiliation the SPH Board reserves the right to modify its composition without requiring an amendment to this plan. If there is an addition to the Board or if the SPH board would like to reduce the size of the Board, they will need to modify the Management District Plan. SPH shall be responsible for managing funds and implementing programs in accordance with this Plan and by direction of the SPH Board and must provide annual reports to the City Council.
B. Brown Act and California Public Records Act Compliance An Owners’ Association is a private entity and may not be considered a public entity for any purpose, nor may its board members or staff be considered to be public officials for any purpose. The Owners’ Association is, however, subject to government regulations relating to transparency, namely the Ralph M. Brown Act and the California Public Records Act. These regulations are designed to promote public accountability. The Owners’ Association acts as a legislative body under the Ralph M. Brown Act (Government Code §54950 et seq.). Thus, meetings of the SPH Board and certain committees must be held in compliance with the public notice and other requirements of the Brown Act. The Owners’ Association is also subject to the record keeping and disclosure requirements of the California Public Records Act. Accordingly, the Owners’ Association shall publicly report any action taken and the vote or abstention on that action of each member present for the action.
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15 C. Annual Report
SPH shall present an annual report at the end of each year of operation to the City Council pursuant to Streets and Highways Code §36650 (see Appendix 1). The annual report shall include:
• Any proposed changes in the boundaries of the improvement district or in any benefit zones or classification of businesses within the district.
• The improvements and activities to be provided for that fiscal year. • An estimate of the cost of providing the improvements and the activities for that fiscal year. • The method and basis of levying the assessment in sufficient detail to allow each business owner to estimate the amount of the assessment to be levied against his or her business for that fiscal year.
• The estimated amount of any surplus or deficit revenues to be carried over from a previous fiscal year.
• The estimated amount of any contributions to be made from sources other than assessments levied pursuant to this part.
In addition, the annual report shall include:
• Details of the accomplishments of the district during the previous fiscal year. • An overview of the budgeted versus actual expenditures and revenue for the previous fiscal year.
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16 APPENDIX 1 – LAW
*** THIS DOCUMENT IS CURRENT THROUGH THE 2021 SUPPLEMENT *** (ALL 2020 LEGISLATION)
STREETS AND HIGHWAYS CODE
DIVISION 18. PARKING
PART 7. PROPERTY AND BUSINESS IMPROVEMENT DISTRICT LAW OF 1994 CHAPTER 1. General Provisions
ARTICLE 1. Declarations
36600. Citation of part
This part shall be known and may be cited as the “Property and Business Improvement District Law of 1994.” 36601. Legislative findings and declarations; Legislative guidance The Legislature finds and declares all of the following:
(a) Businesses located and operating within business districts in some of this state’s communities are economically disadvantaged, are underutilized, and are unable to attract customers due to inadequate facilities, services, and activities in the business districts. (b) It is in the public interest to promote the economic revitalization and physical maintenance of business districts in order to create jobs, attract new businesses, and prevent the erosion of the business districts. (c) It is of particular local benefit to allow business districts to fund business related improvements, maintenance, and activities through the levy of assessments upon the businesses or real property that receive benefits from those improvements.
(d) Assessments levied for the purpose of conferring special benefit upon the real property or a specific benefit upon the businessesin a business district are not taxesfor the general benefit of a city, even if property, businesses, or persons not assessed receive incidental or collateral effects that benefit them. (e) Property and business improvement districts formed throughout this state have conferred special benefits upon properties and businesses within their districts and have made those properties and businesses more useful by providing the following benefits:
(1) Crime reduction. A study by the Rand Corporation has confirmed a 12-percent reduction in the incidence of robbery and an 8-percent reduction in the total incidence of violent crimes within the 30 districts studied.
(2) Job creation.
(3) Business attraction.
(4) Business retention.
(5) Economic growth.
(6) New investments.
(f) With the dissolution of redevelopment agencies throughout the state, property and business improvement districts have become even more important tools with which communities can combat blight, promote economic opportunities, and create a clean and safe environment. (g) Since the enactment of this act, the people of California have adopted Proposition 218, which added Article XIII D to the Constitution in order to place certain requirements and restrictions on the formation of, and activities, expenditures, and assessments by property-based districts. Article XIII D of the Constitution provides that property-based districts may only levy assessments for special benefits. (h) The act amending this section is intended to provide the Legislature’s guidance with regard to this act, its interaction with the provisions of Article XIII D of the Constitution, and the determination of special benefits in property-based districts.
(1) The lack of legislative guidance has resulted in uncertainty and inconsistent application of this act, which discourages the use of assessments to fund needed improvements, maintenance, and activities in property-based districts, contributing to blight and other underutilization of property.
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17 (2) Activities undertaken for the purpose of conferring special benefits upon property to be assessed inherently produce incidental or collateral effects that benefit property or persons not assessed.
Therefore, for special benefits to exist as a separate and distinct category from general benefits, the incidental or collateral effects of those special benefits are inherently part of those special benefits.
The mere fact that special benefits produce incidental or collateral effects that benefit property or persons not assessed does not convert any portion of those special benefits or their incidental or collateral effects into general benefits.
(3) It is of the utmost importance that property-based districts created under this act have clarity regarding restrictions on assessmentsthey may levy and the proper determination ofspecial benefits.
Legislative clarity with regard to this act will provide districts with clear instructions and courts with legislative intent regarding restrictions on property-based assessments, and the manner in which special benefits should be determined.
36602. Purpose of part
The purpose of this part is to supplement previously enacted provisions of law that authorize cities to levy assessments within property and business improvement districts, to ensure that those assessments conform to all constitutional requirements and are determined and assessed in accordance with the guidance set forth in this act. This part does not affect or limit any other provisions of law authorizing or providing for the furnishing of improvements or activities or the raising of revenue for these purposes.
36603. Preemption of authority or charter city to adopt ordinances levying assessments Nothing in this part is intended to preempt the authority of a charter city to adopt ordinances providing for a different method of levying assessments for similar or additional purposes from those set forth in this part. A property and business improvement district created pursuant to this part is expressly exempt from the provisions of the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 (Division 4 (commencing with Section 2800)). 36603.5. Part prevails over conflicting provisions
Any provision of this part that conflicts with any other provision of law shall prevail over the other provision of law, as to districts created under this part.
36604. Severability
This part is intended to be construed liberally and, if any provision is held invalid, the remaining provisions shall remain in full force and effect. Assessments levied under this part are not special taxes.
ARTICLE 2. Definitions
36606. “Activities”
“Activities” means, but is not limited to, all of the following that benefit businesses or real property in the district:
(a) Promotion of public events.
(b) Furnishing of music in any public place.
(c) Promotion of tourism within the district.
(d) Marketing and economic development, including retail retention and recruitment. (e) Providing security, sanitation, graffiti removal, street and sidewalk cleaning, and other municipal services supplemental to those normally provided by the municipality. (f) Other services provided for the purpose of conferring special benefit upon assessed real property or specific benefits upon assessed businesses located in the district. 36606.5. “Assessment”
“Assessment” means a levy for the purpose of acquiring, constructing, installing, or maintaining improvements and providing activities that will provide certain benefits to properties or businesses located within a property and business improvement district.
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18 36607. “Business”
“Business” means all types of businesses and includes financial institutions and professions. 36608. “City”
“City” means a city, county, city and county, or an agency or entity created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government Code, the public member agencies of which includes only cities, counties, or a city and county, or the State of California. 36609. “City council”
“City council” means the city council of a city or the board of supervisors of a county, or the agency, commission, or board created pursuant to a joint powers agreement and which is a city within the meaning of this part. 36609.4. “Clerk”
“Clerk” means the clerk of the legislative body.
36609.5. “General benefit”
“General benefit” means, for purposes of a property-based district, any benefit that is not a “special benefit” as defined in Section 36615.5.
36610. “Improvement”
“Improvement” means the acquisition, construction, installation, or maintenance of any tangible property with an estimated useful life of five years or more including, but not limited to, the following:
(a) Parking facilities.
(b) Benches, booths, kiosks, display cases, pedestrian shelters and signs. (c) Trash receptacles and public restrooms.
(d) Lighting and heating facilities.
(e) Decorations.
(f) Parks.
(g) Fountains.
(h) Planting areas.
(i) Closing, opening, widening, or narrowing of existing streets. (j) Facilities or equipment, or both, to enhance security of persons and property within the district. (k) Ramps, sidewalks, plazas, and pedestrian malls.
(l) Rehabilitation or removal of existing structures.
36611. “Management district plan”; “Plan”
“Management district plan” or “plan” means a proposal as defined in Section 36622. 36612. “Owners’ association”
“Owners’ association” means a private nonprofit entity that is under contract with a city to administer or implement improvements, maintenance, and activities specified in the management district plan. An owners’ association may be an existing nonprofit entity or a newly formed nonprofit entity. An owners’ association is a private entity and may not be considered a public entity for any purpose, nor may its board members or staff be considered to be public officials for any purpose. Notwithstanding this section, an owners’ association shall comply with the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code), at all times when matters within the subject matter of the district are heard, discussed, or deliberated, and with the California
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19 Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), for all records relating to activities of the district. 36614. “Property”
“Property” means real property situated within a district. 36614.5. “Property and business improvement district”; “District” “Property and business improvement district,” or “district,” means a property and business improvement district established pursuant to this part.
36614.6. “Property-based assessment”
“Property-based assessment” means any assessment made pursuant to this part upon real property. 36614.7. “Property-based district”
“Property-based district” means any district in which a city levies a property-based assessment. 36615. “Property owner”; “Business owner”; “Owner”
“Property owner” means any person shown as the owner of land on the last equalized assessment roll or otherwise known to be the owner of land by the city council. “Business owner” means any person recognized by the city as the owner of the business. “Owner” means either a business owner or a property owner. The city council has no obligation to obtain other information as to the ownership of land or businesses, and its determination of ownership shall be final and conclusive for the purposes of this part. Wherever this part requires the signature of the property owner, the signature of the authorized agent of the property owner shall be sufficient. Wherever this part requires the signature of the business owner, the signature of the authorized agent of the business owner shall be sufficient. 36615.5. “Special benefit”
“Special benefit” means, for purposes of a property-based district, a particular and distinct benefit over and above general benefits conferred on real property located in a district or to the public at large. Special benefit includes incidental or collateral effects that arise from the improvements, maintenance, or activities of property-based districts even if those incidental or collateral effects benefit property or persons not assessed. Special benefit excludes general enhancement of property value.
36616. “Tenant”
“Tenant” means an occupant pursuant to a lease of commercial space or a dwelling unit, other than an owner.
ARTICLE 3. Prior Law
36617. Alternate method of financing certain improvements and activities; Effect on other provisions This part provides an alternative method of financing certain improvements and activities. The provisions of this part shall not affect or limit any other provisions of law authorizing or providing for the furnishing of improvements or activities or the raising of revenue for these purposes. Every improvement area established pursuant to the Parking and Business Improvement Area Law of 1989 (Part 6 (commencing with Section 36500) of this division) is valid and effective and is unaffected by this part.
CHAPTER 2. Establishment
36620. Establishment of property and business improvement district A property and business improvement district may be established as provided in this chapter.
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20 36620.5. Requirement of consent of city council
A county may not form a district within the territorial jurisdiction of a city without the consent of the city council of that city. A city may not form a district within the unincorporated territory of a county without the consent of the board of supervisors of that county. A city may not form a district within the territorial jurisdiction of another city without the consent of the city council of the other city.
36621. Initiation of proceedings; Petition of property or business owners in proposed district (a) Upon the submission of a written petition, signed by the property or business owners in the proposed district who will pay more than 50 percent of the assessments proposed to be levied, the city council may initiate proceedings to form a district by the adoption of a resolution expressing its intention to form a district.
The amount of assessment attributable to property or a business owned by the same property or business owner that is in excess of 40 percent of the amount of all assessments proposed to be levied, shall not be included in determining whether the petition is signed by property or business owners who will pay more than 50 percent of the total amount of assessments proposed to be levied. (b) The petition of property or business owners required under subdivision (a) shall include a summary of the management district plan. That summary shall include all of the following:
(1) A map showing the boundaries of the district.
(2) Information specifying where the complete management district plan can be obtained. (3) Information specifying that the complete management district plan shall be furnished upon request.
(c) The resolution of intention described in subdivision (a) shall contain all of the following:
(1) A brief description of the proposed improvements, maintenance, and activities, the amount of the proposed assessment, a statement as to whether the assessment will be levied on property or businesses within the district, a statement as to whether bonds will be issued, and a description of the exterior boundaries of the proposed district, which may be made by reference to any plan or map that is on file with the clerk. The descriptions and statements do not need to be detailed and shall be sufficient if they enable an owner to generally identify the nature and extent of the improvements, maintenance, and activities, and the location and extent of the proposed district. (2) A time and place for a public hearing on the establishment of the property and business improvement district and the levy of assessments, which shall be consistent with the requirements of Section 36623.
36622. Contents of management district plan
The management district plan shall include, but is not limited to, all of the following:
(a) If the assessment will be levied on property, a map of the district in sufficient detail to locate each parcel of property and, if businesses are to be assessed, each business within the district. If the assessment will be levied on businesses, a map that identifies the district boundaries in sufficient detail to allow a business owner to reasonably determine whether a business is located within the district boundaries. If the assessment will be levied on property and businesses, a map of the district in sufficient detail to locate each parcel of property and to allow a business owner to reasonably determine whether a business is located within the district boundaries.
(b) The name of the proposed district.
(c) A description of the boundaries of the district, including the boundaries of benefit zones, proposed for establishment or extension in a manner sufficient to identify the affected property and businesses included, which may be made by reference to any plan or map that is on file with the clerk. The boundaries of a proposed property assessment district shall not overlap with the boundaries of another existing property assessment district created pursuant to this part. This part does not prohibit the boundaries of a district created pursuant to this part to overlap with other assessment districts established pursuant to other provisions of law, including, but not limited to, the Parking and Business Improvement Area Law of 1989 (Part 6 (commencing with Section 36500)). This part does not prohibit the boundaries of a business assessment district created pursuant to this part to overlap with another business assessment district created pursuant to this part. This
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21 part does not prohibit the boundaries of a business assessment district created pursuant to this part to overlap with a property assessment district created pursuant to this part. (d) The improvements, maintenance, and activities proposed for each year of operation of the district and the maximum cost thereof. If the improvements, maintenance, and activities proposed for each year of operation are the same, a description of the first year’s proposed improvements, maintenance, and activities and a statement that the same improvements, maintenance, and activities are proposed for subsequent years shall satisfy the requirements of this subdivision.
(e) The total annual amount proposed to be expended for improvements, maintenance, or activities, and debt service in each year of operation of the district. If the assessment is levied on businesses, this amount may be estimated based upon the assessment rate. If the total annual amount proposed to be expended in each year of operation of the district is not significantly different, the amount proposed to be expended in the initial year and a statement that a similar amount applies to subsequent years shall satisfy the requirements of this subdivision.
(f) The proposed source or sources of financing, including the proposed method and basis of levying the assessment in sufficient detail to allow each property or business owner to calculate the amount of the assessment to be levied against his or her property or business. The plan also shall state whether bonds will be issued to finance improvements.
(g) The time and manner of collecting the assessments.
(h) The specific number of years in which assessments will be levied. In a new district, the maximum number of years shall be five. Upon renewal, a district shall have a term not to exceed 10 years. Notwithstanding these limitations, a district created pursuant to this part to finance capital improvements with bonds may levy assessments until the maximum maturity of the bonds. The management district plan may set forth specific increases in assessments for each year of operation of the district. (i) The proposed time for implementation and completion of the management district plan. (j) Any proposed rules and regulations to be applicable to the district. (k) (1) A list of the properties or businesses to be assessed, including the assessor’s parcel numbers for properties to be assessed, and a statement of the method or methods by which the expenses of a district will be imposed upon benefited real property or businesses, in proportion to the benefit received by the property or business, to defray the cost thereof. (2) In a property-based district, the proportionate special benefit derived by each identified parcel shall be determined exclusively in relationship to the entirety of the capital cost of a public improvement, the maintenance and operation expenses of a public improvement, or the cost of the activities. An assessment shall not be imposed on any parcel that exceeds the reasonable cost of the proportional special benefit conferred on that parcel. Only special benefits are assessable, and a property-based district shall separate the general benefits, if any, from the special benefits conferred on a parcel. Parcels within a property-based district that are owned or used by any city, public agency, the State of California, or the United States shall not be exempt from assessment unless the governmental entity can demonstrate by clear and convincing evidence that those publicly owned parcels in fact receive no special benefit. The value of any incidental, secondary, or collateral effects that arise from the improvements, maintenance, or activities of a property-based district and that benefit property or persons not assessed shall not be deducted from the entirety of the cost of any special benefit or affect the proportionate special benefit derived by each identified parcel. (l) In a property-based district, the total amount of all special benefits to be conferred upon the properties located within the property-based district.
(m) In a property-based district, the total amount of general benefits, if any. (n) In a property-based district, a detailed engineer’s report prepared by a registered professional engineer certified by the State of California supporting all assessments contemplated by the management district plan. (o) Any other item or matter required to be incorporated therein by the city council. 36623. Procedure to levy assessment
(a) If a city council proposes to levy a new or increased property assessment, the notice and protest and hearing procedure shall comply with Section 53753 of the Government Code. (b) If a city council proposes to levy a new or increased business assessment, the notice and protest and hearing procedure shall comply with Section 54954.6 of the Government Code, except that notice shall be mailed to the owners of the businesses proposed to be assessed. A protest may be made orally or in writing by any interested person. Every written protest shall be filed with the clerk at or before the time fixed for the
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22 public hearing. The city council may waive any irregularity in the form or content of any written protest. A written protest may be withdrawn in writing at any time before the conclusion of the public hearing. Each written protest shall contain a description of the business in which the person subscribing the protest is interested sufficient to identify the business and, if a person subscribing is not shown on the official records of the city as the owner of the business, the protest shall contain or be accompanied by written evidence that the person subscribing is the owner of the business or the authorized representative. A written protest that does not comply with this section shall not be counted in determining a majority protest. If written protests are received from the owners or authorized representatives of businesses in the proposed district that will pay 50 percent or more of the assessments proposed to be levied and protests are not withdrawn so as to reduce the protests to less than 50 percent, no further proceedings to levy the proposed assessment against such businesses, as contained in the resolution of intention, shall be taken for a period of one year from the date of the finding of a majority protest by the city council. (c) If a city council proposes to conduct a single proceeding to levy both a new or increased property assessment and a new or increased business assessment, the notice and protest and hearing procedure for the property assessment shall comply with subdivision (a), and the notice and protest and hearing procedure for the business assessment shall comply with subdivision (b). If a majority protest is received from either the property or business owners, that respective portion of the assessment shall not be levied. The remaining portion of the assessment may be levied unless the improvement or other special benefit was proposed to be funded by assessing both property and business owners.
36624. Changes to proposed assessments
At the conclusion of the public hearing to establish the district, the city council may adopt, revise, change, reduce, or modify the proposed assessment or the type or types of improvements, maintenance, and activities to be funded with the revenues from the assessments. Proposed assessments may only be revised by reducing any or all of them. At the public hearing, the city council may only make changes in, to, or from the boundaries of the proposed property and business improvement district that will exclude territory that will not benefit from the proposed improvements, maintenance, and activities. Any modifications, revisions, reductions, or changes to the proposed assessment district shall be reflected in the notice and map recorded pursuant to Section 36627. 36625. Resolution of formation
(a) If the city council, following the public hearing, decides to establish a proposed property and business improvement district, the city council shall adopt a resolution of formation that shall include, but is not limited to, all of the following:
(1) A brief description of the proposed improvements, maintenance, and activities, the amount of the proposed assessment, a statement as to whether the assessment will be levied on property, businesses, or both within the district, a statement on whether bonds will be issued, and a description of the exterior boundaries of the proposed district, which may be made by reference to any plan or map that is on file with the clerk. The descriptions and statements need not be detailed and shall be sufficient if they enable an owner to generally identify the nature and extent of the improvements, maintenance, and activities and the location and extent of the proposed district. (2) The number, date of adoption, and title of the resolution of intention. (3) The time and place where the public hearing was held concerning the establishment of the district.
(4) A determination regarding any protests received. The city shall not establish the district or levy assessments if a majority protest was received.
(5) A statement that the properties, businesses, or properties and businesses in the district established by the resolution shall be subject to any amendments to this part. (6) A statement that the improvements, maintenance, and activities to be conferred on businesses and properties in the district will be funded by the levy of the assessments. The revenue from the levy of assessments within a district shall not be used to provide improvements, maintenance, or activities outside the district or for any purpose other than the purposes specified in the resolution of intention, as modified by the city council at the hearing concerning establishment of the district.
Notwithstanding the foregoing, improvements and activities that must be provided outside the district boundaries to create a special or specific benefit to the assessed parcels or businesses may be provided, but shall be limited to marketing or signage pointing to the district.
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23 (7) A finding that the property or businesses within the area of the property and business improvement district will be benefited by the improvements, maintenance, and activities funded by the proposed assessments, and, for a property-based district, that property within the district will receive a special benefit.
(8) In a property-based district, the total amount of all special benefits to be conferred on the properties within the property-based district.
(b) The adoption of the resolution of formation and, if required, recordation of the notice and map pursuant to Section 36627 shall constitute the levy of an assessment in each of the fiscal years referred to in the management district plan.
36627. Notice and assessment diagram
Following adoption of the resolution establishing district assessments on properties pursuant to Section 36625, the clerk shall record a notice and an assessment diagram pursuant to Section 3114. No other provision of Division 4.5 (commencing with Section 3100) applies to an assessment district created pursuant to this part. 36628. Establishment of separate benefit zones within district; Categories of businesses The city council may establish one or more separate benefit zones within the district based upon the degree of benefit derived from the improvements or activities to be provided within the benefit zone and may impose a different assessment within each benefit zone. If the assessment is to be levied on businesses, the city council may also define categories of businesses based upon the degree of benefit that each will derive from the improvements or activities to be provided within the district and may impose a different assessment or rate of assessment on each category of business, or on each category of business within each zone. 36628.5. Assessments on businesses or property owners
The city council may levy assessments on businesses or on property owners, or a combination of the two, pursuant to this part. The city council shall structure the assessments in whatever manner it determines corresponds with the distribution of benefits from the proposed improvements, maintenance, and activities, provided that any propertybased assessment conforms with the requirements set forth in paragraph (2) of subdivision (k) of Section 36622. 36629. Provisions and procedures applicable to benefit zones and business categories All provisions of this part applicable to the establishment, modification, or disestablishment of a property and business improvement district apply to the establishment, modification, or disestablishment of benefit zones or categories of business. The city council shall, to establish, modify, or disestablish a benefit zone or category of business, follow the procedure to establish, modify, or disestablish a property and business improvement district. 36630. Expiration of district; Creation of new district If a property and business improvement district expires due to the time limit set pursuant to subdivision (h) of Section 36622, a new management district plan may be created and the district may be renewed pursuant to this part.
CHAPTER 3. Assessments
36631. Time and manner of collection of assessments; Delinquent payments The collection of the assessments levied pursuant to this part shall be made at the time and in the manner set forth by the city council in the resolution levying the assessment. Assessments levied on real property may be collected at the same time and in the same manner as for the ad valorem property tax, and may provide for the same lien priority and penalties for delinquent payment. All delinquent payments for assessments levied pursuant to this part may be charged interest and penalties.
36632. Assessments to be based on estimated benefit; Classification of real property and businesses; Exclusion of residential and agricultural property
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24 (a) The assessments levied on real property pursuant to this part shall be levied on the basis of the estimated benefit to the real property within the property and business improvement district. The city council may classify properties for purposes of determining the benefit to property of the improvements and activities provided pursuant to this part.
(b) Assessments levied on businesses pursuant to this part shall be levied on the basis of the estimated benefit to the businesses within the property and business improvement district. The city council may classify businesses for purposes of determining the benefit to the businesses of the improvements and activities provided pursuant to this part.
(c) Properties zoned solely for residential use, or that are zoned for agricultural use, are conclusively presumed not to benefit from the improvements and service funded through these assessments, and shall not be subject to any assessment pursuant to this part.
36633. Time for contesting validity of assessment
The validity of an assessment levied under this part shall not be contested in an action or proceeding unless the action or proceeding is commenced within 30 days after the resolution levying the assessment is adopted pursuant to Section 36625. An appeal from a final judgment in an action or proceeding shall be perfected within 30 days after the entry of judgment.
36634. Service contracts authorized to establish levels of city services The city council may execute baseline service contracts that would establish levels of city services that would continue after a property and business improvement district has been formed. 36635. Request to modify management district plan
The owners’ association may, at any time, request that the city council modify the management district plan. Any modification of the management district plan shall be made pursuant to this chapter. 36636. Modification of plan by resolution after public hearing; Adoption of resolution of intention (a) Upon the written request of the owners’ association, the city council may modify the management district plan after conducting one public hearing on the proposed modifications. The city council may modify the improvements and activities to be funded with the revenue derived from the levy of the assessments by adopting a resolution determining to make the modifications after holding a public hearing on the proposed modifications. If the modification includes the levy of a new or increased assessment, the city council shall comply with Section 36623. Notice of all other public hearings pursuant to this section shall comply with both of the following:
(1) The resolution of intention shall be published in a newspaper of general circulation in the city once at least seven days before the public hearing.
(2) A complete copy of the resolution of intention shall be mailed by first class mail, at least 10 days before the public hearing, to each business owner or property owner affected by the proposed modification.
(b) The city council shall adopt a resolution of intention which states the proposed modification prior to the public hearing required by this section. The public hearing shall be held not more than 90 days after the adoption of the resolution of intention. 36637. Reflection of modification in notices recorded and maps Any subsequent modification of the resolution shall be reflected in subsequent notices and maps recorded pursuant to Division 4.5 (commencing with Section 3100), in a manner consistent with the provisions of Section 36627.
CHAPTER 3.5. Financing
36640. Bonds authorized; Procedure; Restriction on reduction or termination of assessments
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25 (a)The city council may, by resolution, determine and declare that bonds shall be issued to finance the estimated cost of some or all of the proposed improvements described in the resolution of formation adopted pursuant to Section 36625, if the resolution of formation adopted pursuant to that section provides for the issuance of bonds, under the Improvement Bond Act of 1915 (Division 10 (commencing with Section 8500)) or in conjunction with Marks-Roos Local Bond Pooling Act of 1985 (Article 4 (commencing with Section 6584) of Chapter 5 of Division 7 of Title 1 of the Government Code). Either act, as the case may be, shall govern the proceedings relating to the issuance of bonds, although proceedings under the Bond Act of 1915 may be modified by the city council as necessary to accommodate assessments levied upon business pursuant to this part.
(b) The resolution adopted pursuant to subdivision (a) shall generally describe the proposed improvements specified in the resolution of formation adopted pursuant to Section 36625, set forth the estimated cost of those improvements, specify the number of annual installments and the fiscal years during which they are to be collected. The amount of debt service to retire the bonds shall not exceed the amount of revenue estimated to be raised from assessments over 30 years.
(c) Notwithstanding any other provision of this part, assessments levied to pay the principal and interest on any bond issued pursuant to this section shall not be reduced or terminated if doing so would interfere with the timely retirement of the debt.
CHAPTER 4. Governance
36650. Report by owners’ association; Approval or modification by city council (a) The owners’ association shall cause to be prepared a report for each fiscal year, except the first year, for which assessments are to be levied and collected to pay the costs of the improvements, maintenance, and activities described in the report. The owners’ association’s first report shall be due after the first year of operation of the district. The report may propose changes, including, but not limited to, the boundaries of the property and business improvement district or any benefit zones within the district, the basis and method of levying the assessments, and any changes in the classification of property, including any categories of business, if a classification is used.
(b) The report shall be filed with the clerk and shall refer to the property and business improvement district by name, specify the fiscal year to which the report applies, and, with respect to that fiscal year, shall contain all of the following information:
(1) Any proposed changes in the boundaries of the property and business improvement district or in any benefit zones or classification of property or businesses within the district. (2) The improvements, maintenance, and activities to be provided for that fiscal year. (3) An estimate of the cost of providing the improvements, maintenance, and activities for that fiscal year.
(4) The method and basis of levying the assessment in sufficient detail to allow each real property or business owner, as appropriate, to estimate the amount of the assessment to be levied against his or her property or business for that fiscal year.
(5) The estimated amount of any surplus or deficit revenues to be carried over from a previous fiscal year.
(6) The estimated amount of any contributions to be made from sources other than assessments levied pursuant to this part.
(c) The city council may approve the report as filed by the owners’ association or may modify any particular contained in the report and approve it as modified. Any modification shall be made pursuant to Sections 36635 and 36636.
The city council shall not approve a change in the basis and method of levying assessments that would impair an authorized or executed contract to be paid from the revenues derived from the levy of assessments, including any commitment to pay principal and interest on any bonds issued on behalf of the district. 36651. Designation of owners’ association to provide improvements, maintenance, and activities The management district plan may, but is not required to, state that an owners’ association will provide the improvements, maintenance, and activities described in the management district plan. If the management district plan designates an owners’ association, the city shall contract with the designated nonprofit corporation to provide services.
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26 CHAPTER 5. Renewal
36660. Renewal of district; Transfer or refund of remaining revenues; District term limit (a) Any district previously established whose term has expired, or will expire, may be renewed by following the procedures for establishment as provided in this chapter. (b) Upon renewal, any remaining revenues derived from the levy of assessments, or any revenues derived from the sale of assets acquired with the revenues, shall be transferred to the renewed district. If the renewed district includes additional parcels or businesses not included in the prior district, the remaining revenues shall be spent to benefit only the parcels or businesses in the prior district. If the renewed district does not include parcels or businesses included in the prior district, the remaining revenues attributable to these parcels shall be refunded to the owners of these parcels or businesses. (c) Upon renewal, a district shall have a term not to exceed 10 years, or, if the district is authorized to issue bonds, until the maximum maturity of those bonds. There is no requirement that the boundaries, assessments, improvements, or activities of a renewed district be the same as the original or prior district.
CHAPTER 6. Disestablishment
36670. Circumstances permitting disestablishment of district; Procedure (a) Any district established or extended pursuant to the provisions of this part, where there is no indebtedness, outstanding and unpaid, incurred to accomplish any of the purposes of the district, may be disestablished by resolution by the city council in either of the following circumstances:
(1) If the city council finds there has been misappropriation of funds, malfeasance, or a violation of law in connection with the management of the district, it shall notice a hearing on disestablishment. (2) During the operation of the district, there shall be a 30-day period each year in which assessees may request disestablishment of the district. The first such period shall begin one year after the date of establishment of the district and shall continue for 30 days. The next such 30-day period shall begin two years after the date of the establishment of the district. Each successive year of operation of the district shall have such a 30-day period. Upon the written petition of the owners or authorized representatives of real property or the owners or authorized representatives of businesses in the district who pay 50 percent or more of the assessments levied, the city council shall pass a resolution of intention to disestablish the district. The city council shall notice a hearing on disestablishment. (b) The city council shall adopt a resolution of intention to disestablish the district prior to the public hearing required by this section. The resolution shall state the reason for the disestablishment, shall state the time and place of the public hearing, and shall contain a proposal to dispose of any assets acquired with the revenues of the assessments levied within the property and business improvement district. The notice of the hearing on disestablishment required by this section shall be given by mail to the property owner of each parcel or to the owner of each business subject to assessment in the district, as appropriate. The city shall conduct the public hearing not less than 30 days after mailing the notice to the property or business owners. The public hearing shall be held not more than 60 days after the adoption of the resolution of intention. 36671. Refund of remaining revenues upon disestablishment or expiration without renewal of district; Calculation of refund; Use of outstanding revenue collected after disestablishment of district (a) Upon the disestablishment or expiration without renewal of a district, any remaining revenues, after all outstanding debts are paid, derived from the levy of assessments, or derived from the sale of assets acquired with the revenues, or from bond reserve or construction funds, shall be refunded to the owners of the property or businesses then located and operating within the district in which assessments were levied by applying the same method and basis that was used to calculate the assessments levied in the fiscal year in which the district is disestablished or expires. All outstanding assessment revenue collected after disestablishment shall be spent on improvements and activities specified in the management district plan. (b) If the disestablishment occurs before an assessment is levied for the fiscal year, the method and basis that was used to calculate the assessments levied in the immediate prior fiscal year shall be used to calculate the amount of any refund.
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27 APPENDIX 2 – ASSESSED BUSINESSES
Business Name Street Address City
EXTENDED STAY AMERICA 3220 BUSKIRK AVE PLEASANT HILL, CA 94523 HILTON HOMEWOOD SUITES 650 ELLINWOOD WAY PLEASANT HILL, CA 94523 HYATT HOUSE 2611 CONTRA COSTA BLVD PLEASANT HILL, CA 94523 SONESTA SELECT PLEASANT HILL 2250 CONTRA COSTA BLVD PLEASANT HILL, CA 94523 PLEASANT HILL INN 1432 CONTRA COSTA BLVD PLEASANT HILL, CA 94523 RESIDENCE INN PLEASANT HILL 700 ELLINWOOD WY PLEASANT HILL, CA 94523 SUN VALLEY INN 2045 CONTRA COSTA BLVD. PLEASANT HILL, CA 94523
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CITY COUNCIL STAFF REPORT
Meeting Date: February 07, 2022
TO: THE HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBJECT: ADOPT RESOLUTION __-22 AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH TESLA, INC. TO PURCHASE A
SOLAR POWER SYSTEM FOR THE NEW PLEASANT HILL LIBRARY
AND AUTHORIZING STAFF TO FACILITATE LIBRARY MOVE-IN,
UTILITIES, AND TECHNOLOGY (LOW VOLTAGE SYSTEMS)
SYNOPSIS
Adopt a resolution to authorize the City Manger to exececute an agreement with Tesla, Inc to purchase a solar power system for the new Pleasant Hill Library and to authorize staff to facilitate the Library move-in, Utilities, and Technology (Low Voltage Systems), which includes allocating a portion of the Utilities Fund to cover the ongoing utility services and tie-in expenditures.
DISCUSSION
Background
In August 2020, City Council awarded a construction contract to BHM Construction Inc. for the New Pleasant Hill Library Project No. 06-20 for the amount of $21,252,282. The project construction cost is $21,252,282. This includes a base bid of $20,917,282 and selected bid alternates of $335,000. It is reasonable to include a construction contingency of ten percent or $2,125,228, which is typical for this type of construction project. The total construction cost is not to exceed $23,377,510.
Though the cost for low voltage systems and utilities and move-in were anticipated and included in the initial budget for CIP (Project MK-4) budget cycle FY20/25, neither the base contract for BHM Construction nor the initial CIP (Project MK-4) budget included the cost for the purchase and installation of a photovoltaic solar panel system. The Library was designed to be solar ready with the intent of adding photovoltaic panels after completion of the library.
Receiving a favorable construction bid result, advancement of solar panel technology, efficiency and ease of construction sequence prompted consideration for installation of photovoltaic during the construction phase.
On February 2, 2022, the Budget Committee reviewed the request to purchase the solar power system and authorize staff to facilitate the Library move-in and low voltage systems. The
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Committee recommended that the City Council approve the request, as proposed by City staff.
Analysis
Newly Added Scope:
Photovoltaic System $513,038:
The City of Pleasant Hill has engaged Tesla, Inc. for the purchase and installation of photovoltaic solar panels for the Project. Tesla, Inc. will install and furnish all labor and material for this work. The City and BHM will inspect and oversee the work to be performed by Tesla for compliance to preserve the metal roof system warranty of the library.
The cost of this installation is expected to be $513,038, and staff requests City Council to authorize additional funds to the Library CIP budget to cover the added scope and expense.
The City Manager will enter into an agreement with Tesla, Inc. for the amount not-to-exceed $513,038 per the terms and conditions listed on Exhibit 1 of the attached agreement in a form that is subject to approval by the City Attorney.
Anticipated and Previously Budgeted Scope:
Low Voltage System $523,750:
The low voltage systems include video surveillance, intrusion detection, access control, assisted listening, audiovisual video conference, and public address systems. Equipment for low voltage systems was anticipated to be purchased by the City using funds from the Technology budget and installed by various vendors toward the end of the construction period. Typically, low voltage systems installation needs to be coordinated closely with the work of the General Contractor and Subcontractors to ensure a smooth transition between trades. Additional time is also required by the City’s vendors to install the system equipment and to perform testing after installation. This can only be done after the building has been energized with power (PG&E) and internet/data (AT&T).
Library Move-in and Utilities $300,000:
One of the soft costs in the approved Total Project Budget is utilities: payment of water, sewer, power permits, and connection fees. The original amount allocated for the utilities is $1,000,000, and staff requests authorization to allocate $250,000 of the fund now to cover the ongoing utility services and tie-in expenditures.
The library move in expenditure of $50,000 will cover the relocation of the temporary library from the current location at City Hall to the new library.
FISCAL IMPACT
The FY 2020/2025 CIP (Project MK-4) allocated a total of $33,569,103, which is a combination of local Measure K funds ($31,086,103), Private Sources ($1,500,000), Public, Educational, and Governmental (PEG) Access funds ($680,000), and Unified Lighting District
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funds ($303,000). Total Project Budget allocated $523,750 for Technology (Low Voltage Systems), $50,000 for Move-In, and $1,000,000 for Utilities.
BHM Construction Inc. Base Contract $21,252,282
Construction contingency of ten percent (10%) $2,125,228 Total Construction Cost by BHM $23,377,510
Additional and Anticipated Scope
Photovoltaic System $513,038
Low Voltage Systems $523,750
Move-In $50,000
Utilities $250,000
Total Additional and Anticipated Scope Cost $1,336,788
PUBLIC CONTACT
Public contact was made through posting of the City Council agenda on the City’s official notice bulletin board, at the Pleasant Hill Senior Center, and the Pleasant Hill Police Department. The agenda and staff report are posted on the City’s web page.
RECOMMENDED CITY COUNCIL ACTION
Adopt the proposed resolution to authorize the City Manager to execute an agreement with Tesla, Inc. to purchase a solar power system for the new Pleasant Hill Library and to authorize staff to facilitate the Library move-in, Utilities, and Technology (Low Voltage Systems).
ALTERNATIVES TO RECOMMENDED ACTION
Do not adopt the proposed resolution and provide direction to staff.
ATTACHMENT(S):
Proposed Resolution
Exhibit 1 – Tesla Solar Order - Terms and Conditions
Prepared by: Ananthan Kanagasundaram
Reviewed by: Ananthan Kanagasundaram
Approved by: June Catalano, City Manager
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RESOLUTION NO. -22
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PLEASANT HILL
AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH TESLA, INC. TO PURCHASE A SOLAR POWER SYSTEM FOR THE NEW PLEASANT HILL
LIBRARY AND AUTHORIZING STAFF TO FACILITATE LIBRARY MOVE-IN,
UTILITIES, AND TECHNOLOGY (LOW VOLTAGE SYSTEMS)
WHEREAS, in August 2020 (Resolution 71-20), City Council awarded a construction contract to BHM Construction Inc. for the Pleasant Hill Library Project No. 06-20 in the amount of $21,252,282. The project construction cost is $21,252,282, which includes a base bid of $20,917,282 and selected bid alternates of $335,000. It is reasonable to include a construction contingency of ten percent (10%) or $2,125,228, which is typical for this type of construction project. The total construction cost is not to exceed $23,377,510; and
WHEREAS, the cost for purchase and installation of a photovoltaic solar panel system was never anticipated nor budgeted; and
WHEREAS, Staff requests City Council to authorize additional funds in the amount $513,038 to the Library CIP (Project MK-4) budget to cover the added scope and expense; and WHEREAS, the City of Pleasant Hill has engaged Tesla, Inc. for the purchase and installation of photovoltaic solar panels for the Project in the amount of $513,038; and WHEREAS, the City Manager is to enter into an agreement with Tesla, Inc. for the amount not-to-exceed $513,038 per the terms and conditions listed on Exhibit 1 of the attached agreement in a form that is subject to approval by the City Attorney; and WHEREAS, the cost for low voltage systems and utitlites and move-in were anticipated and included in the initial budget for CIP (Project MK-4) budget cycle FY20/25; and WHEREAS, Staff requests the authorizion to facilitate the Library move-in ($50,000), Utilities ($250,000), and Technology (Low Voltage Systems, $523,750) expenditures; and WHEREAS, the FY 2020/2025 CIP (Project MK-4) allocated a total of $33,569,103, which is a combination of local Measure K funds ($31,086,103), Private Sources ($1,500,000), Public, Educational, and Governmental (PEG) Access funds ($680,000), and Unified Lighting District funds ($303,000).
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Pleasant Hill that the City Manager is authorized to execute a contract, in a form approved by the City Attorney, with Tesla, Inc. in an amount not to exceed $513,038 for the purchase of a solar power system for the new Pleasant Hill Library and is further authorized to take all actions necessary to facilitate the Library move-in and installation and powering of utilities, and technology (low voltage systems).
9.1.a
Packet Pg. 145 Attachment: Proposed Resolution (Solar System for Library) ADOPTED by the City Council of the City of Pleasant Hill at a regular meeting held on the 7th day of February 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
___________________________________
MICHAEL G. HARRIS, OD, Mayor
ATTEST:
DANIELLE K. HABR, City Clerk
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Packet Pg. 146 Attachment: Proposed Resolution (Solar System for Library) Commercial Energy Products Purchase Agreement
V2.6, 01/22/2021
Tesla, Inc.
1 Energy Products Purchase Agreement
Terms & Conditions
1. Authorization; Representations. By your acceptance of this Agreement (by electronic acceptance or signature), you represent and agree that you are an authorized representative of Buyer, permitted to bind Buyer in this Agreement. If applicable, you and Buyer further represent and warrant to Tesla that all financial information that you or Buyer has provided (or will provide) to Tesla is true and accurate and fairly represents Buyer’s financial position as at the date it was provided.
Tesla may terminate this Agreement if any of the representations in this Section 1 are incorrect.
2. Purchase. Buyer agrees to purchase the “Products” indicated in the Price Sheet. Tesla agrees to sell Buyer the Products and install them at the address you provided in the Price Sheet (the “Site”). References in this Agreement to specific products (as applicable, Solar System and Storage System, each as included and defined in the Price Sheet) only apply if Buyer is purchasing those products. Notwithstanding the above, prior to installing the Products, Tesla may review Buyer’s credit, and Tesla shall have the right to terminate this Agreement in its sole discretion based upon the outcome of such credit review.
3. Contract Price. The Price Sheet shows the price of the Products and their installation (“Contract Price”). The Contract Price is charged in accordance with the Schedule of Payments on the Price Sheet, and payment is due thirty (30) days after the date of each invoice. Subject to Section 4, the Contract Price is inclusive of all taxes and permitting fees. The Contract Price does not include, and Tesla is not obligated to provide, any ongoing services in connection with the Products (including maintenance services), except as required in connection with Tesla’s limited warranties in Section 12.
4. Changes to Price Sheet.
(a) Tesla’s obligation to install the Products is conditioned on such work falling with Tesla’s “Standard Scope”, which assumes standard wage rates, no unforeseen site conditions, no significant upgrades to existing electrical works, interconnection fees not to exceed $1,000, and customary government costs, taxes and fees. Further information about what constitutes Tesla’s Standard Scope is available upon request. (b) Tesla has the right to update the Price Sheet if, upon further diligence regarding the Site, Tesla determines that there are conditions outside of the Standard Scope. If Buyer does not reject the updated Price Sheet within thirty (30) days and cancel this Agreement, the changes will be deemed accepted. (c) In addition, Tesla may in its sole discretion determine that because of issues beyond the Standard Scope, Tesla will not install the Products. In such case, Tesla may terminate this Agreement by notice to Buyer, and if applicable shall refund the Order Payment.
5. Installation; Service. Tesla will contact Buyer to schedule installation of the Products. Installation will be performed by Tesla or an affiliate or subcontractor, at Tesla’s election. If the Products include a Storage System, then Tesla will commission the System in accordance with its standard practices. Buyer authorizes Tesla, or its affiliate or subcontractor, to submit on Buyer’s behalf any permit or interconnection application that is required in connection with the Products. Buyer also agrees to give Tesla, or its affiliate or subcontractor, access to the Site as scheduled so Tesla can install and service the Products. Buyer is responsible for all existing property conditions at the Site, whether known or unknown.
6. Payment. By entering into this Agreement, Buyer agrees to pay the Contract Price as described in the Price Sheet.
Tesla may provide combined or separate invoices for each of the Products. Title to the products will transfer to Buyer after Tesla (i) completes installation and (ii) receives payment in full of the Contract Price.
7. Order Payment. The Order Payment (if any) that Buyer previously paid for the Products is now non-refundable, except in the circumstances described in Section 4(c). When this Agreement becomes effective, Tesla incurs significant costs preparing to install the Products. The Order Payment is a reasonable estimate of the damages Tesla would incur if Buyer cancels its order before the Products are installed.
8. Privacy. The Tesla Customer Privacy Policy is part of this Agreement. You, as the authorized representative of Buyer, agree to be contacted at the phone number listed in the Price Sheet with more information or offers about Tesla products. You understand these calls or texts may use automated dialing or pre-recorded messages. This consent is not a condition of purchase. You may opt out of this consent at any time by contacting Tesla at 1-888-765-2489.
9. Intellectual Property. Tesla owns all intellectual property rights associated with the Products. Tesla grants Buyer a non-exclusive license to use any embedded software, only in connection with the operation of theProducts.
9.1.b
Packet Pg. 147 Attachment: Exhibit 1 - Tesla Solar Order - Terms and Conditions (Solar System for Library) Commercial Energy Products Purchase Agreement
V2.6, 01/22/2021
Tesla, Inc.
2 10. Remote Monitoring and Firmware Upgrades.
(a) Buyer agrees that Tesla may access the Products remotely to monitor performance, perform diagnostics and upgrade firmware. This monitoring requires a high speed internet line, which Buyer must provide at Buyer’s cost. If Buyer does not maintain this internet connection, Tesla cannot monitor the Products. Tesla is not responsible for any issues arising from Buyer’s failure to provide an internet connection, or a failure of monitoring arising from the same. (b) “Buyer Data” consists of the data related to the Products which Tesla makes available to Buyer via the Tesla app or any other performance monitoring provided by Tesla. Buyer Data shall be owned by Buyer. Tesla may use Buyer Data (i) to perform its obligations under this Agreement including any warranties, (ii) to improve Tesla's products and services generally (including by performing analyses on such information), and (iii) to aggregate with other data. Public disclosure of such information by Tesla is permitted if neither Buyer nor the owner or long-term occupant of the site where the Products are located (the “Site Host”) could reasonably be identified from the publicly disclosed information. (c) Any information obtained by Tesla through remote monitoring of the Products that is not Buyer Data shall be owned by Tesla (“Tesla Data”), shall be confidential information of Tesla, and shall not be required to be made available by Tesla to any person.
11. Maintenance & Operation. Tesla will provide Buyer with an initial copy of an applicable solar, storage or charging system operation and maintenance guide (as updated by Tesla from time to time, the “Manuals”). The Manuals provide Buyer with operation and maintenance instructions, answers to frequently asked questions, and service information. Buyer must cause the Products to be maintained in accordance with the Manuals (including by contracting with Tesla for maintenance services). In addition, Buyer must comply with the Manuals, to the extent the Manuals apply to Buyer’s activities at the Site.
12. Limited Warranties. The Products and installation work are covered by the following limited warranties. THESE
ARE THE ONLY EXPRESS WARRANTIES MADE IN CONNECTION WITH THE PRODUCTS AND INSTALLATION WORK. Any other warranties, remedies and conditions, whether oral, written, statutory, express or implied (including any warranties of merchantability and fitness for purpose, and any warranties against latent or hidden defects) are expressly disclaimed. If such warranties cannot be disclaimed, Tesla limits the duration of and remedies for such warranties to the durations and remedies described below.
Solar System The solar panels are covered by a warranty from their manufacturer. This warranty will cover defects for at least 10 years and will guarantee at least 80% of nameplate power capacity for at least 25 years. This warranty will be transferred to Buyer automatically when Tesla receives the Contract Price.
Inverter The inverter is covered by a warranty from its manufacturer. This warranty will cover defects for at least 10 years, and will be transferred to Buyer automatically when Tesla receives the Contract Price. If Buyer needs to replace the inverter after this warranty expires, Buyer can contact Tesla to discuss Tesla installing replacement at Buyer’s cost; or Buyer can work with a different service provider.
Storage System The Storage System is covered by the Tesla Limited Warranty applicable to the product and model purchased. By approving this Agreement, Buyer accepts the terms of the Tesla Limited Warranty for the applicable product, which can be obtained on our website or will be provided upon request.
In order to maintain the Tesla Limited Warranty, maintenance on the Storage System must be performed by Tesla, a Tesla affiliate or subcontractor, or a Tesla-certified maintenanceprovider.
Electric Vehicle
Charging System
The Electric Vehicle Charging System is covered by the Tesla Limited Warranty applicable to the product and model purchased. By approving this Agreement, Buyer accepts the terms of the Tesla Limited Warranty for the applicable product, which can be obtained on our website or will be provided upon request.
Workmanship Tesla warrants that (a) Tesla’s installation workmanship will be free from defects for 10 years from the date the Products are installed (or, in the case of main panel or structural upgrades, 1 year from the date those upgrades were performed); (b) Tesla’s installation workmanship will not invalidate the manufacturer’s warranty for the solar panels or inverter, or the applicable Tesla Limited Warranty; (c) all roof penetrations made by Tesla will be watertight for the longer of 10 years or until the end of any existing installation warranty for the roof; and (d) Tesla will not damage
9.1.b
Packet Pg. 148 Attachment: Exhibit 1 - Tesla Solar Order - Terms and Conditions (Solar System for Library) Commercial Energy Products Purchase Agreement
V2.6, 01/22/2021
Tesla, Inc.
3 13. Warranty Exclusions. The “Workmanship” warranty above does not cover any defect caused by (1) events beyond Tesla’s reasonable control, including but not limited to lightning, flood, earthquake, fire, excessive wind and other extreme weather events, accidents, abuse, misuse or negligence; (2) Buyer’s failure to operate or maintain the Products in accordance with the applicable owner’s manual(s); (3) strikes by balls or other objects, dirt, dust, bird excrement, animals, insects, foliage or algae growth; (4) roof leaks caused by ordinary wear and tear, or water entering around a fitting, accessory or other material not installed by Tesla; (5) any material or equipment connected to the Products that was not installed by Tesla; or (6) someone other than Tesla installing, altering, removing, re-installing or repairing any part of the Products unless that person does so in compliance with the applicable owner’s manual(s). The “Workmanship” warranty also does not cover (i) any defects in the equipment or components incorporated into Tesla’s work (such as breakers, electrical panels, softstart devices for HVAC equipment, etc.); (ii) pre-existing conditions at the Site, including but not limited to unpermitted conditions, improper electrical wiring, defects in the roof structure that cause it to sag over time, skylight or exhaust vent heights that are reduced by the Solar System, cracked or crumbling masonry, or inadequate attic ventilation; (iii) normal wear and tear or deterioration, or superficial defects, dents or marks that do not impact the performance or functionality/integrity of the Products; or (iv) theft or vandalism. The warranties for “Solar panels”, “Inverter” and “Storage System” (as applicable) above are not subject to the above exclusions, but are subject to other exclusions which are described in the relevant warranty document.
14. IP Indemnity.
(a) As used in this Section 14, “Representatives” means Buyer and Buyer’s affiliates, and their respective directors, officers, partners, members, shareholders, agents, employees, subcontractors, successors and assigns; “Losses” means damages and liabilities, including reasonable attorneys’ fees; and “Claim” means a claim, action, suit, proceedings, demand, investigation or assessment made or brought by any third party. (b) Tesla shall indemnify, defend and hold harmless Buyer and its Representatives from any Losses arising out of any Claim alleging that the Products infringe the intellectual property rights of a third party. However, Tesla shall have no obligation to indemnify Buyer or any of its Representatives to the extent the Claim arises out of: (a) use of the Products in combination with any other products, materials or equipment not expressly authorized by Tesla; or (b) any modifications or changes made to the Products other than by Tesla. If a Claim for infringement or alleged infringement of any intellectual property rights is made, Tesla may, at its own expense, (i) modify any or all of the intellectual property rights so as to avoid the infringement or the alleged infringement; or (ii) take such other action as Tesla deems reasonable to avoid or settle such Claim.
15. Limitation of Liability. Tesla and Buyer shall not be liable to one another for any indirect, special or consequential damages arising out of this Agreement. To the fullest extent permitted by law, Tesla and Buyer’s aggregate liability to one another under this Agreement is limited to the Contract Price. This Section 15 applies, without limitation, to any liability arising out of any Site survey performed by Tesla or its affiliate or subcontractor in connection with this Agreement. This Section 15 does not apply to Buyer or Tesla’s obligation to indemnify the other for third-party claims, as required under Section 14 or otherwise under applicable law.
16. Term; Breach; Remedies.
(a) This Agreement will continue in effect until Tesla has completed installation of the Products and received payment in full of the Contract Price, unless earlier terminated as permitted in Section 4 or this Section 16. (b) If Tesla or Buyer is in breach of this Agreement, upon thirty (30) days prior written notice and opportunity to cure, the non-defaulting party may terminate this Agreement; and with or without terminating this Agreement, may pursue any remedy it has under this Agreement or at law, including in Tesla’s case, repossession of the Products (if title has not yet transferred) and collection of all amounts due (including those past due, which will be charged 2% interest per annum). (c) Provisions of this Agreement which by their nature contemplate or govern performance or observance subsequent to the termination or expiration of this Agreement shall survive such termination or expiration until fully performed.
the Site during our installation of the Products. If Tesla breaches this workmanship warranty, Tesla will repair the defective work, roof penetration or damage at Tesla’s cost. If Tesla cannot do this itself, Tesla will pay for someone else to do it. Such repair work shall not extend the original warranty period, but the remainder of the original warranty period shall apply to the repair work.
9.1.b
Packet Pg. 149 Attachment: Exhibit 1 - Tesla Solar Order - Terms and Conditions (Solar System for Library) Commercial Energy Products Purchase Agreement
V2.6, 01/22/2021
Tesla, Inc.
4 17. Governing Law; Integration. This Agreement is governed by the laws of the State where the Products are installed.
The information at the links described above is part of this Agreement. Any other terms relating to the Products that are not contained or referred to in this Agreement are not binding on Tesla or Buyer.
18. Assignment. Tesla may, without need for Buyer’s consent, assign, mortgage, pledge or otherwise directly or indirectly assign this Agreement and/or its interests in this Agreement (a) as collateral in connection with its financing activities; and (B) to any third party (including any affiliate of Tesla) or any person succeeding to all or substantially all of the assets of Tesla; provided, that, in the case of assignments to a third party under clause (b), Tesla is not released from liability hereunder as a result of any assignment to an affiliate unless the assignee assumes Tesla’s obligations hereunder by binding written instrument.
19. Insurance. Tesla shall maintain, at its sole cost and expense, the following insurance coverage and shall, within a reasonable time of Buyer’s request, furnish to Buyer a certificate evidencing such coverage:
(a) Commercial General Liability Insurance (CGL). Tesla carries commercial general liability insurance with coverage amounts that meet or exceed those required by law. (b) Workers' Compensation Insurance. Tesla carries workers' compensation insurance for all employees in compliance with law.
20. Further Assurances. Tesla and Buyer shall each at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Agreement.
21. Arbitration. Any dispute arising from or relating to this Agreement shall first be promptly referred to the senior level management of the Parties for resolution. If Tesla and Buyer are unable to resolve any such dispute within 20 days after referral, then Tesla or Buyer may take such dispute to binding arbitration in accordance with the then-current Streamlined Arbitration Rules of the Judicial Arbitration and Mediation Services (“JAMS”). The existence, content and result of the arbitration shall be confidential and conducted by a single arbitrator in English and in Santa Clara, California, unless otherwise agreed by the Parties. Buyer and Tesla will each bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator may, in its discretion, award reasonable costs and fees to the prevailing party. Judgment upon the award rendered in the arbitration may be entered in any court of competent jurisdiction.
9.1.b
Packet Pg. 150 Attachment: Exhibit 1 - Tesla Solar Order - Terms and Conditions (Solar System for Library)