4 (1) Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclusion deleted
(7) Contractual Liability with respect to this Agreement (8) Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liability
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
(ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.
c. Workers’ Compensation/Employer’s Liability
5 (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section.
d. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein.
This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. e. Consultant Liability
Covering all Consultant’s officers and employees, for loss of City proceeds caused by dishonesty and/or theft. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by the Consultant in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information or personally identifiable information (PII), alteration of electronic information, extortion, and network security. f. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
Minimum Limit Requirements
Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property
damage
Automobile Liability $1,000,000 combined single limit
Employer’s Liability $1,000,000 per accident or disease
6 Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
(ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or 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. Any available coverage shall be provided to the Parties required to be named as Additional Insured pursuant to this Agreement. g. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
h. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.
(iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to provide a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City,
7 and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(v) 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 Consultant from liability in excess of such coverage, nor shall it limit the Consultant’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.
i. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) 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 admitted to transact in the 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.
j. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, 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 Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(ii) 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 Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) 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.
k. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section.
Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
8 12. Indemnification.
a. To the fullest extent permitted by law, Consultant 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 Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
b. To the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s obligations under the above indemnity shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, but shall not otherwise be reduced. If Consultant’s obligations to defend, indemnify, and/or hold harmless arise out of Consultant’s performance of “design professional services” (as that term is defined under Civil Code section 2782.8), then upon Consultant obtaining a final adjudication that liability under a claim is caused by the comparative active negligence or willful misconduct of the City, Consultant’s obligations shall be reduced in proportion to the established comparative liability of the City and shall not exceed the Consultant’s proportionate percentage of fault.
c. To the fullest extent permitted by law, the City shall defend, indemnify, and hold harmless the Consultant, its officers, directors, employees, subcontractors, and agents from any and all claims, liabilities, damages, losses, and expenses, including attorney’s fees, arising out of or resulting from the negligent acts, errors, or omissions or willful misconduct of the City, its officials, officers, employees, or agents in connection with this Agreement. d. Consultant’s total liability for all claims under this Agreement, whether in contract, tort, or otherwise, shall not exceed six (6) million dollars or the twelve (12) month average revenue share to the City for the remainder of the Agreement term, whichever is greater, except for liability arising from Consultant’s gross negligence or willful misconduct. In no event shall either Party be liable to the other for any indirect, incidental, consequential, special, or punitive damages arising out of or relating to this Agreement.
13. California Labor Code Requirements.
a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon
9 the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). b. If the services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. c. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor.
14. Verification of Employment Eligibility.
By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented persons, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.
15. Key Personnel.
Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. All routine administrative communication between the Parties will be between the key personnel and may be made by personal delivery, physical mail delivery, or electronic mail delivery as agreed between the Consultant Representative and City Representative. The key personnel for performance of this Agreement are as follows:
a. The City hereby designates Chris Schultz, Deputy IT Director, or his designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant
10 but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in this Agreement.
Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
b. Consultant hereby designates Stephen Stukas, CEO, Smart Fiber Networks, or his designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
16. Laws and Venue.
This Agreement shall be interpreted in accordance with the laws of the State of California.
If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Kern, State of California.
17. Early Termination For Convenience By City.
a. City has the right to terminate any portion or all of the work under this Agreement for convenience or without cause by giving sixty (60) calendar days written notice to Consultant. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. Further, if all of the work under this Agreement is terminated by City for convenience or without cause, Consultant shall provide the City all of the following:
(i) One hundred (100) percent of the documented capital investments made by the City for all network expansion project areas not yet completed; (ii) Transfer all active Subscriber accounts, systems, and operational data to the City or a designated replacement provider in a commercially reasonable manner and at no cost; (iii) Assist in a 90-day transition plan, beginning after the receipt of the sixty (60) calendar day written notice, to ensure uninterrupted service and minimize Subscriber attrition; (iv) Waive any future claim to unrecovered expansion investments to offset the City’s potential revenue losses;
(v) Transfer all appropriate documentation, permits, and pole access rights over to the City per the procedure described in Exhibit “B”.
b. If City terminates any portion of the work, but not all of the work under this Agreement for convenience or without cause under paragraph 17(a), City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall
11 be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein.
Consultant shall not be entitled to payment from the City for unperformed services. c. If the City terminates all of the work under this Agreement for convenience or without cause under paragraph 17(a), the City shall compensate Consultant with the following:
(i) The average of the City’s prior twelve (12) months’ revenue share entitlements multiplied by twelve (12);
(ii) One hundred (100) percent of the documented, unrecovered capital investments made by the Consultant for all outstanding network expansion project areas under an approved Consultant-Funded Expansion Adjustment (as outlined in Exhibit “B”). Consultant shall provide the City with an accounting of unrecovered capital expenditures at the time of termination, and the City shall submit payment within ninety (90) calendar days following receipt of such accounting. The calculation of unrecovered expansion investments shall include all documented costs for design, permitting, construction, materials, and related expenses associated with the expansion area.
18. Early Termination For Convenience By Consultant.
a. Consultant has the right to terminate any portion or all of the work under this Agreement for convenience or without cause by giving twelve (12) calendar months written notice to City. If the Consultant terminates this Agreement for convenience or without cause, the Consultant shall compensate and provide the City all of the following:
(i) One hundred (100) percent of documented capital investments made by the City for all network expansion project areas not yet completed; (ii) Transfer all active Subscriber accounts, systems, and operational data to the City or a designated replacement provider in a commercially reasonable manner and at no cost; (iii) Assist in a 90-day transition plan, beginning on a date set by the City after the receipt of the twelve (12) calendar month written notice, to allow the City time to arrange for and procure replacement services and ensure uninterrupted service and minimize Subscriber attrition;
(iv) Waive any future claim to unrecovered expansion investments to offset the City’s potential revenue losses;
(v) Within sixty (60) calendar days from the date of receipt of such written notice, pay a fixed early exit fee equal to the average of the prior twelve (12) months’ total subscriber revenues multiplied by six (6);
(vi) Transfer all appropriate documentation, permits, and pole access rights over to the City per the procedure described in Exhibit “B”.
19. Termination for Cause and Other Remedies For Uncured Breaches.
12 a. Consultant may terminate its obligation to provide further broadband (ISP) services under this Agreement upon sixty (60) calendar days’ written notice to City only in the event of an uncured substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
b. Default for Nonpayment by City.
In the event the City fails to pay any undisputed amount due under this Agreement within sixty (60) calendar days after receipt of a proper invoice, Consultant may, upon written notice to the City, suspend performance of services under this Agreement until all outstanding undisputed amounts have been paid in full. Consultant shall have no liability to the City, nor shall any performance penalties, service level penalties, or breach remedies apply, for any failure to perform services during any period of suspension caused by the City's nonpayment. Consultant’s right to suspend services is in addition to, and not in lieu of, any other remedies available at law or in equity.
c. Default for Nonpayment by Consultant.
In the event of an uncured substantial failure by Consultant to perform in accordance with the terms of this Agreement through no fault of City, the City may, upon notice to Consultant, pursue any or all of the following remedies:
(i) procure or perform the cure and obtain reimbursement of the costs from Consultant;
(ii) terminate the Agreement;
(iii) terminate any portion of the Scope of Services and reduce the Compensation to account for the reduced Scope of Services;
(iv) pursue court ordered remedies in law or equity, including specific performance. d. Cure Period Prior to Termination for Cause.
Notwithstanding anything to the contrary herein, prior to initiating any termination for cause under this Agreement, either Party seeking termination for cause shall provide the other Party with written notice specifying the nature of the alleged material breach. The breaching Party shall have sixty (60) calendar days from the date of receipt of such written notice to cure the alleged breach to the reasonable satisfaction of the non-breaching Party. Termination may not occur unless and until the sixty (60) day cure period has expired without a satisfactory cure. e. Regardless which party terminates the Agreement for cause, the Parties shall at a minimum cooperate to (i) Transfer all active Subscriber accounts, systems, and operational data to the City or a designated replacement provider in a commercially reasonable manner and at no cost; (ii) Assist in a 90-day transition plan, beginning after the receipt of the written termination notice, to ensure uninterrupted service and minimize subscriber attrition; and (iii) transfer all appropriate documentation, permits, and pole access rights over to the City per the procedure described in Exhibit “B”.
13 20. Ownership of Assets.
a. The City is the legal owner of the Shafter Network and all assets and equipment installed pursuant to this Agreement, except as specifically provided otherwise in Exhibit “B”.
b. Consultant’s Right to Bid on Offered Assets.
In the event the City elects, at any time during the Term of this Agreement or within twelve (12) months following its termination or expiration, to sell, transfer, assign, lease, or otherwise dispose of the Shafter Network or any substantial portion thereof (the "Offered Assets"), the City shall not prohibit the Consultant from offering a formal bid for such Offered Assets.
Notwithstanding the foregoing, the City retains full authority and the sole discretion to define appropriate bidding criteria and evaluation factors consistent with the City’s then-current bidding and procurement policy.
21. Documents.
Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.
22. Organization.
Consultant shall assign Stephen Stukas as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.
23. Limitation of Agreement.
This Agreement is limited to and includes only the work included in the Project described above and within Exhibit “A” and Attachment No. 1.
24. Notice.
Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to:
CITY:
City of Shafter
336 Pacific Avenue
Shafter, California 93263
Attn: Chris Schultz
CONSULTANT:
Smart Fiber Networks, Inc.
400 Santa Clara St, Suite 100
Vallejo, CA 94590
Attn: Stephen Stukas
and shall be effective upon receipt thereof.
14 25. Third Party Rights.
Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.
26. Equal Opportunity Employment.
Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
27. Entire Agreement.
This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement.
28. Severability.
The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal.
29. Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.
30. Non-Waiver.
None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.
31. Time of Essence.
Time is of the essence for each and every provision of this Agreement.
32. City’s Right to Employ Other Consultants.
City reserves its right to employ other consultants, including engineers and installers, in connection with the Project or other projects related to the expansion of the City’s fiber optic network. In addition, Consultant will honor all previous Network Management Service
15 Agreements, Master Service Agreements, and Product Orders obtained by the City prior to this Agreement, until said contracts expire or are terminated.
Consultant enters into this Agreement with an understanding of and support for the development of an Open-Access Network and, as a result, additional Consultants, usually in the form of an internet service provider (ISP), may require access to certain CPE within the Shafter Network to provide broadband services.
33. Prohibited Interests.
Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant 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 Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. 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 director, official, officer or employee of 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.
34. Exhibits and Attachments.
The following exhibits and attachments are attached hereto and incorporated herein by reference:
Exhibit A, entitled “Scope of Services”
Exhibit B, entitled "Compensation”
Exhibit C, entitled “Other Network Expenses”
Attachment No. 1, entitled "Hourly Rates”
Attachment No. 2, entitled "Definitions”
Attachment No. 3, entitled "Performance Metrics and Data Sharing” Attachment No. 4, entitled "Existing Shafter Network Assets” [SIGNATURES ON FOLLOWING PAGE]
16 SIGNATURE PAGE FOR CONSULTANT AND PROFESSIONAL SERVICES
AGREEMENT BETWEEN THE CITY OF SHAFTER
AND SMART FIBER NETWORKS, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF SHAFTER SMART FIBER NETWORKS, INC.
By: By:
Lance Lippincott
City Manager Its:
Printed Name:
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
17 EXHIBIT A
SCOPE OF SERVICES
1. Network Management Services.
After execution of the Agreement, Consultant will provide network management services and operational support services as necessary to operate the Shafter Network as an ISP for the City of Shafter, including but not limited to:
a. Maintenance of, and all activities associated with, new Layer 1 installations, as well as Layer 2 and Layer 3 network management services.
b. Installation (wiring and construction) necessary to connect units from the connection panel in telecommunications room or demarcation point within the business premises for all future Subscriber connections.
c. Implementation of Network Operations Center (NOC) at agreed upon locations within the Shafter Network, including but not limited to:
(i) Materials, equipment, and labor associated with implementation of connection panel(s) within the necessary telecommunication room(s) throughout the Shafter Network;
(ii) Installation and ongoing maintenance of new handholes, vaults, or any other access points necessary to gain access to new equipment associated with the expansion of the Shafter Network per the Consultant-Funded Expansion Adjustment (as outlined in Exhibit B).
d. Consultant will, directly or through its existing arrangement with Atherton Fiber, LLC, at their expense, acquire a pole permit from the pole owner and acquire an agreement with the owner for pole use.
e. Consultant will ensure all new fiber optic cable installations be ITU-T G.652.D or better and all splices be of the fusion type. Splices shall have an optical attenuation of no more than 0.1 dB at both 1550 nm and 1310 nm.
f. Consultant shall be responsible for procuring, managing, operating, monitoring, and maintaining the Core Services on behalf of the City, including the selection of providers, bandwidth tiers, interconnection points, service upgrades, technical configuration, and ongoing vendor coordination. Final service provider contracts shall be subject to the City's prior written approval.
g. Consultant shall ensure that Core Services meet industry standards for reliability, redundancy (as available), and performance appropriate for the City's service delivery needs.
Consultant shall monitor service levels and manage repair, maintenance, and escalation processes with third-party carriers on behalf of the City.
2. Internet Service Provider for Broadband Services to Subscribers.
18 Consultant will perform the services listed below as part of their responsibility as an internet service provider (ISP). If one or more of the services listed below need to be performed in phases or discrete increments, Consultant shall not proceed from one phase or increment to the next without written authorization from the City’s Representative. Consultant will complete all services for the duration of the contract. Performance metrics are listed in Attachment No. 3. a. Installation of fiber-to-the-home (FTTH) network equipment and infrastructure associated with connecting new Subscribers from the demarcation point to the Subscriber’s connection panel;
b. Installation of fiber-to-the-premises (FTTP) network equipment and infrastructure associated with connecting new business Subscribers from the demarcation point to the Subscriber’s connection panel;
c. Delivery of Broadband Access Services to Subscribers.
Subscriber Support Services.
(i) Provide a mechanism by website for new and existing Subscribers to view and make changes to their broadband services plan or account; (ii) Provide a mechanism by telephone for new and existing Subscribers to view and make changes to their broadband service plan or account; (iii) Provide a mechanism for existing Subscribers to report network outages, including a toll-free phone number for customer support. (iv) Clearly advertise the monthly pricing associated with broadband access on the Subscriber website.
(v) Provide Subscribers with monthly bills, collect payments, and respond to billing inquiries.
d. Provide the City with the following information on a monthly basis as it pertains to their function within the Agreement as an ISP:
(i) A list of new Subscribers activated by Syber Fiber during the previous thirty (30) calendar days, including physical addresses and/or business names. Consultant will not disclose any Subscriber’s Personally Identifiable Information (PII); (ii) A list of terminated or deactivated Subscriber accounts by Syber Fiber during the previous thirty (30) calendar days, including physical addresses and/or business names. Consultant will not disclose any Subscriber’s Personally Identifiable Information (PII); (iii) A net Subscriber count, as of the last day of each month cumulatively; (iv) A breakdown of all incoming monthly revenues from all broadband internet service Subscribers as defined in Exhibit B of this Agreement, from the Consultant, DBA Syber Fiber, or other outside contracted Service Providers. Monthly revenues are subject to the 60/40 revenue sharing provisions between the City and the Consultant. (v) Any and all other information that the City may reasonably require. This information may include information on Subscriber counts and revenues generated by Consultant
19 from ancillary services not subject to the revenue sharing provisions of this Agreement. This information may only be used by the City for statistical purposes or for reporting requirements as necessary by law. Consultant will make every effort to not disclose Subscriber’s Personally Identifiable Information (PII) without proper authority. e. Installation, deployment, and ongoing maintenance of wireless access points, for Wi-Fi internet use by the City or the public, at no cost to the City or the general public. Once deployed, these public Wi-Fi networks will be maintained and operated by the Consultant as part of its ongoing network management services, ensuring consistent performance, security, and accessibility. The City will become a Subscriber for all agreed upon wireless access points, and be responsible for paying the associated monthly fee for broadband services to Consultant.
Wireless access points will be installed within or around, but not limited to, the following locations:
(i) Public (City) parks: Mannel; Downtown Square; Stringham; Kirschenmann; Rodriguez; Veterans; Community; Farm; Flight; and the Shafter Skate Park facility. (ii) City buildings: City Hall; City Hall Annex; City Corporation Yard; Shafter Animal Shelter; Shafter Police Department; Shafter Library & Learning Center. (iii) City parking lots: Shafter Library & Learning Center.
20 EXHIBIT B
COMPENSATION
1. Compensation to Consultant for Scope of Services Rendered.
A. Share of Revenue Generated from Subscribers.
(i) Revenue Share for Broadband Internet Services.
City agrees to a shared revenue percentage from all monthly recurring broadband internet access service charges collected by Consultant. The revenue share split will be in a sixty (60) / forty (40) manner, with Consultant collecting all revenues, retaining sixty (60) percent as compensation, and paying the City forty (40) percent of said monthly revenues collected by the 15th day of the following month.
The Consultant reserves the right, with prior written notice to City, to deduct all monthly broadband fees billed to the City as a Subscriber from the City’s monthly revenue share entitlement for that month. These broadband fees charged to the City as a Subscriber include FTTP broadband internet service to all City-owned buildings, and broadband services associated with the wireless access points provided to the public with City parks, buildings, or parking lots. (ii) Consultant-Funded Expansion Adjustment.
Subject to the City’s prior written approval, in the event that Consultant fully funds the capital expenditures required to expand broadband infrastructure into a new service area not previously covered under this Agreement, the revenue share for Subscriber services in the new service area only shall adjust to eighty percent (80%) Consultant and twenty percent (20%) City until Consultant has recovered its total documented capital investment (the "Payback Period").
Upon full recovery of the investment, as mutually certified by the Parties, the revenue share for that expansion area shall revert to the standard sixty percent (60%) Consultant and forty percent (40%) City split for the remainder of the Agreement term. (iii) Alternative Technology Deployment Adjustment.
Subject to the City’s prior written approval, if Consultant elects to utilize alternative lastmile technologies, including but not limited to fixed wireless, millimeter wave, or CBRS spectrum, and bears the associated deployment costs, the revenue share for those connections shall similarly adjust to eighty percent (80%) Consultant and twenty percent (20%) City until the Consultant recovers the documented capital expense. Upon recovery, the revenue share shall revert to the standard sixty percent (60%) Consultant and forty percent (40%) City for such connections.
B. Service Fees and No-Cost Access to Property.
(i) Compensation to Consultant for Operating Services.
a. City agrees to pay Consultant a total of $495,000 ($99,000 per year) for the initial term of the Agreement for all services related to the design, construction, maintenance,
21 operations, and commercialization for low-level engineering work performed on new and existing Shafter Network.
b. City agrees to provide the Consultant, at no cost, with access to City-controlled real property sufficient for use as a secure yard, warehouse, and temporary field office for the duration of the initial term of this Agreement. This space, located at 720 Commerce Way, Shafter, CA 93263, shall be suitable for storage of materials, equipment staging, and day-to-day ISP operational needs, and may include the installation of modular office or utility structures by Consultant, subject to mutual agreement on location and site coordination.
2. Expense Reimbursement to Consultant.
A. Reimbursable Expenses – General.
Reimbursable expenses shall be limited to actual reasonable expenditures of Consultant for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City, either in writing or verbally, if warranted.
B. Authorized Subscriber Installation Costs.
Consultant may bill the City for all authorized reimbursable expenses in connection with the installation of broadband internet access service at a Subscriber location, for a total not to exceed Five Hundred dollars ($500.00) per customer location unless a higher amount is authorized in writing by City on a case-by-case basis.
C. Pole Attachment Fees.
City agrees to pay Consultant for pole attachment fees on a per-pole basis, as stated below:
(i) An initial one-time payment of $198 per pole will be assessed and assigned the calendar year designation of “year 1” at the time a permit is established for use of that pole for the Shafter Network.
(ii) An additional $19 lease fee and $5 administrative/insurance fee, for a total of $24 per pole that maintains a valid permit, will be charged by the Consultant and paid by the City on an annual basis beginning in calendar “year 2” of that pole being used within the Shafter Network. (iii) Pole fees stated above will not change, unless the pole lease fees are increased by the pole owner (lessor) and those increases are presented to the City and approved in writing by the City representative thirty (30) days ahead of invoicing. (iv) It is understood by the Parties that for regulatory compliance purposes, the Consultant shall retain legal ownership of all equipment installed on the poles. Notwithstanding such ownership, Consultant shall grant to the City exclusive operational use by way of an Indefeasible Right of Use (IRU) contract and beneficial rights to the installed equipment pursuant to the terms of this Agreement and any extensions thereof. The Consultant may not transfer, assign, or sell any ownership interest in the installed equipment except to the City or to another party designated in writing by the City.
22 (v) It is understood by the Parties that the Consultant, as a CLEC, will be responsible for transferring all appropriate documentation, permits, and pole access rights over to the City at the end of this Agreement or any extension of this Agreement herein termination of this agreement. The Parties acknowledge that the transfer process may require up to one (1) year to complete. During the transfer period, the Consultant shall not sell, transfer, or otherwise encumber the installed equipment except as directed by the City. The City shall remain responsible for all applicable fees and any costs associated with the transfer of ownership and permits.
3. Compensation for Additional Services.
A. Additional Services.
Consultant’s compensation for Additional Services shall be based on the total number of hours spent on Additional Services multiplied by the employees' appropriate billable hourly rate as established in Attachment 1 of this Agreement. The City, at its option, may negotiate a fixed fee for some or all Additional Services as the need arises. Where a fixed fee for Additional Services is established by mutual Agreement between City and Consultant, compensation to Consultant shall not exceed the fixed fee amount.
B. Reimbursable Expenses.
Reimbursable expenses shall be limited to actual reasonable expenditures of Consultant for expenses that are necessary for the proper completion of the Services and shall only be payable if specifically authorized in advance by City, either in writing or verbally, if warranted.
4. Payments to Consultant.
(i) Payments to Consultant shall be made within a reasonable time after receipt of Consultant’s invoice, said payments to be made in proportion to services performed. Consultant may request payment on a term other than twice a month, with written approval from the City representative ahead of the requested timeframe. Consultant shall be responsible for the cost of supplying all documentation necessary to verify the invoice amounts to the satisfaction of City. (ii) Consultant agrees to invoice the City for services and expenses associated with the terms of this Agreement on a bimonthly (twice a month) basis. Consultant will inform City regarding out-of-scope work being performed by Consultant (if any) and will not include out-ofscope work in any invoice amount to the City. Consultant will be sure to separately invoice any work completed within the project area related to the City’s Federal Funding Account Last Mile grant or any other grant awards herein. All invoices submitted by Consultant shall contain the following information:
1. Description of services billed under this invoice
2. Date of Invoice Issuance
3. Sequential Invoice Number
4. City’s Purchase Order Number (if issued)
5. Taxpayer Identification Number (TIN)
6. Amount Invoiced (Itemize all Reimbursable Expenses)
7. Total Billed to Date
23 8. Detailed progress report that indicates the amount of budget spent on each task.
(iii) Items shall be separated into Services and Reimbursable Expenses. Billings that do not conform to the format outlined above shall be returned to Consultant for correction. City shall not be responsible for delays in payment to Consultant resulting from Consultant’s failure to comply with the invoice format described above.
(iv) Request for payment shall be mailed to the address below or can be electronically submitted by emailing the following two email addresses – [email protected]; [email protected].
Chris Schultz
Deputy IT Director
City of Shafter
720 Commerce Way
Shafter, CA 93263
4. Accounting Records of Consultant.
Consultant shall maintain for three (3) years after completion of all services hereunder, all records under this Agreement, including, but not limited to, records of Consultant’s direct salary costs for all Services and Additional Services performed under this Agreement and records of Consultant’s Reimbursable Expenses, in accordance with generally accepted accounting practices. Consultant shall keep such records available for audit, inspection and copying by representatives of the City’s Finance Department or other government agencies during regular business hours upon twentyfour (24) hours’ notice.
The obligations of Consultant under this section shall survive this Agreement.
5. Taxes.
Consultant shall pay, when and as due, any and all taxes incurred as a result of Consultant’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
6. Taxpayer Identification Number.
Consultant shall provide City with Consultant’s complete Request for Taxpayer Identification Number and Certification, Form W-9, as issued by the Internal Revenue Service, and any other State or local tax identification number requested by City.
24 EXHIBIT C
OTHER NETWORK EXPENSES
1. Internet Protocol Licenses.
City agrees to purchase the required and necessary amount of Internet Protocol (IP) addresses in accordance with the low-level design and infrastructure needs in order to successfully implement all phases of the network expansion process.
2. Core Network Access and Dedicated Transport Services. a. The City shall be responsible for funding and maintaining one or more Dedicated Internet Access (DIA) connections, or substantially equivalent high-capacity wave transport services (collectively, "Core Services") as required to provide core Internet connectivity for the Shafter Network.
b. The City shall directly enter contracts for Core Services with carriers or, at its option, authorize Consultant to procure Core Services and invoice the City for all actual costs incurred, including but not limited to installation fees, monthly recurring charges, taxes, regulatory fees, and carrier-imposed surcharges, without markup unless otherwise agreed upon in writing. c. In the event the City fails to fund, maintain, or timely renew Core Services necessary for the operation of the Shafter Network, Consultant shall be excused from any performance metrics, service level obligations, or penalties arising from such deficiency to the extent it impairs Consultant’s ability to deliver Services. Consultant shall not be liable for any loss, interruption, or failure to meet performance standards resulting directly from a lapse, underperformance, or failure of the Core Services not attributable to Consultant’s actions.
25 ATTACHMENT NO. 1
HOURLY RATES
Any additional services requested by the city outside of customer interactions will be billed at Consultant’s regular rates, outlined below.
Standard Smart Fiber Networks Rates
Role Rates Rate Type Base Rate
Project Management
(All Smart Fiber Networks Team) Hourly $250.00
Project Coordinator Hourly $175.00
Engineering/ Design Hourly $250.00
2 Person OSP Field Crew Hourly $100.00
2 Person Wireless Field Crew Hourly $200.00
After Hours Troubleshooting Hourly $175.00
Standard Splicer Hourly $70.00
Standard ISP Technician Hourly $50.00
Network Technician Hourly $60.00
Prevailing Wage - Splicer Hourly $90.00
Prevailing Wage - Technician Hourly $62.00
Sales Weekly $640.00
Rate Adjustments
The hourly rates listed herein are subject to an annual review and adjustment upon mutual written agreement of the Parties. Any such adjustment shall be made in good faith and may consider inflation, labor cost changes, market conditions, or changes in the scope of services.
26 ATTACHMENT NO. 2
DEFINITIONS
“Access Agreement” means the written agreement between an owner of Premises and the City pertaining to the connection of the Premises to the Shafter Network, and granting a right of access and occupation to the City and/or Consultant sufficient to enable the installation and maintenance of Shafter Network and/or Consultant facilities on the Premises. “Agreement” means this Agreement, any and all Exhibits and Attachments thereto, and any Addenda or written amendments to which the Parties may agree from time to time. “Assets” means the dark fiber strands and Outside Plant associated with the Shafter Network and managed by the Consultant under this Agreement, as specified in Exhibit A. “Authorizations” means the permissions a Party must have to perform its obligations under this Agreement, which may include franchises; licenses; permits; zoning approvals; variances; exemptions; grants of authority to use public rights of way or facilities; agreements to make attachments to poles, ducts, conduits, towers, buildings, rooftops, manholes, and the like; and any other approval of a governmental authority or third persons with respect to (i) the construction, installation, repair, maintenance, operation or use of tangible or intangible property, as the case may be, or (ii) any requirement by a governmental authority for the engagement in a business or enterprise.
“Authorization Fees” means all permit, right-of-way, easement, pole attachment, franchise, encroachment, or license fee, charge or assessment of any kind relating to a Party’s execution of its obligations under this Agreement, whether imposed by a governmental authority or a private entity.
“Core Services” means services related to one or more Dedicated Internet Access (DIA) connections, or substantially equivalent high-capacity wave transport services, as required to provide core internet connectivity for the Shafter Network. “Customer Premises Equipment” (“CPE”) means terminal and associated equipment and inside wiring located at a Premises that is necessary for the receipt of Services, and which is provided and installed by Consultant.
“Dark Fiber” means fiber optic cable strands without electronic and/or optronic equipment and which is not "lit" or activated.
“Effective Date” means the date upon which this Agreement has been executed by the Parties and is approved by the City, per the approval of the City of Shafter and a vote of approval of the Council of the City of Shafter.
“FTTH” means fiber to the home. Represents infrastructure and service connections specifically associated with bringing broadband service to a homesite or private residence. “FTTP” means fiber to the premises. Represents infrastructure and service connections associated with bringing broadband service to any location, including a place of business, worship, etc.
27 “Maintenance” means work that must be performed upon or to the Shafter Network, including Assets, to ensure the continuity of an acceptable signal transmitted through the fibers (in conformance with the manufacturer’s specifications), and capable of enabling the Consultant and other ISP’s operating upon the Shafter Network, to meet the Performance Metrics, or to ensure the safety and reliability of the Assets.
“Network Operator” means Consultant’s role in (i) configuring and activating a community fiber network utilizing the Shafter Network, and (ii) providing data/IP transport services to unrelated Service Providers on a nondiscriminatory basis.
“Optical Network Terminal” / “ONT” means a device that performs interface functions, such as code conversion, protocol conversion, and buffering, required for communications to and from an optical fiber network.
“Outside Plant” means equipment and structure owned by the City that is used to house or support Shafter Network fiber optic cable, to which Consultant is granted a nonexclusive right to use under this Agreement.
“Open-Access Network” means a specialized and focused fiber network business model, in which the network infrastructure provider limits its activities to a fixed set of value layers in order to avoid conflicts of interest. The network infrastructure provider creates an open market and a platform for internet service providers (ISPs) to add value. The Open Access provider remains neutral and independent and offers standard and transparent pricing to ISPs on its network. It does not compete with the ISPs
“Premise” means a residence, commercial building, multi-dwelling unit (MDU), or buildable lot that can be feasibly and reasonably served by the Shafter Network. In cases where a single structure may require multiple connections to serve separate customers within the structure, each connection to an Optical Network Terminal (ONT) will count as an individual Premise. “Route” means the physical path traversed by the fiber strands that are specified as Assets in Exhibit A, as set forth in applicable maps and related documents that are made a part of this Agreement.
“Service” means any retail communications service offered and provided using the Shafter Network and the Assets, whether by the Consultant or another Service Provider, including but not limited to broadband Internet access service, and Voice Service. “Service Provider” means a provider of retail Services, to which the Consultant provides data transport services using the network infrastructure owned by the City of Shafter. “Shafter Network” means the new and existing network infrastructure owned by the City necessary for delivering any broadband internet access service by the Service Provider, including those associated with the City’s forthcoming branded public access website. “Subscriber” means a business or residential customer of retail Services provided by a Service Provider. The term “customer” may be used interchangeably within this Agreement.
28 “Voice Service” means interconnected VoIP service, as such term is interpreted by the Federal Communications Commission, or its substantial equivalent.
29 ATTACHMENT NO. 3
PERFORMANCE METRICS AND DATA SHARING
1. Performance metrics for Consultant are outlined as follows:
a. Consultant support performance: Consultant will strive to answer all inbound customer phone calls within 90 seconds, and all inbound emails within 24 hours. b. Consultant maintains that all fiber shall be ITU-T G.652.D or better. All splices shall be of the fusion type; and splices shall have an optical attenuation of no more than 0.1 dB at both 1550 nm and 1310 nm.
c. Consultant shall perform optical performance tests:
(i) for all City fiber installed under this agreement with the City; and (ii) to verify that fiber is correctly spliced and installed when the City requests its activation.
Upon construction, testing shall be performed over continuous stretches of the spliced fiber to validate the optical performance of the length of all the City fiber strands. Testing shall be unidirectional OTDR testing. Upon the City requesting use of City fiber, testing shall be performed to verify that fiber splicing has occurred according to fiber routing plans. This testing will consist of bi-directional OTDR testing, as well as direct optical attenuation and continuity testing using a calibrated optical source and power meter. Consultant shall provide a test result template for City review and approval before testing begins. Consultant shall provide the City with electronic documentation of all test results.
d. Testing shall be deemed successfully completed if:
(i) maximum fiber losses meet manufacturer specifications, with an allowance for splices and connectors;
(ii) individual splice losses do not exceed 0.1 dB; and (iii) maximum mated connector losses do not exceed manufacturer specifications. e. Testing will be performed by Consultant personnel and may be observed by the City or its designated representative. The City may request and/or perform additional testing to verify results prior to accepting test data.
f. An OTDR shall be used to measure and document splice losses and connector losses.
(i) To correctly identify abnormalities at a short range, a 100-meter or longer launch cable shall be used between the OTDR and the fiber under test. (ii) Each fiber will be identified, and the results of the test for each fiber will be recorded as indicated below.
(iii) The test will be repeated for each of the fibers linking a particular site. All tests will be made at 1310 nm and 1550 nm.
g. All data collected at each location during the tests shall be recorded at the time of the tests using electronic means. Optical power meter measurements shall be made when the City is activating City fiber strands, at the same time as the OTDR tests, to determine overall fiber loss and to ensure that fibers have appropriate end-to-end continuity (fibers not crossed). Power
30 meter testing shall be performed at both 1310 nm and 1550 nm and Consultant shall report the relative loss of each fiber strand.
h. Consultant shall provide the City as-built documentation for all communications infrastructure once the network design is completed and before final acceptance by the City. (i) Consultant shall provide georeferenced map files, such as GIS shapefiles, that indicate fiber routing, splice enclosures, fiber counts, and designation of aerial or underground construction.
(ii) Engineering as-built drawings shall be provided showing building entrances and inside wiring at each City facility.
(iii) Consultant shall provide as-built documentation of any changes in the network during the term of the agreement. Upon request from the City, Google KMZ files may be provided by Consultant for all as-built fiber routes.
31 ATTACHMENT NO. 4
EXISTING SHAFTER NETWORK ASSETS
The Assets in which Consultant shall have a non-exclusive right of use and obligation to maintain and operate under this Agreement are partially described in the table below. This attachment may be referenced and amended by the Parties from time to time in writing, with signatures by both Parties, in order to include or remove assets or colocation spaces that are vital to network operations. Examples of such Assets may include, but are not limited to: network facilities, rental/lease space for office use, additional fiber nodes or access points, existing City structures not yet associated with existing network infrastructure.
As of the effective date of this Agreement, the City currently owns, operates, and maintains approximately 40 miles of underground fiber optic cable, conduit, enclosures, and structures associated with the Shafter Network. The City’s conduit network currently stretches approximately 510,000 linear feet and consists of primarily 2-inch or 4-inch conduit sizing.
Conduit depth standard within the existing Shafter Network is 36 inches below grade, with most conduits installed between 32- and 40-inch depths at time of installation. A map of the current Shafter Network backbone path and the four distribution hub sites associated is provided below.
32 As of the Effective Date, Assets include the following existing municipal infrastructure comprising the Shafter Network:
● Any City owned conduit, cable, vaults, enclosures, cabinets, and physical structures within the Shafter Network that are necessary for the expansion of the Shafter Network as it relates to the terms of this Agreement.
● Access to the following City owned facilities within the Shafter Network that are necessary for the expansion of the Shafter Network as it relates to the terms of this Agreement:
Location Name Address Equipment
City Hall 336 Pacific Ave Network equipment room
City Hall Annex 337 State Ave Network equipment room
Police Department 201 Central Valley Hwy Network equipment room Public Works Corp Yard 720 Commerce Way All network assets owned by City Shafter Library & Learning Center 236 James St Network equipment room Veterans Park Fiber HUB 500 W Los Angeles Ave Network equipment room Fanucchi Tower Fiber HUB 4451 Fanucchi Way All network assets owned by City Lerdo Central Office 5821 E Lerdo Hwy All network assets owned by City Animal Control Facility 18849 S Shafter Ave Network equipment room Modified Community Correctional
Facility (MCCF) – not in use 1150 E Ash Ave Network equipment room Gossamer Grove Fiber Node 3851 Gossamer Grove Blvd All network assets owned by City Community Park utility closet 9210 Cobble Creek Dr Network equipment room
MANAGEMENT REPORT
CITY OF SHAFTER
CITY COUNCIL REPORT
MEETING DATE: July 15, 2025
DEPARTMENT: David Franz, Community Services Director
SUBJECT: DOWNTOWN FAÇADE GRANT PROGRAM
RECOMMENDATION
Council find the action is not defined as a “project” per Section 15378(b)(2) of the CEQA Guidelines; approve the creation and implementation of the Downtown Façade Grant Program for Fiscal Year 2025-26; and a budget amendment in the amount of $200,000, consisting of $124,000 transferred from the Shafter Charitable Purpose Foundation to the General Fund, and $76,000 from the General Fund.
BACKGROUND
The Downtown Façade Grant Program is a proposal to use financial incentives to promote economic development, enhance the aesthetics of downtown, and encourage private investment in visible exterior improvements to commercial properties. The program was developed based on a previous program of the Shafter Redevelopment Agency, as well as business input and community feedback.
If approved, this program will be funded through a combination of a $124,000 transfer from the City of Shafter's Charitable Purpose Foundation and $76,000 from the General Fund. Future continuation of the program would be subject to Council direction and the annual budget process.
The proposed guidelines establish a matching grant program with awards up to $10,000 per property. Projects must be located within the area bounded by Shafter Avenue, Central Valley Highway, and Lerdo Highway. A 50% match from applicants is required. Eligible improvements include facades, signage, paint, storefront enhancements, and rear entrance accessibility, among others. Ineligible expenses include roof repairs, inventory, and temporary decorations.
FISCAL IMPACT
The total fiscal impact for the Downtown Façade Grant Program in Fiscal Year 2025-26 is $200,000. Of this amount, $124,000 will be transferred from the Shafter Charitable Purpose Foundation to the General Fund, and the remaining $76,000 will be appropriated directly from the General Fund. The funds will support matching grant reimbursements of up to $10,000 per eligible commercial property within the defined downtown district.
DOWNTOWN FAÇADE GRANT PROGRAM
- 2 -
There is no anticipated impact to utility funds or other restricted revenue sources. The use of General Fund resources reflects a policy decision to invest in economic revitalization and aesthetic enhancements in the City’s core commercial area. Future continuation of the program, beyond FY 2025-26, would require separate Council approval and identification of funding through the annual budget process.
CEQA ANALYSIS
The action is not defined as a “project” per Section 15378(b)(2) of the CEQA Guidelines because the action is the development of a downtown facade program to enhance the aesthetic of existing downtown uses with no expansion of the existing uses and with the affected uses having the same purpose and capacity and therefore, it is considered general policy and procedure making and not subject to CEQA.
APPROVED BY THE CITY ATTORNEY
ATTACHMENTS
1. Shafter - Downtown Facade Grant Program-c1
2. Shafter - Downtown Shafter Façade Grant Application FY 202526-c1
Downtown Façade Grant Program
Purpose
The purpose of the Façade Grant is to support businesses and building owners as they invest in exterior building improvements to make downtown Shafter thrive by enhancing aesthetic appeal, promoting pedestrian-friendly environments, and supporting economic vitality.
Program Overview
For 2025-26, $200,000 has been designated for funding façade and building improvements within the downtown area (see map available at City Hall)The program aims to restore buildings, promote Shafter as a pedestrian-friendly area, and enhance the overall aesthetic appeal of downtown. This program is funded through the General Fund and all improvements must align with the City’s downtown revitalization goals.
Grant Details
Maximum grant per business: Up to $10,000
Matching requirement: 50% of qualified expenses.
Funds are limited and distributed on a first-come, first-served basis until the annual allocation is exhausted.
Eligible Properties
● Commercial properties located within the triangle defined by Shafter Avenue, Central Valley Highway, and Lerdo Highway(as depicted on the official program map available at City Hall).
● Applicant must be the property owner or a tenant with written permission from the property owner (Property Owner Attestation form must be notarized and included with application).
● Project must meet all state and local building codes and zoning requirements. ● Properties must be free of code violations at the time of application.
Ineligible Properties
● Properties with outstanding fees or taxes owed to the City of Shafter. ● Residential properties or mixed-use properties where improvements primarily benefit residential portions.
● Properties outside the designated downtown triangle, as defined by the program map.
Eligible Improvements
Exterior improvements that enhance the appearance of the building and are visible from public streets are eligible. Eligible improvements include:
● Restoration/rehabilitation of building's exterior wall(s) facing public streets, alleys, or parking lots.
● Front entrances and facades
● Signage (as part of an overall improvement project)
● Doors and windows (as part of an overall improvement project) ● Wall treatments (painting, acid washes, etc.)
● Architectural details (light fixtures, awnings, etc. as part of an overall project) ● Rear entrance accessibility and paving
● Building additions meeting local codes and program guidelines ● Painting the building
● Landscaping or hardscaping visible from public areas, if part of a broader façade improvement project.
Ineligible Expenses
● Roof repair
● Inventory or operating capital
● Temporary Decoration
● Any activity completed prior to receiving final approval of grant funds ● Interior improvements or non-visible exterior work.
● Improvements that do not comply with City codes, zoning, or design guidelines.
Application Process
1. Applicants may meet with the City’s Building and Planning Departments prior to submitting an application to discuss the project and ensure it meets all requirements.
2. Complete the façade application and submit it to the City of Shafter Community Services window at 336 Pacific Avenue. All applications will be time stamped upon receipt.
3. City staff review for compliance with ordinances and eligibility.
4. Complete and approved applications will be notified in writing, prioritized by the order they were received.
5. Incomplete applications will be returned.
6. Applicants may appeal decisions to the City Planning Commission within 15 days of notification, with appeals heard at the next scheduled Planning Commission meeting or as soon thereafter as the Commission’s schedule allows.
Award Reimbursement
● Written request for fund release required upon project completion. ● Copies of all invoices, receipts, proof of permits, and “After” photographs must accompany the request.
● All necessary permits must be obtained before commencing work, and proof of permit compliance is required for reimbursement.
● Reimbursement will be processed within 45 days of receiving a complete request, pending final inspection by City staff.
● Funds will only be disbursed for eligible expenses as outlined in the approved application and grant agreement.
Project Timeline
● Projects must be completed within 12 months of approval.
● Extensions may be granted on a case-by-case basis with written justification submitted at least 30 days before the deadline.
● Projects not completed within the approved timeline (including extensions) may forfeit grant funding.
Additional Notes
● Funds will be distributed on a first-come, first-served basis until the annual allocation is exhausted.
● Applicants are encouraged to discuss their project with the City’s Building and Planning Departments prior to submitting an application.
● The City reserves the right to inspect the property before, during, and after the improvements to ensure compliance with program guidelines. ● Improvements must be maintained in good condition for a minimum of 5 years, during which no major alterations that would diminish the aesthetic value shall be made without prior approval from the City.
● The City of Shafter shall not be liable for any damages, injuries, or other liabilities arising from the improvements made under this program. The applicant assumes all responsibility for the work performed, including compliance with all applicable laws and regulations.
● The City may use photos or descriptions of completed projects for promotional purposes to highlight downtown revitalization efforts.
Downtown Shafter Façade Grant Application – FY 2025‑26
Welcome!
Downtown is the heart of Shafter. To help downtown thrive, the City of Shafter will reimburse 50 % of eligible exterior improvement costs—up to $10,000 per address. Complete the form below and hand-deliver it to the Building Department window at 336 Pacific Avenue for a timestamp.
First‑come, first‑served. Funds may go fast—so don’t wait! Before applying, schedule a mandatory pre-application consultation with the Building and Planning Departments (call 661-746-5002 or email [insert contact email]).
Eligibility Check
Requirement Yes / No
I am applying for a commercial building within the triangle defined by Shafter Avenue, Central Valley Highway, and Lerdo Highway (as shown on the program map).
☐ Yes ☐ No
I am the owner or a tenant with the owner’s written permission (notarized letter included)
☐ Yes ☐ No
There are no outstanding City fees, taxes, or code violations associated with this property.
☐ Yes ☐ No
The proposed project will meet all state/local building & zoning codes and any applicable guidelines
☐ Yes ☐ No
If you’ve checked “Yes” to all—fantastic! Keep going.
About You
Applicant
Type
☐ Owner ☐ Tenant
Business /
Building Name
__________________________________________
Site Address __________________________________________ Mailing Address __________________________________________ Primary
Contact
__________________________________
Phone ____________________
Email __________________________________________
If tenant, property‑owner name & signature granting permission:
__________________________________________________ Date ___________ Project Vision
A. Project Snapshot
Provide a detailed description (3-5 sentences) of the proposed improvements, including how they will enhance the building’s exterior and contribute to the downtown area’s aesthetic appeal.
B. Visuals
Attach “Before” photos of the current façade. (Note: “After” photos will be required upon project completion for reimbursement.)
C. Plans
If applicable, attach concept sketches, elevations, or color renderings of the proposed improvements.
D. List of Changes
Specify the elements of the project (e.g., painting, new signage, window replacement) E. Target Start Date: __ / __ / __ Finish by (12‑month max): __ / __ /__ Estimated Costs
Provide itemized cost estimates from at least two licensed contractors for the proposed work.
Item Contractor 1 Estimate Contractor 2 Estimate
Estimated Total Eligible
Cost
$____________
Grant Request (up to half of the cost or $10,000, whichever is lower): $____________ Your Match: $____________
Checklist
Before you walk in the door, be sure these are in your packet:
● “Before” photos of the façade
● Concept sketch/elevation or color rendering
● Itemized budget & at least two contractor estimates from licensed contractors ● Property Owner Attestation letter (notarized, if applicant is tenant) ● Proof of any required permits (to be obtained before starting work) ● Copy of current City of Shafter business license.
TIP: Incomplete packets will be returned—but we’ll give you a list so you can re‑apply quickly.
I/We certify that everything above is true and that the project will comply with all city codes and permit requirements. I/We acknowledge reimbursement is issued after final inspection and submission of paid invoices.
Signature Printed Name Date
______________________________ _______________________ _________ ______________________________ _______________________ _________ Need a Hand?
● Program Questions: David Franz, Community Services Director • 661‑746‑5042 [email protected]
● Building Permits: 661‑746‑5002
Deliver the completed, signed packet in person to:
City of Shafter – Building Department Window
336 Pacific Avenue, Shafter CA 93263
Hours: Monday–Friday 8 a.m.–5 p.m.
Downtown Shafter Façade Grant Program – FY 2025-26
Date: ___________________________________
To: City of Shafter
Community Services Department
336 Pacific Avenue
Shafter, CA 93263
Subject: Permission for Tenant to Apply for Downtown Façade Grant Program I/We, _____________________________hereby certify that I/we are the legal owner(s) of the commercial property located at ____________________________________ Shafter, CA 93263, within the designated downtown area eligible for the City of Shafter’s Downtown Façade Grant Program (as defined by the triangle formed by Shafter Avenue, Central Valley Highway, and Lerdo Highway).I/We grant permission to ______________________ the tenant operating at the above-referenced property, to apply for and participate in the Downtown Façade Grant Program for the fiscal year 2025-26. The proposed exterior improvements, as described in the tenant’s application, are approved by me/us, provided they comply with all applicable state and local building codes, zoning requirements, and City design guidelines.
I/We acknowledge and agree to the following conditions:
• The improvements will be maintained in good condition for a minimum of 5 years, as required by the program, and no major alterations that would diminish the aesthetic value of the improvements will be made without prior approval from the City of Shafter.
• All necessary permits will be obtained by the tenant or their contractor before work begins, and proof of compliance will be provided to the City as part of the reimbursement process.
• The City of Shafter is not liable for any damages, injuries, or other liabilities arising from the improvements made under this program. I/We and the tenant assume full responsibility for the work performed, including compliance with all applicable laws and regulations.
• The City reserves the right to inspect the property before, during, and after the improvements to ensure compliance with program guidelines. • I/We confirm that there are no outstanding fees, taxes, or code violations associated with the property at the time of this application.
• I/We understand that the tenant must remain in operation at the property for at least 2 years following the grant award, or the grant funds may be subject to repayment to the City, and
• I/we will cooperate with the City to enforce this requirement if necessary.
I/We certify that the information provided in this letter is true and accurate to the best of my/our knowledge.
I/We understand that this letter must be notarized and submitted as part of the tenant’s application packet for the Downtown Façade Grant Program.
Property Owner Signature(s):
______________________________ _____________________________ _______________________________ _____________________________ [Printed Name] [Printed Name]
Property Owner Contact Information:
Phone: ____________________
Email: ____________________
Mailing Address: ____________________
Notary Public Acknowledgment
State of California
County of Kern
On _____________ before me, _________________________________, a Notary Public, personally appeared _______________________________________________who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal.
Signature of Notary Public: ______________________________ Seal:
MANAGEMENT REPORT
CITY OF SHAFTER
CITY COUNCIL REPORT
MEETING DATE: July 15, 2025
DEPARTMENT: Rogelio Sanchez, Finance Director
SUBJECT: UTILITY BILLING SENIOR DISCOUNT PROGRAM DISCUSSION
RECOMMENDATION
Council find the action is for informational purposes only and does not trigger CEQA; discuss the concept of a senior discount program for utility billing and provide direction to Staff on whether to pursue further evaluation and development.
BACKGROUND
The purpose of this item is to present information and options related to establishing a senior discount program for City utility services, including water, sewer, and refuse.
Staff seeks Council discussion, feedback, and direction on whether to proceed with such a program and, if so, under what terms.
Many California cities and special districts offer senior discounts on utility services to support older residents, particularly those on fixed incomes. Examples include:
▪ Wasco: 30% discount on monthly Water UB for qualifying seniors ▪ Delano: 15% discount on water, sewer, and refuse services ▪ Fresno: 10–14% discount on sewer and solid waste services for low-income seniors
▪ Riverbank: Flat-rate bimonthly discount for income-qualified seniors aged 60+ Discussion
If the City Council is interested in adopting a senior discount program, there are two primary funding mechanisms to consider:
1. Utility Fund Subsidy (Not Recommended)
Funding a senior discount through the City’s utility enterprise funds would shift costs to other ratepayers and trigger Proposition 218 requirements, including mailed notice and a public protest hearing. Staff does not recommend this approach.
2. General Fund Subsidy (Recommended)
A General Fund transfer could be used to subsidize the program for qualifying seniors.
This approach, used by neighboring jurisdictions, avoids Proposition 218 requirements and preserves ratepayer equity.
UTILITY BILLING SENIOR DISCOUNT PROGRAM DISCUSSION
- 2 -
Program Scope and Administration
Should the Council express interest, Staff recommends the following parameters for consideration:
▪ A 30% maximum discount on utility charges for qualifying senior residents ▪ Eligibility criteria could include:
o Age 62 or older
o Primary residence within City limits
o Be a current property owner and reside at primary residence o Enrollment in low-income assistance programs (optional) To ensure proper program administration, Staff recommends hiring a part-time employee to manage applications, eligibility verification, annual re-certifications, and program reporting.
Next Steps
Staff requests Council input on whether to move forward with implementing a senior discount program and, if so, seeks direction on the preferred funding mechanism, discount amount, and eligibility criteria.
FISCAL IMPACT
There is no fiscal impact at this time, as this item is for discussion purposes only.
However, if the City Council chooses to pursue a senior discount program for utility billings, there would be a future fiscal impact. The annual cost would depend on the number of eligible participants and the discount percentage approved by Council.
For reference, the City of Delano allocates approximately $200,000 to $250,000 annually for its program. The City of Wasco allocates about $60,000 for the water portion only. Based on these comparisons, Staff estimates that Shafter’s annual cost would likely not exceed $100,000 for the water portion.
CEQA ANALYSIS
This item does not require discretionary action as it is for informational purposes only.
Therefore, it does not trigger CEQA review.
APPROVED BY THE CITY ATTORNEY
No
ATTACHMENTS
None
MANAGEMENT REPORT
CITY OF SHAFTER
CITY COUNCIL REPORT
MEETING DATE: July 15, 2025
DEPARTMENT: Michael James, Public Works Director
SUBJECT: BEECH AVENUE CONNECTION TO PROPOSED ROUNDABOUT AT SANTA FE WAY AND HIGHWAY 43 UPDATE
RECOMMENDATION
Council find that the requested action does not constitute a "project" under Section 15378(b)(5) of the CEQA Guidelines; receive an updated presentation on the Beech Avenue connection options related to the planned roundabout at Highway 43 and Santa Fe Way; and authorize the Public Works Director to submit a “Request for Authority to Alter Highway-Rail Crossings” to the California Public Utilities Commission (CPUC) supporting temporary closure of the Beech Avenue connection, with future restoration flexibility contingent on a grade-separated solution.
BACKGROUND
The City of Shafter, in coordination with Caltrans, has been working on plans to construct a roundabout at the intersection of Santa Fe Way and Highway 43 to reduce traffic congestion and improve safety. The total construction cost is estimated at $10 million, to be fully funded by Caltrans. The City is responsible for funding approximately $3 million for pre-construction work, including $1.5 million for design covered by federal and local funds and another $1.5 million in local traffic impact fee proceeds for right-ofway acquisition. While Caltrans Staff have performed the design work to date, they have been billing the City for their services. Initial plans envisioned a five-legged roundabout configuration that accommodates all existing roadway approaches: Beech Avenue, Santa Fe Way, Los Angeles Avenue, Highway 43 North, and Highway 43 South. However, Caltrans later proposed revising the design to a four-legged intersection, excluding the Beech Avenue connection.
Some considerations that have previously informed the discussion on the Beech Avenue connection are as follows:
1. High-Speed Rail (HSR) Impacts:
The City previously acknowledged that the Beech Avenue connection would likely be eliminated to accommodate the State High-Speed Rail (HSR) project’s grade-separated alignment. A 2018 settlement agreement with the High-Speed Rail Authority secured $5 million in mitigation funds to address the loss of this connection.
2. Regulatory and Cost Barriers:
BEECH AVENUE CONNECTION TO PROPOSED ROUNDABOUT AT SANTA FE WAY AND HIGHWAY 43 UPDATE
- 2 -
A Beech Avenue connection would require maintaining an at-grade crossing at the Burlington Northern Santa Fe (BNSF) railway, triggering CPUC review and requirements that could include signalization. Addressing these requirements would add approximately $1 million to the project and also delay construction.
3. Traffic Flow Improvements:
Eliminating the Beech Avenue connection enables a bypass lane for northbound Santa Fe Way, likely improving traffic circulation and significantly reducing congestion.
These and other considerations were discussed at the Council's May 19, 2020 meeting, when the Council ultimately voted to allow the project to proceed without a Beech Avenue connection.
Although the HSR grade separation project is now uncertain due to a pause in federal funding, the roundabout design and right-of-way work are both nearing completion.
Caltrans Staff is preparing a CPUC “Request for Authority to Alter Highway-Rail Crossings,” which includes the proposed closure of the Beech Avenue connection. As drafted, the request retains flexibility for restoring the Beech Avenue connection if a grade-separated rail solution becomes feasible. It is anticipated that the physical closure of Beech Avenue would occur at the onset of the roundabout construction, likely within the next two years.
At its June 17, 2025 meeting, the Council received a presentation from Staff focused on three options to consider and discuss for an updated project strategy, which were as follows:
Option 1: Proceed with Temporary Closure of Beech Avenue Pros:
• Preserves project timeline and construction funding eligibility • Improves safety and traffic circulation west of the BNSF railway (90% of intersection traffic flow)
• Allows for future restoration of a connection if a grade separation project proceeds
Cons:
• Restoring the connection is uncertain, even with a grade separation project • Redirected traffic impacts to nearby rail crossings
• Potential complications with the use of HSR settlement funds if the connection is preemptively closed
Option 2: Reconsider Beech Avenue Connection
BEECH AVENUE CONNECTION TO PROPOSED ROUNDABOUT AT SANTA FE WAY AND HIGHWAY 43 UPDATE
- 3 -
Pros:
• Preserves Beech Avenue connectivity
• May strengthen City’s position regarding HSR settlement proceeds • Does not affect right-of-way needs of the project
Cons:
• Adds significant cost and delay due to redesign
• Potential loss of Caltrans construction funding
• Roundabout benefits would be reduced to comply with CPUC requirements Option 3: Do Not Proceed with Roundabout Project
Pros:
• Retains full roadway connectivity
• Retains flexibility for future intersection design or alternative project concepts Cons:
• Wasted City investment in design and right-of-way
• Traffic congestion and safety risks continue at the intersection • No funding prospects for future improvements
Even if a grade separation project does not happen, the completed roundabout would function more safely and efficiently without an at-grade Beech Avenue connection. The rerouting of Beech Avenue traffic would impact other at-grade crossings, such as Cherry Avenue and Lerdo Highway, but the time allowed before the closure should enable the City to prepare and complete mitigation projects. Lastly, Caltrans has not factored a Beech Avenue connection into its design since 2020. They reportedly have a construction funding window that will expire if the previously described pre-construction work is not completed by the end of this year.
After presenting the above-listed options to the Council, Staff recommended Option 1, proceeding with the temporary closure of the Beech Avenue connection, to maintain the project timeline and funding eligibility and preserve flexibility for reconnecting Beech Avenue should a grade separation be constructed. While recognizing the justifications for Option 1, the Council expressed some concerns about the impacts of a Beech Avenue closure without a better understanding of how and when the traffic mitigation projects can be completed to offset the impacts the closure will have on other local roadways and intersections. The Council ultimately directed Staff to report back with the requested details about the mitigation projects at a future meeting.
BEECH AVENUE CONNECTION TO PROPOSED ROUNDABOUT AT SANTA FE WAY AND HIGHWAY 43 UPDATE
- 4 -
Since the last meeting, Staff has developed a plan of prioritized mitigation projects, some of which can be completed before the Beech Avenue connection closure, expected within two years. The highest-priority projects involve two Cherry Avenue intersection improvements at Lerdo Highway and Santa Fe Way. The intersections were prioritized primarily based on funding availability and the City having jurisdiction.
For Lerdo Highway, a traffic signal can be installed to ensure safer access to and from Cherry Avenue. This particular traffic signal is among several mitigation projects identified in the HSR settlement agreement. While the improvements at Cherry Avenue and Santa Fe Way are not listed in the settlement agreement, they should address some of the impacts of redirected Beech Avenue traffic looking to access or cross Santa Fe Way or Highway 43. The specific improvements would lead to the intersection being fully controlled in all directions, starting with stop signs as the first phase and a traffic signal for the second phase.
Within the estimated two years that should elapse before the Beech Avenue connection is closed, the traffic signal at the intersection of Lerdo Highway and Cherry Avenue, plus stop signs at the intersection of Santa Fe Way and Cherry Avenue, can be installed to facilitate redirected Beech Avenue traffic. Some additional traffic congestion could be expected, but access will be controlled and significantly safer. A preliminary estimate of these improvements is $500,000, most of which could be reimbursed through the HSR settlement agreement.
Additional mitigation projects, also listed in the HSR settlement agreement, include an extension of Golds Avenue to Lerdo Highway, as well as a reconstruction of East Los Angeles Avenue and Cherry Avenue. However, these projects will cost significantly more than the two Cherry Avenue intersection improvements, suggesting the City should have a formal arrangement with HSR regarding their funding participation before proceeding with construction. The design work can at least start to ensure the improvements can be constructed as soon as possible.
Regardless of how and when the City chooses to proceed with mitigation projects, Caltrans cannot perform a roundabout redesign to restore the Beech Avenue connection before its construction funding window expires. Further, the CPUC is not willing to commit to retaining the connection unless the redesign with specific traffic analyses is performed. This outlook essentially means the aforementioned Option 2 is not a viable option, and the only two options left to consider are Option 1, closing the Beech Avenue connection, and Option 3, canceling the project entirely if the Council wishes to retain the connection. Additionally, the City’s prior investment in design and right-of-way acquisition could be wasted. Wasted costs on the design will be particularly problematic, given that up to $1.3 million in federal funding allocated to the City to cover the costs may need to be reimbursed if a roundabout is not ultimately built.
Provided the mitigation projects can be programmed into the City's Capital
BEECH AVENUE CONNECTION TO PROPOSED ROUNDABOUT AT SANTA FE WAY AND HIGHWAY 43 UPDATE
- 5 -
Improvement Program, Staff continues to support Option 1.
Included with the staff report are: 1) a summary presentation and 2) a draft version of the Request for Authority to Alter Highway-Rail Crossings for submittal to the CPUC.
FISCAL IMPACT
There is no immediate fiscal impact associated with this item. Prior expenses related to project design and right-of-way acquisition have been funded through local Traffic Impact Fees and a federal grant.
CEQA ANALYSIS
The action is not defined as a “project” per Section 15378(b)(5) of the CEQA Guidelines because the action is receiving direction about the Beech Avenue connection for the future roundabout at Santa Fe Way and Highway 43 and therefore, it is organizational and administrative activity that will not result in direct or indirect physical changes to the environment and is not subject to CEQA. The current roundabout option without a Beech Avenue connection has already been environmentally cleared, and any future changes based on direction from the Council would have to be environmentally cleared per CEQA if new plans are considered at a future date based on direction from the Council.
APPROVED BY THE CITY ATTORNEY
Not Applicable
ATTACHMENTS
1. Presentation-Future of Beech Avenue at Santa Fe Way Roundabout Project
2. Draft Request to Alter Highway-Rail Crossing for CPUC Submittal
Future of Beech Avenue at
Santa Fe Way
Roundabout Project
July 15, 2025
Current Project Status
• Uncertainty with grade separation project awarded to High-Speed Rail • Caltrans roundabout construction funding will expire if certain objectives are not met this year
• Right-of-way acquisition
• Filing status of Beech Avenue with the California Public Utility Commission • Request For Authority to Alter Highway-Rail Crossings • Temporary closure
• Beech Avenue remains connected until construction commences • Possibility to restore connection with the grade separation project
Option 1 - Temporary Beech Avenue
Closure
• Pros
• Faster project timeline
• Optimizes benefits to Santa Fe Way traffic
• Cons
• Closure expected within two years
• Possible loss of HSR settlement proceeds
• Uncertainty of restoring the connection
Option 2 - Revisit Beech Ave. Connection
• Pros
• Extending Beech Avenue connection
• Protects the prospect for HSR
settlement proceeds
• Does not affect right-of-way
• Cons
• Caltrans funding expires
• Signalization / less effective roundabout
• Same at-grade crossing safety issues
Option 3 – Avoid Roundabout
• Pros
• More flexibility for Beech Avenue and
other connecting roadways
• Cons
• Consequences of using federal money
for design and not constructing project
• Worsening traffic flow and safety
conditions
• No funding prospects
HSR Mitigation Projects for Beech Avenue
• Design Now / Construct by 2027
• Traffic Signal at Lerdo Highway / Cherry Avenue
• Traffic Signal at Lerdo Highway / Golds Avenue
• Design / Defer Construction Until HSR Funds are Committed • Extensions and Widenings at
• Cherry Avenue
• Los Angeles Avenue
• Golds Avenue
Potential Safety Improvements at
Cherry Ave./Santa Fe Way
Ph. 1 – All Way Stop (Completion 2025) Ph. 2 – Traffic Signal (Completion 2027)
Questions?
Request for Authority to Alter Highway-Rail Crossing
Pursuant to Commission General Order 88-B
Form Rev: January 2025
REQUEST FOR AUTHORITY TO ALTER
HIGHWAY-RAIL CROSSINGS
PURSUANT TO
COMMISSION GENERAL ORDER 88-B
1. Date of Request
Submitted on:
2. Estimated Construction Start/Completion
Planned Start Date: 02/13/2026
Planned Completion
Date: 02/13/2027
3. Applicant Info
Organization Name: Department of Transportation
Contact Person: Robert Martinez-Witrago
Title: Right of Way Agent
Street Address: 2015 E. Shields Ave., Suite 100
City: Fresno
Zip: CA
Phone: (559) 981-0891
Email: [email protected]
4. Crossing Proposed to be Altered
Roadway Agency with Jurisdiction: Caltrans and City of Shafter, Kern County CPUC Crossing Number: CPUC 002-904.40
U.S. DOT Crossing Number: 028386G
New U.S. DOT Crossing Number
(At-grade to grade-separation only):
N/A
Street Name: Los Angeles Ave E
City/County: Shafter/Kern
Vehicular Average Daily Traffic
(ADT) on roadway crossing tracks:
6881
Year ADT count taken
(within the last 5 years):
2023
Roadway Speed Limit: 45 MPH
Railroad Responsible for Crossing: BNSF
Other Railroads Operating on
Tracks:
ATK
Average Daily Train Traffic and
speed from all operating railroads Train Volume Maximum Train Speed Passenger 12 79
Freight 17 79
Transit
Request for Authority to Alter Highway-Rail Crossing
Pursuant to Commission General Order 88-B
Form Rev: January 2025
5. Describe Proposed Alterations:
It is proposed that the Beech Ave RR crossing connecting Beech Avenue to Santa Fe Way be constructed to close off the railroad right-of-way from public traffic at the time construction of a roundabout at the intersection of Santa Fe Way and State Route 43 commences. This connection can be restored should a grade separation project to raise the current Burlington Northern and Santa Fe Railway tracks and planned High-Speed Rail tracks is constructed to facilitate a connection.
6. Temporary reduced vertical clearance needed and why (Applicable only to gradeseparation projects):
Not applicable.
7. Describe the public benefits to be achieved by the proposed alterations:
The closure of the Beech Avenue RR crossing would relieve traffic congestion at the intersection of State Route 43, Los Angeles Avenue, and Santa Fe Way. The closure of this RR crossing can to facilitate the re-opening of Beech Avenue in a grade-separated configuration, if any.
8. Explain why a separation of grades is not practicable:
There is not an existing grade separation at the location, currently.
9. Describe Commission Standard Warning Devices:
Existing
Configuration:
Existing RR crossing warning devices.
Proposed
Configuration:
Complete removal of the RR crossing warning devices.
10. Temporary Traffic Controls and Configuration of Commission Standard Warning Devices During Construction: There would be concrete rails as well as traffic barriers and traffic signs to redirect traffic on both sides of RR right of way.
Request for Authority to Alter Highway-Rail Crossing
Pursuant to Commission General Order 88-B
Form Rev: January 2025
Signature
I, R o b e r t M a r t i n e z - W i t r a g o , am an employee of Department of Transportation and am authorized to sign this GO 88-B authorization request letter on its behalf.
Robert Martinez-Witrago
Right of Way Agent
Signature and date
Request for Authority to Alter Highway-Rail Crossing
Pursuant to Commission General Order 88-B
Form Rev: January 2025
11. Evidence of Agreement:
I, M i c h a e l J a m e s , am an employee of City of Shafter and authorized to sign this letter of agreement on its behalf, hereby declare that City of Shafter concurs with the proposed project described above.
Michael James
Title
Signature and Date
[email protected]
336 Pacific Ave.
Shafter, CA 93263
Request for Authority to Alter Highway-Rail Crossing
Pursuant to Commission General Order 88-B
Form Rev: January 2025
12. Evidence of Agreement:
I, D i o n i s i o M a r t i n e z , am an employee of BNSF Railway Company and authorized to sign this letter of agreement on its behalf, hereby declare that BNSF Railway Company concurs with the proposed project described above.
Dionisio Martinez
Manager Public Projects
Signature and Date
[email protected]
740 East Carnegie Dr
San Bernardino, CA 92408
Note: If there are additional stakeholders, make additional copies of this page.
Request for Authority to Alter Highway-Rail Crossing
Pursuant to Commission General Order 88-B
Form Rev: January 2025
13. Attachments
Included/
Yes
Not
Included/No
Attachment
GENERAL
☒ Vicinity Map - Map of Immediate Vicinity
(Using a scale of 50 to 200 ft/inch)
☐ ☐
Notes/Clarifications:
☐ ☒ AT-GRADE CROSSING
☐ Scaled Crossing Exhibit showing:
☐ US DOT crossing number and CPUC crossing number
☐ Final configuration of all railroad warning devices
(Dimension distance from centerline of track and to face of curb) ☐ All existing proposed signage, traffic signal poles, utility poles, streetlights, landscaping, etc. within the vicinity of the crossing with potential to obstruct visibility of the railroad warning devices are identified (Do not include underground linework for clarity)
☒ ☐ Layout Plans
☒ ☐ Profile Plans
☐ ☐ Signing and Striping Plans
☒ ☐ Construction Staging and Traffic Control Plans (if applicable) ☐ ☒ Landscaping Plans (if applicable)
☐ ☒ Design Vehicle Turning Template (if applicable)
☒ ☐ Crossing exhibit showing temporary configuration of railroad warning devices (if applicable)
☐ ☐
☐ ☐
Notes/Clarifications:
☐ ☒ RAILROAD PREEMPTION
☐ Preemption Timing Worksheet (check one):
☐ Caltrans
☐ Form 3d
☐ TxDOT
☐ Preemption Calculation Measurement Exhibit
☐ Traffic Signal Plans
☐ Phase diagram
☐ Phase sequence upon preemption (or comparable description) ☐ Traffic signal mast and signal heads
☐ Part-time turn restriction (Blank-out) signs (if applicable) ☐ Information on railroad interface panel (if applicable) ☐ Preemption interconnect wiring diagram
☐ ☐ Railroad Preemption Request Form to Railroad Agency (if applicable) ☐ ☐
☐ ☐
Notes/Clarifications: Not Required on this project.
Request for Authority to Alter Highway-Rail Crossing
Pursuant to Commission General Order 88-B
Form Rev: January 2025
Included/
Yes
Not
Included/No
Attachment
☐ ☒ GRADE-SEPARATED CROSSING
☐ CEQA Documentation
Notice of Exemption from CEQA or other factual evidence that the project is exempt from Public Resources Code Section 21080.13 ☐ Bridge General Plan showing:
☐ US DOT crossing number and CPUC crossing number
☐ Minimum vertical clearance clearly identified
☐ Minimum horizontal clearance clearly identified
☐ Construction Staging and Traffic Control Plans
☐ ☒ Temporary Reduced Vertical Clearance Required for Construction ☐ If Yes, Evidence of Agreement also acknowledges and agrees to the need for the temporary reduced clearance.
☐ ☐
☐ ☐
Notes/Clarifications: Not a Grade-Separated crossing.
Request for Authority to Alter Highway-Rail Crossing
Pursuant to Commission General Order 88-B
Form Rev: January 2025
14. Other Interested Parties
Other interested parties, such as project managers and consultants, that want to be included on electronic notifications regarding this application may be listed below. Please provide the name and e-mail address for any interested parties. Evidence of Agreement is NOT required for other interested parties.
N/A
MANAGEMENT REPORT
CITY OF SHAFTER
CITY COUNCIL REPORT
MEETING DATE: July 15, 2025
DEPARTMENT: Alex Gonzalez, Deputy Public Works Director SUBJECT: SHAFTER AVENUE PEDESTRIAN IMPROVEMENT
PROJECT AWARD (ST00044)
RECOMMENDATION
Council find the action is exempt from the California Environmental Quality Act; accept six (6) bids received for the Shafter Avenue Pedestrian Improvement Project; and authorize the Deputy Public Works Director to issue a notice of award and notice to proceed to Cen-Cal Construction in an amount up to $200,000 for said project.
BACKGROUND
The City of Shafter was previously awarded $157,500 in Transportation Development Act (TDA) Article 3 funding to complete pedestrian improvements along Shafter Avenue, between Lerdo Highway and James Street. The project includes the reconstruction of curb ramps, drive approaches, cross gutters, and sidewalks to improve pedestrian safety, accessibility, and compliance with applicable construction standards.
Public Works Staff later completed the design of the Shafter Avenue Pedestrian Improvement Project. On May 6, 2025, the City Council approved the project plans and specifications and authorized formal bid procedures. Six bids were then received and publicly opened, summarized as follows:
Bidder Total Bid Price
Cen-Cal Construction $141,888.00
Griffith Company $173,735.00
Mac General Engineering, Inc. $215,961.33
Derrick D. Enterprise, Inc. $241,667.00
Bowman Asphalt $243,399.00
BMY Construction Group, Inc. $295,560.70
A detailed bid breakdown is provided in Attachment 1.
Cen-Cal Construction submitted the lowest responsive bid in the amount of $141,888.
SHAFTER AVENUE PEDESTRIAN IMPROVEMENT PROJECT AWARD (ST00044) - 2 -
They have completed similar projects for the City in the past, which confirms their qualifications for this project.
FISCAL IMPACT
The project (ST00044) is included in the City’s Capital Improvement Plan with a total budget of $232,500, which is sufficient to cover the recommended contract award, contingencies, and associated administrative costs. Therefore, no budget action is necessary at this time.
The project is funded in part by a $157,500 Transportation Development Act (TDA) Article 3 grant, which requires a minimum 15% local match as a condition of funding. To ensure compliance with the grant agreement and to allow for full utilization of available funds, a total project budget of $200,000 is recommended.
CEQA ANALYSIS
This project is categorically exempt from the California Environmental Quality Act (CEQA) per Section 15302 (Class 2 – Replacement or Reconstruction) of the CEQA Guidelines because the project is the reconstruction of curb ramps, drive approaches, cross gutters, and sidewalks along Shafter Avenue between Lerdo Highway and James Street. Therefore, the project is located on the same site as the public improvements to be replaced and will have substantially the same purpose and capacity as the improvements replaced.
APPROVED BY THE CITY ATTORNEY
Not Applicable
ATTACHMENTS
1. Shafter Avenue Pedestrian Improvement Project - Bid Results
ITEM DESCRIPTION QTY UNITS Unit Cost Total Cost Unit Cost Total Cost Unit Cost Total Cost Unit Cost Total Cost Unit Cost Total Cost Unit Cost Total Cost A1 DEMO & REPLACE SIDEWALK, WHEELCHAIR RAMPS, & ASSOCIATED CURBING 2278 SF 11.50 $ 26,197.00 $ 14.50 $ 33,031.00 $ 23.00 $ 52,394.00 $ 30.00 $ 68,340.00 $ 26.00 $ 59,228.00 $ 48.51 $ $ 110,505.78 A2 DEMO & REPLACE CURB & GUTTER 210 LF 60.75 $ 12,757.50 $ 60.00 $ 12,600.00 $ 68.00 $ 14,280.00 $ 70.00 $ 14,700.00 $ 97.00 $ 20,370.00 $ 84.76 $ $ 17,799.60 A3 DEMO & REPLACE MODIFIED CURB & GUTTER 94 LF 68.25 $ 6,415.50 $ 62.00 $ 5,828.00 $ 68.00 $ 6,392.00 $ 60.00 $ 5,640.00 $ 64.00 $ 6,016.00 $ 106.38 $ $ 9,999.72 A4 DEMO & REPLACE RESIDENTIAL DRIVE APPROACH 187 SF 17.50 $ 3,272.50 $ 21.00 $ 3,927.00 $ 23.00 $ 4,301.00 $ 25.00 $ 4,675.00 $ 32.00 $ 5,984.00 $ 35.24 $ $ 6,589.88 A5 DEMO & REPLACE COMMERCIAL DRIVE APPROACH 344 SF 16.25 $ 5,590.00 $ 21.00 $ 7,224.00 $ 23.00 $ 7,912.00 $ 40.00 $ 13,760.00 $ 36.00 $ 12,384.00 $ 36.42 $ $ 12,528.48 A6 DEMO & REPLACE CROSS GUTTER & SPANDRELS AT SUNSET AVE 1 LS 11,000.00 $ 11,000.00 $ 17,000.00 $ 17,000.00 $ 20,078.00 $ 20,078.00 $ 22,000.00 $ 22,000.00 $ 29,970.00 $ 29,970.00 $ 15,675.00 $ 15,675.00 $ A7 DEMO & REPLACE CROSS GUTTER & SPANDRELS AT CAIFORNIA AVE 1 LS 14,750.00 $ 14,750.00 $ 23,000.00 $ 23,000.00 $ 20,078.00 $ 20,078.00 $ 31,000.00 $ 31,000.00 $ 20,755.00 $ 20,755.00 $ 19,855.00 $ 19,855.00 $ A8 DEMO & REPLACE CROSS GUTTER & SPANDRELS AT GOLDEN WEST AVE 1 LS 8,250.00 $ 8,250.00 $ 10,000.00 $ 10,000.00 $ 20,078.00 $ 20,078.00 $ 12,500.00 $ 12,500.00 $ 18,500.00 $ 18,500.00 $ 12,460.00 $ 12,460.00 $ A9 2' ASPHALT PATCH, 4" THICK (1/2" HMA, PG64-10) 1732 SF 7.00 $ 12,124.00 $ 7.50 $ 12,990.00 $ 7.00 $ 12,124.00 $ 11.00 $ 19,052.00 $ 6.00 $ 10,392.00 $ 18.07 $ $ 31,297.24 A10 TRAFFIC STRIPING & SIGNAGE 1 LS 20,500.00 $ 20,500.00 $ 19,500.00 $ 19,500.00 $ 13,780.33 $ 13,780.33 $ 15,000.00 $ 15,000.00 $ 15,000.00 $ 15,000.00 $ 17,850.00 $ 17,850.00 $ A11 TRAFFIC CONTROL 1 LS 6,500.00 $ 6,500.00 $ 15,635.00 $ 15,635.00 $ 22,082.00 $ 22,082.00 $ 15,000.00 $ 15,000.00 $ 24,800.00 $ 24,800.00 $ 19,000.00 $ 19,000.00 $ A12 MOBILIZATION 1 LS 14,531.50 $ 14,531.50 $ 13,000.00 $ 13,000.00 $ 22,462.00 $ 22,462.00 $ 20,000.00 $ 20,000.00 $ 20,000.00 $ 20,000.00 $ 22,000.00 $ 22,000.00 $ TOTAL BID PRICE: 141,888.00 $ TOTAL BID PRICE: 173,735.00 $ TOTAL BID PRICE: 215,961.33 $ TOTAL BID PRICE: 241,667.00 $ TOTAL BID PRICE: 243,399.00 $ TOTAL BID PRICE: $ 295,560.70
ITEM NAME ITEM NAME ITEM NAME ITEM NAME ITEM NAME ITEM NAME *VALUE DIFFERS FROM SUBMITTED BID FORM AND WAS CALCULATED USING THE UNIT PRICES
SAWCUTTING AUSTIN ENTERPRISE
TRAFFIC STRIPING & SIGNAGE HARKER STRIPING & SIGNAGE
TRAFFIC STRIPING & SIGNAGE CHRISP COMPANY CONCRETE JAYDEE CONTRACTORS, INC
SURVEY AND CONSTRUCTION STAKING JOYNER CONSTRUCTION STAKING
TRAFFIC STRIPING & SIGNS HARKER STRIPING & SIGNAGE SURVEY STAKING DPSI STRIPING HARKER STRIPING & SIGNAGE TRAFFIC CONTROL AWP SAFETY **ALL BIDS ARE UNDER REVIEW** PAVEMENT
MARKINGS HARKER STRIPING & SIGNAGE
Shafter Avenue Pedestrian Improvement Project CEN-CAL CONSTRUCTION GRIFFITH COMPANY MAC GENERAL ENGINEERING INC DERRICK D ENTERPRISE, INC. BOWMAN ASPHALT BMY CONSTRUCTION GROUP, INC.
SUBCONTRACTORS: SUBCONTRACTORS: SUBCONTRACTORS: SUBCONTRACTORS: SUBCONTRACTORS: SUBCONTRACTORS:
MANAGEMENT REPORT
CITY OF SHAFTER
CITY COUNCIL REPORT
MEETING DATE: July 15, 2025
DEPARTMENT: Lance Lippincott, City Manager, Marco Martinez, City Attorney SUBJECT: CITY COUNCIL GOVERNANCE POLICIES & PROTOCOLS
RESOLUTION ADOPTION AND ESTABLISHING ENFORCEMENT
MECHANISMS FOR GOVERNANCE POLICIES AND
PROTOCOLS, LAWS AND CHARTER PROVISIONS ORDINANCE
ADOPTION
RECOMMENDATION
Council find the action is not defined as a "project" per Section 15378(b)(5) of the CEQA Guidelines; and adopt Resolution 3031, a Resolution of the City Council of the City of Shafter, establishing Governance Norms and protocols for the conduct of Public Business; and waive further reading, read by title only and introduce Ordinance 770, an Ordinance of the City Council of the City of Shafter, California, adopting Enforcement Procedures for Violations of Council Governance Norms and Protocols, City Ordinances and Charter Provisions and State and Local Laws in accordance with the Charter of the City of Shafter.
BACKGROUND
At the City Council meeting held on March 18, 2025, Council Member Espinoza - with the concurrence of the entire Council - requested that Staff research governance norms and protocols for the conduct of public business and agendize a discussion item to allow City Council to review, comment and provide direction.
Staff researched sample governance protocols and developed a draft that is specific to the City of Shafter. In addition, Staff developed enforcement mechanisms that are consistent with Sections 4.07 and 9.01 of the Charter. The governance protocols and enforcement mechanisms were reviewed and discussed by the City Council at the May 6, 2025 regular City Council meeting and the June 12, 2025 special City Council meeting. At the conclusion of the June 12, 2025 special City Council meeting, the City Council directed Staff to make minor amendments and agendize a resolution adopting the governance protocols and an ordinance adopting the enforcement mechanisms.
DISCUSSION:
The roles and responsibilities of City Councils in California are often diverse and complex. For this reason, various state laws and other established regulations exist which govern the scope and actions of elected bodies. In addition to state laws
CITY COUNCIL GOVERNANCE POLICIES & PROTOCOLS RESOLUTION ADOPTION AND
ESTABLISHING ENFORCEMENT MECHANISMS FOR GOVERNANCE POLICIES AND
PROTOCOLS, LAWS AND CHARTER PROVISIONS ORDINANCE ADOPTION - 2 -
concerning conflicts of interest and public transparency, it is common for local governments to have in place formalized policies of their own related to City Council governance procedures and protocols (“Governance Protocols”). These Governance Protocols provide members with additional guidance in dealing with each other, dealing with Staff and dealing with the public.
The attached Resolution adopting the Governance Protocols provides the Council with guidance for the conduct of City/Public Business and is similar to the informal Council norms developed in 2010. The Ordinance adopting the Enforcement Mechanisms were drafted using Sections 4.08 and 9.01 of the Charter as guides. They provide the Council with a means of “policing” its members to assure that members comply with:
1. The adopted Governance Protocols;
2. The Shafter City Charter and Municipal Code; and
3. Applicable state and federal laws (i.e. US/California Constitutions, Brown Act, Conflict of Interest, Americans with Disabilities Act).
It is intended that discussion and review of these Governance Protocols and Enforcement Mechanisms be annually reviewed as part of the City’s goal-setting discussions and/or AB 1234 compliance seminar.
FISCAL IMPACT
None.
CEQA ANALYSIS
The action is not defined as a “project” per Section 15378(b)(5) of the CEQA Guidelines, and therefore, it is organizational and administrative activity that will not result in direct or indirect physical changes to the environment that have not already been previously analyzed and not subject to CEQA.
APPROVED BY THE CITY ATTORNEY
Yes
ATTACHMENTS
1. Resolution 3031
2. Exhibit A of Resolution 3031
3. Ordinance 770
4. Exhibit A of Ordinance 770
RESOLUTION NO. 3031
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SHAFTER
ESTABLISHING GOVERNANCE NORMS AND PROTOCOLS FOR THE CONDUCT
OF PUBLIC BUSINESS
WHEREAS, it is the intent of the City Council of the City of Shafter to support the orderly, efficient, and responsive conduct of City business; and WHEREAS, certain parliamentary and governance procedures have been found to be useful in order to ensure that the communication and process of government is respectful, fair, reasonable and just; and
WHEREAS, the City Council desires to establish uniform governance protocols and procedures in order to accomplish these goals; and
WHEREAS, it is the intent of the City Council of the City of Shafter that the Mayor, City Council and all City Boards and Commissions abide by these governance norms and protocols for the conduct of City business.
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF SHAFTER AS FOLLOWS:
SECTION 1. Approve and adopt protocols and procedures for the City Council's conduct of public business attached hereto as Exhibit “A.”
SECTION 2. The City Clerk shall certify to the passage and adoption of this resolution and the same shall thereupon take effect and is in force.
SECTION 3. Effective Date. This Resolution shall become effective immediately following its adoption.
PASSED, APPROVED, AND ADOPTED THIS 15th DAY OF JULY, 2025. _____________________________
Chad Givens, Mayor
ATTEST:
_____________________________
Yazmina Pallares, City Clerk
APPROVED AS TO FORM:
____________________________
Marco A. Martinez, City Attorney
Shafter City Council Resolution No. 3031
July 15, 2025
EXHIBIT “A”
CITY OF SHAFTER
COUNCIL GOVERNANCE NORMS AND PROTOCOLS
(see attached)
CITY OF SHAFTER
COUNCIL GOVERNANCE NORMS AND PROTOCOLS
GENERAL RESPONSIBILITIES OF PUBLIC OFFICIALS
These Governance Norms and Protocols are intended to govern the actions and behavior of both elected members of the City Council and all members of the City’s Boards and Commission (collectively “Public Officials”). The Public Officials of the City shall endeavor to abide by the following:
1. Act in the Public Interest. Public Officials must work for the common good of the residents of the City and not for any private or personal interest. They will assure fair and equal treatment of all persons, claims, and transactions coming before the City Council.
2. Conduct of the Public Officials . The professional and personal conduct of Public Officials must be above reproach and avoid even the appearance of impropriety.
Public Officials must refrain from abusive conduct, personal charges, or verbal attacks upon the character or motives of other Public Officials, the public, and City staff.
Respect for each other, the institution, the staff, and the public, is critical to maintaining an environment where free and open discussion leads to better decision-making for the City. As such, Public Officials should act respectfully at all times.
3. Use of Public Resources. Public Officials must not use public resources unavailable to the public in general, such as City staff time, equipment, supplies, or facilities, for private gain or personal purpose.
4. Interactions with City Staff. Public Officials should not direct the City Manager or City staff to initiate any course of action, change a course of action, or prepare any report without the approval of a majority of their body. Further, Public Officials should not reprimand employees directly, nor should they communicate their concerns publicly, but rather use appropriate channels of supervision and communication.
5. Additional Characteristics. All Public Officials should:
• Demonstrate honesty and integrity in every action and statement; • Serve as a model of leadership and civility to the community; • Strive to ensure fair and equal treatment of all persons, claims and transactions coming before the City;
• Inspire public confidence in government;
• Work for the common good, not personal interests;
• Prepare in advance of meetings and be familiar with issues on the agenda; • Fully participate in meetings and other public forums while demonstrating respect, kindness, consideration, and courtesy to others;
EXHIBIT A
• Participate in scheduled activities to increase Council, Board and Commission effectiveness;
• Represent the City at ceremonial functions;
• Be responsible for the highest standards of respect, civility and honesty in ensuring the effective maintenance of intergovernmental relations; • Respect the proper roles of all elected and appointed officials and City staff in ensuring open and effective government; and
• Represent the official policies or positions of the City when designated as delegates for this Purpose.
• Conduct on Social Media. Public Officials should follow general best practices and guidance on social media platforms as they do in their interactions with the general news media as outlined above. Public Officials should clearly indicate if they are making comments that represent their own opinion and not of the City. Public Officials shall also be cognizant of the fact that their stated positions on social media discourse (particularly on social media platforms), may be misconstrued as the voice of the City, and may therefore put the full City at a disadvantage if and when an issue comes before them when extensive discussion and deliberation has already taken place in an informal public social media setting.
GENERAL RESPONSIBILITIES OF PUBLIC OFFICIALS DURING MEETINGS City Councils, City Commissions and Boards are comprised of individuals with a wide variety of backgrounds, personalities, values, opinions, and goals. Despite this diversity, all have chosen to serve the City in order to improve the quality of life in the community. In all cases, this common goal should be acknowledged even as Public Officials may "agree to disagree" on contentious issues.
In Public Meetings:
• Use formal titles. Public Officials should refer to one another formally during meetings as Mayor, Mayor Pro Tern, Council Member, City Clerk, City Treasurer, Commissioner or Boardmember followed by the individual's last name. • Practice civility and decorum in discussions and debate. Difficult questions, tough challenges to a particular point of view, and criticism of ideas and information are legitimate elements of a free democracy in action. Be respectful of diverse opinions. • Honor the role of the presiding officer in maintaining order and equity. Respect the presiding officer’s efforts to focus discussion on current agenda items.
Objections to the presiding officer’s actions should be voiced politely and with reason, following approved parliamentary procedures.
• Demonstrate effective problem-solving approaches .Public Officials have a public stage to show how individuals with disparate points of view can find common ground and
seek a compromise that benefits the community as a whole. Public Officials are role models for residents and other stakeholders involved in public debate. • Be respectful of other people’s time . Stay focused and act efficiently during public meetings.
ROLE OF THE PRESIDING OFFICER
The Presiding Officer's position is as a leader among equals. The Presiding Officer is to preside at all meetings of their individual meeting bodies and perform such other duties consistent with the position as may be imposed by law or by vote of the people. The Presiding Officer does not possess any power of veto. For purposes of the City Council, the Mayor is the presiding officer of the Council.
The Mayor is to faithfully communicate the will of the Council majority in matters of policy. The Mayor is also recognized as the official head of the City for all ceremonial purposes.
Authority of the Presiding Officer:
• The Mayor is the presiding officer at all City Council meetings. In the Mayor's absence, the Mayor Pro Tem shall be the presiding officer. • The Chairperson is the presiding officer of at all Board and Commission meetings. In the absence of the Chairperson, the Vice Chairperson shall be the presiding officer.
• The Presiding Officers shall recognize the Public Officials , City Manager, Staff and speakers desiring to provide public comment. The Presiding Officer should allow other Public Officials to speak first on items before the body and then the Presiding Officer shall comment.
• The Presiding Officer should not permit inappropriate or unauthorized remarks from the audience including applause, stamping of feet, whistles, yells or shouting, and/or similar demonstrations.
• The Presiding Officer should manage the agenda in a manner that seeks to move the meeting along. The Presiding Officer may call for a short recess during a meeting when deemed necessary. The Presiding Officer, with the concurrence of the body, may consider setting reduced time limits for public comment and for adjournment and carrying over certain matters in order to complete the meeting at a reasonable hour, when necessary.
• The Presiding Officer will represent the majority opinion of the Council, Board or Commission on all actions/positions taken by the body.
CONDUCT WITH CITY STAFF
Governance of a City relies on the cooperative efforts of all Public Officials, who set and/or recommend policy, and City staff, who analyze problems and issues, make recommendations, and implement and administer the City’s policies. Therefore, every effort should be made to be cooperative and show mutual respect for the contributions made by each individual for the good of the community.
• Treat all staff as professionals . Clear, honest communication that respects the abilities, experience, and dignity of each individual is expected. As with your colleagues, practice civility and decorum in all interactions with City staff. • Council-Manager form of government. Public Officials shall respect and adhere to the City's Council-Manager form of government, with the City Council acting as the legislative body of the City, and the City Manager serving as the administrative head of the City responsible for the implementation of Council-majority policies. Council members should always feel free to speak directly with the City Manager on matters of interest or concern. Board and Commission members should feel free to speak directly with their assigned City staff member.
• Channel requests of staff through the City Manager or Assigned Staff Member Public Officials should work through the City Manager or their assigned Department head in dealing with City staff, when possible. Requests of City staff shall be directed to the City Manager or his/her designee or with notice provided to the City Manager, and shall be in writing. Board and Commission members should work through their assigned Department Head. Public Officials shall not set up meetings with department staff directly, and should avoid staff interactions that may be construed as trying to direct or shape staff recommendations. Public Officials shall refrain from coercing staff in making recommendations to the body as a whole.
• Refrain from public criticism of staff. Public Officials should avoid publicly criticizing Staff, individual employees or other Public Officials. Criticism is differentiated from questioning facts or opinions. All critical comments about staff performance should only be made to the City Manager or assigned Department Head through private correspondence or conversation.
• Consistent and equal sharing of information. All Public Officials should have the same information with which to make decisions. Information requested by an individual Member will be made available to all Public Officials . All information requests should respect the "one hour" rule (See below).
• Respect the "two hour" rule for staff work . Requests for staff support should be made to the City Manager or City Department assigned to a Board or Commission, according to the protocol for channeling communications. Any request, which would require more than two (2) hours of staff time to research a problem and/or prepare a response, will need to be approved by the full body to ensure that staff resources are allocated in accordance with overall Council or Board/Commission priorities. Once notified that a request for information or staff support would require more than two (2) hours, the Public Officials may request that the City Manager or assigned Department head place the item on an upcoming agenda.
ORDINANCE NO. 770
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SHAFTER,
CALIFORNIA, ADOPTING ENFORCEMENT PROCEDURES FOR VIOLATIONS OF
COUNCIL GOVERNANCE NORMS AND PROTOCOLS, CITY ORDINANCES AND
CHARTER PROVISIONS AND STATE AND LOCAL LAWS IN ACCORDANCE WITH
THE CHARTER OF THE CITY OF SHAFTER
WHEREAS, the City Council of the City of Shafter (“City Council”) recognizes that the roles and responsibilities of council members in California are often diverse and complex; and WHEREAS, in addition to state laws concerning conflicts of interest and public transparency, it is common for local governments to have in place formalized policies of their own related to governance procedures and protocols (“Governance Protocols”); and WHEREAS, established Governance Protocols provide council members with additional guidance in dealing with each other, dealing with staff and dealing with the public; and WHEREAS, Section 9.01 of the Charter of the City of Shafter prohibits conflicts of interest and encourages the adoption of ordinance(s) to prohibit “[D]efinitions of lapses of ethics in the dealings of City officers and employees with each other, the public, businesses and other governmental agencies and jurisdictions.” (See Section 9.01(C).); and WHEREAS, recognizing the importance of establishing Governance Protocols, the City Council has discussed their content and implementation in a series of discussion held at the regular City Council meeting of May 6, 2025, the special City Council meeting of June 12, 2025 and the regular City Council meeting of July 15, 2025; and
WHEREAS, the proposed Governance Protocols discussed by the City Council include governance norms and protocols for the conduct of public business (Resolution No. 3031) and enforcement procedures as described in this ordinance; and WHEREAS, it is the intent of the City Council of the City of Shafter that the Mayor, City Council and all City Boards and Commissions abide by these governance norms and protocols for the conduct of City business.
THE CITY COUNCIL OF THE CITY OF SHAFTER DOES ORDAIN AS
FOLLOWS:
SECTION 1. The City Council of the City of Shafter hereby adopts the Enforcement Procedures attached hereto as Exhibit “A” as a non-codified ordinance of the City Council of the City of Shafter.
SECTION 2. If any section, subsection, sentence, clause, phase, or portion of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of 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
Shafter City Council Ordinance No. 770
July 15, 2025
might subsequently be declared invalid or unconstitutional.
SECTION 3. CEQA Determination. The City Council finds that this ordinance is not subject to the requirements of the California Environmental Quality Act, pursuant to (Guidelines) Section 15060(c)(2) & (3), because it will not result in a direct or reasonably foreseeable indirect physical change in the environment and is not a “project” as defined in Section 15378.
SECTION 4. Publication. This ordinance shall be published as provided in Government Code section 36933.
SECTION 5. Effective Date. This Ordinance shall be effective upon the commencement of the thirty-first (31st) day following the adoption date.
PASSED, APPROVED, AND ADOPTED THIS 15TH DAY OF JULY, 2025. _____________________________
Chad Givens, Mayor
ATTEST:
_____________________________
Yazmina Pallares, City Clerk
APPROVED AS TO FORM:
____________________________
Marco A. Martinez, City Attorney
Shafter City Council Ordinance No. 770
July 15, 2025
EXHIBIT A
Enforcement Procedures
(see attached)
DISCIPLINING A DISRUPTIVE MEMBER
If one member engages in disruptive behavior, it is the responsibility of the body to remind the disruptive member about their duties. The failure of the governing body to deal with a misbehaving member can also have legal consequences for the City. For example:
• A Public Official that mistreats staff members by using inappropriate language, asking the staff member to perform personal tasks, hugging or touching staff in an inappropriate manner, etc. may be putting the City at risk for a lawsuit alleging harassment or a hostile work environment. If the governing body does not take appropriate steps to avoid the appearance of agreement with the objectionable behavior of a fellow member or commissioner, the inappropriate behavior may be considered to have been sanctioned by the governing body.
Additionally, a Public Official that leaks a confidential legal opinion provided to the City can result in the loss of the attorney client privilege it is possible the opinion can be used in court against the City. For these reasons, it is appropriate to include enforcement measures for these adopted governance norms and protocols.
MEASURES TO ENFORCE GOVERNANCE NORMS AND PROTOCOLS
Warning to Councilmember. Any Public Official may submit a written complaint alleging a minor violation of these Governance Norms, the Shafter Charter, the Shafter Municipal Code or state law by another Public Official. Such written complaint will be submitted to the City Clerk and immediately forwarded by the City Clerk to the City Manager and City Attorney. Within ten (10) days of the receipt of such complaint, the City Manager and/or City Attorney shall jointly prepare a warning letter to the offending Public Official informing them of the nature of the complaint received and providing information and counsel regarding how to conform their actions and/or behavior in accordance with the Governance Norms, Charter, Municipal Code and/or state law. The City Manager and City Attorney shall not be required to conduct any investigation as to allegations. However, they shall provide copies of the warning letter to the entire City Council Compliance Demand Letter. The submittal to a particular Public Official of a “Compliance Demand Letter” should be used for cases in which the body determines, based on review of the findings of an investigation, a more significant violation of these Governance Norms, the Charter, Municipal Code or state law have occurred, but the violation is considered not sufficiently serious to warrant censure. The matter will be properly agendized, and the Council will make a motion and vote during a public meeting whether to issue the Compliance Demand Letter. The named Public Official(s) will be provided appropriate notice, and, prior to the vote on the motion, an opportunity to provide a written or verbal response to the complaint(s) received. A Compliance Demand Letter to the named Public Official is distinguished from censure in that it is not punitive.
Censure. The residents of Shafter are entitled to responsible, fair, honest, and ethical City government. It is the Policy of the City of Shafter that all of its Public Officials shall abide by federal and state laws, the City Charter, City Municipal Code and the Governance Norms. Major violations of these provisions can subject the City to liability, affect the City’s budget, resources, plans and timelines, injure the good name of the City, and undermine the effectiveness of the City Council, its Board and Commissions as a whole. Such conduct is deemed to be subject to censure. A censure shall be considered an expression
EXHIBIT A
of disapproval by the body, but carries no additional penalty or fine to be imposed.
Censure should be used for cases in which the governing body determines, based on the review of the findings of an investigation, the violation constitutes a serious offense or there have been multiple minor violations.
Censure Due Process/Procedure
1. Any two City Public Officials may initiate a censure process by jointly submitting a censure request to the City Clerk. The censure request shall be in writing, specify the name of the Public Official sought to be censured, and specify the alleged misconduct for which censure is sought.
2. Within 10 days of receipt of the censure request, the City Clerk shall inform the City Manager to notify the Public Official who is the subject of the requested censure, and the City Manager shall provide that Public Official with a copy of the written censure request.
3. The City Clerk shall thereafter place the censure request on the next regular agenda for initial consideration of the censure request by the governing body at a meeting occurring no later than 60 days after receipt of the censure request. The initial consideration of the censure may be heard at either a regular or special meeting.
4. At that meeting, the Public Officials who did not submit the complaint and the Public Official who is not the subject of the complaint, may by unanimous vote, direct that the censure hearing not move forward. Absent this unanimous vote, the censure hearing shall move forward.
5. If a censure hearing moves forward, the hearing will be conducted by the presiding officer, so long as the presiding officer is not the subject of the complaint. If the presiding officer is the subject of the complainant, then the hearing shall be presided over by the Public Official that is next in line (e.g. Mayor Pro Tem or Vice Chairperson).
In the event the presiding officer or Public Official that is next in line cannot conduct the hearing, then the longest serving Public Official that is not the subject of the complainant shall preside over the censure hearing.
6. Any censure requires a majority of the governing body (minimum of three (3) votes) to enact, and must be approved through resolution.
Forfeiture of Office for City Council. As stated in the City Charter, a councilmember shall be subject to forfeiture of their office if the councilmember:
1. Lacks any qualification for the office prescribed by this Chapter or by law, at any time during the term of office for which elected.
2. Violates any express provision of the Charter or this policy, or fails to execute or abide by any mandatory provision hereof.
3. Is convicted of a crime involving moral turpitude
4. Fails to attend three consecutive regular meetings of the Council without being excused by the Council.
5. Fails to attend 85% (eighty-five percent) of the meetings of the Council during any twelve month period, without having ben excused by the council.
6. Is found guilty of violating any other standards for the conduct of Public Officials, as established by ordinance.
Forfeiture Due Process/Procedure
The determination of forfeiture under subsections 1, 2, or 6 of the preceding section shall be made as follows:
1. Any one or more Councilmember shall file a complaint with the City Clerk. The complaint shall:
a. Be in writing;
b. Specify the name of the Councilmember who is believed to be subject to forfeiture; and,
c. Specify the alleged misconduct for which forfeiture is sought.
2. Within 10 days of receipt of the forfeiture complaint, the City Clerk shall inform the City Manager to notify the Councilmember who is the subject of the complaint, and the City Manager shall provide that Councilmember with a copy of the written complaint. a. The City Manager upon receiving notice from the Clerk, shall coordinate with the Human Resource Director to conduct an independent and objective fact finding investigation, the results of which will be provided to all Councilmembers through the City Attorney.
b. All records produced shall also be supplied to the Administrative Hearing Officer who will be named at a subsequent meeting.
3. The City Attorney shall thereafter arrange for an independent Administrative Hearing Officer who meets the following minimum requirements to be confirmed or rejected by majority vote of the entire City Council at a meeting held within sixty (60) days of receiving the complaint. At the same meeting at which the Administrative Hearing Officer is selected, the City Council shall also adopt procedures for the conduct of the hearing before the Administrative Hearing Officer. The Administrative Hearing Officer shall conform to the following:
a. Active membership with the California State Bar in good standing, not subject to current investigation;
b. Minimum of 5-10 years practice experience in California; c. Familiarity with the Administrative Adjudication Code of Ethics; d. Familiarity with the California Code of Judicial Ethics, and, e. Council shall approve the Administrative Hearing Officer through resolution at a special or regular meeting.
4. At a special meeting to deal solely with the complaint, the Administrative Hearing Officer shall have the right to order any investigation, interview witnesses or take any other action that is proper and responsive to the matter at hand.
5. A councilmember will be deemed to have forfeited office as of the date the hearing officer issues an order finding that a councilmember has violated the Charter or this policy.