Agenda packet — Porterville City Council, October 18, 2022 (part 2 of 2)

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B. CONSULTANT hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this contract. (Choose either Option 1 or Option 2 if appropriate)
(Option 1 - Use paragraphs C & D below with paragraphs A & B above for PS&E contracts only) C. CONSULTANT hereby certifies that neither CONSULTANT, nor any firm affiliated with CONSULTANT will bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this contract. An affiliated firm is one, which is subject to the control of the same persons through joint-ownership, or otherwise.

D. Except for subconsultants whose services are limited to providing surveying or materials testing information, no subconsultant who has provided design services in connection with this contract shall be eligible to bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this contract.
(Option 2 - Use paragraphs C, D & E below with paragraphs A & B above for Construction Contract Administration contracts only)
C. CONSULTANT hereby certifies that neither CONSULTANT, its employees, nor any firm affiliated with CONSULTANT providing services on this project prepared the Plans, Specifications, and Estimate for any construction project included within this contract. An affiliated firm is one, which is subject to the control of the same persons through joint- ownership, or otherwise.

D. CONSULTANT further certifies that neither CONSULTANT, nor any firm affiliated with CONSULTANT, will bid on any construction subcontracts included within the construction contract. Additionally, CONSULTANT certifies that no person working under this contract is also employed by the construction contractor for any project included within this contract.

E. Except for subconsultants whose services are limited to materials testing, no subconsultant who is providing service on this contract shall have provided services on the design of any project included within this contract.

ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION (Verbatim) CONSULTANT warrants that this contract was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any LOCAL AGENCY employee. For breach or violation of this warranty, LOCAL AGENCY shall have the right in its discretion; to terminate the contract without liability; to pay only for the value of the work actually performed; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.

ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY STATE OR FEDERAL FUNDS FOR LOBBYING (Verbatim)
(Include this article in all contracts where federal funding will exceed $150,000. If less than $150,000 in federal funds will be expended on the contract; delete this article and re-number the notification article which follows.) A. CONSULTANT certifies to the best of his or her knowledge and belief that:

1. No state, federal or local agency appropriated funds have been paid, or will be paid by-or-on behalf of CONSULTANT to any person for influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the awarding of any state or federal contract; the making of any state or federal grant; the making of any state or federal loan; the entering into of any cooperative agreement, Local Assistance Procedures Manual EXHIBIT 10-R
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and the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement.

2. If any funds other than federal appropriated funds have been paid, or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this federal contract, grant, loan, or cooperative agreement; CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying”, in accordance with its instructions.

B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

C. CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly.

ARTICLE XVI STATEMENT OF COMPLIANCE
A. CONSULTANT’s signature affixed herein, and dated, shall constitute a certification under penalty of perjury under the laws of the State of California that CONSULTANT has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103.

B. During the performance of this Contract, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the 5applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full.

Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. (For contracts with Federal funding, add paragraphs C & D) C. The Consultant shall comply with regulations relative to Title VI (nondiscrimination in federally-assisted programs of the Department of Transportation – Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the state of California shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.

D. The Consultant, with regard to the work performed by it during the Agreement shall act in accordance with Title VI. Specifically, the Consultant shall not discriminate on the basis of race, color, national origin, religion, sex, age, or disability in the selection and retention of Subconsultants, including procurement of Local Assistance Procedures Manual EXHIBIT 10-R
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materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT’s Regulations, including employment practices when the Agreement covers a program whose goal is employment.

ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION
A. CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that CONSULTANT has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to LOCAL AGENCY.

B. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining CONSULTANT responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action.

C. Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal highway Administration.

ARTICLE XVIII FUNDING REQUIREMENTS
A. It is mutually understood between the parties that this contract may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the contract were executed after that determination was made.

B. This contract is valid and enforceable only, if sufficient funds are made available to LOCAL AGENCY for the purpose of this contract. In addition, this contract is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or LOCAL AGENCY governing board that may affect the provisions, terms, or funding of this contract in any manner.

C. It is mutually agreed that if sufficient funds are not appropriated, this contract may be amended to reflect any reduction in funds.

D. LOCAL AGENCY has the option to void the contract under the 30-day termination clause pursuant to Article VI, or by mutual agreement to amend the contract to reflect any reduction of funds.

ARTICLE XIX CHANGE IN TERMS
A. This contract may be amended or modified only by mutual written agreement of the parties.

B. CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by LOCAL AGENCY’s Contract Administrator.

C. There shall be no change in CONSULTANT’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this contract without prior written approval by LOCAL AGENCY’s Contract Administrator.

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ARTICLE XX DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION A. This contract is subject to 49 CFR, Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. Consultants who obtain DBE participation on this contract will assist Caltrans in meeting its federally mandated statewide overall DBE goal.

B. The goal for DBE participation for this contract is %. Participation by DBE consultant or subconsultants shall be in accordance with information contained in the Consultant Proposal DBE Commitment (Exhibit 10-O1), or in the Consultant Contract DBE Information (Exhibit 10-O2) attached hereto and incorporated as part of the Contract. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.

C. DBEs and other small businesses, as defined in 49 CFR, Part 26 are encouraged to participate in the performance of contracts financed in whole or in part with federal funds. CONSULTANT or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract.

CONSULTANT shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT-assisted agreements. Failure by CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as LOCAL AGENCY deems appropriate.

D. Any subcontract entered into as a result of this contract shall contain all of the provisions of this section.

E. A DBE firm may be terminated only with prior written approval from LOCAL AGENCY and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting LOCAL AGENCY consent for the termination, CONSULTANT must meet the procedural requirements specified in 49 CFR 26.53(f).

F. A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a CUF, evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the, contract is commensurate with the work it is actually performing, and other relevant factors.

G. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.

H. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its contract with its own work force, or the DBE subcontracts a greater portion of the work of the contract than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.

I. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime consultants shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.

J. Upon completion of the Contract, a summary of these records shall be prepared and submitted on the form entitled, “Final Report-Utilization of Disadvantaged Business Enterprise (DBE), First-Tier Subconsultants” CEM-2402F [Exhibit 17-F, of the LAPM], certified correct by CONSULTANT or CONSULTANT’s authorized representative and shall be furnished to the Contract Administrator with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty-five percent (25%) of Local Assistance Procedures Manual EXHIBIT 10-R
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the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to CONSULTANT when a satisfactory “Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subconsultants” is submitted to the Contract Administrator.

K. If a DBE subconsultant is decertified during the life of the contract, the decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the Contract, the subconsultant shall notify CONSULTANT in writing with the date of certification. Any changes should be reported to LOCAL AGENCY’s Contract Administrator within 30 days.

ARTICLE XXI CONTINGENT FEE
CONSULTANT warrants, by execution of this contract that no person or selling agency has been employed, or retained, to solicit or secure this contract upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, LOCAL AGENCY has the right to annul this contract without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.

ARTICLE XXII DISPUTES
(Choose either Option 1 or Option 2)
(Option 1 - Use paragraphs A through C below for all contracts without PS&E submittal) A. Any dispute, other than audit, concerning a question of fact arising under this contract that is not disposed of by agreement shall be decided by a committee consisting of LOCAL AGENCY’s Contract Administrator and (Insert Department Head or Official), who may consider written or verbal information submitted by CONSULTANT.

B. Not later than 30 days after completion of all work under the contract, CONSULTANT may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.

C. Neither the pendency of a dispute, nor its consideration by the committee will excuse CONSULTANT from full and timely performance in accordance with the terms of this contract. (Option 2 - Replace Paragraph B, above, with the following for contracts requiring the submission of PS&E) B. Not later than 30 days after completion of all deliverables necessary to complete the plans, specifications and estimate, CONSULTANT may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.

ARTICLE XXIII INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit LOCAL AGENCY, the state, and the FHWA if federal participating funds are used in this contract; to review and inspect the project activities and files at all reasonable times during the performance period of this contract including review and inspection on a daily basis.

ARTICLE XXIV SAFETY
(Use on all contracts regardless of funding source)
A. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by LOCAL Local Assistance Procedures Manual EXHIBIT 10-R
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AGENCY Safety Officer and other LOCAL AGENCY representatives. CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.

B. Pursuant to the authority contained in Section 591 of the Vehicle Code, LOCAL AGENCY has determined that such areas are within the limits of the project and are open to public traffic. CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code.

CONSULTANT shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.

C. Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Article. (Add to all contracts, which may require trenching of five feet or deeper) D. CONSULTANT must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in California Labor Code Sections 6500 and 6705, prior to the initiation of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five feet or deeper.

ARTICLE XXV INSURANCE
(Choose either Option 1 or Option 2)
(Option 1 - for Contracts with a scope of services that may require the consultant or subconsultant to work within the operating state or Local Agency Highway Right of Way; where there would be exposure to public traffic or construction operations)
A. Prior to commencement of the work described herein, CONSULTANT shall furnish LOCAL AGENCY a Certificate of Insurance stating that there is general comprehensive liability insurance presently in effect for CONSULTANT with a combined single limit (CSL) of not less than one million dollars ($1,000,000) per occurrence.

B. The Certificate of Insurance will provide:

1. That the insurer will not cancel the insured’s coverage without 30 days prior written notice to LOCAL AGENCY.

2. That LOCAL AGENCY, its officers, agents, employees, and servants are included as additional insureds, but only insofar as the operations under this contract are concerned.

3. That LOCAL AGENCY will not be responsible for any premiums or assessments on the policy.

C. CONSULTANT agrees that the bodily injury liability insurance herein provided for, shall be in effect at all times during the term of this contract. In the event said insurance coverage expires at any time or times during the term of this contract, CONSULTANT agrees to provide at least thirty (30) days prior notice to said expiration date; and a new Certificate of Insurance evidencing insurance coverage as provided for herein, for not less than either the remainder of the term of the contract, or for a period of not less than one (1) year.

New Certificates of Insurance are subject to the approval of LOCAL AGENCY. In the event CONSULTANT fails to keep in effect at all times insurance coverage as herein provided, LOCAL AGENCY may, in addition to any other remedies it may have, terminate this contract upon occurrence of such event. (Option 2 - For Contracts with a scope of services that will not require the Consultant or subconsultant to work within the operating State or LOCAL AGENCY Highway Right of Way where there would be exposure to public traffic or construction Consultant operations)
CONSULTANT is not required to show evidence of general comprehensive liability insurance.

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ARTICLE XXVI OWNERSHIP OF DATA
A. Upon completion of all work under this contract, ownership and title to all reports, documents, plans, specifications, and estimates produce as part of this contract will automatically be vested in LOCAL AGENCY; and no further agreement will be necessary to transfer ownership to LOCAL AGENCY.

CONSULTANT shall furnish LOCAL AGENCY all necessary copies of data needed to complete the review and approval process.

B. It is understood and agreed that all calculations, drawings and specifications, whether in hard copy or machine-readable form, are intended for one-time use in the construction of the project for which this contract has been entered into.

C. CONSULTANT is not liable for claims, liabilities, or losses arising out of, or connected with the modification, or misuse by LOCAL AGENCY of the machine-readable information and data provided by CONSULTANT under this contract; further, CONSULTANT is not liable for claims, liabilities, or losses arising out of, or connected with any use by LOCAL AGENCY of the project documentation on other projects for additions to this project, or for the completion of this project by others, except only such use as many be authorized in writing by CONSULTANT.

D. Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27, Subpart 27.3 - Patent Rights under Government Contracts for federal-aid contracts).

E. LOCAL AGENCY may permit copyrighting reports or other agreement products. If copyrights are permitted; the agreement shall provide that the FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.

ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION CONTRACTOR A. If claims are filed by LOCAL AGENCY’s construction contractor relating to work performed by CONSULTANT’s personnel, and additional information or assistance from CONSULTANT’s personnel is required in order to evaluate or defend against such claims; CONSULTANT agrees to make its personnel available for consultation with LOCAL AGENCY’S construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.

B. CONSULTANT’s personnel that LOCAL AGENCY considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from LOCAL AGENCY.

Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT’s personnel services under this contract.

C. Services of CONSULTANT’s personnel in connection with LOCAL AGENCY’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this contract in order to resolve the construction claims.

ARTICLE XXVIII CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL AGENCY’s operations, which are designated confidential by LOCAL AGENCY and made available to CONSULTANT in order to carry out this contract, shall be protected by CONSULTANT from unauthorized use and disclosure.

B. Permission to disclose information on one occasion, or public hearing held by LOCAL AGENCY relating to the contract, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.

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C. CONSULTANT shall not comment publicly to the press or any other media regarding the contract or LOCAL AGENCY’s actions on the same, except to LOCAL AGENCY’s staff, CONSULTANT’s own personnel involved in the performance of this contract, at public hearings or in response to questions from a Legislative committee.

D. CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this contract without prior review of the contents thereof by LOCAL AGENCY, and receipt of LOCAL AGENCY’S written permission.

E. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article. (For PS&E contracts add paragraph F, below, to paragraphs A through E, above) F. All information related to the construction estimate is confidential, and shall not be disclosed by CONSULTANT to any entity other than LOCAL AGENCY.

ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code Section 10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two-year period, because of CONSULTANT’s failure to comply with an order of a federal court that orders CONSULTANT to comply with an order of the National Labor Relations Board.

ARTICLE XXX EVALUATION OF CONSULTANT
CONSULTANT’s performance will be evaluated by LOCAL AGENCY. A copy of the evaluation will be sent to CONSULTANT for comments. The evaluation together with the comments shall be retained as part of the contract record.

ARTICLE XXXI RETENTION OF FUNDS
A. Any subcontract entered into as a result of this Contract shall contain all of the provisions of this section. (Local agency to include either B, C, or D below; delete the other two) B. No retainage will be withheld by the Agency from progress payments due the prime consultant. Retainage by the prime consultant or subconsultants is prohibited, and no retainage will be held by the prime consultant from progress due subconsultants. Any violation of this provision shall subject the violating prime consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the prime consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE prime consultants and subconsultants.

C. No retainage will be held by the Agency from progress payments due the prime consultant. Any retainage held by the prime consultant or subconsultants from progress payments due subconsultants shall be promptly paid in full to subconsultants within 30 days after the subconsultant’s work is satisfactorily completed.

Federal law (49 CFR 26.29) requires that any delay or postponement of payment over the 30 days may take place only for good cause and with the Agency’s prior written approval. Any violation of this provision shall subject the violating prime consultant or subconsultant to the penalties, sanctions and other remedies specified in Section 7108.5 of the Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the prime consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime consultant, Local Assistance Procedures Manual EXHIBIT 10-R
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deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE prime consultant and subconsultants.

D. The Agency shall hold retainage from the prime consultant and shall make prompt and regular incremental acceptances of portions, as determined by the Agency, of the contract work, and pay retainage to the prime consultant based on these acceptances. The prime consultant, or subconsultant, shall return all monies withheld in retention from a subconsultant within thirty (30) days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the agency. Federal law (49 CFR 26.29) requires that any delay or postponement of payment over thirty (30) days may take place only for good cause and with the agency’s prior written approval. Any violation of this provision shall subject the violating prime consultant or subconsultant to the penalties, sanctions and other remedies specified in Section 7108.5 of the Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the prime consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime Consultant, deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE prime consultant and subconsultants.

ARTICLE XXXII NOTIFICATION
All notices hereunder and communications regarding interpretation of the terms of this contract and changes thereto, shall be effected by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows:

CONSULTANT:
(Consultant)
(Name)
(Address)
, Project Manager
LOCAL AGENCY:
(Local Agency)
(Name)
(Address)
, Contract Administrator
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ARTICLE XXXIII CONTRACT
The two parties to this contract, who are the before named CONSULTANT and the before named LOCAL AGENCY, hereby agree that this contract constitutes the entire agreement which is made and concluded in duplicate between the two parties. Both of these parties for and in consideration of the payments to be made, conditions mentioned, and work to be performed; each agree to diligently perform in accordance with the terms and conditions of this contract as evidenced by the signatures below.

ARTICLE XXXIV SIGNATURES
(Name of Signer) (Name of Signer)
Date:

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EXHIBIT 10-H1 COST PROPOSAL Page 1 of 3

ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS (DESIGN, ENGINEERING AND ENVIRONMENTAL STUDIES)
Note: Mark-ups are Not Allowed Prime Consultant Subconsultant 2 nd Tier Subconsultant
Consultant
Project No.

DIRECT LABOR
Contract No. Date
Classification/Title Name Hours Actual Hourly Rate Total (Project Manager)* $ $
(Sr. Civil Engineer) $ $
(Envir. Scientist) $ $
(Inspector)** $ $

LABOR COSTS
a) Subtotal Direct Labor Costs $
b) Anticipated Salary Increases (see page 2 for calculation) $ c) TOTAL DIRECT LABOR COSTS [(a) + (b)] $

INDIRECT COSTS
d) Fringe Benefits (Rate: %) e) Total Fringe Benefits [(c) x (d)] $ Overhead (Rate: %) g) Overhead [(c) x (f)] $
h) General and Administrative (Rate: %) i) Gen & Admin [(c) x (h)] $ j) TOTAL INDIRECT COSTS [(e) + (g) + (i)] $
FIXED FEE k) TOTAL FIXED FEE [(c) + (j)] x fixed fee %] $ l) CONSULTANT’S OTHER DIRECT COSTS (ODC) – ITEMIZE (Add additional pages if necessary) Description of Item Quantity Unit Unit Cost Total
Mileage Costs $ $
Equipment Rental and Supplies $ $
Permit Fees $ $
Plan Sheets $ $
Test $ $
l) TOTAL OTHER DIRECT COSTS $
m) SUBCONSULTANTS’ COSTS (Add additional pages if necessary) Subconsultant 1: $
Subconsultant 2: $
Subconsultant 3: $
Subconsultant 4: $
m) TOTAL SUBCONSULTANTS’ COSTS $
n) TOTAL OTHER DIRECT COSTS INCLUDING SUBCONSULTANTS [(l)+(m)] $ TOTAL COST [(c) + (j) + (k) + (n)] $
NOTES:

1. Key personnel must be marked with an asterisk (*) and employees that are subject to prevailing wage requirements must be marked with two asterisks (**). All costs must comply with the Federal cost principles. Subconsultants will provide their own cost proposals.

2. The cost proposal format shall not be amended. Indirect cost rates shall be updated on an annual basis in accordance with the ☐ ☐ ☐
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consultant’s annual accounting period and established by a cognizant agency or accepted by Caltrans.

3. Anticipated salary increases calculation (page 2) must accompany.

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EXHIBIT 10-H1 COST PROPOSAL Page 2 of 3

ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS (CALCULATIONS FOR ANTICIPATED SALARY INCREASES)

1. Calculate Average Hourly Rate for 1st year of the contract (Direct Labor Subtotal divided by total hours) Direct Labor
Subtotal per Cost
Proposal
Total Hours per
Cost Proposal
Avg
Hourly
Rate
5 Year
Contract
Duration
$250,000.00 5000 = $50.00 Year 1 Avg
Hourly Rate

2. Calculate hourly rate for all years (Increase the Average Hourly Rate for a year by proposed escalation %) Avg Hourly Rate Proposed Escalation
Year 1 $50.00 + 2% = $51.00 Year 2 Avg Hourly Rate
Year 2 $51.00 + 2% = $52.02 Year 3 Avg Hourly Rate
Year 3 $52.02 + 2% = $53.06 Year 4 Avg Hourly Rate
Year 4 $53.06 + 2% = $54.12 Year 5 Avg Hourly Rate

3. Calculate estimated hours per year (Multiply estimate % each year by total hours) Estimated % Completed
Each Year
Total Hours per Cost
Proposal
Total Hours per
Year
Year 1 20.0% * 5000 = 1000 Estimated Hours Year 1
Year 2 40.0% * 5000 = 2000 Estimated Hours Year 2
Year 3 15.0% * 5000 = 750 Estimated Hours Year 3
Year 4 15.0% * 5000 = 750 Estimated Hours Year 4
Year 5 10.0% * 5000 = 500 Estimated Hours Year 5
Total 100% Total = 5000

4. Calculate Total Costs including Escalation (Multiply Average Hourly Rate by the number of hours) Avg Hourly Rate
(calculated above)
Estimated hours
(calculated above)
Cost per
Year
Year 1 $50.00 * 1000 = $50,000.00 Estimated Hours Year 1 Year 2 $51.00 * 2000 = $102,000.00 Estimated Hours Year 2 Year 3 $52.02 * 750 = $39,015.00 Estimated Hours Year 3 Year 4 $53.06 * 750 = $39,795.30 Estimated Hours Year 4 Year 5 $54.12 * 500 = $27,060.80 Estimated Hours Year 5 Total Direct Labor Cost with Escalation = $257,871.10
Direct Labor Subtotal before Escalation = $250,000.00
Estimated total of Direct Labor Salary
Increase
= Transfer to Page 1
$7,871.10
NOTES:

1. This is not the only way to estimate salary increases. Other methods will be accepted if they clearly indicate the % increase, the # of years of the contract, and a breakdown of the labor to be performed each year.

2. An estimation that is based on direct labor multiplied by salary increase % multiplied by the # of years is not acceptable. (i.e. $250,000 x 2% x 5 yrs = $25,000 is not an acceptable methodology)

3. This assumes that one year will be worked at the rate on the cost proposal before salary increases are granted.

4. Calculations for anticipated salary escalation must be provided.

Local Assistance Procedures Manual EXHIBIT 10-H1
Cost Proposal

Page 4 of 9 ends

January 2018
EXHIBIT 10-H1 COST PROPOSAL Page 3 of 3
Certification of Direct Costs:

I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements:

1. Generally Accepted Accounting Principles (GAAP)

2. Terms and conditions of the contract

3. Title 23 United States Code Section 112 - Letting of Contracts

4. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures

5. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service

6. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable) All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements. Costs that are noncompliant with the federal and state requirements are not eligible for reimbursement.

Local governments are responsible for applying only cognizant agency approved or Caltrans accepted Indirect Cost Rate(s).

Prime Consultant or Subconsultant Certifying:
*An individual executive or financial officer of the consultant’s or subconsultant’s organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.

List services the consultant is providing under the proposed contract:

Name: Title *:

Signature : Date of Certification (mm/dd/yyyy):

Email: Phone Number:

Address:

Local Assistance Procedures Manual EXHIBIT 10-H2
Cost Proposal

Page 5 of 9 ends

January 2018
Note: Mark-ups are Not Allowed
EXHIBIT 10-H2 COST PROPOSAL Page 1 of 3

SPECIFIC RATE OFCOMPENSATION (USE FOR ON-CALL OR AS-NEEDED CONTRACTS) (CONSTRUCTION ENGINEERING AND INSPECTION CONTRACTS)
Consultant ☐ Prime Consultant ☐ Subconsultant 2
nd Tier Subconsultant
Project No. Contract No. Participation Amount $ Date
For Combined Rate
Fringe Benefit % + General &Administrative % = Combined ICR% OR
For Home Office Rate
Fringe Benefit % + General &Administrative % = Home Office ICR% For Field Office Rate
Fringe Benefit % + General &Administrative % = Field Office ICR% Fee = %

BILLING INFORMATION CALCULATION INFORMATION
Name/Job Title/Classification1 Hourly Billing Rates2
Straight3 OT(1.5x) OT(2x)
Effective Date of Hourly Rate
From To
Actual or Avg.

Hourly Rate4
% or $
Increase
Hourly Range -
for Classifications Only
John Doe – Project Manager * $0.00 $0.00 $0.00 01/01/2016 12/31/2016 $0.00 Not Applicable Civil Engineer II $0.00 $0.00 $0.00 01/01/2017 12/31/2017 $0.00 0.0% $0.00 $0.00 $0.00 01/01/2018 12/31/2018 $0.00 0.0%
Sue Jones – Construction $0.00 $0.00 $0.00 01/01/2016 12/31/2016 $0.00 Not Applicable Engineer/Inspector $0.00 $0.00 $0.00 01/01/2017 12/31/2017 $0.00 0.0% Engineer I $0.00 $0.00 $0.00 01/01/2018 12/31/2018 $0.00 0.0% Buddy Black – Claims Engineer $0.00 $0.00 $0.00 01/01/2016 12/31/2016 $0.00 Not Applicable Engineer III $0.00 $0.00 $0.00 01/01/2017 12/31/2017 $0.00 0.0% $0.00 $0.00 $0.00 01/01/2018 12/31/2018 $0.00 0.0%
Land Surveyor ** $0.00 $0.00 $0.00 01/01/2016 12/31/2016 $0.00 $00 - $00 $0.00 $0.00 $0.00 01/01/2017 12/31/2017 $0.00 0.0% $00 - $00 $0.00 $0.00 $0.00 01/01/2018 12/31/2018 $0.00 0.0% $00 - $00 Technician $0.00 $0.00 $0.00 01/01/2016 12/31/2016 $0.00 $00 - $00 ☐
Local Assistance Procedures Manual EXHIBIT 10-H2
Cost Proposal

Page 6 of 9 ends

January 2018
$0.00 $0.00 $0.00 01/01/2017 12/31/2017 $0.00 0.0% $00 - $00 $0.00 $0.00 $0.00 01/01/2018 12/31/2018 $0.00 0.0% $00 - $00 (Add pages as necessary)
Local Assistance Procedures Manual EXHIBIT 10-H2
Cost Proposal

Page 7 of 9 ends

January 2018
NOTES:

1. Key personnel must be marked with an asterisk (*) and employees that are subject to prevailing wage requirements must be marked with two asterisks (**).All costs must comply with the Federal cost principles. Subconsultants will provide their own cost proposals.

2. The cost proposal format shall not be amended.

3. Billing rate = actual hourly rate * (1+ ICR) * (1+ Fee). Indirect cost rates shall be updated on an annual basis in accordance with the consultant’s annual accounting period and established by a cognizant agency or accepted by Caltrans. All costs must comply with the Federal cost principles for reimbursement.

4. For named employees and key personnel enter the actual hourly rate. For classifications only, enter the Average Hourly Rate for that classification.

EXHIBIT 10-H2 COST PROPOSAL Page 2 of 3

SPECIFIC RATE OFCOMPENSATION (USE FOR ON-CALL OR AS-NEEDED CONTRACTS) (CONSTRUCTION ENGINEERING AND INSPECTION CONTRACTS)
Consultant ☐ Prime Consultant ☐ Subconsultant
Project No. Contract No. Date
SCHEDULE OF OTHER DIRECT COST ITEMS (Add additional pages as necessary) Description of Item Quantity Unit Unit Cost Total
Mileage Costs $ $
Equipment Rental and Supplies $ $
Permit Fees $ $
Plan Sheets $ $
Test $ $
Vehicle $ $
Subconsultant 1: $
Subconsultant 2: $
Subconsultant 3: $
Subconsultant 4: $
Subconsultant 5: $
Note: Add additional pages if necessary.

NOTES:

1. List other direct cost items with estimated costs. These costs should be competitive in their respective industries and supported with appropriate documentation.

2. Proposed ODC items should be consistently billed regardless of client and contract type.

3. Items when incurred for the same purpose, in like circumstance, should not be included in any indirect cost pool or in the overhead rate.

4. Items such as special tooling, will be reimbursed at actual cost with supporting documentation (invoice).

5. Items listed above that would be considered "tools of the trade" are not reimbursable as other direct cost.

6. Travel related costs should be pre-approved by the contracting agency and shall not exceed current State Department of Personnel Administration rules.

Local Assistance Procedures Manual EXHIBIT 10-H2
Cost Proposal

Page 8 of 9 ends

January 2018

7. If mileage is claimed, the rate should be properly supported by the consultant's calculation of their actual costs for company vehicles. In addition, the miles claimed should be supported by mileage logs.

8. If a consultant proposes rental costs for a vehicle, the company must demonstrate that this is its standard procedure for all of their contracts and that they do not own any vehicles that could be used for the same purpose.

9. The cost proposal format shall not be amended. All costs must comply with the Federal cost principles.

10. Add additional pages if necessary.

11. Subconsultants must provide their own cost proposals.

Local Assistance Procedures Manual EXHIBIT 10-H1
Cost Proposal

Page 9 of 9 ends

January 2018
EXHIBIT 10-H2 COST PROPOSAL Page 3 of 3
Certification of Direct Costs:

7. Generally Accepted Accounting Principles (GAAP)

8. Terms and conditions of the contract

9. Title 23 United States Code Section 112 - Letting of Contracts

10. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures

11. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service

12. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable) All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements. Costs that are noncompliant with the federal and state requirements are not eligible for reimbursement.

Prime Consultant or Subconsultant Certifying:
* An individual executive or financial officer of the consultant’s or subconsultant’s organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.

List services the consultant is providing under the proposed contract:

Name: Title *:

Signature : Date of Certification (mm/dd/yyyy):

Email: Phone Number:

Address:

Local Assistance Procedures Manual EXHBIT 10-H3
Cost Proposal

Page 10 of 9 ends

January 2018
EXHIBIT 10-H3 COST PROPOSAL Page 1 of 2

COST PER UNIT OF WORK CONTRACTS
(GEOTECHNICAL AND MATERIAL TESTING)
Note: Mark-ups are Not Allowed ☐ Prime Consultant ☐ Subconsultant ☐ 2 nd Tier Subconsultant
Consultant
Project No. Contract No. Date
Unit/Item of Work:
(Example: Log of Test Boring for Soils Report, or ADL Testing for Hazardous Waste Material Study) Include as many Items as necessary.

DIRECT LABOR
Professional (Classification)*
Sub-professional/Technical**
Hours Billing Hourly Rate ($) Total ($)
EQUIPMENT 1 (with Operator)
EQUIPMENT 2 (with Operator)
Consultant’s Other Direct Costs (ODC) – Itemize:

Description of Item Quantity Unit Unit Cost Total
ODC Example: Travel/Mileage Costs $ $
ODC Example: Mobilization/De-mobilization $ $
ODC Example: Supplies/Consumables $ $
ODC Example: Report $ $
ODC (List more ODCs as applicable) $ $
Subconsultant 1: $
Subconsultant 2: $
Subconsultant 3: $
Subconsultant 4: $
Subconsultant 5: $
Note: Attach additional pages if necessary.

TOTAL COST PER UNIT OF WORK $
NOTES:

2. Hourly billing rates should include prevailing wage rates and be consistent with publicly advertised rates charged to all clients (Commercial, Private or Public).

3. Mobilization/De-mobilization is based on site location and number and frequency of tests/items.

4. ODC items shall be based on actual costs and supported by historical data and other documentation.

5. ODC items that would be considered “tools of the trade” are not reimbursable.

6. Billing Hourly Rates must be actual, allowable, and reasonable.

Local Assistance Procedures Manual EXHBIT 10-H3
Cost Proposal

Page 11 of 9 ends

January 2018
EXHIBIT 10-H3 COST PROPOSAL Page 2 of 2
Certification of Direct Costs:

13. Generally Accepted Accounting Principles (GAAP)

14. Terms and conditions of the contract

15. Title 23 United States Code Section 112 - Letting of Contracts

16. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures

17. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service

18. 48 Code of Federal Regulation Part 9904 - Cost Accounting Standards Board (when applicable) All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements. Costs that are noncompliant with the federal and state requirements are not eligible for reimbursement.

Prime Consultant or Subconsultant Certifying:
* An individual executive or financial officer of the consultant’s or subconsultant’s organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.

List services the consultant is providing under the proposed contract:

Name: Title*:

Signature : Date of Certification (mm/dd/yyyy):

Email: Phone Number:

Address:

Local Assistance Procedures Manual EXHBIT 10-I
Notice to Proposers DBE Information

Page 1 of 3 ends

LPP 13-01 May 8, 2013
EXHIBIT 10-I NOTICE TO PROPOSERS DBEINFORMATION
The Agency has established a DBE goal for this Contract of % OR
The Agency has not established a goal for this Contract. However, proposers are encouraged to obtain DBE participation for this contract.

1. TERMS AS USED IN THIS DOCUMENT
 The term “Disadvantaged Business Enterprise” or “DBE” means a for-profit small business concern owned and controlled by a socially and economically disadvantaged person(s) as defined in Title 49, Code of Federal Regulations (CFR), Part 26.5.
 The term “Agreement” also means “Contract.”
 Agency also means the local entity entering into this contract with the Contractor or Consultant.  The term “Small Business” or “SB” is as defined in 49 CFR 26.65.

2. AUTHORITY AND RESPONSIBILITY
A. DBEs and other small businesses are strongly encouraged to participate in the performance of Contracts financed in whole or in part with federal funds (See 49 CFR 26, “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”). The Consultant must ensure that DBEs and other small businesses have the opportunity to participate in the performance of the work that is the subject of this solicitation and should take all necessary and reasonable steps for this assurance. The proposer must not discriminate on the basis of race, color, national origin, or sex in the award and performance of subcontracts.

B. Proposers are encouraged to use services offered by financial institutions owned and controlled by DBEs.

3. SUBMISSION OF DBE INFORMATION
If there is a DBE goal on the contract, Exhibit 10-O1 Consultant Proposal DBE Commitment must be included in the Request for Proposal. In order for a proposer to be considered responsible and responsive, the proposer must make good faith efforts to meet the goal established for the contract. If the goal is not met, the proposer must document adequate good faith efforts. All DBE participation will be counted towards the contract goal; therefore, all DBE participation shall be collected and reported.

Exhibit 10-O2 Consultant Contract DBE Information must be included with the Request for Proposal. Even if no DBE participation will be reported, the successful proposer must execute and return the form.

4. DBE PARTICIPATION GENERAL INFORMATION
It is the proposer’s responsibility to be fully informed regarding the requirements of 49 CFR, Part 26, and the Department’s DBE program developed pursuant to the regulations. Particular attention is directed to the following:

A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be certified through the California Unified Certification Program (CUCP).

Local Assistance Procedures Manual EXHBIT 10-I
Notice to Proposers DBE Information

Page 2 of 3 ends

LPP 13-01 May 8, 2013
B. A certified DBE may participate as a prime consultant, subconsultant, joint venture partner, as a vendor of material or supplies, or as a trucking company.

C. A DBE proposer not proposing as a joint venture with a non-DBE, will be required to document one or a combination of the following:

1. The proposer is a DBE and will meet the goal by performing work with its own forces.

2. The proposer will meet the goal through work performed by DBE subconsultants, suppliers or trucking companies.

3. The proposer, prior to proposing, made adequate good faith efforts to meet the goal.

D. A DBE joint venture partner must be responsible for specific contract items of work or clearly defined portions thereof. Responsibility means actually performing, managing, and supervising the work with its own forces. The DBE joint venture partner must share in the capital contribution, control, management, risks and profits of the joint venture commensurate with its ownership interest.

E. A DBE must perform a commercially useful function pursuant to 49 CFR 26.55, that is, a DBE firm must be responsible for the execution of a distinct element of the work and must carry out its responsibility by actually performing, managing and supervising the work.

F. The proposer shall list only one subconsultant for each portion of work as defined in their proposal and all DBE subconsultants should be listed in the bid/cost proposal list of subconsultants.

G. A prime consultant who is a certified DBE is eligible to claim all of the work in the Contract toward the DBE participation except that portion of the work to be performed by non-DBE subconsultants.

5. RESOURCES
A. The CUCP database includes the certified DBEs from all certifying agencies participating in the CUCP. If you believe a firm is certified that cannot be located on the database, please contact the Caltrans Office of Certification toll free number 1-866-810-6346 for assistance.

B. Access the CUCP database from the Department of Transportation, Office of Business and Economic Opportunity Web site at: http://www.dot.ca.gov/hq/bep/.

1. Click on the link in the left menu titled Disadvantaged Business Enterprise;

2. Click on Search for a DBE Firm link;

3. Click on Access to the DBE Query Form located on the first line in the center of the page.

Searches can be performed by one or more criteria. Follow instructions on the screen.

6. MATERIALS OR SUPPLIES PURCHASED FROM DBES COUNT TOWARDS THE DBE GOAL UNDER THE FOLLOWING CONDITIONS:

A. If the materials or supplies are obtained from a DBE manufacturer, count 100 percent of the cost of the materials or supplies. A DBE manufacturer is a firm that operates or maintains a factory, or establishment that produces on the premises the materials, supplies, articles, or equipment required under the Contract and of the general character described by the specifications.

B. If the materials or supplies purchased from a DBE regular dealer, count 60 percent of the cost of the materials or supplies. A DBE regular dealer is a firm that owns, operates or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the Contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. To be a DBE regular dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the Local Assistance Procedures Manual EXHBIT 10-I
Notice to Proposers DBE Information

Page 3 of 3 ends

LPP 13-01 May 8, 2013
purchase and sale or lease of the products in question. A person may be a DBE regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone or asphalt without owning, operating or maintaining a place of business provided in this section.

C. If the person both owns and operates distribution equipment for the products, any supplementing of regular dealers’ own distribution equipment shall be, by a long-term lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers, brokers, manufacturers’ representatives, or other persons who arrange or expedite transactions are not DBE regular dealers within the meaning of this section.

D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor a regular dealer, will be limited to the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, or fees or transportation charges for the delivery of materials or supplies required on the job site, provided the fees are reasonable and not excessive as compared with fees charged for similar services.

Local Assistance Procedures Manual Exhibit 10-O1
Consultant Proposal DBE Commitment

Page 1 of 2 ends

July 23, 2015
EXHIBIT 10-O1 CONSULTANT PROPOSAL DBE COMMITMENT

1. Local Agency: 2. Contract DBE Goal:

3. Project Description:

4. Project Location:

5. Consultant's Name: 6. Prime Certified DBE: 

7. Description of Work, Service, or Materials
Supplied

8. DBE
Certification
Number

9. DBE Contact Information 10. DBE %
Local Agency to Complete this Section

11. TOTAL CLAIMED DBE PARTICIPATION %

17. Local Agency Contract Number:

18. Federal-Aid Project Number:

19. Proposed Contract Execution Date:

Local Agency certifies that all DBE certifications are valid and information on this form is complete and accurate.

IMPORTANT: Identify all DBE firms being claimed for credit, regardless of tier. Written confirmation of each listed DBE is required.

20. Local Agency Representative's Signature 21. Date 12. Preparer's Signature 13. Date

22. Local Agency Representative's Name 23. Phone 14. Preparer's Name 15. Phone

24. Local Agency Representative's Title 16. Preparer's Title DISTRIBUTION: Original – Included with consultant’s proposal to local agency.

ADA Notice: For individuals with sensory disabilities, this document is available in alternate formats. For information call (916) 654-6410 or TDD (916) 654- 3880 or write Records and Forms Management, 1120 N Street, MS-89, Sacramento, CA 95814.

Local Assistance Procedures Manual Exhibit 10-O1
Consultant Proposal DBE Commitment

Page 2 of 2 ends

July 23, 2015
INSTRUCTIONS – CONSULTANT PROPOSAL DBE COMMITMENT

CONSULTANT SECTION

1. Local Agency - Enter the name of the local or regional agency that is funding the contract.

2. Contract DBE Goal - Enter the contract DBE goal percentage as it appears on the project advertisement.

3. Project Description - Enter the project description as it appears on the project advertisement (Bridge Rehab, Seismic Rehab, Overlay, Widening, etc.).

4. Project Location - Enter the project location as it appears on the project advertisement.

5. Consultant’s Name - Enter the consultant’s firm name.

6. Prime Certified DBE - Check box if prime contractor is a certified DBE.

7. Description of Work, Services, or Materials Supplied - Enter description of work, services, or materials to be provided. Indicate all work to be performed by DBEs including work performed by the prime consultant’s own forces, if the prime is a DBE. If 100% of the item is not to be performed or furnished by the DBE, describe the exact portion to be performed or furnished by the DBE. See LAPM Chapter 9 to determine how to count the participation of DBE firms.

8. DBE Certification Number - Enter the DBE’s Certification Identification Number. All DBEs must be certified on the date bids are opened.

9. DBE Contact Information - Enter the name, address, and phone number of all DBE subcontracted consultants.

Also, enter the prime consultant’s name and phone number, if the prime is a DBE.

10. DBE % - Percent participation of work to be performed or service provided by a DBE. Include the prime consultant if the prime is a DBE. See LAPM Chapter 9 for how to count full/partial participation.

11. Total Claimed DBE Participation % - Enter the total DBE participation claimed. If the total % claimed is less than item “Contract DBE Goal,” an adequately documented Good Faith Effort (GFE) is required (see Exhibit 15-H DBE Information - Good Faith Efforts of the LAPM).

12. Preparer’s Signature - The person completing the DBE commitment form on behalf of the consultant’s firm must sign their name.

13. Date - Enter the date the DBE commitment form is signed by the consultant’s preparer.

14. Preparer’s Name - Enter the name of the person preparing and signing the consultant’s DBE commitment form.

15. Phone - Enter the area code and phone number of the person signing the consultant’s DBE commitment form.

16. Preparer’s Title - Enter the position/title of the person signing the consultant’s DBE commitment form.

LOCAL AGENCY SECTION

17. Local Agency Contract Number - Enter the Local Agency contract number or identifier.

18. Federal-Aid Project Number - Enter the Federal-Aid Project Number.

19. Proposed Contract Execution Date - Enter the proposed contract execution date.

20. Local Agency Representative’s Signature - The person completing this section of the form for the Local Agency must sign their name to certify that the information in this and the Consultant Section of this form is complete and accurate.

21. Date - Enter the date the DBE commitment form is signed by the Local Agency Representative.

22. Local Agency Representative’s Name - Enter the name of the Local Agency Representative certifying the consultant’s DBE commitment form.

23. Phone - Enter the area code and phone number of the person signing the consultant’s DBE commitment form.

24. Local Agency Representative Title - Enter the position/title of the Local Agency Representative certifying the consultant’s DBE commitment form.

Local Assistance Procedures Manual Exhibit 10-O2
Consultant Contract DBE Commitment

Page 1 of 2 ends

July 23, 2015
EXHIBIT 10-O2 CONSULTANT CONTRACT DBE COMMITMENT

10. Description of Work, Service, or Materials
Supplied

11. DBE
Certification
Number

12. DBE Contact Information

13. DBE
Dollar
Amount
Local Agency to Complete this Section

14. TOTAL CLAIMED DBE PARTICIPATION
$

20. Local Agency Contract
Number:
%

21. Federal-Aid Project Number:

22. Contract Execution
Date:

Local Agency certifies that all DBE certifications are valid and information on this form is complete and accurate.

IMPORTANT: Identify all DBE firms being claimed for credit, regardless of tier. Written confirmation of each listed DBE is required.

23. Local Agency Representative's Signature 24. Date 15. Preparer's Signature 16. Date

25. Local Agency Representative's Name 26. Phone 17. Preparer's Name 18. Phone

27. Local Agency Representative's Title 19. Preparer's Title DISTRIBUTION: 1. Original – Local Agency

2. Copy – Caltrans District Local Assistance Engineer (DLAE). Failure to submit to DLAE within 30 days of contract execution may result in de-obligation of federal funds on contract.

1. Local Agency: 2. Contract DBE Goal:

3. Project Description:

4. Project Location:

5. Consultant's Name: 6. Prime Certified DBE:  7. Total Contract Award Amount:

8. Total Dollar Amount for ALL Subconsultants: 9. Total Number of ALL Subconsultants:

Local Assistance Procedures Manual Exhibit 10-O2
Consultant Contract DBE Commitment

Page 2 of 2 ends

July 23, 2015
INSTRUCTIONS – CONSULTANT CONTRACT DBE COMMITMENT

CONSULTANT SECTION

1. Local Agency - Enter the name of the local or regional agency that is funding the contract.

2. Contract DBE Goal - Enter the contract DBE goal percentage as it appears on the project advertisement.

3. Project Description - Enter the project description as it appears on the project advertisement (Bridge Rehab, Seismic Rehab, Overlay, Widening, etc).

4. Project Location - Enter the project location as it appears on the project advertisement.

5. Consultant’s Name - Enter the consultant’s firm name.

6. Prime Certified DBE - Check box if prime contractor is a certified DBE.

7. Total Contract Award Amount - Enter the total contract award dollar amount for the prime consultant.

8. Total Dollar Amount for ALL Subconsultants – Enter the total dollar amount for all subcontracted consultants.

SUM = (DBEs + all Non-DBEs). Do not include the prime consultant information in this count.

9. Total number of ALL subconsultants – Enter the total number of all subcontracted consultants. SUM = (DBEs + all Non-DBEs). Do not include the prime consultant information in this count.

10. Description of Work, Services, or Materials Supplied - Enter description of work, services, or materials to be provided. Indicate all work to be performed by DBEs including work performed by the prime consultant’s own forces, if the prime is a DBE. If 100% of the item is not to be performed or furnished by the DBE, describe the exact portion to be performed or furnished by the DBE. See LAPM Chapter 9 to determine how to count the participation of DBE firms.

11. DBE Certification Number - Enter the DBE’s Certification Identification Number. All DBEs must be certified on the date bids are opened.

12. DBE Contact Information - Enter the name, address, and phone number of all DBE subcontracted consultants.

Also, enter the prime consultant’s name and phone number, if the prime is a DBE.

13. DBE Dollar Amount - Enter the subcontracted dollar amount of the work to be performed or service to be provided. Include the prime consultant if the prime is a DBE. See LAPM Chapter 9 for how to count full/partial participation.

14. Total Claimed DBE Participation - $: Enter the total dollar amounts entered in the “DBE Dollar Amount” column. %: Enter the total DBE participation claimed (“Total Participation Dollars Claimed” divided by item “Total Contract Award Amount”). If the total % claimed is less than item “Contract DBE Goal,” an adequately documented Good Faith Effort (GFE) is required (see Exhibit 15-H DBE Information - Good Faith Efforts of the LAPM).

15. Preparer’s Signature - The person completing the DBE commitment form on behalf of the consultant’s firm must sign their name.

16. Date - Enter the date the DBE commitment form is signed by the consultant’s preparer.

17. Preparer’s Name - Enter the name of the person preparing and signing the consultant’s DBE commitment form.

18. Phone - Enter the area code and phone number of the person signing the consultant’s DBE commitment form.

19. Preparer’s Title - Enter the position/title of the person signing the consultant’s DBE commitment form.

LOCAL AGENCY SECTION

20. Local Agency Contract Number - Enter the Local Agency contract number or identifier.

21. Federal-Aid Project Number - Enter the Federal-Aid Project Number.

22. Contract Execution Date - Enter the date the contract was executed.

23. Local Agency Representative’s Signature - The person completing this section of the form for the Local Agency must sign their name to certify that the information in this and the Consultant Section of this form is complete and accurate.

24. Date - Enter the date the DBE commitment form is signed by the Local Agency Representative.

25. Local Agency Representative’s Name - Enter the name of the Local Agency Representative certifying the consultant’s DBE commitment form.

26. Phone - Enter the area code and phone number of the person signing the consultant’s DBE commitment form.

27. Local Agency Representative Title - Enter the position/title of the Local Agency Representative certifying the consultant’s DBE commitment form.

Item No. 8.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Acquisition of Real Property APN 261-130-004
SOURCE: Community Development
COMMENT: At its meeting on December 15, 2020, the City Council began the process of planning for the development of a new Porterville Public Library by establishing the Library Facility Planning Committee. At its meeting on September 7, 2021, the Council adopted the Library Services and Facility Needs Assessment for a new Porterville Public Library. The space recommendations that emerged from the Needs Assessment indicate the need for a building of approximately 40,000 square feet. At its meeting on December 7, 2021, the Council selected APN 261-130-004, which is approximately 3.86 acres of land generally located on the south side of Olive Avenue, east of A Street, as the desired location of the new Porterville Public Library.

Pursuant to Council authorization from its meeting on September 6, 2022, staff has negotiated the purchase of real property, APN 261-130-004, from Cornerstone Main Partners II, L.P. in the accepted amount of $702,000, with a $5,000 per month escalation clause. The terms of the purchase are outlined in the Purchase and Sale Agreement which is provided herein, as is the draft Resolution for Council’s consideration. Staff has met with the title company, and if approved, closing is expected to occur the week of October 24, 2022.

Funding for the property acquisition is available through insurance proceeds.

RECOMMENDATION: That the City Council adopt the draft Resolution approving the purchase of APN 261-130-004, and authorize the Mayor and City Manager to sign all documents necessary to complete the purchase.

ATTACHMENTS: 1. Draft Resolution

2. Draft Purchase and Sale Agreement

3. Locator Map
Appropriated/Funded:

Review By:

Department Director:

Jason Ridenour, Community Development Director
Item No. 8.

Final Approver: John Lollis, City Manager
RESOLUTION NO. ___-2022

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

PORTERVILLE ACCEPTING A GRANT DEED IN FEE FOR REAL PROPERTY FROM CORNERSTONE MAIN PARTNERS II, L.P.

BE IT RESOLVED by the City Council of the City of Porterville, that the City of Porterville hereby authorizes acceptance of a Grant Deed in fee from Cornerstone Main Partners II, L.P., a California limited partnership, for real property, in the City of Porterville, County of Tulare, State of California, to-wit:

See Exhibit "A" attached hereto and made a part hereof by reference.

BE IT FURTHER RESOLVED that the purchase price of $702,000 is hereby approved with the City to open escrow account, pay escrow fees, authorize Mayor to sign all necessary documents, and said deed to be recorded in the office of the Tulare County Recorder. The foregoing has been accepted by the City Council for the City of Porterville.

PASSED, APPROVED AND ADOPTED this 18th day of October, 2022. ____________________________
Martha A. Flores, Mayor
ATTEST:

John D. Lollis, City Clerk
By _________________________________
Patrice Hildreth, Chief Deputy City Clerk

EXHIBIT A
Legal Description
Real property in the City of Porterville, County of Tulare, State of California, described as follows:

Parcel 1 as shown on Parcel Map No. 2207, as per map filed on June 22, 1979 in the Office of the Recorder of Tulare County, in Book 23 of Parcel Maps, at Page 8.

APN: 261-130-004-000

PURCHASE AGREEMENT
(Porterville, California)
THIS AGREEMENT is made and entered into as of last date of execution set forth on the signature page (the “Effective Date”), by and between the CITY OF PORTERVILLE, a California municipal corporation, (the “Buyer”), and Cornerstone Main Partners II, L.P., a California limited partnership (the “Seller”).

RECITALS
A. Seller is the owner in fee simple of a 3.86 acre property located in the City of Porterville, County of Tulare, and State of California (the “Property”), the legal property description of which is attached hereto as Exhibit A.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows:

PURCHASE AND SALE

1.1 Sale and Purchase. Buyer hereby agrees to acquire and purchase from Seller and Seller hereby agrees to sell and convey to Buyer that certain real property located in the City of Porterville, County of Tulare, California, described above, together with all rights, privileges and easements appurtenant thereto including all minerals, oil, gas and other hydrocarbon substances thereon including water, water rights, water stock, development, and air rights.

1.2 Purchase Price. The purchase price (the “Purchase Price”) of the property shall be the sum of $702,000.00 or as adjusted pursuant to Section 3.5.3 below.

1.3 Payment of Purchase Price. The Purchase Price shall be payable as follows: Prior to the Closing (as defined below) Buyer shall make a deposit with Escrow Holder (as defined below) an amount equal to the Purchase Price and any adjustments as a result of any applicable prorations as described below to be held by Escrow Holder pursuant to Article III below until close of Escrow.

II
CONDITIONS TO CLOSING; ACTIONS PENDING CLOSING

2.1 At the Closing (as defined below), Seller shall convey to Buyer marketable fee simple title to the Property, by duly executed and acknowledged grant deed (the “Grant Deed”).

Evidence of delivery of marketable fee simple title shall be the issuance of a CLTA Standard Coverage Policy of Title Insurance (1973) (the “Owner’s Policy”), at the parties’ shared cost and expense, in the full amount of the Purchase Price by First American Title Company (the “Title Company”), insuring fee simple title to the Property in Buyer, subject only to the exceptions set forth in the report of title. Buyer, for Buyer’s benefit and at Buyer’s election, may elect to require Title Insurer to provide an ALTA policy of title insurance. Seller shall cause all monetary liens and mortgages recorded against the Property to be removed as a lien against the Property as of the Closing Date. In addition to the condition precedent set forth in Section 2.1, the Closing and Buyer’s obligation to perform hereunder are conditioned upon the fulfillment of each and all of the following, any of which Buyer may waive in whole or in part:

2.1.1 Within 30 days of receipt, Buyer’s review and approval/disapproval or waiver of a Preliminary Title Report.

2.1.2 Performance by Seller of all of its obligations hereunder and the truthfulness of each representation by Seller contained in this Agreement at the time the same is made and at the Closing Date.

2.1.3 The commitment of and ability to issue by Title Company a CLTA Standard Coverage Policy of Title Insurance (Or ALTA policy as noted above, at Buyer’s election), dated as of the Closing Date, with liability in the amount of the Purchase Price, showing title to the Property vested in Buyer, subject only to the Permitted Exceptions (the “Owner’s Policy”).

2.1.4 That no moratorium, statute, regulation, ordinance or federal, state, county or local legislation, or order, judgment, ruling or decree of any governmental agency or of any court is enacted, adopted, issued, entered or pending which would materially and adversely affect the ability of Seller to convey the Property to Buyer.

2.1.5 Within 30 days from the date of Opening Escrow, Buyer’s inspection of the Property that Buyer may reasonably require, and Buyer’s review and approval/disapproval or waiver of the results of same.

III

ESCROW INSTRUCTIONS

3.1 Opening of Escrow.

3.1.1 Concurrently with the execution of this Agreement, an escrow (the “Escrow”) shall be opened by both parties with First American Title, Ann Kay, California, (“Escrow Holder”).

3.1.2 The terms and conditions set forth in this Agreement shall constitute both an agreement between the parties hereto and escrow instructions for the Escrow Holder. If the Escrow Holder requires separate or additional escrow instructions, both parties agree to execute promptly and deliver to the Escrow Holder, after request for same from Escrow Holder, such separate or additional escrow instructions (the “Additional Instructions”). In the event of any conflict or inconsistency between this Agreement and the Additional Instructions, this Agreement shall prevail and govern as the Additional Instructions shall so provide. The Additional Instructions shall not modify or amend the provision of this Agreement unless otherwise expressly set forth by mutual consent of Buyer and Seller. “Opening of Escrow”, as used herein, shall mean the delivery of a fully executed copy, or counterparts, of this Agreement to Escrow Holder and acceptance thereof by Escrow Holder, and escrow shall be deemed opened as of the date of such delivery and acceptance. “Closing”, as used herein, shall mean when the conditions of Section 3.5 below are completed as set forth therein.

3.1.3 Not later than ten (10) business days after the Opening of Escrow, Buyer shall deposit One Thousand and No/100 dollars ($1,000.00) with the Escrow Holder as a good faith deposit (“Deposit.”) The Deposit shall be applied to the purchase price. The Closing shall be held not later than five (5) calendar days after the Buyer has approved or waived all of Buyer’s conditions Precedent above (the “Closing Date”). Buyer and Seller may change the Closing Date by joint written notice to Escrow Holder. Escrow Holder is hereby directed to hold the closing on the Closing Date if it has received in a timely manner all the materials required to be delivered into Escrow by Buyer and Seller, and it has received a commitment from the Title Company to insurance title to the Property subject only to the Permitted Exceptions.

3.2 Prior to the Closing Date, Seller shall deposit the Grant Deed with Escrow Holder.

3.3 Prior to the Closing Date, Buyer shall deposit with Escrow Holder funds in accordance with the provisions of Article I above, and the Escrow fee. Other costs not otherwise designated as a particular party’s responsibility shall be paid by Seller and Buyer as per custom in the county in which the Property is located. Buyer and Seller shall each be responsible for their own attorney’s fees. Buyer shall be responsible for the cost of any inspections of the Property.

3.4 Seller and Buyer shall each deposit with Escrow Holder prior to the Closing Date fully executed and acknowledged copies of such instruments and such additional funds as are reasonably required by the Escrow Holder or otherwise required to close the Escrow and consummate the sale and purchase of the Property in accordance with the terms hereof, including, but not limited to, the settlement statement/statement of sources and uses identifying the funds deposited with Escrow Holder and the payee(s) of such funds. Buyer may waive compliance on Seller’s part under any of the items being provided by Seller (except the Grant Deed) by an instrument in writing.

3.5 Closing of Escrow. When Escrow is in the condition to close required by the Agreement, Escrow Holder shall do the following:

3.5.1 Deliver to Buyer the Grant Deed by depositing the same with the County Recorder of the County of Tulare, California, with instructions to record the same. When such Grant Deed has been accepted for recordation and a conformed copy with the recording information is returned to Escrow Holder, Escrow Holder shall mail the same to Buyer along with the Owner’s Policy; and

3.5.2 Deliver to Seller funds in the amount of the Purchase Price, less or plus the net debit or credit to Seller by reason of the prorations and allocation of expenses herein provided.

3.5.3 Buyer and Seller agree that Seller has monthly carry costs and that the Purchase Price as defined in Section 1.2 is predicated on a Closing to occur on or before October 30th, 2022. Should Closing occur on or before November 30th, 2022, the Purchase Price shall increase an additional $5,000.00. If Closing should occur on or before December 31st, 2022, the Purchase Price shall increase another additional $5,000.00. Should Closing extend beyond the end of the calendar year, Seller and Buyer shall mutually agree on the final Purchase Price.

3.6 Escrow Charges.

3.6.1 Costs and Expenses. The costs and expenses of Escrow upon Close of Escrow will be paid by Buyer, including, without limitation, all recording charges, the premium for the Title Policy, the cost of any documentary or other transfer taxes applicable to the sale, and all other standard costs and charges of the Escrow.

3.6.2 Prorations. Escrow Holder shall prorate real estate taxes as of the Closing on the basis of the most recent tax statement for the Property. Prorations shall be as of 12:01 a.m. on the Closing Date on the basis of a 365 day year.

3.7 Miscellaneous Escrow Instructions.

3.7.1 Time is of the essence of these Escrow Instructions and this Purchase Agreement.

3.7.2 All notices or other communications required or permitted hereunder shall be in writing, and may be personally delivered or sent by United States registered or certified mail, postage prepaid, return receipt requested, addressed as follows:

To Seller:

Cornerstone Main Partners II, L.P.
195 South ‘C’ Street, #200
Tustin, CA 92780
To Buyer:

City of Porterville
291 N. Main Street
Porterville, CA 93257
Attn: City Clerk
Subject to the right of a party to designate a different address for itself by notice similarly given.

Any notice so given by United States mail shall be deemed to have been given on the second business day after the same is deposited in the United States mail as above provided. Any notice not so given by registered or certified mail shall be deemed given upon receipt of the same by the party to whom the same is given.

3.7.3 Failure to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such terms, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right of power at any other time or times by any party hereto.

3.8 If the Escrow Holder is not in a position to consummate the Closing on the Closing Date, it shall close as soon thereafter as possible.

3.9 Possession of the Property shall be delivered to Buyer upon Closing.

REPRESENTATIONS OF SELLER
Seller hereby makes the following representations to Buyer, which are true as of the date hereof, which shall be true as of the Closing, which are not intended to replace or limit in any manner any express or implied warranty provided under the applicable law and which, except to the extent they relate to events or circumstances occurring or arising after the Closing, shall survive the Closing. Buyer shall be entitled to rely upon said representations notwithstanding Buyer’s inspections and investigations:

4.1 As of the Closing, to the best knowledge, information and belief of Seller, there shall be no liens, easements, licenses, leases or tenancies of any type on the Property or any portion of the Property other than easements as shown in the Title Company’s insurance commitment as approved by Buyer.

4.2 To the best knowledge, information and belief of Seller, there are no liens or encumbrances against the Property for work performed or commenced, or material supplied with respect to the Property nor can there be claimed against the Property any such lien.

4.3 This Agreement when executed by Seller, shall have been duly and properly executed, is a valid obligation of Seller and is binding upon Seller in accordance with its terms.

4.4 After the date of this Agreement, Seller shall not undertake any work on the Property which may result in the creation of a mechanic’s lien on the Property or any portion of this Property.

4.5 Seller has no knowledge of any adverse geological or soil or environmental condition affecting the Property.

4.6 Subject to the specific representations of Seller being true and correct in all material respects, it is understood and agreed that the Property has been inspected by Buyer, or Buyer’s duly authorized agents, that the same is being purchased as a result of such inspection and not in reliance upon any representations, inducements or promises, either oral or written, made by Seller, Seller’s agent or any other person or party whomsoever, including, but not limited to, the fitness of the Property for any specific use, and Seller and Seller’s agents shall not be responsible or liable for any agreement, condition or stipulation not specifically set forth in this Agreement relating to or affecting the Property. Seller has not made and will not make any other representations or warranties of any kind or nature with respect to the Property. The provisions of this Paragraph will survive the termination of or completion of Closing under this Agreement.

REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties to and agreements with Seller, which are true as of the date hereof, which shall be true as of the Closing, which are not intended to replace or limit in any manner any express or implied warranty provided under the applicable law and which, except to the extent they relate to events or circumstances occurring or arising after the Closing, shall survive the Closing. Seller shall be entitled to rely upon said representations and warranties:

5.1 This Agreement when executed by Buyer, shall have been duly and properly executed, is a valid obligation of Buyer and is binding upon Buyer in accordance with its terms. Buyer has taken all necessary action under California law, Buyer’s corporate charter and otherwise to duly authorize the execution of this Agreement and the consummation of Buyer’s obligations hereunder.

5.2 Buyer has the necessary funds, ready and available, to pay the Purchase Price and complete Closing under this Agreement in accordance with the specific terms hereof.

5.3 Buyer acknowledges and agrees that, except for the representations of Seller in this Agreement, the Property is sold "As Is," and the Purchase Price reflects the "As Is" nature of this sale and includes any faults, liabilities, defects or conditions that may be associated with the Property.

MISCELLANEOUS PROVISIONS

6.1 Legal Fees. In the event that an action shall be instituted by either party hereto for the enforcement of any of its rights or remedies in or under this Agreement, the party in whose favor judgment shall be rendered therein shall be entitled to recover from the other party all costs and expenses incurred by said prevailing party in said action, including reasonable attorney’s fees as fixed by the court therein.

6.2 Representations of Authority. Each party and each individual executing this Agreement on behalf of each party represents and warrants to the other party that the party and each such individual has full power and authority to execute and deliver this Agreement in the manner contemplated hereby and that this Agreement is binding upon the party in accordance with its terms.

6.3 Brokers. Each party represents and warrants to the other party that it has not hired, retained or dealt with any real estate broker, firm or salesman in connection with the transaction contemplated by this Agreement

6.4 Entire Agreement. This Agreement contains the entire integrated agreement between the parties respecting the matters herein set forth and supersedes all prior agreements between the same respecting such matters. With that regard, Buyer specifically acknowledges that it has not received any promises, representations or assurances from Seller or any of Seller’s agents or employees which are not contained herein. No addition or modification of any term or provision hereof shall be effective unless set forth in writing, signed by both Seller and Buyer.

6.5 Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent to be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.

6.6 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument.

6.7 Further Assurances. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this agreement, without cost, including (without limitation) the execution and delivery of such documents, and the doing of such acts or things as may be required to satisfy the requirements of the Title Company to issue title insurance in accordance with this Agreement and for Buyer to fully and adequately perform its investigations of the Property. Seller hereby grants to Buyer, its agents and employees, the right and license to go on to the Property for the purpose of performing any activity necessary or appropriate to the satisfaction of the conditions of this Agreement or to Buyer’s performance of its duties, obligations and responsibilities hereunder; provided, however, that Seller shall have the right to have one or more of its agents or representatives accompany Buyer, or Buyer’s agents and employees, while on the Property.

6.8 Heirs and Assignment. This agreement shall bind and inure to the benefit of the heirs, executors, successors, or assigns of Buyer or any other person or firm that may now be or hereafter an owner of the real property or any part thereof, set forth in Exhibit A of this agreement.

6.9 Venue. The parties agree that this agreement is entered into and to be performed in the County of Tulare, State of California. To the fullest extent permitted by law, the parties hereby waive any rights they might have to remove any such action pursuant to California Code of Civil Procedure Section 394.

6.10 Ambiguities. Each party and its legal counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.

SELLER:

Cornerstone Main Partners II, L.P.

By: ______________________________
David H. Paynter
Date:________________________________
ATTEST:

By:_______________________________
APPROVED AS TO FORM:

By:__________________________________
BUYER:

CITY OF PORTERVILLE
By: ______________________________
Martha A. Flores, Mayor
Date:________________________________
ATTEST:

By:_______________________________
John Lollis, City Clerk
APPROVED AS TO FORM:

By:__________________________________
Julia M. Lew, City Attorney

EXHIBIT A
Legal Description
Real property in the City of Porterville, County of Tulare, State of California, described as follows:

Parcel 1 as shown on Parcel Map No. 2207, as per map filed on June 22, 1979 in the Office of the Recorder of Tulare County, in Book 23 of Parcel Maps, at Page 8.

Item No. 9.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Permanent Local Housing Allocation 2021 and 2022 Application SOURCE: Community Development
COMMENT: In 2020, the California Department of Housing and Community Development (HCD) announced the availability of approximately $195 million in funding for the Permanent Local Housing Allocation (PLHA) program Entitlement and Non-entitlement Local government formula component Notice of Funding Availability (NOFA). This NOFA is funded from monies deposited in the Building Homes and Jobs Trust Fund (Fund) in calendar year 2019.

Funding for this NOFA is provided pursuant to Senate Bill (SB) 2 (Chapter 364, Statutes of 2017). SB 2 established the Fund and authorizes HCD to allocate seventy percent (70%) of monies collected and deposited in the Fund, beginning in calendar year 2019, to local governments for eligible housing and homelessness activities. The intent of the bill is to provide a permanent, ongoing source of funding to local governments for housing-related projects and programs that assist in addressing the unmet housing needs of their local communities.

As an Entitlement local government, the City of Porterville was eligible to apply for funds and submitted a 5-year plan outlining its intention to use the PLHA funds for the eligible activity 6 which is defined as, “Assisting persons who are experiencing or at risk of homelessness, including, but not limited to, providing rapid rehousing, rental assistance, supportive/case management services that allow people to obtain and retain housing, operating and capital costs for navigation centers and emergency shelters, and the new construction, rehabilitation, and preservation of permanent and transitional housing.” On February 24, 2021, the City of Porterville received its Executed PLHA Standard Agreement for the 5-Year Plan, making the fiscal year 2019-2020 (1st year) formula allocation of $342,754 available for use.

On December 10, 2021, The City of Porterville received its Executed PLHA Standard Agreement for the 2
nd year 2020-2021 formula allocation of $532,745
available for use.

On August 17, 2022, HCD announced the release of the 2022 PLHA Program NOFA for approximately $335 million in calendar year 2021 funds, in addition to the $131 million remaining in calendar year 2019 and 2020.

Item No. 9.

The City of Porterville is eligible to apply for $586,270, which represents the 3rd year funding of the City of Porterville’s adopted 5-Year PLHA Plan for use on the approved eligible activity 6 noted above and specifically for Permanent Supportive Housing, Navigation Center, Bridge Housing and Emergency Shelter Operations.

The deadline to submit the streamlined application for these funds is November 30, 2022. Since the 5-Year plan has been approved and adopted by City Council, no new action is required to apply for the 2022 NOFA. However, staff is providing this report to Council as an update and to request that Council authorize the Mayor to sign the streamlined application for the 2021 funding allocation for submittal to HCD and authorize staff to respond to the 2022 PLHA NOFA and submit the streamlined application to HCD for the 2021 (Third year of PLHA 5-Year Plan) funds.

RECOMMENDATION: That the City Council:

1. Authorize the Mayor to sign the streamlined application for the 2020 PLHA funding allocation for submittal to HCD; and

2. Authorize staff to submit the streamlined application in response to the 2022 PLHA NOFA to HCD for the 2021 (Third year of PLHA 5-Year Plan) funds.

ATTACHMENTS: 1. Draft 2022 PLHA Formula Allocation Application Form for Previous Awardees

2. PLHA Approved 5-year Plan
Appropriated/Funded:

Review By:

Department Director:

Jason Ridenour, Community Development Director
Final Approver: John Lollis, City Manager
Final Filing Date: October 31, 2022
at 4:00 P.M. PST
Permanent Local Housing Allocation
(PLHA) Formula Allocation
Application Form for Previous Awardees
State of California
Governor, Gavin Newsom
Lourdes Castro Ramírez, Secretary
Business, Consumer Services and Housing Agency
Gustavo Velasquez, Director
Department of Housing and Community Development
Program Design and Implementation, PLHA Program
2020 West El Camino Avenue, Suite 150, Sacramento, CA 95833 PLHA Program Email: [email protected]
Address:

Has applicant received their 2021 NOFA funds? No Based on the requirements in guideline section 300(e), how much has the applicant committed? $875,499 Contact Phone:

City: Porterville
291 N Main St
Yes
Zip Code:
(559) 782-7466
State:
§302(a) Housing Element compliance: Applicant and Delegating Local Government's if applicable Housing Element was adopted by the Local Government’s governing body by the application submittal date and subsequently determined to be in substantial compliance with state Housing Element Law pursuant to Government Code Section 65585.

Porterville
Yes
Contact Name:Address: City:Address: 291 N Main St
Claudia Calderon
§300(e) Applicant does not have uncommitted PLHA funds greater than permitted by Section 300(e). Yes §503(b) Applicant has submitted the PLHA Annual Report by July 31, 2021 (if applying before July 31, 2022), or has submitted the PLHA Annual Report due by July 31, 2022 (if applying on or after July 31, 2022). Yes
Date
Certifications
Martha A. Flores
Authorized Representative Printed Name
Mayor
Title
On behalf of the entity identified below, I certify that: The information, statements and attachments included in this application are, to the best of my knowledge and belief, true and correct and I possess the legal authority to submit this application on behalf of the entity identified in the signature block.

Signature
File Name: Reuse Plan Program Income Reuse Plan describing how repaid loans or accrued interest will be used for eligible activities in Section 301. Narrative uploaded to HCD? N/A CA
County:

Contact Email:

Mayor
291 N Main St
(559) 782-7460
Porterville
Auth Rep. Email: Phone: [email protected]
§302(c)(5) Applicant certifies that the Plan has not reallocated more than 10 percent of funds among Activities from the approved 5-year Plan included in the PLHA program Standard Agreement, Exhibit E. Yes
N/A §302(c)(8) If a program income reuse plan was not submitted with the 2020 application, has Applicant attached a program income reuse plan describing how repaid loans and/or accrued interest will be reused for eligible activities specified in Section 301? Local Government Formula Allocation Rev. 2/17/22
This streamlined application form is limited to Applicants who applied for and received an award from the 2020 and/or 2021 Formula Allocation NOFA.

Yes
State: CA Zip: 93257 Tulare
§302(c)(2) Applicant certifies that submission of the application was authorized by the governing board of the Applicant.

Threshold Requirements
Title:
93257
§302(b) Applicant and Delegating Local Government have submitted the current or prior year's Annual Progress Report to the Department of Housing and Community Development pursuant to Government Code Section 65400. Yes Did Applicant receive an award from the 2020 and/or 2021 Formula Allocation NOFA? Title: EcoDev & Housing Manager
State: CA
Eligible Applicant Type: EntitlementLocal Government Recipient of PLHA Formula Allocation: Porterville Zip Code:

Instructions: If the Local Government Recipient of the PLHA Formula Allocation delegated its PLHA formula allocation to another Local Government in its 2020 application, the Applicant (for which information is required below) continues to be the administering Local Government, which received the award. The PLHA award will be made to the Applicant (upon meeting threshold requirements) and the Applicant is responsible for meeting all program requirements throughout the term of the Standard Agreement.

Eligible Applicants §300
93257
Auth Rep Name:
[email protected]
§300(a) and (b) Eligible Applicants for the Entitlement and Non-Entitlement formula component described in Section §100(b)(1) and (2) are limited to the metropolitan cities and urban counties allocated a grant for the federal fiscal year 2017 pursuant to the federal CDBG formula specified in 42 USC, Section §5306 and Non-entitlement local governments.

Applicant: City of Porterville
Martha A. Flores
City:2022 PLHA NOFA Formula Allocation Amount: $586,270 Allowable Local Admin (5%): $29,313.00 Which NOFA year(s) are you applying for with this application? 2022 Only PLHA Page 1 Formula Allocation Application
12/10/2021
City of Porterville
20-PLHA-15103, Am. 1 (Rev. 08/2021)

Page 1 of 5 ends

EXHIBIT A
Permanent Local Housing Allocation (PLHA) Program – Grant NOFA Date: (RD 1) 02/26/2020, (RD 2) 05/03/2021
Approved Date: 10/05/2020
Prep. Date: 08/26/2021

AUTHORITY, PURPOSE AND SCOPE OF WORK

1. Authority
Pursuant to Part 2 Chapter 2.5 of Division 31 of the Health and Safety Code (commencing with Section 50470) Statutes of 2017 (SB 2, Atkins), which created the Building Homes and Jobs Trust Fund and the Permanent Local Housing Allocation (“PLHA”) Program (“Program”), this Standard Agreement along with all its exhibits (the “Agreement”) is entered under the authority of and in furtherance of the Program.

Pursuant to Health and Safety Code, Section 50470 (b), the California Department of Housing and Community Development (referred to herein as “HCD” or “Department”) has issued a Notice of Funding Availability (the “NOFA”), dated February 26, 2020, to govern administration of the fund and carry out the Program.

2. Purpose
In accordance with the authority cited above, an application was made to the State (the “Application”) for assistance from the Program for the purpose of making funding available to eligible local governments in California for housing related projects and programs that assist in addressing the unmet housing needs of their local communities.

By entering into this Agreement and thereby accepting the award of the PLHA grant funds (the “Grant”), the Contractor (sometimes referred to herein as the “Applicant”) agrees to comply with the terms and conditions of the NOFA, this Agreement, the representations contained in the Application, and the requirements of the authorities cited above.

3. Definitions
Capitalized terms not otherwise defined herein shall have the meaning of the definitions set forth in Health and Safety Code Section 50470 and Section 101 of the Guidelines.

4. Scope of Work
A. The scope of work (“Work”) for this Agreement shall consist of one or more of the following eligible uses:
1) The predevelopment, development, acquisition, rehabilitation, and preservation of multifamily, residential live-work, rental housing that is affordable to extremely low-, very low-, low-, or moderate-income households, including necessary Operating subsidies.

City of Porterville
20-PLHA-15103, Am. 1 (Rev. 08/2021)

Page 2 of 5 ends

EXHIBIT A
Permanent Local Housing Allocation (PLHA) Program – Grant NOFA Date: (RD 1) 02/26/2020, (RD 2) 05/03/2021
Approved Date: 10/05/2020
Prep. Date: 08/26/2021
2) The predevelopment, development, acquisition, rehabilitation, and preservation of Affordable rental and ownership housing, including Accessory dwelling units (ADUs), that meets the needs of a growing workforce earning up to 120 percent of AMI, or 150 percent of AMI in highcost areas. ADUs shall be available for a term of no less than thirty days. 3) Matching portions of funds placed into local or regional housing trust funds.
4) Matching portions of funds available through the Low- and ModerateIncome Housing Asset Fund pursuant to subdivision (d) of HSC Section 34176.
5) Capitalized Reserves for Services connected to the preservation and creation of new Permanent supportive housing.
6) Assisting persons who are experiencing or at risk of homelessness, including, but not limited to, providing rapid rehousing, rental assistance, supportive/case management services that allow people to obtain and retain housing, operating and capital costs for navigation centers and emergency shelters, and the new construction, rehabilitation, and preservation of permanent and transitional housing.
a) This Activity may include subawards to Administrative Entities as defined in HSC Section 50490(a)(1-3) that were awarded California Emergency Solutions and Housing (CESH) program or Homeless Emergency Aid Program (HEAP) funds for rental assistance to continue assistance to these households.
b) Applicants must provide rapid rehousing, rental assistance, navigation centers, emergency shelter, and transitional housing activities in a manner consistent with the Housing First practices described in 25 CCR, Section 8409, subdivision (b)(1)-(6) and in compliance with WIC Section 8255(b)(8). An Applicant allocated funds for the new construction, rehabilitation, and preservation of Permanent supportive housing shall incorporate the core components of Housing First, as provided in WIC Section 8255, subdivision (b).
7) Accessibility modifications in Lower-income Owner-occupied housing.

City of Porterville
20-PLHA-15103, Am. 1 (Rev. 08/2021)

Page 3 of 5 ends

EXHIBIT A
Permanent Local Housing Allocation (PLHA) Program – Grant NOFA Date: (RD 1) 02/26/2020, (RD 2) 05/03/2021
Approved Date: 10/05/2020
Prep. Date: 08/26/2021
8) Efforts to acquire and rehabilitate foreclosed or vacant homes and apartments.
9) Homeownership opportunities, including, but not limited to, down payment assistance.
10) Fiscal incentives made by a county to a city within the county to incentivize approval of one or more Affordable housing Projects, or matching funds invested by a county in an Affordable housing development Project in a city within the county, provided that the city has made an equal or greater investment in the project. The county fiscal incentives shall be in the form of a grant or low-interest loan to an Affordable housing Project. Matching funds investments by both the county and the city also shall be a grant or low interest deferred loan to the Affordable housing Project.

B. A Local government that receives an allocation shall use no more than five percent of the allocation for costs related to the administration of the Activity(ies) for which the allocation was made. Staff and overhead costs directly related to carrying out the eligible activities described in Section 301 are “activity costs” and not subject to the cap on “administrative costs.” A Local government may share any funds available for administrative costs with entities that are administering its allocation.

C. Two or more local governments that receive PLHA allocations may expend those moneys on an eligible jointly funded project as provided in Section 50470 (b)(2)(B)(ii)(IV). An eligible jointly funded project must be an eligible Activity pursuant to Section 301(a) and be located within the boundaries of one of the Local governments.

D. Entitlement Local governments may use the flow of PLHA funds to incentivize private lender loans and to guarantee payments for some or all public agency bond financings for activities consistent with the uses identified in Section 301 “Eligible Activities”. This loan guarantee Activity must be identified and fully explained in the Applicant’s “Plan”.

City of Porterville
20-PLHA-15103, Am. 1 (Rev. 08/2021)

Page 4 of 5 ends

EXHIBIT A
Permanent Local Housing Allocation (PLHA) Program – Grant NOFA Date: (RD 1) 02/26/2020, (RD 2) 05/03/2021
Approved Date: 10/05/2020
Prep. Date: 08/26/2021

5. Department Contract Coordinator
The Department’s Contract Coordinator for this Agreement is the Division of Financial Assistance, Grant Management Section PLHA Manager or their designee. Unless otherwise informed, any notice, report, or other communication required by this Agreement shall be mailed by first class to the Department Contract Coordinator at the following address:

California Department of Housing and Community Development Attention: Permanent Local Housing Allocation (PLHA)
Grant Management Section, Suite 400
2020 West El Camino Avenue, CA 95833
P. O. Box 952050
Sacramento, CA 94252-2050

6. Contractor Contract Coordinator
The Contractor’s contract coordinator for this Agreement is the Authorized Representative listed below. Unless otherwise informed, any notice, report, or other communication required by this Agreement may be mailed by first class mail, or sent through a commercial courier to the Authorized Representative at the following address:

Authorized Representative Name: Adrian Monte Reyes
Authorized Representative Title: City Mayor of Porterville Agency Name: City of Porterville
Address: 291 North Main Street
Porterville, CA 93257
Phone No.: (559) 782-7466
Email Address: [email protected]

7. Effective Date, Term of Agreement, and Deadlines
A. This Agreement is effective upon approval by the Department, which is the date executed by all parties (such date, the “Effective Date”).

B. This Agreement shall terminate on June 30, 2030.

City of Porterville
20-PLHA-15103, Am. 1 (Rev. 08/2021)

Page 5 of 5 ends

EXHIBIT A
Permanent Local Housing Allocation (PLHA) Program – Grant NOFA Date: (RD 1) 02/26/2020, (RD 2) 05/03/2021
Approved Date: 10/05/2020
Prep. Date: 08/26/2021
C. Except for predevelopment expenses for construction projects funded by PLHA and costs to develop and prepare the Plan and the PLHA application, no costs incurred more than one year prior to commitment by the Local government may be paid from PLHA funds. Reimbursement of expenses to prepare the Plan and the PLHA application are subject to the cap on administrative fees.

D. Any Grant funds which have not been expended by the expenditure deadline shall be disencumbered and revert to the Department. The expenditure deadline is fifty-eight months from the date of the budget appropriation for each year of funds included in this Agreement.

City of Porterville
20-PLHA-15103, Am. 1 (Rev. 08/2021)

Page 1 of 4 ends

EXHIBIT E
Permanent Local Housing Allocation (PLHA) Program - Grant NOFA Date: (RD 1) 02/26/2020, (RD 2) 05/03/2021
Approved Date: 10/05/2020
Prep. Date: 08/26/2021

PROGRAM-SPECIFIC PROVISIONS AND SPECIAL CONDITIONS

1. Program-Specific Provisions
The following are project-specific terms and conditions (referred to as enumerated provision(s) for ease of reference in prior exhibits) and shall inform the references made to project-specific information not contained in those prior exhibits.

Budget Detail:

Contractor has been awarded the following grant activity amounts for 2019: $342,754 Contractor has been awarded the following grant activity amounts for 2020: $532,745 Estimated five-year allocation may not exceed: $2,056,524 Payees:

A. The authorized Payee(s) is/are as specified below:

Name: City of Porterville
Amount of 2019 and 2020: $875,499
Plan:

Provide a description of how allocated funds will be used for the proposed activity.

A. Priority 1: Navigation Center
1) Operating costs for a Navigation Center: PLHA funds would be used for operation costs associated with a new or existing Navigation Center. The Navigation Center would serve as a central location for people who are experiencing homelessness to connect to services to help them obtain housing or overcome barriers in obtaining housing.

City of Porterville
20-PLHA-15103, Am. 1 (Rev. 08/2021)

Page 2 of 4 ends

EXHIBIT E
Permanent Local Housing Allocation (PLHA) Program - Grant NOFA Date: (RD 1) 02/26/2020, (RD 2) 05/03/2021
Approved Date: 10/05/2020
Prep. Date: 08/26/2021
B. Priority 2: Emergency Shelter
1) Operating costs for an Emergency Shelter: PLHA funds would be used for operating costs needed to run an emergency shelter. This will assist in ensuring that low barrier beds for people who have been identified by the local Continuum of Care on Homelessness, the Kings/Tulare Homeless Alliance (KTHA) continue to be available. KTHA currently uses a vulnerability index to prioritize housing for people experiencing homelessness. Additionally, using a coordinated entry system, KTHA, is able to make referrals form one database, in order to have a streamlined application and referral system between agencies who serve people experiencing homelessness.
2) The City would consider Operating costs for a bridge housing beds, leading to permanent housing: The City plans on working with eligible nonprofits who provide bridge housing programs to help cover some gaps in operational financing, allowing them to continue providing housing to program participants that are currently working on permanent housing solutions.

C. Priority 3: Permanent Housing
1) The City would consider Operating costs for Permanent Supportive Housing (PSH) Programs: The City plans on working with eligible nonprofits and/or affordable housing developers who provide services to existing PSH programs to help cover some gaps in operational financing/or provide required match for funding, allowing them to continue providing housing to program participants that are currently receiving PSH housing vouchers. This would include increasing the percentage of PLHA funds in years 4 and 5 to include operating expenses for Multi-family housing with units dedicated to people experiencing homelessness. This will assist in ensuring that PSH units created for people experiencing homelessness, have the necessary case management to provide PSH units with a connection to supportive services.

City of Porterville
20-PLHA-15103, Am. 1 (Rev. 08/2021)

Page 3 of 4 ends

EXHIBIT E
Permanent Local Housing Allocation (PLHA) Program - Grant NOFA Date: (RD 1) 02/26/2020, (RD 2) 05/03/2021
Approved Date: 10/05/2020
Prep. Date: 08/26/2021
Funding Allocation
Year 2019 2019 2019
Type of Activity Emergency
Shelters
Navigation
Centers Permanent
Percentage of Funds
Allocated for each Activity 60% 25% 10%
Area Median Income
Level Served 30% 30% 30%
Administrative Cost 5%
Funding Allocation
Year 2020 2020 2020
Type of Activity Emergency
Shelters
Navigation
Centers Permanent
Percentage of Funds
Allocated for each Activity 60% 25% 10%
Area Median Income
Level Served 30% 30% 30%
Administrative Cost 5%
City of Porterville
20-PLHA-15103, Am. 1 (Rev. 08/2021)

Page 4 of 4 ends

EXHIBIT E
Permanent Local Housing Allocation (PLHA) Program - Grant NOFA Date: (RD 1) 02/26/2020, (RD 2) 05/03/2021
Approved Date: 10/05/2020
Prep. Date: 08/26/2021
Funding Allocation
Year 2021 2021 2021
Type of Activity Emergency
Shelters
Navigation
Centers Permanent
Percentage of Funds
Allocated for each Activity 50% 25% 20%
Area Median Income
Level Served 30% 30% 30%
Administrative Cost 5%
Funding Allocation
Year 2022 2022 2022
Type of Activity Emergency
Shelters
Navigation
Centers Permanent
Percentage of Funds
Allocated for each Activity 50% 25% 20%
Area Median Income
Level Served 30% 30% 30%
Administrative Cost 5%
Funding Allocation
Year 2023 2023
Type of Activity Navigation
Centers Permanent
Percentage of Funds
Allocated for each Activity 75% 20%
Area Median Income
Level Served 30% 30%
Administrative Cost 5%

2. Special Conditions
The following Special Conditions are applicable to this Standard Agreement:

None.

Item No. 10.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Friends of the Porterville Public Library License Agreement SOURCE: Parks and Leisure Services
COMMENT: The Friends of the Porterville Public Library is a non-profit organization that has helped raise money to support special projects for the Porterville Library and literacy programs since 1971. The Friends of the Porterville Public Library accept donations of used books, movies and music, which they in turn sell at book sales. The Friends of the Porterville Public Library have held property license agreements with the City over the years at various locations. The most recent agreement was at the former Spencer House at 301 N. Hockett Street.

Due to its poor condition and the City's plan to convert the site into a public parking lot, the City requested the Friends of the Porterville Public Library to vacate the Spencer House in October 2020, prior to the house being demolished.

The Friends of the Porterville Public Library have requested to temporarily be housed at 298 N. Main Street in order to store their materials and conduct sales.

The term of the draft property license agreement is month-to-month commencing on October 19, 2022. The Friends of the Porterville Public Library are aware that this agreement is intended to be temporary and the City may at any time become aware of an interested party willing to lease the space to open a restaurant. The license may be terminated by the City in its sole discretion upon sixty (60) days written notice to the Friends of the Porterville Public Library. The Friends of the Porterville Public Library will maintain insurance to City specifications, naming the City as an additional insured.

At its meeting on September 28, 2022, the Internal City Audit Committee reviewed the proposed license agreement and recommends approval to the City Council.

RECOMMENDATION: That the City Council authorize the property license agreement between the City of Porterville and the Friends of the Porterville Public Library for use of the City facility located at 298 N. Main Street on a month-to-month term in order to store and conduct book sales to benefit the Porterville Library.

ATTACHMENTS: 1. Draft Property License Agreement
Appropriated/Funded:

Item No. 10.

Review By:

Department Director:

Donnie Moore, Parks and Leisure Services Director
Final Approver: John Lollis, City Manager

Item No. 11.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Set a Public Hearing for the Adoption of the California Building Codes SOURCE: Engineering and Project Management
COMMENT: The various building codes in use by most jurisdictions in California are updated periodically to reflect the latest materials and construction techniques available to the construction industry.

The last published building codes, specifically the California Building Codes, were updated in 2019. The State of California has since adopted the 2021 International Codes as the 2022 State Codes for Building, Plumbing, Mechanical, Electrical, and Energy.

In addition to these Codes, the State of California has also mandated the adoption of the 2022 Green Building Codes, the 2022 Fire Code, the 2022 Residential Code, the 2022 Administrative Code, and the 2022 Reference Standards Code. The 2022 Codes become State mandated as of January 1, 2023.

The adoption process of the 2022 Fire Code will be handled separately by the Fire Department.

Each California Code will be adopted by Ordinance, and shall repeal the State Code previously in effect.

RECOMMENDATION: That the City Council set the Public Hearing for November 1, 2022, to receive input and give first reading to draft Ordinances for the adoption of the 2022 Editions of the California Building, Plumbing, Mechanical, Electrical, Green Building Standards, Residential, Administrative, Reference Standards, and Energy Codes.

ATTACHMENTS:

Appropriated/Funded:

Review By:

Department Director:

Javier Sanchez, Engineering & Project Management Director Final Approver: John Lollis, City Manager
Item No. 11.

Item No. 12.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Set a Public Hearing for the Adoption of the California Fire Code SOURCE: Fire
COMMENT: The Fire Code in use by most jurisdictions in California is updated periodically to reflect the latest materials and construction techniques available to the construction industry.

The last published Fire Code, specifically the California Fire Code, was updated in 2019. The State of California has since adopted the 2021 International Codes as the 2022 State Codes for Building, Fire Plumbing, Mechanical, Electrical, and Energy.

In addition to these codes, the State of California has also mandated the adoption of the 2022 Fire Code. The 2022 Codes shall become State mandated as of January 1, 2023.

Each California Code will be adopted by Ordinance, and shall repeal the State Code previously in effect.

ATTACHMENTS:

Appropriated/Funded:

Review By:

Department Director:

Bryan Cogburn, Deputy Fire Chief
Final Approver: John Lollis, City Manager
Item No. 13.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Set a Public Hearing for updates to the Porterville Municipal Code SOURCE: Fire
COMMENT: The review of the Fire Code for adoption happens every three years. During this time, a review of the Porterville Municipal Code is undertaken to recommend updates to areas where changes in law, policy, or procedures may result in changes. The draft Ordinance presented for consideration would result in amendments as follows:

Including language in Chapter 2 defining the Code Enforcement Officer, as described in Section 829.5 of the California Penal Code, including working with outside agencies and clarifying their duties; the addition of recognized nuisance conditions under Chapter 12; and adding authority to include the Fire Chief in Chapter 17 as it relates to the appeals process for abatement of abandoned vehicles. Historically, abatement has been performed solely by the Police Department. With the addition of the Code Enforcement Division, the duties are now split with the Police Department handling the roadways and Code Enforcement dealing with other public and private properties.

Each section of the Porterville Municipal Code will be adopted by Ordinance, and shall repeal the Code previously in effect.

RECOMMENDATION: That the City Council set the Public Hearing for November 1, 2022, to receive input and give first reading to draft Ordinances for the adoption of the changes to the Porterville Municipal Code.

ATTACHMENTS:

Appropriated/Funded:

Review By:

Department Director:

Bryan Cogburn, Deputy Fire Chief
Final Approver: John Lollis, City Manager
Item No. 14.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Approval of Community Civic Event - Tule River Economic Development Corporation - Trunk or Treat Car Show - October 29, 2022 SOURCE: Finance
COMMENT: The Tule River Economic Development Corporation (TREDC) is requesting approval to hold the "Trunk or Treat Car Show" on Saturday, October 29, 2022, from 9:00 AM to 4:00 PM. The event will be held at the City parking lot adjacent to Landing 13 at 152 N. Hocket Street. The event will feature a car show while car club members give out treats to children in costumes. There will be music provided by a DJ. Food and drinks may be purchased inside the restaurant but no alcoholic beverages will be allowed outside.

This request is made under the Community Civic Events Ordinance No. 1326, as amended. The application has been routed according to the Ordinance regulations and reviewed by all City Departments involved. The requirements are listed on the attached copy of the Application and Agreement, Exhibit A and Exhibit B. Event organizers are required to adhere to all local, State and Federal guidelines and limitations pertaining to COVID-19, if any, at the time of the event.

RECOMMENDATION: That the City Council approve the Community Civic Event application from the Tule River Economic Development
Corporation to hold the Trunk or Treat Car Show event on October 29, 2022, subject to the restrictions and requirements contained in the Application and Agreement, Exhibit A and Exhibit B.

ATTACHMENTS: 1. CCE Application and Agreement, Map, Exhibit A, Exhibit B, Outside Amplifier Permit, and Certificate of Liability Insurance
Appropriated/Funded:

Review By:

Department Director:

Final Approver: John Lollis, City Manager

Item No. 15.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Approval for Community Civic Event - Parenting Network - Dia de los Muertos - November 2, 2022
SOURCE: Finance
COMMENT: The Parenting Network is requesting approval to hold their event, "Dia de los Muertos", on Wednesday, November 2, 2022 at Centennial Park, from 2:00 PM to 3:00 PM. The event is a celebration of life and of loved ones lost.

Information booths hosting games and providing resources will be set up inside the park.

This request is submitted in accordance with the Community Civic Events Ordinance No. 1526, as amended. The application has been routed according to the Ordinance regulations and reviewed by all City Departments involved. All requirements and restrictions are listed on the attached Application and Agreement, Exhibit A, Exhibit B, and Exhibit C. Event organizers are required to adhere to all Federal, State and local guidelines and limitations pertaining to COVID-19, if any, at the time of event.

RECOMMENDATION: That the City Council approve the Community Civic Event application from the Parenting Network to hold "Dia de los Muertos" event on November 2, 2022, subject to the restrictions and requirements contained in the Application and Agreement, Exhibit A, Exhibit B, and Exhibit C.

ATTACHMENTS: 1. CCE Application and Agreement, Map, Exhibit A, Exhibit B, Exhibit C, Outside Amplifier Permit, and Certificate of Liability Insurance
Appropriated/Funded:

Review By:

Department Director:

Maria Bemis, Finance Director
Final Approver: John Lollis, City Manager

Item No. 16.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Approval for Community Civic Event - Veterans Homecoming Committee - Veterans Day Parade - November 11, 2022
SOURCE: Finance
COMMENT: The Veterans Day Homecoming Committee is requesting approval to hold the annual Veterans Day Parade on Friday, November 11, 2022, from 10:00 AM to 12:00 PM, continuing the patriotic tradition of honoring veterans and showing gratitude for their service. The request includes the closure of Main Street from Doris Avenue to Orange Avenue and the side streets along Main Street as indicated on the attached map, from 5:00 AM to 12:00 PM.

RECOMMENDATION: That the City Council approve the Community Civic Event application from the Veterans Homecoming Committee to hold the Veterans Day Parade on November 11, 2022, subject to the requirements and restrictions contained in the Application and Agreement, Exhibit A and Exhibit B.

ATTACHMENTS: 1. CCE Application and Agreement, Map, Exhibit A, Exhibit B, Outside Amplifier Permit, and Certificate of Liability Insurance
Appropriated/Funded:

Review By:

Department Director:

Maria Bemis, Finance Director
Final Approver: John Lollis, City Manager

Item No. 17.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Community Civic Event - Rotary Club of Porterville - Porterville Chamber of Commerce - Children's Christmas Parade - December 1, 2022 SOURCE: Finance
COMMENT: The Rotary Club of Porterville and Porterville Chamber of Commerce are requesting approval to hold the annual Children's Christmas Parade along Main Street on Thursday, December 1, 2022, from 7:00 PM to 9:00 PM.

The event organizers are requesting the following streets and sidewalks be closed from 5:00 PM to 9:00 PM (as indicated on the attached map):

Main Street - from Danner Avenue to Olive Avenue
Morton, Harrison, Thurman, Cleveland, Putnam, Mill, and Oak Avenues - from Hockett Street to Second Street
Garden Avenue - from Main Street to Second Street
School, Belleview, North, and Doris Avenues - from Sunnyside Street to Second Street
Second Street - from Olive Avenue to Oak Street
The request also includes the closure of the parking spaces on Main Street in front of the Chamber of Commerce from 6:00 AM to 9:00 PM, and in front of City Hall from 3:00 PM to 9:00 PM.

This request is made under the Community Civic Events Ordinance No. 1326, as amended. The application has been routed according to the Ordinance regulations and reviewed by all City Departments involved. All requirements are listed on the attached copy of the Application and Agreement, Exhibit A and Exhibit B. Event organizers are required to adhere to all local, State and Federal guidelines and limitations pertaining to COVID-19, if any, at the time of the event.

RECOMMENDATION: That the City Council approve the Community Civic Event application submitted by the Rotary Club of Porterville and the Porterville Chamber of Commerce to hold the Children's
Christmas parade on December 1, 2022 subject to the restrictions and requirements contained in the Application and Agreement, Exhibit A and Exhibit B.

ATTACHMENTS: 1. CCE Application and Agreement, Map, Exhibit A, Exhibit Item No. 17.

B, Outside Amplifier Permit, and Certificate of Liability Insurance
Appropriated/Funded:

Review By:

Department Director:

Maria Bemis, Finance Director
Final Approver: John Lollis, City Manager

Item No. 18.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Amendment to Employee Pay and Benefit Plan - Porterville Peace Officers Association
SOURCE: Administrative Services
COMMENT: Within the scope of the Meyers-Milias-Brown Act, City representatives have concluded labor negotiations with the Porterville Peace Officers Association ("PPOA"). City representatives and PPOA have reached an agreement, and a written Memorandum of Understanding ("MOU") has been executed restating current benefits as well as amendments pertaining to wages, benefits and working conditions.

City Council acceptance and approval of an executed MOU is most commonly demonstrated by Council authorization to change or amend, when applicable, those documents that are necessary to implement the points of agreement contained in the MOU.

RECOMMENDATION: That the City Council:

1. Approve the draft Resolution amending the Employee Pay and Benefit Plan pertaining to Porterville Peace Officer Association employees; and

2. Direct staff to amend other documents as may be necessary to implement the negotiated changes in salary and benefits.

ATTACHMENTS: 1. Draft Resolution
Appropriated/Funded:

Review By:

Department Director:

Patrice Hildreth, Deputy City Manager
Final Approver: John Lollis, City Manager

Page 1 ends

RESOLUTION NO. ___-2022

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

PORTERVILLE AMENDING THE EMPLOYEE PAY AND BENEFIT PLAN

PERTAINING TO PORTERVILLE PEACE OFFICERS ASSOCIATION EMPLOYEES WHEREAS, the City Council has determined and reiterated that an Employee Pay and Benefit Plan, Classification Plan, Personnel System Rules and Regulations, Health Plan and Retirement Plan are essential for the proper administration of the City’s affairs, including employee recruitment and retention, and for proper supervision of City Employees; and WHEREAS, the City Council recognizes the necessity of amending and/or changing the contents of such plans and regulations from time to time, and of executing instruments to implement and to keep the provisions thereof current, and to maintain the relevancy of the same; and
WHEREAS, there has been concurrence on a Memorandum of Understanding with the Porterville Peace Officers Association (“PPOA”) for the period from July 1, 2022, until June 30, 2025, covering provisions to amend the Employee Pay and Benefit Plan, as they relate to employees holding positions represented by such recognized employee organization.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Porterville that the Employee Pay and Benefit Plan for employees holding positions represented by the aforementioned recognized employee organization, is hereby amended as follows:

I. Term:

The term of the Memorandum of Understanding shall be three (3) years, from July 1, 2022 through June 30, 2025.

II. Salary:

Effective July 1, 2022, PPOA employees shall receive a five percent (5%) salary increase.

Effective July 1, 2023, PPOA employees shall receive a two percent (2%) salary increase.

Effective July 1, 2024, PPOA employees shall receive a two percent (2%) salary increase.

Resolution No. ___-2022

Page 2 ends

III. Employee Service Awards:

Effective June 1, 2022, the Employee Service Awards section of the City of Porterville Employee Pay & Benefit Plan (Section III (P)), shall be amended as follows:

In an effort to retain and reward existing employees for their loyal continuous service, and to effectively attract and recruit new employees to the City of Porterville, all regular fulltime employees, including provisional employees, and part-time employees who work 1560 hours or more annually, shall be eligible to receive Employee Service Awards for continuous years of service to the City of Porterville, as follows:

Years of
Continuous Service Award Amount
5 $5,000
10 $5,000
15 $5,000
20 $5,000
25 $5,000
30 $5,000
35 $5,000
40 $5,000
Payments shall be made to employee during the quarter during which the employee’s anniversary date falls, in five year increments as identified above. Employee must work the full five year increment to be eligible for said pay.

Only continuous, uninterrupted service with the City of Porterville is eligible for award.

Should an employee leave the service of the City of Porterville and then subsequently return, the employee’s years of service shall reset to zero.

Service as a probationary employee and/or provisional employee is eligible. Part-time employees who work twelve (12) months per year, for a minimum of 1560 hours annually in consecutive years for continuous years of service are eligible.

Employees with at least five (5) continuous years and up to forty (40) continuous years of service with the City of Porterville as of the date that this Memorandum of Understanding is fully executed and officially accepted, will be acknowledged and eligible to receive their Employee Service Award effective the pay-period after the MOU is fully executed and officially accepted, or as soon thereafter as possible.

Subsequent to the initial payments made pursuant to this amended Employee Service Award benefit, payments shall be made on a quarterly basis as defined herein.

Resolution No. ___-2022

Page 3 ends

IV. Holidays:

Effective immediately, Sections III(F) and III(H)4 of the Employees Pay & Benefit Plan shall be amended to add Martin Luther King Day as a recognized municipal holiday for which city offices shall be closed.

V. Take-Home City Vehicles:

Effective the first pay period following ratification and adoption of the Successor MOU by the City Council, PPOA employees assigned to K-9 and SWAT duty shall be eligible for a take-home vehicle, provided said employee resides within 40 miles of the Porterville Police Department located at 350 North D Street, Porterville.

VI. Operational Details:

Effective the first pay period following ratification and adoption of the Successor MOU by the City Council, shift selection for both intervals shall be changed to take place in December each year instead of January.

VII. Call Back/Call Out:

Effective the first pay period following ratification and adoption of the Successor MOU by the City Council, if an employee is called back or called out to work, the employee shall be paid for a minimum of four (4) hours at the rate of one and one-half (1 ½ ) times the employee’s regular rate of pay, in accordance with overtime pay provisions.

VIII. Shift Differential:

Effective the first pay period following ratification and adoption of the Successor MOU by the City Council, shift differential pay of five percent (5%) of base salary shall be paid to PPOA employees formally assigned to night shift, including those assigned to NCSU shift of 6:00 P.M. to 6:00 A.M.

IX. Additional Pay and/or Specialty Pay:

Effective the first pay period following ratification and adoption of the MOU by the City Council, due to the additional education associated with this assignment, PPOA employees assigned to the UAV/Drone Unit shall receive specialty pay of five percent (5%) of base salary. PPOA Employees assigned to this unit are subject to call out.

In the event a PPOA employee is assigned to more than one specialty assignment, stacking of percentages for specialty pay is permitted, with a twelve percent (12%) cap, except for concurrent assignments to SWAT/HNT and MAIT. The twelve percent (12%) cap does not apply to K-9.

To the extent permissible by California law and Labor Code Section 4850, payment of Specialty Pay for Detective and/or MAIT shall be suspended in the event the employee is off duty for any reason, including for a work-related or non-work-related injury, for a period of time of sixty (60) days or longer. At such time as the employee returns to work, the applicable Specialty Pay shall be reinstated effective as of the date of return to active duty. In the event the PPOA employee is off duty due to a work-related injury, this section will only apply proactively to new claims as of October 1, 2022.

Resolution No. ___-2022

Page 4 ends

X. Uniform Allowance:

Effective the first pay period following ratification and adoption of the Successor MOU, the Department’s Uniform and Safety Equipment Allowance shall be increased to $1,200 annually to be paid in 24 equal installments.

XI. 2025/2026 Negotiations:

Labor negotiations for the 2025/2026 Fiscal Year shall begin no later than March 1, 2025.

XII. Statement of Continuing Benefits and Working Conditions:

All other terms and conditions previously negotiated and subsequently approved and implemented by appropriate authority shall, unless herein expressly modified or eliminated, remain in full force and effect until such time as they are subsequently modified or eliminated through the meet and confer process and mutually agreed upon by the City and PPOA.

BE IT FURTHER RESOLVED that the Mayor of the City of Porterville is hereby authorized to execute those documents as are necessary to implement the provisions hereof.

PASSED, APPROVED AND ADOPTED this ____ day of October, 2022. ____________________________________
Martha A. Flores, Mayor
ATTEST:

John Lollis, City Clerk
By: ______________________________
Patrice Hildreth, Chief Deputy City Clerk
Item No. 19.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Reaffirm Conditions of State Assembly Bill 361 to Continue Remote Attendance at Public Meetings
SOURCE: City Manager's Office
COMMENT:

During the prior eighteen (18) months, the City Council and its legislative bodies have conducted teleconferencing meetings as allowed pursuant to a series of Executive Orders, the most recent which expired on September 30, 2021 (Executive Order N-08-021, issued June 11, 2021), which waived all physical presence requirements under the Brown Act as a means of limiting the spread of COVID-19. Pursuant to adopted State law effective September 30, 2021, Assembly Bill 361 (AB 361), extends the authority of public agencies to conduct meetings by teleconference, including video conference, without compliance with all of the Brown Act's limitations on such meetings, which the status of emergency resulting from the COVID-19 pandemic and accompanying recommendations for social distancing remain in place. Consistent with AB 361, the Council must adopt a Resolution consistent with the Governor's State of Emergency, and must review and renew such Resolution every thirty (30) days thereafter. AB 361 will sunset on January 1, 2024. The Council last adopted its Resolution consistent with AB 361 at its meeting on October 4, 2022.

RECOMMENDATION: That the City Council consider adoption of the draft Resolution to continue allowing the option to participate in the City's public meetings remotely through the use of the teleconferencing provisions of AB 361.

ATTACHMENTS: 1. Draft Resolution
Appropriated/Funded:

Review By:

Department Director:

John Lollis, City Manager
Final Approver: John Lollis, City Manager
RESOLUTION _____-2022

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PORTERVILLE

RATIFYING THE PROCLAMATION OF A STATE OF EMERGENCY BY ASSEMBLY BILL 361 ISSUED ON SEPTEMBER 16, 2021, AND AUTHORIZING REMOTE

TELECONFERENCE MEETINGS OF ALL LEGISLATIVE BODIES OF THE CITY OF PORTERVILLE FOR THE PERIOD OF THIRTY (30) DAYS PURSUANT TO BROWN

ACT PROVISIONS
WHEREAS, the City Council is committed to preserving and nurturing public access and participation in meetings of all City of Porterville legislative bodies; and, WHEREAS, all meetings of the City’s legislative bodies are open and public, as required by the Ralph M. Brown Act (Cal. Gov. Code 54950-54963), so that any member of the public may attend, participate, and watch the City’s legislative bodies conduct their business; and,
WHEREAS, the Brown Act, Government Code section 54953(e), makes provisions for remote teleconferencing participation in meetings by members of a legislative body, without compliance with the requirements of Government Code section 54953(b)(s), subject to the existence of certain conditions; and, WHEREAS, a required condition is that a state of emergency is declared by the Governor pursuant to Government Code section 8625, proclaiming the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions as described in Government Code section 8558; and, WHEREAS, a proclamation is made when there is an actual incident, threat of disaster, or extreme period to the safety of persons and property within the jurisdictions that are within the City’s boundaries, caused by natural, technological, or humancaused disasters; and, WHEREAS, it is further required that State or local officials have imposed or recommended measures to promote social distancing, or, the legislative body meeting in person would present imminent risks to the health and safety of attendees; and, WHEREAS, a State of Emergency has been proclaimed by the Governor of the State of California; and,
WHEREAS, State and local officials continue to promote social distancing measures and City’s conference chambers limited capacity would present imminent risk to health and safety of attendees; and,
WHEREAS, as a consequence of the State emergency, the City does hereby find that the legislative bodies of the City shall conduct their meetings without compliance with paragraph three (3) of subdivision (b) of Government Code section 54953, as authorized by subdivision (e) of section 54953, and that such legislative bodies shall comply with the requirements to provide the public with access to the meetings as prescribed in paragraph two (2) of subdivision (c) of section 54953; and, WHEREAS, the City will give notice of the meeting and post agendas, as described, to allow members of the public to access the meeting and address the legislative body, to give notice of the means by which members of the public may access the meeting and offer public comment, including an opportunity for all persons to attend via a call-in option or an internet-based service option, and to conduct the meeting in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body; and, WHEREAS, the legislative body will not take any further action on agenda items when there is a disruption which prevents the public agency from broadcasting the meeting, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments, until public access is restored; and,
WHEREAS, the legislative body will not require public comments to be submitted in advance of the meeting and specifies that the legislative body must provide an opportunity for the public to address the legislative body and offer comment in real time; and,
WHEREAS, the legislative body will not close the public comment until the public comment period has elapsed or until a reasonable amount of time has elapsed as specified.

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

SECTION 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference; and, SECTION 2. Ratification of Governor’s Proclamation of a State of Emergency.

The City hereby ratifies the Governor of the State of California’s Proclamation of March 2, 2020; and,
SECTION 3. Remote Teleconference Meetings. The City Manager and legislative bodies of City of Porterville are hereby authorized and directed to take all actions necessary to carry out the intent and purpose of this Resolution including, conducting open and public meetings in accordance with Government Code section 54953(e) and other applicable provisions of the Brown Act; and, SECTION 4. Effective Date of Resolutions. This Resolution shall take effect immediately upon its adoption and shall be effective until the earlier of November 17, 2022, or such time the Council adopts a subsequent Resolution in accordance with Government Code section 54953 (e)(3) to extend the time during which the legislative bodies of City of Porterville may continue to teleconference without compliance with paragraph (3) of subdivision (b) of section 54953.

PASSED, APPROVED, AND ADOPTED this 18th day of October, 2022.

Martha A. Flores, Mayor
ATTEST:

John D. Lollis, City Clerk
By:

Patrice Hildreth, Chief Deputy City Clerk
Item No. 20.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Status and Review of Local Emergency: Drought
SOURCE: City Manager's Office
COMMENT:

At its meeting of May 5, 2015, the City Council took action to approve a Resolution Declaring a Drought Emergency in the City of Porterville. At its meeting of October 4, 2022, the Council reviewed the status of existence of local emergency, and acted to continue its Resolution of local emergency.

Governor Brown issued Executive Order B-29-15 on Wednesday, April 1, 2015, which established drought-related mandates and restrictions in addition to those already stipulated in previous Executive Orders B-26-14 and B-28-14. Of significance, the Governor directed the State Water Resources Control Board to impose restrictions to achieve a statewide twenty-five percent (25%) reduction in potable urban water usage through February 28, 2016, in comparison to the amount used in 2013, and with consideration given to per capita usage as a basis. The Governor further directed the Board to impose additional restrictions on commercial, industrial, and institutional properties with significant landscaping (cemeteries, golf courses, parks, schools, etc.), to also achieve a twenty-five (25%) reduction in potable water usage. Also of significance, the Board was directed to prohibit irrigation with potable water outside of newly constructed homes and buildings that is not delivered by drip or micro-spray systems.

On November 13, 2015, Governor Brown issued Executive Order B-36-15, which extends emergency conservation regulations through October 2016, if drought conditions persist through January 2016. On February 2, 2016, the State Water Resources Control Board adopted extended emergency water conservation regulations, to be in effect March 1 through October 31, 2016.

The City of Porterville benefited somewhat from the extended regulations as the City's water conservation rate has been reduced from thirty-two percent (32%) to twenty-six percent (26%), due to new water connections that have been made and population served (4%), as well as a new climate adjustment factor that was considered (2%).

On May 9, 2016, Governor Brown issued Executive Order B-37-16 ("Making Water Conservation a California Way of Life"), which directs the State Water Resources Control Board to establish new regulations making permanent the emergency conservation regulations. On May 18, 2016, the State Water Resources Control Board adopted a statewide water conservation approach that replaces the percentage reduction-based water conservation standard with a Item No. 20.
localized "stress test" approach that mandates urban water suppliers act immediately to ensure at least a three-year supply of water to their customers under continued drought conditions.

On April 7, 2017, Governor Brown issued Executive Order B-40-17, which ended the drought state of emergency in most of California, with the exception of Fresno, Kings, Tulare and Tuolumne counties where emergency water supply and reliability projects are continuing toward addressing diminishing groundwater supplies. The Order maintains monthly reporting requirements and prohibitions on wasteful practices.

On May 31, 2018, Governor Brown signed both AB 1668 (Friedman) and SB 606 (Hertzberg), which set permanent overall targets for indoor and outdoor water consumption. The legislation sets an initial limit for indoor water use of fifty-five (55) gallons per-person per-day in 2022, reducing to 52.5 gallons perperson per-day in 2025, and finally to fifty (50) gallons per-person per-day in 2030. The amount of residential outdoor use is yet-to-be determined, but will allow for varying regional climates. In addition, a standard for water loss due to leak rates in water system pipes will be established. As an urban water provider, the City will need to submit its plan for compliance for approval by the State Water Resources Control Board.

On March 5, 2021, Secretary Vilsack of the United States Department of Agriculture federally-designated Tulare County as a primary natural disaster area due to ongoing drought conditions. On April 21, 2021, Governor Newsom issued a State of Emergency Proclamation due to drought conditions, including Tulare County. On April 27, 2021, the Tulare County Board of Supervisors adopted a Resolution Proclaiming a Local Emergency due to severe drought conditions. On January 4, 2022, the State Water Resources Control Board adopted emergency regulations to supplement voluntary water conservation.

On March 28, 2022, Governor Newsom issued Executive Order N-7-22, that requires the state's largest water providers (including the City of Porterville) to put in place "Level 2" of water shortage contingency plans, which the City is currently in "Level 4." On June 10, 2022, the State Water Resources Control Board adopted emergency regulations to prohibit the watering of nonfunctional or purely decorative grass in commercial, industrial or institutional properties with potable water.

Initially within the city of Porterville, twenty-six (26) residences within the city were determined to have dry wells, for which City staff submitted a Mutual Aid Request to Tulare County OES to initiate the household tank program for identified properties within the city where wells are dry and challenged for permanent connection. The State has committed funding for non-profit agencies to continue drought-related activities, which Self-Help Enterprises has continued the household tank program locally, through State Cleanup and Abatement Account (CAA) emergency funds.

Representatives for the City, County, State (CalOES, DDW, DWR, and SWB) Item No. 20.
and non-profit partners continued to meet in support of the long-term permanent water connection project for the entire East Porterville area and the estimated 1,800 expected future connections. DWR identified 423 residential units in the East Porterville area (381 of which are in the City's Urban Development Boundary), that were served by the County's Household Tank Program and desired by the State to be connected to the City's water distribution system as soon as possible. DWR has completed a significant City waterline extension project to permanently connect those 423 residential units to the City's water system (considered Phase I of the project). To provide initial source water for the DWR extension project, CalOES desired to expeditiously connect the new well on Olive Avenue to the City's water system instead of being first equipped as a filling station. Given the new well has an estimated water production value of 800 gallons per minute, as well as a SWB assumed 1.5 gallons per minute per residence, the new well could effectively serve up to five hundred (500) single-family residential units. The City indicated its significant interest that the E. Vandalia Avenue area and its eighty (80) residential units be included in the water connection project, to which the State was agreeable.

Given CalOES has paid for the development of the new well, and its connection to the City's water system, the City will be required under "Drought Redundancy and Resiliency Provisions" to make available to the State up to three million gallons of water per month without charge for emergency purposes. On May 7, 2022, Tulare County OES notified the City that due to deteriorating conditions across the county involving small water systems dependent upon the Friant-Kern Canal that may result in the complete lack of water or "Do Not Drink" orders, the State and County may have to invoke the provision of water from the well.

To proceed with the connection of the new well to the City's water system and the 500 East Porterville and E. Vandalia Avenue residential units, the City Council approved modifications to the Draft Agreement between the City and County at its meeting on April 5, 2016, which the County Board of Supervisors subsequently approved at their meeting on May 10, 2016.

A Memorandum of Understanding between the State, County, and City on the East Porterville permanent water connection project was approved by the Council during a Special Meeting on Tuesday, June 21, 2016, and approved by the Board of Supervisors on Tuesday, June 28, 2016. With the approval of the MOU, the State began the permanent connection of approximately forty (40) homes that are located along existing City water mains. Subsequently, the State officially requested that the City approve the connection of an additional thirty (30) residences as part of the first immediate connections, for up to a total of seventy (70), which the Council approved at its meeting on August 2, 2016.

In regards to the new well's development and connection to the City's water distribution system, the Board of Supervisors awarded the contract for equipping and connecting the new well at its meeting on Tuesday, August 16, 2016, and construction activities commenced the week of October 10, 2016.

County staff had previously indicated that the well would be in service and Item No. 20.
connected to the City's system no later than December 2016, however, the well was operational and connected to the City's water distribution as of Friday, February 17, 2017. Given the delay in the well's completion and connection, DWR requested that the Council consider allowing the connection of residences as they become prepared for connection, to which the Council was receptive, and a Draft MOU Amendment was approved by the Council at its meeting on December 6, 2016, and subsequently approved by the Board of Supervisors at is meeting on December 20, 2016. City staff continued to work with County staff toward the transfer of the well's ownership from the County to the City, which at its meeting on April 20, 2021, the Council approved the draft Transfer Agreement subject to the City Attorney's final form.

As of Friday, March 31, 2017, the date the State established as the final day for property owners to complete the registration process to participate in the Statefunded connection program opportunity, of the 1,017 eligible developed residential properties identified by the State for connection, 722 completed the required Extra-Territorial Services Agreement, leaving 295 developed residential properties non-responsive to this unique connection program, twenty-three (23) of which were reported as having either dry or diminishing capacity wells. On February 6, 2018, the final residential connection was made of the approximate eligible eight hundred (800) residences in East Porterville to the City's water system.

City staff continues to coordinate with Self-Help Enterprises and State representatives toward the extension of water mains to serve all residential properties within City limits and the city's periphery that are currently participating in the County's Household Tank Program. The two main areas of focus are N. Cobb Street (northwest of State Route 65 and Pioneer Avenue), and S. Cloverleaf Street (southeast of State Route 65 and Olive Avenue). The State has maintained its commitment to grant-fund the necessary infrastructure and connection fees, providing an official funding letter to the City on January 18, 2018, which commits up to $2.81 million in funding until December 31, 2019. The authorization to advertise for bids for the water connection project was approved by the Council at its July 17th meeting, after which DWR reviewed the bid package for compliance and approved in December the package for advertisement. Council authorized award of the construction contract for approximately $1.82 million at its meeting on January 15, 2019.

City staff conducted a pre-construction public outreach meeting with the affected residents on the status of the project on Thursday, April 4, 2019.

Council authorized the agreement with Self-Help Enterprises Inc. to provide the private residential connections at its meeting on July 2, 2019, and construction work began on the project. At its meeting on October 1, 2019, the Council accepted the public works segment of the project in the installation of water mains as complete, with Self-Help and CSET continuing to collaborate on the completion of the individual private connections and abandonment of private wells. City staff has recently been made aware that there may be a couple of additional residences whose wells are dry that are located along existing City water mains or may require further extension of water mains.

Staff is coordinating with State staff on addressing these new isolated needs.

Item No. 20.

County OES and the State Division of Drinking Water (DDW) have reported to the City that the Central Mutual Water Company, located south of the city and south of Gibbons Avenue, has had its well run dry and desires an immediate emergency connection to the City's water system to serve the forty-one (41) connections currently without water. DDW is wishing to support a financial application to upgrade the small water system to City standards (new water lines, meters ,etc.), and to sponsor an Urban Development Boundary (UDB) Amendment application to Tulare County Local Agency Formation Commission (LAFCO), given this area is currently outside the City's UDB but within the City's Urban Area Boundary (UAB). Given several private wells have run dry in this area, DDW is also attempting to sponsor their connection to the City's water system. For source water capacity for the connections, DWR will include these new connections within the East Porterville water connection capacity development projects. At its Special meeting on August 30, 2019, the City Council directed staff to proceed with the immediate emergency connection of the Central water system, with the permanent connection of the system contingent upon an Agreement with DDW to the sponsorship conditions they have offered. At its meeting on October 1, 2019, the Council directed staff to proceed with the amendment of the UDB to facilitate annexation, which a public meeting with the affected residents was conducted on Wednesday, October 9, 2019. At its meeting on April 21, 2020, the Council conducted a Public Hearing and approved Resolutions of approval of the environmental determination and amendment to the UDB to facilitate annexation. At its meeting on June 1, 2021, the Council approved the State Water Board funding agreement for the development of a City-owned production well, distribution mains and water meters to serve each customer, as well as fire hydrants. On July 20, 2021, the City received notification from the State Water Board that the Akin/Central Water Consolidation Project funding agreement had been formally approved and executed.

DDW has also reported to the City that the Del Oro East Plano water system, located on Paul Street (southeast of the intersection of Plano Street and Worth Avenue), is experiencing problems with its existing well and have implemented severe water restrictions. The East Plano water system serves fourteen (14) residences and approximately forty-five (45) people. DDW is wishing to provide financial support to upgrade the small water system to City standards (new water lines, meters ,etc.), and for source water capacity for the connections, DDW would need to either pay appropriate fees and/or develop a capacity development project. The Council is aware that the Del Oro Grandview Gardens water system (north of W. North Grand Avenue) is also experiencing significant issues, and DDW may seek their future consolidation with the City's water system as well.

DDW has further reported to the City that the Beverly Grand Mutual Water Company water system, located north of West North Grand Avenue, is experiencing problems with its existing well and water quality issues, and desires its connection to the City's system to serve the thirty-one (31) residences the system serves. DDW is wishing to provide financial support to upgrade the Item No. 20.
small water system to City standards (new water lines, meters ,etc.), and for source water capacity for the connections, DDW has agreed to pay appropriate fees toward developing a capacity development project, which at its meeting of October 3, 2017, the Council approved a purchase agreement with Smee Homes, Inc. for the acquisition of property along the Tule River for the development of a new municipal well. At its meeting of October 1, 2019, the Council approved proceeding with the consolidation of the Beverly Grand water system.

RECOMMENDATION: That the City Council receive the report of status and review of the Declaration of Local Emergency and determine the need exists to continue said Declaration.

ATTACHMENTS: 1. City of Porterville Resolution Declaring Local Drought Emergency: May 5, 2015

2. United States Department of Agriculture Drought Natural Disaster Area Designation: March 5, 2021

3. State of California State of Emergency Proclamation: April 21, 2021

4. County of Tulare Drought Local Emergency Resolution:

April 27, 2021

5. State Water Resources Control Board: Emergency
Regulation - Water Conservation; January 4, 2022

6. Governor Newsom Executive Order N-7-22: March 28,
2022

7. State Water Resources Control Board: Emergency
Regulation - Water Conservation; June 10, 2022

8. State Water Resources Control Board Funding Agreement:

Akin/Central Water Consolidation Project
Appropriated/Funded:

Review By:

Department Director:

John Lollis, City Manager
Final Approver: John Lollis, City Manager

EXECUTIVE DEPARTMENT

STATE OF CALIFORNIA
State of Emergency Proclamation
WHEREAS climate change is intensifying the impacts of droughts on our communities, environment and economy, and California must therefore improve drought resiliency and prepare to respond to more frequent, prolonged, and intense dry periods; and
WHEREAS much of the West is experiencing severe to exceptional drought and California is in a second consecutive year of dry conditions, resulting in drought or near-drought throughout many portions of the State; and WHEREAS these drought conditions can result in degraded water quality, fallowing of productive farmland, setbacks to vulnerable and rural communities through job losses and longer-lasting recoveries, significant impacts to tribal, commercial, and recreational salmon fisheries, constraints on access to traditional lifeways, loss of aquatic and terrestrial biodiversity, and ecosystem impacts; and
WHEREAS drought conditions vary across the State and some watersheds, including the Russian River and Klamath Basin, are extremely dry and are facing substantial water supply and ecosystem challenges; and
WHEREAS it is necessary to expeditiously mitigate the effects of the drought conditions within the Russian River Watershed, located within Mendocino and Sonoma counties, to ensure the protection of health, safety, and the environment; and
WHEREAS experience in the last drought has demonstrated the value of preparing earlier for potential sustained dry conditions, the need to improve our monitoring and forecasting capabilities, and many other lessons that are captured in the Administration1s Report to the Legislature on the 2012-2016 Drought; and
WHEREAS the State and its many partners have strengthened drought resilience since the last drought including state investments in water management systems, implementation of the Sustainable Groundwater Management Act, establishment of the Safe and Affordable Fund for Equity and Resilience Program, development of the Administration's Water Resilience Portfolio, and continued water conservation by Californians whose current statewide urban water use is 16% lower than at the beginning of the last drought; and
WHEREAS state agencies have been actively responding to current drought conditions and preparing for the possibility of a third dry year including through convenings of the interagency drought team, which was established at my direction, to organize, focus, and track changing conditions, coordinate state agency responses, and work closely with partners across the State; and WHEREAS under the provisions of Government Code section 8558(b), I find that the conditions caused by the drought conditions, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment, and facilities of any single local government and require the combined forces of a mutual aid region or regions to appropriately respond; and
WHEREAS under the provisions of Government Code section 8625(c), I find that local authority is inadequate to cope with the drought conditions; and WHEREAS to protect public health and safety, it is critical the State take certain immediate actions without undue delay to prepare for and mitigate the effects of, the drought conditions within the Russian River Watershed, and under the provisions of Government Code section 8571, I find that strict compliance with various statutes and regulations specified in this Proclamation would prevent, hinder, or delay the mitigation of the effects of the drought conditions of the Russian River Watershed, located within Mendocino and Sonoma counties.

NOW THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the State Constitution and statutes, including the California Emergency Services Act, and in particular, section 8625, HEREBY PROCLAIM A STATE OF EMERGENCY to exist in Mendocino and Sonoma counties due to drought conditions in the Russian River Watershed.

IT IS HEREBY ORDERED THAT:

1. To further the success of California's water conservation efforts and increase our drought preparedness, state agencies shall partner with local water districts and utilities to make all Californians aware of drought, and encourage actions to reduce water usage by promoting the Department of Water Resources' Save Our Water campaign
(https://saveourwater.com) and other water conservation programs.

2. To continue coordination with partners across the State for the potential of prolonged drought impacts, the Department of Water Resources, the State Water Resources Control Board (Water Board), the Department of Fish and Wildlife, and the Department of Food and Agriculture shall work with regional and local governments, including groundwater sustainability agencies, to identify watersheds, communities, public water systems, and ecosystems that may require coordinated state and local actions to address issues stemming from continued dry conditions, to ensure that we can respond to water shortages and protect people, natural resources and economic activity.

3. To continue partnership and coordination with Californian Native American tribes, state agencies shall engage in consultation, collaboration, and communication with California Native American tribes to assist them in necessary preparation and response to drought conditions on tribal lands and potential impacts to cultural and traditional resources within ancestral lands.

4. To prioritize drought response and preparedness resources, the Department of Water Resources, the Water Board, the Department of Fish and Wildlife and the Department of Food and Agriculture, in consultation with the Department of Finance, shall:
a. Accelerate funding for water supply enhancement, water conservation, or species conservation projects.
b. Identify unspent funds that can be repurposed to enable projects to address drought impacts to people, ecosystems, and economic activities.
c. Recommend additional financial support for water resilience infrastructure projects and actions for potential inclusion in the upcoming May Revision.

5. To increase resilience of our water supplies during drought conditions, the Department of Water Resources shall:
a. Work with counties to encourage reporting of household water shortages, such as dry residential wells, on the website the Department maintains for that purpose, to enable tracking of drought impacts.
b. Work with counties, and groundwater sustainability agencies as appropriate, to help ensure that well drillers submit required groundwater well logs for newly constructed and deepened wells in a timely manner.
c. Work with agricultural water suppliers and agricultural water users to provide technical assistance, including implementation of efficient water management practices and use of technology such as the California Irrigation Management Information System.
d. Work with urban and agricultural water suppliers to encourage timely submittal by water districts and public posting of urban water management and water shortage contingency plans and
agricultural water management and drought plans.
e. Accelerate updating the land subsidence data it is providing to support implementation of the Sustainable Groundwater
Management Act.

6. To increase resilience of our water systems during drought conditions, the Water Board shall:
a. Use its authority, provide technical assistance, and where feasible provide financial assistance, to support regular reporting of drinking water supply well levels and reservoir water levels where the Water Board determines that there is risk of supply failure because of lowering groundwater levels or reservoir levels that may fall below public water system intakes.
b. Prioritize the permitting of public water systems that anticipate the need to activate additional supply wells where water quality is a concern and treatment installation needs to proceed to relieve a system's potential supply concerns.
c. Provide annual water demand data, information on water right priority, and other communications on water availability on its website.
d. Identify watersheds where current diversion data is insufficient to evaluate supply impacts caused by dry conditions, and take actions to ensure prompt submittal of missing data in those watersheds.

7. To address the acutely dry conditions in the Russian River Watershed, the Water Board shall consider:
a. Modifying requirements for reservoir releases or diversion limitations in that watershed to ensure adequate, minimal water supplies for critical purposes.
b. Adopting emergency regulations to curtail water diversions when water is not available at water rights holders' priority of right or to protect releases of stored water.

For purposes of carrying out this directive, Public Resources Code, Division 13 (commencing with section 21000) and regulations adopted pursuant to that Division are suspended in the counties of Mendocino and Sonoma to the extent necessary to address the impacts of the drought in the Russian River Watershed. The Water Board shall identify the projects eligible for the suspensions pursuant to this paragraph and maintain on its websites a list of the activities or approvals for which these provisions are suspended.

8. To ensure that equipment and services necessary for drought response in the Russian River Watershed can be procured quickly, the provisions of the Government Code and the Public Contract Code applicable to procurement, state contracts, and fleet assets, including, but not limited to, advertising and competitive bidding requirements, are hereby suspended to the extent necessary to address the effects of the drought in the Russian River Watershed, located within Mendocino and Sonoma counties. Approval of the Department of Finance is required prior to the execution of any contract entered into pursuant to this provision.

9. To increase the resilience of our natural habitats to protect vulnerable species during drought conditions, the Department of Fish and Wildlife shall:
a. Evaluate and take actions to protect terrestrial and aquatic species and, wherever possible, work with water users and other parties on voluntary measures to protect species.
b. Work to improve State hatcheries and increase water use efficiency on State wildlife areas and ecological reserves to maintain habitat for vulnerable species.
c. Respond to human-wildlife interactions related to ongoing dry conditions and increase public messaging and awareness. d. Work with commercial and recreational salmon fishing and tribal representatives to anticipate and develop strategies to mitigate and respond to salmon fishery impacts, with particular emphasis on addressing impacts to salmon fisheries in the Klamath Basin.

10.To support our agricultural economy and food security during drought conditions, the Department of Food and Agriculture shall:
a. Provide technical assistance to support conservation planning, onfarm water and energy conservation practices and technologies, including augmenting the State Water Efficiency and Enhancement Program.
b. Conduct an economic analysis of drought impacts to agriculture, including land use, jobs, and rural food economies, expanding on existing research done in the last drought to include thorough regional analysis especially in the Central Valley, and in the implementation of the Sustainable Groundwater Management Act and alternative land uses for fallowed land.
c. Maintain a web page with drought resources for farmers and ranchers, including the United States Department of Agriculture and other federal and state resources.
d. Work with federal agencies to assist Klamath Basin farmers and ranchers contending with reduced water supplies.

11.To ensure the potential impacts of drought on communities are anticipated and proactively addressed, the Department of Water Resources, in coordination with the Water Board, shall develop groundwater management principles and strategies to monitor, analyze, and minimize impacts to drinking water wells.

12.To provide critical information on the different drought conditions across the State, the Department of Water Resources, in consultation with the Department of Fish and Wildlife, the Department of Food and Agriculture, and the Water Board, shall develop a California Drought Monitor by December 31, 2021, as recommended in the Administration's Report to the Legislature on the 2012-2016 Drought.

13.To prepare for potential salinity issues in the Delta, the Department of Water Resources, in consultation with the Water Board, the Department of Fish and Wildlife, the Delta Stewardship Council, and the Central Valley Flood Protection Board, shall initiate actions necessary to prepare for and address potential Delta salinity issues during prolonged drought conditions.

14.To prepare for potential impacts of drought conditions on species, the Water Board and the Department of Fish and Wildlife shall work with federal agency partners to manage temperature conditions for the preservation of fish in the Sacramento River downstream of Shasta Dam while balancing water supply needs.

This Proclamation is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers, employees, or any other person.

I FURTHER DIRECT that as soon as hereafter possible, this Proclamation be filed in the Office of the Secretary of State and that widespread publicity and notice be given of this Proclamation.

IN WITNESS WHEREOF I have hereunto set
my hand and caused the Great Seal of the
State of alifornia t be affixed this 21st
day of ril 2021
ATTEST:

RESOLUTION PROCLAIMING A LOCAL EMERGENCY

BY THE BOARD OF SUPERVISORS

COUNTY OF TULARE, STATE OF CALIFORNIA

IN THE MATTER OF A

LOCAL EMERGENCY DUE TO )

SEVERE DROUGHT CONDITIONS)
RESOLUTION NO. 2021-0290
WHEREAS, California's most recent drought spanning from approximately 2012 to 2018 required the proclamation of a Local Emergency by the County of Tulare from February 2014 to November 2019, as well as a Governor's State of Emergency and the combined resources of multiple local, state, and federal agencies, commercial entities, and non-profit organizations to mitigate; and
WHEREAS, over 3,000 failed or dry wells - including private domestic, community, and agricultural wells - were reported to Tulare County from 2014 to 2017 as a result of the prior drought, causing significant health, safety, and economic issues for Tulare County residents and businesses; and
WHEREAS, well over $100 million in emergency relief and permanent infrastructure projects were expended to mitigate the effects of the prior drought; and WHEREAS, a hydrological year ("water year") runs from October 1 to September 30 of the following year; and
WHEREAS, the current water year beginning October 1, 2020 is, to date, the third-driest on record, with potential to become the driest on record without significant additional precipitation which is unlikely to occur during the traditionally dry months; and WHEREAS, the United States Drought Monitor shows that 94.51 % of Tulare County is currently experiencing "Extreme Drought" (D3) conditions and the remaining 5.49% is in "Severe Drought" (D2) conditions, and the County of Tulare anticipates that these conditions will progress to "Exceptional Drought" (D4) conditions as occurred in the prior drought based on the current Southern Sierra snowpack measured at only 15% of historical average for April 1st, drastically reduced surface water allocations on the State Water Project and Central Valley Project, and correspondingly low water levels in local reservoirs ; and WHEREAS, surface water supply constraints create a demonstrable and unsustainable increase in demand for groundwater which is likely to cause additional dry wells for community water systems, private domestic wells, and agricultural wells, creating economic hardships and conditions of extreme peril to the health and safety of individuals within Tulare County requiring the combined forces of all levels of government to mitigate; and WHEREAS, California Government Code section 8630 empowers the Board of Supervisors to proclaim the existence or threatened existence of a local emergency; and WHEREAS, Section 1-15-1005 of the Tulare County Ordinance Code defines "emergency" to include "the actual or threatened existence of conditions of disaster or of extreme peril to the safety of persons and property within [Tulare] County caused by such conditions as air pollution, fire, flood , storm , epidemic, riot, earthquake, or other conditions, ... which conditions are or are likely to be beyond the control of the services, personnel, equipment, and facilities of [Tulare] County, requiring the combined forces of other political subdivisions to combat"; and
NOW, THEREFORE, IT IS HEREBY PROCLAIMED that a local emergency now exists throughout said Tulare County due to drought which has created conditions of disaster and extreme peril to the safety of persons and property within the County, and that such conditions are or are likely to be beyond the control of the services, personnel , equipment, and/or facilities of this County, thus requiring the combined forces of other political subdivisions to combat; and IT IS FURTHER PROCLAIMED that this local emergency is proclaimed pursuant to the California Emergency Services Act, California Government Code §8550 et seq.; and IT IS REQUESTED that the Governor of the State of California find and proclaim Tulare County to be in a State of Emergency, and make available any and all material and financial support and resources necessary to combat the conditions of disaster, including but not limited to California Disaster Assistance Act funding for emergency protective measures and increased funding to relevant programs of the State Water Resources Control Board and Department of Water Resources ; and
IT IS FURTHER REQUESTED that the Governor waive and all regulations and statutes that may hinder response to this emergency; and
IT IS PROCLAIMED AND ORDERED that during the existence of said local emergency, the powers, functions, and duties of the emergency organization of Tulare County shall be those prescribed by State law, by ordinances and resolutions of Tulare County, and by the Tulare County Operational Area Emergency Operations Plan, as approved by the Board of Supervisors.

UPON MOTION OF SUPERVISOR MICARI, SECONDED BY SUPERVISOR

TOWNSEND, THE FOLLOWING WAS ADOPTED BY THE BOARD OF
SUPERVISORS, AT AN OFFICIAL MEETING HELD APRIL 27, 2021 , BY THE FOLLOWING VOTE:

AYES: SUPERVISORS MICARI , VANDERPOEL, SHUKLIAN, VALERO AND

TOWNSEND
NOES: NONE
ABSTAIN : NONE
ABSENT: NONE
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ATTEST:

BY:

JASON T. BRITT

COUNTY ADMINISTRATIVE OFFICER/

CLERK, BOARD OF SUPERVISORS

STATE WATER RESOURCES CONTROL BOARD
RESOLUTION NO. 2022-0002

TO ADOPT AN EMERGENCY REGULATION

TO SUPPLEMENT VOLUNTARY WATER CONSERVATION
WHEREAS:

1. On April 21, May 10, and July 8, 2021, Governor Newsom issued proclamations that a state of emergency exists in a total of 50 counties due to severe drought conditions and directed state agencies to take immediate action to preserve critical water supplies and mitigate the effects of drought and ensure the protection of health, safety, and the environment.

2. On October 19, 2021, Governor Newsom signed a proclamation extending the drought emergency statewide and further urging Californians to reduce their water use.

3. There is no guarantee that winter precipitation will alleviate the current drought conditions.

4. Many Californians have taken bold steps over the years to reduce water use; nevertheless, the severity of the current drought and uncertainty about Water Year 2022 require additional conservation actions from residents and businesses.

5. Water conservation is the easiest, most efficient, and most cost-effective way to quickly reduce water demand and extend supplies into the next year, providing flexibility for all California communities. Water saved is water available next year, giving water suppliers the flexibility to manage their systems efficiently. The more water that is conserved now, the less likely it is that a community will experience such dire circumstances or that water rationing will be required.

6. Most Californians use more water outdoors than indoors. In many areas, 50 percent or more of daily water use is for lawns and outdoor landscaping. Outdoor water use is generally discretionary, and many irrigated landscapes would not suffer greatly from receiving a decreased amount of water.
2 7. Public information and awareness are critical to achieving conservation goals, and the Save Our Water campaign (SaveOurWater.com), run jointly by the Department of Water Resources (DWR) and the Association of California Water Agencies, is an excellent resource for conservation information and messaging that is integral to effective drought response.

8. SaveWater.CA.Gov is an online tool designed to help save water in communities. This website lets anyone easily report water waste from their phone, tablet, or computer by simply selecting the type of water waste they see, typing in the address where the waste is occurring, and clicking send.

These reports are filed directly with the State Water Resources Control Board (State Water Board or Board) and relevant local water supplier.

9. Enforcement against water waste is a key tool in conservation programs.

When conservation becomes a social norm in a community, the need for enforcement is reduced or eliminated.

10. On October 19, 2021, the Governor suspended the environmental review required by the California Environmental Quality Act to allow State Water Board-adopted drought conservation emergency regulations and other actions to take place quickly to respond to emergency conditions.

11. Water Code section 1058.5 grants the State Water Board the authority to adopt emergency regulations in certain drought years in order to: “prevent the waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion, of water, to promote water recycling or water conservation, to require curtailment of diversions when water is not available under the diverter’s priority of right, or in furtherance of any of the foregoing, to require reporting of diversion or use or the preparation of monitoring reports.”

12. On November 30, 2021, the State Water Board issued public notice that the State Water Board would consider the adoption of the regulation at the Board’s regularly scheduled January 4, 2022 public meeting, in accordance with applicable State laws and regulations. The State Water Board also distributed for public review and comment a Finding of Emergency that complies with State laws and regulations.

13. The emergency regulation sets a minimum standard that many communities are already doing more but not everyone is taking these lowcost, easy to implement actions that can save significant amounts of water during a drought emergency.
3 14. Disadvantaged communities may require assistance in increasing water conservation, and state and local agencies should look for opportunities to provide assistance in promoting water conservation, including but not limited to translation of regulation text and dissemination of water conservation announcements into languages spoken by at least 10 percent of the people who reside in a water supplier’s service area, such as in newspaper advertisements, bill inserts, website homepage, social media, and notices in public libraries.

15. The Board directs staff to consider the following in pursuing any enforcement of section 995, subdivision (b)(1)(A)-(F): before imposing monetary penalties, staff shall provide one or more warnings; monetary penalties must be based on an ability to pay determination, consider allowing a payment plan of at least 12 months, and shall not result in a tax lien; and Board enforcement shall not result in shutoff.

16. The Board encourages entities other than Board staff that consider any enforcement of this regulation to apply these same factors identified in resolved paragraph 15. Nothing in the regulation or in the enforcement provisions of the regulation precludes a local agency from exercising its authority to adopt more stringent conservation measures. Moreover, the Water Code does not impose a mandatory penalty for violations of the regulation adopted by this resolution, and local agencies retain their enforcement discretion in enforcing the regulation, to the extent authorized, and may develop their own progressive enforcement practices to encourage conservation.

THEREFORE BE IT RESOLVED THAT:

1. The State Water Board adopts California Code of Regulations, title 23, section 995, as appended to this resolution as an emergency regulation.

2. State Water Board staff will submit the regulation to the Office of Administrative Law (OAL) for final approval.

3. If, during the approval process, State Water Board staff, the State Water Board, or OAL determines that minor corrections to the language of the regulation or supporting documentation are needed for clarity or consistency, the State Water Board Executive Director or designee may make such changes.
4 4. This regulation shall remain in effect for one year after filing with the Secretary of State unless the State Water Board determines that it is no longer necessary due to changed conditions or unless the State Water Board renews the regulation due to continued drought conditions, as described in Water Code section 1058.5.

5. The State Water Board directs State Water Board staff to work with the Department of Water Resources and the Save Our Water campaign to disseminate information regarding the emergency regulations.

6. Nothing in the regulation or in the enforcement provisions of the regulation precludes a local agency from exercising its authority to adopt more stringent conservation measures. Local agencies are encouraged to develop their own progressive enforcement practices to promote conservation.

CERTIFICATION
The undersigned Clerk to the Board does hereby certify that the foregoing is a full, true, and correct copy of a resolution duly and regularly adopted at a meeting of the State Water Resources Control Board held on January 4, 2022.

AYE: Vice Chair Dorene D’Adamo
Board Member Sean Maguire
Board Member Laurel Firestone
Board Member Nichole Morgan
NAY: None
ABSENT: Chair E. Joaquin Esquivel
ABSTAIN: None
Jeanine Townsend
Clerk to the Board
5 ADOPTED TEXT OF EMERGENCY REGULATION
Title 23. Waters
Division 3. State Water Resources Control Board and Regional Water Quality Control Boards
Chapter 3.5. Urban Water Use Efficiency and Conservation Article 2. Prevention of Drought Wasteful Water Uses
§ 995. Wasteful and Unreasonable Water Uses.
(a) As used in this section:
(1) “Turf” has the same meaning as in section 491.
(2) “Incidental runoff” means unintended amounts (volume) of runoff, such as unintended, minimal overspray from sprinklers that escapes the area of intended use.

Water leaving an intended use area is not considered incidental if it is part of the facility or system design, if it is due to excessive application, if it is due to intentional overflow or application, or if it is due to negligence.
(b)(1) To prevent the unreasonable use of water and to promote water conservation, the use of water is prohibited as identified in this subdivision for the following actions:
(A) The application of potable water to outdoor landscapes in a manner that causes more than incidental runoff such that water flows onto adjacent property, non-irrigated areas, private and public walkways, roadways, parking lots, or structures;
(B) The use of a hose that dispenses water to wash a motor vehicle, except where the hose is fitted with a shut-off nozzle or device attached to it that causes it to cease dispensing water immediately when not in use; (C) The use of potable water for washing sidewalks, driveways, buildings, structures, patios, parking lots, or other hard surfaced areas, except in cases where health and safety are at risk;
(D) The use of potable water for street cleaning or construction site preparation purposes, unless no other method can be used or as needed to protect the health and safety of the public;
(E) The use of potable water for decorative fountains or the filling or topping-off of decorative lakes or ponds, with exceptions for those decorative fountains, lakes, or ponds that use pumps to recirculate water and only require refilling to replace evaporative losses;
(F) The application of water to irrigate turf and ornamental landscapes during and within 48 hours after measurable rainfall of at least one fourth of one inch of rain.

In determining whether measurable rainfall of at least fourth of one inch of rain occurred in a given area, enforcement may be based on records of the National Weather Service, the closest CIMIS station to the parcel, or any other reliable source of rainfall data available to the entity undertaking enforcement of this subdivision; and
(G) The use of potable water for irrigation of ornamental turf on public street medians.
6 (2) Notwithstanding subdivision (b)(1), the use of water is not prohibited by this section to the extent necessary to address an immediate health and safety need. This may include, but is not limited to, the use of potable water in a fountain or water feature when required to be potable because human contact is expected to occur. (c)(1) To prevent the unreasonable use of water and to promote water conservation, any homeowners’ association or community service organization or similar entity is prohibited from:
(A) Taking or threatening to take any action to enforce any provision of the governing documents or architectural or landscaping guidelines or policies of a common interest development where that provision is void or unenforceable under section 4735, subdivisions (a) and (b) of the Civil Code; (B) Imposing or threatening to impose a fine, assessment, or other monetary penalty against any owner of a separate interest for reducing or eliminating the watering of vegetation or lawns during a declared drought emergency, as described in section 4735, subdivision (c) of the Civil Code; or (C) Requiring an owner of a separate interest upon which water-efficient landscaping measures have been installed in response to a declared drought emergency, as described in section 4735, subdivisions (c) and (d) of the Civil Code, to reverse or remove the water-efficient landscaping measures upon the conclusion of the state of emergency.
(2) As used in this subdivision:
(A) “Architectural or landscaping guidelines or policies” includes any formal or informal rules other than the governing documents of a common interest development.
(B) “Homeowners’ association” means an “association” as defined in section 4080 of the Civil Code.
(C) “Common interest development” has the same meaning as in section 4100 of the Civil Code.
(D) “Community service organization or similar entity” has the same meaning as in section 4110 of the Civil Code.
(E) “Governing documents” has the same meaning as in section 4150 of the Civil Code.
(F) “Separate interest” has the same meaning as in section 4185 of the Civil Code.
(3) If a disciplinary proceeding or other proceeding to enforce a rule in violation of subdivision (c)(1) is initiated, each day the proceeding remains pending shall constitute a separate violation of this regulation.
(d) To prevent the unreasonable use of water and to promote water conservation, any city, county, or city and county is prohibited from imposing a fine under any local maintenance ordinance or other relevant ordinance as prohibited by section 8627.7 of the Government Code.
7 (e) The taking of any action prohibited in subdivision (b), (c) or (d) is an infraction punishable by a fine of up to five hundred dollars ($500) for each day in which the violation occurs. The fine for the infraction is in addition to, and does not supersede or limit, any other remedies, civil or criminal.
(f) A decision or order issued under this section by the Board or an officer or employee of the Board is subject to reconsideration under article 2 (commencing with section 1122) of chapter 4 of part 1 of division 2 of the Water Code.

Authority: Section 1058.5, Water Code.

References: Article X, Section 2, California Constitution; Sections 4080, 4100, 4110, 4150, 4185, and 4735, Civil Code; Section 8627.7, Government Code; Sections 102, 104, 105, 275, 350, 491, and 1122, Water Code; Light v. State Water Resources Control Board (2014) 226 Cal.App.4th 1463; Stanford Vina Ranch Irrigation Co. v. State of California (2020) 50 Cal.App.5th 976.

EXECUTIVE DEPARTMENT

STATE OF CALIFORNIA
EXECUTIVE ORDER N-7-22
WHEREAS on April 12, 202 l, May l 0, 2021, July 8, 202 l, and October 19, 2021, I proclaimed states of emergency that continue today and exist across all the counties of California, due to extreme and expanding drought conditions; and
WHEREAS climate change continues to intensify the impacts of droughts on our communities, environment, and economy, and California is in a third consecutive year of dry conditions, resulting in continuing drought in all parts of the State; and
WHEREAS the 21st century to date has been characterized by record warmth and predominantly dry conditions, and the 2021 meteorological summer in California and the rest of the western United States was the hottest on record; and
WHEREAS since my October 19, 2021 Proclamation, early rains in October and December 2021 gave way to the driest January and February in recorded history for the watersheds that provide much of California's water supply; and WHEREAS the ongoing drought will have significant, immediate impacts on communities with vulnerable water supplies, farms that rely on irrigation to grow food and fiber, and fish and wildlife that rely on stream flows and cool water; and
WHEREAS the two largest reservoirs of the Central Valley Project, which supplies water to farms and communities in the Central Valley and the Santa Clara Valley and provides critical cold-water habitat for salmon and other anadromous fish, have water storage levels that are approximately l .1 million acre-feet below last year's low levels on this date; and WHEREAS the record-breaking dry period in January and February and the absence of significant rains in March have required the Department of Water Resources to reduce anticipated deliveries from the State Water Project to 5 percent of requested supplies; and
WHEREAS delivery of water by bottle or truck is necessary to protect human safety and public health in those places where water supplies are disrupted; and
WHEREAS groundwater use accounts for 41 percent of the State's total water supply on an average annual basis but as much as 58 percent in a critically dry year, and approximately 85 percent of public water systems rely on groundwater as their primary supply; and
WHEREAS coordination between local entities that approve permits for new groundwater wells and local groundwater sustainability agencies is important to achieving sustainable levels of groundwater in critically overdrafted basins; and
WHEREAS the duration of the drought, especially following a multiyear drought that abated only five years ago, underscores the need for California to redouble near-, medium-, and long-term efforts to adapt its water management and delivery systems to a changing climate, shifting precipitation patterns, and water scarcity; and
WHEREAS the most consequential, immediate action Californians can take to extend available supplies is to voluntarily reduce their water use by 15 percent from their 2020 levels by implementing the commonsense measures identified in operative paragraph 1 of Executive Order N-10-21 (July 8, 2021 ); and
WHEREAS to protect public health and safety, it is critical the State take certain immediate actions without undue delay to prepare for and mitigate the effects of the drought conditions, and under Government Code section 8571, I find that strict compliance with various statutes and regulations specified in this Proclamation would prevent, hinder, or delay the mitigation of the effects of the drought conditions.

NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the State Constitution and statutes, including the California Emergency Services Act, and in particular, Government Code sections 8567, 8571, and 8627, do hereby issue the following Order to become effective immediately:

IT IS HEREBY ORDERED THAT:

1. The orders and provisions contained in my April 21, 2021, May 10, 2021, July 8, 2021, and October 19, 2021 Proclamations remain in fu ll force and effect, except as modified by those Proclamations and herein.

State agencies shall continue to implement all directions from those Proclamations and accelerate implementation where feasible.

2. To help the State achieve its conservation goals and ensure sufficient water for essential indoor and outdoor use, I call on all Californians to strive to limit summertime water use and to use water more efficiently indoors and out. The statewide Save Our Water conservation campaign at SaveOurWater.com provides simple ways for Californians to reduce water use in their everyday lives. Furthermore, I encourage Californians to understand and track the amount of water they use and measure their progress toward their conservation goals.

3. By May 25, .2022, the State Water Resources Control Board (Water Board) shall consider adopting emergency regulations that include all of the following:
a. A requirement that each urban water supplier, as defined in section 10617 of the Water Code, shall submit to the Department of Water Resources a preliminary annual water supply and demand assessment consistent with section 10632.1 of the Water Code no later than June 1, 2022, and submit a final annual water supply and demand assessment to the Department of Water Resources no later than the deadline set by section 10632.1 of the Water Code;
b. A requirement that each urban water supplier that has submitted a water shortage contingency plan to the
Department of Water Resources implement, at a minimum, the shortage response actions adopted under section 10632 of the Water Code for a shortage level of up to twenty percent (Level 2), by a date to be set by the Water Board; and
c. A requirement that each urban water supplier that has not submitted a water shortage contingency plan to the
Department of Water Resources implement, at a minimum,
shortage response actions established by the Water Board, which shall take into consideration model actions that the Department of Water Resources shall develop for urban water supplier water shortage contingency planning for Level 2, by a date to be set by the Water Board.

To further conserve water and improve drought resiliency if the drought lasts beyond this year, I encourage urban water suppliers to conserve more than required by the emergency regulations described in this paragraph and to voluntarily activate more stringent local requirements based on a shortage level of up to thirty percent (Level 3).

4. To promote water conservation, the Department of Water Resources shall consult with leaders in the commercial, industrial, and institutional sectors to develop strategies for improving water conservation, including direct technical assistance, financial assistance, and other approaches. By May 25, 2022, the Water Board shall consider adopting emergency regulations defining "non-functional turf" (that is, a definition of turf that is ornamental and not otherwise used for human recreation purposes such as school fields, sports fields, and parks) and banning irrigation of non-functional turf in the commercial, industrial, and institutional sectors except as it may be required to ensure the health of trees and other perennial non-turf plantings.

5. In order to maximize the efficient use of water and to preserve water supplies critical to human health and safety and the environment, Public Resources Code, Division 13 (commencing with section 21000) and regulations adopted pursuant to that Division are hereby suspended, with respect to the directives in paragraphs 3 and 4 of this Order and any other projects and activities for the purpose of water conservation to the extent necessary to address the impacts of the drought, and any permits necessary to carry out such projects or activities. Entities that desire to conduct activities under this suspension, other than the directives in paragraphs 3 and 4 of this Order, shall first request that the Secretary of the Natural Resources Agency make a determination that the proposed activities are eligible to be conducted under this suspension. The Secretary shall use sound discretion in applying this Executive Order to ensure that the suspension serves the purpose of accelerating conservation projects that are necessary to address impacts of the drought, while at the same time protecting public health and the environment. The entities implementing these directives or conducting activities under this suspension shall maintain on their websites a list of all activities or approvals for which these provisions are suspended.

6. To support voluntary approaches to improve fish habitat that would require change petitions under Water Code section 1707 and either Water Code sections 1425 through 1432 or Water Code sections 1725 through 1732, and where the primary purpose is to improve conditions for fish, the Water Board shall expeditiously consider petitions that add a fish and wildlife beneficial use or point of diversion and place of storage to improve conditions for anadromous fish. California Code of Regulations, title 23, section 1064, subdivisions ( a) ( 1) (A) (i)-(ii) are suspended with respect to any petition that is subject to this paragraph.

7. To facilitate the hauling of water for domestic use by local communities and domestic water users threatened with the loss of water supply or degraded water quality resulting from drought, any ordinance, regulation, prohibition, policy, or requirement of any kind adopted by a public agency that prohibits the hauling of water out of the water's basin of origin or a public agency's jurisdiction is hereby suspended. The suspension authorized pursuant to this paragraph shall be limited to the hauling of water by truck or bottle to be used for human consumption, cooking, or sanitation in communities or residences threatened with the loss of affordable safe drinking water.

Nothing in this paragraph limits any public health or safety requirement to ensure the safety of hauled water.

8. The Water Board shall expand inspections to determine whether illegal diversions or wasteful or unreasonable use of water are occurring and bring enforcement actions against illegal diverters and those engaging in the wasteful and unreasonable use of water. When access is not granted by a property owner, the Water Board may obtain an inspection warrant pursuant to the procedures set forth in Title 13 (commencing with section 1822.50) of Part 3 of the Code of Civil Procedure for the purposes of conducting an inspection pursuant to this directive.

9. To protect health, safety, and the environment during this drought emergency, a county, city, or other public agency shall not:
a. Approve a permit for a new groundwater well or for alteration of an existing well in a basin subject to the Sustainable
Groundwater Management Act and classified as medium- or high-priority without first obtaining written verification from a Groundwater Sustainability Agency managing the basin or area of the basin where the well is proposed to be located that groundwater extraction by the proposed well would not be inconsistent with any sustainable groundwater management program established in any applicable Groundwater
Sustainability Plan adopted by that Groundwater Sustainability Agency and would not decrease the likelihood of achieving a sustainability goal for the basin covered by such a plan; or b. Issue a permit for a new groundwater well or for alteration of an existing well without first determining that extraction of groundwater from the proposed well is (1) not likely to interfere with the production and functioning of existing nearby wells, and (2) not likely to cause subsidence that would adversely impact or damage nearby infrastructure.

This paragraph shall not apply to permits for wells that will provide less than two acre-feet per year of groundwater for individual domestic users, or that will exclusively provide groundwater to public water supply systems as defined in section 116275 of the Health and Safety Code.

10. To address household or small community drinking water shortages dependent upon groundwater wells that have failed due to drought conditions, the Department of Water Resources shall work with other state agencies to investigate expedited regulatory pathways to modify, repair, or reconstruct failed household or small community or public supply wells, while recognizing the need to ensure the sustainability of such wells as provided for in paragraph 9.

11. State agencies shall collaborate with tribes and federal, regional, and local agencies on actions related to promoting groundwater recharge and increasing storage.

12. To help advance groundwater recharge projects, and to demonstrate the feasibility of projects that can use available high water flows to recharge local groundwater while minimizing flood risks, the Water Board and Regional Water Quality Control Boards shall prioritize water right permits, water quality certifications, waste discharge requirements, and conditional waivers of waste discharge requirements to accelerate approvals for projects that enhance the ability of a local or state agency to capture high precipitation events for local storage or recharge, consistent with water right priorities and protections for fish and wildlife. For the purposes of carrying out this paragraph, Division 13 (commencing with section 21000) of the Public Resources Code and regulations adopted pursuant to that Division, and Chapter 3 ( commencing with section 85225) of Part 3 of Division 35 of the Water Code and regulations adopted pursuant thereto are hereby suspended to the extent necessary to address the impacts of the drought. This suspension applies to (a) any actions taken by state agencies, (b) any actions taken by local agencies where the state agency with primary responsibility for the implementation of the directives concurs that local action is required, and (c) permits necessary to carry out actions under (a) or (b). The entities implementing these directives shall maintain on their websites a list of all activities or approvals for which these provisions are suspended.

13. With respect to recharge projects under either Flood-Managed Aquifer Recharge or the Department of Water Resources Sustainable Groundwater Management Grant Program occurring on open and working lands to replenish and store water in groundwater basins that will help mitigate groundwater conditions impacted by drought, for any (a) actions taken by state agencies, (b) actions taken by a local agency where the Department of Water Resources concurs that local action is required, and (c) permits necessary to carry out actions under (a) or (b), Public Resources Code, Division 13 (commencing with section 21000) and regulations adopted pursuant to that Division are hereby suspended to the extent necessary to address the impacts of the drought. The entities implementing these directives shall maintain on their websites a list of all activities or approvals for which these provisions are suspended.

14. To increase resilience of.state water supplies during prolonged drought conditions, the Department of Water Resources shall prepare for the potential creation and implementation of a multi-year transfer program pilot project for the purpose of acquiring water from willing partners and storing and conveying water to areas of need.

15. By April 15, 2022, state agencies shall submit to the Department of Finance for my consideration proposals to mitigate the worsening effects of severe drought, including emergency assistance to communities and households and others facing water shortages as a result of the drought, facilitation of groundwater recharge and wastewater recycling, improvements in water use efficiency, protection of fish and wildlife, mitigation of drought-related economic or water-supply disruption, and other potential investments to support short- and long-term drought response.

IT IS FURTHER ORDERED that as soon as hereafter possible, this Order be filed in the Office of the Secretary of State and that widespread publicity and notice be given of this Order.

This Order is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers, employees, or any other person.

IN WITNESS WHEREOF I have hereunto set
my hand and caused the Great Seal of the
State of California to be affixed this 28th
day of March 2022.

I I
,:, .
l · I'
t (.1 I
l~~-~-- GAVIN NEWSOM
Governor of California
ATTEST:

SHIRLEY N. WEBER, PH.D.

Secretary of State
State of California
Office of Administrative Law
In re:

State Water Resources Control Board

NOTICE OF APPROVAL OF EMERGENCY

REGULATORY ACTION
Regulatory Action:

Title 23, California Code of Regulations
Adopt sections: 996
Amend sections:

Repeal sections:

Government Code Sections 11346.1 and
11349.6
OAL Matter Number: 2022-0606-03
OAS Makter Type: Emergency (E)
This emergency action by the State Water Resources Control Board adopts a new regulation which .requires urban water suppliers to submit preliminary supply and demand assessments to the Department of Water Resources and to implement Level 2 demand reduction actions (actions intended to result in a 10 to 20 percent savings).

The regulation bans the irrigation of non-functional turf with potable water in commercial, industrial, and institutional. sectors and establishes that such irrigation is an infraction punishable by a fine of up to five hundred dollars for each day in which. the violation occurs pursuant to Water Code section 1058.5(d).

OAL approves this emergency regulatory action pursuant to sections 11346.1 and 11349.6 of the Government Gode. Pursuant to Water Code section 1058.5(b}, the Finding of Emergency in this matter was exempt from Office of Administrative Law Review.

This emergency regulatory action is effective on 6/10/2022 and, pursuant to Water Cade section 1058.5(c), will expire on 6/1 Q/2023. The Certificate of Compliance far this action is due no later than 6/9/2023.

Date: June 10, 2022 ~ ~~„~, ~~-,
Dale Mentink`
Assistant Chief Counsel
For: Kenneth J. Pogue
Director
Original: Eileen Sobeck, Executive
Director
Copy: Garrett Lenahan
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OAL USE ACTION ON PRppgSFD NOTICE
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NOTICE. R_FGISTER NUMBER '. Pl!BUCATlpN bATE APp~cvyas t" DisapProvh~+~ S~bnnroea ~ MorliheU ~ Witharawn B. SUBMISSION OF REGULATIONS (Complete when submitting regulations) 1a. SUBJECT OF REGULATION{S) ib. ALL PREVIOUS RELATED OAL REGULATORY ACTION NUMBERS) Water Demand Reduction Emergency Regulation

2. SPECIFY CALIFORNIA CODE Of REGULATIONS TITLES) AND SECTIONS) (including title 26, if toxics related) SECTIONS} AFFECTED A°oPT
{List all section number{s) 996
`individually. Attach aMeNo
_~cidi~a~al:_sF~eeh_6f~reeded.} __~_._ _--- ____ _._ ----_ ____ -- TITLE(S) REPEAL 23 3. TYPE OF FILING
Code
Regular
§11346)
Rulemaking {Gov. ❑Certificate of Compliance: The agency officer named ~ Emergency Readopt ~ Changes Without below certifies that this agency complied with the (Gov. Code, §11346.1 (h}) Regulatory Effect {CaL Resubmittal of disapproved provisions of Gov. Code §§11346.2-11347.3 either Code Regs., title 1, §100} or withdrawn nonemergency before the emergency regulation was adopted or filing (Gov. Code §§11349.3, within the time period required by statute. 11349.4) ❑File &Print ~ Print Oniy
§11346.1(b))
Emergency (Gov. Code, ~
emergency
Resubmittal
filing
of disapproved
(Gov. Code,
or
§11346.1)
withdrawn o ocher {sPe~~~> Wafer Code Section 1058.5

4. ALL BEGINNING AND ENDING DATES OF AVAILABILITY OF MODIFIED REGULATIONS AND/OR MATERIAL ADDED TO THE RULEMAKING FILE (Cal. Code Regs. line 1, §44 and Gov. Code §11347.1)

5. EFFECTIVE DATE OF CHANGES (Gov. Code, §§ 11343.4, 11346.1(d}; Cai. Code Regs., title 1, §100 ) Effective January 1, April 1, July 1, or x Effective on filing with §100 Changes Without Effective other October 1 (Gov. Code §11343.4(a)) ❑Secretary of State ❑Regulatory Effect ❑(Specify)

6. CHECK IF THESE REGULATIONS REQUIRE NOTICE T0, OR REVIEW, CONSULTATION, APPROVAL OR CONCURRENCE BY, ANOTHER AGENCY OR ENTITY Department of Fnance (Form STD. 399) {SAM §6660) ~ Fair Political Practices Commission ~ State Fire Marshal Other {Specify)

7. CONTACT PERSON TELEPHONE NUMBER FAX NUMBER {Optional) E-MAIL ADdRESS (Optional) Garrett Lenahan 916 341-5179

8. (certify
of the regulation{s)
that the attached
identified
copy
on
of the regulations) is a true and correct copy For use by Office of Administrative Law (OAL) only this form, that the information specified on this form is true and correct, and #hat I am the head of the agency taking this action, or a designee of the head of the agency, and am authori2ed to make this certification.

SIGNATURE OF AGENCY HEAD OR DESIGNEE PATE
Eric Oppenheimer °'g J.~te:20]IA6➢614:24:44 7a1ySgnedbyEncOp°~ibe -0]'00'1nef 6/612022

TYPED NAME AND TITLE OF SIGNATORY
Eric Oppenheimer, Chief Deputy Director, State Water Resources Control Board

ADOPTED EMERGENCY REGULATION TEXT
Title 23. Waters
Division 3. State Water Resources Control Board and Regional Water Quality Control Boards
Chapter 3.5. Urban Water Use Efficiency and Conservation Article. 2. Prevention of Drought Wasteful Water Uses
996. Urban Drought Response Actions
~a) As used in this section:
(1) "Commercial, industrial and institutionaP' refers to commercial water users, industrial water users, and .institutional water users as respectively defined in Water Code, section 10608:12. subdivisions (e), {i ,and (j), and includes homeowners' associations, common interest developments, community service organizations, and other similar entities but does not include the residences of these entities' members or separate interests. ~2) "Common interest development' has the same meaning as in section 4100 of the Civil Code.
~3) "Community service organization or similar entity" has the same meaning as in :section 4110 of the Civi( Code.
~4) "Homeowners' association" means an "association" as defined in section 4080 of the Civil Code.
(5} "Non-functional turf" means turf that is solely ornamental and not rec~ularly used for human recreational purposes or for civic or community events. Non-functional turf does not include sports fields and turF that is regularly used for human recreational purposes or for civic or community events.
(6} "Plant factor" has the same meaninct as in section 491. ~7) "Separate interest" has the same meaning as in section 4185 of the Civil Code. (8) "Turf" has the same meaning as in section 491.
(9} "Urban water supplier" has the same meaning as Water Code section 10617. (10) "Water shortage contingenc rLplan" means the plan required by Water Cade section 10632.
(b) Each urban water supplier shall submit to the Department of Water Resources a preliminary annual water su~ply and demand assessment consistent with section 10632.1 of the Water Cade no later than June 1 2022 or the effective date of this section whichever comes later, and submit a final annual water supply and demand assessment to the Department of Water Resources no later than the deadline set by section 10632.1 of the Water Code.
(i) The supplier's annual water supply and demand assessment submitted to the Department of Water`Resources demonstrates an ability to maintain reliable suppix until September 30, 2023.

Department of Water Resources.
(iii) The supplier's average number of gallons of water used per person per day by to twenty (20) gercent (Level ~, implement at a minimum the following actions:
(1) Initiate a public information and outreach campaign for water conservation and promptly and effectively reach the supplier's customers, using efforts such as ema papermail, bill inserts, customer app notifications, news articles, websites, comma events radio and television billboards and social media. potable water befinreen the hours of 10:00 a.m. and 6:00 p.m.

Level 2~
(2 Notwithstanding subdivision (c)(1), urban water suppliers shall not be required to implement new residential connection moratoria pursuant to this section. residential customers for the year 2020 is below 55 gallons, as reported to the Board in the :Electronic Annual Report.
has authority to enforce, as infractions, the prohibitions in section 995 and takes enforcement against violations.
(e) t1) To prevent the unreasonable use of water and to promote water conservation, the use: of potable water is prohibited for the irrigation of non-functional turf at commercial, industrial and institutional sites.
(2~ Notwithstanding subdivision (e)(1~, the use of water is not prohibited by this section to the extent necessary to ensure the health of trees and other perennial non-turf plantings or to the extent necessary to address an immediate health and safety need. (3) Notwithstanding subdivision (e)(1 ~, an urban water supplier may approve a request for continued irrigation of non-functional turFwhere the user certifies that the turf is a low water use plant with a plant factor of 0.3 or less, and demonstrates the actual use is less than 40% of reference evapotranspiration.
criminal
(g) A decision or order issued under this section ~ the Board, or an officer or employee the Board, is subject to reconsideration under article 2 (commencing with section 1122) c chapter 4 of part 1 of division 2 of the Water Code.

Authority: Section 105$.5, Water Code.

References: Article X Section 2 California Constitution' Sections 4080 4100 4110 and 4185 Civil Gode~ Section 8627.7 Government Code' Sections 102 104 105 275 350

3.77, 491, 1058.5, 1122. 10608.12, 10617, 10632, and 10632.1, Water Code; Lic~hf v. Sf~ Water Resources Control Board (2Q14) 226 Cal.App.4th 1463; Stanford Vina Ranch lrrigation Co. v. State of California (20201 50 Cal.App.5th 976

DRINKING WATER CONSTRUCTION
LOAN
AGREEMENT NO. SWRCB0000000000D2002017
by and between
CITY OF PORTERVILLE (“Recipient”)
and
CALIFORNIA STATE WATER RESOURCES CONTROL BOARD (“State Water Board”) for the purpose of the

AKIN/CENTRAL WATER CONSOLIDATION PROJECT
5410010-018C AND 5400655-001C (“Project”)
• Section 116760 et seq. of the Health and Safety Code and Resolution Nos. 2019-0065 and 2020- 0022.

PROJECT FUNDING AMOUNT: $4,787,664
PRINCIPAL FORGIVENESS COMPONENT: $4,787,664
ESTIMATED REASONABLE PROJECT COST: $4,787,664
ELIGIBLE WORK START DATE: JULY 1, 2016
ELIGIBLE CONSTRUCTION START DATE: SEPTEMBER 22, 2020
CONSTRUCTION COMPLETION DATE: OCTOBER 1, 2023
FINAL REIMBURSEMENT REQUEST DATE: APRIL 1, 2024
RECORDS RETENTION END DATE: OCTOBER 1, 2059
City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

Page 2 of 24 ends

3pg18xi20

1. The State Water Board and the Recipient mutually promise, covenant, and agree to the terms, provisions, and conditions of this Agreement, including the following Exhibits, which are attached hereto or are incorporated by reference:
• Exhibit A – Scope of Work and Schedule
• Exhibit B – Specific Funding Provisions
• Exhibit C – GENERAL TERMS AND CONDITIONS 2019-NOV
• Exhibit D – Special Conditions

2. The following documents are also incorporated by reference:
• the Drinking Water System Permit No. 03-12-06P-004;
• the Davis-Bacon requirements found at:
https://www.waterboards.ca.gov/water_issues/programs/grants_loans/srf/docs/davisbacon/2020_ dwsrf_governmental_entities.pdf

3. Party Contacts during the term of this Agreement are:

State Water Board City of Porterville
Section: Division of Financial Assistance
Name: Pete Stamas, Project Manager Name: Monte Reyes, Mayor Address: 1001 I Street, 16th Floor Address: 291 North Main Street City, State,
Zip:

Sacramento, CA 95814 City, State, Zip: Porterville, CA 93257 Phone: (916) 552-9983 Phone: (559) 782-7499
Fax: Fax:

Email: [email protected] Email: [email protected] Each party may change its contact upon written notice to the other party. While Party Contacts are contacts for day-to-day communications regarding Project work, the Recipient must provide official communications and notices to the Division’s Deputy Director.

4. Conditions precedent to this Agreement are set forth as follows:
(a) The Recipient must deliver an opinion of general counsel satisfactory to the State Water Board’s counsel dated on or after the date that the Recipient signs this Agreement. (b) The Recipient must deliver to the Division a resolution authorizing this Agreement and identifying its authorized representative by title.
(c) The Recipient must deliver to the Division a resolution certifying that its decision-making body reviewed and considered the Mitigated Negative Declaration filed by the State Water Board for the Akin Water Company Water Supply Project together with the Mitigation Monitoring and Reporting Program and reached its own conclusions on whether and how to approve the Project, pursuant to Section 15050 (b) of the CEQA Guidelines.

5. The Recipient represents, warrants, and commits to the following as of the Eligible Work Start Date and continuing thereafter for the term of this Agreement, which shall be at least until the Records Retention End Date:
(a) The Recipient agrees to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents.
(b) The execution and delivery of this Agreement, including all incorporated documents, has been duly authorized by the Recipient. Upon execution by both parties, this Agreement constitutes a valid and binding obligation of the Recipient, enforceable in accordance with its terms, except as such enforcement may be limited by law.

City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

Page 3 of 24 ends

3pg18xi20
(c) None of the transactions contemplated by this Agreement will be or have been made with an actual intent to hinder, delay, or defraud any present or future creditors of Recipient. The Recipient is solvent and will not be rendered insolvent by the transactions contemplated by this Agreement. The Recipient is able to pay its debts as they become due. The Recipient maintains sufficient insurance coverage considering the scope of this Agreement, including, for example but not necessarily limited to, general liability, automobile liability, workers compensation and employer liability, professional liability. (d) The Recipient is in compliance with all State Water Board funding agreements to which it is a party.

City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

Page 5 of 24 ends

Exhibit A
EXHIBIT A – SCOPE OF WORK AND SCHEDULE
A.1. PROJECT PURPOSE AND DESCRIPTION.

The Project is for the benefit of the Recipient and has a Useful Life of at least 40 years. The funding under this Agreement shall be used to provide the residents of two small disadvantaged communities currently served by Akin Water Company (Akin WC) and Central Mutual Water Company (Central MWC) with a sustainable source of safe drinking water.

A.2. SCOPE OF WORK.

The Recipient agrees to do the following: consolidate with Akin WC and Central MWC. Recipient also agrees to construct a new production well, estimated to produce between 1,300 and 1,800 gallons per minute, to provide the needed source capacity for the consolidation of Akin WC, the consolidation of Central MWC, as well as satisfy the remainder of East Porterville residents’ capacity needs.

The Recipient agrees to do the following for the Akin WC service area: construct approximately 1,500 feet of 8-inch waterline to provide water service to each customer currently served by Akin WC; install approximately three new fire hydrants and twenty-six new service laterals and meters; and destroy Akin WC’s two existing wells.

The Recipient agrees to do the following for the Central MWC service area: construct approximately 1,400 feet of 6-inch waterline to provide water service to each customer currently served by Central MWC; install approximately four new fire hydrants and thirty-four new service laterals and meters; and destroy Central MWC’s existing well.

Upon Completion of Construction, the Recipient must expeditiously initiate Project operations.

A.3 SIGNAGE
The Recipient must place a professionally prepared sign at least four feet tall by eight feet wide made of ¾ inch thick exterior grade plywood or other approved material in a prominent location on the Project site and must maintain the sign in good condition for the duration of Project implementation. The sign may include another agency’s required information and must include, prominently displayed, the following disclosure statement and color logos (available from the Division):

“Funding for this project has been provided in full or in part under the Drinking Water State Revolving Fund, which may include capitalization funding from the United States Environmental Protection Agency through an agreement with the State Water Resources Control Board.” A.4 SCHEDULE.

Failure to provide items by the due dates indicated in the table below may constitute a material violation of this Agreement. The Project Manager may adjust the dates in the “Estimated Due Date” column of this table, but Critical Due Date adjustments will require an amendment to this Agreement. The Recipient City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

Page 6 of 24 ends

Exhibit A
must complete and submit all work in time to be approved by the Division prior to the Project Completion Date. As applicable for specific submittals, the Recipient must plan adequate time to solicit, receive, and address comments prior to submitting the final submittal. The Recipient must submit the final Reimbursement Request prior to the Final Reimbursement Request Date set forth on the Cover Page.

ITEM DESCRIPTION OF SUBMITTAL CRITICAL DUE
DATE

ESTIMATED DUE
DATE
EXHIBIT A – SCOPE OF WORK
A. ADDITIONAL SUBMITTAL(S) TO DIVISION

1. Final Plans and Specifications September 1, 2021

2. Final Budget Approval Package February 1, 2022

3. Completion of Construction October 1, 2023
B. REPORTS

1. Progress Reports Quarterly

2. Final Inspection and Certification October 1, 2023

3. Project Completion Report December 1, 2023
4 As Needed Reports TBD
EXHIBIT B – REIMBURSEMENTS, BUDGET DETAIL, AND REPORTING PROVISIONS A. REIMBURSEMENTS

1. Reimbursement Requests Quarterly

2. Final Reimbursement Request April 1, 2024
The Recipient must award the prime construction contract and begin construction timely. The Recipient must deliver any request for extension of the Completion of Construction Date no less than 90 days prior to the Completion of Construction Date.

A.5 PROGRESS REPORTS.

The Recipient must provide a progress report to the Division each quarter, beginning no later than 90 days after execution of this Agreement. The Recipient must provide a progress report with each Reimbursement Request. Failure to provide a complete and accurate progress report may result in the withholding of Project Funds, as set forth in Exhibit B. A progress report must contain the following information:
1) A summary of progress to date including a description of progress since the last report, percent construction complete, percent contractor invoiced, and percent schedule elapsed;
2) A description of compliance with environmental requirements; 3) A listing of change orders including amount, description of work, and change in contract amount and schedule; and
4) Any problems encountered, proposed resolution, schedule for resolution, and status of previous problem resolutions.

City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

Page 7 of 24 ends

Exhibit A
A.6 SPECIAL REPORTS.
(a) The Recipient must submit a Project Completion Report to the Division with a copy to the appropriate District Office on or before the due date established by the Division and the Recipient at the time of final project inspection. The Project Completion Report must include the following:
i. Description of the Project,
ii. Description of the water quality problem the Project sought to address, iii. Discussion of the Project’s likelihood of successfully addressing that water quality problem in the future, and
iv. Summary of compliance with applicable environmental conditions. (b) If the Recipient fails to submit a timely Project Completion Report, the State Water Board may stop processing pending or future applications for new financial assistance, withhold reimbursements under this Agreement or other agreements, and begin administrative proceedings.
(c) The Recipient must report Disadvantaged Business Enterprise (DBE) utilization to the Division on the DBE Utilization Report, State Water Board Form DBE UR334. The Recipient must submit such reports to the Division annually within ten (10) calendar days following October 1 until such time as the "Notice of Completion" is issued. The Recipient must comply with 40 CFR § 33.301 and require its contractors and subcontractors on the Project to comply.

A.7 FINAL PROJECT INSPECTION AND CERTIFICATION.

Upon completion of the Project, the Recipient must provide for a final inspection and must certify that the Project has been completed in accordance with this Agreement, any final plans and specifications submitted to the State Water Board, and any amendments or modifications thereto. If the Project involves the planning, investigation, evaluation, design, or other work requiring interpretation and proper application of engineering, or other professionals, the final inspection and certification must be conducted by a California Registered Civil Engineer or other appropriate California registered professional. The results of the final inspection and certification must be submitted to the Project Manager.

City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

Page 8 of 24 ends

Exhibit B
EXHIBIT B – FUNDING AMOUNTS
B.1 ESTIMATED REASONABLE COST AND PROJECT FUNDS.

The estimated reasonable cost of the total Project is set forth on the Cover Page of this Agreement and is greater than or equal to the funding anticipated to be provided by the State Water Board under this Agreement. Subject to the terms of this Agreement, the State Water Board agrees to provide Project Funds not to exceed the amount of the Project Funding Amount set forth on the Cover Page of this Agreement.

B.2 RECIPIENT CONTRIBUTIONS.
(a) The loan component of this Agreement is forgiven. The estimated amount of principal that will be due to the State Water Board from the Recipient under this Agreement is Zero dollars and no cents ($0.00). (b) The Recipient must pay any and all costs connected with the Project including, without limitation, any and all Project Costs. If the Project Funds are not sufficient to pay the Project Costs in full, the Recipient must nonetheless complete the Project and pay that portion of the Project Costs in excess of available Project Funds, and shall not be entitled to any reimbursement therefor from the State Water Board. (c) If the Recipient recovers funds from any responsible parties, the Recipient shall immediately notify the Division. The amount of this Agreement may be reduced to reflect the recovered funds.

B.3 VERIFIABLE DATA.

Upon request by the Division, the Recipient must submit verifiable data to support deliverables specified in the Scope of Work. The Recipient’s failure to comply with this requirement may be construed as a material breach of this Agreement.

B.4 BUDGET COSTS
Budget costs are contained in the Summary Project Cost Table below:

LINE ITEM TOTAL ESTIMATED COST PROJECT FUNDING AMOUNT
Construction $3,194,720 $3,194,720
Pre-Purchased Material/Equipment $0 $0
Purchase of Land $0 $0
Contingency $638,944 $638,944
Allowances (Soft Costs) $954,000 $954,000
TOTAL $4,787,664 $4,787,664

The Division’s Final Budget Approval and related Form 259 and Form 260 will document a more detailed budget of eligible Project Costs and Project funding amounts.

The Recipient is prohibited from requesting disbursement amounts that represent Recipient’s mark-ups to costs invoiced or otherwise requested by consultants or contractors.

Reasonable indirect costs may be allowable upon approval by the Division.

B.5 LINE ITEM ADJUSTMENTS.

Upon written request by the Recipient, the Division may adjust the line items of the Summary Project Cost Table at the time of Division’s Final Budget Approval. Upon written request by the Recipient, the Division may also adjust the line items of the Summary Project Cost Table as well as the detailed budget at the time of Recipient’s submittal of its final claim. Any line item adjustments to the Summary Project Cost Table that are due to a change in scope of work will require an Agreement amendment. The sum of adjusted line items in both the Summary City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

Page 9 of 24 ends

Exhibit B
Project Cost Table and the detailed budget must not exceed the Project Funding Amount. The Division may also propose budget adjustments.

Under no circumstances may the sum of line items in the budget approved through the Final Budget Approval process exceed the Project Funding Amount. Any increase in the Project Funding Amount will require an Agreement amendment.

B.6 REIMBURSEMENT PROCEDURE.
(a) Except as may be otherwise provided in this Agreement, reimbursements will be made as follows:

1. Upon execution and delivery of this Agreement by both parties, the Recipient may request immediate reimbursement of any eligible incurred costs as specified below through submission to the State Water Board of the Reimbursement Request Form 260 and Form 261, or any amendment thereto, duly completed and executed.

2. The Recipient must submit a Reimbursement Request for costs incurred prior to the date this Agreement is executed by the State Water Board no later than ninety (90) days after this Agreement is executed by the State Water Board. Late Reimbursement Requests may not be honored.

3. Additional Project Funds will be promptly disbursed to the Recipient upon receipt of Reimbursement Request Form 260 and Form 261, or any amendment thereto, duly completed and executed by the Recipient for incurred costs consistent with this Agreement, along with receipt of progress reports due under Exhibit A.

4. The Recipient must not request reimbursement for any Project Cost until such cost has been incurred and is currently due and payable by the Recipient, although the actual payment of such cost by the Recipient is not required as a condition of reimbursement. Supporting documentation (e.g., receipts) must be submitted with each Reimbursement Request. The amount requested for Recipient’s administration costs must include a calculation formula (i.e., hours or days worked times the hourly or daily rate = total amount claimed). Reimbursement of Project Funds will be made only after receipt of a complete, adequately supported, properly documented, and accurately addressed Reimbursement Request. Upon request by the Division, supporting documents for professional and administrative services must include the employees’ names, classifications, labor rates, hours worked, and descriptions of the tasks performed.

Reimbursement Requests submitted without supporting documents may be wholly or partially withheld at the discretion of the Division.

5. The Recipient must spend Project Funds within 30 days of receipt. If the Recipient earns interest earned on Project Funds, it must report that interest immediately to the State Water Board. The State Water Board may deduct earned interest from future reimbursements.

6. The Recipient shall not request a reimbursement unless that Project Cost is allowable, reasonable, and allocable.

7. Notwithstanding any other provision of this Agreement, no reimbursement shall be required at any time or in any manner which is in violation of or in conflict with federal or state laws, policies, or regulations. (b) Notwithstanding any other provision of this Agreement, the Recipient agrees that the State Water Board may retain an amount equal to ten percent (10%) of the Project Funding Amount until Project Completion. Any retained amounts due to the Recipient will be promptly disbursed to the Recipient, without interest, upon Project Completion.
(c) Except as follows, construction costs and disbursements are not available until after the Division has approved the final budget form submitted by the Recipient. The Deputy Director of the Division may authorize the disbursement of up to ten percent (10%) of Project Funds for the reimbursement of eligible construction costs and pre-purchased materials prior to Division approval of the final budget form submitted by the Recipient. All other construction costs are not eligible for reimbursement until after this the Division has approved the final budget form submitted by the Recipient. Construction costs incurred prior to the Eligible Construction Start Date are not eligible for reimbursement.

B.7 REVERTING FUNDS AND DISENCUMBRANCE.

City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

Page 10 of 24 ends

Exhibit B
In the event the Recipient does not submit Reimbursement Requests for all funds encumbered under this Agreement by the Final Reimbursement Request Date, any remaining funds revert to the State. The State Water Board may notify the Recipient that the project file is closed, and any remaining balance will be disencumbered and unavailable for further use under the Agreement.

City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

Page 11 of 24 ends

Exhibit C
EXHIBIT C – GENERAL TERMS AND CONDITIONS 2019-NOV
GENERAL TERMS AND CONDITIONS 2019-NOV is incorporated by reference and is posted at https://www.waterboards.ca.gov/water_issues/programs/grants_loans/general_terms.html City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

Page 12 of 24 ends

Exhibit D
EXHIBIT D – SPECIAL CONDITIONS

1. Notwithstanding Exhibit C, the following terms have no meaning for the purposes of this Agreement:
• Work Completion
• Work Completion Date

2. Each capitalized term used in this Agreement has the following meaning:
• "Allowance" means an amount based on a percentage of the accepted bid for an eligible project to help defray the planning, design, and construction engineering and administration costs of the Project. • "Authorized Representative" means the duly appointed representative of the Recipient as set forth in the certified original of the Recipient’s authorizing resolution that designates the authorized representative by title.
• "Completion of Construction" means the date, as determined by the Division after consultation with the Recipient, that the work of building and erection of the Project is substantially complete, and is established on the Cover Page of this Agreement.
• “District Office” means District Office of the Division of Drinking Water of the State Water Board. • “Division of Drinking Water” means the Division of Drinking Water of the State Water Board. • “Eligible Construction Start Date” means the date set forth on the Cover Page of this Agreement, establishing the date on or after which construction costs may be incurred and eligible for reimbursement hereunder.
• “Eligible Work Start Date” means the date set forth on the Cover Page of this Agreement, establishing the date on or after which any non-construction costs may be incurred and eligible for reimbursement hereunder.
• “Enterprise Fund” means the enterprise fund of the Recipient in which Revenues are deposited. • “Event of Default” means, in addition to the meanings set forth in Exhibit C, the occurrence of any of the following events:
a) A material adverse change in the condition of the Recipient, the Revenues, or the System, which the Division reasonably determines would materially impair the Recipient’s ability to satisfy its obligations under this Agreement.
b) Failure to operate the System or the Project without the Division’s approval; • “Final Budget Approval” means the Division-approved final budget for the Project, as set forth in Exhibit B. • “Indirect Costs” means those costs that are incurred for a common or joint purpose benefiting more than one cost objective and are not readily assignable to the Project (i.e., costs that are not directly related to the Project). Examples of Indirect Costs include, but are not limited to: central service costs; general administration of the Recipient; non-project-specific accounting and personnel services performed within the Recipient organization; depreciation or use allowances on buildings and equipment; the costs of operating and maintaining non-project-specific facilities; tuition and conference fees; generic overhead or markup; and taxes.
• "Initiation of Construction" means the date that notice to proceed with work is issued for the Project, or, if notice to proceed is not required, the date of commencement of building and erection of the Project. • “Net Revenues" means, for any Fiscal Year, all Revenues received by the Recipient less the Operations and Maintenance Costs for such Fiscal Year.
• "Operations and Maintenance Costs" means the reasonable and necessary costs paid or incurred by the Recipient for maintaining and operating the System, determined in accordance with GAAP, including all City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

Page 13 of 24 ends

Exhibit D
reasonable expenses of management and repair and all other expenses necessary to maintain and preserve the System in good repair and working order, and including all reasonable and necessary administrative costs of the Recipient that are charged directly or apportioned to the operation of the System, such as salaries and wages of employees, overhead, taxes (if any), the cost of permits, licenses, and charges to operate the System and insurance premiums; but excluding, in all cases depreciation, replacement, and obsolescence charges or reserves therefor and amortization of intangibles. • “Reimbursement Request” means the Recipient’s request for Project Funds from the State Water Board as set forth in Exhibit B.
• "Revenues" means, for each Fiscal Year, all gross income and revenue received or receivable by the Recipient from the ownership or operation of the System, determined in accordance with GAAP, including all rates, fees, and charges (including connection fees and charges) as received by the Recipient for the services of the System, and all other income and revenue howsoever derived by the Recipient from the ownership or operation of the System or arising from the System, including all income from the deposit or investment of any money in the Enterprise Fund or any rate stabilization fund of the Recipient or held on the Recipient’s behalf, and any refundable deposits made to establish credit, and advances or contributions in aid of construction.
• “System” means all drinking water collection, transport, treatment, storage, and delivery facilities, including land and easements thereof, owned by the City of Porterville, or its successor agency, and all other properties, structures, or works hereafter acquired and constructed by the Recipient and determined to be a part of the System, together with all additions, betterments, extensions, or improvements to such facilities, properties, structures, or works, or any part thereof hereafter acquired and constructed. • “Useful Life” means the economically useful life of the Project beginning at Project Completion and is set forth in Exhibit A.

3. Acknowledgements.

The Recipient must include the following acknowledgement in any document, written report, or brochure to be shared with the general public prepared in whole or in part pursuant to this Agreement:
“Funding for this project has been provided in full or in part under the Drinking Water State Revolving Fund, which may include capitalization funding from the United States Environmental Protection Agency through an agreement with the State Water Resources Control Board. The contents of this document do not necessarily reflect the views and policies of the foregoing, nor does mention of trade names or commercial products constitute endorsement or recommendation for use.”

4. Rates and Charges. The Recipient must, to the extent permitted by law, fix, prescribe and collect rates, fees and charges for the System during each Fiscal Year which are reasonable, fair, and nondiscriminatory and which will be sufficient to generate Revenues in the amounts necessary to cover Operations and Maintenance Costs, and must ensure that Net Revenues are in an amount necessary to meet its obligations under this Agreement. The Recipient may make adjustments from time to time in such fees and charges and may make such classification thereof as it deems necessary, but shall not reduce the rates, fees and charges then in effect unless the Net Revenues from such reduced rates, fees, and charges will at all times be sufficient to meet the requirements of this section.

5. [RESERVED]

6. [RESERVED].

City of Porterville
Project No.: 5410010-018C/ 5400655-001C
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Exhibit D

7. Environmental/Technical Special Conditions
Technical:

1. The Recipient shall submit its professional engineering services contract to the Division prior to disbursement of funds for costs incurred under such contract.

2. The Recipient shall not solicit bids, award a contract, or commence construction activities until final plans and specifications are approved by the Division of Drinking Water Tulare District Office Engineer and the Project Manager.

3. The Recipient must submit final consolidation agreements with Akin WC and Central MWC, in a form satisfactory to the Division, and receive written approval from the Project Manager to proceed before Project Funds may be disbursed for any Project Costs under the Agreement.

4. Upon completion of the Project the Recipient shall submit a water supply permit amendment request for review to the Division of Drinking Water Tulare District Office.

Environmental:

1. The documents identified below are incorporated by reference and the Recipient shall comply with the conditions and recommendations therein:
a. The Mitigation Monitoring and Reporting Program adopted by the State Water Board on June 16, 2016 for the Project. The Recipient shall implement all mitigation measures therein. b. The letter dated February 12, 2020, from Patricia Cole of the United States Fish and Wildlife Service, San Joaquin Valley Division to Douglas E. Eberhardt of the United States Environmental Protection Agency, including, but not limited to, the following:
i. Implement Avoidance and Minimization Measures and Best Management Practices prior to and during construction activities to minimize and avoid effects to the San Joaquin kit fox.
c. The Mitigation Monitoring and Reporting Program adopted by the City of Porterville on April 21, 2020 for the Central Mutual Water Company Consolidation Project. The Recipient shall implement all mitigation measures therein.

2. In the Recipient’s Quarterly Reports submitted pursuant to this Agreement, the Recipient shall include a discussion of the status of its compliance with environmental measures identified in this Exhibit D, with separate sections clearly labeled and titled, discussing the status of Recipient’s compliance.

3. In the Recipient’s Project Completion Report submitted pursuant to this Agreement, the Recipient shall include a discussion of its compliance with environmental measures identified in this Exhibit D, with separate sections clearly labeled and titled, discussing the status of Recipient’s compliance.

8. [RESERVED].

9. Appointment of Receiver/Custodian. Upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the State Water Board under this Agreement, the State Water Board may make application for the appointment of a receiver or custodian of the Revenues, pending such proceeding, with such power as the court making such appointment may confer.

10. [RESERVED].

11. Damages for Breach of Federal Conditions. In the event that any breach of any of the provisions of this Agreement by the Recipient results in the failure of Project Funds to be used pursuant to the provisions of this Agreement, or if such breach results in an obligation on the part of the State or any subdivision or agency thereof to reimburse the federal government, the Recipient must immediately reimburse the State or any subdivision or agency thereof in an amount equal to any damages paid by or loss incurred by the State or any subdivision or agency thereof due to such breach.

City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

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Exhibit D

12. [RESERVED].

13. Operation and Maintenance. The Recipient shall sufficiently and properly staff, operate, and maintain the facility and structures constructed or improved as part of the project throughout the term of this Agreement, consistent with the purposes of this Agreement. The Recipient assumes all operations and maintenance costs of the facilities and structures; the State Water Board shall not be liable for any cost of such maintenance, management or operation.

14. Insurance. The Recipient will procure and maintain or cause to be maintained insurance on the System and Project with responsible insurers, or as part of a reasonable system of self-insurance, in such amounts and against such risks (including damage to or destruction of the System or Project) as are usually covered in connection with systems similar to the System or Project. Such insurance may be maintained by a self-insurance plan so long as such plan provides for (i) the establishment by the Recipient of a separate segregated self-insurance fund in an amount determined (initially and on at least an annual basis) by an independent insurance consultant experienced in the field of risk management employing accepted actuarial techniques and (ii) the establishment and maintenance of a claims processing and risk management program. In the event of any damage to or destruction of the System or Project caused by the perils covered by such insurance, the net proceeds thereof shall be applied to the reconstruction, repair or replacement of the damaged or destroyed portion of the System or Project. The Recipient must begin such reconstruction, repair or replacement as expeditiously as possible, and must pay out of such net proceeds all costs and expenses in connection with such reconstruction, repair or replacement so that the same must be completed and the System and Project must be free and clear of all claims and liens. Recipient agrees that for any policy of insurance concerning or covering the construction of the Project, it will cause, and will require its contractors and subcontractors to cause, a certificate of insurance to be issued showing the State Water Board, its officers, agents, employees, and servants as additional insured; and must provide the Division with a copy of all such certificates prior to the commencement of construction of the Project.

15. Notice Events. Upon the occurrence of any of the following events, the Recipient must notify the Division’s Deputy Director and Party Contacts by phone and email within the time specified below:
a. The Recipient must notify the Division within 24 hours by phone at (916) 327-9978 and by email to [email protected] of any discovery of any potential tribal cultural resource and/or archaeological or historical resource. Should a potential tribal cultural resource and/or archaeological or historical resource be discovered during construction or Project implementation, the Recipient must ensure that all work in the area of the find will cease until a qualified archaeologist has evaluated the situation and made recommendations regarding preservation of the resource, and the Division has determined what actions should be taken to protect and preserve the resource. The Recipient must implement appropriate actions as directed by the Division.
b. The Recipient must notify the Division promptly of the occurrence of any of the following events:
i. Bankruptcy, insolvency, receivership or similar event of the Recipient, or actions taken in anticipation of any of the foregoing;
ii. Change of ownership of the Project (no change of ownership may occur without written consent of the Division);
iii. Loss, theft, damage, or impairment to Project;
iv. Events of Default, except as otherwise set forth in this section; City of Porterville
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Exhibit D
v. A proceeding or action by a public entity to acquire the Project by power of eminent domain.
vi. Any litigation pending or threatened with respect to the Project or the Recipient’s technical, managerial or financial capacity or the Recipient’s continued existence; vii. Consideration of dissolution, or disincorporation; viii. Enforcement actions by or brought on behalf of the State Water Board or Regional Water Board.
ix. The discovery of a false statement of fact or representation made in this Agreement or in the application to the Division for this funding, or in any certification, report, or request for reimbursement made pursuant to this Agreement, by the Recipient, its employees, agents, or contractors;
x. Any substantial change in scope of the Project. The Recipient must undertake no substantial change in the scope of the Project until prompt written notice of the proposed change has been provided to the Division and the Division has given written approval for the change;
xi. Any circumstance, combination of circumstances, or condition, which is expected to or does delay Completion of Construction for a period of ninety (90) days or more; xii. Any Project monitoring, demonstration, or other implementation activities required in this Agreement;
xiii. Any public or media event publicizing the accomplishments and/or results of this Agreement and provide the opportunity for attendance and participation by state representatives with at least ten (10) working days’ notice to the Division; xiv. Any event requiring notice to the Division pursuant to any other provision of this Agreement.
xv. Completion of work on the Project.
xvi. The Recipient must promptly notify the Division and Party Contacts of cessation of all major construction work on the Project where such cessation of work is expected to or does extend for a period of thirty (30) days or more;
xvii. The Recipient must promptly notify the Division and Party Contacts of the discovery of any unexpected endangered or threatened species, as defined in the federal Endangered Species Act. Should a federally protected species be unexpectedly encountered during implementation of the Project, the Recipient agrees to promptly notify the Division. This notification is in addition to the Recipient’s obligations under the federal Endangered Species Act;
xviii. The Recipient must promptly notify the Division and Party Contacts of Completion of Construction, and Project Completion;
xix. The Recipient must promptly notify the Division and Party Contacts of the award of the prime construction contract for the Project; and the Recipient must promptly notify the Division and Party Contacts of Initiation of construction of the Project.

City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

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Exhibit D
xx. The occurrence of a material breach or event of default under any Recipient obligation that results in the acceleration of principal or interest or otherwise requires immediate prepayment, repurchase or redemption.
xxi. [RESERVED].

16. Continuous Use of Project; No Lease, Sale, Transfer of Ownership, or Disposal of Project. The Recipient agrees that, except as provided in this Agreement, it will not abandon, substantially discontinue use of, lease, sell, transfer ownership of, or dispose of all or a significant part or portion of the Project during the Useful Life of the Project without prior written approval of the Division. Such approval may be conditioned as determined to be appropriate by the Division, including a condition requiring repayment of all disbursed Project Funds or all or any portion of all remaining funds covered by this Agreement together with accrued interest and any penalty assessments that may be due.

17. State Cross-Cutters. Recipient represents that, as applicable, it complies and covenants to maintain compliance with the following for the term of the Agreement:
a) The California Environmental Quality Act (CEQA), as set forth in Public Resources Code 21000 et seq. and in the CEQA Guidelines at Title 14, Division 6, Chapter 3, Section 15000 et seq. b) Water Conservation requirements, including regulations in Division 3 of Title 23 of the California Code of Regulations.
c) Monthly Water Diversion Reporting requirements, including requirements set forth in Water Code section 5103.
d) Public Works Contractor Registration with Department of Industrial Relations requirements, including requirements set forth in Sections 1725.5 and 1771.1 of the Labor Code. e) Volumetric Pricing & Water Meters requirements, including the requirements of Water Code sections 526 and 527.
f) Urban Water Management Plan requirements, including the Urban Water Management Planning Act (Water Code, § 10610 et seq.).
g) Urban Water Demand Management requirements, including the requirements of Section 10608.56 of the Water Code.
h) Delta Plan Consistency Findings requirements, including the requirements of Water Code section 85225 and California Code of Regulations, title 23, section 5002. i) Agricultural Water Management Plan Consistency requirements, including the requirements of Water Code section 10852.
j) Charter City Project Labor Requirements, including the requirements of Labor Code section 1782 and Public Contract Code section 2503.
k) The Recipient agrees that it will, at all times, comply with and require its contractors and subcontractors to comply with directives or orders issued pursuant to Division 7 of the Water Code.

18. Financial Management Systems. The Recipient must comply with federal standards for financial management systems. The Recipient agrees that, at a minimum, its fiscal control and accounting procedures will be sufficient to permit preparation of reports required by the federal government and tracking of Project funds to a level of expenditure adequate to establish that such funds have not been City of Porterville
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Agreement No.: SWRCB0000000000D2002017

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Exhibit D
used in violation of federal or state law or the terms of this Agreement. To the extent applicable, the Recipient is bound by, and must comply with, the provisions and requirements of the federal Single Audit Act of 1984 and 2 CFR Part 200, subpart F, and updates or revisions, thereto.

19. Access and Inspection. In addition to the obligations set forth in section 2 of the General Terms and Conditions incorporated in Exhibit C of this Agreement, the Recipient must ensure that the United States Environmental Protection Agency, the Office of Inspector General, any member of Congress, or any authorized representative of the foregoing, will have safe and suitable access to the Project site at all reasonable times during the term of the Agreement.

20. Fraud, Waste, and Abuse. The Recipient shall prevent fraud, waste, and the abuse of Project Funds, and shall cooperate in any investigation of such activities that are suspected in connection with this Agreement. The Recipient understands that discovery of any evidence of misrepresentation or fraud related to reimbursement requests, invoices, proof of payment of invoices, or other supporting information, including but not limited to double or multiple billing for time, services, or any other eligible cost, may result in referral to the Attorney General’s Office or the applicable District Attorney’s Office for appropriate action. The Recipient further understands that any suspected occurrences of false claims, misrepresentation, fraud, forgery, theft or any other misuse of Project Funds may result in withholding of reimbursements and/or the termination of this Agreement requiring the immediate repayment of all funds disbursed hereunder.

21. Disputes. The Recipient must continue with the responsibilities under this Agreement during any dispute.

The Recipient may, in writing, appeal a staff decision within 30 days to the Deputy Director of the Division or designee, for a final Division decision. The Recipient may appeal a final Division decision to the State Water Board within 30 days. The Office of the Chief Counsel of the State Water Board will prepare a summary of the dispute and make recommendations relative to its final resolution, which will be provided to the State Water Board’s Executive Director and each State Water Board Member. Upon the motion of any State Water Board Member, the State Water Board will review and resolve the dispute in the manner determined by the State Water Board. Should the State Water Board determine not to review the final Division decision, this decision will represent a final agency action on the dispute. This provision does not preclude consideration of legal questions, provided that nothing herein shall be construed to make final the decision of the State Water Board, or any official or representative thereof, on any question of law.

This section relating to disputes does not establish an exclusive procedure for resolving claims within the meaning of Government Code sections 930 and 930.4.

22. Additional Representations and Warranties. The Recipient makes the following representations and warranties:
a. [RESERVED].
b. The Recipient has not made any untrue statement of a material fact in its application for this financial assistance, or omitted to state in its application, a material fact that makes the statements in its application not misleading.
c. The Recipient agrees to fulfill all assurances, declarations, representations, and commitments in its application, accompanying documents, and communications filed in support of its request for funding under this Agreement.
d. The execution, delivery, and performance by Recipient of this Agreement, including all incorporated documents, do not violate any provision of any law or regulation in effect as of the date set forth on the first page hereof, or result in any breach or default under any contract, obligation, indenture, or other instrument to which Recipient is a party or by which Recipient is bound as of the date set forth on the Cover Page.

City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

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Exhibit D
e. Except as set forth in this paragraph, there are, as of the date of execution of this Agreement by the Recipient, no pending or, to Recipient’s knowledge, threatened actions, claims, investigations, suits, or proceedings before any governmental authority, court, or administrative agency which materially affect the financial condition or operations of the Recipient, the Revenues, and/or the Project.
f. There are no proceedings, actions, or offers by a public entity to acquire by purchase or the power of eminent domain any of the real or personal property related to or necessary for the Project.
g. The Recipient is duly organized and existing and in good standing under the laws of the State of California. Recipient must at all times maintain its current legal existence and preserve and keep in full force and effect its legal rights and authority. Within the preceding ten years, the Recipient has not failed to demonstrate compliance with state or federal audit disallowances. h. Any financial statements or other financial documentation of Recipient previously delivered to the State Water Board as of the date(s) set forth in such financial statements or other financial documentation: (a) are materially complete and correct; (b) present fairly the financial condition of the Recipient; and (c) have been prepared in accordance with GAAP. Since the date(s) of such financial statements or other financial documentation, there has been no material adverse change in the financial condition of the Recipient, nor have any assets or properties reflected on such financial statements or other financial documentation been sold, transferred, assigned, mortgaged, pledged or encumbered, except as previously disclosed in writing by Recipient and approved in writing by the State Water Board.
i. The Recipient is current in its continuing disclosure obligations associated with its material debt, if any.
j. The Recipient has no conflicting or material obligations, except as set forth in this paragraph. k. The Recipient legally possesses all real property rights necessary for the purposes of this Agreement, not subject to third party revocation, which rights extend at least to the Records Retention End Date of this Agreement, except as set forth in this paragraph. l. The Recipient and its principals, to the best of the Recipient’s knowledge and belief, are not presently debarred, suspended, proposed for debarment, declared ineligible, or otherwise excluded from participation in any work overseen, directed, funded, or administered by the State Water Board program for which this grant funding is authorized; nor have they engaged or permitted the performance of services covered by this Agreement from parties that are debarred or suspended or otherwise excluded from or ineligible for participation in any work overseen, directed, funded, or administered by the State Water Board program for which this grant funding is authorized.
m. The Recipient possesses all water rights necessary for this Project.

23. Federal SRF Requirements. The Recipient acknowledges, warrants compliance with, and covenants to continuing compliance with the following federal terms and conditions for the Useful Life of the Project:
a. Unless the Recipient has obtained a waiver from USEPA on file with the State Water Board or unless this Project is not a project for the construction, alteration, maintenance or repair of a public water system or treatment work, the Recipient shall not purchase “iron and steel products” produced outside of the United States on this Project. Unless the Recipient has obtained a waiver from USEPA on file with the State Water Board or unless this Project is not a project for the construction, alteration, maintenance or repair of a public water system or treatment work, the City of Porterville
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Exhibit D
Recipient hereby certifies that all “iron and steel products” used in the Project were or will be produced in the United States. For purposes of this section, the term "iron and steel products" means the following products made primarily of iron or steel: lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced precast concrete, and construction materials. “Steel” means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements.
b. The Recipient must include in full the Wage Rate Requirements (Davis-Bacon) language incorporated by reference in Section 2 of this Agreement in all construction contracts and subcontracts.
c. The Recipient shall notify the State Water Board and the USEPA contact of public or media events publicizing the accomplishment of significant events related to this Project and provide the opportunity for attendance and participation by federal representatives with at least ten (10) working days’ notice.
d. The Recipient shall comply with applicable EPA general terms and conditions found at http://www.epa.gov/ogd.
e. No Recipient may receive funding under this Agreement unless it has provided its DUNS number to the State Water Board.
f. [RESERVED]
g. The Recipient represents and warrants that it and its principals are not excluded or disqualified from participating in this transaction as such terms are defined in Parts 180 and 1532 of Title 2 of the Code of Federal Regulations (2 CFR). If the Recipient is excluded after execution of this Agreement, the Recipient shall notify the Division within ten (10) days and shall inform the Division of the Recipient’s exclusion in any request for amendment of this Agreement. The Recipient shall comply with Subpart C of Part 180 of 2 CFR, as supplemented by Subpart C of Part 1532 of 2 CFR. Such compliance is a condition precedent to the State Water Board’s performance of its obligations under this Agreement. When entering into a covered transaction as defined in Parts 180 and 1532 of 2 CFR, the Recipient shall require the other party to the covered transaction to comply with Subpart C of Part 180 of 2 CFR, as supplemented by Subpart C of Part 1532 of 2 CFR.
h. To the extent applicable, the Recipient shall disclose to the State Water Board any potential conflict of interest consistent with USEPA’s Final Financial Assistance Conflict of Interest Policy at https://www.epa.gov/grants/epas-final-financial-assistance-conflict-interest-policy. A conflict of interest may result in disallowance of costs.
i. USEPA and the State Water Board have the right to reproduce, publish, use and authorize others to reproduce, publish and use copyrighted works or other data developed under this assistance agreement.
j. Where an invention is made with Project Funds, USEPA and the State Water Board retain the right to a worldwide, nonexclusive, nontransferable, irrevocable, paid-up license to practice the invention owned by the Recipient. The Recipient must utilize the Interagency Edison extramural invention reporting system at http://iEdison.gov and shall notify the Division when an invention report, patent report, or utilization report is filed.

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Exhibit D
k. The Recipient agrees that any reports, documents, publications or other materials developed for public distribution supported by this Agreement shall contain the Disclosure statement set forth in Exhibit A.
l. The Recipient acknowledges that it is encouraged to follow guidelines established under Section 508 of the Rehabilitation Act, codified at 36 CFR Part 1194, with respect to enabling individuals with disabilities to participate in its programs supported by this Project. m. The Recipient, its employees, contractors and subcontractors and their employees warrants that it will not engage in severe forms of trafficking in persons, procure a commercial sex act during the term of this Agreement, or use forced labor in the performance of this Agreement. The Recipient must include this provision in its contracts and subcontracts under this Agreement. The Recipient must inform the State Water Board immediately of any information regarding a violation of the foregoing. The Recipient understands that failure to comply with this provision may subject the State Water Board to loss of federal funds. The Recipient agrees to compensate the State Water Board for any such funds lost due to its failure to comply with this condition, or the failure of its contractors or subcontractors to comply with this condition. The State Water Board may unilaterally terminate this Agreement if the Recipient that is a private entity is determined to have violated the foregoing.
n. The Recipient certifies to the best of its knowledge and belief that:
i. No federal appropriated funds have been paid or will be paid, by or on behalf of the Recipient, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. ii. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress in connection with this Agreement, the Recipient shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions, and notify the State Water Board.
iii. The Recipient shall require this certification from all parties to any contract or agreement that the Recipient enters into and under which the Recipient incurs costs for which it seeks disbursements under this Agreement.
o. The Recipient must comply with the following federal non-discrimination requirements:
i. Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, and national origin, including limited English proficiency (LEP). ii. Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against persons with disabilities.
iii. The Age Discrimination Act of 1975, which prohibits age discrimination. iv. Section 13 of the Federal Water Pollution Control Act Amendments of 1972, which prohibits discrimination on the basis of sex.
v. 40 CFR Part 7, as it relates to the foregoing.
vi. Executive Order 13798, including, to the greatest extent practicable and to the extent permitted by law, the requirement to respect and protect the freedom of persons and organizations to engage in political and religious speech vii. All applicable federal civil rights regulations, including statutory and national policy requirements (2 CFR section 200.300).

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Exhibit D
p. Executive Order No. 11246. The Recipient shall include in its contracts and subcontracts related to the Project the following provisions:
"During the performance of this contract, the contractor agrees as follows:"(a) The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to the following:
employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
"(b) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, or national origin. "(c) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
"(d) The contractor will comply with all provisions of Executive Order No. 11246 of Sept. 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. "(e) The contractor will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
"(f) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order No. 11246 of Sept 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. "(g) The contractor will include the provisions of Paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of Sept. 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the contracting agency may direct as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, That in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States."
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Exhibit D
q. The Recipient agrees to comply with the requirements of USEPA’s Program for Utilization of Small, Minority and Women’s Business Enterprises as set forth in this Agreement. r. Procurement Prohibitions under Section 306 of the Clean Air Act and Section 508 of the Clean Water Act, including Executive Order 11738, Administration of the Clean Air Act and the Federal Water Pollution Control Act with Respect to Federal Contracts, Grants, or Loans; 42 USC § 7606; 33 USC § 1368. Except where the purpose of this Agreement is to remedy the cause of the violation, the Recipient may not procure goods, services, or materials from suppliers excluded under the federal System for Award Management: http://www.sam.gov/ . s. Uniform Relocation and Real Property Acquisition Policies Act, Pub. L. 91-646, as amended; 42 USC §§4601-4655. The Recipient must comply with the Act’s implementing regulations at 49 CFR 24.101 through 24.105.
t. The Recipient agrees that if its network or information system is connected to USEPA networks to transfer data using systems other than the Environmental Information Exchange Network or USEPA’s Central Data Exchange, it will ensure that any connections are secure. u. All geospatial data created pursuant to this Agreement that is submitted to the State Water Board for use by USEPA or that is submitted directly to USEPA must be consistent with Federal Geographic Data Committee endorsed standards. Information on these standards may be found at www.fgdc.gov.
v. If the Recipient is a water system that serves 500 or fewer persons, the Recipient represents that it has considered publicly-owned wells as an alternative drinking water supply. w. The Recipient represents that it is not a corporation that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability; and it is not a corporation that was convicted of a felony criminal violation under a Federal law within the preceding 24 months. x. The Recipient agrees to immediately notify the Project Manager in writing about any allegation of research misconduct involving research activities that are supported in whole or in part with EPA funds under this Project, including fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results, or ordering, advising, or suggesting that subordinates engage in research misconduct.
y. The Recipient agrees to comply with, and require all contractors and subcontractors to comply with, EPA’s Scientific Integrity Policy, available at https://www.epa.gov/osa/policy-epa-scientificintegrity, when conducting, supervising, and communicating science and when using or applying the results of science. For purposes of this condition scientific activities include, but are not limited to, computer modelling, economic analysis, field sampling, laboratory experimentation, demonstrating new technology, statistical analysis, and writing a review article on a scientific issue.
z. The Recipient shall not suppress, alter, or otherwise impede the timely release of scientific findings or conclusions; intimidate or coerce scientists to alter scientific data, findings, or professional opinions or exert non-scientific influence on scientific advisory boards; knowingly misrepresent, exaggerate, or downplay areas of scientific uncertainty; or otherwise violate the EPA’s Scientific Integrity Policy. The Recipient must refrain from acts of research misconduct, including publication or reporting, as described in EPA’s Policy and Procedures for Addressing Research Misconduct, Section 9.C, and must ensure scientific findings are generated and City of Porterville
Project No.: 5410010-018C/ 5400655-001C
Agreement No.: SWRCB0000000000D2002017

Page 24 of 24 ends

Exhibit D
disseminated in a timely and transparent manner, including scientific research performed by contractors and subcontractors.
aa. The Recipient agrees to comply with the Animal Welfare Act of 1966 (7 USC 2131-2156).

Recipient also agrees to abide by the “U.S. Government Principles for the Utilization and Care of Vertebrate Animals used in Testing, Research, and Training,” available at http://grants.nih.gov/grants/olaw/references/phspol.htm#USGovPrinciples. bb. The Recipient certifies that no Project Funds will be used on:
i. Video surveillance or telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities), telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);
ii. Telecommunications or video surveillance services produced by such entities; iii. Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country; or
iv. Other telecommunications or video surveillance services or equipment in violation of 2 CFR 200.216.

Item No. 21.

CITY COUNCIL AGENDA – OCTOBER 18, 2022
SUBJECT: Cannabis Business Operating Permit For Retail Dispensary - Applicant Interviews
SOURCE: City Manager's Office
COMMENT:

At its meeting on October 4, 2022, the City Council authorized the scheduling of a Special Meeting for Monday, October 24, 2022, beginning at 6:00 P.M. to conduct the interviews of the qualified applicants to the Request for Proposals for wholly-local Cannabis Business Operating Permit for Retail Dispensary.

The Council also directed staff to coordinate with its Ad Hoc Committee (comprised of Council Members Tate and Weyhrauch) in recommending the interview process. At its meeting on October 7, 2022, the Committee provided the following recommendations for the Council's consideration:

The order of interviews should be chosen via a random method (e.g. lottery).

The number of interview participants is limited to not more than three people per application, and if participating virtually, the background(s) of the interviewees shall be plain, with no promotional, branding, or advertisement for the company in the backdrop.

The names of the applicants moving forward to the interview process, in alphabetical order, are as follows:

Bloom Farms
Main Street Apothecary
Uncle Green
Part 1 of the Interview
Applicants would be expected to conduct a fifteen (15) minute uninterrupted narrated presentation. Presentations may include PowerPoint or similar formatted visual aid, which would be required to be emailed to designated City staff by no later than 4:00 P.M. on Thursday, October 20, 2022. The visual aids and/or handouts are limited to a total of three pages, including: a one-page executive summary, and two pages of illustrations of the interior and exterior of the proposed business. It is requested that the applicants focus on the following elements:

Item No. 21.
· Introduce the proposed business and explain the local ownership structure; describe the primary qualities of their business brand. · Identify all local and non-local representatives and managers · Describe the qualities that set their business apart from the rest · Describe the professional qualifications of all applicants, representatives, and managers
· Provide a three-year Pro-forma (projection) illustrating all projected start-up and general operating costs, estimated gross revenues and anticipated taxes to be generated.
· Describe their approach to operating a safe and successful cannabis business in the city of Porterville
· Describe their understanding of the City’s community benefits objectives
· Outline their proposed community benefits offering/ideas Part 2 of the interview
Fifteen (15) minutes would then be allotted to each applicant for the following questions from the Council, which would be provided to the applicants ahead of time. Applicants will have approximately three minutes to respond to each question.

1. Describe the applicants' local business experience outside the cannabis industry and local employee count, as well as experience with audited payroll.

2. Describe the applicants’ and local representatives’ experience inside the cannabis industry: what is your experience in the cannabis industry; who will be your cannabis supplier; and how do you (and will you) stay current and in compliance with all cannabis business legal requirements and avoid the corruption issues that have arisen in other jurisdictions? Item No. 21.

3. Describe your prior experience with community benefits programs; and detail any proposed volunteer services, in-kind donations and/or charitable donations.

4. If you commence business in the City, where do you see your business in two years and in five years in terms of economic development?
Scoring of the interview
The City Council previously determined that the Council has a maximum of fifty (50) points to award per applicant, and that each Council Member has up to ten (10) points they may award for each presentation.

The Council may consider a proposed point scale based on the following (or may formulate an alternative basis for award/deduction of points):
1 to 4 Points: Applicant failed to adequately respond to Council’s questions 5 to 7 Points: Applicant’s response to Council’s questions met expectations 8 to 10 Points: Applicant’s response to Council’s questions was exceptional and far exceed expectations
The timing of award of these points has also been discussed by the Committee, with the Committee recommending that each Council Member provide their individual scores to the City Attorney via email at the conclusion of the interviews and no later than a half hour after the end of the meeting.

RECOMMENDATION: That the City Council consider the applicant interview process recommended by the Council's Cannabis Ad Hoc Committee.

ATTACHMENTS: 1. Request for Proposals
Appropriated/Funded:

Review By:

Department Director:

John Lollis, City Manager
Item No. 21.

Final Approver: John Lollis, City Manager
City of Porterville
Request for Proposals for “Wholly Local” Cannabis Business Operating Permit 1 | Page

REQUEST FOR PROPOSALS

CANNABIS BUSINESS OPERATING PERMIT
FOR

RETAIL DISPENSARY
PREPARED BY:

COMMUNITY DEVELOPMENT DEPARTMENT
January 2022
APPROVED BY:

________________________
Jason Ridenour
Community Development Director
City of Porterville
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I. BACKGROUND
On May 21, 2019, City Council adopted by ordinance, local regulations allowing commercial cannabis activities in Porterville, and identifying zoning districts. As part of the commercial cannabis regulatory framework, implementing regulations were approved by Ordinance 1853.

On February 2, 2021, the City Council gave first reading to Ordinances 1879 and 1880, and second reading on February 16, 2021, to increase the number of adult-use dispensary permits from two to three, allowing one additional cannabis adult-use dispensary business while maintaining a medical-only permit, in an effort to support a “wholly-locally owned” dispensary.

The City of Porterville (hereinafter referred to as “CITY”) is issuing this Request for Proposals (“RFP”) process for a “wholly local” retail dispensary business.

II. SUMMARY OF CANNABIS REQUEST FOR PROPOSALS
A retail dispensary permit is required for all activities for which State law requires a “Type 10,” or similar license, for the sale of Cannabis or Cannabis Products at a location open to the public.

Based on Porterville Municipal Code Chapter 15, Article VII, §15-87, the City may issue up to two (2) adult-use dispensary permits plus an additional permit per every 25,000 residents.

This RFP is for a “wholly-locally owned” adult use cannabis dispensary in the city of Porterville.

Local ownership (“wholly-locally owned”) is defined as an owner who currently resides and/or owns a business within Porterville’s Urban Area Boundary (UAB) as defined in the 2030 General Plan, for at least three years. If the applicant is an entity other than an individual, each and every member of the entity must meet the definition of local. The RFP may result in selected applicant securing eligibility to apply for a retail dispensary Cannabis Business Operator’s Permit (“CBOP”).

In order to apply for and be eligible to receive a CBOP, the applicant must have control over a physical location within the approved downtown districts or the Airport Industrial zone.

Receiving an award to apply for a CBOP does not constitute an entitlement approval.

All applicants whose proposals are accepted must thereafter enter into a Development Agreement, obtain a CBOP State license, apply for and obtain a City Cannabis permit and any other applicable regulatory approvals. The Development Agreement template is attached.

The RFP process will be in four parts as described herein. Applicants responding to the RFP are required to:
• Provide required background materials
• Submit a complete application package along with the Phase I required fee. Staff will review the application for completeness, and provide an opportunity for applicants to issue written questions.
• If it is determined the applicant meets the minimum requirements of Phase I review and has paid the Phase II required fee, the completed proposal will proceed forward to City of Porterville
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Phase II.
• Selected applicant will enter into a Development Agreement between the City and the Business Owner and any other Responsible Parties
Instructions to applicants, RFP, and application forms may be inspected at City Hall, 29l N.

Main Street, Porterville, California. Applications and related forms may be inspected and electronically downloaded with no cost, at the Public Purchase website, https://www.publicpurchase.com. No copies of said documents will be provided by the City. All addenda and correspondence during the application process will be handled electronically through the Public Purchase website.

III. OVERVIEW OF THE APPLICATION PROCESS AND FEE STRUCTURE Background
Each applicant, prior to beginning the application process, must be able to show proof of ability to complete the Type 10 State requirements for background investigations (as defined by SB 94 §26057). There are two ways to ensure compliance:

1. Submit to the City background materials for the applicant and any “owner” as defined by SB 94 §26001 (al). Each applicant will also be required to submit to a DOJ/FBI criminal fingerprint check utilizing a Live Scan form provided by the City. Upon receiving the form, applicants must schedule and complete the Live Scan with the Porterville Police Department located at 350 N. D Street, Porterville, CA 93257.

Applicants are responsible for all fees associated with the Live Scan.

The Chief of Police (or his/her designee) will review each applicant’s Live Scan returns for disqualifying information. All Live Scan results will be forwarded to the Community Development Department to be attached to the Phase I application process, if no disqualifying information is found.

2. Alternatively, an applicant that has an existing Type 10 State issued license, and can provide evidence of successfully completing the background investigation required by the state, may provide this documentation to the City. This evidence may be subject to review by the Chief of Police (or his/her designee).

Phase I – Application Review
All applicants that successfully show completion of the criminal background investigation may submit a completed application, including (Attachment 1) and include the information outlined in this RFP. Submitted proposals must include the $750 fee.

This phase provides the opportunity to submit written questions prior to an official submittal of the proposal for Phase II. The purpose of this phase is for staff to assist in any questions requiring clarification, to confirm the appropriate zoning, evaluate the site plan and floor plan, and attest to completeness of the application. Staff’s review will be limited to objective items inasmuch as the application includes all applicable documents listed in subsection H.

City of Porterville
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Phase II – Proposal Phase
Those applications deemed to meet the definition of “wholly locally owned” and complete, will advance to the second phase of the application process. Submitted proposals must include a $7,500 Phase II application fee. The applications will be reviewed and ranked according to the scoring rubric provided subsequently in Section VII of this RFP.

Concerning the competitive portion of this RFP process, applicants with evaluation scores of 75% (37.5 points) or better may proceed to an oral interview with the Porterville City Council (see below). Following the oral interviews, the top-rated applicants, subject to the number of available permits at the time, may receive notice informing them of the right to apply for a state license CBOP. Such applicants must apply for a CBOP within 120 days of receipt of the notice. Once the number of available permits has been reached, the remaining qualified applicants may be placed on a waiting list in order of ranked evaluation scores that will be valid for two years from the date of the notice. If an applicant that has the right to apply for a CBOP fails to secure all of the required entitlements within the proposed schedule or within one year from the date of the conditional award letter, whichever is sooner, the next applicant on the waiting list may have the opportunity to apply for a CBOP. The City Manager may extend this one-year time deadline for good cause.

Phase III – Development Agreement
The successful applicants shall be required to negotiate and enter into a Development Agreement with the City. The Development Agreement will provide the successful applicant with certain vested rights to develop the property and use it for the purposes of a cannabis dispensary for a period of years regardless of intervening changes in land use regulations, in consideration of the imposition of conditions and the payment of certain fees.

IV. ADDITIONAL TERMS AND CONDITIONS

1. Nondiscrimination
The City will not discriminate against any interested individual, firm or applicant on the grounds of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual orientation.

2. City’s Right to Modify the RFP
The City reserves the right at its sole discretion to modify this RFP (including but not limited to the requirements and/or the selection criteria) should the City deem that it is in its best interests to do so. Any changes to the proposal requirements will be made by written addendum posted on the City’s website. The failure of an applicant to read any addenda shall have no effect on the validity of such modification.

3. City’s Right to Suspend or Cancel the RFP
The City reserves the right at its sole discretion to suspend or cancel this RFP in part or in its City of Porterville
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entirety should the City deem that it is in the City’s best interests to do so.

4. City’s Right to Reject All Proposals
The City Council reserves the right, at its sole discretion, to reject all proposals, and/or not to award the right to apply for a CBOP to any applicant should the City deem that it is in its best interests to do so.

5. City’s Right to Extend RFP Deadlines
The City reserves the right to extend any of the deadlines listed in this RFP by written addenda should the City deem that it is in its best interests to do so.

6. Confidential Information. Sections of the RFP have been identified as confidential information (“Confidential”) and have been identified as such. The information shall be confidential, and shall not be subject to public inspection or disclosure except as may be required by federal, state or local law. Disclosure of information pursuant to this Section shall not be deemed a waiver of confidentiality by the applicant or any individual named in the application. The City shall not be responsible and shall incur no liability for the inadvertent or negligent disclosure of such information.

7. Cost of Proposals
All costs incurred during proposal preparation or in any way associated with the applicant’s preparations, submission, presentation or oral interview shall be the sole responsibility of the applicant.

8. Liability for Proposal Errors
Applicants are solely responsible for all errors and omissions contained in their proposals.

9. Permits and Licenses
Applicants, at their sole expense and at the appropriate time, shall obtain and maintain all appropriate permits, certificates and licenses including, but not limited to, a City business license, land use permit and CBOP which will be required in connection with their proposal.

10. Fees and Taxes
Cannabis businesses are responsible for paying all applicable fees and taxes, as well as any fees negotiated within the Development Agreement.

11. Commencement of Operation
All the requisite approvals to begin commencement of operations, including without limitation, obtaining a land use permit, business license, and operator’s permit, must be obtained within the applicant’s proposed schedule, or one (1) year from the date of the notice of the right to apply for a CBOP, whichever is sooner. The City Manager may extend this one-year time deadline for good cause.

City of Porterville
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12. Revocation of Approvals
The applicant shall operate the establishment in such a manner as to preserve the public safety, health and welfare, to prevent the use from becoming a nuisance and operate the business in compliance with all laws, ordinances and regulations. In the event that this or any other condition of approval is violated, the City Council may modify or revoke the permit as provided in Section 601.10 of the Porterville Development Ordinance. Pursuant to Section 601.10(d) the City Council may revoke the permit if it makes any of the following findings:
• That approval was obtained by means of fraud or misrepresentation of a material fact;
• That the use in question has ceased to exist or has been suspended for one year or more;
• That there is or has been a violation of or failure to observe the terms or conditions of the permit or variance, or the use has been conducted in violation of the provisions of this ordinance, law or regulation; or • That the use to which the permit or variance applies has been conducted in a manner detrimental to the public safety, health and welfare or so as to be a nuisance.

13. Authority to Sell, Transfer or Assign License
The City requires that the individuals or entities that receive an award pursuant to the RFP shall be the individuals/entities owning and operating the businesses, and the City Council reserves the right to approve or deny any request to sell, transfer ownership or assign the CBOP license.

V. PROPOSED SCHEDULE
All applicants responding to the RFP must timely submit the following (Late submittals will be returned to the applicant unopened). Applicants failing to submit the foregoing items will be eliminated from the RFP process. The City reserves the right to alter the following schedule as necessary:

RFP Issued Monday, January 3, 2022
Written Questions from Applicants due Friday, January 14, 2022 Answers to Written Questions Issued Monday, January 24, 2022 Submit Final Application and documentation, and
$750 review fee due
Friday, February 4, 2022
by 4:00 PM
Staff review of applications and letters issued for
completeness and/or correctory notices
Friday, February 18, 2022
City of Porterville
Request for Proposals for “Wholly Local” Cannabis Business Operating Permit 7 | Page
Proposal, Complete/Corrected Application
and $7,500 fee due
Friday, February 25, 2022
by 4:00 PM
Third Party Independent Review Monday, March 28, 2022
Interviews with City Council Wednesday, April 20, 2022
Announcement of Selected Applicants TBD
VI. PROPOSAL REQUIREMENTS
Submitted proposals must include a $750 Phase I review fee and those subsequently wanting to enter the Phase II application pay the $7,500 fee. The following information in the ensuing order is required to be deemed a complete submittal. All information submitted to the City must be current. Applicants have a continuing duty to confirm that any requested information submitted previously as partof the submittals remains accurate, and notify the City immediately of any inaccuracies. Proposals, inclusive of all attachments, shall not exceed 250 pages.

1. Provide Evidence of Secured Location for the Cannabis Business. Evidence of a secured location for a cannabis business includes, but is not limited to: a real estate letter of intent (RELOI) to lease or purchase property from a party authorized to lease or sell such properly; a purchase agreement, a lease, an option to purchase, an option to lease or purchase property; or evidence of the applicant’s ownership of the property.

These terms are defined more specifically below:

Letters of interest of any kind are not acceptable. RELOIs, leases or options to lease or purchase must clearly and specifically state that the RELOI, lease, or option to lease or purchase is for the type of cannabis business listed in the proposal. The RELOI, lease, or option to lease must reflect that the applicant will have control of the property for a minimum of five (5) years. A month-to- month lease or rental agreement is not acceptable.

Real Estate Letter of Intent: A signed written term sheet, letter of intent, or exclusive negotiating agreement between two or more parties, including the applicant, to sell, lease, or sublease property, outlining the terms by which the applicant will have control of the property for two or more years. These terms may be further negotiated but must provide the basis for a proposed written agreement.

Purchase Agreement: A signed written agreement that a person will purchase a specific property and the owner cannot sell to anyone else unless the terms of the agreement are not fulfilled.

Lease: A signed written agreement that gives a lessee certain rights to use and occupy specific property for at least two years.

City of Porterville
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Real Estate Purchase or Lease Option: A signed written agreement for the purchase or lease of specific real property by which the purchaser or lessee has the exclusive right to purchase or lease the property for at least two years.

Proof of Ownership: A written document, such as a deed, that shows that title to the real property is vested in the applicant.

2. Provide a Statement Confirming that the Cannabis Business Location is Outside of Buffer Zone for a School. State that the location secured for the cannabis business operations is outside of the buffer zone required by the State for schools. Furnish evidence supporting the foregoing statement. Any proposal located within the buffer zone for schools will automatically be disqualified.

3. Provide a Business Plan Summary and Statement of Qualifications. Confidential.

Describe the day-to-day operations of the dispensary, including a description of the cannabis-related products and/or services being sold, as well as any additional accessory services or related facilities. Provide a detailed list of all cannabis operations proposed to occur on the premises and their processes including, but not limited to, standard operation procedures, number of employees, training program, inventory and quality control procedures, lists of both recreational and medicinal products anticipated to be available, waste management plan, transportation and distribution of product processes, delivery processes, testing, quality control practices and procedures, visitor and vendor protocols, and the track and trace procedures and policies. Include a plan to hire local individuals.

The business plan should also include the statement of qualifications of the Cannabis Business Owner’s relative to the proposal, including experience running businesses similar to the one proposed, including cannabis and/or non-cannabis businesses.

CV/resumes may be attached as an exhibit to this Section of the proposal. “Cannabis Business Owner” means “Owner,” as defined in State law, including by regulation, in addition to any of the following:
a. Each person with an aggregate ownership interest of 20 percent or more in a person, as defined herein, who applies for a Permit or is a Cannabis Business Permittee, unless the interest is solely a security interest, lien, or encumbrance.

When an entity (not a natural person) has an aggregate ownership interest of 20 percent or more, then the chief executive officer and/or members of the board of directors of each entity shall be considered owners. b. The chief executive officer of a person, as defined herein, who applies for a Permit or is a Cannabis Business Permittee.
c. A member of the board of directors of a nonprofit of a person, as defined herein, who applies for a Permit or is a Cannabis Business Permittee. d. The trustee(s) and all persons that have control of the trust and/or a person, as City of Porterville
Request for Proposals for “Wholly Local” Cannabis Business Operating Permit 9 | Page
defined herein, who applies for a Permit or is a Cannabis Business Permittee that is held in trust.
e. Any person, as defined herein, who assumes responsibility for the Permit. f. Each person who participates in the direction, control, or management of person, as defined herein, who applies for a Permit or is a Cannabis Business Permittee.

Such an individual includes any of the following:
i. A general partner of a partnership.
ii. A non-member manager or managing member of a limited liability company.
iii. An officer or director of a corporation.

The business plan should include a local hire program demonstrating how they would hire locally. A local hire plan could address:
a. A minimum percentage of the business’ employment base hired locally. b. A recruitment plan for new hires, including outreach methods. c. The hourly wage of the lowest-paid employee.
d. Estimated number of full and part-time positions in years one through five. e. Available job pathways.
f. Describe any plans to train employees and promote lower-level employees.

4. Proposal Implementation. Confidential. Provide verifiable, detailed descriptions and other background information for any Cannabis Business Owner. Describe other resources, including financial resources, dedicated to implement this application.

5. Understanding and Approach. Provide a statement demonstrating the applicant’s understanding and approach to running the proposed cannabis business and how that approach will integrate the business into the community in which it is located.

6. Security Practices. Confidential. Applicants shall describe their approach to operational security including but not limited to:
• General security policies.
• Employee-specific policies and training.
• Discussion of transactional security, visitor security, third-party contractor security, and delivery security.

Applicants should address ingress and egress access, perimeter security, product security (at all hours), internal security measures for limited access areas, types of security systems (alarms, cameras, etc.), and security personnel to be employed. This City of Porterville
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discussion must also include a description of how cannabis will be tracked and monitored to prevent diversion, such as by verifying the status of recommending physicians, if selling medicinal cannabis, and retaining copies of all written recommendations from recommending physicians when applicable. Applicants are encouraged to provide a sample written policy that has been developed.

Security plans shall not be made public, unless required by court action. Security plan details that could aid persons who wish to commit security violations shall be considered confidential and shall not be released to the public unless ordered by a court of law.

7. Local ownership: Local ownership (“wholly-locally owned”) is defined as an owner who currently resides and/or owns a business within Porterville’s Urban Area Boundary (UAB) as defined in the 2030 General Plan, for at least three years. If the applicant is an entity other than an individual, each and every member of the entity must meet the definition of local. The local owners must provide verifiable information regarding the number of years each owner has lived in, and/or owned a business in, Porterville’s Urban Area Boundary (UAB) as defined in the 2030 General Plan. Names are confidential, the composition of how the ownership meets the criterion is not. Provide verifiable information such as business license information, property tax bills, business name(s) and address(s), and the number of years each owner has lived in and/ or owned a business(s) in Porterville’s UAB.

8. Proposed schedule. Provide a schedule for opening the cannabis business. The schedule should include dates for the following:
a. Design review, if applicable
b. Signage approval, if applicable
c. Issuance of State license(s)
d. Land Use permit
e. Issuance of CBOP
f. Issuance of Building permit
g. Issuance of other regulatory permits (e.g., discharge permit, etc.) h. Completion of construction
i. Opening and commencement of operations

9. Community benefit: Describe the applicant’s proposed involvement in the City of Porterville, specific to downtown beautification projects, and plans to mitigate any nuisance and/or negative impacts. For further information, see Development Agreement template, attached.

10. Indemnification. The applicant must agree to indemnify the City as set forth in the attached Indemnification Agreement
VII. EVALUATION PROCESS
Applications (Proposals) must fully address the proposal requirements in V above and the City of Porterville
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evaluation criteria and scoring rubric in VIII below, as well as provide complete submittals, references and data to verify qualifications. Proposals without sufficient data to provide a complete evaluation will be considered non-responsive.

All proposals will be reviewed for compliance with requirements including documented capability to operate a cannabis business in a satisfactory manner. Proposals will be evaluated in accordance with the criteria set forth below.

City shall employ a third party independent review to score written proposals.

The City Council reserves the right to invite those with a passing score to participate in an interview process to be defined at a future date. The interview includes the scoring of 50 potential points.

The City may make a conditional award to the applicant or applicants offering the most advantageous proposal after consideration of the evaluation criteria set forth below. The City will not be obligated to accept any given proposal, but will make the conditional award in the best interests of the City after all proposals have been evaluated.

VIII. EVALUATION CRITERIA Minimum Requirements
Phase I fee of $750 was paid and the CBOP complete application was submitted on or before the February 4, 2022, 4:00pm deadline Pass/Fail
RFP fee of $7,500 was paid and the response to the RFP was submitted on or before the February 25, 2020, 4:00pm deadline
Pass/Fail
Evidence of a secured location for the cannabis business Pass/Fail Evidence that the location is outside of cannabis buffer zones for schools Pass/Fail Evaluation Criteria
The table below is a scoring rubric to evaluate proposals received in response to the RFP. The responses will be scored on a zero to 50-point scale, excluding the interview. The applicant must receive a minimum of 75% (37.5 points) of the total possible points to proceed to the interview process.

Interviews will be scored on a zero to 50-point scale. The maximum points available, including the interview, is 100 points.

1. Local Ownership (defined by Porterville UAB) (Pass/Fail)

2. Business Operations Plan and Statement of Qualifications 15 Has applicant described how the commercial cannabis business day-to-day operations of the facility will function, including standard operating procedures? 5 Has the applicant provided a full description of the proposed business, including proposed staffing levels, products, product types, testing protocols, licensing requirements, etc., demonstrating how it will operate its business? 5 City of Porterville
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Has the applicant provided resumes/CVs and other relevant materials, for and about primary and significant persons that will be responsible for implementing key portions of the proposed business?
5 3. Verifiable detailed description of persons and type of resources, including financial resources, committed to implement the proposal 15 Has the applicant submitted a financial statement, balance sheet, and tax returns that attest to its financial health and ability to finance and operate the proposed business?
5 Has the applicant committed to initial investment amounts and shown how it will reinvest in the business over time?
5 Does the applicant show that it is investing in equipment, technology and facilities that are appropriate for the nature of the business?
5 4. Summary of Security Practices 15
Has the applicant provided a full description of security policies including ingress and egress access, perimeter security, product security at all hours, product tracking, security systems and verification of the status of recommending physicians?
5 Has the applicant described employee-specific policies and training? 5 Has the applicant adequately described transactional security, visitor security, third-party contractor security and delivery security?
5 5. Proposed schedule 5
Does the schedule clearly provide realistic milestones for the following items? 3 a. Design review, if applicable
b. Signage approval, if applicable
c. Issuance of State license(s)
d. Issuance of CBOP/Land Use permit
e. Issuance of Building permit
f. Issuance of other regulatory permits
g. Completion of construction
h. Opening and commencement of operations
Does the schedule provide a detailed, comprehensive timeline for starting operations of the business?
2 Total 50
IX. SUBMITTAL INSTRUCTIONS
The proposal shall be signed by an individual(s) authorized to execute legal documents on behalf of the applicant. Failure to provide all required submittals may result in a proposal being found non-responsive and given no consideration.

Two (2) hard copies of the proposal and one electronic PDF version of the proposal ona flash drive shall be provided in a sealed envelope with a return address, including business name, no later than Friday, February 4, 2022 by 4:00pm for Phase I and Friday, February 25, 2022 City of Porterville
Request for Proposals for “Wholly Local” Cannabis Business Operating Permit 13 | Page
by 4:00pm for Phase II to the following address:

Community Development Department
Porterville City Hall
291 N. Main Street
Porterville, CA 93257
Attention: Community Development Director
Late proposals will not be considered and will be returned to the applicant unopened. The City assumes no responsibility for delays caused by delivery service. Postmarking by the due date will not substitute for actual timely receipt.

Any proposal received prior to the submittal date may be modified or withdrawn by written request from the applicant to the City up to the submittal deadline. Proposals, inclusive of all attachments, shall not exceed 250 pages.

X. QUESTIONS
For information concerning RFP procedures and regulations (i.e., submission deadline, required forms, etc.), interested parties shall request clarification electronically through the Public Purchase website.

Attachments

1. Commercial Cannabis Business Permit Application – Storefront Dispensary

2. Porterville Live Scan Application

3. Indemnification Agreement

4. Development Agreement Template

5. Cannabis Ordinances

CITY OF PORTERVILLE
Community Development Department
291 North Main Street, Porterville CA 93257
(559)782-7460
Commercial Cannabis Business Permit Application – Storefront Dispensary A. BusinessInformation
Business Name:

Property Address:

Assessor Parcel Number: Zoning Designation:

B. Business Type (Check all that apply)
Retailer Storefront (Adult-use) Retailer Storefront (Medical) Retailer Storefront (Adult-use and Medical)
*GR – Gross Receipts
C. Definitions
Applicant - The entity petitioning for the Cannabis Business Operator Permit.

Principal(s) - The individual members of the applicant team.

Primary Principal - An individual who has a 10% or greater ownership stake of the applicant business, which includes partners, officers, directors, and stockholders of every corporation, limited liability company, or general limited partnership that owns at least 10% of the stock, capital, profits, voting rights, or membership interest of the commercial cannabis business or that is one of the partners in the commercial cannabis business; the managers of the commercial cannabis business.

Operator - An applicant that has been licensed and conducts or conducted active cannabis operations.

Majority - A greater number; more than half. An equal number does not constitute a majority.

D. ApplicantInformation
Name of Primary Responsible Party Completing the Application:

Title: DOB:

Social Security No:

If applicant is a not for profit, corporation, partnership or other business entity, please identify:

Name of Business Entity:

Type of Ownership:

Federal Tax Id: Start Date:

Mailing Address:

Primary Phone No: Alt. Phone No:

Email Address:

Preferred method of contact (check one) Mail Phone Email E. Additional Responsible Party Information
Name:

Title: DOB:

Social Security No:

Mailing Address:

Primary Phone No: Alt. Phone No:

Email Address:

Preferred method of contact (check one) Mail Phone Email Please attach additional sheets if there are more than 2 Responsible Parties.

F. Information on Property Owner or Landlord
Name:

Mailing Address:

Primary Phone No: Alt. Phone No:

Email Address:

Preferred method of contact (check one) Mail Phone Email If the applicant is not the legal owner of the property, the application must be accompanied by a notarized Owner’s Statement of Consent to operate a commercial cannabis business on the property.

G. Related License Information
The applicant and/or responsible parties has been associated with a commercial cannabis business permit in the past 10 years.

Name:

City or County: Start Date: End Date:

Business Name: Business Type:

Please attach additional sheets if necessary.

H. Required Submissions (Please check the box for eachattachment) Please attach all applicable documents listed below as part of your application as they pertain to your business type. For any items that do not apply to your business type, please provide a brief explanation as to why they do not apply.

Business Operations Plan
• Business Plan: A plan describing how the commercial cannabis business will operate in accordance with City code, state law, and other applicable regulations. The business plan must include plans for handling cash and transporting cannabis and cannabis products to and from the site. The plan must include a description of the day-to-day operations of the facility including but not limited to standard operating procedures, number of employees, training program, inventory and quality control measures, lists of both recreational and medicinal products anticipated to be available (if applicable), waste management plan, delivery processes, testing, quality control practices and procedures, visitor and vendor protocols (logs, non-disclosures, etc.), and track Yes No (If yes, please provide the following information) and trace procedures and policies.
• Community Relations Plan: A plan describing who is designated as being responsible for outreach and communication with the surrounding community, including the neighborhood and businesses, and how the designee can be contacted.
• State Licenses: Copies of the state licenses relating to the commercial cannabis business licenses, the applicant holds (when available).
• Insurance: The applicant’s certificate of commercial general liability insurance and endorsements and certificates of all other insurance related to the operation of the cannabis business. • Budget: A copy of the applicant’s most recent annual budget for operations (If available) • Financial Capacity/Proof of Capitalization: Proof demonstrating sufficient capital is in place to pay startup costs and at least three months of operating costs. Proof of capitalization shall be in the form of financial information such as bank statements and balances, available loans and/or other sources of funding the enterprise, and/or documentation of cash or other liquid assets; and a Letter of Credit. • Products and Services: A list/description of the general products and services the business will provide. • Management Team: An organization chart with the name and role of each known member of the management team, including roles that are known but unfilled, resumes for each member of the management team, a discussion of the experience of the management team, and information concerning any special business or professional qualifications or licenses of the management team that would add to the number or quality of services that the facility would provide, especially in areas related to medicinal cannabis, such as scientific or health care fields
Education Plan: A plan describing the type of cannabis education and prevention efforts that will be provided by the business to the community.

Security Plan: The security plan must be prepared by a qualified professional. A detailed security plan must outline the measures that will be taken to ensure the safety of persons and property on the business site, including general security policies, employee-specific policies and training, discussion of transactional security, visitor security, third-party security, and delivery security. Applicants should address ingress and egress access, perimeter security, lobby and storage area security, product security (at all hours), internal security measures for limited access areas, type of security systems (alarms, cameras, etc.), and security personnel to be employed. Displayed items must be secured behind a counter, and only accessible in the presence of an employee. Video surveillance must be provided at all times in a manner and design approved by the Porterville Police Department, and stored for a period of at least 90 days, and accessible by the Department. Facilities shall have a burglar alarm, to include panic buttons located at the front lobby and retail areas. Alarm services must be provided/monitored by a third party alarm company, with notification to the Porterville Police Department. GPS data for delivery vehicles must be preserved for not less than 90 days and made available to the Porterville Police Department upon request. The discussion must also include a description of how cannabis will be tracked and monitored to prevent diversion, such as by verifying the status of recommending physicians and retaining copies of all written recommendations from recommending physicians when applicable.

Applicants are encouraged to provide a sample written policy that has been developed. Security plans shall not be made public, unless required by court action. Security plan details that could aid persons who wish to commit security violations shall be considered to be confidential and shall not be released to the public unless ordered by a court of law.

Lighting Plan: A detailed lighting plan showing existing and proposed exterior and interior lights that will provide adequate security lighting for the business site. The lighting plan shall be subject to review, adjustment and approval of all City Departments.

Site and Floor Plans: A dimensioned site plan of the business site, including all buildings, structures, driveways, parking lots, landscape areas and boundaries. Also provide dimensioned floor plans for each level of each building that makes up the business site, including the entrances, exits, and walls. The plans shall also include the following information about the site: current zoning, parking requirements, consistency with development standards for the zone and any applicable design guidelines, the new development planned for the site, and any other site development information. Entrances shall be unobstructed by tall landscaping or architectural features, and shall be visible from the public right of way and parking areas. The floor plan must provide for a front lobby that is completely separate and secured from the dispensary, for a separate secured storage room (which is illuminated and ventilated, and constructed of materials not easily compromised such as steel or concrete), and all requirements as required by State law. All facilities shall have a secured room within which all non-display cannabis merchandise is stored. The applicant must provide proof of ability to lease or purchase the property (Property Owner Affidavit). The plans provided must be to scale. The Retail Operation may be a component of a larger development proposal which can be described in this application.

Odor Control Plan: A detailed plan describing how the applicant will prevent all odors generated from the storage of cannabis from escaping from the buildings on the business site, such that the odor cannot be detected by a reasonable person of normal sensitivity outside the buildings.

Product Safety and Labeling: The applicant shall provide how the facility will ensure enhanced consumer safety by testing or confirming that testing has been certified for biological and chemical contaminants. The applicant must also submit a discussion regarding the product labeling standard to be employed and how they will be in compliance with state and local laws, regulations, and policies. The applicant must also provide information on product labeling sufficient to ensure that cannabis and edible products containing cannabis clearly identify the percentage level of delta-9 (trans) tetrahyrdacannabinol, cannabidiol, and cannabinol, and have adequate warnings.

Community Benefits: The applicant shall demonstrate to the satisfaction of the City of its intent to local hiring and community support. The applicant must provide a discussion of how it intends to provide the City and its residents with community benefits and mitigate any nuisance and/or negative impacts that the facility’s existence may create. Applicants must provide the City a description of how it plans to develop and implement a Community Benefits Program. Examples of benefits could include, but are not limited to, supporting or funding community programs, employment and job training programs, contributing to local substance abuse programs, funding foreclosure prevention programs, or other activities that benefit the local neighborhood as well as the City of Porterville. Such benefits and funding shall be set forth in a Development Agreement with the City.

Hiring and Employment Practices: The applicant must submit a description of their labor and employment practices. These policies and practices could include, but are not necessarily limited to a discussion of hiring plan, training and continuing education opportunities (introductory and ongoing) that will be provided, the provision of equal benefits and/or the execution of a declaration of non-discrimination, and, for an applicant with 20 or more employees, a statement that the applicant will enter into or demonstrate that it has already entered into and will abide by, a labor peace agreement.

I. CityAuthorization
I, the applicant, provide authorization and consent for the City Manager or his/her designee to seek verification of the information contained on this application.

J. Indemnification
I, the applicant, agree to the fullest extent permitted by law, any actions taken by a public officer or employee under the City of Porterville regulations for Commercial Cannabis Businesses, shall not become a personal liability of any public officer or employee of the City. To the maximum extent permitted by law, the permittee shall defend (with counsel acceptable to the City), indemnify and hold harmless the City of Porterville, the Porterville City Council, and its respective officials, officers, employees, representatives, agents and volunteers from any liability, damages, actions, claims, demands, litigations, loss (direct or indirect), causes of action, proceedings, or judgments (including legal costs, attorneys’ fees, expert witness or consultant fees, City Attorney or staff time, expenses or costs) against the City to attach, set aside, void or annul, any cannabis-related approvals and actions and strictly comply with the conditions under which such permit is granted, in any. The City may elect, in its sole discretion, to participate in the defense of said action and the permittee shall reimburse the City for its reasonable legal costs and attorneys’ fees.

K. Nonrefundable Filing Fee
I, the applicant, understand and accept that the nonrefundable filling fee must be submitted with the competed Commercial Cannabis Business Permit Application and will be retained by the City regardless of the out-come of the application review.

I, the applicant, understand that a completed and processed Request for Live Scan Service, State of California Form BCIA 8016, as determined by the City of Porterville, by a duly authorized business must be provided for the applicant and all interested parties. All applicable fees and charges are the responsibility of the applicants and interested parties.

L. Background – Request for Live Scan Services
M. Disqualification
• Application was received late
• Application is incomplete or inaccurate
• Facility does not meet City business licensing standards • More than one application is received for the same cannabis business type on one property (stacking of applications)
N. Applicant’s Certification
I agree to abide by and conform to the conditions of the permit and all provisions of the Porterville Municipal Code pertaining to the establishment and operation of the commercial cannabis business. I acknowledge that the approval of the Commercial Cannabis Business Permit shall, in no way, permit any activity contrary to the Porterville Municipal Code, or any activity which is in violation of any applicable law.

The information provided is genuine and not a sham, collusive, or made in the interest or on behalf of any party not therein named, and that the applicant has not directly or indirectly induced or solicited any other applicant to put in a sham proposal, or any other applicant to refrain from presenting information and that the prospective provider has not in any manner sought by collusion to secure an advantage.

The applicant has not paid or agreed to pay any fee of commission, or any other thing of value contingent upon the award of a permit or of any exclusive operating area, to any employee, official, or existing contracting consultant of the City of Porterville.

All costs of preparation or proposals including travel for any interviews scheduled shall be borne by the applicants.

All proposals become the property of the City of Porterville. The City reserves the right to reject any and all submittals; to request clarification of information submitted; to request additional information from competitors; and to waive any irregularity in the submission and review process. None of the materials submitted will be returned to the bidder.

Information or materials submitted in response to this application will be stored of file with the City of Porterville, and may be subject to the requirements of the California Public Records Act, or subject to public disclosure as ordered by a court of law. Proposed security plans shall be considered confidential.

The City reserves the right to request additional information not included in this application from any or all applicants.

The City reserves the right to contact references not provided in the submittals.

The City reserves the right to incorporate its standard agreement language into any contract resulting from this application.

The applicant understands that if selected to receive a permit by the City, applicant will be, in accord with City regulations, required to enter into a Development Agreement with the City containing additional terms and conditions for the development and operation of the business. Due to the unique nature of the subject business, a Development Agreement will be crafted to establish the terms and parameters within which the business may develop. If the applicant and City enter into a Development Agreement, the applicant will have five (5) years to operate a dispensary subject to the Agreement terms and conditions, the local regulations in effect at the time the Development Agreement was executed, and all applicable State law in effect at the time and as may be amended.

I certify under penalty of perjury under the laws of the State of California, that I have personal knowledge of the information contained in this application, that I am authorized to execute this application and all portions thereof, and that the information contained herein is true and correct.

Signature: Date:

The information contained on this document is subject to disclosure under the Public Records Act.

Applicants providing false or misleading information in the permitting process will result in rejection of the application and/or nullification or revocation of any issued permit. All commercial cannabis permits must be approved by the City Council. The City may attach conditions to the permit. A commercial cannabis permit may be denied if any of the following findings aremade:
(i) The application does not meet all requirements of the commercial cannabis ordinance; or (ii) Approval would very likely result in harm to public safety, health, or welfare; or (iii) Potential negative impacts of the use cannot be mitigated with conditions or through the ordinance requirements.

Applicants will be notified regarding application completeness

COMMERCIAL CANNABIS BUSINESS OPERATORS PERMIT APPLICATION PROPERTY OWNER’S STATEMENT OF CONSENT
If the applicant is not the owner of record of the subject site, the following Statement of Consent must be completed by the owner or the owner’s authorized representative, granting the applicant permission to apply for a cannabis business operator permit.

I, the undersigned legal owner of record, hereby grant permission to:

Applicant: Phone:

Mailing Address:

To operate a commercial cannabis business on the property described below. I agree to abide by and conform to the conditions of the permit and all provisions of the Porterville Municipal Code pertaining to the establishment and operation of the commercial cannabis business. I acknowledge that the approval of the Commercial Cannabis Business Permit shall, in no way, permit any activity contrary to the Porterville Municipal Code, or any activity which is in violation of any applicable law. I further understand that I am responsible for, and also subject to, enforcement actions regarding any violations and/or nuisance activity which may occur at this property if leasing the property to the applicant.

The subject property is located at:

Assessor’s Parcel Number:

Printed Name of Owner of Record:

Address of Owner of Record:

Phone: Email address:

Signature of Owner of Record: Date:

Attach:

Proof of possession of the premises and approval of use (deed, lease, lease assignment, agreement showing willingness to sell property if applicant obtains permit) Notary Use Only:

State of California
County of Tulare
On this, the day of , 20 , before me a notary public, the undersigned officer, personally appeared , known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed the same for the purpose therein contained.

I witness hereof, I hereunto set my hand and official seal.

Notary Public

CITY OF PORTERVILLE

INDEMNIFICATION AGREEMENT
Pursuant to Porterville Municipal Code Chapter 21, Section 601.02(b)(4), and to the fullest extent permitted by law, the “Applicant” (owner of the subject property; or an agent representing the owner, duly authorized to do so in writing by the owner, including, but not limited to, a person with a duly executed written contract or exclusive option to purchase the subject property or a lessee in possession of the subject property) hereby agrees to defend, indemnify and hold harmless the City of Porterville, its officers, attorneys, agents, and employees:

1. From any claims, actions, proceedings or liability of any nature (collectively referred to as proceeding) brought against the City or its officers, attorneys, agents or employees, to attack, set aside, void, or annul:
a. Any action or decision by City Staff, City Council or any other City entity related to the subject property.
b. Any action taken to provide related environmental clearance or decisions under the California Environmental Quality Act (CEQA) by City Staff, City Council or any other City entity concerning the subject property.

The indemnification is intended to include but not be limited to damages, fees, and/or costs awarded against the City, if any, and cost of suit, attorney’s fees, and other costs, liabilities and expenses incurred in connection with such proceeding whether incurred by the Applicant, the City, and/or the parties initiating or bringing such proceeding.

2. The Applicant hereby agrees to indemnify the City for all of the City’s costs, fees, and damages which the City incurs enforcing the indemnification provisions of this Agreement.

3. In the event of a proceeding, the City retains the right to approve counsel to defend the City, all significant decisions concerning the manner in which the defense is conducted, and any and all settlements, which approval shall not be reasonably withheld. The City has the right not to participate in the defense, except that the City agrees to cooperate with the applicant in the defense of the proceeding. If the City chooses its own counsel to defend the City, the fees and expenses of the counsel selected by the City shall be paid by the City. Notwithstanding the above, if the City Attorney’s office participates in the defense, all City Attorney fees and costs shall be paid by the Applicant.

4. The defense and indemnification of the City set forth herein shall remain in full force and effect throughout all stages of litigation including appeals of any lower court judgments rendered in the proceeding.
____________________________________
Print Name and Date
____________________________________
Signature (Owner or Legal Representative)

Porterville City CouncilOctober 18, 2022

Porterville City Council
October 18, 2022