Porterville City Council
May 2, 2023

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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

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

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

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

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

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

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

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

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

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

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
Agreement No.: SWRCB0000000000D2002017

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

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

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

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

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

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

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.

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

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).

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

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

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

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. 17.

CITY COUNCIL AGENDA – MAY 2, 2023
SUBJECT: Assembly Bill 481 - Use of Military Equipment Annual Review SOURCE: Police
COMMENT: On September 30, 2021, Governor Newsom signed a series of police reform bills, including Assembly Bill 481 (AB 481), which states that the public has a right to know and participate in the decision-making processes related to the funding, acquisition, or use of military equipment by State or local government officials in an effort to increase transparency, accountability, and oversight. AB 481 called for local agencies to give strong consideration to the public’s welfare, safety, civil rights, civil liberties, and public input. At its meeting on May 17, 2022, as part of a Public Hearing, the City Council approved the items deemed to be military pursuant to AB 481. It should be noted that none of the items in the inventory of the Porterville Police Department (PPD) are from the United States Military (please see the attached Agenda Staff Report from the City Council Meeting of May 17, 2022, as Attachment 4). The legislation required that local law enforcement agencies, which seek to continue the use of military equipment acquired prior to January 1, 2022, accomplish the following which have been completed:

1. Draft a military equipment funding, acquisition, and use policy that describes each piece of military equipment and the authorized uses for each piece of equipment (Attachment 1);

2. Seek approval of the policy from their governing body by ordinance for the continued use of existing military equipment before acquiring new military equipment or seeking funds for equipment purposes; and

3. Make publicly available any proposed or final military equipment use policy, for as long as the military equipment is available for use, on the agency’s website.

In addition to the above requirements, AB 481 also requires, at least annually, that the law enforcement agency shall:

1. Prepare an annual military equipment report with at least one “wellpublicized and conveniently located community-engagement meeting” to allow for public discussion of the report; and

2. Present the policy for review, renewal, and approval at a Regular Meeting of the governing body. During this review, the governing body shall consider the Annual Report and determine whether each type of military equipment has Item No. 17.
complied with specified standards for approval.

The Porterville Police Department’s 2022 AB 481, Military Equipment Annual Report (Attachment 2) is being presented to meet the annual requirement.

AB 481 defines “military equipment” as follows and differentiates the equipment by category:
• Category 1: Unmanned, remotely piloted, powered aerial or ground vehicles.
• Category 2: Mine-resistant, ambush-protected (MRAP) vehicles or armored personnel carriers. However, police versions of standard consumer vehicles are specifically excluded from this subdivision.
• Category 3: High-mobility multi-purpose wheeled vehicles (HMMWV), commonly referred to as Humvees, two and one-half-ton trucks, five-ton trucks, or wheeled vehicles that have a breaching or entry apparatus attached.

However, unarmored all-terrain vehicles (ATVs) and motorized dirt bikes are specifically excluded from this subdivision.
• Category 4: Tracked armored vehicles that provide ballistic protection to their occupants and utilize a tracked system instead of wheels for forward motion.
• Category 5: Command and control vehicles that are either built or modified to facilitate the operational control and direction of public safety units. • Category 6: Weaponized aircraft, vessels, or vehicles of any kind. • Category 7: Battering rams, slugs, and breaching apparatuses that are explosive in nature. However, items designed to remove a lock, such as bolt cutters or a handheld ram designed to be operated by one person, are specifically excluded from this subdivision.
• Category 8: Firearms of .50-caliber or greater. However, standard-issue shotguns are specifically excluded from this subdivision. • Category 9: Ammunition of .50-caliber or greater. However, standard-issue shotgun ammunition is specifically excluded from this subdivision. • Category 10: Specialized firearms and ammunition of less than .50-caliber, including assault weapons as defined in Sections 30510 and 30515 of the Penal Code, with the exception of standard-issue service weapons and ammunition of less than .50-caliber that are issued to officers, agents, or employees of a law enforcement agency or a State agency.
• Category 11: Any firearm or firearm accessory that is designed to launch explosive projectiles.

Item No. 17.
• Category 12: “Flashbang” grenades and explosive breaching tools, “tear gas,” and “pepper balls,” excluding standard, service-issued handheld pepper spray.
• Category 13: Taser Shockwave, microwave weapons, water cannons, and the Long-Range Acoustic Device (LRAD).
• Category 14: The following projectile launch platforms and their associated munitions: 40 millimeter projectile launchers, “bean bag,” rubber bullet, and specialty impact munition (SIM) weapons.
• Category 15: Any other equipment as determined by a governing body or a state agency to require additional oversight.

AB 481 does not prohibit law enforcement from obtaining and using the above equipment; rather, it creates a public process for obtaining approval of these types of equipment and their authorized uses. The Porterville Police Department (PPD) possesses equipment in seven of the fifteen (15) categories listed. See Attachment 2 for full descriptions.

Current PPD Equipment Meeting Military Equipment Designation:

The Department continues to carefully assess what equipment is needed to protect the public and Officers when resolving critical incidents, such as active shooter response, apprehending violent offenders, hostage rescue, and barricaded subjects, among others. Certain equipment is also beneficial in providing information and creating cover, distance, and time that help to improve the decision-making process during critical incidents. This allows responding Officers to take in and evaluate the totality of the circumstances, which results in increased safety and reduced risk for everyone involved.

In general, most of the equipment listed in the report is highly specific in its use and is not carried day to day. Items below may be used a few times a year, and their deployment requires Departmental notifications. More information about the frequency of use for various types of equipment is provided in Attachment

2. Many of the items designated by AB 481 as military equipment have been in PPD’s equipment inventory for decades. The Department's operating procedures and training program instruct staff in the proper use of this equipment.

Current Policies and Procedures for Equipment Purchase and Use:

PPD adheres to the City’s budget process and its purchasing policies and procedures when procuring its equipment.

The use of equipment is governed by PPD Policy No. 300, Use of Force and Item No. 17.

De-escalation Policy, Policy No. 303, Control Devices and Techniques, and PPD Policy 704 Military Equipment. In addition, the State of California Commission on Peace Officer Standards and Training (POST) establishes operational guidelines and training recommendations for certain equipment and tactics, and compliance with these guidelines is managed by the department’s designated subject matter experts.

All PPD policies and procedures that govern safe-handling, storage, and qualifications related to specified equipment remain in effect. This includes, but is not limited to, California Occupational Safety and Health Agency (OSHA) certification of energetic breaching operators; Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) oversight of energetic breaching materials; and ATF oversight of Noise-Flash Diversionary Devices.

FISCAL IMPACT
The acquisition of new or replacement equipment or items meeting the reporting requirements of AB 481 is funded from the Department budget in accordance with the AB 481 Policy (Attachment 1) and the approval of the City Council. The AB 481 Military Equipment Annual Report (Attachment 2) has no direct fiscal impact.

AB 481 requires the law enforcement agency to prepare an annual military equipment report to include each use of military equipment, any complaints received, and any internal audits or other information about policy violations.

Further, AB 481 requires the report to be posted for public discussion and presented to the City Council for review, renewal, and approval annually.

RECOMMENDATION: That the the City Council, per the requirements of Assembly Bill 481:

1. Allow public comment and questions concerning the annual report and the funding, acquisition and use of the equipment;

2. Review and renew PPD Policy 704 – Military Equipment (Attachment 1);

3. Review the AB 481 Military Equipment Annual Report 2022 (Attachment 2); and

4. By opting not to modify or rescind, affirm Ordinance No. 1892.

ATTACHMENTS: 1. Porterville Police Department Policy 704

2. Porterville Police Department Annual Report on Controlled Equipment Use (2022)

3. Ordinance No. 1892

4. City Council Agenda Staff Report - May 17, 2022
Appropriated/Funded:

Review By:

Item No. 17.

Department Director:

Jake Castellow, Chief of Police
Final Approver: John Lollis, City Manager
Policy
704
Porterville Police Department
Porterville PD Policy Manual
Copyright Lexipol, LLC 2023/02/15, All Rights Reserved.

Published with permission by Porterville Police Department Military Equipment - 487
Military Equipment
704.1 PURPOSE AND SCOPE
The purpose of this policy is to provide guidelines for the approval, acquisition, and reporting requirements of military equipment (Government Code § 7070; Government Code § 7071; Government Code § 7072).
704.1.1 DEFINITIONS
Definitions related to this policy include (Government Code § 7070):

Governing body – The elected or appointed body that oversees the Department.

Military equipment – Includes but is not limited to the following:
• Unmanned, remotely piloted, powered aerial or ground vehicles. • Mine-resistant ambush-protected (MRAP) vehicles or armored personnel carriers. • High mobility multipurpose wheeled vehicles (HMMWV), two-and-one-half-ton trucks, five-ton trucks, or wheeled vehicles that have a breaching or entry apparatus attached. • Tracked armored vehicles that provide ballistic protection to their occupants. • Command and control vehicles that are either built or modified to facilitate the operational control and direction of public safety units. • Weaponized aircraft, vessels, or vehicles of any kind. • Battering rams, slugs, and breaching apparatuses that are explosive in nature. This does not include a handheld, one-person ram.
• Firearms and ammunition of_.50 caliber or greater, excluding standard-issue shotguns and standard-issue shotgun ammunition.
• Specialized firearms and ammunition of less than_.50 caliber, including firearms and accessories identified as assault weapons in Penal Code § 30510 and Penal Code § 30515, with the exception of standard-issue firearms.
• Any firearm or firearm accessory that is designed to launch explosive projectiles. • Noise-flash diversionary devices and explosive breaching tools. • Munitions containing tear gas or OC, excluding standard, service-issued handheld pepper spray.
• TASER® Shockwave, microwave weapons, water cannons, and long-range acoustic devices (LRADs).
• Kinetic energy weapons and munitions.
• Any other equipment as determined by a governing body or a state agency to require additional oversight.

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Porterville PD Policy Manual
Military Equipment
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704.2 POLICY
It is the policy of the Porterville Police Department that members of this department comply with the provisions of Government Code § 7071 with respect to military equipment. 704.3 MILITARY EQUIPMENT COORDINATOR
The Chief of Police should designate a member of this department to act as the military equipment coordinator. The responsibilities of the military equipment coordinator include but are not limited to:
(a) Acting as liaison to the governing body for matters related to the requirements of this policy.
(b) Identifying department equipment that qualifies as military equipment in the current possession of the Department, or the equipment the Department intends to acquire that requires approval by the governing body.
(c) Conducting an inventory of all military equipment at least annually. (d) Collaborating with any allied agency that may use military equipment within the jurisdiction of Porterville Police Department (Government Code § 7071). (e) Preparing for, scheduling, and coordinating the annual community engagement meeting to include:

1. Publicizing the details of the meeting.

2. Preparing for public questions regarding the department’s funding, acquisition, and use of equipment.
(f) Preparing the annual military equipment report for submission to the Chief of Police and ensuring that the report is made available on the department website (Government Code § 7072).
(g) Establishing the procedure for a person to register a complaint or concern, or how that person may submit a question about the use of a type of military equipment, and how the Department will respond in a timely manner.
704.4 MILITARY EQUIPMENT INVENTORY
The following constitutes a list of qualifying equipment for the Department: See attachment: AB481 Military Equipment (2023).pdf
704.5 APPROVAL
The Chief of Police or the authorized designee shall obtain approval from the governing body by way of an ordinance adopting the military equipment policy. As part of the approval process, the Chief of Police or the authorized designee shall ensure the proposed military equipment policy is submitted to the governing body and is available on the department website at least 30 days prior to any public hearing concerning the military equipment at issue (Government Code § 7071). The military equipment policy must be approved by the governing body prior to engaging in any of the following (Government Code § 7071):

Porterville Police Department
Porterville PD Policy Manual
Military Equipment
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Published with permission by Porterville Police Department Military Equipment - 489
(a) Requesting military equipment made available pursuant to 10 USC § 2576a. (b) Seeking funds for military equipment, including but not limited to applying for a grant, soliciting or accepting private, local, state, or federal funds, in-kind donations, or other donations or transfers.
(c) Acquiring military equipment either permanently or temporarily, including by borrowing or leasing.
(d) Collaborating with another law enforcement agency in the deployment or other use of military equipment within the jurisdiction of this department. (e) Using any new or existing military equipment for a purpose, in a manner, or by a person not previously approved by the governing body.
(f) Soliciting or responding to a proposal for, or entering into an agreement with, any other person or entity to seek funds for, apply to receive, acquire, use, or collaborate in the use of military equipment.
(g) Acquiring military equipment through any means not provided above. 704.6 COORDINATION WITH OTHER JURISDICTIONS
The Porterville Police Department works closely with local, county, state, and federal partners. In certain circumstances, and with the approval of the Chief of Police or designee, military equipment may be deployed from outside entities to promote the safety and security of community members.

If the Police Department acquires, borrows, or uses military equipment in approved circumstances, it will provide written notification of the acquisition or use to the City Council within 30 days following the commencement of such circumstance unless such information is confidential or privileged under local, state or federal law.
704.7 ANNUAL REPORT
Upon approval of a military equipment policy, the Chief of Police or the authorized designee should submit a military equipment report to the governing body for each type of military equipment approved within one year of approval, and annually thereafter for as long as the military equipment is available for use (Government Code § 7072).

The Chief of Police or the authorized designee should also make each annual military equipment report publicly available on the department website for as long as the military equipment is available for use. The report shall include all information required by Government Code § 7072 for the preceding calendar year for each type of military equipment in department inventory. 704.8 COMMUNITY ENGAGEMENT
Within 30 days of submitting and publicly releasing the annual report, the Department shall hold at least one well-publicized and conveniently located community engagement meeting, at which the Department should discuss the report and respond to public questions regarding the funding, acquisition, or use of military equipment.
1 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Table of Contents
Executive Summary......................................................................................................................... 2 Controlled Equipment Categories................................................................................................... 3 Robot......................................................................................................................................................... 4 Unmanned Aerial Vehicles........................................................................................................................ 5 Armored Personnel Carrier, Vehicle with Entry Apparatus Attached ................................................. 7 Command and Control Vehicles................................................................................................................ 8 Specialized Firearms ................................................................................................................................. 9 Noise Flash Diversionary Devices............................................................................................................ 10 Tear Gas .................................................................................................................................................. 11 Projectile Launch Platforms and Associated Munitions ......................................................................... 14 Training Costs.................................................................................................................................16 2 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Executive Summary
On September 30, 2021, California Governor Gavin Newsom approved Assembly Bill 481 requiring California law enforcement agencies to obtain approval of a Military Equipment Use Policy by their applicable governing body (City Council) prior to taking certain actions related to the funding, acquisition, or use of controlled equipment.

Assembly Bill 481 allows the governing body to approve the funding, acquisition, and use of controlled equipment (“Military Equipment”) within its jurisdiction if the equipment meets specified standards.

The Controlled Equipment Use Policy and an Annual Controlled Equipment Use Report is subject to annual review to affirm the criteria outlined in Assembly Bill 481 have been met.

The format of this report was crafted in a manner that conforms to the statutorily required annual report pursuant to California Government Code section 7072(a) to include the following information:

1.) A summary of the military equipment uses and the purpose;

2.) A summary of any complaints or concerns concerning the military equipment;

3.) The results of any internal audits, information on any violations, and actions taken in response;

4.) The total annual cost for each type of equipment;

5.) The quantity possessed of each type of equipment;

6.) The intent to acquire additional equipment and quantity sought. ***Unless otherwise noted the funds for the equipment, staff costs, training costs, or costs for the use of the equipment, is from the approved existing budget. Tuition cost for outside training courses, even if included in the existing budget, will be noted in the total annual outside training cost section.

The Porterville Police Department recognizes the public’s ongoing interest in how controlled equipment is used to protect our community and is committed to maintaining our community’s trust in providing professional and responsive police services. As such, the Porterville Police Department has authored the following comprehensive Annual Controlled Equipment Use Report to remain transparent with our community and in accordance with annual reporting requirements set forth by applicable California Law.
3 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Controlled Equipment Categories
Assembly Bill 481 created Government Code 7070 which designated 15 categories of items deemed "military" or more accurately defined as controlled equipment:

Category 1: Unmanned, remotely piloted, powered aerial or ground vehicles Category 2: Mine-resistant ambush-protected vehicles or armored personnel carriers Category 3: High mobility multipurpose wheeled vehicles (HMMWV), two-and- one-half-ton trucks, five-ton trucks, or wheeled vehicles that have a breaching or entry apparatus attached
Category 4: Tracked armored vehicles that provide ballistic protection to their occupants Category 5: Command and control vehicles that are either built or modified to facilitate the operational control and direction of public safety units Category 6: Weaponized aircraft, vessels, or vehicles of any kind Category 7: Battering rams, slugs, and breaching apparatuses that are explosive in nature Category 8: Firearms and ammunition of .50 caliber or greater, excluding standard-issue shotguns and standard-issue shotgun ammunition
Category 9: Ammunition of .50 or greater.

Category 10: Specialized firearms and ammunition of less than .50 caliber, including firearms and accessories identified as assault weapons in Penal Code § 30510 and Penal Code §30515, with the exception of standard-issue handguns Category 11: Any firearm or firearm accessory that is designed to launch explosive projectiles Category 12: Flashbang grenades and explosive breaching tools, “tear gas”, “pepperballs”, munitions containing tear gas or OC, excluding standard, service- issued handheld pepper spray
Category 13: TASER® Shockwave, microwave weapons, water cannons, and long-range acoustic devices
Category 14: Launch platforms and their associated munitions: 40mm projective launchers “beanbag”, rubber bullet, and specialty impact munition (SIM) weapons Category 15: Any other equipment as determined by a governing body or a state agency to require additional oversight
4 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Robot (Category 1)
a. Description, quantity, capabilities, and purchase cost:

Robotex Avatar transportable robot
Quantity: 1.

The Robotex Avatar is a remote-controlled robot, which operates on the ground, and is utilized to enhance safety to law enforcement personnel and the community. The Avatar enhances the capabilities of SWAT and tactical response teams by allowing them to quickly and safely inspect dangerous situations, there is no longer a need to send personnel in before you’ve had a chance to assess the situation. This equipment is for use during high-risk incidents. Incidents that may qualify for its use include, but are not limited to, a high-risk warrant service, barricaded subject, and hostage negotiation/rescue. Before entering a structure, particularly in a tactically compromised and dangerous situation, knowledge of a subject’s location is very important, and the robot can provide that without placing anyone at risk. Cameras can also help determine if a subject is armed and also if there are other subjects inside that need assistance. b. Purpose:

To be used to remotely gain visual information, deliver CRT phone, and clear buildings, or for any other approved law enforcement purpose.
c. Authorized Use:

Only personnel who have completed the required department training shall be permitted to operate the robot. Use is established by the Incident Commander or SWAT Commander. All other applicable PPD policies remain in effect, to include, but not limited to, PPD Policy 312 – Search and Seizure, PPD Policy 404 – Special Weapons and Tactics, and PPD Policy 407 – Hostage and Barricade Incidents. d. Expected Lifespan:
8-10 years
Use Reporting 2022
The robot was used during one SWAT deployment.

Summary of Complaints or Concerns 2022:

No complaints or concerns received.

Internal audits / Violations 2022:

The robot was checked monthly. No violations.

Total annual Cost 2022:

None.

Intended Acquisition in 2023:

None.
5 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Unmanned Aerial Vehicles (Category 1)
a. Description, quantity, capabilities, and purchase cost:

Unmanned Aerial Systems (UAS) are battery powered, remote operated unmanned aerial devices and the equipment used to control it. Remote controls allow operators to control the UAS and view live feed from UAS-mounted cameras. The UASs have proven to be useful to public safety agencies in firefighting, search and rescue, pre-operational surveillance, and other tactical situations where aerial views enhance the safety and efficiency of law enforcement and fire personnel.

1. DJI MAVIC 2 Enterprise Dual
Quantity: 2.

UAS is able to record color video as well as with thermal imaging and has approximately 30 minutes of flight time.

2. DJI MAVIC 2 Enterprise Zoom
Quantity: 2
UAS that has a color and better zoom capable camera. It is able to record video with approximately 40 minutes of flight time.

3. DJI Mini 2 Fly More
Quantity: 1
UAS with smaller footprint and better capabilities of indoor reconnaissance during tactical deployments. Able to record video and audio with approximately 30 minutes of flight time.

4. DJI M30T
Quantity: 1
UAS that weights approximately 8.3 pounds, features a 640 x 512 px radiometric thermal camera with a 1280 x 1024 infrared super-resolution mode, along with 48 megapixel 1/2" CMOS zoom camera with 5x to 16x optical and 200x digital zoom, a 12 megapixel wide-angle camera, 8k photo 4K/30 fps video resolution, and a laser rangefinder which can give the precise coordinates of objects up to 1,200 meters away, flight time approximately 40 min. and can operate in harsh weather conditions such as rain and snow.
b. Purpose:

To be deployed when its view would assist officers or incident commanders with the following situations, which include but are not limited to:

1. Major collision investigations and crime scenes.

2. Search for missing persons and rescue events.

3. Natural disaster management.

4. Anytime a UAS would enhance public safety, improve operational safety, incident stabilization or incident mitigation.

5. SWAT, tactical or other public safety, fire services and life preservation missions.
c. Authorized Use:

Only assigned personnel who have completed the required department training shall be permitted to operate any UAS during approved missions. All other applicable PPD policies remain in effect, to include, but not limited to, PPD Policy 312 – Search and Seizure, PPD Policy 604 – Unmanned Aerial System (UAS) Operations.
d. Expected Lifespan:
3-5 years
6 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Use Reporting 2022
Collectively the drones were used 117 times, with a total of 80 hours of flight time. Of the 117 times, several of the uses occurred during the same incidents with different drone types or with the same drone after batteries were changed out. The drones were used to search for suspects, barricaded suspects, missing persons, during arson investigations and high-risk search warrants.

In May 2022, the UAV unit participated in the Leadership Porterville and Transition and Use Tax Oversight Committee events, where pilots conducted performance tests and flight demonstrations to display the abilities of the UAVs. The drone operators additionally participated in monthly training to maintain proficiency which is tracked but not part of the 117 instances of use.

Summary of Complaints or Concerns 2022:

No complaints or concerns received.

Internal audits / Violations 2022:

Drones were audited monthly. No violations.

Total annual Cost 2022:
• $18,705.78 DJI M30T (Approved by Council – April 2023). • $1,760 - Maintenance, software, registration, repair, battery replacement, and training. 7 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Armored Personnel Carrier, vehicle with entry apparatus attached (Category 2 & 3)
a. Description, quantity, capabilities, and purchase cost:

Lenco Armored Rescue Vehicle (ARV)
Quantity: 1
The ARV is based on a Ford F-550 Super Duty commercial truck chassis and Ford Triton engine. The vehicle has armored steel bodywork and ballistic glass. The ARV is designed to provide ballistic protection during tactical events and is designed to withstand multiple high-powered bullet strikes from small arms fire as well as low level explosions. The ARV is equipped with emergency lights/siren, spotlights, a hydraulic breaching apparatus and a public address system. b. Purpose:

The rescue vehicle would potentially be used in situations to facilitate rescue operations, conduct evacuations, provide emergency medical aid in dangerous environments, during rapidly evolving critical incidents having a potential of injury or death, and for high-risk preplanned events. The vehicle’s ballistic protection would also provide an environment and opportunity for our officers to de-escalate incidents with potentially armed suspects, or for other approved law enforcement purposes.
c. Authorized Use:

The use of armored vehicles shall only be authorized by a watch commander, incident commander or SWAT commander, based on the specific circumstances of a given critical incident. Armored vehicles shall be used only by officers trained in their deployment and in a manner consistent with department policy and training. All other applicable CPD policies remain in effect, to include, but not limited to, PPD Policy 703 – Vehicle Use. d. Expected Lifespan:
25 years
Use Reporting 2022
The city received our ARV in September of 2020. It was utilized at every SWAT deployment, which was 15 times throughout the year. The ARV was at the National Night Out and several community events for PR purposes. The vehicle has also been used during SWAT trainings.

Summary of Complaints or Concerns 2022:

No complaints or concerns received.

Internal audits / Violations 2022:

No violations
Total annual Cost 2022:
• $1,540 is the estimated annual maintenance.
8 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Command and Control Vehicles (Category 5)
a. Description, quantity, and capabilities:

Elite II 24’ enclosed trailer
Quantity: 1
Aside from use as a command post for DUI Checkpoints, the mobile command center can also be utilized for other critical incidents, preplanned large events, searching for missing persons, natural disasters, and community events. b. Purpose:

To be utilized for DUI checkpoints, critical incident callouts, as a temporary Emergency Operations Center, or as a backup dispatch center, or for other approved law enforcement purposes.

Authorized Use:

The mobile command post can be used by staff who have been properly trained in the safe handling of the vehicle. All other applicable PPD policies remain in effect, to include, but not limited to, PPD Policy 703 – Vehicle Use.
c. Expected Lifespan:
20 Years on chassis. Upgrades may be needed in 5-7 years to maintain IT systems.

Use Reporting 2022
The vehicle was used as an incident command center for all DUI checkpoints during 2022. The vehicle has been used during training exercises for SWAT, CRT, and the drone team.

Summary of Complaints or Concerns 2022:

No complaints or concerns received.

Internal audits / Violations 2022:

No violations
Total annual Cost 2022:

Annual maintenance cost of $1,581.00
9 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Specialized Firearms and Ammunition (Category 10)
a. Description, quantity, capabilities, and purchase cost

1. The AR-15 is a lightweight, magazine fed, gas operated semi-automatic rifle capable of accurately stopping an armed subject at various distances to include those that exceed the capabilities of a service pistol. The .223 / 5.56 cartridge is used as a lethal option designed to stop a violent encounter. The projectile is capable of penetrating soft body armor being worn by armed subjects. Colt AR-15/M4 (Barrel lengths varying from 10.3 to 16 inches
Quantity: 66
b. Purpose:

To be used as precision weapons to address a threat with more precision and/or greater distances than a handgun, if present and feasible.
c. Authorized Use:

Only members that are POST certified are authorized to use a rifle. All other applicable PPD policies remain in effect, to include, but not limited to, PPD Policy 300 – Use of Force, PPD Policy 306 – Firearms.
d. Expected Lifespan:
15 years
Use Reporting 2022
The rifles were used during monthly range qualifications and during SWAT training. The carbines were deployed on patrol and SWAT operations per policy but were not discharged.

Summary of Complaints or Concerns 2022:

No complaints or concerns received.

Internal audits / Violations 2022:

No violations
Total annual Cost 2022:

No maintenance cost.

Intended Acquisition in 2023:

The Porterville Police Department will be working to implement an overwatch (“Sniper”) element of the SWAT team. They would deploy with bolt action precision rifles, which would enable the stopping of an armed subject at a safe distance. The Sniper Rifle would need to be serviced or replaced when the Rifle fails or breaks. Only snipers who have completed a certified Sniper course are authorized to use a sniper rifle.
10 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Noise Flash Diversionary Devices (Category 12)
a. Description, quantity, capabilities, and purchase cost:

Noise Flash Diversionary Devices (NFDD) is a non-fragmenting device that creates a bright flash and loud sound to temporarily divert the attention of subjects in the immediate area. NFDDs are used to distract and temporarily incapacitate dangerous suspects by overwhelming their senses of vision and hearing. The distraction allows officers to seize a moment of opportunity to take control of high-risk situations.

Quantity: 17
b. Purpose:

To produce atmospheric over-pressure and brilliant white light and, as a result, can cause short-term (6 - 8 seconds) physiological/psychological sensory deprivation to give officers a tactical advantage.
c. Authorized Use:

Diversionary Devices shall only be used by SWAT officers who have completed a POST approved 80-hour SWAT school and who been trained in their proper use in the following circumstances:

1. In hostage and barricaded subject situations.

2. In high- risk warrant (search/arrest) services where there may be extreme hazards to officers.

3. During other high-risk situations where their use would enhance officer safety or during training.

All other applicable PPD policies remain in effect, to include, but not limited to, PPD Policy 300 – Use of Force, PPD Policy 404 – Special Weapons and Tactics d. Expected Lifespan:
5 years
Use Reporting 2022
NFDDs were deployed seven times during SWAT operations. Nine (9) NFDDs were deployed during training and/or instructor school.

Summary of Complaints or Concerns 2022:

No complaints or concerns received.

Internal audits / Violations 2022:

No violations.

Total annual Cost 2022:

No annual cost other than purchase of replacement devices after deployments.

Intended Acquisition in 2023:

Replacement of expended NFDDs.
11 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Tear Gas (Category 12)
a. Description, quantity, capabilities, and purchase cost:

Chemical agent munitions, which are commonly referred to as “tear gas,” are used by the Porterville Police Department as a non-lethal tool on barricaded suspects. The Porterville Police Department uses chemical agents which are used by law enforcement across the United States: CS (2-Chlorobenzylidenemalononitrile) and OC (Oleoresin Capsicum) CS is an irritating agent and lachrymator (irritates the eyes and causes tears to flow). CS has been medically tested in the UK and US, specifically by the U.S. Army. There are no known allergic reactions to CS. OC was de-regulated in California in 1996, is endorsed by the FBI, and is available to civilians to legally possess (2.5oz or less). OC is an inflammatory agent which causes involuntary closure of eyes and respiratory inflammation.

1. The CM Spede-Heat CS Grenade is a high volume, continuous burn [device;] it expels its payload in approximately 20-40 seconds. The payload is discharged through four gas ports on top of the canister, three on the side and one on the bottom. This launchable grenade is 6.12 in. by 2.62 in. and holds approximately 2.9 oz. of active agent.

Quantity: 10

2. The design of the Tri-Chamber Flameless CS Grenade allows the contents to burn within an internal can and disperse the agent safely with reduced risk of fire. The grenade is designed primarily for indoor tactical situations to detect and/or dislodge a barricaded subject. This grenade will deliver approximately .70 oz. of agent during its 20-25 seconds burn time. The Tri-Chamber Flameless Grenade can be used in crowd control as well as tactical deployment situations by Law Enforcement and Corrections, but was designed with the barricade situation in mind. Its applications in tactical situations are primarily to detect and/or dislodge barricaded subjects. The purpose of the Tri-Chamber Flameless Grenade is to minimize the risks to all parties through pain compliance, temporary discomfort, and/or incapacitation of potentially violent or dangerous subjects. The Tri-Chamber Flameless Grenade provides the option of delivering a pyrotechnic chemical device indoors, maximizing the chemicals’ effectiveness via heat and vaporization, while minimizing or negating the chance of fire to the structure.

Quantity: 9

3. The Triple-Chaser® CS consists of three separate canisters pressed together with separating charges between each. When deployed, the canisters separate and land approximately 20 feet apart allowing increased area coverage in a short period of time. This grenade can be hand thrown or launched from a fired delivery system.

The grenade is 6.5 in. by 2.7 in. and holds an approximately 3.2 oz. of active agent payload. It has an approximate burn time of 20-30 seconds.

Quantity: 9

4. The Ferret® 37 mm OC Round is a frangible projectile filled with chemical agent.

Upon impacting the barrier, the nose cone ruptures and instantaneously delivers the .16 oz. agent payload inside a structure. These munitions are 4.8 in. by 1.5 in. and travels at 650fps within an effective range of 50 yards.

Quantity: 14
12 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022

5. The Ferret® 37 mm CS Round is a frangible projectile filled with chemical agent.

Upon impacting the barrier, the nose cone ruptures and instantaneously delivers the .16 oz. agent payload inside a structure. These munitions are 4.8 in. by 1.5 in. and travels at 650fps within an effective range of 50 yards.

Quantity: 4

6. The Ferret® 40 mm Barricade Penetrating Round is filled with a CS powder chemical agent. It is a frangible projectile that is spin stabilized utilizing barrel rifling. It is non-burning and designed to penetrate barriers. Primarily used to dislodge barricaded subjects, it can also be used for area denial. Primarily used by tactical teams, it is designed to penetrate barriers, such as windows, hollow core doors, wallboard and thin plywood. Upon impact the nose ruptures and instantaneously delivers the agent payload inside a structure or vehicle.

Quantity: 4

7. The CTS White Smoke 5210 Canister is a pyrotechnic smoke grenade used for concealment or as a signaling device.

Quantity: 2

8. The CTS White Smoke 8210 Canister is a small diameter pyrotechnic irritant smoke grenade for outdoor use to disperse crowds. Emits smoke for up to 30 seconds and is small enough to carry in a pocket. Can be hand thrown or launched.

Quantity: 2
b. Purpose:

To limit the escalation of conflict where employment of lethal force is prohibited or undesirable. Situations for use of the less lethal weapon systems may include, but are not limited to:

1.Self-destructive, dangerous and/or combative individuals.

2. Circumstances where a tactical advantage can be obtained.

3. Potentially vicious animals.

4. Training exercises or approved demonstrations.
c. Authorized Use:

Only officers who have received POST certification in the use of chemical agents are authorized to use or supervise the use of chemical agents. All other applicable PPD policies remain in effect, to include, but not limited to, PPD Policy 300 – Use of Force, PPD Police 303 – Control Devices and Techniques, PPD Policy 404 – Special Weapons and Tactics, PPD Policy 407 – Hostage and Barricade Incidents.
d. Expected Lifespan:
5 years
Use Reporting 2022
There was a total of two (2) deployments of chemical agent munitions during SWAT operations.

Summary of Complaints or Concerns 2022:

No complaints or concerns received.
13 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Internal audits / Violations 2022:

No violations
Total annual Cost 2022:

None.

Intended Acquisition in 2023:

Replacement of expended munitions as necessary.
14 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Projectile Launch platforms and associated munitions (Category 14) a. Description, quantity, capabilities, and purchase cost:

The 37mm/40mm less-Lethal launcher is a single shot launcher, which allows the officer to assess after every spent munition. The Less-Lethal launcher does not have an expiration and will need to be serviced or replaced when the launcher fails or breaks.

1. Penn Arms 37mm Multi Launcher is a tactical single-shot launcher that features a fixed butt stock and iron sites. It will fire a standard 37mm less lethal munition.

Quantity: 1

2. Tru Flite 37mm super long range gas gun single shot launcher features a hardwood stock with rubber shoulder pad and rear sites.

Quantity: 1

3. LMT Defense 40LMTS Single-Barrel 40mm Launcher is a tactical 40mm single shot launcher that’s features a folding stock and adjustable Integrated Front Grip (IFG) with a light rail. It will fire standard 40mm munitions.

Quantity: 1

4. Remington 870 Less Lethal Shotgun is used to deploy less lethal 12-gauge bean bag rounds up to a distance of 75 feet. The range of the weapon system helps to maintain space between officers and a suspect reducing the immediacy of the threat which is a principle of de-escalation.

Quantity: 2
b. Purpose:

To limit the escalation of conflict where employment of lethal force is prohibited or undesirable.
c. Authorized Use:

By officers who have completed department training. Situations for use of the less lethal weapon systems may include, but are not limited to:

1. Self-destructive, dangerous and/or combative individuals.

2. Riot/crowd control and civil unrest incidents.

3. Circumstances where a tactical advantage can be obtained.

4. Potentially vicious animals.

5. Training exercises or approved demonstrations.

All other applicable PPD policies remain in effect, to include, but not limited to, PPD Policy 300 – Use of Force.
d. Expected Lifespan:
25 years
Use Reporting 2022
The 40 mm launchers were used only during training. The 40 mm launchers were deployed on patrol and SWAT operations per policy but were not discharged.

Summary of Complaints or Concerns 2022:

No complaints or concerns received.

Internal audits / Violations 2022:

No violations
15 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Total annual Cost 2022:

None
Intended Acquisition in 2023:

Replacement of expended training ammunition and upcoming training. 16 PORTERVILLE POLICE DEPARTMENT ANNUAL REPORT ON CONTROLLED EQUIPMENT USE - 2022 Training Costs
The personnel cost of training is absorbed into the Department’s operating budget. The cost for staff to attend externally hosted training for 2022 was approximately $25,923.20. $2,881.19 – Tactical Rifle Instructor Course (3 Rangemasters) $8,254.92 – 80-hour Basic SWAT Course (2 SWAT Team members) $5,273.32 – 40-hour Tactical Team Leader Course/Updates (5 SWAT Team members) $1,811.35 – 40-hour SWAT Commander Course (1 SWAT Team member $801.72 – Diversionary Device Instructor Course (1 Instructor) $4,088.56 – FAA Part 107 – Drone Basic Pilot Course (3 Drone pilots) $2,812.14 – Drone Nighttime Operators Course (2 Drone pilots)

Item No. 18.

CITY COUNCIL AGENDA – MAY 2, 2023
SUBJECT: Consider Resolutions of Opposition to Assembly Bill 1090 (Jones-Sawyer) and State Senate Bill 94 (Cortese)
SOURCE: City Manager's Office
COMMENT:

During Other Matters at its meeting on April 18, 2023, the City Council approved Council Member Meister's request to consider draft Resolutions of Opposition to Assembly Bill 1090 (Jones-Sawyer) and Senate Bill 94 (Cortese) as a Scheduled Matter at its meeting on May 2, 2023.

Assembly Bill 1090 (Jones-Sawyer)
Assembly Bill 1090 (AB 1090) is an act that would authorize a county board of supervisors to remove a sheriff from office for cause, as defined, by a 4/5 vote, after the sheriff is served with a written statement of the alleged grounds for removal and the sheriff is provided a reasonable opportunity to be heard regarding an explanation or defense at a removal proceeding. The bill would require provisions not be applied in a manner that interferes with the constitutional functions of a sheriff.

Existing State law provides for the removal of public officers for willful or corrupt misconduct in office. Existing State law further provides that an accusation in writing against any officer of a district, county, or city for willful or corrupt misconduct in office may be presented by the grand jury of the county for, or in, which the officer accused is elected or appointed. Existing State law requires that the court pronounce judgment that the officer be removed from office upon a conviction and at the time appointed by the court.

Senate Bill 94 (Cortese)
Senate Bill 94 (SB 94) is an act that would authorize an individual sententenced to death or life imprisonment without the possibility of parole for a conviction in which one or more special circumstances were found to be true to petition for recall and resentencing if the offense occurred before June 5,1990, and the individual has served at least twenty (20) years in custody. The bill would authorize the court to modify the petitioner's sentence to impose a lesser sentence and apply any changes in law that reduces sentences or provide for judicial discretion, or to vacate the petitioner's conviction and impose judgment on a lesser included offense, as specified. The bill would require a court to consider and afford great weight to evidence offered by the petitioner to prove that specified mitigating circumstances are present. The bill would provide that proof of the presence of one or more specified mitigating circumstances weights greatly in favor of dismissing a special circumstance, unless the court finds that Item No. 18.
petitioner is currently an unreasonable risk of danger to public safety, as defined.

Existing State law provides for various specified special circumstances, including murder committed for financial gain or committed during the commission or attempted commission of certain felonies, which, if found true as specified, require a defendant found guilty of murder in the first degree to be sentenced to death or imprisonment for life without the possibility of parole.

Existing State law, added by Proposition 115 of the June 5, 1990, statewide primary election, prohibits a judge from striking or dismissing any special circumstance that is admitted by plea or found true by a jury or court, as specified. Existing State law generally authorizes a court to dismiss an action or to strike or dismiss an enhancement in the furtherance of justice, except is dismissal of that enhancement is prohibited by any initiative statute.

RECOMMENDATION: That the City Council consider Resolutions of Opposition to Assembly Bill 1090 (Jones-Sawyer) and Senate Bill 94 (Cortese).

ATTACHMENTS: 1. Draft Resolution of Opposition - Assembly Bill 1090

2. Assembly Bill No. 1090 (Jones-Sawyer)

3. Assembly Bill No. 1090 Analysis

4. Draft Resolution of Opposition - Senate Bill 94

5. Senate Bill No. 94 (Cortese)

6. Senate Bill No. 94 Analysis
Appropriated/Funded:

Review By:

Department Director:

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

RESOLUTION NO.____-2023

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PORTERVILLE, IN OPPOSITION TO ASSEMBLY BILL 1090

WHEREAS, existing State law requires the Legislature to provide for an elected county sheriff and provides for the duties of the sheriff; and WHEREAS, existing State law requires the county board of supervisors to supervise all county officers, except as provided; and
WHEREAS, existing State law provides for the removal of public officers for willful or corrupt misconduct in office. Existing law provides that an accusation in writing against any officer of a district, county, or city for willful or corrupt misconduct in office may be presented by the grand jury of the county for, or in, which the officer accused is elected or appointed.

Existing law requires that the court pronounce judgement that the officer be removed from office upon a conviction and at the time appointed by the court.

WHEREAS, Assembly Bill 1090 (AB 1090) would authorize the board of supervisors to remove a sheriff from office for cause, as defined as: (1) violation of a law related to the performance of a sheriff’s duties; (2) flagrant or repeated neglect of a sheriff’s duties; (3) misappropriation of public funds or properties committed by a sheriff or their direct reports in the course and scope of their duties; (4) willful falsification of a relevant official statement or document committed by a sheriff in the course and scope of their duties; and (5) obstruction of an investigation into the conduct of a sheriff or a sheriff’s department by a governmental agency, office, or commission with jurisdiction to conduct an investigation. And WHEREAS, AB 1090 would authorize the board of supervisors to remove a sheriff from office for cause by a 4/5 vote, after the sheriff is served with a written statement of the alleged grounds for removal and the sheriff is provided a reasonable opportunity to be heard regarding an explanation or defense at a removal proceeding. AB 1090 would authorize the board of supervisors to establish procedures for a removal proceeding. AB 1090 require that these provisions not be applied in a manner that interferes with the constitutional functions of a sheriff.

Resolution No. ___-2023

NOW, THEREFORE, it is hereby DECLARED and ORDERED, that the City Council of the City of Porterville does hereby oppose Assembly Bill 1090.

This Resolution shall take effect from and after the date of its passage and adoption by this Council.

PASSED, APPROVED, AND ADOPTED this 2nd day of May, 2023.

Martha A. Flores, Mayor
ATTEST:

John D. Lollis, City Clerk
By:

Patrice Hildreth, Chief Deputy City Clerk
AMENDED IN ASSEMBLY APRIL 13, 2023
AMENDED IN ASSEMBLY APRIL 4, 2023
california legislature—2023–24 regular session
ASSEMBLY BILL No. 1090
Introduced by Assembly Member Jones-Sawyer
February 15, 2023
An act to add Section 25303.8 to the Government Code, relating to county officers.
legislative counsel’s digest
AB 1090, as amended, Jones-Sawyer. County officers: sheriffs.

Existing law requires the Legislature to provide for an elected county sheriff and provides for the duties of the sheriff. Existing law requires the board of supervisors to supervise all county officers, except as provided.

Existing law provides for the removal of public officers for willful or corrupt misconduct in office. Existing law provides that an accusation in writing against any officer of a district, county, or city for willful or corrupt misconduct in office may be presented by the grand jury of the county for, or in, which the officer accused is elected or appointed.

Existing law requires that the court pronounce judgment that the officer be removed from office upon a conviction and at the time appointed by the court.

This bill would authorize the board of supervisors to remove a sheriff from office for cause, as defined, by a 4⁄5 vote, after the sheriff is served with a written statement of the alleged grounds for removal and the sheriff is provided a reasonable opportunity to be heard regarding an explanation or defense at a removal proceeding. The bill would authorize

97 the board of supervisors to establish procedures for a removal proceeding. The bill would require that these provisions not be applied in a manner that interferes with the constitutional functions of a sheriff.

Vote: majority. Appropriation: no. Fiscal committee: no.

State-mandated local program: no.

The people of the State of California do enact as follows:
line 1 SECTION 1. Section 25303.8 is added to the Government line 2 Code, to read:
line 3 25303.8. (a)  For purposes of this section, “for cause” means line 4 all of the following:
line 5 (1)  Violation of a law related to the performance of a sheriff’s line 6 duties.
line 7 (2)  Flagrant or repeated neglect of a sheriff’s duties. line 8 (3)  Misappropriation of public funds or properties committed line 9 by a sheriff or their direct reports in the course and scope of their line 10 duties.
line 11 (4)  Willful falsification of a relevant official statement or line 12 document committed by a sheriff in the course and scope of their line 13 duties.
line 14 (5)  Obstruction of an investigation into the conduct of a sheriff line 15 or a sheriff’s department by a governmental agency, office, or line 16 commission with jurisdiction to conduct an investigation. line 17 (a)
line 18 (b)   The board of supervisors may remove a sheriff from office line 19 for cause, by a four-fifths vote, after both of the following have line 20 occurred:
line 21 (1)  The sheriff is served with a written statement of the alleged line 22 grounds for removal.
line 23 (2)  The sheriff is provided a reasonable opportunity to be heard line 24 regarding an explanation or defense at a removal proceeding. line 25 (b)
line 26 (c)  The board of supervisors may establish procedures for a line 27 removal proceeding held pursuant to this section. line 28 (c)
line 29 (d)  This section shall not be applied in a manner that interferes line 30 with the constitutional functions of a sheriff.

O
97 AB 1090 — 2 —
AB 1090

Date of Hearing: April 11, 2023
Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB 1090 (Jones-Sawyer) – As Amended April 4, 2023
As Proposed to Be Amended In Committee
SUMMARY: Authorizes the board of supervisors of a county to remove a sheriff from office for cause. Specifically, this bill:
1) Provides that the board of supervisors may remove a sheriff from office for cause, by a fourfifths vote, after both of the following have occurred:
a) The sheriff is served with a written statement of the alleged grounds for removal; and, b) The sheriff is provided a reasonable opportunity to be heard regarding an explanation or defense at a removal proceeding.
2) Defines “cause” as:
a) Violation of any law related to the performance of a sheriff’s duties; b) Flagrant or repeated neglect of a sheriff’s duties;
c) Misappropriation of public funds or properties committed by a sheriff or their direct reports in the course and scope of their duties;
d) Willful falsification of a relevant official statement or document committed by a sheriff in the course and scope of their duties; or,
e) Obstruction of an investigation into the sheriff or a sheriff’s department. 3) States that the board of supervisors may establish procedures for a removal proceeding held pursuant to these provisions.
4) Provides that these provisions shall not be applied in a manner that interferes with the constitutional functions of a sheriff.

EXISTING LAW:
1) Requires the Legislature to provide for county powers, elected sheriffs, district attorneys, assessors, and the governing bodies in each county. (Cal. Const., art. XI, § 1, subd. (b).) 2) Provides that the Legislature may provide for the recall of local officers, including sheriffs. (Cal. Const., art II, § 19.)
AB 1090

3) Requires charters of charter counties to provide for the appointment, compensation, terms and removal of elected sheriffs. (Cal. Const., art. IX, § 4.) 4) Provides that a sheriff is an officer of a county. (Gov. Code, § 24000.) 5) States that the county officers to be elected by the people include the sheriff, among others. (Gov. Code, § 24009, subd. (a).)
6) Provides that elected county officers shall hold their office until their successors are elected or appointed and qualified. (Gov. Code, § 24201.)
7) Sets forth the duties of sheriffs. (Gov. Code, §§ 26600 et seq; Pen. Code, §§ 4000 et seq.) 8) Requires each county to have a board of supervisors consisting of five members. (Gov. Code, § 25000.)
9) Requires each county board of supervisors to publish notices of proceedings to the public and requires that all meetings of a legislative body, including county board of supervisors, be open and public, pursuant to the Ralph M. Brown Act, as specified. (Gov. Code, §§ 25150, 25151, & 54950 et seq.)
10) Authorizes county boards of supervisors to do and perform all acts and things required by law to the full discharge of the duties of the legislative authority of the county government. (Gov. Code, § 25207.)
11) Provides that the board of supervisors shall supervise the official conduct of all county officers, particularly insofar as the functions and duties of such county officers relate to the assessing, collecting, safekeeping, management, or disbursement of public funds. It shall see that they faithfully perform their duties. (Gov. Code, § 25303.) 12) States that the board of supervisors shall not obstruct the investigative function of the sheriff. (Gov. Code, § 25303.)
13) Allows counties to create a sheriff oversight board, comprised of civilians to assist the board of supervisors with its duties that relate to the sheriff. (Gov. Code, § 25303.7.) 14) Allows counties to establish an office of the inspector general, appointed by the boards of supervisors, to assist the board of supervisors with its duties that relate to the sheriff. (Gov.

Code, § 25303.7.)
15) Allows an accusation to be brought by a grand jury for the removal of any officer of a county, including a sheriff, for willful or corrupt misconduct in office. The trial shall be by a jury, and conducted in all respects in the same manner as the trial of an indictment. Upon a conviction the officer shall be defendant be removed from office. (Gov. Code, §§ 3060, et seq.)
FISCAL EFFECT: Unknown
AB 1090

COMMENTS:
1) Author's Statement: According to the author, “No government official should have unchecked power. Regardless of the office or role, public officials take an oath to support and respect the rights of their constituents and represent the common good. But when a Sheriff abuses their power, our tools for meaningful accountability are tragically far and few.

As such, AB 1090 ensures government accountability by authorizing a county board of supervisors to remove a sheriff from office for cause.” 2) Removal Must Be For Cause: This bill would provide that a board of supervisors may remove a sheriff from office for cause, by a four-fifths vote. Consequently, this bill would not allow a county board of supervisors to vote to remove a sheriff at their will, for any reason whatsoever.

This bill would define “for cause” as a violation of any law related to the performance of a sheriff’s duties, flagrant or repeated neglect of duties, misappropriation of public funds, willful falsification of a official statement or document, or, obstruction of a investigation into the conduct of a sheriff. This bill would further provide that authority to remove cannot be applied to interfere with the constitutionally designated function of a sheriff. Therefore, a sheriff could not be removed for performing law enforcement functions. In addition, Government Code section 25303 expressly bars the local governing body from obstructing the sheriff’s investigative functions.
3) Due Process Afforded to Sheriffs: The due process right, established by the Fourteenth Amendment, guarantees that the government cannot take a person’s basic rights to “life, liberty, or property, without due process of law.” The right is designed to protect citizens from actions taken by state government, counties, towns, and cities. At a minimum, due process means that a citizen who will be affected by a government decision must be given advance notice and an opportunity to be heard. (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.)
The provisions of this bill affords sheriff’s such procedures prior to their removal.

Specifically, a sheriff cannot be removed unless (1) the removal is for cause only; (2) there is a supermajority (four-fifths) vote by the county board of supervisors to remove the sheriff; (3) the sheriff is served with a written statement of the alleged grounds for removal; (4) the sheriff is provided a reasonable opportunity to be heard and present an explanation or defense at a removal proceeding; and, (5) the county supervisors may establish additional procedures for a the removal proceedings. In addition, under existing law, the public must be given notice, all meetings and meetings of the board of supervisors must generally be held in public and pursuant to the Ralph M. Brown Act. (Gov. Code, §§ 25150, 25151, & 54950 et seq.) Thus, it is likely that this bill comports with the requirements of due process in that sheriffs may only be removed from office after the board has provided reasonable notice, to both the officer and the general public, and only after the sheriff has had an opportunity to be heard.

AB 1090

4) Similar Local Measures: Relying on their powers as charter counties1, Los Angeles and San Bernardino Counties have adopted local measures that would authorize them to remove an elected sheriff for cause. This bill would provide the statutory authority for all counties to remove their sheriff for cause. This bill would further set minimum guidelines across all county boards of supervisors for the sheriff’s removal. a) Los Angeles County - Measure A “Charter Amendment – Providing Authority to Remove an Elected Sheriff for Cause” (November 8, 2022): In the November 2022 Elections, Los Angeles County Measure A was on the ballot and was approved by

71.84% of the vote. (Los Angeles County Registrar-Recorder/County Clerk, LA County Election Results <https://results.lavote.gov/#year=2022&election=4300> [as of April 3, 2023].) Measure A amended the Los Angeles County Charter to authorize the Los Angeles County Board of Supervisors to remove the sheriff from office for cause, by a four-fifths vote. (Ibid.)
This bill is substantially similar to Measure A.
b) San Bernardino County - Ordinance No. 3875 (2002): In 2002, the San Bernardino County Board of Supervisors adopted Ordinance No. 3875, (involving the removal of county officers, including the sheriff. (San Bernardino County Code § 13.0404.) The ordinance provides, in part, that removal for cause may be accomplished by a four-fifths vote of the board: “Any County officer other than supervisor may be removed from office in the manner provided by law; also any such officer may be removed by a four-fifths vote of the Board of Supervisors, for cause, after first serving upon such officer a written statement of alleged grounds for such removal, and giving him a reasonable opportunity to be heard in the way of explanation or defense.” (Ibid.) The ordinance also clarified that it could “not be applied to interfere with the independent and constitutionally and statutorily designated investigative and prosecutorial functions of the sheriff and the district attorney.” (Ibid.)
In response to the ordinance, the San Bernardino District Attorney sought an opinion from the California Attorney General, of whether a county may “grant the board of supervisors the authority to remove for cause by a four-fifths vote the sheriff […] upon due notice and opportunity to be heard.” (84 Ops.Cal.Atty.Gen. 88 (2001).) In response, the Attorney General found “that the removal of county officers is a subject that may be contained in a county charter” and “the Constitution has not expressly provided otherwise. (Ibid.)
The San Bernardino County Sheriff also filed a civil complaint, contending that the ordinance is unconstitutional. The California Court of Appeal rejected the Sheriff’s challenges and held that the ordinance is facially constitutional and valid. (Penrod v.

County of San Bernardino (2005) 126 Cal.App.4th 185, 188.) The court determined that the ordinance is specifically authorized by the California Constitution, and is consistent

1 The Legislature provides for the recall of local officer in general law counties. (Cal. Const. art II, § 19.) The charter of charter counties provide for the “compensation, terms and removal” of the sheriff.” (Cal. Const., art. XI, §

4.)
AB 1090

with the Government Code. (Ibid.)
5) Other Existing Options for Removing Sheriffs:
a) Grand Jury Accusation and Trial: An accusation against any officer of a district, county, or city, including a sheriff, for willful or corrupt misconduct in office, may be presented by the grand jury of the county for, or in, which the officer accused is elected or appointed. (Gov. Code, §§ 3060 et seq.) These grand jury accusations are usually initiated by the district attorney who is statutorily authorized to present evidence of crime or official misconduct to the grand jury. The district attorney will have had the offense investigated and will have marshalled the evidence relevant thereto prior to its presentation to the grand jury. The grand jury then evaluates the evidence in secret deliberations and decides by vote whether to issue an accusation. An accusation can be found only with the concurrence of 12 grand jurors (8 for 11 member grand juries and 14 for 23 member grand juries.) (Ibid.)
b) Quo Warranto Removal: Quo warranto (Latin for “by what authority”) is a legal action most typically brought to resolve disputes concerning the right to hold public office. (Code Civ. Proc., §§ 803 et seq.) In California, a Quo warranto proceeding may be brought by the Attorney General to determine whether holders of a public officer are legally entitled to hold that office or exercise those powers. The court may not hear the action unless it is brought or authorized by the Attorney General. (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 633.) Quo warranto tries title to public office, i.e. the right to hold public office; it may not be used to remove an incumbent for misconduct in office. (Wheeler v. Donnell (1896) 110 Cal. 655.)
c) Vacancies for Reasons other than Misconduct: Death, resignation, mental or physical incapacity, relocating, and other such situations that may create vacancies in the office of an elected sheriff law. Courts have ruled that vacancies for reasons other than removal may be filled without any sort of hearing or proceeding. (Klose v. Superior Court in & for San Mateo County (1950) 96 Cal.App.2d 913, 917; People ex rel. Tracy v. Brite (1880) 55 Cal. 79.)
d) Recall by Voters: A county sheriff can be recalled by the voters under the terms set forth in the Election Code. Article II, section 19 of the California Constitution requires the Legislature to “provide for recall of local officers.”2 Accordingly, the Legislature established a statutory recall procedure for recalling sheriffs and other general law county officers. (Elec. Code, § 11000, et seq.)
Nothing in this bill limits any of these existing options for the removal of a sheriff.

However, this bill would extend to circumstances in which a board of supervisors may

2 General law counties possess only those powers expressly conferred upon them by the California Constitution and the Legislature, and therefore they cannot create their own recall or removal procedures absent statutory authorization. (Younger v. Board of Supervisors (1979) 93 Cal.App.3d 864, 870.) A charter county, on the other hand, has authority to adopt its own procedure to recall its sheriff. (Cal. Const., art. XI, § 4.) When presented with a county charter contains no recall procedure, the California Supreme Court held that “in such a situation the recall proceedings must conform to the general law” as set forth in statute. (Muehleisen v. Forward (1935) 4 Cal.2d 17,

19.)
AB 1090

need to act expeditiously to remove a county sheriff, rather than wait for a grand jury to convene or a recall election to be held.
6) Argument in Support: According to Oakland Privacy, “In recent years, many county sheriffs have taken actions and run their departments in ways that have caused friction in the community and distress on elected county boards of supervisors. Prominent examples include Alameda County, where for a number of years the former Sheriff Gregory Ahern continued to voluntarily detain inmates on behalf of ICE despite Board of Supervisor resolutions and strong community sentiments to end the practice, and Los Angeles where former sheriff Alex Villanueva obstructed an investigation into an in-custody death and threatened criminal charges against a reporter, before walking that back. In addition, some sheriffs throughout the state declined to enforce public health mandates put into place by county health officers and supervisors.
“According to current law, the remedy for such situations is an electoral one, with voters having the power to administer a rebuke to a current sheriff by voting for another candidate for the position in the next election, which can be as long as four years into the future. In the cases cited above, voters did exactly that by replacing Sheriff Gregory Ahern with Sheriff Yesenia Sanchez and replacing Sheriff Alex Villanueva with Sheriff Robert Luna. “However, such remedies are not always available to the voters, especially in the smaller counties of California. The majority of sheriff elections are uncontested, meaning there is only one candidate, and voters can only vote yes or abstain. California’s rural and small counties deserve an equal level of accountability to that of California’s larger counties, and it is far from guaranteed that in all cases, even large and urban counties will have a regular voter referendum on their sheriff. In Alameda County, prior to 2022, the then-incumbent sheriff Ahern faced no opposition for four consecutive election cycles, a period of sixteen years beginning in 2006.
“The current accountability measures in place, apart from elections, derive from the Board of Supervisor’s power of the purse in setting a sheriff’s department budget. This is not an insignificant source of leverage, but it risks distorting the budget process to address issues of policy and accountability that are not primarily financial in nature. We would argue that good governance dictates not shoving misconduct issues into the budgetary process. “There is no doubt that is a sobering thing to allow one elected body to potentially remove an elected officer. Nonetheless, our State and Federal governments permit such through the process of impeachment - with a 2/3rds vote. AB 1090 is simply a recognition that an elected sheriff, unlike an elected body of more than one person, has no collegial process to address issues of misconduct that are addressed by a removal process on a board, council or commission, or by impeachment at the State and Federal levels, and that the electoral remedy is often not practicably available to the voters.
“In essence, AB 1090 asks what is misconduct by a sheriff, and if and when it occurs, where is the remedy that is available in a timely and consistent manner? Under current law, there really isn’t one. Here in Alameda County, the former sheriff’s declaration that policy mandates from the Board of Supervisors and overwhelming public sentiment would not impact the conduct of the sheriff’s office with regard to ICE became a long-term public wound. It did enormous damage to the faith of the county’s voters in the sheriff’s department AB 1090

and in the efficacy of the Board of Supervisors. After a decade of no available remedy, the damage had already been done and the new sheriff has a big job to restore trust and relationships.
“We would argue that the democratic process i.e. what the voters wanted, was delayed for an unforgivably long time due to the limitations of current law and held hostage to the “personal beliefs” of the former sheriff and the difficulty of finding candidates willing to run against a powerful incumbent.
“Unlike sheriffs, it is a rare occasion, although not unheard of, that a county supervisor position is elected in an uncontested election. The voter “check and balance” is more consistent and AB 1090 allows for a county board of supervisors to develop a due process procedure that can include additional steps to protect against an ideologically-based removal process. We encourage making that process as robust as possible, but given the limitations in current law, *a* process beyond waiting for the next election should be implemented.” 7) Argument in Opposition: According to the California Statewide Law Enforcement Association (CSLEA), “Sheriffs, like county boards of supervisors are elected and held accountable by the voters.
“Shifting power and accountability from the voters to the Board risks injecting politics and petty disagreements into the removal of a Sheriff, overriding the will of the voters. “By nullifying the will of the voters, the Board of Supervisors will become the judge, jury, and executioner for the Office of the Sheriff. We believe these decisions are best left to the voters.”
8) Related Legislation: AB 797 (Weber), would require the governing body of each city and county to, by January 15, 2025, create an independent community-based commission on law enforcement officer practices.
9) Prior Legislation: AB 1185 (McCarty), Chapter 342, Statutes of 2020, authorized counties to create a sheriff’s oversight board and an office of inspector general.

REGISTERED SUPPORT / OPPOSITION:

Support
Black Lives Matter – Los Angeles
Initiate Justice
Oakland Privacy
Secure Justice
Opposition
Association of Orange County Deputy Sheriffs
California Fraternal Order of Police
California State Sheriffs' Association
California Statewide Law Enforcement Association
AB 1090

Deputy Sheriffs Association of San Diego County
Long Beach Police Officers Association
Sacramento County Deputy Sheriffs' Association
San Bernardino County Sheriff's Employees' Benefit Association Analysis Prepared by: Liah Burnley / PUB. S. / (916) 319-3744

RESOLUTION NO.____-2023

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PORTERVILLE, IN OPPOSITION TO STATE SENATE BILL 94

WHEREAS, existing State law provides for various specified special circumstances, including murder committed for financial gain or committed during the commission or attempted commission of certain felonies, which, if found true as specified, require a defendant found guilty of murder in the first degree to be sentenced to death or imprisonment for life without the possibility of parole; and
WHEREAS, existing State law added by Proposition 115 of the June 5, 1990, statewide primary election, prohibits a judge from striking or dismissing any special circumstance that is admitted by plea or found true by a jury or court, as specified; and WHEREAS, existing State law generally authorizes a court to dismiss an action or to strike or dismiss an enhancement in the furtherance of justice, except if dismissal of that enhancement is prohibited by any initiative statute; and WHEREAS, Senate Bill 94 (SB 94) would authorize an individual sentenced to death or life imprisonment without the possibility of parole for a conviction in which one or more special circumstances were found to be true to petition for recall and resentencing if the offense occurred before June 5, 1990, and the individual has served at least twenty (20) years in custody; and WHEREAS, SB 94 would authorize the court to modify the petitioner’s sentence to impose a lesser sentence and apply any changes in law that reduce sentences or provide for judicial discretion, or to vacate the petitioner’s conviction and impose judgement on a lesser included offense, as specified; and
WHEREAS, SB 94 would require a court to consider and afford great weight to evidence offered by the petitioner to prove that specified mitigating circumstances are present, and WHEREAS, SB 94 would provide that proof of the presence of one or more specified mitigating circumstances weighs greatly in favor of the dismissing a special circumstance, unless the court finds that petitioner is currently an unreasonable risk of danger to public safety, as Resolution No. ___-2023

defined; and
WHEREAS, SB 94 would require the court to appoint the State Public Defender or other qualified counsel for an indigent petitioner.

NOW, THEREFORE, it is hereby DECLARED and ORDERED, that the City Council of the City of Porterville does hereby oppose Senate Bill 94.

This Resolution shall take effect from and after the date of its passage and adoption by this Council.

PASSED, APPROVED, AND ADOPTED this 2nd day of May, 2023.

Martha A. Flores, Mayor
ATTEST:

John D. Lollis, City Clerk
By:

Patrice Hildreth, Chief Deputy City Clerk
AMENDED IN SENATE MARCH 23, 2023
SENATE BILL No. 94
Introduced by Senator Cortese
(Principal coauthor: Senator Becker)
(Coauthors: Senators Skinner and Wiener)
(Coauthors: Assembly Members Jackson and Weber)
January 18, 2023
An act to add Section 1172.5 to the Penal Code, relating to sentencing. legislative counsel’s digest
SB 94, as amended, Cortese. Recall and resentencing: special circumstances.

Existing law provides for various specified special circumstances, including murder committed for financial gain or committed during the commission or attempted commission of certain felonies, which, if found true as specified, require a defendant found guilty of murder in the first degree to be sentenced to death or imprisonment for life without the possibility of parole. Existing law, added by Proposition 115 of the June 5, 1990, statewide primary election, prohibits a judge from striking or dismissing any special circumstance that is admitted by plea or found true by a jury or court, as specified. Existing law generally authorizes a court to dismiss an action or to strike or dismiss an enhancement in the furtherance of justice, except if dismissal of that enhancement is prohibited by any initiative statute.

This bill would authorize an individual sentenced to death or life imprisonment without the possibility of parole for a conviction in which one or more special circumstances were found to be true to petition for recall and resentencing if the offense occurred before June 5, 1990, and the individual has served at least 20 years in custody. The bill would

98 authorize the court to modify the petitioner’s sentence to impose a lesser sentence and apply any changes in law that reduce sentences or provide for judicial discretion, or to vacate the petitioner’s conviction and impose judgment on a lesser included offense, as specified. The bill would require a court to consider and afford great weight to evidence offered by the petitioner to prove that specified mitigating circumstances are present. The bill would provide that proof of the presence of one or more specified mitigating circumstances weighs greatly in favor of dismissing a special circumstance, unless the court finds that petitioner is currently an unreasonable risk of danger to public safety, as defined.

The bill would require the court to appoint the State Public Defender or other qualified counsel for an indigent petitioner.

Vote: majority. Appropriation: no. Fiscal committee: yes.

State-mandated local program: no.

The people of the State of California do enact as follows:
line 1 SECTION 1. The Legislature finds and declares all of the line 2 following:
line 3 (a)  In the last 10 years, the Legislature has enacted numerous line 4 reforms to require judges to consider mitigating factors in line 5 sentencing, including: whether the individual to be sentenced is line 6 or was a victim of intimate partner violence, sexual violence, or line 7 human trafficking (AB 124 enacted in 2021); whether the line 8 individual experienced childhood trauma, including abuse, neglect, line 9 exploitation, or sexual violence (AB 124 enacted in 2021); whether line 10 the individual was young, meaning under 26 years of age, at the line 11 time of the offense (AB 124 enacted in 2021, SB 260 enacted in line 12 2013, SB 261 enacted in 2015); whether the individual was a line 13 veteran and the conduct was related to trauma experienced in the line 14 military (AB 2098 enacted in 2014, AB 865 enacted in 2018, SB line 15 1209 enacted in 2022); whether the individual suffers from line 16 cognitive impairment, intellectual disability, or mental illness (AB line 17 2512 enacted in 2020, SB 215 enacted in 2018); and whether there line 18 was racial bias in the proceedings (AB 2542 enacted in 2021, AB line 19 256 enacted in 2022).
line 20 (b)  In the last 10 years, the Legislature has also enacted reforms line 21 recognizing that individuals are capable of redemption and line 22 requiring judges, when reviewing previously imposed sentences, line 23 to consider changed circumstances such as an individual’s 98 SB 94 — 2 —
line 1 rehabilitation while in custody, that the passage of time may line 2 significantly change the relevance of factors previously considered line 3 in sentencing, and that other changed circumstances may mean line 4 that an originally imposed sentence is no longer in the interest of line 5 justice (AB 1812 enacted in 2018, AB 2942 enacted in 2018, AB line 6 1540 enacted in 2021, AB 960 enacted in 2022).
line 7 (c)  It is necessary to correct sentences that would not be imposed line 8 today because of legal reforms enacted since an individual’s line 9 conviction. Judges should have the opportunity to take a second line 10 look at these sentences in light of evolving standards of decency line 11 and reforms that mandate the consideration of mitigating factors line 12 at sentencing such as youth, childhood trauma, victimization, race, line 13 military service and mental illness, and in light of changed line 14 circumstances, including an individual’s rehabilitation. line 15 (d)  While individuals sentenced to parole-eligible sentences line 16 have an opportunity for some of these mitigating factors and line 17 changed circumstances to be considered in the parole process, line 18 individuals sentenced to life without parole or death do not. line 19 (e)  It is the intent of the Legislature that judges be given an line 20 opportunity to review sentences of life without parole or death for line 21 offenses prior to before June 5, 1990, to exercise their discretion line 22 in sentencing, considering mitigating factors and changed line 23 circumstances as now required in sentencing.
line 24 SEC. 2. Section 1172.5 is added to the Penal Code, to read:
line 25 1172.5. (a)  An individual who has been sentenced to death or line 26 life imprisonment without possibility of parole for a conviction in line 27 which one or more of the special circumstances enumerated in line 28 Section 190.2 has been found true, may petition the court to recall line 29 the sentence and resentence to a lesser sentence if:
line 30 (1)  The offense occurred before June 5, 1990.
line 31 (2)  The individual has served at least 20 years in custody. line 32 (b)  (1)  The petition shall be filed with the court that sentenced line 33 the petitioner and served on the district attorney, or on the agency line 34 that prosecuted the petitioner. The presiding judge shall designate line 35 a judge to rule on the petition. The petition shall include all of the line 36 following:
line 37 (A)  A declaration by the petitioner that the petitioner is eligible line 38 for relief pursuant to subdivision (a).
line 39 (B)  The superior court case number and date of the petitioner’s line 40 offense and conviction.
98 — 3 — SB 94
line 1 (C)  Whether the petitioner currently has counsel and, if not, line 2 whether the petitioner is indigent.
line 3 (2)  If any of the information required by this subdivision is line 4 missing from the petition and cannot be readily ascertained by the line 5 court, the court may deny the petition without prejudice to the line 6 filing of another petition and advise the petitioner that the matter line 7 cannot be considered without the missing information. line 8 (c)  The court shall review the petition and determine if it alleges line 9 the elements set forth in subdivision (a). If the subject of the line 10 petition does not have counsel and is indigent, the court shall line 11 appoint the State Public Defender or other qualified counsel to line 12 represent the individual. If counsel is newly appointed, they may line 13 file a supplementary petition within 60 days. The prosecutor may line 14 file and serve a response within 60 days of service of the petition line 15 or supplementary petition and the petitioner may file and serve a line 16 reply within 30 days after the prosecutor response is served. These line 17 deadlines shall be extended for good cause.
line 18 (d)  (1)  Within 60 days after the reply is filed, the court shall line 19 hold a hearing to determine whether to recall the sentence and line 20 resentence the petitioner. This deadline may be extended for good line 21 cause.
line 22 (2)  The resentencing court may, in the interest of justice and line 23 regardless of whether the original sentence was imposed after a line 24 trial or plea agreement, do the following:
line 25 (A)  May modify the petitioner’s sentence to impose a lesser line 26 sentence, and apply any changes in law that reduce sentences or line 27 provide for judicial discretion.
line 28 (B)  May vacate the petitioner’s conviction and impose judgment line 29 on any necessarily included lesser offense, whether or not that line 30 offense was charged in the original pleading, and then resentence line 31 the petitioner to a lesser sentence.
line 32 (3)  The parties may waive a resentencing hearing and stipulate line 33 that the petitioner is eligible for recall and resentencing. line 34 (4)  A petitioner who is resentenced pursuant to this section shall line 35 be given credit for time served.
line 36 (5)  Resentencing under this subdivision shall not result in the line 37 imposition of a term longer than the original sentence. line 38 (6)  The court shall state on the record the reasons for its decision line 39 to grant or deny recall and resentencing.
98 SB 94 — 4 —
line 1 (e)  (1)  In considering a petition pursuant to this section, the line 2 court shall consider and afford great weight to evidence offered line 3 by the petitioner to prove that any of the following mitigating line 4 circumstances are present:
line 5 (A)  The petitioner was a victim of intimate partner violence, line 6 sexual violence, or human trafficking.
line 7 (B)  The petitioner experienced childhood trauma, including line 8 abuse, neglect, exploitation, or sexual violence. line 9 (C)  The petitioner is a veteran and the conduct involved in the line 10 offense related to trauma experienced in the military. line 11 (D)  The petitioner has been diagnosed with cognitive line 12 impairment, intellectual disability, or mental illness. line 13 (E)  The petitioner was a youth, as defined under subdivision line 14 (b) of Section 1016.7 at the time of offense.
line 15 (F)  The sentence violates Section 745 (the California Racial line 16 Justice Act).
line 17 (G)  The petitioner’s age, time served, or diminished physical line 18 condition reduces the petitioner’s risk for future violence. line 19 (2)  Proof of the presence of one or more of these circumstances line 20 weighs greatly in favor of dismissing the special circumstance, line 21 unless the court finds that the petitioner is currently an line 22 unreasonable risk of danger to public safety, as defined in line 23 subdivision (c) of Section 1170.18.
line 24 (f)  The court shall consider postconviction factors, including, line 25 but not limited to, the disciplinary record and record of line 26 rehabilitation of the petitioner while incarcerated, and evidence line 27 that reflects that circumstances have changed since the original line 28 sentencing so that the sentence originally imposed is no longer in line 29 the interest of justice.
line 30 (g)  This section does not diminish or abrogate any rights or line 31 remedies otherwise available to the subject of the petition. line 32 (h)  If the judge declines to impose a reduced sentence, a line 33 subsequent petition pursuant to this section may be filed if at least line 34 two years have passed from the denial of the prior application. line 35 (i)  The petitioner may appear remotely, and the court may line 36 conduct the hearing through the use of remote technology, unless line 37 counsel requests their physical presence in court and if not line 38 otherwise prohibited by state law.

O
98 — 5 — SB 94

SENATE COMMITTEE ON PUBLIC SAFETY
Senator Aisha Wahab, Chair
2023 - 2024 Regular
Bill No: SB 94 Hearing Date: April 11, 2023
Author: Cortese
Version: March 23, 2023
Urgency: No Fiscal: Yes
Consultant: MK
Subject: Recall and resentencing: special circumstances

HISTORY
Source: Ella Baker Center for Human Rights
Prior Legislation: SB 300 (Cortese) not heard Assembly floor 2021-2022 SB 1437 (Skinner) Chapter 105, Stats. 2018
SCR 48 (Skinner) Chapter 175, Stats. 2017
SB 878 (Hayden) Failed Senate Floor 1999
Support: 8th Amendment Project; A New Way of Life Reentry Project; Alliance for Boys and Men of Color; American Friends Service Committee; Amnesty International USA; Asian Pacific Islander Re-entry and Inclusion Through Support and Empowerment; Asian Prisoner Support Committee; Bend the Arc: Jewish Action California; Black Women Organized for Political Action (BWOPA); Blameless and Forever Free Ministries; California Attorneys for Criminal Justice; California Catholic Conference; California Coalition for Women Prisoners; California Families Against Solitary Confinement; California Immigrant Policy Center; California Native Vote Project; California Public Defenders Association (CPDA); Californians for Safety and Justice; Californians United for A Responsible Budget; Center for Employment Opportunities; Center on Juvenile and Criminal Justice; City of Oakland Mayor Sheng Thao; Communities United for Restorative Youth Justice (CURYJ); Community Agency for Resources, Advocacy and Services; Community Legal Services in East Palo Alto; Courage California; Cure California; Decarcerate Sacramento; Drop LWOP Coalition; Drug Policy Alliance; Ella Baker Center for Human Rights; Empowering Pacific Islander Communities (EPIC) Fiscally Sponsored by Community Partners; End Solitary Santa Cruz County; FUEL - Families United to End LWOP; Fair Chance Project; Faith in Action East Bay; Families Against Mandatory Minimums Foundation; Felony Murder Elimination Project; Foundation Aussergewöhnlich Berlin; Friends Committee on Legislation of California; Holy Cross Lutheran Church, Livermore, CA; Housing and Economic Rights Advocates; Human Rights Watch; If/When/How: Lawyering for Reproductive Justice; Individual; Indivisible CA Statestrong; Indivisible Sacramento; Indivisible San Francisco; Indivisible Yolo; Initiate Justice; Inland Equity Partnership; Interfaith Movement for Human Integrity; Islamic Shura Council of Southern California; John Burton Advocates for Youth; Justice2jobs Coalition; La Defensa; Latinojustice Prldef; Law Enforcement Action Partnership; Lawyers' Committee for Civil Rights of The San SB 94 (Cortese ) Page 2 of 8
Francisco Bay Area; Legal Services for Prisoners With Children; Long Beach Immigrant Rights Coalition; Milpa (motivating Individual Leadership for Public Advancement); National Association of Social Workers, California Chapter; National Center for Lesbian Rights; National Harm Reduction Coalition; North Bay Jobs With Justice; Peninsula Multifaith Coalition; Prosecutors Alliance California; Restore Oakland, INC.; Root & Rebound; Safe Return Project; San Francisco Public Defender; Santa Cruz Barrios Unidos INC.; Secure Justice; Showing Up for Racial Justice (SURJ) Bay Area; Showing Up for Racial Justice Santa Cruz County; Silicon Valley De-bug; Sister Warriors Freedom Coalition Smart Justice California; Social Change; Starting Over, INC.; Survived & Punished; Techequity Collaborative; The Place4grace; The Resistance Northridge-indivisible; The San Diego Lgbt Community Center; The Transformative In-prison Workgroup; Unapologetically Hers; Uncommon Law; Underground Grit; Underground Scholars Initiative At the University of California, Irvine; United Core Alliance; White People 4 Black Lives; Young Women's Freedom Center
Opposition: California Association of Highway Patrolman; California District Attorneys Association; California State Sheriffs' Association; Crime Victims United of California; San Diegans Against Crime; San Diego County District Attorney's Office; San Diego Deputy District Attorneys Association

PURPOSE
The purpose of this bill is to set up a process for a person who has been sentenced to death or life imprisonment before June 5, 1990 can seek a recall of their sentence and be resentenced to a lesser sentence.

Existing law defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought. (Penal Code, § 187(a))
Existing law defines malice for this purpose as either express or implied and defines those terms.  It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.
 It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. (Penal Code § 188) Existing law defines first degree murder, in part, as all murder that is committed in the perpetration of, or attempt to perpetrate, specified felonies. (Penal Code § 189.) Existing law, as enacted by Proposition 7, approved by the voters at the November 7, 1978, statewide general election, prescribes a penalty for that crime of death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. (Penal Code § 190)
Existing law provides that the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of 22 special circumstances are found to be true. (Penal Code § 190.2) SB 94 (Cortese ) Page 3 of 8
This bill provides that an individual who has been sentenced to death or life imprisonment without possibility of parole for a conviction in which one or more special circumstance has been found true, may petition the court to recall the sentence and resentence to a lesser sentence if:
1) The offense occurred before June 5, 1990.
2) The individual has served at least 20 years in custody.

This bill provides that the petition shall be filed with the court that sentenced the petitioner and served on the district attorney or on the agency that prosecuted the petitioner.

This bill provides that the presiding judge shall designate a judge to rule on the petition.

This bill provides that the petition shall include all the following:
1) A declaration by the petitioner that the petitioner is eligible for relief. 2) The superior court case number and date of the petitioner’s offense and conviction. 3) Whether the petitioner currently has counsel, and if not, whether the petitioner is indigent.

This bill provides that if any of the information required by this subdivision is missing from the petition and cannot be readily ascertained by the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that matter cannot be considered without the missing information.

This bill provides that he court shall review the petition and determine if it alleges the elements required.

This bill provides that if the court does not have counsel and is indigent, the court shall appoint the State Public Defender or other qualified counsel to represent the individual.

This bill provides if counsel is newly appointed, they may file a supplementary petition within 60 days.

This bill provides that the prosecutor may file and serve a response within 60 days of service of the petition or supplementary petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served.

This bill provides that the deadlines may be extended for good cause.

This bill provides that within 60 days after the reply is filed, the courts hall hold a hearing to determine whether to recall the sentence and resentence the petitioner.

This bill provides that the resentencing court may in the interest of justice and regardless of whether the original sentence was imposed after a trial or plea agreement, do the following:
1) May modify the petitioner’s sentence to impose a lesser sentence, and apply any changes in law that reduce sentences or provide for judicial discretion. 2) May vacate the petitioner’s conviction and impose judgment on a necessarily included lesser offense, wither or not that offense was charged in the original pleading, and then resentence the petitioner to a lesser sentence.

This bill provides that the parties may waive a resentencing hearing and stipulate that the petitioner is eligible for recall and resentencing.

SB 94 (Cortese ) Page 4 of 8
This bill provides that a petitioner who is resentenced shall be given credit for time served.

This bill provides that resentencing under this subdivision shall not result in the imposition of a term longer than the original sentence.

This bill provides that the court shall state on the record the reasons for its decision to grant or deny recall and resentencing.

This bill provides that in considering a petition pursuant to this section, the court shall consider and afford great weight to evidence offered by the petitioner to prove that nay of the following mitigating circumstances are present:
1) The petitioner was the victim of intimate partner violence, sexual violence, or human trafficking;
2) The petitioner experienced childhood trauma, including abuse, neglect, exploitation, or sexual violence.
3) The petitioner is a veteran and the conduct involved in the offense related to trauma experienced in the military.
4) The petitioner has been diagnosed with cognitive impairments, intellectual disability, or mental illness.
5) The petitioner was under the age of 26 at the time of the offense. 6) The sentence violates the California Racial Justice Act. 7) The petitioner’s age, time served, or diminished physical condition reduces the petitioner’s risk for future violence.

This bill provides that proof of the presence of one or more of the above circumstances weighs greatly in favor of dismissing the special circumstance, unless the court finds that the petitioner is currently an unreasonable risk of danger to public safety.

This bill provides that the court shall consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the petitioner while incarcerated, and evidence that reflects that circumstances have changed since the original sentence so that the sentence originally imposed I no longer in the interest of justice.

This bill provides that it does not diminish or abrogate any rights or remedies otherwise available to the subject of the petition.

This bill provides that if the judge declines to impose a reduced sentence, a subsequent petition pursuant to this section may be filed if at least two years have passed for the denial of the prior application.

This bill provides that the petitioner may appear remotely, and the court may conduct the hearing through the use of remote technology, unless counsel requests their physical presence in court and if not otherwise prohibited by state law.

This bill contains uncodified Legislative findings and declarations.

SB 94 (Cortese ) Page 5 of 8

COMMENTS

1. Need for This Bill
According to the author:

Existing law provides that when a prosecutor charges a special circumstance enhancement and it is found true, a person found guilty of first degree murder with special circumstances shall be punished by death or LWOP. (Pen. Code, § 190.2.) Prop 115, passed by the voters on June 5, 1990, removed from judges the discretion to dismiss a special circumstance finding after it has been found true. Judges retain the power to dismiss special circumstances after they have been found true for offenses that occurred before June 5, 1990.

Penal Code section 1172.1 permits a judge, prosecutor or CDCR to recall a sentence for reconsideration. This code section does not permit an individual to petition for recall and reconsideration of a sentence.

The majority of people serving a life without parole sentence are classified as low risk according to California Department of Corrections and Rehabilitation (CDCR)’s own California Static Risk Assessment tool - 88% of people serving life without parole have been assessed with the lowest risk score on that scale.

Research also conclusively demonstrates that there is little risk for elderly individuals to re-offend or recidivate upon release. For individuals previously sentenced to life without parole who were granted a commutation and released, the recidivism rate is zero percent. Based on CDCR data, an analysis from the Special Circumstances Conviction Project of UCLA Center for the Study of Women, estimates that this reform might qualify 200 death penalty cases, and 600 LWOP cases for review.

2. Proposition 115
Existing law, as enacted by Proposition 115, approved by California voters on June 6, 1990, made a number of procedural changes to criminal law in California including changes to discovery and the allowance of hearsay testimony by peace officers at preliminary hearings. It also added additional special circumstances to those for which the death penalty applies and removed from judges the discretion to dismiss a special circumstance finding after it has been found true. Judges retain the power to dismiss special circumstances after they have been found true for offenses that occurred before June 5, 1990.

3. Recall and resentence for cases before June 5, 1990.

Because Judges retain the power to dismiss special circumstances after they have been found true for offenses that occurred before June 5, 1990, this bill sets up a process for people who were sentenced to death or life without the possibility of parole and the offense occurred prior to June 5, 1990 to petition a court to recall the sentence and resentence to a lesser sentence. The person must also have already served at least 20 years in custody.

SB 94 (Cortese ) Page 6 of 8
a. Petition Filed in sentencing court
The petition is to be filed with the court that sentenced the petitioner and served on the district attorney. The presiding judge shall assign a judge to hear a petition, it has been over 20 years so it is unlikely, but not impossible, that the judge who originally heard the case is still on the bench. If the petition does not include required information it can be denied without prejudice.

If the petition is denied, without prejudice, because of something lacking in the petition, should this only occur after an indigent defendant has been appointed counsel? b. Indigent defendants.

The petition shall include a statement as to whether the petitioner has counsel or if the petitioner is indigent. If the petitioner is indigent, the court shall appoint the State Public Defender or other qualified counsel to represent the defendant. The newly appointed counsel may have 60 days to file a supplementary petition and the district attorney has 60 days to respond to the original or supplementary petition.
c. Actions the court may take
The resentencing court may, in the interest of justice do any of the following:
 Modify the petitioner’s sentence to impose a lesser sentence, and apply any changes in law that reduce sentences or provide for judicial discretion.  Vacate the petitioner’s conviction and impose judgement on any necessarily included lesser offense, whether or not that offense was charged in the original pleading, and then resentence the petitioner to a lesser sentence.
d. Considerations by the court
In considering the petion, the court shall consider and afford great weight to evidence offered by the petitioner to prove any of the following mitigating circumstances are present  The petitioner was victim of intimate partner violence, sexual violence, or human trafficking.
 The petitioner experienced childhood trauma, including abuse, neglect, exploitation, or sexual violence.
 The petitioner is a veteran and conduct involved in the offense related to trauma experienced in the military.
 The petitioner has been diagnosed with cognitive impairment, intellectual disability, or mental illness.
 The petitioner was under the age of 26 at the time of the offense.  The sentence violates the California Racial Justice Act.  The petitioner’s age, time served, or diminished physical condition reduces the petitioner’s risk for future violence.

The bill provides that proof of one of the above weighs greatly in favor of dismissing the special circumstance, unless the court finds that the petitioner is currently at risk to public safety.

SB 94 (Cortese ) Page 7 of 8
The court shall also consider postconviction factors including disciplinary record while incarcerated, rehabilitation of the petitioner while incarcerated, and evidence that reflects the circumstances have changed.
e. Procedural issues
This bill also sets forth a number of procedural considerations:
 The parties may waive a resentencing hearing and stipulate that the petitioner is eligible.
 The petitioner may appear remotely and the court may conduct the hearing using remote technology, unless counsel requests their physical presence.  A petitioner who is resentence shall be given credit for time served.  Resentencing under this section should not result in a longer sentence.  The court shall state on the record the reasons for its decision to grant or deny recall and sentencing.

4. Argument in Support
Supporters of this bill note that nothing in this bill guarantees a person will be resentenced or leave prison, but it is consistent with some of the other recent criminal justice reforms in recognizing that people may change while incarcerated and may no longer pose a threat to society. Specifically the Alliance for Boys and Men of Color states:

There are people languishing in state prisons, that were they in court today, would receive a more just sentence. In the last ten years, the Legislature has enacted several reforms to restore judicial discretion and to allow judges to consider mitigating factors at sentencing, including whether the person was a victim of intimate partner violence or human trafficking or had experienced childhood trauma, exploitation or sexual abuse.

Although individuals sentenced to LWOP or death have no path to parole today, many have exhibited decades of exemplary behavior, participated in extensive positive programming, have come to understand the contributing factors which led to their incarceration, and have devoted themselves to becoming positive members of society. The majority of people serving a life without parole sentence are classified as low risk according to California Department of Corrections and Rehabilitation’s own California Static Risk Assessment tool - 88% of people serving life without parole have been assessed with the lowest risk score on that scale. Research also conclusively demonstrates that there is little risk for elderly individuals to re-offend or recidivate upon release. For individuals previously sentenced to life without parole in California who were granted a commutation and released, the recidivism rate is zero percent.

This bill does not guarantee resentencing or release. Any individual who is granted resentencing by a judge will then need to go before the parole board, who will make a determination about their suitability for release. This bill allows courts to consider old cases in light of changes in law, thereby applying the law more fairly.

SB 94 (Cortese ) Page 8 of 8
This will mean that individuals that deserve a second chance won’t have to die behind bars. For these reasons, our organization strongly supports SB 94 (Cortese).

5. Argument in Opposition
The California District Attorneys oppose this bills stating:

First, SB 94 subverts the will of The People of the State of California, who voted to prohibit the dismissal of special circumstances in 1990 via Proposition 115. Your bill acknowledges this fact. However, the bill then seeks to avoid this declaration by providing dismissal of special circumstances to sentences not covered by the Proposition. While this is technically legal, it is in direct conflict with the will of the People. Rather than govern through technicality, we suggest you bring the issue back to the voters to see if they agree with you, or abide by the conditions in their initiative–specifically a ⅔ vote in both houses. As it stands, we must oppose.

Second, your bill would impose a substantial and unwarranted burden on the judicial system, limiting access and extending wait times for individuals in order to allow individuals who have committed the most egregious offenses to seek resentencing. This measure makes no distinction between those who have demonstrated some indicators of redemption or rehabilitation and those who have not. Instead, it would burden the state’s already overburdened judicial system and retraumatize the families of murder victims with resentencing hearings for individuals who have shown few or no signs of redemption, and who jurors did not believe were worthy of the opportunity for parole based on the nature of their crimes.
-- END –
Item No. 19.

CITY COUNCIL AGENDA – MAY 2, 2023
SUBJECT: Status and Review of Declaration of Local Flood Emergency SOURCE: City Manager's Office
COMMENT: On March 13, 2023, Mayor Martha A. Flores in conjunction with the Acting City Manager Patrice Hildreth declared the existence of a local emergency within the City of Porterville. Said Declaration was made pursuant to Chapter 9 of the Porterville Municipal Code, and in response to the increasing threat to life and property in the city caused by a series of storm systems striking California and in particular the Porterville area, impacting Success Lake and significantly increasing flows of the Tule River. Pursuant to the California Emergency Services Act (California Government Code 8558 et seq.), emergency declarations must be ratified by the governing body within seven days of being declared. At its Special Meeting on March 17, 2023, the City Council acted to ratify the Declaration of Local Emergency. The Act also requires that the emergency declaration be renewed every sixty (60) days to remain in effect, which at its meeting on April 18, 2023, the Council acted reviewed and acted to renew the emergency declaration.

On March 10, 2023, due to the volume of water added to Success Lake from significant storm activity, Tulare County Sheriff Mike Bourdreaux issued an Evacuation Warning for both the north and south sides of the Tule River, and the Tulare County Office of Emergency Services (TCOES) established a Temporary Evacuation Point (TEP) and Emergency Shelter in the gymnasium at Porterville College.

On March 15, 2023, due to the water level of Success Lake rising to the point of running over the spillway of the Richard L. Schafer Dam, Sheriff Boudreaux issued a Mandatory Evacuation Order for the residences, businesses and structures between Schafer Dam and Road 284, east of the city of Porterville.

On March 18, 2023, due to water levels dropping on the Tule River, Sheriff Boudreaux reduced the Mandatory Evacuation Order back to an Evacuation Warning.

On March 15, 2023, due to rising flood waters, Sheriff Boudreaux issued a Mandatory Evacuation Order for the area between Olive Avenue (Avenue 152) to Avenue 144 and the Friant-Kern Canal and the Tule River and Westwood Street, west of the city of Porterville. On March 25, 2023, Sheriff Boudreaux reduced the Mandatory Evacuation Order back to an Evacuation Warning.

On March 15, 2023, due to rising water levels of the Tule River, City Public Works Department staff took extraordinary measures to protect the Item No. 19.
neighborhood north of River Springs Drive, avoiding potentially catastrophic flooding of the area.

On March 16, 2023, due to the historic water levels and flows of the Tule River causing erosion to the river banks, Police Chief Jake Castellow issued a Mandatory Evacuation Order for eight residences along Rio Vista Avenue, providing information on the TEP and Emergency Shelter established at Porterville College. City Public Works Department staff took extraordinary measures over the next several days to mitigate and protect the river banks from affecting the residences. On March 24, 2023, Chief Castellow reduced the Mandatory Evacuation Order of the eight residences back to an Evacuation Warning.

On March 19, 2023, due to continued erosion of the banks of the Tule River and the performance of immediate necessary mitigation efforts by Public Works Department personnel, Chief Castellow issued a Mandatory Evacuation Order for both the north and south banks of the Tule River within City limits (not including permanent structures with a designated address), and provided information on the TEP and Emergency Shelter established at Porterville College. Public Works Department continue to work diligently in shoring the banks of the Tule River.

To accommodate upcoming ceremonies and events in the gymnasium at Porterville College, the TEP and Emergency Shelter at the College closed at noon on April 11, 2023, and thirty (30) individuals were successfully transitioned to the new TEP at the Porterville Army National Guard Armory. A Special Meeting of the Council was scheduled for April 14, 2023, to consider a draft License agreement for the City's temporary use of the State facility. The American Red Cross continues to provide shelter services at the TEP, but will transition out on May 5, 2023. With the authority granted to the City Attorney and City Manager at its meeting on April 18, 2023, the City and County drafted a Memorandum of Understanding in an effort to continue TEP shelter services until May 5, 2023, while the Mandatory Evacuation Order remains in place along the banks of the Tule River in city limits. On April 14, 2023, the County transmitted a letter to the California Governor's Office of Emergency Services (Cal OES), requesting continued financial support for the Armory TEP, which the County reported that Cal OES did not approve.

Given the lack of continued financial support by Cal OES, the County has notified the City that it will discontinue its support of the Armory TEP at noon on May 5, 2023, and American Red Cross will vacate the facility as well, leaving the City alone to determine the function of the Armory TEP after noon on May 5th. The significant threat of local emergency continues to exist with the estimated over three hundred percent (300%) of normal snow pack in the Sierra Nevada mountains and the potential for a warm storm or heat wave this Spring to again inundate the Tule River, described as a "loaded locomotive at the top of the hill." Given the forecasts of potential widespread flooding damage to west Tulare County and significant portions of Kings County later this Spring and early Summer, Red Cross representatives strongly believe they Item No. 19.
will be returning to the Armory TEP and other Tulare County locations (e.g.

Porterville Developmental Center) to assist those displaced from homes due to flooding. Until such time that Cal OES makes the determination that emergency conditions again exist in Tulare County, the Council will need to determine if local emergency conditions exist to continue operating the Armory TEP, which expenditures would not be reimbursable given the lack of approval by Cal OES.

Given the continued mandatory evacuation order along the Tule River in city limits and the legal implications of the Martin v. Boise federal 9th Circuit Court of Appeals decision (2018), and the announced departure of the American Red Cross and County support at noon on May 5, 2023, City staff has been developing an operational plan for the Armory TEP, cognizant of the lack of federal and State reimbursement of costs. As of April 27, 2023, eighteen (18) individuals were receiving shelter services at the Armory TEP, with most individuals only at the facility in the evening. Given the limited daytime TEP population, and daily meal services provided at the nearby Porterville Welcome Center, staff recommends to limit the Armory TEP hours from 7:00 P.M. to 7:00 A.M. daily, providing temporary staffing of two individuals (including a security guard). Temporary staffing has been quoted at $25 per hour, for a daily expense of $600 (or $18,000 per month). The Council may also consider directing that the Armory restrooms and shower facilities be used by the individuals at the TEP, which although not ADA-compliant, are not required for non-reimbursable shelter activities. The contract for the current on-site mobile shower and portable restroom facilities that are ADA-compliant will expire on May 11, 2023, which the rental cost is approximately $18,000 per month.

On March 31, 2023, Governor Newsom issued Executive Order N-6-23 to support Tulare Lake Basin flood response, which streamlines State preparation, response and recovery actions and supports local flood response efforts and assist in preparing communities for the impacts of snowmelt runoff in the months ahead.

On April 3, 2023, President Biden granted a Major Disaster Declaration for the State of California, triggering the release of Federal funds to help individuals and communities recover from Severe Winter Storms, Straight-line Winds, Flooding, Landslides and Mudslides that occurred February 21, 2023, and continuing. Monterey and Tulare counties were designated in the Major Disaster Declaration for both Individual and Public Assistance, as well as Hazard Mitigation.

At its meeting on April 4, 2023, the Council approved Resolution No. 15-2023, which authorized the appropriation of funds from the Catastrophic/Emergency Reserve Fund for the costs associated with the response to the local emergency including personnel, equipment, services and other necessary expenditures. At its meeting on April 18, 2023, the Council approved two emergency expenditures that exceeded $5,000 in their acquisition, which included additional Water Rescue Equipment for the Fire Department ($6,417.70) and the 30-day rental of two mobile shower/restroom units ($13,151) for the Item No. 19.

Armory TEP due to the facility's restrooms and showers not being compliant with the Americans with Disabilities Act (ADA). Two additional emergency expenditures that exceed $5,000 in their acquisition have been incurred, including a trailer-mounted 6" dewatering and sewage pump ($77,396.67), and local trucking services of riprap material ($5,436.00), both for the Public Works Department.

RECOMMENDATION: That the City Council:

1. Receive the report of status and review of the Declaration of Local Emergency and determine the need exists to continue said Declaration;

2. Provide direction on the function and hours of the Armory TEP after noon on May 5, 2023; and

3. Ratify the emergency expenditures of $77,396.67 for a trailermounted 6" dewatering and sewage pump, and $5,436.00 for local trucking services of riprap material for the Public Works Department.

ATTACHMENTS: 1. Declaration of Local Emergency - March 13, 2023

2. Resolution No. 11-2023

3. Rio Vista Avenue Mandatory Evacuation Order - March 16, 2023

4. Tule River Banks Mandatory Evacuation Order - March 19, 2023

5. Governor Newsom Executive Order N-6-23

6. Federal Disaster Declaration Fact Sheet - April 3, 2023

7. City and County Memorandum of Understanding for
Shelter Support

8. County of Tulare CalOES Shelter Support Request Letter - April 14, 2023

9. Resolution No. 15-2023

10. Rescue Source & Rescue 3 Invoice: Water Rescue
Equipment

11. Royal Restrooms Invoice: Mobile Shower-Restroom Units

12. Rain for Rent Pump Invoice

13. Mike Clark Trucking Invoice

14. Municipal Code Chapter 9 - Civil Defense and Disaster

15. California Government Code 8558
Appropriated/Funded:

Review By:

Department Director:

John Lollis, City Manager
Final Approver: John Lollis, City Manager
Item No. 19.

Police Department
350 North "D" Street
Porterville, CA 93257
(559) 782-7400/FAX (559) 784-1070
www.PortervillePolice.com
Porterville Police Department Mission Statement
Jake Castellow
Chief of Police
The members of the Porterville Police Department are committed to the safety and security of the community while providing quality service with excellence, honesty and integrity.

Police Department
350 North "D" Street
Porterville, CA 93257
(559) 782-7400/FAX (559) 784-1070
www.PortervillePolice.com
Porterville Police Department Mission Statement
Jake Castellow
Chief of Police
The members of the Porterville Police Department are committed to the safety and security of the community while providing quality service with excellence, honesty and integrity.

EXECUTIVE DEPARTMENT

STATE OF CALIFORNIA
EXECUTIVE ORDER N-6-23
WHEREAS on March 1, 2023, March 8, 2023, March 12, 2023, March 14, 2023, and March 28, 2023, I proclaimed a State of Emergency to exist in 47 counties, cumulatively, as a result of a series of ongoing winter storms that initially struck California beginning in late February and continue to significantly impact the counties identified in my Proclamations; and WHEREAS the State has experienced over a dozen atmospheric rivers since December 2022, resulting in compounding and cumulative impacts across California, including what are expected to be record amounts of snow in the Sierra Nevada, in particular in the southern Sierra, and current and forecasted precipitation are expected to add to historic snowpack levels already composed of several million acre-feet of snow water content; and WHEREAS reservoirs into which the Sierra snowpack runoff would flow are already impacted by runoff, which is expected to greatly exceed available storage capacity in the reservoirs in and around the Tulare Lake Basin and the San Joaquin River Basin, and much of the ground in the area has reached saturation due to the series of ongoing winter storms; and WHEREAS the Tulare Lake Basin is the terminal point for the Kings, Kaweah, Tule, and Kern Rivers, and several smaller streams, meaning that water from additional expected rains and Sierra snowpack runoff that cannot be stored in reservoirs or absorbed into the ground will flow into the basin; and WHEREAS recent storms have already caused flooding in the Tulare Lake Basin, leading to emergency rescues and evacuation orders in Allensworth, Alpaugh, and other communities in Tulare and Kings Counties, and leading to dozens of levee breaks and local agencies directing strategic cuts to canals and levees to prevent further flooding of communities; and WHEREAS runoff from the snowpack caused by the winter storms could result in flood conditions in the Tulare Lake Basin resembling those last experienced in the historic floods of 1969 and 1983, following historic snowpacks in those years; and
WHEREAS local flood control districts and other local governments generally have flood control responsibility in the Tulare Lake Basin, but state agencies such as the California Department of Forestry and Fire Protection (CAL FIRE), the California Department of Water Resources, and the Governor’s Office of Emergency Services are actively engaged in supporting this local effort, and state agencies will continue to provide technical advice and other resources and support as needed, with a particular priority on protecting the lives and health of local communities; and
WHEREAS stretches of the San Joaquin River have been or are at flood stage this spring, river stages are expected to stay high throughout the spring as snowpack melts, and multiple levee repairs are underway on the lower San Joaquin River; and
WHEREAS the Tulare Lake Basin is hydrologically connected to the San Joaquin River Basin and that connection has the potential to exacerbate the flood risk in the San Joaquin River Basin, and so further emergency response efforts may become necessary in the San Joaquin River Basin as well; and WHEREAS heavy accumulation of snowfall on the roof of Bear Valley Elementary School, located in Alpine County, currently renders instructional space unsafe for use; and
WHEREAS frequent flooding and flood evacuation orders have resulted in school closures and low student attendance in Pajaro Middle School, Hall District Elementary School and Ohlone Elementary, located in Pajaro Valley Unified School District in Santa Cruz County; and
WHEREAS it is critical that displaced students are back in school facilities as quickly as possible to ensure continuity in education; and WHEREAS the State of California and local governments, in collaboration with the Federal government, continue sustained efforts to respond to and mitigate the effects of these storms; and
WHEREAS on March 9, 2023, I requested a Presidential Emergency Declaration related to these late winter storms, which was expeditiously approved by President Joseph R. Biden, Jr.; and
WHEREAS on March 15, 2023, I requested the addition of 9 counties to the existing Presidential Emergency Declaration related to these late winter storms, which was expeditiously approved by the President; and
WHEREAS on March 28, 2023, I also requested the President issue a Major Disaster Declaration related to these late winter storms for counties that met the validated damage threshold; and
WHEREAS under the provisions of Government Code section 8571, I find that strict compliance with various statutes and regulations specified in this order would prevent, hinder, or delay the mitigation of the effects of these ongoing winter storms.

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, 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. All provisions contained in the above-referenced Proclamations of a State of Emergency shall remain in full force and effect.

2. To protect health, safety, and the environment, and to reduce the risks of local catastrophic flooding in the Tulare Lake Basin, Chapter 6 (commencing with section 1600) of Division 2 of the Fish and Game Code, and regulations adopted pursuant to that Chapter, are suspended for activities that meet all of the requirements in Paragraph

3. 3. The suspension created by Paragraph 2 shall apply to floodwater diversion, debris removal, and levee repair and breech in the Tulare Lake Basin, on the condition that the actions cease when the flood conditions have abated to the point there is no longer flooding outside of defined streambeds and levees. Additionally, the suspension created by Paragraph 2 shall apply to floodwater diversion only if all of the following additional conditions are met:
a. The diversion of floodwater from the Tulare Lake Basin or rivers or streams flooding the Tulare Lake Basin must occur between March 31, 2023, and August 1, 2023, for flood management purposes.
b. For diversions directly from rivers or streams, a local or regional flood control agency, city, or county has given notice via its internet website, electronic distribution list, emergency notification service, or another means of public notice that flows downstream of the point of diversion are at imminent risk of flooding and inundation of land, roads, or structures.
c. For diversion of floodwaters in the Tulare Lake Basin (that is, waters no longer contained within a defined streambed or levee), a local or regional flood control agency, city, or county has given notice via its internet website, electronic distribution list, emergency notification service, or another means of public notice that areas from which the floodwaters are diverted are either at imminent risk of flooding or already flooded, with potential or existing inundation of land, roads, or structures. d. Any water diverted is not diverted to and will not be applied to any area that has not been in active irrigated agricultural cultivation within the past three years, including grazing lands, annual grasslands, and natural habitats. This limitation does not apply to facilities already constructed for the purposes of groundwater recharge or managed wetlands.

4. In addition to the mandatory conditions set forth in Paragraph 3, any person conducting planned levee breaches or controlled inundation to prevent further catastrophic flooding pursuant to the suspension created by Paragraph 2 should take care, wherever feasible, to protect above-ground infrastructure and drinking water and wastewater infrastructure such as drinking water well field sites, wastewater discharge ponds, and other water resources that are necessary for the protection of human health and the recovery of impacted communities.

5. For purposes of conducting emergency flood preparation and response activities, for any (a) actions taken by state agencies, (b) actions taken by a local agency where the Secretary of the Natural Resources Agency concurs that local action is required, and (c) permits necessary to carry out actions under (a) and (b), Public Resources Code, Division 13 (commencing with Section 21000) and regulations adopted pursuant to that Division, are suspended to the extent necessary to address flood impacts in the Tulare Lake Basin.

6. To support adequate state staffing for all state agencies and departments with an assigned response and/or recovery role related to flooding in the Tulare Lake Basin, consistent with applicable federal law, work hour limitations for retired annuitants, permanent and intermittent personnel, and state management and senior supervisors are suspended. Furthermore, reinstatement and work hour limitations in Government Code sections 21220, 21224(a), and 7522.56(b), (d), (f), and (g), and the time limitations in Government Code section 19888.1 and California Code of Regulations, title 2, sections 300-303 are suspended. All other restrictions must be adhered to for retired annuitants. The Director of the California Department of Human Resources must be notified of any individual employed in state government pursuant to these suspensions. The suspension of statutes identified in this Paragraph shall also apply to local governments, as applicable, to ensure adequate staffing to appropriately respond to the flooding in the Tulare Lake Basin. Local governmental agencies shall notify the California Public Employees' Retirement System of any individual employed by an agency pursuant to this Paragraph.

7. The limitation for the period of employment for State Personnel Board emergency appointments, as provided in Government Code section 19888.1, is suspended for positions required for emergency response and/or recovery operations related to flooding in the Tulare Lake Basin.

The requirements and period of employment for such appointments will be determined by the Office of Emergency Services but shall not extend beyond the termination date of the State of Emergency.

8. To the extent the Alpine County Office of Education and Alpine County Unified School District are required to use temporary facilities such as the Alpine County Public Library due to extraordinary snowpack on the roof of Bear Valley Elementary School, rendering instructional space unsafe, the requirements of Education Code sections 17280, et seq., 17365, et seq., and Government Code sections 4453 and 14963 are suspended with respect to those temporary facilities. The requirements of the California Building Code (codified in Title 24 of the California Code of Regulations), as adopted and enforced by the local building and fire agencies with jurisdiction over the area, shall apply to these temporary facilities.

9. To the extent the Alpine County Office of Education and Alpine County Unified School District are required to temporarily use buildings, as defined in the California Building Code (California Code of Regulations, Title 24, Part 2, Chapter 2, section 202), such as the Alpine County Public Library due to extraordinary snowpack on the roof of the Bear Valley Elementary School, rendering instructional space unsafe, local planning and zoning regulations shall be suspended to allow immediate occupancy of such buildings for use as public school facilities. In addition, the requirements of the California Building Code, as adopted and enforced by the local building and fire agencies with jurisdiction over the area, shall apply, except that the requirements relating to Change of Use or Occupancy Classification in the California Building Code (California Code of Regulations, Title 24, Part 2, Chapter 1, section 111) shall not trigger immediate code upgrades, and a Certificate of Occupancy shall not be withheld for such immediate and temporary use of the facilities as a public school, as long as such facilities met building code requirements at the time of their construction, are accessible to individuals with disabilities, and are judged safe for use by the local building official.

10.Education Code section 60641(a) requiring that all pupils be administered academic assessments in mathematics, English language arts, and science, as provided for in Education Code section 60640, is suspended for the 2022-2023 school year for Pajaro Middle School, Hall District Elementary School and Ohlone Elementary School of the Pajaro Valley Unified School District, if a federal waiver is approved by the United States Department of Education.

I FURTHER DIRECT 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 31st day
of March 2023.
________________________________

GAVIN NEWSOM
Governor of California
ATTEST:
________________________________
SHIRLEY N. WEBER, Ph.D.

Secretary of State

Matter No. 2023359
Office of Emergency Services
5957 South Mooney Boulevard, Visalia, California 93277
(559) 624-7495 Telephone (559) 737-4692 Facsimile
April 14, 2023
Ms. Nancy Ward
Director, Governor’s Office of Emergency Services
3650 Schriever Avenue
Mather, CA 95655
Dear Director Ward,
Tulare County appreciates the Office of Emergency Services’ tireless work to support the response to and recovery from DR-4699 in our County and the surrounding region.

Specifically, your negotiation of an ongoing incident period and the expeditious approval of individual assistance programs have been particularly valuable to the affected communities as we continue to recover from storm damages, repair distressed and weakened waterways, and prepare for the impending historic snowmelt runoff.

As current snow moisture content in local watersheds is estimated at over 300% of the historical average, total inflows to local reservoirs through April and July are expected to exceed three times the reservoir capacity. Local reservoir and waterway operators continue to aggressively release water at or near full capacity to make space for the anticipated inflows and prevent a return to spillway flows, while balancing needs of downstream operators to conduct emergency repairs. As a result, a number of homes, agricultural properties, and public spaces remain inundated with floodwater, and more homes may be affected because of the new snowmelt conditions. Specifically, we anticipate similar or worse conditions as a result of the snowmelt.

Tulare County is concerned that current sheltering for individuals affected by inundation and/or evacuation orders, including previously displaced individuals who remain under an evacuation order, may be limited in duration, especially during the current intervening period between storm and snowmelt-induced flooding incidents within the disaster.

Tulare County has entered into an agreement with the City of Porterville to maintain the last remaining emergency evacuation shelter site in the County. The California Department of Social Services and Volunteer Emergency Services Team have pledged support to provide staff and services for only two weeks at this shelter. Forty Tulare County residents who have been displaced due to flood activities are staying at this site. Because the support from CDSS and VEST is limited, the County is concerned that it may not be able to continually fund and staff the ongoing shelter projects. Our concern is the ongoing financial and logistical burden to the County and the incorporated cities therein.

As we are sure that you are aware, emergency protective measures, flood control activities, and damage assessments are being conducted because of the flood conditions in Tulare County. These efforts go hand-in-hand with ensuring that County residents are safe, Office of Emergency Services
5957 South Mooney Boulevard, Visalia, California 93277
(559) 624-7495 Telephone (559) 737-4692 Facsimile
fed, and warm. The State’s cooperation in keeping funding and support from the Department of Social Services and VEST beyond the initial two weeks available for emergency sheltering of Tulare County Residents is vital. Your support in ensuring ongoing funding and logistical support for these critical emergency protective measures is greatly appreciated.

Sincerely,
Andrew Lockman
Office of Emergency Services Manager

Calwen Inc. dba Rescue Source & Rescue 3
P.O. Box 1050
Wilton, CA 95693
Phone: 916-687-6556
Fax: 916-687-6717
Email: [email protected]
Calwen Inc. dba Rescue Source &
Rescue 3 Intl
Invoice
Order # Date
131282 03/20/2023

PORTERVILLE FIRE DEPARTMENT
40 W CLEVELAND
PORTERVILLE, CA 93257
Phone: 559-782-7526
Email: [email protected] Contact: JANIE RODRIGUEZ PO Number: 23-22733
Bill To: Ship To:

PORTERVILLE FIRE DEPARTMENT
40 W CLEVELAND
PORTERVILLE, CA 93257
Customer: PORTERVILLE FIRE DEPARTMENT
Sales Rep Payment Terms FOB Point Carrier Ship Service Date Scheduled MELISSA NET 30 Origin UPS Next Day Air 03/20/2023
Item
# Type Number Description Unit Price
Qty
Ordered Total Price
1 Kit KT2210 PFD TYPE V PACKAGE $250.00 20 ea $ 5,000.00 2 Sale PF4026R NRS 2022 RAPID RESCUER RED $0.00 20 ea $ 0.00 3 Sale KN2556OR NRS PILOT KNIFE ORANGE $0.00 20 ea $ 0.00 4 Sale WH7905 WHISTLE-RESCUE 3 LOGO WITH COIL $0.00 20 ea $ 0.00 5 Sale HL7050HVL/XL RQ3 STORM PRO HELMET HI VIS

LARGE/XLARGE
$32.00 20 ea $ 640.00
6 Shipping Freight Freight Out $256.00 1 ea $ 256.00
7 Sale Tax Expense Tax Expense $521.70 1 ea $ 521.70
Total:

Subtotal:

Sales Tax:
$6,417.70
$0.00
$6,417.70
March 20, 2023 10:55:08 AM PDT Page 1 of 1
Thank you for your order.

If you have any questions please call 800-457-3728
or e-mail [email protected].

Rain For Rent
Bakersfield
4001 State Rd
Bakersfield CA 93308
United States
661-399-1724
24/7 Emergency 800-742-7246
www.rainforrent.com
Your sales person

JESSE PINTOR
REMIT PAYMENTS TO:

RAIN FOR RENT
FILE 52541
LOS ANGELES, CA 90074-2541
INVOICE Rain for Rent
3/30/2023 23-22734
112354

CITY OF PORTERVILLE

PAYMENT
DUE
PO or JOB#
1854595 4/29/2023

PLEASE PAY

ADDRESS

ADDRESS
NAME
CUSTOMER #

CUSTOMER
CONTRACT # 1169502

CITY OF PORTERVILLE

NAME CITY OF PORTERVILLE
SHIPPED TO JOBSITE:
291 N MAIN ST
PORTERVILLE CA 93257
INVOICE# INVOICE DATE
Corporation Yard
555 N Prospect St
Porterville CA 93257
$77,396.67

PHONE PHONE
Notes:

Requested by: Michael Knight
PO Number: 23-22734
QTY UOM DESCRIPTION PRODUCT # STATUS DATE
OUT
BILLED
THRU

DAYS PRICE AMOUNT TAXABLE
BILLED

1.00 EA Pump BA150E D285 Tlr Mt Diesel 0.00 $65,685.06 Y Eng Hatz 4H50TIC
1022734 SALES $65,685.06

1.00 EA Shipping/Handling 0.00 $5,158.57 Y
Freight
M240 SERVICES $5,158.57
TOTAL RENTALS:

TOTAL SALES:

TOTAL SERVICES:

SUBTOTAL:
$65,685.06
$5,158.57
$70,843.63
$0.00
TOTAL OTHER: $0.00
TAX: $6,553.04
FOR PROPER CREDIT, PLEASE INCLUDE INVOICE NUMBER ON YOUR PAYMENT.

PAST DUE AMOUNTS ARE SUBJECT TO A SERVICE CHARGE OF 1.50% CUSTOMER, (RENTEE OR BUYER as context requires), shall be deemed to accept all terms, conditions and provisions hereof upon execution of this agreement; ordering; or delivery of equipment to customer, whichever comes first.

SIGNATURE: _____________________________ DATE: ___________________ TOTAL: $77,396.67
PAYMENT TERMS: NET 30
Printed Date: 3/30/2023 Page 1 of 1

State of California

GOVERNMENT CODE
Section 8558
8558. Three conditions or degrees of emergency are established by this chapter:
(a)  “State of war emergency” means the condition that exists immediately, with or without a proclamation thereof by the Governor, whenever this state or nation is attacked by an enemy of the United States, or upon receipt by the state of a warning from the federal government indicating that an enemy attack is probable or imminent. (b)  “State of emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions such as air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, electromagnetic pulse attack, plant or animal infestation or disease, the Governor’s warning of an earthquake or volcanic prediction, or an earthquake, or other conditions, other than conditions resulting from a labor controversy or conditions causing a “state of war emergency,” which, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat, or with respect to regulated energy utilities, a sudden and severe energy shortage requires extraordinary measures beyond the authority vested in the Public Utilities Commission.
(c)  (1)  “Local emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the territorial limits of a county, city and county, or city, caused by conditions such as air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, deenergization event, electromagnetic pulse attack, plant or animal infestation or disease, the Governor’s warning of an earthquake or volcanic prediction, or an earthquake, or other conditions, other than conditions resulting from a labor controversy, which are or are likely to be beyond the control of the services, personnel, equipment, and facilities of that political subdivision and require the combined forces of other political subdivisions to combat, or with respect to regulated energy utilities, a sudden and severe energy shortage or deenergization event that requires extraordinary measures beyond the authority vested in the Public Utilities Commission. (2)  A local emergency proclaimed as the result of a deenergization event does not trigger the electric utility obligations set forth in Public Utilities Commission Decision 19-07-015 or its successor decisions as related to deenergization events. A local emergency proclaimed as the result of a deenergization event does not alter the electric utilities’ Public Utilities Commission-approved cost-recovery mechanisms for their own costs associated with deenergization events.
(Amended by Stats. 2022, Ch. 537, Sec. 1. (SB 468) Effective January 1, 2023.)