3.5.3 Force Majeure.
3.5.3.1 Neither City nor Shelter Operator shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Shelter Operator and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
3.5.3.2 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Shelter Operator to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
3.5.4 Compliance with Laws. Shelter Operator shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Shelter Operator shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.5.5 Insurance.
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3.5.5.1 Time for Compliance. Prior to City making any payments to Shelter Operator under this Agreement, Shelter Operator shall provide evidence satisfactory to the City that it has secured all insurance required under this Section 3.7.5. In addition, Shelter Operator shall not allow any subcontractor to commence work on any subcontract for Services until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to suspend this Agreement, if during the Initial Term, or terminate this Agreement, if during any Extended Term, for cause pursuant to Section .
3.5.5.2 Types of Insurance Required. Prior to City making any payments to Shelter Operator under this Agreement and without limiting the indemnity provisions of the Agreement, the Shelter Operator, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Shelter Operator agrees to amend, supplement or endorse the policies to do so. (A) General Liability: General Liability “occurrence” coverage in the minimum amount of $2,000,000 combined single limit (CSL) bodily injury & property damage each occurrence and $4,000,000 aggregate, including personal injury, broad form property damage, products/completed operations, and broad form blanket contractual. (B) Automobile Liability Insurance: Automobile Liability Insurance in the minimum amount of $1,000,000 CSL bodily injury and property damage, including owned, non-owned, and hired automobiles. Also, to include uninsured/underinsured motorists coverage in the minimum amount of $100,000 when there are owned vehicles. (C) Workers’ Compensation: Workers’ Compensation
coverage in full compliance with California statutory requirements for all employees of Shelter Operator and Employer’s Liability Insurance in the minimum amount of $1,000,000.
3.5.5.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Shelter Operator shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) All insurance required will be primary coverages with respect to the City and any insurance or self-insurance maintained by the City will be excess of the Shelter Operator’s insurance coverage and will not contribute to it. (B) City must be notified immediately if any aggregate insurance limit is exceeded. Additional coverage must be purchased to meet the requirements. (C) Additional Insureds.
(1) The City of Santa Paula, its council, boards, agencies, departments, districts, officers, employees, agents, and volunteers are to be named as Additional Insured as
respects work done by the Shelter Operator under the
terms of this Agreement on all policies required (except Workers' Compensation).
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(2) The County of Ventura, its boards, agencies,
departments, districts, officers, employees, agents, and volunteers are to be named as Additional Insured as
respects work done by the Shelter Operator under the
terms of this Agreement on all policies required (except Workers' Compensation).
(3) The City of Fillmore, its council, boards, agencies, departments, districts, officers, employees, agents, and volunteers are to be named as Additional Insured as
respects work done by the Shelter Operator under the
terms of this Agreement on all policies required (except Workers' Compensation).
(D) Shelter Operator agrees to waive all rights of subrogation against City of Santa Paula, City of Fillmore, the County of Ventura (“Funding Parties”), their councils, boards, agencies, departments, officers, employees, agents, and volunteers for losses arising from work performed by Shelter Operator under the terms of this Agreement as it pertains to Workers’ Compensation.
(E) Policies will not be canceled, non-renewed, or reduced in scope of coverage until after sixty (60) days written notice has been given to the City’s Risk Management Division.
(F) Shelter Operator agrees to provide City with the following insurance documents on or before the effective date of this Agreement:
(1) Certificates of Insurance for all required coverage. (2) Additional Insured endorsements.
(3) Waiver of Subrogation endorsements (a.k.a.: Waiver of Transfer Rights of Recovery Against Others, Waiver of
Our Right to Recover from Others) as it pertains to
Workers’ Compensation.
(4) Shelter Operator’s obligation to provide evidence of insurance coverage may be wholly satisfied by providing a certificate of self-insurance.
3.5.5.4 Evidence of Continuous Coverage. At least fifteen (15 days) prior to the expiration of each required policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Shelter Operator shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.5.5.5 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best’s rating of no less than A:VII and authorized to 519
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transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.5.5.6 Enforcement of Agreement Provisions (non estoppel). Shelter Operator acknowledges and agrees that actual or alleged failure on the part of the City to inform Shelter Operator of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.5.5.7 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
3.5.5.8 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Shelter Operator, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Shelter Operator pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Shelter Operator or City will withhold amounts sufficient to pay premium from Shelter Operator payments. In the alternative, City may cancel this Agreement.
(C) The City may require the Shelter Operator to provide complete copies of all insurance policies in effect for the duration of the term of this Agreement. (D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Shelter Operator from liability in excess of such coverage, nor shall it limit the Shelter Operator’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. (F) Shelter Operator shall report to the City, in addition to Shelter Operator’s insurer, any and all insurance claims submitted by Shelter Operator in connection with the Services under this Agreement.
3.5.5.9 Insurance for Subcontractors. Shelter Operator shall include all subcontractors engaged in any work for Shelter Operator relating to this Agreement as additional insureds under the Shelter Operator’s policies, or the Shelter Operator shall be responsible for causing subcontractors to purchase the appropriate insurance in compliance with the terms of 520
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these Insurance Requirements, including adding the City of Santa Paula, City of Fillmore, and County of Ventura, their councils, boards, officials, officers, employees, agents, and volunteers as additional insureds to the subcontractor’s policies. Shelter Operator shall not allow any subcontractor to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subcontractor’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Shelter Operator shall provide satisfactory evidence of compliance with this section upon request of the City.
3.6 Indemnification. To the fullest extent permitted by law, Shelter Operator shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Shelter Operator, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Shelter Operator’s Services including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Shelter Operator’s obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Shelter Operator, the City, its officials, officers, employees, agents, or volunteers.
3.7 General Provisions.
3.7.1 Reports. Shelter Operator shall periodically prepare and submit to the City’s Representative reports concerning the performance of the Services required by this Agreement, or as the City’s Representative shall require.
3.7.2 Records. Shelter Operator shall maintain complete and accurate records with respect to all costs and expenses incurred to operate the Shelter. All such records shall be clearly identifiable. Shelter Operator shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created in furtherance Shelter Operator’s provision of the Services. Shelter Operator shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.7.3 Independent Contractors and Subcontracting.
3.7.3.1 Use of Contractors. Shelter Operator is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). To ensure that Shelter Operator is in compliance with the California Labor Code, Shelter Operator shall only utilize its employees to provide the Services. Shelter Operator may not provide the services through any independent contractor, subcontractor or subcontractor (“Subcontractor(s)”) unless approved by the City as set forth in Section 3.7.2.2 below. Shelter Operator represents and warrants that all personnel who perform the Services on Shelter Operator’s behalf are Shelter Operator’s employees, and that Shelter Operator complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
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3.7.3.2 Prior Approval Required. Shelter Operator shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Shelter Operator to use a Subcontractor, Shelter Operator shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subcontractors without the City’s prior written consent.
3.7.4 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Shelter Operator: Spirit of Santa Paula
1498 E. Harvard Blvd.
Santa Paula, California 93060
ATTN: Executive Director
City: City of Santa Paula
970 Ventura Street
Santa Paula, CA 93060
ATTN: James Mason, Community & Economic
Development Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.5 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.7.6 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.7.7 Attorneys’ Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all costs of such action.
3.7.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Ventura County.
3.7.9 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.10 Assignment or Transfer. Shelter Operator shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer 522
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without such consent shall be void and without legal effect and shall constitute grounds for termination. Shelter Operator shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.7.11 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Shelter Operator include all personnel, employees, agents, and subcontractors of Shelter Operator, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.7.12 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.13 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.7.14 Disclaimer of Relationships. Nothing contained in this Agreement will be deemed or construed to create any relationship of third party beneficiary, principal and agent, limited or general partnership, joint venture, or any association or relationship between the Parties. For the avoidance of doubt, this Agreement does not make Shelter Operator a third-party beneficiary of the Funding Agreement attached as Exhibit A.
3.7.15 No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Shelter Operator and no other parties are intended to be direct or incidental beneficiaries of this Agreement, and no third party shall have any right in, under, or to this Agreement.
3.7.16 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.7.17 Prohibited Interests. Shelter Operator maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Shelter Operator, to solicit or secure this Agreement. Shelter Operator warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Shelter Operator, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Shelter Operator further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of 523
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City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.7.18 Authority to Enter Agreement. Shelter Operator has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.7.19 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7.20 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination. [SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO OPERATING AGREEMENT
BETWEEN THE CITY OF SANTA PAULA AND
SPIRIT OF SANTA PAULA
IN WITNESS WHEREOF, each of the Parties has caused this Contract to be executed on the day and year first above written.
CITY OF SANTA PAULA SPIRIT OF SANTA PAULA
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Dan Singer
City Manager
Approved as to Form:
_____________________________________
Monica Castillo
Interim City Attorney
Attested By:
Julie Latshaw, City Clerk
525
EXHIBIT "A"
FUNDING AGREEMENT
526
527
528
529
530
531
532
533
534
535
536
537
538
539
540
541
65283.00001\41516575.1
Exhibit “B” OPERATING AGREEMENT
EXHIBIT “B”
SCOPE OF SERVICES
Operating Requirements
1. Emergency Shelter: Shelter Operator shall provide a safe place for homeless individuals to stay and stabilize while partnering with service providers to develop a plan for safe, secure, and permanent housing. This includes access to 49 beds, linens, blankets, and personal storage for belongings year round. The primary purpose of the Shelter beyond temporary sheltering is to leverage community resources that will assist homeless individuals in quickly securing and moving into suitable permanent housing and in achieving long-term housing stability. Shelter Operator shall participate in the Ventura County Continuum of Care’s coordinated entry system, Pathways to Home, and will enter all Shelter occupants into the Ventura County Homeless Management Information System. Shelter Operator shall operate and develop the appropriate individualized case plan for each Shelter occupant that is client-centered, culturally, and linguistically appropriate, trauma-informed, and sensitive to the wide ranges of needs of the Shelter occupants, with the goal to transition the Shelter occupant to stable and affordable housing.
2. Meals and Nutrition: Shelter Operator shall offer regular meals that meet basic nutritional requirements for all shelter residents. This may include breakfast, lunch, and dinner, along with snacks and access to drinking water throughout the day.
3. Hygiene Facilities: Shelter Operator shall provide clean and accessible bathrooms, showers, and laundry facilities for residents to maintain personal hygiene; supply basic toiletries such as soap, shampoo, toothpaste, and towels.
4. Case Management: Shelter Operator Shall assign dedicated case managers to assist residents in accessing appropriate services and resources. This may include helping them find permanent housing, employment, medical care, mental health support, substance abuse treatment, and other necessary services. Shelter Operator shall develop a personalized housing plan for each resident and will assist with housing applications. Shelter Operator shall support residents in managing their own lives within the scope of their resources and abilities. Case management services shall include the development of an individualized service plan based on needs, circumstances, and market conditions, focused on helping individuals find and keep stable housing and linkages to other community-based support services.
5. Medical Assistance: Shelter Operator shall collaborate with healthcare providers to offer on-site medical clinics, regular health screenings, vaccinations, and referrals for other medical needs; ensure residents have access to medications and health education.
6. Mental Health Support: Shelter Operator shall provide access to mental health professionals who can offer counseling, therapy, and support groups to address mental health challenges faced by shelter residents; collaborate with community organizations for additional mental health resources.
7. Substance Abuse Programs: Shelter Operator shall develop partnerships with substance abuse treatment centers and support groups to offer counseling, detoxification services, and access to rehabilitation programs for individuals struggling with substance abuse issues.
8. Education and Employment Assistance: Shelter Operator shall establish programs that 542
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Exhibit “B” OPERATING AGREEMENT
help individuals acquire new skills, provide job readiness training, and offer assistance with job searches, resume building, and interview preparation; facilitate access to educational resources and connect residents to educational opportunities.
9. Financial Assistance: Shelter Operator shall assist residents in accessing financial benefits, such as unemployment insurance, social security support, or other government assistance programs; provide guidance and support with budgeting and financial planning to increase each Shelter occupant's income, including disability income and other public benefits for each participant.
10. Recreational and Social Activities: Shelter Operator shall organize recreational programs, such as sports, hobbies, and group activities, to foster a sense of community and improve residents' overall well-being; coordinate with volunteers and community organizations to provide additional support and engagement opportunities.
11. Family Support: Shelter Operator shall offer specialized services and support for homeless families with children, including childcare, parenting classes, school enrollment assistance, and family counseling.
12. Transitional Housing and Permanent Housing Placement: Shelter Operator shall develop partnerships with landlords, housing authorities, and non-profit organizations to assist residents in transitioning from the shelter to safe, affordable, and permanent housing options; provide resources for rental assistance and support with housing applications; establish a goal of connecting at least 75% of the Shelter occupants with stable housing or “positive” exits to other acceptable living arrangements such as residential treatment, transitional housing, reuniting with relatives within 12 months.
13. Outreach and Prevention Services: Shelter Operator shall collaborate with local agencies, community groups, and volunteers to conduct outreach efforts, identifying individuals who are at risk of homelessness and providing prevention services to help them maintain their housing stability.
14. Community Partnerships and Coordination: Shelter Operator shall refer families with children to the County of Ventura Human Services Agency for alternative sheltering options such as CalWORKs Housing Support Program and other transitional housing options within one business day of admission to shelter; establish ongoing collaborations with governmental organizations, non-profit agencies, faith-based groups, healthcare providers, and other stakeholders to create a continuum of care and ensure a comprehensive approach.
15. Operations Management. Shelter Operator shall manage program resources, including reasonable pursuit of grants to offset financial contributions from the Parties to this Agreement, to achieve cost efficiencies and effectiveness and to facilitate services to as many Shelter occupants as feasible; expand the capacity to serve Shelter occupants by facilitating the delivery of services of multiple service providers. Seek additional resources to augment emergency shelter and housing opportunities for Shelter occupants.
16. Occupancy. Shelter Operator shall maintain an overall occupancy rate at the Shelter of 70% of the total available bed capacity.
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Exhibit “C” OPERATING AGREEMENT
EXHIBIT “C”
FY 2023-2024 Budget
544
To: Honorable Mayor and Members of the City Council
From: Dan Singer, City Manager
Subject: CITY ATTORNEY CONTRACT SERVICES
Date: September 6, 2023
Agenda Item: 10.L
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Authorize the City Manager to enter into a Legal Services Agreement with Best Best & Krieger, LLP for ongoing attorney services.
BACKGROUND:
Santa Paula has historically achieved legal advice and services through a contract relationship with an outside firm, most recently with Hogan & Jenkins who then merged with Best Best & Krieger (BB&K). This allows the City to receive legal assistance from an entire team of experts, rather than the model of in-house legal counsel where special services are then farmed out. Services are then billed on an hourly basis with costs varying depending on the type of legal service offered.
Most cities who outsource their legal services do so under a retainer model to create greater certainty around annual costs and to ensure an attorney is regularly serving City Council meetings, reviewing Council materials, and creating ordinances, contracts and resolutions in accordance with state and local laws, policies and best practices. When Hogan & Jenkins was acquired by Best Best & Krieger, they continued to serve the City with competitive rates and an even more expanded cache of legal experts.
ANALYSIS:
Coming into the current fiscal year, the firm sought to adjust their hourly rates, which had stayed steady since the merge in 2018. As a result, staff began discussions about moving to a retainer-type model with BB&K. That model, as well as other options, were discussed with the City Council during budget hearings in June 2023. The result of those discussions was to move to a “capped retainer” whereby the City would receive 80 hours per month of general attorney services for a set amount, essentially representing a slight discount below regular hourly rates. The adopted budget now anticipates the capped retainer approach.
Exhibit A to this report contains a new Legal Services Agreement (the “Agreement”) between the City of Santa Paula and Best Best & Krieger, LLP. The Term of the Agreement commences on September 1, 2023 and runs until either party terminates the agreement. The Agreement describes all general services afforded the City under the contract, as well as 545
special legal services and trainings, as explicitly requested by the City for additional or higher fees (see Exhibit A and B to the Agreement). The Agreement also calls for an annual review of rates and services to be performed between the two parties as well as an annual cost-ofliving adjustment.
At this time, Council is asked to review the Agreement and direct the City Manager to execute the contract.
STRATEGIC PLAN:
While this item is not an objective in Council's two-year Strategic Plan, it does support Council's Strategic Plan Vision of making Santa Paula an innovative and collaborative municipal organization delivering exceptional services that enhance a sustainable and vibrant community where residents, families, and businesses can thrive.
FISCAL IMPACTS:
The adopted FY 23-24 and FY 24-25 budgets have sufficient funds to support the capped retainer Agreement with BB&K, in addition to other specialized services which may be requested from time to time. Should legal costs exceed the adopted budget, staff will return to Council with a budget amendment and an explanation as to the cause of the overage.
OPTIONS:
Alternatively, Council has the following options available:
1. Direct staff to return to a non-retainer, per hour, relationship. Doing so would result in a slightly higher hourly rate; or
2. Do not enter into an agreement with BB&K; or
3. Provide further direction to staff.
ATTACHMENTS:
City of Santa Paula LSA FINAL DRAFT Sept 2023-c1.docx
546
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LEGAL SERVICES AGREEMENT
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
BETWEEN
THE CITY OF SANTA PAULA
AND
BEST BEST & KRIEGER LLP
1. PARTIES AND DATE
This Agreement is made and entered into as of the ______ day of _________, 2023, by and between the City of Santa Paula, a general law city (“Client” or “City”), and Best Best & Krieger LLP, a limited liability partnership engaged in the practice of law (“BB&K”).
2. RECITALS
2.1 Client wishes to engage the services of BB&K as its City Attorney to perform all necessary legal services for the Client on the terms set forth below.
3. TERMS
3.1 Term. The term of this Agreement shall commence on September 1, 2023 and shall continue in full force and effect until terminated in accordance with Section 3.13.
3.2 Scope of Services. BB&K shall serve as City Attorney and shall perform legal services (“Services”) as may be required from time to time by the Client as set forth by this Agreement, unless otherwise agreed to by the Client and BB&K. As part of the Services to be performed hereunder, BB&K shall be responsible for the following:
3.2.1 Preparation for, and attendance at, regular meetings of the Client;
3.2.2 Provision of legal counsel at such other meetings as directed by the Client;
3.2.3 Preparation or review of Client ordinances and resolutions, together with such staff reports, orders, agreements, forms, notices, declarations, certificates, deeds, leases and other documents as requested by the Client;
3.2.4 Rendering to the officers and employees of the Client legal advice and opinions on all legal matters affecting the Client, including new legislation and court decisions, as directed by the Client;
3.2.5 Researching and interpreting laws, court decisions and other legal authorities in order to prepare legal opinions and to advise the Client on legal matters pertaining to Client operations, as directed by the Client;
3.2.6 Performing legal work pertaining to property acquisition, property disposal, public improvements, public rights-of-way and easements, as directed by the Client; 547
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3.2.7 Responding to inquiries and review for legal sufficiency ordinances, resolutions, contracts, and administrative and personnel matters, as directed by the Client;
3.2.8 Representing and assisting on litigation matters, as directed by the Client.
Such services shall include, but shall not be limited to, the preparation for and making of appearances, including preparing pleadings and petitions, making oral presentations, and preparing answers, briefs or other documents on behalf of the Client, and any officer or employee of the Client, in all federal and state courts of this State, and alternative dispute resolution officer, and before any governmental board or commission, including reviewing, defending or assisting any insurer of the Client or its agents or attorneys with respect to any lawsuit filed against the Client or any officer or employee thereof, for money or damages.
3.3 Additional Services for an Additional Fee.
3.3.1 BB&K Trainings. Client may request BB&K trainings on an as-needed basis. BB&K offers a variety of trainings to public agency and private business leadership and staff on topics required by law, as well as preventative and educational legal topics. The trainings are interactive and can be given onsite, via live webinar or virtual on-demand. Some of our most popular trainings include AB 1234 Ethics, Workplace Civility and Sexual Harassment Avoidance Training, The Brown Act “Open Meetings Law,” Crystalizing Your Agency’s CPRA Policies & Procedures and SB 1343 Sexual Harassment Avoidance Training for Non-Supervisors. Pricing will vary depending on format and will be provided upon request.
3.3.2 BB&K’s Election Law Center Subscription Services. Participants in BB&K’s Election Law Center will be given access to up-to-date election document templates, including resolutions and other mandatory election documents. The annual subscription also gives participants access to BB&K’s Election Law Center hotline, which participants can use for guidance on day-to-day election law questions that arise during campaign and election season.
3.4 Designated City Attorney. Monica Castillo shall be designated as Interim City Attorney unless and until such time the City Council has appointed her City Attorney (both “Interim City Attorney” and “City Attorney” are hereafter referred to as “City Attorney”). The City Attorney shall be responsible for the performance of all Services under this Agreement, including the supervision of Services performed by other members of BB&K. Henry Castillo shall be designated as Assistant City Attorney, and shall attend such meetings as may be requested by the City Attorney. Monica Castillo shall be designated as Successor Agency Counsel. No change in these assignments shall be made without the consent of the Client.
3.5 Time of Performance. The Services of BB&K shall be performed expeditiously in the time frames directed by the Client.
3.6 Assistance. The Client agrees to provide all information and documents necessary for the attorneys at BB&K to perform their obligations under this Agreement.
3.7 Independent Contractor. BB&K shall perform all legal services required under this Agreement as an independent contractor of the Client and shall remain, at all times as to the Client, a wholly independent contractor with only such obligations as are required under this Agreement.
Neither the Client, nor any of its employees, shall have any control over the manner, mode or 548
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means by which BB&K, its agents or employees, render the legal services required under this Agreement, except as otherwise set forth. The Client shall have no voice in the selection, discharge, supervision or control of BB&K’s employees, representatives or agents, or in fixing their number, compensation, or hours of service.
3.8 Fees and Costs. BB&K shall render and bill for legal services in the following categories and at rates set forth in Exhibit “A” and in accordance with the BB&K Billing Policies set forth in Exhibit “D”, both of which are attached hereto and incorporated herein by reference.
In addition, the Client shall reimburse BB&K for reasonable and necessary expenses incurred by it in the performance of the Services under this Agreement. Unless expressly stated otherwise, authorized reimbursable expenses shall include, but are not limited to, printing and copying expenses, mileage expenses at the rate allowed by the Internal Revenue Service, toll road expenses, long distance telephone and facsimile tolls, computerized research time (e.g. Lexis or Westlaw), research services performed by BB&K’s library staff, extraordinary mail or delivery costs (e.g. courier, overnight and express delivery), court fees and similar costs relating to the Services that are generally chargeable to a client. However, no separate charge shall be made by BB&K for secretarial or word processing services.
3.9 Billing. BB&K shall submit monthly to the Client a detailed statement of account for Services. The Client shall review BB&K’s monthly statements and pay BB&K for Services rendered and costs incurred, as provided for in this Agreement, on a monthly basis.
3.10 Annual Reviews. The Client and BB&K agree that a review of performance and the compensation amounts referenced in this Agreement should occur at least annually.
3.11 Insurance. BB&K carries errors and omissions insurance with Lloyd’s of London.
After a standard deductible, this insurance provides coverage beyond what is required by the State of California. A declaration page containing information about BB&K’s errors and omissions insurance policy is available upon Client’s request.
3.12 Attorney-Client Privilege. Confidential communication between the Client and BB&K shall be covered by the attorney-client privilege. As used in this article, “confidential communication” means information transmitted between the Client and BB&K in the course of the relationship covered by this Agreement and in confidence by a means that, so far as the Client is aware, discloses the information to no third persons other than those who are present to further the interests of the Client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which BB&K is consulted, and includes any legal opinion formed and advice given by BB&K in the course of this relationship.
3.13 Termination of Agreement and Legal Services. This Agreement and the Services rendered under it may be terminated at any time upon thirty (30) days’ prior written notice from either party, with or without cause. In the event of such termination, BB&K shall be paid for all Services authorized by the Client and performed up through and including the effective date of termination. BB&K shall also be reimbursed for all costs associated with transitioning any files or other data or documents to a new law firm or returning them to the Client. 549
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3.14 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.15 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Ventura County.
3.16 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both parties.
3.17 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise.
3.18 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.19 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.20 Delivery of Notices. All notices permitted or required under this Agreement notices shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Client: City of Santa Paula
970 E. Ventura Street
Santa Paula, CA 93060
Attention: City Manager
BB&K: Best Best & Krieger LLP
300 South Grand, 25th Floor
Los Angeles, CA 90071
Attention: Monica Castillo
3.21 Indemnification.
(A) BB&K agrees to indemnify Client, its officers, employees and agents against, and will hold and save each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein “claims or liabilities”) that may be asserted or claimed by any person, firm or entity arising from the negligent acts or omissions of BB&K hereunder, or arising from BB&K’s negligent performance of any term, provision, covenant or condition of this Agreement, except to the extent 550
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such claims or liabilities arise from the negligence or willful misconduct of Client, its officers, agents or employees.
(B) Client acknowledges BB&K is being appointed as City Attorney pursuant to the authority of Government Code Section 36505, and has the authority of that office. Accordingly, the Client is responsible pursuant to Government Code Section 825 for providing a defense for the City Attorney for actions within the scope of its engagement hereunder. Therefore, Client agrees to undertake its statutory duty and indemnify BB&K, its officers, employees and agents against and will hold and save each of them harmless from, any and all claims or liabilities that may be asserted or claims by any person, firm or entity arising out of or in connection with the work, operations or activities of BB&K within the course and scope of its performance hereunder, but nothing herein shall require Client to indemnify BB&K for liability arising from its own negligence or alleged negligence. In connection herewith:
(i) Client will promptly provide a defense and pay any judgment rendered against the Client, its officers, agency or employees for any such claims or liabilities arising out of or in connection with such work, operations or activities of Client hereunder; and (ii) In the event BB&K, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against City for such damages or other claims solely arising out of or in connection with the work, operation, or activities of City hereunder, City agrees to pay to BB&K, its officers, agents or employees any and all costs and expenses incurred by BB&K, its officers, agents or employees in such action or proceeding, including, but not limited to, legal costs and attorneys’ fees.
IN WITNESS WHEREOF, the Client and BB&K have executed this Agreement for City Attorney Services as of the date first written above.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
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SIGNATURE PAGE TO
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
BETWEEN
THE CITY OF SANTA PAULA
AND
BEST BEST & KRIEGER LLP
CITY OF SANTA PAULA:
By:
Name: Dan Singer
Title: City Manager
Date: _____________________, 2023
ATTEST:
By:
Name: Julie Latshaw
Title: City Clerk
Date: ______________________, 2023
BEST BEST & KRIEGER LLP:
By:
Name: Scott H. Campbell
Title: Partner
Date: ______________________, 2023
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65283.00001\41074141.4
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EXHIBIT A
TO
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
BETWEEN
THE CITY OF SANTA PAULA
AND
BEST BEST & KRIEGER LLP
BILLING ARRANGEMENTS
B
1. Basic Legal Services - Description. Basic legal services shall include all services provided to Client that are not otherwise specifically identified below as either Special Legal Services, Third Party Reimbursable Legal Services, or Public Finance Legal Services (“Basic Legal Services”).
For Basic Legal Services, the Client shall pay a flat retainer amount of Seventeen Thousand Six Hundred Dollars ($17,600.00) per month for up to a maximum of 80 hours. After 80 hours, the hourly rate will be:
Attorneys $235
Paralegals, Law Clerks, Analysts $170
If the actual hours worked under the monthly retainer goes above or below the target of 80 hours over multiple months, BBK would offer the City an adjusted retainer option to properly reflect the current pace of work going forward, for the City’s approval. BBK defines a material variance as 10% for 6 months or more in a fiscal period.
This retainer covers fees only. Billable costs will be charged separately. Travel costs will not be billed to the City.
2. Public Records Act / Advanced Records Center (ARC).
To handle the increased Public Records Requests, we offer our new Advanced Records Center (ARC) team to handle this work at a low, competitive rate. With ARC, BB&K combines its legal acumen and experience with cutting-edge technology to provide comprehensive and cost-effective support for non-routine records-related matters. Specifically, the ARC team will assist the City with non-routine Public Records Act processing and policy drafting as needed. For this service, the blended hourly rate will be:
Attorneys $195
Paralegals, Law Clerks, Analysts $195
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3. Special Legal Services - Description. Special Legal Services shall include the following types of services:
A. Litigation and formal administrative or other adjudicatory hearing matters B. Labor relations and employment matters
C. Non-routine real estate matters (e.g. CC&R’s, deed or title work) D. Land acquisition and disposal matters (including pre-condemnation) E. Successor Agency and housing matters
F. Public construction disputes
G. Non-routine contract negotiation matters (including non-BB&K model agreements and franchise agreements)
H. Non-routine election law matters, including election law litigation.
J. Other matters mutually agreed upon between BBK and the City Manager These Special Legal Services will be billed at the following hourly rates:
Partners and Of Counsel $295
Associates $275
Paralegals, Law Clerks, Analysts $180
4. Complex Legal Services - Description. Complex Legal Services shall include the following types of highly specialized services:
A. Non-routine land use and development matters (including general plan updates, Williamson Act issues, annexations and development agreements) B. Environmental matters (e.g. CEQA, NEPA, endangered species) C. Water law matters (e.g. water rights & quality)
D. Tax and ERISA related matters, Employee and Retirement Benefits E. Taxes, fees and charges matters (e.g. Prop. 218 & Mitigation Fee Act) F. Toxic substances matters (e.g. CERCLA, RCRA)
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G. Complex public utility matters (e.g. electric, natural gas, telecommunications, water, rail or transit that involve state or federal regulatory issues) H. Renewable energy and energy efficiency project contracts and power purchase agreements
I. Intergovernmental Relations and Advocacy efforts (e.g. legislative and regulatory representation) at the federal and state level.
J. Other matters mutually agreed upon between BBK and the City Manager.
These Complex Legal Services will be billed at the following hourly rates:
Partners and Of Counsel $340
Associates $275
Paralegals, Law Clerks, Analysts $180
5. Agreement Regarding Rate Categories. If BB&K believes that a matter falls within the Special Counsel Legal Services, Complex Legal Services, Third Party Reimbursable Legal Services, or Public Finance Legal Services rate categories, BB&K shall seek approval from the City Manager or his/her designee. The City Manager’s or her designee’s approval of such a request from BB&K shall not be unreasonably withheld.
6. Annual Adjustments.
All rates and retainer amounts will be adjusted annually using the cost of living index. At the start of the Client’s fiscal year, July 1, 2024, and every July 1st thereafter during the term of this Agreement, rates and amounts shall be increased for the change in the cost of living for the most recently published twelve (12) month period, as shown by the U.S. Department of Labor in its All Urban Consumers Index set forth Los Angeles-Long Beach-Anaheim, CA area (monthly); provided, however, that such adjustment shall never be lower than zero percent (0%) nor more than four percent (4%). In addition to the automatic rate increases, either BB&K or the Client may initiate consideration of a rate increase at any time.
7. Costs.
Travel costs are not charged to the City. BB&K does not charge for routine word processing, legal assistants, clerical costs, administrative support staff, secretarial costs, and office costs, including telephone and fax charges. Reimbursement of costs advanced by BB&K on behalf of the City as well as other expenses will be billed at actual cost. These currently include, but are not limited to, postage, messenger/delivery costs, actual expenses for being away from our offices on City business; postage; legal research; and any cost of printing or reproducing documents, photographs, electronically stored information (ESI) if needed, or other items necessary for legal representation.
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B-1
EXHIBIT B
TO
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
BETWEEN
THE CITY OF SANTA PAULA
AND
BEST BEST & KRIEGER LLP
THIRD PARTY REIMBURSABLE BILLING POLICIES
1. Third Party Reimbursable Legal Services - Description. Third Party Reimbursable Legal Services shall include legal services provided to the City for which the City receives reimbursement from a developer or other third party. These reimbursable legal services include, but are not limited to, negotiation and review of development agreements, planning entitlements, review of CC&Rs; establishment of financing districts (i.e., Community Facilities Districts; Assessment Districts; Landscape and Lighting Maintenance Districts); the processing of land use/environmental projects for which the City is entitled to reimbursement, as well as defending any challenges to project entitlements or any dispute or litigation related to such reimbursable legal services.
2. Third Party Reimbursable Legal Services - Rates. Except for Third Party Reimbursable Legal Services that have been contractually established between City and a third party as of the commencement date of this Agreement (i.e. July 1, 2024) (“Existing Third Party Reimbursable Legal Services”), the Client shall pay for Third Party Reimbursable Legal Services at the following hourly rates:
Partners and Of Counsel $450
Associates $360
Paralegals, Law Clerks, Analysts $190
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EXHIBIT C
TO
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
BETWEEN
THE CITY OF SANTA PAULA
AND
BEST BEST & KRIEGER LLP
PUBLIC FINANCE & BOND BILLING POLICIES
1. Public Finance & Bond Rates. BB&K will provide bond counsel, special counsel or disclosure counsel services at the request of the Client. Such bond counsel and special counsel services include the preparation of all legislative approvals and legal documentation relating to the appropriate sale and delivery of the bonds, notes or other obligations. BB&K will also prepare such closing certificates and legal opinions necessary for the delivery of the bonds. As disclosure counsel, we will prepare the disclosure documents for the Client and conduct the necessary due diligence related to the transaction. Our fees will be determined based upon the type of financing and the expected involvement of the attorneys involved. We will provide the Client with a detailed description of our services and our fees and reimbursable costs upon the Client’s request.
Notwithstanding the foregoing, in those cases where the fees are reimbursable by a third party, at BB&K’s option it may proceed on an hourly basis and utilize the Third Party Reimbursable Legal Services category provided for in this Agreement, including with respect to services rendered for the formation of, or annexation to, a CFD (of either the City / Agency or other local public agency), as well as the negotiation and preparation of funding agreements and joint financing agreements.
Legal services related to the Client’s compliance with its continuing disclosure covenants and provide such necessary advice on the Client’s compliance shall be billed as Special Legal Services, above.
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E-1
EXHIBIT D
TO
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
BETWEEN
THE CITY OF SANTA PAULA
AND
BEST BEST & KRIEGER LLP
BB&K BILLING POLICIES
Our century of experience has shown that the attorney-client relationship works best when there is mutual understanding about fees, expenses, billing and payment terms. Therefore, this statement is intended to explain our billing policies and procedures. Clients are encouraged to discuss with us any questions they have about these policies and procedures. Clients may direct specific questions about a bill to the attorney with whom the client works or to our Accounts Receivable Department ([email protected]). Any specific billing arrangements different from those set forth below will be confirmed in a separate written agreement between the client and the firm.
INVOICE AND PAYMENT OPTIONS
Best Best & Krieger strives to meet our clients’ needs in terms of providing a wide variety of invoice types, delivery and payment options. Please indicate those needs including the preferred method of invoice delivery (Invoice via Email; or USPS). In addition, [email protected] can provide a W-9 upon request and discuss various accepted payment methods.
FEES FOR ELECTRONICALLY STORED INFORMATION (“ESI”) SUPPORT AND
STORAGE
BBK provides Electronically Stored Information (“ESI”) services for matters requiring ESI support, which are matters with a document population over 1 GB – typically litigation or threatened litigation matters. BBK provides services for basic ESI processing and storage at the following rates per month based on the number of gigabytes of data (“GB”) processed and stored:
1GB -250GB: $10 per GB
251GB - 550GB: $8 per GB
551GB - 750GB: $6 per GB
751GB - 1TB: $4 per GB
The amount BBK charges for basic processing and storage of ESI allows BBK to recover the costs of providing such services, plus a net profit for BBK. BBK believes that the rates it charges for processing and storage are lower than comparable services available from third party vendors in the market. If you wish to contract separately with a third party vendor for processing and storage costs, please notify BBK in writing. [OPTIONAL: BBK also provides advanced ESI processing services at hourly rates for personnel in its Litigation Support Group. A copy of BBK’s current rates for such services will be provided upon request.] BBK shall not incur costs for ESI support on a particular matter without first confirming by email or written correspondence with the client that the client agrees such services are necessary for the matter at hand. 558
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FEES FOR PROFESSIONAL SERVICES
Unless a flat fee is set forth in our engagement letter with a client, our fees for the legal work we will undertake will be based in substantial part on time spent by personnel in our office on that client’s behalf. In special circumstances which will be discussed with the client and agreed upon in writing, fees will be based upon the novelty or difficulty of the matter, or the time or other special limitations imposed by the client.
Hourly rates are set to reflect the skill and experience of the attorney or other legal personnel rendering services on the client’s behalf. All legal services are billed in one-tenth of an hour (0.10/hour) or six-minute increments. Our attorneys are currently billed at rates from $235 to $850 per hour, and our administrative assistants, research assistants, municipal analysts, litigation analysts, paralegals, paraprofessionals and law clerks are billed at rates from $175 to $295 per hour for work. These rates reflect the ranges in both our public and our private rates.
These hourly rates are reviewed annually to accommodate rising firm costs and to reflect changes in attorney status as lawyers attain new levels of legal experience. Any increases resulting from such reviews will be instituted automatically and will apply to each affected client, after advance notice.
Non-Attorney Personnel: BBK may employ the services of non-attorney personnel under the supervision of a BBK attorney in order to perform services called for in the legal services agreement. The most common non-attorney personnel utilized are paralegals. Other types of nonattorney personnel include, but are not limited to, case clerks, litigation analysts, and specialty consultants. The client agrees that BBK may use such non-attorney personnel to perform its services when it is reasonably necessary in the judgment of the responsible BBK attorney. Hourly fees for non-attorney personnel will be charged at the rate then in effect for such personnel. A copy of BBK’ s current rates and titles for non-attorney personnel will be provided upon request.
FEES FOR OTHER SERVICES, COSTS AND EXPENSES
We attempt to serve all our clients with the most effective support systems available.
Therefore, in addition to fees for professional legal services, we also charge separately for some other services and expenses to the extent of their use by individual clients. These charges include but are not limited to, mileage at the current IRS approved rate per mile, extraordinary telephone and document delivery charges, copying charges, computerized research, court filing fees and other court-related expenditures including court reporter and transcription fees. No separate charge is made for secretarial or word processing services; those costs are included within the above hourly rates.
We may need to advance costs and incur expenses on your behalf on an ongoing basis.
These items are separate and apart from attorneys’ fees and, as they are out-of-pocket charges, we need to have sufficient funds on hand from you to pay them when due. We will advise the client from time to time when we expect items of significant cost to be incurred, and it is required that the client send us advances to cover those costs before they are due.
ADVANCE DEPOSIT TOWARD FEES AND COSTS
Because new client matters involve both a substantial undertaking by our firm and the establishment of client credit with our accounting office, we require an advance payment from clients. The amount of this advance deposit is determined on a case-by-case basis discussed first with the client, and is specified in our engagement letter. 559
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Upon receipt, the advance deposit will be deposited into the firm’s client trust account.
Our monthly billings will reflect such applications of the advance deposit to costs and not to attorney’s fees (unless otherwise noted in our accompanying engagement letter). At the end of engagement, we will apply any remaining balance first to costs and then to fees. We also reserve the right to require increases or renewals of these advanced deposits.
By signing the initial engagement letter, each client is agreeing that trust account balances may be withdrawn and applied to costs as they are incurred and to our billings, when we issue our invoice to the client. If we succeed in resolving your matter before the amounts deposited are used, any balance will be promptly refunded.
MONTHLY INVOICES AND PAYMENT
Best Best & Krieger LLP provides our clients with monthly invoices for legal services performed and expenses incurred. Invoices are due and payable upon receipt.
Each monthly invoice reflects both professional and other fees for services rendered through the end of the prior month, as well as expenses incurred on the client’s behalf that have been processed by the end of the prior month. Processing of some expenses is delayed until the next month and billed thereafter.
Our fees are not contingent upon any aspect of the matter and are due upon receipt. All billings are due and payable within ten (10) days of presentation unless the full amount is covered by the balance of an advance held in our trust account.
It is our policy to treat every question about a bill promptly and fairly. It is also our policy that if a client does not pay an invoice within 60 days of mailing, we assume the client is, for whatever reason, refusing to pay. We reserve the right to terminate our engagement and withdraw as attorney of record whenever our invoices are not paid. If an invoice is 60 days late, however, we may advise the client by letter that the client must pay the invoice within 14 days or the firm will take appropriate steps to withdraw as attorney of record. If the delay is caused by a problem in the invoice, we must rely upon the client to raise that with us during the 14-day period. This same policy applies to fee arrangements which require the client to replenish fee deposits or make deposits for anticipated costs.
From time to time clients have questions about the format of the bill or description of work performed. If you have any such questions, please ask us when you receive the bill so we may address them on a timely basis.
CHANGES IN FEE ARRANGEMENTS AND BUDGETS
It may be necessary under certain circumstances for a client to increase the size of required advances for fees after the commencement of our engagement on a matter and depending upon the scope of the work. For example, prior to a protracted trial or hearing, the firm may require a further advance payment to the firm’s trust account sufficient to cover expected fees. Any such changes in fee arrangements will be discussed with the client and mutually agreed in writing.
Because of the uncertainties involved, any estimates of anticipated fees that we provide at the request of a client for budgeting purposes, or otherwise, can only be an approximation of potential fees.
560
To: Honorable Mayor and Members of the City Council
From: James Mason, Community & Economic Development Director Subject:
ORDINANCE AMENDING THE DEVELOPMENT CODE TO DEFINE AND
REGULATE SMALL-SCALE ALCOHOL PRODUCTION FACILITIES
Date: September 6, 2023
Agenda Item: 11.A
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends that the City Council:
1. Conduct a public hearing to consider adopting proposed Ordinance No. 1331.
2. Introduce and waive first reading of Ordinance No. 1331 entitled, "An Ordinance of the City of Santa Paula Amending the Development Code to Define and Regulate Small-Scale Alcohol Production Facilities by Amending Sections 16.05.200 and 16.15.020, and Adding a New Section 16.58.015."
3. Direct the City Clerk to publish a summary of the proposed Ordinance five (5) days before the meeting it is to be adopted and 15 days thereafter.
Presented by: James Mason, Community & Economic Development Director BACKGROUND:
Small-scale breweries, distilleries, and brewpubs represent a growing industry that supports local economic development and local food production. Staff has been approached by several businesses and has observed the opportunities that have developed in other local communities. Recognizing this opportunity, staff has evaluated options for amending the City’s Zoning Ordinance to establish a framework to accommodate small-scale microbrewery, distillery, winery, seltzer, meadery, or cidery, which engages in production of alcoholic beverages, including a review of best practices. Staff have reviewed potential amendments to the City’s Development Code with a view to incorporating those additional related uses. A draft of the proposed City’s Development Code Amendment is attached to this report as Attachment A. This new framework will allow for these types of emerging businesses and related uses in a greater range of zones than was permitted under the previous framework. Currently the City’s Development Code only allows for large scale alcohol production in Industrial land-use designations.
ANALYSIS:
561
At the August, 22, 2023 the Planning Commission held a public hearing and approved Resolution No. 3851 recommending that the City Council approve the amendments to Sections 16.05.200 Definitions “S” and 16.15.020 Development Standards and Use Conditions and adding a new Section 16.58.015 Additional Requirements for Small-Scale Alcohol Producers. In addition, the Planning Commission recommended the following modifications to the draft ordinance:
1. Subsection (A) of Section 16.58.015 originally contained the below general standards. (5) No outdoor storage is allowed.
(9) All production, packaging and retail sales shall occur within the interior of the building.
The Commission recommended modifications to read:
(5) Outdoor storage may be allowed with the review and approval by the Community and Economic Development Director
(9) All production, packaging and retail sales may be allowed with the review and approval by the Community and Economic Development Director
These modifications were recommended based on further inquiry. Upon input provided by Dominic O'Reily of Anna's Cider and Topa Mountain Winery and review of standard operating procedures for small scale alcohol production facilities, it was concluded that both outdoor storage and outdoor operations (production, packaging and retail sales) are commonplace in the industry in commercially zoned areas. As an alcohol-related use, any operation will be required to meet the requirements of the Ventura County Environmental Health Department, State Alcohol Beverage Control and the City's requisite Conditional Use Permit and Enforcement Agreement approvals. Based on the specifics of the applicant location, adjacent land uses and controls on storage and operations will be reviewed on a case-by-case basis and the specific requirements will be reviewed and recommended by staff to the Planning Commission within the Conditional Use Permit and to City Council in the Enforcement Agreement.
2. Section 16.58.015 (B) originally titled "Additional Standards in the Commercial Zoning District" was recommended to be re-titled "Additional Standards in the Central Business District".
The City of Santa Paula in its adoption of the General Plan has committed to attracting and growing local businesses, including start-ups and other small business initiatives. There are current challenges in the commercial business environment and in order to support emerging trends and new niche businesses within the City new strategies and modifications to existing codes are warranted; nationally and regionally there has been an increase in new businesses engaged in the small -scale production of alcohol, including microbreweries, distilleries, wineries, meaderies, and cideries with associated tasting rooms. There has been growing interest from local and regional entrepreneurs to update existing regulations and allow small scale on-site fermentation and distillation facilities, along with the consumption of alcoholic beverages, in accordance with state regulations for such uses. These changes will require amendments to the Zoning Ordinance to define and regulate the new activities.
The proposed ordinance would allow the operation of small scale alcohol production facilities 562
within the following commercially designated zones: General Commercial (C-G), Commercial Office (C-O), Central Business District (CBD) and Commercial/Light Industrial (C-LI). with the approval of a Conditional Use Permit and the State Department Alcoholic Beverage Control (ABC) and an enforcement agreement with the city. The aforementioned uses would not be allowed in Neighborhood Commercial Zones (C-N). The new framework of the ordinance will allow for these types of emerging businesses and related uses in a greater range of zones than is permitted under the existing framework.
Overview of Changes
The new brewpubs framework will allow for these types of emerging businesses and related uses in a greater range of zones than was permitted under the previous framework. Though these uses are similar in that they each produce alcoholic beverages there are some distinguishing characteristics as described below.
Micro-Brewery
A micro-brewery is defined by industry standards to produce less than 2,000 barrels (63,000 gallons) of beer, wine, seltzer, mead, or cider.
Small-Scale Breweries
Small-scale breweries defined by industry standards consist of a building or structure used for the production of no more than 15,000 barrels per year of beer (472,500 gallons). Accessory uses can include a private hospitality area, an area for retail sales, an area for sale of alcoholic beverages made off site, special events and tours and an office for administrative purposes. Small-scale breweries are proposed to be permitted in the C-G, C-O, CBD and C-LI zoning district. A cidery or meadery would also be permitted as per the definition of smallscale brewery.
Craft Breweries
A craft brewery produces fewer than 6 million barrels of beer per year. According to the Brewers Association, a craft brewery is one that produces at least 2 million barrels of beer per year. Because of the scale of the operation, it is proposed that such a use would be restricted to industrial zoned lands, in particular the I and L-I zones.
Large-Scale Breweries
Large-scale breweries produce larger quantities of beer (greater than 6 million gallons per year) than small- scale breweries, but are proposed to have the same range of permitted accessory uses. Because of the scale of the operation, it is proposed that such a use would be restricted to industrial zoned lands, in particular the I and L-I zones.
Brewpubs
A brewpub consists of two uses: a small-scale brewing facility and a restaurant. The restaurant component would involve the preparation and serving of food and other refreshments to the public for consumption within or outside the building, as well as preparation of food in a ready-to-consume state for consumption off the premises. Brewpubs are proposed to be permitted in a range of commercial and industrial zones as follows: C-G, 563
C-O, CBD, and C-LI.
Small-Scale Wineries, Cideries and Meaderies
Wineries, cideries and meaderies are permitted as are proposed to be permitted within the CG, C-O, CBD, and C- LI zones. In addition, proponents must also demonstrate that there is appropriate servicing (water and wastewater) available.
Small-Scale Distilling Facility
Small Scale Distilling Facilities must produce less than 100,000 gallons of spirits annually to be considered small-scale. Because the distilling process presents more hazards from a combustibility standpoint (regardless of scale) with respect to the California Building and Fire Codes, a distillery will be subject to more stringent Fire and Building & Safety Code review.
Further, parking and loading requirements for the primary use and any accessory uses are set out in the proposed ordinance to the zoning by-law. The proposed parking requirements are similar to the parking requirements for a warehouse use (as was previously applied to such facilities), but must also account for accessory uses that may form part of the operation such as tasting room or restaurant.
Notification
A public hearing was duly noticed for the City Council meeting of September 6, 2023 by publication in the Santa Paula Times and the City website. The publication date, mailings, and legal postings took place on August 25, 2023.
Environmental Review
The proposed zone text amendment is Categorically Exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) (Common Sense Rule). Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. The proposed zoning amendment itself will not have a significant effect on the environment, and independent CEQA review will be conducted upon each application for an entitlement.
STRATEGIC PLAN:
The proposed amendments supports the Operational Excellence Strategic Plan Goal by reviewing and updating the development code to reduce or eliminate irrelevant information while proving updates. In addition, the ordinance amendment is in alignment with Economic Development by enhancing the economic vitality of the community through measures targeted towards development and business retention and expansion and attraction, resulting in diverse housing options, increased revenue generation, job creation, and a business-friendly community.
FISCAL IMPACTS:
The amendments to the ordinance could improve business attraction and as a result lead to the generation of revenues from project applications, permits and new business sales tax. 564
OPTIONS:
As an alternative to Staff's recommendation the City Council may:
1. Direct staff to make a substantial modification to the Ordinance not previously considered by the Planning Commission, and refer the matter back to the Commission for consideration;
2. Approve the Ordinance with minor modifications and direct staff to return for reintroduction; or
3. Decline to approve staff's recommendations.
ATTACHMENTS:
ATTACHMENT A ORDINANCE NO. 1331 - Small-Scale Alcohol Production Facilities-c1.docx 565
ATTACHMENT A
ORDINANCE NO. 1331
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ORDINANCE NO. 1331
AN ORDINANCE OF THE CITY OF SANTA PAULA AMENDING THE
DEVELOPMENT CODE TO DEFINE AND REGULATE SMALL-SCALE
ALCOHOL PRODUCTION FACILITIES BY AMENDING SECTIONS 16.05.200 AND 16.15.020, AND ADDING A NEW SECTION 16.58.015
The City Council of the City of Santa Paula does ordain as follows:
SECTION 1: Recitals
A. Santa Paula Municipal Code (“SPMC”) § 16.15.020 provides for permitted and conditional uses of land in commercial zones. The proposed Development Code (“Code”) amendment would expressly authorize small scale alcohol production, as defined, within the C-LI, C-G, C-O, and CBD, excluding the C-N zone.
B. The proposed amendment was reviewed by the City’s Planning Division for, in part, consistency with the General Plan and conformity with the Santa Paula Municipal Code.
C. The City Planning Division reviewed the proposed amendment’s environmental impacts under the California Environmental Quality Act (Public Resources Code §§ 21000, et seq., “CEQA”), the regulations promulgated there under (14 Cal.
Code of Regulations §§15000, et seq., the “CEQA Guidelines”), and the City’s Environmental Guidelines (“Santa Paula Guidelines”; CEQA, CEQA Guidelines and Santa Paula Guidelines collectively referred to as “CEQA Regulations”).
D. On August 22, 2023, the Planning Commission opened a public hearing to receive public testimony and other evidence regarding the proposed amendment and whether to approve Resolution No. 3851 to recommend the proposed amendment to the City Council for adoption by ordinance.
E. The Commission approved Resolution No. 3851 based upon the evidence presented to the Commission at its August 22, 2023 hearing including, without limitation, the staff report submitted by the Planning Division.
F. A public hearing for City Council consideration of the proposed amendments was set for September 6, 2023, notice of which was given pursuant to SPMC §
16.208.040(A).
G. At the September 6, 2023 meeting, the City Council held a public hearing and considered the information provided by City staff and public testimony.
H. At a regular meeting of City Council held on October 4, 2023, City Council adopted the proposed ordinance. This Ordinance, and its findings, are made based upon such evidence presented to the City Council at its September 6, 2023 and October 567
4, 2023 meetings including, without limitation, the staff report submitted by the Planning Division.
SECTION 2: General Plan and Development Objectives. Pursuant to SPMC §
16.208.030(C), the City Council has reviewed the Planning Commission’s recommendation, and finds that the proposed amendment is consistent with the objectives of Title 16 of the SPMC, the General Plan, and development policies of the City as follows:
A. The Santa Paula General Plan (2040) land use designation of the area impacted by the proposed amendment include all zones where the sale of alcoholic beverages is permitted.
B. The purpose of Chapter 16.208 Development Code Amendments is to allow for amendment to the Code in recognition of the fact that physical, economic, and other conditions in the city may change over time. Currently, Table 15-1 of SPMC §
16.15.020 Land Use Permit Requirements, does not expressly authorize the permitting of small scale alcohol production. The proposed amendment would allow small-scale breweries, cideries, distilleries, meaderies, and wineries within commercial zones, excluding the C-N zone. The proposed amendment is consistent with Title 16 of the SPMC because it accommodates the changing consumer preferences and economic conditions within the City.
C. The proposed code amendment is consistent with the objectives, policies, general land uses, and programs of the Santa Paula General Plan (2040), as further described below in Section 4, particularly the following:
Land Use Element, Community Character and Urban Form: LU1 Land Use Element, Balanced Land Use & Economic Opportunity: LU3 Economic Development and Downtown, Support Existing Businesses: EDD1.1 SECTION 3: Development Code Amendment Findings. Pursuant to SPMC §16.208.050, the City Council makes the following required findings of fact:
A. The proposed code amendment is consistent with the goals, policies, and objectives of the General Plan. Consistent with Land Use Policy LU 1 (Community Character and Urban Form), the proposed amendment will enhance the smalltown character of the City by allowing small-scale alcohol production in the City, which may give rise to locally celebrated producers. The proposed amendment is also consistent with Land Use Policy LU 3 (Balanced Land Use & Economic Opportunity), as small scale alcohol production will provide new services, amenities, and employment opportunities within the community. Small scale alcohol producers have the potential to stimulate the revitalization of the Downtown area consistent with LU 5 “Downtown Revitalization” by creating additional foot traffic and drawing visitors who may generate additional economic support to the 568
community. In addition, the amendment is consistent with Economic Development and Downtown Policy EDD 1.1 (Support Existing Businesses) because small scale alcohol producers may draw new consumers to the Downtown area who will shop at existing businesses too. Nothing in the proposed amendment would create an inconsistency with the goals, policies and objectives of the 2040 General Plan.
B. The proposed code amendment will not adversely affect surrounding properties.
The proposed amendment will not adversely affect surrounding properties because the proposed amendment is authorizing only small scale alcohol production subject to a Conditional Use Permit which will mitigate impacts on surrounding properties.
C. The proposed code amendment promote public health, safety, and general welfare and serves the goals and purposes of Title 16. The public health, safety, and general welfare will be promoted by generating additional economic stimulation to the community and support new amenities within the community. The proposed amendment to SPMC § 16.05 and § 16.15 to authorize small scale alcohol production in certain commercial zones is compatible with the existing, surrounding and planned land uses within such zones. The proposed amendment will promote the general convenience and welfare because allowing small scale alcohol production uses may enhance services that are sought and enjoyed by a large segment of the community. In terms of public safety, all small scale alcohol producers will require approval and permits from the City that may be revoked for violations. And for the additional reasons already described in paragraphs B. and C. of Section 3, the proposed amendment will serve the goals and purposes of Title 16 of the SPMC.
SECTION 4: Environmental Assessment. State CEQA Guidelines sections 15378(b)(2) and 15378(b)(5) provide that ongoing administrative activities and organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment do not constitute a “project” as defined by the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.). And even if the proposed text amendment was a “project” they are exempt from CEQA under CEQA Guidelines section 15601(b)(3)’s “common sense” rule that CEQA only applies to projects that have the potential for causing a significant effect on the environment. Here, it can be seen with certainty that there is no possibility that the proposed amendment to add an additional use to commercial zones will have a significant effect on the environment. Finally, each application for small scale alcohol production will be subject to individual CEQA review such that this proposed amendment by itself does not create an environmental impact.
SECTION 5: Text Amendments. Title 17, entitled “Development Code”, of the Santa Paula Municipal Code is amended as follows:
A. Section 16.05.200 of the Santa Paula Municipal Code, entitled “‘S’ Definitions”, is hereby amended to add a new definition for “Small - Alcohol Producer” as follows, with all other existing definitions remaining the same, in alphabetical order:
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SMALL-SCALE ALCOHOL PRODUCER – Small-scale Alcohol Producer means an establishment, like a microbrewery, distillery, winery, seltzer, meadery, or cidery, which engages in production of alcoholic beverages or spirits for on and off-site consumption and sale. Small-scale Alcohol Producers may also provide for the sale of non-alcoholic beverages, alcoholic beverages produced off-site, or food. Microbreweries, wineries, seltzeries, meaderies, and cideries must produce less than 15,000 barrels of product to be considered small scale. Distilleries must produce less than 100,000 gallons of spirits annually to be considered small scale. All Small-Scale Alcohol Producers must comply with SPMC Chapter 16.58.
B. Table 15-1, “Permitted and Conditional Uses – Commercial Zones”, of Section
16.15.020 of the Santa Paula Municipal Code, entitled “Land Use and Permit Requirements”, is hereby amended to read as follows, in its entirety, with all other existing provisions of Table 15-1 remaining the same:
TABLE 15-1
Permitted and Conditional Uses - Commercial Zones
Use CNCOCBD CGCLI
Agricultural-Related Uses
Agricultural Production X X X C P
Fruit/Agriculture Stands T T T T T
Agricultural Equipment and Supplies Sales and Repair X X X C C Auction, Livestock X X X X C
Automotive/Vehicle-Related Uses
Automobile Service Stations (fuel sales; see Chapter 16.72) C* C* C* C* C* Automotive Parts Sales, without Installation X X C P P
Automotive Parts Sales, with Installation X X X C C
Automotive Repair (Major) - bodywork/painting, engine repair X X X C C Automotive Repair (Minor) - lube/tune, window tinting, mufflers (not to include tractor, semi-trailer, or the like)
C C C P P
Automotive Sales (New/Used) - Car, RV, Truck X C X C C
Automotive Wrecking X X X X X
Car Washes, Full Service and Self Service X X X C C
Truck Stop & Repair X X X X C
Vehicle Impound or Storage Yard X X X X X
Vehicle Leasing/Rental X C X C C
Vehicle Storage Facility, including RVs and Boats C X X C C 570
Boarding and Lodging Facilities
Bed and Breakfast Inn C C C C C
Boardinghouse/Roominghouse X X X C X
Congregate Care Housing Facility X C C C X
Hotels/Motels X X C C C
Conference Facility X C C C C
Eating/Drinking Establishments
Coffee, Juice Café P P P P P
Delicatessen/Sandwich Shop (no alcoholic beverage sales) P P P P P Restaurant with no drive-through (a) C C P P P
Restaurant with drive-through (see Chapter 16.66) (a) X X X C* C* Restaurant, Fast-food (a) X X C C C
Restaurant (outdoor dining on private property) (a) C C P* P P Restaurant (outdoor dining on public right-of-way) (See Chapter 124) (a) C C P* C C Night Club/Bar/Lounge (a) X X C C C
Entertainment/Recreation Uses
Adult Business/Entertainment Enterprise (see Chapter 16.54) X X X X C* Amusement Park X X X C C
Amusement Arcade or Center (see Chapter 16.56) X X C* C* C* Auditorium, Convention Halls, and Theaters X X X C C
Batting Cage, Driving Range, or Similar Outdoor Sporting facility C C X P C Billiard/Pool Hall (a) X X C C C
Bowling Alley X X C C C
Café Entertainment (See Chapter 124) X X D X X
Cultural Center P P P P P
Health/Athletic Club X C P C C
Indoor Recreation Center C C C C C
Library or Museum P P P P P
Massage Establishment (see Chapter 119 of Title 11) X X C C C Miniature Golf X X X C C
Rodeo Arena X X X X X
Skate Park or Rink X X X C C
Slot Car Racing X X X C C
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Theater, Cinema (Movie) X X C C P
Theater, Stage C X C C C
Financial Institutions
Banks, Savings and Loans, and Credit Unions P P P P P
Medical/Care Facilities
Blood Bank X C C C C
Day Care Home, Large Family - Adult or Child (See Chapter 16.60) C* A* C* C* X Day Care Home, Small Family - Adult or Child (See Chapter 16.60) C* A* C* C* X Child Day Care Center (See Chapter 16.60) C* C* C* P* C* Clinic, Outpatient X C C C X
Community Care Facility (see Chapter 16.64) X C* C* C* X Drug and Alcohol Clinic/Rehabilitation (See Community Care Facility) --- --- --- --- --- Convalescent Home or Hospital C C C C C
Emergency Shelter X C X C C
Hospital/Surgery (See Civic/Institutional Zone) X X X X X Medical Laboratory X X X C C
Medical Office (see Professional & Administrative Offices) --- --- --- --- --- Urgent Care Facility X C C C C
Personal Service
Barber/Beauty/Nail Shop P P P P C
Dance/Music Schools/Martial Arts Studio C X C P X
Dry Cleaner without on-site cleaning facilities P P P P X Dry Cleaner with on-site cleaning facilities X X X C C
Laundromat P X X P X
Leather, Luggage and Shoe Repair P P P P X
Professional and Administrative Offices
Office - Medical, Dental, Optometry, Chiropractic and the like P P P P P Office - Business or Professional P P P P P
Veterinary Office C C C P X
Residential Uses
Live/work studio P P P P P
Dwelling, Multi-Family P P P P P
Dwelling, Single-Family P P P P P
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Mixed Use Residential and Commercial Development
(See Subsection 16.15.030(D)) (b)
P P P P P
Home Occupations P P P P P
Retail Commercial
Antique Store (see also "Thrift Store") P P P P X
Art Galleries and Studios P P P P X
Auction businesses conducted within a building, excluding livestock sales X X X C C Automotive (see Automotive/Vehicle- Related Uses above) --- --- --- --- --- Bakery, Retail (with or without on-premises baking) P P P P P Book Store P P P P P
Clothing/Apparel Sales P P P P P
Confectionary Store, Candy Sales P P P P C
Convenience Store or Mini-market (a) C C C C C
Department Store X X C P P
Discount Store P X C P C
Fabric & Craft Store P P P P P
Flower/Gift Shop P P P P P
Furniture, Furnishings and Appliances (Sales) P P P P P Grocery Store or Market C C C C C
Hardware Store P X P P C
Home Improvement Store with Outdoor Display of Lumber/Garden X X X C C Jewelry Store P P P P C
Liquor Store (see Chapter 16.58) (a) C* X C* C* C*
Mobile Home Sales X X X C C
Music Store P P P P C
Nurseries/Garden Supplies X X X P P
Office Supplies/Equipment X P P P P
Pet Shop/Store X X C P P
Pharmacy C P P P P
Plumbing Supplies X X X P P
Shopping Center A (less than 50,000 gross square feet of leasable area) C X C C C Shopping Center B (from 50,000 gross square feet up to 150,000 square feet of leasable area)
X X X C C
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Shopping Center C (from 150,000 gross square feet up to 400,000 square feet of leasable area)
X X X C C
Shopping Center D (over 400,000 gross square feet of leasable area) X X X X C Thrift Store, Secondhand Store or Sales (see also "Antique Store") X X C C X Warehouse Retail Store X X X C C
Service Commercial
Catering Service C C C P P
Cleaning/Janitorial X P X P P
Copy Center/Postal Center P P P P X
Equipment Rental/Sales/Service Yard X X X C C
Interior Design Shop P P P P X
Laboratories (film, medical/dental) X C X C C
Photography Shop/Studio/Film Processing P P P P X
Printing/Publishing Facilities X P C P P
Recycling Center (See Industrial Zones for Recycling Facility) X X X C* C* Travel Agency P P P P P
Welding/Repair and Related Uses X X X C C
Other
Alcoholic Sales (See Chapter 16.58) C C C C C
Small-scale Alcohol Producer (See Section 16.05.200) X C C C C Antenna, Satellite or Dish (See Section 16.50.020) A* A* A* A* A* Antenna, Wireless Communications (See Chapter 16.50) C* C* C* C* C* Assembly Halls (includes Church, Temple, or Other Religious Institutions) (see Chapter 16.62)
C* C* C* C* C*
Cannabis Delivery X X X X X
Commercial Cannabis Activities X X X X X
Cultivation of Cannabis or Medical Marijuana X X X X X
Carnival X T T T T
Cemetery X X X C C
Check Cashing Business C X C P C
Club, Lodge, and Meeting Hall (See Assembly Hall above) --- --- --- --- --- Educational Institutions (Public or Private) C P C P P
Drive-Thru Establishment, Non-Restaurant (see Chapter 16.66) X C* X C* C* Funeral Parlor/Mortuary X C X C C
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Media Broadcasting Station C C C C C
Newsrack (See Chapter 16.68) A* A * A* A* A*
Parking Lot for off-site use C C C C C
Pawn Shop X X C P X
Utility Substation C C C C C
Swap Meet/Flea Market X X T T T
Tattoo Studio X X C C X
Trade/Technical School X P C P P
Wedding Chapel C C C C X
C. Chapter 16.58 of the Santa Paula Municipal Code is hereby amended to add a new section 16.58.015, entitled “Additional Requirements Applicable to Smallscale Alcohol Producers,” to read as follows:
§ 16.58.015 ADDITIONAL REQUIREMENTS FOR SMALL-SCALE ALCOHOL PRODUCERS.
(A) General standards.
(1) Prior to commencement of the use, a plan must be approved by the Community & Economic Development Director demonstrating compliance with the following requirements: the parcel boundaries, site elements including building location, location of any open air seating, location of parking spaces, street access, designated loading area, and any required buffers, signage, as well as the layout and square footage of each use proposed within the building. (2) For any new construction, excluding additions of less than 50% of the existing building footprint, parking shall be located behind the front line of the principal building.
(3) For any new construction, excluding additions of less than 50% of the existing building footprint, the street elevation of the principal structure shall have at least one (1) street-oriented entrance, and contain the principal windows of the facility. (4) A 6-foot fence and 10’ set-back is required where abutting a residential use or vacant residentially zoned or entitled parcel.
(5) Outdoor storage may be allowed with the review and approval by the Community and Economic Development Director.
(6) An area for loading and unloading shall be shown on the required plan. The loading area must be sited in a way that minimizes the impact on any surrounding neighborhood.
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(7) A maximum of one (1) delivery vehicle, not to exceed two axles and 25 feet, stored on-site is permitted.
(8) The brewery, cidery, seltzery, winery, meadery or distillery must be licensed by the California Alcohol and Beverage Control (ABC) Authority. (9) All production, packaging and retail sales may be allowed with the review and approval by the Community and Economic Development Director. (10) A plan for disposal of any spent product that occurs as part of production shall be included in the plan submitted to the Community & Economic Development Director.
(11) Hours of operation and total allowed alcohol production volume shall be established by the required Conditional Use Permit.
(12) A sewage plan and all on-site infrastructure shall be approved by the appropriate City or County departments and shall include a waste water pretreatment system, clarifier, or equivalent filtering device. (B) Additional Standards in the Central Business District. (1) No parking is required. Any parking that is provided must comply with the standards in Chapter 16.46 for off-street parking, stacking and loading. (2) Production capacity shall not exceed 50% of the amount in the definition of each small-scale alcohol use.
(C) Development Standards – Off-street Parking, Stacking and Loading. (1) Any parking that is provided must comply with the standards in Chapter 16.46 for off-street parking, stacking and loading except as follows:
Land Use(1)
Required Off-Street Parking Spaces
Resident/Guest/Employee Parking Compact/Business
Vehicle Parking
Commercial
Small-scale
Brewery, Cidery,
Seltzery, Winery,
Meadery, or
Distillery
One space per 500 square feet of space not
devoted to seating or waiting such as
production, storage or office.
0 - 4,000 sf: 1 space per 80 sf of gross
floor area
Compact: Maximum 15%
where 20 spaces are
provided
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>4,000 sf: 1 space per 80 sf of gross floor
area for first 4,000 sf, then 1 space per
100 sf for area over 4,000 sf
Outdoor seating need not be included in
the calculation of required spaces.
Downtown (CBD Zone)
Retain existing parking spaces.
Abbreviations: sf=square feet
(1) Parking for all uses not specified in this table will be determined at the discretion of the Community & Economic Development Director.
SECTION 6. Upon the effective date of this Ordinance, the provisions hereof shall supersede any inconsistent or conflicting provisions of the Santa Paula Municipal Code.
SECTION 7. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance for any reason is held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 8: The City Clerk shall certify as to the passage and adoption of this Ordinance and shall cause a summary thereof to be published within fifteen (15) days of the adoption and shall post a certified copy of this Ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.
PASSED AND ADOPTED this ____ day of October 2023.
________________________________
Andy Sobel, Mayor
ATTEST:
Julie Latshaw, City Clerk
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APPROVED AS TO FORM:
Monica Castillo, Interim City Attorney
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To: Honorable Mayor and Members of the City Council
From: Clete Saunier, Public Works Director
Subject: INTRODUCTION OF ORDINANCE NO. 1330 AMENDING CHAPTER 151
FLOOD DAMAGE PREVENTION
Date: September 6, 2023
Agenda Item: 11.B
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends that the City Council:
1. Open the public hearing.
2. Waive first reading, read by title only, and introduce Ordinance No. 1330, entitled "An Ordinance of the City Council of the City of Santa Paula, Amending Sections 151.05, 151.06, 151.07, 151.12, 15.20, 151.23, 151.24, 151.25, 151.35, 151.36, 151.47 and 151.48, of the Santa Paula Municipal Code Regarding Flood Damage Prevention." Presented by:
Clete J. Saunier, Public Works Director
Bob Woodward, City Engineer
BACKGROUND:
Pursuant to the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, the Federal Emergency Management Agency (FEMA) has identified special flood hazard areas within the boundaries of the City of Santa Paula. Such areas may be subject to periodic inundation which may result in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety and general welfare. The Legislature of the State of California has, in Government Code Sections 65302, 65560, and 65800, conferred upon local governments the authority to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry.
To maintain its participation in the National Flood Insurance Program (NFIP), the City is required to meet the criteria in Sections 59 and 60 of Title 44 Code of Federal Regulations. In addition, pursuant to the California Health and Safety Code, Division 13, Part 1.5 and Part 2.5, the City is required to administer and enforce the California Building Standards Code which contain certain provisions that apply to the design and construction of buildings and structures 579
in flood hazard areas. The construction and maintenance of residential, commercial, and other buildings in California is regulated by Title 24 of the California Code of Regulations, also known as the California Building Standards Code (“CBSC”), which includes the California Building Code. As building codes are updated, changes to flood damage prevention provisions of the California Building Code may be addressed as well.
ANALYSIS:
As part of a recent review of the City’s floodplain management provisions contained in Chapter 151 (Flood Damage Prevention) of the City’s Municipal Code conducted in a cooperative effort with representatives of FEMA and of the California Department of Water Resources (DWR), a series of updates and revisions were identified as necessary to bring Chapter 151's regulations into alignment with the current version of the California Building Code, as well as current FEMA and DWR floodplain management provisions. The updates and revisions to Chapter 151 would be accomplished by the proposed Ordinance, which will align the City’s Municipal Code with the Floodplain Management Model Code that has been developed by DWR, specifically as a companion to Appendix G, Flood Resistant Construction, of the California Building Code. Among other items, the Ordinance will adopt updated provisions for mobile homes, recreational vehicles located in flood zones, as well as provisions for the regulation of flood hazards, variances, determination of substantial improvement and substantial damage, and changes to flood insurance rate maps. These updates to the City’s Municipal Code are intended to precede the adoption of updated flood maps, which are planned for release by FEMA in the fall of 2023.
STRATEGIC PLAN:
The Project supports the currently adopted Strategic Plan in achieving the following goals:
Infrastructure, Transportation & Mobility
Goal: Maintain and develop the City’s infrastructure to be safe, sustainable, innovative and cost-efficient.
FISCAL IMPACTS:
There will be no direct fiscal impact to the City as a result of this amendment. However, to the extent that new construction and renovations in Santa Paula meet current codes, the longevity and value of these improvements will be enhanced and will help to support the City’s tax base and local economy. Adoption of the amendment would also help to support the continued participation of the City in the NFIP, which helps to protect real property values within the City.
OPTIONS:
In addition to the recommended action, the Council has available to it the following alternative options:
1. Do not introduce proposed Ordinance No. 1330, updating and amending Chapter 151 Flood Damage Prevention of the City’s Municipal Code, which may adversely affect the City’s standing and participation in the National Flood Insurance Program.
2. Direct staff to modify the proposed Ordinance No. 1330 and bring back the modified ordinance to Council for reintroduction.
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ATTACHMENTS:
Attachment A - Ordinance No 1330 Flood Damage Prevention 581
65283.00001\41606501.1
ORDINANCE NO. 1330
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA
PAULA, AMENDING SECTIONS 151.05, 151.06, 151.07, 151.12, 151.20, 151.23, 151.24, 151.25, 151.35, 151.36, 151.47, AND 151.48, OF THE
SANTA PAULA MUNICIPAL CODE REGARDING FLOOD DAMAGE
PREVENTION.
The Council of the city of Santa Paula does ordain as follows:
SECTION 1. The City Council finds as follows:
A. The legislature of the State of California has in Cal. Gov't Code §§ 65302, 65560 and 65800 conferred upon local government units authority to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry.
Therefore, the City Council does ordain the regulations as set out in Chapter 151 regarding Flood Damage Prevention.
B. The flood hazard areas of the city are subject to periodic inundation which results in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extra-ordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety and general welfare.
C. These flood losses are caused by the cumulative effect of obstructions in areas of special flood hazards which increase flood heights and velocities, and when inadequately anchored, damage uses in other areas. Uses that are inadequately flood proofed, elevated or otherwise protected from flood damage also contribute to the flood loss.
D. Chapter 151 was originally adopted in 1981, then amended in 1988, 2000 and finally in 2009.
E. The City now desires to amend the Flood Damage Prevention chapter to update the terms of specific sections to bring them up to state requirements.
SECTION 2. Section 151.05 of the Santa Paula Municipal Code, entitled “Definitions”, is hereby amended to read in full as follows:
“151.05 DEFINITIONS.
Unless the contrary is stated or clearly appears from the context, the following definitions govern the construction of the words and phrases used in this chapter. 582
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Words and phrases not given a meaning by this chapter have the meaning set forth in the National Flood Insurance Program (42 U.S.C. §§ 40001, et seq.) and the regulations promulgated to implement the National Flood Insurance Program (44 Code of Federal Regulations §§ 59.1 to 59.30; 60.1 to 60.26).
APPEAL. A request for a review of the Floodplain Administrator's interpretation of any provision of this chapter or a request for a variance.
APPEALS BOARD. A board consisting of members who are qualified by experience and training to pass on matters pertaining to floodplain management, regulation and associated engineering and are not employees of the City, as per the provisions of Section 113 and Appendix B of the California Building Code (CBC) (CCR Title 24 Part 2), except that that references to building official shall be replaced by Floodplain Administrator.
AREA OF SHALLOW FLOODING. A designated AO or AH Zone on the Flood Insurance Rate Map (FIRM). The base flood depths range from one to three feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident.
BASE FLOOD. The flood having a one percent chance of being equaled or exceeded in any given year (also called the “one-hundred-year flood”).
BASEMENT. Any area of the building having its floor subgrade (below ground level) on all sides.
BREAKAWAY WALLS. Any type of walls, whether solid or lattice, and whether constructed of concrete, masonry, wood, metal, plastic or any other suitable building material which is not part of the structural support of the building and which is designed to break away under wave action without causing any damage to the structural integrity of the building on which they are used or any buildings to which they might be carried by floodwaters. A breakaway wall shall have a safe design loading resistance of not less than 10 and no more than 20 pounds per square foot. Use of breakaway walls must be certified by a registered engineer or architect and shall meet the following conditions:
(1) Breakaway wall collapse shall result from a water load less than that which would occur during the base flood; and
(2) The elevated portion of the building shall not incur any structural damage due to the effects of wind and water loads acting simultaneously in the event of the base flood.
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COMMUNITY. Any state or area or political subdivision thereof, or any Indian tribe or authorized tribal organization, or Alaska Native village or authorized native organization, which has authority to adopt and enforce flood plain management regulations for the areas within its jurisdiction. When used in this chapter, “Community” means the City of Santa Paula, unless the context clearly indicates otherwise.
DEVELOPMENT. Any manmade change to improved or unimproved real estate, including but not limited to, buildings or other structures, temporary structures, temporary or permanent storage of materials, mining, dredging, filling, grading, paving, excavations, drilling operations, flood control projects, and other land-disturbing activities.
EXISTING MANUFACTURED HOME PARK OR SUBDIVISION. A manufactured home park for which the construction of facilities for servicing the lot on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, either final site grading or the pouring of concrete pads, and the construction of streets) are completed before the effective date of a given regulation in this chapter.
EXPANSION TO AN EXISTING MANUFACTURED HOME PARK OR SUBDIVISION.
The preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, either final site grading or pouring of concrete pads, or the construction of streets).
FLOOD or FLOODING. A general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of floodwaters, the unusual and rapid accumulation or runoff of surface waters from any source, and/or the collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as flash flood or an abnormal tidal surge, or by some similarly unusual and unforeseeable event which results in flooding as defined in this definition.
FLOOD BOUNDARY AND FLOODWAY MAP. The official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of flood hazard and the floodway.
FLOOD INSURANCE RATE MAP (FIRM). The official map of the community, on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the special hazard areas and the risk premium zones applicable to the Community.
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FLOOD INSURANCE STUDY. The official report provided by the Federal Insurance Administration that includes flood profiles, the FIRM, the Flood Boundary and Floodway Map, and the water surface elevation of the base flood.
FLOODPLAIN or FLOOD-PRONE AREA. Any land area susceptible to being inundated by water from any source (see definition of “flooding”).
FLOODPLAIN MANAGEMENT. The operation of an overall program of corrective and preventive measures for reducing flood damage, including but not limited to emergency preparedness plans, flood control works and floodplain management regulations.
FLOODPLAIN MANAGEMENT REGULATIONS. Zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as floodplain ordinance, grading ordinance and erosion control ordinance) and other applications of police power. The term describes such state or local regulations in any combination thereof, which provide standards for the purpose of flood damage prevention and reduction.
FLOODPROOFING. Any combination of structural and nonstructural additions, changes or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents.
FLOODWAY. The channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. Also referred to as “regulatory floodway.”
FUNCTIONALLY DEPENDENT USE. A use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, but does not include longterm storage or related manufacturing facilities.
HIGHEST ADJACENT GRADE. The highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.
HISTORIC STRUCTURE. Any structure that is:
(1) Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register; 585
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(2) Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district; (3) Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior; or (4) Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either:
(a) By an approved state program as determined by the Secretary of the Interior; or
(b) Directly by the Secretary of the Interior in states without approved programs.
LOWEST FLOOR. The lowest floor of the lowest enclosed area (including basement).
An unfinished or flood-resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of this chapter.
MANUFACTURED HOME. A structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. The term "manufactured home" does not include a "recreational vehicle.”
MANUFACTURED HOME PARK OR SUBDIVISION. A parcel (or contiguous parcels) of land divided into two or more manufactured home lots for sale or rent.
MEAN SEA LEVEL. For purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929 or other datum, to which base flood elevations shown on a community's Flood Insurance Rate Map are referenced.
NEW CONSTRUCTION. For floodplain management purposes, structures for which the “start of construction” commenced on or after the effective date of a given floodplain management regulation adopted by the Community.
NEW MANUFACTURED HOME PARK OR SUBDIVISION. A manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of 586
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concrete pads) is completed on or after the effective date of a given floodplain management regulation adopted by the Community.
ONE-HUNDRED-YEAR FLOOD or 100-YEAR FLOOD. A flood which has a one percent annual probability of being equaled or exceeded. It is identical to the “base flood,” which will be the term used throughout this chapter.
PERSON. An individual or his agent, firm, partnership, association or corporation, or agent of the aforementioned groups, or this state or its agencies or political subdivisions.
RECREATIONAL VEHICLE. A vehicle which is:
(1) Built on a single chassis;
(2) Four hundred square feet or less when measured at the largest horizontal projection;
(3) Designed to be self-propelled or permanently towable by a light duty truck; and
(4) Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.
REMEDY A VIOLATION. To bring the structure or other development into compliance with state or local floodplain management regulations, or, if this is not possible, to reduce the impacts of its non-compliance. Ways that impacts may be reduced include protecting the structure or other affected development from flood damages, implementing the enforcement provisions of this chapter or otherwise deterring future similar violations, or reducing federal financial exposure with regard to the structure or other development.
RIVERINE. Relating to, formed by, or resembling a river (including tributaries), stream, brook, and the like.
SPECIAL FLOOD HAZARD AREA (SFHA). An area having special flood or floodrelated erosion hazards, and shown on an FHBM of FIRM as A, AO, A1-30, AE, A99, or AH Zone.
START OF CONSTRUCTION. Includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement, or other improvement was within 180 days of the permit 587
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date. The actual START OF CONSTRUCTION means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. PERMANENT CONSTRUCTION does not include land preparation such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure.
STRUCTURE. A walled and roofed building, including a gas or liquid storage tank, that is principally above ground, as well as a manufactured home.
SUBSTANTIAL DAMAGE. Damage of any origin sustained by a structure whereby the cost of restoring the structure to it’s before damaged condition would equal or exceed 50% of the market value of the structure before the damage occurred.
SUBSTANTIAL IMPROVEMENT. Any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50% of the market value of the structure either: Before the improvement or repair is started; or if the structure has been damaged, and is being restored, before the damage occurred. For the purposes of this definition, SUBSTANTIAL IMPROVEMENT is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not, however, include either:
(1) Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions; or
(2) Any alteration of a historic structure, provided that the alteration will not preclude the structure's continued designation as a historic structure.
VARIANCE. A grant of relief from the requirements of this chapter which permits construction in a manner that would otherwise be prohibited by this chapter.
VIOLATION. The failure of a structure or other development to be fully compliant with the Community's floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in this chapter is presumed to be in violation until such time as that documentation is provided.”
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SECTION 3. Section 151.06 of the Santa Paula Municipal Code, entitled “Applicability”, is hereby amended to read in full as follows:
“151.06 APPLICABILITY.
These regulations, in conjunction with the building codes, provide minimum requirements for development located in flood hazard areas, including the subdivision of land; filling, grading and other site improvements; installation of utilities; installation, placement and replacement of manufactured homes; placement of recreational vehicles; installation of tanks; temporary structures and temporary or permanent storage; utility and miscellaneous Group U buildings and structures; certain building work exempt from permit under the building codes; and flood control projects.” SECTION 4. Section 151.07 of the Santa Paula Municipal Code, entitled “Basis for Establishing the Areas of Special Flood Hazard”, is hereby amended to read in full as follows:
“151.07 BASIS FOR ESTABLISHING THE AREAS OF SPECIAL FLOOD HAZARD.
The areas of special flood hazard identified by the Federal Insurance Administration (FIA) of the Federal Emergency Management Agency (FEMA) in the Flood Insurance Study (FIS) for the City, dated September 3, 1997, and accompanying Flood Insurance Rate Map (FIRM), dated September 3, 1997, and all subsequent amendments and/or revisions are hereby adopted by reference and declared to be a part of this section. This FIS and attendant mapping is the minimum area of applicability of this section and may be supplemented by studies for other areas that allow implementation of this section and are recommended to the City Council by the Floodplain Administrator. The FIS and FIRM are on file in the office of the Floodplain Administrator at 970 E. Ventura Street, Santa Paula, California.”
SECTION 5. Section 151.12 of the Santa Paula Municipal Code, entitled “Severability”, is hereby amended to read in full as follows:
“151.12 SEVERABILITY.
If any section, section, sentence, clause or phrase of this chapter is, for any reason, declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the chapter as a whole, or any part thereof, other than the part so declared.” SECTION 6: Section 151.20 of the Santa Paula Municipal Code, entitled “Severability”, is hereby amended to read in full as follows:
Ҥ 151.20 STANDARDS OF CONSTRUCTION.
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In all areas of special flood hazards the following standards are required:
(A) Anchoring.
(1) All new construction and substantial improvements shall be anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. (2) All manufacturing homes shall meet the anchoring standards of § 151.23. (B) Construction materials and methods.
(1) All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage. (2) All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage. (3) All new construction and substantial improvements shall be constructed with electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding. (4) Require within the AH or AO Zones, adequate drainage paths around structures on slopes to guide floodwaters around and away from proposed structures. (C) Elevation and floodproofing.
(1) New construction and substantial improvement of any structure shall have the lowest floor, including basement, elevated at least 1 foot above the base flood elevation. Nonresidential structures may meet the standards in subdivision (3) of this division. Upon completion of the structure, the elevation of the lowest floor, including basement, shall be certified by a registered professional engineer or surveyor to be properly elevated. Such certification or verification shall be provided to the Floodplain Administrator.
(2) New construction and substantial improvement of any structure in the AO Zone shall have the lowest floor, including basement, elevated above the highest adjacent grade at least as high as the depth number specified in feet on the FIRM, or at least two feet if no depth number is specified. Nonresidential structures may meet the standards in subdivision (3) of this division. Upon the completion of the structure, the 590
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elevation of the lowest floor, including basement, shall be certified by a registered professional engineer or surveyor to be properly elevated. Such certification or verification shall be provided to the Floodplain Administrator. (3) Nonresidential construction shall either be elevated in conformance with subdivisions (1) or (2) of this division or together with attendant utility and sanitary facilities:
(a) Be floodproofed so that below the base flood level, the structure is watertight with walls substantially impermeable to the passage of water; (b) Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and
(c) Be certified by a registered professional engineer or architect that the standards of this division are satisfied. Such certifications shall be provided to the Floodplain Administrator.
(4) Require, for all new construction and substantial improvements, that fully enclosed areas below the lowest floor that are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or meet or exceed the following minimum criteria:
(a) Either a minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided. The bottom of all openings shall be no higher than one foot above grade.
Openings may be equipped with screens, louvers, valves or other coverings or devices provided that they permit the automatic entry and exit of floodwaters; or (b) Be certified to comply with a local floodproofing standard approved by the Federal Insurance Administration.
(5) Manufactured homes shall also meet the standards in § 151.23.” SECTION 6: Section 151.23 of the Santa Paula Municipal Code, entitled “Standards for Manufactured Homes”, is hereby amended to read in full as follows:
“151.23 STANDARDS FOR MANUFACTURED HOMES.
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All new and replacement manufactured homes and additions to manufactured homes shall:
(A) Installation. All manufactured homes installed in flood hazard areas shall be installed by an installer that is licensed pursuant to the Business and Professions Code and shall comply with the requirements of the Department of Housing and Community Development (HCD) and the requirements of these regulations. In addition to permits pursuant to these regulations, permits from the HCD are required where the HCD is the enforcement agency for installation of manufactured homes. Upon completion of installation and prior to the final inspection by the Floodplain Administrator, the installer shall submit certification of the elevation of the manufactured home, prepared by a licensed land surveyor or registered civil engineer, to the Floodplain Administrator. (B) Foundations. All new and replacement manufactured homes, including substantial improvement of manufactured homes installed in flood hazard areas shall be installed on permanent, reinforced foundations that are designed in accordance with the foundation requirements of Section R322.2 of the California Residential Code (CRC) (CCR Title 24 Part 2.5) and these regulations. Foundations for manufactured homes subject to Section 151.23(E) of these regulations are permitted to be reinforced piers or other foundation elements of at least equivalent strength. (C) Anchoring. All new and replacement manufactured homes to be placed or substantially improved in a flood hazard area shall be installed using methods and practices which minimize flood damage and shall be securely anchored to an adequately anchored foundation system to resist flotation, collapse and lateral movement. Methods of anchoring are authorized to include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable State and local anchoring requirements for resisting wind loads and seismic loads.
(D) General elevation requirement. Unless subject to the requirements of Section 151.23(E) of these regulations, all manufactured homes that are placed, replaced, or substantially improved on sites located: (a) outside of a manufactured home park or subdivision; (b) in a new manufactured home park or subdivision; (c) in an expansion to an existing manufactured home park or subdivision; or (d) in an existing manufactured home park or subdivision upon which a manufactured home has incurred "substantial damage" as the result of a flood, shall be elevated such that the lowest floor, or bottom of the lowest horizontal member of the lowest floor, as applicable to the flood hazard area, is at least 1 foot above the base flood elevation. (E) Elevation requirement for certain existing manufactured home parks and subdivisions. Manufactured homes that are not subject to Section 151.23(D) of these 592
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regulations, including manufactured homes that are placed, replaced, or substantially improved on sites located in an existing manufactured home park or subdivision, unless on a site where substantial damage as a result of flooding has occurred, shall be elevated such that either the:
(1) Lowest floor, or bottom of the lowest horizontal structural member, as applicable to the flood hazard area, is at or above the base flood elevation. (2) Bottom of the frame is supported by reinforced piers or other foundation elements of at least equivalent strength that are not less than 36 inches in height above grade.
(F) Flood damage-resistant materials. Materials below elevated manufactured homes shall comply with the flood-damage resistant materials requirements of Section R322 of the CRC (CCR Title 24 Part 2.5).
(G) Enclosures. Fully enclosed areas below elevated manufactured homes shall comply with the enclosed area requirements of Section R322 of the CRC (CCR Title 24 Part 2.5).
(H) Protection of mechanical equipment and outside appliances. Mechanical equipment and outside appliances shall be elevated to or above the lowest floor or bottom of the lowest horizontal structural member of the manufactured home, as applicable to the flood hazard area.
Exception. Where such equipment and appliances are designed and installed to prevent water from entering or accumulating within their components and the systems are constructed to resist hydrostatic and hydrodynamic loads and stresses, including the effects of buoyancy, during the occurrence of flooding up to the elevation required by Section 151.23(D) or Section 151.23(E), as applicable, the systems and equipment shall be permitted to be located below that elevation. Electrical wiring systems shall be permitted below the design flood elevation provided they conform to the provisions of NFPA 70 (National Electric Code).('81 Code, § 15.44.190) (Ord. 906, passed - -88) Penalty, see Ch. 13
SECTION 7: Section 151.24 of the Santa Paula Municipal Code, entitled “Standards for Recreational Vehicles”, is hereby amended to read in full as follows:
“151.24 STANDARDS FOR RECREATIONAL VEHICLES.
(A) Temporary placement. Recreational vehicles in flood hazard areas, shall be placed on a site for less than 180 consecutive days or shall be fully licensed and ready for highway use. Ready for highway use means the recreational vehicle is on wheels or 593
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jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions, such as rooms, stairs, decks and porches.
(B) Permanent placement. Recreational vehicles that do not meet the limitations in Section 151.24(A) for temporary placement shall meet the requirements of Section 151.23 for manufactured homes.”
SECTION 8: Section 151.25 of the Santa Paula Municipal Code, entitled “Floodways”, is hereby amended to read in full as follows:
“151.25 FLOODWAYS.
(A) Located within areas of special flood hazard established in § 151.07 are areas designated as floodways.
(B) Since the floodway is an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles, and erosion potential, the following provisions apply:
(1) Prohibit encroachments, including fill, new construction, substantial improvements, and other development unless certification by a registered professional engineer or architect is provided demonstrating that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge. (2) If subdivision (1) of this division is satisfied, all new construction and substantial improvements shall comply with all other applicable flood hazard reduction provisions of this subchapter.”
SECTION 9: Section 151.35 of the Santa Paula Municipal Code, entitled “Appeals Board”, is hereby amended to read in full as follows:
“151.35 APPEALS BOARD.
(A) The Appeals Board shall hear and decide appeals and requests for variances from the requirements of this chapter and shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the Floodplain Administrator in the enforcement or administration of this chapter. . (B) Any interested person may appeal action taken by the Appeals Board to the City Council.
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(C) In passing upon such appeals and variance applications, the Appeals Board and the City Council shall consider all technical evaluations, all relevant factors, and standards specified in other sections of this chapter, and:
(1) The danger that materials may be swept onto other lands to the injury of others;
(2) The danger of life and property due to flooding or erosion damage; (3) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;
(4) The importance of the services provided by the proposed facility to the community;
(5) The necessity to the facility of a waterfront location, where applicable; (6) The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;
(7) The compatibility of the proposed use with existing and anticipated development;
(8) The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;
(9) The safety of access to the property in time of flood for ordinary and emergency vehicles;
(10) The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters expected at the site; and
(11) The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water system, and streets and bridges. (D) Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing subdivisions (1) through (11) of division (C) of this section have been fully considered. As the lot size increases beyond one-half acre, the technical justification required for issuing the variance increases.
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(E) Upon consideration of the factors of division (C) of this section and the purposes of this chapter, the Appeals Board or City Council may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter. (F) The Floodplain Administrator shall maintain a record of all variance actions, including justification for their issuance, and report such variances to the Federal Insurance Administration, Federal Emergency Management Agency.” SECTION 10: Section 151.36 of the Santa Paula Municipal Code, entitled “Conditions for Variances”, is hereby amended to read in full as follows:
“151.36 CONDITIONS FOR VARIANCES.
(A) A variance is authorized to be issued for the repair, improvement, or rehabilitation of a historic structure upon a determination that the proposed repair, improvement, or rehabilitation will not preclude the structure's continued designation as a historic structure, and the variance is the minimum necessary to preserve the historic character and design of the structure..
(B) Variances cannot be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.
(C) Variances may only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief. (D) Variances can only be issued upon:
(1) A showing of good and sufficient cause;
(2) A determination that failure to grant the variance would result in exceptional hardship to the applicant; and
(3) A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public or conflict with existing local laws or ordinances.
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(E) Variances may be issued for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided that the provisions of divisions (A) through (D) of this section are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety. (F) Any applicant to whom a variance is granted must be given written notice, over the signature of the Floodplain Administrator, that issuing a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage and such construction below the base flood level increases risks to life and property. A copy of the notice must be recorded by the Floodplain Administrator in the office of the County Recorder and be recorded in a manner so that it appears in the claim of title of the affected parcel of land.”
SECTION 11: Section 151.47 of the Santa Paula Municipal Code, entitled “Designation of the Floodplain Administrator”, is hereby amended to read in full as follows:
“151.47 DESIGNATION OF THE FLOODPLAIN ADMINISTRATOR.
The Public Works Director or the City Engineer, when so designated by the Director, shall serve as the Flood Plain Administrator, and shall administer and implement this chapter by granting or denying development permits in accordance with its provisions.” SECTION 12: Section 151.48 of the Santa Paula Municipal Code, entitled “Duties and Responsibilities of the Floodplain Administrator”, is hereby amended to read in full as follows:
“151.48 DUTIES AND RESPONSIBILITIES OF THE FLOODPLAIN ADMINISTRATOR.
The duties and responsibilities of the Floodplain Administrator shall include, but not be limited to:
(A) Permit review.
(1) Review all development permits to determine that the permit requirements of this chapter have been satisfied;
(2) All other required state and federal permits have been obtained; 597
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(3) The site is reasonably safe from flooding;
(4) For development activities proposed to be located in a riverine flood hazard area where base flood elevations are included in the effective Flood Insurance Study or on the effective FIRM but floodways have not been designated, hydrologic and hydraulic analyses that demonstrate that the cumulative effect of the proposed development, when combined with all other existing and anticipated flood hazard area encroachments, will not increase the base flood elevation more than one (1) foot at any point within the community.
(B) When base flood elevation data has not been provided in accordance with § 151.07, the Floodplain Administrator shall obtain review and reasonably utilize any base flood elevation and floodway data available from a federal, state or other source, in order to administer §§ 151.20 through 151.24 of this chapter. Any such information shall be submitted to the City Council for adoption.
(C) Whenever a watercourse is to be altered or relocated:
(1) Notify adjacent communities and the California Department of Water Resources prior to such alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Insurance Administration. (2) Require that the flood-carrying capacity of the altered or relocated portion of said watercourse is maintained.
(D) Obtain and maintain for public inspection and make available as needed:
(1) The certification required in §§ 151.20(C)(1), (C)(2), (C)(3)(c), and (C)(4)(a) and (b);
(2) The certified elevation required in § 151.22(B);
(3) The certification required in § 151.24(B)(1).
(E) Make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in §§ 151.35 and 151.36.
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(F) Take action to remedy violations of this chapter as specified in § 151.08. (G) Substantial improvement and substantial damage determinations. For applications for building permits to improve buildings and structures, including alterations, movement, enlargement, replacement, repair, additions, rehabilitations, renovations, substantial improvements, repairs of substantial damage, and any other improvement of or work on such buildings and structures, the Floodplain Administrator, in coordination with the Building Official, shall:
(1) Estimate the market value, or require the applicant to obtain an appraisal of the market value prepared by a qualified independent appraiser, of the building or structure before the start of construction of the proposed work; in the case of repair, the market value of the building or structure shall be the market value before the damage occurred and before any repairs are made.
(2) Compare the cost to perform the improvement, the cost to repair the damaged building to its pre-damaged condition, or the combined costs of improvements and repairs, when applicable, to the market value of the building or structure. (3) Determine and document whether the proposed work constitutes substantial improvement or repair of substantial damage.
(4) Notify the applicant when it is determined that the work constitutes substantial improvement or repair of substantial damage and that compliance with the flood resistant construction requirements of the building code is required and notify the applicant when it is determined that work does not constitute substantial improvement or repair of substantial damage.
(H) Require applicants who submit hydrologic and hydraulic engineering analyses to support permit applications to submit to FEMA the data and information necessary to maintain the Flood Insurance Rate Maps when the analyses indicate changes in base flood elevations, flood hazard area boundaries, or floodway designations; such submissions shall be made within 6 months of such data becoming available. (I) When additional hydrologic, hydraulic or other engineering data, studies, and additional analyses are submitted to support an application, the applicant has the right to seek a Letter of Map Change from FEMA to change the base flood elevations, change floodway boundaries, or change boundaries of flood hazard areas shown on FIRMs, and to submit such data to FEMA for such purposes. The analyses shall be 599
65283.00001\41606501.1
prepared by a qualified CA Licensed Civil Engineer in a format required by FEMA.
Submittal requirements and processing fees shall be the responsibility of the applicant.
Provided FEMA issues a Conditional Letter of Map Revision, construction of proposed flood control projects and land preparation for development are permitted, including clearing, excavation, grading, and filling. Permits for construction of buildings shall not be issued until the applicant satisfies the FEMA requirements for issuance of a Letter of Map Revision.”
SECTION 13: Effective Date. This Ordinance shall take effect thirty (30) days after its adoption.
SECTION 14. California Environmental Quality Act. The City Council finds that this Ordinance is not subject to the California Environmental Quality Act (“CEQA”) pursuant to Sections 15061(c)(3) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment), 15060(c)(3) and 15378 (the activity is not a project under CEQA) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
SECTION 15. Severability. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each and every section, subsection, sentence, clause and phrase thereof not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional. //
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SECTION 16. Certification and Publication. The City Clerk of the City of Santa Paula shall certify to the adoption of this Ordinance and cause publication to occur in a newspaper of general circulation and published and circulated in the City in a manner permitted under California Government Code Section 36933.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City of Santa Paula, California on the ____ day of October, 2023. ____________________________
Andy Sobel, Mayor
ATTEST:
________________________________
Julie Latshaw, CMC, City Clerk
APPROVED AS TO FORM:
________________________________
Monica Castillo, Interim City Attorney
APPROVED AS TO CONTENT:
________________________________
Dan Singer, City Manager
601
To: Honorable Mayor and Members of the City Council
From: Julie Latshaw, City Clerk
Subject: APPOINTMENTS TO COMMISSIONS AND COMMITTEES
Date: September 6, 2023
Agenda Item: 12.A
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff Recommends that the City Council:
1. Appoint applicants to various Commissions and Committees.
Presented by: Julie Latshaw, City Clerk
BACKGROUND:
The City Clerk's office published Vacancy Notices for all open positions on Commissions, Committees and Boards, in the Santa Paula Times and on the city website and social media during the month of August.
In May 2023, Council appointed one returning applicant Commissioner to the Planning Commission. Since that time, two Commissioners terms expired September 4, 2023.
Planning Commission vacancies to fill two vacancies for four-year terms (9/6/2023- 9/6/2027). Applicant: Austin Auger is a returning applicant, who was serving a partial term 2/1/2023-9/4/2023; and Maria Grace Kelly is a returning applicant, who was serving a partial term 11/3/2021-9/4/2023. No other applications have been received. Staff recommends no interview and appointment of the returning applicants. If applicants are appointed, this committee will be filled.
In May 2022, Council appointed one new member and in July 2021, Council appointed four new members to the Senior Advisory Committee. Since that time, four member's terms expired July 7, 2023.
Senior Advisory Committee vacancies to fill two of four vacancies for two-years term (9/6/2023-9/6/2025). Applicants: Pamela Marshall is a returning applicant, who was serving a two-year term 7/7/2021-7/7/2023; and Gary Wellman is a returning applicant, who was serving a two-year term 7/7/2021-7/7/2023. Staff recommends appointment of the returning applicants. If both applicants are appointed, this committee will continue to have two open vacancies, of which staff will continue to advertise. 602
In February 2023, Council appointed one new member, filling the regular adult committee members. Since that time, the city has continued to advertise for two youth members between the ages of 14 and 17 at the time of appointment that would serve for terms of oneyear, or until a successor has been duly qualified and appointed.
Recreation Commission Youth Vacancy to fill one vacancy for a term of one-year, or until a successor has been duly qualified and appointed, serving (9/6/2023-9/6/2024).
Applicant: Lupita Cisneros was interviewed by Council at a Special Meeting on 9/6/2023. If applicant is appointed, the Recreation Commission will continue to have one open vacancy, of which staff will continue to advertise.
ANALYSIS:
None.
STRATEGIC PLAN:
This item is not a goal or objective in City Council’s two-year Strategic Plan, however, appointments to the Commissions, Committees and Boards described in this report assist in the furtherance of the Mission, Vision, and overarching categories and goals found within City Council’s two-year Strategic Plan.
FISCAL IMPACTS:
There are no associated fiscal impacts from this item.
OPTIONS:
The Council has the following available alternative option to Staff's Recommendation:
1. Decline to appoint one or more applicants; and
2. Direct staff to continue advertising for additional applicants.
ATTACHMENTS:
603
To: Honorable Mayor and Members of the City Council
From: Greg Barnes, Parks and Recreation Director
Subject: APPROVAL OF A YOUTH APPRENTICESHIP READINESS
ACCELERATOR (YARA) PROGRAM
Date: September 6, 2023
Agenda Item: 12.B
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends City Council:
1. Authorize the City Manager to execute all agreements related to the Youth Apprenticeship Readiness Accelerator (YARA) Program in a form approved by the City Attorney; and
2. Adopt Resolution No. 7479 establishing partial funding obligations associated with the City’s disbursement of American Rescue Plan Act (ARPA) funds allocating $100,000 of funding for the YARA program.
Presented by: Greg Barnes, Parks and Recreation Director BACKGROUND:
The Youth Apprenticeship Readiness Accelerator Program (YARA) is a 12-week accelerator pipeline for youth and young-adults, ages 16-24 years old, that helps them enter traditional and emerging workforce areas.
YARA will position graduates to transition directly into the job market with the necessary skill sets and qualifications for apprenticeship. YARA will prepare their graduates to enter a formal apprenticeship program.
The California PAL Youth Apprenticeship Readiness Model offers a collective of public-private organizations and agencies providing a suite of education and career path services to youth and young adults with the following objectives:
Provide workforce development and pre-apprenticeship programs to meet the skilled and trained labor force needs across Ventura County and Santa Barbara County;
Provide social mobility opportunities that close the wealth gap by creating pathways to living wage jobs, and economic equity;
Engage our key partners and collaborators, business and community leaders, 604
and educational institutions in creating career pathways and mentorship opportunities for youth.
Eliminate barriers to entry into a career in the trades by aligning state, federal, and private workforce development efforts in Ventura, Santa Barbara, and Sacramento Counties.
The program received funding from the State of California to continue to address the compounded challenges brought to light by the effects of COVID-19, including loss of jobs.
The program will also position under-resourced youth to transition into workforce and careers across California.
Over the past few months, staff has had discussions with representatives from the YARA Program regarding a possible partnership to bring this opportunity to the Santa Paula Community.
Those discussions led to a request by staff at the June 21, 2023, City Council meeting to set aside American Rescue Plan Act (ARPA) funds for a future discussion about YARA and the programs offerings.
ANALYSIS:
The program would consist of two cohorts per year over the next two years. The allocated ARPA funds, $100,000, would be used to pay for the class instructor. In addition, the City would provide class space for the cohort to meet two times per week during the 12-week sessions. Each cohort would consist of 12-15 students.
California State PAL would provide the funding for all the administrative costs, travel, food, and other related program costs including a stipend for each participant.
Provided Council approves the funding allocation at tonight's meeting, staff is ready to work alongside the YARA administration to recruit and promote this opportunity and work towards an aggressive timeline of hosting our first cohort before the end of the calendar year.
STRATEGIC PLAN:
Approval of this item moves the City closer to completing City Council's two-year Strategic Plan, Section F. Community Vitality, Objective #2 Internships - Expand and enhance a Citywide Internship and Apprentice Program by helping Santa Paula youth transition into the workforce and careers across California.
FISCAL IMPACTS:
On June 21, 2023, Council had a discussion related to the American Rescue Plan Act (ARPA) funds and subsequently adopted Resolution 7467, amending the City’s operating and CIP budget for FY2022-23. Prior to adopting the resolution, Council agreed to set aside $100,000 which was originally determined to go to the Santa Paula Police Department remodel, in future consideration for a potential apprenticeship program such as YARA. As such, $100,000 of ARPA funds are available for this effort.
The allocation request in Resolution No. 7479 includes revenues and expenses related to this 605
effort.
OPTIONS:
As an alternative to staff's recommendation, the City Council has the following options:
1. Approve the program, but do not allocate ARPA funding. This option will require staff to look for alternative funding sources; or
2. Provide alternative direction to staff; or
3. Do not approve a partnership with YARA. As a result, staff would have to research other possible apprenticeship programs.
ATTACHMENTS:
Santa Paula Ventura County YARA Informational Orientation Deck.pdf Resolution No. 7479 Amending the City's Operating and CIP Budget for FY2023-24.docx 606
Life After High School Conference
Law Enforcement &
Community Engagement
Certifications
Academic Support
• MC3 Certification (6 weeks)
• OSHA 10 Certification (2 weeks)
• Green Resources Certification (2 weeks)
• Diploma or GED Tract
• Career Pre-Requisite Tutoring
Economic & Racial Equity
Building Project
Advisory Council
Employment
CALIFORNIA PAL INNOVATIONS IN YOUTH APPRENTICESHIP READINESS PATHWAY Accelerator 9.0 - Promoting Employment, Living Wage Jobs and Life-Long Careers • 4-days, 3-Nights Fresno State University
• College/Career Readiness Workshops & Fair
• Life Skills, Resume & Business Interviews
• Motivational & Guest Speakers from Trades
• Outreach & Recruitment by Officers
• Outreach & Employment Fair
o Introduce Apprentice Opportunities
o Exhibitors From Trade
• Participants Eligible for 4-year Apprenticeship
• Construction Companies Invited to Sponsor
Apprentices
• Pathway to Construction Career
• Engage Local Leaders to Promote Trades
• Create Applicant Pool
• Create Employment Opportunities & Pathways
• Engage Employers to Improve Job Quality,
Reduce Barriers to Employment & Training
• Skilled & Trained
• Living Wage
• Community Reinvestment
o Home Ownership
• Onsite Projects
Pre-Apprenticeship Activities Begin
Grad Week
• Construction Olympics
• Formal Graduation Ceremony
• Graduation Barbeque
o College Access 607
Blueprint for Youth Apprenticeship Readiness Model
Fiscal Agent, Grant
Management, Training, and
Coordination
Participants
• At-Promise Youth
• PAL Police Officers
Learning & Program
Outcomes
• GED Equivalent
• High School Diploma
• MC3 Certification
• OSHA 10 Certification
• Green Resources Certification
• Financial Literacy (general)
• Ready to Work Skills
• Commercial Construction Skills
• Residential Construction Skills
• General Construction Skills
• Workplace Health & Safety
• Mastery of Academic Career
Pre-requisites
• Introduction to Construction
Careers
• Pathway to LiUNA 4-Year
Apprenticeship Program
• Pre-Apprenticeship Certification
• Opportunity to Grow with
Additional Trades
• Training
• Workforce Development
• Pre-Apprenticeship
• Recreational Programs
• Educational Programs
• Enrichment Programs
• Youth Pool
• Facility
• Adult Basic Education
• Career Technical Education
• English as Second Language
• High School Equivalency
• High School Diploma
• Training
• Workforce Development
• Pre-Apprenticeship
• WIOA Youth Enrollment
• Case Management
• Performance Tracking
• Pre-Apprenticeship Pathway
Support Tools & Services
Green Resources:
• Project Opportunities
• Training & Development
• Certification
• Project Opportunities
• Training & Development Pathways
• Youth Pool
• Pre-Apprenticeship Pathway
• Project Opportunities
• Training & Development
• Certification
• Harbor Freight Fellowships
• > 10th Grade: $1,000 Scholarship w/120
Hours Apprenticeship w/Trades Mentor
• < 10th Grade: $500 Scholarship w/60
Hours Apprenticeship w/Trades Mentor 608
RESOLUTION NO. 7479
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA PAULA, CALIFORNIA, AMENDING THE CITY’S OPERATING AND CIP BUDGET FOR FISCAL YEAR 2023/24.
SECTION 1: The City Council for the City of Santa Paula does resolve as follows:
A. The City Council adopted the Operating Budget and Capital Improvement program for Fiscal Year 2023/24 on June 21, 2023.
B. The Fiscal Year 2022/23 Budget revenues have increased by $3.5 million in FY 22/23 due to additional funding made available by the American Rescue Plan Act (“ARPA”).
C. The Council discussed various ways to allocate the ARPA funds in various study sessions over the past nineteen months.
D. Previous budget allocations ARPA funds for Fiscal Years 2020/21 and 2021/22 were approved by Council via Resolutions 7467, 7342, 7347, 7351, 7352, 7366, 7381, 7416, and 7418.
SECTION 2: The City Manager has proposed a budget adjustment as described in the Council report dated September 6, 2023 for Fiscal Years 2023/24 based direction provided by the City Council.
SECTION 3: The City Council has reviewed the proposed budget for use of a portion of the ARPA funds and does hereby find the recommendation to be necessary and in the City’s best interest.
SECTION 4: The City of Santa Paula’s operating and CIP Budget for Fiscal Year 2023/24 is hereby amended as follows:
GENERAL LEDGER USE OF FUNDS DESCRIPTION INCREASE DECREASE 412-4-7500-4277 Unallocated ARPA Funds $ 100,000
412-5-1502-209 YARA Program $ 100,000
SECTION 6: The City Clerk will certify to the passage and adoption of this Resolution; will enter the same in the book of original Resolutions of said City; will make a minute of the passage and adoption thereof in the record of proceedings of the City Council of said City, in the minutes of the meeting at which the same is passed and adopted.
PASSED, AND ADOPTED, this 6th day of September, 2023.
609
_____________________
Andy Sobel, Mayor
ATTEST:
_________________________
Julie Latshaw, City Clerk
Approved as to form:
_______________________________
Monica Castillo, Interim City Attorney
Approved as to content:
_______________________________
Dan Singer, City Manager
610
To: Honorable Mayor and Members of the City Council
From: Clete Saunier, Public Works Director
Subject: FINANCING AGREEMENT FOR ADVANCED WATER TREATMENT
FACILITY
Date: September 6, 2023
Agenda Item: 12.C
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends that the City Council, sitting as the City Council of the City and the Board of Directors of the Santa Paula Utility Authority:
1. Adopt Resolution No. 7474 authorizing each of the Executive Director and Chair and their written designees to execute and deliver the Financing Agreement in the name of and on behalf of the Utility Authority for the final development and construction of the Advanced Water Treatment Facility.
Presented by:
Clete J. Saunier, Public Works Director
Eileen Shields, MKN & Associates
BACKGROUND:
The Authority currently leases the City’s municipal wastewater collection system from the City under a lease executed in 2010 and amendments thereto.
The system's Water Recycling Facility (WRF) was completed in 2010 and operates under a permit from the Los Angeles Regional Water Quality Control Board (LARWQCB) to discharge treated wastewater. The permit was amended in May 2022 (Waste Discharge Requirements R4-2018-0022-A1). The permit requires that chloride concentration in the effluent discharge be less than 110 milligrams per liter (mg/L) to meet a groundwater quality objective of 110 mg/L. Historically, the discharge has exceeded this limit, and the City received a Cease and Desist Order (CDO) for the WRF in February 2018 (CDO R4-2018-0023-A1, amended in May 2022) requiring the discharge be brought into compliance. The CDO allows ten years for the City to achieve full compliance with the effluent chloride limit by February 8, 2028.
The City has been developing an Advanced Water Treatment Facility Project to bring the WRF treated effluent into compliance with the effluent chloride limit at an anticipated capital cost of over $20 Million and an anticipated operating and maintenance cost of over $1 Million per year.
611
As part of the project, City staff has been pursuing low-interest financing. In order to assist the City in financing improvements to the system, the City and the Authority have proposed to undertake financing for the design and construction of the project from the State Water Resources Control Board (SWRCB), Division of Financial Assistance administers the Clean Water State Revolving Fund (CWSRF) loan program, which repayment obligation will be a special limited obligation of the Authority. The CWSRF program has a fixed amount of funds available each year and provides loans to agencies for wastewater and recycled water projects based on a priority scoring system. The program’s low interest rates, now at 2.6%, and other favorable terms help lower total project costs, maximizing benefits to ratepayers.
In December 2020, the City completed the CWSRF loan application for the Project. In April 2021, SWRCB determined that the City’s project was “fundable”, and the SWRCB began the full application review process. In January 2022, the City received notification that the SWRCB completed the environmental review and they were beginning the financial and legal reviews.
The final loan agreement was not received until May 2023. City staff, general counsel, and bond counsel completed review of the loan agreement.
In 2022, due to a downward trend in the WRF treated effluent chloride concentrations, the City performed a Chloride Study to try to identify potential chloride sources in the collection system and estimate whether the downward trend in chloride concentration is likely to continue. In November 2022, City staff presented the Wastewater System Collection System Chloride Source Evaluation technical memorandum (TM). The TM summarized a study conducted by the City, Ventura Regional Sanitation District (VRSD), and MKN. The objective of the study was to evaluate concentrations of chloride in Santa Paula’s wastewater collection system in an attempt to identify potential sources, consider potential source control measures, and estimate whether the downward trend in chloride concentration is likely to continue. While the sampling program could not confirm the cause of reduction in chloride levels, it indicated collection system conditions will drive WRF effluent chloride concentrations. Collection system samples were routinely above 100 mg/L and some were above 110 mg/L, the current WRF chloride limit. City Council directed staff to request an extension to the interim milestones of the CDO to continue studying the collection system chloride levels and evaluate the potential for the WRF to meet the chloride limits without the AWTF Project.
At the August 16, 2023 City Council Meeting, City Council received an update on the Wastewater Chloride Source Identification Study. Based on the historical trend of decreasing chlorides in the WRF Effluent and the high costs of the AWTF Project, the City has been working to develop a Chloride Source Identification Study to explore chloride reduction strategies, while simultaneously continuing efforts towards final execution of a final CWSRF loan agreement with the SWRCB for the AWTF in case the additional treated is needed at the WRF to control chlorides and meet permit limits. It is understood through conversations with staff at SWRCB Division of Financial Assistance (DFA) that the agreement can be executed and interest will not accrue until the City submits payment requests for reimbursement of eligible expenses. Additionally, DFA staff have verbally indicated that as long as the general scope of the project has not substantially changed, the CWSRF Loan could still be used to finance a smaller AWTF project with the loan amount amended, as needed.
ANALYSIS:
SRF Financing Agreement
612
In May 2023, the City and Authority received the final form of the financing agreement from SWRQCB for review and execution (attached as Exhibit B). Staff and legal counsel have reviewed Resolution 7474 and it is attached as Exhibit A. Resolution 7474 authorizes the execution and delivery of and approves a financing agreement with the California State Water Resources Control Board along with certain other actions in connection therewith for the AWTF Project. General Counsel’s opinion, supporting execution of the financing agreement is included as Exhibit C. The City Council approved the City’s participation in the financing pursuant to Council Resolution 7308 adopted November 18, 2020.
Staff recommends adoption of Resolution 7474. This secures the CWSRF loan for the AWTF Project. Staff recommends not submitting any reimbursement requests, which would draw on the loan, until results of the Chloride Source Identification Study are available and City Council is able to review and determine the desired path forward. It is anticipated that the alternative paths forward for the project consist of the following:
1. Chloride Source Identification Study identifies one or more sources that appear to be contributing to high wastewater chlorides and source control strategies are developed, resulting WRF effluent chlorides are consistently below limit of 110 mg/L without additional treatment required.
2. Chloride Source Identification Study determines there are not identifiable contributors to the wastewater chlorides and it is found that chlorides cannot be controlled in the collection system. At which time, two options can be pursued:
1. Move forward with AWTF Project as currently designed.
2. Re-evaluate AWTF design criteria, as recent data suggest the project may be oversized.
The initial tasks of the Chloride Source Identification workplan have been completed. Staff anticipates receiving the draft report expected by October 2023, and will return to City Council with an update in October or November 2023
Next Steps:
Staff recommends the following next steps:
1. Adopt Resolution 7474 authorizing the execution and delivery of and approving a financing agreement with the California State Water Resources Control Board along with certain other actions in connection therewith for the AWTF Project.
2. Execute and return CWSRF financing agreement.
3. Submit an update to LARWQCB regarding completion of the loan agreement and provide update on chloride study.
4. Complete Chloride Source Identification Study. Staff anticipates receiving a draft report by October 2023.
5. Based on results of the Chloride Study, determine path forward for AWTF and/or control of chlorides in the treated WRF effluent.
Good Faith Estimates. California Government Code Section 5852.1 requires that good faith estimates of specified information are disclosed and available to the public prior to undertaking a financing of this type. Information meeting the requirement has been obtained from the City’s municipal advisor and is set forth in Exhibit A to the Resolution. 613
STRATEGIC PLAN:
This item is not a goal or objective in the City Council’s two-year Strategic Plan, however, it will allow for a low-interest loan to fund the AWTF Project if and when City Council determines the Project is required for meeting treatment requirements at the WRF.
FISCAL IMPACTS:
Fiscal impacts would be realized if and when the City submits a reimbursement request, which would draw on the loan and begin to accrue interest. We do not recommend the City submit any reimbursement requests until after the Chloride Study is completed, City Council is presented with information, and only if City Council decides to move forward with the AWTF Project.
The annual payment on a $20.5m loan with a 2.6% interest rate is $985,000. Should the need to move forward with the project be needed, staff will return for an allocation request at a later time.
OPTIONS:
The Council has the following available alternative options to Staff’s recommendations:
1. Do not adopt Resolution 7474. This results in not executing the low-interest loan for the AWTF Project and risks funding for the construction, should the City move forward with the project in the future.
2. Provide alternative direction to staff.
ATTACHMENTS:
Exhibit B - Santa Paula Utility Authority Agreement.pdf Exhibit C - General Counsel Opinions SPUA & COSP for SRF Loan.pdf Exhibit A - Authority Reso 7474 Authorizing ISA SRF Loan Agmt 614
EXHIBIT B
State Revolving Fund Loan Agreement for City of Santa
Paula Advanced Water Treatment Facility
615
Water Boards
State Water Resources Control Board
May 16, 2023
Santa Paula Utility Authority
Attn: Dan Singer, Executive Director
PO Box 569
Santa Paula, CA 93061
Agreement Number: D2201018
Project Number: C-06-8577-110
GAVI N NEWSOM
GOVt-R NOA
~ YANA GARCIA l '-........~ SECflEIAIW FOn
,.....,. ENVIRON MH ITAL PROTECT ION
Please review, and if appropriate, electronically sign the signature page of the Agreement via Adobe Sign no later than thirty (30) calendar days from the date of this letter. Once electronically signed, the Agreement will be routed automatically to the next signer. You will automatically receive a copy of the fully executed Agreement via Adobe Sign once the final signer has signed. This Agreement cannot be considered binding by either party until executed by the State Water Resources Control Board (State Water Board).
For the Funding Agreement to be executed by the State Water Board, the following items must also be returned electronically with the signed signature pages: The Opinion will need to be dated and signed on or after the date the agreement is signed. Counsel can file and attach the letters and submit them back to Adobe.
1. Opinion of General Counsel.
2. Bond Counsel Letter.
3. Closing Resolution.
If you have questions about the General Counsel Opinion Letter, Bond Counsel Letter, and Closing Resolution should be directed by your legal counsel to Anthony Austin , at (916) 319-8558 or email at [email protected].
Be aware that all projects receiving funding must comply with all applicable implementing guidelines and regulations adopted by the California Department of Industrial Relations (DIR), regarding state prevailing wage requirements. You must contact DIR for guidance on how to comply . Information can be found at:
http://www.dir.ca.gov/lcp.asp.
Davis Bacon Compliance:
https://www.waterboards.ca.gov/water issues/programs/grants loans/srf/davisbacon.shtml Disadvantaged Business Enterprise (DBE)
https://www.waterboards.ca.gov/water issues/programs/grants loans/srf/docs/policy0513/dbe complianc e guidelines instructions. pdf
We strive to provide superior service to our recipients and would appreciate your feedback on the application process. Please assist us in completing a 5-minute Customer Satisfaction Survey at https://www.surveymonkey.com/s/CWSRFSatisfaction so we can continue to improve on our service and process. Your comments are valuable to the success of the CWSRF Program. Thank you for your time and we look forward to continuing to work with you.
E . J OAQU IN E SQUIVEL, CHAIR I EIL EEN S OBE CK , EXECUTIVE DIRECTOR 1 001 I Street, Sacramento, CA 95814 I Mailing Address: P.O. Box 100, Sacramento, CA 95812-0100 I www.waterboards.ca.gov 616
Your Agreement may be funded with Federal Capitalization Grants (Catalog of Federal Domestic Assistance No. 66.458 OR DW Catalog of Federal Domestic Assistance No. 66.468). If your financing agreement is funded with a Federal Capitalization Grant, you must comply with the rules and regulations in Subpart F of Title 2 U.S. Code of Federal Regulations (CFR) Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. These requirements include the submission of a single or program audit if you expend $750,000 or more of Federal funds during your fiscal year. The receipt of Federal funds may be directly from the Federal government or via a passthrough entity such as the State Water Resources Control Board. In addition to other reporting requirements, your Single Audit Report must be submitted to the State Controller's Office and to the State Water Resources Control Board, Division of Financial Assistance within nine months after the end of your fiscal year.
Ms. Koreenia Harmon may be contacted at (916) 319-0807 or [email protected].
Enclosures
617
Clean Water 'lt.1h. I\ \'t'h. IH·l. t u11~I
CLEAN WATER
SANTA PAULA UTILITY AUTHORITY (RECIPIENT)
AND
CITY OF SANTA PAULA (CITY)
AND
CALIFORNIA STATE WATER RESOURCES CONTROL BOARD (STATE WATER BOARD) I 1 • f • • • T f • "f ',) .. f' t 0 'O • •ltl I 0 • "II • f:J ,, •• , •••• • " • '. (,.,,.,.,,, •0••11•
CONSTRUCTION
INSTALLMENT SALE AGREEMENT
CITY OF SANTA PAULA ADVANCED WATER TREATMENT FACILITY
PROJECT NO. C-06-8577-110
AGREEMENT NO. D2201018
PROJECT FUNDING AMOUNT: $20,340,000
ESTIMATED REASONABLE PROJECT COST: $20,340,000
ELIGIBLE WORK START DATE: AUGUST 1, 2019
ELIGIBLE CONSTRUCTION START DATE: NOVEMBER 30, 2023
CONSTRUCTION COMPLETION DATE: JULY 31 , 2026
FINAL REIMBURSEMENT REQUEST DATE: JANUARY 29, 2027
FINAL PAYMENT DATE: JULY 31 , 2056
RECORDS RETENTION END DATE: JULY 31 , 2062
dobe Acrobo t Sign Transoction Number: CBJCHBCMBAAhN8qGQhxGgZcGoybdTnE89NjVnQR4frB 618
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City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
Page i of 51
table of contentsAGREEMENT ..................................................................................................................... 1
1. AUTHORITY .......................................................................................................................................... 1
2. INTENTION ............................................................................................................................................ 1
3. AGREEMENT, TERM, DOCUMENTS INCORPORATED BY REFERENCE ....................................... 1
4. PARTY CONTACTS .............................................................................................................................. 3
5. DEFINITIONS ........................................................................................................................................ 3 EXHIBIT A- SCOPE OF WORK ................................................................................................................ 10 A.1. PROJECT DESCRIPTION, USEFUL LIFE, AND SCOPE OF WORK ......................................... 10 A.2. STANDARD PROJECT REQUIREMENTS ...................................................................................... 10 A.2.1 Acknowledgements .................................................................................................................................. 10 A.2.2 Reports ..................................................................................................................................................... 10 A.2.2.1 Progress Reports .............................................................................................................................. 10 A.2.2.2 Project Con1pletion Report. ............................................................................................................. 11 A.2.2.3 As Needed Reports ....................................................................................................................... ..-.' 11 A.2.2.4 DBE Reports for SRF Projects ........................................................................................................ 11 A.2.3 Signage .................................................................................................................................................... 12 A.2.4 Commencement of Operations ................................................................................................................ 13 A.3 DATES & DELIVERABLES .............................................................................................................. 13 A.4 SCHEDULE ...................................................................................................................................... 13 EXHIBIT B - FUNDING TERMS ................................................................................................................. 15 B.1.
B.1.1
B.1.2
B.1.3
B.1.4
B.1.5
B.1.6
B.1.7
B.1.8
B.1.9
FUNDING AMOUNTS AND REIMBURSEMENTS ...................................................................... 15 Funding Contingency and Other Sources ................................................................................................ 15 Estimated Reasonable Cost. ..................................................................................................................... 15 Project Funding Amount. ......................................................................................................................... 15 [Reserved.] ................................................................................................................................................ 15 Budget Costs ............................................................................................................................................ 15 Contingent Disbursement. ....................................................................................................................... 16 Reimbursement Procedure ....................................................................................................................... 16 Withholding of Disbursements ................................................................................................................ 17 Fraud and Misuse of Public Funds; Enforcement. ................................................................................... 18 B.2 RECIPIENT'S PAYMENT OBLIGATION, PLEDGE, AND RESERVE ............................................. 18 B.2.1 Project Costs ............................................................................................................................................ 18 B.2.2 Estimated Principal Payment Due ........................................................................................................... 18 B.2.3 Interest Rate and In-Lieu of Interest Charges .......................................................................................... 18 B.2.4 [Reserved.] ............................................................................................................................................... 19 B.2.5 Obligation Absolute ................................................................................................................................. 19 B.2.6 Payment Timing ....................................................................................................................................... 19 B.2.7 Pledged Revenues .................................................................................................................................... 20 B .2. 7 .1 Establishment of Enterprise Fund and Reserve Fund .......................................................................... 20 B.2.7.2 Pledge of Net Revenues, Enterprise Fund, and Reserve Fund ............................................................. 20 620
B.2.7.3
B.2.8
B.2.9
B.2.10
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
Page ii of 51
Application and Purpose of the Enterprise Fund ................................................................................. 20 [Reserved.] ............................................................................................................................................... 20 No Prepayment. ....................................................................................................................................... 20 Reserve Fund ....................................................................................................................................... 21 B.3 RATES, FEES AND CHARGES ...................................................................................................... 21 B.4 ADDITIONAL DEBT ......................................................................................................................... 21 B.5 NO LIENS ......................................................................................................................................... 22 EXHIBIT C-GENERAL & PROGRAMMATIC TERMS & CONDITIONS .................................................. 23 C.1 REPRESENTATIONS & WARRANTIES ......................................................................................... 23 C.1.1 Application and General Recipient Commitments .................................................................................. 23 C.1.2 Authorization and Validity ...................................................................................................................... 23 C.1.3 No Violations ........................................................................................................................................... 23 C.1.4 No Litigation ............................................................................................................................................ 23 C.1.5 Property Rights ........................................................................................................................................ 24 C.1.6 Solvency and Insurance ........................................................................................................................... 24 C.1.7 Legal Status and Eligibility ...................................................................................................................... 24 C.1.8 Financial Statements and Continuing Disclosure .................................................................................... 24 C.1.9 System Obligations .................................................................................................................................. 24 C.1.10 No Other Material Debt. .......................................................................................................................... 24 C.1.11 Compliance with State Water Board Funding Agreements ..................................................................... 24 C.2 DEFAULTS AND REMEDIES .......................................................................................................... 25 C.2.1 Return of Funds; Acceleration; and Additional Payments ....................................................................... 25 C.2.2 [Reserved.] ............................................................................................................................................... 25 C.2.4 Judicial reme\fies ..................................................................................................................................... 25 C.2.5 Termination ............................................................................................................................................. 26 C.2.6 Damages for Breach of Tax-Exempt Status ............................................................................................. 26 C.2.7 Damages for Breach of Federal Conditions ............................................................................................. 26 C.2.8 Remedies and Limitations ....................................................................................................................... 26 C.2.9 Non-Waiver .................................................................................................................. ~ .......................... 26 C.2.10 Status Quo ................................................................................................................................................ 26 C.3 STANDARD CONDITIONS .................................................................................................................. 26 C.3.1 Access, Inspection, and Public Records .................................................................................................. 26 C.3.2 Accounting and Auditing Standards; Financial Management Systems; Records Retention .................... 27 C.3.3 Amendment. ............................................................................................................................................ 28 C.3.4 Assignability ............................................................................................................................................ 28 C.3.5 Audit. ....................................................................................................................................................... 28 C.3.6 Bonding ................................................................................................................................................... 28 C.3.7 Competitive Bidding ................................................................................................................................ 28 C.3.8 Compliance with Applicable Laws, Rules, and Requirements ................................................................ 28 C.3.9 Computer Software .................................................................................................................................. 29 C.3 .10 Conflict of Interest. .................................................................................................................................. 29 C.3.11 Continuous Use of Project; No Lease, Sale, Transfer of Ownership, or Disposal of Project. ................. 29 C.3.12 Data Management. ................................................................................................................................... 29 C.3 .13 Disputes ................................................................................................................................................... 29 C.3.14 [Reserved.] ............................................................................................................................................... 29 C.3.15 Environmental Clearance ....................................................................... : ................................................. 30 C.3.16 Governing Law ........................................................................................................................................ 30 C.3.17 Income Restrictions ................................................................................................................................. 30 ii 621
C.3.18
C.3.19
C.3.20
C.3.21
C.3.22
C.3.23
C.3.24
C.3.25
C.3.26
C.3.27
C.3.28
C.3.29
C.3.30
C.3.31
C.3.32
C.3.33
C.3.34
C.3.35
C.3.36
C.3.37
C.3.38
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
Page iii of 51
Indemnification and State Reviews ......................................................................................................... 30 Independent Actor ................................................................................................................................... 31 Integration ................................................................................................................................................ 31 Leveraging Covenants ............................................................................................................................. 31 No Discrin1ination ................................................................................................................................... 31 No Third Party Rights .............................................................................................................................. 32 No Obligation of the State ....................................................................................................................... 32 Notice ....................................................................................................................................................... 32 Operation and Maintenance; Insurance .................................................................................................... 35 Permits, Subcontracting, and Remedies ................................................................................................... 35 Professionals ............................................................................................................................................ 36 Prevailing Wages ... ; ................................................................................................................................. 36 Public Funding ......................................................................................................................................... 36 ·Responsibility for Work. .......................................................................................................................... 36 Related Litigation .................................................................................................................................... 36 Rights in Data .......................................................................................................................................... 3 6 State Water Board Action; Costs and Attorney Fees ............................................................................... 37 Timeliness ................................................................................................................................................ 3 7 Unenforceable Provision .......................................................................................................................... 37 Venue ....................................................................................................................................................... 37 Waiver and Rights of the State Water Board ........................................................................................... 37 C.4 MISCELLANEOUS STATE AND FEDERAL REQUIREMENTS .......................................................... 37 C.4.1 Russian Sanctions .................................................................................................................................... 37 C.4.2 State Cross-Cutters .................................................................................................................................. 38 C.4.3 Federal Requirements and Cross-Cutters for SRF Funding ..................................................................... 39 EXHIBIT D- SPECIAL CONDITIONS ........................................................................................................ 45 EXHIBIT E - PAYMENT SCHEDULE ......................................................................................................... 46 EXHIBIT F-TAX CERTIFICATE ............................................................................................................... 47 F.1 Purpose .......................................... , ................................................................................................. 47 F.2 Tax Covenant. .................................................................................................................................. 47 F.3 Governmental Unit. .......................................................................................................................... 47 F .4 Financing of a Capital Project. ......................................................................................................... 4 7 F.5 Ownership and Operation of Project. ............................................................................................... 47 F.6 Temporary Period ............................................................................................................................. 47 F. 7 Working Capital. ............................................................................................................................... 48 F.8 Expenditure of Proceeds .................................................................................................................. 48 F.9 Private Use and Private Payments ................................................................................................. .48 F.10 No Sale, Lease or Private Operation of the Project. ..................................................................... 48 F.11 No Disproportionate or Unrelated Use ......................................................................................... 49 iii 622
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: 02201018
Project No.: C-06-8577-110
Page iv of 51
F .12 Management and Service Contracts ............................................................................................ 49 F .13 No Disposition of Financed Property ............................................................................................ 49 F .14 Useful Life of Project. .................................................................................................................... 49 F.15 Payments ...................................................................................................................................... 49 F .16 No Other Replacement Proceeds ................................................................................................. 49 F.17 No Sinking or Pledged Fund ......................................................................................................... 50 F.18 Reserve Amount. .......................................................................................................................... 50 F.19 Reimbursement Resolution .......................................................................................................... 50 F.20 Reimbursement Expenditures ...................................................................................................... 50 F.21 Change in Use of the Project.. ...................................................................................................... 50 F.22 Rebate Obligations ....................................................................................................................... 50 F.23 No Federal Guarantee ............... : .................................................................................................. 51 F.24 No Notices or Inquiries from IRS .................................................................................................. 51 F.25 Amendments ................................................................................................................................. 51 F.26 Reasonable Expectations ............................................................................................................. 51 F.27 Assignment. .................................................................................................................................. 51 iv 623
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: 02201018
Project No.: C-06-8577-110
AGREEMENT
1. AUTHORITY.
(a) The State Water Resources Control Board (State Water Board) is authorized, and implements its authority, to provide financial assistance under this Installment Sale Agreement (Agreement) pursuant to Section 13475 et seq. of the Water Code, and Resolution Nos. 2019-0064 and 2022-0040. (b) The City of Santa Paula (City) is authorized to enter into this Agreement pursuant to Resolution No. 7038, dated November 18, 2020. ·
(c) The Santa Paula Utility Authority (Authority or Recipient) is authorized to enter into this Agreement pursuant to Resolution No. 7398, dated May 4, 2020.
2. INTENTION.
(a) The Recipient desires to receive financial assistance for and undertake work required for the wastewater construction Project according to the terms and conditions set forth in this Agreement. (b) The State Water Board proposes to assist in providing financial assistance for eligible costs of the Project in the amount set forth in Exhibit B, according to the terms and conditions set forth in this Agreement, with the expectation that the Recipient shall repay all of the financial assistance to the State Water Board.
(c) The Recipient intends to evidence its obligation to submit Payments to the State Water Board and secure its obligation with Net Revenues of its wastewater enterprise, as set forth in Exhibit B, according to the terms and conditions set forth in this Agreement.
(d) The Recipient intends to certify and evidence its compliance with the Tax Covenants set forth in Exhibit F.
(e) The City intends to operate and maintain the System as the appointed agent of the Recipient.
Pursuant to a Wastewater Enterprise Lease Agreement, dated February 1, 2010, and amendments, by and between the Recipient and the City, the City was appointed as the Recipient's agent to carry out all aspects of the operation and maintenance of the System.
3. AGREEMENT, TERM, DOCUMENTS INCORPORATED BY REFERENCE.
In consideration of the mutual representations, covenants and agreements herein set forth, the State Water Board, the City, and the Recipient, each binding itself, its successors and assigns, do mutually promise, covenant, and agree to the terms, provisions, and conditions of this Agreement. (a) The Recipient hereby sells to the State Water Board and the State Water Board hereby purchases from the Recipient the Project. Simultaneously therewith, the Recipient hereby purchases from the State Water Board, and the State Water Board hereby sells to the Recipient, the Project in accordance with the provisions of this Agreement. All right, title, and interest in the Project shall immediately vest in the Recipient on the date of execution and delivery of this Agreement by the parties without further action on the part of the Recipient or the State Water Board. (b) Subject to the satisfaction of any condition precedent to this Agreement, this Agreement shall become effective upon the signature of the parties. Conditions precedent are not limited to the following:
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City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
i. The Recipient and the City must each deliver to the Division a resolution authorizing this Agreement.
ii. The Recipient and the City must each deliver an opinion of bond counsel and general counsel satisfactory to the State Water Board's counsel dated on or after the date that the Recipient and the City sign this Agreement.
(c) Upon execution, the term of the Agreement shall begin on the Eligible Work Start Date and extend through the Final Payment Date.
(d) This Agreement includes the following exhibits and attachments thereto:
i. EXHIBIT A- SCOPE OF WORK
ii. EXHIBIT B - FUNDING TERMS
iii. EXHIBIT C-GENERAL & PROGRAMMATIC TERMS & CONDITIONS iv. EXHIBIT D - SPECIAL CONDITIONS
v. EXHIBIT E- PAYMENT SCHEDULE
vi. EXHIBIT F-TAX CERTIFICATE
(e) This Agreement includes the following documents incorporated by reference:
i. the Final Plans & Specifications, which are the basis for the construction contract to be awarded by the Recipient;
ii. the Waste Discharge Requirement Order No. R4-2018-0022; iii. the City's Reimbursement Resolution No. 7382 dated January 19, 2022; iv. the Recipient's Reimbursement Resolution No. 7399 dated May 4, 2022; v. the City's Tax Questionnaire dated February 23, 2022; vi. the Recipient's Tax Questionnaire dated June 22, 2022; vii. the Davis-Bacon requirements found at:
https://www.waterboards.ca.gov/water issues/programs/grants loans/srf/docs/2022/dav is-bacon-2022-cwsrf-governmental-entities-public.pdf;
viii. the Wastewater Enterprise Lease Agreement dated as of February 1, 2010, by and between Santa Paula Utility Authority and the City of Santa Paula, as amended; (f) This Agreement, and any amendments hereto, may be executed and delivered in any number of counterparts, each of which when delivered shall be deemed to be an original, but such counterparts shall together constitute one document. The parties may sign this Agreement, and any amendments hereto, either by an electronic signature using a method approved by the State Water Board or by a physical, handwritten signature. The parties mutually agree that an electronic signature using a method approved by the State Water Board is the same as a physical, handwritten signature for the purposes of validity, enforceability, and admissibility.
CWSRF 3x2022 625
4. PARTY CONTACTS
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
State Water Board City of Santa Paula Santa Paula Utility Authority Section: Division of Financial
Assistance
Name: Ashley Zellmer, Name: City Manager Name: Dan Executive Director Project Manager Dan Singer Singer
Address: 1001 I Street, 16th Address: P.O. Box 569 Address: P.O. Box 569 Floor
City, Sacramento, CA City, State, City, State, Santa Paula, CA 93061 State, Zip: 95814 Zip:
I Santa Paula, CA
93061 Zip:
Phone: (916) 341-5811 Phone: (805) 235-5766 Phone: (805) 235-5766 Email: Ashley .Zellmer@wat Email: [email protected] Email: [email protected] erboards.ca.gov
The Recipient and the City may change their contacts upon written notice to the Division, which notice shall be accompanied by authorization from the Recipient's and the City's Authorized Representatives, respectively. The State Water Board will notify the Recipient and the City of any changes to its contact.
While the foregoing ·are contacts for day-to-day communications regarding Project work, the Recipient and the City shall provide official communications and events of Notice as set forth in Exhibit C to the Division's Deputy Director. ·
5. DEFINITIONS.
Unless otherwise specified, each capitalized term used in this Agreement has the following meaning:
"Additional Payments" means the reasonable extraordinary fees and expenses of the State Water Board, and of any assignee of the State Water Board's right, title, and interest in and to this Agreement, in connection with this Agreement, including all expenses and fees· of accountants, trustees, staff, contractors, consultants, costs, insurance premiums and all other extraordinary costs reasonably incurred by the State Water Board or assignee of the State Water Board. "Additional Revenues" means, with respect to the issuance of additional parity or subordinate debt in accordance with requirements set forth in Section B.4, an allowance for Net Revenues, arising from any increase in rates, fees, and charges for the services of the System which has become effective in the most recent Fiscal Year and is expected to continue for the duration of such proposed additional parity or subordinate debt, and which the Recipient has begun to collect, in an amount equal to the total amount by which the Net Revenues would have been increased if such increase in rates, fees, and charges had been in effect during the whole of such Fiscal Year, minus the actual amount by which the Net Revenues have been increased since such increase in rates, fees, and charges in the most recent Fiscal Year became effective.
"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. "Agreement" means this agreement, including all exhibits and attachments hereto. "Authority" means the Santa Paula Utility Authority, a joint exercise of powers authority organized and existing under the laws of the State of California.
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City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
"Authorized Representative" means the duly appointed representative of each Recipient as set forth in the certified original of each Recipient's authorizing resolution that designates the authorized representative by title.
"Bank" means the California Infrastructure and Economic Development Bank. "Bond Funded Portion of the Project Funds" means any portion of the Project Funds which was or will be funded with Bond Proceeds.
"Bond Proceeds" means original proceeds, investment proceeds, and replacement proceeds of Bonds. "Bonds" means any series of bonds issued by the Bank, the interest on which is excluded from gross income for federal tax purposes, all or a portion of the proceeds of which have been, are, or will be applied by the State Water Board to fund all or any portion of the Project Costs or that are secured in whole or in part by Payments paid hereunder.
"Charge In Lieu of Interest" means any fee or charge in lieu of some or all of, but not to exceed, the interest that would otherwise be owed under this Agreement, as set forth in Exhibit E. "City" means the City of Santa Paula, a municipal corporation and general law city organized and existing under the laws of the State of California.
"Code" as used in Exhibit F of this Agreement means the Internal Revenue Code of 1986, as amended, and any successor provisions and the regulations of the U.S. Department of the Treasury promulgated thereunder.
"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 identified in Exhibit A of this Agreement.
"Cover Page" means the front page of this Agreement.
"Days" means calendar days unless otherwise expressly indicated. "Debt Service" means, as of any date, with respect to outstanding System Obligations and, in the case of the additional debt tests in Exhibit B of this Agreement, any System Obligations that are proposed to be outstanding, the aggregate amount of principal and interest scheduled to become due (either at maturity or by mandatory redemption), together with any Charge In Lieu of Interest on this Obligation or other System Obligations to the State Water Board, calculated with the following assumptions:
a. Principal payments (unless a different subdivision of this definition applies for purposes of determining principal maturities or amortization) are made in accordance with any amortization schedule published for such principal, including any minimum sinking fund payments; b. Interest on a variable rate System Obligation that is not subject to a swap agreement and that is issued or will be issued as a tax-exempt obligation under federal law, is the average of the SIFMA Municipal Swap Index, or its successor index, during the 24 months preceding the date of such calculation;
c. Interest on a variable rate System Obligation that is not subject to a swap agreement and that is issued or will be issued as a taxable obligation under federal law, is the average of SOFR, or its successor index, during the 24 months preceding the date of such calculation; CWSRF 3x2022 627
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
d. Interest on a variable rate System Obligation that is subject to a swap agreement is the fixed swap rate or cap strike rate, as appropriate, if the variable rate has been swapped to a fixed rate or capped pursuant to an interest rate cap agreement or similar agreement; e. Interest on a fixed rate System Obligation that is subject to a swap agreement such that all or a portion of the interest has been swapped to a variable rate shall be treated as variable rate debt under subdivisions (b) or (c) of this definition of Debt Service; f. Payments of principal and interest on a System Obligation are excluded from the calculation of Debt Service to the extent such payments are to be paid from amounts then currently on deposit with a trustee or other fiduciary and restricted for the defeasance of such System Obligations; g. If 25% or more of the principal of a System Obligation is not due until its final stated maturity, then principal and interest on that System Obligation may be projected to amortize over the lesser of 30 years or the Useful Life of the financed asset, and interest may be calculated according to subdivisions (b)-(e) of this definition of Debt Service, as appropriate. "Deputy Director" means the Deputy Director of the Division. "Division" means the Division of Financial Assistance of the State Water Board or any other segment of the State Water Board authorized to administer this Agreement. "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 the occurrence of any of the following events:
a. Failure by the Recipient to make any payment required to be paid pursuant to this Agreement, including Payments;
b. A representation or warranty made by or on behalf of the Recipient or the City in this Agreement or in any document furnished by or on behalf of the Recipient or the City to the State Water Board pursuant to this Agreement shall prove to have been inaccurate, misleading or incomplete in any material respect;
c. A material adverse change in the condition of the Recipient or the City, the Revenues, or the System, which the Division reasonably determines would materially impair the Recipient's ability to satisfy its obligations under this Agreement.
d. Failure by the Recipient to comply with the additional debt test or reserve fund requirement, if any, in Exhibit B or Exhibit D of this Agreement;
e. Failure to operate the System or the Project without the Division's approval; f. Failure by the Recipient or the City to observe and perform any applicable covenant, condition, or provision in this Agreement, which failure shall continue for a period of time, to be determined by the Division;
g. The occurrence of a material breach or event of default under any System Obligation that results in the acceleration of principal or interest or otherwise requires immediate prepayment, repurchase or redemption;
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City of Santa Paula & Santa Paula Utility Authority
· Agreement No.: D2201018
Project No.: C-06-8577-110
h. Initiation of proceedings seeking arrangement, reorganization, or any other relief·under any applicable bankruptcy, insolvency, or other similar law; the appointment of or taking possession of the Recipient's or the City's property by a receiver, liquidator, assignee, trustee, custodian, conservator, or similar official; the Recipient or the City entering into a general assignment for the benefit of creditors; the initiation of resolutions or proceedings to terminate the Recipient's or the City's existence, or any action in furtherance of any of the foregoing; i. A determination pursuant to Gov. Code section 11137 that the Recipient or the City has violated any provision in Article 9.5 of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code; j. The occurrence of a material breach or event of default under any of the following agreements, which agreements provide for payments for the payment of Debt Service: Joint Exercise of Powers Agreement Creating Santa Paula Utility Authority, dated November 16, 2009; or k. Loss of the Recipient's or the City's rights, licenses, permits, or privileges necessary for the operation of the System or the Project, or the occurrence of any material restraint on the Recipient's or the City's enterprise by a government agency or court order. "Final Reimbursement Request Date" means the date set forth as such on the Cover Page of this Agreement, after which date, no further Project Funds disbursements may be requested. "Final Payment Date" is the date by which all principal and accrued interest due under this Agreement is to be paid in full to the State Water Board and is specified on the Cover Page of this Agreement. "Fiscal Year" means the period of twelve (12) months terminating on June 30 of any year, or any other annual period selected and designated by the Recipient as its Fiscal Year in accordance with applicable law.
"Force Account" means the use of the Recipient's own employees, equipment, or resources for the Project.
"GAAP" means generally accepted accounting principles, the uniform accounting and reporting procedures set forth in publications of the American Institute of Certified Public Accountants or its successor, or by any other generally accepted authority on such procedures, and includes, as applicable, the standards set forth by the Governmental Accounting Standards Board or its successor, or the Uniform System of Accounts, as adopted by the California Public Utilities Commission for water utilities. "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. "Listed Event" means, so long as the Recipient has outstanding any System Obligation subject to Rule 15c2-12, any of the events required to be reported with respect to such System Obligation pursuant to Rule 15c2-12(b)(5).
"Material Obligation" means an obligation of the Recipient that is material to this transaction, including System Obligations.
"Maximum Annual Debt Service" means the maximum amount of Debt Service due on System Obligations in a Fiscal Year during the period commencing with the Fiscal Year for which such calculation is made and within the next five years in which Debt Service for any System Obligations will become due. "Net Revenues" means, for any Fiscal Year, all Revenues received less the Operations and Maintenance Costs for such Fiscal Year.
"Obligation" means the obligation of the Recipient to make Payments (including Additional Payments) as provided herein, as evidenced by the execution of this Agreement, proceeds of such obligations being CWSRI' 3x2022 629
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: 02201018
Project No.: C-06-8577-110
used to fund the Project as specified in the Project Description in Exhibit A and Exhibit B and in the documents thereby incorporated by reference.
"Operations and Maintenance Costs" means the reasonable and necessary costs paid or incurred for maintaining and operating the System, determined in accordance with GAAP, including all 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 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. "Parity Obligation" means a debt obligation of the Recipient on parity with this Obligation. The Recipient's Parity Obligations are the following:
• Indenture of Trust dated as of October 1, 2020, by and among the Santa Paula Utility Authority and the City of Santa Paula Authorizing the Issuance of 2020 Wastewater Enterprise Revenue Bonds, Series A and Series B.
• Indenture of Trust dated as of April 1, 2015, by and among the Santa Paula Utility Authority and the City of Santa Paula Authorizing the Issuance of 2015 Wastewater Enterprise Revenue Bonds, Series A and Series B.
"Parity Obligation of the City" means a debt obligation of the City on parity with this Obligation. There are no Parity Obligations of the City.
"Payment" means any payment due to the State Water Board from the Recipient pursuant to this Agreement.
"Policy" means the State Water Board's "Policy for Implementing the Clean Water State Revolving Fund," as amended from time to time, including the Intended Use Plan in effect as of the execution date of this Agreement.
"Project" means the Project financed by this Agreement as described in Exhibits A and B and in the documents incorporated by reference herein.
"Project Completion" means the date, as determined by the Division after consultation with the Recipient, that operation of the Project is initiated or is capable of being initiated, whichever comes first. "Project Costs" means the incurred costs of the Recipient which are eligible for financial assistance under this Agreement, which are allowable costs as defined under the Policy, and which are reasonable, necessary and allocable by the Recipient to the Project under GAAP, and may include capitalized interest.
"Project Funds" means all moneys disbursed to the Recipient by the State Water Board for eligible Project Costs pursuant to this Agreement.
"Recipient" means the Santa Paula Utility Authority.
"Records Retention End Date" means the last date that the Recipient is obligated to maintain records and is set forth on the Cover Page of this Agreement.
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City of Santa Paula & Santa Paula Utility Authority
Agreement No.: 02201018
Project No.: C-06-8577-110
'
"Regional Water Quality Control Board" or "Regional Water Board" means the appropriate Regional Water Quality Control Board.
"Reimbursement Resolution" means the Recipient's reimbursement resolutions identified and incorporated by reference in this Agreement.
"Reserve Fund" means the reserve fund required pursuant to Exhibit B of this Agreement. "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.
"Rule 15c2-12(b)(5)" means Rule 15c2-12(b)(5) promulgated by the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended. "Senior Obligation" means a debt obligation of the Recipient that is senior to this Obligation. There are no Senior Obligations.
"Senior Obligation of the City" means a debt obligation of the City that is senior to this Obligation. There are no Senior Obligations of the City.
"SRF" means the Clean Water State Revolving Fund.
"State" means State of California.
"State Water Board" means the State Water Resources Control Board. "Subordinate Obligation" means a debt obligation of the Recipient that is subordinate to this Obligation.
There are no Subordinate Obligations.
"Subordinate Obligation of the City" means a debt obligation of the City that is subordinate to this Obligation. There are no Subordinate Obligations of the City. "System" means all wastewater collection, pumping, transport, treatment, storage, and disposal facilities, including land and easements thereof, owned by the City and leased to the Recipient, including the Project, and all other properties, structures, or works hereafter acquired and constructed 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. "System Obligation" means any obligation of the Recipient payable from the Revenues, including but not limited to this Obligation, any Parity Obligation, any Subordinate Obligation, and such additional obligations as may hereafter be issued in accordance with the provisions of such obligations and this Agreement.
"Useful Life" means the economically useful life of the Project beginning at Completion of Construction and is set forth in Exhibit A.
"Year" means calendar year unless otherwise expressly indicated.
CWSRF 3x2022 631
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto.
SANTA PAULA UTILITY AUTHORITY:
By:. ____________ _
Name: Dan Singer
Title: Executive Director
Date:. ______________ _
CITY OF SANTA PAULA:
By: ____________ _
Name: Dan Singer
Title: City Manager
Date:. ______________ _
STATE WATER RESOURCES CONTROL BOARD:
By: ____________ _
Name: Joe Karkoski
Title: Deputy Director
Division of Financial Assistance
Date: ______________ _
ldobe Acrobat Sign Transaction Number: CBJCHBCAABAAhN8qGQhx6gZcGoybdTnE89NjVnQR4frB CWSRF 3x2022 632 City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
EXHIBIT A- SCOPE OF WORK
A.1. PROJECT DESCRIPTION, USEFUL LIFE, AND SCOPE OF WORK. (a) The Project is the project set forth on the Cover Page of this Agreement. (b) The Useful Life of this Project is at least thirty (30) years. (c) Project Purpose and Description
The Project is for the benefit of the Recipient and has a Useful Life of at least 30 years. The funding under this Agreement shall be used to bring the Santa Paula Water Recycling Facility (SPWRF) into compliance with chloride requirements consistent with Cease and Desist Order No. R4-2018-0023. (d) Scope of Work.
The Recipient agrees to do the following:
The Recipient agrees to construct a new Advanced Water Treatment Facility (AWTF) to further treat municipal wastewater effluent from the SPWRF. The AWTF will include construction of the following key components:
• Advanced treatment equipment, including: nanofiltration, reverse osmosis, chemical precipitation and sludge handling, ultrafiltration, and brine concentration, · • Associated chemical feed systems, piping, storage tanks, electrical and controls, • AWTF Feed Pump Station,
• AWTF Process Building, and
• Site grading and paving.
A.2. STANDARD PROJECT REQUIREMENTS.
A.2.1 Acknowledgements.
The Recipient shall include the following acknowledgement in any document, written report, or brochure prepared in whole or in part pursuant to this Agreement:
"Funding for this project has been provided in full or in part through an agreement with the State Water Resources Control Board. California's Clean Water State Revolving Fund is capitalized through a variety of funding sources, including grants from the United States Environmental Protection Agency and state bond proceeds. 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."
A.2.2 Reports
A.2.2.1 Progress Reports.
(a) The Recipient must provide a progress report to the Division each quarter, beginning no later than 90 days after execution of this Agreement.
Exhibit A 633
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
(b) 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.
(c) A progress report must contain the following information:
i. 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; ii. A description of compliance with environmental requirements; iii. A listing of change orders including amount, description of work, and change in contract amount and schedule; and
iv. Any problems encountered, proposed resolution, schedule for resolution, and status of previous problem resolutions.
A.2.2.2 Project Completion Report.
(a) The Recipient must submit a Project Completion Report to the Divisfon with a copy to the appropriate Regional Water Board 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 disbursements under this Agreement or other agreements, and begin administrative proceedings.
A.2.2.3 As Needed Reports.
The Recipient must provide expeditiously, during the term of this Agreement, any reports, data, and information reasonably required by the Division, including but not limited to material necessary or appropriate for evaluation of the funding program or to fulfill any reporting requirements of the state or federal government.
A.2.2.4 DBE Reports for SRF Projects.
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.
Exhibit A 634
A.2.3 Signage.
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: 02201018
Project No.: C-06-8577-110
(a) The Recipient shall place a sign at least four feet tall by eight feet wide made of% inch thick exterior grade plywood or other approved material in a prominent location on the Project site and shall maintain the sign in good condition for the duration of the construction period. (b) Building A Better America Emblem: The Recipient will ensure that a sign is placed at construction sites supported under this award displaying the official Building A Better America emblem and must identify the project as a "project funded by President Biden's Bipartisan Infrastructure Law." Construction is defined at 40 CFR 33.103 as "erection, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other improvements to real property, and activities in response to a release or a threat of a release of a hazardous substance into the environment, or activities to prevent the introduction of a hazardous substance into a water supply." The sign must be placed at construction sites in an easily visible location that can be directly linked to the work taking place and must be maintained in good condition throughout the construction period.
The Recipient will ensure compliance with the guidelines and design specifications for using the official Building A Better America emblem and corresponding logomark available at:
https://www.whitehouse.gov/wp-content/uploads/2022/08/Building-A-Better-America-BrandGuide.pdf. (c) United States Environmental Protection Agency (US EPA) Logo: The Recipient will ensure that signage displays the USEPA logo along with the official Building A Better America emblem. The US EPA logo must not be displayed in a manner that implies that USE PA itself is conducting the project. Instead, the USEPA logo must be accompanied with a statement indicating that the recipient received financial assistance from USE PA for the project.
The Recipient will ensure compliance with the sign specifications provided by the USEPA Office of Public Affairs (OPA) available at: https://www.epa.gov/grants/epa-logo-seal-specificationssignage-produced-epa-assistance-agreement-recipients. As provided in the sign specifications from OPA, the USEPA logo is the preferred identifier for assistance agreement projects and use of the US EPA seal requires prior approval from the USEPA. To obtain the appropriate US EPA logo or seal graphic file, the Recipient should send a request directly to OPA and include the USEPA Project Officer in the communication. Instructions for contacting OPA is available on the Using the EPA Seal and Logo page at: https://www.epa.gov/aboutepa/using-epa-seal-and-logo. (d) Procuring Signs: Consistent with section 6002 of the Resource Conservation and Recovery Act, 42 U.S.C. 6962, and 2 CFR 200.323, recipients are encouraged to use recycled or recovered materials when procuring signs. Signage costs are considered an allowable cost under this assistance agreement provided that the costs associated with signage are reasonable.
Additionally, to increase public awareness of projects serving communities where English is not the predominant language, recipients are encouraged to translate the language on signs (excluding the official Building A Better America emblem or USEPA logo or seal) into the appropriate non-English language(s). The costs of such translation are allowable, provided the costs are reasonable.
(e) The sign shall include the following logos:
Exhibit A 635
Clean Wa ter
~ Water Boards
SEPA UnltedSUtH
En'm'OnmenLaf Prot«t-on
Ao.ency
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
==:=:==:= PRESIDENT JOE BIDEN =:==:==:=
BUILDING A
BETTER AMERICA
=:==:==:===BUILD.GOV =:==:==:==:=
(f) "Funding for this City of Santa Paula Advanced Water Treatment Facility project has been provided in full or in part by the Clean Water State Revolving Fund and President Biden's Bipartisan Infrastructure Law through an agreement with the State Water Resources Control Board. California's Clean Water State Revolving Fund is capitalized through a variety of funding sources, including grants from the United States Environmental Protection Agency and state bond proceeds."
(g) The Project sign may include another agency's required promotional information so long as the above logos and disclosure statement are equally prominent on the sign. The sign shall be prepared in a professional manner.
A.2.4 Commencement of Operations.
Upon Completion of Construction of the Project, the Recipient must expeditiously initiate Project operations.
A.3 DATES & DELIVERABLES ..
(a) Time is of the essence.
(b) The Recipient must expeditiously proceed with and complete construction of the Project. (c) The following dates are established as on the Cover Page of this Agreement:
i. Eligible Work Start Date
ii. Eligible Construction Start Date
iii. Completion of Construction Date
iv. Final Reimbursement Request Date
v. Records Retention End Date
vi. Final Payment Date
(d) The Recipient must award the prime construction contract timely. (e) The Recipient agrees to start construction no later than November 30, 2023. (f) 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. (g) The undisbursed balance of this Agreement will be deobligated if the Recipient does not provide its final reimbursement request to the Division on or before the Final Reimbursement Request Date.
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 Exhibit A
636
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
table, but Critical Due Date adjustments will require an amendment to this Agreement. The Recipient must complete and submit all work in time to be approved by the Division prior to Project Completion. 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
SCOPE OF WORK
Final Budget Approval Package N/A Auqust1, 2024
Construction Start N/A November 30,
2023
Completion of Construction July 31, 2026 N/A
REPORTING
Progress Reports Quarterly
As Needed Information and Reports As Requested by Division
BUDGET COSTS AND REIMBURSEMENT
No later than 90 days
First Reimbursement Request from Agreement N/A
Execution Date
Reimbursement Requests N/A Quarterly
Final Reimbursement Request January 29, 2027 N/A
Exhibit A 637
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
EXHIBIT B - FUNDING TERMS
B.1. FUNDING AMOUNTS AND REIMBURSEMENTS
B.1.1 Funding Contingency and Other Sources.
(a) If this Agreement's funding for any fiscal year expires due to reversion or is reduced, substantially delayed, or deleted by the Budget Act, by Executive Order, or by order or action of the Department of Finance, the State Water Board has the option to either cancel this Agreement with no liability accruing to the State Water Board, or offer an amendment to the Recipient to reflect the reduced amount. (b) If funding for Project Costs is made available from sources other than this Agreement, the Recipient must notify the Division. The Recipient may retain such funding up to an amount which equals the Recipient's total share of Project Costs. To the extent allowed by requirements of other funding sources, excess funding must be remitted to the State Water Board to be applied to Payments due hereunder, if any.
B.1.2 Estimated Reasonable Cost.
The estimated reasonable cost of the total Project, including associated planning and design costs is twenty million three hundred forty thousand dollars and no cents ($20,340,000.00).
B.1.3 Project Funding Amount.
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.1.4 [Reserved.]
B.1.5 Budget Costs.
(a) Estimated budget costs are contained in the Summary Project Cost Table below:
TOTAL Requested PROJECT
LINE ITEM ESTIMATED Financing FUNDING
COST AMOUNT
Construction $15,506,000 $15,506,000 $15,506,000
Pre-Purchased Material I Equipment $0 $0 $0
Purchase of Land I Easements $0 $0 $0
Change Order Contingency $2,160,000 $2, 160,000 $2, 160,000 Force Account $0 $0 $0
Allowances (Soft Costs) $2,674,000 $2,674,000 $2,674,000 TOTAL $20,340,000 $20,340,000 $20,340,000
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.
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 Exhibit B
638
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-11 O
adjusted line items in both the Summary Project Cost Table and the detailed budget must not exceed the Project Funding Amount. The Division may also propose budget adjustments. (b) 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.1.6 Contingent Disbursement.
(a) The State Water Board's disbursement of funds hereunder is contingent on the Recipient's and the City's compliance with the terms and conditions of this Agreement. (b) The State Water Board's obligation to disburse Project Funds is contingent upon the availability of sufficient funds to permit the disbursements provided for herein. If sufficient funds are not available for any reason, including but not limited to failure of the federal or State government to appropriate funds necessary for disbursement of Project Funds, the State Water Board shall not be obligated to make any disbursements to the Recipient under this Agreement. This provision shall be construed as a condition precedent to the obligation of the State Water Board to make any disbursements under this Agreement.
Nothing in this Agreement shall be construed to provide the Recipient with a right of priority for disbursement over any other entity. ff any disbursements due to the Recipient under this Agreement are deferred because sufficient funds are unavailable, it is the intention of the State Water Board that such disbursement will be made to the Recipient when sufficient funds do become available, but this intention is not binding.
(c) Construction costs and disbursements are not available until after the Division has approved the final budget form submitted by the Recipient.
(d) No costs incurred prior to the Eligible Work Start Date are eligible for reimbursement. (e) Construction costs incurred prior to the Eligible Construction Start Date are not eligible for reimbursement.
(f) Failure to proceed according to the timelines set forth in this Agreement may require the Recipient to repay to the State Water Board all disbursed Project Funds. (g) The Recipient agrees to ensure that its final reimbursement request is received by the Division no later than the Final Reimbursement Request Date. If the final reimbursement request is not received timely, the undisbursed balance of this Agreement will be deobligated. (h) The Recipient is not entitled to interest earned on undisbursed funds.
B.1. 7 Reimbursement Procedure.
Except as may be otherwise provided in this Agreement, disbursement of Project Funds will be made as follows:
(a) Upon execution and delivery of this Agreement by the parties, the Recipient may request immediate reimbursement of any eligible incurred planning and design allowance costs through submission to the State Water Board of the Reimbursement Request Form 260 and Form 261, or any amendment thereto, duly completed and executed. To be eligible for reimbursement, Project Costs, including any planning and design allowance costs, must have been incurred in compliance with all applicable requirements, including the state and federal cross-cutting requirements listed in Exhibit C.
Exhibit B
639
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-11 O
(b) 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.
(c) The Recipient may request reimbursement of eligible construction and equipment costs consistent with budget amounts approved by the Division in the Final Budget Approval. (d) Additional Project Funds will be promptly disbursed 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.
(e) 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 request. Supporting documentation (e.g., receipts) must be submitted with each reimbursement request. The amount requested for administration costs must include a calculation formula (i.e., hours or days worked times the hourly or daily rate = total amount claimed). Disbursement of Project Funds will be made only after receipt of a complete, adequately supported, properly documented, and accurately addressed reimbursement request. Reimbursement requests submitted without supporting documents may be wholly or partially withheld at the discretion of the Division. (f) The Recipient shall ensure that Project Funds are spent within 30 days of receipt. Any interest earned on Project Funds shall be reported to the State Water Board. The State Water Board may deduct earned interest from future disbursements.
(g) The Recipient shall not request a reimbursement unless that Project Cost is allowable, reasonable, and allocable.
(h) Notwithstanding any other provision of this Agreement, no disbursement 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.
(i) No work or travel outside the State of California is permitted under this Agreement unless the Division provides prior written authorization. Failure to comply with this restriction may result in termination this Agreement, pursuant to Exhibit C. Any reimbursement for necessary travel and per diem shall be at rates not to exceed those set by the California Department of Human Resources at http://www.calhr.ca.gov/employees/Pages/travel-reimbursements.aspx. as of the date costs are incurred.
B.1.8 Withholding of Disbursements.
Notwithstanding any other provision of this Agreement, the State Water Board may withhold all or any portion of the Project Funds upon the occurrence of any of the following events:
(a) The failure to maintain reasonable progress on the Project as determined by the Division; (b) Placement on the ballot or passage of an initiative or referendum to repeal or reduce the taxes, assessments, fees, or charges levied for operation of the System or payment of debt service on System Obligations;
(c) Commencement of litigation or a judicial or administrative proceeding related to the Project, System, or Revenues that the State Water Board determines may impair the timely satisfaction of the obligations under this Agreement;
Exhibit B
640
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
(d) Any investigation by the State Water Board, District Attorney, California State Auditor, Bureau of State Audits, USEPA's Office of Inspector General, the Internal Revenue Service, Securities and Exchange Commission, a grand jury, or any other state or federal agency, relating to the Recipient's or the City's financial management, accounting procedures, or internal fiscal controls; (e) A material adverse change in the condition of the Recipient. the City, the Revenues, or the System, that the Division reasonably determines would materially impair the Recipient's or the City's ability to satisfy their respective obligations under this Agreement, or any other event that the Division reasonably determines would materially impair the Recipient's or the City's ability to satisfy their respective obligations under this Agreement; (f) The Recipient's or the City's material violation of, or threat to materially violate, any term of this Agreement;
(g) Suspicion of fraud, forgery, embezzlement, theft, or any other misuse of public funds by the Recipient, the City, or their employees, or by their contractors or agents regarding the Project or the System;
(h) An event requiring Notice as set forth in Exhibit C, but not including those events listed in this Agreement at C.3.25(d)(vii), (x), (xi), and (xii);
(i) An Event of Default or an event that the Division determines may become an Event of Default.
B.1.9 Fraud and Misuse of Public Funds; Enforcement.
All requests for reimbursement submitted must be accurate and signed by the Recipient's Authorized Representative under penalty of perjury. All costs submitted pursuant to this Agreement must only be for the work or tasks set forth in this Agreement. The Recipient must not submit any invoice containing costs that are ineligible or have been reimbursed from other funding sources unless required and specifically noted as such (i.e., match costs). Any eligible costs for which the Recipient is seeking reimbursement shall not be reimbursed from any other source. Double or multiple billing for time, services, or any other eligible cost is improper and will not be compensated. Any suspected occurrences of fraud, forgery, embezzlement, theft, or any other misuse of public funds may result in suspension of disbursements and, notwithstanding any other section in this Agreement, the termination of this Agreement requiring the repayment of all Project Funds disbursed hereunder. Additionally, the Deputy Director of the Division may request an audit; refer the matter for appropriate administrative action, including but not limited to the recovery of financial assistance provided and the imposition of civil penalties; and/or refer the matter to the Attorney General's Office or the appropriate district attorney's office for criminal prosecution or the imposition of civil liability. A person who knowingly makes or causes to be made any false statement, material misrepresentation, or false certification in any submittal may be subject to a civil penalty, criminal· fine, or imprisonment. (Wat. Code, § 13490 et seq.)
B.2 RECIPIENT'S PAYMENT OBLIGATION, PLEDGE, AND RESERVE B.2.1 Project Costs.
The Recipient must pay any and all costs connected with the Project including, without limitation, any and all Project Costs and Additional Payments. 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.
B.2.2 Estimated Principal Payment Due.
The estimated amount of principal that will be due to the State Water Board from the Recipient under this Agreement is twenty million three hundred forty thousand dollars and no cents ($20,340,000.00) B.2.3 Interest Rate and In-Lieu of Interest Charges.
Exhibit B
641
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
(a) The Recipient agrees to make all Payments according to the schedule in Exhibit E, and as otherwise set forth herein, at an interest rate of two and six tenths (2.6%) per annum. (b) Interest will accrue beginning with each disbursement. (c) In lieu of, and not to exceed, interest otherwise due under this Agreement, the Recipient agrees to pay the following charge(s), as further set forth in Exhibit E:
• an Administrative Service Charge
• a Small Community Grant Fund Charge
B.2.4 [Reserved.]
B.2.5 Obligation Absolute.
The obligation of the Recipient to make the Payments and other payments required to be made by it under this Agreement, from the Net Revenues and/or other amounts legally available to the Recipient therefor, is absolute and unconditional, and until such time as the Payments and Additional Payments have been paid in full, the Recipient must not discontinue or suspend any Payments or other payments required to be made by it hereunder when due, whether or not the Project, or any related part thereof is operating or operable or has been completed, or its use is suspended, interfered with, reduced or curtailed or terminated in whole or in part, and such Payments and other payments shall not be subject to reduction whether by offset or otherwise and shall not be conditional upon the performance or nonperformance by any party of any agreement for any cause whatsoever.
B.2.6 Payment Timing.
(a) Beginning one year after Completion of Construction, the Recipient must submit an annual Payment of the principal of the Project Funds, together with all interest accruing thereon. The Recipient must make Payments fully amortizing the total principal of the Project by the Final Payment Date. Payments are based on a standard fully amortized assistance amount with equal annual payments. (b) The remaining balance is the previous balance, plus the disbursements, plus the accrued interest on both, plus any Charge In Lieu of Interest, less the Payment. Payment calculations will be made beginning one (1) year after Completion of Construction. Exhibit Eis a payment schedule based on the provisions of this Exhibit and an estimated disbursement schedule. Actual payments will be based on actual disbursements.
(c) Upon Completion of Construction and submission of necessary reports by the Recipient, the Division will prepare an appropriate payment schedule and supply the same to the Recipient. The Division may amend this schedule as necessary to accurately reflect amounts due under this Agreement. The Division will prepare any necessary amendments to the payment schedule and send them to the Recipient. The Recipient must make each Payment on or before the due date therefor. A ten (10) day grace period will be allowed, after which time a penalty in the amount of costs incurred by the State Water Board will be assessed for late payment. These costs may include, but are not limited to, lost interest earnings, staff time, bond debt service default penalties, if any, and other related costs. For purposes of penalty assessment, payment will be deemed to have been made if payment is deposited in the U.S. Mail within the grace period with postage prepaid and properly addressed. Any penalties assessed will not be added to the assistance amount balance, but will be treated as a separate account and obligation of the Recipient. The interest penalty will be assessed from the payment due date. (d) The Recipient is obligated to make all payments required by this Agreement to the State Water Board, notwithstanding any individual default by its constituents or others in the payment of fees, charges, taxes, assessments, tolls or other charges ("Charges") levied or imposed by the Recipient or the City. The Exhibit B
642
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
Recipient must provide for the punctual payment to the State Water Board of all amounts which become due under this Agreement and which are received from constituents or others in the payment to the Recipient. In the event of failure, neglect or refusal of any officer of the Recipient to levy or cause to be levied any Charge to provide payment by the Recipient under this Agreement, to enforce or to collect such Charge, or to pay over to the State Water Board any money collected on account of such Charge necessary to satisfy any amount due under this Agreement, the State Water Board may take such action in a court of competent jurisdiction as it deems necessary to compel the performance of all duties relating to the imposition or levying and collection of any of such Charges and the payment of the money collected therefrom to the State Water Board. Action taken pursuant hereto shall not deprive the State Water Board of, or limit the application of, any other remedy provided by law or by this Agreement. (e) Each Payment must be paid in lawful money of the United States of America by check or other acceptable form of payment set forth at www.waterboards.ca.gov/make a payment.
The Recipient must pay Payments and Additional Payments from Net Revenues and/or other amounts legally available to the Recipient therefor.
B.2. 7 Pledged Revenues.
B.2. 7.1 Establishment of Enterprise Fund and Reserve Fund.
In order to carry out its System Obligations, the Recipient covenants that it shall establish and maintain or shall have established and maintained the Enterprise Fund. All Revenues received shall be deposited when and as received in trust in the Enterprise Fund. As required in this Exhibit, the Recipient must establish and maintain a Reserve Fund.
B.2.7.2 Pledge of Net Revenues, Enterprise Fund, and Reserve Fund.
The Obligation hereunder shall be secured by a lien on and pledge of the Enterprise Fund, Net Revenues, and any Reserve Fund on parity with the Parity Obligations. The Recipient hereby pledges and grants such lien on and pledge of the Enterprise Fund, Net Revenues, and any Reserve Fund to secure the Obligation, including payment of Payments and Additional Payments hereunder. The City hereby commits to support the Recipient's pledge. The Enterprise Fund, Net Revenues in the Enterprise Fund, and any Reserve Fund shall be subject to the lien of such pledge without any physical delivery thereof or further act, and the lien of such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract, or otherwise against the Recipient.
B.2.7.3 Application and Purpose of the Enterprise Fund.
Subject to the provisions of any outstanding System Obligation, money on deposit in the Enterprise Fund shall be applied and used first, to pay Operations and Maintenance Costs, and thereafter, all amounts due and payable with respect to the System Obligations in order of priority. After making all payments hereinabove required to be made in each Fiscal Year, the Recipient may expend in such Fiscal Year any remaining money in the Enterprise Fund for any lawful purpose of the Recipient.
B.2.8 [Reserved.]
B.2.9 No Prepayment.
Pursuant to State Water Board's Debt Management Policy, adopted on October 3, 2017, the Recipient may not prepay any portion of the principal and interest due under this Agreement without the written consent of the Deputy Director of the Division.
Exhibit B
643
B.2.10 Reserve Fund.
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
Prior to Completion of Construction, the Recipient must establish a restricted Reserve Fund, held in its Enterprise Fund, equal to one year's Debt Service on this Obligation. The Recipient must maintain the Reserve Fund throughout the term of this Agreement. The Reserve Fund is subject to lien and pledged as security for this Obligation, and its use is restricted to payment of this Obligation during the term of this Agreement.
B.3 RATES, FEES AND CHARGES.
(a) The Recipient shall ensure that, to the extent permitted by law, rates, fees and charges for the System are fixed, prescribed, and collected during each Fiscal Year. The Recipient shall ensure that such rates, fees, and charges are reasonable, fair, and nondiscriminatory, and will be sufficient to generate Revenues in the amounts necessary to cover Operations and Maintenance Costs, and must ensure that Net Revenues are equal to the sum of (i) at least 120% of the Maximum Annual Debt Service with respect to all outstanding System Obligations senior to and on parity with the Obligation and (ii) at least 100% of the Maximum Annual Debt Service with respect to all outstanding System Obligations subordinate to the Obligation, so long as System Obligations other than this Obligation are outstanding. Upon defeasance of all System Obligations other than this Obligation, this ratio must be at least 120%, except where System Obligations are defeased pursuant to refunding obligations. (b) 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 ensure that the rates, fees and charges then in effect are not reduced unless the Net Revenues from such reduced rates, fees, and charges will at all times be sufficient to meet the requirements of this section. (c) Upon consideration of a voter initiative to reduce Revenues, the Recipient must make a finding regarding the effect of such a reduction on the Recipient's ability to satisfy the rate covenant set forth in this Section. The Recipient must make the findings available to the public. The Recipient's Authorized Representative must request, if necessary, the authorization of the Recipient's decision-maker or decision-making body to file litigation to challenge any such initiative that it finds will render it unable to satisfy the rate covenant set forth in this Agreement and its obligation to operate and maintain the Project for its Useful Life. The Recipient must diligently pursue and bear any and all costs related to such challenge. The Recipient must notify and regularly update the State Water Board regarding the status of any such challenge.
B.4 ADDITIONAL DEBT.
(a) The Recipient's future debt that is secured by Revenues pledged herein may not be senior to this Obligation.
(b) The Recipient may issue additional parity or subordinate debt only if all of the following conditions are met:
i. No Event of Default (or no event with respect to which notice has been given and which, once all notice of grace periods have passed, would constitute an Event of Default) has occurred and is continuing;
ii. Net Revenues in the most recent Fiscal Year, excluding transfers from a rate stabilization fund, if any, plus at the option of the Recipient any Additional Revenues, meet the ratio for rate covenants set forth in this Exhibit with respect to any outstanding and proposed additional obligations;
iii. The Recipient is in compliance with any reserve fund requirement of this Obligation.
Exhibit B
644
8.5 NO LIENS.
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: 02201018
Project No.: C-06-8577-11 O
Neither the Recipient, nor the City, may make any pledge of or place any lien on the Project, System, or Revenues except as otherwise provided or permitted by this Agreement.
Exhibit B
645
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
~age 23 of 51
EXHIBIT C-GENERAL & PROGRAMMATIC TERMS & CONDITIONS
C.1 REPRESENTATIONS & WARRANTIES.
The Recipient and the City each, individually and only on behalf of themselves, represent, warrant, and commit to the following as of the Eligible Work Start Date and continuing thereafter for the term of this Agreement.
C.1.1 Application and General Recipient Commitments.
Neither the Recipient nor the City has 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.
The Recipient and the City each, individually and only on behalf of themselves, agree to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents.
The Recipient and the City each, individually and only on behalf of themselves, agree 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.
C.1.2 Authorization and Validity. '
The execution and delivery of this Agreement, including all incorporated documents, has been duly authorized by the Recipient and the City. Upon execution by the parties, this Agreement constitutes a valid and binding obligation of the Recipient and the City, enforceable in accordance with its terms, except as such enforcement may be limited by law.
C.1.3 No Violations.
The execution, delivery, and performance by the Recipient and the City of this Agreement, including all incorporated documents, do not violate any provision of any law or regulation in effect as of the date of execution of this Agreement by the Recipient and the City, or result in any breach or default under any contract, obligation, indenture, or other instrument to which the Recipient and the City are a party or by which the Recipient and the City are bound as of the date of execution of this Agreement by the Recipient and the City.
C.1.4 No Litigation.
There are, as of the date of execution of this Agreement by the Recipient and the City, no pending or, to the Recipient's and the City'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 City, the System, the Revenues, and/or the Project.
There are no proceedings, actions, or offers by a public entity to acquire by purchase or the power of eminent domain the System or any of the real or personal property related to or necessary for the Project.
Exhibit C
646
C.1.5 Property Rights.
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: 02201018
Project No.: C-06-8577-110
The Recipient and/or the City owns or has sufficient property rights in the Project property for the longer of the Useful Life or the term of this Agreement, either in fee simple or for a term of years that is not subject to third-party revocation during the Useful Life of the Project.
C.1.6 Solvency and Insurance.
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 the Recipient or any present or future creditors of the City. The Recipient and the City each are solvent and neither will be rendered insolvent by the transactions contemplated by this Agreement. The Recipient and the City each, individualluy and only on behalf of themselves, are able to pay their debts as they become due. The Recipient and the City each maintain 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.
C.1. 7 Legal Status and Eligibility.
The Recipient and the City each are duly organized and existing and in good standing under the laws of the State of California. The Recipient and the City each must at all times maintain their current legal existence and preserve and keep in full force and effect its legal rights and authority. The Recipient and the City each, individualluy and only on behalf of themselves, acknowledge that changes to their legal or financial status may affect their eligibility for funding under this Agreement and commit to maintaining their eligibility. Within the preceding ten years, neither the Recipient nor the City have failed to demonstrate compliance with state or federal audit disallowances.
C.1.8 Financial Statements and Continuing Disclosure.
The financial statements of the Recipient and the City previously delivered to the State Water Board as of the date(s) set forth in such financial statements: (a) are materially complete and correct; (b) present fairly the financial condition of the Recipient and the City; and (c) have been prepared in accordance with GAAP. Since the date(s) of such financial statements, there has been no material adverse change in the financial condition of either the Recipient or the City, nor have any assets or properties reflected on such financial statements been sold, transferred, assigned, mortgaged, pledged or encumbered, except as previously disclosed in writing by the Recipient or the City and approved in writing by the State Water Board.
The Recipient and the City each are current in their continuing disclosure obligations associated with their material debt, if any.
C.1.9 System Obligations
Neither the Recipient nor the City have System Obligations other than those defined in this Agreement.
C.1.10 No Other Material Debt.
Neither the Recipient nor the City have Material Obligations other than System Obligations.
C.1.11 Compliance with State Water Board Funding Agreements.
The Recipient and the City each, individualluy and only on behalf of themselves, represent that they are in compliance with all State Water Board funding agreements to which they are a party.
Exhibit C
647
C.2 DEF AUL TS AND REMEDIES
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: 02201018
Project No.: C-06-8577-110
In addition to any other remedy set forth in this Agreement, the following remedies are available under this Agreement.
C.2.1 Return of Funds; Acceleration; and Additional Payments.
Notwithstanding any other provision of this Agreement, if the Division determines that an Event of Default has occurred, the Recipient may be required, upon demand, immediately to do each of the following:
i. return to the State Water Board any grant or principal forgiveness amounts received pursuant to this Agreement;
ii. accelerate the payment of any principal owed under this Agreement, all of which shall be immediately due and payable;
iii. pay interest at the highest legal rate on all of the foregoing; and iv. pay any Additional Payments.
C.2.2 [Reserved.]
C.2.3 Administrative remedies.
Whenever the State Water Board determines that either the Recipient or the City, a Recipient's or City's contractor, consultant, employee, agent, assignee, or grantee has violated any requirement or term of the Agreement, the State Water Board may impose civil penalties in accordance with Water Code, section 13497. The State Water Board may impose civil liability administratively against the Recipient or the Recipient's consultant or contractor or other agent furnishing any information related to funds disbursed or costs claimed for reimbursement if the Recipient or the Recipient's consultant or contractor or other agent fails to personally attest that the information is true, accurate, and complete the best of one's knowledge. (Wat. Code,§ 13498.) The State Water Board may impose civil liability administratively against any person who makes a misrepresentation in any submittal to the State Water Board, including, but not limited to, an application, report, certification, record, invoice, form, or other document that is submitted to the State Water Board relating to a financial assistance agreement. (Wat. Code, § 13499.) C.2.4 Judicial remedies.
Whenever the State Water Board determines that an Event of Default shall have occurred, the State Water Board may enforce its rights under this Agreement by any judicial proceeding, whether at law or in equity. Without limiting the generality of the foregoing, the State Water Board may:
i. by suit in equity, require the Recipient to account for amounts relating to this Agreement as if the Recipient were the trustee of an express trust; ii. by mandamus or other proceeding, compel the performance by the Recipient and any of its officers, agents, and employees of any duty under the law or of any obligation or covenant under this Agreement, including but not limited to the imposition and collection of rates for the services of the System sufficient to meet all requirements of this Agreement; and
iii. take whatever action at law or in equity as may appear necessary or desirable to the State Water Board to collect the Payments then due or thereafter to become due, or to enforce performance of any obligation or covenant of the Recipient under this Agreement.
Exhibit C
648
C.2.5 Termination.
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
Upon an Event of Default, the State Water Board may terminate this Agreement. Interest shall accrue on all amounts due at the highest legal rate of interest from the date that the State Water Board delivers notice of termination to the Recipient.
C.2.6 Damages for Breach of Tax-Exempt Status.
In the event that any breach of any of the provisions of this Agreement by either the Recipient or the City results in the loss of tax-exempt status for any bonds of the State or any subdivision or agency thereof, 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 by reason of any arbitrage profits, 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.
C.2.7 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.
C.2.8 Remedies and Limitations.
None of the remedies available to the State Water Board shall be exclusive of any other remedy, and each such remedy shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity. The State Water Board may exercise any remedy, now or hereafter existing, without exhausting and without regard to any other remedy.
Any claim of the Recipient or the City is limited to the rights and remedies provided to each under this Agreement and is subject to the claims procedures provided to the Recipient and the City under this Agreement.
C.2.9 Non-Waiver.
Nothing in this Agreement shall affect or impair the Recipient's Obligation to pay Payments as provided herein or shall affect or impair the right of the State Water Board to bring suit to enforce such payment.
No delay or omission of the State Water Board in the exercise of any right arising upon an Event of Default shall impair any such right or be construed to be a waiver of any such Event of Default. The State Water Board may exercise from time to time and as often as shall be deemed expedient by the State Water Board, any remedy or right provided by law or pursuant to this Agreement.
C.2.10 Status Quo.
If any action to enforce any right or exercise any remedy shall be brought and either discontinued or determined adversely to the State Water Board, then the State Water Board shall be restored to its former position, rights and remedies as if no such action had been brought.
C.3 STANDARD CONDITIONS
C.3.1 Access, Inspection, and Public Records.
Exhibit C
649
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: 02201018
Project No.: C-06-8577-110
The Recipient and the City each must ensure that the State Water Board, the Governor of the State, the USEPA, the USEPA's 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 Project construction and thereafter for the term of the Agreement. The Recipient and the City each, individualluy and only on behalf of themselves, acknowledge that, except for a subset of information regarding archaeological records, the Project records and locations are public records, including but not limited to all of the submissions accompanying the application, all of the documents incorporated into this Agreement by reference, and all reports, reimbursement requests, and supporting documentation submitted hereunder.
C.3.2 Accounting and Auditing Standards; Financial Management Systems; Records Retention. (a) Both the Recipient and the City must maintain project accounts according to GAAP as issued by the Governmental Accounting Standards Board (GASB) or its successor. Both the Recipient and the City must maintain GAAP-compliant project accounts, including GAAP requirements relating to the reporting of infrastructure assets.
(b) Both the Recipient and the City must comply with federal standards for financial management systems. The Recipient and the City each, individualluy and only on behalf of themselves, agree 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 used in violation of federal or state law or the terms of this Agreement. To the extent applicable, the Recipient and the City each are 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.
(c) Without limitation of the requirement to maintain Project accounts in accordance with GAAP, the Recipient and the City must:
i. Establish an official file for the Project which adequately documents all significant actions relative to the Project;
ii. Establish separate accounts which will adequately and accurately depict all amounts received and expended on the Project, including all assistance funds received under this Agreement;
iii. Establish separate accounts which will adequately depict all income received which is attributable to the Project, specifically including any income attributable to assistance funds disbursed under this Agreement;
iv. Establish an accounting system which will accurately depict final total costs of the Project, including both direct and Indirect Costs;
v. Establish such accounts and maintain such records as may be necessary for the State to fulfill federal reporting requirements, including any and all reporting requirements under federal tax statutes or regulations; and
vi. If Force Account is used by the Recipient or the City for any phase of the Project, other than for planning, design, and construction engineering and administration provided for by allowance, accounts will be established which reasonably document all employee hours charged to the Project and the associated tasks performed by each employee. (d) The Recipient and the City must maintain separate books, records and other material relative to the Project. The Recipient and the City each must also retain such books, records, and other material for itself and for each contractor or subcontractor who performed or performs work on this project for a minimum of thirty-six (36) years after Completion of Construction. The Recipient and the City each must require that such books, records, and other material are subject at all reasonable times (at a minimum during normal business hours) to inspection, copying, and audit by the State Water Board, the California State Auditor, the Bureau of State Audits, the USEPA, the USEPA's Office of Inspector General, the Exhibit C
650
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
Internal Revenue Service, the Governor, or any authorized representatives of the aforementioned. The Recipient and the City each must allow and must require their contractors to allow interviews during normal business hours of any employees who might reasonably have information related to such records.
The Recipient and the City each, individualluy and only on behalf of themselves, agree to include a similar duty regarding audit, interviews, and records retention in any contract or subcontract related to the performance of this Agreement. The provisions of this section survive the term of this Agreement.
C.3.3 Amendment.
No amendment or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties.
Requests for amendments must be in writing and directed to the contact listed in Section 4 and to the Division's Chief of Loans and Grants Administration Section.
C.3.4 Assignability.
This Agreement is not assignable by either the Recipient or the City, either in whole or in part, without the consent of the State Water Board in the form of a formal written amendment to this Agreement.
C.3.5 Audit.
(a) The Division may call for an audit of financial information relative to the Project if the Division determines that an audit is desirable to assure program integrity or if an audit becomes necessary because of state or federal requirements. If an audit is called for, the audit must be performed by a certified public accountant independent of the Recipient and independent the City and at the cost of the Recipient and/or the City. The audit must be in the form required by the Division. (b) Audit disallowances must be returned to the State Water Board.
C.3.6 Bonding.
Where contractors are used, the Recipient must not authorize construction to begin until each contractor has furnished a performance bond in favor of the Recipient in the following amounts: faithful performance (100%) of contract value; labor and materials (100%) of contract value. This requirement shall not apply to any contract for less than $25,000.00.
C.3. 7 Competitive Bidding
The Recipient and the City each must adhere to any applicable state law or local ordinance for competitive bidding and applicable labor laws.
C.3.8 Compliance with Applicable Laws, Rules, and Requirements.
The Recipient and the City each must, at all times, comply with and require its contractors and subcontractors to comply with all applicable federal and state laws, rules, guidelines, regulations, and requirements. Without limitation of the foregoing, to the extent applicable, the Recipient and the City each must:
(a) Comply with the provisions of the adopted environmental mitigation plan, if any, for the term of this Agreement;
(b) Comply with the Policy; and
Exhibit C
651
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: D2201018
Project No.: C-06-8577-110
(c) Comply with and require compliance with the state and federal requirements set forth elsewhere in this Agreement.
C.3.9 Computer Software.
The Recipient and the City each, individualluy and only on behalf of themselves, certify that they have appropriate systems and controls in place to ensure that state funds will not be used in the performance of this Agreement for the acquisition, operation or maintenance of computer software in violation of copyright laws.
C.3.10 Conflict of Interest.
The Recipient and the City each, individualluy and only on behalf of themselves, certify that their owners, officers, directors, agents, representatives, and employees are in compliance with applicable state and federal conflict of interest laws.
C.3.11 Continuous Use of Project; No Lease, Sale, Transfer of Ownership, or Disposal of Project.
The Recipient and the City each agree 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.
C.3.12 Data Management.
The Recipient and the City will undertake appropriate data management activities so that Project data can be incorporated into statewide data systems.
C.3.13 Disputes.
(a) The Recipient may 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. (b) This clause 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.
(c) The Recipient and the City each must continue with the responsibilities under this Agreement during any dispute.
(d) 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.
C.3.14 [Reserved.]
Exhibit C
652
C.3.15 Environmental Clearance.
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: 02201018
Project No.: C-06-8577-110
(a) No work that is subject to CEQA or NEPA may proceed under this Agreement unless the State Water Board has provided environmental clearance. The State Water Board may require changes in the scope of work or additional mitigation as a condition to providing construction or implementation funding under this Agreement. Neither the Recipient nor the City shall perform any work subject to CEQA and/or NEPA before the State Water Board completes its environmental review and specifies any changes in scope or additional mitigation that may be required. Proceeding with work subject to CEQA and/or NEPA without approval by the State Water Board shall constitute a breach of a material provision of this Agreement.
(b) If this Project includes modification of a river or stream channel, the Recipient must fully mitigate environmental impacts resulting from the modification. The Recipient must provide documentation that the environmental impacts resulting from such modification will be fully mitigated considering all of the impacts of the modification and any mitigation, environmental enhancement, and environmental benefit resulting from the Project, and whether, on balance, any environmental enhancement or benefit equals or exceeds any negative environmental impacts of the Project.
C.3.16 Governing Law.
This Agreement is governed by and shall be interpreted in accordance with the laws of the State of California.
C.3.17 Income Restrictions.
The Recipient agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Recipient under this Agreement must be paid to the State Water Board, to the extent that they are properly allocable to costs for which the Recipient has been reimbursed by the State Water Board under this Agreement.
C.3.18 Indemnification and State Reviews.
The parties agree that review or approval of Project plans and specifications by the State Water Board is for administrative purposes only, including conformity with application and eligibility criteria, and expressly not for the purposes of design defect review or construction feasibility, and does not relieve either the Recipient or the City of the responsibility to properly plan, design, construct, operate, and maintain the Project. To the extent permitted by law, the Recipient and the City each agree to indemnify, defend, and hold harmless the State Water Board, the Bank, and any trustee, and their officers, employees, and agents for the Bonds, if any (collectively, "Indemnified Persons"), against any loss or liability arising out of any claim or action brought against any Indemnified Persons from and against any and all losses, claims, damages, liabilities, or expenses, of every conceivable kind, character, and nature whatsoever arising out of, resulting from, or in any way connected with (1) the System or the Project or the conditions, occupancy, use, possession, conduct, or management of, work done in or about, or the planning, design, acquisition, installation, or construction, of the System or the Project or any part thereof; (2) the carrying out of any of the transactions contemplated by this Agreement or any related document; (3) any violation of any applicable law, rule or regulation, any environmental law (including, without limitation, the Federal Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the California Hazardous Substance Account Act, the Federal Water Pollution Control Act, the Clean Air Act, the Toxic Substances Control Act, the Occupational Safety and Health Act, the Safe Drinking Water Act, the California Hazardous Waste Control Law, and California Water Code Section 13304, and any successors to said laws), rule or regulation or the release of any toxic substance on or near the System or the Project; or (4) any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements required to be stated therein, in light of the circumstances under which they were made, not misleading Exhibit C
653
City of Santa Paula & Santa Paula Utility Authority
Agreement No.: 02201018
Project No.: C-06-8577-110